of the civil law, Res judicata pro veritate accipitur, is recognized and applied by our own.

The judgment becomes a vested right, which can only be divested by a direct proceeding and for sufficient legal cause, in some of the modes known to the law. Whatever opinion the judge may then entertain of the legality or justice of the verdict and judgment, he is powerless to change it, unless it be by a new proceeding or suit for that purpose. He can no more relieve against it than he can divest any other right of a party without a suit instituted for that purpose, and conducted to judgment by due course of law. And from the very nature of the case, where there has been such proceeding, the party aggrieved must have the same right to have a revision of the judgment upon the legal sufficiency of the cause of action or complaint in that as in any other case. It could never be tolerated that any court should have an irresponsible and irrevisable power to set aside and annul its judgments after the term for any cause which the judge in his discretion might deem sufficient. Yet such would be the consequence of refusing to revise the decision in cases like the present. It is a very different case from that of granting a new trial during the term while the record is in fieri, subject to judicial control. Whatever doubt there may be whether we ought not to have revised the judgment on the former appeal, and whatever might be our decision if that question were now before us, there can be no doubt that the decision then made ought to be deemed the law of this case in which it was made, and that, having refused to entertain the appeal and revise the judgment then, we cannot decline it now. Such is the inevitable conclusion from the opinions heretofore held in repeated decisions: Stewart v. Jones, 9 Tex. 469; McKean v. Ziller, Id. 58; Bradshaw v. Davis, 12 Id. 344, 345; Miller v. Hall, Id. 556.

The question, then, is, whether the court erred in sustaining the petition, and proceeding thereupon to set aside the judgment of the former term, and grant a new trial. There can be no difficulty in the determination of this question. The grounds set forth in the petition for invoking this extraordinary interposition of the court in granting relief against the judgment of a former term are, that the petitioner and those under whom he claims have had possession of the land in controversy under color of title long enough to bar the plaintiff's right of action on their elder location and survey; and his excuse for not making this his defense to the plaintiff's action is, that he had notified one Hill,

from whom he derived his title, of the pendency of the suit; that Hill had promised to attend to the suit and defend his title, and that, relying on the promises of Hill, he gave no further attention to it; that Hill failed to appear and defend the suit, and the consequence was that the plaintiffs recovered a final judgment against him, of which he was not apprised in time to move for a new trial at that term of the court; that he is informed by Hill that he, Hill, intended to defend the suit, but that he understood that the petitioner and one Clark were jointly sued, and for several portions of the land embraced in the survey; that he procured the services of an attorney and had the suit against Clark continued at that term, and thought the case of the petitioner would be continued also, and "he gave himself no further trouble in regard to the matter," and that Hill told him that he had no knowledge of the judgment against him until after that term of the court; that he believes the statements of Hill to be true; finally, that the amount he will be able to recover of Hill upon his warranty of title will not be adequate to compensate him for the loss of the land. The petition was not filed until in the December following the June term of the court at which the judgment was rendered. It is sworn to by the petitioner, but is unsupported by the affidavit of Hill or by any other evidence whatever. As an excuse for the delay in filing the petition, it is averred that the petitioner at first intended to prosecute a writ of error to reverse the judgment, and took proceedings for that purpose; but was afterwards advised that he could not obtain a reversal, and abandoned his writ of error. Whereupon the petitioner prayed for and obtained an injunction; and the court overruled exceptions to the legal sufficiency of the petition, and proceeded further under the prayer for general relief to set aside the former judgment and direct a new trial. To state such a case would seem sufficiently to indicate the disposition which must be made of it.

The case, shortly stated, is, that the petitioner might have successfully pleaded the statute of limitations to the plaintiff's action, if he had seen proper to do so; but he did not, because a third person had promised to attend to it for him, and that person did not, because he did not take the trouble to inform himself what suit it was he was desired to defend. This is substantially the case, and the whole case, made by the petition. And upon this state of case the judgment rendered at a former term of the court was set aside, and a retrial of the case directed. It would seem scarcely necessary to enter upon argument or the

examination of authorities to show that such a proceeding was wholly unauthorized and unprecedented. Whether we refer to the practice of courts of chancery in directing new trials in cases at law, or the practice of this court in similar cases, the action of the court upon the case stated will appear equally unsupported by any principle of adjudication or rule of practice known to this or any other court. Where the granting of new trials after the term has been sanctioned by this court, it has been the exercise of an equitable jurisdiction, analogous to that exercised by courts of chancery in England and the common-law states of the Union, in granting new trials in suits at law: Gross v. McClaran, 8 Tex. 343; McKean v. Ziller, 9 Id. 59. That was by a bill of review, or of the nature of a bill of review, usually called bills for a new trial: 2 Story's Eq. Jur., sec. 887. "As the courts of equity," says Lord Redesdale, “will prevent the unfair use of an advantage in proceeding in a court of ordinary jurisdiction gained by fraud or accident, they will also, if the consequences of the advantage have been actually obtained, restore the injured party to his rights. Upon this ground, there are many instances of bills to prevent the effect of a judgment at law, and to obtain relief in equity where it was impossible by any means to have the matter properly investigated in a court of law; or where the matter might be so investigated to bring it again into a course of trial. Bills of the latter description, or, as they are usually called, bills for a new trial, have not been of late years much countenanced. In general, it has been considered that the ground for a bill to obtain a new trial after judgment in an action at law must be such as would be ground for a bill of review of a decree in a court of equity upon discovery of new matter:" Mitf. Eq. Pl. 131; 2 Story's Eq. Jur., sec. 888. "Anciently," it was said by Chancellor Kent in Floyd v. Jayne, 6 Johns. Ch. 479, 481, "courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. This relief was not granted unless the application was founded upon some clear case of fraud or injustice, or upon newly discovered evidence, which could not possibly have been used upon the first trial. But this practice has long since gone out of use, and such a jurisdiction is rarely exercised in modern times, because courts of law are now in the competent and liberal exercise of the power of granting new trials." But when the jurisdiction was exercised most liberally in courts of chancery, the court would

