atkins case February John norris a infant and norris John monk Elizabeth Le  neve and other plaintiff isabella Le neve spinster edward Le neve Esq peter Le  neve gentleman son and heir of henrietta Le neve decease edward Matthew grave  gentleman and and his wife the daughter and heir of and rogers decease former  and Le neve which say isabella henrietta and and rogers be the daughter and  coheir of oliver neve otherwise Le neve Esq decease defendant S c post Semb  Lord Bacon rule in respect to bill of review have never be depart from since  the make of they the court be of opinion that the party who now apply for  leave to bring such a bill have not bring themselves within those rule and  dismiss the petition Oliver Le neve of great Witchingham in the county of  Norfolk Esq be seize in fee of diverse manor land c in Norfolk Surrey  Middlesex and London of the yearly value of pound and have no child and a  great desire to continue his estate in his name and blood do propose to settle  the same upon Oliver Le neve then a infant of ten year of age father of the  defendant Isabel and grandfather of the defendant Peter Le neve and and grave  and upon Peter Le neve his brother also a infant of twelve year of age and  Francis Le neve and their issue old Oliver Le neve have be long acquaint with  one John Norris a barrister at law reside in the county of Norfolk great  grandfather of the plaintiff John Norris who have be his stand counsel for  many year and have the sole direction of his affair and Oliver entire rely on  his skill and integrity in prepare such settlement on the that and that of  February old Oliver Le neve do by lease and release in consideration of the  natural love and affection he bear to Oliver neve Peter neve atkins er p and  Francis neve be his cousin and of his name and blood and for make provision  for payment of his debt and legacy as he shall by his last will appoint convey  and limit the say manor land c to the use of himself for life without  impeachment of waste to the use of Elizabeth his wife for life as to part  atkins remainder as to the whole to his cousin Oliver neve for year if he so  long live remainder to trustee to preserve contingent remainder remainder to  his first and other son in tail male remainder in like manner to Peter neve  and Francis neve and to their first and other son in tail male remainder to  the right heir of the say Oliver the grantor in the indenture be a proviso  that it shall be lawful for old Oliver by his will to limit all the say estate  after his own death to any person for any term of year in order to raise money  for the payment of his debt and legacy and on the that of February he make his  will and thereby in pursuance of the say power devise unto John Norris all the  say estate for the term of ten year to commence after the death of the  testator upon trust that the rend and profit thereof shall be apply in payment  of his debt legacy and funeral expense and after payment thereof the surplus  to Oliver neve the infant if then live or in case of his death to Peter if  then live and in case of his death to Francis if then live his executor  administrator and assign and make John Norris executor of his will and give he  a legacy of pound old Oliver Le neve by a codicil date the that of January  will that all house and land purchase by he since the make his will shall go  to the same use and for the same estate as be limit by his will some few day  after make the codicil old Oliver die without issue and John Norris prove the  will and enter upon the estate devise to he in trust as aforesaid on the d of  April old John Norris write a letter to Francis neve father of Oliver the  infant declare a great concern for the safety of the will and that he will not  trust the same out of his hand till he come to London which he intend soon to  do for the prove it in chancery and that he shall be assistful to do therein  for its best security to all intent and assure the say Francis he shall to his  best judgement endeavour to have the intent of his testator perform for all  its purpose so far as lie in he the trust thereof be commit to he so whole  which he say oblige all his care and skill therein which he declare he be not  a little solicitous to effect to his utmost and in which he be ready to comply  with the best ad atkins vice he can take to secure the end the testator design  by his will on the d of August old John Norris agree with John neve of London  blacksmith the heir of the testator for the purchase of the reversion in fee  after all the intermediate estate be spend for thirty pound and by lease and  release of the saint and d of August the blacksmith convey to John Norris and  his heir all the say estate la e belong to the say testator on the d of  October a bill in chancery be exhibit by the say Oliver neve a infant by his  guardian and old John Norris against Elizabeth neve the testator widow and the  blacksmith as heir at law to the testator set forth the settlement bill and  codicil pray that the defendant may set forth what right they claim in the say  premise and that the plaintiff may examine witness and that their testimony  may be preserve in December follow the blacksmith