Ex parte Ransom et al. v. City of New York. an order to vacate the judgment on payment of the costs up to that time, and that the defendants have leave to turn the case into a bill of exceptions. The argument for a new trial was directed to take place by the 9th of January. A few days afterwards, the case was settled by the judge who presided at the trial when the verdict was rendered. When the argument came on for a new trial, the motion was overruled, but leave was granted to the defendants to turn the case thus settled into a bill of exceptions, in order that it might come up to this court. Thereupon the plaintiffs issued an execution upon the judgment, and placed it in the hands of the marshal for collection. The The defendants then moved that all proceedings founded on the judgment of the 12th December be stayed, and that the plaintiffs enter up a new judgment and file a new judgment record, so that the case might be brought to this court. plaintiffs alleged that the payment of the costs by the defendants up to the 19th of December was a condition precedent to the vacating of the judgment; and as the costs were not paid during the term of the court, the condition was not complied with, and the judgment was revived without any further order of the court. The court, on the 20th April, 1858, ordered that all proceedings founded on the judgment of 12th December be stayed; that the plaintiffs be required to enter up a new judgment and file a new judgment record, so that the case might, on such new judgment, be brought up to this court. In this state of things, the motion was made in this court for a rule to show cause why a mandamus should not be issued, to direct the court to set aside the order vacating the judgment. Mr. Justice NELSON delivered the opinion of the court. A motion is made on behalf of the plaintiffs for a mandamus to the Circuit Court of the United States for the southern district of New York, to compel that court to vacate an order in the above cause, directing a judgment entered against the defendants on the 12th of December, 1857, of $21,458.21, to be vacated. The judgment was entered upon a verdict rendered for the plaintiffs in an action for the alleged infringement of a patent for an "improvement in the mode of applying water to fire engines, so as to render their operation more effective." The judgment was entered in consequence of the stay of proceedings having expired, given to the defendants to make a case on which to move for a new trial. Afterwards, on the 19th December, during the same term, an order was entered on motion of the defendants, after hearing counsel on both Taylor et al. v. Carryl. sides, by Judge Ingersoll, then holding the court, vacating the judgment on the payment of costs that had previously accrued, and also upon the condition that the case should be settled in a short time mentioned, and the motion made for a new trial, with liberty to either party to turn the case into a bill of exceptions, which right had been reserved at the trial. The case was settled accordingly, the motion for a new trial heard and denied, a bill of exceptions settled and signed, agreeably to the order of the 19th December, and filed in the office of the clerk of said court. Since the motion for a new trial, and the settlement of the bill of exceptions, the attorney for the plaintiff has issued an execution on the judgment of the 12th December, claiming it to be still in force, on the ground that the condition had not been complied with in respect to the payment of costs. A motion was subsequently made by the defendants to set aside this execution and the judgment aforesaid unconditionally, which was granted by the court. present motion to this court is for a rule to show cause against the court below, why a mandamus should not issue to vacate this last order. The 6wa 205 9wa457 13 wa716 13wa719 13wa 737 15wa384 16wr370 20wa392 22wa 253 23wa464 104 234 109 607 177 112 304 173 208 119 398 The ground upon which the court below placed its decision 19a223 for setting aside the judgment and execution unconditionally, is, that the attorney for the plaintiffs, by not making out his 163 491 bill of costs, procuring a taxation, and demanding them pre- 105 82 vious to the hearing of the motion for a new trial, thereby im- 109 498 pliedly consented to waive this condition, and cannot after-11 wards set it up for the purpose of invalidating the order of the 114 19th December, vacating the judgment. We concur in this 114 368 view of the court, and we are also satisfied, from the course of 117 252 the proceedings preparatory to the motion for the new trial, the 1f 208 hearing of that motion, and the turning of the case into a bill 1209 of exceptions with a view to a writ of error, it was the under-1 standing of both parties that the judgment of the 12th December was to be considered as vacated, and that a new one be entered for the plaintiffs, if a motion for a new trial was desired. The court is of opinion, therefore, that the facts presented upon this motion for a mandamus are not such as entitle the plaintiffs to a rule to their cause, and it must therefore be denied. JAMES L. AND SAMUEL L. TAYLOR, ADMINISTRATORS OF ROBERT 1f 832 5f 219 5 836 5f 899 40 7f 496 7f 510 12 13 9f, 791 19 163 13f 166 13f 8C8 13f 920 19f 345 20f 428 221 467 261 802 241 146 28f 114 29f 283 30f 791 31f 183 31f 627 31f 628 Where a vessel had been scized under a process of foreign attachment issuing from 635 85 f 788 371 209 40f 4 45f 370 L-ed 1028 149 181 584 149 614 SUPREME COURT. Taylor et al. v. Carryl. wages, and process issued under it, could not divest the authorities of the State of their authority over the vessel; and of the two sales made, one by the sheriff and one by the marshal, the sale by the