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by its own inadvertence or by the blunder of the parties. A sense of fair dealing and justice would be authority enough, in the absence of any other, for so holding. Nevertheless, other authority will be found, and that directly in point, in Genge's Appeal, 2 Jones, 260, where the subject is so fully discussed that further argument from us is unnecessary."
In In re Estate of G. C. Lightcap, Sr., deceased, 29 Pitts. Leg. Jour. (O. S.) 373 (1882), 99 Pa. 74, the Supreme Court, in an opinion by Green, J., said: "It cannot be doubted that the court below had ample power to correct the error of its original decree, either under or independently of the Act of October 13, 1840. Nothing had been done under the decree, and if it was erroneous it ought to be corrected in the interest of justice and by the court that made it. We held in Parker's Appeal, 11 P. F. Smith, 478, that the Orphans' Court under the Act of October 13, 1840, might entertain a bill of review, notwithstanding a decree of affirmance by the Supreme Court. The discretionary power of the Orphans' Court to correct its own errors by petition of review, outside of the provisions of the Act of 1840, has been affirmed in the cases of Gillen's Appial, 8 W. N. C. 499, and Whelan's Appeal, 20 P. F. Smith, 410, and is manifest upon plain principles applicable to the power of all courts over their own decrees."
Rhone's Orphans' Court, Pr. Vol. 1, p. 645, says: "The object and purpose of the Act of October 13, 1840, was to establish as a matter of right what had been before construed by the courts as matters of grace, and to limit the time for the inquiry and examination of accounts to five years after their final confirmation:" Ellison's Estate, 13 C. C. R. 410 (1893). In this case an executor's account was filed in 1881 and confirmed absolutely in 1882. In 1893 one of the cestui que trusts filed a petition for review. Held, that under the evidence the petitioner was barred by laches.
In the course of his opinion, Judge Ashman said: "The rule is that laches will bar a suitor of his remedy as effectually as the statute of limitations, and for the same reason, his own inaction raising the identical presumption which the law raises out of mere lapse of time. In recognition of this rule the Act
of October 13, 1840, limited the period within which, as a matter of right, a bill of review can be had to five years from the date of the final decree. Among cases not within the Act, where relief has been sought as a matter of grace, and has been refused upon the ground of laches, we may refer to Baggs's Appeal, 43 Pa. 512; Milligan's Appeal, 82 Pa. 389; and Scott's Appeal, 112 Pa. 427."
The foregoing examination of the Pennsylvania authorities on this subject shows how decided a preponderance exists in the decisions of our Supreme Court in favor of a liberal interpretation of the Act. This power of review, which any other construction of the Act of 1840 than the one here contended for would materially and arbitrarily curtail, is one of the most delicate and important among those entrusted to the Orphans' Court in its equitable jurisdiction over decedents' estates.
Prior to the Act of 1840, the question as to the period of time which by its lapse would constitute a bar to review, was entrusted to the discretion of the court, to be determined by all the circumstances of the case, and the discretion thus vested in the Orphans' Court had always been guardedly and equitably exercised.
The intent of the Legislature in the passage of this Act could never have been to limit to the short term of five years the exercise of a power which, prior thereto, the court had equitably administered after a lapse of twenty years. Apart from the authorities, a consideration of the causes for which bills of review are filed, and of the injustice which so narrow a limitation of the power would produce, will convince that such was not the purpose of the Act.
The end sought by the Legislature was plainly to secure the privilege of review as a matter of right demandable by the parties in interest within the period of five years, and demandable thereafter subject, as formerly, to the equitable discretion of the court.
And this conclusion to which these considerations so clearly point is borne out and confirmed by the opinions of the Supreme Court in George's Appeal, Gillen's Appeal and Lightcap's Estate.
In Jackson v. Jackson, 144 III. 274 (1893), one of the points
involved in the case was the question under discussion, the bill of review being brought to vacate a decree in a partition proceeding. Justice Craig, in delivering the opinion of the Supreme Court of Illinois, said: "The next question presented is, whether the complainants or either of them have lost their right to bring this bill by lapse of time. As has been seen, the decree was rendered on April 6, 1883, and this bill was brought on August 20, 1890. No time has been prescribed by statute within which a bill of review must be brought, but writs of error are required to be sued out within five years from the time a judgment or decree has been rendered; and in analogy to the time prescribed for prosecuting writs of error, it has been held that a bill of this character should be brought within the time allowed for suing out a writ of error: Lyon v. Robbins, 46 Ill. 278." And the same view was taken in the case under consideration.
