Opinion of the Court.

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of the original payee. Turner v. Bank of North America, 4 Dall. 8, 11; Montalet v. Murray, 4 Cranch, 46; Gibson v. Chew, 16 Pet. 315, 316; Coffee v. Planters' Bank of Tennessee, 13 How. 183, 187; Morgan's Executor v. Gay, 19 Wall. 81, 82. There were these recognized exceptions to that general rule in its application to promissory notes: 1. That an endorsee could sue the endorser in the Circuit Court, if they were citizens of different States, whether a suit could have been brought or not by the payee against the maker; for the endorsee would not claim through an assignment, but by virtue of a new contract between himself and the endorser. Young v. Bryan, 6 Wheat. 146, 151; Mullen v. Torrance, 9 Wheat. 537, 538. 2. The holder of a negotiable instrument payable to bearer or to a named person or bearer could sue the maker in a court of the United States, without reference to the citizenship of the original payee or original holder, because his title did not come to him by assignment, but by delivery merely. Bank of Kentucky v. Wister, 2 Pet. 318, 326;, Thompson v. Perrine, 106 U. S. 589, 592, and authorities there cited. There can be no claim that the present case is within either of those exceptions.

The authorities we have cited are conclusive against the right of the plaintiff to maintain this suit in the court below, unless it appeared that the original payee, Lamb, could have maintained a suit in that court upon the note and coupons. Consequently, it was necessary that the record should, as it does not, disclose his citizenship. Metcalf v. Watertown, 128 U. S. 586; Stevens v. Nichols, 130 U. S. 230; Crehore v. Ohio & Mississippi Railway, 131 U. S. 240, 243; Rollins v. Chaffee County, 34 Fed. Rep. 91. If it be true, as stated in an affidavit filed below, that Lamb was, at the commencement of the suit, a citizen of Nebraska, clearly the court below was without jurisdiction; for all the defendants are alleged to be citizens of that State.

There is another point in the case that requires notice. By an act of the legislature of Nebraska, approved February 23, 1875, it was provided: "1. Hereafter no stay of execution or order of sale upon any judgment or decree shall be granted for a longer time than nine months from and after the rendition.

Opinion of the Court.

of such judgment or decree. 2. The order of sale on all decrees for the sale of mortgaged premises shall be stayed for the period of nine months from and after the rendition of such decree, whenever the defendant shall within twenty days after the rendition of such decree, file with the clerk of the court a written request for the same; Provided, That if the defendant make no such request within said twenty days, the order of sale may issue immediately after the expiration thereof." 5. No proceedings in error or appeal shall be allowed after such stay has been taken, nor shall a stay be taken on a judgment entered as herein contemplated, against one who is surety in the stay of execution." Laws of Nebraska, 1875, p. 49; Compiled Stats. of Neb. 1885, p. 688, § 477.

The appellee moved to dismiss the appeal upon the ground that the above statute constitutes a rule of property in Nebraska, and that, as the appellants, within twenty days after the rendition of the decree, filed with the clerk below a written request that the sale be stayed for nine months from and after the decree, he is precluded from prosecuting this appeal, without reference to any question of the jurisdiction of the Circuit Court. This motion has been met with one by the appellants that they be permitted to execute a supersedeas bond, or that the action be dismissed for want of jurisdiction in the Circuit Court.

The motion to dismiss the appeal necessarily assumes that it was competent for the appellants by their acts, or by failing to act, to waive the question of the jurisdiction of the Circuit Court. This is an error. We said in Metcalf v. Watertown, above cited, that whether a Circuit Court of the United States had or had not jurisdiction in a case brought here, upon error or appeal, is a question that this court must examine and determine, even if the parties forbear to make it, or consent that the case be considered upon its merits.

As to the effect of the statute of Nebraska, it is only neces sary to say that it cannot be permitted, by its operation, to confer jurisdiction upon a Circuit Court of the United States, in contravention of the statutes defining and limiting its jurisdiction. Such would be the result in this case if, without

Syllabus.

determining the question of jurisdiction, the appeal be dismissed upon the ground that appellants, by accepting the provisions of the statute of Nebraska in respect to a stay of the sale, are estopped to appeal from the decree rendered against them. What would be the effect of that statute in its application to a case of which the Circuit Court of the United States, sitting in Nebraska, could properly take cognizance, we need not inquire.

The motion to dismiss the appeal is denied, and the decree is reversed, with costs against the appellee, and remanded with instructions to dismiss the bill for want of jurisdiction in the court below, unless the plaintiff, by leave of the court below, and within such time as it may prescribe, amends her bill so as to present a case within its jurisdiction.

CARPENTER v. STRANGE.

ERROR TO THE SUPREME COURT OF THE STATE OF TENNESSEE.

