.THE E.· L·. CAIN.
KRESSEL ". THE
SAME. . BENKE
et at. v.
et ,at·v. SAME.
(DiBtr£ct OO'Wrt, D. South ea'l'oUna.
March 5, 1891.)
,'rb,e faet that the'title of defenda):!t in lIottachment to the tug is disputed does not aflecttlle state cOUrt"s' jur:tsdiction, nor the fact that the proceeding in the state court isonatta6hmeDt,wh1lethat in is in rem.' , The hen" set up in the federal court befpg maritime neull, W'!ilch cannot be sdJndt. lcateB 'iIi' thie lltate court, the causes wiU be retained until the state court orderS the sllo18:of the ,tug orreleases,itfrom oustody- i)1BJ;ly, other j
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Libe;tfor . .: " I ' ,I libelanta. -Rarnt!-'j'd" (or claim/l-nta,,; ," .
istneoessary. ·,on 3d November, 18,90,scomplaint w,as filed in,Ul,e coprt of comtnotli ;pleas for Charleston county by Q. :Mauvel agaipst. the Norlh American Dredging & Improvement Compan;y. The complaint allegedthat..the defendant was an .insolvent corporation;.that.a rec.eiver had been appointed.for its property in the state, of ,Ne,w J erse,y, :u,nde,r whose laws it was' oreated;and that aIr ancillaryre<:eiver had, pointed in Ne.wt ;York. The prayer.and,object a recelv-er be a.ppointed in the state of SotlthCarolil1Q, to ,take of its .propei'tyhere,. which property, it is stated , co!:ulists, ll-mWlgot)ler of the. dredge Frolic and thesteaIJ.l-tug .E.L. Cajn. QntheeRme day attachmentsi were issued in the"saII'le court by Frank K1-'6s!,!el, Jr., M. A. Connor" Oohtoy&' Co., and th& Charleston Iron-Work!'!, and, Per,. haps 'others, iagainstitheNorth Amel.'ican Dredging ,Company, and in -each warrant. theshe.:dff was instructed to attach all .the property of the defendant in county" especially the. dredge Frolic, and all other· property of whatsoev:er kind, in the hands, possession,o;r'control of William H. Fox. Fox was the manager of this company in charge of. the. dredge and the tug. Cain.: ,To each of these warrants the sheriff hadmllde ,his return of the personal property atta.ched.by him, anl'l taken iptobis tody by \Til'tuethereofi" ,which return includes the dredge FroHcand steam-tug Cain, the latterivalued at $5,000.. As soon as plaintiff formed of theseattachmEmts,.he filed a suppLement.a!j ingthtl o..riginal and stating
J .. In order to undel'Btlj,ndthese caee$d\!)tatementoffacts
this the above-named attaching creditors were made parties, and each answered. Upon the com'plaint, after appointing one Thompson as receiver, and then removing him, the court appointed Henry C. Cheves receiver: The order declared him receiver of all the property and. assets of which Thompson had been receiver within the state of South Carolina, and the order appointing Thompson made him receiver of all the property and assets, real, petsonal j and mixed. of the defendant, the North American Dredging Company, situated within the state of South Caroqualifying as'receiver, H. C. Cheves demanded from the sheriff possession of all the property in his custody under the attachment warranta,apd, after somedem,ur because of fees due to him, the sheriff delivered into the receiver's possession the dredge Frolic and the tug E. , L. Cain. The plaintiffs in attachment filed their complaints against the North Amer,icaJl.Dredging &1mprovement Company in the court of common pleas. That ofF. Kressel, Jr., is dated on 3dN'ovember, 1890. His claim ,is for 84PpHes fllrnished to the defendant and the.l!iteam-tug B.L. Cain and dredge Frolic and Nicaragua, both upon the credit of said defendant, claiming to be owners of said vessels and' operating the said vessels. In his affidavit, upon same, and also upon the credit of which the warrant bfattttonment was issued, Kressel swears that the defendant has property within this county ,consisting of the dredge Frolic and the tug E. L. Cain. The affidavit of Conroy & Co., in their attachment, alleges that their CAuse of action is for supplies, etc. j to the steamtug E. L. Cain, at the request of the superintendent of the said defendant, the North American Dredging & Improvement Company, and upon the credit both of said defendant, claiming to be the owners, and also of said, vessels. Thew-arrant of attachment in the Case of the Charleston Iron- Works specifically directs the attachment of the E. L. Cain. The sheriff surrendered the dredge and the tugto the receiver on 15th December, 1890. No formal receipt was asked for or given. But the receiver assumed responsibility for the dockage of the dredge and of the tug. He put no one specifically in charge, but left the crews aboard of each. On the 17th day of December the marshal of this court, under Il. warrant of arrest issued in the cases now at bar, seized the tug E. L. Cain. The deputy-marshal says that he found no one in charge of her. No resistance was made to the act of the marshal. No demand has been made upon him in behalf of the receiver. On the 10th January of this year, upolta report oCthe receiver setting forth the assets of the defendant company, and among them the tug E. L. Cain, mentioning that she was in the hands of the marshal, the court of common pleas ordered a I3ald of all the right, title, and interest of the company in that tug when the receiver has been fully advised of the nature and extent of that interest. Much testimony has been introduced tending to show that no charge was taken of this tug by the receiver, and that she really is not the property of the defendant in attachment; and that this fact is recognized by the plaintiffs in attachment as well as the receiver. This testimony, in the view I take of the case, is not relevant. The question is, is this tug in the hands of the state court? She certainly was attached by process
THE E. L. CAIN.
