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WATSON FREEMAN, MARSHAL OF THE UNITED STATES, PLAINTIFF IN ERROR, v. JABEZ C. HOWE

December 1, 1860

WATSON FREEMAN, MARSHAL OF THE UNITED STATES, PLAINTIFF IN ERROR,
v.
JABEZ C. HOWE, JOHN H. WILKINS, AND WILLIAM MINOT, JUN.



THIS case was brought up from the Supreme Judicial Court of the Commonwealth of Massachusetts within and for the county of Middlesex, by a writ of error issued under the 25th section of the Judiciary act. The case is stated in the opinion of the court. It was argued by Mr. Parker for the plaintiff in error, and Mr. Hutchins for the defendants. The counsel on both sides appeared to consider that the whole proceedings of the State court were open to revision by this court, and therefore discussed many points relating to the validity of the mortgage, attachment, &c. Their notice of the clashing of jurisdiction by the two sets of courts was as follows. The counsel for the plaintiff in error said: 1. Persons and property 'in the custody of the law' of a State are withdrawn from the process of the courts of the United States, (unless Congress have otherwise specially enacted;) and in like manner, persons and property 'in the custody of the law' of the United States are not subject to any State process. The Oliver Jordan, 2 Curtis's C. C. Rep., 414. Taylor v. the Royal Saxon, 1 Wallace Jr., 311. Cropper v. Coburn, 2 Curtis's C. C. R., 465, 469. Ex parte Robinson, 6 McLean, 355. 2. An attempt was early made to draw a distinction in favor of the United States in matters of admiralty jurisdiction. Certain logs of Mahogany, 2 Sumner, 589. This was on the ground of the peculiar character of the admiralty jurisdiction, and that it was vested under the Constitution solely in the United States, to the exclusion of State courts. But even in admiralty matters, the earlier doctrine has been definitely overruled by the Supreme Court of the United States, in order to maintain the general doctrine now laid down. Taylor v. Carryl, 20 Howard, 597. Sustaining the judgment of the courts below in the same matter, 12 Harris's Pennsylvania R., 264. Chief Justice TANEY and several of the judges dissented in the above case (20 Howard) from the judgment and opinion of the court, but did so solely on the ground of a necessity growing out of the peculiar character of the admiralty jurisdiction under the Constitution of the United States. Chief Justice TANEY takes care to enforce the general doctrine more strongly, if possible, than it was stated in the opinion of the court. (Pp. 604-5.) With respect to this case, the counsel for the defendant in error said:The case of Taylor et al v. Carryl, 20 How., 538, is not in point. The opinion of the majority of the court in that case proceeded upon the ground that the process from the State court and that from the United States court were both proceedings in rem, and of course that which was prior in time had precedence, and the property could not be taken from the possession of the State court, because possession of the property was essential to its jurisdiction.

The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.

This is a writ of error to the Supreme Court of Massachusetts.

The case was this: Selden F. White, of the State of New Hampshire, in 1856 instituted a suit in the Circuit Court of the United States for the district of Massachusetts, against the Vermont and Massachusetts Railroad Company, a corporation under the laws of Massachusetts, to recover certain demands claimed against the defendants. The suit was commenced in the usual way, by process of attachment and summons. Freeman, the marshal, and plaintiff in error, to whom the processes were delivered attached a number of railroad cars, which, according to the practice of the court, were seized and held as a security for the satisfaction of the demand in suit in case a judgment was recovered. After the seizure, and while the cars were in the custody of the marshal, they were taken out of his possession by the sheriff of the county of Middlesex, under a writ of replevin in favor of Howe and others, the defendants in error, issued from a State court. The plaintiffs in the replevin suit were mortgagees of the Vermont and Massachusetts Railroad Company, including the cars in question, in trust for the bondholders, to secure the payment of a large sum of money which remained due and unpaid.

The defendant, Freeman, in the replevin suit, set up, by way of defence, the authority by which he held the property under the Circuit Court of the United States, which was overruled by the court below, and judgment rendered for the plaintiffs. The case is now before us on a writ of error.

