HODGES v. MULLIKIN. 503

one an equal moiety of the sum of $4,641 21, with legal interest
on $1,501 20, part thereof, from this day until paid or brought in,
together with all the costs of this suit incurred by each of the said
complainants : and, that on the defendant's failing to pay or bring
into court the said sum of money with interest and costs as afore-
said, the property in the proceedings mentioned be sold for the
payment thereof; that Augustus E. Addison be and he is hereby
appointed the trustee, &c. &c.

In pursuance of this decree the land was sold, and the sale hav-
ing been finally ratified, on the 30th June 1829, the proceeds were
paid to the plaintiff Moreton, to whom they were shewn to belong
exclusively, in consequence of the other plaintiff Pattison having
received satisfaction to an equal amount.

HODGES v. MULLIKIN".

On an application for leave to file a bill of review on the ground of newly discovered
matter; whether it is in truth newly discovered or not, is a question, which must
be then traversed and finally determined, so as not to leave it open upon the
bill of review itself.

A co-defendant, as to whom a decree is not asked to be opened, or cannot be opened,
is a competent witness as to any fact upon which another defendant prays to have
the decree opened.

A trustee, whose liability cannot be altered by the opening of a decree, is, upon that
question, a competent witness for either party.

An attorney whose client is not a party, to object or consent to his examination, can-
not be permitted to speak of any facts which came to his knowledge as such.

If the new matter actually came to the knowledge of the party, or might have been
known to him, by reasonably active diligence, so long before the decree as to
have enabled him to have had the matter put upon the record at the hearing, no
bill of review will be allowed.

Although the party, applying for a re-hearing, may himself have no merits, yet if he
shews, that the interests of innocent third persons, or those for whom he is trustee
may be injuriously affected, the re-hearing will be granted.

The lien of the State commences with the institution of the suit, and therefore it
should be distinctly shewn.

This bill was filed on the 15th June 1822, by Benjamin Hodges
against Thomas Harwood of Ben. and Benjamin Mullikin; and it
alleges, that the defendant Harwood had, by a deed bearing date