,pj,!lk;'s, attorney, fOf iQollection,vf!fJy soon after, :t;eceivingthem. He that he, dill uotexpect to be responsible to the attorney for his chftrges. In short, he' was merely an iustr.nment of Dick, se· leotedby Dick, and invested with, a formal title to the coupons, in order that Dick might litigate them' in a federal court. > It is the duty of the court to disJDiss the suit.
A bona fide conveyance of property in controversy for the express purpose of conferring jurisdiction, is no ground for remanding a cause to the state court, (Hoyt v. Wright, 4 FED. REP; 168;) but a defendant cannot acquire the right to a removal by the purchase of the interests of his co-defendants. Temple v. Smith, 4 FED. RICP, 392. Where a citizen transfers mortgage notes to ,a foreigner for the pUfpose of giving jurisdiction, not ,accompanied with an agreement for a retransfer, the circuit court will take jurisdiction of the cause when removed; Marion v. Ellis, to FED. REP. ,410. So the right tosue is not invalidated by the fact that the note was transferred for the purpose of giving the court jUliSdiction; (Lanning v. Lockett, 10'FED. REP. 451; affirmed, So C. 11 FED. REP. 814;) but the transfer of a deed mala fide in one state to the citizen of another will not enable the grantee to maintain ejectment in Buch court.. (h'emwalt v. Tucker, 10 FED. REP. 884. The circuit court has no jurisdiction of a cause on the ground of citizenship, where the nominal ties are not thereaI parties in interest, but have been made parties collusively, to bring the controversy within the jurisdiction. Marion v.BlUs, 9 FED.UEP. 367. Where parties conveyed lands to a stranger, a -cittzen of another state. without his consideration,for the. purpose of creating jurisdiction in the United States courts, the transac,tion wUJI on,ly. colorable and collusive, and the suit must be, dismissed. Coffin. v. Haggin, 11 FED. REP. 219.-(ED. .
W. D. Tennessee.
LEQUITY-PLEADING-FoRMER SUIT PENDING-ABATEMENT"":":8TATE AND FED-
,The pendency of a bill in equity for the same subj.ect-lll,Atter, and hetween the same parties, in a state court, is no bar to a siwiIar bill ill the federal court in the same state. 2. BAME-PARTNEltSHrP BTJ.I......ADMINISTRATION Bn.L. Where a partner filed a bill in the state court to settle the partnership against the representatives of his deceased partner, and subsequently a creditor filed a bill under the Tennessee C6de, in the same court, against the representatives of; the 'deceased partner, to 'sell ,land to pay debts, and inea'eh of these 'pro, ceedings .anon-resident creditor of the. partnership tlleQ a petition to have heI debt paid, tllata plea of ,former suit pending, setting up these proceedings, in defllilce of a bilrtosettle the partnership, f\1ed in the state,co\ut by the non-residen.t credltor"andby her removed'to the federal court,' waS'!ilStiffici!lnt, '" '."; "'"
LOGAN V. GRElllNLAW.
3. STATE AND FEDERAL COURTS - CONCURRENT JURISDICTION - POS8ESimlN OP
Whenever a court, by mesne or final process, or without any process,has .in its possessi,On property which it is proceeding to dispose of according: to it.1 practice, another court, except one of superior supervisory jurisdiction, will not by its process, or otherwise, undertake to d(spossess the first Cl)urt or iJ.s officers, But this doctrine does not apply" to Qusfthe jurisdiction of all other courts to determine the same controversy, so far 'as they may rightfully do so, but only to protect the immediate possession of the first court and its officers from disturbance. And whenever the litigation is ended, or the possession of the court or officer discharged, other courts are at liberty to proceed according to the rights of the parties, whether. theserightSi require them to take poll-' session of the propelty or not. Held, tlterefore, that a partnership creditor may proceed with a bill to settle the partnership and subject partnership assets, although there maybe at the same time It bill between the partners pending in a court of concurrent jurisdiction in another forum wherein the prQperty is in the hands of a receiver, so long as it does not idterfere with the possession of the receiver. ' ' '
In Equity. , The bill whic4 was originally filed in the state court alleges:
