[*PRACTICE.] show that better title to be transmitted to himself. Since the registration in the county where the land lies, and which is the only registration deemed valid in this cause, gave the prior registration to the prior deed, and thus took away every claim to precedence from the deed under which the plaintiff below made title, the court must be adjudged to have erred in its charge upon that subject. On the implied proposition, that the better title might be set up as a shield 524* against the plaintiff's *recovery in ejectment, even though the defendant does not show that better title in himself, we will limit ourselves to the following remarks: The rule of law, that a plaintiff must recover by the strength of his own title, and not the weakness of his adversary's, must be limited and explained by the nature of each case as it arises. Since the rule is universal that a plaintiff in ejectment must show the right to possession to be in himself positively, and it is immaterial as to his right of recovery, whether it be out of the tenant or not, if it be not in himself, it follows that a tenant is always at liberty to prove the title out of the plaintiff, although he does not prove it to exist in himself. Possible difficulties may be suggested as to the application of this principle to mere tort feasors or forcible disseisors; but besides that such cases, being generally provided for under statutes of forcible entry, must be of rare occurrence, it is time enough, when they occur, to consider what exceptions they present to the general principle. The last point proper to be noticed, is that made in the former argument, on the question of revocation of the power of attorney under which the junior deed was executed. This was supposed to be virtually revoked by the prior conveyance of the same land, exe E STEWART v. INGLE ET AL. [*526 RROR to the Circuit Court for the District of Columbia. At a former day of this term, Mr. Hay, for the plaintiff in error, had obtained a certiorari, upon a suggestion of diminution in the record, directed to the court below, and returnable immediate. The clerk of the Circuit Court accordingly made return to the certiorari, with another record. Whereupon, Mr. Hay moved for a new certiorari, upon the ground that the return ought to have been made by the judge of the court below, and not by the clerk. Mr. Justice WASHINGTON, after consultation with the judges, stated, that according to the rules and practice of the court, a return made by the clerk was a sufficient return. Motion denied. cuted by Donaldson, who gave the power. And MR. CHIEF JUSTICE MARSHALL de this, on general principles, is unquestionably correct. Whatever liabilities, for damages or otherwise, Donaldson might have incurred by not revoking the power by due notice, it is un525*] questionable *that a power must cease and determine when there is nothing left for it to act upon. It will be seen, however, that this question resolves itself into the principal question in the cause, to wit, whether the first deed ever was a subsisting valid conveyance. If it was not, then the ground of the argument fails, for the estate had not, in effect, ever passed out of Donaldson; and if it was, then its effect is complete, without recurring to the ground of revocation. Judgment reversed. JUDGMENT. This cause came on to be heard, &c. On consideration whereof, this court is of opinion, that the said Circuit Court erred in instructing the jury that the lessor of the plaintiff had the better title to the land in controversy." It is therefore adjudged and ordered that the judgment of the said Circuit Court in this case be, and the same is hereby reversed and annulled; and it is further ordered that said cause be remanded to the said Circuit Court, with instructions to issue a venire facias de novo. Cited-10 How. 325; McAll. 230. livered the opinion of the court: This is a writ of error to a judgment in the Circuit Court of the United States for the county of Washington, in the District of Columbia, rendered for the sum of $591. The writ was dismissed in the early part of the term, for want of jurisdiction, the judgment being for less than $1,000. The plaintiff in error now moves to re-instate the cause, alleging that the damages laid in the declaration, not the amount of the judgment, is the matter in controversy between the parties. The property of the plaintiff in error had been seized for rent, upon which she sued out a writ of replevin, and laid her damages in the declaration at $1,000. The defendant in error acknowledged the taking charged in the declaration, and justified it as a