The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-14

honnd to eIecnte the c3mm )nls and carry out
tbe will M fhe legislative authority. Thus
both in its object and uses, aud IN the IaSaus
bv which they we're to be ATTAINED, tne Sta.e
having entire control of the institution coar-
acterizes it as a public servant, s;a IT'S omcefs
standing in the same relallon. (Opiniou -
Story, j., 4 Wheat, 66e
The fact that it could bind itself and It's re-
sonrces by its contract and become amenan!e
to the judicial authority, does not alter tnls
view of the case, for many public othcerS pos.
seas the same degree of competency without
Changing their relations to the public author
itv.
THE DUTY IN THIS CASE CAN BE ENfoHcED ei
MANDAMUs.
The respond.nts being public servants. as
between the State and themselves, the act OF
July created duty to deliver to the Govern
or the fund in question to the extent OF tlie
control they might have over it, and, failing 10
do so, the State was entitled to remedy 70
enforce the performance Of such duty.
That the act required was mnisterlai ;luu
left nothing to the discretion OF the responurc
ents. results from the absolute character OF
the command, as well as from the nature OF
the act itself. ,...;.ot1,.
The act required is clearly and distinctly
commanded as o specific duty in Thlch tne
State is alone concerned, so far as can pe ga'n-
err from the statute.
The next question that arises is whether
anv other specific remedy than that by mandd-
mus has been provided. The statute IN ques-
t,on provides no remedy, and therefore the
question is to be governed by general prlnc.-
ples of law; for case like the present feanod-
mus IS O specific remedy devised Tor the very
purposes OF meeting the want OF general rem
edy by action. It meets the very case where
a specific act ought to be performed and IS
withheld, and where compensation IN some
other form would not equally serve the pubic
interest.
i must, therefore, conclude that the remedy
has been well chosen, and proceed to the con-
sideration of the grounds that have been
urged as bar to the present form OF proceed
ing.
LIS PENDENs.
The respondents set up the pending of suit
in equity in the Court Of Chancery OF this
State, in which Dabney, Morgan d Co.. are
| complainants, and respondents and others are
defendants, in which the complalnants cialnl
as bilholders of the bank and rest equltaolc
remedies against the assets OF the bank; also,
certain orders made in such suit, and contend
that by reason thereof jurisdiction in this case
is ousted, both as 1t regards the fund IN con-
troyersv and the respondents who have Its GUS
tody.
which this claim rests. ,.r =
Dabney, Morgan & Co. filed their bill IN
equity, in October, 1867, alleging that they are
holders of bills issued by the bank; that the
bank is insolvent; they seek discovery anu
| account Of the assets of the bank, and q de-
cree annullin :, as unconstitutional an act OF the
Legislature, nassed in 1868, so far as the samo
| assumes con rel over such assets, and to Gre
| ate certain preferences in regard to the same
prejudicial to complainants, and also to be
paid out of the assets OF the bank, according
to the rights and priorities adjudged to the
i 1xo,- N1n Jrnd
| equitable, thereon. They also ask an lnJunc-
ton and receiver Of the fund.-
The president and directors OF tho bank are
| made parties defendant TO the original Dill.
The Attorney General was afterwards, with bus
consent, made party in behalf OF the State, for
the purpose of validating the act OF 1860, and
certain other creditors Of the bank were like
| wise made parties defendant.
Answers were interposed by the several de-
PENDANTS, that OF the bank admitting its insol,,
yency and upholdirg the preferences created
BY the act of 1868 The Attorney-G eneral ans
wered in behalf Of the State, enforcing the
validity of the act of 1865.
| An order was made by consent, March D.
| 1868 which, oy anticipation, directed that upon
the coming in OF the answers or the bill
being taken pro coyesso for want Of an answer,
the cause should stand referred to master to
take proofs. Directions were given for the
Master to advertise for the appearance OF The
creditors OF the bank. The president and di-
rectors were also ordered to account before the
Master for the ''capital, property ana assets. s
| in their hands or under their control Ihe
creditors of the bank wete enjoined from pro-
scouting al law or in equity, except as parties
| to such suit, and McsSIs. Furman and Warlng,
tn president and cashier, were eDjoined from
paying the assets to the creditors unit! the
herring. Instructions were given as to cur
rent expenses, and as to changing the form
of securities, and all parties wero allowed leave
to apply for additional orders.
The case has not yet proceeded to hear
| ing. Does the pending OF TINS sult ouse INC
| Jurisdiction asserted in the present case?
| The general rule Of law on this subject is
well stated in Conkling's Treatise, page 273,
as follows: "The rule is then that between
courts Of concurrent jurisdiction the court
| that first attains possession OF the controversy
or of the property in dispute must be alloweI
to dispose of it finally without interference OF
interruption from the coordinate court. 1hls
well settled rule is equally applicable between
Courts of Equity and Common Law, and be-
tween Courts of Common Law; and 1t has
been repeatedly asserted and enforced by the
| Supreme Court between the National and State
Courts
The decisions Of the Supreme Court of tho
| United Statos are entitled to tho greatest
weight as bearing on this subject, even where
not possessing conclusive authority, from the
| fact that the possession OF teQeral authority
would naturally incline them to decide this
rule within the narrowest limits, with view
to secure the largest efficiency within the nee
essarily limited sphere Of original Fede al ju
risdiction.
TAYLOR VS.. Carryl 10 Howard, 5S3) is q strih
ing illustration Of this rule, arising out OF {
conflict between tho United States Distric
Court IN Admiralty and State Court acting
under process OF foreign attachment. The
claim in admiralty was for seamens wages; IL
the State Court, that of o general creditor
having no lien upon the vessel, the subject
controversy, except that obtained through tht
foreign attachment. 1T was strenuously CON
tended that the case OF libol for seamen'
wages IN admiralty formed an exception to tnt
general doctrioe embraced in the rule above
Stated. The court, however, was OF op:nio1
that the general rule as to co-ordina. e jurisdlc
tious was applicable to tho case, and sustainet
The authority of the State Court, which hat
first gainsd possession of the subject OF tn
controversy. The cases in the Supreme Court
depending on this principle were carefully col
sidered in this case, and the rulo viudicate(
substantially, as laid down in ConklinS's Urea
! ..i;se a5oye oitod. Campbell, j., delivering tn
opinion of the court, Giles approvingy th
Authority of Hare 472, to the proposition tina
the ''Court Of Chancery docs not allow tn
possession Of its receiver, sequestrator, com
mittee or custodee to be disturbed by party
whether clai ming By title paramount. or unde
the right which they we're appointed to pro
. ioot IIa oootands that the nDaSpasiOn q