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bound by such statutes." It has been said that a Federal court of equity will never follow a State statute of limitation when thereby manifest wrong and injustice would be wrought. A State statute of limitation cannot bar the United States;' but the United States may take advantage of a State statute of limitations. The rule that a State is not affected by laches or a statute of limitation cannot aid a creditor of a State when suing one of its debtors. Otherwise the courts of the United States, in actions at common law not founded upon Federal statutes, are bound by State statutes of limitation.10 The effect of such a statute upon actions at common law to enforce rights created by Federal statutes, such as patents and copyrights, was for a long time the subject of conflicting adjudications."1

A recent case held that actions at common law for the infringement of letters patent were, before Congress had legislated upon the subject, barred by the statute of the State where the Federal court was held.12 Since then a statute has been passed providing that "in any suit or action brought for the infringement of any patent, there shall be no recovery of profits or damages for any infringement committed more than six years before the filing of the bill of complaint or the issuing of the writ in such suit or action, and this provision shall apply to existing causes of action." 13 It has been also held that the State statutes of limitation apply to actions upon judgments of courts of the United States, provided that they do not discriminate in favor of judgments of a State court; 14 and that

5 Kirby v. L. S. & M. S. R. Co., 120 U. S. 130, 137; Etting v. Marx's Ex'r, 4 Fed. R. 673; Stevens v. Sharp, 6 Sawy. 993; Continental Nat. Bank v. Heilman, 81 Fed. R. 36. Especially in cases of fraud. McIntire v. Pryor, 173 U. S. 38; Saxlehner v. Eisner & M. Co., 179 U. S. 19.

6 Fogg v. St. Louis, H. & K. R. Co., 17 Fed. R. 871, 873; Story's Eq. Jur., § 1521.

7U. S. v. Thompson, 98 U. S. 486; U. S. v. Nashville, C. & St. L. Ry. Co., 118 U. S. 120; U. S. v. Beebe, 127 U. S.

338; U. S. v. Insley, 130 U. S. 263;

U. S. v. Wallamet & C. M. Wagon
Road Co., 42 Fed. R. 351.

8 Stanley v. Schwalby, 147 U. S. 508.
9 Cressey v. Meyer, 138 U. S. 525.
10 U. S. R. S., § 721; McCluny v. Sil-
liman, 3 Pet. 270; Amy v. Dubuque,
98 U. S. 470.

11 See the second edition of this treatise, p. 72.

12 Campbell v. Haverhill, 155 U. S. 610.

13 54th Congress, Sess. III, ch. 391; 29 St. at L. 694.

14 Metcalf v. Watertown, 153 U. S.

671.

in the absence of such discrimination they apply to suits against Federal officers founded upon their official acts.15

§ 9. Property in the custody of a State court.-A court of the United States, through a spirit of judicial comity, will usually refuse to interfere with property in the custody of a State court. Conversely, it will not tolerate interference by a State court with property over which it has taken jurisdiction."

It has been said that "the forbearance which courts of coordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between State courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they co-exist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same place; and when one takes into its jurisdiction a specific thing, that is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void." "This rule, in its application to Federal and State courts, being the outgrowth of necessity, is a principle of right and of law, which leaves nothing to the dis

15 McCluny v. Silliman, 3 Pet. 270, 277; Andreae v. Redfield, 98 U. S. 225; Barney v. Oelricks, 138 U. S. 529. See also Beatty's Adm'r v. Burne's Adm'rs, 8 Cranch, 98, 107, 108; Campbell v. Haverhill, 155 U. S. 610, 620.

§ 9. Hagan v. Lucas, 10 Pet. 400; Taylor v. Carryl, 20 How. 583; Peale v. Phipps, 14 How. 368; Levi v. Columbia Ins. Co., 1 Fed. R. 206; Hubbard v. Bellew, 3 Fed. R. 447; Union Mut. Life Ins. Co. v. University of Chicago, 6 Fed. R. 443; Hutchinson v. Green, 6 Fed. R. 833, 836–839; Hamilton v. Chouteau, 6 Fed. R. 339;

Heidritter v. Elizabeth Oil-cloth Co., 112 U. S. 294. But see Dwight v. Central Vermont R. Co., 9 Fed. R. 785. 2 Freeman v. Howe, 24 How. 450; Heidritter v. Elizabeth Oil-cloth Co., 112 U. S. 294; Sharon v. Terry, 36 Fed. R. 337; Covell v. Heyman, 111 U. S. 176; In re Tyler, 149 U. S. 164, 186; White v. Schloerb, 178 U. S. 542.

