founded, that invests them with a power far above the proceedings or liens at common law, or by statute; and that while the seizure of the property in the one case by the marshal protects it from all interference by state process, in the other no such protection exists.

The court is not aware of any such distinction. In the case of a proceeding in rem in admiralty, the lien or charge which gives the right to seize the property results from the principles of the maritime law. In the proceeding by attachment in a court of common law, the lien results from statute or common law; and in both cases, unless the party instituting the proceedings sustains his demand to secure which the lien is claimed, the property is discharged. In both the property is held contingently, dependent upon the result of the litigation. In the admiralty, in the case of collision, upon a bill of lading, or charterparty, for salvage, etc., etc., the main questions litigated are not the questions of lien, but fault or not in the collision, the fulfillment or not of the contract in the bill of lading, or charter-party, or the right to salvage.

The same observations are alike applicable to all cases of attachment in courts of common law, where the lien is given by statute. It is true in a proceeding in rem, any person claiming an interest in the property paramount to that of the libelant may intervene by way of defense for the protection of his interest; but the same is equally true in the case of a proceeding by attachment in a court of common law, as will be shown in another branch of this opinion. Some stress has also been placed upon the idea that the forcible dispossession of the marshal of the property under the attachment would not affect the jurisdiction of the court, or interrupt the proceedings in the suit; but the same is equally true as respects the proceedings in rem in the admiralty. The forcible dispossession of the marshal of the property once seized would not affect the jurisdiction, or prevent a decree in the case.

§ 258. Property in possession of a federal court cannot be taken by a state court on the ground that the former had not rightfully taken possession of it. Another and main ground relied on by the defendants in error is, that the process in the present instance was directed against the property of the railroad company, and conferred no authority upon the marshal to take the property of the plaintiffs in the replevin suit. But this involves a question of right and title to the property under the federal process, and which it belongs to the federal not the state courts to determine. This is now admitted; for though a point is made in the brief by the counsel for the defendant in error, that this court had no jurisdiction of the case, it was given up on the argument. And in the condition of the present case more than this is involved; for the property having been seized under the process of attachment, and in the custody of the marshal, and the right to hold it being a question belonging to the federal court, under whose process it was seized, to determine, there was no authority, as we have seen, under the process of the state court to interfere with it. We agree with Mr. Justice Grier, in Peck v. Jenness, 7 How., 624-5: "It is a doctrine of law too long established to require 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 otherwise, its judgment till reversed is regarded as binding in every 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." "Neither can one take the 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."

$259. Discussion of apparently contrary authorities.

The case of Slocum v. Mayberry, 2 Wheat., 2, has been referred to as holding a different doctrine from that maintained by the plaintiff in error in the present case. We have examined the case attentively, and are satisfied that this is a misapprehension. There was no interference there with goods seized under the process of a federal court, and in the custody of the marshal, nor any attempt to draw questions involved in a suit instituted in a federal court into a state court for decision. It is quite apparent from the opinion of the court, if this had been the question before it, what would have been its decision. Chief Justice Marshall observed: "Any intervention of a state authority, which, by taking the thing seized out of the possession of the officer of the United States, might obstruct the exercise of this jurisdiction, would, unquestionably, be a violation of the act; and the federal court having cognizance of the seizure, might enforce a redelivery of the thing by attachment or other summary process against the parties who should divest such a possession. The party supposing himself aggrieved by a seizure cannot, because he considers it tortious, replevy the property out of the custody of the seizing officers, or of the court having cognizance of the cause." The reason why the replevin of the cargo in the state court was maintained was, that the vessel only was seized by the officer, and not the cargo, and the latter was not, therefore, within the protection of the principle announced.

Reference was made, also, on the argument in the present case, to an opinion expressed by Chancellor Kent, in his Commentaries (vol. 1, p. 410), as follows: "If the officer of the United States who seizes, or the court which awards the process to seize, has jurisdiction of the subject-matter, then the inquiry into the validity of the seizure belongs exclusively to the federal courts. But if there be no jurisdiction in the instance in which it is asserted, as if a marshal of the United States, under an execution in favor of the United States against A., should seize the person or property of B., then the state courts have jurisdiction to protect the person and the property so illegally invaded."

