Public domain.- Reservation, for military purposes, of the quarter-section occupied by Fort Dearborn, near Chicago, part of the original cession of the Northwest Territory, constituted a legal apportionment of the land to public purposes, and exempted it from the rules as to the mass of public lands, p. 193.

Cited and principle applied in United States v. Baltimore, etc., R. R., 1 Hughes, 143, F. C. 14,510, upholding contract for right of way over Harper's Ferry reservation.

States' rights.- While the United States Supreme Court desires to sustain the rights of States, it is equally its duty to support the general government in the exercise of all which is plainly granted to it, and is necessary for the discharge of the powers intrusted to it, p. 194.

Cited and discussed in Van Brocklin v. Tennessee, 117 U. S. 161, 29 L. 849, 6 S. Ct. 676, holding property of the United States exempt from taxation by State authority.

Eminent domain.- Land within a State, held by the United States as a mere proprietor, and not appropriated to special uses, is subject to condemnation under the right of eminent domain, p. 194.

Cited and followed in Union, etc., K. R. v. Burlington, etc., R. R., 1 McCrary, 456, 3 Fed. 110, collecting cases and holding right of way of Union Pacific Railroad not Federal property set apart for its own use. Cited, arguendo, and cases collected, in Flint, etc., R. R. v. Gordon, 41 Mich. 428, 2 N. W. 653, holding right of way, granted by United States, cannot be defeated by homesteaders' subsequent patent.

Questioned in Van Brocklin v. Tennessee, 117 U. S. 161, 29 L. 849, 6 S. Ct. 676, holding property of United States exempt from taxation under State authority.

Dedication of streets may be made without deed by allowing land to be used as a public highway, or by selling lots according to a map showing streets contiguous, and for the accommodation of side owners, p. 196.

Cited with approval in Irwin v. Dixion, 9 How. 31, 13 L. 34, collecting cases and discussing principles of dedication of land to public uses; United States v. Illinois, etc., R. R., 2 Biss. 177, F. C. 15,437, holding record of map designating "public ground forever to remain vacant of buildings" a dedication to public use; Chicago, etc., R. R. v. McArthur, 53 Fed. 467, 10 U. S. App. 546, holding plot under which lots were sold proved existence of adjoining street crossing; Stone v. Brooks, 35 Cal. 501, and Carter v. Portland, 4 Or. 346, both holding street dedicated by sale of lots shown on map fronting it. See valuable note on partial deduction, 27 Am. Dec. 568. Cited in Evansville v. Evans, 37 Ind. 236, holding where acts in pais are relied on, lapse of time is unimportant.

7 How. 198-220

Notes on U. S. Reports.


Distinguished in Holly Grove v. Smith, 63 Ark. 9, 37 S. W. 957, holding dedication not established by record of map where land remained inclosed and cultivated; Gwynn v. Homan, 15 Ind. 202, collecting cases and holding land in question not within the rule; McCormick v. Baltimore, 45 Md. 524, holding the intent of the owner to dedicate the land is essential; Carter v. Portland, 4 Or. 345, collecting cases and holding there must be evidence of clear intention to dedicate; Pierpont v. Harrisville, 9 W. Va. 219, sustaining injunction to restrain the opening of streets where no dedication was made.

Dedication of streets is not accomplished where lots, having been sold according to a map, and the streets contiguous to the land sold are opened by an agent, merely protracting upon the plan, those streets into lands not sold but expressly reserved, p. 196.

Streets Dedication. Where a portion of a tract of United States land has been sold according to a plan expressly reserving another portion, and the streets have been opened through the portion sold, purchasers have no equitable ground of complaint that prolongations of those streets through the reserved land are not opened, even though a municipality or agent projected such streets upon the map, p. 196.

Cited generally in Illinois v. Illinois, etc., R. R., 33 Fed. 736, holding, where Fort Dearborn lands were sold, title to lots vested in purchasers, and of streets in Chicago.

7 How. 198-220, 12 L. 666, SMITH v. KERNOCHEN.

Federal courts. The assignment, for value, of a mortgage, to a citizen of a State other than that of the mortgagor, constitutes the assignee a bona fide purchaser, entitled to sue in the Federal court, even though the mortgagee's purpose in making the sale was to oust the State court of jurisdiction, unless knowledge of this purpose is brought home to the assignee, pp. 215, 216.

Cited and followed in Deshler v. Dodge, 16 How. 631, 14 L. 1088, holding eleventh section of judiciary act does not prohibit assigned suits for torts; Osborne v. Brooklyn, etc., R. R., 5 Blatchf. 368, F. C. 10,597, holding plaintiff's purpose in acquiring right of action does. not affect jurisdiction; Perrine v. Thompson, 17 Blatchf. 20, F. C. 10,997, sustaining suit on coupons though brought merely for purpose of bringing suit; Marion v. Ellis, 10 Fed. 412, where mortgage notes were transferred to give jurisdiction without agreement to return proceeds; Whiting v. Willington, 10 Fed. 815, holding Circuit Court has jurisdiction in action for possession by assignee of mortgage. Cited with aproval in Lehigh Mining, etc., Co. v. Kelly, 160 U. S. 349, 40 L. 452, 16 S. Ct. 316, dissenting opinion, majority holding reincorporation under laws of another State and sale by old to new corporation, collusive.

