Taylor v. Carryl/Opinion of the Court

by John Archibald Campbell

United States Supreme Court

61 U.S. 583

Taylor  v.  Carryl

THIS case was brought up from the Supreme Court of Pennsylvania, by a writ of error issued under the twenty-fifth section of the judiciary act.

The facts of the case are particularly stated in the opinion of the court.

It was argued by Mr. Cadwallader and Mr. Hood for the plaintiffs in error, and by Mr. Evarts for the defendant.

The Reporter would be much pleased if he could place before his readers an extended report of the arguments of counsel in a case of such importance and general interest to the profession as the present. But he is admonished by the size to which the present volume has grown, that it has already reached the customary limits of such a work; and all that he can do is to present a brief sketch of the views of the respective counsel.

After examining the respective jurisdictions of the State and admiralty courts, and the nature of the process and proceedings, the counsel for the plaintiffs in error deduced the following propositions:

1. That over all maritime liens for seamen's wages, the District Court of the United States has exclusive cognizance whenever invoked by the seamen, and the State courts have no jurisdiction over such liens.

2. Although a State court has no jurisdiction whatever over a maritime lien, yet that court will afford to a seaman, if he choose to resort to it, a remedy by personal action, against the owner or master of the vessel, on the contract for wages, or perhaps by permitting him to intervene in a personal action, already pending; but the cognizance of the State court does not attach, unless specially invoked by the seaman.

3. That the existence of one or more remedies for a seaman to recover his wages in a State court, does not oust the cognizance of the admiralty court over his lien against the vessel; the seaman may pursue either of these remedies only, or both together.

4. That the pendency of proceedings in foreign attachment in a State court against the vessel, at the suit of a general creditor of the owner, and the seizure and sale of the vessel by the sheriff under such proceedings, do not oust the admiralty jurisdiction of the District Court of the United States over liens for the wages of the seamen, if invoked by them, nor prevent the admiralty court from enforcing such liens against the vessel in specie, by proceedings in rem.

5. That the sale of a vessel, under a writ or order of a common-law court, does not, under the general maritime law of the United States, divest the lien of a seaman for his wages, so as to prevent its enforcement against the vessel in specie, by the District Court of the United States, under proceedings in rem in the admiralty.

6. That a sale of a vessel under a writ or order of the District Court of the United States, proceeding in rem against a vessel in the admiralty, not appealed from nor reversed, passes to the purchaser a title to the vessel discharged of all liens and encumbrances whatever.

7. That where a vessel subject to maritime liens for seamen's wages is seized by the sheriff under a writ from a State court, and subsequently a proceeding in rem is commenced in the admiralty to enforce these liens, it would be an usurpation of admiralty jurisdiction by the State court, if, after being informed of the existence of said liens and proceedings, the State court ordered a sale of the vessel, as perishable and chargeable, on the ground, inter alia, of the accruing daily expenses of the said mariners' wages.

The proceeding under which the sale was ordered by the State court was based not upon the simple allegation of perishableness, but upon an allegation of perishableness by reason of chargeableness; in other words, the sale was prayed and ordered because the subject was a chargeable one. That which was alleged to render her thus chargeable was mainly an accumulating liability for the very seamen's wages in question. Without this liability, non constat, that any sale would have been ordered. In correcter language, it is legally to be assumed, that without it there would have been no sufficient chargeableness. For these wages, the lien had already attached to the vessel by the proceeding in admiralty. Thus, in order to render the vessel saleable as chargeable, the subject of the lien, which could constitutionally be enforced directly in the admiralty alone, was by a usurpation of jurisdiction imported into the proceeding in the State court, as the foundation of the very proceeding in question.

This appears from the order of sale of the State court made not under one alone, but under both of the foreign attachments, and from the petition referred to in the order of sale of Robert Bell, one of the plaintiffs in attachment, alleging the vessel in question to be 'of a chargeable and perishable nature, from the daily expense of wharfage, custody fees, mariners' wages, and liable to deterioration in her hull, apparel, and furniture, from exposure to ice, wind, sun, and weather.'

8. The legal custody of the vessel claimed for the admiralty in this case will not necessarily lead to conflict between the United States and State courts and their respective officers; but, on the contrary, will tend to prevent such conflicts, by maintaining each in the legitimate exercise of its jurisdiction and powers.

