Зображення сторінки
PDF
ePub

Diligence, though not of equal degree, is also necessary in order to warrant the filing of a supplemental bill (a). And so with regard to bills of review; -concerning which it has been determined that even for error apparent, they will not lie after twenty years from the date of the decree (b), except in the case of persons not in esse at the time of the decree, and of persons having contingent interests, of infants and of others under any legal disability (c).

The judgment of Lord Chancellor Camden in the case of Smith v. Clay (d), which established the rule last mentioned with respect to hills of review will form an appropriate conclusion to the present treatise. [*]From the accuracy with which this judgment ascertains the principles that influence courts of equity in their treatment of stale demands, and explains the reasons upon which those principles are found ed, it has been regarded as an authority applicable to all cases in which the circumstance of lapse of time forms a prominent and characteristic feature.

The case arose upon a petition for a bill of review for error manifest upon the face of the record. It was between thirty and forty years after the time when the decree was pronounced. Lord Camden said,—The question upon this petition is, whether a bill of re

(a) See Barrington v. O'Brien, 1 rington v. Smith, 2 Bro. P. C. by Ball and Beat. 173.

(b) Smith v. Clay, Amb. 645; 3 Bro. C. C. 639, n. S. C.; Norris v. Le Neve, 3 Atk. 26, 38; Edwards v. Carrol, 2 Bro. P. C. by Toml. 98; Lytton v. Lytton, 4 Bro. C. C. 441. See also Sher

Toml. 62; Earl of Castlehaven v. Underhill, 2 Cha. Rep. 46; Fitton v. Earl of Macclesfield, 1 Vern. 287.

(c) Lytton v. Lytton,' supra. (d) Supra.

view here is not barred by the length of time. I am of opinion it is. There are two questions. First, what period of time is a bar to a bill of review? Second, from what time this period shall be computed? To the first question the answer here is easy. Twenty years is the period. Edwards v. Carrol(a) is decisive, and now not open to argument. A court of equity which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence: where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore from the beginning of this jurisdiction, [*]there was always a limitation to suits in this court. In Fitton v. Lord Macclesfield, Lord North said rightly, that though there was no limitation to a bill of review, yet, after twenty-two years, he would not reverse a decree but upon very apparent error. Expedit reipublicæ ut sit finis litium, is a maxim that has prevailed in this court at all times, without the help of an act of parliament. But, as the court has no legislative authority, it could not properly define the time of bar, by a positive rule, to an hour, a minute, or a year; it was governed by circumstances. But, as often as parliament has limited the time of actions and remedies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity(1). For

(a) 2 Bro. P. C. by Toml. 98.
(1) Shelby v. Shelby, Cooke, 179.

when the legislature had fixed the time at law, it would have been preposterous for equity (which, by its own proper authority, always maintained a limitation) to countenance laches beyond the period that law had been confined to by parliament. Hence, in all cases where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar. Thus the account of rents and profits, in a common case, shall not be carried beyond six years. Nor shall redemption be allowed after twenty years' possession in a mortgagee, except in cases of disability. By the like analogy, the House, in Edwards v. Carrol, determined that twenty years should bar a bill of review, because the statute of Will. III. had barred all writs of error after that period. As to the second question, his Lordship held, that the time, whence the period of [*]twenty years was to be computed, was the date of the decree. And he remarked in conclusion, that the rule which prevented the bringing of bills of review after twenty years, was also applicable to the case of bills for a re-hearing(a)(1).

(a) Amb. 649. On the latter point, see also Yate v. Mosely, 5 Ves. 480.

(1) Vide Thomas v. Harvie, 10 Wheat. 146.

Lansing v. Albany Ins. Co., 1 Hopk. 102. Webb et al. v. Pell et al., 1 Paige, 564.

[*450]

ABSENCE.

Absence abroad, an answer to presumptions from lapse of

[blocks in formation]

Page

14, 366

Absence for seven years without interim account, presumptive
evidence of death

ABSTRACT.

