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and codicil of Mary Barry, should be paid within three months after pronouncing that decree; or in default thereof, that the estates, or a sufficient part thereof, should be sold. But in this the decree was apparently erroneous, as by the will of Redmond Barry, which was produced before the Master, and stated in his report, the legacy of £5000 was directed to be raised and paid out of the yearly rents and profits of his real estate; and the directing the legacies to be raised and paid by a sale of such real estate, was wrongful and injurious to the appellant, and directly contrary to the real intention of the testator, and would probably have appeared so to the court, had the will been proved in the cause, and read at the hearing. That the decree of 1759, only directed an account to be taken of the rents and profits of such parts of the estate as the defendant Henrietta [119] Barry was in possession of, till a receiver was appointed; whereas a general account should have been directed against all parties, and particularly against the receiver, from the time he was in possession; for without such account, the Master could never ascertain the amount of the residuum of the estates of Redmond and Mary Barry, so as to distribute it among the persons entitled. That by the last decree, the plaintiffs in the original cause were to have their full costs, and also their disbursements, to be paid out of the estate, in that and the cross cause, to both which the appellant had been made a party by the respondents, in the manner before stated; but the loading his share with the plaintiff's costs in the cross cause, was certainly an injury to the appellant, where he was made a party merely for form, and was no way concerned in interest.

For these reasons the appellant apprehended himself warranted in bringing his bill of review. But to this bill the following objections were made. I. That the several defendants in the original cause ought to have been made parties to it; which not being done, there was manifestly a want of parties. II. That the appellant had no right to bring this bill, because he had parted with his interest under the decree. III. That the wills and codicil were admitted by the appellant's agent to be read without objection, on the several attendances before the Master.

But to these objections it was answered, I. That in bills of this nature, there was no necessity for making all the defendants parties, because they could not all be injured by a reversal of these decrees. The errors complained of might affect only some of them; and it sometimes happens, that the plaintiff or plaintiffs in the original suit, or a person interested who has inrolled the decree, though not originally a party, may be made a defendant or defendants to bills of review. II. That assignees, pendente lite, are never taken notice of by Courts of Equity; and that they cannot bring a bill of review, has been clearly determined; but had it been necessary for the assignee to have been a party, the respondents who were the plaintiffs could have made him so; for the cause proceeded after he had purchased, and after they had been fully informed of such purchase. The appellant had but an equitable right under the decree which had injuriously incumbered that right, and if he had a right, he must have a remedy; and the only remedy he had was the present bill. III. That if the matter of this objection was a fact, the agent who attended for the appellant did it by the direction of the respondents, as he never received any instructions from the appellant for that purpose. The respondents were the principal legatees under the wills of Redmond and Mary Barry, and though the appellant would be extremely sorry to accuse either them or their agent of acting partially, or of loading the estates (to a third of which only the appellant was entitled) with legacies given to themselves; yet their conduct plainly shewed, that the appellant's interest had not had proper attention paid to it, as his share was now loaded [120] with a very heavy charge, through the neglect or ignorance of the agent employed for him by the respondents.

On the other side it was argued (F. Norton, A. Forrester), that bills of review occasioning great delay and expence, 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. The plaintiff in a bill of review, is confined to errors apparent upon the record, and cannot go out of it; but 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