nearly all the processes of the admiralty courts by which the res is brought before it for its action.

2. Those in which the officer is directed to levy the process upon property of one of the parties to the litigation, sufficient to satisfy the demand against him, without describing any specific property to be thus taken. Of this class are the writ of attachment, or other mesne process, by which property is seized before judgment to answer to such judgment when rendered, and the final process of execution, elegit, or other writ, by which an ordinary judgment is carried into effect.

It is obvious, on a moment's consideration, that the claim of the officer executing these writs, to the protection of the courts from which they issue, stands upon very different grounds in the two classes of process just described. In the first class he has no discretion to use, no judgment to exercise, no duty to perform but to seize the property described. It follows from this, as a rule of law of universal application, that if the court issuing the process had jurisdiction in the case before it to issue that, process, and it was a valid process when placed in the officer's hands, and that, in the execution of such process, he kept himself strictly within the mandatory clause of the process, then such writ or process is a complete protection to him, not only in the court which issued it, but in all other courts.

Yet

our protection, belongs to this latter class.
the plea on which he relied contains no denial
that the property seized was the property of
plaintiff, nor any averment that it was the
property of either of the defendants in the at-
tachment suit, or that it was in any other man-
ner subject to be taken under that writ.

Seizing upon some remarks in the opinion of the court in the case of Freeman v. Howe, 24 How. 450, 16 L. ed. 749, not necessary to the decision of that case, to the effect that the court first obtaining jurisdiction of a cause has a right to decide every issue arising in the progress of the cause, and that the Federal court could not permit the state court to withdraw from the former the *decision of such is- [*345 sues, the counsel for plaintiff in error insists that the present case comes within the principle of those remarks.

It is scarcely necessary to observe that the rule thus announced is one which has often been held by this and other courts, and which is essential to the correct administration of justice in all countries where there is more than one court having jurisdiction of the same matters. At the same time, it is to be remarked that it is confined in its operation to the parties before the court, or who may, if they wish to do so, come before the court and have a hearing on the issue so to be decided. This limitation was manifestly in the mind of the court in the case referred to, for the learned judge who And in addition to this, in many cases the delivered the opinion goes on to show, that percourt which issued the process will interfere sons interested in the possession of the propdirectly to protect its officers from being har- erty in the custody of the court, may, by petiassed or interfered with by any person, whether tion, make themselves so far parties to the proa party to the litigation or not. Such is the ceedings as to have their interests protected, alhabitual course of the court of chancery, oper- though the persons representing adverse interating by injunction against persons who interests in such case do not possess the qualifica344*] fere by means of other courts. *And in- tion of citizenship necessary to enable them to stances are not wanting where other courts sue each other in the Federal courts. The prohave in a summary manner protected their of- ceeding here alluded to is one unusual in any ficers in the execution of their mandates. 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. But it is not true that a court, having obtained jurisdiction of a subject-matter of a suit, and of parties before it, thereby excludes all other courts from the right to adjudicate upon other matters having a very close connection with those before the first court and, in some instances, requiring the decision of the same questions exactly.

It is creditable, however, to the respect which is paid to the process of courts of competent jurisdiction in this country, that the occasion for the exercise of such a power is very rare.

In the other class of writs to which we have referred, the officer has a very large and important field for the exercise of his judgment and discretion. First, in ascertaining that the property on which he proposes to levy is the property of the person against whom the writ is directed; second, that it is property which, by law, is subject to be taken under the writ; and third, as to the quantity of such property necessary to be seized in the case in hand. In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure. And what is more important to our present inquiry, the court can afford him no protection against the parties so injured; for the court is in no wise responsible for the manner in which he exercises that discretion which the law reposes in him, and in no one else.

In the case before us, the writ under which the defendant justified his act and now claims

In examining into the exclusive character of the jurisdiction of such cases, we must have regard to the nature of the remedies, the character of the relief sought, and the identity of the parties in the different suits. For example, a party having notes secured by a mortgage on real estate, may, unless restrained by statute, sue in a court of chancery to foreclose his mortgage, and in a court of law to recover a judgment on his notes, and in another court of law in an *action of ejectment to get pos- [*346 session of the land. Here, in all the suits the only question at issue may be the existence of the debt mentioned in the notes and mortgage; but as the relief sought is different, and the mode of proceeding is different, the jurisdiction of neither court is affected by the proceeding in the other. And this is true, notwithstanding

Ann Duffield, and James Younge, her Husband, Plffs. in Err.,

v.

FRANCIS GUILBEAU et al.

