author: Mr. Justice McLEAN

text:
    Isaac Shelby, Complainant, v. John Bacon, Alexander Symington, Thomas Robins, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, Thomas S. Taylor, and George Beach.
    By a statute of Pennsylvania, passed in 1836, “assignees for the benefit of creditors and other trustees ” were directed to record the assignment, file an inventory' of the property cofiveyed, which should be sworn to, have it appraised, and give • bond for the faithful performance of the trust, all of which proceedings were to be-had in one of the State courts.
    This court was vested with the power of citing the assignees before it, at the instance of a creditor who alleged that the trust was not faithfully executed..
    The assignees of the Bank of the United States chartered by Pennsylvania, recorded the assignment as directed, and filed accounts of their receipts and disbursements in the prescribed- cpurt, which were sanctioned by that court.
    A citizen of the State of Kentucky afterwards filed a bill in the Circuit Court of the United States for the Eastern District of Pennsylvania, against these assignees,.who pleaded to the jurisdiction of the court.
    The principle is well settled, that where two or more tribunals have a concurrent jurisdiction' over the same subject-matter and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other. '
    But-the proceedings in the State.eourt cannot be considered as a suit.. The statute was not complied with, and even if it had been, the Circuit- Court would still have had jurisdiction over the matter.
    This cause came up on á certificate of division of opinion between the .judges of the Circuit Court of the United States for the Eastern District of Pennsylvania.
    The complainant was a citizen of Kentucky, and the. defendants were all citizens of Pennsylvania. The latter (under three assignments bearing date the 7th of June and th‘e"4th and 6th of September, 1841) were trustees of the Bank of tne United States, a banking institution incorporated by the Legislature of the State of Pennsylvania, by an act passed on the 18th day of February, 1836.
    It appeared that the bank, being unable to meet its liabilities, made an assignment of a part of its property on the 1st of May, 1841, to certain trustees, to secure the payment of sundry post-notes, held by certain banks of the-city and county of Philadelphia. Afterwards, on the 7th of June, 1841, it made another assignment of a portion of its property to the defendants Bacon, Symington, and Robins, in trust to secure the pay-, ment of its bank-notes and deposits. Subsequently, two other assignments :were made by the bank to the defendants Robertson, Bayard, Newbold, Cope, and Taylor, in trust for the pay-ment of its debts generally, the first of which was executed on the 4th, and the other on the -6th of September, 1841. These several assignments were duly recorded, and the trustees accepted and proceeded to minister the trusts.
    The bill and amended bill, after setting forth the chartering-of the bank, and the assignment of its property to the defendants in trust, alleged that on the'6th day of September, 1841, one George Beach, a citizen of Pennsylvania, recovered a judgment in the District Court for .the city and county of Philadelphia, against the said bank, for the sum of ¡$ 53,688.66,- besides interest and costs ; that this judgment Was founded on promissory notes of said bank, called post-notés. That subsequently the said George .Beach, in a suit on said judgment, in the Commercial Court of New. Orleans, recovered a judgment for the sum of $ 53,688.66, with interest thereon and costs; on which the sum of 0 4,075 was paid; and - that, >the residue of both said judgments remains unpaid. The bill then alleged, that through several mesne assignments the complainant became invested with all right under said judgments; that the debt due is provided for in said assignments, but . that the trustees have refused to pay any part thereof; and that they have kept complainant and other creditors in ignorance of the situation of the trust funds. Prayer for a decree for an account of the trust, for the payment of complainant’s debt in full or a distributive share thereof, and for general relief.
    The defendants Robertson, Bayard, Newbold, Cope, and Taylor pleaded, as follows: —
    “ That the said corporation mentioned in said complain ant’s bill, viz. the President, Directors, and Company of the Bank of the United States, incorporated by the State of Pennsylvania, and having its banking-house and chief place of business in the city of Philadelphia, did, on the fourth and sixth days of September,, in the year one thousand eight hundred and forty-one, execute and deliver to these defendants assignments and transfers of certain property upon trusts therein particularly. set forth, — as by reference- to copies of said assignments attached hereto, and made by reference part of this their: plea, will fully and at large appear; that said assignments, after having been duly proved, were afterwards, to wit, on the fourth and seventh days of September, A. D. 1841, recorded, according to the statute of Pennsylvania in such case made and provided^ in the office for the recording of deeds, &c., for the city and county of Philadelphia, — the execution of the trusts thereof having been previously accepted by these defendants. And these defendants further aver, that, in accordance with the-provisions of the laws of the said State, of Pennsylvania, full and complete jurisdiction of and over the said trust fund so conveyed to these defendants, and of and over the execution of the said trusts, and of and over these defendants personally, as trustees as aforesaid, was and is vested in the Court of Common Pleas of the city and county of Philadelphia, which now has cognizance bf the same, with ample power and authority in said tribunal to enforce the execution of the said trusts, to decide upon the rights of all parties claiming an interest therein,. and right and justice fully, to administer in the premises; that, in the. execution of the trusts aforesaid, and the collection of the assets so assigned to them, these defendants have been governed by the laws of Pennsylvania, and, among other things, by certain laws of the said State, by which they have béen compelled to accept and receive from their debtors, in payment- of debts due to the said bank of to the said trustees, at par, the notes and.other evidences of debt issued or created bv the said bank; and the defendants further aver, that, having in part executed the trusts so as. above committed to them, they did, on the seventh day of January, A. D. 1843, file in the officé of the prothonotary of the Court of Common Pleas aforesaid an account, duly verified, of their receipts and disbursements, and «of their acts and doings, as trustees as aforesaid, from the commencement of said trust down to the first day of January, A. D. 1843; and subsequently, to wit, on the thirteenth day of January, A. D. 1844, they did file a further account in the office aforesaid, and duly verified as aforesaid, of their receipts and disbursements, acts and doings, as aforesaid, down to the first day. of January in the year 1844, which said accounts Were absolutely 'confirrixéd by the said court, agreeably to the laws of the said State; and the defendants further aver, that on the seventeenth day of January, 1845, and on the thirteenth day of January, 1846, respectively, they filed additional accounts as aforesaid, in. the office aforesaid, showing their receipts and disbursements, acts and doings, aforesaid, down to the first day of January, A. D. 1846, which said last-mentioned accounts were referred by the said court to, auditors, who have made reports thereon, respectively, to the said court; arid the defendants further aver, that, on the fourteenth day of January, A.,D. 1847, they filed anotlier; account as aforesaicj, showing their administration of said trust down to the first day of January, A. D. 1847, which said last-mentioned account was likewise, referred by the said court to auditors, before whom the same is flow pending, — as bpreference to the records of the, said court will fully appear; and these defendants further aver, that, in'pursuance of the direction and decree of the said court, they have distributed and paid over large sums bf money, .being the proceeds of the assets assigned to them as aforesaid, and have likewise, under the direction of. the said court, invested large sums of money to await-the result" of pending . litigation, and in all other respects have conformed to the directions of the said court in relation to the trust aforesaid.

