
    BOWLES vs. SOUTH.
    The difcove-ry of new wit-neífesto a point in iflue, or to a point which the party knew oí, and failed to put jn iifud, in the former luir, is no caufe tor a bill oí' rsv«w0
    
      BOWLES, claiming by virtue of an entry on a treasury warrant, made in June 1780, exhibited his bill against South, who claimed a settlement and pre-emption of an elder date. ‘
    
      Met. Pletd. 785 73’
    South, in his answer to that bill, did not insist upon the validity of his entries, nor the notoriety of the object (Irvine’s improvement) which they called for} but relied upon his elder patent.
    The inferior court decided that Bowleses entry was a valid one, and decreed South to convey to him. That decree was, on an appeal, affirmed by the court of appeals — See Pr. Dec. 32.
    South then filed his bill of review, stating that “ be, hath obtained information of the existence of testimony very material to the support of his said claim, and whereby he would fully establish the improvement for which his said Certificate was granted- The testimony so discovered, is that of Robert M’Millen, Jesse Hodges, Jacob Starnes, and Ambrose Coffee. That he did not know of said witnesses, or any of them, prior to the titee of pronouncing the said decree.”
    Bowles demurred to this bill. ' Theicourt overruled the demurrer. An answer was then put in, and the cause progressed to final hearing; when the court pronounced a decree in favor of South ; establishing the va» lidity of his entries, -&c. From this decree Bowles appealed.
    
      May 19th.
    
    
      jAtkH and ffug-hes, for the appellant
    Contended that the ease of Ken pass, vs* APClanahan (), was in point, and that the principle there laid down, would gó» vern this case.
    
      May 20th.
    
    
      ffarclin, for the appellee.
    It has been laid down in some books, that a bill of review will hot lie in the inferior court, after an affirmance in the appellate tribunal. This rule must be restricted to cases where the bill of review » founded on error in law y and that far it ⅛ clearly correct. It cannot extend to cases where the the discovery of a matter of fact is the foundation of the application. In these cases, the correctness of the decision given upon the premises before the court, Is mót impeached — 4Viner 413. •
    The affirmance, by the court of appeals, of the decree heretofore pronounced in this cause, will, therefore, be no bar to this application.
    The decision in the case of Re-spass, fcfc. vs. iñp&eina-han, has laid it down to be law, that the discovery of ■ new witnesses to a point, in issue in the former cause, i« no. ground for a bill of review. But, farther than th» it. has not gone. This bill is founded upon the discovery of evidence that proves the notoriety of Irvine’s improvement, and consequent validity of the appellee’s entries. These points were not in issue in the former cause. South having failed to put it in issue by his answer, no evidence could be taken to those points, and ®o decree pronounced relative to the validity of South’s entries.
    A ground taken in the decision of the cause of Res-pass, ⅛⅜. vs. M' Clanahan, that perjury might be encouraged, if bills of review were allowed upon the production of new wi tnesses to the facts in issue before, will not apply to a case where the fact was not in issue.
    The omission to put the fact in issue, is conclusive to shew, that the appellee did not know of it. He had nothing to call his attention to the point, nor to induce him to search up witnesses, as the party has where die fact is put in issue.
    In 1 Har. Chan. Pr. 176, it is said, that which is a ground for a new trial at law, is a ground for a bill of review.
    In 2 Black. Reps. 855, Broadkeadvs. Marshall\ a neif trial was granted where the attorney had the evidencie of his client in his possession, but had neglected to search it up. In 3 Burr. 1771, FttbriHus vs. Cock, a new trial was granted upon the discovery of circumstances tending to contradict the witnesses of the other party. In 2 Wash. 36, Ambler vs. ffiylS, a new trial was decreed fey the chancellor, when the party might have had it at law,, but for his neglect. And in 1 Burr. 393,It is said, that a new trial should be granted, where there is reasonable doubt, or perhaps certainty, that justice has not been done.
    In none of these cases, was the ground for the interposition of the court, as strong as the present case. It is not to be expected that every man who has a cause, will always know, nor be advised of the best possible mode of preparing it, nor of every hind of evidence he should search for.
    The discovery here made, is of.a new matter, depen-dant, it is true, upon oral testimony, it presents a new case to the chancellor, which was not before him on foe former trial — the validity of South’s entries, and correctness of his survey. This mast surely fee asufScreot ground for a bill of review.
    
      
      May 23rd.
    
