32

Where there is a dispute between the State sheriff and the United States marshal as to the right to possession, the proper remedy is ordinarily a petition of intervention pro interesse suo by the sheriff in the Federal action.31 It has been held that an original bill for an injunction will not lie. But an ancillary bill has been sustained in such a case, and it was then said in some cases a summary motion might be granted according to the circumstances.33 In order to preserve his right to a priority, it seems that the proper course is for the sheriff to serve upon the marshal as garnishee a notice of his writ. A writ of replevin issued by a State court in such a case is void.35

The property of a debtor taken into the custody of a Federal court by seizure under process issued under its judgment remains under its control to be applied in satisfaction thereof, notwithstanding the death or insolvency of the judgment debtor and the institution of proceedings in a State court to administer his estate, and irrespective of subsequent State legislation." This doctrine does not prevent the removal to the Federal court in a proper case of a suit in which a State court has appointed a receiver," or taken property into its possession under a common-law writ; 38 nor the filing of a bill to set aside or stay proceedings under a judgment or decree of a State court; 39 nor a bill to set aside a fraudulent transfer of property made

31 Pickett v. Tiler & S. Co., 40 Fed. R. 313; Gambel v. Pitkin, 124 U. S. 131. See Freeman v. Howe, 24 How. 45; People's Bank v. Calhoun, 102 U. S. 256; Beckett v. Sheriff of Harford Co., 21 Fed. R. 32.

an illegal levy. Porter v. Davidson, 62 Fed. R. 626.

36 Rio Grande R. Co. v. Gomila, 132 U. S. 478, 481; Leadville Coal Co. v. McCreery, 141 U. S. 475; Straine v. Bradford Sav. B. & T. Co., 88 Fed. R.

82 Pickett v. Tiler & S. Co., 40 Fed. 571. R. 313.

33 Krippendorf v. Hyde, 110 U. S. 276, 287, per Matthews, J. See Porter v. Davidson, 62 Fed. R. 626.

34 Gambel v. Pitkin, 124 U. S. 132. 35 Freeman v. Howe, 24 How. 450; Summers v. White (C. C. A.), 71 Fed. R. 106. It has been held that when a Federal court cannot issue a writ to take property from the possession of a sheriff, it may entertain a suit against him for damages caused by

37 In re Iowa & Minn. Constr. Co., 10 Fed. R. 401.

39 Kern v. Huidekoper, 103 U. S. 485, 491, 492.

39 Gaines v. Fuentes, 92 U. S. 10; Barrow v. Hunton, 99 U. S. 80, 83; Sahlgard v. Kennedy, 2 Fed. R. 295; Arrowsmith v. Gleason, 129 U. S. 86; Marshall v. Holmes, 141 U. S. 589; Robb v. Vos, 155 U. S. 13. But see Central Nat. Bank v. Stevens, 169 U. S. 432; infra, § 21.

42

41

40

45

by an administratrix under the order of a court of probate; "0 nor a bill to set aside a settlement of an administrator's account made by a probate court; nor a suit to foreclose a mortgage or to establish a lien upon property in a State court's custody, provided that no sale is ordered until the proceedings in the State court are terminated; 3 and that neither the sheriff, nor, without the permission of the court, a State receiver is a necessary party to the suit." Nor does it prevent an action in personam between the same parties involving the same issues, provided that the property is not seized therein. The rule does not apply where the Federal courts exercise superior jurisdiction for the purpose of enforcing the supremacy of the Constitution and laws of the United States.46 Property is deemed to be in the custody of a court from the time when a suit or action seeking to have it placed there has been actually begun: either by the levy of a writ in a proceeding in rem," or by the filing of a bill praying the appointment of a receiver, or by an adjudication of bankruptcy.49 It was held that the appointment of a State receiver who had not filed the statutory bond nor taken possession was no bar to the seizure of a boat by the marshal under process in admiralty.50 Where

48

40 Central Nat. Bank v. Fitzgerald, 94 Fed. R. 16.

48 Farmers' L. & T. Co. v. Lake St. El. R. Co., 177 U. S. 51. See Bridge41 Bertha Z. & M. Co. v. Vaughan, port El. & I. Co. v. Meader (C. C. A.), 88 Fed. R. 566.

42 Gates v. Bucki, 53 Fed. R. 961, 968; Edwards v. Hill, 59 Fed. R. 723; Wheelwright v. St. Louis, N. O. & O. C. & T. Co., 50 Fed. R. 709, 711. But see Cohen v. Solomon, 66 Fed. R. 411.