distress for the sum of $591, due for rent in arrear. The judgment of the court was in favor of the avowant, for the amount of the rent claimed. *The plaintiff in error contends that [*528 her suit was not merely for restitution of the property taken, but also for damages, and that, in such a case, the value of the matter in dispute is the sum laid in the declaration. Her counsel relied on the case of Hulscamp v. Teel (2 Dallas, 358), and on Cook v. Woodrow (5 Cranch, 13), to show that, in actions sounding in damages, the sum laid in the declaration is the standard of value. The case in Dallas was an action of trespass, and that in Cranch an action of trover. We think this case stands on different principles from either | posing its authority, and would do so only in of those. In a writ of replevin, the real mat- a plain case. ter in controversy is the sum claimed as rent. Some doubts are felt in this court respecting or the property replevied. If the replevin he, the extent of its authority as to the conduct of as in this case, of property distrained for rent, the circuit and district courts towards their ofthe amount for which avowry is made is the ficers; but without deciding on this question, real matter in dispute. The damages are mere the court is not inclined to interpose, unless it ly nominal. If the writ be issued as a means were in a case where the conduct of the Cirof trying the title to property, it is in the nat-cuit or District Court was irregular, or was ure of detinue, and the value of the article re-flagrantly improper. plevied is the matter in dispute. In this case, the judgment against the plaintiff in error being for less than $1,000, this court has no jurisdiction, and the motion to replace the cause on the docket must be overruled. Motion denied. In the case at bar, the proceedings were supposed to be irregular, because Mr. Burr was put to answer charges not made on oath. That the charges, in a regular complaint against an attorney, ought not to be received and acted on, unless made on oath, is admitted. It is a course of proceeding which is recommended by considerations, *too obvious [*531 to require that they should be urged. But this is not a proceeding of that description. The court did not call on Mr. Burr to answer an accusation in the nature of an information against him. The inquiry was invited by himself; the charges were made at his instance; and the Quere, As to the authority of this court to inter-court proceeded on them at his request. Mr. fere, by mandamus, in the case of the removal or 529*] [*PRACTICE. JURISDICTION.] Ex-parte BURR. suspension of an attorney of the district and cir cuit courts. Mr. Chief Justice MARSHALL delivered the opinion of the court: This is a motion for a mandamus to the Circuit Court for the District of Columbia, to restore Mr. Burr to his place of attorney at the bar of that court. It is a very unusual application, on which the court has felt considerable doubts. 530*] *On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judg ment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the court itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of inter 1. Mr. Emmett cited Tidd's Pract. 59; 1 Johns. Cas. 134, 181; Bac. Abr. tit. Mandamus. Burr himself, then, dispensed with the preliminary step of an affidavit to the charges which were to constitute the subject of that inquiry. He waived this preliminary. The testimony on which the court proceeded was all on oath, and obtained in a manner which is not exceptionable. There is, then, no irregularity in the mode of proceeding which would justify the interposition of this court. It could only interpose, on the ground that the Circuit Court had clearly exceeded its powers, or had decided one which ought to be exercised with great caution, but which is, we think, incidental to all courts, and is necessary for the preservation of decorum, and for the respectability of the profession. Upon the testimony, this court would not be willing to interpose where any doubt existed. It is the less inclined to interpose in this case, because the complaint is not of an absolute removal, but of a suspension, which is nearly expired, after which, Mr. Burr may be restored by the court itself, should not very serious objections exist to that measure. Motion denied. erroneously on the testimony. The power is See S. C. 2 Cranch, C. C. 379. Cited--7 Wall. 377, 378, 380; 1 Wood. & M. 72, 256, 374, 448, 504; 2 Wall., Jr., 138, 151, 200. [*CHANCERY. JURISDICTION.] [*532 SMITH v. M'IVER. In all cases of concurrent jurisdiction, the court which first has possession of the subject, must determine it conclusively. Although courts of equity have concurrent jurisdiction with courts of law, in all matters of fraud, yet, where the cause has already been tried and determined by a court of law, a court of equity cannot NOTE.