133 got the gun and stood right about here; | trial of the case, and the alleged victim of Scheffler and the woman was here. Q. Where was Hurlin?-A. Hurlin was here reaching for his gun under the sleeping bags, and had it under his knee like this way. the assault, who had testified at the first trial, was not present at the second. But evidence of her previous testimony was admitted against defendant's objection, and it is contended that thereby defendant was deprived of rights secured by the Federal ConThe question for us to decide at the outset is whether such a claim was specially set up at the proper time and in the proper Q. And where was Patterson?-A. He was jumping from here over against the stitution, and denied due process of law. edge like, you see the rifle was right in here. I had seen that gun there before, for Scheffler had it out, and brought in and set it down there. He was going for that. way. The rule is firmly established by the decisions of the highest court of Alabama, that when a witness is beyond the jurisdic tion of the court, whether he has removed; from the state permanently or for an indefinite time, his testimony on a former trial for the same offense may be given in evidence against defendant on a subsequent trial. Lowe v. State, 86 Ala. 47, 5 So. 435; Perry v. State, 87 Ala. 30, 6 So. 425; Pruitt v. State, 92 Ala. 41, 9 So. 406; Matthews v. State, 96 Ala. 62, 11 So. 203; Burton v. State, 115 Ala. 1, 22 So. 585. In this case, evidence was introduced before the trial judge that the witness was not in the state at the time of the trial, and that her absence was of a permanent or indefinite nature. There was no pretense of absence by procurement, and there was evidence of diligence in attempting to serve process upon her. It was held that sufficient foundation for the admission of evidence of her former testimony had been laid, and the supreme court concurred in that conclusion. Defendant objected to this preliminary proof, and moved to exclude it on several grounds, one of which was "that the defendant has the constitutional right to be confronted by" the witness. These objections having been overruled, evidence was introduced of the testimony given by the absent witness on direct and cross examination on the former trial, to which defendant objected on the ground, among others, "that the defendant, Jacobi, has the Argued November 7, 1902. Decided Novem- constitutional right to be confronted by the INS ber 17, 1902. N ERROR to the Supreme Court of the State of Alabama to review a judgment affirming a conviction in the City Court of Montgomery for criminal assault. Dismissed. See same case below (Ala.) 32 So. 158. The facts are stated in the opinion. Messrs. Henry L. Lazarus, Lionel Adams, J. N. Luce, and H. Michel for plain tiff in error. Mr. Charles Gayle Brown for defendant in error. witnesses against him." The trial judge the state Constitution. Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Endowment & Benev. Asso. v. Mr. Chief Justice Fuller delivered the Kansas, 120 U. S. 103, 30 L. ed. 593, 7 Sup. opinion of the court: Jacobi was convicted in the city court of Montgomery, Montgomery county, Alabama, on an indictment for criminal assault, and the judgment against him was affirmed by the supreme court of that state. 32 So. 158. To revise that judgment this writ of error was brought. The conviction was the result of a second Ct. Rep. 499. After the case reached the state supreme court, error was assigned to the admission of the evidence, as being in violation of the 14th Amendment. The supreme court did not refer to that contention, presumably because of the settled rule in Alabama in criminal cases, that when specific grounds of objection to the admission of evidence are assigned, all others are waived (McDaniel v. State, 97 Ala. 14, 12 So. 241); and that the supreme court will not decide a question relating to the admission of evidence, not made and acted on in the trial court (Freeman v. Swan, 22 Ala. 106; Robertson v. Robinson, 65 Ala. 610, 39 Am. Rep. 17). The supreme court was therefore not called upon to revise the judgment of the city court for error not committed, and we cannot interfere with its action in adhering to the usual course of its judgments. If the court, however, had passed upon the question, our jurisdiction might have been maintained. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Dreyer v. Illinois, 187 U. S. 71, ante, p. 28, 23 Sup. Ct. Rep. 28. 