CALL in reply. In White vs Atkinson, there was not even an alteration in the decree of this court, but a mere extenfion of it, to an object, which did not appear to have been contemplated by this court. The cafe from 4 Vin. proves nothing, as it was, according to the statement there, a mere difmiffion of a petition to examine witneffes in the house of lords, and therefore is not like this. Befides, by recurring to Finch's reports, it will be found to have been merely a bill of difcovery, like the cafe in Vernon, and that the Chancellor decided nothing, as to his power to grant a bill of review. With respect to the inconveniences fpoken of on the other fide, it is true they may fometimes exist, but they will be partial; and therefore ought not to outweigh the general inconvenience, on the other fide of the Court of Chancery's perpetuating difputes, by granting rehearings of the fame caufe. It is a circumftance of fome weight too, that no direct British cafe, allowing fuch a bill, has been produced, or recollected by Mitford, whofe knowledge of the doctrines of a court of equity was fo extenfive.

Cur ad vult.

Lyons Judge delivered the resolution of the court as follows, The court not deciding at prefent, "whether the Court of Chancery may allow a bill "of review to reverse a decree of this court, or the "decree of the County Court, for new matter dif"covered after the decree was made, or is preclud"ed therefrom, is of opinion, that the new testi"mony in this caufe does not prove any material "fact, which was not known to the appellee be"fore the hearing of the original caufe in the

County Court, and that the new matter proved "by the teftimony aforefaid, is not fufficient ground "for the reverfal of the former decree of this court. "That therefore the decree of the High Court of "Chancery was to be reverfed, and the bill of re"view difmiffed.

Currie,

us.

Burns,

tho the writ is not taken out till the five years have e

be in time.

O

OVERSTREET,

against

MARSHALL & others.

VERSTREET obtained an order from a Judge of this court for a writ of superfedeas to a judgment of the District Court, within five years from the date of the judgment, which order he lodged with the clerk of this court; who delivered him a fuperfedeas bond to have executed; but he being unable to obtain fecurity before the end of five years from the date of the judgment; the clerk of this court doubted whether he could iffue the writ of fuperfedeas without further directions from the court.

WICKHAM & RANDOLPH for the plaintiff. One lapfed, it will queftion is whether the five years mentioned in the District Court law, page 88, rev. cod. applies to this court? But if it does, ftill the order for the fuperfedeas ought to be confidered as the commencement of the fuit here; and therefore the application fhould relate to that period and not to the date of the writ. According to which idea the application was made in time; and then the five years are no bar.

ROANE Judge, It has been decided that the five years applies to writs of fuperfedeas from this court, as well as from the District Courts.* But I think the order for the writ is the true period of the commencement; and it ought to be fo, For neceffity requires that time fhould be allowed for gsving the bond; and accordingly in practice it is actually taken for that purpofe. But if the order for the commencement was not to be confidered as the true commencement of the fuit, if the application fhould be made but a little before the five

Commonwealth vs. Gaskins.

Marthall.

years had expired, the plaintiff altho his applica. Overftreet, tion was feafonable might not be able to give his bond and obtain the writ before the expiration of the five years; and therefore would be barred altho he had actual y commenced his proceedings in time. I think therefore that the wit may iffue

now.

FLEMING Judge As the appellee has not been prevented from making his money during all this time, I think no inconvenience to him will follow from the iffuing of the writ at this date. This reflection removes a confiderable objection; and therefore I have the lefs difficulty in confidering the order as the true commencement of the proceedings here.

LYONS Judge. There ought to be fome reftriction in thele matters. A time for giving the bond ought to be fixed. But the opinion of the court is that the writ fhould be iffued.

Writ iffued.

GLASSFORD & HENDERSON,

againfi

HACKET Ex'r of Mickleburrough.

N the year 1797, Glasford and Henderfon ob.

In a three months replevy bond, the condition ought to Rate

or.

Aflembly dees

The act of

tained a judgment in the County Court against that the proHacket, as executor of Mickleburrough, upon a perty was rethree months replevy bond, dated the .th of it. d to the May 1774. The bond was made payable to Glaf-a ford and Henderfon, and the condition recites, that whereas the deputy heriff had levied in exe cution on the estate of Thilman for £97 31. in cluding debt, costs, and sheriff's commissions Now if the faid Thilman and Mickleburrough fhould pay to Glafsford and Henderion the faid £97 3 1

N.

not give a motion, on a three

montas repiey bond, a. ginft executois.

It is a gene ral rule that parol evidence

within three moths from the date, then the obligation to be void.

The District Court reverfed the judgment; and Glafsford and Henderson appealed to this Court.

LYONS Judge. After ftating the cafe delivered the refolution of the court to the following effect: ift, That the bond did not recite that the goods had been restored to the debtor, and therefore was not a ftatutary bond upon which a motion could be fuftained. 2d; That the act of Affembly did not give a motion against executors upon fuch bonds. Therefore quacunque via data, the judgment of the District Court was right, and ought to be affirmed.

JAM

Judgment affirmed.

GATE WOOD,

against

BURRU S.

AMES GATEWOOD brought ejectment against Burrus for fome Lands; and upon the is not admiffi. trial of the caufe the plaintiff filed a bill of excepble to explain tions, which states, that the plaintiff in fupport of the ambigui his title, introduced a deed, from the defendant ties of a deed. Burrus and one Thompfon as executors of John Burrus, for 230 acres of land in Caroline county, on the fouth fide of Polecat fwamp, "Bounded by "the lines of Philip Estes, the said James Gate"wood, William Tinsley, and the above said Pole"cat swamp, &c." That the defendant introduced parol teftimony to explain the faid deed; which was objected to by the plaintiff; but the court, being of opinion that the faid parol teftimony was proper to explain what was meant by the et cætera, fuffered it to go to the jury. Verdict and judgment

NN

for the defendant; and Gatewood appealed to this Court.

CALL for the appellant. There is a known diftinction between patent and latent ambiguities. For the firft may be explained by parol evidence, but not the latter. A patent ambiguity, is where the uncertainty and ambiguity appears upon the face of the deed: In which cafe it is the bufiness of the court to expound the meaning of the words ufed; and therefore parol evidence cannot be reforted to for that purpofe. But a latent ambiguity is where the deed is fenfible and intelligible of itfelf, but there is fomething not appearing in the deed which renders it ambiguous, as where there is a devise to the teftators fon John, who has two fons of that name; in which cafe the will is perfect upon the face of it, and either of the ions fuing for the legacy would recover, until it was fhewn that there were two of that name: which circumftance would raite the ambiguity, to be explained by parol evidence. 8 Co. 155. a. Hence it follows that parol teftimony can never be receiv ed to explain the intention; becaufe that is to be collected from the words: And of the meaning of thefe, it is the province of the court to judge. So that parol evidence is never allowed to explain an ambiguous expreffion; for if it is capable of interpretation, the Judge fhould do it from the words; and if it be not intelligible, but is altogether uncertain, the difpofition is, fo far, void. In the prefent cafe, the ambiguity is patent; for it is in the expreflion: which, if uncertain, is void, and not the fubject of explanation, according to 8 Co. ubi supra. In fhort, it may be confidered as the general common law principle, that parol evidence is not to be received in explanation of the words of a deed, which are to be conftrued by the expreffion itself, and not by evidence. 3 Wils. 275. 2 Black. 1250. To which may be added, that a departure from this rule would deftroy the ftatute of frauds altogether; and would introduce all the