-Equity jurisdiction after trial-at-law.-A court of chancery cannot, on a creditor's bill, correct the errors of a court of law. Suydam v. Beals, 4 McLean, 12. Where a case was properly examinable at law, and a trial at law has been had, and no exception taken take cognizance of it, unless there be the addition | blank, and was filled up by the grantees, of all of some equitable circumstance to give jurisdiction. In such a case, some defect of testimony, or other disability, which a court of law cannot remove, must be shown, as a ground for resorting to a court of equity. which the said M'Iver had notice, before he received his conveyance. That M'Iver contends sometimes, that the grant issued on one set of warrants, and sometimes on another, and has caused it to be registered in Knox county, APPEAL from the Circuit Court of West in one way, and in Overton, where the land lies, Tennessee. This cause was argued by Mr. Eaton and Mr. Isaacks for the appellants, and by Mr. White and Mr. Spaten for the respondents. Mr. Chief Justice MARSHALL delivered the opinion of the court: This is an appeal from a decree of the Circuit Court of the United States for the District of West Tennessee, dismissing the plaintiff's bill. The bill states that the plaintiff had made 533*] several entries for small tracts of land within the district, for which he had obtained patents. That the defendant, John M'Iver, claiming title to the same land, under an older grant, obtained by Donaldson and Tyrrel, had brought ejectments against him for the several tracts of land he claims, and has obtained judg. ment in some of them. That he has attempted to bring the causes before this court by writ of error, but has been unable to do so, because no one of his tracts is worth two thousand dollars; though all of them, taken together, are worth a larger sum. The bill alleges that the grant to Donaldson and Tyrrel is a pretended grant, purporting to be issued by the state of North Carolina, in the year 1795; that if genuine, it does not cover his land, because it calls for 40,000 acres only, but includes 70,000 within its boundaries; that the grant is not founded on any warrants, or, if upon any, on those previously granted; and the numbers of the warrants have been inserted in the plat and certificate by the grantees since the grant issued; that it is probable the grant never did issue, but was stolen out of the office in to the ruling of the court, chancery can give no relief. Hendrickson v. Hinkley, 5 McLean, 211. Courts of the U. S. have equity jurisdiction to rescind a contract on the ground of fraud, notwithstanding one of the parties to it has been proceeded against on the law side of the court, and a judgment has been obtained against him for a part of the money agreed to be paid by the contract, when the fraud could have been only partially available as a defense to the action at law. Proceedings on the judgment may be enjoined. Boyce v. Grundy, 3 Pet. 210. Concurrent Jurisdiction of Tribunals.-Where two tribunals have concurrent jurisdiction, the one which first obtains possession of the subject must adjudicate; and neither party can be forced into another jurisdiction. Shelby v. Bacon, 10 How. 56; Mallett v. Dexter, 1 Curt. C. C. 178. Where concurrent jurisdiction may be exercised by the federal and state authorities, the court which first takes jurisdiction cannot be interfered with by another court, state or federal. Ex-parte Robinson, 6 McLean, 355; S. C. 3 Liv. Law Mag. 386. When the district courts and the state courts have concurrent jurisdiction in rem, the right to maintain the jurisdiction attaches to that tribunal in another; and to avoid detection, has torn the plat and certificate of survey from the grant. And, finally, that the state of North [*534 Carolina had no power to issue the grant. The defendant demurred to this bill, and on argument, the demurrer was sustained, and the bill dismissed. The first question made in the cause, is the jurisdiction of the court, sitting as a court of chancery. It is contended, on the part of the respondent, that a court of equity can exercise no jurisdiction in the case, because the plaintiff has full and adequate remedy at law. The several allegations of the bill have been reviewed; and it is contended that each of them is examinable at law, and ought to be decided in precisely the same manner in both courts. If