      . “ All which matters and things these defendants do ever to be true, and plead the same to the whole of the said bill, and. humbly demand the judgment of this honorable court, whether they ought to be compelled to make answer'to the said bill of complaint; and humbly pray to be hence dismissed, with reasonable costs and charges in this behalf most wrongfully sus-. tained.”
    The other defendants pleaded the same plea in substance, reddendo singula singulis.

    The cause coming on to be heard on the amended bill and pleas, the judges were divided in opinion on the following points.
    “ First. Whether the facts stated in the plea to' the amended bill .filed by John. Bacon, Alexander Symington, and Thomas Robins, deprive this court of jurisdiction of the case, and. whether the said plea is a sufficient plea to the plaintiff’s bill, and ought to be' allowed.
    “ Second. Whether the facts stated in the plea to the amended bill, filed by the defendants, James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, deprive this court of jurisdiction of ¿he ease, arid whether the said plea is a sufficient plea to the plaintiff'’s. bill, and ought to be allowed.”
    The following sections of the Act .¿f Assembly of Pennsylvania, of 14th June, 1836, were relied on in argument, and are therefore inserted,
    “Sect. VII. It shall be lawful for the Court of Common Pleas of the 'proper county, on the application of any person interested, or. cO-trustee or co-assignee, to issue a Citation tb ány. assignee or trustee for the benefit'of creditors., whether appointed by any voluntary assignment, or in pursuance of the laws relating to insolvent debtors and domestic attachments, requiring such assignee or trustee to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court,, within a certain time, to be named' in such citation.
    “ Sect. IX. The several Courts of Common Pleas shall, by a general order, or by such order as the circumstances of anparticular case may require, direct the próthonotary of the .same court to give notice of the exhibition and filing of every account as aforesaid, during súetr time, and in such public newspapers, as they shall appoint, setting forth in such notice,. that the accounts'will be allowed by the courts at a certain time, to be stated in such notice, unless cause be shown .why such.account should not be allowed.
    •“ Sect. XI. Whenever it shall be made to appear in a Coutt • of Common Pleas, having jurisdiction as aforesaid, that an assignee or trustee as aforesaid has neglected or refused, when required by law, to file a true and complete inventory, or to give bond with surety, when so required by law, or to file, accounts of bis trust, or that such assignee or trustee is wasting, neglecting, or. mismanaging the trust estate, or is in failing circumstances, or about to remove out of the jurisdiction of the court, in any such case it shall be lawful for such .court to issue .& citation t& such assignee or trustee to appear'-before the court, at a time to be therein named, tó show cause why he should not be dismissed from his trust.
    Sect. XII. On the return of such citation, the court may require such security,.or such other and further security from such assignee or trustee, as they may think reasonable, or may proceed at once to dismiss such assignee or trustee from the trust.
    “ Sect. XIII. The like proceedings may be had whenever it shall be made to appear to such court, that any-person who shall have become surety for any assignee or trustee as aforesaid, in any bond, given for the due execution of the trust, is in failing circumstances, or has removed out of this Commonwealth, or signified his intention so to do.”
    Thé case was argued by Mr. Clay, for ibe complainant, and by Mr. Wm. A. Porter and Mr. George M. Wharton, for the defendants.

      Mr. Clay, for complainant.
    The Bank-of the United States, chartered by the State of Pennsylvania,'having become insolvent, executed several deeds of trust conveying all their assets for the purpose of paying their debts, according to classifications, of them described in the said deeds. By two of the. same deeds provision was made for the payment of the debt of the complainant, to recover satisfaction for which is the object of this suit. That debt originally existed in the form of post-notes. These post-notes were reduced to a judgment.^ in the name of George Beach, obtained in the Court of Common Pleas of Philadelphia. This judgment, by various assignments, was transferred to the complainant, and became his property.
    The defendants refused to pay the. amount of this judgment. They refused even to recognize the complainant as one of the creditors of the bank, who was entitled to a ratable proportion of the assets of the bank, transferred to the defendants, in common for his benefit and that of other creditors.
    It'was under these circumstances .that the complainant instituted this suit. The objects of this suit were, first, to compel the defendants to admit the complainant as one of the creditors, to receive., his. distributive share of the common fund'; second, to have'an account of the execution of the-trust, as.’far as the defendants had proceeded in it; third, to compel the. defendants to complete the execution of the trust, by collecting, selling, and distributing all the assets on which they have not previously administered.
    The complainant is a citizen of Kentucky, and the defendants are citizens of Pennsylvania. The parties, therefore, stand exactly in that relation to each other, which, according to the provision of the Constitution of the United States and the law of the United States, entitled the Federal judiciary .to entertain jurisdiction of the controversy. In consequence, the coihplainant brought this in the Circuit Court of the United States for the Eastern District of Pennsylvania.
    The defendants pleaded to the jurisdiction of the court. Thqir plea, in substance, is, that by the local laws of Pennsylvania jurisdiction is conferred upon one of her local tribunals over all matters of trust, to control, manage, and finally and exclusively to settle and close them. That the defendants have proceeded before that tribunal, in part, to settle and account for the assets which they have received; and that, they are only amenable to that local tribunal for the further and complete execution of the entire trust.
    The two judges composing the Circuit Court of'the United States for the Eastern District of Pennsylvania, being divided in opinion as to the sufficiency of this plea to the jurisdiction of the court, certified that difference, and the question and only question which this court has now to determine is, whether the' Circuit Court had or had not jurisdiction of the cause.
