Smith against Clay
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1767 |
| Date | 10 May 1767 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 419
HIGH COURT OF CHANCERY
S. C. 3 Bro. C. C. 639 n. Followed, Campbell v. Graham, 1831, 1 Russ. & M. 478. See L. C. & D. Ry. v. Bull, 1882, 47 L. T. 415; Allcard v. Skinner, 1887, 36 Ch. D. 186; In re Sharpe, [1892] 1 Ch. 168.
Case 315.-smith against clay. 10th May 1767. [S. C. 3 Bro. C. C. 639 n. Followed, Campbell v. Graham, 1831, 1 Euss. & M. 478. See L. C. & D. By. v. Bull, 1882,47 L. T. 415 ; Attcard v. Skinner, 1887,36 Ch. D. 186 ; In re Sharps, [1892] 1 Ch. 168.] Bill of review for error apparent will not lie after twenty years from the making of the decree.(l) The time runs from the decree, not from the inrolment.-[Lib. Reg. 1766, B. fo. 451. S. C. Hill, MSS. 11 Vol. 204; Harg. MSS.] Samuel Papillon, citizen of London, by will gave the testamentary moiety of his personal estate to trustees, upon trust to buy land and convey to his son for life, remainder to the heirs of the body of his son, remainder to the children of his three late sisters, Phcebe Smith, Mary Ball, and Ann Gledhall, and the heirs of their bodies, as tenants in common, each of his three late sisters' children to have an equal third part thereof ; and in default of such issue, to his own right heirs. Bill brought by the son against the trustees, to have the money laid out: and on the 15th July 1728, the cause was heard, when the Master of the Bolls declared, That the plaintiff was entitled to an estate for life only; and or-[646]-dered the money to be laid out and settled on the plaintiff for life; remainder to his first and other sons in tail: remainder to the then children of the testator's three sisters in tail, as tenants in common; with remainder to testator's right heirs. The plaintiff appealed from the decree ; and the cause was heard before Lord King, Chancellor, on 5th February 1731, when it was decreed, That the estate to be purchased should be settled, in default of issue male of the plaintiff, on the plaintiff's daughters respectively in tail, with cross remainders to the daughters in-tail; and for want of such issue of all the daughters, then to the children of the testator's three sisters, as in the former decree. (See this case on the hearing before the Master of the Bolls, and also on appeal, 2 P. Wins. 471, nom. Papillon v. Voice.) This last decree was not inrolled till the 5th March 1764; and on the 10th June 1766, by motion, application was made to open this inrolment, and refused. Upon that, the plaintiff and two of the defendants petitioned for a bill of review, upon two grounds : 1st, Because the decree has directed the estate when purchased to be settled in such a manner, that on failure of issue of Papillon the son, the same should go in remainder to the then defendants, the children of the testator's three sisters, Phoebe Smith, Mary Ball, and Ann Gledhall, in taD, as tenants in common : by which direction the then children would take per capita, and not per stirpes; which is contrary to the express direction of the will, that each of his three sisters' children should have an equal third part. 2d, That the intention of the testator was, that there should be cross remainders. It was said, That the decree ought not to operate by way of bar, only from the time of inrolment. On the other side, it was insisted, That the inrolment had relation to the time of decree ; and that the length of time since the making the decrees was a bar to a bill of review, being thirty-nine years since the first decree, and thirty-four since the last. 420 SMITH V. CLAY AMB, 647. [647J The case of Edwards v. Carrol, in the House of Lords, was cited as an authority in point, that a bill of review will not lie after twenty years. Lord Camden, Chancellor, after taking time for consideration (see Lord Camden's judgment more at length, 3 Bro. 0. C. 640, in note): This is a petition for review, upwards of thirty years after the decree, suggesting error on the record. Error on one point is apparent enough ; but in all these questions, which turn on the limitation of time, the right is never taken into consideration ; for the statute was made to bar right, and not give remedy in dubious cases. The rule, Ut sit finis litium, operates against cases of right, rather than in cases of wrong. The Question is, Whether the petitioners are barred by length of time. I am of opinion they are barred. This bill of review is like a writ of error, to reverse a decree. This is a very different case from a bill of review brought on new evidence. I confine myself to bills of review for...
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