3 Mr. Justice Matthews in Covell v. Heyman, 111 U. S. 176, 182, approved in Re Tyler, 149 U. S. 164, 186, per Fuller, C. J. The question is one of jurisdiction. Shields v. Coleman, 157 U. S. 168.

cretion of a court, and may not be varied to suit the convenlence of litigants."

4

Even where the custody of the State court has been acquired through fraud, the Federal court will usually not interfere so long as the former retains its hold upon the property. It has been held that after the trial of an action at common law it is too late to raise this objection to the jurisdiction." But where the trustee elected by the creditors of an insolvent had failed to claim property until after a levy thereupon under a Federal judgment, on his intervention a decree was entered setting aside the levy, upon his payment of the costs of the same and filing an order of the State court authorizing him to take possession."

The possession of an assignee appointed by an insolvent in a voluntary assignment was held not to be the possession of a State court, although in pursuance of a State statute he had filed a bond and a petition for the settlement of his accounts, praying also for instructions concerning his administration; and the Federal court consequently can appoint a receiver of property thus assigned. In a case where a State court has taken possession of property covered by an insolvent's assignment, a Federal court may entertain a bill to establish a claim against it, but it may not attempt by process against the property to enforce such claim after it had been established nor appoint a receiver.10

After a State court of probate has commenced the administration of the assets of a decedent, a Federal court may establish a debt against the estate," and direct the payment by the personal representative or his sureties of such debt, or of a

4 Thayer, J., in Merritt v. American Steel-Barge Co., 79 Fed. R. 228, 231. 5 Attleborough Nat. Bank v. N. W. Mfg. & C. Co., 28 Fed. R. 113.

6 Gilman v. Perkins, 7 Fed. R. 887. See Erwin v. Lowry, 7 How. 172; Mo. Pac. R. Co. v. Fitzgerald, 160 U. S. 556. 7 Geilinger v. Philippi, 133 U. S. 246, 257.

8 Powers et al. v. Blue Grass B. & L. Ass'n, 86 Fed. R. 705. Cf. Adler v. Ecker, 2 Fed. R. 126; The James Roy, 59 Fed. R. 784; George T. Smith, etc.

Co. v. McGroarty, 136 U. S. 237;

12

Swofford Bros. D. G. Co. v. Mills, 86
Fed. R. 556. But see Edwards v.
Hill (C. C. A.), 59 Fed. R. 723, 726;
Peale v. Phipps, 14 How. 368.

9 Edwards v. Hill (C. C. A.), 59 Fed.
R. 723, 726. Cf. Wheelwright v. St.
Louis, N. O. & O. C. & Tr. Co., 50 Fed.
R. 709, and infra, note 20.

10 Val. Blatz Brewing Co. v. Walsh, 84 Fed. R. 5.

11 Yonley v. Lavender, 21 Wall. 276; Hess v. Reynolds, 113 U. S. 73.

12 Ibid. See also Erwin v. Lowry, 7 How. 172.

legacy or of a distributive share,13 and it may thus adjudicate upon the construction of a will," and compel an accounting by an executor or administrator.15 But a Federal court cannot issue an execution against an estate 16 or direct the distribution of all the assets held by an executor or administrator," at least so far as to affect the rights of the creditors or legatees who are citizens of the same State as the defendants and who have no right to seek the Federal jurisdiction. In a case where the executors disagreed and could not act together, a Federal court appointed a receiver of the decedent's assets.18 And a Federal court has determined the liability of a decedent's estate to pay an assessment levied after his death upon the stock of a national bank held by his executors. 19

21

In the case of a receivership, no court except that which appointed the receiver can interfere with the property over which he has been appointed.20 A State receiver cannot, except possibly in a suit for the infringement of a patent, be sued without the permission of his court. And if he refuses to sue upon a claim belonging to his estate, no person interested can bring a suit to collect the same without his joinder as a defendant by the permission of such court.22 Property in the possession of a statutory receiver not appointed by a court is not usually

13 Payne v. Hook, 7 Wall. 425; Byers v. McAuley, 149 U. S. 608.

14 Byers v. McAuley, 149 U. S. 608. 15 Payne v. Hook, 7 Wall. 425. See Comstock v. Herron, 55 Fed. R. 803. 16 Yonley v. Lavender, 21 Wall. 276; Williams v. Benedict, 8 How. 107, 112. As to attachments see Lant v. Manley (C. C. A.), 75 Fed. R. 627.

