15 N.H. 227 | Superior Court of New Hampshire | 1844
Two exceptions to the replication have been taken by the defendant’s counsel, but bpth must be overruled.
The allegation of the delivery of the summons on the fifth day of March, before the suit was instituted, is repugnant to the other matter of the replication; but it is immaterial, and may be rejected as surplusage. The defendant has entered a general appearance to the action, and has pleaded to the merits. If there was any irregularity in the service of the summons, he should have taken advantage of it in abatement, or on a motion to quash the writ. As he did neither, he waived all objections of that character. After a plea to the merits, he cannot plead in abatement that he was not duly summoned to appear, nor could he at this stage of the proceedings move to quash the writ for such a reason. 5 Burr. 2611, Rice vs. Shute; 3 Pick. R. 595, Ripley vs. Warren; 21 Pick. R. 535, Carlisle vs. Weston; 1 Metcalf’s R. 511, and cases cited.
The delivery of the summons is not a part of the attachment, which is made before the summons is served. 5 N. H. Rep. 275, Pemigewasset Bank vs. Burnham; 7 N. H. Rep. 399,
As to the other objection. — The replication alleges that the plaintiff is entitled to prosecute the action to final judgment and execution, for the purpose of effecting a levy upon the rights of the defendant, attached in the suit, and thereby perfecting his title thereto. This shows the right he sets up; and if there was any imperfection in the prayer of judgment, it would be the duty of the court to give such judgment as appeared from the whole record to be proper, without any regard to such imperfection. 4 East R. 502, 509, LeBret vs. Papillon, and cases cited.
Our opinion upon the general effect of this replication, as an answer to the defendant’s plea, was expressed upon the last circuit, in the case Kittredge vs. Warren.
The conclusion? to which we came in that case were not hastily adopted. The subject matters involved in it had been brought to our notice, incidentally, from time to time, after the passage of the bankrupt act, by decisions elsewhere upon the construction of the last proviso in the second section of the act; and
So far as the mere matter of authority was concerned, the adverse decisions, which had been made in Massachusetts and Vermont, could render us but little aid, if they did not actually operate to embarrass and perplex us. On the one hand, the learned judge of the first judicial circuit of the United States, in the case Fx parte Foster, had held that a creditor who had made an attachment under the laws of Massachusetts, before any petition or act of bankruptcy of his debtor, ought, after such petition, to be restrained, by injunction, from prosecuting his action to judgment, for the purpose of availing himself of his attachment, because it would be against the policy of the bankrupt act to permit him to gain a preference in that way over the other creditors. And he had, in the same case, indicated an opinion that an attachment under the laws of Massachusetts was not a hen or security upon property, within the saving of the bankrupt act; and that, even if it was within the proviso and saving, yet, as it was an inchoate and contingent security, the creditor should not be permitted by a race of diligence to perfect it, but should be restrained until the bankrupt could procure and plead his certificate, which would defeat the suit, and with it the security. This decision, it was understood, had governed the action of the learned judges in the Massachusetts and New-Hampshire districts, who, so far as we were advised, had not promulgated their own opinions on the subject.
On the other hand, we had before us the opinions of the learned judge in the district of Vermont, holding attachments under the laws of that State, made before a petition or act of bankruptcy, to be hens within the saving of the act, upon which the creditor was entitled to proceed to judgment, for the purpose of availing himself of his security. And in this opinion the late learned and lamented judge of the second judicial circuit of the United States had fully concurred. Another decision of the district judge there, held, what seemed to be but a fair and legitimate consequence of the first, that the certificate, when obtained and pleadedj was not a bar to the farther prosecution of the suit.
The decisions in Massachusetts and Vermont were, therefore, directly opposed and in conflict. On a similar state of the local law, and a similar state of facts, the bankrupt law, in its practical operation, had boon one thing in Vermont, and another thing in Massachusetts, by reason of this conflict of decisions; and it was clear that the cases in the two districts could not stand together as correct expositions of the law, however conclusive they might be, in their respective districts, in point of fact.
Subsequent decisions, in the circuit court of Massachusetts, were certainly regarded by many as establishing material qualifications of the general views expressed in Fx parte Foster, if not as surrendering some of the doctrines there stated. It is not of much importance how this maybe. If the decisions in the first circuit can all be reconciled with each other, and they seem to have received a general confirmation, it will not essentially vary the state of the case.
If such a thing as weight of authority can be predicated upon these decisions in the courts of the United States, there is certainly no disrespect to the learned judge who presides in the first judicial circuit, in saying that such weight is adverse to the opinion expressed by him in Fx parte Foster, as that opinion stands alono, and in opposition to the opinions of the circuit and district judges sitting in Vermont, whose long judicial administration, in the tribunals of New-York, Vermont, and the United States, has acquired for them a judicial character which does not need the aid of our humble commendation.
It was not upon weight of authority, however, that we relied, in forming our opinions in Kittredge vs. Warren. Pursuing the chain of reasoning which our own limited experience and studies suggested to us, we drew our conclusions from that course of reasoning.
We found that attachments had been denominated “ liens” in the laws of the State ; in the opinions of this court, and of the
But without relying upon that, it appeared to us incontrovertible that they constituted a ‘ security upon property’, valid by the laws of the State, that they were, therefore, within the express saving of the last proviso of the second section of the bankrupt act, and that they were quite as much within the reason of the saving’ as hens or securities by judgment, which were admitted on all hands to be saved. We thought that one part of the act was not to be construed as destroying, or authorising the debtor to destroy, what another part of the act expressly saved to the creditor; and that the certificate could not, therefore, if pleaded, be admitted as an absolute bar to the action, if the plaintiff replied the existence of an attachment before any act of bankruptcy.
These conclusions were, undoubtedly, not entirely in coincidence with the positions taken in Px parte Poster ; but we sedulously endeavored to express them with all due courtesy and respect, and upon a review of our opinion, (which was immediately printed, for use in the circuit court by parties having matters there pending,) we are unable to discover any failure in that particular. While we greatly regretted this difference of opinion, it was no small gratification to us that we could fortify our conclusions by the opinions of others so highly distinguished. The case Px parte Pellets seemed, moreover, to be a very strong authority in support of our conclusion, that ’the certificate was not a bar to the action, provided the attachment constituted a security within the saving of the act. If to a plea in bar, founded on the certificate of discharge, the plaintiff might reply that the debt was a fiduciary debt, and so not within the operation of the act, we certainly did not discover why he could not well reply any other matter showing a right exempted from its operation, and which could be, and to be effectual must be, enforced by the action. And it was perfectly apparent to us that the forms of
Upon the promulgation of that decision, the true course for parties having cases involved within the principle of it, and desirous of having the matter farther tested, was, as it seems to us, extremely clear; and that was, with ail convenient speed to put? some case in a train for obtaining the opinion of the supreme court of the United States.
