Page:The English Reports v1 1900.pdf/706

of Courts of Equity, with respect to limiting a time for granting re-hearings, or bringing bills of review to set aside or vary decrees, have been analogous to the proceedings of Courts of Law, upon the statute of 10th William III. and other acts of parliament for limitation of suits: and that the very great length of time which had elapsed since these decrees were pronounced, and the rules and reasons of law in like cases, were apprehended to be the principal grounds on which the appellants petition for leave to file a bill of review, was dismissed. That an appeal from a decree of a Court of Equity, was in the nature of a writ of error in parliament from such decree, and would not be received after twenty years had elapsed from the time of pronouncing it; and that this point was so ruled by their Lordships, in the case of Edwards v. Carrol, upon a bill of review. (Vide Jour. vol. 29. p. 657.) The standing order of March 1725, was conceived to be intended as an additional restriction on appeals brought from any of the courts therein mentioned; but not to exclude that equitable analogy drawn from the statute of King William, which their Lordships justice would apply to all cases within the mischief which that statute was adapted to prevent. Indeed if that order was designed to be the sole restriction in the case of appeals, and to exclude a judicial discretion in all other instances, it would increase the inconvenience; by permitting an appeal at the most remote distance of time, and after the longest acquiescence, if either through the ignorance of parties, or the inattention of their agents, a decree had been omitted to be inrolled but the construction of this order submitted by the respondents, was not only founded in the reason of the order itself, but was likewise adapted to the nature and effect of inrollments, which always relate to the time of pronouncing the decree; and though after a lapse of six months, no decree is permitted to be inrolled without an order, yet such order is obtained of course, and without any notice given of it to the other party; and the inrollment so made has, by the rules of the court, the same relation to the time of the decree, as if the decree had been inrolled immediately after it was pronounced. Should the appellants insist, that having appealed from the decree of June 1767, which they certainly were entitled to do, they must necessarily be permitted to appeal from the two former decrees, or their appeal from the last decree would be fruitless; it was apprehended by the respondent, that the only and proper question would be, whether the appellants should be permitted to appeal from the two decrees of 1728 and 1731? For they would not contend against the propriety of the decree of 1767, supposing it should be determined, either that the appeal from the two former decrees could not be admitted, or that those de-[462]-crees ought to be affirmed upon the merits; for the last decree of 1767 was merely an order to revive the suit, and to carry the former decrees into execution, as against the respondent Clay; against whom it was necessary the suit should be so revived, if the former decrees remained unimpeached.

But if the appellant should be permitted to impeach the justice of those decrees, it would be necessary to consider the three objections made to them: I. That it was the manifest intention of Samuel Papillon to give an estate for life only to his son John, as well in the estate devised, as in the lands directed to be purchased with the residue of his personal estate; that such intention appeared not only in the express devise to him for life, but also by limiting it to him without impeachment of waste, and by interposing trustees to preserve the contingent remainders limited by the will, both which clauses were nugatory if John took an estate tail; and that as such intention was admitted by each of the decrees of 1728 and 1731, which severally directed that the estate to be purchased should be settled on John Papillon for life only; so much of the decree of 1731, as directed the deeds and writings of the estate devised to be delivered to him, was manifestly erroneous; as being in direct contradiction to the intention of the testator, which ought to govern in the construction of his will. II. That supposing John Papillon to have been declared tenant for life of the lands to be purchased under the will, and tenant in tail of the Bentley estate under the marriage articles, he ought to have been put to his election, whether he would take under the will, or under the articles; and that he should not have been permitted to take under the articles in contradiction to the will, unless he relinquished the benefit of the devise in the will. III. That in the settlement directed by the decrees to be made of the lands to be pur-