According to the English admiralty law, as recognised by Sir John Jarvis, Chief Justice of the Common Pleas, when a vessel subject to maritime liens for seamen's wages is seized by the sheriff, under a writ of foreign attachment from a State court, and subsequently a proceeding in rem is commenced in the admiralty, to enforce the seamen's liens, the latter proceeding relates back to the time when the liens were created, and in contemplation of law the legal custody of the vessel is deemed to have been in the admiralty from the period when the lien first attached, (Harmer v. Bell, 22 Eng. L. and Eq. R., 72,) so far at least as may be necessary to protect these liens. This legal custody of the admiralty is not incompatible with, and does not necessarily interfere with, the possession of the sheriff, nor the proceedings in the State court. In such a case, the sheriff may hold the vessel until bail be entered for the owner, or until the owner's interest has been sold to satisfy plaintiff's claim. But the proceedings in rem in the admiralty, being known to the purchaser at the sheriff's sale, he will take the vessel cum onere and, on paying off the maritime liens, will acquire a perfect title. On the other hand, if the admiralty sell the vessel whilst the proceedings in the State court are pending, and the sheriff still in possession, the title of the purchaser is good against all the world; but the surplus that may remain out of the proceeds of the admiralty sale, after payment of the liens against the vessel, would, on application to that court, be ordered to be paid to the sheriff, or into the State court.

In the case of the Royal Saxon, the purchasers at the sheriff's sale might have obviated the necessity of a sale by the admiralty by satisfying the maritime liens. They could have discharged the vessel from them by paying the holders, or, by leave of the admiralty court, they could have paid into its registry enough to satisfy them, being entitled to receive back any surplus. In this was they could have acquired a perfect title; but they pursued neither course, nor did they bring the matter in any form before the District Court of the United States. The maritime liens therefore continued attached to the vessel after the sheriff's sale, and until sold by the marshal, when Mr. Taylor became the purchaser.

If the doctrines laid down in this case by the Supreme Court of Pennsylvania, and on which the judgment of that court can alone be sustained, are to be adopted as the maritime and admiralty law of the United States, the privileged lien, heretofore supposed to belong to mariners, is in effect taken away. It will be in the power of a master or owner of a vessel, in every case, to prevent seamen from availing themselves of their lien.

This may be effected by procuring a constable to seize the vessel, and hold her in custody until she is about to sail, and then release her. It only requires a fi. fa. or attachment to issue on a judgment confessed before a justice of the peace for a small amount, to a real or pretended creditor; because, according to the doctrine of the Supreme Court of Pennsylvania, there is no peculiar potency in admiralty process in rem, against ships-'in substance, the proceeding by a justice of the peace against a stray cow is exactly equivalent.' (Record, 72; Taylor v. Carryl, 12 Harris, 261.) By the seizure of the ship, therefore, whether by sheriff or constable, the whole custody of her is in the State tribunal, (Record, 61, 77,) and any action or decree afterwards by the admiralty, in order to enforce the mariners' lien against the ship, would be in relation to a subject over which it had no control, and would consequently be void.' (Record, 61; Taylor v. Carryl, 12 Harris Rep., 269.)

Judge Wells, in his opinion delivered in the case of the Golden Gate, (Newberry's Adm. Rep., 296, 308; 5 Am. Law Reg., 155, 158,) points out other inconveniences from allowing to the process of justices of the peace, &c., the force of proceedings in rem. 'If,' says he, 'there is an average of fifty counties to each State, and twenty justices of the peace to each county, we should then have in the United States thirty-one thousand courts of admiralty and maritime jurisdiction, to say nothing of the courts of record,' &c. (5 Am. Law Reg., 158, 159.)

The Supreme Court of Pennsylvania have decided that, by the law of that State, a seaman may come into her courts and enforce his maritime lien for wages against the proceeds of a vessel sold by the sheriff. Although this be a doctrine unknown to the old common law, yet there would be no reason to complain of it, if that court had not gone farther, and decided that the seaman's only remedy in such a case was in the State court, and that he had no longer a right to enforce his lien in the admiralty. The State court undertook to define the limits of the jurisdiction of the admiralty courts; and if it has erred in this, it is the right and duty of the Supreme Court of the United States to correct the error, and whilst asserting the legitimate jurisdiction of the admiralty, to administer the maritime law as it has been recognised and established by the Constitution and laws of the United States. It is an important function of this court to defend the lawful jurisdiction of the admiralty, and the just efficacy of its process against judicial as well as legislative encroachment, among other reasons, because on these mainly depend the rights of seamen and others having maritime liens.

