water company from refusing to furnish water to the city on certain conditions, did not prevent a subsequent suit in the Federal court by a person in privity with the former defendant to enjoin the city from preventing his removing the plant.16 Where the suit in the State court was to compel the removal of parts of a building it was held that the Federal court should not entertain a subsequent suit for substantially the same object.17 Where a bill was filed by a Federal court to remove a trustee, have another appointed in his place, or, in the alternative, for the appointment. of a receiver and a cancellation of certain fraudulent bonds secured by the trust deed; it was held that the State court was not bound to recognize any subsequent order in proceedings afterwards brought in the State court for the appointment of a new trustee, in accordance with the deed of trust.1 A State court cannot levy an attachment or garnishee process, against a debt, pending an action in a Federal court to collect the same.19 It has been held that the pendency of a suit in a State court in another district, in which a trustee has been enjoined from beginning a foreclosure suit, does not affect the jurisdiction of a Federal court to foreclose the mortgage on the property in both States, at the suit of a majority of the bondholders.20 It has been held that the pendency of a suit in the Federal court to foreclose a lien, in which no receiver is appointed, does not affect the jurisdiction of a State court to entertain a suit for the foreclosure of a mortgage on the same property, when the mortgagee was not a party to the suit in the Federal court; and that the decree in the Federal court does not bind the mortgagee, nor affect the rights of a purchaser at the foreclosure sale.21

18

§ 58. Effect of the custody, by another court, of the person of an accused in criminal proceedings, or otherwise. This doctrine applies, to a limited extent, to the custody of a per

16 Laighton v. City of Carthage, Mo., 175 Fed. 145.

17 Amusement Syndicate Co. v. El Paso Land Imp. Co., 251 Fed. 345. 18 State Nat. Bank v. Syndicate Co., 178 Fed. 359.

19 Walace v. McConnell, 13 Pet. 136, 10 L. ed. 95; Rosenstein v. Tarr, 51 Fed. 368; Mack v. Winslow, 59 Fed. 316.

20 Woodbury v. Alleghany & K. R. Co., 72 Fed. 371.

21 National Foundry & Pipe Works v. Oconto City Water Supply Co., C. C. A., 113 Fed. 793. See National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 216, 46 L. ed. 157.

son in a criminal case. Thus, the Federal courts ordinarily refuse to discharge by habeas corpus before his trial, and even in some cases, before he has exhausted his remedy by writ or appeal, after conviction, a prisoner held under indictment by a State court.2 So, where the marshal had seized under a charge of a crime against the United States a prisoner held by the sheriff under a charge of a violation of the State criminal law, the Federal court upon a plea in abatement sustained the indictment found by its own grand jury, but ordered that the accused be returned to the State authorities.3 Conversely, a State court has no power to release by habeas corpus a prisoner held under the process of a court of the United States. The acts of Congress, however, authorize in certain cases the removal of criminal proceedings from a State to a Federal court.5 And where an officer of the United States is arrested by State process, because of an act done in pursuance of his official duty, the Federal courts will usually interfere, by habeas corpus, to protect him. It has been held that an application for the removal of a criminal from one Federal district to another will be denied if the accused was in the custody of the State court before the Federal court obtained jurisdiction. The same rule applies when he is, at that time, in the custody of a court of the United States, in the district from which it is sought to remove him: unless such court relinquishes its jurisdiction, which it may do

§ 58. 1 Harkrader V. Wadley, 172 U. S. 148, 164, 43 L. ed. 399, 404, per Shiras, J., citing Ex parte Crouch, 112 U. S. 178, 28 L. ed. 690.

2 Ex parte Royall, 117 U. S. 241, 254, 29 L. ed. 868, 872; $$ 461, 466, infra.

3 U. S. v. Wells, 11 Am. Law Reg. (N.S.) 424, s. c., Fed. Cases No. 16,665.

4 Ableman v. Booth, 21 How. 506, 16 L. ed. 169. See Tarble's Case, 13 Wall. 397, 20 L. ed. 597; Robb v. Connolly, 111 U. S. 624, 28 L. ed. 542. In the Matter of Spangler, 11 Mich. 298.

