hold his confederates in the fraud accountable as trustee for his benefit.

My brethren concur in the conclusions above stated (but) a majority of the court are of opinion that the decision of the chancellor was upon a question of practice, which is not a proper subject of review in this court, and for that reason the appeal should be dismissed.

Appeal dismissed.

(b) Proceedings in Rem.

SCOTT v. SHEARMAN

COURT OF COMMON BENCH, 1775

2 W. Bl. 977

Trespass against five custom house officers for breaking and entering the house of the plaintiff at Harwich, and searching and rummaging the same, and taking away certain of his goods. On Not Guilty pleaded, the cause was tried at Chelmsford assizes in Lent, 1774, and a verdict found for the plaintiff, damages 100l. on this special case reserved.

The defendants, who are all known to be custom house officers, on the 24th of August, 1773, entered the plaintiff's house in the day time, in the company of the plaintiff, under pretence of an information against run goods, and demanded of the plaintiff and his wife their keys, which they refused to deliver, and desired to see their information; which Shearman refused to produce, and threatened,

Accord: Voorhees v. Seymour, 26 Barb. (N. Y.) 569 (1857); Burgess v. Simonson, 45 N. Y. 225 (1871); Decker v. Decker, 108 N. Y. 128, 15 N. E. 307 (1888); Bensimer v. Fell, 35 W. Va. 15, 12 S. E. 1078, 29 Am. St. 774 (1891); McCanless v. Smith, 51 N. J. Eq. 505, 25 Atl. 211 (1893); Ledoux v. Bank of America, 24 App. Div. 123, 48 N. Y. S. 771 (1897); Railroad Equipment Co. v. Blair, 145 N. Y. 607, 39 N. E. 962 (1895); Nicholas v. Lord, 193 N. Y. 388 (1908). Compare Second Workingmen's Bldg. &c. Assn. v. Wickers, 83 N. J. Eq. 397, 91 Atl. 897 (1914).

In Thompson's Appeal, 57 Pa. St. 175 (1868), upon distribution of the proceeds of a sheriff's sale it was held error for the auditor, at the instance of junior judgment creditors, to postpone the lien of a prior judgment against the debtor, on the ground that the bond and warrant upon which such judgment had been entered, had been obtained by false representations. The court said: "Judgment creditors may attack a judgment collaterally when it is a fraud upon them, as when there has been collusion between the debtor and the creditor; but they can not set it aside merely because it is a fraud upon the debtor." Accord: Dougherty's Estate, 9 Watts & S. 189, 42 Am. Dec. 326 (1844); Drexel's Appeal, 6 Pa. St. 272 (1847); Lewis v. Rogers, 16 Pa. 18 (1851); Swihart v. Shawm, 24 Ohio St. 432 (1873); Miners' Trust Co. v. Roseberry, 81 Pa. St. 309 (1876); Second Nat. Bank's Appeal, 85 Pa. St. 528 (1877); McAlpine v. Sweetser, 76 Ind. 78 (1881); Zug v. Searight, 150 Pa. St. 506, 24 Atl. 746 (1892); Safe Deposit &c. Co. v. Wright, 105 Fed. 155, 44 C. C. A. 421 (1900); Stewart Lumber Co. v. Downs, 142 Iowa 420 (1909); Blau v. Bernagozzi, 54 Pa. Super. Ct. 111 (1913).

if they would not give up their keys, he would break open the locks; and accordingly got a constable, to whom he produced his writ of assistance, and broke open the locks of the chambers, closets and drawers; and took away twenty pints of Geneva in one case bottle, and ten pints with rue steeped therein in another case bottle, which was brought that morning at five o'clock from on board the plaintiff's vessel (which was just arrived from Flushing where she had sold a cargo of fish), and was part of the ship's stores. The defendants gave in evidence a copy of the record of condemnation of the same Geneva in the Court of Exchequer, Michaelmas Term, 1773: And that the said Geneva, when seised, was immediately lodged in the King's storehouse.10