the surplus quantity of land contained in the patent, avoids the grant, in whole or in part, in a court of equity, its effect would be the same in a court of law. If the grant be void, because issued without warrants, or on warrants previously satisfied, it is void at law. So with respect to the allegations that it was stolen out of the land-office; that the plat and certificate of survey have been torn off; that North Carolina had no power to issue it; and so with respect to every allegation in the bill. The facts alleged are all examinable at law, and a court of law is as capable of deciding on them as a court of equity. In such a case, the existence of some fact, which disables the party having the law in his favor, from bringing his case fairly and fully before a court of law, has been generally supposed to be indispensable to the jurisdiction of a court of equity. Some defect of testimony, some disability, which a court of law [*535 cannot remove, is usually alleged as a motive for coming into a court of equity. But, in the case at bar, the bill alleges nothing which can prevent a court of law from exercising its full judgment. No defect of testimony is alleged; no discovery is required; no appeal is made to the conscience of the defendant. Facts are al which first exercises it, and takes possession of the thing in litigation. This is indispensable to prevent a clashing of jurisdiction. The Robert Fulton, 1 Paine, 620. When there is concurrent jurisdiction of a federal and state court to take cognizance of the offense of counterfeiting, the judgment of one would not be pleadable either in abatement or in bar of an indictment by the other. But, by the rule of comity, the one first acquiring jurisdiction of the case will not be interfered with by the other during the pendency of the proceedings, in criminal as well as in civil actions. Hence, where a United States marshal took a prisoner, arrested for a crime, from the custody of a state officer, for the same offense, and the prisoner pleaded the proceedings in the State Court in abatement of the indictment, the Federal Court sustained the indictment, but remanded the prisoner to the state authorities. U. S. v. Wells, 11 Am. L. Reg. 424. As to the jurisdiction of the courts of the United States in chancery cases, concurrent with the law jurisdiction of those courts. See Massic v. Watts, 6 Cranch, 148; Hepburn v. Dunlop, 1 Wheat. 179; U. S. v. Howland, 4 Wheat. 108; Bank of U. S. v. Planters' Bk. of Georgia, post, 904. leged which have precisely the same operation in a court of law as in a court of equity; and the bill does not even insinuate that they cannot be proved at law. The argument on the other side is, that the bill charges gross fraud on those under whom the defendant claims, and charges him with knowledge of that fraud; and that courts of equity have concurrent jurisdiction with courts of law, in all matters of fraud. Admitting this proposition to be true, to the full extent in which it is stated, it will not, we think, aid the case. In all cases of concurrent jurisdiction, the court which first has possession of the subject must decide it. The questions in these cases have all been decided at law, and the party can have no right to bring them on again before a court of chancery. Were a court of equity, in a case of concurrent jurisdiction, to try a cause, already tried at law, without the addition of any equitable circum: stance to give jurisdiction, it would act as an appellate court, to affirm or reverse a judgment already rendered, on the same circumstances, by a competent tribunal. This is not the province of a court of chancery. But where the suit is brought against a remote indorser, and the plaintiff, in his declaration,traces his title through an intermediate indorser, he must show that this intermediate indorser could have sustained his action in the Circuit Court. A plea to the jurisdiction of the Circuit Court must show that the parties were citizens of the same state at the time the action was brought, and jurisdiction depends upon the state of things at the not merely at the time of the plea pleaded. The time of the action brought; and after it is once vested, it cannot be ousted by a subsequent change of residence of either of the parties. ERROR to the District Court of Mississippi. This cause was argued by Mr. Jones' for the *plaintiffs, and by Mr. Rankin' for the [*538 defendant. Mr. Chief Justice MARSHALL delivered the opinion of the court: The declaration in this cause contains two Dunn, and indorsed by him to the defendant, Torrance, by whom it was indorsed to H. J. Lowrie, and