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George T. Brown and William H. Sweetland, for plaintiff.


Francis W. Miner, for defendant.

DURFEE, C. J. This is case for negligence. The defendant is a horse railroad company, having its rails laid in the streets of the city of Providence. On the afternoon of July 7, 1883, a driver in the employ of the company took two empty passenger cars belonging to it from the stable in Elmwood to the repair shop on Thurber's avenue. The two

were fastened together, one behind the other, and drawn by a sipgle horse. They were driven slowly along, the driver occupying the platform in front of the forward car, looking beside and before him. In their passage they were driven along Broad stree: on the track close by the sidewalk of Grace Church cemetery. The plaintiff, a boy six years old, was on the sidewalk with a boy named Hall, eleven years old. Hall was riding a velocipede, and the plaintiff was racing with him. The plaintiff, to get ahead of Hall, jumped on the rear platform of the front car, and after remaining there a little while, either fell off or jumped off and fell. The mother of the plaintiff, who was permitted to relate what her boy told her about the accident, testified at first that he told her that he fell off, but on being asked ip cross-examination if he did not tell her that he was afraid the driver would see him and jumped off, replied, “Yes, sir, I think probably he did, but am not quite sure he told me he fell off." The accident occurred between two and three o'clock. The driver did not see the boys and knew, nothing of the accident when it happened, and heard nothing about it until nearly 7 o'clock.

The plaintiff was badly injured, doubtless by collision with the second car. The plaintiff offered in evidence, for the purpose of proving the negligence of the company, an ordinance of the city of Providence containing rules and regulatious for railroads in the city. The defendant objected ou the ground that the company had not consented to the ordinance, and that without consent it was not bound by it. The court sustained the objection and the plaintiff excepted. The defendant moved the court, after the plaintiff's testimony was in, to nousuit him. The court granted the motion and the plaintiff excepted. The plaintiff now petitions for a new trial for error in these two rulings.

The ordinance was offered for the purpose of put. ting in proof the following rule, to wit: “Cars driven in the same direction shall not approach each other within a distance of three hundred feet, except in case of accident, when it may be necessary to connect two cars together, and also except at stations." We do not think the rule is applicable in the case at bar. It applies when two cars, going in the same direction, are driven separately, so that the ance between them may be increased or diminished. It requires that the cars so driven shall be kept at least three hundred feet apart. If the two cars were driven close together there would be danger of collision, when the forward car stopped, particularly if the two cars were on a descending grade. The rule was obviously intended to prevent the occurrence of any such casualty. The rule itself permits the cars to approach for the purpose of being connected in case of accident. This shows that the rule was designed for cars separately driven. Of course if the rule was inapplicable, the refusal admit it in evidence is not a ground for granting a new trial.

The reason given by the court for granting the nonsuit was that it appeared from the evidence submitted for the plaintiff that his own fault contributed to his injury. The court announced that the child jumped from the platform because he was afraid the

driver would see him, and that he must therefore have known that he was a wrong doer. It is contended for the plaintiff that he cannot be charged with contributory negligence, if he exercised as much care as could be expected of him considering his age, and that whether he did exercise that degree of care was a question for the jury. The cases cited to this point are some of them very strong. The plaintiff however was nonsuited not because he was simply careless, but because he was knowingly committing a wrong or trespass which directly contributed to his injury. Whether in this view his youth would entitle him to the same leniency, may perhaps not be beyond questiou, but if it would, we are nevertheless of opinion that the nonsuit was rightly granted, for the plaintiff, however excusable his own fault, was not entitled to recover without proof of fault on the part of the defeudant, and we think there was no evidence tending to show that the defendant was guilty of any negligence toward him.

The plaintiff was injured, because having got on the rear platform of the forward car, he jumped off or fell off before the following car.

Now in order to show that the negligence of the defendant contributed to the injury, it is necessary first to show that the defendant owed the plaintiff a duty of care, which if it had duly observed, the injury would not have happened. Where no care is due there can be no liability for neglecting it.

Now it appears, that before the accident, the driver did not know that the plaintiff had got upon the platform or that he had jumped or fallen off. The driver therefore is not chargeable with any want of care, unless it was his duty to have known that the plaintiff had got on the car.