5 U. S. R. S., $$ 641, 643; 18 St. at L., p. 401; Tennessee v. Davis,

100 U. S. 257, 25 L. ed. 648. See $$ 537, 551, 552, infra.

6 In re Neagle, 135, U. S. 1, 34 L. ed. 55; Ohio v. Thomas, 173 U. S 276, 285, 43 L. ed. 699, 702; Boske v. Comingore, 177 U. S. 459, 44 L. ed. 846; Anderson v. Elliott, C. C A., 101 Fed. 609; In re Turner, 119 Fed. 231; West Virginia v. Laing, C. C. A., 133 Fed. 887. See $461. infra.

7 Re James, 18 Fed. 853; U. S. v. Corrie, 23 L. Rep. 145; U. S. v. Burr, 2 Burr's Trial, 455. See Re Johnson, 167 U. S. 120, 42 L. ed. 103.

8 Re Johnson, 167 U. S. 120, 124, 42 L. ed. 103, 104.

with the consent of the government; and if it does so, the accused will be removed. Where the first court declines to relinquish its jurisdiction, it has been held that the practice is for the marshal to hold, but not to execute, the second warrant, until it is determined whether the accused shall be held under that first issued.10 It has been said: "that the sovereignty, where jurisdiction first attaches, may yield it; and that the implied custody of a defendant by his sureties cannot prevent. They may, however, claim exemption from further liability to produce him." Where a proceeding between citizens of different States had been brought in a State court, to determine the sanity of an alleged lunatic, the Federal court refused, pending the determination thereof, to review the right to his custody upon a writ of habeas corpus.12 "Where one commences a criminal proceeding, who is already a party to a suit then pending in equity, if the criminal proceedings are brought to enforce the same rights that are in issue before that court, the latter may enjoin such criminal proceedings." 13 When an indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter, having first obtained jurisdiction over the subject matter, has the right to hold and maintain such jurisdiction to the exclusion of all other courts, until its duty is fully performed; but it cannot interfere where the proceedings were pending in the State court before the jurisdiction of the Federal court was sought ex parte.14

§ 59. Effect of the custody of property by the State court, where the Federal courts exercise jurisdiction under the Constitution and laws of the United States. This doctrine does not apply where the Federal courts exercise superior jurisdiction, for the purpose of enforcing the supremacy of the Constitution and laws of the United States.1

The institution of a proceeding in bankruptcy gives juris

9 Beavers v. Haubert, 198 U. S. 77, 49 L. ed. 950; Re Beavers, 125 Fed. 988; Peckham v. Henkel, 166 Fed. 627.

10 Re Beavers, 125 Fed. 988. 11 Beavers v. Haubert, 198 U. S. 77, 85, 49 L. ed. 950, 953.

12 Hoadley v. Chase, 126 Fed. 818.

13 Ex parte Young, 209 U. S. 123, 162, 52 L. ed. 714, 730.

14 Ibid.

5

$59. 1 Tefft V. Sternberg, L.R.A. 221, 40 Fed. 2, 6, per Speer, J.; citing Covell v. Hyman, 111 U'. S. 176, 28 L. ed. 390,

diction to the District Court of the United States in certain cases to seize property taken into the custody of a State court, within four months before the filing of the petition. The possession of a sheriff or other officer of a State court obtained more than four months before the filing of the petition in bankruptcy is usually respected by the State court. The possession of the property of a corporation by receivers appointed by a State court does not affect the jurisdiction of a District Court of the United States to adjudicate that corporation a bankrupt; nor it has been held deprive the directors of any power which they may possess to make a written admission of its inability to pay its debts and its willingness to be adjudicated a bankrupt, so as to support involuntary proceedings in bankruptcy.4 After an adjudication of bankruptcy, the appointment of a receiver 5 or trustee by the bankruptcy court supersedes the authority of a receiver previously appointed by a State court because of insolvency, although the latter is in possession of the property; but comity requires that, except in an extraor dinary case, the officer of the bankruptcy court should apply to the State court for an order for the delivery or possession to him before he institutes another proceeding for the same.7 has been held that, before adjudication at least, the Federal. court should not appoint a receiver when a receiver appointed by a State court is already in possession; and in the county of

