untary alienation of his property by A. Again, it is a maxim of the law, Sic utere tuo ut alienum non lædas, 9 Rep. 59. Enjoy your own in such a way as not to injure that of another. And while the maxim undoubtedly refers to the use of another's property, the principle appears to be the same in regard to any right. Broom, Leg. Max., p. 394, says: "Where rights are such as, if exercised, conflict with each other, we must consider whether the exercise of the right claimed by either party be not restrained by the exercise of some duty imposed on him toward the other. Whether such duty be or be not imposed must be determined by reference to abstract rules and principles of law."

The right to vociferate, and to exercise a man's lungs, may be a right inalienable, and yet, if it injure his neighbors in one of their substantial rights, as, for instance, the right to peaceably assemble for public religious worship (Kindred v. State, 33 Tex. 69; Brown v. State, 46 Ala. 175), or for the purpose of a sale at auction (Furness v. Anderson, 1 Pa. Law Journ. Rep. 324), even that right may become a wrong. The cause celebre of State v. Linkhan, 69 N. Carolina 214, which seems to hold the contrary, is only to the effect that the intention to disturb and interfere must be apparent. JAMES APPLETON MORGAN.

RECENT AMERICAN DECISIONS.

Supreme Court of Rhode Island.

JOSIAH CHAPIN v. LUCINDA JAMES ET. AL.

The Supreme Court of a state has no power to enjoin the United States marshal from proceeding to a sale on execution, although the property levied on is that of a stockholder in a corporation against which judgment and process of execution issued; the execution being levied by direction of attorneys thereon endorsed to enforce the stockholder's liability under the Rhode Island statute regulating manufacturing corporations.

Notwithstanding the issue of execution the case is pending, and unless otherwise regulated by statute the execution is still under the control of the court. As between courts of co-ordinate jurisdiction, the tribunal first acquiring jurisdiction retains it.

As between courts of co-ordinate jurisdiction, the tribunal issuing process has exclusive control over it.

As between state courts and United States courts, neither can enjoin the process of the other.

Semble, that the limitations from citizenship imposed on the jurisdiction of United States courts do not apply to ancillary bills in equity or petitions to protect the rights of those interested in property in the custody of the court.

Semble, that such ancillary bills in equity or petitions, may be brought in the United States courts by any one whose interests are affected by the process.

BILL in equity. The defendant having obtained from the United States Circuit Court in a suit in equity, judgment against the Atlantic Delaine Company, took out her execution, and it was in pursuance of an order of her attorneys endorsed thereon, levied by the United States marshal on the property of the present complainant, Josiah Chapin, it being claimed that he was a stockholder in the said corporation at the time the liability accrued, and that she had the right so to levy it by the provisions of the statute of Rhode Island regulating manufacturing corporations.

The said Chapin having filed this bill for an injunction against the United States marshal, to restrain him from selling the property levied on, Mrs. James now moved that the bill be dismissed on the ground that the state court has no jurisdiction in the case. James Tillinghast, Benjamin T. Eames and Charles Hart, for complainant.

J. H. Parsons and Thomas A. Jenckes, for respondents.

The opinion of the court was delivered by

POTTER, J.-The complainant contends that in the present case, so far as concerns the levy on real estate, the property cannot be considered as in possession of the United States court. That the complainant, Chapin, was not a party to the suit, and that even if he was liable as a stockholder, the marshal has no right, on an execution against the corporation, to levy the execution on his property, inasmuch as the mode of proceeding provided in the Manufacturing Corporations Act has never been adopted by any United States statutes or rule of court; that the execution vas issued on a judgment in a suit for tort, whereas the stockholder is only liable in case of contract; that Mrs. James, being a stockholder herself, was not entitled to that process, and that there is no remedy for the complainant unless this court interferes.

The facts alleged being assumed as true for the purpose of deciding the present motion to dismiss, cannot the complainant raise in the United States Circuit Court all these and other questions of law he may make, and have them decided by that court?

Although a decree has been made in the suit in the United States Circuit Court, the case is still pending there. The execution is the process of the court for carrying its decree into effect, and

except so far as regulated by statute, is still within the court's control. Courts of law anciently by "audita querela" and on motion, and latterly more generally by motion, have exercised control over their final process, and courts of equity have always done so. This is absolutely necessary to prevent the execution of a judgment or decree in one suit giving rise to a dozen other suits growing out of questions as to the mode of serving its process. The suit is not ended by the judgment; it is still pending: Wegman v. Childs, 41 New York 159; Mann v. Blount, 65 N. C. 99, 101; Howell et al. v. Bowers, 2 Cr., M. & R. 621; Spann et al. v. Spann, 2 Hill's S. C. Ch. 156. So far as the present controversy is concerned, the question is between courts of co-ordinate jurisdiction. The suit was in equity, and might have been brought either in the United States or in the state court; and it is a principle too well settled to need authority that in such case the court whieh first acquires jurisdiction is to retain it, and is not to be interfered with by any other co-ordinate court, and that property in possession of the officers of the court is in possession of the court, and cannot be levied on by officers under authority of any other court of co-ordinate jurisdiction, whether state or Federal: Hagan v. Lucas, 10 Peters 400; Wallace v. McConnell, 13 Id. 136; Smith v. McIver, 9 Wheat. 532; Mallett v. Dexter, 1 Curtis 178; Buck v. Colbath, 3 Wall. 334, 341. Says Mr. Justice MCLEAN, in Hagan v. Lucas: "A most injurious conflict of jurisdiction would be likely often to arise between the Federal and the state courts, if the final process of the one could be levied on ptoperty which had been taken by process of the other." In that case the United States marshal had levied on property previously attached by the state sheriff.