That the plaintiff is a citizen of Mississippi and the defendants are citizens of Tennessee, and that the plaintiff is a creditor. by judgment of .the supreme . of Tennessee, of the firm of W. B. Greenlaw & Co. for the sum ,of $8,357.34, and costs j that the firm was composed of W. B. Greenlaw and J. O. Greenlaw, bothnow deceased; that, pending plaintiff's suit against them. J. O. Greenlaw died, and the surviving partner filed a bill to settle the partner,hip against the representatives of the deceased partner, who had left a will; that that bill prayed for a general settlement between the brothers, but par&icularly the to ascertain and pay its debts by a sale of sufficient )f the partnership, propeJity for the purpose, and for a division of any surplus; ,hat 'defendants appeared, and, after certain proceedings had, commissioners "'ere appointed to divide the property, mostly real estate, and made a report lividing part of the property, which report was confirmed; that as to another )art they reported that partition could not be made withoutigreat sacrifice to par.ies interested, aud recomm!lnded that it be held in common "till the termination )f the litigation then pending in regard thereto;" that the decreed that .hat portion" be held by W. B. Greenlaw as tenant in common with the widow md heirs ofJ. O. Greenlaw, deceased, with full power and authority to colect rents, pay 'taxes, and insure and manage said property, subject to the furher order of this court j" that by sundry orders of the court the case was 'eferred to a special commissioner to take proof and report" the debts due md owing by the said firm, and its remaining assets;" that on November 28, .879, he reported tbeclaims set out in the bill, including that of the plaintiff n this case, llhe having, dUring the pendency of that suit,obtained her judgnent, as mentioned in this bill, which report wascohfirmed; that pending the ,roceedings 9n that bill W.:B.Greenlaw, who wa5'theexeclltor of J. O. died, and the commissioner reported "that J. 0; Greenlaw's repreentatives claim that, in view of the insolvency of W. B. Greenlaw's estate,
which has been suggested in proceedings in this court, the firm property is first liable for any of these claims that may be eventually established against it, and that any alienation by W. B. Greenlaw of his interest, by either deed, mortgage, or deed of trust, or otherwise, cannot operate to relieve it of this charge;" that the commissioner reported that the only assets of the firm remaining undisposed of were certain parcels of real estate, six in number, situated in the city of Memphis, all described in the report and the bill in this case, a body of land in Arkalls3s, and certain claims against the city of Memphis, oneWalt and J. R. Williams' estate, also described; that on the confirmation of this report on February 19, 1880, it was among other things decreed" that the claims aforesaid against Winiams and Walt be vested in D. H. Poston, administrator de bonis non of J. O. Greenlaw, with righL to use names of the heirs and executor of W. B. Greenlaw in collection of the same;" and that "the balance of the personal and real assets of the firm of W. B. Greenlaw & Co" and particularly the real estate set out in the report herein, be held subject to tM further orders of this court for the purposes of the partnership, the payment of its indebtedness, and the equalization of the partners."
The bill also that the parties to the suit of Greenlaw v. Greenlaw, being representatives respectively of J. O. Greenlaw and W.E. Greenlaw, "neglect and refuse to make, or cause to be made, a sale of the said firm property so reserved as aforesaid, or its application to the payment Qfthe firm debts. They also resist and oppose' any application by the creditors of the said firm to be allowed to intervene in t4e said cause' and to procure a sale of said property." It also alleges that the property is depreciating in value, and the taxes ar,eallowed to accumulate and remain unpaid; that the property, or some of it, is in possession of tho People's Insurance Company, which claims it.by some titlefrom:W. B. Greenlaw. This company is made defendant to this bill, andits title disputed as against the plaintiff's . All the !ind heirs or devisees of the Greenlaws, and..all the,ereditere mentioned in the commissioner's report, are made' defendants. The bill prays:
