case Montgomery against the attorneygeneral in chancery Michaelmas term Geo in  what case the court of chancery will allow letter to be read Hardwicke Lord  chancellor deliver the follow opinion the question be whether some letter  shall be allow to be read and the case by which the question be introduce be  this the plaintiff be heir at law of the testator and the question arise upon  the sanity or insanity of the testator at the time of make his will on which  the validity of it depend it seem after the death of the testator a bill be  bring in the name of the attorneygeneral at the relation of the devisees in  order to establish the will and to have the trust execute in which the heir at  law be make defendant and this court direct a issue at law to be try of  devisavit well non which depend on the validity of the will and a verdict be  thereupon give in favour of the will whereupon application modern report be  make for a new trial but will chief justice of the common plea certify that he  be satisfy with the verdict so that the new trial be refuse and then this  issue be try a decree be make on the equity reserve the trial of this issue be  in Trinity term and the decree make in Michaelmas term follow after which in  the same term the now plaintiff bring a ejectment in order to recover the  premise but on this a new information be bring by the attorneygeneral in the  nature of a supplemental bill for a perpetual injunction to stay proceed at  law this come to be hear in and a decree for a perpetual injunction be accord  make since that the plaintiff bring a new bill in the nature of a bill of  review and apply to the court to have the original cause hear and the decree  for the perpetual injunction reverse and the reason be find this application  on be because since the trial and decree he have discover new evidence to show  the insanity of the testator which be not in his power to have produce modern  report er p before and such as he think will have induce the jury to have find  a different verdict and therefore he pray that a decree for a perpetual  injunction may be reverse so that then he may have a new trial this evidence  it seem consist in letter which be in the custody of the defendant so that the  question now be whether these letter shall be admit to be read anew proof in  this bill in the nature of a bill of review to the admission of they several  objection have be make first that it be not show that they be first discover  and come to his knowledge after the first decree in Michaelmas term second  suppose they do since the first decree yet it be plain it be before the decree  for a perpetual injunction which be sufficient to induce the court not to  admit the read of they now because they may have make use of they in order to  have prevent that decree be make now though this bill be call a bill of review  yet it be only in the nature of a bill of review and not strict one because  the decree be not enrol yet I must consider it as if it be real one and  therefore must reserve the same rule as be lie down concern bill of review the  original rule that be lie down by Lord Bacon a Lord Bacon ordinance in  chancery print in his law tract page a be that no decree shall be reverse  alter or explain be once under the great seal but upon bill of review and no  bill of review shall be admit except it contain either error in law appear in  the body of the decree without further examination into matter of fact or some  new matter which have rise in time after the decree and not any new proof  which may have be use when the decree be make nevertheless upon new proof that  be come to light after the decree make and can not possible have be use at the  time when the decree pass a bill of review may be ground by the special  licence of the court and not otherwise so that on this rule three thing be to  be consider first modern report any error in law appear in the body of the  decree second some new matter which have rise in time after the decree so that  the second do not take in this case as be new matter c and so be the case of  Whorehood v Whorehood a Eq case Abr a where the wife bring her bill for  alimony upon her husband have leave her and there be a decree that the husband  shall pay her so much a quarter afterward the husband bring a bill to stop the  allowance upon a suggestion that he have offer to take her home to he and she  have refuse to come whereupon the alimony be stop but this be not proper a  bill of review accord to the description in those rule but rather in the  nature of a original bill so that in the present case this be not proper new  matter but it be new proof of that matter which be before allege videlicet of  the insanity of the testator which be original the defence and therefore be  new proof of that matter and which can not possible have be use at the time of  the decree and I have see a manuscript of Lord nottingham with his own note on  Bacon rule where he add of his own that this new matter must be such of which  the party can not have advantage at the time of the decree and agreeable to  this rule be Chan Rep where after lie down a rule that nothing be a ground for  a new trial after judgement that be not a ground for a bill of review it be  say nor be the want of evidence of matter which may have be use in the first  cause and of which the party have then knowledge any ground for a bill of  review these therefore be the rule to be observe in bill S of review it be  necessary now to consider how far the present case correspond with they the  first objection as to allow this evidence be that the plaintiff have not show  that these letter come to his knowledge since the first decree it be admit by  the answer of the defendant that it be after the trial at law and the  plaintiff have swear by affidavit that in February his wife intimate to he  that there be some letter write by Christopher ploy a person send for as a  evidence at the trial to her father before the trial which she think may be of  service to he but then this be in February which be both after the trial and  decree but it be object on the defendant side that this be no proof because  this affidavit be make by the plaintiff and strict speak it be not yet  notwithstanding this it have always be consider as satisfactory as far as it  concern the plaintiff own knowledge and it be impossible for a man to give  more certain evidence when a thing modern report er p come to his knowledge  and to show that it be sufficient a affidavit of the same nature be allow in  Hannekra v Jackson where though Lord Harcourt dismiss the bill on this  exception yet the house of lord reverse his decree and hold the evidence  sufficient beside in the present case this affidavit of the plaintiff be  strengthen by the defendant answer for they do