Page:Federal Reporter, 1st Series, Volume 1.djvu/368

 s 60 JPBDIiBAIi BEFORtSB. �assignment of a demand, negotiable or non-negotîable, is for the pujpose of having the same adjadicated in a United Statea court, there is a fraud on the jurisdiction of the latter court, Such a. question should bave been presented by a plea in abatement. This case furnishes an apt illustration. The time of counsel and court has been occupied for a long period on the merits of thia controversy, when, if a plea in abate- ment had been interposed, a f ew hours might have sufficed for its determination. If the court, through issues made by pleas in abatement, or in bar, had ascertained that no jurisdiction exists, its judgment would be dismissed without pasaing on the merits. There are, however, no issues in this case under ■which evidence of the kind, to defeat the jurisdiction, can be received. There is no time ai command to analyze the varied learning on the subject, and the deeided cases to which the learned counsel have referred. A few are referred to in a note to this opinion. If practicable, a special finding -would bave been made as to each count ; but this opinion will clearly show the conclusions reaohed and the grounds on which the decision rests. �Nwm.—Conrad v. The Atlantic Ins. Go. 1 Pet, 450; VeWolf v. Babnnd, 1 Pet. 476 ; 8i?ns v. Hundley, 6 How. 1 ; Bailey v. Dozier, 6 How. 1 j Smith V. Effrnschen, 7 How. 198. This covers the whole grouad on the juris- dictional question. �Sheppard v. Graves, 14 How. 505 ; Jotiea v, League, 18 How. 76. These cases discuss the question at great length, both as to pleadingsand colora ble assigmnents. �Dred Scott v.Sandford, 19 How. 393. This case seems to have held, though by a dlvided court, that, whether the want of jurisdiction appeared through a plea in abatement or in bar, the judgment of the court raust be a dismissal, and not a judgment on the merits. In the case on trial there is no plea, either in abatament or in bar, under which the question can arise ; or, in otlier words, there is no issue in which any evidence on the jurisdictional point could be admitted. Subsequently there was the case of Spencer v. Lapdey, 20 How. 264, in which no reference was made to the Dred Scott case, but in which It was held that pleas in abatement and in bar, at the same time, were irregular. �Thompson v. Bailroad Oompanies, 6 Wall. 134, does not establish a difler- ent rule. That states proceedings in a court of equity — an old and familiar rule — and refers to the Ohio statute as to actions at law In Missouri the real party in interest, or a trustee of an expreaa k.-ust, may sue. ��� �