Windes delivered the opinion of the court.
We are of opinion the chancellor did not err in denying appellant’s petition.
To entitle a litigant to a bill of review on the ground of newly-discovered evidence, it must generally relate to a matter in issue on the trial, not to make a new case, but to establish the old one; it must not be cumulative merely, nor simply to impeach former testimony in the case. Story’s Eq. Pl., Sec. 413; 2 Barbour’s Ch. Pr. 92; Dexter v. Arnold, 5 Mason (C. C. U. S.), 303-13; Boyden v. Reed, 55 Ill. 458; Walker v. Douglass, 89 Ill. 425; Aholz v. Durfee, 122 Ill. 286.
As to whether the newly-discovered evidence must relate to a matter in issue on the trial, we are aware there is a conflict of authority, (see Story’s Eq. Pl., Sec. 416 and 2 Dan. Ch. Pr. 1572), but we will follow the rule as stated by the Supreme Court in the Boyden case, supra, to the effect that it must not be to make a new case, but to establish the old one. All the alleged newly-discovered evidence relating to the first, second, fourth and fifth points made by appellant’s petition is merely cumulative in its nature, and by way of impeachment of appellee’s testimony given on the trial. It is unnecessary to set it out in detail. It is not conclusive in its nature, and would not necessarily nor probably have produced a different result had it been before the chancellor, and especially is this true with reference to the photograph and date of the birth and name of the child, which were of slight importance.
As to the third point, we are of opinion that whether or not appellee had been guilty of adultery was not in issue on the trial; and even if appellant had offered evidence to show it, it could not have been properly received under the pleadings. There is no allegation in the bill that appellee had been a chaste, faithful and dutiful wife, as claimed by appellant, and the nearest approach to such an allegation is that she “ faithfully performed all her duties and obligations as a wife.” The answer makes no charge of adultery against appellant, but states’ “ that he denies each and every allegation in said bill contained,” and then proceeds to deny the marriage, that a child was born to him and appellee, and that he was the owner of a large amount of property and was in receipt of a salary of $10,000 per year. This being the state of the pleadings, proof of appellee’s adultery would not have been admissible. Home Ins., etc., Co., v. Myer, 93 Ill. 271-4; Johnson v. Johnson, 114 Ill. 611-22.
In the former case the court say: ■
“ It is a familiar rule of equity pleading, that a defendant is bound to apprise the plaintiff, by his answer, of the nature of the case he intends to set up (and that, too, in a clear, unambiguous manner); and that a defendant can not avail himself of any matter in defense which is not stated in his answer, even though it should appear in his evidence.”
This rule is especially applicable to divorce cases and where the defense is recriminatory. 2 Bishop on Mar. & Div., Secs. 619 and 636, and cases cited.
The adultery of appellee not being an issue before the trial court, the alleged newly-discovered evidence set out in the petition would not be a proper matter for consideration on a bill for review. As to the claim that appellant was surprised by the evidence of appellee to the effect there was a common law marriage, and that he relied wholly on his defense that there had never been a marriage, it is sufficient to say that appellant’s surprise was not made known to the chancellor, and no continuance was asked in order to meet that proof. Moreover, it appears from the testimony of Wade and the counter affidavits, that appellant’s solicitor was aware some time prior to the trial, and even before the bill was filed, -that appellee would probably make proof of a common law marriage. But it is claimed that the chancellor should not have considered the counter affidavits nor the testimony of Wade. We can not assent to this contention. They were at least competent to be considered as to whether the evidence claimed to be newly discovered was in fact new, and also to explain the alleged new evidence. Dexter v. Arnold, 5 Mason, 303; 2 Barbour’s Ch. Pr. 95; Society of Shakers v. Watson, 77 Fed. Rep. 512-16; Long v. Granberry, 2 Tenn. Ch. 85-96.
We have, however, carefully considered all the affidavits for and against the petition and the testimony of Wade, taken in open court, and can not say that the chancellor should not, on the evidence, have denied the petition, considering it only with reference as to whether it was newly discovered, whether appellant might not have discovered it in time for the trial had he exercised reasonable diligence, and as to its nature, whether cumulative simply or decisive and conclusive in character. The granting of such a petition is not a matter of right in the party, but of sound discretion to the court to be exercised cautiously and sparingly.” Craig v. Smith, 100 U. S. 226; Watson case, supra.
Our Supreme Court, in Schaefer v. Wunderle, 154 Ill. 581, say:
“ Leave to file a bill of review for ‘ newly-discovered evidence ’ is not granted as matter of right, but depends upon the sound discretion of the court to which the application is made. * * * Unless there has been an abuse of the fair discretionary power with which the Circuit Court has been invested in the matter of sucy applications, its decision should not be disturbed.” See also Stockley v. Stockley, 93 Mich. 308.
The order denying the prayer of the petition for leave to file a bill of review is affirmed.