HODGES v. MULLIKIN. 511

upon the admission of Mullikin, and the absence of any proof of
the then existence of the debts mentioned in the trust deed, direct-
ing the mortgage debt io be paid, and if not, that the property
should be sold for the satisfaction of that debt alone.

The law of the court in relation to-bills of review was laid down
in a set of ordinances or rules established by Lord Bacon as far
back as the beginning of the year 1618. The sound sense and
utility of those rules have been amply tested, and they have been
adhered to ever since. In regard to the matter now under consi-
deration, the rule is expressed in these words : " Upon new proof,
that is come to light after the decree made, and could not possibly
have been used at the time when the decree passed, a bill of review
may be grounded by the special license of the court jind not other*
wise."(g)

According to the English practice, no new testimony can be
introduced 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.(h) 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 affidavit, obtain a commission
to take the testimony wanted.(i) 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 foundation
for a bill of review ;(j) and therefore, an executor, whose duty it in t0

(g) Beam. Ord. Chan. 2.—(h) 1785, ch. 72, s. 14.—(i) Howard v. Howard, MS.
February 1S06; Andersen v. McCabe, MS. 1807.—(j) 1 Harr, Pra. Chan. ITS; Frank-
lin v. Wifldnson, 3 Mun. 112; Jones v. Pilcher, 6 Man. 425.