In the case of Thomas v. Harvic's Heirs, 10 Wheaton, 143 (1825), this question was considered by Mr. Justice Washington in rendering the decision of the Supreme Court of the United States. This was an appeal from the Circuit Court of Kentucky. The appellant filed in 1818 a bill to review and reverse a final decree of the same court pronounced in 1810. The Supreme Court said: "The record shows that the order of court permitting the bill to be filed was granted eight years subsequent to the final decree in the original cause; and the question to be decided is, whether the remedy was not barred by length of time?"
"It must be admitted, that bills of review are not strictly within any act of limitations prescribed by Congress; but it is unquestionable that Courts of Equity, acting upon the principle that laches and neglect ought to be discountenanced, and that in cases of stale demands its aid ought not to be afforded, have always interposed some limitation to suits brought in those courts. It is stated by Lord Camden, in the case of Smith v. Clay (Ambl. 645, 3 Bro. Ch. Cas. 639, note)" that as the Court of Equity has no legislative authority, it could not properly define the time of bar by a positive rule, but that, as often as parliament had limited the time of actions and reme
dies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity." Upon this principle it is, that an account for rents and profits, in a common case, is not carried beyond six years, or a redemption of mortgaged premises allowed after twenty years possession by the mortgagee, or a bill of review entertained after twenty years, by analogy to the statute which limits writs of error to that period.
These principles seem to apply, with peculiar strength to bills of review, in the courts of the United States, from the circumstance that Congress has thought proper to limit the time within which appeals may be taken in equity causes, thus creating an analogy between the two remedies by appeal, and a bill of review, so apparent that the court is constrained to consider the latter as necessarily comprehended within the equity of the provision respecting the former." And in Central Trust Co. v. Grant Locomotive Works, et al., 135 U. S. 207 (1890), the principles laid down in Thomas v. Harvie's Heirs were adverted to and re-affirmed.
In an action of accounting a court of equity will not lend its aid to the enforcement of stale claims. In the case of Bell et al. v. Hudson et al., 73 Cal. Rep. 285 (1887), it was held that a Court of Equity, on account of the staleness of the claim, would not entertain an action for an accounting of the affairs of a partnership, which was brought by the personal representative of one partner, twenty-five years after his death, against the personal representative of the other, when the complainant failed to account for the delay by showing that the heirs of the former partner had no knowledge of their rights, or that there was some impediment to a prior action by them.
In perhaps the majority of the States there is no statute of limitations governing such cases-certainly no such statute as the Pennsylvania Act of 1840-and the entertainment and decision of such cases is left entirely to the discretion of the Court of Equity before which they are brought. The general attitude is well set forth by Chief Justice Taney, in delivering the opinion of the Supreme Court of the United States in McKnight v. Taylor, 1 How. 168:
"In matters of account, where they are not barred by the Act of Limitations, Courts of Equity refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscured by time and the evidence may be lost."
As stated by Davis, J., in McQuiddy v. Warc, 20 Wall. 19, "there is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances." In other words, the question addressed to the sound discretion of the chancellor in each case. How clearly this doctrine appears in some cases is illustrated in the abovecited case of McKnight v. Taylor, where the bill was filed to adjust matters of account which were not barred by the Statute of Limitations, but were, nevertheless, dismissed for want of reasonable diligence.
The principle to be deduced from the cases not governed by statute seems to be that a bill of review for error apparent on the record must be brought within the time in which, at the common law, a writ of error could be brought, and that the allowance of a bill of review for after-discovered matter is wholly within the equitable discretion of the court as to the question of time, as well as in other respects.
It appears that, as a general rule, it is not allowed after the time allowed for a writ of error has elapsed since the evidence was discovered. The whole subject is one which the Legislatures of our States will do well to leave to the sound discretion of our Courts of Equity as any attempt at statutory limitation of a power so delicate, so important and so necessarily discretionary, cannot but be frequently attended with mischievous results. H. BOVEE SchermerhorX.