We think it was clearly the duty of the driver to look forward to his horse and to the road before bim, rather than back to the empty cars behind him. The company is therefore not liable on account of any neglect on the part of the driver. If it be liable at all, it is liable either because it ought not to have permitted the cars to go coupled together, or because it ought to have provided a second man to have charge of them while en route, so as to prevent the children on the streets from getting on the platforms. We do not see how the company can be held to have done wrong in permitting the two cars to go coupled together. Driven slowly they were neither dangerous nor unreasonably inconvenient. The only question is therefore whether it was the duty of the company to employ a second man to have charge of the cars and guard them from intrusion.

It is well settled, that as a general rule, an owner of property which has been trespassed upon is not liable to the trespasser for any injury resulting from the trespass merely because he might by care have guarded against it. For instance, a man who digs a pit on his land is not liable to a trespasser who is injured by falling into it, because it has been left unfenced or unguarded. Hargreaves v. Deacon, 25 Micb. 1; Hounsell v. Smyth, 7 C. B. (N. S.) 731. But the rule has its exceptions. If the pit be dug on the edge of a public way, where it endangers the safety of the public travel, a traveler who accidentally straying falls into it can recover for the injury. In such a case the pit is a common nuisance.

In Lynch v. Nurdin, 1 Q. B. (N. S.) 29, the defendant's servant left his cart and horse in the public street, unattended, for half an hour. After a while the plaintiff, a boy between six and seven years old, and other children, began to play with the horse and climb into the cart and out of it. While the plaintiff was getting out, another boy started the horse, so that the plaintiff fell and broke his leg. A verdict in his favor was sustained by the ('ourt of Queen's Bench


sitting in banc. The court thought that the child was v. Great Western R. Co., L. R., 2 Q. B. 442, 446, and merely indulging a natural instinct in playing with yet such a case is very much like the case at bar. There the empty cart and deserted horse, being tempted to are some risks, in regard to which a child ought to be it by the most blamable carelessness on the part of the enlightened, before he is committed to the chances of defendant's servant.

the street. In Birge v. Gardiner, 19 Coun. 507, the defendant, In Hestonville Pussenger R. Co. v. Connell, 88 Penn. who put a heavy gate on his own land, beside a pass- St. 520; 32 Am. Rep. 472, the plaintiff, a boy between way which was used by children, going to and from six and seven years old, was injured in an attempt to the public road, but left it so carelessly that it fell climb upon the front platform of a horse railroad car upon a child, between six and seven years old, while the car was in moderate motion. The car was a who shook it in passing, was held to be liable for the car used for suburban travel, and according to cusinjury.

. tom, was in the charge of no one but the driver, who In Railroad Company 5. Stout, 17 Wall. 667, the at the time of the accident was engaged on the rear plaintiff, a child six years old, was injured while play- platform. The court held that the railway company ing with the turu-table of a railroad company. The was not liable for the injury, the injury having retable was on the company's land, but near two pub- sulted not from any neglect of the person in charge, lic roads, without visible separation from them, and but from the sudden and unanticipated act of the was left unattended and unlocked, and easily re- child itself.'' It may be assumed,” say the court, volved on its axis. The injury bappened by the table "that a child, old enough to be trusted to run at large, being set in motion by other boys. It appeared that has wit enough to avoid ordinary danger, and so perthe boys of the neighborhood were in the habit of re- sons who have business on the streets may reasonably sorting to the place for play. A verdict for the in- conclude that such a one will not voluntarily thrust jured child against the railroad company was sustained itself under the feet of their horses or under the by the Supreme Court of the United States. See also wheels of their carriages, and a fortiori may they consame case before Dillon, J., and a jury, Slout v. Sioux clude that they are not to provide against possible City & Pacific R. CO., 2 Dill. 294.

damages that may result to the infaut from its own We know of no cases more favorable to the plaintiff willful trespass.” The doctrine of this case is well than the three cases last cited, but in all three of them supported by other cases. Morrissey v. Eastern R. Co., the object which caused the injury was a dangerous 126 Mass. 377"; 30 Am Rep. 686; Gavin v. City of Chiobject left exposed, without guard or attendant, in a cago, 97 III. 66, 71; 37 Am. Rep. 99; McAlpin v. Powell, place of public or common resort for children. An 70 N. Y. 126 ; 26 Am Rep. 555; 55 How. Pr. 163; Snyder object so left is a standing temptation to the natural v. Han. & St. Jos. R.Co.,60 Mo. 413. These are all cases curiosity of a child to examine it or to his instinctive of injury to intrusive or trespassing children, in which propensity to meddle and play with it.

