rupt might convey; the act gives him no new right of property, or power over it. Ex parte Christy, 3 How. 316, fully sustains the principle, in which the court say: "There is no doubt that the liens, mortgages, and other securities within the purview of this proviso, so far as they are valid by the State laws, are not to be annulled, destroyed, or impaired under the proceedings in bankruptcy, but they are to he held of equal obligation and validity in the courts of the United States as they would be in the State court." It is not necessary to ascertain what constitutes a lien at common law, in equity or admiralty, or in the civil law. The lien protected is such a one as is known to the law of the State in which the question arises. Savage v. Best, 3 How. 119; Norton v. Boyd, 3 How. 436. How will this court ascertain what constitutes a lien by the laws of New Hampshire? By a resort to the adjudications of its highest judicial tribunal; this course is in conformity with general principles and with the course of this court. Green v. Neal, 6 Peters, 295; Livingston v. Moore, 7 Peters, 542; Jackson v. Chew, 12 Wheat. 153; Shelby v. Guy, 11 Wheat. 361.

said District Court that they owed debts not | fesses to pass only such property as the bankcreated in consequence of a defalcation as a public officer, or an executor, administrator, guardian, or while acting in any other judiciary character; because the pleas do not aver or exhibit the notice which was ordered, or which was published, of the time when the several original applications to be declared bankrupt would be considered. 5 Laws U. S. 440, ch. 9, sec. 1; United States v. Marvin, 3 How. 620; Elliott v. Peirsol, 1 Peters, 338; Ex parte Bollman, 4 Cranch, 93; Sharp v. Spier, 4 Hill, N. Y. 76; Sharp v. Johnson, 4 Hill, 92; Bank of Utica v. Rood, 4 Hill, 535; 2 Christian's Bank. Law, 20, 21, 22; Cooper on Bank. Sta. 165; Buckland v. Newsome, I Taunt. 477; Sackett v. Andros, 5 Hill, 330; Stephens v. Ely 6 Hill 608; Brereton v. Hull, 1 Denio, 75; Varnum v. Wheeler, 1 Denio, 331; Maples v. Burnside, 1 Denio, 332; Thatcher v. Powell, 6 Wheat. 119; Wilcox v. Jackson, 13 Peters, 511, 516, 517; Walden v. Craig's Heirs, 14 Peters, 147; Hickey v. Stewart, 3 How. 762; Wheeler v. Townsend, 3 Wend. 247; Gordon v. Wilkinson, 8 D. & E. 507; 1 Chitty on Plead. 223; Owen on Bank. App. 25; Archbold on Bank. App. 9 and 97; Wyman v. Mitchell, 1 Cow. 316; Frary v. Dakin, 7 Johns. 75; Ex parte Balch, 3 McLean, 221; United States v. Clark, 8 Peters, 444, 445; Garland v. Davis, 4 How. 131.

II. The several rejoinders of the original defendants, and the matters therein set up, amount in law to a departure from their sever- | al pleas. 1 Chitty on Plead. 648.

III. The statute of the United States, in relation to bankruptcies, passed Aug. 19, 1841, as to all matters of liens and securities adopts the laws of the States respectively, and exempts from the operation of the decree of bankruptcy all property which, at the time of the decree, might be charged with any duty, lien, or security valid by the law of the State in which the duty, lien, or security might arise.

This position is sustained by the language of the act, and is in consonance with the uniform policy of the United States, which has been to adopt the laws, usages, and modes of proceeding of the several States so far as practicable. 1 Laws, 92, 1789, ch. 20, sec. 34; 1 Laws, 93, 1789, ch. 21, sec. 2; 1 Laws, 276, 1792, ch. 36, sec. 2; 4 Laws, 278, 1828, ch. 68, sec. 1; 4 Laws, 281, ch. 68, sec. 2; 1 Laws, 79, ch. 20, sec. 12; 2 Laws, 123, ch. 32, sec. 3; 1 Laws, 106, ch. 5; 5 Laws, 393, ch. 43, sec. 4; 5 Laws, 394, ch. 47, sec. 1; 5 Laws, 321, ch. 35; 5 Laws, 410, ch. 2, sec. 1.

