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United States, and a rule of the supreme court of the United States. It is impossible to take a step in the progress of the cause, in order to determine the rights of the parties, without looking at the law and the rule as the guidance of the court, and controlling its judgment in the determination of the case."
Not so with the case at bar; and, on the whole, without further discussion of the question, I am of the opinion that the jurisdiction of this court over the present bill cannot be maintained on either of the grounds urged by the learned counsel for the complainant, and, therefore, that the present proceeding in the nature of a motion for an attachment for contempt cannot be entertained.
§ 651. Bill of revivor.—The residence of the parties to a bill of revivor is immaterial, if the residence of the parties to the original bill is such as to confer jurisdiction. Whyte v. Gibbes, 20 How., 541.
§ 652. When a cross-bill is necessary to the defense of a defendant in equity, he may file it in a federal court, though some of the defendants to the cross-bill are of the same state as the plaintiff, provided they are all parties to the original bill. Schenck v. Peay,* 10 Int. Rev. Rec., 54.
§ 653. An injunction bill against a judgment obtained at law is not, as between the parties or their representatives, an original bill; but if other parties and different interests are involved, it is, to that extent at least, an original bill, and the jurisdiction of the federal court will depend upon the citizenship of the parties. Dunn v. Clarke,* 8 Pet., 1.
§ 654. A bill in equity to obtain an injunction against a judgment given in the United States circuit court is so far incidental to the original judgment that it may be brought in the circuit court where the judgment was given, although the defendant to the bill does not reside or is not found in that district. Dunlap v. Stetson, 4 Mason, 360.
§ 655. Although a bill by a defendant in a judgment at law, to restrain the plaintiff from proceeding on the judgment, is auxiliary to the judgment and does not depend on the citizenship of the parties, yet a bill by the plaintiff, introducing new parties defendant, is a new matter, and must allege proper citizenship in the parties, or it will be dismissed. Williams v. Byrne,* Hemp., 473.
§ 656. A bill for an injunction by one of the parties to a judgment at law against the other is deemed auxiliary to the original suit, but such a bill brought by a stranger to the judgment is in itself an original bill, and the federal court has no jurisdiction unless conferred by the citizenship of the parties. Ibid.
§ 657. Bill to set aside a judgment.— The United States circuit court has jurisdiction of a bill in equity filed by the defendant in a judgment rendered therein against an assignee of the judgment plaintiff, to set aside the judgment for fraud, though such assignee and the complainant be citizens of the same state; such a proceeding is in substance a continuation of the original suit. O'Brien County v. Brown, 1 Dill., 588.
§ 658. by stranger. A bill stating that the complainant had an interest in a former suit, and that he had petitioned to be made a party but was refused, and praying that the decree in such suit be set aside as in fraud of the rights of the present complainant, is an original bill and not a bill of review, and the federal court cannot take jurisdiction unless conferred by the citizenship of the parties. Wickliffe v. Eve.* 17 How., 468.
§ 659. Injunction against suit at law in same court.— When a bill in equity is brought in the United States circuit court, praying an injunction to restrain a suit at law in the same court, the court takes jurisdiction of the bill as ancillary to the suit at law, and without regard to the citizenship of the parties. St. Luke's Hospital v. Barclay, 3 Blatch., 262.
§ 660. Ancillary suit to enforce judgment.-The federal courts have jurisdiction, irrespective of the citizenship of the parties, of a bill filed for the purpose of enforcing a judgment obtained in the circuit court, and which is ancillary to and dependent on the original suit. Railroad Cos. v. Chamberlain, 6 Wall., 748.
§ 661. Creditors' bill where judgment is in state court.— A creditors' bill to compel a railroad company to collect sufficient subscriptions of its stock to satisfy a judgment against it, may, if the citizenship of the parties is such as to allow it, be maintained in the United States circuit court, although the judgment was recovered in the state court of the state in which the district of the circuit court lies. The fact that the creditors' bill is ancillary to the judgment does not oust the jurisdiction of the federal court. Putnam v. New Albany, 4 Biss., 368.
§ 662. Mandamus in aid of a judgment.— The circuit court of the United States has jurisdiction to issue a mandamus to county officers compelling them to levy a tax to satisfy a
judgment obtained by a citizen of another state against the county. If the officers oppose the motion for a mandamus on grounds which show a refusal to comply with the writ, if issued, it may be made peremptory. Board of Commissioners of Knox County v. Aspinwall, 24 How., 382.
