Page:Federal Reporter, 1st Series, Volume 2.djvu/464

 MATTOCKS V. BAKER. 457 �become due; and, bo far as îs disclosed, the same principles of law would control the decision of the circuit court as would have been administered if the case had been tried in the state court. Baker's rights would have been equally assured to him in one court as the other, and the court cannot discover in what manner any fraud has been practiced upon him by the action being instituted in the circuit court. �From the testimony it is quite certain that Jacob G. Baker ■was fuUy advised about these proceedings, and that the suit against him was to be commenced for his wife's benefit before the circuit court in the name of Sunderland. No steps were taken by Baker to prevent this course. He might easily have defeated it if he had chosen so to do, but on the contrary he assented thereto, if he was not the originator and promoter of the purpose, and he cannot, therefore, in any sense, claim to have been the victim of any fraud by jurisdiction thus obtained. Consensus tollet errorem. �But.it is saidjif these proceedings did not in any way defraud Baker, they were a fraud upon the circuit court, and that juris- diction was thereby devolved upon that court, andit was made to assume jurisdiction, and pass upon the rights of parties when they were both citizens of Maine, and that, within the �principles of Barney v. Baltimore, 6 Wall. , a fraud was �practiced upon the court. It is sufficient to say that the course here adopted does not meet with the approval of the court ; and, if the objection had been properly taken at the right moment, the circuit court would not have assumed juris- diction thus improperly thrust upon it. In that case it is said that when there is a fictitious transfer of property, the grantor retaining ail his real interest, and the deed being made merely to give jurisdiction, the court will not, under sueh circumstances, give effect to what is a fraud upon the court, and is nothing more. �The fraud, therefore, in such a case, according to this opinion, is practiced upon the court, and not upon the bank- rupt. This objection was one which, so far as the rights of the bankropt are involved, he could waive or assert as he should think best, and, if he intended to rely upon it, should, by ����