the defendants were held to be exempt from liability, In Keffe v. Milwaukie & St. Paul R. Co., 21 Minn. although they might have prevented the injury, be207; 18 Am. Rep. 393, which was precisely like Slout v. cause the kind of care which would have been reSiou.c City & Pacific R. Co., this peculiarity was speci- quired to prevent it was not obligatory upon them. fically stated and commented on as the ground of lia- And see Zoebisch v. Tarbell, 10 Allen, 385. The case at bility. “The defendant knew," say the court, “that bar is in our opinion a case of the same class. The deby leaving this turn table unfastened and unguarded, fendant company is not liable for the injury to the it was not merely inviting young children to come plaintiff, because it never incurred any duty or obligaupon the turn table, but was holding out an allurement tion of care to him. If the driver had seen the boy on which acting upon the natural instincts by which the platform it might have been his duty, notwithchildren are controlled, drew them by those instincts standing the boy was a mere intruder, to stop the car into hidden danger." These cases seem to reach the and put him safely off. If the driver had stopped the limit of liability. They go beyond what was thought cars, so as to afford the boy an inviting opportunity to to be the limit in Mangan v. Atterton, L. R., 1 Exch. get on them, thus tempting his childish instinct, it 239. In that case the defendant left a dangerous ma- might have been his duty to look through the cars bechine, which might be set in motion by any passer by, fore starting, and if he found the boy, to remove him. unguarded, in a public place. The plaintiff, a boy four The case presents no such circumstances. We think years old, put his fingers in the machine at the direc- therefore that on this point there was no evidence on tion of his brother, seven years old, whilst another boy which the case could have been properly left to the was turning the handle which moved it, and his fingers jury, and that if it had been left to them, and they had were crushed. The court held that the plaintiff could found for the plaintiff, it would be our duty to set the not maintain any action for the injury. And see verdict aside. Therefore the nonsuit was rightly Hughes v. Vacfie, 2 H. & C. 744. The case at bar dif- granted. Brown v. European & N. A. R. Co., 58 fers very much from the three casee previously stated, Me. 384. for in the case at bar the cars, instead of being left un

Petition dismissed. attended, were in the charge of the driver who was in the act of driving them, so that there was nothing

WILI-ACCUMULATIONS OF INCOME. done to encourage the trespass, which was merely the result of a momentary impulse. Ordinarily a man NEW YORK COURT OF APPEALS, FEBRUARY 8, 1884. who is using his property in a public place is not obliged to employ a special guard to protect it from

BARBOUR V. DE FOREST. the intrusion of children, merely because an intrud

The relator in his will gave a portion of his residuary estate ing child may be injured by it. We have all seen a

to his executors, in trust, to receive and apply the income boy climb up behind a chaise or other vehicle for the to the use of plaintiff during life. By a codicil the execupurpose of stealing a ride, sometimes incurring a good tors were directed, if in their judgment the whole of the deal of risk. It has never been supposed that it is the income was not needed for plaintiff's support to retain duty of the owner of such vebicle to keep an outrider

and invest the residue during her minority, the accumuon purpose to drive such boys away, and that if he

lations to be considered and treated as part of the princi. does not, he is liable to any boy who is injured while

pal. Held, that the direction for accumulation was void,

and that plaintiff was entitled to the whole income. thus secretly stealing a ride. In such a case no duty of care is incurred. See Lygo v. Newbold, 9 Exch. Rep. 302; and the remark of Blackburn, J., in Austin of the General Term of the Supreme Court, in

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the first department, affirming a judgment entered trolling the decision of this case. There a certain upon a decision of the court on trial at Special Term. specified portion of the income of property was re

This action was brought to obtain a judicial cou- quired to be applied by executors to the support and struction of certain provisions in the will of Burr education of a minor, and the balance of the income Wakeman, deceased, and in a codicil thereto. The was to be added to the share producing the income and opinion states the case.

accumulated, as principal, until the minor arrived at Frederick H. Man, for appellant.