issuing out of that cotlrt, was in the hands of the sheriff under warrants, three of which incidentally included her, and one at least of which specifically directed the attachment of the tug as the property of the defenda-nt corporation, and all of them issued on affidavits and complaints, stating that she was such property. The sheriff turned the tug over to the receiver. The receiver himself was appointed in proceedings in which the complaint specifically claimed the tug as the property for which a receiver·issought; and the orders ()f the court treat the tug as under its contrOl. The tug thus was i.n the custody of the law. Beach, Rec. § 221; Covell v. Heyman, 111 U. S.176, 4 Sup. Ct. Rep. 355. No act of the receiver, no waiver of claim on his part, could change the status of the property, or affect the control of the court. Even· his refusal to accept the ,appointment or to act on the order, or his willful·abandonment of his duty, would not work such change or affect such control. Beaoh, Rec. BUpra. The receiver derives his whole authority from the court, acts under its orders, has little or no discretion; none, indeed, not reviewable by and under the control of the court. See Thompson v. Insurance Co., 136 U. S. 2S7, 10 Sup. Ct. Rep. 1019. As he took custody by order of the court, he can release from custody only by its order; and. if the property, being in the custody of the law, is placed, in his keeping, his laches, even his abuse of his aUlhority, cannot take it out of such custody. Wherlwer, within the territory of the court,the property is, it is in the custody of the law. The presence of the officer is simply a form of notice of this. His absence does not destroy this custody. This being so, alld this tug having been taken possession. of by process of the state court, and by that court placed in the custody of its receiver, it cannot be held by any process out of this court until discharged by the order of the state court. This rule is essential to the dignity and just authority of every court, and to the comity which should regulate the relations between all courts of concurrent jurisdiction. MILLER, J., in Buck v. Colbath, 3 Wall. 334, Indeed, as between the state courts and those of the United States, it is more than mere comity. It is a principle of right and of law, and therefore of necessity. It leaves nothing to cretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent. Although they co-exist in the same space, they are independent,and have no common superior. They exercise jurisdiction, it is true, within the same territory-, but not in the same plane. When one takes within its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other as if it had been carried physically into a different territorial sovereignty. Covell v. Heyman, 111 U. S. 182, 4 Sup. Ct. Rep. 355. Nor can it affect this question that the title of the defendant in attachment to the tugis disputed, nor, indeed, would it affect this question if the absence of title could be demonstrated. That is a matter whollyfor the court which has taken custody of the property. No other court can decide this point for it. Were it otherwise, the independence of courts would be destroyed. Lammon v. Feusier, 111 U. S. 19, 4 Sup. Ct. Rep. 286; Jilreeman v. Howe, 24 How. 458. Nor can it affect the v,45F.no 5-24
vol. 45. state ,bas taken ¢ustody under .. at;.. ;and this court UllQer itsPl'0900dil1g ''rhe property, been of attachment, it is in custody l!tate court. The right tQ hold it is a question to ,be determined by the (ll:Hlrtlinder whose,proc¢$5itwlis There is no authority in this COtH'tt<> interfere with it.:, .'llaylor V" Chn'Yl, 20 How, 583, quoted 8l1daffirmed, in CoveU v. Heyman, 111 U'. S. 177, 4 Sup. Ct. Rep. 355. for the: present, this cO\1rt can proceed no further.· ]3ut the liens set in ,this cour,t are :maritime liens, which cannot be. adjudicated or Pltl!sed Upon in tl),e state court. Over these liens the jurisdiction of this W\lrtis excll.lsive. They will be protectedjnthis court. LeUhe Cf!.USeS retained ,until the. state, court :hasolidered the saJe, or in any other IllQde .releases' its custody QLthetQg." ,See The OUw:1' J()J'dan, 2 'Curt.
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: '(OirCUit CoUrtiE. D: I1>Ui6tana.Fei>nfary91, 1891:) '
Loss. : " . ,d" ; founditimpossibleto stop. They t,herefore. acting' a,ceo,rdi,ng fA)' t,h, aii', ,best'J,u"dgm,,ent, allOW,ed, ,t,he8,team-boat to sink , , 'in 'and ,apan,doned !ler. The' ow.per infOrmed; lthe-, insurance company, prolllisedto,go and take charge of thebpaf::, l>p.t to 510 BOUl1til '8he!hiid become a total wreck. 'l1eUl, that the insurance'company was lillobl." tor ·· " ,; ,),',1 ,,;. ",'.'/ I ; , "
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0.; B. for J. R·. !JfU;ly,ufi#hfor
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,P canie 'on ,tobe,hea.rd Up«;lO and evithe QOurt,finQ.s.tbe followingfactsin the case: , ' dence, 1. Thatlibe1l;lnt is i!o created and elltisting ullder and by virtue,oOhe Iltatutes . ,' 2. Th,at, respondent,Wlls. ,Jpng prio);. t<> the year 1888, and still is,a b,ody by, the statutes of the state of Kentucky,havingtqe right tocl!o,rry .on tl;le: business of inl!urance in the state of condWQu thatit would appoint an attorney within Mid state itssaigpusiness,and to accept ,service of process in 'Or ,pJ;oCliledings QOrPIllenced' against it in the 'courts of said state; and that; (JowpJyingwithlthat conditipn"WilliamM.Railey Was duly witbin; said state.8,.nd still is respondapPQinted respopdent1fj sa,id attorney. T,bllt on,. the 5th day, 1888, at the city QfNew Qrlean!!, r,espondent,.1;>y ita COlltracted with libelantjQ insure for libelallt,$7,OOO .Qn the .hull, tackle, apparel. furniture, and appurtenances of thesteaIU-boat Nl;1tchez, against the perilS of rivers" fire \lud jettlJlQD_ forA period of one ,y,ear then