Page:Federal Reporter, 1st Series, Volume 8.djvu/547

BEOOKS V. o'haba. S33 �aside a former decree of this court between the same parties and upon the same siibject-matter. It is clear that all questions touch- ing the validity or amount of respondents' claim were open to inves- tigation in the former suit. Issue was joined upon their cross-bill, and testimony was taken and decree was rendered in their favor. �It was the right and duty of complainants to investigate the char- acter of the claim, and to set up in that case whatever defence they had. It is not enough to allege that they did not discover the facts in time so to do. The only exception to this rule is in cases where, by some wrong act of the successful party, bis adversary is deprived of the right to fully present bis case. The rule is thus stated by Mr. Justice Miller in U. S. v. Throckmorton, 98 U. S. 65 : �"But there is an adtnitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in the case. Where the unsuc- cessf ul party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponents, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit.being kept in ignorance by the acts of the plaintiff ; or where an attorney fraudulently, or without authority, assumes to represent a party, and connived at his defeat ; or where the attorney, regularly employed, corruptly sells out his client's interest to the other side. These and similar cases, which show that there has never been a real contest in the trial or hear- ing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing. See Wells* Res Adjudieata, § 499 ; Pearce v. Olney, 20 Conn. 544; Wierick y.DeToya, 7 111. 385; Ketit v. Bicards, 3 Md. Ch. 392; 8mith v. Lowry, 1 John. (IST. Y.) Ch. 320; De Louis v. Meek, 2 lowa, 55." �The rule is clearly settled, at least so far as the federal courts are concerned, that a judgment will not be set aside upon an original bill upon the ground that it was founded upon a fraudulent intendment or perjured evidence, when there were no hindrances besides the negli- gence of the defendant in presenting the defence in the first suit. �The case of U. S. v. Throckmorton, supra, is a striking illustration of misrule. The judgment attacked in that case had been oblained, as was alleged, upon a grant which had been executed by the former Mexican governor of California, after he had ceased to hold that office, and falsely and fraudulently antedated. The case was a strong one, but the court said : "There was ample time to make all neces- sary inquiries and produce the necessary proof, if it existed, of the fraud," in the progress of the original suit; and the bill was held bad on demurrer because it was the duty of the complainants to ascer- tain the facts and make their defence in the original suit. And the ��� �