2. Federal question which will sustain a writ of error from the Supreme Court of the United States, as such sovereignty rests upon no Federal statute or provision of the Federal Constitution, but upon general principles of the common law, which long antedated the Constitution. The action of surveyors for the Federal government, in segregating and setting apart a lake by meander lines from the public land, and the approval of such survey by the Commissioner of the General Land Office, is not such an adjudication by the Federal government, by its authorized officers and agents, that such lake is the property of the state, and not a part of the public domain, that a denial by a state court of the state's claim of title to the bed of such lake can be reviewed in the Supreme Court of the United States. [No. 9.] In Spies v. Illinois, 123 U. S. 131, sub nom. Ex parte Spies, 31 L. ed. 80, 8 Sup. Ct. Rep. 21, where objection to the admis- Argued October 14, 15, 1902. sion of a certain letter, because obtained in violation of the Constitution of the United was made in the supreme court of vember 17, 1902. Decided No Statetate for the first time, and that court ERROR to the Super a judgment af [N Supreme Court of the declined to consider the constitutional question supposed to be involved, on the ground that it was not raised in the trial court, Mr. Chief Justice Waite said: "To give us jurisdiction under § 709 of the Revised Statutes, because of the denial by a state court of any title, right, privilege, or immunity claimed under the Constitution, or any treaty or statute of the United States, it must appear on the record that such title, right, privilege, or immunity was 'specially set up or claimed' at the proper time in the proper way. To be reviewable here, the decision must be against the right so set up or claimed. As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more. This is not, as seems to be supposed by one of the counsel for the petitioners, a question of a waiver of a right under the Constitution, laws, or treat ies of the United States, but a question of claim. If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of review here is concerned." And see Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Baldwin v. Kansas, 129 U. S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193. The result is that the writ of error must be dismissed, and it is so ordered. (187 U. S. 87) firming a judgment of the District Court of Statement by Mr. Justice Brown: This was a controversy over about 800 acres of land lying in the bed of what is known as Owl lake, in Humboldt county, Iowa. The original plaintiffs, the appellees in this case, claimed under the act of Congress of September 28, 1850, commonly known as the swamp land grant. Defendants' position was that the lands were unsurveyed lands belonging to the national government, subject to entry under the homestead and pre-emption laws, under which they had made entry. The state of Iowa intervened and claimed to own the land in virtue of its right of sovereignty over the beds of all lakes meandered by the general government. The suit was originally instituted by a petition in equity filed in the district court of Humboldt county by Edwin O. Rood and others against George A. Wallace and others, founded upon allegations: (1) That the lands were conveyed to the state under the swamp land act of September 28, 1850, and thence by intermediate conveyances to the plaintiff; (2) that at the date of this act the lands were in fact swamp and overflowed lands, and continued to be, until Pearsons, plaintiffs' grantor, received the title, marshy and unfit for cultivation withEDWIN O. ROOD et al. out artificial drainage. That in 1884 Pearsons began to reclaim the land by ditches, Error to state court Federal question. building fences around it, and for several 1. A decision of a state court adverse to the years used and occupied it for pasturage, claim of title to land set up by a state by and spent a large amount of money in drainvirtue of its right of sovereignty overing, reclaiming it, and making it fit for culthe beds of lakes meandered by the tivation; (3) that defendants have taken United States government presents no possession, and built a cabin upon the land, 1 U. 8. Comp. St. 1901, p. 575. STATE OF IOWA, Plff. in Err., 23 S. C.-4 v. and are interfering with the plaintiffs in their use and enjoyment of it. Wherefore an injunction was prayed. A demurrer to this bill was overruled and an answer filed in general denial of the petition. Thereupon the state of Iowa filed a petition of intervention, alleging that the land in question was a part of the bed of Owl lake, and did not constitute any part of the @land which the United States government was authorized or empowered to sell.* That the state was duly admitted into the Union in 1846, and, as a sovereign state, became the owner of all the lakes within its borders, subject to the right of the public to use the same, and that the title to the soil was in the state. That in surveying the public lands adjoining the lake the same was meandered, and the land up to the meander lines sold by the United States to different persons, and after such survey and sale the United States had no right, title, or interest in any part of the lake bed, and that the same had passed to the state upon its admission to the Union. The petition denied that the land described was within the swamp land grant, and averred that the act of the plaintiffs and their vendors in draining the said lake and drawing off the water was unlawful. Wherefore the state prayed a decree against both plaintiffs and defendants, quieting its title to the land, and for a writ of possession removing both parties there from. Mr. Charles W. Mullan for plaintiff in error. Messrs. Robert M. Wright and John P. Dolliver for defendants in error. Mr. Justice Brown delivered the opinion of the court: Motion is made to dismiss this case upon the ground that no Federal question is involved; or if there be such question, that there was another nonfederal question, the decision of which was sufficient to sustain the judgment, irrespective of what the decision of the supreme court may have been upon such Federal question. 