An attachment on mesne process was known 615*] to the laws of the United States, as a lien and security, and recognized by its judiciary, prior to the bankrupt statute. 1 Laws, 602, ch. 75, sec. 16; 3 Laws, 33, ch. 16, sec. 28; 3 Laws, 83, ch. 56, sec. 6; 1 Laws, 594, ch. 71, sec. 15; United States v. Graves, 2 Brock. 381; Tyrell's Heirs v. Rountree, 1 McLean, 95; S. C. 7 Peters, 464; Beaston v. Farmers' Bank of Delaware, 12 Peters, 102; Wallace v. McConnell, 13 Peters, 151.

I now recur to the position, that the bankrupt statute adopts liens which are so by the laws of the several States. Its correctness is evident from the proviso in the second section of the act, and from the fact that the act pro

IV. An attachment on mesne process, on the 19th of August, 1841, and on the 10th of October, 1842, was a lien or security valid by the laws of the State of New Hampshire.

In support of this, I refer to the laws of New Hampshire, edition of 1830, pp. 58, 59, 101, 105, 106; to Kittridge v. Warren and Kittridge v. Emerson, in manuscript, not yet reported. These cases, and the authorities cited in them, exhibit the law of New Hampshire as it has been recognized from its early history. The principle is sustained by the courts of other States. Kilborn v. Lyman, 6 Met. 304; Hubbard v. Hamilton Bank, 7 Met. 342; Am. Ex. Bank v. Morris Canal Co. 6 Hill, N. Y. 367; Storm v. Waddell, 2 Sandford, Ch. R. 494; Davidson v. Clayland, 1 Harr. & Johns. 546. I refer, also, to an opinion of a distinguished jurist, Hon. Jeremiah Mason, which sustains the views submitted.

*In opposition to the two last posi- [*6 16 tions, Ex parte Foster, 2 Story, 131, is relied upon. I submit that the authorities relied upon in this case do not support the judgment pronounced. The cases mainly relied upon in Ex parte Foster are Atlas Bank v. Ñahant Bank, 23 Pick. 488, Conard v. Atlantic Ins. Co. 1 Peters, 386, 441, 443, Giles v. Grover, 6 Bligh, 279. An examination of them will show that they sustain, so far as applicable, the views which I have presented; the case of Giles v. Grover proceeded entirely upon the ground of prerogative, and it was so regarded in a subsequent case. Godson v. Sanctuary, 1 Nev. & Mann. 52.

The case Ex parte Foster is not sustained by the reasons; our answer to them is complete. A statute lien is exactly what the statute makes it, and it derives no aid from the analogies of other liens. Several of the adjudications of this court, to which I have referred, are in opposition to the doctrines of Ex parte Foster.

V. Assuming that the bankrupt statute adopts the laws of the States respectively as to liens and securities, and that an attachment on

debt; by virtue of which the sheriff attachedly, and which are not inconsistent with the proand took into his custody and possession, as visions of the second and fifth sections of this security for such judgment as the plaintiffs in act." their said suit might obtain, certain goods and chattels on a schedule annexed, and now retains the custody thereof; and therefore pray judgment to be levied of the same.

To this replication the defendants rejoined, that Howland, the assignee, on the 25th of July, 1843, presented to the District Court of the United States a petition, setting forth the plaintiffs' attachment of the goods, and aver619*] ring that such attachment *was not a valid lien on the said goods, and that therefore the sheriff had no right to detain them; and prayed the court to order and decree that the sheriff should deliver the goods to the assignee, or account for their value; and that the court, after notice to the parties and hearing, had decreed accordingly.

