Field, C. J. concurring.
The hill in this case cannot be sustained. If judgment was obtained in the action at law by Cohn against the Sheriff and his sureties, and such facts have since come to light as would authorize the interposition of a Court of Chancery to enjoin the judgment, this proceeding must be taken by Mulford, the Sheriff, and his codefendants in the judgment. Such a bill would be in the nature 'of a bill in equity for a new trial. It must be shown distinctly in such a bill that the facts are of controlling force; that they were not known to the defendants at the time of the trial; that the defendants used all proper diligence to prepare their case for trial, and to procure the evidence, and that they were unable, without fault or negligence on their part, to procure it; that the testimony is now within their control, and that they will be able to procure it on another trial. The bill should state particularly the facts to be proved, the names of the witnesses, and show the bearing and relevancy of the proposed proofs. It should also show when and how the facts discovered came to the knowledge of the plaintiffs, and why no motion for a new trial was made in the Court trying the case, and before the lapse of the term. (See French v. Garner, *477 Porter, 552; Duncan v. Lyon, 3 Johns. Ch. R. 351.) It is not necessary to decide that upon such a bill as that indicated the plaintiffs here could stand. It is certain that the one before us is not sufficient, and that the demurrer was properly sustained.
Judgment affirmed.
On petition for rehearing the opinion of the Court, per the same Justices, was as follows:
Rehearing denied. We cannot remand the cause for the purpose of amendment to the bill; but we have not held or intimated that a new bill with appropriate amendments might not be filed.