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to him in his own country. All rights to personal property are regulated by the laws of the country in which the testator lived, but the suits for those rights must be governed by the laws of that country in which the tribunal is placed. Dixon v. Ramsay, 3 Cr., 323.
§ 208. An Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot sue in the courts of the United States. Cherokee Nation v. State of Georgia, 5 Pet., 15.
§ 209. An Indian is a person within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States, or where he is restrained of liberty in violation of the constitution and laws of the United States. United States v. Crook, 5 Dill., 468.
$210. Suits by foreign governments.-The federal courts have jurisdiction of suits by foreign governments. King of Spain v. Oliver,* 2 Wash., 429.
§ 211. Whether a king who has not been recognized by the government may be permitted to sue in the federal courts is a question not proper to be decided on motion. Ibid.
§ 212. Foreign ship of war.- A ship of war belonging to a nation in amity with the United States, and allowed by them to enter their harbors, is not, while within their territorial jurisdiction, subject to arrest on any civil cause of action, at the suit of an individual. The Pizarro,* 10 N. Y. Leg. Obs., 99.
213. Release of foreign negro seamen.- A federal court has no right to issue a habeas corpus writ to release a negro seized under the act of South Carolina, relative to foreign negro seamen coming into that state; but if the sheriff who seizes the negro sells him, the federal court may issue a writ de homine replegiando against the vendee of the sheriff. Elkison v. Deliesseline,* 2 Wheel. Cr. Cas., 73.
§ 214. Deprivation of rights-Fourteenth amendment.— A state law compelling negro children to attend different schools from white children does not deprive the negroes of any rights, and therefore, not raising a question under the fourteenth amendment to the federal constitution, a federal court has no jurisdiction of a case involving that point. Bertonneau v. Directors of City Schools. 3 Woods, 181.
§ 215. Captured and abandoned property.- Land belonging to the Confederate government and seized by the United States government, and by it sold, cannot be made the subject of proceedings in the United States circuit court under the captured and abandoned property act. If proceedings are begun in that court they should be dismissed. United States v. Huckabee, 16 Wall., 435.
§ 216. Seizure under revenue laws. The federal courts have exclusive jurisdiction in all cases of seizure under the United States revenue laws. Gelston v. Hoyt, 3 Wheat., 312.
§ 217. Proceedings in rem.-In order to have jurisdiction in proceedings in rem, the thing must be actually or constructively in the possession of the court. When property is seized by revenue officers for condemnation, and proceedings instituted in a federal court, if the seized property is abandoned before the decree and restored to the owners, the court loses jurisdiction. The Brig Ann, 9 Cr., 290.
§ 218. Summary remedy in favor of bank. The circuit court of the District of Columbia has jurisdiction to enforce the summary remedy given in favor of the Bank of Columbia by act of Maryland, 1793, ch. 30. Bauk of Columbia v. Okely, 4 Wheat., 245 (Const., §§ 2532–25). § 219. No remedy in state courts. By act of congress (April 9, 1866, sec. 8), jurisdiction is given to the United States district and circuit courts, concurrently, of all causes, civil or criminal, affecting persons who cannot enforce in the state courts their civil rights under the other sections of the act. Under this act it was held that when two whites were indicted in the circuit court of the United States, for killing a black woman, and it was alleged in the indictment that the killing was done in the presence of three negroes, who by the state law could not be witnesses in a state court, these facts did not give the circuit court jurisdiction, since the cause "affected" only the government and the criminal, not the witnesses. Blyew v. United States, 13 Wall., 590 (Const., § 975–981).
§ 220. Mandamus.- The circuit court of the United States has power to issue a writ of mandumus only when necessary to the exercise of its jurisdiction. Its jurisdiction is, by the judiciary act of 1789, limited to suits of a civil nature at common law or in equity. A mandamus to compel county officers to assess and collect a tax to pay the interest of bonds issued by the county to support a railroad is not a suit at law or in equity, within the meaning of the judiciary act. and the court has no authority to issue it; nor is jurisdiction conferred by the fact that by the law of the state a mandamus is a civil action. Bath County v. Amy, 13 Wall.. 247.
§ 221. Sufficient title.- In an ejectment suit, where the lessor of the plaintiff, a citizen of New York, had an equitable title, as tenant in common, to one hundred and sixty-five out of two thousand five hundred shares of an entire tract of land in Pennsylvania, vested in trust
ees in the latter state, for the benefit of the company of which he was a member, which trustees had conveyed to him the lands in suit by a lease for six years, by which he covenanted to pay an annual rent, and to bring suits to recover the said land, and at the end of the term to deliver the same up to the trustees, it was held that the title was sufficient to give jurisdiction to the circuit court of the United States. Browne v. Browne,* 1 Wash., 429.
