1. The Probate Court erred in overruling the demurrer to the petition of the legatee.

2. The Probate Court erred in making the order of the fourth of June, 1858.

Latham & Sunderland for Respondent.

Terry, C. J., concurring.

It is not necessary to consider many of the questions made at the bar. The petition itself shows no grounds for the relief asked. The accounts having been settled by the executor and Price, with the approbation of the Court, and a final decree had, the accounts could not be reopened upon the showing made by the petition. The legatee having been notified, and appearing by his counsel, must be held concluded by the settlement and decree, even if he would not otherwise have been bound by the judgment; and this before the Probate Court as well as any other, and on the concession that the Probate Court, after this final decree and settlement, had jurisdiction of the subject. It would not be sufficient in an ordinary case of a bill for a new trial, to aver that the party thus represented was ignorant at the time of the trial (or settlement) of the facts. The bill must go further, and show that he could not with the use of due diligence, unmixed with any negligence on his part, have made himself acquainted with, or ascertained the existence of the facts. It is never tolerated to a party that he may go on and take his chances of a trial, and after it has gone against him, move to set it aside on grounds which he might have availed himself of by the exercise of a proper degree of diligence. Litigation would be endless if this were so, and a party encouraged in supineness and negligence.

It is true, the petition states that petitioner could not with any dili*214gence have discovered the facts on which he relies ; but this general averment will not do. The petition should state how and why the facts could not be discovered. Besides, this allegation is denied by the answer, and no proof made of it. It is not perceived why the attorneys of the legatee could not have ascertained all the facts, which do not seem difficult of ascertainment, even if the absence of the petitioner himself from the State prevented him from personally prosecuting the necessary inquiries. This view renders it unnecessary to examine the case npon the merits, though upon the proofs, we think the same result would follow.

The judgment of the Probate Court is reversed, and the petition dismissed.