If no power existed in that court to revise the decisions of the circuit and district courts in bankruptcy, no objection was perceived to its jurisdiction over the decisions of this court, involving the construction of a statute of the United States, even if that statute was the bankrupt act. The opinion in Kiitredge vs. Warren refers to this ultimate resort.
Several cases, in which Bellows and Peck wore defendants, and in which the defendants had pleaded their discharge in bankruptcy, and the plaintiffs had replied the existence of an attachment, came under my notice shortly after in the common pleas ; and T strongly recommended to tiho partios to carry one of them to the supreme court with all practicable expedition, and in the mean time to continue all the other suits, to await the event.
But the defendants in those cases, or their assignee, preferring to rely upon what was probably deemed a more assured course, rejoined that an order had been made in the district court, upon the sheriff, to deliver up the property to the assignee; and it seems that they, or the assignee, resisted a petition, filed by the sheriff and his deputy, in that court, for a revocation of the order, whereupon the district judge adjourned two questions into the circuit court for the first circuit — One, whether an attachment of property, under mesne process, Iona fide made, before a petition filed
It was undoubtedly rather to be desired than expected, that the reasoning in Kittredge vs. Warren should have been satisfactory and convincing to the mind of the learned judge of the first circuit ; and it would have been quite agreeable to us, had the courts of the United States, aware of the difference of opinion which existed between us, seen fit to leave the parties to seek a final adjudication, binding upon all of us, through the ordinary course of a -writ of error. But this was a matter for them considera^ tion, and we can only regret that a different course has been adopted. The learned judge, upon taking up the questions for decision, professing to consider the points involved in the first question, so far as his judgment was concerned, as fully discussed and fully decided, declared his intention not to discuss them in any manner whatsoever. The opinion before us, however, (“ In the matter of Bellows & Peck,” 7 Law Reporter 119,) seems not to be confined entirely to the second; and the’ remarks there made, upon Kittredge vs. Warren, induce us to review the opinion we expressed in that case.
We shall make no comment upon the general tone of the opinion in Ex parte Bellows & Peck, nor shall we complain, that in expressing a dissent from our opinion, which the learned judge thought it expedient to make emphatic, and characterized as one which he manifested “ toto animo,” he should have seen fit to pass in entire silence the learned opinions in Yermont, which, if they did not produce the result in Kittredge vs. Warren, as a matter of authority, certainly sustained it with great force and cogency of reasoning. The case before him did not perhaps require any consideration of decisions elsewhere. But we have some reason to animadvert upon the fact, that his published decision, unintentionally without doubt, seems to attribute to us opinions which we - neither formed nor expressed.
“ The whole error in the argument,” says the learned judge,
It may be, that the argument here intended is that of the counsel in the case of Bellows Peck, but such certainly appears to us not to he the import of the language, connected as it is with the remarks upon the case of Kittredge vs. Warren, which precede and follow this clause.
If the argument by which our conclusions in that case are attempted to he sustained is intended, the remark is certainly founded in a great mistake respecting our reasoning, or exhibits a singular want of precision in the terms in which it is expressed.
With respect to the first of these supposed errors. — No small portion of the opinion, in the case of Bellows $ Peck, is devoted to the proof of a position that if the debt is discharged it cannot subsist. A cursory reader might suppose, from the manner of it, that in Kittredge vs. Warren we had attempted to maintain, that notwithstanding the certificate absolutely discharged the debt, it still subsisted, and judgment might be rendered upon it. “ I profess myself wholly unable” [it is said] “ to comprehend how
But this opinion, if intended to overthrow our doctrine in Kittredge vs. Warren, on this point certainly does not present a fair statement of it. That doctrine was, that the existence of the lien •or security, obtained by an attachment, is in no way contingent, conditional, or inchoate; that its existence does not depend upon the judgment; that it exists in full force from the moment the attachment is made, as much so as a hen by judgment, upon the rendition of the judgment, in States where that security is recognized. We admitted that it was conditional, in the sense that hens by judgment are conditional, — that it depended upon contingencies whether it would ever be made available to the creditor ; and so it is with hens by judgment, where there is a period in which they cease to exist if the judgment creditor has not proceeded to seize the property.
And having estabhshed to our own satisfaction that the security was not inchoate, but existed in full force from the moment the attachment was made, we concluded that it was a security within the saving of the act.
The principle that a debt may subsist for some purposes, and. not for others, has nothing of novelty in it. 11 Mass. R. 125, Perkins vs. Pitts; 2 Conn. R. 161, Baldwin vs Norton; 6 Conn. R. 373, Lockwood vs. Sturdevant; 3 Verm. R. 26, 42, Catlin vs. Washburn; 7 N. H. Rep. 97, Robinson vs. Leavitt.
It may be released, except so far as it shall be satisfied by a particular suit in foreign attachment, and subsist to that extent to sustain the action. 3 N. H. Rep. 395, Wallace vs. Blanchard and Trustee.
However carefully it might have been laid up among the maxims of the law, “ that a discharge in bankruptcy, pendente lite, was a good bar, and might be pleaded as such to the suit,” upon which we expressed no doubt whatever, we did not suppose that a discharge in bankruptcy, pending a suit which was exempted in whole or in part from the operation of the discharge, could be pleaded as an absolute bar of such suit. And that the discharge, although general in its terms, did not operate as a bar of all suits founded on debts provable under the act, we had the authority of Ex parte John B. Tebbets, as before stated. 5 Law Reporter 259. In that ease, after holding that “ fiduciary debts are provable under the proceedings in bankruptcy, equally with other debts, at the creditor’s election,” and that, if not .proved, they “ are not extinguished by a discharge and, certificate under the act,” it is said, “ there is no necessity to exempt fiduciary debts from the general terms of the discharge and certificate; for if they are by implication excepted from the operation of the act, where the fiduciary creditor does not elect to come in and prove his debt.,
Whether Ex parte Tebbets, however, is any longer to be regarded as authority, may admit of doubt. In the course of the opinion in Ex parte Bellows & Peck it is said, “ It is clear, that by the bankrupt act of 1841, ch. 9, § 4, this was a debt of the plaintiff, provable under the bankruptcy, and equally clear that if so provable, then the certificate of discharge operated to discharge the debt.” 7 Law Reporter 124. And again: “the bankrupt act of 1841, ch. 9,§ 4, declares that a ‘ discharge and certificate, when duly granted, shall hi all courts of justice be deemed a full and complete discharge of all debts, contracts and engagements of such bankrupt which are provable under this act; and shall be and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever.’ This is in substance like the provision in the English bankrupt acts. And there never has been any doubt, that it is a perfect bar to any personal action brought to recover any such debt after the certificate of discharge has been obtained.” Ditto 126.
