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brances and especially from the alleged are bound to inquire, therefore, whether the mortgage of the plaintiff.” This defense judgment of the circuit court thus brought was not recognized by the supreme court of in question would have had the effect of Louisiana, and the case was brought to this binding and concluding Rochereau if it had

court by writ of error. One of the questions been rendered in a state court. We have ex(608) considered was as to the jurisdiction of this amined this question with some care, and

court under the act of February 5th, 1867, have come to the conclusion that it would
which gives a writ of error to the highest not.”
court of a state in which a decision in the The same question was again before this
suit could be had, "where any title, right, court in Crescent Live Stock L. & S. H. Co.
privilege, or immunity is claimed under, or v. Butchers' Union 8. H. & L. S. L. 120 U.
authority exercised under, the United States, s. 141, 146 [30: 614, 617), which was an ac-
and the decision is against the title, right, tion for malicious prosecution, the defense
privilege, or immunity specially set up or being that the existence of probable cause
claimed under

such authority.” U. had been previously determined by a judg. S. Rev. Stat. 709, 14 Stat, at L. 385, chap. 28. ment in the circuit court of the United Mr. Justice Bradley, delivering the opinion States. It was contended that the supremo of the court, said: “Where a state court court of the state failed to give proper effect refuses to give effect to the judgment of a to that judgment, and thereby denied to the court of the United States rendered upon the defendan a right arising under the author. point in dispute, and with jurisdiction of ity of the United States. The case came the case and the parties, a question is un. here upon writ of error, and the jurisdiction doubtedly raised which, under the act of of this court to review the final judgment 1867, may be brought to this court for re- sustained. Mr. Justice Matthews, vision. The case would be one in which a ti. speaking for the court, said: “It must tle or right is claimed under an authority therefore be conceded that the sole question exercised under the United States, and the to be determined is, Did the supreme court decision is against the title or right so set of Louisiana, in deciding against the plain. up. It would thus be a case arising under tiffs in error, give proper effect to the decree the laws of the United States establishing of the circuit court of the United States, the circuit court and vesting it with juris- subsequently reversed by this court? It is diction: and hence it would be within the ju- argued by the counsel for the defendant in dicial power of the United States as defined error that this does not embrace any Federal by the Constitution; and it is clearly with question; that the effect to be given to a in the chart of appellate power given to this judgment or decree of the circuit court of court, over cases arising in and decided by the United States sitting in Louisiana by the state courts." Having disposed of the the courts of that state is to be determined question of jurisdiction, the court then in- by the law of Louisiana, or by some princi. quired whether the state court in overrul ple of general law as to which the decision ing the defense, had given proper validity of the state court is final; *and that the rul-(510) and effect to the judgment of the circuit ing in question did not deprive the plaintiffs court of the United States. Upon this point in error of 'any privilege or immunity spethe court said: “The only effect that can cially set up or claimed under the Constitube justly claimed for the judgment in the tion or laws of the United States.' But this circuit court of the United States is such as is an error. The question whether a state would belong to judgments of the state court has given due effect to the judgment courts rendered under similar circumstances. of a court of the United States is a question Dupasseur & Co. were citizens of France, arising under the Constitution and laws of and brought the suit in the circuit court of the United States, and comes within the jur. the United States as such citizens; and con- isdiction of the Federal courts by proper sequently that court, deriving its jurisdic- process, although, as was said by this court tion solely from the citizenship of the par. in Dupasseur v. Rochereau, 21° Wall. 130, ties, was in the exercise of jurisdic. 135 [22: 588, 591), ‘no higher sanctity or eftion to administer the laws of the state, and fect can be claimed for the judgment of the its proceedings were had in accordance with circuit court of the United States rendered the forms and course of proceeding in the in such a case, under such circumstances.' state courts. It is apparent, therefore, that Embry v. Palmer, 107 U. S. 3 [27: 346).

no higher sanctity or effect can be claimed It may be conceded, then, that the judgments 509}for the judgment of the circuit court of the and decrees of the circuit court of the Unit

