V. OCTOBER, suits. The decrees were not, as here, decrees of dismission, 1810. but of satisfaction of debts in part. We defy the counsel Templeman on the other side to produce a case where, in a suit claiming two subjects in their nature distinct, a decree, absolutely deciding the right as to one of them against the plaintiff, and dismissing the bill as to that, has been held interlocutory quoad hoc. Steptoe. (a) 1 Call, 54. (4) 1 Rev. Code, p. 67. The appeal in the case of Grymes v. Pendleton,(a) (as will be seen by reference to the original record,) did not present the question whether that part of the decree which dismissed the bill as to one of its objects was or was not final. The defendants (who were the appellants) could not complain of that part of the decree which made in their favour; as has been frequently settled in this Court. The other part, therefore, which was against them, could alone be drawn in question upon their appeal; and that part was clearly interlocutory. If the plaintiffs had appealed from the decree dismissing the bill as to the land, they might have raised the question whether this branch of the decree was or was not final: and if, on their appeal, it had been adjudged interlocutory, there might have been some colour for the argument on the other side. Mr. Call, aware of this obvious answer to the argument drawn from that case, has asked, "if the Court considered any part of that decree final, why did they not affirm that part?" Because there was no party before them authorized to ask it. The appellants had no right to ask an affirmance; nor had the appellees, who represented the personal estates of Grymes and Thornton, any interest in, or right to, the real estates. The question then was not raised. By the mere appeal of the defendants, they were not called on to consider any part of the decree in their favour. Why then should the Court have affirme d it The 49th section of the Chancery law,(b) furnishes no argument to shew that this was not a final decree. The object of that section is only," for the more entire and better preservation of the records of the Court," to impose a 1810. Templeman 92. V. certain duty on the Clerk when a cause is finally determined OCTOBER, in all its parts. But it does not declare what is a final DECREE; for no such phrase occurs in the section. Indeed the "final determination,” there intended, is always understood as not taking place till after the decision of this Court upon the appeal from the final decree; for not until then does the Clerk of the Court of Chancery record the papers. The Clerk's recording the papers gives no new authority to the decree: the pleadings thus made out are never signed by the Judge. The decree is perfect before; this book being merely for safe keeping. Nor is the enrolment, in England, an act which at all changes the nature of the decree, as to its being final or interlocutory: for, if it did, as the bill of review lies only after the final decree, the time which runs against it would run from the enrolment; whereas it is counted from the time of pronouncing the decree. (a) In (a). Coop. Eg. deed enrolment "is now much disused."(b) So that the (b) Ibid. 73. final nature of the decree, in England, is decided by its terms, its intrinsic character, and not any formality used in relation to it. And in this country the rule is the same: or if any act, equivalent to the enrolment in England, were requisite to complete the final character of a decree, it is found in this, that the record of each day's proceedings is regularly drawn up by the Clerk and signed by the Judge. In Metcalf's case(c) there was a judgment quod computet; (c) 11 Co. s§. which clearly was not final; and no writ of error lay till after judgment on the account; as was evident from the very form of the writ:(d) but that case has no resemblance to this. (d) Ibid. 38.b. Ormston v. Hamilton(e) is a short note in the index, in these (e) 8 Bro. words: "Decree, in Scotland, taken for part of a demand, 364. with reservation of the other part not determined. Decreed there that it was lis finita; but reversed." The case itself is not reported in the book: but this little shews clearly that it has nothing to do with this argument. It was determined in Scotland, not that such a decree was final pro tanto; but that it finished the whole controversy; and the lords very rightly determined that it did not. So that the position re Parl. Cas 1810. V. OCTOBER, mains untouched, that this decree, deciding against the right of the plaintiffs to the personal property, and dismissing the Templeman bill as to that subject, was so far final. If so, the controversy Steptoe. is at an end as to Templeman, the only defendant now before the Court, who, as executor of Elizabeth Steptoe, is interested in maintaining no other part of the decree of 1797: for he is protected by a final decree, unreversed, and unappealed from, and which, in fact, no proceeding has ever been instituted to affect. Mr. Wickham, willing to place this case on the most liberal ground for the plaintiffs, considered their last bill as a bill of review. They disclaim it, and call it a bill of revivor; and rightfully, I incline to think: and, if a bill of revivor, it cannot reach this part of the decree; but only those proceedings which were alive but abated by the deaths of the defendants. The plea and replication do not consider this as a bill of review. The parties join issue upon the point whether the decree of 1797 was final as to the personal estate; and the Chancellor on this issue overrules the plea; thereby deciding that it was not final but interlocutory. This we say is an error; and, if so, the case is with us. (a) 3 P. Wms. 287. 