1810. OCTOBER, Steptoe, which came to him from, or through his father George Steptoe, became divisible among his relations on the Templeman part of his father; his mother, though then alive, and her reSteptoe. lations on her part, being entitled to no share or proportion thereof. It further appearing that the said infant, Edward Steptoe, at the time of his death, left two uncles of the full blood, and the descendants of four aunts of the half blood, on the part of his father George Steptoe, deceased," (plaintiffs in this suit,) the Court was of opinion, and decreed, "that the real estate, the slaves and all the other personal estate whereof the said Edward Steptoe died seised or possessed, in possession, reversion or remainder, whereunto he derived title from or through his father George Steptoe aforesaid, as well as the rents, issues, and profits thereof since his death, be divided, by Commissioners, into eight equal parts; that two such parts, or one fourth of the whole, be by them allotted to the said James Steptoe; other two eighths, or one fourth, to the family of William Steptoe, deceased;" and one eighth to the descendants of each of the four aunts aforesaid; according to certain proportions, specified in the decree. It was also ordered, that the defendant settle an account, before the said Commissioners, of the said Elizabeth Steptoe's administration of George Steptoe's estate, and of her receipts and expenditures of the estate of her infant son Edward, derived to him from his father; and also an account of his own receipts and expenditures of the said Edward Steptoe's said estate." And, on the prayer of the defendant, an appeal was granted him from the said decree.* Wickham, for the appellant. The case of Tomlinson v. Dilliard, precludes my making a point I intended; that the Chancellor's decree of March, 1797, was right, so far as it "en *Note. This appeal (being from an interlocutory decree) was granted by virtue of the discretionary power vested in the Chancellor by the act larging the right of appeal in certain cases," passed the 23d of January, 1798. Sec 1 Rev. Code, p. 375. 1810. respected the personal estate. I will substitute another; OCTOBER, that, during the life of Edward Steptoe's mother, the right of inheritance was in abeyance. (a) Templeman V. Steptoe. (a)2Tuck Bl. But, whether right or wrong, that decree was final as to the personal estate. The claim of partition of the real estate was entirely distinct from that for division of the per- App. 28-42. sonal. The widow, as executrix, had nothing to do with the land. I do not deny that several distinct claims may be included in one bill; but, where such is the case, if the Court dismiss the bill as to one of those claims, the parties are out of Court as to that. The decree was therefore final; and, of course, the bill now in question is a bill of review. Bat, being a bill of review, it was not filed within the time the law requires. Though when it was filed is not precisely stated in the record, it sufficiently appears to have been more than five years after the date of the decree; and this length of time, by analogy to the law relating to writs of supersedeas,(b) is a bar to a bill of review. The rules in Courts of (b) 1 Rev. Code, p. 82, s. Equity concerning limitations of suits are framed by analogy 52. to those which govern the Courts of common law. In England the time within which a writ of error may be brought is, by an act of parliament, twenty years. The Court of Chancery, therefore, will not permit a bill of review to be brought after twenty years ;(c) which are to be computed (c) Coop. Eq. 92, 93. and not from the time of the enrolment, but from the time of the cases there pronouncing the decree. Applying the same principle to cited, particu this country, the limitation here, on bills of review, should v. Carroll, 5 be five years; that being the limitation upon writs of or supersedeas, by our act of Assembly. If, in this there were infant plaintiffs, not barred by the limitation, note, and others had certainly no excuse: and, if their rights are joint, C." (which, in my opinion, they are not,) the disability of those who are of full age, to prosecute the bill, might subject the infants to the same disability. larly Edwards Bro. Purl. error Cas. 466. and Smith & Clay, case, s Bro Ch Cas. 639. in Ambl. 645. S. OCTOBER, 1810 Warden, contra, relied on the cases of Grymes v. Pendleton,(a) M Call v. Peachy,(b) Fairfax v. Muse's Ex'rs, and Templeman The President and Professors of William and Mary College V. Steptoe. v. Hodgson and others,(c) as cases in which it was repeat(a) Call, 54. edly decided, that a decree is not final when any thing re(b) lb. 55. (c) 2 H. & mains to be done. In this case the Chancellor might, on M. 557. the final argument, (even without any supplemental bill,) have set the decree aside as to the personal estate. The bill could therefore be considered only as a bill of revivor, rendered necessary by Mrs. Steptoe's death. But, if it was a bill of review, there is no law of limitation upon that subject in this country. The 52d section of the District Court law relates only to writs of supersedeas or error to judgments of inferior Courts; between which, and bills of review, granted by a superior Court to its own decrees, there is no analogy. Judge ROANE referred to Gaskins v. The Common(d) 1 Call, wealth,(d) as having established a contrary doctrine. 