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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 193   View pdf image (33K)
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HITCH VS. FENBY. 193
defendants, orders were passed by the Chancellor, altering, to
gome extent, the terms and the mode in which the property was
to be sold.
Now, the allegation in the present bill is, that the bills of
sale and proceedings in chancery were designed by the said
parties thereto, and in pursuance of a mutual agreement to that
effect, as a security merely to the said Fenby for the repayment
of any balance that might be found due to him on a settlement
to be made of their mutual dealings, and after this allegation it
charges usury and makes various other objections to the claims of
Fenby, and socks to open and vacate the enrolment of the decree
for the purpose of an account to be taken between the parties.
The bill, therefore, is not, strictly speaking, an original bill,
in the nature of a bill of review, impeaching the decree for
fraud because it does not allege that it was obtained by fraud,
nor could such allegation be made in the face of the complain-
ant's answer to the original bill, verified by affidavit, but the
ground taken is, that the decree, which was obtained for one
purpose, is now about to be perverted to another purpose, in
fraud of the complainant to this bill.
Conceding that the court at this distance of time would in-
terfere to prevent the fraudulent and oppressive use of a decree
to purposes not contemplated by the parties and in conflict with
their agreement, (and it certainly would require a very strong
and clear case to justify such interference after an interval of
seven years,) the question is, whether the complainant has by
evidence made out any such case as that charged in his bill ?
The substance of the allegation is, that the decree was not
given to secure a specific and ascertained sum of money, but
merely by way of securing the repayment of any balance that
might be found due Fenby on a settlement of accounts. And
this allegation is denied by the answer, which says, that at the
time stated in this bill he filed his bill in this court for a fore-
closure of said bills of sale truly stating the amount then due
him to be $7580. That there was no fraud, deceit or surprise
practiced in obtaining the decree, but that on the contrary, it
was for money, all of which was justly due him, and was made
16*

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 193   View pdf image (33K)
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