United States rendered in such a case under ed States, sitting in a particular state, in such circumstances than is due to the judg- the courts of that state, are to be accorded ments of the state courts in a like case and such effect, and such effect only, as would be under similar circumstances. If by the accorded in similar circumstances to the laws of the state a judgment like that rend- judgments and decrees of a state tribunal of ered by the circuit court would have had a equal authority. But it is within the jurisbinding effect as against Rochereau, if it diction of this court to determine, in this had been rendered in a state court, then it case, vihether such due effect has been given should have the same effect, being rendered by the supreme court of Louisiana to the by the circuit court. If such effect is not decrees of the circuit court of the United conceded to it, but is refused, then due va- States here drawn in question. The decree lidity and effect are not given to it, and a case of the circuit court was relied upon in the is made for the interposition of the power state court as a complete defense to the acof 'reversal conferred upon this court. We tion for malicious prosecution, on the ground

and defraud the King of his customs on the time of the commission of the offense, which seacoast by running of goods and merchan. duty is evaded by the guilty act, it follows uise.” In Brown's Law Dictionary (Eng. that the offense is not committed by an act 1874), smuggling is defined as “importing done before the obligation to pay or account goods which are liable to duty so as to evade for the duties arises, although such act may payment of duty; and in McClain's Crim: indicate a future purpose to evade when the inal Law ($ 1351), as importing dutiable period of paying or securing the payment of goods without payment. There are similar duties has been reached. It follows from definitions in the Encyclopædic and also in this that if, as is the custom upon the arrival the Imperial Dictionary. In the Encyclo- of trans-Atlantic steamers, a passenger's pædia Britannica, “smuggling” is said to de baggage is landed upon the wharf, and the note “a breach of the revenue laws, either by trunks are filled with goods clandestinely the importation or the exportation of pro- imported, the owner cannot be convicted of hibited goods, or by the evasion of customs smuggling them under this statute, since the duties on goods liable to duty;" and Stephen, obligation to pay the duties upon them does in his Summary of the Criminal Law, page not arise until an attempt is made to carry 89, defines smuggling as the “importing or them off the wharf. *In my view the act of[463] exporting of goods without paying the duties smuggling is complete when the goods are imposed thereon by the laws of customs and brought within the waters of a certain port, excise, or of which the importation or expor with intent to land them without payment tation is prohibited.” Similar definitions of duties. Whether, if the duties be subare given by Lord Hume in his Commentaries sequently paid, such payment would be a on the Laws of Scotland, as well as in Bell's condonation of the offerse is a question upon Dictionary of Scottish Law, page 225. In which it is unnecessary to express an opinion. Tomlin's Law Dictionary, where smuggling It inight depend upon the motives which inis defined as "the offense of importing or ex. duced the importer to pay the duties. If they porting goods without paying the duties im; were paid after detection, it might not be posed thereon by the custom or excise laws, considered sufficient; if before detection it a list of some thirty or forty acts connected would be strong evidence of a change of pur. with the unlawful and fraudulent importation of goods is given, but in none of them pose. If the testimony of the captain in this

case is to be believed, he brought the package is the word “smuggle” mentioned as an of- of diamonds into port wholly ignorant of the fense. In the sixth edition of his work on fact that it contained dutiable articles. DeCrimes, Sir William Russell gives as his au- fendant himself was not on board the steamthority for the definition Hawkins, Bacon, er, but took passage on another ship to ar. and Blackstone, the last of whom is against rive later at another port, thus putting it

him, and also sets forth a large number of out of his power to pay or account for the [462]acts "for the prevention of smuggling,"duty. The guilty intent with which the

passed during the present reign, none of package was delivered in Antwerp to an in. which mention the word “smuggle” as a dis- nocent party for transportation to this countinct crime. Indeed, the word seems to be a popular summing up of a large number of of try must be held to have continued, since defenses connected with the clandestine intro

fendant had deliberately deprived himself of duction of goods from foreign ports.

any locus penitentiæ by handing the package But conceding all that is claimed as to the to the captain for transportation and delivery. law of England in that particular, the ques, yond the language of the statute itself to de

