Pulliam v. Osborne. 17 H.

Badger, for the plaintiff.

No counsel contrà.

[ * 474 ]

* CAMPBELL, J., delivered the opinion of the court. This was an issue in the district court, under a statute of Alabama, Clay's Digest, 213, §§ 62, 64, for the trial of the Wright to property taken under an execution from that court, [475 ] in favor of the appellee, and claimed by the testator of the appellant, as belonging to him, and not to the defendant in the

execution.

It appeared on the trial that, at the delivery of the execution to the marshal, in favor of the appellee, the property belonged to the defendant, and that the levy was made before the return day of the writ; but that, before this levy, the property had been seized and sold to the claimant, by a sheriff in Alabama, under executions issued from the state courts, upon valid judgments, after the teste and delivery of the executions from the district court.

The district court instructed the jury, that a sale under a junior execution from the state court did not devest the lien of the execution from the district court, and that the writ might be executed, notwithstanding the seizure and sale under the process from the state court.

The lien of an execution, under the laws of that State, commences from the delivery of the writ to the sheriff, and the lien in the courts of the United States depends upon the delivery of the writ to their officer. But no provision is made by the statutes of the State or United States for the determination of the priorities between the creditors of the respective courts, state and federal. They merely provide for the settlement of the priorities between creditors prosecuting their claims in the same jurisdiction.

The demands of the respective creditors, in the present instance, were reduced to judgments, and the officers of either court were invested with authority to seize the property.

The liens were, consequently, coördinate or equal; and, in such cases, the tribunal which first acquires possession of the property, by the seizure of its officer, may dispose of it so as to vest a title in the purchaser, discharged of the claims of creditors of the same grade.

This court applied this principle (Williams v. Benedict, 8 How. 107) to determine between judgment creditors in a court of the United States, and an administrator holding under the orders of a probate court of a State; in Wiswall v. Simpson, 14 How. 52, in favor of a receiver holding under the appointment of a court of chancery of a State and a judgment creditor; in Peale v. Phipps, 14

Minturn v. Maynard. 17 H.

How. 368, in favor of a trustee in possession, under the order of a county court, against such a creditor; and in Hagan v. Lucas, 10 Pet. 400, between execution creditors issuing from state and federal jurisdictions. The same principle has been applied, in several state

courts, in favor of the purchasers at judicial sales of steam[*476] boats, and other crafts *subject to liens in the nature of admiralty liens. Steamboat Rover v. Stiles, 5 Black. 483; Steamboat Raritan v. Smith, 10 Mo. 527; 19 Ala. 738; and is recognized in the courts of common law and admiralty in Great Britain. 4 East, 523; 2 Wms. Ex'rs, 888; The Saracen, 3 W. Rob.

In Alabama, the bona fide purchaser at a judicial sale, made to enforce a statutory lien, takes the property discharged of liens of the same description, whether the subject of sale be land or personal property. Wood v. Gary, 5 Ala. 43; 12 ibid. 838; 11 ibid. 426. The propriety of the rule is fully vindicated by the statement in Hagan v. Lucas, 10 Pet. 400, where this court says: "A most injurious conflict of jurisdiction would be likely often to arise between the federal and state courts, if the final process of the one could be levied on property which had been taken by the process of the other. The marshal or the sheriff, as the case may be, acquires by a levy a special property in the goods, and may maintain an action for them. the same goods may be taken in execution at the same time, by the marshal and the sheriff, does this special property vest in the one or the other, or both of them? No such case can exist; property once levied on remains in the custody of the law, and it is not liable to be taken by another execution in the hands of a different officer, and especially an officer acting under a different jurisdiction."

But if

The instruction of the district court is erroneous, and its judgment is therefore reversed and cause remanded.

20 H. 588.

CHARLES MINTURN, Appellant, v. LAFAYETTE MAYNARD, GILBert A. GRANT, THOMAS G. WELLS, LUCIEN SKINNER, FREDERICK BILLINGS, CHARLES J. Brenham, Isaac T. MOTT, J. DE LA MONTAGNE, E. M. NEAL, and THOMAS L. CHAPMAN.

17 H. 477.

The admiralty has not jurisdiction over an account between the agent of a steamer and its owners, for moneys paid to their use.

APPEAL from the district court of the United States for the northern district of California. The case is stated in the opinion of the

court.

Florida v. Georgia. 17 H.

Brent and May, for the appellant.

Cutting, contrà.

: * 477 ]

* GRIER, J., delivered the opinion of the court. The respondents were sued in admiralty, by process in personam. The libel charges that they are owners of the steamboat Gold Hunter; that they had appointed the libellant their general agent or broker; and exhibits a bill, showing a balance of accounts due libellant for money paid, laid out, and expended for the use of respondents, in paying for supplies, repairs, and advertising of the steamboat, and numerous other charges, together with commissions on the disbursements, &c.

