Contee v. Pratt

Le Grand, C. J., delivered the opinion of this Gourt. This is an appeal from an order of the circuit court of Prince Georges county dismissing the petition of the appellant, filed the 13th of February 1855. The object of the petition, among other things, was to procure the review and rescisión of an order of the chancellor, of date the 18th of October 1853. We did not understand the counsel for appellant as insisting this could be done, after such a lapse of time, except on the ground that the order of the chancellor was obtained hj fraud or mistake.

By the act of 1826, ch. 200, sec. 14, all appeals from decrees of the court of chancery shall be prosecuted ⁷³ within nine months from the time of making such decrees, and not afterwards, “ unless it shall be alleged, on oath or affirmation, that such decree was obtained by fraud or mistake.” Although the provisions of the act do not require the facts shall be proved to authorise the appeal, they do, however, require that either “fraud” or “mistake” shall be “alleged.’’ Oliver vs. Palmer & Hamilton, 11 Gill & John., 143. In the case now before us, neither the petition nor affidavit attached thereto, allege fraud or mistake in the obtention of the order sought to be rescinded. The petition merely states certain persons were under certain impressions and that proper exertions were made to procure particular proof. There is not the slightest allegation that either appellant or