The New York herald., 1870-02-15
UNITED STATES CIRCUIT COURT.

q ~. f0hO are creditors Of the said H,fnOer ana
Abraham B. CtarA) .ror Writ Of Prohsosttoa.-
1aagc Woodruff, in rendering decision in this case,
says:-Tnc petition shows that upon the petition Of
creditors OF Abraham Bininger and Abraham B.
Ozark, composing the lrm OF A. Bninger 4 Co., the
latter have, by decree Of the District Court been
adjudged bankrupt and that the SAID Clark Is now
prosecuting IN this court IN pursuance Of the sec
ond section OF the Bankrupt law, proceeding for
the review OF that adjudication; that prior to the
institution or thc proceedings In bankruptcy In the
District Court the said CLARK had fled his bil
IN the Superior Court of the city Oi New York
against his partner Bnlnger. Tor account
Ing and rUr tile settlement OF the affairs oi the
cupartncr,nlp the ment Ot Lhe debts the dis
t.Uuiiun Oi Tie assets, ana therein receiver had
been appointed VINO was, or claimed to be- IN the
poseSs,cE vi the property OF t'e nr: tnat after
proceedings IN bankruptcy were instituted the said
Clark commenced SucceSsiveiy two actions IN the
ead court, und procured from that tribunal lnjunc-
toss restraining tue pctlOnlng creditors from prose-
cuting tine said proceealnse. What then, Is the ju-
rIsdicon winch this conrC has over the proceedings
SET i0rth in tine petiuon9 First--Bv petition OF
review Clark, Tue plaintiff III the actions the Su-
perior Court has sought in TINS court
decree vi the District Court wherein he is adjudged
Q bankrupt, aDd, Tor the purposes OF tnat review
THIS court has acquired ]urlsd coD OF those proceed
ings. But the 0i that jurisdiction is In no
WISE obstructed lnterered with oy The actions
prosecuted by him In the Superior Court. lie may
pursue tliat appeal t. the reylsory power OF this
court, and the respondents therein may here insist
upOn the correctness OF The decree OF the District
Coart. and tnis court Will proceed TO hear and re-
the pcndency or the prosecution Of those acLlons
and the action OF this court III the matter OF that re-
view terminates with sucn afrnance or reversal
II such decree ts an rmed the decree tne District
Court stands the decree OF that and not of
this and 70 be carried into due execution by that
AMI not TINS Court Second-Ihe argument of the
counsel for tho petitioners involves the assumption
tat " ioree q tDe second section Of the act OF Con-
gfess commonly called the Bankrupt law tins court
possesses, coneurrenty with the District Court all
the powers conferred Dy the hrst section upon tue
last named court. Aud, therefore. Whatever i'm
pedes the execution Of the deerecS Of the
district Court or oostructs or interferes
the oankrupts by tnaL court warrants the peCtion-
er in insisting tnat the exercise OF Jurisdiction
OF this court IS obstructed or hindered and in
olaing in this court that the writ Of prohibition is
necessary. In the 1rst place tlis ovcrloOKs toe
familiar doctrine that wnere the jurisdiction OF the
TWO courts Is concurrent the one Whca first obtains
jurisdiction OF the subject matter and Of the parties
Dy The actual institution OF Proceedings therein
holds such jurisdiction cXcluslyey VI The Otner.
But III the next place The act Of Congress not
SO bend or c0nlOund the two cour III the admins.
under tn1t act, as under all others, and exercise
separate jurisdiction, each IN lib own sphere For
the purpose Of carrying out the provisions OF the
Bankrupt law the District Courf mas ample ana ex-
cHsAve power. Tins jurisdiction, which given for
revisory and perha s advisory purposes to zoe Cir
cult C0urr,lt can exercise Notwithstanding the pend
eLCy AMI The prosecution Oi tue actions mentioned
III the petltlon herein The exercise Of tnat juls-
dtction i5 not o0sructed by anyInng SHOWN by the
petition Ine jurisdiction or court In the case
In question, 80 lar as shown Oy lne petition
ior The writ OF pronioltlol arises on petltlon
Tor review OF the a0Judlcauon made in the District
Court declaring BlalIBef Clark DankruptS. inere
is no mpednent To the exercise or that jurisdiction,
the alleged proceedings in Inc State cOlrt III nOwlse
latel1ece herewith. prohibition or sucn action
In The oaIc court as Is set oat the petition Is not
ne essdry Tor the exercise or aIy Jurisdiction in the
matter OF the bankruptcy OF Bininger II Clark,
winch the Circuit Court has acquired. This court
can review, III Tie manner aud Tor all the purposes
Contemplated by tue second section OF act the
ofuers occasions and decrees already made or
which may be made Ia tue District Court such re-
view caupot De rendered. imperative or lnenecIual
by any ACTION OF tne STATE COURT IL belongs to tne
District Court and not 10 Inis to carry into eXecu
ton It's orders ana DEGREES. H. therefore, was as
8uned that q State court stands III such relation
t. the ieierA court tnat, "agreeapiy TO the prin-
cipes aud usayes OF law,n writ Of prohibition
could be ISSUED Dy the latter TO the former, the Dctl
uon before Us does not prcsenL case In winch such
writ Is necessary " the exercise our jurisdiction.
