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7 How. 612–626

Notes on U. S. Reports.


lien obtained prior to bankruptcy; In re Wynne, Chase Dec. 256, F. C. 18,117, holding, under Virginia statute, landlord has a valid lien upon goods of tenant; In re Clapp, 2 Low. 469, F. C. 2,785, holding attachment liens not dissolved by acceptance and recording of composition agreement; In re Albrecht, 1 Fed. Cas. 316, holding lien of attaching creditor not destroyed by debtor giving bond to satisfy judgment; Sims v. Jacobson, 51 Ala. 190, holding discharge in bankruptcy does not abate attachment suit; Crowe v. Reid, 57 Ala. 286, holding attachment liens can be enforced in State courts after adjudication of bankruptcy; Brown v. Newman, 66 Ala. 277, holding assignee of bankrupt takes property subject to valid liens; Holladay v. Hare, 69 Cal. 517, 11 Pac. 29, holding suit where property is attached, not barred by discharge in bankruptcy; Thomas v. Brown, 67 Md. 517, 10 Atl. 715, holding attachment creates valid lien; Cunningham v. Hall, 69 Me. 354, holding attachment lien not released by composition in bankruptcy; Ives v. Sturgis, 12 Met. 464, holding attachment on mesne process recognized as a valid lien by law of Massachusetts; Seibel v. Simeon, 62 Mo. 257, holding jurisdiction of State court to enforce mechanic's lien not affected by proceeding in bankruptcy; Zollar v. Janvrin, 49 N. H. 117, 6 Am. Rep. 471, holding creditor's right to security afforded by bond is in the nature of a lien; Galbraith v. Fisher, 22 Pa. St. 415, holding sale of property by assignee in bankruptcy not affecting lien acquired by attachment; Bauer v. Stern, 1 S. C. 119, holding proceedings in State court to enforce lien not affected by bankruptcy proceedings.

Cited in valuable note, discussing this subject, in 43 Am. Dec. 584, 80 Am. Dec. 142. Cited, arguendo, in Samson v. Burton, 5 Ben. 342, 4 N. B. R. 16, F. C. 12,285, assuming attachment levied four months prior to commencement of bankruptcy proceedings a valid lien; Re Fortune, 1 Low. 307, F. C. 4,955, holding, where attachments are dissolved by assignment in bankruptcy, costs are paid by assignee; in dissenting opinion, Myers v. Mott, 29 Cal. 375, majority of court holding attachment lien not preserved in case of death of defendant before judgment; Conner v. Southern Exp. Co., 42 Ga. 38, holding action at law does not abate with bankruptcy of plaintiff; Day v. Bardwell, 97 Mass. 254, holding majority in bankrupt laws required in national legislation only; Johnson v. Bishop, Woolw. 327, 8 N. B. R. 535, F. C. 7,373, refusing to maintain action against sheriff for attached property.

Distinguished in The Velocity, 28 Fed. Cas. 1142, holding act passed by legislature of Ohio created no lien upon vessels; Crockett v. Crain, 33 N. H. 551, holding an attachment of separate property founded on partnership debt, not valid; Tracy v. McManus, 58 N. Y. 256, holding, under subsequent statute, proceedings in bankruptcy dissolved attachment lien; Bowley v. Bowley, 41 Me. 546, holding attachment lien lasts only to the time bankrupt obtains his discharge.

Lien. At common law, there could be no lien without possession, but in maritime law, and in equity in England and many of the States, where a lien is synonymous with a charge or incumbrance upon a thing, liens can exist where there is neither jus in re nor ad rem, p. 620.