§ 663. The circuit court of the United States may issue a mandamus to a county to levy a tax to satisfy a judgment recovered against it on its bonds, and an injunction of a state court is no defense to the county for not levying that tax. Weber v. Lee County, 6 Wall., 210 (BONDS, § 1619).
§ 664. A county issued bonds to aid the construction of a railroad, and authorized the imposition of a special tax to make a fund for the payment of the bonds. One of the holders of the bonds obtained judgment in the United States circuit court, and obtained a mandamus to the county officers to compel them to collect enough of the tax to pay his judgment. A taxpayer obtained in a state court an injunction to restrain the collection of the tax. The county officers returned, to the mandamus, that they were so enjoined. The circuit court held the return valid. On error to the supreme court this judgment was reversed, and it was held that the circuit court has the power, as ancillary to its judgment, and to enforce its judgment, to issue the mandamus, and compel obedience to it. Riggs v. Johnson County, 6 Wall., 184. § 665. Suits ancillary to foreclosure.- When, in a foreclosure suit, instituted in a federal court by reason of the citizenship of parties, the property is ordered into the hands of a receiver, all ancillary suits affecting that property may be maintained in that federal court without respect to the citizenship of the parties. Minnesota Co. v. St. Paul Co., 2 Wall., 609.
§ 666. When a trustee under a mortgage deed given by a railroad corporation to secure its indebtedness has brought the road into the United States circuit court on a bill to foreclose, and that court has jurisdiction of the case, and takes the subject-matter of the suit into its power, that court is the proper one for any subsequent proceedings, and no state court can take jurisdiction of the same subject. Bill v. New Albany, etc., R. Co., 2 Biss., 399.
§ 667. Suit against sheriff and sureties-Reimbursement among latter.- A suit was brought by a non-resident in the circuit court for Virginia, against a deputy sheriff who was insolvent, including as parties defendant the sureties of the deputy, and also the high sheriff and his sureties. The only defendant who was able to satisfy the plaintiff's demand was one of the sureties of the high sheriff, and his lands were sold for this purpose. Before the termination of the cause one of the sureties of the deputy became solvent, and the surety of the high sheriff whose lands had been sold, petitioned that the now solvent surety of the deputy be made to reimburse him. Held, that the federal court from its equity power to carry through a suit begun so as to effect justice, had power to grant the petition, though petitioner and respondent were citizens of the same state. Howard v. Selden,* 5 Fed. R., 465; 4 Hughes, 300.
§ 668. Bill seeking subrogation, not ancillary.- A creditor of an insolvent debtor, instead of proceeding against the sureties on the debt, brought a bill in the federal court asking to be subrogated to the rights of the sureties and to enforce a lien of the latter upon a note of a third party belonging to the principal. All the parties were citizens of the same state, but it was claimed that the proceeding was ancillary to a suit at law then pending in the same court to recover the contents of the note in question. Held, that the case in this bill was wholly outside of the litigation in the suit at law, and that the bill was essentially an original one. Christmas v. Russell,* 14 Wall., 69.
§ 669. A bill for an injunction against garnishment proceedings is a supplementary suit, and the court has jurisdiction, irrespective of citizenship. Jones v. Andrews, 10 Wall., 327 (S$ 883-886).
§ 670. Suit held not to be a continuation of a former one.-Upon the breach of a contract relating to real estate, a suit was brought in a state court for strict foreclosure of the contract, and a decree rendered for plaintiffs. A year later the same parties plaintiff brought suit to foreclose their liens upon the property, joining the former defendants and also other parties, as subsequent incumbrancers, against whom it was sought to extend the former đécree. Held, that this was not a continuation of the former suit, giving the court exclusive jurisdiction of the subject-matter, and ousting the jurisdiction of the federal court in a suit brought there in the interval of time. Hubbard v. Bellew,* 3 Fed. R., 447.
§ 671. Proceeding against surety on forthcoming bond.— According to Louisiana practice, adopted by the federal court, the court proceeds against a surety on a forthcoming bond by a rule to show cause. The proceeding is merely incidental to the original suit and the jurisdiction does not depend upon the citizenship of the parties. Reilly v. Golding,* 10 Wall., 56.