BLACKSTONE, J.: The only possible ground that the plaintiff can rely on in the present case, which is unaccompanied with misbehavior, or any unwarrantable violence, is, that the goods were not in truth liable to be seised by the laws of the customs; although, by the plaintiff's default, they have been condemned in the Exchequer. But I take this condemnation to be conclusive evidence to all the world, that the goods were liable to be seised; and that therefore this action will not lie.11

1. Because of the implicit credit which the law gives to any judgment in a court of record, having competent jurisdiction of the subject-matter. The jurisdiction in this case of the Court of Exchequer is not only competent, but sole and exclusive. And though it be said, that no notice is given to the owner in person, and that therefore he is not bound by the condemnation, not being a party to the suit;-yet the seisure itself is notice to the owner, who is presumed to know whatever becomes of his own goods. He knew they were seised by a revenue officer. He knew they were carried to the King's warehouse. He knew, or might have known, that by the course of law, the validity of that seisure would come on to be examined in the Court of Exchequer, and could be examined nowhere else. He had notice by the two proclamations according to the course of that court. He had notice by the writ of appraisement, which must be publicly executed on the spot where

10Part of the statement of facts and opinion of the court are omitted. ""Judgments or decrees as to the status of the res, in proceedings strictly in rem, are conclusive against all the world as to that status; while such judgments as to the rights of parties, whatever may be the point adjudicated, not being as to status, are only conclusive between parties and privies to suit." Per Mayfield, J., in McCann v. Ellis, 172 Ala. 60, 55 So. 303 (1911); Makin's Produce Co. v. Callison, 67 Wash. 434, 121 Pac. 837 (1912). While it is generally said that a judgment in rem binds all the world perhaps it is more accurate to say that such a judgment is conclusive against all persons having any interest in the thing in controversy in any subsequent proceeding where the grounds of the adjudication, or the fact of its rendition, or its legal consequences are relevant. 2 Black on Judgments (2d ed.), § 795; Freeman on Judgments (4th ed.), § 617; The Mary, 9 Cranch 126, 3 L. ed. 678 (1815); Castrique v. Imrie, L. R. 4 H. L. 414 (1870); Bailey v. Sundberg, 49 Fed. 583, 1 C. C. A. 387 (1892); Ballantyne v. Mackinnon, L. R. (1896), 2 Q. B. 455. Ex parte Kenmore Shoe Co., 50 S. Car. 140, 27 S. E. 682 (1897); Simon's Estate, 20 Pa. Super. Ct. 450 (1902); Sorensen v. Sorensen, 68 Neb. 490 (1903). Compare Durant v. Abendorth, 97 N. Y. 132 (1884).

the goods were detained. And having neglected this opportunity of putting in his claim, and trying the point of forfeiture, it was his own laches, and he shall forever be concluded by it, not only with respect to the goods themselves, but every other collateral remedy for taking them. For it would be nugatory, to debar him from recovering directly the identical goods that are condemned, if he is allowed to recover obliquely damages equivalent to their value.

2. Because, the property of the goods being changed, and irrevocably vested in the Crown by the judgment of condemnation (as is clear beyond any dispute and conceded on the part of the plaintiff) it follows as a necessary consequence, that neither trespass nor trover can be maintained for taking them in an orderly manner. For the condemnation has a retrospect and relation backwards to the time of the seisure. The spirituous liquors that were seised were therefore, at the time of the seisure, the goods and chattels of his Majesty, and not of the plaintiff, as in his declaration he has (necessarily) declared them to be; since neither trespass nor trover will lie for taking of goods, unless at the time of the taking, the property was in the plaintiff.

This reasoning is supported by authorities expressly in point. In Gilbert's Treatise of the Exchequer, ch. 13, it is clearly shown, in what manner these informations in rem, which were instituted in order to give the Crown possession of its ancient prerogative revenues of wrecks, deodands, estrays and the like, by degrees came afterward to be applied to the forfeitures enacted by the statute law, for offenses against the laws of the customs and excise. And it is expressly laid down, page 186, that "the very seising of the goods is notice to the claimer, and an undertaking to proceed to condemnation according to the rules of the court."