In this case, the Supreme Court of the United States is not called on to alter in any respect the municipal law of Pennsylvania, but simply to declare that the additional remedy allowed to seamen by that law does not oust the admiralty of its exclusive jurisdiction, if the seamen prefer a recourse to it, rather than to the remedies provided by the State law.

A reversal, therefore, of the judgment of the Supreme Court of Pennsylvania will involve no victory of Federal over State authority and power. It will concede to the admiralty and maritime jurisdiction of the Federal courts nothing but what the stanchest friend of State rights and the most jealous adversary of Federal encroachment may safely concede, because imperatively required for the safety and protection of a class of men whose rights are specially protected by the commercial codes of every civilized nation, and by none more carefully than by that of the United States; rights, in the maintenance of which the Commonwealth of Pennsylvania and her people are as much interested as the people of any of the other States, for the sake of those of her citizens (and they are very numerous) who have devoted themselves to the sea.

The third point of the counsel for the defendant was the following;

Third Point. The judgment below on the merits of the controversy determined by it is free from error.

I. The plaintiff below, by his purchase at the sheriff's sale, acquired a good title to the barque 'Royal Saxon.'

1. By the process of foreign attachment, and the possession of the sheriff under that process, the barque was in the custody of the law, to abide the result of the suit in which process issued. (Act Penn., June 13, 1856, secs. 48, 50; same, March 20, 1845, sec. 2; Morgan v. Whatmaugh, 5 What., 125; Serg. For. Att., 1, 23.)

2. Its sale, pending the suit, as perishable property, was regular, and by authority of a competent court having jurisdiction.

3. The judicial sale of property as perishable is, in the nature of the procedure, and from the same policy and necessity which occasion the sale, a conversion or transmutation of the thing itself, overriding every question of title and lien.

(1.) The right and power of such sale are not supported upon any notion or determination of title, but wholly upon the condition of the thing sold.

(2.) The motive and effect of the sale are for the benefit of the real title and of every valid lien, to save from perishing to the owner and the lienor the subject of his property or lien.

(3.) To say the court has this right to sell the thing in its custody, and exercises this right, and yet the buyer at such sale does not take the thing sold, but only the right, title, or interest, of some particular person or persons, is insensible, and subversive of the whole doctrine of sales by necessity. (Foster v. Cockburn, Sir Thomas Parker's Exch. R., 70; Jennings v. Carson, 4 Cranch, 26, 27; Grant v. McLaughlin, 4 Johns. R., 34; The Tilton, 5 Mas., 481, 482.)

(4.) The remedy of any party whose property has been, without right as against him, brought into this peril of litigation which has necessitated, and so justified, its valid sale, is by action against the suitor or the officer who has wrongfully subjected it to this conversion, or by claiming upon the proceeds of the sale, at his election.

II. The defendant below, by his purchase at the marshal's sale, acquired no title to the barque.

1. When the attachment and monition issued in the admiralty suit, the barque was in the custody of the sheriff of the county of Philadelphia, and so continued until after the order for its sale as perishable.

The marshal, therefore, never had custody, nor the District Court possession, of the barque, to support any jurisdiction to sell as perishable. (The Robert Fulton, 1 Paine C. C. R., 625, 626; Hagan v. Lucas, 10 Peters, 403; Jennings v. Carson, 4 Cranch, 26, 27.)

2. The effect of a sale in admiralty, pending a suit, of property as perishable, is not at all strengthened or qualified by the nature of the claim or lien prosecuted in the suit.

Whether the cause of action be of one degree of privilege or priority or another, the efficacy of the writ to the marshal is the same, the custody of the court is the same, and the grounds and effect of the special sale of the property in custody are the same.

So, too, whether the cause of action fail to be supported in the final decree is immaterial; the jurisdiction to sell, and the title conveyed, depending on the court's possession of the suit, and of the perishable property, and not at all on the event of the suit. (Harmer v. Bell, the case of the Bold Buccleugh in Privy Council, 22 Eng. L. and E.)

3. The title of the defendant below, then, derives no special validity from the peculiar privilege among admiralty liens accorded to wages.

The whole question is, between the two sales by the two courts, as to which passed the title; if the cause of action in the Supreme Court of Pennsylvania had been for seamen's wages, and the cause of action in the District Court had been on a charter party, or bill of lading, the question of the effect of the two sales would rest on the same considerations as under the actual facts in the case.