As it is not alleged that the attachment in this case is subject to any imputation of inconsistency with the provisions of the second and fifth sections of the act, it will not be necessary to give them further attention. Taking the words of the proviso, disconnected with this exception, they are of the most general and expansive character; they are equivalent to a saving of all liens or securities, etc., from any construction of the act that shall in any wise annul, destroy, or impair them; and, furthermore, to test their validity, we are referred to the laws of the States, respectively. At common law there can be no lien without possession. It is there defined, a right in one man to retain that which is in his possession belonging to another, till certain demands of To these rejoinders the plaintiffs demurred; him, the person in possession, are satisfied. and the Court of Common Pleas entered their Hammond v. Barclay, 2 East, 235. In marijudgment, as follows: "That the plaintiffs re-time law, liens exist independently of possescover against the said Philip Peck and Wil-sion, either actual or constructive. In courts liam Bellows $1,818.87, damages and costs of of equity, the term "lien" is used as synonysuit; which sums are to be levied only of the mous with a charge or incumbrance upon a goods and chattels and estate of the defendants thing, where there is neither jus in re, nor ad attached upon the plaintiffs' writ aforesaid, and rem, nor possession of the thing. Hence a judgdescribed in the plaintiffs' said replications, ment which, by virtue of the statute of Westand not otherwise." minister 2d (commonly called the Statute of Elegit), is a charge upon the lands of the debtor, is called in courts of equity in England, and in the courts of law of many of these States, a lien, and executions which bind the personal property of the debtor, after their delivery to the sheriff, are termed "liens" both before and after the property is seized and taken into the custody of the law by its officer. In the case of Waller v. Best, 3 Howard, 111, this court decided that in Kentucky the creditor obtains a lien upon the property of his debtor by the delivery of a fi. fa. to the sheriff, and this lien is as absolute before the levy as after; and that a creditor is not deprived of this lien by an act of bankruptcy on the part of the debtor, committed before the levy is made, but after the execution is in the hands of the sheriff; and "it is unnecessary," say the court, "to remark upon the cases which have been decided in other States, or in England, because the question depends altogether upon the law of Kentucky.

This judgment of the Court of Common Pleas was removed by writ of error to the Superior Court of Judicature of the State of New Hampshire, at the instance of the defendants; and, on hearing the judgment of the court below, was affirmed.

The defendants, now plaintiffs in error, then prosecuted their writ of error to this court, under the twenty-fifth section of the Judiciary Act of 1789. As the record shows that the highest court of judicature of the State of New Hampshire has decided against a title claimed under a statute of the United States, it is clearly a proper case for the revision of this court. Various questions have been made on the argument of this case, as to the regularity of the bankrupt proceedings, and the validity of the certificates of discharge set forth in the pleas of the defendants below. But we do not think it necessary to notice them; and shall therefore assume that the bankrupt proceedings are regular, and properly set forth in the pleas.

I. The first question that will present itself for our consideration will be, whether the replication of the plaintiffs below sets forth matter in avoidance of the plea which will entitle them to the judgment prayed for, and afterwards rendered by the court. In order to test its sufficiency, we must first inquire, whether an attachment of property under the process peculiar to New Hampshire and some other States creates a lien or security on the property attached, within the true meaning and intention of the proviso of the second section of the Bankrupt Act.

The words of this proviso are as follows: "And provided, also, that nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women, or any liens, mortgages, or other securities on 620*] property, real or *personal, which may be valid by the laws of the States respective

It would be an arbitrary and fanciful exposition of the terms of this proviso to say that it. saved common law liens, and not statute liens; liens after judgment, and not liens before judgment; or to assert that it is the policy of the Bankrupt Act to save the lien of a factor or bailee, while it annuls that of the judgment or execution creditor.

*It is clear, therefore, that whatever [*621 is a valid lien or security upon property, real or personal, by the laws of any State, is exempted by the express language of the act.

Let us inquire, then, whether an attachment on mesne process is a valid lien or security on the property attached by the laws of New Hampshire, as expounded by her courts.

This species of process is peculiar to the New England States. As early as the year 1650, while New Hampshire was united to the Massachusetts colony, it was enacted, that

a "lien." See 9 Mass. Rep. 210; Fettyplace v. Dutch, 13 Pick. 392; Arnold v. Brown, 24 Pick. 95; Kilborn v. Lyman, 6 Met. 299, etc. In Connecticut, also, see Carter v. Champion, 8 Conn. 550.

"henceforth goods attached upon any action | brance created by an attachment is denominated shall not be released upon the appearance of the party or judgment, but shall stand engaged until the judgment or the execution granted on the same be discharged." Charters and Colony Laws, 50. And a proviso was added in 1659, that, when execution was not taken out within one month after judgment, the attachment shall be released and void in law, etc.

