The Steamer New Philadelphia.

ticulars which the witness was offered to prove, that the court might have compared it with what had been already proved by the other witnesses of the respondents, to enable the court to determine whether it was independent or only cumulative proof.

As to the other exceptions to the sum reported by the referee, they were fully considered by the circuit judge who tried the appeal. They were rightly passed upon by him, and this court particularly instructs me to say, notwithstanding that the exceptions were properly taken and argued in the Circuit Court, that the subsequent admission of the report, in the aggregate, by the counsel, even though that was only with the intention. to give this court jurisdiction, shall not be reduced here by denying it in detail for the purpose of taking it away.

Our conclusions in this case are, that the ebb tide was running strong when the steamer crossed it in going from the North into the East river, and that in making the Atlantic dock allowances were not made for the strength of the tide, so as to reach it with proper care and skill, and that the collision and sinking of the Owen Gorman were the results of her having been brought, by the steamer's fault, into collision with the sloop and the fender which was put out to ward off an impending blow, and the heavy pressure upon her by the steamer and the loaded barges which she had at that moment in tow. That, putting out the fender for such a purpose was no fault upon the part of the sloop, then lying fast at the dock; and, if there was any fault in doing so from the kind of fender which had been used, the rule of law is, that when a third party has sustained an injury to his property from the co-operating consequences of two causes, though the persons producing them may not be in intentional concert to occasion such a result, the injured person is entitled to compensation for his loss from either one or both of them, according to the circumstances of the incident, and particularly so from the one of the two who had undertaken to convey the property with care and skill to a place of destination, and there shall have been, in doing so, a deficiency in either.

The testimony in the case given by the libellant shows that

Clark vs. Hackett.

the Owen Gorman was tight, staunch, and strong at the time of the collision at the Atlantic dock; that, from the time of its happening and of the sinking of the barge did not exceed one hour, and that she sank in twenty minutes after she had been cast off by the steamer at her place of destination, and that there had been no collision between the barge and anything else while being towed to it by the steamer, nor any at that place, to justify a conclusion that the injury sustained by the barge had been occasioned there or anywhere else than at the Atlantic dock, in Brooklyn, and in the manner as it has been described by the libellant.

Decree of the Circuit Court affirmed with costs.

CLARK US. HACKETT.

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 diimnution of the record, and moved for a certiorari on affidavits, which accounted for the delay.

Clark vs. Hackett.

The Appellee (a counsellor 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. Hackett argued it for himself.

No counsel appeared for appellant.

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 creditors' 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

Clark vs. Hackett.

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 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.

Hager vs. Thomson et al.

HAGER VS. THOMSON ET AL.

1. If one of the stockholders of a corporation agrees to sell out his shares to the others for such price as a fair examination into the condition of the company may show the stock to be worth, he is entitled to have the investigation which he has bargained for.

2. If any fraud or deception is practised upon the stockholder which induces him to transfer his shares for less than they are worth, he may be relieved in a court of equity.

3. But the burden of proving the charge of fraud is upon him who makes it, since fraud cannot be presumed in a court of equity any more than in a court of law.

4. Where an account is settled by parties themselves, and where there is no unfairness, and where all the facts are equally well known to both sides, their adjustment is final and conclusive.

5. Where the case is between vendor and vendee, the rights of the parties must be measured by the terms of the agreement under which the sale and purchase were made.

John D. Hager brought his bill in the Circuit Court for the district of New Jersey against John R. Thomson, Edwin A. Stevens, James Neilson, and the said John R. Thomson, Edwin A. Stevens, James Neilson, Robert F. Stockton and Richard Stockton, trustees of the New Brunswick Steamboat and Canal Transportation Company. The material averments of the bill are substantially as follows:

The complainant was the owner of seven and two-thirds shares of the capital stock of the New Brunswick Steamboat and Canal Transportation Company, a corporation of the State of New Jersey, created by law in the year 1831; and as a stockholder in the corporation he filed his bill in the Court of Chancery of the State of New Jersey against Thomson, Stevens and Neilson, three of the present defendants, charging them with divers breaches of trust and frauds in the management of the company's business, and praying for an account and other relief. The bill was answered and a replication filed. But before all the witnesses were examined the defendants