III. The sale by the sheriff gave to the purchaser a title discharged of all liens, which thereafter attached only to the fund produced by the sale. This effect follows every judicial sale of the res itself, (made by a court having jurisdiction,) and the claim of seamen's wages has no exemption from this consequence.

1. The nature of the lien of seamen's wages subjects it to this consequence.

It is neither a jus in re nor a jus ad rem; it gives no right of possession, and is not displaced by change of possession-it is a right of action to be enforced by judicial procedure, and with (among others) the special remedy of being satisfied, by means of such procedure, out of the ship. (The Nancy, 1 Paine C. C. R., 184; The Brig Nestor, 1 Sumn., 80; Ex parte Foster, 2 Story, 144; Harmer v. Bell, 22 Eng. L. and E. R., 72.)

Whatever prevents the judicial process (from whose vigor alone the seamen's right of action is converted into a right of possession or dominion over the ship) from reaching the ship, postpones or defeats, as the case may be, the enforcement of his right of action against the ship.

If the ship be locally without the jurisdiction of the process, this postpones or defeats the remedy.

If the ship, though locally within the jurisdiction of the process, be withdrawn from its operation by a previous subjection to the process of another jurisdiction, this postpones or defeats the remedy. (The Robert Fulton, ut supra; Hagan v. Lucas, same.)

A conversion of the ship into proceeds by a lawful exercise of dominion over it, by paramount authority, or through judicial sentence, defeats the remedy against the ship, which, as it were, no longer exists, in specie, to meet the remedy.

The familiar rule, that seamen's claims attach for their satisfaction to the proceeds of such sales, proves that the ship is discharged from their claims; otherwise the seamen would take the purchase-money, produced by other interests than theirs, to discharge claims still resting on the ship, and not included in the purchase-money. (Presb. Corp. v. Wallace, 3 Rawle, 150; Sheppard v. Taylor, 5 Pet., 675; Brown v. Full, 2 Sumn., 441; Trump v. Ship Thomas, Bee's R., 86; The St. Jago de Cuba, 9 Wheat., 414, 419.)

Mr. Justice CAMPBELL delivered the opinion of the court.

This cause comes before this court by writ of error to the Supreme Court of Pennsylvania, under the twenty-fifth section of the judiciary act of the 24th September, 1789.

The defendants (Ward 3 Co.) instituted an action of replevin in the Supreme Court of Pennsylvania, for the barque Royal Saxon.

Upon the trial of the cause at nisi prius, it appeared that the barque arrived at the port of Philadelphia in October, 1847, on a trading voyage, and was the property of Robert McIntyre, of Londonderry, in Ireland. In November, 1847, she was seized by the sheriff of Philadelphia county, under a writ of foreign attachment that was issued against her owner and another, at the suit of McGee & Co., of New Orleans, from the Supreme Court; and at the same time her captain was summoned as a garnishee. On the 15th January, 1848, those creditors commenced proceedings in the Supreme Court to obtain an order of sale, because the barque was of a chargeable and perishable nature, suffering deterioration from exposure to the weather, and incurring expenses of wharfage, custody fees, &c., &c. This application was opposed by the captain of the barque, but was allowed by the court on the 29th of January, 1848. The vessel was duly sold by the sheriff under this order, the 9th February, 1848, to the plaintiffs in the replevin, Ward & Co.

On the 21st January, 1848, while the writs of attachment were operative, and a motion for the sale of the barque was pending in the Supreme Court, the seamen on board the barque filed their libel in the District Court of the United States for the eastern district of Pennsylvania, sitting in admiralty, for the balances of wages due to them, respectively, up to that date, and prayed for the process of attachment against the barque, according to the practice of the court. This was issued, and, on the same day, the marshal returned on the writ, 'Attached the barque Royal Saxon, and found a sheriff's officer on board, claiming to have her in custody.' The captain appeared to this libel, and filed an answer admitting the demands of the seamen.