194. Warden. I do not recollect that case. But, at any rate, the rights of infants are saved. It appears that many of the plaintiffs were infants when this bill was filed; and, I believe, a considerable part are infants now. How could those of age (where the parties were so numerous, and some of them infants) have brought their bill of review without making them all parties? The whole must be considered as bringing their suit together; because all persons interested must be parties. As to the question of abeyance, Judge TUCKER, in his note to 2 Bl. p. 107. has referred us to Fearne, 513. and 526. which shew that, in a case of this kind, the estate could never have been in abeyance; for that cannot happen unless there be no heir known. Is there any resemblance between this case, and either of those stated by Blackstone? 1810 V. Steptoe. (a) Relied on p. 67. Williams, on the same side, quoted the 49th section OCTOBER, of the Chancery law,(a) to shew what the legislature considered a final decree. If the decree of March, 1797, was Templeman final, the Clerk ought to have recorded all the papers. Yet the cause remained on the docket, There might be twenty records of the same case, if dismission as to part should be considered as final. In Grymes v. Pendleton,* there was such a decree as this, though not inserted in the report of the case: yet it was decided to be interlocutory only. But if this point be against me, the decree was nevertheless correct. It is not at all important that Courts of Equity have, by analogy, adopted the rules of limitation at law; for, if so, the analogy must hold throughout. The act of limitations must be pleaded; which is not the case here. So in Hite's Heirs v. Wilson and Dunlap,(b) this (b) 2 H. & M. Court decided that a release of errors must be pleaded. 268. As to the right of inheritance being said to be in abeyance, the question is raised on the 7th section of the act of descents.(c) But the case of Brown v. Turberville, (d) settled (c) 1 Rev. Code, p. 169. that question as to an adult: and, from the opinions of the (d) 2 Call, Judges there pronounced, it appears that the 5th and 6th 390. *Note. It appears from the record in the case of Grymes and others v. Pendleton and Lyons, Adininistrators of John Robinson, deceased, that the Chancellor's decree, (pronounced the 26th of September, 1793,) after ascer taining the sum to which the plaintiffs were entitled, subjecting the unadministered personal estates of Philip Grymes and Presley Thornton to satisfy the same, and directing an account of the said personal estates to be taken by a Commissioner, "dismissed so much of the bill of the plaintiffs as sought to subject to their demand the real estates of the defendants derived from their ancestors and testators." From this decree the defendunts prayed an appeal, which was granted by the Court of Chancery, but dismissed by the Court of Appeals at October term, 1797, and the cause remanded for farther proceedings. 1810. OCTOBER, question important in this case; there being no proof in the record that there are any maternal kindred. By the Templeman 14th section, then, if there be no kindred on one side, the whole must go to the other. 391. Steptoe. Call, on the same side, to shew that the appellant could not avail himself of the act of limitations, since it had not been pleaded, cited Coop. Eq. 304. and 2 Vez sen. 109. Gregor v. Molesworth. In 1 Bro. Parl. Cas. 96. SherringSmith, a demurrer was allowed on the ground of length of time: but it appears, from the report of the case, that the equitable bar was set up in the demurrer; and, ac ton v. (a) 1 Call, cording to Pryor v. Adams,(a) the form is unimportant, whether by plea or demurrer; provided the fact be stated, and relied upon as a bar. But, here, it was neither pleaded nor relied upon. Mr. Wickham's argument, that adults may be barred while infants are not, is not applicable to this case; the decree being entire and joint, though the respective proportions of the plaintiffs are several. The only case where (an adult and infant being joined in a judgment) one is bound, and the other not, is that of a fine, or common recovery; but those are considered as conveyances; and the ad It is bound by his conveyance. A joint judgment, naught in part is naught in all.(b) (b) Styles, 400. 406. The decree here is joint to every intent and purpose. A reversal, then, as to the infunts, must enure to the benefit of the adults. But, in equity, as the bar by the act of limitations arises only from analogy, it is regulated by the sound discretion of the Court, according to the circumstan(c) Wyatt's ces of each case. (c) For example, the rule at law that, where Pr. Reg. 307. 3 P. Wms 8. the act begins to run, it does not stop, though descents to Mills v. Banks, 1 Vez. infants or femes covert intervene, is not permitted to ope sen. 206. Kemp rate, in equity, to their injury, though it may to their be v. Squire. 1 Sch. & Lef. nefit. 413. Bona v. Hopkins. But 2. The decree of March, 1797, was not final; for a final decree is that only which puts an end to the cause, and puts it off the docket. The reasoning of the Court in Metcalf's |