answer be put in by which he  insist he be heir at law of Oliver the testator and say that he have be inform  that the say Oliver have entail part of his estate but that he have never see  the say settlement or will and in the answer he neither take notice of old  John Norris have purchase the reversion of he nor do he claim the say  reversion Elizabeth neve the widow of Oliver in January follow put in her  answer insist on her estate for life and say she have no knowledge whatever of  John neve the blacksmith in the month of January the witness to prove the  settlement be examine to preserve their testimony the father of young Oliver  die in November and in June young Oliver have attain his age of old John  Norris atkins er p settle all account with he and at his request agree to  assign to he the remainder of the year term of which five year be then to come  and to put he into possession of the estate upon a release of these rend c and  of the trust wherewith old John Norris stand charge by the settlement and will  and such assignment and release be execute accord on the d of October soon  after this a dispute arise between young Oliver neve and old John Norris about  the testator leasehold estate and in easter term young Oliver neve file a bill  against old John Norris and therein charge that the say John Norris bad renew  several lease and that he have possess all the deed atkins c relate to  testator real and personal estate and pray that the say John Norris may convey  to he the saidOliver all the say freehold estate as also the several term c of  old Oliver Le neve of or in any manor land c wherein he be any way entitle to  at the time of his death and since come in any manner or by any mean to the  say John Norris or to his use or benefit old John Norris put in a answer the d  of July and thereby admit that he draw and advice the settlement will and  codicil and that Oliver the maker thereof be govern by his advice in the  conduct of this affair and that he have be executor of all the will by he make  for twenty year before his death say that he have deliver up all the deed and  write belong to the testator estate but yet take no notice of the purchase he  have make of the blacksmith although he be require by the say bill to set  forth all interest which have come to he in any manner as well leasehold as  freehold in order to assign the same to young Oliver neve the plaintiff No  further proceed be have on that bill but Oliver neve and John Norris  compromise the matter between they and fourteen year afterward on the that of  August old John Norris assign the say leasehold premise to two person for the  remainder of the term which person declare themselves trustee for Oliver neve  the young may the saint in pursuance of a agreement with Peter Le neve the  elder brother of Oliver and who be next in remainder after he with a  limitation to the issue male of his body the blacksmith for ten pound convey  his reversionary interest to the say Peter neve and his heir and die in August  follow on the saint of August old John Norris die have first make his will  whereby he devise the reversion he purchase of the blacksmith to his old son  John the present plaintiff grandfather for life with remainder to his first  and other son in tail male with remainder over on the that of December Francis  neve the three and last person in the entail under old Oliver neve settlement  die without issue in young Oliver neve be in possession of the estate and but  have one son live a infant of so infirm a state of health that it be apprehend  he can not live to be and Oliver be not likely to have any more child and  Peter have no child apply himself to the plaintiff grandfather who be in great  want of money and offer he atkins pound and afterward pound to deliver up the  conveyance to his father from the blacksmith but the reversion be devise to he  only for his life he can not dispose of it young Oliver neve son be between  and and very infirm and his father not be able to purchase the reversion they  come up to London in order to get a privy seal to enable the son  notwithstanding his minority to suffer a recovery but the plaintiff  grandfather enter a caveat at the proper office which put a stop to it soon  after their return into the country the son die before the age of on the that  of November young Oliver neve die without issue male and his brother Peter  neve enter into possession and apply to mrs earl a friend of the norris and  tell her he be desirous of purchase Mr norris reversion in this estate and  will give pound for it and upon her say she think it not a valuable  consideration he say he will give more and desire her to speak to he which she  do and norris answer be he have not power to sell it on the that of January  John Norris the plaintiff grandfather die leave John Norris his only son and  heir at law in Peter neve be year old pretend he have some claim to the  reversion and to accommodate dispute propose to marry a sister of the  plaintiff father and on these term will yield up his claim to the reversion in  fee a meeting be have atkins er p but the provision he offer for the young  lady be think not sufficient the matter break off on the