    The rule laid down in the case of Respass, ⅛⅛. ps. M'Clanahan, as I understand it, goes far enough. If. you go farther, you will, in attempting to shut the door, against litigation and perjury, close it against justice; and make a man’s ingorance of his right, the means of his loosing it. 1 '
    
    
      
      
        (a) Ante 342.
    
   Edwards, Ch. J.

delivered, the opinion of the court. After a statement of the case, he proceeded : — The complainant in the original cause, could have had no decree, unless South’s claim was invalid, or surveyed contrary to location ; so that the matter to which evidence is offered in the bill of review, was either necessarily in issue, or might have been put in issue by South. '

The doctrine of bills of review, as stated in the decision of Respass, &c. vs. M'Clanahan, at this term, need1, not be repeated. This case, however, has been said to differ from that, in this — that the matter of the notoriety, or the precise situation of Irvine’s improvement, was not in issue ; that not a single deposition was. taken In the original cause, as to the improvement, on either side.

Whether witnesses had been examined to support the. issue, or not, does by no means constitute the basis of the decision of Respass, &c. vs. M'Clanahan, as this argument would seem to infer.

vSouth’s. claim was a village right, and depended-for its locality and precision, upon Irvine’s improvement. If the improvement was notorious at the date of South’s entries with the surveyor, and the fact was known to him, he ought to have used it for his defence, in the original, cause ; and the omission to put it in issue, can be ascribed to his negligence only. He does not state in his bill of review, that previous to thy decree, he was ignorant of the fact itself ; the existence of Irvine’s improvement ; or that he knew of no witnesses to prove th* fact, other than the four named. If the fact was unknown to him, he should have stated it so, expressly, in his bill, otherwise, it must be taken that he knew it.

But an allegation from South, that he himself did not know that such an improvement or cabin as that called for in his certificate of village right, existed, would have been a bold stroke at the notoriety of the improvement — the very prop and strength of his claim. The very term notorietv, imports diffusive knowledge of,' and acquaintance with the subject said to be notorious». if such notoriety was actually attached to Irvine’s cá--bin, as to render it a good object of location, as used in his entries, then it follows, that during the pendency of the original suit, he might, by using reasonable diligence, have found out, and applied to some of the witnesses to whom it had been known, or who gave him the information originally ; and, if necessary^ have procured a prolongation of the time for taking depositions.

But it has been said, that in his answer to the original bill, which is a part of his bill of review, he has accounted for this omission, by swearing that his son managed ■the claim principally for him.

This affords another objection against the application for the review ; for he should, in such case, have sworn, not only that the new matter was not within his own knowledge, but also, he believed it was not within his •agent’s knowledge, before the pronunciation of the decree. The applicant must make out his case completely, in his bill, and not leave chasms to be supplied, by. Intendment : no implication in favor of a bill of review, can be indulged. The interest of the whole community requires that there should be some end to controversies. If the matter was material for his defence, (and he has not stated that it was unknown to him before the decree) he was bound to have put it in issue, and to have availed himself of it by proof if required : the neglect of either, cannot be cured or excused, by the discovery of witnesses, or “ testimony,” to the matter, subsequent to the decree. If the rule of defence should be permitted in chancery, so far to differ from that at law, as to enable a defendant to split and divide his case into as many separate and distinct matters of defence as it was capable of, and to bring them on to several successive trials, proceedings in ehancery, now tedious enough, might become endless to every common intent of justice.

Upon application for review, it is not enough that the matter should be new, but it must also be material; and 'so shewn to be in the bill. And that question is also embraced by a demurrer. Upon this application, the affidavits of the four witnesses discovered, were exhibited as a part of the bill; by reference to them, it does mot appear that their testimony was material to the support of South’s entries. His certificate and entries call for Irvine’s cabin / those affidavits allude only to belted 3⅜4 Sharked trees, as Rrvine’s improvement; feotfto *⅛^ ⅜⅜⅛⅜ know® ot called Irvine’s cabin, or t© any cahiá lltoik by him.

Bilk of review, which Seek to open a cause again, for testimony, after the parties have, by the opinion and decree’ found the weaker parts of their case, must be received with great caution, utJints sitlitium.

The cause has been examined Upon the demurrer ta the bill adfcy; upon which, it is the opinion of the court, that the said bill contains no foundation for a review; and, therefore, that the judgment of the -court, in overruling the demurrer, was erroneous ; and also, the com Sequent decree.- — —--Decree reversed.  