HON. ROBERT C. GRIER, JOHN J. CRITTENDEN, ESQ., ATTORNEY-GENERAL. BENJAMIN C. HOWARD, Esq., REPOrter. THE STATE OF MISSOURI, Complainant, v. THE STATE OF IOWA, Respondent. Original Bill. THE STATE OF IOWA, Complainant, v. THE STATE OF MISSouri, Respondent. Cross-Bill. 10 II. 1. THE Commissioners appointed by a decree of this court, 7 How. 660, to run and mark the boundary line between the States of Missouri and Iowa, having made their report, it was accepted, without objection by either party, and the line established in conformity therewith. Webster v. Cooper. 10 H. HENRY WEBSTER, Plaintiff, v. PETER COOPER. 10 H. 54. The whole case appearing to have been broken up into points and certified to this court under a pro forma division of opinion, jurisdiction does not exist under the sixth section of the act of April 29, 1802, (2 Stats. at Large, 159.) CERTIFICATE of division of opinion by the judges of the circuit court of the United States for the district of Maine. As the merits were not considered, it is not needful to state the questions certified. Dexter and E. H. Davies, for the demandant. Allen, contrà. TANEY, C. J., delivered the opinion of the court. This case has been argued at the bar upon points certified as upon a division of opinion in the circuit court. But it appears by the record that the whole case has been divided into points and sent up to this court; and several of the latter points could not have arisen on the trial until the previous ones were first decided. We understand it was a pro forma division, certified at the request of the counsel for the respective parties. *This court has frequently said that this practice is irreg- [* 55 ] ular, and would, if sanctioned, convert this court into one of original jurisdiction in questions of law, instead of being, as the constitution intended it to be, an appellate court to revise the decis ions of inferior tribunals. Indeed, it would impose upon it the duty of deciding in the first instance, not only the questions of law which properly belonged to the case, but also questions merely hypothetical and speculative, and which might or might not arise, as previous questions were ruled the one way or the other. The irregularity and evil tendency of this practice has upon several occasions attracted the attention of the court, although it has been occasionally acquiesced in, and the points so certified acted upon and decided. But at December term, 1847, the subject was very fully considered, and it was then determined that this practice ought not to be sanctioned, and that this court would in all cases refuse to take jurisdiction, when it was obvious that the whole case had been certified pro forma, in order to take the opinion of this court, without any actual division of opinion in the circuit court. The result of this determination will be found in the case of Nesmith and others v. Sheldon and others, 6 How. 41. The case before us cannot be distinguished from the one referred to. It is true that it was certified before that decision was pronounced. But the opinion in that case Shelby v. Bacon. 10 H. conformed to all the opinions previously expressed by this court upor the irregularity of this practice. This case, therefore, must be remanded to the circuit court, to be proceeded in according to law. 18 H. 565, 570; 3 Wal. 250. ISAAC SHELBY, Complainant, v. JOHN BACON, ALEXANDER SYMINGTON, THOMAS ROBINS, JAMES ROBERTSON, RICHARD H. BAYARD, JAMES S. NEWBOLD, HERMAN COPE, THOMAS S. TAYLOR, and GEORGE BEACH. 10 H. 56. A citizen of Kentucky can maintain a bill in the circuit court of the United States in Pennsylvania, against citizens of the latter State, who are assignees of an insolvent corporation, to establish his demand against the assets in their hands, and have such satisfaction therefrom as he may be equitably entitled to, although the proceedings of the assignees are placed by the law of Pennsylvania in some particulars, under the control of a state court, and the assignees have actually come under that jurisdiction. Where two tribunals have concurrent jurisdiction, the one which first obtains possession of the subject must adjudicate, and neither party can be forced into another jurisdiction; but here the state court had not obtained possession of the subject-matter of this bill, namely, the validity and extent of the complainant's claim on the assets of the corporation in the hands of the defendants. THE case is stated in the opinion of the court. Clay, for the complainant. Wm. A. Porter and G. M. Wharton, contrà. [ *67 ] M'LEAN, J., delivered the opinion of the court. This case comes before us from the circuit court of the eastern district of Pennsylvania, on a certificate of a division of opinion between the judges. The complainant, who is a citizen of Kentucky, filed his bill against John Bacon and others, assignees of the late Bank of the United States under the charter from the State of Pennsylvania. The bank, being in a failing condition, executed assignments of its assets for the benefit of its creditors, and of certain creditors of the Bank of the United States chartered by congress.1 The complainant represents himself to be a creditor of the late bank, to a large amount, which is shown by judgments recovered in the "district court" for the city and county of Philadelphia; and in the commercial court of New Orleans. That, on application to the trustees aforesaid, they refused to pay the said judgments or any part of them, although they have funds in their hands or under their control, to pay the debts of the bank, &c. 1 3 Stats at Large, 266. Shelby v. Bacon. 