    That question involves two others; — first, had the complainant a right, by the Constitution and the law of the United States, to resort to the Federal tribunal; and secondly, whether he could be divested of that right by the láws of any State, in the passage of which he. had no voice. To which may be added a third question,. and that is, whether, if the State of Pennsylvania could divest a citizen of Kentucky of a right with which he is invested by the Constitution of the United States, that has been done by the laws of that Státe, and the proceedings which have taken place under them.
    The mere statement of these questions is an answer to them. The .Constitution of the United States expressly confides to the Federal judiciary all controversies arising between, citizens of different States. It is the constitutional privilege, therefore, of a citizen of one State to sue-a citizen of another State in the tribunal which is common to them .both. . He cannot, be deprived of this right by any act of the State of which he is riot a citizen. Nor is this right at all impaired or affected by the nature or object of the suit .which he prosecutes. It cannot be contended,'.that, because the subject-matter, of controversy arises out of the local laws of a State, he is bound to submit to the tribunals of that State, and is stripped of his privilege to appeal to the Federal tribunal. It is true, when he goes before the latter, that is bound, in the particular case, to administer the laws of. the State which govern it. But the Constitution of the United States is founded on the presumption, that the Federal judiciary will be less biased and more impartial in the administration of justice between citizens, of different Statés than' the local tribunal, of one of them would be.
    If, , by any arrangement of its own laws and tribunals, a State or Legislature of a State could divest the Federal judiciary of that branch, of its jurisdiction which relates to controversies between citizens of different States, it might, by other or similar arrangements, divest their judiciary of all judicial power granted to it by the Constitution of the United States.
    So Careful has Congress been to preserve to the citizens of different States their right to be heard before the Federal tribunal, that it has provided, by the act of 1789, that when a citizen of one State is sued by a citizen of another State, in a State court, the défendant may remove the cause into the Federal court.
    . It is not, therefore, true, as a universal proposition, that in cases of concurrent jurisdiction the court that first acquires it Cqn hold fast on the caseV tb the exclusion of the concurrent court.
    If the defendant fail to avail himself of his "privilege to remove the cau^e in due season, he deprives himself of the benefit of the Federal tribunal, and is. bound to submit to the local jurisdiction. But it is not pretended that the complainant in this cause has ever waived his right to the Federal jurisdiction. He.was no party to the proceedings.of the trustees in the Court of Common Pleas of Philadelphia. No process from that court was ever served upon him; no opportunity ever existed, therefore,'for him to remove the cause from the local to the Federal tribunal. And if such opportunity had presented itself,, the corqplainant, being only one of the numerous persons concerned iij the trust, could not have removed the settlement of the accounts of the trustees from the Court of Common Pleas of Philadelphia to the Circuit Court of the United States.
    ■ I submit, then, with great confidence, to the court, that the Constitution of the Únued States, which is paramount to all State constitutions- and laws, having,secured to Isaac .Shelby, the complainant, a citizen of Kentucky, the privilege of bring-. ing his suit in the Circuit Court of. the United States against the defendants, citizens of Pennsylvania, the power of that . State is incompetent to deprive him of that privilege. Upon an examination of the laws of Pennsylvania in relation to trusts, the-settlement of trustees’ accounts, *and the distribution of trust funds, it will be found, I think, that the jurisdiction conferred on. the several Courts of Common Pleas was only preliminary and precautionary, and not final and absolutely conclusive. The object was, on the one hand, to exert a salutary . supervisory authority over the trustees, to. prevent the waste and misapplication of the trust fluids, and, on the other, to afford, protection and security to the trustees, by the sanction of a court of justice, in the periodical settlement of their accounts, and in the investment and distribution of the trust funds.
    The provisions in the laws of Pennsylvania bear a strong similitude to the laws which prevail in all the States, in respect to the settlement of the accounts of executors and administrators. The County Courts and the Courts of Probate have full jurisdiction over executors and administrators, their removal, the settlement of their accounts, and the final distribution of the estates of the deceased. It has never been thought or contended that their jurisdiction excludes that of courts of justice, to which appeals are made for a revisal of the conduct and accounts of such-executors and administrators; and on such appeals, what has been done under the sanction of the County Court or Court of Probate will be so far respected as to be presumed to be rightly done, and the onus probandi will be thrown on the party impeaching it. So, in a case of the settlement of a trustee’s account before the Court of Common Pleas, the account will be .held primó facie evidence of a proper settlement, until the ccontrary be shown by the party contesting it.
    Assuming that the Court of Common Pleas -has any exclusive jurisdiction over these trusts and their administration, what is the extent of that exclusive jurisdiction ? It must be.limited to what has been' actually done by that court, or is "now pending before it. It cannot extend to the question, for example, of the rights of Isaac Shelby, which áre not submitted to that court. It cannot extend to what remains to be done in the execution of the trust, that is to say, in collecting outstanding debts, selling real estate and other property not yet disposed of, collecting the proceeds of sale, &c., &c. These are matters .which are not now before the. Court of Common Pleas, which' may- never be brought by the trustees before it, but which are properly ^nd.legitimately included in this suit.