saint of October  Peter neve die without issue have first make his will and devise the estate in  question the reversion of which he have purchase of the blacksmith to the  three daughter of his late brother Oliver neve namely Isabel Le neve and Roger  and Henrietta neve and their heir and assign all the limitation in the first  settlement be spend upon the death of Peter neve without issue the reversion  in fee become vest in John Norris the plaintiff father who be then a infant  bring his bill April the that against Isabel neve Edward neve and Henrietta  his then wife and John Roger and whether his wife pray they may set forth what  right they claim to the estate and to deliver up possession c no answer be put  in to this bill atkins in easter term the plaintiff father bring ejectment for  the land in Norfolk to which the defendant to the last mention bill appear and  upon a long trial by a special jury at the summer assize and full defence make  a verdict be give for the plaintiff father for all the freehold land in  Norfolk and judgement be enter the defendant bring a writ of error on the that  of November the defendant bring a cross bill against the present plaintiff  father and among other thing charge that Peter neve do not suspect that Norris  have purchase the reversion and that Norris who be privy to Peter purchase  never intimate that any conveyance have be make to he but always declare  himself to be no otherthan executor in trust without set up any claim to the  reversion and therefore pray a discovery of all the deed and write and that  they may be deliver up and the conveyance to Peter neve from the blacksmith be  establish and that to Norris cancel and that the proceed on the ejectment may  be stay in Michaelmas term the plaintiff father deliver ejectment for the  London and Southwark estate but on the m of march the party come to a  agreement that the copyhold and leasehold which lie intermix with the freehold  shall be distinguish that the plaintiff father shall without trial be let into  possession of all the freehold in London Southwark and Norfolk comprise in the  blacksmith title John Roger and and his wife die soon after leave issue the  defendant and now wife of Matthew grave and Henrietta wife of the defendant  Edward neve die leave issue the defendant Peter and the plaintiff Elizabeth  the that of October John Norris the plaintiff father die leave the plaintiff  his only son and heir who in November file his bill of supplement and revivor  against the defendant pray they may set forth whether they insist on any and  what title to the estate in question that there may be a commission of  partition of copyhold from freehold that the plaintiff may be let into  possession of the freehold that lie may have the benefit of the agreement in  the former cause and all deed and write to be deliver and to be quiet in  possession on the d of July the defendant put in their answer and insist that  old John Norris conceal his conveyance from the Neves that his take it be a  breach of trust and that he ought to be deem a trustee for Peter and his heir  admit the agreement in the former cause but say it be not intend to bind the  interest of any of the party that they ought not to account for the rend c of  the estate atkins but that the plaintiff great grandfather old John Norris  shall be decree a trustee for they and the plaintiff oblige to account with  they for rend and profit the plaintiff reply to the answer and issue be join  examine diverse witness but the defendant who have make the abovementioned  defence agreeable to what they have collect from the common report in the  family do not examine any be unable to prove the matter by they put in issue  on the that of July Lord chancellor decree a account of the profit of the  freehold premise since the death of Peter neve and declare the plaintiff  entitle thereto and direct a commission for divide copyhold from freehold land  and that after the execution of such commission the write belong to the  freehold shall be deliver up for the plaintiff benefit on the that of August  the estate be distinguish and set out by meet and bind on the that of February  the cause be set down for further direction but before atkins er p the same  come on the defendant and late Roger marry the defendant Matthew grave a  attorney on the saint if may the defendant petition for leave to file a bill  of review upon a suggestion that the petitioner have since the decree discover  that they be the heir at law to the blacksmith which they have never hear  before and that he be dead without issue on the d of October the petition  stand in the paper but the defendant do not think proper to support that  petition but suffer it to be dismiss with cost on the that of October the  defendant prefer a second petition for liberty to bring a bill in the nature  of a bill of review and to rehear the cause on a suggestion that since the  decree be pronounce they have discover several fact by which the real truth of  the case appear sufficient to show that the purchase of the reversion by old  John Norris a trustee for Oliver and during his infancy ought to be esteem a  trust for he and that they have discover several