This, according to our understanding of the matter, is somewhat at variance with so much of Ex parte Tebbets as holds that a fiduciary debt is provable under the commission, but that if not proved the discharge will not bar it. But it is not material to our purpose whether that case is overruled or confirmed. Although we have cited it in confirmation of our views, they by no means depend upon it.
Then, as to the second alleged error. We certainly never asserted that the lien of an attachment “ is equivalent to a mortgage upon the property, and entitles the plaintiff to the same rights and remedies that he would have upon a mortgage.” We expressly admitted, as has already been stated, that it was conditional, in the sense that liens by judgment are conditional; that it depended upon contingencies whether it would ever be
It never occurred to us that any one would contend, that an attachment, like a mortgage, gave the creditor the right to take possession of the property, and hold it, or to foreclose the right of redemption. Nor, until we saw the learned opinion in Ex parte Bellows § Peck did we understand that any one was supposed to have assumed any such position. And yet, such must be the doctrine of the individual who holds that an attachment is equivalent to a mortgage, and entitles the plaintiff to the same rights and remedies that he would have upon a mortgage.
What we did say was this: “ It is perfectly clear that there must be exceptions to the language of the fourth section; cases where the debt, which was provable under the act, and not proved, must be holden to subsist, notwithstanding the certificate of discharge. Thus mortgages are saved by the proviso; and notwithstanding the certificate of discharge, the debt upon which a mortgage is predicated must be holden to subsist, so far as it is necessary to sustain any legal proceedings for the foreclosure of the mortgage. Under our statutes the conditional judgment must be entered, that if the amount of the debt is paid within two months, the judgment shall be void, otherwise a writ of possession shall issue. But if the debt was fully and completely discharged, there would be a good defence to the mortgage which is the incident to the debt. So in the case of a lien by pledge. The discharge would be no bar to proceedings in equity for the sale of the pledge in order to apply the proceeds in satisfaction of the debt. And so in cases where attachments have been made, and judgments obtained before petition; as in Cook’s case, where it is admitted that the lien is saved. The debt subsists, notwithstanding the discharge, so far as to uphold the attachment, and execution, and the right to sell the property upon it. And this is not because there is no opportunity to plead the discharge, after judgment; for if the discharge operated to defeat the. debt, the judgment creditor to whom nothing would then be due might be, and ought to be, restrained by injunction from selling the property attached.” 7 Law Reporter 86 ; [14 N. H. Rep. 537.]
We adverted to mortgages by way of illustrating our position that the debt would subsist notwithstanding the discharge, so far as it was necessary to uphold the security, assuming that to be within the saving of the proviso. And that very doctrine must be held in this State, in order to save mortgages from the operation of the discharge. For notwithstanding mortgages ai’e within the express terms of the proviso of the second section, they are not entitled to any greater exemption from the operation of the bankrupt act than securities by attachment are, if it be once shown that they also are within the same proviso. By the laws of this State, if, before foreclosure, the debt is gone, the mortgage is gone ; and this is supposed to be the case generally, although in some governments it has been held that the legal title is still in the mortgagee, until devested by some farther proceedings. With us, when the debt is discharged, and no longer subsists, the mortgage is absolutely void. 11 N. H. Rep. 131, Batchelder vs. Taylor ; 1 N. H. Rep. 332, Swett vs. Horn. And if the certificate in bankruptcy discharged the debt, the party might avail himself of that fact, here, in a writ of entry founded on the mortgage. In such action we ascertain the amount of the debt, and render a conditional judgment, that if the debt is not paid the mortgagee shall have a writ of possession.
Assuming, therefore, that attachments are securities saved by the proviso in the second section of the bankrupt act, the same process of- reasoning which defeats them, afterwards, by the allegation that the certificate operates as a discharge of all debts provable under the act, would defeat a mortgage also, notwithstanding the difference of the proceedings to enforce the two. If an attachment is a security within the proviso of the second section, it is expressly saved from the1 operation of the act; and a mortgage is no more than expressly saved. If it be held that an attachment is only saved in case it can be made available by a judgment before a certificate is obtained, a similar process of
There can be no doubt that a debt secured by a mortgage is discharged by the act, except so far as it subsists to uphold the mortgage. We repeat, therefore, that tho same process of reasoning which saves mortgages from tho operation of tho certificate of discharge, saves a security by attachment also, if it is once shown that the latter is a security within the saving of the act. And we have the authority of the supreme court of Connecticut, “ that the lien of a creditor acquired by tho attachment of a particular piece of land, is as specific, and, under similar circumstances, stands on as high equitable ground, asa- lien by mortgage of the same land.” 8 Conn. R. 550, Carter vs. Champion.
If seems to be supposed, in the ease of Bellows Peek, that the form of the proceeding presents an insuperable objection to the doctrine of Kittredge vs. Warren. See 7 Law Reporter 124, 127, before cited; Ditto 128.
The difficulty thus suggested is, in our view, wholly imaginary. It rests altogether upon matter of form, and has nothing of substance in it. The form of the process is to be moulded to meet the demands of the law, and sustain the rights of the parties.
The mode of foreclosing mortgages is just what the law of different States makes it. In some places, it may be by entry in pais, in some, by writ of entry on the mortgage, in some, by bill in chancery, and a sale of the mortgaged premises. The statute of Illinois, passed January 17,1825, provided that if default bo made in the payment of any sum of money, secured by mortgage, the mortgagee might sue out a writ of sdre facias, requiring the mortgagor, &e. to show cause why judgment should not be rendered for the money duo; that the court
That the form of proceeding furnishes no obstacle whatever, seems to be not only clear in principle, but is fully shown by authority. The case Ingraham vs. Phillips, 1 Day’s R. 117, decided under the former bankrupt act, is directly in point. And so are the opinions of Mr. Justice Prentiss upon the late act, 5 Law Reporter 400, Downer vs. Brackett; 6 Law Reporter 301, Bx parte Rowell. Such also must have been the opinion of Mr. Justice Thompson, 5 Law Reporter 505, Houghton vs. Eustis, and note.