§ 222. Suit on appeal bond.—The federal courts have unquestioned jurisdiction to enforce against a surety the penalty of an appeal bond given on appeal from the judgment of a lower state court to the supreme court of the state, if the citizenship of the parties is such as to confer jurisdiction. Goshorn v. Alexander, 2 Bond, 162.
§ 223. No grant of judicial power.- Under the treaty with Spain of 1819, and subsequent acts of congress, the district judge of the United States for the district of Florida was made a tribunal for arbitrating certain claims. This is not a grant of judicial power and cannot give a right of appeal to the supreme court. United States v. Ferreira, 13 How., 46 (APPEALS, $ 203, 204).
§ 224. If the secretary of war appoint commissioners to decide upon claims in a military district, although these officers have no judicial power, yet if a claimant voluntarily submits to their jurisdiction, and accepts their award and receives payment, such claimant will be estopped from presenting his claim before a court of law. United States v. Adams, 7 Wall., 463.
§ 225. Under treaties.- No imperfect titles acquired by virtue of the treaty with France can be adjudicated upon by the state courts. Only the federal courts have authority to settle these titles. Burgess v. Gray, 16 How., 62.
§ 226. Want of— Costs.- If a court decides that it has no jurisdiction of a case, it has no power to make an order relating to costs in the case. It should order the case to be struck from the docket. The Mayor v. Cooper, 6 Wall., 250.
§ 227. Where a case is dismissed for want of jurisdiction on the face of the pleadings, the general rule is that costs will not be allowed in the supreme court. Hornthall v. The Collector,* 9 Wall., 560.
2. Conflicting and Concurrent Jurisdiction.
SUMMARY-Property held by federal court not to be replevied by state courts, § 228.- No interference between state and federal courts, § 229.— Enjoining a sale on execution, § 230.- Property held by state court under a forthcoming bond, § 231.— Trespass against a marshal in a state court, § 232.— Similar but not identical suits, §§ 233–235.- Control over a suit after final decree, § 236.— Objection to jurisdiction, when to be taken, § 237. What is custody of a court, § 238. — Jurisdiction depending upon possession, § 239.— Insolvent estate in process of administration. £§ 240–243. — Attachment of subject-matter, § 244. — Judgment not attachable, § 245.— Proceeds of execution not attachable, § 246.— Concurrent jurisdiction in bankruptcy, § 247.— Concurrent jurisdiction of state and federal courts, § 248.- Concurrent jurisdiction with probate court in administration of trusts, §§ 249, 250.- Concurrent jurisdiction conferred by congress on state courts, §§ 251, 252.- No concurrent jurisdiction in habeas corpus, §§ 253, 254.
§ 228. Property in possession of a marshal by virtue of process issuing from a federal court cannot be taken from him by a sheriff under a replevin writ issuing from a state court. (Discussed and modified in following cases.) Freeman v. Howe, §§ 255–260.
§ 229. A state court cannot impede nor arrest any action a federal court may take within its jurisdiction. Amy v. The Supervisors, § 261, 262.
§ 230. Federal courts have no power to enjoin a sale by a sheriff on an execution issuing from a state court. Ruggles v. Simonton, §§ 263–265.
231. Property seized under a writ of replevin from a state court and delivered to the defendant on a forthcoming bond is not, pending the suit, subject to seizure under process from the federal court. United States v. Dantzler, § 266--169.
§ 232. The federal court has no power to enjoin the prosecution of an action of trespass in a state court against a marshal for wrongfully seizing the goods of the plaintiff under an execution; and such an injunction, if issued, is wholly void. Evans v. Pack, §§ 270–273. § 233. The pendency of a suit in a state court to determine the priorities of the lien creditors of a corporation, and to obtain a receiver to distribute the revenues of the corporation accordingly, does not bar the jurisdiction of the federal court in a suit subsequently brought in a federal court by one of the lien creditors, who sought a foreclosure and sale by the trustees, alleging a breach of trust, though the complainant was, through the trustees, a party in the suit in the state court. Stewart v. Ches. & Ohio Canal Co., §§ 274-276.
§ 234. While a federal court cannot stay the proceedings in a state court, it may take jurisdiction of an action growing out of the same subject-matter, though the effect may be to modify the result in the state court. Harrison Wire Co. v. Wheeler, § 277-279.
§ 235. A suit in a federal court to subject property to all the liens resting upon it is not barred by the pendency of a suit in a state court, involving the same property but only seeking to settle the priorities of two of the lien creditors. Hay v. Railroad Co., §§ 250–233.