      I made an examination into the laws of Pennsylvania in respect to trustees some time ago, and regret I have been unable to refresh-my recollection of them by a perusal at this time. If my memory does not deceive me, they recognize, if they do not expressly authorize, the investigation of the conduct of trustees before .other tribunals than the Court of Common Pleas.

      Messrs. Porter and Wharton, for the defendants.
    The judgment on which the complainant' claimed was recovered ^ after the assignments, and was assigned to him after the. accounts of the trustees had been settled in the Common Pleas-of Philadelphia, without exception or appeal. The complainant claims subject to the assignments, and not against them. When he took the transfer of the judgment, he was bound to inquire what had been done or permitted by his assignors. It is a fair legal presumption, that.he knew the accounts had been' filéd in.the Common Pleas, and that the jurisdiction of that court had attachéd to the subject-matter of the trust. Shall he be allowed to upturn what has been done in that court ?
    The law of Pennsylvania is, that such accounts, although partial,' are nevertheless conclusive in favor of the accountants, when properly, filed’, settled, and confirmed, Moore’s Appeal, 10 Barr, 435; Weber V.. Samuel, 7 Barr, 499. The trustees have relied on this principle, and have regulated their conduct by it. Shall they have its protection ? or shall they be required . to resettle their.past, and file their future accounts in the Federal court ?
    The argument of the complainant’s counsel-assumes that there is no such thing as a proceeding, and an adjudication in rent, which, by its operation on the subjectrmatter, shall bind the world, no matter who the parties claimant may bé, or where they may reside. In the case of a vessel seized under a replevin issued out of a State court, and process subsequently issued out of the. admiralty against the same vessel, the former retains the jurisdiction. Taylor v. Royal Saxon, 1 Wallace, jr. 311. Here the suitor was turned out of the admiralty, not for any defect in his cause of action, nor because the question .had been decided, but because the replevin was pending in the State court. In the case of an attachment of money in the State court, and, an action- against the debtor in the Federal court, the former, having first obtained possession of the subject, retains jurisdiction over it. Wallace v. McConnell, 13 Peters, 136. The question is not as to the original right of the party to come into this court, but is it a proceeding in- rem ? Has jurisdiction attached? Would'it produce collision of jurisdiction to disturb it ?.
    In opposition to the complainant’s positions, the defendants take the -following grounds: — -
    1. The party assignor, the Bank of the United States, being a corporation created by an act of the Legislature of Pennsylvania, was a local corporation, and, so far as a corporation can be such, was a resident or inhabitant of that State, was liable for its debts in the manner prescribed by the .laws thereof, and could only dispose of its property by virtue of the^said laws. - ■ “ ; .
    2. That becoming insolvent, and, in consequence thereof, making an assignment to secure .the payment of its debts, the validity and' effect of the assignment are to be- determined and regulated by the laws of. Pennsylvania.
    3. That the administration of the assets, under such an assignment, should be in accordance- with the laws of Pennsylvania, and under the direction . of the tribunal, and according to-the rules, which- those laws hayé prescribed. .
    4. That a suit like the present, brought to administer the trusts of the assignment of an insolvent local corporation, made to citizens of the same State, in. order to seeure.fhe nayment qf its debts, in pursuance óf the laws of that State, which contrab- and regulate the whole subject-matter, is' not_within the .jurisdiction of the courts of the United States.
    5. That even if the foregoing proposition be not correct, the jurisdiction of the State court had attached, by the filing therein of their partial accounts by the trustees, of the bank, and ju* risdiction over the subject-matter of these trusts having thus-become -vested in the State tribunal, the United States court could not withdraw the same therefrom.
    6. That the trustees, being subject to the jurisdiction .of the State court, and having partially settled" their account's under its authority, are compellable to settle their future accounts before the same tribunal; and, if the present bill be- sustained, will be also compelled to adjust and settle, at additional expense to the .trust estate, their accounts in a court of the United States, which may be governed by different rules from the State court, and may adjust the same accounts upon different principles.
    That court which first rightfully takes possession of the subject, or in which suit has been first commenced, or application made, or petition presented, or writ issued, shall retain-the jurisdiction until a final disposition is made of the matter in controversy. Smith v. Mclver, 9 Wheaton, 532; Pratt v. Northam, 5 Mason, 95; Merrill v. Lake, 16 Ohio, 373; Ship Robert Fulton, 1. Paine, 620; Peck v. Jenness, 7 Howard, 612; Campbell v. Emerson, 2 McLean, 30; Embree v. Hanna, 5 Johns. 101; Holmes v. Remsen, 20 Johns. 229; Hall v. Dana, 2 Aiken, 381; State v. Yarborough, 1 Hawks, 78.
    The jurisdiction .of the Common Pleas of Philadelphia has attached to the settlement of the trusts by the filing of the accounts. That court has. had exclusive possession of the subject for several years. Not only have proceedings been had, but questions have been decided and decrees entered. Why should the filing of a petition, or issuing of a writ, fix- the jurisdiction, and not the filing and adjustment of an entire account, the decree of the court on it, and the distribution of the balance exhibited by it? Why should matters of form work such important differences in result ?
    But what is the subject-matter to which the jurisdiction of the State court' has attached ? We answer, the entire trust yvhich the trustees have undertaken to execute, — the duties, and responsibilities imposed by the assignment, — the rights conferred by the property conveyed by it.
    - It is said, Why not allow the past accounts to remain stable, and compel the trustees to file their future accounts in the .Federal court ? The answer is, All the accounts are but parts of a whole, conclusive sq far as they go, but unfinished parts of .the same thing! Until the last account is filed, the work is incomplete. The .future accounts, if filed in the Circuit Court, must start with the balances ascertained in the Common Pleas accounts, and must contain items .similar to those embraced in the former accounts. That court has considered these items,- and entered decrees upon them. The Circuit Court may make a different decision on the samé subject. This is the collision of decision which it is the policy of the law to prevent, and which the rule regulating cases of concurrent jurisdiction was intended to prevent.
    In regard to the sixth and last proposition submitted, it will not be contended that this court has any power to terminate the proceedings in the Common Pleas. Other creditors have obtained rights which that court will not allow to be defeated. The statute of Pennsylvania directs attachment and imprisonment if the trustee refuses to file his account, and this court has no. power to deliver him. The trustees in this case cannot remove the proceedings into the Federal court, because they are not defendants in the State court, -as the Judiciary Act requires, and they are citizens of Pennsylvania, and not of another State. Whatever be the result of the present application, they will be obliged to continue to file their accounts in the State court. The practical consequences are. easily foreseen. They must give public notice to creditors to claim the. same •fund in two courts. A portion of the creditors will prove their debts in the Common Pleas, and the remainder in the Circuit Court. Some may claim ifi'both places. A creditor excluded by one tribunal may -apply to the other. - The courts, may readily differ in their views of .the facts presented by the accounts, and the principles regulating them. One court máy surcharge with one amount, and the other with a different amount. A dividend of fifteen per cent; may be declared in one court, and of twenty in the other. How are the trustees to pay ? If payment be made, with what balance shall the succeeding account start? At whose expense will the.litigation be conducted?
    If the prayer of the bill be granted, the' complainant is not benefited; if refused; he is not injured. If he alleges an error, he may go into the Common Pleas, and move to open the accounts. This court will not have surrendered any power which it possesses. It will only have said, that, as the complainant stood by while the settlements were made, it is too. late now to-open them. The effect on the trustees of granting the prayer deserves attention. They are officers of the law, and ar.e engaged in executing a public trust. Their office .is difficult and responsible, and they are entitled to the highest protection the law. can afford them. A protracted litigation must withdraw their time and attention from the execution of their trust, without an equivalent advantage.
   Mr. Justice McLEAN

delivered the opinion of the court.

This case comes before us from the Circuit Court of the Eastern District of Pennsylvania, on a certificate of a division of opinion between the judges.

The complainant, who is a citizen of Kentucky, filed his bill against John Bacon and others, assignees of the late Bank of the United States under the charter -om the. State of Pennsylvania. The bank, being in a failing condition, executed assignments of its assets for the benefit of its creditors, and of- eeftain creditors of the Bank of the United States: chartered by Congress.

The complainant represents himself to be a-creditor of the late bank, to a large amount, which is shown by judgments recovered in the “District Court” for the city and county of Philadelphia; and in the Commercial Court of New Orleans. That, on application to the trustees aforesaid, they refused to .pay the said judgments or any part of them, although they .have funds in their. hands or under their control, to pay the . debts of the bank, &e.

The defendants pleaded to the jurisdiction of the court. They admit the trust-as alleged, and aver that the assignments were recorded as required by the acts of Pennsylvania; and they aver that the Court of Common Pleas of the city and county of Philadelphia has ample power to enforce the trust, in regard to the fights of all parties claiming an interest therein. . That the defendants under those laws, at different periods dovtn to the 1st of January; 1847, filed their accounts, duly verified, “.of their receipts and disbursements, with the proth'onotary of the said court,” which were sanctioned by the court. That under its direction they have vested large sums of money to await- the result of pending litigations. And they submit to the court whether they ought to be compelled to answer.

On the hearing the judges were opposed in opinion on the following points: —

1. Whether, the facts stated in the plea to the amended bill filed by John Bacon, Alexander Symington, and Thomas Robins, deprive the court of jurisdiction of .the case ; and whether the plea to the plaintiff’s bill is sufficient and ought to be allowed.

2. Whether the facts stated in the plea to the. amended bill filed by the defendants James Robertson, Richard H. Bayard, James S. Newbold, Herman Cope, and Thomas S. Taylor, deprive the court of jurisdiction of the case, and whether the said plea is a'sufficient plea to the plaintiff’s bill, and ought to be allowed.

There is no principle better settled, than that, where two or more tribunals have a concurrent jurisdiction over .the same subject-matter and the parties, a suit commenced in.any one of them may be- pleaded in abatement to an action for the same cause in any other, And the question we are now to consider is, whether the procedure in the Court of Common'. Pleas, above stated, under the special acts of Pennsylvania, abates the suit of the plaintiff.