10 H. *The defendants pleaded to the jurisdiction of the court. [* 68 ] They admit the trust as alleged, and aver that the assignments were recorded as required by the acts of Pennsylvania; and they aver that the court of common pleas of the city and county of Philadelphia has ample power to enforce the trust, in regard to the rights of all parties claiming an interest therein. That the defendants under those laws, at different periods down to the 1st of January, 1847, filed their accounts, duly verified, "of their receipts and disbursements, with the prothonotary of the said court," which were sanctioned by the court. That under its direction they have vested large sums of money to await the result of pending litigations. And they submit to the court whether they ought to be compelled to answer. On the hearing, the judges were opposed in opinion on the following points: 1. Whether the facts stated in the plea to the amended bill filed by John Bacon, Alexander Symington, and Thomas Robins, deprive the court of jurisdiction of the case; and whether the plea to the plaintiff's bill is sufficient and ought to be allowed. 2. Whether the facts stated in the plea to the amended bill filed by the defendants, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, deprive the court of jurisdiction of the case, and whether the said plea is a sufficient plea to the plaintiff's bill, and ought to be allowed. There is no principle better settled, than that, where two or more tribunals have a concurrent jurisdiction over the same subject-matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other. And the question we are now to consider is, whether the procedure in the court of common pleas, above stated, under the special acts of Pennsylvania, abates the suit of the plaintiff. Can the proceeding stated in the plea, be considered a suit? The revised act of Pennsylvania, of the 14th of June, 1836, entitled: "An act relating to assignees for the benefit of creditors and other trustees," requires in the first six sections the assignment to be recorded in thirty days, and the assignment being voluntary, "the assignees shall file an inventory or schedule of the estate or effects so assigned, which shall be sworn to;" on which it is made the duty of the court to appoint appraisers, who shall return an inventory and appraisement; on the return of which the assignees are required to give bond "to the commonwealth, that they will in all things comply with the provisions of the act of assembly, and shall faithfully execute the trust confided to them," &c. The defendants aver, [69 1 Shelby v. Bacon. 10 H. "that having in part executed the trust so as above committed to them, they did, on the 7th of January, 1843, file in the office of the prothonotary of the court of common pleas aforesaid an account, duly verified, of their receipts and disbursements," &c. And several other and similar returns are averred to have been made. By the seventh section of the act, the court are authorized, on the application of any person interested, to issue a citation to any assignee or trustee for the benefit of creditors, whether appointed by a voluntary assignment or in pursuance of the laws relating to insolvent debtors, &c., requiring him "to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court," &c. The ninth section authorizes the court to give notice, by publication, when the accounts will be acted on, that objections to them may be made. And by the eleventh section, where a trustee has neglected or refused, when required by law, to file a true and complete inventory, or to give bond with surety, when so required by law, or to file the accounts of his trust, "it shall be lawful for the court (of common pleas) to issue a citation, &c., to show cause why he should not be dismissed." Now it does not appear from the plea that the assignees ever filed the inventory of the assets in their hands with the prothonotary of the court, as required by the first section, and it would seem that not only the inventory must be filed, where the assignment is voluntary, to give jurisdiction to the court, but also that it must be sworn to, an appraisement of the trust property made and returned, and bond given by the assignees. This is a proceeding under a statute, and to bring the case within the statute, every material requirement of the act must be complied with. And if the above requisites have not been observed, it is not perceived how the court could take jurisdiction of the case. In the plea, it is stated that accounts have been filed by the assignees at different times, and moneys distributed among the creditors. But how can this give jurisdiction? The court has no evidence of the extent and value of the trust, and no bond of the assignees faithfully to account. If these important steps have been taken, they should have been stated in the plea; as it must show, to be effectual, that the court had jurisdiction of the whole matter. The plea is defective in not setting out the above requirements. But if the plea had been perfect in this respect, it would not follow that the complainant could not invoke the jurisdiction [*70] of the circuit court. He being a non-resident has his * option to bring his suit in that court, unless he has submitted, or is made a party, in some form, to the special jurisdiction of the court of common pleas. |