In an action upon a promise in writing to pay $200, in two years, “ out of any property I may possess, my body being at all times exempt from arrest,” — it was held, by this court, that the plaintiff might maintain his suit upon a count for money had and
“ If,” says Mr. Justice Hutchinson, “ the statute has given rights unknown to the law before, we can expect no forms exactly suited to the presentation of those rights for adjudication. Yet so far as we can find a course prescribed in practice, prudence dictates that wo preserve that course so far as it loads, and observe some analogy of legal principles for the remainder of the forms of proceeding.” 1 Verm. R. 482, Martin vs. Trowbridge.
This is precisely what we have endeavored to do in this matter. The attachment being a security saved by the act, wo have pursued the ordinary course of legal proceeding, to make it effectual to the creditor', by rendering a judgment which may uphold it; but as the remaining proceeding is, in effect, a proceeding in rem only, we have preserved as far as we might an analogy to proceedings of that character, by making the judgment one which is to operate against the property only, and issuing an execution in terms appropriate for that object.
It is admitted that a proceeding in form in personam may be in effect a proceeding in rem, in cases where property has been attached, but the defendant is not within the jurisdiction of the court, and has not appeared. Story’s Confi. 461.
It may well be said, that the whole matter in controversy now depends upon the question, whether the certificate of discharge in bankruptcy will defeat and destroy a security expressly saved from the operation of the act by the proviso. Wo are aware that the learned judge says, in Ex parte Bellows & Peck, “ Assuming it” [an attachment] u to be a lien, it is a contingent conditional lien, connected with mesne process, and only dependent for its value and efficacy upon the plaintiff’s obtaining judgment in
If, on the other hand, the property is not thus divested out of' the bankrupt, and vested in the assignee, absolutely, without incumbrance, it is because there is at the time of the decree a subsisting charge, or incumbrance, upon the property, by means of the attachment existing at the time; and, if this is so, that charge, or incumbrance, is a security, or lien upon the property, which the creditor has already taken by means of his attachment. The attachment is something existing, and fixed upon the property, so that the right of property which passes to the assignee is subject to it.
When it is once admitted, therefore, that the creditor may proceed and avail himself of his attachment, if the debtor does not succeed in obtaining his discharge, it must be admitted, also, or it will follow, if it is not admitted, that the attachment is a security upon property saved from the operation of the general assignment.
It may be added, that the subsequent part of the third section shows that the general “ rights, titles, powers, and authorities to sell, manage and dispose of the” property, and rights of property of the bankrupt, and to sue for and defend the same, vested in the assignee, were such as wore vested in, or might be exercised by, the bankrupt, before or at the time of his bankruptcy. The second section gave the assignee power and authority, beyond what the bankrupt possessed, in relation to “ payments, securities, conveyances, or transfers of property, agreements, made or given by any bankrupt, in contemplation of bankruptcy,” &c. which were declared void, and a fraud upon the act; but it cannot be pro-tended that attachments in inviium, bona fide made before an act of bankruptcy, are within this clause. These considerations show that it may well be admitted, that the creditor may proceed with
Having carefully examined the opinion in Ex parte BeUows Peck, we find nothing in it which addresses itself to our judgment as a fair argument against the opinions expressed by us in Kittredge vs. Warren; and we therefore adhere to the decision in that case, with as undoubting confidence as we can hold to any thing else similarly situated. And the belief that that case commends itself very generally to the approbation of the profession in this State, and also to that of gentlemen of eminent professional-standing elsewhere, certainly adds, in no small degree, to the confidence we have in its correctness. That decision is subject to the revision of the supreme court of the United States. If there reversed, we shall be bound to treat it as erroneous, whatever of support it may have received in other quarters. Until thus reversed, we shall regard it as sound, unless it is impugned by something beyond what we have yet seen.
The opinion thus expressed settles the judgment which is to be entered in this case, and we should have been well content if we might have stopped here. But there is a farther matter in the opinion in the case of Bellows & Peck, of a character which may well astonish, if it does not alarm us, and which we cannot pass by in silence upon the present occasion.
According to that opinion, the judgment which is to be entered in this case is to be treated as a nullity in the district court of the United States for this district, if the defendant, or his assignee,
That we may not be supposed to have mistaken the import of the language used, we subjoin some farther extracts -from that opinion.
“ When,” (says the learned judge,) “ a personal action is pending at the suit of any creditor, in a State court in which an attachment has been made on the writ, and the period has not passed at which the bankrupt is properly in court, and is entitled, if he obtains a discharge in bankruptcy, to plead it as a bar of the suit, in the nature of a jilea, puis darrein continuance, it becomes the duty of the court, upon his own application, or that of his assignee, by petition, to grant an injunction against the creditor, to stay farther proceedings in the suit until the farther order of the court.” 7 Law Reporter 129. Again: “ If the bankrupt obtains his discharge, and pleads it as a bar, and the creditor means to contest its validity, as by replying fraud, or that the debt is not otherwise within the discharge, then the creditor should apply to the district court for leave to proceed in the cause, and to try the validity of the discharge by a trial in the State court, which is granted as a matter of course, upon suitable proof and affidavits. If the validity of the bar is established by the verdict of the jury, that of course ends the right to proceed in the suit unless a new trial is granted. If the discharge is avoided for fraud, or other matter in pais, then of course it is no bar, and there is an end of the defence, unless a new trial is granted. But, if the validity of the discharge, as such, is not contested, and the State court should, as in the case of Kittredge vs. Warren, upon a demurrer, hold the discharge invalid as to the property attached, I have no doubt
That conclusions of a character so novel, and of such vital consequence to the State jurisdictions, should be put forth without a statement of some, at least, of the reasons upon which they are founded, was hardly to be expected. But the reasons are not to be found, unless, perchance, they are contained in the following clause of the same opinion. — “ It would be an utter renunciation,” (it is said,) “ of the rightful authority and jurisdiction of the courts of the United States, to allow any creditor to avail himself of any unjust and unlawful advantage, merely because Ms suit is depending in a State court. The laws of the United States are, to the extent of the constitutional limits, paramount to the authority of those of the States. The courts of the United States are the appropriate expounders of the laws of the United States; and are not bound to follow the exposition of these laws by the State courts, unless so far as they approve themselves to their own judgment.” Ditto 130.