48 Wheelwright v. St. Louis, N. O. & O. C. & T. Co., 50 Fed. R. 709, 711. But see Erwin v. Lowry, 7 How. 172. 44 Porter v. Sabin, 149 U. S. 473. 45 Merritt v. American S. B. Co., 79 Fed. R. 228; Rejall v. Greenhood, 60 Fed. R. 784. Cf. Huntington v. Laidley, 176 U. S. 668. But see infra, § 129. 46 Tefft v. Sternberg, 40 Fed. R. 2, 6, per Speer, J., citing Covell v. Heyman, 111 U. S. 176. See Moran v. Sturges, 154 U. S. 256, 284.

47 Taylor v. Carryl, 20 How. 583; Heidritter v. Elizabeth Oil-cloth Co., 112 U. S. 294.

72 Fed. R. 115; Appleton Waterworks Co. v. Central T. Co., 93 Fed. R. 286; Shields v. Coleman, 157 U. S. 168, 177.

49 White v. Schloerb, 178 U. S. 542. 50 Moran v. Sturges, 154 U. S. 256. See also De La Vergne R. M. Co. v. Palmetto Br. Co., 72 Fed. R. 579; Woodbury v. Allegheny & K. R. Co., 72 Fed. R. 371. It has been held that a vessel operated by a State receiver can be seized in a foreign State by the United States District Court in admiralty there held upon a libel to enforce a claim which arose during his management of the vessel. The Willamette Valley (C. C. A.), 66 Fed. R. 565; s. c., Chandler v. The Willamette Valley, 63 Fed. R. 130. Cf. Roxbury v. The Lotta, 65 Fed. R. 319. It seems, however, that a court

the sheriff held, property under summary proceedings for a foreclosure under the Georgia statute, it was held to be in the custody of a State court." But it was held that property was not put in the custody of a State court by the institution of a suit to establish and enforce a lien thereupon, when no actual possession had been taken.52

Property continues in the custody of the State courts until the cause is practically terminated, or the custody finally abandoned, although it has been held that a formal order of termination is not indispensable.53 After a Federal court had discharged a receivership and surrendered the property in return for a bond given in lieu of the same, it was held that the State court might appoint a receiver, and that it was improper for the Circuit Court of the United States to vacate its order of discharge and claim possession by virtue of its prior receivership. The discharge of a Federal receivership before the appointment of a State receiver was held to validate the latter, although made in a suit instituted during the pendency of the Federal receivership.55 It has been held that the sheriff may seize property while still in the possession of the United States marshal after an order by the Federal court directing its return to its owner.5 56

Where suits are pending in a State and a Federal court to enforce the same cause of action, the usual practice is to stay proceedings in the court where the second case was commenced until the first is determined; not to dismiss the second suit." But a bill against an administrator which sought

of admiralty in the same district cannot take possession of a vessel held by a State receiver in a proceeding to enforce a claim which arose before the receiver's appointment. The J. G. Chapman, 62 Fed. R. 939; Kressel v. E. L. Cain, 45 Fed. R. 367.

51 Tefft v. Sternberg, 40 Fed. R. 2. 52 Compton v. Jesup, 68 Fed. R. 263, 283.

53 Buck v. Piedmont & A. L. Ins. Co., 4 Fed. R. 849; Andrews v. Smith, 5 Fed. R. 833; Lake Nat. Bank v. Wolfeborough Sav. Bank (C. C. A.), 78 Fed. R. 517; Foster v. Lebanon Springs R. Co., 100 Fed. R. 543. But

see Shields v. Coleman, 157 U. S. 168, 181; Missouri Pac. R. Co. v. Fitzgerald, 160 U. S. 556.

54 Shields v. Coleman, 157 U. S. 168, 178, 179. But see Union T. Co. v. Rockford, R. I. & St. L. R. Co., 6 Biss. 197. As to the effect of such a bond when jurisdiction was first acquired by the State court, see Southern B. & T. Co. v. Folsom, 75 Fed. R. 929.

55 Liggett v. Glenn, 51 Fed. R. 381. 56 Daniels v. Lazarus, 65 Fed. R. 718; Lazarus v. McCarthy, 32 N. Y. Supp. 833.

57 Hughes v. Green (C. C. A.), 84

to interfere with assets in the custody of a State court of bate was held to be demurrable.58

pro

It has been said that "when a State court and a court of the United States may each take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction involved is exhausted, and this rule applies alone in both civil and criminal cases." 59 Thus, the Federal courts ordinarily refuse to discharge by habeas corpus before his trial, and even in some cases before he has exhausted his remedy by writ of error or appeal, after conviction, a prisoner held under indictment by a State court.60 So, where the marshal had seized under a charge of a crime against the United States a prisoner held by the sheriff under a charge of a violation of the State criminal law, the Federal court upon a plea in abatement sustained the indictment found by its own grand jury, but ordered that the accused be returned to the State authorities.61 Conversely, a State court has no power to release by habeas corpus a prisoner held under the process of a court of the United States.62 The acts of Congress, however, authorize in certain cases the removal of criminal proceedings from a State to a Federal court.63