deed witness by old Norris  relate to purchase by old Oliver and several letter manifest the confidence  old Oliver place in he and likewise the letter of the d of April and the  record of the bill in chancery on the d of October bring by old John Norris  and young Oliver neve against the widow of old Oliver neve and the blacksmith  and likewise the record of the bill bring by Oliver neve the young against  atkins old John Norris in may and several deed before mention in support of  the petition William haver swear he be the solicitor for the defendant Isabel  neve c and that he do not know till after the that of July the day on which  the cause be hear that the defendant can prove that old John Norris wag the  counsel usual employ by old Oliver neve in his affair or that he have be his  executor under many will before his death or that old John Norris do advice or  draw the settlement and will of or that the estate in question be purchase by  old John Norris while he be in possession of the say estate in trust for young  Oliver neve or that old John Norris have surrender a lease of the personal  estate or that there have be any controversy about it or that old John Norris  have assign the same in consideration thereof or that old John Norris be a  witness to any deed wherein old Oliver neve be a party the defendant Matthew  grave by his affidavit swear that since the say cause be hear Thomas Martin  executor of Peter neve deliver the settlement of to he and that observe a  cause endorse on the settlement he search for the same and find two cause in  the six clerk office neve versus neve and neve versus Norris in the record in  the tower that he find the latter of the three of April in Thomas Martin  custody the that of July last and the lease grant to old Norris and the  assignment thereof in Holdens custody and also find the deed attest by Norris  in Martinss custody the defendant Isabel neve Edward neve Peter neve and and  grave in their affidavit swear that they know none of these fact till inform  thereof by the defendant Matthew grave and the they examine no witness nor  read any evidence in the cause because they do not then know any of the fact  Thomas Martin in his affidavit swear that he be one of the executor of Peter  neve who die in and that upon his death he find in his study the settlement  and copy of old Oliver neve will and the indenture of October and that the  deed and write remain in his custody from till the delivery thereof to Matthew  grave c on the that of may last atkins that he be concern in the country as  attorney for the defendant at the trial of the ejectment in but be not concern  as solicitor upon the defence for they in equity and to his knowledge do never  see the bill of revivor in this cause nor the defendant answer but that he  have have meeting with the plaintiff father and may have talk with or act for  Isabel neve Edward neve and his wife and John Roger and his wife under the  direction of the party or with Mr haver or Mr bowyer the clerk in court which  haver and bowyer he believe have the sole conduct of the cause for the  defendant but he be not concern for they as solicitor other than as aforesaid  this petition be hear before Lord chancellor on the that of January and on  atkins er p February the that and that and in answer to this evidence which be  produce by the defendant in support of their petition it be insist on the part  of the plaintiff that the matter now pretend to be new discovery by the  defendant be not so for that at the trial of the ejectment in copy of the bill  and answer in the cause of Oliver neve and John Norris plaintiff versus John  neve and Elizabeth neve defendant be produce and read at that trial and that  Thomas Martin be the attorney employ by the defendant in that cause and act as  such at the trial and as agent for the defendant he write letter touch the  execute the commission for examine witness in may that the defendant exhibit  their cross bill in against the plaintiff father and therein state the  settlement and will of old Oliver neve and of old John norris have instruction  to purchase the reversion for Peter neve and that instead thereof he have  purchase it fraudulent for himself and conceal such purchase and that  therefore he ought in equity to be deem a trustee for the plaintiff in the  cross bill it be likewise insist that the letter of the d of April or the deed  attest by old John Norris be no new discovery because they come out of the  hand of Martin the defendant attorney in the ejectment and employ in the  commission that issue in the cause out of chancery after read the settlement  and will in the blacksmith conveyance and the bill answer and deposition in  and and several purchase deed of old neve attest by Norris and three day hear  of counsel Lord Hardwicke deliver his opinion as follow the that of February I  have be desirous to examine very particular into the new evidence in order to  prevent any more litigation and expense atkins the present application be for  leave to bring a bill in nature of a bill of review and this be say to be find  upon new matter not at all in issue in the former cause or upon matter which  be in issue but discover