the age of twenty-one years, after which period the

whole of the income was to be applied to that child Henry W. De Forest, for respondents.

for life, and upon the death of the child was to go to EARL, J. Burr Wakeman died in July, 1879, leav- other persons. In that case it was held that under the ing a last will and testament, in which he gave and provisions of law referred to, the acoumulation was to devised a portion of his residuary estate, consisting of be for the benefit of the minor solely and during his real and personal property, to his executors in trust, minority, and that a direction for accumulation durto receive and apply the income thereof to the use of ing a minority, accompanied with a gift of the income his great granddaughter, the plaintiff, then an infant, of the accumulated fund after the expiration of the during her life; and after her death to pay and trans- minority, to the minor for life, and of the principal, fer the principal to her children; and if she died with upon his death, to other persons, is void. That case is out leaving any child, tben to other persons as men- not distinguishable from this from the fact that only a tioned in the will. By a codicil subsequently execu- specified portion of the income was to be paid to the ted he directed that so much of the income of the minor during his minority, and that the undefined share thus put in trust for the benefit of his great balance was to be accumulated. Here the direction to granddaughter as should not be needed, in the judg. accumulate applies to so much of the income as in the ment of his executors, for her support, should be re-judgment of the executors should not be needed for tained and invested by them during her minority, and her support. The balance above that sum was to be any accumulation of income should be treated and accumulated and become a part of the principal, and dealt with as part and parcel of the principal of such when it thus became a part of the principal it could share. The will and codicil were admitted to probate, never again be taken therefrom and applied to her and the executors qualified and took upon themselves support as an infant. After it was once accumulated the trust. It turned out that the income was more and added to the principal it was no longer solely for than in their judgment was needed for plaintiff's sup- her benefit, but for the benefit as well of the persons port, and the claim is made on her behalf, that the who should succeed to the principal after her death. direction for the accumulation of such income is in- It was further decided in the case referred to, that in valid, while the executors claim that it is valid. This such a case the direction to accumulate must be action was commenced for the construction of the strickeu from the will so as to leave the income to go will and codicil, so far as they relate to the plaintiff. immediately to the party entitled to the life estate. At the trial term it was held that the directiou for the The result by applying the principles of that case to accumulation of the income was invalid, but that it this is that the plaiutiff is entitled to a judgment dewas invalid only so far as it required the accumula- claring the direction to accumulate, contaiued in the ted income to be added to the principal; and the court codicil of this will, to be void, and that she is enheld that the surplus income could be accumulated for titled to the whole income of the share put in trust the benefit of the minor during her minority, the ac- for her. cumulation at all times to belong to her, and to be The judgment of the General Term should therefore paid to her upon her reaching her majority. Upon be reversed, and that of the Special Term modified acappeal to the General Term, it was there held, revers- cording to this decision, and costs of both parties ing the judgment of the Special Term, that the direc. should be paid out of the estate of the testator. tion for accumulation contained in the codicil was

All concur. valid, and from the decision of the General Term the Judgment accordingly. plaintiff appealed to this court.

The matter for our determination depends upon the construction of the provisions of the Revised Statutes in reference to the accumulatiou of the rents and

FEDERAL AND STATE COURTS - CONFLICT OF profits of lands and the income of personal property.

JURISDICTION, 1 Rev. Stat. 726, SS 37, 38; id. 773, $ 3. By the thirtyseventh section cited, an accumulation of the rents and

SUPREME COURT OF THE UNITED STATES. profits of land for the benefit of one or more persons

MARCH 31, 1884. may be directed by will or deed for the benefit of minors in being when the accumulation commences,

COVELL V. HEYMAN. and to terminate with their minority, subject to the

The State and Federal Courts do not belong to the same sys. proviso in the second subdivision of the section, that tem so far as their jurisdiction is concurrent; and althoughi when the accumulation is directed to commence at they co-exist in the same space they are independent, and any time subsequent to the creation of the estate, it have no common superior. They exercise jurisdiction, it sball commence within the time permitted by the is true, within the same territory, but not in the same statute for the vesting of future estates. By the thirty

plane; and when one takes into its jurisdiction a specific eighth section all directions for the accumulatiou of

thing, that res is as much withdrawn from the judicial the rents and profits of real estate, except as allowed

power of the other as if it had been carried physically

into a different territorial sovereignty. by the prior section, are declared to be void. The