230 St. at L., p. 564; In re Macon S. D. & L. Co., 112 Fed. 323, 333; Carling v. Seymour Lumber Co., C. C. A., 113 Fed. 483; In re Tune, 115 Fed. 906; Re English, C. C. A., 127 Fed. 940; In re Moench & Sons' Co., C. C. A., 130 Fed. 685. See $$ 609, 635, infra.

3 In re Pilcher & Son, 228 Fed. 139.

4 In re Moench & Sons' Co., C. C. A., 130 Fed. 685; Re Electric Supply Co., 175 Fed. 612. Otherwise when enjoined. Re Hudson River El. R. Co., 173 Fed. 934. See infra $$ 625, 626.

5 Re J. W. Zeigler Co., 189 Fed.

8

259. In that case, the court refused to punish the State receiver for refusal to deliver possession of the property to the receiver in bankruptey when he acted under the advice of counsel. See in re Watts and Sachs, 190 U. S. 1, 27, 47 L. ed. 933, 941.

6 Re Hecox, C. C. A., 164 Fed. 823. 7 Re Watts and Sachs, 190 U. S. 1, 27; Re Hecox, C. C. A., 164 Fed. 823.

8 Re Spalding, C. C. A., Second Ct., May 1905, reported in Re Oakland Lumber Co., C. C. A., 174 Fed. 634, 637; Re Desrochers, 183 Fed. 991; Re Standard Cordage Co., 181

New York it is the practice of the Supreme Court, in such a case, to instruct its receiver to apply to the Federal court to set aside the appointment there made and to appeal if such application be denied. The filing of a suit in equity in the District Court of the United States by a trustee in bankruptcy, to set aside as fraudulent a conveyance of mortgaged premises by the bankrupt and an interlocutory judgment in his favor therein, was held to be no ground for vacating an order appointing a receiver of the mortgaged premises in a suit of foreclosure subsequently brought in the State court.10 A District Court of the United States will enjoin a suit in a State court, begun subsequent to an adjudication of bankruptcy, to take possession of property held by the bankrupt or his trustee.11

The rule as to proceedings in admiralty is not so clear. It has been held: that the appointment of a State receiver, who had not filed the statutory bend, nor taken possession, is no bar to the seizure of a boat by the marshal under process in admiralty.12 That a vessel can be seized by the marshal under a libel in admiralty, to enforce a lien that arose for repairs before the appointment of the receiver, when the seizure is made after such appointment; but before the receiver has taken actual possession or notified the master, or any person on board the vessel, that he has been appointed: 13 but that a tug, attached under process of a State court and delivered by the sheriff to a receiver appointed by said court, cannot be taken from him by a marshal of the United States in proceedings in admiralty upon claims that arose against the tug before his appointment.14 That, upon a similar claim, a marshal cannot take property from the hands of an assignee under the insolvency law of Minnesota.15 That a vessel operated by a State receiver can be seized in another State by the District Court of the United States, upon a libel in admiralty to enforce a claim that arose

Fed. 156. So held when an assignee in insolvency was in possession, Re Rosenthal, 144 Fed. 548, 549.

9 People v. P. V. Rovnianek & Co, N. Y. L. J. Jan'y 12, 1911.

10 Mutual Life Ins. Co. v. Fleischman, 149 App. Div. (N. Y.) 23.

11 White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183.

12 Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981.

13 The Lotta, 65 Fed. 319.

14 The E. L. Cain, 45 Fed. 367.
15 The J. G. Chapman, 62 Fed.

939.