"That on finafhearlng.a decree maybe made the.saleilofJall the propertyfpr the payment of the partllership'debtiijand particuhii:ly tpe debt due the plltintiif aforesaid,qnAtb.:l.t such sale 'be so made lUl to bar the. equity of reile.rription; that proper references be made, and the prqper' accounts taken and stated; that a receiyermay be at once appointed mid (Jlrected to .takep<Jssession of and control, the said property, collect the rents, pay tbetaxes, keep it in rep;tir, and do whatever elsB' may be· required of him; that the title or claim ot t4e.People'slnsurapce Company be decreed and the other sUbordinate'anrl subJect to the liens and claim of creditors; that the plaintiff have all other just, proper, relief." : . . and
A guardian ad litetn was appointed for the minor defendants in the state court, and he anJ the heirs and the administrator de bonis nail of J. O. Greenlaw, deceased, demurred to the bill, and their demurrer was overruled by the chancellor. W. E. Greenlaw, executor of W. B. Greenlaw, deceased, filed a 'Plea setting up that there was pending in the same court an insolvent bill against him to settle the estate of his testator according to the laws for the settlement of insol"\'" ent estates, and also the statute of limitations in' favor of dead men's estates. D. H. Poston, administrator de bonis non of J. O. Greenlaw, the heirs, and the guardian ad litem, filed a plea of a former suit depending, alleging that the plaintiff exhibited her petition in the chaneery suit in that court in the case of R. O. Brinkley v. D. H. Poston, Adm'r, etc., a creditor's bill seeking,the same relief 'as the bill in this case seeks, ,asking to be made a party thereto, and, to have the same relief the plaintiff was seeking as to his debt, and the same she now seeks by this bill;which proceeding was stilLpending; The People's Insurance Company. filed a demurrer, whichiwS:s,overruled by the chancellor. When, the cause was in this condition, the plaintiff filed her petition and bond (No"\'ember 25,: 1881).to.remove it to this court, and a motion to xemand for want of jurisdiction, was refused. The representatives of J. O.Greenlaw thereupon"by leave, tiled amended and additional pleasia.s follows:
(1) The plea before mentioned of former suit pending is amellded by alleging that the suit of Brinkley v. Poston, Adm'r, w:lsfiled "under the act of 1827 for the subjection of the real estate of solvent estllotes of persons," and was subsequently further amended ,. to Elmbrace the administration of the partnership assets of W. B. (freenlaw especially the property mentioned in this proceeding,"and thatbefote this suit was brought the defendants, as the representativeS 'of J.G. Greenlaw; deceased, "had answered and made defence thereto." (2) An additional! plea sets up the of the suit ,of G:l'eenlq,w v; (}reenlaw, mentioned in the bill. and avers that the decree confirming .the "the real estate set out in the be held subject to the fm:tber orders,of, the court for the purposes of the the payment of itsiudebtedness,' and the eqUalization of the partIietS fi that onla certaiIlliay the frIed her jretition "of intervention," said property-be sUbjeoted to her said alleged demand," and that said- ,petition has never 'been. dismissed Of,'! struck from the files,"! is pending, and. defendants plead BAid p,roceeding in liar of the presen.tbill.: (3) additionalp.l(lais like the that it contains .. property' is, and was at the filing of this bill, in the hands of areceiver in' saId causi\ which said'receiver was by the cOllrt appointed,and is in charge'of
and profit,s thereof quncl.er,orde,rs 'of the court." ',(4)"The remaining 'additional plea is sllbstantially thefirst setting up the chancery cause of Bl'inkley v. Poston, 'Adm'':, as former suit pending and a bar to this bill, except that it avers that the plaintiff here'tiled her petition in that cause asking the same relie:!' she asks- by this bill, which was and is still pending" as a matter of litigation in that snit;" the, same being" a creditors' bill, filed and defended under the act of 1827," and that the property is there iTt custod,ia legis.