But we think it is unnecessary to look betion is not, what was the law of England termine what is meant by the word "smug. during the last century, nor what it is today, but what was the law of the United gle,” since it is there defined as the clandesStates in 1842, when this act was passed, and tine introduction into the United States of in 1877, when it was incorporated in the Re- I "any goods, wares, or merchandise subject vised Statutes? If we are to rely for a defi- to duty by law, and which should have been nition upon our lexicographers and legal the duty.” If the words "clandestinely in;

invoiced, without paying or accounting for grammarians, there can be no doubt upon troduce” are not intended as a definition of the subject, as by Webster, Worcester, the Century, and the Standard Dictionaries, and the prior word “smuggle,” they are intend. in all the law lexicons, the offense is defined ed as a separate offense, and in either case in somewhat varied phraseology as the clan- the defendant would be liable if he clandeg. destine importation of goods without the

tinely introduced the goods without paying

pay. ment of duties. I know of no American au

or accounting for the duty thereon. What, thority, except the dictum of Judge Lowell then, is meant by a clandestine introduction? in United States v. Jordan, 2 Low. Dec. 537, In at least two cases in this court (United

States v. Vowell, 5 Cranch, 368, (3: 128); to the contrary. It would seem from that case and from cer

Arnold v. United States, 9 Cranch, 104, tain expressions in the opinion of the court [3: 671]) an “importation” to which the in the case under consideration, that the of government's right to duty attaches was defense is not coniplete even when the goods fined to be an arrival within the limits of are unladen and put upon the shore, and that some port of entry. Or, as stated by Mr. a failure to pay duty upon them is a neces- Justice Curtis in United States v. Ten Thou Bary element to justify an indictment, or sand Cigars, 2 Curt. C. C. 436, an importa. that, as the words “without paying or ac- tion is complete when the goods are *brought[464] counting for the duty" imply the existence within the limits of a port of entry, with of the obligation to pay or account at the the intention of unlading them there. A

in error is that the property was a fund in institution of those suits. Strictly speaking, those courts to abide the event of the litiga- the lien thai attended the 36 bonds purchased tion in them, and that, pending the proceed. by Lynde did not arise after the institution ings in those courts and their actual posses of the foreclosure suits, although Lynde's sion of the property, it was impossible that purchase. was pending the proceedings in Lynde, by purchasing the 36 bonds, could those suits and while the property was in the have acquired any lien thereon which the law hands of receivers. That lien had its origin would recognize and enforce.

in the execution and delivery of the ParkThe principal authority cited in support of hurst mortgage and the authentication by this contention is Wiswall v. Sampson, 14 the trustee of the bonds named in it, and How. 52, 68 [14: 322, 329), in which it was when any of those bonds became the property held that while real estate is "in the custody of a bona fide * holder, th, lien given to secure(515) of the court as a fund to abide the result of them related back to the date of the mortà suit pending, no sale of the property can gage, which was long prior to the institution take place, either on execution or otherwise, of the foreclosure suits. Besides, Parkhurst, without the leave of the court for that pur- the trustee in the prior mortgage, was not pose.” If the rule were otherwise, the court made a party to the foreclosure suits, and said, the whole fund might pass from its neither he nor those whose interests he was hands before final decree, and the litigation appointed to represent were bound by the debecome fruitless. We do not perceive that cree or any of its provisions. The rule is well the principle announced in Wiswall v. Samp- settled that a sale of real estate under judison controls the determination of the present cial proceedings concludes no one who is not case. If there had been any attempt by suit in some form a party to such proceedings. to enforce the lien given by the Parkhurst United Lines Telegraph Co. v. Boston Safe mortgage by an actual sale of the property Deposit & Trust Co. 147 U. S. 431, 448 (37 : in question pending the proceedings in the 231, 237]. It would seem, therefore, clear foreclosure suits, it may be that the princi- that the pendency of the foreclosure suits ple announced in that case could have been did not interfere with the negotiation or invoked, and the sale would have been inef- transfer of the bonds secured by the prior fectual to pass title to the purchaser. But Parkhurst mortgage, nor did the decree in nothing was done by Lynde, after the insti- those suits impair in any degree the lien cre

tution of the foreclosure suits and pending ated by the Parkhurst mortgage, which ante $14]proceedings *therein, which was inconsistent dated the mortgage to Roosevelt and Fosdick.