The earliest provincial legislation of New Hampshire adopted the same system, which has been continued with some variations to the present day. In 1718, they describe the goods attached as "security to satisfy the judgment" which the plaintiff might recover on the trial. Provincial Laws N. H. 113. In the statute of July, 1822, and of November sessions, 1842, ch. 2, the charge or incumbrance created by an attachment is denominated a "lien.” The mode of proceeding and practice, as at present established, under writs of attachment in the State of New Hampshire, is thus described by the Superior Court of that State, in the case of Kittridge v. Warren:

Having thus shown that an attachment on mesne process creates a charge on the property attached in favor of the plaintiff, which is, in the language of the statutes and courts of New Hampshire, called a "security" and a "lien,” it will be unnecessary to notice arguments which have been urged against them on the ground of their peculiarities or distinctive features. The mere accidents of the subject cannot alter its essence. It is a statute lien, and therefore as much protected by the general language of the proviso as a common law lien. II. Could this lien be defeated by the interposition of the plea of bankruptcy as a bar to a judgment in favor of the plaintiff ?

By the fourth section of the act, it is declared, that "the certificate or discharge, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt which are provable under this act, and shall or may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever." And it is contended, as the lien of the attachment was defeasible, and could only be rendered absolute and of practical benefit to the plaintiff by the recovery of a judgment for his demand, which is effectually barred by the plea, that therefore the action and the lien must fall together.

"In an attachment of personal estate, the sheriff, upon the service of the writ, takes the possession of the goods, and acquires thereby a special property in them, for the purpose of enforcing and protecting the attachment, and the rights of al concerned in the attachment and in the goods. He is then accountable, both to the plaintiff and to the defendant, for the disposition of them. If the plaintiff obtains a judgment, they are seized and sold upon the execution. If he fails, they are returned to the debtor. Some person may become accountable for them, and they may thus go back into the This conclusion would be undoubtedly corhands of the debtor, and the attachment be dis-rect, if we construe *this section of the [*623 solved; the sheriff having, by means of a re- act by itself, and without regard to other proceipt for them, the security of some third per- visions of the same act. son, which is in that case to be made available But it is among the elementary principles to the creditor. But if the attachment is not with regard to the construction of statutes, that dissolved, it fastens itself upon the goods, as a every section, provision, and clause of a statute charge or incumbrance, like the attachment shall be expounded by a reference to every upon real estate, and the avails of them are other; and if possible, every clause and provifirst to be applied to the satisfaction of the sion shall avail, and have the effect contemjudgment, when recovered. Subsequent at-plated by the Legislature. One portion of a tachments may be made upon them by the 622*] same sheriff, and *where there are several attachments, the attaching creditors have a right to priority of satisfaction, so far as those goods are concerned, not by priority of judgment, but by that of the attachment. Poole v. Symonds, 1 N. H. 292, 294; Bissell v. Huntington, 2 Ib. 142; Hackett v. Pickering, 5 Ib. 24; Kittredge v. Bellows, 7 Ib. 428; Clarke v. Morse, 10 Ib. 238."

The statute of elegit has never been adopted in this State, and hence a judgment is not treated as a charge or lien on the lands of the defendant, and the reason would seem to be, because the plaintiff could select his security upon specific property by his attachment at the commencement of his suit, and hold it for thirty days after judgment for the purpose of satisfaction. Hence their courts have denominated the charge or security thus obtained a lien. See Dunken v. Fales, 5 N. H. 538; Kittredge v. Bellows, 7 Ib. 427; Clarke v. Morse, 10 Ib. 238; Burnam v. Folsom, 5 Ib. 568; Kittridge v. Warren; Kittridge v. Emerson, etc. In Massachusetts, also, the charge or incum

statute should not be construed to annul or destroy what has been clearly granted by another. The most general and absolute terms of one section may be qualified and limited by conditions and exceptions contained in another, so that all may stand together.

The proviso to the second section of this act declares, "that nothing in this act contained shall be construed to annul, destroy, or impair,”" any liens, etc. Here, then, is an absolute prohibition to the court to construe the general terms of the fourth section so as to defeat the lien saved by the second. It is clear, therefore, that the court, while it grants the defendant the benefit of his discharge, must do it in such a manner as not to impair the rights saved to the plaintiff. All liens, whether by mortgage or judgment, by common law or by statute, are for the purpose of obtaining satisfaction of some debt or claim; and the construction of the fourth section which would treat the bankrupt's certificate as an absolute discharge from all his debts, for every purpose, would be alike destructive of them all. The mortgagee, the factor, or the bottomry lender, is in no

