482 HODGES v. MULLIKIN.—1 BLAND.

of review may be grounded by the special license of the Court and
not otherwise." Beam. Ord. Chan. 2.

According to the English practice, no new testimony can be in-
troduced into the case after the publication of that which has
been taken has passed; and therefore, if the discovery of new
proof is made after publication, but before a decree, the case falls
within the meaning of the rule; because although it came to light
before the decree, yet it could not possibly have been used at the
time the decree passed. But in Maryland the mode of taking-
testimony is different: here the testimony not being taken in
secret, or during any period held closed up; the English order of
publication, with its incidents and consequences, have been vir-
tually abolished. 1785, eh. 72, s. 14. Here a party may at any
time, even after the case has been set down for hearing, if the
application be made on reasonable grounds supported by an affi-
davit, obtain a commission to take the testimony wanted. Howard
v. Howard, MS. February, 180G; Anderson v. McCabe, MS. 1807.
And therefore, if the new proof comes to light at any time so long
before the decree as to enable the party to apply for a commission,
and he neglects to make such an application, he will not be allowed
to have the benefit of the rule; because, by the exercise of due
diligence, he might have had his testimony brought in so as to be
used at the time of passing the decree.

It is expressly laid down, that forgetfulness or negligence of
parties, under no incapacity, or of their solicitors, is no founda-
tion for a bill of review; 1 Harr. Pro. Chan. 175; Franklin v.
Wilkinson, 3 Mnn. 112; Jones v. Pilcher, 6 Mun. 425: and there-
fore, an executor, whose duty it is to * look diligently after
512 the assets of his testator, and always to know the amount
within his reach, cannot plead want of assets after the debt de-
creed. Suffolk v. Harding, 3 Rep. Chan. 88. So leave to file a
bill of review was refused to be granted upon newly discovered
evidence, of which the party was sufficiently apprised, by the sug-
gestions in a letter and the proceedings in the case, to have
enabled him, with reasonable diligence, to have put it upon the
record originally. Because it was considered as most incumbent
on the Court to take care, that the same subject should not be put
in a course of repeated litigation; and, that with a view to the
termination of the suit, the necessity of using reasonably active
diligence in the first instance should be imposed upon the parties.
Young v. Keighly, 10 Ves. 348. It is not sufficient to show, that
injustice has been done; but that it has been done, under circum-
stances which authorize the Court to interfere; because if a matter
has already been investigated, according to the common and ordi-
nary judicial rules, a Court of equity cannot take upon itself to
enter into it again. Bateman v. Willoc, 1 Scho. & Lefr. 204; Wen-
ston v. Johnson, 2 Mun. 305. But, to show, that the party might,