The retrospect or relation backward in these informations was the same as in the inquests of office. And there is in Keilw. 68, b. in the King's Bench, 21 H. 7, a remarkable case of retrospect in the case of a deodand. The king's officer had seised the instrument of death immediately after the accident; but no inquisition was had till a year afterward, when the goods were found to be a deodand. Upon trespass brought against the officer for seising the goods, the court held, that the inquisition related back to the death, that the seisure therefore was lawful, and no action of trespass would lie.

The case also of fugitive's goods is a strong instance to show how conclusive the law esteems the judgment of forfeiture to be, when pronounced by a legal and competent tribunal. If the coroner's inquest finds a man guilty of homicide, and that he fled for it; though he may traverse the crime, and be acquitted of the felony, yet he can not traverse the flight, by which his goods are forfeited to the king. 8 Ed. 4. 4.; I Hal. P. C. 416; 2 Hal. P. C. 64. And therefore, though the petty jury expressly acquit him of both the felony and the flight, their verdict as to the flight shall be void; for they ought not to inquire of the flight, after it has been once found, and the forfeiture vested in the Crown by the coroner's inquest. Fitz. Abr. Forfeiture 35, Staundf. P. C. 183, and Prerog.

46; Dyer 238 b.; 2 Hal. P. C. 301. The reason given in some of the books why this inquest is not traversable, like other inquests of office, is because of the notoriety of the coroner's inquest super visum corporis, at which the inhabitants of all the neighboring vills are bound to attend; and so the finding of the flight is but in effect recording the absence of the party. There is surely as much notoriety of the information in the Exchequer against uncustomed goods; and the absence or default of the party shall be equally conclusive against him.

But the legal decision of this question does not rest on theory or analogy only. It hath been determined over and over in the very point. Vanderburg v. Blake, Tr. 13 Car. 2. In the Exchequer, Hardr. 194, it was held the seisure and proclamation are sufficient notice to the owner; and that neither trover, nor action for malicious information, nor other action which may blow off the judgment by a sidewind, will lie after a condemnation in the Exchequer. Elkins v. Smith, M. 31 Car. 2. In the Exchequer, Raym. 335, and cited per cur. Carth. 327. After condemnation the property is altered, so as neither trespass, nor trover will lie for the proprietor against the person that seiseth them. Martin v. Wilsford, T. 6 W. & M. In the Exchequer, Carth. 323. After judgment upon an information of seisure, the property is altered thereby, so as neither trover nor trespass will lie for him who was the owner, and it is not reasonable that a judgment should be subverted by a collateral action. And in Robinson qui tam. v. Verfelt et al., Tr. 2 Geo. 2, in the Exchequer (according to a note of Sir Thomas Parker, late C. B.) Pengelly, C. B., held, that if a stranger claims property on the information and on the trial a forfeiture is found, by the condemnation the property is altered against the right owner, though he be not the claimer on record. The general doctrine has been recognized in the King's Bench in 1705, in the case of Stafford v. Stevens, and in 1731, in that of Butley v. Walter, according to notes furnished by the custom house books, and in a variety of nisi prius cases from the same quarter; to which may be added two instances from Viner, tit. Evidence, p. 95, where the same point was ruled by Price, B., in 1716, and King, Chief Justice, in 1719.

Judgment for the defendants.12

De Grey, C. J., Gould, J., and Nares, J., concurred.

12Accord: Cooke v. Sholl, 5 T. R. 255 (1793); King v. Matthews, 5 Price 202 (1797); Buchannan v. Biggs, 2 Yeates (Pa.) 232 (1797); Hart v. McNamara, 4 Price, 154n (1817); Gelston v. Hoyt, 3 Wheat. (U. S.) 246, 4 L. ed. 381 (1818), affg. 13 Johns. 561; Whitney v. Walsh, 55 Mass. 29, 48 Am. Dec. 590 (1848); Averill v. Smith, 84 U. S. 82, 21 L. ed. 613 (1872); Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914 (1876); McGuire v. Winslow, 26 Fed. 304 (1886); In re Gottesfeld, 245 Pa. 314, 91 Atl. 494 (1914).

