
    Burdine vs. Shelton, Admr.
    
    Nashville,
    December, 1836.
    *he facts which are considered by the court as proved o?i the hearing, must be stated in the decree.
    Where a decree is rendered which does not recite or allege the facts upon which it founded, or which the court considered as proved, it is error apparent on the face of the decree, for which a bill of review will 1-ie.
    Statutes of limitation do not expressly apply to courts of chancery, but are by them enforced by analogy in all cases where -the matter in controversy would have been tarred in a court of law, could it have been prosecuted there,
    Where an action of debt is brought to recover money paid by mistake, it will not be barred until the expiration of six years, from the time it was so paid; so if a bill is filed in chancery to recover money paid by mistake, the limitation of six, and not ofthree years forms a bar to the suit.
    On the 9th day of April 1830, the complainant, Samuel Burdoine, filed an original bill in the chancery court at Carthage, against Archibald Frith now deceased, which charges that there had been a partnership transaction between the parties entered'into in 1825, for the purpose of building a boat and shipping tobacco to New Orleans; that a conditional settlement thereof had been made, but that errors had intervened therein, which the defendant at the time of the settlement and repeatedly thereafter promised should he rectified when ascertained; that with this understanding the complainant, though dissatisfied with the settlement, executed his notes for the amount supposed to be due by him to the defendant; that from this time forward he made repeated attempts to get the defendant to correct thé errors, but always met with some excuse or other, alleging a plausible pretext for not doing so, till sometime in the year 1829, he was induced to pay the defendant the amount of the notes given him on said settlement, but still with the express understanding that this should form no obstacle to a correction of the errors and mistakes which had intervened, hut that it should be made whenever it might be ascertained that they existed, and that the errors and mistakes amounted to several hundred dollars. All the material charges are denied by the answer of the defendant Frith, and he further more insisted therein on lapse of time and the statute of limitations as a bar to complainants right to relief, if it ever existed.
    
      The defendant Frith having died, the cause was revived against defendant Shelton his administrator, and it came on to be heard at the July term 1831, of said chancery court, when a decree was entered in the following words:
    “Be it remembered that this cause came on to be heard before the Chancellor upon the pleadings and proof and argument of the counsel on both sides, and the matters being considered and fully understood by the court, the court thinks proper to order and decree that complainants bill be dismissed and that complainant pay the cost of this court, and that execution issue, &c.”
    On the 20th of June, 1833, the complainant filed this bill to review this decree, in which is set out the substance of the original bill, the pleadings, exhibits and proofs, to which bill of review defendant demurred. The demurrer was on argument overruled, the case reviewed, and a decree given for the complainants, from which the defendant appealed to this court.
    
      J. 8. Ycrger and Wm. Hart, for complainant.
    1st. The .decree in this case is so general that it furnishes a good ground for sustaining a bill of review. The only difference in this State, and in England upon the form of decrees is, that here the substance of the allegations in the bill and answer need not be set forth, yet the facts found upon the issue proved and the conclusions of law made thereon by the court, are as necessary here as in England. In England when the decree does not set forth the facts upon which it is predicated it will be reviewed for that alone, as otherwise the party will be deprived of the benefit of a bill of review. I Vernon Ch. Rep. 214, 216: Broad vs. Broad, 2 Ch. Ca. 161: 2 Mad. Ch. 453. 1 Harrison Ch. P. 108.
    The 13th rule of practice in the chancery courts in this State requires the facts to be stated in the decree.
    The account should have been decreed in the first instance. The proof shows the transaction to have been one between partners, the settlement was partial and conditional, with continued promises to correct errors made by defendant, down to within a very short time of filing the bill. A great error it seems crept into the settlement, which it is the province of this J- ’ L court to correct.
    2nd. Lapse of time is no bar to complainants equity when produced by the defendant himself, whether by an express request or by delusive and fraudulent promises. He will not be allowed to set up his own acts as a bar to complainants relief and a shield to himself. Story’s Eq. 502, 503, 5041
    The statute of limitations does not run in cases between partners until a complete and full settlement has been made, and a balance struck and agreed to by the parties. Gow. on Part. 88 top, 87 top.
    The statute of limitation does not bar complainant’s equity, because the account was still open and not stated and the balance struck. Gow.s on Part. 166 top.
    The settlement was only, conditional not final, consequently the subject of account and settlement. 11 Wheat 309: 1 Peters 368: 2 Cond. Rep. 460: Gow. on P. 116 top: 2 Ball and Beaty, 433.
    The only time when the complainant had a right to sue at law was after he paid the money, which was less than three years before filing his bill. He was not compelled to go to equity so' long as defendant did not sue on the notes. 2 Nott and McCord, 443: 3 Dev. R. 253: Marshall vs. Hudson, 9 Yer. Rep.: Bank vs. Campbell, 8 Yer. Rep.: Theo. on P. and S. 227, 228: 1 Law Lib. 134, 135.
    3rd. If complainant could have sued after the first settlement at law, he could have brought an action of debt, which would not be barred under six years, consequently the analogy by which the bar would be made in equity must be six years, which length of time has not elapsed from the original settlement. McLemorevs. Bradford, 3 Yer. Rep.: Hickman vs. Searcy’s Ex. 9 Yer. Rep.
    