The error into which the learned chancellor fell, from not being practically familiar with the jurisdiction of the federal courts, arose from not appreciating, for the moment, the effect of transferring from the jurisdiction of the federal court to that of the state the decision of the question in the example given; for it is quite clear, upon the principle stated, the jurisdiction of the former, and the validity and effect of its process, would not be what the federal, but state, court might determine. No doubt, if the federal court had no jurisdiction of the case, the process would be invalid, and the seizure of the property illegal, for which the aggrieved party is entitled to his remedy. But the question is, which tribunal, the federal or state, possesses the power to determine the question of jurisdiction or validity of the process? The effect of the principle stated by the chancellor, if admitted, would be most deep and extensive in its operation upon the jurisdiction of the federal court, as a moment's consideration will show. It would draw after into the state courts, not only all questions of the liability of property seized upon mesne and final process issued under the authority of the federal courts, including the admiralty, for this court can be no exception, for the purposes for which it was seized, but also the arrests upon mesne, and imprisonment upon final, process of the person in both civil and

criminal cases, for in every case the question of jurisdiction could be made; and until the power was assumed by the state court, and the question of jurisdiction of the federal court was heard and determined by it, it could not be known whether in the given case it existed or not. We need scarcely remark, that no government could maintain the administration or execution of its laws, civil or criminal, if the jurisdiction of its judicial tribunals were subject to the determination of another. But we shall not pursue this branch of the case further. We regard the question as settled, at least as early as 5 Cranch, 115, United States v. Peters, familiarly known as the Olmstead case, and which is historical, that it belongs to the federal courts to determine the question of their own jurisdiction, the ultimate arbiter, the supreme judicial tribunal of the nation, and which has been recently reaffirmed, after the most careful and deliberate consideration, in the opinion of the present chief justice, in the case of the United States v. Booth, 21 How., 506.

§ 260. A bill may be filed in the federal court to regulate judgments at law in the same court without reference to citizenship of the parties.

II. Another misapprehension under which the counsel for the defendant in error labors, and in which the court below fell, was in respect to the appropriate remedy of the plaintiffs in the replevin suit for the grievance complained of. It was supposed that they were utterly remediless in the federal courts, inasmuch as both parties were citizens of Massachusetts. But those familiar with the practice of the federal courts have found no difficulty in applying a remedy, and one much more effectual than the replevin, and more consistent with the order and harmony of judicial proceedings, as may be seen by reference to the following cases: Pennock v. Coe, 23 How., 117; Gue v. The Tide Water Canal Co., 24 How., 257; 12 Peters, 164; 8 id., 1; 5 Cranch, 288. The principle is, that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice, or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to the original suit, out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties.

The case in 8 Peters, 1, which was among the first that came before the court, deserves, perhaps, a word of explanation. It would seem from a remark in the opinion, that the power of the court upon the bill was limited to a case between the parties to the original suit. This was probably not intended, as any party may file the bill whose interests are affected by the suit at law. In the case of Pennock v. Coe, the bill was filed by the mortgagee of the railroad company, in trust for the bondholders, answering to the position of the plaintiffs in the replevin suit in the case before us. Gue v. The Tide Water Canal Company, decided at this term, is an instructive case upon this subject, in which the chief justice suggests the difficulties of a court of law dealing with this description of property with a proper regard to the rights of all concerned. In that case the bill was filed on the equity side of the circuit court of the United States for the district of Maryland, to restrain a sale of the defendant's property on execution. Gue, the judgment creditor, was a resident of Pennsyl

vania.

We shall not look into the questions raised upon the mortgage, whether executed by the proper authority, or if it was, whether it covered after-acquired property, as not material to the case before us. The latter question was fully examined in this court in the case above referred to of Pennock v. Coe..

Neither shall we inquire into the questions raised under the attachment laws of Massachusetts, as they are unimportant in our view of the case. Upon the whole, after the fullest consideration of the case, and utmost respect for the learning and ability of the court below, we are constrained to differ from it and reverse the judgment.

AMY v. THE SUPERVISORS.

(11 Wallace, 136-139. 1870.)

Opinion by MR. JUSTICE SWAYNE.

