Hitch v. Fenby

6 Md. 218

• Court: Court of Appeals of Maryland
• Decided: December 15, 1854
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

A very careful examination of the record in this case, has satisfied us of the justice and propriety of the chancellor’s action in the premises, and, with but one exception, we concur in all the observations and reasoning by which he sustains it. The remark to which we allude is, that a party omitting to make the defence of usury at law would not be relieved in equity. The'contrary has been decided in the case of West vs. Beanes & another, 3 Har. & Johns., 568. We refer to it to prevent misapprehension hereafter.

If at any time after the decree was enrolled and the term had passed, the coihplainant had a right to open the decree' because of- its being based upon'- a claim affected by usury,we think he could only have done so within nine month's after the decree, or within the same time subsequent to his being-informed of the usury.

From-the facts disclosed, it is manifest, that'before and at the date of the decree, he knew of the transactions constituting* the alleged usury, and his bill not having been filed for some seven years thereafter it i'§ too late. The cases of Berrett vs. Oliver, 7 Gill & Johns., 207, and Oliver vs. Palmer & Hamilton, 11 Gill & Johns., 146, are sufficient authority for this view. See also Alexander's Chancery Practice, 182.

In- addition to this we may remark, that there is nothing entitling the complainant to the account which- he claims. Taking the debt to be what was ascertained by the decree, (which cannot be disturbed,) the defendant has not shown credits which would probably reduce the debt below the amount now admitted by Fenby to be due. If Fenby’s account filed with his answer was rejected, the complainant on- his own proóf would owe more than the defendant now claims on the decree.

Decree affirmed*