Page:Federal Reporter, 1st Series, Volume 8.djvu/548

53e FEDKBAL BBPORTEB. �court quote with approval the following rule laid down by Shaw, C. J., in Greene v. Greene, 2 Gray, (Mass.) 361 : �" The maxim that fraud vitiates every proceeding must be taken, like all other general maxims, to apply to cases where proof of fraud is admissible. But where the same matter has been actually tried, or so in issue that it might have been tried, it is not again admissible. The party is estopped to set up such fraud, because the judgment is the highest evidence and cannot be con- tradicted." �See, also, the following authorities, cited by Mr. Justice Miller in same opinion: Dixon v. Graham, 16 lowa, 310; Cottle v. Cole, 20 lowa, 482; Borland v. Thorton, 12 Cal. 440; Biddle y. Baker, 13 lowa, 295 ; Railroad Go. v, Neal, 1 Wood, 353. �The demurrer must be sustained, with leave to complainants to ameud, if counsel thinks he can bring the case within the prineiples announced in this opinion. ���CoE V. The Cayoqa Lake E. Co. and another. �(Circuit Court, N. D. New York. August 15, 1881.) �1. AcT OF March 3, 1875, ^ 1, Construed— Jurisbictioit of tue Circuit Court— Promissort Note dndbr Bbal— New Tkial. �A corporation executed its promissory note, payable to the order of ita pres- ident, attaching thereto, before delivery, its corporate seal. After having been indorsed by him, it was discounted by a citizen of the same state and assigned to a citizen of another state, who brought an action against both maker and indorser. Held, on a motion for a new trial, that, under section 1 of the aot of March 3, 1875, the circuit court had no jurisdiction �George F. Comstock, for plaintiff. �William F. Coggwell, for defendant Morgan. �Blatchford, C. J. This suit was brought against the Cayuga Lake Railroad Company as maker, and the defendant Morgan as indorser, of two instruments in writing which the complaint calls promissory notes. Each defendant answered separately. At the trial, before the court and a jury, the plaintif! had a verdict for $30,787.89, The defendant Morgan now moves for a new trial, on a bill of ex- ceptions made by him. The instruments were alike in form, except that one was payable five months after date and the other six months after date. The form was this : ��� �