Distinguished in Hill v. Winne, 1 Biss. 277, F. C. 6,503, holding a mortgage is a chose in action under eleventh section of judiciary act; Clarke v. Janesville, 1 Biss. 101, F. C. 2,854, refusing jurisdiction of suit by foreign assignee of city bonds.

Federal jurisdiction is not required upon assignment of a mortgage to a nominal plaintiff resident in a foreign State, p. 216.

Cited and followed in Barney v. Baltimore, 6 Wall. 288, 18 L. 827, and Hawley v. Kepp, 2 Flipp. 178, F. C. 6,249, holding colorable transfer for purpose of giving jurisdiction defeats it; Farmington v. Pillsbury, 114 U. S. 143, 29 L. 116, 5 S. Ct. 809, and Lake County Comrs. v. Dudley, 173 U. §. 251, 19 S. Ct. 401, ordering dismissed collusive suit to give jurisdiction; Lehigh Min., etc., Co. v. Kelley, 160 U. S. 333, 40 L. 447, 16 S. Ct. 310, 64 Fed. 403, cases collected in refusing jurisdiction where Virginia corporation reorganized in Pennsylvania and sold to the reincarnated company; Barney v. Baltimore, 1 Hughes, 122, F. C. 1,029, holding conveyances without consideration, and with knowledge of purpose of giving jurisdiction, colorable; United States v. The Fideliter, 25 Fed. Cas. 1067, holding fraudulent nominal transfer of vessel to obtaining treaty privileges. Cited with approval in Jackson, etc., Co. v. Pearson, 60 Fed. 117, holding foreign assignee of railroad could not sue trustee in same State for bonds.

Distinguished in Manufacturing Co. v. Bradley, 105 U. S. 180, 26 L. 136, sustaining particular suit on equitable grounds; Blackburn v. Selma, etc., R. R., 2 Flipp. 538, F. C. 1,467, where suit was not collusive.

Objection to jurisdiction on the ground of residence must be taken by a plea in abatement, and is too late upon a trial on the merits, p. 216.

Cited and followed in Sheppard v. Graves, 14 How. 511, 14 L. 520, holding pleas in abatement are waived by pleading general issue; De Sobry v. Nicholson, 3 Wall. 423, 18 L. 264, holding objection to jurisdiction on residence of parties too late at trial; Richardson v. Mattison, 5 Biss. 31, F. C. 11,790, holding bill of discovery as to alleged colorable conveyance, too late after judgment; Holmes ▾ Oregon, etc., R. R., 7 Sawy. 392, 9 Fed. 238, holding jurisdiction established, if not controverted, by plea in abatement; Sharon v. Hill, 10 Sawy. 668, 26 Fed. 723, collecting cases and holding question of jurisdiction determined on plea in abatement; Gause v. Clarksville, 1 McCrary, 86, see note, citing cases, said to cover whole ground of jurisdictional question; Adams v. White, 1 Fed. Cas. 156, holding, where plea of jurisdiction is interposed, it must first be determined; Goodyear, etc., Co. v. Blake, 10 Fed. Cas. 646, holding, upon plea and trial on merits, defendant admitted plaintiff's capacity to sue; In re Groome, 1 Fed. 467, holding question too late nearly two years after adjudication in bankruptcy; Wittmore v.

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7 How. 198-220

Notes on U. S. Reports.


Malcomson, 28 Fed. 606, holding plea in abatement too late after jurisdiction admitted or plea in bar; Cuthbert v. Galloway, 35 Fed. 468, holding demurrer for want of jurisdiction under Code is plea in abatement; Imperial, etc., Co. v. Wyman, 38 Fed. 576, 3 L. R. A. 505, and n., holding, under Ohio statute, a plea to the jurisdiction must first be tried. Cited and expanded in Williams v. Nottawa, 104 U. S. 211, 26 L. 720, holding, where colorable transfer to confer jurisdiction appeared, court would, itself, dismiss suit. Cited in Rae v. Grand Trunk Ry., 14 Fed. 402, and Bland v. Fleeman, 29 Fed. 672, both holding, before act of 1875, objection could only be taken by plea in abatement.

