Argument for Appellee.

Mr. Lew Wallace and Mr. A. W. Hatch for appellee.—Under the statutes of the State of Indiana, which would control in any action brought to recover the possession of the goods seized by the marshal, Krippendorf could have obtained the specific property and also damages for its detention. Rev. Stat. of Indiana, 1881, § 1266. That such an action would lie, see Drake on Attachment, § 340; Louthain v. Fitzer, 78 Ind. 449. Replevin was appellant's proper remedy. Still, in the abundance of legal redress, he is permitted a choice, and may now maintain, upon the facts averred, an action in trespass against the marshal for the wrongful seizure. There is no impediment to such proceedings shown, and no claim in the bill or in argument that the marshal is unable to respond in damages. It seems to us not only that the legal remedy is adequate, but that the relief at law is the very same as the relief afforded by a court of equity. It is elementary that where the legal remedy is adequate and certain, equity has no jurisdiction. Appellant's counsel attempt to break the force of this conclusion by insisting that, as the court of equity only supplements the proceedings at law, the usual prerequisites of original jurisdiction need not exist. This is true as applied to parties, but is far from true if made to govern principles. We have selected from the vast number of cases upon this subject those similar to that under consideration, and we refer the court to such authorities with the conviction that this subject is no longer a matter for controversy. Miller v. Crews, 2 Leigh (Va.), 576; Hamilton v. Shrewsbury, 4 Randolph (Va.), 427; Bowyer v. Creigh, 3 Randolph (Va.), 25; Allen v. Freeland, 3 Randolph (Va.), 170; Whitman v. Willis, 51 Texas, 429; Henderson v. Morrill, 12 Texas, 1; Davidson v. Seegar, 15 Florida, 671; Akin v. Davis, 14 Kansas, 143; Baker v. Rinehard, 11 W. Va. 238; Stilwell v. Oliver, 35 Arkansas, 184; Sheldon v. Stokes, 7 Stewart (N. J.), 87; Dawes v. Taylor, 8 Stewart (N. J.), 40; Freeman v. Elmendorf, 3 Halsted Ch. (N. J.) 475, 655; Greenup v. Brown, Breese (Ill.), 252; Coughron v. Swift, 18 Illinois, 414; Winch's Appeal, 61 Penn. St. 424; Imlay v. Carpentier, 14 California, 173; Markley v. Rand, 12 California, 275; Johnson v. Bank, 21

Opinion of the Court.

Connecticut, 148; Watkins v. Logan, 3 T. B. Monroe (Ky.), 21; Bouldin v. Alexander, 7 id. 425; Hall v. Davis, 5 J. J. Marshall (Ky.), 290; Gurby v. Bell, 40 Georgia, 133; McIndoe v. Hazleton, 19 Wisconsin, 567; Macy v. Lloyd, 23 Ind. 60; Lewis v. Levy, 16 Maryland, 85; Freeland v. Reynolds, 16 Id. 416; Chappell v. Cox, 18 Id. 513; Hammond v. St. John, 4 Yerger (Tenn.), 107; Du Pre v. Williams, 5 Jones Eq. (N. C.) 96; Howell v. Howell, 5 Iredel Eq. (N. C.) 258; Garstin v. Asplin, 1 Maddock Ch. 150. In Pennock v. Coe, 23 How. 117, and in Freeman v. Howe, above cited, the complainants had equitable claims to the property, and there was thus no doubt as to the jurisdiction. In Gue v. The Tide Water Canal Company, 24 How. 257, the relief was granted because a court of law could not fully protect all interests. Mr. Justice Nelson did not intend to make his remarks of universal application, out had in mind only the case before him. This same comment has been made upon Freeman v. Howe, by this court, in Buck V. Colbath, 3 Wall. 334, and Christmas v. Russell, 14 Wall. 69. In Buck v. Colbath, commenting upon what was said of equitable proceedings in Freeman v. Howe, this courtsaid: "The proceeding here alluded to is one unusual in any court, and is only to be resorted to in the federal courts, in extraordinary cases where it is essential to prevent injustice by an abuse of the process of the court, which cannot otherwise be remedied." Taking all these cases together, we see nothing in them entrenching upon our position. The law, as well settled is, that to supplement proceedings at law, equity will only interfere in proper cases for equitable relief; and the test is whether the remedy at law is adequate and certain. That Krippendorf upon the facts stated in his bill has such remedy at law, is not an open question in this court. See Buck v. Colbath, above cited, and Sharpe v. Doyle, 102 U. S. 686.

MR. JUSTICE MATTHEWS delivered the opinion of the court. After reciting the facts in the language above stated, he continued:

According to the law of Indiana, the giving of the delivery bond did not divest the lien of the attachment upon the goods,

Opinion of the Court.

which remained, in contemplation of law, in the possession of the officer, Gass v. Williams, 46 Ind. 253; so that if the proceedings had been in the State court the appellant, while the goods remained in specie, on demand and refusal of a return of the property to him by the officer, might have maintained an action of replevin on proof of title. Louthain v. Fitzer, 78 Ind. 449.