with or tended to defeat the object of those The mere purchase of the 36 bonds by Lynde, suits. He only purchased the bonds in ques. and the acquisition by him, in consequence of tion, and such purchase was not hostile to such purchase, of an interest in the Parkthe possession by the circuit courts in the hurst mortgage, cannot be regarded as hostile foreclosure suits of the property mortgaged to the possession taken by the circuit courts to secure them, simply because by such pur- of the United States of the property embraced chase he succeeded to an interest in the Fark. by the Roosevelt-Fosdick mortgage for the hurst mortgage. The foreclosure suits pro- purpose of selling it in satisfaction of the ceeded to a final decree without any attempt debts secured by that mortgage, but subject to interfere with the custody and control of to prior paramount liens, such as the lien crethe property for the purposes avowed in those ated by the Parkhurst mortgage. suits ; for the bill filed by Roosevelt and Fos- We are of cpinion, for the reasons stated, dick showed upon its face, that no relief was that the state court did not fail to give due efasked as against the Parkhurst mortgage or fect to the several decrees in the circuit courts the bonds secured by it. It was distinctly of the United States in the foreclosure suits infound, and it is not disputed, that the Roose- stituted by Roosevelt and Fosdick, when it velt-Fosdick suits were for the foreclosure of held that those decrees did not prevent the the mortgage in which they were name: as defendant in error from claiming the benefit trustees, "but not affecting the Parkhurst of the lien created by the mortgage to Park mortgage aforesaid or the bonds thereby se hurst to secure the payment of the bonds cured." And by the final decree in those purchased by Lynde from Newbold & Son. suits the mortgaged property was directed The judgment below is affirmed. to be sold subject to the outstanding bonds prior in lien to the Roosevelt-Fosdick „nortgage, and to all other, if any, paramount WILLIAM C. FITTS, as Attorney General of[616) liens thereon. The Parkhurst mortgage was the State of Alabama, A. H. Carmichael, prior in date to the Roosevelt-Fosdick mort.

as Solicitor of the Eleventh Judicial Cir. gage; and the decree in the foreclosure suits

cuit of the State of Alabama, and William expressly declared that nothing contained in H. Gilliam, Appts., it should “in any manner affect, prejudice, or preclude the holders of said paramount liens or any of them, but that said decree should CHARLES MCGHEE and Henry Fink, as be without prejudice to the rights of them

Receivers of the Memphis & Charleston and each of them.” Thus the decree express.

Railroad, and the Memphis & Charleston ly saved the rights of those who held bonds

Railroad Company. secured by mortgage prior in date to the (See 8. C. Reporter's ed. 516-533.) mortgage to Roosevelt and Fosdick. It bound only the defendants in the foreclosure Suit against a state-injunction to restrain suits, and all persons claiming or to claim criminal proceedings in a state court-haunder them or any of them, subsequent to the

heas corpus.

case was not before said judge at large when | honorable court, whose province is to prevent said judgment was rendered, and said judge wrong and to do right and the *said plaintiff ( 408] had no jurisdiction or authority at law to claims that it is being deprived of its liberty render said judgment.

and its property without due process of law, “That the said judgment was made abso- and that under the Declaration of Rights of lutely by the said judge at large, while there the state of Maryland, art. 6, and the Constiwas pending a motion to strike out the ver- tution of the state and law of the state as dict and the judgment thereon, and your laid down by the court of appeals of Mary. orator insists that said judgment is abso- land, it was entitled to a trial by jury in lutely void, and rendered ultra vires, and said case at law, having demanded such trial, said motion to strike out the judgment is and that the action of the judge at large in still pending in said superior court.” denying that right and in trying said case

It is also alleged that there was pending in after an appeal from an order affecting a the case a motion to quash the attachment. constitutional right, without a jury and eco There were exhibits filed with the bill. A parte and without notice to this plaintiff, demurrer was interposed. Subsequently an and without an opportunity to be heard, and amended and supplemental bill was filed, con- without any trial of the facts, and the findtaining additional allegations of proceedings, ing of a verdict by the judge at large upon and the prayer was also broadened.

the false and fraudulent testimony of the ofTo this bill a demurrer was again filed, ficer of the said Sulphur Mines Company of and the ground of it stated to be that the Virginia, at said ex parte trial, all of which bill did not state such a case as entitled this plaintiff charges, is the enforcement of plaintiff to any relief in equity.

