
    Huffacre v. Green, and the Heirs of M’Claris.
    
      [Bill of Review — When granted.]
   Per Curiam.

The defendants presented a bill of review, upon a decree between these parties made in May, 1814, upon a hearing in May, 1818. Campbell had made an entry 20th of October, 1783; before that he had sold his claim to Dougherty, and he to Huffacre. Green had a claim and made an entry the next dav, and sold to M’Clary. Campbell and Green agreed to a conditional line, and Dougherty in express terms sold to Huffacre no further than to his line ; Huffacre got a survey and grant, then Green a survey and grant, then Huffacre a new survey and grant upon a duplicate warrant gotten out of the secretary’s office. This grant extended beyond the line agreed upon, into Green’s tract. Controversies and suits arose, and finally they came into this court in the suit before mentioned. Huffacre insisted upon the priority of his entry, and prevailed. The present bill states that Dougherty will prove the condition line. Dougherty’s affidavit now produced, establishes * this assertion. Green, in his affidavit, says, he managed the suit for M’Clary, and on the day of hearing was sick, and could not attend, and that he did not know, till too late to get his testimony, that Dougherty was living, nor where he was.

If material testimony, such as would have caused a different decree, be discovered so late before the hearing that the deposition of the witness could not be taken, neither the attendance of the witness enforced, and if, also, the person who is to use it is so circumstanced for any cause that he cannot make an affidavit to postpone the hearing, then the court will listen to an application for a review. M’Clary could not at the hearing term make an affidavit as to the testimony of Dougherty. He did not know what he could swear. Dougherty stated it, and it was sent to his counsel, but it was not sworn to. The testimony was material. See 3d, 1779, ch. 4, § 5. Agreements whether in writing or not made after caveats filed, shall bind and settle the rights of the parties. Why not also agreements made before caveats filed, if the parties depend upon them, and in confidence thereof do not file caveats, nor take care in time to prevent the emanation of a grant contrary to it ? Piad this testimony appeared in the hearing, it probably would have prevented so much of the decree as is for the land in Green’s side of the line. I think the applicant ought to have leave to file his bill of review.

RoaNE, Judge.

Whether the fact, if true, as alleged, that a conditional line was made at the time stated, ought to have any effect in the final determination of this case, is to me very doubtful. It is however of sufficient importance to merit consideration. I therefore accede to the opinion, that the bill be filed.

The hill allowed to he filed.

See Young v. Henderson, 4 Hay. 189; King’s Digest, 7871, 9881.  