son

in a criminal case.1 Thus, the Federal courts ordinarily refuse to discharge by habeas corpus before his trial, and even in some cases, before he has exhausted his remedy by writ or appeal, after conviction, a prisoner held under indictment by a State court. So, where the marshal had seized under a charge of a crime against the United States a prisoner held by the sheriff under a charge of a violation of the State criminal law, the Federal court upon a plea in abatement sustained the indietment found by its own grand jury, but ordered that the accused be returned to the State authorities.3 Conversely, a State court. has no power to release by habeas corpus a prisoner held under the process of a court of the United States. The acts of Congress, however, authorize in certain cases the removal of criminal proceedings from a State to a Federal court. And where an officer of the United States is arrested by State process, because of an act done in pursuance of his official duty, the Federal courts will usually interfere, by habeas corpus, to protect him.6 It has been held that an application for the removal of a criminal from one Federal district to another will be denied if the accused was in the custody of the State court before the Federal court obtained jurisdiction. The same rule applies when he is, at that time, in the custody of a court of the United in the district from which it is sought to remove him; unless such court relinquishes its jurisdiction, which it may do

States,

100 U. S. 257, 25 L. ed. 648. See $$ 537, 551, 552, infra.

6 In re Neagle, 135, U, S. 1, 34 L. ed. 55; Ohio v. Thomas, 173 U. S 276, 285, 43 L. ed. 699, 702; Boske v. Comingore, 177 U. S. 459, 44 L. ed. 846; Anderson v. Elliott, C. C A., 101 Fed. 609; In re Turner, 119 Fed. 231; West Virginia v. Laing, C. C. A., 133 Fed. 887. See § 461. infra.

7 Re James, 18 Fed. 853; U. S. v. Corrie, 23 L. Rep. 145; U. S. r. Burr, 2 Burr's Trial, 455. See Re Johnson, 167 U. S. 120, 42 L. ed. 103.

8 Re Johnson, 167 U. S. 120, 124, 42 L. ed. 103, 104.

with the consent of the government; and if it does so, the accused will be removed. Where the first court declines to relinquish its jurisdiction, it has been held that the practice is for the marshal to hold, but not to execute, the second warrant, until it is determined whether the accused shall be held under that first issued.10 It has been said: "that the sovereignty, where jurisdiction first attaches, may yield it; and that the implied custody of a defendant by his sureties cannot prevent. They may, however, claim exemption from further liability to produce him." Where a proceeding between citizens of different States had been brought in a State court, to determine the sanity of an alleged lunatic, the Federal court refused, pending the determination thereof, to review the right to his custody upon a writ of habeas corpus.12 "Where one commences a criminal proceeding, who is already a party to a suit then pending in equity, if the criminal proceedings are brought to enforce the same rights that are in issue before that court, the latter may enjoin such criminal proceedings." 18 When an indictment or proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter, having first obtained jurisdiction over the subject matter, has the right to hold and maintain such jurisdiction to the exclusion of all other courts, until its duty is fully performed; but it cannot interfere where the proceedings were pending in the State court before the jurisdiction of the Federal court was sought ex parte.14

§ 59. Effect of the custody of property by the State court, where the Federal courts exercise jurisdiction under the Constitution and laws of the United States. This doctrine does not apply where the Federal courts exercise superior jurisdiction, for the purpose of enforcing the supremacy of the Constitution and laws of the United States.1

The institution of a proceeding in bankruptcy gives juris

9 Beavers v. Haubert, 198 U. S. 77, 49 L. ed. 950; Re Beavers, 125 Fed. 988; Peckham v. Henkel, 166 Fed. 627.

10 Re Beavers, 125 Fed. 988.

11 Beavers v. Haubert, 198 U. S. 77, 85, 49 L. ed. 950, 953.

12 Hoadley v. Chase, 126 Fed. 818.

13 Ex parte Young, 209 U. S. 123, 162, 52 L. ed. 714, 730.

14 Ibid.

5

$ 59. 1 Tefft V. Sternberg, L.R.A. 221, 40 Fed. 2, 6, per Speer, J.; citing Covell v. Hyman, 111 U. S. 176, 28 L. ed. 390,

cases

diction to the District Court of the United States in certain to seize property taken into the custody of a State court, within four months before the filing of the petition. The possession of a sheriff or other officer of a State court obtained more than four months before the filing of the petition in bankruptcy is usually respected by the State court. The possession of the property of a corporation by receivers appointed by a State court does not affect the jurisdiction of a District Court of the United States to adjudicate that corporation a bankrupt; nor it has been held deprive the directors of any power which they may possess to make a written admission of its inability to pay its debts and its willingness to be adjudicated a bankrupt, so as to support involuntary proceedings in bankruptcy.4 After an adjudication of bankruptcy, the appointment of a receiver 5 or trustee 6 by the bankruptcy court supersedes the authority of a receiver previously appointed by a State court because of insolvency, although the latter is in possession of

