Year: 1867

The steamer Circassinn Agnin-MotiOn TO


strike Out n Ciaim-Judge Benedic's
Opinion-Intcresting TO Shcrihs and Others.
Before Judge Benedict


The Seamer Csrcassian ada Jonathan Bischofschsen--
This action is in against the steamer Crcassian to
bottomry bond and process having been issued
against the vessel the Marshal has seized it. Upon the
return Of the process among other claimants who ap-
peared the Sheriff OF New York city, who filed
clam, averring that he in possession OF tho Cir.
cassan at the time Of the alleged attachment thereof by
the Marshal OF the Eastern district and prior TO any at
achment or custody Of the vessel by the Marshal that
he was lawfully entitled 70 such possession under divers
attachments and process issued him out OF the
preme Court in due form of aw, and that these
he has sold the vessel Counsel for ibellant moved that
tne Claim oe stricken out The following Is Judge Ben


do not conceive that this court has any power, BY
TO submit himself and with him the tribunal which he
represents to the jurisdiction Of this court and greatly
doubt the power Of the Sheriff, BY making himself
party TO proceedings in rem In this here pro-
posed to bring proceedings pending in State tribunal
before this court for adjudication asst their validity
Is not seen how the decree of Ibis court adverse TO
the legality Of the proceedings pending the State tr-
buua should such decree be made upon the issue sought
70 be raised bv the sher could be rendered effective to
stay the action ofthe State court and any determination
which this court might make upon such issue would
seem to be migratory What is desired by the
Sheriff is to bring to the notice of this court the
fact that the Marshal of this district has under.
taken to seize vessel which was in the custody



ceedings pending tribunal OF the State In order that
this its hand and allow the proceedings in
the State tribunal without interference To
compish this two ways lie open TO the Sheriff. He
may bring the facts before the court whose officer he is
and that court has full power protect its custody
il such 1t has, or he may bring the facts before this
court by petition and this court to instruct its
officer to withdraw from the vessel And whenever the
latter shall be adopted this court VIII always be
prompt investigate the facts and soicous to respect
the action Of the State officers and will always avoid
conflict of authority whom II Is possible TO do so consist
entity with law and justice. This method of procedure II
followed in the of conflicting jurisdictions which
sometimes arise in harbor like this will in most
instances result in a summary and tnai deter.
mination of the question OF possessi on between the
officers of the respective courts and promptly relieve
those officers well the courts themselves from
many of the embarrassments which otherwise attend
such controversies il arise where questions or
novelty and difficulty found TO be involved as
10 make final disposition of them upon summary pc
tition inadvsable, IL will be made apparent to both
the outset that disputed jurisdiction is neces
sariy exercised to injustice and not from any
Of regard respect for the action OF another r
buna 1t may be doubted whether the sheriff. II he
appears in anaction in rem, and makes himself party
by fling claim to the vessel s in position to insist
that vessel is not in the custody OF the court The
appearance and claim amount TO acknowledge
Of seizure by the Marshal and seizure acknowl
edged by the Sheriff would, doubtless give this court
jurisdiction Of the property. My opinion, therefore, Is
that the claim and appearance of the Sheriff should be
strken out and leave given him to apply by petition for
the relief which he desires T"