since the hear of the cause upon these rule I do  allow bill of review have be grant for though it have be say that these be  vary by the order that be make in the cause of Montgomery versus clark yet I  see no alteration and therefore the rule I shall judge by in the present case  must be the ancient one Lord Bacon rule have never be depart from since the  make of they by the establish practice of the court there be two sort of bill  of review one find on suppose er or appear in the decree itself the other on  new matter which must arise after the decree or upon new proof which can not  have be use all the time when the decree pass the question be whether in this  case the defendant have bring themselves within the rule and whether there be  new matter not exist at the time of the decree or new proof that can not  possible be make use of at the former hear the construction as to the latter  have not be so strict that the new proof must not come to the party knowledge  till after the cause have be hear it be very sufficient if it do not come to  their knowledge till after publication or when by the rule of the court the  party can not make use of it Patterson v slaughter Amb but if it come to the  knowledge of the party attorney solicitor or agent before the cause be hear it  be consider as notice to themselves and be the same thing as come to the party  knowledge the second question S pose it do come to the knowledge of the party  after the cause have hear whether it be relevant to the matter in question it  have be insist for the defendant in the original and plaintiff in the cross  cause that the equity to which the new fact be point be not in issue at the  hear of the former cause now as to this I be clear of opinion that the equity  be as full before the court in the former hear as it can be now atkins for it  appear there that old Oliver neve be the maker of the settlement that young  Oliver be a infant that old John Norris be trustee under the settlement during  ten year for the payment of debt and in that time take a conveyance from the  blacksmith the last remainderman under the settlement in the equity insist on  in the cross bill be that old John Norris ought to be consider as a trustee  only for the party interest in the trust estate and that the purchase the  reversion from the blacksmith be a breach of trust in he and that the  conveyance to Peter neve from the blacksmith ought to be establish and that  atkins er p to Norris cancel and the proceed at law stay vide ailiff v Murray  atk Welpdale v Cookson Ves twine v morris bro Charles Rep fox v Mackreath  ibidem killick v flexney bro Charles can all the charge relate to the trust  and the execution of it be make out then and if fact be put in issue there be  no necessity for the party to point out what will be the effect and  consequence of such fact for the court be to make the inference of law from it  as ex facto be born law the defendant then do not want a bill of review to  come at this equity for all the act which be now say to be discover be  corroboratives only of the former equity and therefore there be no ground to  grant it upon this head which bring I to the other point whether they be so  many new proof and that by the rule of publication the defendant be preclude  from make use of they at the former hear the first question be whether they be  new discovery second whether they be relevant and will avail the defendant if  such a bill be allow to be bring now it do not appear to I that these be new  discovery so as to entitle the defendant to a review for if they be know to  the party counsel or foe their attorney and solicitor or agent it be  sufficient to rebut such a application or there will be no end of suit how  many party be there that know not the merit of their own cause but rely on the  skill of their counsel or solicitor and therefore what counsel or solicitor  know must be allow to be the knowledge of the party vide Worsley v earl of  Scarborough atk Le neve v Le neve atk it be swear by Martin who be attorney  for the defendant in the ejectment that he have the several deed and write  atkins even at the time of the trial and that upon the death of Peter neve he  find they in his study among other paper but say he be concern only as  attorney in this trial but not as solicitor in the cause in chancery but I  will consider he as solicitor likewise notwithstanding he life in the country  for every body know that country atorneys act by agent in cause here the  letter of the d of April come too out of the hand of Mr Martin but I do not  see what inference can be draw from it any more than that old John Norris be a  trustee the next thing to be consider be the bill bring by young Oliver neve  and old Norris against mrs neve and the blacksmith now this very bill be  produce on the trial in ejectment and though by a adversary there yet it be  the same as if produce by the defendant and be a clear notification of the  fact this trial be eleven year before the cause in equity be hear so that  there be time enough for the defendant to have consider it and whether the  judge do right in admit it to be read be not material the next be the deed of  assignment in which be