1. From the foregoing abstract of the pleadings it will be seen that the title set up by the state rests solely upon the proposition that it became vested, upon its admission into the Union under the act of Con117, chap. 1), with sovereignty over the gress of December 28, 1846 (9 Stat. at L. beds of all lakes within its borders, by the act of the general government in meandering such lakes, and excluding from its survey of public lands all such as lay beneath their waters. This clearly does not involve the validity of any treaty or statute of the United States, or the constitutionality of Defendants Wallace and others subse- any state statute or authority, so that, if jurisdiction exists in this court, it must be quently amended their answer to the effect by reason of the claim of a title, right, privthat the lands were unsurveyed lands, sub-ilege, or immunity under the Constitution, ject to entry by settlers, and that defendants had entered the lands as homesteads, built houses thereon, and occupied the same as homes. That, at the date of the swamp land act, the lands were covered by water from 6 to 15 feet in depth, with well-defined shores and high banks upon the south and east sides, and navigable by ordinary steamboats. That the lands were never swampy, and never came within the meaning of the grant as swamp and overflowed lands. And that whatever rights plaintiffs might have in the land were junior and inferior to those of defendants. Plaintiffs thereupon amended their petition by averring that since the commencement of the suit the lands had been patented to the state under the swamp land act of 1850; and answered the petition of the interveners, alleging that by the proper officer of the government the character, quality, and condition of said lands were duly adjudicated in the manner provided by law, and that the title of the United States passed through certain patents mentioned in amendments to plaintiffs' petition, and finally inured to the benefit of the plaintiffs, and that said patents have never been set aside nor canceled. Testimony was taken by the plaintiffs, and a decree entered dismissing the interveners' petition, and quieting the title in States, the decision of which was against* or an authority exercised under the United such title, right, privilege, or authority. The real question, then, is whether the sovereignty of the state over the beds of its inland lakes rests upon some statute or provision of the Constitution, or upon general antedated the Constitution, and had their principles of the common law which long origin in rights conceded to the Crown centuries before the severance of our relations with the mother country. If the latter, then the state must look to the decisions of this court, recognizing and defining such rights and determining how far they are inherited, first, by the United States as the successor of the Crown, and, second, by the several states upon their admission into the Union. This would not involve a construction of the Constitution, nor of any title derived thereunder, but a determination of the title of the Crown to lands beneath the beds of inland lakes, and of the respective rights of the states and the general government as successors thereto. In support of our jurisdiction the state relies (1) upon article 3 of the treaty with France for the cession of Louisiana (8 Stat. at L. 200), which merely provides that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, ao *92 cording to the principles of the Federal | plan of the town, and therefore not grantConstitution, to the enjoyment of all the able by the King. The state court gave rights, advantages, and immunities of citi- judgment for the plaintiffs, which was afzens of the United States;" (2) the provi-firmed by the supreme court, and the city sion of the Constitution, art. 4, § 3, which sued out a writ of error. The court held, merely declares, with certain immaterial through Chief Justice Marshall, that to*sus-* qualifications, that "new states may be ad- tain its jurisdiction it must be shown that mitted by the Congress into this Union;" the title set up by the city was protected by and (3) upon the act of Congress of 1846, the treaty ceding Louisiana to the United admitting the state of Iowa into the Union, States (the treaty involved in this case), with the provision that it should be admit- or by some act of Congress applicable to ted on an equal footing with the original that title. It was held that the 3d article states in all respects whatsoever. of the treaty, above quoted, did not embrace the case, and that the act of Congress admitting Louisiana into the Union, which is ting Iowa, could not be