property; but comity requires that, except in an extraordinary case, the officer of the bankruptcy court should apply to the State court for an order for the delivery or possession to him before he institutes another proceeding for the same. It been held that, before adjudication at least, the Federal should not appoint a receiver when a receiver appointed by a State court is already in possession; and in the county of

has

court

259. In that case, the court refused to punish the State receiver for refusal to deliver possession of the property to the receiver in bankruptcy when he acted under the advice of counsel. See in re Watts and Sachs, 190 U. S. 1, 27, 47 L. ed. 933, 941.

6 Re Hecox, C. C. A., 164 Fed. 823. 7 Re Watts and Sachs, 190 U. S. 1, 27; Re Hecox, C. C. A., 164 Fed. 823.

8 Re Spalding, C. C. A., Second Ct., May 1905, reported in Re Oakland Lumber Co., C. C. A., 174 Fed. 634, 637; Re Desrochers, 183 Fed. 991; Re Standard Cordage Co., 184

New York it is the practice of the Supreme Court, in such a case, to instruct its receiver to apply to the Federal court to set aside the appointment there made and to appeal if such application be denied. The filing of a suit in equity in the District Court of the United States by a trustee in bankruptcy, to set aside as fraudulent a conveyance of mortgaged premises. by the bankrupt and an interlocutory judgment in his favor therein, was held to be no ground for vacating an order appointing a receiver of the mortgaged premises in a suit of foreclosure subsequently brought in the State court.10 A District Court of the United States will enjoin a suit in a State court, begun subsequent to an adjudication of bankruptcy, to take possession of property held by the bankrupt or his trustee.11

The rule as to proceedings in admiralty is not so clear. It has been held that the appointment of a State receiver, who had not filed the statutory bond, nor taken possession, is no bar to the seizure of a boat by the marshal under process in admiralty.12 That a vessel can be seized by the marshal under a libel in admiralty, to enforce a lien that arose for repairs before the appointment of the receiver, when the seizure is made after such appointment; but before the receiver has taken actual possession or notified the master, or any person on board the vessel, that he has been appointed; 13 but that a tug, attached under process of a State court and delivered by the sheriff to a receiver appointed by said court, cannot be taken from him by a marshal of the United States in proceedings in admiralty upon claims that arose against the tug before his appointment.14 That, upon a similar claim, a marshal cannot take property from the hands of an assignee under the insolvency law of Minnesota.15 That a vessel operated by a State receiver can be seized in another State by the District Court of the United States, upon a libel in admiralty to enforce a claim that arose

Fed. 156. So held when an assignee in insolvency was in possession, Re Rosenthal, 144 Fed. 548, 549.

9 People v. P. V. Rovnianek & Co, N. Y. L. J. Jan'y 12, 1911.

10 Mutual Life Ins. Co. v. Fleischman, 149 App. Div. (N. Y.) 23.

11 White v. Schloerb, 178 U. S. 542, 44 L. ed. 1183,

12 Moran v. Sturges, 154 U. S. 256, 38 L. ed. 981.

13 The Lotta, 65 Fed. 319.

14 The E. L. Cain, 45 Fed. 367.

15 The J. G. Chapman, 62 Fed. 939.

a

during his management of the vessel.16 That the seizure of boat owned by a partnership upon a libel in admiralty to recover damages caused by a collision and the giving of security by one partner to free the boat from custody does not prevent another member of the firm, while the procedure in admiralty is pending, from suing in a State court for an accounting of profits.17

§ 60. Froperty in the custody of another Federal Court of Equity. The different District Courts of the United States, acting upon the principle of judicial comity, usually, when property has been taken into the custody of another District Court, or when proceedings have been instituted therein for such a purpose, refuse to interfere with the same. Thus, where proceedings to cancel a mortgage had been instituted in one district, the Federal Court of another district stayed proceedings upon a bill therein filed for the foreclosure of such mortgage until the determination of the first suit. So, where a receiver has been appointed to take possession of certain property, such as a railroad, which is situated in several districts, it is the usual practice for the District Courts in the other districts to appoint the person as ancillary receiver of the property within their territorial jurisdiction; 2 to treat the court in which the proceedings were first instituted as that of primary jurisdiction

same

and the

of principal decree, and to make the administration of Property in the latter court ancillary thereto.3 Accordingly, the court of ancillary jurisdiction refused to direct the payment of a judgment against the corporation recovered in a court within its district where an account of the funds

State

in its receiver's hands was necessary, and referred the petitioner the court of primary jurisdiction for relief. This rule however, is largely within the discretion of each District Court,

to