STATEMENT OF FACTS.- This is a writ of error to the circuit court of the United States for the district of Iowa. The plaintiff in error was the plaintiff in the court below. The declaration contains two counts. The first count alleges substantially that the plaintiff recovered a judgment against the county of Des Moines in the said circuit court; that afterwards such proceedings were had that a peremptory writ of mandamus was issued from that court and duly served upon the defendants as supervisors of said county, whereby they were commanded to levy a tax sufficient to pay the judgment and costs; that in September, 1868, it was their duty to levy such a tax, and that they neglected to do so, whereby the plaintiff sustained damage to the amount of $12,108.03. The second count sets forth substantially the same facts; and, further, the provisions of the code of Iowa prescribing the duty of the defendants, as supervisors, under such circumstances, and declaring that a failure on their part to perform the duty enjoined should render them personally responsible for the debt. It is further averred in this count that the judgment is in full force and unsatisfied, and that the defendants have levied no tax and made no provision for its payment, and that the plaintiff is thereby damaged in the sum stated in the first count.

The defendants, by their answer, set up three defenses: (1) Nil debet. (2) That the district court of Des Moines county had enjoined them from levying a tax to pay the judgment; that they were nevertheless proceeding to levy such tax when they were attached by order of that court for contempt of its process, and compelled to give bonds to answer said charge of contempt and to obey the injunction, and that those bonds were still in force and obligatory upon them. (3) That before the peremptory writ of mandamus was issued the legislature of Iowa repealed the statutory provision, whereby they were made individually liable for the delinquency charged against them, and that, by reason of such repeal, they are not so liable.

The plaintiff demurred to the answer. The court overruled the demurrer and gave judgment for the defendants. The counsel for the plaintiff in error has filed an able and elaborate brief. None has been submitted in behalf of the defendants. A few remarks will be sufficient to dispose of the case.

It was the

§ 261. State court cannot nullify an order of a federal court. The circuit court had authority to issue the writ of mandamus. process resorted to by the plaintiff to procure satisfaction of his judgment. The state court was powerless to prevent its execution. In so far as concerned the process in question the injunction was a nullity. In such cases the two sets of tribunals- state and national — are as independent as they are separate. Neither can impede or arrest any action the other may take, within the limits of its jurisdiction, for the satisfaction of its judgments and decrees. Where either is in possession of the res sought to be reached, the process

of the other must pause until that possession has terminated. But this rule has no application in the case before us. These principles are a part of the checks and balances of our dual and combined polity, and are indispensable to the harmonious and beneficial working of the system. If the ground assumed by the state court in this case can be maintained, the constitution of the United States, and the laws made in pursuance thereof, as regards their judicial administration, instead of being the supreme law of the land, would be subordinated to the authority of the courts of every state in the Union. If this writ may be paralyzed by the injunction relied upon, a writ of fieri facias and a writ of levari facias may be defeated in the same way. In point of principle there is no distinction between them. Every judgment of a court of the United States may thus be rendered fruitless of any beneficial result. These views are conclusively maintained by Riggs v. Johnson County, 6 Wall., 166, and the principle involved has since been reaffirmed in the cases which followed, and were controlled by that judgment.

§ 262. The liability of a public officer when the law requires absolutely a ministerial act to be done.

It is not necessary to consider the effect of the repeal of the provision of the code which enacted that the delinquent parties shall be personally liable. There is a common law liability which was not affected by the repeal. The statute was only cumulative on the subject. The rule is well settled, that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender. The question of the rule by which the measure of damages is to be ascertained is not before us, and we do not feel called upon to express any opinion upon the subject. The defenses set up in the answer of the defendants are clearly bad. The demurrer should have been sustained.

The judgment of the circuit court is reversed, and the cause will be remanded with instructions to that court to proceed in conformity to this opinion.

RUGGLES v. SIMONTON.

(Circuit Court for Wisconsin: 3 Bissell, 325-331. 1872.)

STATEMENT OF FACTS.- Proceeding in equity by the complainants, mortgagees of the real and personal property of the Southern Minnesota Railroad Co., to restrain the defendant, the sheriff of La Crosse county, Wisconsin, from selling certain cars, etc., of said company, under execution issued upon a judgment obtained against it in the state circuit court by the other defendants herein. ex parte order was made on the filing of the bill. There was a demurrer to the bill for want of jurisdiction, and a motion to set the order aside.

Opinion by HOPKINS, J.

The motion of the defendants to set aside said order has been very elaborately argued by the learned counsel for the respective parties, embracing a full discussion of all the main questions presented in the bill. The conclusions arrived at obviate an extended notice of all the questions discussed. The counsel for the complainant relied upon the case of Pennock v. Coe, 23 How., 117, as analogous, and as sustaining the right of the complainants to the relief sought. That case presents very much the same questions as this, except that in that