Where a United States marshal, acting under the authority of statute regulating the accumulation of the income of

a Urited States court, wrongfully seizes the property of a persoual property is substantially the same as that re

person by virtue of a levy under an execution, the remedy lating to the accumulation of the rents and profits of of such person must be sought for in the Federal court, land.

the State court has jurisdiction in the premises. The question is whether the accumulation directed

N error to the Supreme Court of the State of Michi. by the codicil of this will was for the benefit of the

gan. Opinion states case. plaintiff, a minor, within the meaning of these provisions. If it was not, then it was invalid. The case of

Roger M. Butterfield, for plaintiff. Pray v. Hegeman, 92 N. Y. 508, is an authority con- Lyman D. Norris, for defendant.

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The defendant in error was the plaintiff in the State erty except that resulting from its seizure, as security court, and brought her action of replevin for the re- for the judgment. The objection that the process was covery of specific personal property, to which directed against the property of the defendant and she claimed title, and which she alleges was wrongfully conferred no authority upon the marshal to take the detained from her by the plaintiff in error. The de- property of the plaintiffs in the replevin suit is then fendant below was deputy marshal of the United answered, the court saying: “For the property havStates, and as such had possession of the property re

ing been seized under the process of attachment, and plevied by virtue of an execution issued upon a judge in the custody of the marshal, and the right to hold it ment of the Circuit Court of the United States for the being a question belonging to the Federal court, under Western District of Michigan against Adolph Hey, whose process it was seized, to determine, there was man, having taken the same by virtue of a levy under no authority, as we have seen, under the process of said execution as the property of the judgment debtor. the State court to interfere with it." Judgment was rendered in the Supreme Court of the The opinion of the court then points out the error of State in favor of the plaintiff below, upon a finding Chancellor Kent in his statement (1 Com, 410) that “if in favor of her title to the property, reversing a judg.

a marshal of the United States, under an execution in meut in favor of the defendant below in the Circuit favor of the United States against A., should seize the Court for the county of Kent. To reverse that judg. person or property of B., then the State courts have ment this writ of error is prosecuted.

jurisdiction to protect the person and the property so The sole question presented for our decision is illegally invaded.” whether it was error in the State court to permit a re

Commenting on this statement, it is said that the efcovery of the possession of property, thus held, fect of the principle, if admitted, would be to draw against a marshal of the United States, or his deputy, into the State courts “not only all questions of the in favor of the rightful owuer; and whether, on the

liability of property seized upon mesne and final proother hand, it should not have adjudged in favor of cess issued under the authority of the Federal courts, the defendant below, that his possession of the prop- including the admiralty, for this court can be no ex. erty by virtue of the levy under the writ was in itself ception, for the purposes for which it was seized, but a complete defense to the action of replevin without also the arrests upon mesne and imprisonment upon regard to the rightful ownership.

final process of the person in both civil and criminal The case of Freeman v. Howe, 24 How. 450, was pre- cases, for in every case the question of jurisdiction cisely like the present in its circumstances, except that

could be made." And the court adds: “We need there the process under which the marshal had seized scarcely remark that no government could maintain and held the property replevied was an attachment the administration or execution of its laws, civil or according to the State practice in Massachusetts, being criminal, if the jurisdiction of its judicial tribunals mesne process, directed however not against property were subject to the determination of another." Epecifically described, but commanding a levy as in cases

To meet the objection, that the party whose propof fi. fu., upon the property of the defendant. Whether erty had been wrongfully taken and withheld, would that difference is material is perhaps the only question

be left without remedy, unless by virtue of citizenship to be considered, for the doctrine of that decision is he could sue in a Federal court, the opinion then extoo firmly established in this court to be longer open

plains the remedy in such cases by an ancillary proto question. The proper answer to it will be found by ceeding in the court whose process has been made the an examination of the principles on which tbe judg- instrument of the wrong; a remedy, the principle and ment in that case proceeded, and of those cases which procedure of which we had occasion recently, in the preceded, and of others, which have followed it. case of Krippendorf v. Hyde, 110 U. S. 276, to restate

