Opinion of the Court. of Packard as marshal of the United States for that district, his sureties being joined as codefendants, and the acts complained of as illegal and injurious being charged to be breaches of its condition. The bond was required to be given by sec. 783, Rev. Stats., and sec. 784 expressly gives the right of action, as follows: "In the case of a breach of the condition of a marshal's bond, any person thereby injured may institute, in his own name and for his sole use, a suit on said bond and thereupon recover such damages as shall be legally assessed, with costs of suit, for which execution may issue for him in due form. If such party fails to recover in the suit, judgment shall be rendered and execution may issue against him for costs in favor of the defendant; and the United States shall in no case be liable for the same." Secs. 785 and 786 contain provisions regulating the suit, the latter prescribing the limitation of six years after the cause of action has accrued, after which no such suit shall be maintained, with the usual saving in behalf of persons under disabilities. The counsel for plaintiff in error assumes in argument that the suit was to recover damages for alleged trespasses. It was plainly upon the bond itself, and therefore arose directly under the provisions of an act of Congress. Gwin v. Breedlove, 2 How. 29; Gwin v. Barton, 6 How. 7. In McKee v. Raines, 10 Wall. 22, the removal, which was held to be unlawful, was made under the supposed authority of the act of March 3d, 1863, and that of April 9th, 1866. After the removal of the cause, it was put at issue by the filing, on the part of the defendants, of an answer and amended answer. In these answers it was alleged that in a proceeding in bankruptcy against Dreyfus & Co., duly commenced in the district court for that district by David Valentine & Co., as creditors, an order was made directing "that the marshal take provisional possession of all the property of the said defendants, real and personal, belonging to the said firm of E. Dreyfus & Co., or the individual members thereof, and particularly the merchandise pretended to have been transferred to Moses Feibelman, at Delta, Louisiana, and all of the books of account, bank Opinion of the Court. books and papers of or relating to the business of said firm of E. Dreyfus & Co., and hold the same subject to the further orders of this court;" that a writ was issued in pursuance of that order to the defendant Packard, commanding him to execute said order, which is the writ mentioned in the plaintiff's petition; that, in obedience to the command of the said writ, the said marshal did take into his possession and custody the goods and property therein described and referred to, and none other; and that the said goods and property so taken and held are the same as those mentioned in the plaintiff's petition, the same having come into the possession of the plaintiff, in pursuance of a fraudulent conspiracy between the plaintiff and Moses Feibelman, and the members of the firm of E. Dreyfus & Co., the bankrupts, the object of which was to prevent the same from coming into the possession of the assignee in bankruptcy of said bankrupts, and so to cheat and defraud their creditors, the said goods and property being, when so seized, the property of said bankrupts, and not of the said Moses Feibelman, nor of the plaintiff, neither of whom were entitled to the possession of the same. The plaintiff moved to strike from the answer the foregoing defence, which motion was overruled. This ruling of the court is assigned for error. The ground on which this assignment of error is predicated is, that by the law of Louisiana a person in possession of personal property as owner, claiming title, cannot be disturbed in that possession by a seizure under judicial process running against another person; that a transfer in fraud of creditors cannot be attacked by a seizure by the marshal or sheriff, under an execution against the debtor, of the property in the hands of a third possessor; and that, consequently, in this suit, in which it was admitted that the goods had been taken out of the possession of the plaintiff, it was not competent to set up as a defence actual title in the bankrupts. In support of this proposition, we are referred by counsel to various sections of the Revised Civil Code of Louisiana, and to numerous decisions thereon by the supreme court of that State; and the statement is made that the decision of this court in Syllabus. Hozey v. Buchanan, 16 Pet. 215, which, it is admitted, is not reconcilable with the conclusion insisted upon, was made without the point having been or considered as to the law of Louisana, under which the case arose. But it is entirely immaterial, in our view of the case, what the law of Louisiana upon the point is, for the reason that that law has no application to it. The question relates, not to any law of that State, but to a law of the United States, and is, whether under the bankrupt act of 1867, the District Court of the United States, sitting in bankruptcy, has jurisdiction to order the seizure and detention of goods, the property of the bankrupt, although in possession of another under claim of title, and whether, in a subsequent action against the officer for obedience to such an order, he may justify the seizure by proof that the title to the property was, at the time, in the bankrupt. • This was the very point decided by this court in Sharpe v. Doyle, 102 U. S. 686, a reference to which makes it unnecessary to repeat the grounds of the conclusion, that in such a case the defence here allowed, if established, should prevail. All the other exceptions taken during the trial were directed to the admission of testimony in support of this defence, and are disposed of when the defence itself is adjudged to be valid. There is, therefore, no error in the record, and The judgment is affirmed. SMITH and Another v. McNEAL and Another. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TENNESSEE. Argued November 15th, 18th, 1883.- Decide November 26th, 1883. Estoppel-Limitations-Statutes of Tennessee. A suit was begun, within the seven years prescribed by the Statute of Limitation of the Code of Tennessee, in the Circuit Court of the United States for the Western District of Tennessee, for the recovery of land, which was Statement of Facts. dismissed for want of jurisdiction, by reason of the omission in the plead- thereafter the plaintiff in the former suit commenced another suit in the 1. That, although the second suit was begun more than seven years after the cause of action arose, it was within the saving clause of article 2755 of the Code of Tennessee, providing that: "If the action is commenced within the time limited, but the judgment or decree is rendered against the plaintiff and upon any ground not concluding his right of action, or where the judgment or decree is rendered against the plaintiff and is arrested or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may from time to time commence a new action within one year after the reversal or arrest.” 2. The doctrine that a dismissal of a suit for want of jurisdiction is no bar to a second suit for the same cause of action reaffirmed and the authorities cited. December 31st, 1873, the plaintiffs in error brought suit against defendants in the Circuit Court of the United States for the Western District of Tennessee to recover forty acres of land. The declaration described the land and averred that the plaintiffs were possessed thereof, claiming in fee through a certificate of the United States district tax commissioners, naming them, under an act of Congress, entitled "An Act for the collection of taxes in insurrectionary districts within the United States and for other purposes," and the acts amending the same of January 1st, 1865, and that after such possession accrued the defendants, on December 1st, 1865, entered upon the premises and unlawfully withhold and detain the same, etc. Two of the defendants, McNeal and Caruthers, demurred to the declaration, first, because it did not sufficiently describe the property sought to be recovered; and, second, because it did not show that the plaintiffs were not citizens of the State of Tennessee so as to give the court jurisdiction of the cause. On February 24th, 1877, the court sustained the demurrer, upon the ground that it had "no jurisdiction of the cause of action in plaintiffs' declaration alleged and set forth," and dismissed the suit. Afterwards, on October 20th, 1877, the plaintiffs in error brought the present suit against the same defendants in the Statement of Facts. same court to recover the same tract of land. The declaration in this cause was identical with that in the former action, except that in this case the following averment was added: "Defendants do not claim under, but adversely to, and deny the validity of plaintiffs' claim of title under the aforesaid acts of Congress, and the validity of plaintiffs' claim of title under the aforesaid acts of Congress is the only question in controversy between the plaintiffs and defendants." The defendants pleaded the seven years' limitation prescribed by the statute of Tennessee, to which the plaintiffs pleaded the following replication: "Now come the plaintiffs, by attorneys, and as to defendants' plea herein pleaded say, that on the 31st of December, 1873, and within seven years from the time the plaintiffs' cause of action accrued, the plaintiffs brought suit against defendants in this court to recover possession of the same premises whereof plaintiffs here now seek to recover possession; and the said suit was commenced upon the same cause of action that the plaintiffs' now writ and action are founded. That the said action, so commenced as aforesaid, was duly prosecuted by plaintiffs until the 1st of September, 1877, upon which day a judgment (which said judgment remaining of record in this court is referred to) was therein rendered by said circuit court upon a ground not concluding their said right of action. The record of said former suit remains in this court, and plaintiffs here make profert of the same; all of which plaintiffs are willing to certify." The defendants demurred to this replication on two grounds: first, because it appeared by the judgment referred to and made a part of the replication, that said judgment was upon the merits; and, second, because it appeared from the record of said former suit that the court in which it was brought had no jurisdiction thereof, and said suit was dismissed for want of jurisdiction. The cause was heard upon this demurrer, which the court sustained, and entered judgment dismissing plaintiffs' suit. To reverse that judgment this writ of error was brought. |