17 Byers v. McAuley, 149 U. S. 608. But see dissent. It has been held that a Federal court will not entertain a bill in equity to set aside a sale of stocks made by executors and to take the proceeds out of their possession. Jordan v. Taylor, 98 Fed. R. 643.

20 In re Tyler, 149 U. S. 164; Porter v. Sabin, 149 U. S. 473. It has been held that a Federal court may foreclose a mortgage upon property held by a receiver appointed by a State court in a suit to which the mortgagee was not a party; and that in such foreclosure suit the Federal court can determine the claim of the holders of receivers' certificates issued under the order of the State court to a preference over the mortgage. Metropolitan Tr. Co. v. Lake Cities El. Ry. Co., 100 Fed. R. 897. Cf. Jenks v. Brewster, 96 Fed. R. 625, and supra, note 9; infra, § 251.

21 Porter v. Sabin, 149 U. S. 473;

18 Ball v. Tomkins, 41 Fed. R. 486. Rejall v. Greenhood, 60 Fed. R. 784.

See infra, § 240.

19 Wickham v. Hull, 60 Fed. R. 326; In re Connaway, Receiver, 178 U. S.

But see infra, note 50, and § 251.
22 Porter v. Sabin, 149 U. S. 473;
infra, § 251.

considered to be in the court's custody." The entire property of a corporation is not in the custody of a court that has appointed a receiver over the assets of another corporation which owns a majority of its stock and operates its railroad under a lease; and consequently a State court may appoint a receiver of the lessor after the appointment by a Federal court of a receiver of the lessee and stockholder. Formerly a Federal receiver could not be sued without the permission of his court.25 The Judiciary Act of 1887 abrogated this rule; 26 but a judgment against him cannot be enforced without the permission of the Federal court.27 A State court cannot levy an attachment or garnishee process against a debt pending an action in a Federal court to collect the same.28 Where a State court has attached a debt before the appointment of a receiver of the creditor by the court of another State, the Federal court directed that judgment be entered against the receiver in an action by him. to collect the debt unless he should consent to a stay of proceedings until the State court had acted upon the matter.29 A Federal receiver will not be ordered to take possession of property upon which a State court has levied an attachment before his appointment was prayed.30

23 In re Chetwood, 165 U. S. 443. Where the receiver of a national bank appointed by the Comptroller of the Currency refuses to sue to col lect a cause of action die the bank, one of the stockholders may sue in a State court to collect such assets on behalf of the bank, and should make the bank and its receiver parties defendant. Ibid. After the appointment by the Comptroller of the receiver of a bank, the State court may levy a writ of attachment against the bank and the receiver as garnishees. The State court then has jurisdiction to enter a judgment establishing the claim, but not to order the receiver to make a payment out of the assets of the bank. It is the duty of the receiver upon the service of the writ to report the facts to the Comptroller, and it then becomes the duty of the Comptroller

to hold any funds coming to his hands through the Treasurer as the proceeds of the assets subject to any rights that have been adjudicated by the State court. Earle v. Conway, 178 U. S. 456; Earle v. Pennsylvania, 178 U. S. 449.

24 Central R. & B. Co. v. Farmers' L. & T. Co., 56 Fed. R. 357.

25 Barton v. Barbour, 104 U. S. 126. 26 25 St. at L. 866, § 3, p. 436; infra, § 251.

27 Porter v. Sabin, 149 U. S. 473; Mo. Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. R. 311, 314; infra, § 251.

28 Wallace v. McConnell, 13 Pet. 136; Rosenstein v. Tarr, 51 Fed. R. 368; Mack v. Winslow, 59 Fed. R. 316.

29 Avery v. Boston S. D. & T. Co., 72 Fed. R. 700. See Hale v. Bugg, 82 Fed. R. 33.

30 Southern B. & T. Co. v. Folsom (C. C. A.), 75 Fed. R. 929.

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