In the opinion in that case, Mr. Justice Nelson re- and reaffirm. refers to the case of Taylor v. Carryl, 20 How. 583, as a The point of the decision in Freeman y. Howe, supra, conclusive and sufficient authority on the point. He

is that when property is taken and held under process, said: “The main point there decided was that the mesne or final, of a court of the United States, it is in property seized by the sheriff under the process of at- the custody of the law and within the exclusive juristachment from the State court, and while in the cus

diction of the court from which the process has issued tody of the officer, could not be seized or taken from for the purposes of the writ; that the possession of him by a process from the District Court of the United the officer cannot be disturbed by process from any States, and that the attempt to seize it by the marshal

State court, because to disturb that possession would by a notice or otherwise was a pullity, and gave the

be to invade the jurisdiction of the court by whose court no jurisdiction over it, inasmuch as to gire jur

command it is held, and to violate the law which that isdiction to the District Court in a proceeding in rein,

jurisdiction is appointed to administer; that any perthere must be a valid seizure and an actual control of

son not a party to the suit or judgment, whose propthe res under the process." And referring to the erty has been wrongfully, but under color of process grounds of the dissent in that case he continues: "The taken and withheld, may prosecute by ancillary promajority of the court was of opinion that according to

ceedings in the court whence the process issued, his the course of decision in the case of conflicting author- remedy for restitution of the property or its proceeds ities under a State and Federal process, and in order while remaining in the control of that court; but that to avoid unseemly collision between them, the ques

all other remedies to which he may be entitled against tion as to which authority should for the time prevail officers or parties, not involving the withdrawal of the did not depend upou the rights of the respective par- property or its proceeds from the custody of the officer ties to the property seized, whether the one was para

and the jurisdiction of the court, he may pursue in any mount to the other, but upon the question which jur-tribunal, State or Federal, having jurisdiction over the isdiction had first attached by the seizure and custody parties and the subject

matter. And vice versa the of the property under its process."

same principle protects the possession of property The opinion then proceeds to show that po distinc- while thus held, by process issuing from State courts, tion can be made affectiug the question between pro- against any disturbance under process of the courts of cess in rem and an attachment issued by a common

the United States, excepting of course those cases law court, although the latter is not the foundation of

wherein the latter exercise jurisdiction for the purpose the jurisdiction, and the property seized is not the sub

of enforcing the supremacy of the Constitution and ject-matter of the suit, which is simply for the recov

laws of the United States. ery of a debt, without a lien or charge upon the prop

The doctrine of Freeman v. Howe, supra, was fur.

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ther defined by the decision in Buck v. Colbath, 3 Wall. upon his bond and against his sureties, as in the case
334, which cbecked and corrected an attempted misap- of Lammon v. Feusier, 110 U. S.
plication of its principle, which, if permitted, would The very point was involved in the decision in Ha-
cover actions against the officer for trespasses, not iu- gan v. Lucas, 10 Pet. 400, where it was expressly held
volving any interference with the property itself while that property held by a sheriff under an execution
in his possession. It was there satisfactorily shown from a State court could not be taken in execution by
that the officer was protected against such an action a marshal of the United States by virtue of final pro-
only in that class of cases where he could justify un- cess upon a judgment in a Federal court. Mr. Justice
der process or order of a court directing expressly the McLean, delivering the opinion of the court, said:
very act alleged to be wrongful, and not in that other *Had the property remained in the possession of the
class where the writ or order, such as a writ of attach- sheriff under the first levy it is clear the marshal could
ment or other mesne process, and the final process of not have taken it in execution, for the property could
execution upon a judgment, commends the seizure of not be subject to two jurisdictions at the same time.
property described not specifically, but only generally, The first levy, whether it were made under the Fed-
as the property of the party named in the writ. In the eral or State authority, withdraws the property from
latter the officer acts at his peril, and is responsible in the reach of the process of the other.” A most inju-
damages to the party injured for the consequences of rious conflict of jurisdiction would be likely often to
any error or mistake in the exercise of his discretion arise between the Federal and State courts if the final
in the attempt to enforce the writ. In the former, as process of the one could be levied on property which
he has no discretion, it is the court itself which acts, had been taken by the process of the other. The mar-
and the officer is protected in his obedience to its com- shal or the sheriff, as the case may be, by a levy, ac-
mand. Of this class the case of Connor v. Long, 104 quires a special property in the goods, and may maiu-
U.S. 228, was an example; that of Buck v. Colbath, tain an action for them. But if the same goods may
supra, fell within the latter. And in distinguishing be taken in execution at the same time by the mar-
that case from Freeman v. Howe, supra, Mr. Justice shal and the sheriff, does this special property vest in
Miller stated the principle of the latter decision--"a the one or the other, or both of them? No such case
principle," he said, “which is essential to the dignity can exist; property once levied on remains in the cus-
and just authority of every court, and to the comity | tody of the law, and it is not liable to be taken by
which should regulate the relations between all courts another execution in the hands of a different officer;
of concurrent jurisdiction;" that principle is," he and especially by an officer acting under a different
continued, “that whenever property has been'seized jurisdiction."
by an officer of the court, by virtue of its process, the That which cannot be done by final process is
property is to be considered as in the custody of the equally out of the reach of original or mesne pro-
court, and under its control for the time being; and
that no other court has a right to interfere with that The forbearance which courts of co-ordinate juris-
possession unless it be some court which may have a diction administered under a single system exercise
direct supervisory control over the court whose pro- toward each other, whereby conflicts are avoided, by
cess has first taken possession, or some superior juris- avoiding interference with the process of each other,
diction in the premises."