§ 672. Suit for infringement - Auxiliary proceedings. The circuit court of the United States has jurisdiction of a case of infringement of a patent right. After thus taking jurisdiction, it may, as auxiliary, settle matters which would not constitute a basis for original jurisdiction. Brooks v. Stolley, 3 McL., 525.
§ 673. Suit against marshal incidental to main case. In all cases where the courts of the United States have original jurisdiction, whether from the character of the claim or the citizenship of the parties, any proceeding against the marshal incidental to the main case is within the jurisdiction of the court. So held where the marshal allowed a boat, seized in an admiralty suit, to proceed on her voyage, on which she was lost, and the marshal was sued on his bond. Wetmore v. Rice, 1 Biss., 239 (BONDS, §§ 314-316).
§ 674. Proceedings ancillary to admiralty suit. If a suit is brought in an admiralty court by the owners of a vessel against the captain to recover damages which they have been compelled to pay the owners of another vessel which was illegally captured by him as prize, the suit is so dependent upon and ancillary to the suit by which the owners were compelled to pay the damages, that, that being in admiralty, the second will also be in admiralty. Dean v. Angus, Bee, 370.
§ 675. Protecting rights of strangers.
When a federal court has acquired jurisdiction of
a cause by reason of the citizenship of parties, if the rights of third parties are involved in the litigation, either as to the original judgment or property in custody of the court, or any abuse or misapplication of its process, and if such rights cannot be determined by a state court without a conflict of jurisdiction with the federal court, the latter court will protect such rights. Barth v. Makeever, 4 Biss., 212.
§ 676. Death of party or change of domicile.—A court which has once acquired jurisdiction of a suit does not lose it by a change of domicile of the parties, and may, when the suit is of such a nature that it survives, bring in the representatives or successors of a party who has died or ceased to exist without regard to their domicile. Hemingway v. Stansell, 16 Otto, 402.
§ 677. Death of party — Citizenship of administrator.- When the federal court has acquired jurisdiction of a cause which does not abate by the death of one of the parties, the jurisdiction of the court will not be affected by the citizenship of the administrator of the deceased party. Hatfield v. Bushnell,* 1 Blatch., 393.
6. In Suits against Sovereign Power.
Suits affecting the right to property held by the agents of the government, §§ 678, 679.- Suit in which a state is a party removed to federal court, § 680.— Suit against bank in which a state is a corporator, § 681.— Enjoining state board of liquidation, § 682.— Bill by United States to forfeit a lease; appointment of receivers, § 683.
§ 678. The United States cannot be sued without its consent in any case. But it does not follow that no action can be maintained against individuals without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents of the government. United States v. Lee, §§ 684-688.
§ 679. The above doctrine is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not defendant or a necessary party to the suit. Ibid.
§ 680. If a suit in which a state is party be removed from a state into a federal court, the latter must remand it even though it had been docketed. New Jersey v. Babcock, §§ 689–691. § 681. The fact that a state is one of the corporators of a bank does not exempt such bank from suit. Bank of the United States v. Planters' Bank, $$ 692, 693.
§ 682. The circuit court, in a proper case, has jurisdiction to enjoin a state board of liquidation from diverting the fund collected and set apart, under a state funding act, to pay interest on bonds, even though after the fund was collected a state law was passed to repudiate the payment of the interest and to transfer the fund to defray the expenses of the state government. Chaffraix v. Board of Liquidation, §§ 694-697.
§ 683. Where the United States had filed a bill against one of its tenants, praying a forfeiture of the lease, the sequestration of the rents and the appointment of a receiver, and by consent of parties a decree was rendered placing the property in possession of the United States, with certain stipulations as to the application of all rents to the payment of past dues, held, that the court lost jurisdiction to make any decree against the United States for the appointment of a receiver, the examination of the accounts of the agent in charge, or the enforcement of any claim arising from the stipulations in the decree. United States v. Wickersham, $$ 698-700.
[NOTES.- See $$ 701-719.]
ERROR to U. S. Circuit Court, Eastern District of Virginia.
These are two writs of error to the same judgment, one prosecuted by the United States eo nomine, and the other by the attorney-general of the United States in the names of Frederick Kaufman and Richard P. Strong, the defendants against whom judgment was rendered in the circuit court.