I. The suit in this case has been instituted and carried on to judgment in the court below under a misapprehension of the settled course of decision in this court, in respect to the case of conflicting processes and authorities between the Federal and State courts; and also in respect to the appropriate remedy of the plaintiffs for the grievances complained of.

As it respects the effect to be given to the processes of the courts, whether State or Federal, the subject was so fully and satisfactorily examined in the case of Taylor et al. v. Carryl, the last of the series on the subject, we need only refer to it, as all the previous cases will there be found. 20 How. R., 583.

The main point there decided was, that the property seized by the sheriff, under the process of attachment from the State court, and while in the custody of the officer, could not be seized or taken from him by a process from the District Court of the United States, and that the attempt to seize it by the marshal, by a notice or otherwise, was a nullity, and gave the court no jurisdiction over it, inasmuch as, to give jurisdiction to the District Court in a proceeding in rem, there must be a valid seizure and an actual control of the res under the process.

In order to avoid the effect of this case, it has been assumed that the question was not one of conflict between the State and Federal authorities, but a question merely upon the relative powers of a court of admiralty and a court of common law in the case of an admitted maritime lien. But no such question was discussed by Mr. Justice CAMPBELL, who delivered the opinion of the majority of the court, except to show that the process of the District Court in admiralty was entitled to no precedence over the process of any other court, dealing with property that was, in common, subject to the jurisdiction of each. On the contrary, he observed, at the close of the opinion, that the view taken of the case rendered it unnecessary '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.'

The minority of the court took a different view of the question supposed to be involved in the case. It is succinctly stated by the Chief Justice, at the commencement of his dissenting opinion. He observes: 'The opinion of the court treats this controversy as a conflict between the jurisdiction and rights of a State court and the jurisdiction and rights of a court of the United States, as a conflict between sovereignties, both acting by their own officers within the sphere of their acknowledged powers. In my judgment, this is a mistaken view of the question presented by the record. It is not a question between the relative powers of a State and the United States, acting through their judicial tribunals, but merely upon the relative powers and duties of a court of admiralty and a court of common law in the case of an admitted maritime lien;' and hence the conclusion was arrived at, that the power of the admiralty was paramount. The majority of the court were of opinion that, according to the course of decision in the case of conflicting authorities under a State and Federal process, and in order to avoid unseemly collision between them, the question as to which authority should, for the time, prevail, did not depend upon the rights of the respective parties to the property selzed, whether the one was paramount to the other, but upon the question, which jurisdiction had first attached by the seizure and custody of the property under its process.

Another distinction is attempted by the defendants in error. It is admitted that in the case of a proceeding in rem, the property seized and in the custody of the officer is protected from any interference by State process. But it is claimed that the process of attachment issued by a common-law court stands upon a different footing, and the reasons assigned for the distinction are, that in the one case the property seized is the subject of legal inquiry in the court, the matter to be tried and adjudicated upon, and which, in the language of the counsel, lies at the foundation of the jurisdiction of the court; but that, in the other, the property seized, namely, under the attachment, is not the subject-matter to be tried, like the property which is the subject of a libel in rem, as the process is, simply, for the recovery of a debt, without any lien or charge upon the property, except that resulting from the attachment to secure the debt, and that the question of lien upon the property is a collateral one, which the Federal court could not hear and decide in the action before it; and further, that the question of liability of the Railroad Company was upon certain bonds, the trial and judgment upon which would not be affected by the possession or want of possession of the property seized by the marshal.

The idea which seems to prevail in the mind of the learned counsel on the part of the defendant in error is, that there is something peculiar and extraordinary in a proceeding in rem in admiralty, and in the lien upon which it is founded, that invests them with a power far above the proceedings or liens at common law, or by statute; and that while the seizure of the property in the one case by the marshal protects it from all interference by State process, in the other no such protection exists.

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

The same observations are alike applicable to all cases of attachment in courts of common law, where the lien is given by statute.

It is true, in a proceeding in rem, any person claiming an interest in the property paramount to that of the libellant may intervene by way of defence for the protection of his interest; but the same is equally true in the case of a proceeding by attachment in a ...


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