(See S. C. 3 Wall. 636–642.)

the common object of all the suits may be the | PRISCILLA ANN YOUNGE, late Priscilla collection of the debt. The true effect of the rule in these cases is that the court of chancery cannot render a judgment for the debt, nor judgment of ejectment, but can only proceed in its own mode to foreclose the equity of redemption, by sale or otherwise. The first court of law cannot foreclose or give a judgment of ejectment, but can render a judgment for the payment of the debt; and the third court can give the relief by ejectment, but neither of the others. And the judgment of each court in the matter properly before it is binding and conclusive on all the other courts. This is the illustration of the rule where the parties are the same in all three of the courts.

The limitation of the rule must be much stronger, and must be applicable under many more varying circumstances, when persons not parties to the first proceeding are prosecuting their own separate interests in other courts.

The case before us is an apt illustration of these remarks. The proceeding in the attachment suit did not involve the question of the title of Colbath, defendant in error, to the prop erty attached. The whole proceeding in that court, ending, as it might, in a judgment for the plaintiff, an execution and sale of the property attached, and satisfaction thereby of the plaintiff's debt, may be, and in such cases usually is, carried through without once requiring the court to consider the question of title to the property. That is all the time a question between the officer, or the purchaser at his sale, on the one side, and the adverse claimant on the other. There is no pretense, nor does any one understand, that anything more is involved or concluded by such proceedings, than such title to the property as the defendant in attachment had when the levy was made. 347*] *Hence, it is obvious that plaintiff in error is mistaken when he asserts that the suit in the Federal court drew to it the question of title to the property, and that the suit in the state court against the marshal could not withdraw that issue from the former court. No such issue was before it, or was likely to come

before it, in the usual course of proceeding in

such a suit.

It is true, that if under the intimations in Freeman v. Howe, the claimant of the property had voluntarily gone before that court and asked by petition that the property be released from the attachment and restored to his possession, he might have raised such issue, and would have been bound by its decision. But no such application was made, no such issue was in fact raised, and no such issue belonged ordinarly to the case. We see nothing, therefore, in the mere fact that the writ issued from the Federal court, to prevent the marshal from being sued in the state court, in trespass for his own tort, in levying it upon the property of a man against whom the writ did not run, and on property which was not liable to it.

Deeds

construction of Texas statute as to filing-what constitutes a delivery of.

Under a Texas statute allowing a deed to be given in evidence if filed three days before the trial, unless the opposite party shall, within one day after notice of filing, file an affidavit that he believes the instrument to be forged, if such affidavit is filed, the party relying upon the deed must make proof of its execution, as required by the rule of the common law.

The delivery of a deed is essential to the transfer of the title.

To constitute such delivery, the grantor must part with the possession of the deed or the right to retain it.

Its registry by him might, perhaps, in the absence of opposing evidence, justify a presumption of delivery.

Such presumption is repelled when the registry was made without the assent of the grantee, who had no knowledge of the existence of the deed, and the property remained in the possession of the grantor

[No. 40.]

Argued Mar. 22, 1866. Decided Apr. 3, 1866.

IN ERROR to the District Court of the Unit

ed States for the Western District of Texas. This was an action of trespass brought in the court below in conformity with the statute of the state of Texas, to try title to a lot of about four acres of ground situated in the city of Antonio. The plaintiffs in error, who were also the plaintiffs below, proved title to the locus in quo to have been originally in George Antonio Nixon; that said Nixon was dead, and that the plaintiff, Priscilla Ann, was his sole heir. The defendants also claimed under Nixon, and sought to show that the title had passed from Nixon to one Alfred J. Shelby, through whom, by derivative conveyances, they claimed to have acquired it; or if this was not the case, that the plaintiff, Priscilla Ann, was estopped by her trary, and that thereby, as against her, they be acts and declarations from asserting the concame possessed of the superior right and title

The trial resulted in judgment for the defendants, and the plaintiffs brought the case to this court on numerous exceptions to the admission of evidence and the charge of the court. Only a few of these exceptions are noticed by this court, and they sufficiently appear in the opinion.

Mr. Reverdy Johnson and John H. Ragan, for plaintiffs in error.

Mr. George W. Paschal for defendants in error.

Mr. Justice Field delivered the opinion of the court:

The state of Texas has provided by her legislation, as has been done in other states, a sys

The judgment of the Supreme Court of Minnesota is affirmed, with costs, and in No. 136 of pass the title-see note to Tompkins v. Wheeler, 10 our docket between the same parties.