If this is to bo regarded as the premises and reasons from which the conclusions are derived, and we arc to understand that, therefore, the district court should treat the judgments of the State courts as nullities, and attempt the exercise of the powers which it is said it is its duty to exercise, we must say that in our opinion the foundation will by no means sustain the superstructure. But, whatever may be the ground upon which the doctrine is promulgated, the plaintiffs in this and other actions similarly situated, with this matter before them, may well ask of us, whether the judgments entered in their favor, in pursuance of our opinions, are mere waste paper; and whether we have no power to enforce our own judgments, so long as they remain unreversed.
If the right existed to treat the judgments of this court as nullities, because there was some error in our construction of the
The assumption is, that the district court ought to treat the 'judgments of the courts of this State as nullities, not as it may be found that those courts had jurisdiction, or otherwise; but according as the district judge, acting under the light of Ex parte Foster and Bellows & Peck, may be of opinion that the courts rendering them have, or have not, exercised them jurisdiction wisely, on the pleadings before them. This is a new species of nullification.
It is evident, from what has been already stated respecting the decisions elsewhere, that the result of this doctrine, if carried into practice, would be that a judgment of a court here, having jurisdiction of the matter, if carried into Vermont as a justification for acts done under it, would be held by the United States courts
This pretension, thus put forth, (so far as we are aware, for the first time,) that the circuit or district courts of the United States may treat the judgments of the courts of the several States as nullities, whenever in their opinion those judgments are founded upon, or involve, an erroneous construction of a law of the United States, it is believed has nothing, either of principle or authority, to sustain it.
In all the suits which have come under our notice, the court where these actions are pending, had, on the institution of the suit, jurisdiction of the cause and of the parties. The actions were duly commenced and entered, and the jurisdiction was most unquestionable. It has not been lost by any subsequent change in the relation or condition of the parties. 2 Brokenbrough’s R. 516, The United States vs. Meyers; 8 Peters’s R. 3, Dunn vs. Clark; 1 Fairf. R. 291; 2 Summer’s R. 262, Clark vs. Matthewson, and cases cited. It is not lost because the defendants have filed a petition in bankruptcy, nor by reason of their having obtained a certificate. That certificate must be'pleaded, and its validity may in some way be contested. Had the plaintiff in this case replied that the certificate was fraudulently obtained, no doubt seems to be expressed in Ex parte Bellows f Peck, that a judgment, entered upon a verdict finding such an issue in favor of the plaintiffs, would be valid and binding upon parties and privies.
If, instead of a replication that the certificate was inoperative by reason of fraud, the plaintiffs reply some other matter, avoiding as they say its operation as a bar of the action, that does not affect the jurisdiction of the court, which must thereupon proceed
Such is the general principle to be found in the books. And by no court has this principle been more emphatically laid down, than by the supreme court of the United States.
“ 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, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered in law as trespassers.” 1 Peters’s R. 340, Elliot vs. Piersol.
“ The general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it appears upon the face of them that the subject matter was within the jurisdiction of the court, they are voidable only. The
u A judgment or execution, irreversible by a superior court, cannot be declared a nullity by any authority of law, if it has been rendered by a court of competent jurisdiction of the parties and the subject matter, with authority to use the process it has issued: it must remain the only tost of the respective rights of the parties to it. If the validity of a sale under its process can be questioned for any irregularity preceding the judgment, the court which assumes such power places itself in the position of that which rendered it, and deprives it of all power of regulating its own practice or modes of proceeding in the progress of a cause to judgment. If after its rendition it is declared void for any matter which can be assigned for error only on a writ of error or appeal, then such court not only usurps the jurisdiction of an appellate court, but collaterally nullifies what such court is prohibited by express statute law from even reversing.” 10 Peters’s R. 474, Voorhies vs. The Bank of the U. States.
“ It remains only then to inquire in every case what is the effect of a judgment in the State whore it is rendered. In the present case the defendant had full notice of the suit; for he was arrested and gave bail, and it is beyond all doubt that the judgment of the supreme court of New-York was conclusive upon the parties in that State. It must, therefore, be conclusive here also.” 7 Cranch R. 484, Mills vs. Duryee. See, also, 4 Cranch 241, 269, Rose vs. Himely; 5 Cranch 173, Kempe’s Lessee vs. Kennedy; 3 Wheat, R. 285, Hampton vs. McConnel; 6 Wheat 113, Hopkins vs. Lee; 10 Wheat. 199, McCormick vs. Sullivant; 6 Peters’s R. 729, United States vs. Arredondo ; 16 Peters’s R. 87, Cocke vs. Halsey.
There is nothing that we discover, to take the cases now pending in the courts of this State out of the general principle. If
Nor will it do to say that the judgments, if rendered in favor of the plaintiffs, are frauds upon the bankrupt act, and therefore void. The doctrine of fraud, in the avoidance of judicial proceedings, does not extend quite so far. To warrant that, there must be, not mistake of the court, but covin, collusion, or falsity of the party. The Duchess of Kingston’s Case, 11 State Trials 198, died Hale’s Hist. Com. Law 31, 38, note D ; 6 Peters’s R. 716, United States vs. Arredondo ; 12 Vermont R. 619, 624, Atkinsons vs. Allen.
The considerations and authorities we have thus adverted to are quite sufficient to warrant us in saying, that we cannot recognize the right of any court to treat our judgments, rendered in cases where we have a clear jurisdiction, as mere nullities.
But the position that the judgments of courts having jurisdiction of the cause and the parties, maybe treated as nullities, thereby precluding the necessity of what might prove an unsuccessful attempt to procure their reversal, is not, as we have seen, the only extraordinary conclusion found in the case of Bellows & Peek.
It is not directly asserted, but it may perhaps be inferred from what we have before quoted, that the district court, in fear lest the State courts should go wrong in the matter, may, through the means of an injunction already granted upon the plaintiffs, restrain the State courts from considering any replication, but such as the district court may deem suitable and proper for their judgment. Notwithstanding the defendant has obtained his dis
Subsequently to the time when the bankrupt act went into operation, it necessarily came to our knowledge that injunctions were, from time to time, issued by the district court, for the purpose of restraining plaintiffs from proceeding in actions pending in the State courts, the defendants having filed petitions in bankruptcy ; and we were fully aware that the jurisdiction thus exercised was particularly odious to the parties, and counsel, upon whom such process was served. No small impatience was manifested upon the subject; but no matter was presented to this court, or to any of the several members of it, for any action, relative to such process.