! have preferred to place The opinion upon the
grounds above stated not only because these ques-
tions o the const OF lie second section are
Oi Immediate practical Importance. out also be-
cause they are directly nvO.ved III and are decisive
Of other motions pending before us IN the same pro-
cee0lngS III bankruptcy nlentlOned Ia Inc petition.
Inc motion must be denied.
Another Phnae OF the Einingcr.Clark Case
Petition to Have the Properly Now Under
Seizure by Judgment Of tho State Court
Delivered to the United states Marshal.
In The Matter or Abraham b. CLARK and Abraham
Bintnger, Bdos,upts on the Petition or John S.
Eec1he7. Assignee IN bankruptcy or the Estate and
EDects OF the sdid Ba1ska'lLts.--Judgc Woo1run
says:-The petitioner herein applies for an order
10 lake posScSSiOu Oh Tile
estate and property Of the above mentioned bank
rupts, an order restraining and enjonng the bank
rupts and certain persons heretofore appointed
ceivers OF the SAID JOINT property n an action pend
lnR IN one ot tie STATE courts between the said
balikrup;s for the settlement OF their cOpartnershp
niiaIrs from any interference with the sad property,
40 The END tina, tne sad property may be brought
southern DISTRICT oi New YORK, or wtlii the Jurls-
dlctlon OF this court Ana that tle District Court
or TINS court, mag collect rac ass cts OF The said
bdnKrupts, ascertain ana liquddte HenS, adjust
prlorltes and conflicting interests, mlrshl and DIS
pose 0l Lne iunos " secure the rights or all
lurtcs, and make due di5rlouC,on amolg all the
credtoS and that theIeupOn the proceedings on tnis
petI,lon may De continued by order OF TINS court in
Inc SAID District Court and Lnat The said Clark may
lie restrained ana clloined from 1urtner prosecuting
his SAID acuon against blniager IN The State court,
and that lie Dc directed tO permit the petitioner
(as5gnee In bankruptcy to prosecute such In
inc name OF the said Clark, and by SUCH attorney
the petitioner lEay employ, AMI lor sucn other or
fuItner order or relief as inay be proper.
The Question as TO the Jarisdicfion of the
Federal and state Courts in Bankruptcy
Proceedings.
In the Matter or Abraham Bintnyer ana Abraham
B. Clark, Bdnc,',tpts- S. Bseaher vs. Abraham
Binn0er ct aL-Judge Woodruff again says:-In
deciding the various motions which have been pre-.
sented to the court IN the above proceedings, the
facts alleged ana the claims OF the parties have
been more than once reclted. For the understand.
ing of the present motion IL will suclce to say
lnat Abraham B. Clark has brought this pc.
ution oil review 70 this court, alleging that
the decree Of the District Court adjudging
him and his copartner Btnnger Dankrupts s crrone-
GUS aud ought to De reversed. He has also CON-
menced actions against the petisoning creditors
she Superior Court or the city OF New YOrk, COM
planning OF the conduct OF those creditors petition
ing such decree, alleging that tue decree Is
neOus In law and IN fact, and that 1t was sought
through improper motives and W colluson with MS
late puEtner and has obtained Q temporary inJunc-
tion to RESTRAIN their prosecuting their proceednQs.
Thc pcttioning crcdit0rs now move thae TINS Court
by its order REQUIRE MIN to elect whether he Will fur
ther prosecute his petition OF review In this
court or those actions IN tho state court,
and that unless ne elect TO abandon and
discontinue tho latter, his said petition OF
review be dismissed. 1t would not be respectful
20 the State tribunal to that the decree or
judgment Of the district Court or OF this court would
not be regarded conclusive ior all the puf-
pose for whicn Is conclusive here That however,
y not to be discussed on this motion II the peti-
ti0uer piosecutes his review in due form ana DO
without falt therein, deem 1t proper TO hear 1t.
We musi therefore, decline " require the petitioner
20 make the election sought on PAIN Of dismissal Of
hn proceedings
cunrp1p r6Inr--ruANprns