never interpose to grant relief in this way, except where the party was prevented without his fault from making his defense; or upon newly discovered evidence, which could not possibly have been used upon the trial: Id.; 3 Daniell's Ch. Pr. 1727; Story's Eq. Pl., secs. 412 et seq; Saunders v. Jennings, 2 J. J. Marsh. 513.

Neither courts of chancery nor of law ever interposed to afford relief, by granting a new trial, where a party had permitted a judgment to be recovered against him by his own supineness and negligence. His want of knowledge of evidence material to his defense, or of the recovery of a judgment against him where he was served with process, or of any other matter which it was material for him to know in order to make his defense, or apply in time for a new trial, has never been held to afford a party any excuse, if by the use of reasonable diligence he might have. known it. The question in such a case, said Lord Eldon, always is, not what the party knew, but what, using reasonable diligence, he might have known: Daniell's Ch. Pr. 1734; Cook v. De la Garza, 13 Tex. 445. It cannot be doubted that by the use of reasonable diligence the petitioner might have known whether the suit pending against him for the recovery of the premises on which he resided was defended or not; or whether judgment was likely to be recovered or had been recovered against him, whereby he was liable to be ejected from his possessions. It would seem that a man of any prudence or discretion would have acquainted himself with such a state of case; if, indeed, he had any confidence in his title or his ability to make any successful defense to the action. But it is unnecessary to discuss the merits of the petitioner's case. It is quite too clear for controversy or question that his petition did not present a case which would have entitled him to equitable relief upon any principle which has ever been recognized in courts of chancery. It is equally clear that he was not entitled to have the judgment of a former term set aside and a new trial granted, upon any principle or rule of practice recognized by this court. Thus in Cook v. De la Garza, supra, we held it to be perfectly clear and well settled that to entitle a party to a new trial, applied for upon equitable grounds after the term, he must show sufficient matter to have entitled him to a new trial, if applied for at the term, and a sufficient legal excuse for not having then made his application: Cook v. De la Garza, 13 Tex. 431, 444. The same principle was recognized in Spencer v. Kinnard, 12 Id. 180, and Miller v. Hall, Id. 556. In Mus

sina v. Moore, 13 Id. 7, and Kitchen v. Crawford, Id. 516, the right of a party to a new trial was maintained, on the ground that where the defendant had been deprived of the opportunity of making his defense, without any fault on his part, he not having had personal service or actual notice of the suit, the statute, Dig., art. 783, gave him the right to a hearing, and a retrial of the case. But in the present case the defendant had notice by personal service, and an opportunity afforded to defend the suit; but he did not because he expected his warrantor to defend, and the latter did not because he expected his attorney to attend to the matter. If the judgments of courts were liable to be set aside and new trials granted on such grounds as these, there would, indeed, never be an end of litigation. It has been well said, that "if mistakes in practice or inadvertence furnished reason for a new trial, it would encourage litigation and reward ignorance and carelessness at the expense of the other party:" 6 Co. 9. And therefore the law in such cases wisely acts upon the maxim, Interest reipublicæ ut sil finis litium-it is for the public good that there be an end of litigation.

"After a recovery by process of law," says Lord Kenyon in Marriott v. Hampton, 7 T. R. 269, "there must be an end of litigation; if it were otherwise, there would be no security for any person;" and great oppression might be done under color and pretense of law: 6 Co. 9. If a new trial had been asked upon these grounds at the term, no one would be heard to contend that they were legally sufficient to warrant the court in granting it. Can it be supposed that by permitting the term of the court to pass by without making the application the party was entitled to have it more favorably entertained and considered; or that a new trial should then be granted upon an original proceeding for causes for which it could not legally have been granted if timely application had been made? If there be anything which is perfectly clear beyond all question, on principle and authority, it is the opposite of such a supposition. There can be no presumption in this case, as there might be where a new trial was granted during the term, Sweeney v. Jarvis, 6 Tex. 43, of the existence of any fact not appearing by the petition to support the action of the court; for the facts upon which the court acted could only appear by the petition; the court could only act upon the case therein stated. That, manifestly, was not sufficient to entitle the petitioner to the relief sought; or to any relief upon any principle on which courts of chancery proceed