question was one of general commercial law and jurisprudence and the case was decided upon a demurrer.2

It seems that it can not be attacked because it is against the policy of the forum,3 unless it was a judgment for a penalty.4 Where a motion by a mortgagor in a State court to set aside a foreclosure sale was denied it was held: that the decision could not be reviewed collaterally by the Federal courts, although it was contended that a question under the Federal Constitution was involved. An order, judgment or decree of a State court in a suit instituted subsequent to the beginning of that in a court of the United States is not res adjudicata. Where a suit was first instituted the decree therein is conclusive although not entered until after the pendency of that in which it is pleaded or offered in evidence.7

The judgment of a State court has no greater weight as res adjudicata, than would be given to the same by a State tribunal.8

§ 186e. Reciprocal effect as adjudications of judgments of courts of law and of equity. A judgment at common law is a bar to a bill in equity, based upon the facts there pleaded or offered in evidence; unless a matter is pleaded in equity, of which the former court could not have taken cognizance.1 A judgment for nominal damages, in an action at law for a breach

A., 129 Fed. 240; Susquehanna Coal Co. v. Mayor, etc., of South Amburg, 184 Fed. 941; Chinn v. Foster-Milburn Co., 195 Fed. 158; Converse v. Stewart, C. C. A., 197 Fed. 152. 2 Fuller v. Hamilton County, 53 Fed. 411; De Bekker v. Frederick A. Stokes Co., 248 Fed. 838.

8 Beal v. Carpenter, C. C. A., 235 Fed. 273.

4 Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 27 L. ed. 656; Huntington v. Attrill, 146 U. S. 657, 667, 13 Sup. Ct. 224, 227, 36 L. ed. 1123; Interstate Savings & Trust Co. v. Wyatt, 1 Colorado App., April, 1915, 147 Pac. 444.

5 Queens Land & Title Co. V. Kings County Trust Co., 255 Fed.

222.

6 Blydenstein v. N. Y. S. & Tr. Co., 59 Fed. 12; Sharon v. Terry,

1 L.R.A. 572, 36 Fed. 337, supra. $$ 52, 57. Contra, Case v. Mountain Timber Co., 210 Fed. 565. See Insurance Co. v. Harris, 97 U. S. 331, 24 L. ed. 959.

7 David Bradley Mfg. Co. v. Eagle Mfg. Co., C. C. A., 57 Fed. 980; S. C., 58 Fed. 721.

8 Union & Planters' Bank V. Memphis, 189 U. S. 71, 47 L. ed. 712; Covington v. First Nat. Bank, 198 U. S. 100, 49 L. ed. 963; Glencoe Granite Co. v. City Tr., S. D. & S. Co., C. C. A., 118 Fed. 386; John D. Park & Sons Co. v. Bruen, 139 Fed. 698; Harrison v. Remington Paper Co., C. C. A., 3 L.R.A. (N.S.) 954, 140 Fed. 385, 5 Ann. Cas. 314.

§ 186e. 1 Commercial Union Assur. Co., L'd.v. N. J. Rubber Co., 64 N. J. Eq. 338, 51 Atl. 451;

of contract, was held to be not a bar to a suit for specific performance. A final decree on the merits in equity is a bar to further litigation between the same parties in a court of law as to the same subject-matter.3 A dismissal in equity because the case is not within equitable jurisdiction is not a bar to any action or defense at law; but a judgment or decree sustaining a demurrer upon the merits to a bill or complaint must be followed at law.5

§ 186f. Res adjudicata by extra-territorial proceedings. In the absence of statutory authority, a decree of a State court of equity is void which declares to be invalid a conveyance of land beyond its jurisdiction, but does not direct a reconveyance; and such a decree does not bind a court within the jurisdiction of which such land is situated. So, it has been held, is a decree. foreclosing a mortgage upon and selling property beyond the territorial jurisdiction, unless it compels the mortgagor or the trustee of the mortgage to execute a conveyance to the purchaser.2

§ 186g. Effect as res adjudicata of judgments in rem. A domestic or foreign judgment in rem adjudicating the title to land or to a ship or to other movable property within the custody of the court, is in the absence of extraordinary circumstances,1 conclusive, and will not be re-examined; 2 unless there was such a failure of notice or disregard of the rules of justice as to make the proceedings not due process of law.3

Slaughter v. La Compagnie Francaise, 113 Fed. 21.