The court below very properly dismissed the libel, for want of jurisdiction. There is nothing in the nature of a maritime contract in the case. The libel shows nothing but a demand for a balance of accounts between agent and principal, for which an action of assumpsit, in a common-law court, is the proper remedy. That the money advanced and paid for respondents was, in whole or in part, to pay bills due by a steamboat for repairs or supplies, will not make the transaction maritime, or give the libellant a remedy in admiralty. Nor does the local law of California, which authorizes an attachment of vessels for supplies or repairs, extend to the balance of accounts between agent and principal, who have never dealt on the credit, pledge, or security of the vessel.

The case is too plain for argument.

The judgment of the court of admiralty, dismissing the libel for want of jurisdiction, is affirmed, with costs.

THE STATE OF FLORIDA, Complainant, v. THE STATE OF GEORGIA

17 H. 478.

In a suit between Florida and Georgia, to settle a part of the boundary line between those States, the United States, as a proprietor and grantor of lands in the disputed territory, having an interest in the question of the location of the line, the attorney-general, on filing an information, had leave to adduce evidence, written or parol, and to examine witnesses and file their depositions, in order to establish the boundary claimed by the United States.

THE substance of the motion of the attorney-general appears in the opinions of the court and of Justices Curtis and Campbell.

Cushing, (attorney-general,) for the motion.

Badger and Berrien, contrà, for Georgia.

Westcott and Johnson, for Florida.

[* 490 ]

*

Florida v. Georgia. 17 H.

TANEY, C. J., delivered the opinion of the court. The court proceed to dispose of the motion made by the attorney-general for leave to be heard on behalf of the United States, in the suit between the State of Florida and the State of Georgia.

[ * 491 ]

*It appears that the boundary line between these two States is in controversy, and a bill has been filed in this court by the State of Florida to ascertain and establish it.

The attorney-general has filed an information, stating that the United States are interested in the settlement of this line; that the territory in dispute contains upwards of one million two hundred thousand acres of land, and was ceded to the United States by Spain as a part of Florida; and that the United States have caused the whole of it to be surveyed as public land, and sold a large portion of it, and issued patents to the purchasers. And upon these grounds he asks leave to offer proofs to establish the boundary claimed by the United States, and to be heard, in their behalf, on the argument.

The motion is resisted on the part of the States, and the question has been fully argued by counsel for the respective parties. And as it is, in some degree, a new question, and concerns rights and interests of so much importance, we have taken time to consider it.

If the motion was merely to be heard at the argument, there would, we presume, have been no opposition to it on the part of the States. For it is the familiar practice of the court to hear the attorneygeneral in suits between individuals, when he suggests that the public interests are involved in the decision. And he is heard, not as counsel for one of the parties on the record, but on behalf of the United States, and as representing their interests. This was done in several instances at the last term, where the United States had sold lands as a part of the public domain, which were claimed by individuals under grants alleged to have been made by France or Spain previous to the cession to this country.

In these cases, however, they were argued by the attorney-general upon the evidence produced by the respective parties. No new evidence was offered on behalf of the United States. And the objection now made is, that he cannot be permitted to adduce evidence in the case, unless the United States are parties on the record; and that they cannot, under the provisions of the constitution, become parties in this court, in the legal sense of the term, to a suit between two States.

We proceed to consider this objection.

The constitution confers on this court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and

Florida v. Georgia. 17 H.

those in which a State shall be a party. And it is settled, by repeated decisions, that a question of boundary between States is within the jurisdiction thus conferred.

But the constitution prescribes no particular mode of proceeding, nor is there any act of congress upon the subject. And at a very early period of the government a doubt arose [* 492 ] whether the court could exercise its original jurisdiction without a previous act of congress regulating the process and mode of proceeding. But the court, upon much consideration, held, that although congress had undoubtedly the right to prescribe the process and mode of proceeding in such cases, as fully as in any other court, yet the omission to legislate on the subject could not deprive the court of the jurisdiction conferred; that it was a duty imposed upon the court; and in the absence of any legislation by congress, the court itself was authorized to prescribe its mode and form of proceeding, so as to accomplish the ends for which the jurisdiction was given.

There was no difficulty in exercising this power where individuals were parties; for the established forms and usages in courts of common law and equity would naturally be adopted. But these prece dents could not govern a case where a sovereign State was a party defendant. Nor could the proceedings of the English chancery court, in a controversy about boundaries, between proprietary governments in this country, where the territory was subject to the authority of the English government, and the person of the proprietary subject to the authority of its courts, be adopted as a guide where sovereign States were litigating a question of boundary in a court of the United States. They furnished analogies, but nothing more. And it became, therefore, the duty of the court to mould its proceedings for itself, in a manner that would best attain the ends of justice, and enable it to exercise conveniently the power conferred. And in doing this, it was, without doubt, one of its first objects to disengage them from all unnecessary technicalities and niceties, and to conduct the proceedings in the simplest form in which the ends of justice could be attained.

It is upon this principle that the court appear to have acted in forming its proceedings where a State was a party defendant. The subject came before them in Grayson v. Virginia, 3 Dal. 320. And the court there said that they adopted, as a general rule, the custom and usage of courts of admiralty and equity, with a discretionary authority, however, to deviate from that rule where its application would be injurious or impracticable. And they at the same time passed an order directing process against a State, to be served on the