      R. J. Meigs, for defendant.
    There are only two grounds upon which this bill can be even plausibly supported. 1st. That Frith fraudulently procrastinated the correction of errors he knew to have intervened in the settlement of June 1826, and therefore the statute of limitations never began to operate until Burdom disavowed the fraud; that is, that Frith was aware anc* Jret rea% did not intend' to correct the error. Suppo-Frith actually to have known- that there was an error in the settlement (of which however there is no evidence and v without which knowledge there could be no fraud In the case,) and to have purposely delayed an examination of the account, yet is there any authority which decides that this species of fraud would prevent the statute from running? The fraud that has that effect, is such concealment or misrepresentation on the part of the defendant, as prevents the plaintiff from discovering his right; and thus being kept ignorant of his right, he is supposed incable of laches in prosecuting it. Angel on Limitations, 190 and 348. But Frith did nothing to keep Burdoin ignorant of his right, on the contrary Burdoin said he always knew there was error.
    The second ground is, that Frith having admitted there was an error in the settlement, promised to correct it and pay what might be found due Burdoin; but the evidence does not show that he admitted the existence of an error. He said if there was an error he would correct it and pay it; but this is not sufficient to revive the debt, because there is really no admission that any debt exists. Bell vs. Morrison, 1 Peters S. C. R. 357: Angel on Lim.[226, et seq, Belote’s Exr. vs. Wynn in this court, 7 Yer. R. 534: Steel and Streeter vs. Matthews 9 Yer. R. and Nichols vs. Crowder, 9 Yer. Rep.
    The decree pronounced upon this bill of review seems to be founded upon a farther examination of matters of fact, though the bill itself is not founded on new matter, but upon error apparent in the decree itself. This proceeding is a violation of Lord Bacon’s first ordinance, which says that ccno bill of review shall be admitted except it contain either error in law appearing in the body of the decree, without further examination of matters of fact, or some new matter,” &c. 4 Bacon’s works, 509, ord. 1,2,13. Lord Hardwick says these rules have never been departed from since the making of them. 3 Aik. 35. It may be said that as no reasons are assigned for the first decree, no errors can appear m the body of it, and hence a further examination' of matters of. fact in the case was necessary in order to demonstrate the error. To this we answer that it was notour fault that the chancellor did not state the grounds of his decree. It is manifest how- ° f . ever, that if the facts can he re-examined on a bill of review, J t 1 the process may be carried ad infinitum. 1 Vernon, 1G6, ' 292.
    
   Turley J.

delivered the opinion of the court.