When Kittredge vs. Warren was decided, we made no examination into this subject. It was in no way necessary, or important, to the settlement of that case. We were content to take it for granted, that there might be some foundation for a power which had been so freely exercised. We admitted, in that case, that if doubts existed respecting the validity of the demand upon which a suit had been commenced, and an attachment made, it might be proper, if the defendant had gone into bankruptcy, to restrain the prosecution of the suit until provision could be made for defending it; and we made no inquiry whether the authority to issue such an injunction resided in the courts of the United States, or was confined to those of the State.
We have no controversy with the learned judge of the district court, for what has passed in this respect. In issuing the injunctions, thus far, he has undoubtedly acted on what seemed to him to be a sufficient opinion upon that subject.
But the pretension now set up, in Ex parte Bellows & Peck, is of a much more important character. It is, as we have already seen, no less than an assertion of a right and power in the
Such, the learned judge, in Bellows & Peck “ does not scruple to affirm, is, and should be the practice.”
We can only say that this is the first time we have ever heard of any such practice, and we trust, with great confidence, that it will be the last.
The power thus asserted is one of tremendous import, hnd the authority for its exercise should be most clear and indisputable. We cannot consent that this claim to interfere with the jurisdiction, legal proceedings, laws, and practice, of the several States should pass unchallenged, and we propose to inquire at this time somewhat into its foundation.
The general question, of the right of the district court to issue an injunction to stay proceedings in a State court in any case, is disposed of, in a very summary manner, in the case of Bellows & Peck. “ In respect” (it is said,) “ to the right of the district court to issue such an injunction, it seems to me clear in principle, and it is a question of which that court had exclusive cognizance, and it is not a matter inquirable into elsewhere, whether the jurisdiction was rightfully exercised or not.” 7 Law Reporter 124.
If, by this, it is intended that there is no appeal from the decision of the district court in this matter, it is undoubtedly correct ; but if it is intended that the courts of the States cannot inquire into the jurisdiction of the district court to issue such injunctions, and, if it be found that no such right exists, act upon the result of that inquiry, the assertion is most respectfully, but distinctly denied. That the jurisdiction may be inquired into is too clear to admit of doubt. 1 Peters’s Sup. C. R. 340; 2
When it is settled that the district court has jurisdiction to issue injunctions, to restrain proceedings in the State courts, its decree, in that particular, must be held conclusive, if it does not exceed the limits of the jurisdiction. 3 Wheat. R. 312, Gelston vs. Hoyt.
Provision for the exercise of the judicial power conferred by the constitution of the United States, was made in the act of congress of September 24,1789, to establish the judicial courts of the United States, usually termed the judiciary act.
The 25th section provides, that in certain cases, there enumerated, the final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision of the suit could be had, may be reexamined, and reversed, or affirmed, in the supreme court of the United States, upon a writ of error; (1 Laws U. S., Story’s Edition, 61,) and we admit that our judgments, involving the construction of the bankrupt law, in its operation upon attachments, are within the provisions of this section.
The 14th section of the act confers upon the supreme, circuit and district courts, power “ to issue writs of scire facias, habeas eorpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as the judges of the district courts, shall have power to grant writs of habeas eorynis, for the purpose of an incpiiry into the cause of commitment. — Provided, that writs of habe/is corpus shall, in no case, extend to prisoners in gaol, unless whore they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.” Ditto 59.
An act of February 13th, 1807, to extend the power of grant- ■ ing writs of injunction to the judges of the district courts, enacted, “ That, from and after the passing of this act, the judges of the district courts of the United States shall have as full power to grant writs of injunctions, to operate within them respective districts, in all cases which may come before the circuit courts within them respective districts, as is now exercised by any of the judges of the supreme court of the United States, under the same rules, regulations, and restrictions, as are prescribed by the several acts of congress establishing the judiciary of the United States, any law to the contrary notwithstanding: Provided, That the same shall not, unless so ordered by the circuit court, continue longer than to the circuit court next ensuing; nor shall an injunction be issued by a district judge in any case where a party has had a reasonable time to apply to the circuit court for the writ.” 2 U. S. Laws, Story’s Edition, 1043.
The district courts are specially authorized to issue injunctions in certain cases relating to the administration of the treasury department.
These seem to have been all the provisions which congress had seen fit to enact upon this subject previous to the passage of the bankrupt law-
Upon a subsequent page he says, “ It has also been adjudged, that no State court has authority or jurisdiction to enjoin a judgment of the circuit court of the United States, or to stay proceedings under it. This was attempted by a State court in Kentucky, and declared to be of no validity by the supreme court of the United States, in McKim vs. Voorhies. No State tribunal can interfere with seizures of property made by revenue officers, under the laws of the United States ; or interrupt, by process of replevin, injunction, or otherwise, the exercise of the authority of the federal officers; and any intervention of State authority for that purpose is unlawful. This was so declared by the supreme court in Slocum vs. Mayberry, (2 Wheaton 1.) 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; and it is to be observed, that the jurisdiction of the State courts in Rhode-Tsland was admitted by the supreme court of the United States, in Slocum vs. Mayberry, upon that very ground.” 1 Kent’s Com. 410.
“ But,” he says farther, “ while all interference on the part of the State authorities with the exercise of the lawful powers of the national government, has been, in most cases, denied, there is one case in which any control by the federal over the State courts, other than by means of the established appellate jurisdiction, has equally been prevented. In Diggs & Keith vs. Wolcott, ” (4 Cranch 179,) “ it was decided generally, that a court of the United States could not enjoin proceedings in a State court; and
The case Diggs & Keith vs. Wolcott, 4 Cranch’s R. 179, referred to in the foregoing extract, was this. Diggs & Keith commenced a suit in a county court in Connecticut, against' Wolcott, on two notes. Wolcott filed a bill in chancery, in the superior court of the State, against them, praying that they might be compelled to give up the notes, and be perpetually enjoined from proceeding at law. This suit was removed by them into the circuit court of the United States, where it was decreed that they should deliver up the notes, and be enjoined, &c. The supreme
In Ex parte Cabrera, it was held, that “ the jurisdiction of the courts of the United States is limited, and the inferior courts can exercise it only in cases in which it is conferred by an act of Congress.” And that “ the circuit court cannot quash proceedings against a public minister, depending in a State court: nor can the court in any way interfere with the jurisdiction of the courts of a State.” 1 Wash. C. C. R. 232. “ It is one thing,” (says Mr. Justice Washington,) “ to declare the process void; but another to define the tribunal which is to decide. The natural tribunal is that where the process is depending, or which has the superintending control over such courts.” “ I apprehend that neither court,” (federal circuit, or the State court,) “ can dictate to the other the conduct it shall pursue, or interfere in causes there depending, unless properly brought before it, under the provisions of law.” Ditto 236. “ I am not one of those who think it a commendable quality in a judge to enlarge, by construction, the sphere of his jurisdiction; that of the federal courts is of a limited nature, and cannot be extended beyond the grant.” Ditto 237.
