Page:The English Reports v1 1900.pdf/839

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HARTWELL v. TOWNSEND [1768]
II BROWN.

his and his testator's laches from 1728 to 1751, upon any other principle than a consciousness of the irregularity of the former proceedings, and a desire to bury them in oblivion, or perhaps to raise that colour of acquiescence which he now threw upon the respondent, and resorted to as his best and only defence. That no inconveniencies were even pretended to arise from this supposed acquiescence; no new matter or evidence were to be introduced; no parties wanting but such as were always so. The will and proceedings must speak for themselves, and being inrolled were become matter of record, to which record only the appeal lay. But should the demurrer be allowed, the respondent was for ever precluded from availing himself of the errors apparent upon the record; whereas the over-ruling the demurrer determined nothing, and only gave the court an opportunity of inspecting the record, and doing equal justice to both parties; either by establishing or varying the several proceedings, as they should [107] see occasion; and the respondent would be liable to costs, if he failed in making out the errors which he had assigned.

But after hearing counsel on this appeal, it was ordered and adjudged, that the order therein complained of, of the 16th of July 1759, whereby the appellant's demurrer was over-ruled with costs, should be reversed; and that the order of the 30th of April 1755, whereby the said demurrer was allowed, should be affirmed: and it was further ordered, that the respondent should he at liberty to apply to the Court of Exchequer in Ireland, by motion, to rectify the mistake in deducting the sum of £218 2s. 0½d. received out of the personal estate, at the end of the account only, and the miscomputation of the total sum arising from thence; and to have that sum applied to sink the interest and the principal of the arrears of the annuity, from the time it was actually received; and accordingly, to rectify the computation of the total sum due, in such manner as should be just. (Jour. vol. 29. p. 657.)


Case 7.—Broderick Hartwell,—Appellant; Richard Townsend, and Others,—Respondents [28th January 1768].

[Mew's Dig. xi. 619, 628.]

[As bills of review occasion great delay and expence, they must be better grounded than upon mere irregularity in point of form, which is no sufficient reason for opening a record. There must be injustice apparent upon the face of the record, and that to a party to the suit; for neither an assignee or devisee can have relief by such a bill. Though the plaintiff in a bill of review is confined to errors upon the face of the record, and cannot go out to it; yet the defendant is at liberty to alledge every matter relevant to his defence, whether in or out of the record, by way of plea, as a release, etc. to prevent disturbing the decree, nor has he any other method of introducing it; and when pleaded, the court is to judge, whether the matter alledged is sufficient to preclude the plaintiff from the review he seeks.—All the parties to the original bill must be made parties to a bill of review; it being a principle of natural justice, that none is to be affected without being heard.]

Redmond Barry, the elder, being seised in fee of the manor and advowson of Rathcormuck, in the county of Corke, and of several denominations of lands, called the Eleven Plow Lands of Rathcormuck, parcel of the manor, and having issue by his first wife, one son, James Barry, and four daughters, Elizabeth, the wife of James Fitzgerald, Catherine, the wife of Allan Broderick, afterwards Lord Middleton, Ann, the wife of Samuel Hartwell, and Martha, wife of Taylor, who died without issue; and by his second wife, a son Redmond, and other issue; upon the marriage of his son James with Mary Anseline, in 1679, he settled the Rathcormuck estate, after his own death, upon James for life, remainder to the first and other sons of the marriage in tail male, reversion to himself in fee; and died in 1690, having,

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