§ 236. The control of a federal court over its judgments remains during the term at which they are rendered, and, after dismissing a cause, it may at any time during the term resume jurisdiction, even though the jurisdiction of a state court has been invoked in the mean time. Union Trust Co. v. Railroad Co., § 284-287.
§ 237. After the trial of a replevin suit in a federal court and a verdict on the merits, it is too late to object to the jurisdiction on the ground that a state court had possession of the property in question. Gilman v. Perkins, §§ 288. 259.
$238. Property is in possession of a state court and exempt from process of a federal court when the custody of the keeper is such that he may at any time assert his possessory rights and prevent the property from being withdrawn. Lewis v. The Ship Orpheus, $$ 290-294.
$239. By the filing of a bill asking the appointment of a receiver for trust property, the service of process, and the issuance of a restraining order, the federal court acquired a constructive possession of the property, and possession taken of it by a receiver, appointed by a state court in a suit subsequently begun, would be in contempt of the federal court. (Per Woods, Circuit Judge.) Contra: The rule as to priority does not apply where the objects of the two suits are different. Jurisdiction then depends upon the possession of the property, which is only to be acquired by seizure. (Per Bradley, Circuit Justice.) Wilmer v. Railway Co., §§ 295-303.
$ 240. Where the property of an insolvent is in process of administration by a state court, the federal court may proceed to a determination of the rights of parties therein, though no execution will issue. Black v. Scott, §§ 304-306.
§ 241. This exemption, however, does not apply to such of the property as is set apart and covered by a specific lien. Ibid.
§ 242. Though a decree of the state court has vested in a state officer the entire property of an insolvent company, yet this will not abate a suit in ejectment subsequently begun in a federal court against the officer and a tenant of the company, who had attorned to him, to recover possession of land of the plaintiff on which the company had erected a building without permission, and leased it to the tenant. Walker v. Flint, § 307-309. § 243. Proceedings by assignees in a state court in conformance with a statute do not bar a suit in the federal court to establish a claim of a non-resident upon assets in the hands of the assignees. Shelby v. Bacon, § 310–312.
§ 244. A suit on a promissory note in a federal court is not affected by the subsequent institution of a suit in attachment, and the summoning of defendant as garnishee, in a state court. Campbell v. Emerson, § 313.
§ 245. A judgment rendered by a federal court cannot be attached by process of a state court against the plaintiff. Thomas v. Wooldridge, § 314.
§ 246. Money obtained by a marshal on an execution is in custody of the court, and not subject to attachment in a state court. Alabama Gold Life Ins. Co. v. Girardy, § 315.
$247. Under the bankrupt act of 1867, before the revision of the statutes, the state and federal courts had concurrent jurisdiction in cases in which a bankrupt or his assignee was a party. Claflin v. Houseman, § 316-321.
§ 248. Jurisdiction possessed by the state courts under their own constitution may be exercised concurrently with the federal courts, unless expressly excluded by the constitution or laws of the United States.
§ 249. The statutes of Connecticut do not give exclusive jurisdiction to the probate courts of that state finally to settle all matters coming before them, including the administration of trusts. Parsons v. Lyman, § 322-328.
250. Should the statutes attempt to confer such power, they could not exclude the concurrent jurisdiction, in matters of trusts, possessed by the circuit court as a court of equity. Ibid.
§ 251. Concurrent jurisdiction with the federal courts in criminal cases cannot be conferred upon the state courts by congress, and whether this may be done in civil suits has been variously held. Stearns v. United States, $$ 3.9-331.
§ 252. The exercise of concurrent jurisdiction in civil suits, when conferred by congress upon the state courts, is considered to be optional with the latter; but it is the duty of state judges to support the constitution and laws of the United States. Ibid.
§ 253. A state court has no jurisdiction by habeas corpus to release a prisoner held by order of a federal court. Ableman v. Booth, §§ 332-336.
$254. A federal judge cannot grant a writ of habeas corpus to one confined, though illegally, by order of a state court, unless the confinement be in violation of the constitution or laws of the United States. Ex parte Forbes, §§ 337, 338.
[NOTES.-See §§ 339–448.]
FREEMAN v. HOWE.
(24 Howard, 450–461. 1860.)
Opinion by MR. JUSTICE NELSON.