“ Where N. II. commenced suits at law in the superior court of the city of New-York, against H. R., and H. R. filed a bill in chancery to obtain an injunction restraining the proceedings at law, it was held that the suit in chancery could not be removed into the circuit court of the United States, inasmuch as such a removal would leave H. R. without remedy; the circuit court of the United States having no power to restrain the proceedings at law.” 1 Paige’s R. 183, Rogers vs. Rogers. Mr. Chancellor Walworth said, “ In this case, the foundation of the suit is the inequitable prosecution of the suits at law against the complainants in the State court; and the relief sought is a perpetual injunction to stay those proceedings. By the commencement of the suits at law, the State courts have gaiued jurisdiction over the subject matter thereof, and the courts of the United States have no jurisdiction to restrain the petitioners from proceeding
It appears, from this investigation, not only that the right to issue injunctions, restraining suits in the State courts, is not to be found, in express terms, in the general acts prescribing the course of judicial proceedings in the courts of the United States; but that, lest the general terms in which one clause of the judiciary act is expressed might be supposed to assert or confer such a power, the courts and judges of the United States are under prohibition, by general law, not to issue such process.
If the power exist, therefore, in the cases in which it has been exercised, and in which it is proposed to exert it still farther, it must be sought for in the provisions of the bankrupt act itself.
If congress, by the enactments of 1793, and 1807, have clearly restrained the judges of the courts of the United States from exercising such power, in general terms, to what provision of the bankrupt act are we to look for a repeal of those laws, or to a grant of the power so far as the administration of that jurisdiction is concerned ?
On examining the bankrupt law, it is found to contain no provisions authorizing, in terms, the issuing of an injunction. It provides that the jurisdiction shall be exercised summarily, in the nature of summary proceedings in.equity; that the jurisdiction “ shall extend to all cases and controversies in bankruptcy arising between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy; to all cases and controversies between such creditor or creditors and the assignee of the estate, whether in office or removed; to all cases and controversies between such assignee and the bankrupt, and to all acts, matters and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy. And the said courts shall have full authority and jurisdiction to compel obedience to all orders and decrees passed by them in bankruptcy, by process of contempt and other remedial
It may be taken for granted, however, that the district courts were, by force of the act, authorized to issue such process as might be necessary to carry the act into effect, in the ordinary mode of exorcising a jurisdiction of that character, so far as they were not restrained by some express enactment. This would be but an incident to the jurisdiction.
But the question arises, whether the passage of the law, conferring upon the district court jurisdiction in bankruptcy, operated of itself as a repeal of the clause of the act of 1807, by which the district judge, in issuing injunctions, is placed under the same rules, regulations and restrictions as the judges of the supreme court of the United States, and by which he is restrained generally from issuing injunctions to stay proceedings in the State courts. It is very clear, that the operation of that prohibition was not confined to cases where the jurisdiction of the district court existed before its passage. If, by a subsequent statute, the jurisdiction of that court was extended to some matter, beyond what before existed, that jurisdiction must bo exercised, like the previous jurisdiction, and under the same limitations and restrictions, unless there was some expi'ess extension of the mode of action in relation to that particular jurisdiction, or unless some necessarily resulted from the nature of the case.
The bankrupt law is but a law of Congress, and containing no express repeal of the restriction of 1807, nor any express authority to interfere with the action of the State courts, the authority so to do, if any exists, must result from the nature of the proceedings, and the necessity of the case. It will hardly be disputed that such a necessity, in order to justify proceedings otherwise expressly prohibited, must be a clear, convincing, imperious necessity ; and the right founded on it must be bounded, and limited, strictly, to the limits of the necessity.
The authority of congress to pass a bankrupt law is not denied. Nor shall we deny, that, having passed one, if it can only be carried into execution by writs of injunction, operating upon suits in the State courts, then the district courts have the power
Has there heen a necessity for issuing process, of this character ? Could not the jurisdiction under the act have been exercised, like the other jurisdiction of those courts, without interference with proceedings in the State courts ?
In Fx parte Foster, the learned judge says if he entertained any doubt of the right of the district court to issue injunctions, he “ should not entertain any doubt as to the jurisdiction of the circuit court upon a bill, filed by the assignee, after his appointment, to overhaul and control or set aside all the proceedings” [in the State court,] u had in the intermediate time, by the attaching creditor, against the rights of the other creditors, and in subversion of the policy and objects of the bankrupt act.” 5 Law Reporter 73. Surely, the right to issue an injunction cannot be maintained from the necessity of the case, if the circuit court Bright thus overhaul, and control, or set aside, the proceedings and judgments of the State courts. But the right to ,do this must probably seek its foundation in some necessity quite as stringent as that required to justify an injunction. It can hardly find a basis in the polioy of the act.
■If the bankrupt act can be administered in Vermont, not only without any such proceedings, but with the full admission that the State courts have the right to render such judgments, and cause a sale of the property on the execution, it will be a most astonishing kind of necessity which shall drive the United States courts to attempt to impede the execution of final process here in similar cases.