Can the proceeding stated in the plea be considered a suit ? The revised.act of Pennsylvania, of the 14th of June, 1836, entitled, “An Act relating to assignees for the .benefit of creditors and other trustees,” requires in the first six. sections the assignment to be recorded in thirty days,, and the assignment being voluntary,.» the assignees shall file an inventory or. schedule of the estate or effects so assigned, which shall be sworn to”; on which it is made the duty of the court to appoint appraisers, who shall return an inventory and appraisement; on the return of which the assignees are required to give bond “ to the Com-' monwealth, that they will-in all things comply with the provisions of the act of Assembly, and shall faithfully execute the trust confided to them,” &c. The defendants -aver, “ that having in part executed the trust so as above committed to them, they did, on the 7th of January, 1843, file in the office of the prothonotary of the Court of Common Pleas aforesaid an account, duly verified, of their receipts and disbursements,” &e. And several other and similar returns are averred to have been made.-

By the seventh section of the act, the court are authorized, on the application of any person interested, to issue a .citation to any assignee or trustee for the benefit of creditors, whether appointed by a voluntary assignment or in pursuance of the laws relating to insolvent debtors, &c., requiring him “to appear and exhibit, under oath or affirmation, the accounts of the trust in the said court,” &c. The ninth section authorizes the court to give notice, by publication, when the accounts will be acted on, that objections to them may be made. And by the eleventh section, where a trustee has neglected or refused, when required by law, to file a true and complete, inventory, or to give bond with surety, when so required by law, or to file the accounts of his trust, “ it shall be lawful for the court ”, (of Common Pleas) ’“ to issue a citation, &c., to show cause why he should not be dismissed.”

Now it does not appear from the plea that the assignees ever filed the inventory of the assets in. their hands with the prothonotary of the court, as required by the first section, and.it would seem that not only the inventory must be filed, where the assignment is voluntary, to give jurisdiction to the court, but also that it must be sworn to, an appraisement of the trust property made and returned, and bond given by the assignees. This. is a proceeding under a statute, and to bring the case within the statute, every material requirement of the'act must be complied with. And if the above requisites have not been observed, it is not perceived how the court .could take jurisdiction of the case.

In the plea it is stated that accounts have been filed by the assignees at different times, and moneys .distributed among the creditors. But how can this give jurisdiction ? The court has no .evidence of the. extent and value of the trust, artd no bond of the assignees faithfully to account. If these important steps have been' taken, they should have been stated in the plea; as it must show, to be effectual, that the court had jurisdiction of the whole matter.. The plea is defective in not setting out the above requirements.

But if the plea had been perfect in this respect, it would not follow that, the complainant could not invoke the jurisdiction of the Circuit Court. He being a non-reside.nt has his option to bring his suit in that court, unless .he has submitted, or'is made a party, in some form, to the special jurisdiction of the Court of Common Pleas.

It appears from the bill,, that the assignees have refused to allow the claim of the plaintiff, or any part of it. To establish this claim as against the assignees, the complainant has a right to sue in the Circuit Court, which was established chiefly for the benefit of non-residents. Not that the claim should thus be established by any novel principle oüaw or equity, but that his rights might be investigated free from any supposed local prejudice or .unconstitutional legislation: On the most liberal construction favorable to the exercise of the special jurisdiction, the rights of the plaintiff, in this respect, could not, against his consent, be drawn into it.

It is difficult to define the character of this procedure under the Pennsylvania law. There being no court of chancery in that State, statutory provision was .made for the execution of trusts. The statutes adopt some of the principles of chancery, but do not invest the court, with the powers of a court of equity which are necessarily exercised in administering trusts.

It is not strictly a proceeding in' rem. The .proceeding is intended to adjust the rights of debtors and creditors of the bank, .beyond the jurisdiction of the State of Pennsylvania. Citizens residing, perhaps, in a majority-of the States of the Union, are debtors or creditors of the bank. It is. difficult to perceive by what mode of procedure the State of Pennsylvania can obtain and exercise an exclusive jurisdiction over the rights of persons thus situated.. From the plea, it does not appear that any notices have- been given, of citations issued, as authorized by thé statute. ‘ Nothing more seems to have been done by the assignees than to file their accounts, have them referred to auditors, and finally sanctioned.by the court. Whether this procedure is evidence of a faithful discharge of the trust so far as the accounts have been so adjusted, it is not necessary to inquire. We suppose that it could not be contended, that fraud or collusion might not be shown to avoid the proceeding before any tribunal having jurisdiction.

No suit seems to be pending in the Common Pleas. The action of. the assignees - appears to be voluntary, for their own justification, and not in ob.edience to the order of. the court. By the statute, any. person interested- may; on application to the court, obtain a citátion to the assignees to appear and answer; But this is nothing more than the ordinary exercise of a chancery power to.compel them "to account. And it is only an exercise of jurisdiction over them from the time the bill is filed and a notice served, or the application for a citation is made on due notice. If no such proceeding is had, the assignees, it ■would appear, file their accounts or omit to do so at their pleasure.

This is not in the nature of a bankrupt or insolvent procedure. Neither the person nor the property of the assignor is entitled to exemption, under- the statute-, from the claims of creditors. But in such a proceeding, notice to the creditors and a schedule of debts, as well as assets, are required by law.

Under the laws of Pennsylvania a debtor may assign his property for the benefit of his creditors, giving a preference to some of them over others. This may be done by the common law. The assignment made by - the late Bank of the United States specifies different classes of creditors, but none are excluded from the benefits of the assignment.

The assignees^ admit, in their plea, that they have vested a large, amount of asset's to await the determination of' certain suits still pending. Suppose' they had reduced to possession-the whole amount of .the-assets of the bank, and held them ready for distribution ; could it be doubted that the complainant would have a right to file his bill in the Circuit Court, not only to establish his claim against them, but also for a proportionate share of the assets. The Circuit Court could not enjoin the Court of Common Pleas, nor revise its proceedings, as on á writ of error; but it could act on the assignees, and. enforce the rights of the plaintiff against them.. The debts due by the bank being ascertained, and the amount of its assets, after the payment of all costs, the equitable distribution would not be difficult.

Not doubting that the complainant may file his bill in the Circuit Court for the purposes stated, against the defendants, we deem it unnecessary at this time to consider questions which may arise in the exercise of the jurisdiction. The questions certified by the Circuit Court are both answered in the negative.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and on the points and questions on whieh the judges of the. said Circuit Court-were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration thereof, it is the opinion of this court, 1st. That the facts stated in the amended plea to the amended bill filed by John Bacon¿ Alexander Symington, and Thomas Robins, do not deprive the said Circuit Court of jurisdiction of this case; 2d. That the facts stated in the plea to the amended bill filed by the defendants James Robertson, Richard H. Bayard, James S; New-bold, Herman Cope, and Thomas S. Taylor, do not deprive the-said .Circuit Court of jurisdiction of'this case; — and that this opinion renders it unnecessary for this court to answer the remainder of the questions certified. Whereupon it is now here ordered and adjudged by this court, that it be so certified to the said Circuit Court.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    John McNulty, Plaintiff in error, v. John Batty, Robert Shaw, Daniel Wann, and Thomas C. Legate.
    Where a case had been brought up to this court from the Supreme Court of the Territory of .Wisconsin, and wás pending in this court at the timewheu Wisconsin was- admitted as a State, the jurisdiction of this court oyer it ceased when such’ admission took place.
    Provision was made in the act of Congress for the transfer, from the Territorial courts to the District Court of the United States, of all eases appropriate to the jurisdiction of the new District Court) but none for cases appropriate to the juris-' diction of State tribunals.
    By the admission of Wisconsin as a State, the Territorial government ceased to exist, and ¿11 thé authority under it, including the laws organizing its courts of justice and providing for a revision, of their judgments'in this court.
    The act of Congress passed in February, 1848, supplementary to that of February, 1847, applies only "to cases-which were pending in the Territorial courts, and does . r>ot include such as were pending in this court at the time of fhe admission of Wisconsin as a State. • '
    Even if Congress had directed the transfer, to the District Court of the United States, of cases appropriate to the jurisdiction of State courts, this, court could not have ' carried its judgment into effect by'a mandate to the District Court.
    The facts in this case are stated in the opinion of the court. It was submitted on printed, arguments by Mr¿ May, for the plaintiff in error, and Mr. Carlisle, for the defendants in error.