Old abstract presumptive evidence of the deeds, &c., ab-
stracted

ACCEPTANCE.

Acceptance of property conveyed or devised to a man pre-
sumed, unless evidence given of a disclaimer

[ocr errors]

279

197

32

ACCOUNTS.
Right to require accounts in all cases lost by laches - 433-436
Accounts for rents and profits not carried back in equity fur-
ther than six years; sometimes the account is confined to
the filing of the bill

except in the case of infants, when the account is car-
ried back to the time when the infant's title accrued :
the party however must complain within six years
after his majority

[ocr errors]

Right to open an account generally, settled between trustee
and cestui que trust on the latter coming of age, deter-
mines at the end of six years; cestui que trust can then
only surcharge and falsify

[ocr errors]

-

436

437

[ocr errors]

437

438

If trustee has been guilty of fraud, the account may be
opened generally at any distance of time

ACTS OF PARLIAMENT.

Acts of parliament presumed in support of long possession.

ACCUMULATIVE LEGACIES.
ADEMPTION.

6, n.,

194

See DOUBLE LEGACIES.

Legacy by a parent, or person in loco parentis, adeemed, or
presumed to be adeemed,

by a subsequent advancement to the child of like amount
with the legacy

[ocr errors][ocr errors][ocr errors][ocr errors][merged small]

by a portion of like amount secured to be paid to the
child at the parent's death
pro tanto, by an advancement of inferior amount to the
legacy
Construction not altered by a codicil subsequent to the ad-
vancement which "ratifies and confirms the will in all re-
spects"

[merged small][ocr errors][ocr errors][ocr errors]
[ocr errors]

130

130

129

Differences in the period whence interest.is to be paid, or in
the time for payment of the principal, immaterial 131-132
Where the legacy and advancement are both of modified in-

[merged small][ocr errors]

ADEMPTION-(continued.)

[ocr errors]

terests, differences in the modes of limitation immaterial
Illegitimate children, if recognized as children, within the

[merged small][ocr errors][ocr errors]

The presumption of intent to adeem rebutted,

Page

134

128, n

where the legacy is of a qualified interest, and the
advancement is absolute

133-134

where the legacy and subsequent provision depend
for their vesting on different contingencies
where the legacy and advancement are not ejusdem
generis

132

- 133

132

where the bequest is of a residue
where the advancement is grounded on a distinct
consideration, or is made for a particular purpose 133
where, in addition to a legacy given expressly as a
portion, a general legacy is bequeathed

The presumption repelled,

[ocr errors]

by evidence of the parent's intention, as shown in a
codicil after the advancement

by extrinsic evidence of intention, whether written or
parol

What parol declarations are effectual to this
end

- 135

136

136

137-140

140

Extrinsic evidence admissible to fortify the presumption
when impugned ·

ADMINISTRATION.

Letters of administration presumable in support of an old as-
signment of a lease from a person described in such assign-
.ment as administrator of a former owner, semble
ADMINISTRATOR. See EXECUTOR.
ADMISSION.

[ocr errors][ocr errors][merged small]

Admission of a demand or equity within twenty years an
answer to presumptions from time, 17, 339-344, 358, 365,
370, 372-373

ADMITTANCE.

admittance to a copyhold, what secondary evidence of
Admittance to a copyhold presumed,

after long possession and payment of the rents and

[merged small][merged small][merged small][merged small][ocr errors]

from the lord's accepting a surrender from the party
in possession to the use of a third person
from the lord's granting to the party in possession an
enfranchisement of the copyhold

[merged small][ocr errors]

ib.

ib.

Purchase in the name of a wife or child before unprovided
for (though such child be illegitimate), and whether the
estate be immediate or reversionary, an advancement 58-58
So, a purchase made in the joint names of the parent and
child, or of the child and a stranger

57

« НазадПродовжити »