On the 25th January he exhibited a petition to the District Court, in which he represented the pendency of the suits in attachment and in admiralty; that the barque was liable to him for advances; that she was subject to heavy charges, and could not be employed to carry freight; and therefore he, with the approbation of the British consul, which accompanied the petition, solicited an order of sale for the benefit of all persons interested. This order was granted by the District Court, after due inquiry, on the 9th February, 1848, and was executed the 15th of February, 1848, by the marshal of the court, at which time the defendant in the replevin was the purchaser, who took the possession of the vessel, and held her until retaken in this replevin suit of Ward & Co. Upon the trial of the replevin cause at nisi prius, the defendant solicited instructions to the jury, which were refused by the court, and the court instructed the jury unfavorably to his title. From the instructions asked, and the charge delivered, a selection is made, to exhibit the questions decided. The court was requested to charge—

3. 'That when the lien of a mariner for wages is sought to be enforced in the admiralty by libel, and the marshal has attached the vessel under such proceedings, the vessel so attached is in the exclusive custody of the admiralty until the claims of the libellants have been adjudicated, or the vessel relieved by order of the court, on stipulation or otherwise; and such exclusive custody exists, notwithstanding a previous foreign attachment from a court of law served on the vessel by the sheriff.'

5. 'That a foreign attachment is not properly a proceeding in rem; but an attachment from the admiralty on a libel for mariners' wages is in rem; and the legal possession acquired by the sheriff, on service of the writ of foreign attachment, is ended, superseded, or suspended, by the service of such attachment from the admiralty.'

8. 'That when, on the 21st of January, 1848, the Royal Saxon was attached under the process issued on the libel for mariners' wages, she came by virtue of that attachment into the exclusive custody of the court of admiralty; and such exclusive legal custody continued from the 21st January, 1848, until the sale by the marshal, by order of that court, on the 15th February, 1848.' 10. 'That the legal possession of the vessel being exclusively in the admiralty court from the 21st January, 1848, till the sale made, by order of that court, on the 15th February, 1848, the sale by the sheriff on the 9th February, 1848, gave no title to the purchaser as against the sale by the marshal.'

The court refused so to instruct the jury, but charged them: 'That the court of admiralty could not proceed against the vessel while she remained in the custody of an independent and competent jurisdiction; that the presence of the marshal on the ship did not prove his custody, for the sheriff's officer was there before him; that the marshal did not dispossess the sheriff, but prudently retired himself, and informed the court in his return that the vessel was in the custody of the sheriff; that if the sheriff first took possession of the vessel, and maintained it until she was sold to the plaintiffs, they had the better title; and that the fact of the continuing possession of the sheriff was for the jury.' A verdict was returned in favor of the plaintiffs, upon which a judgment was rendered in the Supreme Court in their favor, confirming the opinion of the judge as expressed to the jury at nisi prius.

The judgment of the District Court allowing the order of sale proceeded upon the grounds: 'That the suits in attachment in the Supreme Court applied to alleged interests in the vessel, not to the vessel itself. The attachment creditor, if he succeeds in his suit, obtains recourse against the thing attached just so far as his defendant had interest in it, and no farther. The rights of third parties remain in both cases unaffected. The bottomry creditor, residing, it may be, in a foreign country, is no party to either proceeding, and loses none of his rights. His contract was with the thing, not the owner, and it is therefore not embarrassed, and cannot be, by any question or contest of ownership. So, too, seamen, whoever owns the vessel, or how often soever the ownership may be changed, wherever she may go, whatever may befall her-so long as a plank remains of her hull, the seamen are her first creditors, and she is privileged to them for their wages,' &c., &c.

Again: 'What interest in the ship,' asks the District Court, 'does the sheriff propose to sell? Not a title to it, but the defendant's property in it, whatever it may be. Not so in the admiralty. Here the subject-matter of the controversy is the res itself. It passes into the custody of the court. All the world are parties, and the decree concludes all outstanding interests, because all are represented. Here they are marshalled in their order of title and privilege. There is no difficulty in allowing an arrest by the admiralty, notwithstanding the vessel or some interest in it has passed into the custody of the sheriff. He retains all his rights, notwithstanding the marshal's intervention. The proceedings against the vessel, the thing, the subject of the property or title, may still go on in the admiralty. The sheriff's vendee of the ship may intervene there, as the defendant might have done in this court; he may make defence to the proceeding there as the successor to the defendant's rights, and may be substituted ultimately before the judge of the admiralty as a claimant of the surplus fund.'

This cause has been regarded in this court as one of importance. It has been argued three different times at the bar, and has received the careful consideration of the court. The deliberations of the court have resulted in the conviction that the question presented in the cause is not a new question, and is not determinable upon any novel principle, but that the question has come before this and other courts in other forms, and has received its solution by the application of a comprehensive principle which has recommended itself to the courts as just and equal, and as opposing no hindrance to an efficient administration of the judicial power.

