Morrison Waite

“ Whatever may be said in such cases, which are really only bills in the nature of bills of review, and which can only be filed on special license, we think it clear that as to bills which relate to errors on the face of the decree alone, and which may be filed without leave, no such rule prevails. The filing without performance is in the nature of privilege, not jurisdiction. ”

“ Performance does not establish the error, but only makes it the duty of the courts, when called on in a proper way, to inquire as to any errors that may have been committed. Whether the courts will enter on such an inquiry without performance depends upon the exercise of a sound judicial discretion applied to the facts of the particular case.
This beings us to the facts as presented by this record. The bill of review does not aver a performance of the decree or give any excuse for non-performance. ”

“ These cases clearly show that from the beginning the ordinance was treated as a rule of practice, and questions touching obedience to its requirements were not considered as matters of strict right, but as governed by a sound discretion. Taylor v. Person, 2 Hawks (N. C.) , 298.
Another of the ordinances of Lord Bacon, promulgated at the same time, provided 'that no bill of review shall be put in, except the party that prefers it enters into a recognizance with sureties for satisfying of costs and damages for the delay, if it be found against him.' Bacon's Law Tracts, supra. ”