STATEMENT OF FACTS.-This is a writ of error to the supreme court of Massachusetts. The case was this: Selden F. White, of the state of New Hampshire, in 1856, instituted a suit in the circuit court of the United States for the district of Massachusetts, against the Vermont & Massachusetts Railroad Company, a corporation under the laws of Massachusetts, to recover certain demands claimed against the defendants. The suit was commenced in the usual way by process of attachment and summons. Freeman, the marshal, and plaintiff in error, to whom the processes were delivered, attached a number of railroad cars, which, according to the practice of the court, were seized and held as a security for the satisfaction of the demand in suit in case a judgment was recovered. After the seizure, and while the cars were in the custody of the marshal, they were taken out of his possession by the sheriff of the county of Middlesex, under a writ of replevin in favor of Howe and others, the defendants in error, issued from a state court. The plaintiffs in the replevin suit were mortgagees of the Vermont & Massachusetts Railroad Company, including the cars in question, in trust for the bondholders, to secure the payment of a large sum of money which remained due and unpaid. The defendant. Freeman, in the replevin suit, set up, by way of defense, the authority by which he held the property under the circuit court of the United States, which was overruled by the court below, and judgment rendered for the plaintiffs. The case is now before us on a writ of error.
§ 255. The course of decision in the supreme court in conflicts of process and authority between federal and state courts.
I. The suit in this case has been instituted and carried on to judgment in the court below under a misapprehension of the settled course of decision in this court in respect to the case of conflicting processes and authorities between the federal and state courts, and also in respect to the appropriate remedy or the plaintiffs for the grievances complained of. As it respects the effect to be given to the processes of the courts, whether state or federal, the subject was so fully and satisfactorily examined in the case of Taylor v. Carryl, the last of the series on the subject, we need only refer to it, as all the previous cases will there be found. 20 How., 583. The main point there decided was, that the property seized by the sheriff, under the process of attachment from the state court, and while in the custody of the officer, could not be seized or taken from him by a process from the district court of the United States, and that the attempt to seize it by the marshal, by a notice or otherwise, was a nullity, and gave the court no jurisdiction over it, inasmuch as to give jurisdiction to the district court in a proceeding in rem, there must be a valid seizure and an actual control of the res under the process.
256. Misapprehension of the real decision in Taylor v. Carryl.
In order to avoid the effect of this case it has been assumed that the question was not one of conflict between the state and federal authorities, but a ques
tion merely upon the relative powers of a court of admiralty and a court of common law in the case of an adınitted maritime lien. But no such question was discussed by Mr. Justice Campbell, who delivered the opinion of the majority of the court, except to show that the process of the district court in admiralty was entitled to no precedence over the process of any other court, dealing with property that was, in common, subject to the jurisdiction of each. On the contrary, he observed, at the close of the opinion, that the view taken of the case rendered it unnecessary "to consider any question relative to the respective liens of the attaching creditors, and of the seamen for wages, or as to the effect of the sale of the property as chargeable or as perishable upon them." The minority of the court took a different view of the question supposed to be involved in the case. It is succinctly stated by the chief justice at the commencement of his dissenting opinion. He observes: "The opinion of the court treats this controversy as a conflict between the jurisdiction and rights of a state court and the jurisdiction and rights of a court of the United States, as a conflict between sovereignties, both acting by their own officers within the sphere of their acknowledged powers. In my judgment, this is a mistaken view of the question presented by the record. It is not a question between the relative powers of a state and the United States, acting through their judicial tribunals, but merely upon the relative powers and duties of a court of admiralty and a court of common law in a case of an admitted maritime lien;" and hence the conclusion was arrived at, that the power of the admiralty was paramount. The majority of the court were of opinion that, according to the course of decision in the case of conflicting authorities under a state and federal process, and in order to avoid unseemly collision between them, the question as to which authority should, for the time, prevail, did not depend upon the rights of the respective parties to the property seized, whether the one was paramount to the other, but upon the question, which jurisdiction had first attached by the seizure and custody of the property under its process. § 257. The custody of the officer over property in a proceeding in rem not essentially different from that in case of a common law attachment.
Another distinction is attempted by the defendants in error. It is admitted that in the case of a proceeding in rem, the property seized and in the custody of the officer is protected from any interference by state process. But it is claimed that the process of attachment issued by a common law court stands upon a different footing, and the reasons assigned for the distinction are, that in the one case the property seized is the subject of legal inquiry in the court, the matter to be tried and adjudicated upon, and which, in the language of the counsel, lies at the foundation of the jurisdiction of the court; but that, in the other, the property seized, namely, under the attachment, is not the subjectmatter to be tried, like the property which is the subject of a libel in rem, as the process is, simply, for the recovery of a debt, without any lien or charge upon the property, except that resulting from the attachment to secure the debt, and that the question of lien upon the property is a collateral one, which the federal court could not hear and decide in the action before it; and further, that the question of liability of the railroad company was upon certain bonds, the trial and judgment upon which would not be affected by the possession or want of possession of the property seized by the marshal.
The idea which seems to prevail in the mind of the learned counsel on the part of the defendant in error is, that there is something peculiar and extraordinary in a proceeding in rem in admiralty, and in the lien upon which it is