the liability. The decree may be modified by inserting after the words "against his entire estate" the words “in the District of Columbia."

It is objected in argument, although not in the pleadings, that the widow of Edmund Kearney has a right of dower in the Washington estate which descended to him, and that she should have been made party to the bill of review. The fact of the widow's existence does not appear of record as against the appellee, and we agree with the Court of Appeals that the objection is made too late.

Decree affirmed.

FIDELITY MUTUAL LIFE INSURANCE COMPANY v. CLARK.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

No. 25. Argued October 15, 16, 1906.-Decided October 29, 1906.

A man and his sister conspired to defraud an insurance company; the former having insured his life disappeared and the latter as beneficiary filed proof of death, brought suit, and recovered judgment after verdict by a jury; the company defended on ground that insured was alive and claim was fraudulent. The judgment was affirmed and the company paid the money into court. In order to have the suit prosecuted the beneficiary had made contingent fee contracts with attorneys which had been filed and the money was distributed from the registry of the court to her and the various parties holding assignments of interests therein. The insurance company, having afterwards found the insured was alive, sued in equity the beneficiary and also her counsel and their assignees to recover the money received by them respectively. No charge of fraud was made against anyone except the beneficiary, but notice of the fraud was charged against all by virtue of the company's defense. The defendants claimed that under the Seventh Amendment the question of death of person insured could not again be litigated. The bill was dismissed as to all except the beneficiary.

203 U. S.

Argument for Appellant.

Held, as to the defendants other than the beneficiary, that as the action was prosecuted in good faith, whatever notice they may have had by virtue of the company's defense was purged by the verdict, and although they had received their respective shares from the proceeds paid into court it was the same in law as though they had been paid in money directly by the judgment creditor and it could not be recovered. Whether in view of the Seventh Amendment a Federal court sitting in equity may inquire into whether a judgment based on a verdict was obtained by fraud and, if so found, set the verdict aside, argued, but not decided.

THE facts are stated in the opinion.

Mr. Maurice E. Locke and Mr. Eugene P. Locke for appellant:

The Circuit Court and this court are not deprived of jurisdiction to entertain plaintiff's bill by the provision in the Seventh Amendment that no fact tried by a jury shall be otherwise reëxamined by any court of the United States than according to the rules of the common law, as under the common law, as it was understood in England at the time of the adoption of the Constitution, equity could examine into whether a judgment, based on a verdict, had been fraudulently obtained. 3 Blackstone's Comm. *53; Hallam's Con. Hist. of England, Chap. 6, p. 247; 1 Campbell's Lives of the Chief Justices, 332; 2 Campbell's Lives of the Chancellors, 362; 3 Pomeroy's Eq. Jurisp., § 1360; 1 Story's Eq. Jurisp., § 51; 1 High on Injunctions, § 112; Lord Ellesmere's pamphlet, "The Privileges and Prerogatives of the High Court of Chancery."

There are no American cases, state or Federal, where the right of a court of equity to reëxamine for fraud a judgment or a verdict at law was the matter under consideration, which hold that courts of the United States sitting in equity had not that power.

It has been held that the first clause of the Seventh Amendment, correctly interpreted, cannot be made to embrace the established, exclusive jurisdiction of courts of equity, nor that VOL. CCIII-5

Argument for Appellant.

203 U.S.

which they have exercised as concurrent with courts of law. Shields v. Thomas, 18 How. 253; Waring v. Clarke, 5 How. 441; Barton v. Barbour, 104 U. S. 126. See also Home Life Ins. Co. v. Dunn, 19 Wall. 214; Ocean Ins. Co. v. Fields, 2 Story, 59.

In a case in a Federal court, the judge may call in a jury to find upon issues, or may have a jury empaneled upon the law side of the court and its verdict certified to him, and in either case the verdict is not binding on him but advisory only. This accords with the long established practice of courts of chancery, but is apparently contrary to the letter of the Seventh Amendment, and justified only by historic interpretation. See Prout v. Roby, 15 Wall. 472; Garsed v. Beall, 92 U. S. 684; Wilson v. Riddle, 123 U. S. 608; Idaho Land Co. v. Bradbury, 132 U. S. 509; and as to effect of jury trials in admiralty cases see Boyd v. Clark, 13 Fed. Rep. 908.

For other cases in which a verdict was reviewed for fraud see Young v. Sigler, 48 Fed, Rep. 182; Crim v. Handley, 94 U. S. 652; Stanton v. Embry, 93 U. S. 548; S. C., 46 Connecticut, 65 and 595; Embry v. Palmer, 107 U. S. 3; Phillips v. Negley, 117 U. S. 665.

A

The fraud of the original conspirators is not the same fraud which is the basis of this suit, and this distinguishes the case from United States v. Throckmorton, 98 U. S. 61, and United States v. Flint, 4 Sawyer, 42. See also Marshall v. Holmes, 141 U. S. 589; Graver v. Fawrot, 64 Fed. Rep. 241; 73 Fed. Rep. 1022; 76 Fed. Rep. 267; 162 U. S. 435; Maddox v. Apperson, 14 Lea, 596, 615; Marine Ins. Co. v. Hodgson, 7 Cr. 332; N. Y. Life Ins. Co. v. Bangs, 103 U. S. 780. A court of equity can and will grant relief under the circumstances of this case. Coddrington v. Webb, 2 Vernon, 240; Wonderly v. Lafayette Co., 150 Missouri, 635; Guild v. Phillips, 44 Fed. Rep. 461; Trefz v. Knickerbocker Life Ins. Co.,8 Fed. Rep. 177; Stowell v. Eldred, 26 Wisconsin, 504; State v. Fraker, 148 Missouri, 143.