likewise know to Mr Martin and find among Peter neve  paper and be therefore constructive notice to his client suppose then these be  not new discovery it be a final and conclusive answer to this application for  a bill of review that they crust at the former hear and be know to the party  or their attorney and therefore be not within the rule lie down by Lord Bacon  but suppose they to be new discovery and relevant to the case they can amount  to no more than corroboratives only of the former point in equity the equity  insist on be this that old John Norris trustee for a term of year under old  Oliver neve settlement antecedent to all the limitation of the estate in the  settlement before the end of the term and during the infancy of young Oliver  neve take a conveyance to himself of the reversion from the blacksmith the  heir at law of old Oliver neve for pound only the estate be at least pound per  and as it be now fall into possession atkins this be a transaction indeed  extreme to be disapprove and I must say that a counsel or agent take a  conveyance from the right heir for his own benefit and which he discover by  his be a trustee do a very wrong thing but this be a case prim impression for  it will be difficult to say for who he be a trustee and yet I shall be extreme  desirous of consider he as a trustee only if I can be warrant in so do atkins  er p the case which have be cite of Rumford market and other case of lease  vide Pierson v shore ante atk and the case there cite be different from this  for there tenantright of renewal be rather a courtesy from the landlord and  cteris pair the relation of the same family who take the original lease of  bishop dean and chapter c be general prefer and they have a natural  expectation of it old John Norris be equal a trustee in the ten year term for  Peter neve or Francis as for Oliver neve for they be all tenant for life under  old Oliver settlement for it be a trust to pay debt and attendant on the  several limitation and estate create by the settlement so that a person equal  a trustee for all buy in this reversion and it be impossible to make the  conveyance from the blacksmith to old John Norris a trust for Oliver neve for  the maker of the settlement do not intend to give the first tenant for life  any interest in the reversion since as I say before this be prim impression  and no case have be cite in point but only argue by way of analogy to case of  lease which I have show be very different it will be too much for I to break  into rule for bill of review for the sake of one particular case only for as  it be a new point and no ground to stand upon the make ld Norris a trustee for  person who be only tenant for life and take nothing in the inheritance will be  go too far but there be still another circumstance and that be the great  length of time and the certain knowledge the person under who the plaintiff in  the cross cause claim have of John norris purchase of this reversion and this  will make it a question whether it be not such a laches in these person who be  ancestor of the plaintiff in the cross cause as will affect they and be a bar  to their claim for as long ago as the year it be in the knowledge of these  person and particular of atkins Oliver neve that old John Norris have purchase  the reversion and as this be no less than year ago vide smith v clay Amb  Edward v Carrol bro par can bro p c and ed it must have great weight with the  court not only from the length or effluxion of time but from the knowledge the  person have of this transaction for Oliver neve bid pound and Peter neve pound  for the reversion be a strong circumstance to show that they be acquaint with  old norris purchase Oliver neve not succeed in his offer and have a weak son  between and year old come to town in order to get a privy seal to enable his  son to join with he in a recovery and as he can not obtain it can it be  suppose as he must be exasperate against old John norris son for his refusal  to join in the application that he will have resist so great a temptation as  bring a bill to be relieve if there have be any ground on the head of fraud  therefore the distance of time be a strong objection because when the matter  be recent there may have be some circumstance and perhaps too some paper which  will have be strong in favour of those who claim under old John Norris that  may very probable be lose now and what make it likely be Peter neve bid so  large a sum as pound for the reversion which show that he think it a very  valuable thing this be the strong point which weigh with I that after such a  length of time and such great offer make and refuse by the person who claim  under old John Norris that no bill be thereupon bring to set aside the  purchase for fraud and as it will be of very bad consequence to let party  enter into the discussion of this matter now at such a distance the petition  must therefore be dismiss but without cost the plaintiff in the cross cause  appeal from this order of dismission to the house of lord where after a hear  of three day the order of Lord Hardwicke in a very full house be affirm by a  great majority on the that of April bro par can bro p g d ed S c atkins er p