1. This Court will award a certiorari when diminution of the
record is suggested, even at the third term, if the delay be
accounted for, but the hearing of the cause will not be postponed
on that account.
2. Where a party contested with his own assignee in bankruptcy
the right to a fund, and the controversy was decided in favor of
the assignee by the circuit court, whose decree was affirmed by
this Court, the same question cannot be litigated again.
3. Where the bankrupt, before the distribution of the fund among
the creditors, filed a bill impeaching the decree of the circuit
court and of the Supreme Court for fraud of the parties, including
his own counsel, and entirely failed to establish his allegations,
the bill must necessarily be dismissed.
This was an appeal from the Circuit Court of the United States
for the District of New Hampshire, brought up, filed and docketed
in this Court to December term, 1859. On the 3d of January, 1862,
the cause being No. 67 on the docket of the present term, Mr. Black
of Pennsylvania, for appellant, suggested diminution of the record,
and moved for a certiorari on affidavits, which accounted for the
delay.
Page 66 U. S. 78
The appellee, a counselor of this Court, appeared
in propria
persona and resisted the motion on the ground that it was too
late: this was the third term.
The Court awarded the certiorari, but added that if the cause
should be reached before a return, the certiorari would not be
regarded as a reason for continuance.
The cause was afterwards reached in its regular order, and the
argument was directed to proceed.
MR. JUSTICE NELSON.
This bill was filed by the complainant, Clark, against Hackett,
the defendant, to set aside a decree of the Circuit Court of the
United States of the District of Columbia, and also of this Court
affirming that decree, on the ground that they were procured by the
fraud of the parties, and of the complainant's solicitor and
counsel. The suit in the Circuit Court of the District of Columbia
was instituted by Benjamin C. Clark, a judgment creditor of the
present complainant, for himself and other creditors, claiming a
fund in the hands of the Treasury of the United States which had
been awarded to the debtor by the commissioners under the treaty
with the republic of Mexico. After the filing of this bill, the
present respondent, Hackett, who was the assignee in bankruptcy of
the present complainant, filed a bill praying leave to come in
under the creditor's bill, setting up a title to the whole of the
fund in question for the purpose of distribution among the
creditors of the bankrupt. The present complainant, the bankrupt,
appeared and answered these bills, and afterwards the case was
heard on the pleadings and proofs, and a decree rendered by the
court in favor of the assignee. The court also directed the fund to
be remitted to the District Court of the United States for the
District of New Hampshire, in which the bankrupt proceedings had
taken place, for a distribution among the creditors by that court,
as a part of the
Page 66 U. S. 79
assets of the bankrupt. An appeal was taken from the decree by
the respondent to this Court, and which was affirmed, as will
appear by the report of the case in
58 U. S. 17 How.
315, and the cause remanded to the circuit court. The fund was
afterwards, in pursuance of the decree below, remitted to the
District Court of New Hampshire. While it remained in that court,
and before distribution among the creditors, the complainant, the
bankrupt, filed the present bill for the purpose of setting aside
the decree of the circuit court of this district, and of the
Supreme Court affirming it, on the allegations of fraud committed
by the parties, including his own solicitor and counsel, in
procuring these decrees, and claiming that he was entitled to the
fund, and that payment should be made to him accordingly.
The court below, after hearing the case on the pleadings and
proofs, which were voluminous, held that the evidence entirely
failed to establish the allegations of fraud, and dismissed the
bill. It is now here on appeal. The case is a very plain one, and
we need only say that the court, upon the pleadings and proofs,
could come to no other conclusion.
Decree of the circuit court affirmed.