construed to give appellate jurisdiction to this court over all questions of title between citizens of Louisiana; that the case involved no principle upon which this court could take jurisdiction, which would not apply to all the controversies respecting titles originating be fore the cession of Louisiana to the United States, and that "it would also comprehend all controversies concerning titles in any of the new states, since they are admitted into the Union by laws expressed in similar language." The writ of error was dismissed. This case is conclusive against the existence of a Federal question in the case under consideration. None of these provisions was questioned by the supreme court of Iowa in its opinion, but neither of them has even a remote bear-identical in language with the act admiting upon the question of the title of the state to the land beneath its lakes. Indeed, the argument now made by the attorney general, that the title of the state depends upon the construction given to this act of Congress, is quite inconsistent with his first assignment of error upon the merits, which charges the court with error "in not hold ing that the beds of all the meandered lakes and streams in the state of Iowa belong to said state in trust for the public by virtue of its sovereignty, and that this right does not depend upon any act of Congress or any grant from the United States." In other words, the state is put in the dilemma of insisting, for the purpose of sustaining the jurisdiction of this court, that the title of the state is dependent upon the proper consruction of these three instruments, and, for the purpose of sustaining its case upon the merits, denying that the title depends upon either of them. This is an attempt to blow hot and cold upon the same question. 2. We are also asked to sustain the jurisdiction of this court upon the ground that the action of the government surveyors in segregating and setting apart the lake in question by meander lines from the public land, and the approval of such survey by the Commissioner of the General Land Office, was an adjudication by the government of the United States, by its duly authorized officers and agents, that the lake so segregated and set apart was the property of the state of Iowa, and not a part of the public domain. The mere fact that the plaintiff in error asserts title under a clause of the Constitution or an act of Congress is not in itself sufficient, unless there be at least a plausible foundation for such claim. A party may assert a right, title, privilege, or immunity without even color for such asser- We do not so interpret the action of these tion, and if that were alone sufficient to give officers. They undoubtedly did survey the this court jurisdiction, a vast number of lands adjoining this lake and meander the cases might be brought here simply for de-lake itself, but they determined nothing as lay or speculative advantage. New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 46 L. ed. 936, 22 Sup. Ct. Rep. 691. to the title of the land beneath its waters,a determination which would have been wholly beyond their powers; but simply It is equally clear that the mere fact that omitted those lands from the survey, and an act of Congress or a patent of the United left their title to be subsequently deterStates appears in a chain of title does not mined either by state or congressional action. constitute such a right, title, or immunity It was obviously beyond the powers of a gov as gives the Federal court jurisdiction, un-ernment surveyor, or of the Land Office, to less such title involves the construction of the act, or the determination of the rights of the party under it. De Lamar's Nevada Gold Min. Co. v. Nesbitt, 177 U. S. 523, 44 L. ed. 872, 20 Sup. Ct. Rep. 715. The case of New Orleans v. De Armas, 9 Pet. 224, 9 L. ed. 109, is directly in point. Plaintiffs claimed a parcel of land in the city of New Orleans by incomplete title from the Spanish government, which was, however, confirmed under the laws of the United States, and a patent issued therefor. The city claimed the land as a part of a quay dedicated to the city in the original determine the title to these lands, or to adjudicate anything whatever upon the subject. Had the decision of the supreme court been adverse to the plaintiffs, who claimed title under the swamp land act, it is possible that a writ of error might have lain from this court, but we have frequently held that to sustain such writ, the decision must be adverse to a right claimed under an act of Congress, or to the exercise of an authority granted by the United States. Baker v. Baldwin, 187 U. S. p. 61. ante, p. 19, 23 Sup. Ct. Rep. p. 19. The writ of error must be dismissed. (187 U. S. 211) SECURITY TRUST COMPANY, as Admin- | after, on March 22, 1894, and before the maistrator of the Estate of Sumner W. Matteson, Deceased, Petitioner, บ. turity of said notes, the said James H. Easton & Company, for value received, sold and assigned the same to the plaintiff; that said BLACK RIVER NATIONAL BANK OF James H. Easton & Company was a co LOWVILLE. Federal courts-state