804
FEDERAL REPORTER.
goes on with the trial of the case, need not now be considered. It is enough to say that congress has not given to the United States courts such a power. But no such power is required to make effectual the order herein sought by defendant; and it does not follow because such writs cannot issue, that the res in the removal suit cannot be brought to this court, and subjected to its jurisdiction just as fully as it wonld have been had the suit been dismissed in the state court, and then filed in this court. The end can be attained without invoking the appellate power of the supreme court; and there is no reason why a method or process, not prohibited by law, should not be now adopted, by which the act of 1875 can be made to attain the purpose its authors had in view whAn it became the supreme law of the land. It seems that the purpose of the mover for the order might be effected by taking up the case from the state court, on writ of error, to the supreme court; but none of the cases cited, directly or indirectly, seem to forbid the issuance of the order prayed for. If the defendant, as has been freqnently held, need not stay longer or appear at all in the state court after the case is rightfnlly removed, why should he, in seeking for relief from the refusal of the state court to allow his suit to be removed, be limited to an effort to have the error of the state court corrected by the United States supreme court? If there was no jurisdiction in the state when the petition and bond were filed, why should the defendant go to the supreme court to correct an error committed by the state court after that court had lost its jurisdictional power to do anything in the case? By the paramount law of the land, the state court is directed, when certain formalities have been complied with, to give up to the United States court all the jurisdiction it had when the suit was removed. By operation of the supreme law, the state court is shorn of its powers to do anything further in the case, and not a vestige of the suit, or its subject-matter, rightfully remains in the state court. Kern v.Huidekoper, 103 U. S. 485; Ches!lpeake et O. R. Co. v. White, 111 U. S. 134; S. C. 4 Sup. Ct. Rep. 353; Insurance Co. v. Dunn, 19 Wall. 223. True, the state court has the power, whatever may be the decision of this court, physically to go on now and try the case; but its judicial power to continue its possession of the res, through the hands of its sheriff, is at an end, and his possession is not the possession of the law. The writ under which he seized the res is dead, and in his hands it is a shadow, and he cannot interpose it between himself, as an officer of the state court, and the marshal, when he demands the property. Insurance Co. v. Morse, 20 Wall. 445; Railroad Co. v. Mississippi, 102 U. S. 141. This court's views may not be in accord with the opinion that the supreme court may announce should this case go up; but its decision, in the nature of things, must be the law for the case until the appellate court holds differently. For the purpose of passing upon the rule now being tried, this coud has the fullest jurisdiction to say that
YOUNA
fl.
TOWNSHIP OF CLARENDON.
805
the suit is or it is not rightfully here, and all we have said is based on the opinion that the suit is rightfully removed. If it is rightfully removed, the force of what we have said cannot be dttnied. Bank of U. s. v. Halstead, 10 Wheat. 51; The St. Lawrence, 1 Black, 522. This court cannot try the case, and dispose of the res, until it is in possession of the law which gives this court jurisdiction to try the case. The state court cannot try the case, because it is now without "any case, authority, or process by which it can retain possession of the res." Again, we say that this court is not interfering with or at· tempting to take a thing which is in the possession of the state court. The thing we direct the marshal to take is not in the possession of the law, because the writ under which the sheriff took possession of the property is now, under the provisions of the act of 1875, without effect in law. The writ cannot now protect him, in withholding the property from the demands of the marshal, to any greater extent than it would if the suit was dismissed, and the defendant should make a demand for the property. The motion to remand is denied, and the rule to vacate the order to marshal is refused.
YOUNG 1.
V.
TOWNSHIP
OF
CLARENDON, impleaded, etc.
(Circuit Oourt, E. D. Michigan. February 15, 1886.) MUNICIPAL CORPORATIONS- BOND IsSUED TO CONSOLIDATED RAILROAD COMPANIES-ESTOPPEL.
When a municipality contracts with and issues its bonds to a railroad company formed by the consolidation of two other companies, it is estopped to question the validity of the consolidation.
9.
SAME-VOTE OF TOWNSHIP TO ISSUE BONDS-STATUTE UNCONSTITUTIONALSUllSEQUENT DECISION OF SUPREME COURT-RIGHTS OF CREDITORS OF RAILROAD.
A township, having voted to aid the construction of a certain railroad, issued its bonds for that purpose, and deposited them in escrow with the state treasurer to await the certificate of the governor of the completion of the road. While the road was in prog'ress, the law under which the bonds were issued was declared to be unconstitutional, and the bonds were returned by the state treasurer to the township. The company went on and completed the road. Subsequently the bonds were declared by the supreme court of the United States to have been rightfully issued, and a judgment creditor of the road filed his bill to obtain the benefit of them. Held, that the surrender of the bonds by the state treasurer, and their retention by the tOWJlship, was a conversion which entitled the company to bring immediate suit, and that the bill, not having been filed until 13 yea!s after the bonds were surrendered, must be dismissed.
On Demurrer to Bill in Equity. This was a bill filed in 1885 by a judgment creditor of the Michigan Air Line Railroad Company to realize for his own benefit the amount of certain bonds, issued by the defendant townShip under the railroad aid law of this state, which had been deposited with the state treasurer, and were held by him for the benefit of the road, until the