"A judgment in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject-matter itself, whose state, or condition, is to be determined. It is a proceeding to determine the state or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be." Per Hall, J., in Woodruff v. Taylor, 20 Vt. 65 (1847). “If the technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory at least, binds his body,

FREEMAN V. ALDERSON

567

FREEMAN v. ALDERSON

SUPREME COURT OF THE UNITED STATES, 1886

119 U. S. 185

The following was the case as stated by the court.

This was an action of trespass to try the title to certain land in Texas brought in the United States Circuit Court.

The plaintiffs in error, defendants below, claimed the land under a deed to their grantor, executed by the sheriff of McLennan County, in that state, upon a sale under an execution issued on a judgment in a state court for costs, rendered against one Henry Alderson, then owner of the property, but now deceased.

The defendants in error, plaintiffs below, asserted title to the land as heirs of Alderson, contending that the judgment, under which the alleged sale was made was void, because it was rendered

or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defense, the action is in personam, although it may concern the right to or possession of a tangible thing. If, on the other hand, the object is to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the proceeding is in rem." Per Holmes, C. J., in Tyler v. Court of Registration, 175 Mass. 71, 55 N. E. 812, 51 L. R. A. 433 (1900). See also Mankin v. Chandler, 2 Brock. 125, Fed. Cas. No. 9030 (1823); Hamner v. Griffith, 1 Gr. Cas. (Pa.) 193 (1854); Lord v. Chadbourne, 42 Maine 429, 66 Am. Dec. 290 (1856); McClurg v. Terry, 21 N. J. Eq. 225 (1870); State v. Central Pacific R. Co., 10 Nev. 47 (1875), p. 80; Martin v. King, 72 Ala. 354 (1882); Cross v. Armstrong, 44 Ohio St. 613, 10 N. E. 160 (1887); Holly River C. Co., v. Howell, 36 W. Va. 489, 15 S. E. 214 (1892); Francis Times & Co. v. Carr, 82 L. T. 698 (1900).

To formulate a test, the application of which, in every instance, will determine whether a particular judgment is in rem is difficult, because the nature and purpose of the proceeding and scope of the remedy are determining factors in the instances in which adjudications are binding upon all, and they rest on ancient practice or positive legislation rather than on logical analysis. The following are examples: Condemnations or forfeitures for breach of the excise or revenue laws, cases cited in principal case and supra; decrees in admiralty, Transportation Co. v. Fitzhugh, 1 Black (U. S.) 574 (1861); The Cella, L. R. 13 P. D. 82 (1888); Ballantyne v. Mackinnon, L. R. (1896), 2 Q. B. 455; Minna Craig S. Co. v. Chartered M. Bank, L. R. (1897), I Q. B. 460; decrees of prize courts, Hughes v. Cornelius, 2 Shower, 232 (1682); Penhallow v. Doane, 3 Dall. 54 (1795); Geyer v. Aguilar, 7 T. R. 681 (1778); Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471, 3 Am. Dec. 345 (1806); judgments establishing highways, Millcreek Tp. v. Reed, 29 Pa. St. 195 (1857); Wakefield v. Cooke, L. R. (1904), A. C. 31; orders of naturalization, McCarthy v. Marsh, 5 N. Y. 263 (1851); Commonwealth v. Simpson, 7 Phila. (Pa.) 84 (1868); State v. Hoeflinger, 35 Wis. 393 (1874); decrees adjudging a debtor a bankrupt, Shawhan v. Wherritt, 48 U. S. 627 (1849); Michaels v. Post, 88 U. S. 398, 22 L. ed. 520 (1874), p. 428; Mount v. Manhattan Co., 41 N. J. Eq. 211, 3 Atl. 726 (1886); Brown v. Smart, 69 Md. 320, 14 Atl. 468, 17 Atl. 1101 (1888); orders establishing the status and settlement of a pauper, West Buffalo v. Walker Tp., 8 Pa. 177 (1848); Jennison v. West Springfield, 79 (Mass.) 544 (1859); Uxbridge Union v. Winchester Union, 91 L. T. 533 (1904); a sentence of expulsion from college, Rex v. Grundon, 1 Cowp. 315 (1775).