the goods, and that the goods were not liable to the attachment under which the marshal acted. To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment, and should prove that the goods were subject to be seized under it. When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive of the case, for, however fraudulent might have been that possession, the defendant here, in the absence of any valid writ, was a mere trespasser, and could have no right to contest the lawfulness of that possession. The whole case turned, therefore, on the trial in the local state court, as it did on the writ of error in the supreme court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that suit.

It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as improvidently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on in insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience. The supreme court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument that, being regular on its face, it should protect the officer:

"No doubt the writ in this case must be regarded as fair on its face. Under the general law relating to attachments, where the suit is begun by that writ, the affidavit is attached to and in legal effect becomes a part of it; and if then the affidavit is void the writ is void also. But under an amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed with the clerk, and the officer to whom the writ is issued is supposed to know nothing of it. Comp. Laws, § 643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its provisions shows that the writ contains all the recitals that the statute requires." 5 N. W. Rep. 671.

Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subjectmatter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate. We do

not think this is law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States, and of other courts of general jurisdiction.

It had been supposed by many sound lawyers, after the case of Freeman v. Howe, 24 How. 450, that no action could be sustained against a marshal of the United States in any case in a state court where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ.

In the present case the officer is sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the state court refused to permit him to make that proof. The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a willful trespasser. It would seem that the mandatory process of a writ of general jurisdiction, with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue. It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and everything else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts.

The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has been often quoted since, and is conclusive in the federal courts in regard to the validity of their own processes when collaterally assailed, as in the present case.

The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and in personam, in answer to the question, on what does the jurisdiction of the court in that class of cases depend? answers it thus:

"It seems to us that the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to jurisdiction, as it unquestionably is in a proceeding purely in

rem. Without this the court can proceed no further; with it the court can proceed to subject that property to the demand of plaintiff. If the writ of attachment is the lawful writ of the court, issued in proper form under the seal of the court, and if it is by the proper officer levied upon property liable to the attachment, when such writ is returned into the court the power of the court over the res is established. The affidavit is the preliminary to issuing the writ. It may be a defective affidavit, or possibly the officer whose duty it is to issue the writ may have failed in some manner to observe all the requisite formalities, but the writ being issued and levied, the affidavit has served its purpose; and though a revising court might see in some such departure from the strict direction of the statute sufficient error to reverse the judgment, we are unable to see how that can deprive the court of the jurisdiction acquired by the writ levied upon the defendant's property."

See Voorhies v. Bank of U. S. 10 Pet. 449; Grignon's Lessee v. Astor, 2 How. 319.

If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside or correct it, and where the court before it issues the writ has jurisdiction of the parties to the suit?

We think that when the writ is offered in a collateral suit against the officer who executed it as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not void, though it might be avoided on a proper proceeding; and in the contest for the value of the goods seized, with a stranger who claims them, it is sufficient to raise the issue of the liability of those goods to the exigency of the writ.

The judgment of the supreme court of Michigan is reversed, with directions for further proceedings in conformity to this opinion.

(109 U. S. 230)

Ex parte MEAD, Ex'x, etc.1

(November 12, 1883.)

BANKRUPTCY-RE-EXAMINATION OF CLAIM-APPEAL-NOTICE.

Proceedings under Rev. St. § 5081, for the re-examination of a claim filed against a bankrupt's estate, are in the nature of a suit against the assignee for the establishment of the claim, and when an appeal is taken in the circuit court, such appeal cannot be allowed unless the notice required by Rev. St. § 4981, "be given to the assignee or creditor, as the case may be," by the party desiring to appeal.

18. C. 14 Fed. Rep. 287.

Petition for Mandamus.

F. W. Hackett and H. J. Scudder, for petitioner.

WAITE, C. J. James C. Mead, in his life-time, filed with a register in bankruptcy proof of his claim against the estate of Abraham Mead, a bankrupt. Mary E. Travis, a creditor of the bankrupt, applied for a re-examination, and, upon consideration, the claim was rejected by the district court. Pending the proceedings James C. Mead died, and the petitioner, his executrix, appeared in his stead. After the rejection of the claim the executrix took an appeal to the circuit court, and did all that was necessary to perfect such an appeal, except giving notice to the assignee within 10 days after the entry of the decision. This she did not do, but she did give notice to the objecting creditor within the prescribed time. The circuit court, on the application of the assignee, refused to entertain the appeal because of the failure of notice to him. The petitioner now seeks by mandamus to require the circuit court to take the case and proceed therewith.

By section 4980 of the Revised Statutes "appeals may be taken from the district to the circuit courts in all cases in equity" arising under the bankrupt act; "and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the district court to the circuit court for the same district;" but by section 4981 no such appeal can be allowed, unless, among other things, notice thereof be given "to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 days after the entry of the decree or decision appealed from.'

If a supposed creditor takes an appeal from an order rejecting his claim he must, under the provisions of section 4984, file in the clerk's office of the circuit court "a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause, as in actions at law commenced and prosecuted in the usual manner in the courts of the United States."

In Wood v. Bailey, 21 Wall. 640, it was decided that the omission to give notice to an assignee of an appeal from a decree in his favor in a suit in equity was fatal to the appeal. The effect of the ruling in that case is that the statute makes the notice within the prescribed time "a condition of the right of appeal" under section 4980. That seems to us conclusive of the present case. Proceedings under section 5081 for the re-examination of a claim filed against a bankrupt's estate are in the nature of a suit against the assignee for the establishment of the claim. A creditor may move for the re-examination, and, under general order in bankruptcy No. 34, may be required to form the issue which is to be certified to the district court for determination, but the assignee alone can appeal from an order of allow

ance; and if the supposed creditor appeals, the assignee must defend in the circuit court, where the proceedings are against him. Hence. the necessity for notice to him in such cases; and, in our opinion, the words "to the assignee or creditor, as the case may be," in section 4981, mean to the assignee if the appeal is by the supposed creditor, and to the supposed creditor if it is by the assignee.

As upon the petitioner's own showing the circuit court properly refused to entertain his appeal, the rule asked for is denied and the petition dismissed.

(109 U. S. 229)

COUNTY COURT OF KNOX COUNTY, MISSOURI, v. UNITED STATES ex rel. HARSHMAN.1

SAME v. UNITED STATES ex rel. Davis.

SAME v. UNITED STATES ex rel. WELLS & FRENCH Сo.

MACON COUNTY COURT v. HUIDEKOPER, Relator.

BAKER, Treasurer, etc., v. UNITED STATES ex rel. DAVIS.

(November 12, 1883.)

MUNICIPAL BONDS-PAYMENT OF BALANCE DUE OUT OF FUNDS RAISED BY TAXATION FOR ORDINARY COUNTY USES.

U. S. v. County of Clark, 96 U. S. 211; U. S. v. County of Macon, 99 U. S. 589; and Macon Co. v. Huidekoper, Id. 592, affirmed.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

James Carr and Geo. G. Reynolds, for Knox county, and Baker, treasurer.

James Carr, for Macon county.

T. K. Skinker, for Harshman.

Geo. H. Shields, for Davis and Wells & French Co.

Joseph Shippin, for Huidekoper.

WAITE, C. J. In U. S. v. County of Clark, 96 U. S. 211, it was decided at the October term, 1877, that bonds of the character of those involved in the present suits were debts of the county, and that for any balance remaining due on account of principal or interest after the application of the proceeds of the special tax of one-twentieth of 1 per cent. the holders were entitled to payment out of the general funds of the county. This, we all agree, means that the payment of

1S. C. 5 Fed. Rep. 556, and 15 Fed. Rep. 704.