laws as rules of decision-suit against administrator-limitation. A nonresident owner of a claim against a decedent's estate cannot maintain a suit against the administrator in a Federal court, where the suit, if brought in the state courts, would have been barred by the statutes of the state as construed by its courts because Instituted after the expiration of the period limited by the order of the probate court for the presentation of claims against the estate, and after the administrator's final account had been allowed and the final dls tribution of the estate decreed. [No. 39.] partnership doing business at Decorah, and that all the members thereof were residents and citizens of the state of Iowa; that no part of said notes has ever been paid except the interest thereon to the 24th day of November, 1894. The complaint further alleged that the defendant, as administrator of the estate of Sumner W. Matteson, had in its hand and under its control property, money, and effects which belonged in his lifetime to said Matteson, more than sufficient to pay the amount due the plaintiff; that the estate of said Matteson was in process of settlement in the probate court of Ramsey county, state of Minnesota, and had not been fully and finally settled and probated, and that said administrator had never been discharged and was still the administrator of the es-9 tate of said Matteson, deceased; and plaintiff demanded judgment against the defend-* Argued April 21, 22, 1902. Decided Decem- ant in the sum of $5,000 and interest there ON ber 1, 1902. WRIT of Certiorari to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment which affirmed a judgment of the Circuit Court of the United States for the District of Minnesota in favor of plaintiff in a suit against an administrator upon a claim against dece dent's estate. Reversed and remanded. See same case below, 43 C. C. A. 683, 104 Fed. 1006. Statement by Mr. Justice Shiras: on from the 24th day of November, 1894. On February 12, 1897, the defendant appeared and answered, admitting those allegations of the complaint which alleged the making and transfer of said notes, and that the same remained unpaid in the hands of the plaintiff, but denying that the defendant had in its hands as administrator of said Matteson any money or property applicable to the payment of said notes. The answer also alleged that the estate of said Matteson had been fully settled, probated, and administered upon and discharged from the probate court long prior to the commencement of plaintiff's action, and that the defendant had long before the commencement of this action turned over all property, money, and effects of said estate remaining in its hands, to the persons entitled there to, and that defendant long before the commencement of this action had been discharged as such administrator, and was not when said action was brought, and is not now, administrator of the estate of said decedent. In January, 1897, the Black River National Bank of Lowville brought an action in the circuit court of the United States for the district of Minnesota against the Security Trust Company of St. Paul, as administrator of the estate of Sumner W. Matteson, deceased. The complaint alleged that the plaintiff was a corporation duly organized under the national banking laws of the United States, having its place of business at Lowville, Lewis county, and state of New York; that the defendant was a corporation On March 20, 1897, the plaintiff filed a created by the laws of the state of Minne reply, traversing the allegations of the ansota, having its place of business at the city swer. Thereafter and on the 18th day of of St. Paul and state of Minnesota, and had January, 1899, a stipulation of facts and been duly appointed administrator of the waiver of jury trial were filed. In the stipestate of Sumner W. Matteson, deceased, by ulation of facts it appeared that the estate the proper probate court of Ramsey county, of Matteson had been settled, administered Minnesota, on or about the 3d day of Sep-upon, and discharged from the probate court tember, 1895; that the said Matteson had been during his lifetime a resident and citizen of the state of Minnesota. For a cause of action the complaint averred that on the 27th day of February, 1894, the said Matteson had executed his two promissory notes, wherein for value received he promised to pay to the order of James H. Easton & Company, at the First National Bank of Decorah, Iowa, the sum of $2,500, four months after date, with interest thereon at the rate of 8 per cent per annum from date until paid; that there prior to the commencement of plaintiff's action in the circuit court of the United States. On April 17, 1899, the cause came on to be heard, on the pleadings and stipulation of facts, and judgment was entered in favor of the plaintiff in the sum of $6,782.89, to be paid and enforced out of the property and effects of the intestate, Sumner W. Matteson, deceased; and it was ordered further that this judgment be duly certified by this court to the probate court of Ramsey county as a claim duly approved, established, and |