The action was originally commenced in the circuit court for the county of Alexandria, in the state of Virginia, by George W. P. C. Lee, against Kaufman and Strong and a great number of others, to recover possession of a parcel of land of about eleven hundred acres, known as the Arlington estate. It was in the form prescribed by the statutes of Virginia, under which the pleadings are in the names of the real parties, plaintiff and defendant. As soon as the declaration was filed the case was, by writ of certiorari, removed into the circuit court of the United States, where all the subsequent proceedings took place. It was tried by a jury, and during its progress an order was made, at the request of the plaintiff, dismissing the suit as to all of the defendants except Kaufman and Strong. Against each of these a judgment was rendered for separate parcels of the land in controversy; namely, against Kaufman for about two hundred acres of it, constituting the national cemetery and included within its walls, and against Strong for the remainder of the tract, except seventeen acres in the possession of Maria Syphax.
As the United States was not a party to the suit below, and, while defending the action by its proper law officers, expressly declined to submit itself as a defendant to the jurisdiction of the court, there may exist some doubt whether it has a right to prosecute the writ of error in its own name; but as the judgment against Kaufman and Strong is here on their writ of error, under which all the questions are raised which could be raised under the other, their writ being prosecuted in the interest of the United States and argued here by the solicitorgeneral, the point is immaterial, and the question has not been mooted.
The first step taken in the case after it came into the circuit court of the United States was the filing in the clerk's office of that court of the following paper by the attorney-general:
"GEORGE W. P. C. LEE
FREDERICK KAUFMAN, R. P. STRONG
"And now comes the attorney-general of the United States and suggests to the court and gives it to understand and be informed (appearing only for the purpose of this motion) that the property in controversy in this suit has been for more than ten years, and now is, held, occupied and possessed by the United States, through its officers and agents charged in behalf of the government of the United States with the control of the property, and who are in the actual possession thereof, as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designated as the 'Arlington cemetery,' and for the uses and purposes set forth in the certificate of sale, a copy of which,
as stated and prepared by the plaintiff, and which is a true copy thereof, is annexed hereto and filed herewith, under claim of title as appears by the said certificate of sale, and which was executed, delivered and recorded as therein appears.
"Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration. in said suit be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper in the premises.
The plaintiff demurred to this suggestion, and on hearing the demurrer was sustained. The case was thereupon tried before a jury on the general issue pleaded by Kaufman and Strong, in the course of which the question raised by this suggestion of the attorney-general was again presented to the court by prayers for instruction, which were rejected, and exceptions taken. The plaintiff offered evidence establishing title in himself by the will of his grandfather, George Washington Parke Custis, who devised the Arlington estate to his daughter, the wife of General Robert E. Lee, for life, and after her death to the plaintiff. This, with the long possession under that title, made a prima facie right of recovery in the plaintiff.
The title relied on by the defendants is a tax-sale certificate made by the commissioners appointed under the act of congress of June 7, 1862, ch. 98, entitled "An act for the collection of direct taxes in the insurrectionary districts within the United States," as amended by the act of February 6, 1863, ch. 21. At this sale the land was bid in for the United States by the commissioners, who gave a certificate of that fact, which was introduced on the trial as evidence by the defendants. If this sale was valid and the certificate conveyed a valid title, then the title of the plaintiff was thereby divested, and he could not recover. If the proceedings evidenced by the tax sale did not transfer the title, then it remained in him, and, so far as the question of title was concerned, his recovery was rightful.
We have then two questions presented to the court and jury below, and the same questions arise in this court on the record: 1. Could any action be maintained against the defendants for the possession of the land in controversy under the circumstances of the relation of that possession to the United States, however clear the legal right to that possession might be in the plaintiff? 2. If such an action could be maintained, was the prima facie title of the plaintiff divested by the tax sale and the certificate given by the commissioners?
It is believed that no division of opinion exists among the members of this court on the proposition that the rulings of law under which the latter question was submitted by the court to the jury were sound, and that the jury were authorized to find, as they evidently did find, that the tax certificate and the sale which it recited did not divest the plaintiff of his title to the property. For this reason we will consider first the assignment of errors on that subject. No substantial objection is seen on the face of the certificate to its validity, and none has been seriously urged. It was admitted in evidence by the court, and, unless impeached by extrinsic evidence offered by the plaintiff, it defeated his title. When this tax sale was made, the act of February 6, 1863, which substitutes a new section 7 for that of the original act of June 7, 1862, was in