Page:The English Reports v1 1900.pdf/1103

and yet no bill was exhibited to assert that right for thirty years; nor was there any suggestion in that bill, that there was a new life named in the place of Alice Charles till 1747, and the fall of the second life since the decree could give no new equity; so that the present application must be considered as for a renewal in the room of Alice, who died in 1710, and was for the same matter as had been determined in 1723. That though Courts of Equity may relieve where a sufficient excuse is shewn, where the fall of the lives has not been known, in cases of concealment or suppression, or where the tenant has been in no particular default, or otherwise satisfactorily accounts for the fatality or neglect, yet they are not bound to relieve in every case; nor ought the respondent, who could never [494] have compelled a renewal, had the lands fallen after 1710, in the same proportion as they rose, to be bound to renew, after the tenant had, for near half a century, declared his option to the contrary. That it is the duty of every court, to support the decrees of their predecessors, unless fraud or error, suggested in due time, appears. The present bill did not impeach the former decree, either for fraud or error; it suggested no fatality or accident, nor sought to set it aside upon any ground; the appellant therefore could not be in any other condition than John Charles; and if this bill had been filed by him, it would have been of course referred with the former bill, to see whether they were not both for the same matter; and in consequence the latter bill must have stopped. The respondent had pleaded the judgment of the court upon the merits; the former decree being upon the merits after issue joined, and a regular examination had. The appellant was no purchaser, to entitle him to any favour in a Court of Equity, but only a voluntary devisee; nor could he be entitled to any relief, but to such decree as was pronounced in 1723, against John Charles, the original lessee under whom he claimed: and as John Charles could not have impeached that decree by an original bill, but must have sought his relief upon a rehearing, or bill of review, so the appellant, as being his devisee, could only be entitled to the same relief; and the present bill must be considered in the nature of a bill of revivor, if indeed the appellant could be allowed to bring one where nothing was decreed him; the renewal being denied, and the benefit of the account, if not barred by length of time, gone to the personal representative and to admit him to unravel the former decree by original bill, and, in consequence thereof, to enter into a second examination of the same matter, in order to supply the defects of former depositions, would be opening a door to perjury, and might produce a second decree upon the same case repugnant to the former, and tend to make the records of the court contradict one another. That the reason why judgments at law cannot be pleaded till inrolled, is, that being liens upon the land, they must be inrolled, that all persons may see what lands they affect; but decrees in equity greatly differ,—they do not bind lands, nor can purchasers be affected by them unless they are parties; and the only benefit accruing from an inrolment, is to prevent a rehearing. That the pronouncing, and not the inrolment, constitutes the decree, and the decree binds from the day of pronouncing; the judgment taken down by the proper officer is conclusive; and the Register's book, where the judicial acts of the court are entered, is the best evidence of the fact; the signing by the Chief Baron is only a certificate that the court gave such a judgment, and does not make it the judgment of the court: besides, it was not the duty of the defendant, but of the plaintiff, to inrol the decree, he being entitled to the benefit of the account; and after so long an acquiescence, by no means accounted for, objections of form only ought to have no weight. That the court allowed the plea in mercy to the appellant, as it was scarce denied to be good in substance; [495] and it was apprehended, that the respondent would at all events be entitled, upon the hearing, to read the entry of the minutes taken in the year 1723; and that the court would not then enter again into the merits of the case, but would consider them as having been finally determined at the hearing in 1723. That if there was any error in the order now appealed from, it rested in the declaration of the court, "That the allowance of the plea was to be without prejudice to such other methods of proceeding, as the plaintiff may be advised to take, to obtain the relief sought by his present bill;" a declaration unnecessary and ineffectual, as it did not give, any more than it took away, any remedy which the appellant might have had, if the plea had been allowed generally; for the appellant had it in his power to amend his bill, and thereby vary his case as he