In 1876, the federal government filed a petition in the district court, naming him and the other landowners, with Throckmorton as the lead defendant, asking to have the land claim invalidated on the grounds that it had been fraudulently obtained.

After a judgement against him for breach of contract, the man had learned that the plaintiff had arranged a fictitious salt sale with one of his witnesses at a price over market value in order to win a higher damage award.

Again, he noted that the government had offered no proof that Howard's supposed failure to inform the courts of the falsification of the decree and the perjury supporting it had come from any deliberate intent on his part, which if it had might have allowed relief.

[13] A copy of a bond attached to the record, but unmentioned within it, signed by some private individuals and holding the federal government harmless, did say that the Attorney General had authorized Van Dyke to bring the action.

As part of the record, the Seventh Circuit had submitted the entire case, which, Chief Justice Melville Fuller wrote, put the Supreme Court in a difficult position.

[34] Eight years later, after investigating in Pawtucket more thoroughly, Toledo found evidence to back up its earlier claims, such as Computing having purchased most of the extant Phinney scales as it could and induced witnesses to remain silent.

[37] The court accepted the fraud allegations as true, noting that "though less iniquitous than the affirmative use of forged documents, false exhibits, and perjured' testimony, [they run] counter to one’s sense of ideal fair play."

"[44][f] Judge John Biggs Jr., in dissent, disputed the majority's finding that the Clarke article had not had much of an impact on the 1932 decision; if it had not, he asked, why had Buffington quoted from it so liberally, and would he have done so if he had been aware of its true origins?

"If I am correct in my conclusions, Hazel-Atlas, lacking competent proof of the fraud, in its petition for rehearing would have had to have made serious charges against Hartford-Empire and three of its counsel basing its allegations on hearsay evidence which it had been unable to substantiate", Biggs wrote.

"Every element of the fraud here disclosed demands the exercise of the historic power of equity to set aside fraudulently begotten judgments", Justice Hugo Black wrote for a five-justice majority.

[57] Another law review article pointed out that in Wisconsin, where the state supreme court rejected the Throckmorton rule,[61] it had since heard only four cases seeking new trials on the ground of perjured evidence.

He again quoted at length a Columbia Law Review article taking note of the "hazy region of uncertainty" between Throckmorton and Marshall, saying that as long as courts are free to pick and choose between them, "there will be no federal rule at all."

In denying a motion to vacate a naturalization obtained through alleged misrepresentation, Judge Emile Henry Lacombe noted that in another recent case which turned on the same issue,[66] after the circuit had cited Throckmorton without writing an opinion to uphold the district court's denial of review, the appellant twice petitioned the Supreme Court for certiorari, both times with briefs citing the unresolved issues between the two cases, and was denied both times.

[69][j] In 1942, three years after Publicker, the Fourth Circuit affirmed Throckmorton in Aetna Casualty & Surety Co. v. Abbott, citing Hilton v. Guyot and Toledo Scale as supporting precedent.

"[75] In 1986 the circuit's chief judge, John Joseph Gibbons, was particularly dismissive of that distinction, saying it "was overruled, if it was ever the law, by Marshall v. Holmes" and that it "probably would not in any event survive Erie Railroad v. Tompkins and Guaranty Trust Co. v. York, at least with respect to judgments in diversity cases."

He filed the instant habeas petition, arguing not only his original case but that the rehearing should never have been granted as the prosecutors had had a fair chance to discredit his testimony as to Dyer's presence and thus that issue was res judicata.

Judge Andrew Hunter Boyd wrote for a unanimous court affirming lower-court rulings in favor of the employee, on the grounds that the company could have easily discovered the truth before trial and confronted Marney and his witnesses with it but did not.

[93] In 1974 the Schwartzes, alleging a conspiracy among the respondents, asked the Court of Appeals to reconsider Maryland Steel and how the Throckmorton rule, as adopted then, might be affected by Marshall, citing specifically Shammas.

[100] Given Hagedorn's difficulties with the language, "he could not be expected to anticipate that the case would be heard without notice to him and a judgment rendered against him for damages in a very substantial amount for which he was in no way liable", Smedley argued.

[103] Oxner distinguished the instant case by noting that the petitioner, as defendant, had known before trial who the witnesses against him were and what they would be testifying to, affording him ample opportunity to attack their credibility and materiality at the time.

Brennan announced that New Jersey's courts would go further than Federal Rule 60(b) in allowing equitable relief for either intrinsic or extrinsic fraud, as long as it could be well-supported, without any time limit: The notion that repeated retrials of cases may be expected to follow the setting aside of judgments rendered on false testimony will not withstand critical analysis.

[108] Extrinsic fraud "perpetrates an abuse of judicial process by preventing an adversarial trial and/or impacting the jurisdiction of the court [and] ... is normally collateral to the issues tried in the case in which the judgment is rendered", Leahy concluded.

[109] In 1949, the New Hampshire Supreme Court held that the distinction between intrinsic and extrinsic fraud did not matter in divorce cases as that area of law "is governed by general equitable considerations.

"[117] But in a 1916 survey of courts throughout the U.S., Britain and Canada regarding fraud-based attacks on judgements in the University of Pennsylvania Law Review, Graham Woodward called Throckmorton "particularly well considered and worthy of the most careful thought".

[118] Judge Clark also cited a 1921 commentary in the Columbia Law Review that was among the first to note the conflict between Throckmorton and Marshall: "The Supreme Court of the United States, to show its utter impartiality, has ruled both ways, and left the spectacle of two cases, one of which holds that false evidence is ground for reversal, the other that it is not, both of which have been followed, and neither of which has been overruled."

On the other hand, if a party could have known of the fraud, and had a thorough opportunity to investigate the matter and through his own fault an adverse judgment was rendered, no relief should be availableWagner argued that Hazel-Atlas indicated at the very least an intention to broaden the scope of Throckmorton; in his opinion, it had applied Marshall.

"[129] Two widely-cited books on federal civil procedure have also criticized the lack of clarity from the Supreme Court on whether Throckmorton or Marshall controls, and the ensuing difficulty of distinguishing intrinsic and extrinsic fraud.

Charles Alan Wright and Arthur R. Miller's 55-volume Federal Practice and Procedure calls the authorities "clouded and confused" and notes that there seem to be three results: " some lower courts appl[y] the Throckmorton rule, others [give] it `token recognition,' and others reject[] it altogether.

[131] In 2011 Texas Tech law professor Dustin Benham wrote that the Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly[132] and Ashcroft v. Iqbal[133] could allow for the elimination of the intrinsic-extrinsic distinction through heightened standards for the pleading of fraud.

[137] Sidney Powell, Lin Wood and several other lawyers representing voters who had supported Trump cited Throckmorton in a case they brought in the Eastern District of Michigan against Democratic governor Gretchen Whitmer.