law and a regulation of the state abridging [467] *The demurrer was sustained, and the bills a privilege and immunity of this plaintiff, dismissed on the 2d of June, 1896.

which is a citizen of the United States, and On the 22d of August, 1896, the plaintiff is repugnant to the Fourteenth Amendment presented a petition for leave to file an an- of the Constitution of the United States, and cillary bill in the following words:

every judge and all the people are bound by

the Constitution of the United States, art. 2, The said plaintiff, by Thomas C. Chappell, Declaration of Rights of the state of Mary, its attorney, reserving every manner of ad- land, article 6, Constitution of the United vantage and exception whatsoever, shows to States. Wherefore your petitioner prays this honorable court:

leave to file an ancillary bill of complaint 1. That since the decree was passed in herein, and specially sets up and claims the this case dismissing the bill of complaint privilege, and specially sets up and claims herein, the motions of the said Chappell that any denial of the said privilege will be Chemical Fertilizer Company in the case of a denial of the equal protection of the laws The Sulphur Mines Company of Virginia v. and repugnant to the Fourteenth Amend, The Chappell Chemical & Fertilizer Com- ment of the Constitution of the United pany, which said motions are referred to in States.

Thos. C. Chappell, the original and supplemental bills filed

Att'y for Plaintiff. herein, have been overruled.

2. That an appeal from the order of the On the same day leave to file the bill was court in said action at law is not an adequate refused, and the plaintiff, on the 25th of Auremedy, and that under art. 16, sec. 69, Code gust, 1896, filed the following: Pub. Gen. Laws of Maryland, the said plaintiff herein is entitled to an injunction to en.

The said plaintiff, by Thomas C. Chappell, join the said plaintiff herein from reaping attorney, reserving every manner of advanany benefit from the said purported judg tage and exception whatsoever, excepts to the ment, and from occasioning this plaintiff any

order of court requiring the demurrer filed damage by any proceedings in said pretend in this case to be argued before all of the deed judgment.

fendants had been served with subpæna, and 3. That while the filing of an amended or

to the order of court dismissing the original an ancillary or supplemental bill is in the dis. and supplemental bills of complaint herein, cretion of the court, that discretion is to be and to the order of court refusing to the[469] exercised within prescribed legal and equit- plaintiff the right and privilege to file an an. able limitations, according to the decision of cillary bill, and specially sets up and claims the court of appeals.

that said order abridges a privilege and im4. That the property of this plaintiff is munity of the said plaintiff, a citizen of the tied up and rendered extra commercium, and United States, and are repugnant to the

Fourteenth Amendment of the Constitution placed in such a position and its title so clouded by this invalid and illegal judgment of the United States, under which said plaindelivered in a court without jurisdiction, and tiff specially set up and claim a right, privicoram non judice, and in violation of the lege, and immunity. Seventh Amendment and the Fourteenth

Thos. C. Chappell, Amendment of the Constitution of the United

Attorney for Plaintiff. States, under which the said plaintiff spe

And on the same day the following: cially sets up and claims a right, privilege, and immunity, that the said plaintiff is en: Mr. Clerk: Please enter an appeal from titled to file an amended, supplemental, and the decree in this case dated the 22d day of ancillary bill herein, fully setting forth all August, 1896. the facts and insists that said illegal and in

Thos. C. Chappell, valid judgment should be canceled by this

Attorney for Plaintiff.

feiture clause contained in the above act of of any proceeding against the plaintiffs or February 9th, 1895.

either of them, by nandamus or otherwise, The defendants appeared specially for the to compel the observance and obedience of purpose of moving, and did move, that the the act in reference to the rate of tolls fixed bill be dismissed upon the ground that the thereby over the Florence bridge, and from suit was one against the state, and prohib instituting or procuring to be instituted any ited by the Constitution of the United proceedings against the plaintiffs or either States.