Cited to this point in Wilmer v. Atlanta, etc., R. R., 2 Woods, 421, F. C. 17,775, and American Nat. Bank v. Northwestern Ins. Co., 89 Fed. 616, holding possession of property not necessary to give court jurisdiction; The Menominee, 36 Fed. 199, holding State statute, providing vessel liable for debts, etc., creates a lien, though not so named in statute; Fidelity, etc., Co. v. Roanoke, etc., Co., 81 Fed. 446, holding warehouse company had lien upon goods in their possession for loans advanced; Donald v. Hewitt, 33 Ala. 547, 73 Am. Dec. 434, holding lien may include equitable mortgage where no right of possession exists; Stern v. Simpson, 62 Ala. 196, holding lien for advances gives no right of property or possession; Shirk v. Thomas, 121 Ind. 150, 16 Am. St. Rep. 383, 22 N. E. 977, holding judgment lien does not extend beyond interest of debtor in land.

Attachment lien.- Valid State liens, being protected in terms by the bankrupt act, the court, in order to give full effect to the act, will make the bankrupt's certificate, when pleaded in bar of an attachment lien, operate as a discharge of his person and future acquisitions, but permit attaching creditor to have satisfaction out of the property subject to the lien, p. 623.

Cited and followed in Hill v. Harding, 130 U. S. 703, 32 L. 1084, 9 S. Ct. 726, holding discharge in bankruptcy not a bar to judgment for purposes of charging sureties; Jordan v. Cass Co., 3 Dill. 194, 195, F. C. 7,517, holding it proper to render judgment to be enforced in particular manner; Holladay v. Hare, 69 Cal. 518, 11 Pac. 29, holding no error for superior court to provide for satisfaction of judgment out of property attached; Bowman v. Harding, 56 Me. 561, holding plaintiff entitled to judgment against property attached; Reed v. Bullington, 49 Miss. 229, holding a judgment where discharge in bankruptcy pleaded, might be rendered against the land; Fisher v. Lewis, 69 Mo. 630, upholding sale of property of bankrupt where levy made prior to adjudication of bankruptcy; Goodsell v. Benson, 13 R. I. 254, holding plaintiff entitled to recover judgment out of attached money; Stoddard v. James, 43 Vt. 576, 5 Am. Rep. 310, holding discharge in bankruptcy will not prevent a judgment in rem being given to attaching creditors. Cited, arguendo, in Phelps v. Sellick, 19 Fed. Cas. 464, 8 N. B. R. 394, collecting cases and holding mortgagee in contempt for attempting to foreclose mortgage without permission of Bankruptcy Court; Fuller v. Aylesworth, 75 Fed. 700, 43 U. S. App. 657, holding judgment limited to a particular fund, a money judgment; Upton v. Hubbard, 28 Conn. 288, 73 Am. Dec. 676, court intimating where

7 How. 612-626

Notes on U. S. Reports.


discharge in bankruptcy is pleaded, a qualified judgment might be rendered; Anderson v. Anderson, 65 Ga. 523, 38 Am. Rep. 801, holding discharge in bankruptcy a valid plea to action on judgment obtained in another State; Gibson v. Green, 45 Miss. 219, holding assignee a necessary party to action based upon an attachment; Holyoke v. Adams, 59 N. Y. 241, refusing leave to defendant to set up in supplemental answer, discharge in bankruptcy.

Distinguished in Bowley v. Bowley, 41 Me. 546, holding discharge in bankruptcy, pleaded in a suit, dissolves any attachment; Ray v. Wight, 119 Mass. 427, 20 Am. Rep. 334, holding plaintiff having attachment lien not entitled to special judgment until bankruptcy discharge is determined.

Liens.— Where a statute speaks in general terms of liens, statutory as well as common-law liens are included, as the mere accidents of a subject cannot alter its essence, p. 622.

Res adjudicata.- A court having jurisdiction of the subjectmatter and parties before it, is competent to pass upon every question that might arise in the cause, and its decision upon such questions, until reversed or set aside, is not open to collateral attack in any other court, pp. 624, 625.

