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some time about the beginning of January 1757, the respondent presented a petition to the court, praying a rehearing of the cause on the said demurrer; and thereupon an order was made on the 25th of April 1757. for setting down the said cause to be reheard. And accordingly on the 9th, 10th, and 14th of May 1759, the cause came on to be reheard on the said demurrer, before the Chancellor, the Lord Chief Baron, and the rest of the Barons of the said court; and on the 16th of July following, the same was called on for judgment, when their honours were pleased to order, that the appellant's said demurrer should be over-ruled, with costs.

From this order the appellant appealed, insisting (C. Yorke, T. Sewell), that the several objections made by the bill of review, and assigned as reasons for reviewing and correcting the decrees and orders therein mentioned, were not, nor even if the bill had been more recently filed would have been, any ground for reversing or varying those decrees or orders; nor were such as in their own nature ought to be deemed errors. Some of them were merely matters of form, or slight irregularities of no consequence, which were waived by subsequent proceedings, and had received the sanction and confirmation of the court, as well as of the parties; whereby whatever might in strictness be deemed in any degree defective or irregular in point of form, was fully supplied. And the rest of the objections were such as it was wholly in the discretion of the [104] court to determine, as they had done; or such as in their own nature were not open or subject to a review, after the proceedings were inrolled.

But to be more particular: as to the first objection, the respondent was not, at any of the hearings, the testator's heir at law, though he afterwards became so. Ann Griffith his mother was then heir at law; she was before the court, and had by her answer admitted the will. But if it had not been so, it seemed strange that this objection should come from the respondent, whose claim to the real estate in question was solely under the will; and it was for his interest and benefit, that the same should be taken and considered as a will, duly executed and attested for the passing of lands. Besides, he now by his bill of review claimed to be entitled as tenant in tail under the will, and not as heir at law. But even independent of these considerations, a supposed want of evidence is not an error in a decree, nor can be a ground for a bill of review.

As to the second objection, Duncan Cuming, or his heir at law, had not any beneficial interest in the real estate: if the trustees had a legal estate vested in them under the will, which did not seem clear, it was not absolutely necessary that the heir at law of the surviving trustee should be a party; and especially as Duncan Cuming, the surviving trustee, was a party at the time of pronouncing the original decree of the 30th of June 1720. Such heir at law would have been a party for conformity only; and the want of such a party was never yet deemed error in a decree. If any act should now or hereafter be found necessary to be done by the heir at law of the surviving trustee, he would be warranted and justified in doing it, on the foundation of the decree and orders made in the cause; or he might be compelled to do it by a supplemental bill.

As to the third and fourth objections, it was apprehended, that by the original decree the Remembrancer was well warranted and justified in stating the accounts as he had done. And as legacies in their nature carry interest, he did properly in computing interest upon them, and among the rest, on the annuity of £50 and the yearly sum to answer the ground-rent and taxes of the house in Golden-lane; though there were no express directions in the original decree for computing such interest. But this matter was regularly brought before, and had received the determination of the court, upon an exception taken to the report, as to an article of interest; and by the subsequent decree or order of the 28th of June 1726, that exception was over-ruled, and the report confirmed. And in this respect, the latter of these two objections was an answer to the first; and the subsequent decree or order of the 13th of November 1728, was founded on the second report, to which no exceptions were taken. But as the allowing of interest in cases where it is not strictly due, is a matter within the discretion of the court, such allowance cannot in any case be deemed error.

[105] As to the fifth objection, it was not necessary, nor is it in general necessary to pray interest expressly by a bill. The court may decree interest without its being so prayed. It is sufficient if the demand in its nature carries interest; or that it is, according to the nature of the case, within the discretion of the court to give interest