Freeman v. Howe,
65 U.S. 450 (1860)

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U.S. Supreme Court

Freeman v. Howe, 65 U.S. 24 How. 450 450 (1860)

Freeman v. Howe

65 U.S. (24 How.) 450


Where the marshal, by virtue of mesne process issuing out of the Circuit Court of the United States for the District of Massachusetts, attached certain railroad cars which were afterwards taken out of his hands by the Sheriff of Middlesex County under a replevin brought by the mortgagees of the railroad company, the proceeding of the sheriff was entirely irregular.

Page 65 U. S. 451

I. The suit upon the replevin was instituted and carried on to judgment in the court below under a misapprehension of the settled course of decision in this Court in respect to the case of conflicting processes and authorities between the federal and state courts.

II. Also in respect to the appropriate remedy of the mortgagees of the railroad cars for the grievances complained of.

I. In the case of Taylor v. Carryl, 20 How. 583, the majority of the Court were of opinion that, according to the course of decision in the case of conflicting authorities under a state and federal process, and in order to avoid unseemly collision between them, the question as to which authority should for the time prevail did not depend upon the rights of the respective parties to the property seized, whether the one was paramount to the other, but upon the question which jurisdiction had first attached by the seizure and custody of the property under its process.

This principle is equally applicable to the case of property attached under mesne process for the purpose of awaiting the final judgment, as in the case of property seized in admiralty, and the proceedings in rem.

The distinction examined which is alleged to exist between a proceeding in admiralty and process issuing from a common law court.

Whether the railroad cars which were seized were or were not the property of the railroad company was a question for the United States court which had issued the process to determine.

Cases and authorities examined which are supposed to conflict with this principle.

II. Although both parties to the replevin were citizens of Massachusetts, yet the plaintiffs were not remediless in the federal courts. They could have fled a bill on the equity side of the court from which the process of attachment issued, which bill would not have been an original suit, but supplementary merely to the original suit out of which it had arisen. It would therefore have been within the jurisdiction of the court, and the proper remedy to have been pursued.

Cases cited to illustrate this.

The case is stated in the opinion of the Court.

Page 65 U. S. 453

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