Cited and followed in Stout v. Lye, 103 U. S. 68, 26 L. 429, holding decree of State court a bar to action in Federal court to set aside mortgage; Fuller v. Hamilton Co., 53 Fed. 414, holding decree of State court bars suit in Federal court on same matters; Pennsylvania, etc., R. R. v. National, etc., Co., 58 Fed. 931, holding decision of State court, allowing amendment binding upon Federal court; Stanford v. Worn, 27 Cal. 170, holding decree of United States court confirming Mexican grant not open to collateral attack; Amador v. Mitchell, 59 Cal. 178, holding judgment foreclosing mortgage binding upon those who took with notice; Hibernia, etc., Co. v. Lewis, 117 Cal. 582, 47 Pac. 603, holding in action for a writ, Judgment in foreclosure not open to collateral attack; Butchers, etc., Co. v. Crescent, etc., Co., 37 La. Ann. 881, holding erroneous, Circuit Court decree restraining parties from proceeding on decision at State court; National, etc., R. R. v. Pennsylvania R. R., 52 N. J. Eq. 61, 28 Atl. 73, holding United States court would not review the decision of Hudson Circuit Court. See valuable note, discussing this subject, in 27 Am. Dec. 633. Cited and approved in Carroll v. Carroll, 16 How. 287, 14 L. 941, holding courts of common law are not bound by State court's construction of statutes; Watson v. Jones, 13 Wall. 737, 20 L. 679, dissenting opinion, majority holding pendency of suit, when relied upon to defeat subsequent suit, must be identical; Providence, etc., Co. v. Hill, etc., Co., 109 U. S. 607, 27 L. 1048, 3 S. Ct. 620, dissenting opinion, màjority holding proceedings to limit shipowner's liability under act of 1851, supersede actions brought in State courts.

Distinguished in United States v. Burdick, 1 Dak. Ter. 147, 46 N. W. 573, holding appeal will lile from decision of territorial District Court on habeas corpus; Alexander v. Worthington, 5 Md. 488, holding general views of court unnecessary to decision, not conclusive upon another court; State v. Drake, 40 Wis. 190. 22 Am. Rep. 696, holding opinion of court unnecessary to decision not binding elsewhere.

Courts.- Where court's jurisdiction has once attached, it ought not to be interfered with by any other court of concurrent jurisdiction entertaining subsequent proceedings which would tend to embarrass said court in its administration of justice, either by denying the litigant the right to prosecute his claim or by issuing process, attempt to remove property from its custody, pp. 624, 625. In the Federal courts this holding has been very frequently affirmed and followed: Taylor v. Carryl, 20 How. 596, 598, 15 L. 1032, 1033, holding District Court has no jurisdiction over a vessel previously attached by State court; Freeman v. Howe, 24 How. 457, 16 L. 751, refusing to interfere with property held under attachment by United States courts; Randall v. Howard, 2 Black, 589, 17 L. 271, refusing to annul sale of land made by decree of State court; Riggs v. Johnson Co., 6 Wall. 195, 18 L. 776, collecting cases, refusing to enjoin the issuing of writ of mandamus by Federal courts; Byers v. McAuley, 149 U. S. 614, 37 L. 871, 13 S. Ct. 908, collecting cases and holding administrator in possession of decedent's property will not be disturbed by process of Federal court; Central, etc., Bank v. Stevens, 169 U. S. 460, 42 L. 817, 18 S. Ct. 413, holding judgment of State court enjoining parties from proceeding under Federal process erroneous; The Celestine, 1 Biss. 1, 9, F. C. 2,541, collecting cases and holding from time of seizure of vessel, State court and officers had exclusive jurisdiction; Ruggles v. Simonton, 3 Biss. 329, F. C. 12,120, holding United States courts have no jurisdiction restraining sheriff from selling under process of State courts; In the Matter of Clark, 4 Ben. 98, 3 N. B. R. 130, F. C. 2,798, refusing order authorizing marshal to take property from custody of State receivers; In re Vogel, 7 Blatchf. 20, F. C. 16,982, holding assignee can recover property taken on State process while in custody of Bankruptcy Court; Gilbert v. Lynch, 17 Blatchf. 405, 1 Fed. 114, and Cœur D'Alene Ry. & Nav. Co. v. Spalding, 93 Fed. 282, refusing to enjoin proceedings in State court; Townsend v. Leonard, 3 Dill. 371, F. C. 14,117, holding property in custody of sheriff not amenable to Federal process; Campbell's Case, 1 Abb. (U. S.) 189, 1 N. B. R. 169, F. C. 2,349, refusing injunction to restrain State courts and their executive officers; Carr v. Gale, 3 Wood. & M. 65, F. C. 2,435, sustaining jurisdiction of Circuit Court over suit at law by assignee of bankrupt; Ex parte Turner, 3 Woods, 609, F. C. 14,246, holding State court had no authority to compel United States marshal to produce papers;