Cited, arguendo, Lehigh, etc., Co. v. Kelly, 160 U. S. 353, 40 L. 454, 16 S. Ct. 317, in dissenting opinion, majority holding sale by a corporation, to a reincorporation in another State, colorable; in Van Antwerp v. Hulburd, 7 Blatchf. 442, F. C. 16,826, holding plea in abatement to jurisdiction not a submission to it; Jackson, etc., Co. v. Pearson, 60 Fed. 117, holding no Federal jurisdiction in suit to recover bonds by assignee of owner.

Distinguished in Missouri Pac. Ry. v. Meeh, 69 Fed. 755, 32 U. S. App. 691, 30 L. R. A. 252, holding rule abolished by section 5 of act of March 3, 1875, `making it duty of Federal courts to dismiss at any time.

Res judicata.- Judgment at law and a decree in equity both come within the rule that the judgment of a court of competent jurisdiction directly on the point is, as a plea, a bar, or as evidence, is conclusive between the same parties or privies upon the same matters, when directly in question in another court, p. 217.

Cited and followed in Johnson Co. v. Wharton, 152 U. S. 257, 38 L. 432, 14 S. Ct. 610, holding judgment on suit for royalties bars suit for others under same claims; Dowell v. Applegate, 152 U. S. 344, 38 L. 469, 14 S. Ct. 618, applying rule to suit for sale of lands to satisfy claims; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 687, 39 L. 862, 15 S. Ct. 735, collecting cases and holding judgment by default conclusive on essential matters; New Orleans v. Citizens' Bank, 167 U. S. 397, 42 L. 211, 17 S. Ct. 914, holding judgments exempting bank from taxes conclusive in suit for subsequent taxes; Southern Pac. R. R. v. United States, 168 U. S. 49, 42 L. 377, 18 S. Ct. 27, 28, holding rule applies even when second suit is for new cause of action; Murray v. Lovejoy, 2 Cliff. 201, F. C. 9,963, holding judgment against sheriff for property attached bars suit by attaching creditor; New Orleans, etc., R. R. v. New Orleans, 4 Woods, 5, 14 Fed. 376, holding decree free from ambiguity speaks for itself and is final; Strang v. Moon, 72 Ala. 465, and Tracy v. Shumate, 22 W. Va. 509, both holding decree in chancery as effective as judgment at law; Wales v. Lyon, 2 Mich. 282, holding judgment conclusive evidence in subsequent suit; Land v. Kevin, 52 Miss. 347, holding rule applies whether point necessarily determined was of law or

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fact; Garton v. Botts, 73 Mo. 276, holding final settlement of curator in probate same effect as judgment; Tilson v. Davis, 32 Gratt. 104, collecting cases and holding judgment a bar as to matters which might have been determined. See valuable notes on “estoppel by judgment,” 13 Am. Dec. 99, and on "conclusiveness of judgments in ejectment," 85 Am. Dec. 209.

Distinguished in Tyler v. Hyde, 2 Blatchf. 313, F. C. 14,309, holding dismissal of bill against junior patentee not adjudication of validity of patents; Boyle v. Wallace, 81 Ala. 355, 8 So. 195, holding judgment in ejectment not a bar to suit for personal property included in same conveyance.

Statutory construction.- Both under the thirty-fourth section of the judiciary act and the general rule of law, it belongs to State courts to expound their own statutes; and when thus expounded the decision governs in all cases depending on the local laws, p. 219.

Cited and followed in State v. Grand Trunk Ry., 3 Fed. 889, holding qui tam action for. personal injuries in nature of criminal action. Distinguished in Burgess v. Seligman, holding Federal courts in suits between citizens of different States must use their own judgment. But see note appended, collecting cases and discussing question, 107 U. S. 34, n., 27 L. 365, 2 S. Ct. 22.

7 How. 220-234, 12 L. 675, M’LAUGHLIN v. BANK OF POTOMAC. Appeal and error.- When an issue is sent by a court of equity to be tried by a jury, exceptions taken at the trial must be brought before the court of equity and there decided, in order to bring them before the appellate court for review, p. 227.

Cited and followed in Johnson v. Harmon, 94 U. S. 379, 24 L. 274, holding the verdict may or may not have been the ground of de


Fraudulent conveyances.— Question of whether or not conveyances were fraudulent was properly submitted to a jury. Fraud is often a question of mixed law and fact, and the jury can be instructed upon the law, p. 228.

Cited in Brooks v. Norcross, 4 Fed. Cas. 294, holding allowance of jury trial is discretionary, not a matter of right.

Fraudulent conveyances.- While a pre-existing debt is usually necessary to entitle a creditor to sue to set aside conveyances on the ground of fraud, a note held by a bank and renewed from time to time by the same maker and indorser, constitutes the bank such a creditor, although the note was not due when the conveyances were made, pp. 128, 129.

Cited and followed in King v. Doane, 139 U. S. 172, 35 L. 87, 11 S. Ct. 467, and Preston Nat. Bank v. Pierson, 112 Mich. 438, 70 N. W. 1015, holding mere renewal of note does not affect status of

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