by him to the plaintiffs. The other count is for money had and received by the defendant to the plaintiffs' use. The appellant has relied on the case of Win536*] chester *v. Evans, et al. (Cook's Tenn. Rep., 420). That was a bill in the Court of counts. The first is against the defendant, Chancery of Tennessee, to be relieved against Torrance, as indorser of a promissory note, a judgment rendered in the state court of Penn-made by Spencer & Dunn, payable to Sylvester sylvania, on the suggestion that it was a trial by surprise, in the absence of the party and of his witnesses. The defendant filed a plea in bar, denying the surprise alleged in the bill, and averring that the trial was a full and a fair one, and that the judgment was rendered on all the testimony belonging to the cause. The plaintiff demurred; and, on the argument of the demurrer, the court said, "taking the matter of the plea to be true, it would bar an investiga tion in this court. If the complainant chooses to deny the truth of this plea, he can still reply to it, as well as to the answer; and he may then have an opportunity of showing that there was not a full and fair trial; and that therefore the judgment ought, in equity, to have no effect. But while ever I am constrained to believe that there was a full and fair trial in a court of law, it will be an objection with me, to a re-investigation in a court of equity." This case appears to the court to decide the very principle laid down in the preceding part of this opinion. Admitting, then, the concurrent jurisdiction of the courts of equity and law, in matters of fraud, we think the cause must be decided by the tribunal which first obtains possession of it, and that each court must respect the judgment or decree of the other. A question decided at 537*] law, cannot be reviewed in a court of equity, without the suggestion of some equitable circumstance, of which the party could not avail himself at law. The declaration states the plaintiffs to be citizens of New York, and the defendant to be a citizen of Mississippi, but is silent respecting the citizenship or residence of Lowrie, the immediate indorser of Torrance, through whom the plaintiffs trace their title to the money for which the suit is instituted. The case of Young v. Bryan (6 Wheat. Rep., 146), has decided that an indorsee who resides in a different state, may sue his immediate indorser, residing in the state in which the suit is brought, although that indorser be a resident of the same state with the maker of the note; but in this case the suit is brought against a remote indorser, and the plaintiffs, in their declaration, trace their title through an intermediate indorser, *without showing that this [*539 intermediate indorser could have sustained his action against the defendant in the courts of the United States. The case of Turner v. The Bank of North America (4 Dallas, 8), has decided that this count does not give the court jurisdiction. But the count for money had and received to the use of the plaintiffs, being free 1. He cited Young v. Bryan, 6 Wheat. Rep. 146; Dugan v. United States, 3 Wheat. Rep. 180; Chitty Bills, 149, 370. 2. He cited Turner v. Bank of N. A., 4 Dall. 8; Montalet v. Murray, 4 Cranch, 46. NOTE. As to the jurisdiction of courts of the United States, depending on the character of the parties, see note to Emory v. Greenough, 3 Dall. 369; and the note to Strawbridge v. Curtiss, 3 Cranch, 267; and the note to the Hope Insurance Company v. Boardman, 5 Cranch, 57. from objection, it becomes necessary to look | when held under a grant, or under mesne conveyfurther into the case. ances which connect it with a grant. A sheriff's deed, which is void for want of jurisThe defendant has filed a plea to the jurisdiction in the court under whose judgment the sale diction of the court, in which he states that the took place, is not such a conveyance as that a pospromises laid down in the declaration were session under it will be protected by the statute of limitations. made to H. J. Lowrie, and not to the plaintiffs, mad that the said H. J. Lowrie and the de- the opinion of the court: R. JUSTICE WASHINGTON delivered fendant are both citizens of the state of Mississippi. The plaintiffs demurred to this plea, and the defendant joined in demurrer. On argument, the demurrer was overruled, the plea sustained, and judgment rendered for the defendant. The case is now before the court on a writ of error. The plaintiffs contend that the plea is defective, because it avers that the said H. J. Lowrie and the defendant are both citizens of the state of Mississippi at the time of the