268. 2. But if the bill against Templeman is to be considered as a bill of review, it is too late, according to the authorities heretofore cited; to which add Cook v. Arnham. (a) But it is said that we ought to have pleaded the limitation; (6) 2 H&M. and the authority of Hite's Heirs v. Wilson and Dunlap(b) is relied upon. But that case goes no farther than to settle the doctrine that every thing, out of the record, that is, every defence which is matter in pais, must be pleaded. But here the objection did appear by the record: the intervening time was shewn on the face of the last bill and its exhibits. Coop. Eq. p. 304. is admitted to say expressly that this matter must be pleaded; and this on the authority of 2 Vezey, 109. The same author had before asserted this doctrine, (p. 216.) on the same authority; expressly laying it down that it will not do by demurrer. Yet in the (c) Sherring- note he refers to 1 Bro. Parl. Cas. 95.(c) as contra. fon v. Smith. 1810. V. The case of Edwards v. Carrol, in 1760,(a) a still OCTOBEr, stronger and later case, and on higher authority than that of Vezey, settles the principle that the Court will notice it Templeman ex officio: for there was a general demurrer: and this upon Steptoe. very good reason; for the party who files a bill of review must take it out of all exceptions appearing by the record. Parl. Cas. The defendant needs no plea to introduce his objections: the record operates as a plea. (a) 5 Bro. 466. It is said too that the infancy of some of the plaintiffs shall save the rest; because the decree of dismission, being joint, if void as to any, is void as to all; and Styles, p. 400. is quoted. But it is not proper to deduce conclusions from the common law forms of entry, as governing cases in equity. The case in Styles, is one of a joint judgment at common law: and cases are reported which shake this rule as applicable to all cases of joint judgments in which an infant is a party.(b) But the decree now in ques- (b) 1 Salk. tion is not joint but several in every thing. Was it not Bowles; and competent for the adults to proceed to review it, whether Curthew, 122. the infants would join, or not, as plaintiffs? There is nothing, therefore, in the infancy of some of the parties to take the adults out of the operation of time: and as to them, at least, the decree of 1797 cannot be set aside. 3. The plaintiffs have not made a case which justifies the decree of November, 1805. Under the act of 1785, the whole estate in this case. mother would have taken the Be it, then, that the mother is excluded from the inheritance. Who takes next? Do the paternal uncles and aunts? Certainly not under the act of 1785: because, by that act, where there were neither children, father, mother, brothers or sisters, or their descendants, the paternal uncles and aunts did not come in; but the estate was divided into two moieties, one of which was to go to the paternal, the other to the maternal line. If, then, the act of 1785 205. Cone v. S. C. OCTOBER, Would not give the whole estate to these plaintiffs, does the 1810 V. Templeman 5th section itself, of the act of 1792, give it to them? No: It is clear that Mr. Call thought that, on his removing the mother, these plaintiffs would stand next under the general law. In pursuit of this idea, he advanced the position that, if the person who stands next to the propositus have no heritable blood, the estate passes on to the next, as if such intermediate person had no existence. This is not believed to be true: certainly not universally: for, at common law, where the blood of the eldest son was attainted, the next, though free from attainder, could not take. in the case of the eldest being an alien, the next son a citizen; it is a moot point whether the latter could take: our law of descents considered it so, and therefore provided for it. (a) So the statute of 1 Jac. I. c. 4. s. 6. having pretermitted popish recusants, but not prescribing who should take the inheritance, another statute was necessa(b) 2 Tuck ry.(b) (a) 1 Rev. Code, p 169. c. 93. s. 18. Bĺ. App. p.33. note. (c) 2 Call, 390. So, But, admitting the principle correct, and that the mother is to be considered dead, the 5th section merely excludes from the inheritance the mother, and "any issue which she may have by any person other than the father of such infant;" but leaves the ascending and collateral relations of the mother where they stood under the act of 1785. What decree then is right? and where shall the rule be found? Brown v. Turberville(a) was on a different case; the only question there being, whether the words interpolated in the 7th section covered the case of an adult: and, except an obiter dictum of Judge PENDLETON, there is nothing in that case touching this. Upon the whole, then, the plaintiffs have not made a case to justify the decree; which, therefore, should be reversed. |