      Mr. May’s argument was as follows.
    •This case.comes here by writ of error to the Supreme Court of Wisconsin Territory.
    In the District Court of Iowa County, on the 3d of November, 1845, the plaintiff in error sued, out his writ of attachment, in an action of debt^against the defendants in error, founded oh his affidavit, (according to the law and practice of that .Territory).
    The sheriff seized certain goods and chattels of one of the defendants, to wit, Legate, which, on motion, were ordered by the court to be sold.
    The defendants, at. the next term of said court, on the 4th of 'March, 1846, appeared by their counsel, and moved for a rule on plaintiff to file his declaration within three days, which was denied.
    At the next term of the court, the plaintiff, by leave of the court, filed his declaration, containing thrée counts. The first upon a judgment against the defendants, recovered in the State of Illinois. The second on a bill of exchange, drawn by one of the defendants and accepted by the others. The third upon • an account for goods, wares, and merchandise.
    The defendants moved the court to strike out all the said counts except the first,, on account of a variance, because the action was founded on the affidavit, which stated the judgment alone as the cause of action, which motion was granted; whereupon the defendants pleaded, and after several pleas, replications, and demurrers, issue was joined by agreement of the parties, and the cause tried by the court.
    The plaintiff read a record pf a judgment of the. Circuit Court of Illinois.
    The defendants then offered to read the record of the same - ease in the Supreme Court of Illinois (which showed a reversal of the judgment of the Circuit Court). The plaintiff objected' to the offering of this record, because it was not properly authenticated, but the court overruled his objection, and he excepted.
    Judgment was rendered for the defendants, by the District Judge.
    Plaintiff moved for a new trial, and filed his reasons, which was denied.
    The case was carried by writ pf error to the Supreme Court of Wisconsin Territory, where the judgment of the' District Court was affirmed.
    . The plaintiff in error will contend here, that,the judgment of the.said Supreme.Court ought to be reversed, because,.—
    First, the District Court erred in striking out the counts of the declaration as aforesaid, after defendants had appeared to the action. Statutes of Wisconsin .concerning Attachments, § 7. Rowen v. Taylor, Wisconsin Reports, July term, 1842. He oughtto have pleaded in abatement. McKenna'a. Fisk, 1 Howard, 241; 11 Wheaton, 280. •
    Second, the record of the said Supreme Court of Rlinbis was' not duly authenticated, so as to be used as evidence in said suit, and ought not to have been received.
    The certificate of Samuel H. Treat does not certify that the attestation of the-clerk “is in due form,” and styles him clerk of “ the State of Illinois.”
    It appears also, on the face of the certificate- that the judge was “ an associate justice,” while the same record discloses that there was a “ chief justice ” of said court. 1' Stat. at Large, 122- (Act of May 26, 1790). -2 Stat. at Large, 298.

      Mr. Carlisle’s argument was as follows.
    The defendants in error were also defendants below. The action was commenced by attachment, in the District Court of Iowa County, Territory of "Wisconsin. The affidavit of- the plaintiff, dated 3d November, 1845, sets forth a "debt “arising out of, and based and founded-'upon, a judgment at law,” obtained three days before (31st October, 1845), in á county court of the State of Illinois. Pending the attachment, and before the plaintiff had declared, to wit, at the December term, 1845, of the Supremé Court of Illinois, the judgment upon which the attachment was founded was reversed. And this reversal having been pleaded and given in evidence on the trial of the attachment, in Wisconsin, the judgment.was fordhe defendants.
    The plaintiff carried the case, by writ of error, to the Supreme Court of the Territory of Wisconsin, where the judgment below was affirmed; and thence the case is brought to . this court by writ of error.-
    The defendants in error will contend that there is no error in either of the points assigned:
    1. As to the order to strike out the second and third counts in the plaintiff’s declaration, it was addressed to the discretion of the-court, and is not subject to be assigned for error. 1 Tidd,
    559:
    It was not excepted to in the court below.
    But if the order can be reviewed here, it was well founded. The proceeding by attachment is regulated by the act of 1838-39. (Stat. of Wisconsin, p. 165, § 7.) The affidavit must specify the cause of action, which must be “ arising out of, founded upon, or sounding in contract, or upon the judgment or decree of some court of law or chancery.” Accordingly, the affidavit sets forth the cause of action as “ arising out of, and based and founded" upon, a judgment at law,” specifying the same. The attachment recites the same,'specially and alone. The first count in the declaration is upon this judgment. But the judgriient having been reversed in January, 1846, and the plaintiff in the attachment iiot declaring till Octobfer following, two other counts are added to that, upon the judgment ; viz. a count upon an instrument described as a bill of exchange, being the- same which was merged in and extinguished by the judgment set forth in the first count,'and a count for goods sold and delivered, which.were the consideration for that “ bill' of exchange.”

      The second and third counts were therefore merely frivolous and vexatious; and intended to evade the effect of the reversal of the judgment. And the court, properly ordered them to be stricken out.-
    The second and third counts, if material; could only be so because they were variant from the first count, and consequently variant from the affidavit and the attachment.

