506 HODGES v. MULLIKIN.

leave to file a bill of review, or to have granted to him 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 hearing
of an application nor 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 distinct affidavit,
that he did not, before the decree, know of that which is stated
as the newly discovered matter.(a) 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 discovery; 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.(o) 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,
then it is obviously best for all concerned, that every doubt, as to
the grounds upon which the leave rests, should be finally and
conclusively settled before the bill is filed; for otherwise there
would not be that security against the vexatious renewal of a suit
which ought to exist, as contemplated by the rule which has
been so long and so often approved; and besides, if it were
otherwise, on the hearing of such a bill of review, the question,
as to the propriety of the leave, would always be made -or
renewed as a preliminary point at that advanced stage of the
proceeding.

In England this matter may be attended with some difficulty;
as, I believe, the cheap and expeditious method of having testi-
mony taken before a justice of the peace, respecting any interlocu-
tory matter requiring an early decision, which has been so long and

(o) 1 Harr. Pra. Chan. 179.—(b) Mitf. Plea. 89.