The first question presented for the consideration of the court is, as to the legal power of the chancellor to review the decree originally given in the case. It was argued that this was done in violation of Lord Bacon’s first ordinance, which says, that no bill of review shall be admitted except it contain either error in law appearing in the body of the decree without further examination of the matters of fact, or some new matter. 4 Bacon’s works, 509, ord. 1, 2, 13. The obligatory force of this rule is not denied by the counsel for the complainant, but it is said that it was framed with a view to the practice of the courts which required the facts oh which the decree was based to be embodied therein, and was only designed for preventing an allegation in a bill of review, controverting the existence of the facts stated in the decree to have been found by the chancellor, exceptupon newly discoveved testimony; and that inasmuch as in this case no facts’are stated in the decree, nor. other principles upon which it was made, it is insufficient and erroneous on its face and doés furnish good ground for sustaining- a bill of review. In 1st Harrison’s Ch. Pr. 108, it is said that in drawing a decree, it is not held to be sufficient to recite therein the bill and answer, and then add, upon reading the proof, and hearing what was alleged on either side, it was decreed so and so, but that the facts which were proved and allowed, viz: alleged by the court to be proved, must be particularly mentioned in the decree. In the case of Bonhan vs. Newcomb, Vernon’s Ch. Ca. 215, it was objected against a bill of review, that errors had been assigned, collected from the proofs in the cause that did not appear in the body of the decree. But the Lord Heeper observed, “that was occasioned by the ill way they had got of late in drawing np decrees in general, without particularly stating the matters of fact, and said, the plaintiff in the bill of review, should not be concluded by it, unless the of fact were particularly staled m the decree. In the 1 J case of Broad vs. Broad, 2 Ch. Ca. 161, it was contended that it was the course, and that an hundred decrees had been made so, that when it was said, “on reading the proof it is ordered,” it is intended that the matters put in issue are proved. But it was said e contra, that a decree ought to be grounded on facts cx facto jus oritur, or else by the clerks course the defendant might be barred of a review in all cases, for the plaintiff in a bill of review cannot allege matter of fact contrary to what is stated in the decree to be proved, and it may be many issues are joined in the bill and answer. If this course should hold, all must be admitted, and no man can truly know on what fact or case the decree was made, nor any appeal brought.

The Lord North declared accordingly, and was clearly of opinion that it is not enough to say “on reading the proof it is decreed,” but oa reading the proofs it appeared thus and thus, and it is therefore decreed,” &c. A strict examination of the rule as established by Lord Bácon will support this view of the case. It says: “No bill of review shall be admitted except it contain either error in matter of law, appearing in the body of the decree, without further examination of matters of fact, or some new matter, &c.” The words without farther examination “of matters of fact,” plainly admits that the matters of fact were to be examined into to a certain extent, to wit, as far as they are in the decree. Now if none are containedin it howcan they be examined, andhow can error be assigned therein. Furthermore the 1 Oth rule regulating the practice of courts of chancery in this State, expressly requires that the facts shall be stated in the decree. We are therefore of opinion, that the decree originally given in this case, is erroneous on its face for not containing the facts on which it is founded, and that the chancellor committed no error in reviewing it on the bill of review.

The second question for examination is, as to the propriety of the relief given to the complainant on the review of his cause. That there was manifest error in the original settlement of the partnership between the parties, is so fully established by the proof as not to be contradicted hy the counsel for the defend-r J . , „ 1 ant, tins snakes it unnecessary to 2:0 into an examination ol m, , , , t testimony. I hat a court oi chancery has power to relieve against mistakes of this kind, to open the settlement, and if the money has not boon paid to enjoin its collodion, or if it have, to decree that it be refunded, is too well settled to be now contradicted. But it is argued that the complainants right to recover in this caséis barred by lapse of time and the statute of limitations.

This settlement was made in 1826; the money was paid in 1829,and the billfiledin 1800. It would be a very strong case to say, that under these circumstances the time permitted to elapse would form a bar, if the mistake had been innocently made on the part of the defendant, and he had afterwards not done any thing by which complainant was induced to delay filing his bill; but in this case the conduct of the defendant relative to the mistake, is suspicious, and he certainly did always when spoken to about it, promise to rectify it at any time when it should be ascertained to exist. That this course of conduct did cause the complainant to be less vigilant in enforcing his right than he otherwise would háve been, cannot we think be denied. Statutes for the limitations of actions do not expressly apply to courts of chancery, but are by them enforced by analogy in all cases where the matter in controversy would have been barred in a court of law, could it have been there prosecuted. The object of this bill is to recover a sum of money alleged to have been paid by the complainant through a mistake to the defendant; analogous cases frequently arise at law. The action used for the purpose of enforcing them, may be either indebitatus assumpsit, or debt. The action of indebitatus assumpsit is barred in three years, but the action of debt not till six. Supposing then that the money charged to have been paid by mistake, be considered as having been paid at the time the settlement was made, and notes for tlio supposed balance executed, still six years did not elapse before this bill was filed, and as an action of debt would not at law have been barred, so neither will be this suit in equity. But if the money be considered only as having been paid in 1829, the time the notes were satisfied, not even the action of indebitatus assumpsit would be barred, so there . 1 7 no pretence whatever for saying that the statute of limitations *> <-> defeats complainants claim to the relief sought. What ought tj3a¡. jjep rp|le bas been referred to the clerk and master, who has made a report which has not been accepted toby the defendant. Why the. amount therein specified should not be decreed to the complainants, we know not, and accordingly direct that it shall be so done.

Decree affirmed.  