plea pleaded, not that they were citizens of the said state at the time the action was brought. It is quite clear, that the jurisdiction of the court depends upon the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events. Since, then, one of the counts shows jurisdiction, and the plea does not contain sufficient 540*] matter to deny *that jurisdiction, we think that judgment ought not to have been rendered on the demurrer in favor of the defendant. It must therefore be reversed, and the cause remanded to the court for the district of Mississippi, where the parties may amend their pleadings, which are very defective. Judgment reversed. JUDGMENT. This cause came on to be heard on the transcript of the record of the District Court of the United States for the District of Mississippi, and was argued by counsel. On consideration whereof, this court is of opinion that there is error in the judgment of the said District Court, in overruling the demurrer of the plaintiffs to the plea of the defendant, and in giving judgment for the defendant; wherefore it is considered by this court, that the said judgment be reversed and annulled, and it is hereby reversed and annulled accordingly; and the said cause is remanded to the said District Court, with liberty to the parties to amend their pleadings, and that further proceedings may be had therein, according to law. This was an ejectment brought in May, 1818, in the Circuit Court for the District of Tennessee, by the plaintiff in error, to recover possession of a lot of ground in the town of Nashville, distinguished in the plan of the town as lot No. 85. Upon the trial of the cause, the plaintiff gave in evidence a deed for the lot in controversy, from the commissioners of the town of Nashville to the lessor of the plaintiff, bearing date the 6th of August 1790, and then proved the defendant to be in possesion of the same at the time the suit was brought. The defendant then gave in evidence a record of the County Court of Davidson, in the state of Tennessee, by which it appears that upon the complaint of Roger B. Sappington, administrator of Mark B. Sappington, deceased, to a justice of the peace for the said county, supported by his oath, that George Walker (the lessor of the plaintiff) was justly in- [*542 debted to him, as administrator aforesaid, as appears by the books of the said Mark, to the amount of $20.25, and that the said Walker was an inhabitant of another government, so that the ordinary process of law could not be served upon him, an attachment, bearing date the 24th of April, 1804, was awarded by the magistrate against the estate of the said Walker, which the officer was, by the said process, directed to secure, so as to be liable to further proceedings to be had before the said justice, or some other justice for the said county. The return upon the attachment was, that no personal property was to be found; and on the 26th of April, 1804, judgment was rendered by the magistrate in favor of the plainiff for $20.25 and costs. These proceedings being carried into the County Court of Davidson, the cause was there docketed, and the defendant having appeared by attorney, a stay of six months, under the law, was entered on the docket. At the sessions of the court, in October, 1804, the defendant entered special bail, and reprieved the property attached. The record then exhibits the followCited 7 Pet. 261; 12 Pet. 171: 4 How. 154; 5 How, ing entry, viz.: "On which attachment the 291; 6 How. 37, 70; 13 How. 187; 17 How.508; 19 How. 473,566, 571; 8 Wall. 396; 19 Wall. 83; 1 Wood. said administrator obtained judgment before & M. 120; 2 Wood. & M. 79; 2 McLean, 133; 3 Mc-J. A. Parker," [who issued the attachment,] Lean, 107, 208; 6 McLean, 70; Hemp. 425, 535, 664,712 ; 2 Wall., Jr., 337; 2 Sumn. 265; 4 Biss. 348; 1 Cliff. 133. "a justice of the peace, on the 26th of April, 1804; which proceedings being brought up to Davidson County Court, April sessions, 1804, and a stay of further proceedings ordered to the present sessions (October, 1804), at which sessions bail was entered, in order to *re- [*543 plevy the property attached; after which, and during the same sessions, the said Sappington moved the court for an order to sell the property attached, whereupon the court directed the defendant in the execution, the defendant cannot question the title. The sheriff stands in the situa tion of the attorney of the party, appointed by law to sell and convey, and his deed stands on the same footing with the deed of the party himself. Cooper's Lessee v. Galbraith, 3 Wash. C. C. 546. Where two different and irreconcilable descrip |