      2, As to the special demurrer to the defendant’s second plea, the plea "itself was immaterial. The first plea was mil tiel record, and put in issue the existence of the record set forth in the first count; and at the time of that plea pleaded there “ was no such, record remaining in full force and effect,” &c., but the same had been reversed and annulled before the plaintiff filed his declaration. The record of such reversal was admissible in evidence upon the issue joined on that plea. ]Prom the time of the-reversal “ it is no such record ab initio.” Green v. Watts, 1 Ld. Raym. 274: Knight’s case, 1 Salk. 329; S. C. 2 Ld. Raym. 1014.
    It would, appear that the demurrer should have been Sustained. But the effect would have been simply an amendment. The plaintiff has not been prejudiced. He could not have recovered. Under such circumstances judgment will not be reversed.
    But the plaintiff obtained leave to withdraw his demurrer, and, put in a replication. He thereby waived his demurrer, arid it cannot be revived here. Craig v. Blow, 3 Stew. 448; Peck v. Boggis, 1 Scam. 281; U. States v. Boyd, 5. How. 29.
    3. As to the objection to the admissibility of the record of the Supreme Court of Illinois, it was not specified at the iriaL The precise objection was not disclosed till errors were assigned on the writ of error.,. This court will not now entertain it. Cambden v. Doremus, 3 How. 515.
    But the objection itself was not well founded. Although the record was not authenticated according to the act of Congress, so as to have effect independently of the local law, yet it Was authenticated in such manner and form as to be admissible in evidence in the courts of Wisconsin by virtue of the act of the legislature of ‘that Territory. Statutes of Wisconsin, p. 246; Act concerning Testimony, &c., § 51.
    If the points assigned as error shall not have been sufficiently answered above, to the satisfaction of the court, the counsel-for the defendants in error further suggests to the court the, following objection to the jurisdiction.
    Two acts of Congress wére passed for the admission of Wisconsin into'the Union, viz. Act 3d March. 1847 (9 Stat.at Large, 178); and Act 29th May, 1848 (9 Stat. at Large, 233).
      The first act prescribed, a condition, upon compliance with which, and upon the annunciation of such compliance by the President’s proclamation, the admission was to take effect. It does not appear that this condition was complied with; and it is supposed that the admission took effect exclusively under the second act, and that its date is the 29th of May, 1-848.
    The acts of Congress regulating the appellate jurisdiction of this court, and supposed to confer jurisdiction in this case, are 1847, ch. 17, and 1848, ch. 12 (9 Stat. at Large, 128 and 211).
    It is the second section of the act of 1848, ch. 12, which contains the general provision as to States thereafter to be admitted into the. Union. It makes the provisions of the act of 1847, ch.. 17, applicable, “ so far as may be,” to cases which may be pending in the Supreme Court of any Territory at tne time of its admission, and to cases in which judgments shall have been rendered in such Supreme Court at the time of admission, and not previously removed by writ of error or appeal.
    The date of the admission is 29 th May, 1848. The date of the judgment in the Supreme Court of the Territory is 31st July, 1847. The citation upon this writ of error was served 4th December, 1847. The record was filed here 29th February, 1848. This case, therefore, was not “ pending in the Supreme Court of the Territory ” at the time of admission, nor was it a case in which judgment had been rendered, there,. “ and not previously removed by writ of error.”
    But if it were in either of these categories, the provisions of the act of 1847 do not apply, and cannot “be made applicable.” That act gave, jurisdiction only in cases where the proceedings below were transferred to the Federal court, to which this court was authorized to send its mandate; and not in cases “legally transferred to the State courts.”
    The appellate jurisdiction of this court was not intended to be reserved except in cases of “ Federal character and jurisdiction.” Act 22d February, 1848, § 3.
    The sixth section of the act for the- admission of Wisconsin provides only for the transfer to the Federal court, of the records of judgments, &c., “ in cases arising under the'' Constitution and laws- of the United States,” which is equivalent language to “ cases of Federal character and jurisdiction.”
    The judgment bélow is “legally transferred to the State court.” It is now a judgment in the Supreme Court of the State of Wisconsin. The, record shows that it is hot a case of Federal character and jurisdiction. But in such a case only can the mandate of this court go.to the State court., (Martin v. Hunter, 1 Wheaton.) And. in such cases only do the acts in question provide for the operation of the mandate by transferring the records below from the. Territorial to the District Courts.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error to the Supreme Court of the late Terr ritory of Wisconsin. The suit was commenced' by a writ of attachment'in the first judicial district of that Territory, on the 3d of November, 1845, founded upon a judgment for $ 2747.49 previously obtained against the defendants in a Circuit Court in the State of Illinois. A large amount of property was attached belonging to one of the defendants.

All the defendants appeared by attorney, and put in two special pleas to the declaration, upon which issues were joined; and such proceedings were afterwards .had thereon, that ..at the October term, 184.1, judgment was rendered in the said suit for the defendants. The cause was thdn removed to the Supreme Court of the Territory on error; and at the July term of that court, to wit, on the 31st of July, 1847, the judgment below was in all things affirmed. This judgment has been, appealed from to this court, and is now before us for review. .The citation is signed the 20th of November, 1847.

The case has been submitted by counsel on written arguments under the fortieth and fifty-sixth rules of the court.

The first' question presented is, whether or not this court has jurisdiction to review the judgment below.

The Territory of Wisconsin was admitted into the Union as a State, on the 29th of May, 1848. (9:Stat. at Large, 233.)

An act had been previously passed, on the 2d of March, 1847, assenting to the admission on certain terms and conditions to be first complied with; and providing that upon a compliance with them, and on the proclamation of the President announcing the fact, the admission should be- considered complete, The admission did not fake place under this act, and no proclamation was issued by the President in pursuance of it.

The people of the Territory again assembled, by a convention of delegates, and formed their, constitution, on the 1st of February, 1848, as is recited in the preamble of the act of Congress, passed 29th May, 1848, by the first section of which the State is declared to be admitted into the Union on an equal footing with the original States. - The date of the admission, therefore, is the' 29th of May, 1848.

The writ of error having been issued on the 20th of November, 1847, was, therefore, regularly issued during the existence of the Territorial government, and the, case was pending in this court at the time when that government ceased, and with it ' the jurisdiction and power of the Territorial courts. (Benner v. Porter, 9 Howard,235.)

The fourth section of the act of Congress admitting the State into the Union organized a District Court of the United States for the State (see also § 4 of the Act- of. 6th August, 1846, 9 Stat. at Large, 57), and the fifth section provided, that the clerks of the District Courts of the Territory should transmit to the clerk of the above District Court “ all records of all unsatisfied judgments, and suits pending in said courts, respectively, attaching thereto all papers connected therewith, in all cases arising under the laws or Constitution of the United States, or to which the United States shall be a party”; and the said District Court shall enter the same on its docket; and shall proceed therein to final judgment and execution, ds if such suits or proceedings had originally, beep brought in said court.

The sixth section provides for the delivery by the clerk of the Supreme. Court of the Territory to the clerk of the District Court, of all record? and papers relating to proceedings in bankruptcy under the late bankrupt act; and dlso all records of judgments, and of proceedings in suits pending* and all papers connected therewith, in cases arising .under the Constitution and laws of the United States.

These Sections provide for the Federal cases pending in the courts at the termination of the Territorial government, and for unsatisfied judgments of that,character, by transferring them to the Federal court, there to be proceeded in and completed, or executed. But no provision is made for the class of eases pending, and unfinished, that belong to the State judicature after the admission of the Territory into the Union. That class seems to. have been left to be provided for by the State authorities. We had occasion to express our views on this subject in the recent case of Benner v. Porter, and need not repeat them.

The case before us is one of this character; and' is, therefore, unaffected by the transfer of cases to the District Court above provided for. And the question is, .whethei, under these circumstances, this court has jurisdiction to. review it.

By the admission of the State of Wisconsin info the Union, on the 29th of May, 1848,.the Territorial, government ceased to exist, and all the authority uftder it, including the laws organizing its courts of justice, and providing for a revision of their judgments in this court by appeals or writs of error. This appellate power does not depend upon the Judiciary Act of 1789-; but upon laws regulating the judicjal proceedings of the Territory. ' And these necessarily ceased with the termination of the Territorial government.