of them for the forfeiture of the franchise of The plaintiffs, by leave of the court, the Memphis & Charleston Railroad Com. amended their bill by adding thereto para pany in and to the bridge on account of the graphs to the effect that frequent and numer- refusal to charge the rates of toll over it ous demands had been made by persons on fixed by the act. foot, ou horseback and in vehicles, of the *At a later date in the progress of the cause(520) toll-gate keeper at the bridge to pass them the plaintiffs, by leave of the court, inserted over at the rate of toll fixed by the act, and the following averments in the bill: upon the refusal of the toll-gate keeper to "Complainants would further show unto permit them to pass by the payment of the your honors that at the fall term 1895 of the rates so fixed, and his requiring them to pay circuit court of Lauderdale county, Alathe rates of toll fixed by the plaintiffs, they bama, a large number of indictments—somo had paid the tolls so required of them under one hundred in number—were found by the protest and had threatened to institute suit or grand jury of said court against Thomas suits against the plaintiffs under the penalty Clem and G. W. Brabson, who are the toll. clause of the act, and had also threatened to gate keepers at the public crossing of said procure proceedings to be instituted in the bridge for complainants, the receivers of the courts by the governor and attorney general Memphis & Charleston Railroad Company. in the name of the state, by a mandamus or These indictments were found under section otherwise, to compel the plaintiffs to pass 4151 of the Criminal Code of Alabama, which people over the bridge at the rates fixed by reads as follows: 4151 (4401). Any person the act; that those persons had also threat. who, being or acting as an officer, agent, ened to procure proceedings to be instituted servant, or employee of any turnpike com

in the name of the state for a forfeiture of pany, macadamised road company, or other 519]the franchise of the Memphis * & Charleston incorporated road or bridge company, takes,

Railroad Company in and to the bridge prop receives, or demands any greater charge or erty because of the failure and refusal to ob- toll for travel or passage over such road or serve and obey the requirements of the act bridge than is authorized by the charter of in reference to the rates of toll to be charged such company, or, if the charter does not over the bridge; and that the persons so pro- specify the amount of toll to be charged or testing and threatening suits were too nu- taken, fixes, prescribes, takes, receives, or merous to be made parties to that suit. Spe demands any unreasonable charge or toll, to cial reference was made to William H. Gill be determined by the jury, must, on conviciam, a resident citizen of Colbert county, Al. tion, be fined not more than one hundred dol. abama, as one of the parties or persons who lars. Complainants allege and show unto had made threats of such suits and proceed your honors that these indictments were imings.

properly and wrongfully found against said The bill was amended by making Gilliam toll-gate keepers, and they are being ima party defendant, and by adding, before the properly prosecuted thereby, because the rato prayer for general relief, a prayer “that an of toll which they have charged is only the injunction be granted prohibiting and re- rate which has heretofore been fixed by the re straining the sai d William C. Oates, as the ceivers, which was fixed by them before the governor of the state of Alabama, and the passage of said unconstitutional act of the said Wm. C. Fitts, as the attorney general general assembly of Alabama reducing the of the state of Alabama, and the said Wm. tolls, and is the same rate of tolls which H. Gilliam and all persons whomsoever, from have been charged for more than twenty instituting or procuring the institution of years by the Memphis & Charleston Railroad any proceedings against these complainants, Company for the use by the public of said or either of them, by mandamus or other bridge, and the tolls so charged by said toll. wise, to compel the observance and obedi- gate kcepers were authorized by this court, ence of said act in reference to the rate of and said indictments have been found and tolls fixed thereby over the said bridge, and are being prosecuted in violation of the aualso from instituting or procuring to be in- thority of this court and of its orders in the stituted any proceeding against these com- premises, and in violation of the constituplainants, or either of them, for the forfeit- tional rights and privileges under the Conure of the franchise of the Memphis & stitution of the United States, secured* to[521) Charleston Railroad Company in and to the the owners of said bridge in the charging of said bridge on account of the refusal to charge tools before crossing it. A. H. Carmichael is the rates of toll over it fixed by said act.” the solicitor for said judicial circuit, and as

Subsequently an order was made, enjoining such is engaged in the prosecution of said and restraining William C. Fitts, as attor. indictments." ney general of the state of Alabama, and The plaintiffs asked that Carmichael, as William H. Gilliam and all persons whomso. such solicitor, be made a party defendant; ever, until the further order of the court, that all needful process issue against him; from instituting or procuring the institution and that a restraining order be issued en

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