HODGES v. MULLIKIN.—1 BLAND. 477

no injury; has no claim to the property mentioned in the deed of
trust; and submits to such decree as may be deemed just. To
these answers a general replication having been filed, a commis-
sion was issued, which having been returned without collecting
any proofs, the case was submitted on the notes of the solicitor
for the plaintiff, and on the notes of the solicitor for the defend-
ant Harwood. Upon which, on the 2d of May, 1825, a decree was
passed, that unless the defendant Harwood paid the mortgage
debt and costs on or before the 2d of June, then next, the prop-
erty should be sold. It does not appear, that the mortgage debt
has been paid, or that any sale has been made under the decree.

On the 25th of August last the defendant Mullikin filed his peti-
tion, on oath, in which he sets forth particularly the course he had
pursued, and how far he was uninformed; and concludes by aver-
ring, in general terms, that he acted throughout in ignorance of
his legal rights and duties; in ignorance of the facts; and was
misled and deceived by his co-defendant Harwood; by the gross
neglect of the specified creditors to notify him of their claims;
and by the omission of the plaintiff's solicitor, Nicholas Brewer,
to inform him of the answer of the defendant Harwood, and the
matters therein stated. Upon which the petitioner asked
* leave to file a bill of review, or to have granted to him 506
such other relief as the nature of the case might require.

It has been urged, that the petition, having been sworn to, is of
itself sufficient ground for granting leave to file a bill of review;
that it was entirely unnecessary to have taken any testimony in
support of the allegations of the petition; and therefore, that it
would be needless to decide upon the objections made to the com-
petency of the witnesses who have been examined.

I have met with no instance in the English books, in which it
appears, that any testimony had been taken and read at the hear-
ing of an application for leave to file a bill of review grounded on
an alleged discovery of new matter unknown before the decree.
It is clear that the party himself, as well as his solicitor, if the
solicitor be alive, and there is any reason, from the circumstances
of the case, to believe that he might have known of the alleged
new matter, must each of them make a particular, full, and dis-
tinct affidavit, that he did not, before the decree, know of that
which is stated as the newly discovered matter. 1 Harr. Pra.
Chan. 179. But, it is said to be necessary to state in such bill of
review, that leave was obtained to file it, and the fact of the dis-
covery; though it may be doubted, whether after leave given to
file the bill, that fact is traversable; or whether, if it should not
be admitted it must be proved at the hearing of the bill of review.
Mitf. Pled. 89. Hence it would seem, that the grounds upon which
the leave is granted should, at one stage or other, be allowed to
be traversed, and be required to be sustained by proof. If so,