is a principle of comity with perhaps no higher sancHere it will be perceived that no distinction is made tion than the utility which comes from concord; but between writs of attachment and executions upon between State courts and those of the United States judgments, and that the principle embraces both, as it is something more. It is a principle of right and of indeed both are mentioned as belonging to the same law, and therefore of uecessity. It leaves nothing to class elsewhere in the opinion.

discretion or mere convenience. These courts do not And there is nothing in the nature, office or com- belong to the same system, so far as their jurisdiction mand of the two descriptions of process, by which, so is concurrent; and although they co-exist in the same far as the question here involved is concerned, they space they are independent and have no common sucan be distinguished. One is mesne process, and the perior. They exercise jurisdiction, it is true, within other final; but in the courts of the United States the the same territory, but not in the same plane; and attachment cannot be used, as in the practice of other when one takes into its jurisdiction a specific thing, jurisdictions, as means of compelling the appearance

that res is as much withdrawn from the judicial power of the defendant, or of founding jurisdiction as a pro- of the other as if it had been carried physically into a ceeding in rem. Both alike command the seizure of different territorial sovereignty. To attempt to seize the property of the defendant without a specific de- it by a foreign process is futile and void. The regulascription, and in obeying the precept, the officer exer: tion of process, and the decision of questions relating cises prescisely the same discretion, and with the to it, are part of the jurisdiction of the court from same consequences, if he commits a wrong under color which it issues. “The jurisdiction of a court,” said of it. The court has the same control over both forms Chief Justice Marshall, “is not exhausted by the ren. of its process, and has custody of the property seized dition of its judgment, but continues until that judg. by virtue of them in the same sense. The circumstance ment shall be satisfied. Many questions arise on the that as to property held under an attachment, the final process subsequent to the judgment in which jurisdicjudgment may direct its sale, while the execution is tion is to be exercised." Wayman v. Southard, 10 issued upon the præcipe of the party, and is executed Wheat. 1. without further order, cannot alter the relation of the The principle which defines the boundaries of juriscourt, either to the officer or the property. It has ju- diction between the judicial tribunals of the States risdiction over the latter to meet and satisfy the exig- and of the United States, the application of which efency of either writ, and that jurisdiction can be main. | fectually prevents their confusion, was set forth and tained only by retaining the possession acquired by vindicated in the judgment of this court in Ableman v. the officer in executing it. A third person, a stranger Booth, 21 How. 500

It was there said by Chief Justice to the suit and claiming as owner, may prosecute his Taney, p. 516, “that the sphere of action appropriated right to restitution in either case, in the same meth- to the United States is as far beyond the reach of the ods, as pointed out in Krippendorf v. Hyde, 110 U, S. judicial process issued by a State judge or a State court 276, or he may pursue his remedy for damages against as if the line of division was traced by landmarks and the officer, either personally for the trespass, as in Buck monuments visible to the eye." And speaking of the v. Colbath, supra, or for the breach of his official duty, procedure in cases of habeas corpus issued uuder State

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