The institution of a proceeding in bankruptcy gives jurisdiction to the District Court of the United States to take from the custody of a State court in certain cases property seized by it within four months before the filing of the petition. A District Court of the United States will enjoin a suit in a State

Fed. R. 833; Zimmerman v. So Relle, 80 Fed. R. 417; infra, § 129. See U. S. v. Belknap, 73 Fed. R. 19.

58 Lant v. Manley, 71 Fed. R. 7; reversed on another point, s. c. (C. C. A.), 75 Fed. R. 627.

59 Harkrader v. Wadley, 172 U. S. 148, 164, per Shiras, J., citing Ex parte Crouch, 112 U. S. 178.

60 Ex parte Royall, 117 U. S. 241, 254; infra, § 367. A Federal court can discharge by habeas corpus a marshal or deputy marshal who has been arrested under State process in a criminal proceeding to punish him for an act done in obedience to an

order of a Federal court or an executive department of the United States. In re Neagle, 135 U. S. 1; Anderson v. Elliott (C. C. A.), 101 Fed. R. 609.

61 U. S. v. Wells, 11 Am. Law Reg. (N. S.) 424; s. C., Fed. Cases No. 16,665.

62 Ableman v. Booth, 21 How. 506. See Tarble's Case, 13 Wall. 397; Robb v. Connolly, 111 U. S. 624; In the Matter of Spangler, 11 Mich. 298.

63 U. S. R. S., §§ 641, 643; 18 St. at L., p. 401; Tennessee v. Davis, 100 U. S. 257; infra, §§ 383, 388, 389.

64 30 St. at L., p. 564. See chapter on Bankruptcy Practice, infra.

court commenced subsequent to an adjudication of bankruptcy to take possession of property held by the bankrupt or his trustee.65

§ 10. Property in the custody of another Federal court.The different Circuit Courts of the United States, acting upon the principle of judicial comity, usually, when property has been taken into the custody of another Circuit Court, or when proceedings have been instituted therein for such a purpose, refuse to interfere with the same. Thus, where proceedings to cancel a mortgage had been instituted in one district, the Circuit Court of another district stayed proceedings upon a bill therein filed for the foreclosure of such mortgage until the determination of the first suit. So, where a receiver has been appointed to take possession of certain property, such as a railroad, which is situated in several districts, it is the usual practice for the Circuit Courts in the other districts to appoint the same person as ancillary receiver of the property within their territorial jurisdiction; to treat the court in which the proceedings were first instituted as that of primary jurisdiction. and of principal decree, and to make the administration of the property in the latter court ancillary thereto. Accordingly,

the court of ancillary jurisdiction refused to direct the payment of a judgment against the corporation recovered in a State court within its district where an account of the funds in its receiver's hands was necessary, and referred the petitioner to the court of primary jurisdiction for relief. This rule, however, is largely within the discretion of each Circuit Court, and cases have arisen in which each court has administered the assets within its jurisdiction independently of the administration of the court of primary jurisdiction."

65 White v. Schloerb, 178 U. S. 542. § 10. Hurd v. Moiles, 28 Fed. R. 897.

2 Williams v. Hintermeister, 26 Fed. R. 889; Parsons v. Charter Oak L. I. Co., 31 Fed. R. 305; infra, § 242.

3 Farmers' L. & T. Co. v. Northern Pac. Ry. Co., 72 Fed. R. 26, 30, 31; Clyde v. Richmond & D. R. Co., 65 Fed. R. 336.

Wabash, St. L. & P. Ry. Co., 29 Fed. R. 161; Central T. Co. v. Wabash, St. L. & P. Ry. Co., 29 Fed. R. 618; U. S. T. Co. v. Wabash, St. L. & P. Ry. Co., 42 Fed. R. 343. See also Mercantile T. Co. v. Kanawha & O. Ry. Co., 39 Fed. R. 337; Central T. Co. v. East Tenn., Va. & G. Ry. Co., 69 Fed. R. 658; N. Y. Security & T. Co. v. Equitable Mtg. Co., 71 Fed. R. 556; Rey

4 Central T. Co. v. East Tenn., Va. nolds v. Stockton, 140 U. S. 254, 272; & G. R. Co., 30 Fed. R. 895.

infra, § 242.

The Wabash Cases: Atkins v.