The bill does not come too late, and the situation demands equitable relief.

203 U.S.

Argument for Appellant.

If one person gets possession of another's money by fraud, the law raises a promise to return it, and upon such implied promise an action may be maintained. Bishop on Contracts, § 226; Moses v. Macferlan, 2 Burrows, 1005; Buller v. Harrison, 2 Cowper, 565; N. W. Mutual Life Ins. Co. v. Elliott, 5 Fed. Rep. 225; National Life Ins. Co. v. Minch, 53 N. Y. 144; Gaines v. Miller, 111 U. S. 395; Merryfield v. Wilson, 14 Texas, 224; Michigan v. Phenix Bank, 33 N. Y. 9.

The fraud in this case consisted in obtaining by wrongful means a judgment that William A. Hunter had died, thereby rendering the plaintiff liable to Mrs. Smythe. Whether he had so died was the question directly in issue in the action at law, and the verdict and judgment therein are conclusive between the parties and privies, save upon such direct or collateral attack as may be permissible under the circumstances. Bigelow on Estoppel, 90; Outram v. Morewood, 3 East, 346; Hazen v. Reed, 30 Michigan, 331; Monks v. McGrady, 71 Texas, 134; McGrady v. Monks, 20 S. W. Rep. 959.

The Federal courts and the courts of all the States in which the various defendants reside agree in holding that a judgment cannot be collaterally attacked for fraud. Christmas v. Russell, 5 Wall. 290; Peninsular Iron Co. v. Eells, 68 Fed. Rep. 24; K. C., Ft. S. & M. K. Co. v. Morgan, 76 Fed. Rep. 429; Lake County v. Platt, 79 Fed. Rep. 567; Maddox v. Summerlin, 92 Texas, 483; Anderson v. Anderson, 8 Ohio St. 109; State v. Ross, 118 Missouri, 23.

The defendants Clark, Culberson, Spoonts and Phillips Investment Company are all privies to the judgment by assignment of interests in its subject-matter, and are protected by it to the same extent as Mrs. Smythe. Bigelow on Estoppel, 142-149; 2 Black on Judgments, §§ 549-550; Lake Co. v. Platt, 79 Fed. Rep. 567; Porter v. Bagby, 50 Kansas, 412.

Therefore as to all the defendants equitable relief is necessary and proper in the case, if the facts are sufficient, as they are, to warrant interfering with the judgment.

When property has been obtained by fraud, its true owner

Argument for Appellant.

203 U. S.

may recover it from any person except a bona fide purchaser for value, without notice. Buller v. Harrison, 2 Cowper, 565; Thurston v. Blanchard, 22 Pickering, 18; Devoe v. Brandt, 53 N. Y. 462.

The exception relates only to those kinds of property whose purchasers for value are protected by the policy of the law from equities outstanding against their vendors of which they had no notice. A judgment is not such property. The assignee of a judgment takes it subject to all equities existing between the litigants, whether he had notice of the same or not, and regardless of the consideration paid therefor. 2 Black on Judgments, §§ 953 and 955; 1 High on Injunctions, § 190; Taylor v. Nash. & Chat. R. Co., 86 Tennessee, 228; Blakesley v. Johnson, 13 Wisconsin, 592; Rock Rapids v. Schreiner, 46 Iowa, 172; Rea v. Forrest, 88 Illinois, 275; Northam v. Gordon, 23 California, 255; Weber v. Tschetter, 1 S. D. 205; Ellis v. Kerr (Tex. Civ. App.), 23 S. W. Rep. 1050 and 32 S. W. Rep. 444; Wright v. Treadwell, 14 Texas, 255; Thresher Mfg. Co. v. Holz, 10 N. D. 16; Brisbin v. Newhall, 5 Minnesota, 273; McJilton v. Love, 13 IHinois, 486; Wright v. Levy, 12 California, 257; Jeffries v. Evans, 6 B. Mon. 119; Devoll v. Scales, 49 Maine, 320; Padfield v. Green, 85 Illinois, 529; Mulford v. Stratton, 41 N. J. Law, 466; Magin v. Pitts, 43 Minnesota, 80; Brewing Co. v. Hansen, 104 Iowa, 307; Ricaud v. Alderman, 132 N. Car. 6; Frankel v. Garrard, 160 Indiana, 209.

As to policies of insurance and orders drawn against specific funds see 1 May on Ins., § 386; Joyce on Ins., § 2326; 7 Cyc. 578; 3 Pomeroy's Eq. Jurisp., § 1280 et seq; Bank v. Yardley, 165 U. S. 634; Brill v. Tuttle, 81 N. Y. 454.

The appellees hold under assignments.

Appellees' position that the assignments can be ignored, and the case be dealt with as if the facts were that Mrs. Mettler collected the amount of the judgment obtained by her against the insurance company, and then paid to her attorneys the fees owing by her to them for their professional services cannot be maintained. No portion of the avails of the judg