Having disposed of the goods, so that he could not return them in specie, it would seem that no action of replevin could thereafter be brought, and, on general principles, he could not set up his ownership as a defence to an action on the bond. Drake on Attachment, § 340. Under the practice in Indiana he would not be permitted to become a party to the suit in order to have his title there determined. Risher v. Gilpin, 29 Ind. 53. And, accordingly, in the attachment suit of Hyde Brothers against Frey & Maag, as stated in the bill, the appellant, having been at first made a party on his own motion, was subsequently dismissed from it. Payment of the appraised value of the attached property to the marshal, which, by the terms of the delivery bond, he was bound to make, it can hardly be insisted deprived him of his title to the goods and their proceeds. Without giving the delivery bond, it is true, the owner could have brought suit against the marshal for trespass, although that would not in all cases furnish an adequate remedy by giving damages for the value of the property taken. Watson v. Sutherland, 5 Wall. 74.

The only legal remedy which can be said to be adequate for the purpose of protecting and preserving his right to the possession of his property was an action of replevin. Of this remedy at law in the State court he was deprived by the fact that the proceedings in attachment were pending in a court of the United States, because the property attached, being in the hands of the marshal, is regarded as in the custody of the court. This was the point decided in Freeman v. Howe, 24 How 450, the doctrine of which must be considered as fuily and firmly established in this court. In meeting the objections made in argument to the conclusion of the court in that case, Mr. Justice Nelson, delivering its opinion, used the following language:

Opinion of the Court.

"Another misapprehension under which the defendant in error labors, and in which the court below fell, was in respect to the appropriate remedy of the plaintiffs in the replevin suit for the grievance complained of. It was supposed that they were utterly remediless in the federal courts, inasmuch as both parties were citizens of Massachusetts. But those familiar with the practice of the federal courts have found no difficulty in applying a remedy, and one much more effectual than replevin, and more consistent with the order and harmony of judicial proceedings, as may be seen by reference to the following cases: 23 How. 117; Pennock et al. v. Coe; Robert Gue v. The Tide Water Canal Company, 24 How. 257; 12 Pet. 164; 8 id. 1; 5 Cranch, 288.

"The principle is that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to an original suit out of which it has arisen, and is maintained without reference to the citizenship or residence of the parties."

"The case in 8 Pet. 1, which was among the first which came before the court, deserves, perhaps, a word of explanation. It would seem, from a remark in the opinion, that the power of the court upon the bill was limited to a case between the parties to the original suit. This was probably not intended, as any party may file the bill whose interests are affected by the suit at law."

It has been sometimes said that this statement was obiter dictum, and not to be treated as the law of the case; but it was, in point of fact, a substantial part of the argument in support of the judgment, and, on consideration, we feel bound to confirm it in substance as logically necessary to it. For if we affirm, as that decision does, the exclusive right of the Circuit Court in such a case to maintain the custody of property seized and heid under its process by its officers, and thus to take from owners, wrongfully deprived of possession, the ordinary means of redress by suits for restitution in State courts, where any one may sue, without regard to citizenship, it is but common justice to furnish them with an equal and adequate remedy in the court itself which maintains control of the property; and, as this may

Opinion of the Court.

not be done by original suits, on account of the nature of the jurisdiction as limited by differences of citizenship, it can only be accomplished by the exercise of the inherent and equitable powers of the court in auxiliary and dependent proceedings incidental to the cause in which the property is held, so as to give to the claimant, from whose possession it has been taken, the opportunity to assert and enforce his right. And this jurisdiction is well defined by Mr. Justice Nelson, in the statement quoted, as arising out of the inherent power of every court of justice to control its own process so as to prevent and redress wrong.

This principle was illustrated and applied in the case of Bank v. Turnbull, 16 Wall. 190. There, under a statute of Virginia, the claimant of property taken in execution upon a judgment rendered against another, gave to the sheriff a suspending and forthcoming bond, which stayed the sale and maintained his possession of the property until the title could be determined by a statutory interpleader. This issue having been properly directed in the State court, between parties who were citizens of different States, a petition was filed for its removal to the Circuit Court of the United States, under the removal act of March 2d, 1867. The order of removal was reversed by this court on the ground that the suit "was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation;" that "it was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required should be done touching the property in the hands of its officers. It was intended to enable the court, the plaintiff in the original action, and the claimant to reach the final and proper result by a processs at once speedy, informal, and inexpensive."

No one, even in equity, is entitled to be made or to become a party to the suit unless he has an interest in its object, Calvert on Parties, 13; yet it is the common practice of the court to permit strangers to the litigation, claiming an interest in its subject-matter, to intervene on their own behalf to assert their titles.