
    *Shepherd v. Larue and Neply v. Kinchalœ.
    Decided, March 15th, 1820.
    i.Bill of Review — Statute of Limitations. — A Bill of review to a decree pronounced before the 11th ot Feb. 1814 (see Acts of 1813, c. 12, § 3,) could not be received after live years had elapsed from the date of such decree.
    2. Same--Same-Necessity to Plead — It is not necessary to plead the Act of Limitations against a Bill of Review: for it ought to appear, in the Bill itself, that it is exhibited within the time tire-scribed by law: or that the complainant is protected by some of the sayings in the act; otherwise it ought not to be received.
    3. Same-Same. — In such case, if the factalledged to prevent the operation of the Act, be not true, it may be denied by the answer of the other party: and. on the proofs, (if in his favour,) the bill oi review should be reí ected.
    In these two cases, (which were argued together,) bills of review were filed by the appellants against the appellees, in the Superior Court of Chancery for the Staun-ton District, praying the reversal of decrees of that Court, dated in April 1807 and July 1809, for errors in law appearing (as the appellants insisted) on the record. The Bill of Review, in each case, was filed without obtaining the leave of the Court, and demurred to for that cause.
    Chancellor Brown dismissed the Bills, with costs.
    In argument, by Eeigh for the appellants, and Stanard and Wickham for the appel-lees, several points were made and discussed, on both sides, which need not here be mentioned; the only questions determined by this Court being, 1st, whether the bills of review were offered in due time; and 2dly, whether the length of time between the date of each decree and exhibition of the bill to review it, could be relied upon, not having been pleaded.
    Leigh contended that the objection founded on the lapse of time, was not admissible, without a plea. To prove this, he cited Prince v. Heylin, 1 Atk. 494, as a case in which the doctrine is plainly laid down in the Chancellor’s opinion, Iho’ the decision of the point was not necessary in that case. Upon the reason of the thing, the Act of Limitations, whenever relied upon as a defence, ought to be pleaded.
    Stanard contra.
    The Bills of Review were barred by length of time,  Mr. Leigh has confounded the rule applying to pleading the act of limitations as a bar to original remedies, with the rule founded on the presumption of abandonment of right from lapse of time. Twenty years are a bar to a bill to redeem, exhibited by a mortgagor *out of possession; but this bar is never pleaded. There is no case of such a plea. So, also, as to bills of review, there is no example in the books of practice of a plea of lapse of time in bar to the receiving of such bill. We were obliged, by the forms of proceeding, to plead, as we did, the decree in bar; and this gave us every advantage we could obtain by pleading the act of Limitations.
    Wickham on the same side. The limitation of time is a conclusive bar to the bills of review, which in these cases were filed more than five years after the decrees were pronounced. As to the Writs of Error, the point of time affects the jurisdiction of the appellate Court, as much as does the sum in controversy,  The plaintiff who wishes to get the Writ of Error, or Bill of Review, is bound to shew that the Court has jurisdiction. Where the act of Limitations appears, on the face of the record, to be a bar, there is no necessity to plead it. There is no authority deciding a plea to be requisite in such case. Was it ever heard of that the act was pleaded to a Writ of Error.
    Leigh in reply. — The doctrine is laid down in 2 Bac. Abr. (Gw’s. Edit.) p. 499, that the Act of Limitations must be pleaded to a Writ of error. The reason assigned is, that the other party may, by replication, bring his case within some of the exceptions stated in the Act.
    The limitation on Bills of Review, in England, is only by analogy to that on Writs of Error. The same rule must therefore prevail in both cases as to the necessity of pleading the act.
    Stanard. In Smith v. Clay, Ambl. 645, there was no pleading in the cause; yet the Court rejected the Bill of Review, on the ground of length of time. The rule is, that the plaintiff in review must shew himself entitled to file the Bill, 
    
    
      
       See monographic note on “Bills of Review'’ appended to Campbell v. Campbell, 22 GratL 649. The principal case is cited in City of James River & K. Co. v. Littlejohn, 18 GratL 53; Amiss v. McGinnis, 12 W. Va. 396.
    
    
      
       Coop. Esq. 92; Smith v. Clay, Ambl. 645.
    
    
      
       See R. Code of 1819,1st Vol. p. 492.
    
    
      
       4Bro. cb. cases, 441; IBro. Pari, cases 95; 5 idem 460; 6 idem 395.
    
   JUDGE ROANE

delivered the following opinion of this Court.

The limitation of bills of review in England was not fixed by any Statute; but was established by analogy to that of Writs of error, which was twenty years. When *the limitation of Writs of Error and Supersedeas was reduced by our Act, to five years, (which was prior to the decree in question,) a correspondent variation was made as to the time, on the principle aforesaid, by which the limitations in bills of review was reduced to five years, and the savings in the said Act were also adopted. Thus the matter stood, at the date of the original decree, and until the year 1813, when the legislature reduced the time to three years by a positive provision. This provision only applies, however, to decrees posterior thereto, on the principle on which this Court went in the case of Day v. Picket, 4 Munf. 104: and the term of five years therefore applies to the case before us.

Five years being the limitation of bills of review in this case, it ought either to appear from the bill, that that term had not expired, or that the plaintiffs were protected by some of the savings of the Statute: and if, in such case, this fact should be untruly stated, the answer of the other party might deny it; and, on the proofs, (if in his favour,) the bill of review would be rejected.

In the cases before us, however, it does not appear when the bills of review were filed: — the time in this particular is left blank. It is necessary that this defect be amended by certiorari or otherwise. If, on such amendment, it appears, that the term had expired, then the decree is right, but perhaps for a different reason : — if, on the contrary, it shall appear that the term had not expired, it would be then for us to consider the cases on their merits.

It is submitted to the bar, what course to take for supplying this defect.

Judge Brown (the Chancellor who pronounced the decree) happening to be present, informed the Court, (being requested by the Counsel on both sides.) that the bills of review were in facts exhibited after the five years had elapsed. The Court therefore, accepting this information as supplying the defect in the record, affirmed the Decrees.  