In the case of the United States v. Boisdore’s heirs, (8 Howard, 121,) it is said, that, as this couit dan exercise no appellate power over eases, unless conferred upon it by act of Congress, if the act conferring the jurisdiction has expired, the jurisdiction ceases, although, the appeal or writ of error, be actually pending in the court at the time of the expiration of the act.

The cases on this point are referred to in the brief, in that case, and afford full authority for the principle, if any were needed. (1 Hill, 328; 9 Barn. & Cres. 750; 3 Burr. 1456.; 4 Moore & Payne, 341.)

The writ of error, therefore, fell with the abrogation of the statute upon which it was founded.

Besides, since the termination of the Territorial government, there is no court in existence to which the mandate of this court could be sent to carry into effect our judgment. Our power, therefore, would-be incomplete and ineffectual, were we to consent to a review of. the case. (Palao v. Hunt, 4 Howard, 589.) And, had the records been transferred to the District Court, ás 4n the Federal cases, we do not see but that the result must have been the same :• for the case being one not of Federal jurisdiction, should the judgment be affirmed or reversed, and sent down to that court, it would possess no power to carry the mandate into execution, having no power over the case under the Constitution or laws of Congress conferring jurisdiction upon-the Federal courts. . (Art. 3, § 2, Const. U;, S.; Judiciary Act of 1789,- § 11.)

There is another act of Congress bearing upon this question which it is material to notice; and .that is, an act ¡supplementary to the act entitled “ An Act to regulate the exercise of the appellate jurisdiction of- the Supreme Court in certain cases, and for other purposes,” passed the ,22d of February, .1848, ch. 12 (9. ,(3tat. at Large, 211).

The second section provides,that all and singular the provisions of the said act to which this is a supplement, so far as may be, shall be, and they hereby are, made applicable to all cases which.may be pending in the Supreme or other Superior Court of and for any Territory of the United States, which may hereafter be admitted as a State into the Union, at the time of its admission: and to all cases in which judgments or decrees shall have been rendered in such Supreme or, Superior Court at the time of such admission, and not previously removed by writ of error or appeal.”

The aet to which the above is a supplement was passed 223 February, 1847, ch. 17, (9 Stat. at Large, 128,) and its several provisions related to cases pending, and unsatisfied judgments existing in the courts óf the Territory of Florida at the time of its admission into the Union as a State, and which were the subject of examination in the case of Benner.v. Porter, already refered to.

As the Territory of Wisconsin has been admitted into the Union, as a State since the passage of this supplementary act, the second section applies the provisions of the Florida act 'to the. cases pending in its courts, and to the judgments existing therein, at the time of its admission.

But it will not be material to refer particularly to those provisions, as this'second section do.es not bring the case before us within them. It applies them, to all cases pending in the several coúrts of the Territory; and to all cases in which judgments or decrees shall have been rendered at the time of the admission, arid not previously removed by writ of error or appeal to this court. In this case the judgment had been rendered and removed before the admission, and was pending here at the time; and is,.therefore, unaffected by this supplementary act.

The section was drawn, doubtless, under, the' supposition, that, if the suit was pending here, at the time of the admission of a Territory into the Union as a State, on appeal or writ of error,-no legislation, was necessary to preserve or'.givé effect to the jurisdiction of .the court over it; an.opinion, as we have se'en, founded-dn error.

In placing the. want of jurisdiction, however* upon this ground, we must not be understood as admitting, that, if the provisions of the Florida act of the 22d of February, 1847, applied to the case, the jurisdiction could be upheld. For, if we are right in the conclusion, that, even assuming the record in the case had been transferred from the Territorial to the District Court of the State, our jurisdiction would still be incomplete and ineffectual! inasmuch as that court possessed no power to carry the mandate into execution, the case not being one of Federal jurisdiction, the .result would be the same as that at which we have arrived.

In' every view, therefore, we have been able to take of the case, we are satisfied, that our jurisdiction over it ceased with the termination of the. Territorial government'and laws; and that it has not been revived or preserved, if, indeed, it could have been, by any act or authority of Congress on the subject^ and that the writ of error must be abated.

Order.

This cause came on to be heard on the transcript óf the record from the' Supreme Court of the Territory of Wisconsin, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that this writ' of. error be, and the same is hereby, abated.


text:
    Sylvester B. Preston, William Kendall, William Nichols, and William T. Phillips, Plaintiffs in error, v. Charles Bracken.
    This case was decided on the same ground as the preceding case of McNulty v. Batty and others..
    This was a writ of error to the Supreme Court of the late Territory of Wisconsin.
    An action of ejectment was commenced at the April term, 1845, of the Iowa County Court, by the defendant in error, against the plaintiffs ip error, to recover a lot of land situate in that county. The venue was afterwards changed to the county of Milwaukie. Issue having been joined, and a jury impanelled and sworn, a verdict was found for the - plaintiff, upon which a judgment was entered.
    . On the 19th of July, 1847, the case was carried by writ of error to the Supreme Court of Wisconsin Territory, and on the 2d day of August, the judgment of the County • Court; was affirmed by a divided court.
    Whereupon a writ of error to the Supreme Court of the Territory of Wisconsin was sued out of this court, and the citation served on the 24th of November, 1847.
    Wisconsin was admitted into the Union as a State by the act of Congress approved 29th May, 1848.
    The cause was submitted on printed arguments by Mr. May, for the plaintiffs in error, and Mr. Walker, for the defendant in error.
    As the case was determined upon the point of jurisdiction, and as the argument for the plaintiffs in error was upon, the merits, and as the argument for the defendant in error on the question of jurisdiction, assumed substantially the same ground as was taken by the counsel for the defendant 'in error in the. case of McNulty v. Batty et al. ante, p. 72, the arguments are not here inserted.
   Mr. Justice NELSON

delivered the opinion of the court.

This.is a writ of error to the Supreme Court of the late Territory of Wisconsin.

The suit was an action of ejectment brought by the plaintiff below, the defendant in error, in the second; and removed to the third judicial district of the Territory, to recover possession of a small piece of land; and was • commenced on the 15'th of April, 1845.

Issue being joined between the parties, such proceedings were had thereon, that judgment was afterwards, rendered against the defendants in the June term of said- court in the year 1846.

The case was afterwards removed to the- Supreme .Court of the Territory, and the judgment of the court below affirmed by a divided opinion at the July, term of that coiirt, to wit, on the 2d of August, 1847.

The judgment was afterwards removed to this court by a writ of error for review. The citation is signed 22d November, 1847.

The case was; therefore, pending here on the 29th of May, 1848, at the timé of the admission of the Territory into the Union as a State. It is one not of a Federal character, but belonging to the State judicature, and therefore falls within, the decision of the case of McNulty v. Batty and others*, just made, and the writ of, error must be abated.

Order.

This cause came on to be heard on* the transcript of the record from the Supreme Court of the Territory of Wisconsin, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this writ of error be, and the same is hereby, abated.