These pleas have been set down and argued for insufficienoy as not showin'g a defence to the bill. WiUiam M. 'Randolph, for plaintiff.? Peters and T. B. Turley', for defendants. HAMMOND, D. J. These pleas are atgumentative, and aver conclusions of law rather than facts, so 'that it has saemed. to me better to rafer the case to a master, according to the ordinary practice, tiD report whether the suits pleaded in bar are for the same causa of action. 1 Daniell"Ch. Pro (5th Ed.) 687. But other business has already delayadthis judgment!so long that 1 have concluded to dispose of the pleas without 'a referanoe. And, disregarding anydefec'tive a:veN ments,but treatingtha allegations for aU that; by they' can be held to present to ,the court, ,it iltppears that the is. narrowed to the simple question whether or not the chancery court: has thesubjeet-matter<>f this suit that we should not proceed here either by reason of a total want of jurisdiction or of" comity ootwe£lntbe courts. " Ordinarily the pendency of another suit between the same parties, in an jurisdiction, is no bar, or not work '. an ,I (!>thEd.) 633, and note!,!; Ins. Go., v.Brune,96 'V. S. 588:' The suitor pan haveonly one satisfac'tion, but may aSDlan.y,[email protected]
it 'td'the 'of 'his jndgmantwhenlle attempts to do so." The rule Be'EllUS to be the same as .between the <lourts of the several dominions fin thE!: united 'kingdom of Great Britain. Phosphate 00. v. Molle'siJn, 1, App. Cas. 780. ' There is also another rule 'that seems applicabh:lto this case, parl ticularly in view of the 'allegatibri' of this bill that deferidarits resist any attempt of the plaintiff here 'to' 'eontrol or interfere with the agement of the suits pleaded in abatemen'there, which is that theta will be no stay of proceedings where the second suit is brought by a different plaintiff from the first,unless the plea avers that the first l'luit has proceeded to a decree,because "non constat that a 'dilciea' 'will .ever be obtained." Moore v. Holt, 3 Tenn. Ch. 141, 143,' aria'cases there cited'; Macey v. Ohildres:s, 2 Temi. Ch; '23; InB. 0'0. where Mr. Justice Strong says tha.t It final decree in favor of the same party might be pleaded in bar, and the plea of a former suit "pending in the same jurisdiction is an'abl:l.tementonly because the seci8nd suit is vexatious. ,The authorities willshbw, I think, thate've'n in the forum it is a mere matter of discretion whetnerthe secbnd sui. 9ha11 abate or ',be 'staid, andtb4t. where' a'sta.yis allo'Wed ihvill he generli.llywith leave to the apply to go on with"the second -suit if the first is obstructed or noes not in the regularcOlirse'. 1 Dariiell, Ch. Pro 633. If, therefore, the bill contains an 'averment that it is filed because the plaintiff is liot allowed to iliterfere with , other plaintiff's right to control the litigation, odo shtire' in'thafc,!,h L 'trol, it would seem that such an averment should be denied toinmke -the discretion of the court to stay the second suit. It ia:'llti'd'd:own by Mr. Daniell that where a bill is filed by one credHorili of lihuself and all other and another: creditor ,domes :inand makes himself a party, 'he becomes a quciH plaintiff, lihdthe plea is -good as against another bill by him, his remedy being,- if tnefirst plaintiff is dilatory, to' apply for liberty to conduct the' cause/himself. 1 Daniell, Ch.Pr. 635, and cases cited. . There seems also to be a distinction. between caseS where <creditor, coming in as a quasi party before after a llccount in the first suit, ti.les a second bilE" Incases where he 'cannot come in until after a decree for the 'accOunt he is' notptecliIded b'il1' 'unless there has heen a decree to whichche' fuay become aparty; in the other casss he is so prehluded: iii. 'Whitt -the effect of- the statutory practice of the -rules it is not necessary now to itiquh;e."WRere the bill's' art!dilea IH1 1hesame court' (as' thiswll.s)H 'iHe!prdvin<le' bf''tll'a
chancellor to control the whole subject by ordering a consolidation, or that the second suit be treated as a petition in the first, as he no had remained in his court. But doubt would have done. if the here, in another jurisdiction, we must treat the subject as if the bill had been originally filed here, and, as ,r. have shown, such a plea is not applicable unless it be a plea.in bar setting up, not ,another suit pending, but a former recovery, in which plea a necessary averment is that the .first suit has proceeded to a decree; Rind see,mst0!Ue plainthat,t.his plaintiff has not recovered sucb a decree in the ,chancery court, eitber as an actual or quasi party, as would amount,po /II former rec;overy for the relief she now seeks. In t4e Greenlaw.v. Greenlaw neither she nor any creditor was made ,a party, as th all should have been y the bill been filedjn the in. terest and for the benefit of the creditors; but it was a suit between the paI;tners inter sese and for thli'ir interest, that .of the being 9nly secondary, and broughtinto it merely beclJ/use itwa.s necessary in order to adjust the pl;trtnership matters. If any oreditor had been in control of the suit. itis probable the decrees wpl1ld have been a different supreme court of Tennessee, in the (lase of Moffatt v. Wells, MSS.