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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 18   View pdf image (33K)
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18 HIGH COURT OF CHANCERY.
his equity to the interposition of the court. The day of hearing
Came, but the petitioner was neither prepared with his proofs
nor with any excuse for their non-production, and his petition
Mid the answer thereto being submitted by Evans, under and
according to the course of the court, the petition was dismissed.
The petitioner now alleges, that he did not know that Evans'
answer had been filed, and consequently did not know what
proofs would be required of him. But is this a reason why he
was not here, on the 9th of October last, the day fixed upon
his own petition, for the hearing of the application ? If he had
been present and stated sufficient grounds, the court would have
given him further time to produce his evidence. This, however,
he did not do, and offers as an excuse for not being prepared
with his proofs, that he did not know that Evans had filed an
answer.
It is quite probable that he did not know that Evans had
filed an answer. But he certainly did know that the 9th of
October, 1849, was the day fixed for the hearing of his own
petition, and I conceive it would be establishing a most loose
and inconvenient system of practice, to grant the present appli-
cation, and open a second time the order of the 26th of July
last. It was said by the Court of Appeals, in the case of Gott
& Wilson vs. Carr, 6 Gill & Johns; 309, "that a suitor in
court is bound to be present in person, or by attorney, to take
care of his rights, and attend to their due prosecution, and can-
not make the omission to perform this duty the foundation of
an injunction." So here it seems to me especially to have been
the duty of this petitioner to have been present on the 9th of
October last, to take care of his rights, and that having omitted
this duty, he has no right now to call upon the court a second
time to relieve him, upon the ground that he was ignorant of
the proceedings which had been had. in the cause after he
filed his petition. If he had been present, he would have known
what had been done in the cause, and what steps it was
necessary for him to take for the protection of his rights.
There are strong equities upon both aides. The petitioner,
as the elder incumbrancer, certainly had the first lien on the
fund, and Evans, as a surety, is to be favorably considered.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 18   View pdf image (33K)
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