2 Sperry & Hutchinson Co. v. Blue, State Tax Com'r, 202 Fed. 82; Chicago & A. Ry. Co. v. Pressed Steel Car Co., C. C. A., 243 Fed. 883.

3 Fuller v. Hamilton County, 53 Fed. 411; Old Dominion Copper Min. & Smelt. Co. v. Lewisohn, C. C. A., 202 Fed. 178.

4 Murray v. City of Pocatello, 226 U. S. 318, 57 L. ed.; Cramer v. Moore, 36 Ohio St. 471.

5 Fuller v. Hamilton County, 53 Fed. 411.

§ 186f. 1 Carpenter

V. Strange,

141 U. S. 87, 35 L. ed. 640. But see Eq. Rule 8.

2 Lynde v. Columbus, C. & K.

Ry. Co., 57 Fed. 993; Farmers' L. & Tr. Co. v. Postal Tel. Co., 55 Conn. 334, 3 Am. St. Rep. 53, s. c., 11 Atl. 184; Mercantile Tr. Co. v. Kanawha & O. Ry. Co., 39 Fed. 337. But see Muller v. Dows, 94 U. S. 444, 24 L. ed. 207, supra, § 64, infra, $399.

§ 186g. 1 See Windsor V. MeVeigh, 93 U. S., 274, 23 L. ed. 914.

2 The James G. Swan, 106 Fed. 94; Williams v. Armroyd, 7 Cranch, 423, 432, 3 L. ed. 392, 392; Hudson v. Guestier, 4 Cranch, 293, 2 L. ed. 625; Hilton v. Guyot, 159 U. S. 113, 167, 40 L. ed. 95, 109.

3 Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914.

§ 186h. Effect of adjudication of mental incompetency. An adjudication of mental incompetency is in the nature of a proceeding in rem. It is conclusive and can not be collaterally attacked in any proceeding affecting property in the jurisdiction, and if the alleged incompetent was domiciled within the State, it seems, nowhere, so far as his right to freedom from restraint is concerned. The proper remedy is an application to the court which committed him to set its decree aside.1

§ 1861. Effect of adjudication as to custody of a child. It has been held that the decree of a foreign court awarding the custody of a child is not conclusive, but is a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it.1

§ 186j. Effect of adjudications in bankruptcy proceedings. An adjudication in bankruptcy is, so far as regards the admintration of the property, good against all the world.1

An adjudication of involuntary bankruptcy upon a petition charging that a conveyance was an act of bankruptcy does not estop the grantee in a suit to set aside the conveyance from denying his knowledge that a preference was intended and any fraud on his part.2

An adjudication of the bankruptcy of a partnership is not res adjudicata as to the existence of the partnership against parties who are not heard even if they appeared therein.3

The dismissal of a petition of involuntary bankruptcy, which charges that the respondents are partners with a man who had been previously adjudicated a bankrupt, when no issues were tried, was held not to be a binding adjudication upon the question of such partnership.*

§ 186h. 1 Challoner v. Sherman, C. C. A., 215 Fed. 867. But see Gasquet v. Fenner, 235 Fed. 997.

§ 1861. 1 People ex rel. Allen v. Allen, 105 N. Y. 628; Morrell v. Morrell, 83 Conn. 479, 77 Atl. 1; Woodworth V. Spring, 4 Allen (Mass.) 321; Hanrahan v. Sears, 72 N. H. 71, in all of which the decree was followed; Ex parte Stewart, 137 N. Y. 202, in which the decree was not followed.

§ 186j. 1 Manson V. Williams, 213 U. S. 453, 53 L. ed. 869. See infra, §§ 636-639. Ward v. Central Trust Co. of Ill., 261 Fed. 344.

2 Gratiot County State Bank v. Johnson, Trustee, 249 U. S. 246, 39 Sup. Ct. 263, 63 L. ed. 587; Ward v. Central Trust Co. of Ill., 261 Fed. 344.

