delivered the opinion of the court,
We discover no error in the rulings of the learned court on the trial below, and the judgment must therefore be affirmed.
It was an action of ejectment founded on the legal title of the plaintiff below, to which the defence set up was an equity growing-out of a parol exchange of land, followed by an exchange of possession and valuable improvements, which were held sufficient to take the case out of the operation of the Statute of Frauds and Perjuries. The jury found a conditional verdict, establishing the defendant’s equity and fixing a certain day on or before which the parties respectively were to file a deed, and the defendant to pay the costs.
This then, was in effect, a bill in equity by the defendant to restrain the plaintiff from proceeding at law, and a decree thereon in the defendant’s favor. The defendant not having complied with the conditions named, the plaintiff issued a habere facias posssessionem.
The defendant took a rule to set aside this writ, under which depositions were taken, which have been returned with this record. The court below discharged the rule.
The question which is presented is, whether upon a writ of error this court have the right to review the determination of the court upon the motion to set aside the execution. This has been settled by an uniform current of decisions in this court adversely to the plaintiff in error. Even before the Acts of Assembly conferring separate equity jurisdiction upon the courts, the determinations of the lower courts upon motion for summary relief on purely equi*502table grounds were considered as matters of discretion not subject to review. As in Shortz v. Quigley, 1 Binn. 222, where there was a motion to open a judgment on bond and warrant of attorney, given for the purchase-money of land, on the ground of a defect of title, and the court below rejected the defendant’s testimony and refused his motion, it was held that no bill of exceptions lay, though one had been tendered and sealed. So in Righter v. Rittenhouse, 3 Rawle 273, when the regularity of an execution depends upon matter of fact de hors the record, it was said by Mr. Justice Kennedy, “ whether the court below decided the law correctly or not in relation to this matter, must depend upon how they found the facts involved in it; and how is it possible for this court to review the decision of the court below as to the facts ? It appears to me that it cannot be done, because that court is deemed in law to be as competent to ascertain and decide upon the facts in such a case as thisIn Moyer v. The Germantown Railroad Co., 3 W. & S. 91, which was an action of covenant (though erroneously stated in the report to have been an action an the case), there was a conditional verdict, requiring the defendants to do certain things before a day named, the court below had set aside the execution as it appeared by their order, on the ground that the defendants had, before the day named, in good faith made an effort to comply with the verdict, and had, with the knowledge of the plaintiff, actually done what they in good faith believed to be a substantial compliance therewith. “ Who,” says Mr. Justice Sergeant, “ is to judge whether the defendants have complied with the terms imposed by the verdict and to mould the judgment accordingly ? The court only can do this, in the exercise of a power over the process on summary application on motion, in which they are for the most part obliged to decide on affidavits and depositions, whether the terms have been fulfilled or not; and these constitute no part of the record on which a writ of error lies to this court, nor do the reasons given by the court below. As this court cannot look into the depositions taken, or the reasons of the court, in order to ascertain whether the court below did right or not in rendering judgment, it is impossible for us to settle that dispute ; and like the granting of a new trial, it is a matter which must rest in the sound discretion of the court below.”
Nor is the defendant in the position of the plaintiff in error, without a form of remedy, which will enable him regularly to obtain the decision of the court of the last resort. If his defence to the execution be legal, such as payment, release, or as we have lately held, bankruptcy, his proper remedy is by audita querela: Witherow v. Keller, 11 S. & R. 271; Keen v. Vaughan’s Executrix, 12 Wright 477. To the judgment upon this writ, error lies. But if the ground of his defence be purely equitable, and such as would entitle him to an injunction in a Court of Chancery, then upon *503bill filed, and proceedings thereon, he will be entitled to an appeal to the Supreme Court. Thus, in Springer’s Adm. v. Springer, 7 Wright 518, where the court below had made a decree of subrogation, it was held that it cou-ld not be reviewed by a writ of error. “A writ of error,” says Mr. Justice Lowrie, “cannot, without a change of its nature, become an adequate form of review of equitable remedies, because it brings up only what is properly record, in order to assign error in that, and never brings up the evidence, except by bill of exceptions, which is a form not practised in equity. It is by appeal that equity remedies are reviewed in a higher court, an do that brings up the whole case, and. not merely the record of it.”
It is very clear, then, that upon a writ of error we cannot review the order of the court below upon the motion to set aside the execution. The habere facias possessionem was regular upon its face. The time limited in the verdict had expired, and the record showed no compliance by the defendant with its terms. .We give no opinion upon the merits of the case. It is settled beyond a question, that in such a conditional verdict, time is of the essence of the decree : Gable v. Hain, 1 Penna. Rep. 264 ; Treaster v. Fleisher, 7 W. & S. 137 ; Creigh v. Shatto, 9 Id. 84; Hewitt v. Huling, 1 Jones 35; Chew v. Phillippi, 8 Casey 205. But admitting this proposition to the fullest extent, it by no means follows that a court of equity cannot relieve in a plain case of accident or mistake.
Every one of the cases cited above go upon the mere fact that the time had expired through the supineness or neglect of the party, or at most his inability to comply. No one of them has gone the length of holding, that if the delay has been occasioned by unavoidable accident or misfortune, the party shall not be relieved, even though time is of the'essence of the contract or decree: Adams on Equity 89. That the time named is not so absolute, that it cannot be varied by the power of the court, is shown by Creigh v. Shatto, supra, where it was said that in case a writ of error is sued out, and the time expires before it is disposed of by the Supreme Court, this court, in affirming the judgment, will give further time for compliance with the conditions of the verdict. Nor does the Act of 21st April 1846, Pamph. L. 424, stand in the way, for that act was held in Chew v. Phillippi, supra, to be only declaratory of the existing law upon the subject. We pronounce no opinion upon the question,- whether the plaintiff in error by his depositions laid any sufficient ground for equitable relief.
Judgment affirmed.