The objection that the record of proceedings in a court of record offered in evidence should not be received in evidence, on the ground that the transcript was incomplete, or was improperly authenticated, should be raised in the court below; and if not raised there cannot be taken here for the first time.

In an action in the Supreme Court of New York (the court having jurisdiction of the parties) between two sisters, the defendant being sued in her representative capacity as testatrix of her father's will, the matters in controversy were: (1) whether the plaintiff had accepted or rejected a provision made for her by her father's will; (2) whether she was entitled to recover from her father's estate an amount claimed to be due on account of a fund which came to him as trustee for her, and which he had never accounted for; and (3) whether a certain conveyance of real estate in Tennessee made by the father in his life-time to the defendant should be adjudged to be fraudulent, and be vacated. That court, after hearing the parties, adjudged (1) that the plaintiff had not accepted the provision so made for her; (2) that the plaintiff was entitled to recover the full amount so claimed; and (3) that the deed was absolutely null and void, from the beginning," so far as it affected the testator's said indebted

ness.

Statement of the Case.

A litigation in equity then took place in Tennessee, in which the plaintiff and defendant in New York were, respectively, plaintiff and defendant. There were other parties, whose presence was not material to the points here decided. This litigation resulted in the Supreme Court of Tennessee deciding: (1) That the plaintiff had elected to take the share so devised to her; (2) that having so elected she was not entitled to recover on her claim; (3) that the Supreme Court of New York was without power to adjudge the conveyance by the testator to the defendant of lands in Tennessee fraudulent and void, or to annul the same. Held:

(1) That this decree did not give to the judgment of the Supreme Court of the State of New York the full faith and credit to which it was entitled under the Constitution as to the 1st and 2d points so decided;

(2) That, as to the third point, the courts of New York had no power to decree that a deed of land in Tennessee was null and void.

IN 1857, William Newton Mercer conveyed certain lands in Illinois to Ayres P. Merrill, in trust for the latter's daughter, Anna M., to the sole and separate use of said Anna M., and the heirs of her body, free from the control, debts, liabilities or contracts of any husband she might have, with power in the trustee to sell and dispose of the same, in whole or in part, and reinvest the proceeds in either real or personal property, to be held for the same uses and purposes and upon the same trusts, and providing that in the event of the death of Anna M., leaving no surviving issue, the property so conveyed in trust or the proceeds thereof, should descend to her brother, William Newton Mercer Merrill, and be held by the trustee or his successor for the use and benefit of the said William upon the same conditions and trusts, with power of appointment.

A. P. Merrill sold and conveyed the lands described in the deed in 1861 and 1864, for an aggregate of $6200, but never accounted to said Anna M., or any one for her, for the amounts received and interest.

Anna M. subsequently intermarried with one Carpenter, now deceased.

A. P. Merrill had resided in Memphis, Tennessee, and subsequently became a citizen of the State of New York, where he died in November, 1873, leaving there some personalty and holding title at the time to a considerable amount of real

Statement of the Case.

estate in Memphis. In December, 1867, Merrill executed a deed to another daughter, Mrs. Strange, dated December 3, and acknowledged December 27, of lot 59, Madison Street, Memphis, without valuable consideration, and which was not recorded until December 27, 1873, after Merrill's decease.

In 1871 Merrill made his last will and testament.

By the first item, he bequeathed to Mrs. Carpenter a life estate in lot No. 98, Madison Street, Memphis "upon condition that she renounce all claim upon my estate for moneys accruing from the sale of a tract of land in Illinois conveyed to me in trust for her benefit by Dr. W. N. Mercer," and upon her decease or declining the condition, it was provided that the property be sold "for the benefit of the daughters then surviving of my several daughters."

By the second item he devised to Mrs. Strange lot No. 59, Madison Street, being the same lot described in the deed of December, 1867; and also all his personal property.

By the third item he bequeathed to Mrs. Strange certain moneys in trust for his grandchildren.

The fourth item was: "All other property may be sold for the benefit of my own children, equally, who may survive me."

By the fifth item he appointed Mrs. Strange sole executrix, without bond, and requested her to give to his son and three grandchildren certain specified articles.

Mrs. Strange was a citizen of New York, and there proved the will and qualified as executrix in February, 1874.

Shortly after the letters testamentary issued, Mrs. Carpenter, also a citizen of New York, brought suit in the Supreme Court of that State against Mrs. Strange, as executrix, for the recovery of the trust moneys.

The amended complaint alleged the decease of A. P. Merrill in December, 1873, testate; that Mrs. Strange was sole executrix; that the will was admitted to probate in February, 1874, a copy being annexed; set up the trust created in 1857 by Mercer; the sale by Merrill of the lands and the receipt of the money; charged that Merrill converted the money to his own use, and that it became absorbed in his business and