· JackSOn, April, 1882, has rerecently decided that a bill by one partner agaiue,t another t,he partnership, ,even where it was insolvent, did .not impound the property or make it a trust fund, nor preclude creditors from proceedi:ng ,in the sa,me or another court by attachment to secure their debts. It is,true, in this case there was a reference to a master to ascer· tain and report the debts, and according to the bill plaintiff proved her debt before him, and he reported it; and according to the pleas here she filed her "petition of intervention," which I suppose means a petition to become a party, either plaintiff or defendant, the plea. does not say which, asking to have the property subjected to her debt. The plea. only avers that her petition has never been dismisseq. It does not aver that it bas ever been granted, and 'she made a party by the necessary order; and in the bill it is averred that the defendants have denied her admission to control as a party. It is plain, fore, that she is not a party to that suit, in the sense that the law requires, to make the plea of former suit pending available. We come now to the other. suit of Brinkley v. Poston, Adm'r" which is alleged in the ,pleas to have been filed under the Tennessee act of 1827, (T. & S. Code, § 2267 et seq.) This act allows an executor· .administrator, or any creditor, where the personal assets of a deceased person have been exhausted in the payment of debts, to file a
bill in equity to subject the lands descended to the heirs or devised by the will to such payment. It is very clea,r that such a bill is not for the same purpose as that filed in this case. It may be that a. creditor of J. O. Greenlaw, in his capacity asa member of the firm of W. B. Greenlaw & Co., might there prove bis debt, and seek satisfaction out of his estate; but it is not like a bill by that or another creditor against the partners, or their representatives, to subject the part. nership assets. But the plea avers that the bill was subsequently "so as to embrace the administration of the partnership assets of W. B. & Co., and especially the property,mentioned in It appears from the bill (aIJ.d by the other if they can be looked to in this these partneJ;'ship assets were in the hands of B. Greenlaw, surviving pa.rtner, where they properly belonged. and ,not in the hands ofJ. \0. G:fElenlaw's representatives or heirs, and that S1,1rviving 4ad lqng before filed a bill (the case of Green,law y supra) to settle ,partnership"an,d it is difficult to perceive how the amendment could be pertinent to ·the,original bill. But if the title had descended to J. O. Greenla,w's heirs, so that it was a proper amendment, it was only for an incidentalpllrpose, the main object of the bill being to sellJ. O. Greenlaw's 'real estate to pay his debts, and not a bill to settle tbe partnership in the sense of the rules of law governing this of a former suit pending. The authoritiesa,lready cited show abundantly that it must be a Buit between the same parties and for the same purpose., If the first suit has any other pui'pose with which this plaintiff, in her capacity as a partnership creditor, bas nothing to do, she cannot be embarrassed in her pursuit of partnership assets against both partners by litigation between the individual creditor's of one partner and tb,e representatives of that partner. 'The fundamentai requirement of a plea of former suit pending is wanting-the object of the two suits is no,t the. same. Watson v. Jones, 13 Wall. 697,.7l7. Here she is suing, as she may, both partners, and seeking to establish her claim to have a court of equity subject partnership assets in the hands of the surviving partner or his representatives, presumably, to her debt and those of other partnership creditors. There she is suing, as she may, one of the partners or his representatives, and seeking to subject his individual assets, or such of the partnership assets as he or they may have possessed themselves of, to her debt; but the suits are by no means the same. The Same process of a account a.nd settlement may be v.12,no.1-2
. j "