And see, also, the remarks of Judge GRIER on the jurisdiction of the Federal and state courts in Ex parte Jenkins, 2 Wall. Jr. 521-525. And as between state and United States courts, it is well settled that as a general rule neither can enjoin the process of the other. In case of conflict of jurisdiction as to cases arising under the United States Constitution or laws, the Supreme Court of the United States at Washington is the final arbiter: Diggs v. Walcott, 4 Cranch 179; McKim v. Voorhies, 7 Cranch 279; Peck v. Jenness, 7 How. 612–625; City Bank v. Skellton, 2 Blatch. 26; Brooks v. Montgomery, 23 La. Ann. 450; and see Kendall v. Winsor, 6 R. I. 453; Coster v. Griswold, 4 Edw. Ch. 364–377; English et al. v. Millar et als., 2 Rich. S. C. Eq. 320;

and so as to a court of a sister state: Mead v. Merritt, 2 Paige 402-404; 2 Story on Const. (ed. of Cooley), § 1757; Story Eq. Juris. § 900; Conklin's U. S. Courts, 162-272 (4th ed. 1864); Conklin's U. S. Courts 176, 296 (5th ed. 1870); and see the very strong expressions of the majority of the Supreme Court of the United States, in Taylor v. Carryl, 20 How. 583, 596.

But it is said by the complainant that in this case an execution issued against A. has been levied on B.'s property, and that in such a case a state court may interfere; and he cites 1 Kent Comment. 410, supported by Cropper v. Coburn, 2 Curtis 465; Greene v. Briggs, 1 Id. 311. The latter was the case of liquor seized by an officer under a state law which said Greene replevied out of the possession of the state officer on a writ brought to the United States Circuit Court. In that case the question of jurisdiction was not raised.

Judge KENT cites as his authority Bruen v. Ogden, 6 Halst. N. J. 370, which was a case of replevin, and Dunn v. Vail, 7 La. Term R. 416, 3 Martin, La. 602, which latter was an action of trespass where there could be no actual conflict of jurisdiction, and therefore is no authority for us.

The doctrine contended for by complainant was also held by the Supreme Judicial Court of Massachusetts in a replevin case: Howe v. Freeman, 14 Gray 566. But this case was carried up to the Supreme Court of the United States and there reversed: Freeman v. Howe, 24 Howard 450, 457; where the opinion was delivered by NELSON, J., one of the oldest and most learned and experienced justices of that court. This case, as observed by Mr. Justice MILLER, 3 Wall. 341, took the profession by surprise, as overruling the decision of the Supreme Judicial Court of Massachu setts and the opinion of Chancellor KENT. But it was upon this very point expressly affirmed by the United States Supreme Court in Buck v. Colbath, 3 Wall. 334, 341. It is said that the marshal on execution against A. has no right to levy on the property of B., which is claimed to be the present case. The very point decided in these two latter cases was that in such a case the court from which the process issues must of necessity decide the question, and the case of Brooks v. Montgomery, 23 La. Ann. 450, is exactly in point. The decision there was that the state court would not enjoin the United States marshal from selling property, on the ground that the property was not the property

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of the defendant in the original suit, but of the person who applies for the injunction. It is asked if the marshal, on a writ against A. should arrest B., would not the state court grant relief? We think in that case the application should be to the court whose process is abused. Suppose, for instance, a case of disputed identity. The court issuing the process could decide it, and it could only lead to an unseemly conflict for another court to interfere.

It is to be observed that there is a great distinction between actions of replevin and injunctions which actually interfere with the process of a court, and actions of trespass and case where damages only are claimed against an officer, in which latter there is no danger of conflict, and which may be peaceably taken from the state court to the United States Supreme Court, whose decision is final: Buck v. Colbath, 3 Wall. 334, 343, 347.

It is argued that in actions of trespass and case the claimant only recovers damages, whereas he ought to be protected in the possession of the property itself. The same argument was urged in Freeman v. Howe, and was overruled.

It is said that here Chapin was not a party to the original suit, but was a stranger to it, and could have no remedy in the United States Circuit Court, growing out of the peculiar limitations on their jurisdiction over parties.

See

In a state court, and so also in the United States court, but for the limitation as to citizenship there can be no doubt that even a stranger who had suffered from the execution of a decree might obtain relief by petition to the court for an order in the case: 1 Hoff. Chanc. Prac. 89; Platto v. Deuster, 22 Wis. 482, 485, citing McChord's Heirs v. McClintock, 5 Littell, Ky. 304, where a person, not a party to a suit, who had been turned out of possession on the execution, was relieved by petition in the same suit. also Dyckman v. Kernochan, 2 Paige 26; Spann et al. v. Spann, 2 Hill S. C. Chanc. 156; Lane v. Clark, 1 Clarke (N. Y.) Ch. 307-9. And as to the United States courts, it seems to be settled by the case of Freeman v. Howe, 24 How. 450, 460, that where the process was in a suit at law, a bill on the equity side of the court would lie to regulate or restrain proceedings, and that such a bill would be not original but ancillary, and might be brought by any one whose interests were affected by the process. And while limiting the relief to parties before the court, or who may come before it, the same court, by Mr. Justice MILLER, in