Grand River times. [volume] (Grand Haven, Mich.) 1851-18??, 1851-10-29

law hcp., VOL d UcW SeTleS, mo. lie UiODe,
vol. 5, new series. No. 10.
1t is clear that the State Court had jurisdiction
full and complete, of the proceeding referred to,
and that this vessel was rightfully and legally
attached by the sheriff of Racine county before
the filing of the libel or the service of the moni-
tion in this case. IT, as has been shown, the
State law had created lien, whereby this Court
can acquire jurisdiction by admiralty process in
rem. then there would be concurrent jurisdiction
in both Courts; and in that case the right to
maintain the jurisdiction must attach to that tri-
bunal which first exercises it and takes possess
ion of the thing in litigation. In order to avoid
clashing ofjurisdiction this course is indispen-
sible, and has been enforced in the national
courts in numerous instances. The authority
OF the Sheriff to attach, and right to hold, this
vessel, by virtue of the process in his hands, can
tody of the law, and the Marshal had no right
In such cases the Marshal or Sheriff should Ell
ther retain the process until the first case is dis
posed of, or should return it not served, on ac-
count of a previous attachment or levy, so as to
avoid conflict of jurisdiction. The proceeding
in the State Court is in the nature of suit IN
rem, and the necessary result of such proceeding
custody Of the law. 1t must necessarily be in
the possession or under the control of the court,
and the Court has right to order it to be ta-
ken into the custody of the law. The ship
Robert Fulton, Paines e. c. Rep. $40. Jen-
nings Us. Carson, 9 Peters Cond. Rep. 2. Peck
US. Jenness, 7 Howard 6l2. This, though, is
not applicable to the case of the paramount right
of libellant to enforce a maritime lien in pref
fn m nft fra n on nSt n
owner of vessel for simple debt.
The attachment of property, by an officer,
presupposes a right to take the possession and
custody of that property, and to make such pos
session and custody conclusive. If the officer
attaches upon mesne process, he has right to
hold the possession to answer the exigency of
the process If he levies upon an execution he
is bound to sell according to the command Of
the writ. In Hagan Us. Lucas, 10 Peters 400,
the sheriff had levied an execution on personal
property, which was subsequently levied on by
the Marshal. Mr.. Justice Mclean in delivering
the opinion of the Court, says -" The first levy
whether it were made under the federal or state
authority, wthdraws the property from the reach
of the process of the other. Under the state
jurisdiction, sheriff, having executions in his
hands, may levy on the same goods; and where
there is no priority, on the sale of the goods,
the proceeds should be applied in proportion to
the sums named in the executions. And where
a sheriff has made levy,and afterwards receives
executions against the same defendant, he may
appropriate any surplus that shall remain after
satisfying the first levy, by the order of the
court. But the same rule does not govern,
where the executions, as in the present case, is
sue from different jurisdictions. The Marshal
may apply moneys, collected under several ex-
ecutions, the same as the sheriff But this can
not be done as between the marshall and the
sheriff. A most injurious conflict of jurisdiction
would be likely, often, to arise between the fed
eral and the state courts, if the final process of
the one could be levied on property which had
been taken by the process of the other. The
marshal or the sheriff, as the case may be, by
levy, acquires a special property in the goods,
and may maintain an action for them. But if
the same goods may be taken in execution at
the same time by the marshal and the sheriff,
does this special property vest in the one or the
other, or both Of them! No such case can ex-
ist property once levied on remains in the Gus
tody of the law, and it is not liable to be taken
by another execution, in the hands of differ
ent officer, and especially by an officer acting
under different jurisdiction" This opinion is
reiterated in Brown Us. Clark, A Howard. In
Knox u.s. Smith, Howard 298, the property
levied on by the marshal was taken from his
possession by the sheriff, upon an injunction
and process from State court, similar in eff
feet to a writ of replevin, at the suit of third
person claiming, under deed of trust. A bill
filed in the Chancery side of the United States
Court, to set aside the sheriff's levy, was not
sustained because there existed plain remedy
at law. The marshal might have brought tres
pass against the sheriff, or applied to the Court
of the United States for an attachment. In
Peck U.s. Jenness Howard 6l2, an attachment
was issued from the State Court and served,
which, according to the laws and practice of the
state of New Hampshire, was lien on the
goods attached The defendants in the attach
ment afterwards obtained discharge under the
bankrupt law, and their assignee claimed the
goods previously attached. Mr.. Justice Grier,
in the opinion, says: I" It is n doctrine of law
too long established to require citation of au-
thorities, that where court has jurisdiction, it
has right to decide every question, which &C.
ours in the cause, and whether its decision be
correct or otherwise, its judgment, till reversed
is regarded as binding in every other court and,
that where the jurisdiction of acourt and the
right of plaintiff to prosecute his suit in it,
have once attached, that right cannot be arrest
ed or taken away by proceedings in another
court These rules have their foundation not
merely in comfy but on necessity. For if one
may enjoin, the other may retort by injunction,
and thus the parties be without remedy; being