7 How. 612–626

Notes on U. S. Reports.


Evans v. Pack, 2 Flipp. 274, F. C. 4,566, refusing to enjoin suit in State court against marshal for seizing goods of wrong party under execution; Board, etc. v. McMaster, 3 Fed. Cas. 781, yielding paramount authority to court whose jurisdiction first attached; In re Vogel, 28 Fed. Cas. 1243, 2 N. B. R. 427 (138), ordering return of property taken by sheriff while in custody of Bankruptcy Court; In re Askew, 2 Fed. Cas. 31, 3 N. B. R. 575 (142), holding void process of State court in setting aside homestead out of bankrupt's property; In Hudson v. Schwab, 12 Fed. Cas. 815, 816, 817, 18 N. B. R. 480, holding United States Circuit Court has power to enjoin suit în State court against marshal; Bruce v. Manchester, etc., R. R., 19 Fed. 345, refusing to entertain bill to enforce operation of road by trustees; Terry v. Bank, etc., 20 Fed. 775, holding court of equity having jurisdiction of the subject, could afford full relief; Naumburg v. Hyatt, 24 Fed. 900, holding property in possession of marshal cannot be levied upon; Attleb. Nat. Bk. v. Northwestern, etc.. Co., 28 Fed. 114, and In re Foley, 80 Fed. 951, holding United States Circuit Court will not interfere where State court has possession of the res; Hurd v. Morles, 28 Fed. 899, holding pendency of suit in one court should stay proceedings in another; Senior v. Pierce, 31 Fed. 627, and Melvin v. Robinson, 31 Fed. 635, refusing to interfere where property is attached by process of State court; Gates v. Bucki, 53 Fed. 966, 12 U. S. App. 69, holding United States court has no jurisdiction to restrain litigants in State court; Howlett v. Central, etc., R. R., 56 Fed. 162, Federal court refusing to take jurisdiction where jurisdiction of State court had attached; Hatch v. Bancroft, etc., Co., 67 Fed. 807, refusing to proceed where creditor prays for same relief as prayed for in State court; In re Hall, etc., Co., 73 Fed. 528, refusing to issue execution on property in possession of sheriff of State court; In re Anderson, 94 Fed. 495, holding person in custody of State court, under State law, will not be released on habeas corpus by Federal court.

State court citing cases affirming and relying upon the syllabus doctrine, are: Troy, etc., Co. v. Prestwood, 116 Ala. 123, 22 So. 263, holding, where creditor's bill pending in one court, defendant cannot file bill in another for injunction; Reson v. Powell, 28 Ark. 436, holding State courts had concurrent jurisdiction with Federal courts; Gaines v. Springer, 46 Ark. 505, reviewing cases and holding State court cannot enjoin collection of tax called for by Federal courts; Munson v. Harroun, 34 Ill. 424, 85 Am. Dec. 317, holding no action in State courts for recovery of property seized by United States marshal; Taylor v. Fort Wayne, 47 Ind. 282, holding jurisdiction of county commissioners cannot be ousted by city council; Stanley v. Sutherland, 54 Ind. 344, holding plaintiff had right to prosecute action to final judgment in court where he commenced it; Goodrich v. Hunton, 29 La. Ann. 377, holding case pending in State court to enjoin proceeding not removable to Federal court: Bell v. Railroad Co., 34 La. Ann. 794, holding property in custody

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