In Payne v. Drew, 4 East., 523, Lord Ellenborough said: 'It appears to me, therefore, not to be contradictory to any cases nor any principles of law, and to be mainly conducive to public convenience and to the prevention of fraud and vexatious delay in these matters, to hold that where there are several authorities equally competent to bind the goods of a party, when executed by the proper officer, that they shall be considered as effectually and for all purposes bound by the authority which first actually attaches upon them in point of execution, and under which an execution shall have been first executed.'

This rule is the fruit of experience and wisdom, and regulates the relations and maintains harmony among the various superior courts of law and of chancery in Great Britain.

Those courts take efficient measures to maintain their control over property within their custody, and support their officers in defending it with firmness and constancy. The court of chancery does not allow the possession of its receiver, sequestrator, committee, or custodee, to be distrubed by a party, whether claiming by title paramount or under the right which they were appointed to protect, (Evelyn v. Lewis, 3 Hare, 472; 5 Madd., 406,) as their possession is the possession of the court. (Noe v. Gibson, 7 Paige, 713.) Nor will the court allow an interfering claimant to question the validity of the orders under which possession was obtained, on the ground that they were improvidently made. (Russell v. East Anglien R. Co., 3 McN. and Gord., 104.) The courts of law uphold the right of their officers to maintain actions to recover property withdrawn from them, and for disturbance to them in the exercise of the duties of their office.

But it is in this court that the principle stated in Payne v. Drew has received its clearest illustration, and been employed most frequently, and with most benignant results. It forms a recognised portion of the duty of this court to give preference to such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the States and of the Union, so that they may co-operate as harmonious members of a judicial system coextensive with the United States, and submitting to the paramount authority of the same Constitution, laws, and Federal obligations. The decisions of this court that disclose such an aim, and that embody the principles and modes of administration to accomplish it, have gone from the court with authority, and have returned to it, bringing the vigor and strength that is always imparted to magistrates, of whatever class, by the approbation and confidence of those submitted to their government. The decision in the case of Hagan v. Lucas, 10 Pet., 400, is of this class. It was a case in which a sheriff had seized property under valid process from a State court, and had delivered it on bail to abide a trial of the right to the property, and its liability to the execution. The same property was then seized by the marshal, under process against the same defendant. This court, in their opinion, say: 'Where a sheriff has made a levy, and afterwards receives executions against the same defendant, he may appropriate any surplus that shall remain, after satisfying the first levy by the order of the court. But the same rule does not govern when the executions, as in the present case, issue from different jurisdictions. The marshal may apply moneys collected under different executions, the same as the sheriff. But this cannot be done as between the marshal and the sheriff; a most injurious conflict of jurisdiction would be likely often to arise between the Federal and the State courts, if the final process of the one could be levied on property which had been taken on process of the other. The marshal or the sheriff, as the case may be, by a levy acquires a special property in the goods, and may maintain an action for them. But if the same goods may be taken in execution by the marshal and the sheriff, does this special property vest in the one or the other, or both of them? NO SUCH CASE CAN EXIST; property once levied on remains in the custody of the law, and is not liable to be taken by another execution in the hands of a different officer, and especially by an officer acting under another all officer acting under another jurisdiction.' The principle contained in this extract from the opinion of the court was applied by this court to determine the conflicting pretensions of creditors by judgment in a court of the United States, and an administrator who has declared the insolvency of his estate, and was administering it under the orders of a probate court, (8 How. S.C.. R., 107,) in a controversy between receivers and trustees holding under a court of chancery, and judgment creditors seeking their remedy by means of executory process, (14 How. S.C.. R., 52, 368,) and to settle the priorities of execution creditors of distinct courts. (Pulliam v. Osborn, 17 How., 471.)

In a case not dissimilar in principle from the present, the principle was applied in favor of the Executive department, having property in custody whose possession was disturbed by a State officer under judicial process. An attachment from a State court was levied upon merchandise imported, but not entered at the custom-house, and the validity of the levy was the question involved. (Harmer v. Dennie, 3 Pet., 292.) The court say: 'From their arrival in port, the goods are, in legal contemplation, in the custody of the United States. An attachment of such goods presupposes a right to take the possession and custody, and to make such possession and custody exclusive. If the officer attaches upon mesne process, he has the right to hold the possession to answer the exigency of the writ. The act of Congress recognises no such authority, and admits of no such exercise of right.' To the argument, that the United States might hold for the purpose of collecting duties, and the sheriff might attach the residuary right, subject to the prior claim, the court say: 'The United States have nowhere recognised or provided for a concurrent possession or custody by any such officer.'