NOTE.-What is sufficient delivery of a deed to L. ed. U. S. 903.

tem for the registry of deeds and conveyances | necessarily involved proof of its delivery. The affecting the title to real property; and in con- evidence offered, so far as appeared by the recnection with it, has modified, in some particu- ord, showed that the grantor never parted with lars, the rule of the common law with respect its possession, except as may be inferred from to the proof of their execution, when produced the fact of its registry. And the grantee testiin the course of legal proceedings. One of her fied that he never knew of its existence until statutes enacts that every such instrument, after the death of the grantor, among whose 640*] when *duly acknowledged and recorded papers it was found; and that he never claimed pursuant to laws in force at the time, shall be any interest in the property. Yet the court inadmitted in evidence without proof of its execu- structed the jury that as there was no contest tion, if the party desiring its introduction file of creditors against the deed, the instrument it among the papers of the suit three days be- was binding, whether delivered or not. In this fore the commencement of the trial, and give instruction there was also clear error. The denotice of the filing to the opposite party, un- livery of a deed is essential to the transfer of less such opposite party, or some one for him, the title. It is the final act, without which all shall, within one day after the notice, file an other formalities are ineffectual. To constitute affidavit that he believes the instrument to be such delivery the grantor must part with the forged. The same statute enacts that when a possession of the deed, or the right to retain it. party shall file an affidavit of the loss of the Its registry by him is entitled to great considrecorded instrument, or his inability to procure eration upon this point, and might, perhaps, the original, a certified copy of the record shall justify, in the absence of opposing evidence, a be admitted in like manner as the original. presumption of delivery. But here any such This latter provision does not dispense with presumption is repelled by the attendant and the proof which is exacted when the original subsequent circumstances. Here the registry instrument is filed, in case an affidavit alleging was of course made without the assent of the a belief of its forgery is made; it only allows grantee, as he had no knowledge of the existence the certified copy to take the place of the orig- of the deed, and the property it purported to inal when that is lost or cannot be procured. convey always remained in the possession and It was not intended to give to the copy pro- under the control of the grantor. Jackson v. duced under such circumstances greater weight Phipps, 12 Johns. 419; Jackson v. Leek, 12 than to the original itself. To avail himself, Wend. 105; Maynard v. Maynard, 10 Mass. 456; therefore, of the statute, the party must, in all Wiggins v. Lusk, 12 Ill. 132; Roosevelt v. cases, file, as therein prescribed, the original or Carow, 6 Barb. 194. the copy from the record, and give notice of the filing; and even then the statutory proof will be insufficient, if the affidavit alleging a belief of its forgery be made. Such affidavit being filed, the party relying upon the deed must make proof of its execution, with all its essential formalities, as required by the rule of the common law.

The court below held otherwise, and instructed the jury, in substance, that the affidavit with respect to the deed under which the defendants claimed in this case, only laid the foundation upon which she might introduce evidence to sus- | tain the charge, and to show that such deed was in fact a forgery, and refused an instruction requested, that under these circumstances it devolved upon the defendants to show the due execution of the instrument.

The ruling of the court in this particular was clearly erroneous. The plaintiff, contesting the validity of the deed, was at liberty to show that 641*] it was a forgery without a previous *affidavit of his belief on the subject. The affidavit was only required to meet the notice under the statute, that the adverse party intended to rely upon the statutory proof.

No attempt was made to meet the requirements of the common law in the proof of the deed. The affidavits of its loss only negatived, upon information and belief, its possession by some of the defendants. Its possession by some

of them was consistent with every averment

made. The defendants relied alone upon the copy from the record, and the court erroneously held that such copy was sufficient.

*The judgment of the District Court [*642 must be reversed, and the cause remanded for a new trial; and it is so ordered.

LOUISE DE SOBRY, Plff. in Err.,

v.

JOHN NICHOLSON.

(See S. C. 3 Wall. 420-424.)

Exception must be taken in court below-objection to jurisdiction on ground of citizenship— too late after plea of general issue-in equity, verdict cures title defectively stated.

No exception can be considered here which was not taken in the court below.

Objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement.

After the general issue, it is too late; it cannot be raised at the trial upon the merits. If a plea in abatement be filled with the general issue, the latter waives the former.

In equity, the defense must be presented by plea or demurrer, and not by answer.

A title defectively stated, is cured by the verdict.

[No. 60.]

Argued Mar. 22, 1866. Decided April 3, 1866.

IN ERROR to the Circuit Court of the United

States for the Eastern District of Louisiana.

NOTE. Exception, when must be taken to be available on review-sec note to Phelps v. Meyer, 14 L. ed. U. S. 643.

We might rest our decision here, but it is proper to notice another ruling of the court below, to prevent its repetition on a second trial. The proof of the execution of the deed states-see note, 63 L. R. A. 33.

How and when questions must be raised and decided in a state court in order to make a case for a irrit of error from the Supreme Court of the United

Sending money and negotiable notes out of the "That if the defendants were about to restate, to pay in good faith an honest debt which was contracted there, and in the usual course of move their property beyond the limits of the trade, must be paid there, is not ground for an at-state, the plaintiffs would have had the right

Dunham & Kearfoot were in failing circumstances, and in March, 1858, suspended payment. At that time their aggregate indebtedness to defendants in error was $6,419.22; and the indebtedness of plaintiffs in error to Dun-edness, and it is unreasonable to extend it to a ham and Kearfoot was about $5,100.