in! ,'her right iIi ohtthe pose of the two suits' is<ndt the same in any 6thet sense than that the plaintiff's object in both is to ha;ve her debt paid. Hence, if she had herself filed'that bill,the plea could not, Tn my judgment, be sustained. This plea, like th.ebtlier, does not allege that she has been made a party to that suit by an order admitting her as plliintiff or defendant, but only that she filed her petition: :asking' the same relief there as here, and that it is still pending as a ma tter of, litigashe dantion in that suit. But this doestiot make her a party, not' become such without the consent of thecourt and byano:rder for the purpose. If the parties defending against claithli'ad been anxious 'to paY,these partnership debts, she would have 'been made a party, and not left to' ':come ,in bypetitiontts a 'quilsi party. The creditor who' files a bill occupies a. better attitude' tlfh.rl one left to strugglewithhoatile parties; who ignore his blairti iiHd only offer him such phi'ce the suit as he can acquire by a petition. The right to come in by petition and the offer to' do so donnt l'nake the case of a former suit pending. If I were sitting as in the state court, while I might exercise the power t9c<>nsblidate 'the causes or hear them ,together, I would not: ehtertain these plgas 'as suit pending, and the plaint1ffto 'technical pleas of a such relief as she couid obtain by petition iIi' either of the suits her,e pleaded in' abatement. She cannot get, by such procedure:, that plenary relief affCirded by a bill like this, and that factal'6'te defeats the plea. But in a.ri independen't' forum' there cari be rio doubt that the pendency of 'such is not a defence. ',i The next consideration, BO much urged inarghment;'ldhat mere comity forbids our entertainirig this suit ; that the being one of concnrrent jurisctiCtion,a'nlt having first should not be interfered with by this court. "rhis we must necessa.rily interfete with that court to re,lje,f prayed for here, and is based on ihe idea that the ptoperty is' 'in' bustodia legis, and as the pleas aver, blthe chancery Comity does; indeed forbid any 'beFween the for 'or the res involved, but does not prevent a pUJ:suit of the same right in courts where such conflict does not arise. : The authorities cited show that the mere pendency of a suit.f!1r· the same relief iiHw'o courts does not create' a conflict. In the, ot the chief Nstic'e, already quoted, it will be time'enollgh to :dMenniri.e how far go WitflOut disturbirig the possession,'realor imaginary, ofthl'l 'Pfbperty alleged to be held by the chancery court, whIm the application is
illll.de.: :It,does not now appear that any contlict'willnecessarily' arise. The plea alleges that a receiver has been appointed, bQtn6t with sufficient definiteness to enable us to say whether this allegation.' is based on a construction of the decree quoted by both the bill and the plea,that 'We B. Greenlaw's tepresentatives hold asa receiver, or on: the fact that some other porson has been placed in possession as a receiver in the ordinary But, taking the latter to be true, 1 do not understand that such possession would create a confliot unless we should be asked here to displace him; and we need not do that to give the plaintiff the relief she asks. The',property might be sold, and the purchaser vested with the title and sent to the chancery courl to obtain possession, as against the receiver of that court, if he were entitled to it; or it may be that we could go no furth.er than todeclare and settle the rights of the plaintiff,and stay of decree until the chancery court had eXlUl.\18ted its jurisdiction OV6J;' property and released it. Black v. Scott, 9 FED. Rn., and: cases there cited. 'llhe argument:of the defendants results in this ,: that a creditors'. bilHn' 8,tateohancery court, to settle an estate, draws to it jurisdiction of all controversies whatever pertai:o.ing· to it, and that such.. jurisdiotion is exclusive. This may be, so far as the right to proceed any other state court i9 Qoncarned; but it,haa been settled that the; stllitutory injunctions, even in inaolvenpy.proceedings, C?annot lltevent a nou"resident from resorting to this court. Suydam v. B1'oadnaz,14 Pet., 67 ; Bank v. Jolly, 18 How. 503; Hyde v. Stone, 20 How. 170; Payne v. Hook, 7 Wall. 430; Green V. Oreighton. 23 How. 90, 106; Railway 00. V. Whitten, 13 Wall. 270; Harrison v. WheeZer, 11:FEI).REP. 206: Pulliam V. Pulliam, l,Q FED. RlllP. 29; and see, also, Bueno. Ayre. R. Co. v. Northern R. Co. Law Rep. 2 Q. B. D. 210. " ' . . . cite TaylOr v. Carryl, 20 How. 583; Taylor v. Taintor, 1:6 Wall. 370; New Orleanav. Steam-.hip 00. 20 Wall. 387, 392; French v. Hay, 22 Wall. 258; Hagatn v. Lucas, 10 Pet. 400. Freeman V. Howe, 24 How. 450; Buck v. Oolbath, 3 Wall. 341; Memphu v. Dean, 8 Wall. 64; Hubbard v. Bellew, 3 FED. REP. 447, 4:50; BIYJk,'f. Ins. 00. 4 FED. REF. M9. 'See, also, Heyman v. 20 :Am. Reg. 171, note, where the cases collected and discussed. , I do not underi3taJ;ld that these with ,those I havecited:in·support of this Of course, there.are .some.general such as "the court possession of the orig.." , . . , , ' " <