A recognition of the same principle is to be found in Peck v. Jenness, 7 How. S.C.. R., 612. An act of Congress had conferred on the courts of the United States exclusive jurisdiction 'of all suits and proceedings of bankruptcy,' and had provided that the act should not be held to impair or destroy existing rights, liens, mortgages, &c., &c., on the estate of the bankrupt. A District Court of the United States decided that its jurisdiction extended to administer the entire estate of the bankrupt court, and that the liens on the property, whether judicial or consensual, must be asserted exclusively in that court, and that all other jurisdictions had been superseded. This court denied the pretension of the District Court, and affirmed, 'That when a court has jurisdiction, it has a right to decide every question which occurs in the cause; and when the jurisdiction of the court and the right of the plaintiff to prosecute his suit has once attached, that right cannot be arrested or taken away by proceedings in another suit. These rules have their foundation not merely in comity, but in necessity; for if one may enjoin, the other may retort, by injunction, and thus the parties be without remedy, being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin, or any other process, for this would produce a conflict extremely embarrassing to the administration of justice.'

The legislation of Congress, in organizing the judicial powers of the United States, exhibits much circumspection in avoiding occasions for placing the tribunals of the States and of the Union in any collision. A limited number of cases exist, in which a party sued in a State court may obtain the transfer of the cause to a court of the United States, by an application to the State court in which it was commenced; and this court, in a few well-defined cases, by the twenty-fifth section of the judiciary act of 1789, may revise the judgment of the tribunal of last resort of a State. In all other respects the tribunals of the State and the Union are independent of one another. The courts of the United States cannot issue 'an injunction to stay proceedings in any court of a State,' and the judiciary act provides that 'writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of 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.' 'Thus, as the law now stands,' say this court, 'an individual who may be indicted in a Circuit Court for treason against the United States is beyond the power of the Federal courts and judges, if he be in custody under the authority of a State.' (Ex parte Dorr, 3 How. S.C.. R., 103.) And signal instances are reported in verification of the above statement. (Ex parte Robinson, 6 McLean R., 355.)

This inquiry will not be considered as irrelevant to the question under the consideration of the court. The process of foreign attachment has been for a long time in use in Pennsylvania, and its operation is well defined, by statute as well as judicial precedents. The duties of the sheriff, under that process, are identical with those of a marshal, holding an attachment from the District Court sitting in admiralty. 'The goods and chattels of the defendant, in the attachment, (such is the language of the statute,) in the hands of the garnishee, shall, after such service, be bound by such writ, and be in the officer's power; and if susceptible of seizure or manual occupation, the officers shall proceed to secure the same, to answer and abide the judgment of the court in that case, unless the person having the same shall give security. (Purdin's Dig., 50, sec. 50; 5 Whar., 125; Carryl v. Taylor, 12.)

It follows, by an inevitable induction from the cases of Harmar v. Dennie, 3 Pet., 299; Hagan v. Lucas, 10 Pet., 400; and Peck v. Jenness, 7 How., 612, that the custody acquired through the 'seizure or manual occupation' of the Royal Saxon, under the attachment by the sheriff of Philadelphia county, could not legally be obstructed by the marshal, nor could he properly assert a concurrent right with him in the property, unless the court of admiralty holds some peculiar relation to the State courts or to the property attached, which authorized the action or right of its marshal. The relation of the District Courts, as courts of admiralty, is defined with exactness and precision by Justice Story in his Commentaries on the Constitution. He says: 'Mr. Chancellor Kent and Mr. Rawle seem to think that the admiralty jurisdiction given by the Constitution is, in all cases, necessarily exclusive. But it is believed that this opinion is founded on mistake. It is exclusive in all matters of prize, for the reason that, at the common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But in cases where the jurisdiction of common law and admiralty are concurrent, (as in cases of possessory suits, mariners' wages, and marine torts,) there is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive; and there is no better ground, upon general reasoning, to contend for it. The reasonable interpretation,' continues the commentator, 'would seem to be, that it conferred on the national judiciary the admiralty and maritime jurisdiction exactly according to the nature and extent and modifications in which it existed in the jurisprudence of the common law. When the jurisdiction was exclusive, it remained so; when it was concurrent, it remained so. Hence the States could have no right to create courts of admiralty as such, or to confer on their own courts the cognizance of such cases as were exclusively cognizable in admiralty courts. But the States might well retain and exercise the jurisdiction in cases of which the cognizance was previously concurrent in the courts of common law. This latter class of cases can be no more deemed cases of admiralty and maritime jurisdiction than cases of common-law jurisdiction.' (3 Story's Com., sec. 1666, note.)