3 Ibid.

4 Re Bean, C. C. A., 230 Fed. 405.

A decree confirming a composition which relieves a special partner from further liability and dismisses a petition to have him declared a general partner does not estop those who have not appeared nor proved a claim in the bankruptcy proceedings nor assented to the composition, from suing him as a general partner, upon proof of fraud, discovered after the decree; although they have paid on a claim made against them for the estate in bankruptcy, and defended an action upon another claim.5

A discharge by a State court of a receiver appointed under a chattel mortgage, the ground of discharge being that the bankrupt was solvent, is not res adjudicata, or binding, upon the trustee in bankruptcy, or creditors not parties to the suit, which will prevent an action to recover from the chattel mortgagees a preference received upon an execution sale a few days after the receiver was discharged."

An order or judgment of a Referee in Bankruptcy disallowing a claim upon the ground that the claimant has received a preference is res adjudicata in a subsequent suit by the trustee to recover the preference. An order or judgment of a Referee in Bankruptcy denying the right to recover from the trustee the amount of a check deposited by a stranger in proceedings for a composition, is res adjudicata in a subsequent suit against the trustee to recover such deposit. An order or judgment by the Referee dismissing a claim for reclamation because the vendor by accepting a guarantee of payment had waived its right to reclaim the property was held not to preclude a claim by the guarantor to retake the property because it had been subrogated to the rights of the seller. A judgment allowing a claim for reclamation does not estop a party from enforcing a lien upon the property claimed.10

A decree in a suit by a Receiver in Bankruptcy against certain creditors which set aside a trust deed intended as a general assignment was held to bind the trustee who had publicly par

5 Pell v. McCabe, 250 U. S. 573. 6 Golden Hill Distilling Co. V. Logue, C. C. A., 243 Fed. 342.

7 Ullman, Stern & Krausse v. Coppard, C. C. A., 246 Fed. 124.

Fed. Prac. Vol. I-68

8 Coen v. James, 164 App. Div. (N. Y.) 419.

9 Re Aboudara, 246 Fed. 469. 10 Re Jamison Bros. & Co., C. C. A., 227 Fed. 30, 35.

ticipated in the defense.11 It was further held that creditors who had not accepted the trust deed had no standing to attack the decree.12 Creditors who had accepted the deed were bound by the adjudication against the trustee.13

§ 186k. Res adjudicata by order in special proceeding. The effect of a final order in a special proceeding is governed by the same rules that apply to a final judgment. Thus an order granting a writ of mandamus or prohibition against a public officer binds his successor in office. Questions decided upon the issue of a mandamus to compel the payment of judgments were held to be res adjudicatae upon an application to enforce a later judgment, so far as concerned the balances of the former judgments therein included, but not as to the other claims. It was held that, upon an application for a mandamus to compel the levy of funds to pay a judgment, a statute of limitations which had not been pleaded in the action resulting in the judgment, could not be set up as a defense.*

An order denying an application for an intervention is no bar to an original bill filed by the petitioners,5 but it has been said that it is res adjudicata against a bill in equity to enjoin the proceedings and to permit the intervention.6

A decree of deportation, rendered by a United States Commissioner, was held to be an adjudication in rem, binding in a criminal prosecution against a stranger to the proceeding.7

An order denying an application for naturalization is an adjudication that the defendant is not qualified for citizenship which bars a second application until he can prove that since the

11 Dashiell, C. C. A., 246 Fed. 366. See infra, § 186y.

12 Ibid.

13 Ibid.

§ 186k. 1 Police Jury of Jefferson County v. U. S. ex rel. Fisk, 60 Fed. 249; Ransom v. Pierre, C. C. A., 101 Fed. 665.

2 Bank of Kentucky v. Stone, C. C. A., 88 Fed. 383, 395, 398.

3 Police Jury of Jefferson County v. U. S. ex rel. Fisk, 60 Fed. 249. See infra, §§ 186t, 457, 459.

4 Bunch v. U. S., C. C. A., 252 Fed. 673.

5 Credits Commutation Co. v. U. S., 177 U. S. 311, 44 L. ed. 782; Securities Tr. Co. v. Bank of Bernice, C. C. A., 239 Fed. 665. See Manhattan Tr. Co. v. Sioux City & N. R. Co., 102 Fed. 710, infra, § 259.

6 McDonald v. Seligman, 81 Fed. 753.

7 U. S. v. Hills, 124 Fed. 831. See ex parte Wong Wing, 220 Fed. 353.