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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 198   View pdf image (33K)
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198 HIGH COURT OF CHANCERY.
which they could, if they would, have successfully relied ? Such,
I am persuaded, is not the law of this court, but that here, as at
law, parties are required to use due and reasonable diligence,
and especially they shall not be permitted to unsay at a future
time what they have not only once said, but sworn to. Res-
pectable authority can be found for the principle that a bill of
review cannot be brought against a decree taken by consent for
consensus tollit errorem. 3 Daniel's Ch. Pr., 1726. As ob-
served by Chief Justice Savage, 1 Hopkins, 105, "upon a sup-
plemental bill, in the nature of a bill of review, the question
always is, not what the plaintiff knew, but what, using due dili-
gence, he might have known." And, in this observation he is
sustained by the authorities referred to by him. Indeed, the
very language is used by Lord Eldon in Young vs. Keighly,
16 Ves., 353, and it received the express sanction of Chancel-
lor Kent, in Livingston vs. Hubbs et al, 3 Johns. Oh. Rep., 124.
The rule, indeed, is so perfectly reasonable, that authority can
hardly be necessary to sustain it. There must be an end of
litigation, and this would never be the case if parties were per-
mitted to confess judgments or decrees, and then have them
reopened to contest facts in their knowledge at the time, or the
knowledge of which, with reasonable diligence, they might have
acquired.
My opinion, therefore, is, that no ground has been shown
for opening or disturbing, to any extent, the decree of 1841,
and I shall, therefore, dissolve the injunction, and give the
defendant, Fenby, the liberty to proceed upon his decree for
the sum which appears, by his answer and exhibit filed with it,
to be due. Other grounds were taken in the argument upon
which I do not purpose expressing an opinion.
ALEXANDER and DULANY, for Complainant.
SPEED and GLENN, for Defendants.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 198   View pdf image (33K)
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