In conformity with this opinion, the habit of courts of common law has been to deal with ships as personal property, subject in the main, like other personal property, to municipal authority, and liable to their remedial process of attachment and execution, and the titles to them, or contracts and torts relating to them, are cognizable in those courts.

It has not been made a question here that the Royal Saxon could not be attached, or that the title could not be decided in replevin. But the District Court seems to have considered that a ship was a juridical person, having a status in the courts of admiralty, and that the admiralty was entitled to precedence whenever any question arose which authorized a judicial tribunal to call this legal entity before it. The District Court, in describing the source of its authority, says of the contract of bottomry, that 'it is made with the thing, and not the owner,' and that the contract of the mariners is similar; that the RES 'represents' in that court all persons having a right and privilege, while the rights of the owner are treated there as something incorporeal, separable from the res, and which might be seized by the sheriff, even though the res might be in the ad miralty. This representation is not true in matter of fact, nor in point of law. Contracts with mariners for service, and other contracts of that kind, are made on behalf of owners who incur a personal responsibility; and if lenders on bottomry depend upon the vessel for payment, it is because the liability of the owner is waived in the contract itself. 'In all causes of action,' says the judge of the admiralty of Great Britain, 'which may arise during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship, where the owners were not themselves personally liable, or where the liability had not been given up.' (The Druid, 1 Wm. Rob, 399.) And the opinion of this court in The Schooner Freeman v. Buckingham, 18 How., 183, was to the same effect.

In courts of common law, the forms of action limit a suit to the persons whose legal right has been affected, and those who have impaired or injured it. In chancery, the number of the parties is enlarged, and all are included who are interested in the object of the suit; and as the parties are generally known, they are made parties by name and by special notice.

In admiralty, all parties who have an interest in the subject of the suit-the res-may appear, and each may propound independently his interest. The seizure of the RES, and the publication of the monition or invitation to appear, is regarded as equivalent to the particular service of process in the courts of law and equity. But the RES is in no other sense than this the representative of the whole world. But it follows, that to give jurisdiction in rem, there must have been a valid seizure and an actual control of the ship by the marshal of the court; and the authorities are to this effect. (Jennings v. Curson, 4 Cr., 2; 2 Ware's Adm. R., 362.) In the present instance, the service was typical. There was no exclusive custody or control of the barque by the marshal, from the 21st of January, 1848, to the day of the sale; and when the order of sale was made in the District Court, she was in the actual and legal possession of the sheriff.

The case of the Oliver Jordan, 2 Curtis's R., 414, was one of a vessel attached by a sheriff in Maine, under process from the Supreme Court. She was subsequently libelled in the District Court of the United States, upon the claim of a material man. The District Court sustained the jurisdiction of the court. But on appeal the exception to the jurisdiction was allowed, and the decree of the District Court reversed. Mr. Justice Curtis observed: 'This vessel being in the custody of the law of the State, the marshal could not lawfully execute the warrant of arrest.' In the case of the ship Robert Fulton, 1 Paine C. C. R., 620, the late Mr. Justice Thompson held that the warrant from the admiralty could not be lawfully executed under similar circumstances, and that the District Court could not proceed in rem. The same subject has been considered by State courts, and their authority is to the same effect. (Keating v. Spink, 3 Ohio R., N. S., 105; Carryl v. Taylor, 12 Harris, 264.)

Our conclusion is, that the District Court of Pennsylvania had no jurisdiction over the Royal Saxon when its order of sale was made, and that the sale by the marshal was inoperative.

The view we have taken of this cause renders it unnecessary for us to consider any question relative to the respective liens of the attaching creditors, and of the seamen for wages, or as to the effect of the sale of the property as chargeable or as perishable upon them.

Our opinion is, that there is no error in so much of the record of the Supreme Court of Pennsylvania as is brought before this court by the writ of error, and the judgment of the court is consequently affirmed.

Notes