inal case 'Was entitled to hold it exclusively until the case finally disposed of," that, taken literally in their broad language, would estab. lish the principle contended for here, and thereby give the court in which a suit was brought exclusive jurisdiction in all cases and everywhere, without any limitation or qualification whatever; and on such a doctrine a plea of former suit pending should prevail in every con· ceivable case, which we have seen is not the law. What these cases establish is this: Wherever a court, by mesne or final process, or without any process, even, has in its possession property which it is proceeding to dispose of according to its practice, another court, ex., cept one of superior jurisdiction, will not by its process or otherwise undertake to dispossess the first court or its officers. And the principle will, in some circumstances, extend to protect the title of a purchaser from that court as ,a.gainsta purchaser from any other court. It is not necesslliry here 'and now to consider :how far this 'prinoiple extends. It is sufficient to' say tha.t the doctrine does not apply,to oust the jurisdiction of all other courts, as we have'abundantly sho'WD.; but only to protect the immediate possession ofthe oourt and itsofficers from disturbance. Whenever the 'litigation is ended, or thepos. session of the court or officer is discharged, other courts are at liberty to deal with it according to the rightso! the parties before them, whether these rights require them to take 'possession of the property or not. 20 Am. Law Reg. (N. S.) 179. Meantime, so far ftsit can, without disturbing the possession of the first court, the second will proceed to 'exercise its jurisdiction, and, if' it can proceed without possession of the property, need not concern it'self about the sion in the other court. Of the clliss of eases to which this belongs Mr. Justice Campbell says: "What measures the courts of the i;ltates martake to securJ
equality of such creditors in thedistributiotiof the assets,'as provided in the state laws, '(if any,) independenttyof the administration in the probate courtii, cannot be;conBidered until a calie'shOuld be presented td'this court.'" v. C'reigkton, mpra.
was sought to lished for our late courts of bankruptcy on similarigrounds; of having possession of all' contl'Oversies' assets in the administration Of insolveut estates, but it did not prevail, and the state couris universally refused 'to recogniz6,the'unwatra;ntable claim. . It is assumed in argument that under our act' of 1827, ferti:ld'to, the chancery 'court lhas the property in custodia legi8,·a.nd I
A similar' claim
have, for the present purposes of this cause, so treated it; but I do not at all assent to that theory, though I need not decide it, and only refer to it to reserve the point. Courts get possession of property by a seizure of it, or by voluntary surrender to its officers, 'and possibly not otherwise. Transfers of property may not be effectual, or may be prevented by injunction, and thus it may be in one in custodia legis; but the possession of the party may not be the possession of the court in the sense of the rule we have been considering. The pleas are insufficient.
and others v.
May Ii, 1882.)
(CirCUit Oourt, S. D. Nf/W York.
EQtJITY-JURItIDIPTION-REMEDY AT L A W . "
In a suit inequity, the objection that ther.e is It!) I).dequate remedy at raises a jurisdictional question, and which will be enforced by the court Bua sponte,although not raised byfbe pleadings Dor suggested by coun,seI;' and, even where the bill is framed so as to avoid the point, where it is apparent: on the face of the bill that the remedy is at }aw"it is thc duty of thQ;oourt to decline jurisdiction and dismiss the bill.
2. SAMJIl-RELIEF, WllEN NOT OBTAINABLE. Where the case made by the bill resolves itself into a complainants and defendant as to defendant's right to withhold from complain-' ants certain city bonds, to which complainants have legal ,title, alld,defendant no title whatever, it is not a controversy of equitable for an aetion at law for conversion, or in replevin, which affords a 'plain and appro, priate remedy. ', 3. SAMJIl-PARTIES-REPRESENTATIVlD CAPACITY. ,'. That a party is sueq. iI;!. his representative capaelty a8 tnlstee ;a,·third party will not confer jUrisdiction, il?- equity where he does not bear sucl;l to . the parties btingiiig; the suit: '
E. A. Hutchins, for complainants. Platt Ii Bowers and Man a: Parsons, for defendants. WALLACE, C. J. The bill in this cause does not present '8 contro· versy which this court, sitting in equity, can entertain. It states a cause of action for which there is a plain and adequate remedy at law. The defendants have not demurred, but have answered,and do not even now raise the objection. But the court can only entertain the case made by theoill. As was said in Washington R. R. Brai/.l(y, 10 WaH. 299, 303: "It is hardly' necessary to repeat· the; luioms in the equity law of prooedure that 'the allegations and· proofs(