better condition than. the judgment or attach- thority from the same sovereign, and, as rement creditor. And an attempt to make a dis- gards the District Court, a foreign forum, in tinction between them, which would save the every way its equal. The District Court had no rights of one, and impair or destroy those supervisory power over it. The acts of Conof the other, would be judicial legislation-jus gress point out but one mode by which the dare, not jus dicere. In order, therefore, to judgments of State courts can be revised or give full effect to all the provisions of the act, annulled, and that is by this court, under the the bankrupt's certificate must be made to twenty-fifth section of the Judiciary Act. In operate as a discharge of his person and future certain cases, where one of the parties is a acquisitions, while, at the same time, the mort- citizen of another State, he has the privilege gagees or other lien creditors shall be permit- of removing his suit to the courts of the Unitted to have their satisfaction out of the prop-ed States. But in all other respects, they are erty mortgaged or subject to lien. A legal right to be regarded as equal and independent triwithout a remedy would be an anomaly in the bunals. law.

The judgment rendered in this case has fully attained both these objects. While it discharges the defendant from personal liability, it saves to the plaintiffs below their remedy, and awards their satisfaction out of the property attached, "and not otherwise." The books are full of precedents for such a judgment. When an adadministrator pleads plene administravit, the plaintiff may admit the plea, and take judgment of assets, quando acciderint. When the defendant pleads a discharge of his person under an insolvent law, the plaintiff may confess the 624*] *plea, and have judgment to be levied only of defendant's future effects. 1 Chitty, Pl. 548.

III. The only question that remains to be considered is, whether the rejoinder of the defendants below is a sufficient answer to the replication.

It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or [*625 otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin or any other process, for this would produce a conflict extremely embarrassing to the administration of justice. In the case of Kennedy v. The Earl of Cassilis, Lord Eldon at one time granted an injunction to restrain a party from proceeding in a suit pending in the Court of Sessions of Scotland, which, on more mature reflection, he dissolved; because it was admitted, if the Court of Chancery could in that way restrain proceedings in an independent foreign tribunal, the Court of Sessions might equally enjoin the parties from proceeding in chancery, and thus they would be unable to proceed in either court. The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt. to exercise that power over a party who is a litigant in another and independent forum.

It sets up, by way of avoidance of the attachment pleaded in the replication, that the District Court of the United States, on the petition of the assignee, and on notice to the plaintiff in this suit, had decreed that this attachment was not a lien on the property in the custody of the sheriff, and ordered him to deliver it up to the assignee, or account to him for its value. It does not pretend to show how the proceedings in the Court of Common Pleas had been removed to the District Court, or how its judgment on the cause pending before it could be thus anticipated; nor that the District Court had found any means of enforcing its decree by compelling the sheriff to deliver the property attached to the assignee, and thus, in effect, destroy the lien; but it seems to rely on the decree as a judgment on the question, which should operate by way of estop- The Act of Congress of the 2d of March, pel. This necessarily involves the inquiry, 1793, ch. 66, sec. 5, declares that a writ of inwhether the District Court was vested with any junction shall not be granted "to stay proceedpower or authority to oust the Court of Com-ings in any court of a State." In the case of mon Pleas of its jurisdiction over the cause, and supersede its judgment, by this summary proceeding.

The District Court has exclusive jurisdiction "of all suits and proceedings in bank ruptcy." But the suit pending before the Court of Common Pleas was not a suit or proceeding in bankruptcy; and although the plea of bankruptcy was interposed by the defendants, the court was as competent to entertain and judge of that plea as of any other. It had full and complete jurisdiction over the parties and the subject matter of the suit; and its jurisdiction had attached more than a month before any act of bankruptcy was committed. It was an independent tribunal, not deriving its au

Diggs v. Wolcott, 4 Cranch, 119, the decree of the Circuit Court had enjoined the defendant from proceeding in a suit pending in a State court, and this court reversed the decree, because it had no jurisdiction to enjoin proceedings in a State court.

It follows, therefore, that the District Court had no supervisory power over the State court, either by injunction or the more summary method pursued in this case, unless it has been conferred by the Bankrupt Act. But we cannot discover any provision in that act which limits the jurisdiction of the State courts, or confers any power on the Bankrupt Court to supersede their jurisdiction, to annul or anticipate their judgments, or wrest property from