not swear modern report nor  indeed say so much as they believe that this come to the plaintiff knowledge  before it be true this be not a admission but it be a pass over what have be  allege and all they say be that these letter come late to their knowledge but  these affidavit be then file and whenever a matter be point out on one side  and not contradict on the other it corroborate what be swear and it often  happen on motion that the fact be imperfect state but if the other side have a  opportunity to clear they up and do it strengthen what be swear but suppose it  can be take in this case that they come to the plaintiff knowledge between the  trial and decree yet it be after publication pass and then the question be as  to the true construction of Lord Bacon rule and though to be sure this do not  express come under his description as be new matter yet it be new proof of a  matter which can not be make use of at the time of the decree it be discover  after publication and Lord Nottingham say that it must be such as can not be  take advantage of at the time of the decree and so be Chan Prec now if the  proof come after publication as the plaintiff be force to proceed to a hear he  can have any advantage of his new proof at the time of the decree but it be  far object that though this be discover after the trial at law yet it may have  be make use of on the motion for a new trial but that be not now to be  consider on a bill of review neither be the court or the plaintiff bind by  that for new trial be entire discretionary in the court the next objection be  that suppose it do sufficient appear to have come to light since the make the  first decree yet if it appear to have come to knowledge before the  supplemental bill that be enough to repel the read of these letter but as to  the second decree that be mere consequential while the first stand in force  for the first bill be bring make the heir at law defendant and the court  decree a performance of trust for the charity mention in the will the heir at  law afterward bring a ejectment but he be not admit to proceed for the same  reason as be lie down in Vernon v Acherley a bar Chan a that a man shall not  be suffer to overturn a decree by a proceed at law therefore I say while the  first decree stand in force the second decree must be make and though the  second decree for a perpetual injunction be make to hinder the plaintiff from  proceed at law yet it do not bar he from proceed in this court nor can it be  plead to a bill bring here and indeed the reason of grant a perpetual  injunction to stay proceed at law be in order to confine they to this court  for relief and therefore the bring this bill be not inconsistent with that  decree but suppose for argument sake that the decree for a perpetual  injunction will have stand in his way have these letter come to his knowledge  before that be obtain yet as he have swear that his wife in modern report  February intimate and indeed only intimate to he that she believe there may be  some letter which will be of service to he and it be further swear that it be  Michaelmas and not before that she tell he that she remember the purport we be  now to consider whether these letter do not come to the plaintiff knowledge  even after the second decree for it be not to be imagine that every bare hint  of matter in the custody of the adverse party be to be call come to a man  knowledge his wife only tell he there be some letter before the second decree  but it be swear that she tell he what the substance of they be since that  second decree now this evidence must be consider secundum to throw under means  and therefore it be natural to imagine that the plaintiff may think it  dangerous to proceed on this sort of evidence until he be sure what may be the  effect of it otherwise he may possible oblige the defendant to produce  evidence which may be against he and therefore as the word of the rule be that  the evidence must come to light or knowledge after the decree be make in order  to have advantage of it by review I do not think it can be proper modern  report er p say to have come to the plaintiff knowledge before but then it  have be allege for the defendant that this affidavit be somewhat suspicious  and that it may possible have come to his knowledge before and so indeed be  all those case where a man swear when a thing come to his knowledge so be the  case of Hannekra v jacobson and indeed strong than the present for there a  bill be bring on foundation of new evidence which be contain in his own  custody in a box in his garret and the plaintiff annex a affidavit that the  letter which the box contain be send over after the death of the intestate and  that they have lie in his garret and he have not read they before the former  decree and Lord Harcourt allow a demurrer to this and so dismiss the bill but  the house of lord reverse this decree and order the court to proceed on the  bill of review though to be sure this evidence be liable to many suspicion  that it may have come to the party knowledge before and that case be much more  suspicious than this for there the letter be in the plaintiff own custody but  here they be in the custody of the adverse party another objection to the read  of these letter be that it tend to the admission of examination of fresh  matter after publication which the court ought to avoid but here be the less  danger in the present case because it be in relation to letter in the  defendant custody and as this evidence be in write there be no danger of  perjury beside there be another very material circumstance which will induce I  to admit of this proof which be that on read over this bill in the nature of a  bill of review I observe that the plaintiff have charge the defendant with  fraud and be so I think it be a strong ingredient in the present case because  fraud be a sufficient foundation for a bill of review and there be several  case to that purpose as Richmond v tailor and fraud will overturn a judgement  at law as well as a decree in this court modern report for if a executor  confess a judgement and plead it to a action bring by a creditor the plaintiff  may reply per fraud et covinam which if find be sufficient to overturn the  judgement and so it will the decree here though I do not say that I presume  any fraud in the present case these be my reason why I be of opinion that the  letter ought to be admit to be read though I must say I have a great deal of  balance in my mind because I will be very cautious how I extend these rule as  to admit new evidence further than absolute necessity require this  determination however can introduce any general rule as to these matter  because it entire depend on its own particular circumstance I be therefore of  opinion that these letter ought to be read