PLEADINGS, PRACTICE AND PROCESS AT LAW 2827

An. Code. 1924, sec. 65. 1912, sec. 61. 1904, sec. 61. 1888, sec. 59. 1787, ch. 9, secs. 2, 3.

1886, ch. 311.

65. The court may examine on oath a party making the affidavit under
the preceding section in regard to the materiality of the testimony, the
probability of procuring the attendance of the witness in a reasonable time,
and on what information or knowledge he believes the witness will prove
what he alleges; and if, on such examination, the court is satisfied of the
truth of the affidavit and that the testimony is material and competent, a
continuance shall be granted, unless the adverse party will admit the
facts which it is so alleged the absent witness will prove to be in evidence
to the same effect as if said absent witness had testified thereto, saving,
however, to the adverse party the same right to impeach or contradict
said testimony as if said witness had been present.

The affidavit should state all material facts which absent witness would prove, those
unfavorable as well as those favorable, to affiant's case. Power of court under this
section. Continuance properly refused. Dean v. Turner, 31 Md. 57. And see McMechen
v. McLaughlin, 4 H. & McH. 167.

Where adverse party goes to trial upon an admission of what a witness would prove,
he is concluded as to the matter of affidavit or statement, and cannot dispute its truth
at trial. This section does not, however, dispense with the rule that allegata and probata
must correspond. Bryan v. Coursey, 3 Md. 66.

See notes to sec. 63.

An. Code, 1924, sec. 66. 1912, sec. 62. 1904, sec. 62. 1888, sec. 60. 1787, ch. 9, secs. 5, 6.

66. Where a new trial is granted, or a commission shall issue for the
taking of testimony, or where a judgment shall be set aside for fraud or
irregularity, the court may continue the cause so long, as they shall deem
necessary for a trial of the same on its merits.

The power to set aside judgments for fraud, surprise, etc., is a common law power.

This section assumes that such power resides in courts. Craig v. Wroth, 47 Md. 283.
And see Johnson v. Lemmon, 37 Md. 345; Taylor v. Sindall, 34 Md. 40; Kemp v. Cook.
18 Md. 137.

In acting upon an application for relief for reasons mentioned in this section, the
court exercises a quasi equitable power according to facts and circumstances of case.
Waters v. Engle, 53 Md. 182; Montgomery v. Murphy, 19 Md. 580.

This section referred to in deciding that during term at which a judgment is ren-
dered, it is under control of court, and may be stricken out for fraud or irregularity.
Kingy. Hicks, 32 Md. 463.

This section shows the power of the court to strike out an interlocutory decree or
judgment, on the ground of surprise. Hall v. Sewell, 9 Gill, 155.

Where a judgment is entered on Sunday, procedure should be taken under this sec-
tion to strike it out for such irregularity. Ecker v. First National Bank, 62 Md. 523;
Bridendolph v. Zeller, 5 Md. 63. And see Bridendolph v. Zeller, 3 Md. 334.

This section does not apply where reason for opening a case is that verdict was against
evidence or that defendant was not present at inquisition. Green v. Hamilton, 16
Md. 330.

Where a judgment is stricken put, court must order regular continuances under
this section, and appeal lies for failure so to do. Munnikhuysen v. Dorsett, 2 H. &
G. 379. And see State v. Cox, 2 H. & G. 382.

Where party has the right to proceed under act of 1787, ch. 9, and does so, judgment
being against him is conclusive, and an injunction restraining execution of judgment
will not be granted. Gardner v. Jenkins, 14 Md. 62.

Held that a decree for the plaintiff should be revoked upon the payment of the
costs by the defendant. Burch v. Scott, 1 Bl. 129.

Cited but not construed in Bond v. Citizens' Bank, 65 Md. 499; Raub v. Carpenter,
187 U. S. 162.

An. Code, 1924, sec. 67. 1912, sec. 63. 1904, sec. 63. 1888, sec. 61. 1787, ch. 9, sec. 7.

67. Where a party to a suit dies and new parties are made or to be
made, the court may continue the case so long as may be deemed necessary
for the due administration of justice, not exceeding the end of the fourth