But upon this branch of the subject, without entering into the inqury what other mode might have been adopted, it is quite sufficient to say, that if the true construction of the bankrupt act is, that
And if the decree of bankruptcy does not vacate the attachment, then we say, farther, it is because the property passes to tho assignee subject to tho incumbrance of tho attachment; it is a security upon property, saved to tho creditor; and, admitting tin's, an injunction, restraining him from availing himself of his security, thus saved, is a most unwarrantable interference with his rights, from whatever court it may issue. The doctrine found in Ex parte Foster, that, assuming an attachment on mesne process to be a security within the saving of the proviso, the attaching creditor ought, notwithstanding, to ho restrained from prosecuting his suit, because, if permitted to prosecute it, he would secure to himself what the act saved to him, and because, if restrained from proceeding until tho debtor obtained his discharge, that discharge might then he used to deprive him of what tho act saved to Mm, cannot stand for a moment in any court, unless it be one which finds a policy in tho act, contrary to the admitted and declared will of tho legislature which made the enactment. If the discharge, ■when obtained, could be used to defeat and destroy the security which the act saved, the wrong done to the creditor would only be the more aggravated. IIow tho attempt of a creditor, even by a race of diligence, to secure to himself a right which the law of the State conferred upon him, and the bankrupt act saved to him, or a judgment obtained by such a race of diligence, could he treated as a fraud upon the act which saved the right, or he doomed an overreaching and defeating of the just rights of tho other creditors, has certainly never yot been satisfactorily explained.
Waiving any farther consideration of the general question, whether any injunction could lawfully issue, and conceding, for the sake of the argument, that the district courts might, by virtue of their jurisdiction under the bankrupt act, and from the necessity of the case, restrain proceedings in the State courts, until the bankrupt could obtain and plead his discharge, there is no necessity for the exercise of such a power after that time, nor can it with any propriety be issued to restrain the execution of a judgment of the court of a State, which, if erroneous, may be corrected by a writ of error.
If there are rights of property dependent upon the termination of the suit, and in which the assignee has an interest in behalf of the creditors, he may, as we have seen, become a party to the suit, and after the certificate is obtained, vindicate all the rights of which he is guardian, by a regular proceeding, in due course of law, without a resort to any such summary interference. We see no reason to doubt that he may plead the discharge in
On the supposition, then, that there has been a time when the courts of the United States had power to issue an injunction, from the necessity of the case, that necessity has ceased, and the power has ceased with it. The injunction has been issued, and has done its office. This is apparent from the fact that the discharge is brought in and pleaded. The defendant, by pleading to the merits, waives any farther benefit from the injunction to stay proceedings, unless the district court, by means of it, has taken him into its guardianship. Having put in his plea, he is entitled to require a replication. It cannot be necessary for the plaintiff to ask leave of the district court, or any other court, before he can answer the plea thus put in. When the defendant proceeds again with the cause, the plaintiff may do so as a matter of course.
There is no principle, or pretence of a principle, of which we are aware, on which wo can admit the right of the circuit or district courts, in any manner, to interfere and stop the execution of the final process of the courts of this State. It is an assumption of power that cannot bo tolerated for a single instant. Even if the judgments might be regarded as nullities, that is not an admissible remedy; but we do not rely on that. So long as our judgments stand unreversed, the plaintiffs will bo entitled to receive the fruits of them, by an appropriation of the property attached, and held as a security.
If the attachment has been dissolved, the assignee has his remedy by a writ of error. After a plea of discharge in bankruptcy, a replication sotting forth an attachment, and a special judgment to be satisfied by a levy upon the property attached, it is very questionable whether he has any other remedy; especially if he has actually become a party to the suit.
Upon the service of the writ by the attachment of the property, the sheriff became bound to hold it for the benefit of the plaintiffs, in case they should obtain judgment. The petition in
If the certificate does not have that operation, then, the property being in the custody of the law, to await the termination of the suit, the sheriff is bound to apply it to the satisfaction of any judgment which may be rendered in favor of the plaintiff. If the judgment is erroneous, he may justify under it, against any one who is party, or privy, to it. 6 Peters's R. 16, Bank of the United States vs. Bank of Washington. Entertaining the. opinions we do, we must hold him to this responsibility; and while we hold him thus hable, we are bound to protect him in the possession of the property, and in the application of the avails of it, against any such summary process.
We have faith to believe that the learned judge of the district court will not assume such a control over our dockets, as farther to enjoin the plaintiffs, in actions pending here, from proceeding in such manner as the courts of the State may allow; or such a control over final process here as to attempt to stop its execution.
If our opinions respecting his authority are correct, a resort to coercive measures, to enforce an injunction, or to punish a disregard of it, might possibly not be entirely safe, for those at least who should attempt to execute the ofder; but this is a matter upon which we shall not enter.
Should our faith on this subject prove unfounded, our course is clear.
If this court is, in these cases, to be “ taught what the United States is,” it must b.e by the regular action of the supreme court of the Union, upon the judgments of the courts of the State, through the operation of a writ of error, which it is admitted well lies, and not through applications to the district or circuit court, in
In thus freely and distinctly expressing our opinions, we trust that we shall escape the imputation of any discourtesy towards the tribunals of the Union, for which, it need hardly be said, we entertain the highest respect. The occasion must furnish a justification, for the freedom it has required. Wo cannot forbear to express our convictions upon these matters, however deeply we may regret the difference of opinion which they indicate. We cannot bo expected to yield a great principle, regarding the faith, credit and effect duo to the judgments of the courts of the several States, to any feelings of judicial courtesy, however strong. We are not at liberty, and we may say without offence, that we have no desire, to lay the rights, and powers, and duties of the judiciary of this State at the feet of the tribunals of this district and circuit, however great may be our respect for the incumbents. We have quite as little discretion in this respect, as the circuit court has to refuse jurisdiction, in a case where it has concurrent jurisdiction with a State court, and a suit upon the subject matter is already pending in the latter. See 3 Sumner’s R. 165, Wadleigh vs. Veazie.
We disclaim any assumption of power to interfere with any rightful exercise of jurisdiction by the courts of the United States. But we as distinctly claim the right to take such measures as may be necessary to vindicate our own jurisdiction; and to execute our own process, in cases where we have jurisdiction, so long as our judgments stand unrofersed. We sincerely deprecate all collision with those tribunals ; and to prevent misapprehension, and guard, as far as may be in our power, against any danger of interference, we take occasion to say in conclusion, that if the plaintiffs in this, and other cases similarly situated, shall ask the interference of this court, it will be our duty to enjoin and prohibit the bankrupt, and his assignee, the creditors, and all claimants of the property attached, from attempting to procure any process, from any court which is not acting under the authority
We shall certainly regard our own judgments, rendered in cases in which we have a clear jurisdiction over the cause and the parties, as valid, and binding, until they are regularly reversed or annulled by some competent authority; and we shall execute those judgments, and protect the officers of the State in them execution, by all the means which the State has placed in our hands for that purpose.
Judgment for the plaintiff.
See 7 Howard’s S. C. R. 612, Peck & a. vs. Jenness, in error.