sheriff must be considered as conveying the legal title to the property, and the sale by the marshal as inoperative. Where property is levied upon, it is not liable to be taken by an officer acting under another jurisdiction. The cases examined where conflicting claims against the same property are set up under the laws of the United States and under State laws. The process of foreign attachment in Pennsylvania is identical with that which issues out of the District Court of the United States sitting in admiralty. The admiralty jurisdiction of the courts of the United States, although exclusive on some subjects, is concurrent upon others. The courts of common law deal with ships or vessels as with other personal property. In order to give jurisdiction in rem, the seizure by the marshal must have been valid; and this was not the case when the vessel was, at the time of seizure, in the actual and legal possession of the sheriff. THIS case was brought up from the Supreme Court of Pennsylvania, by a writ of error issued under the twenty-fifth section of the judiciary act. The facts of the case are particularly stated in the opinion of the court. It was argued by Mr. Cadwallader and Mr. Hood for the plaintiffs in error, and by Mr. Evarts for the defendant. The Reporter would be much pleased if he could place before his readers an extended report of the arguments of counsel in a case of such importance and general interest to the profession as the present. But he is admonished by the size to which the present volume has grown, that it has already reached the customary limits of such a work; and all that he can do is to present a brief sketch of the views of the respective counsel. After examining the respective jurisdictions of the State and admiralty courts, and the nature of the process and proceedings, the counsel for the plaintiffs in error deduced the following propositions: 1. That over all maritime liens for seamen's wages, the District Court of the United States has exclusive cognizance whenever invoked by the seamen, and the State courts have no jurisdiction over such liens. 2. Although a State court has no jurisdiction whatever over a maritime lien, yet that court will afford to a seaman, if he choose to resort to it, a remedy by personal action, against the owner or master of the vessel, on the contract for wages, or perhaps by permitting him to intervene in a personal action, already pending; but the cognizance of the State court does not attach, unless specially invoked by the seaman. 2. That the existence of one or more remedies for a seaman to recover his wages in a State court, does not oust the cogni Taylor et al. v. Carryl. zance of the admiralty court over his lien against the vessel; the seaman may pursue either of these remedies only, or both together. 4. That the pendency of proceedings in foreign attachment in a State court against the vessel, at the suit of a general creditor of the owner, and the seizure and sale of the vessel by the sheriff under such proceedings, do not oust the admiralty jurisdiction of the District Court of the United States over liens for the wages of the seamen, if invoked by them, nor prevent the admiralty court from enforcing such liens. against the vessel in specie, by proceedings in rem. 5. That the sale of a vessel, under a writ or order of a common-law court, does not, under the general maritime law of the United States, divest the lien of a seaman for his wages, so as to prevent its enforcement against the vessel in specie, by the District Court of the United States, under proceedings in rem in the admiralty. 6. That a sale of a vessel under a writ or order of the District Court of the United States, proceeding in rem against a vessel in the admiralty, not appealed from nor reversed, passes to the purchaser a title to the vessel discharged of all liens and encumbrances whatever. 7. That where a vessel subject to maritime liens for seamen's wages is seized by the sheriff under a writ from a State court, and subsequently a proceeding in rem is commenced in the admiralty to enforce these liens, it would be an usurpation of admiralty jurisdiction by the State court, if, after being informed of the existence of said liens and proceedings, the State court ordered a sale of the vessel, as perishable and chargeable, on the ground, inter alia, of the accruing daily expenses of the said mariners' wages. The proceeding under which the sale was ordered by the State court was based not upon the simple allegation of perishableness, but upon an allegation of perishableness by reason of chargeableness; in other words, the sale was prayed and ordered because the subject was a chargeable one. That which was alleged to render her thus chargeable was mainly an accumulating liability for the very seamen's wages in question. Without this liability, non constat, that any sale would have been ordered. In correcter language, it is legally to be assumed, that without it there would have been no sufficient chargeableness. For these wages, the lien had already attached to the vessel by the proceeding in admiralty. Thus, in order to render the vessel saleable as chargeable, the subject of the lien, which could constitutionally be enforced directly in the admiralty alone, was by a usurpation of jurisdiction imported Taylor et al. v. Carryl. into the proceeding in the State court, as the foundation of the very proceeding in question. This appears from the order of sale of the State court made not under one alone, but under both of the foreign attachments, and from the petition referred to in the order of sale of Robert Bell, one of the plaintiffs in attachment, alleging the vessel in question to be "of a chargeable and perishable nature, from the daily expense of wharfage, custody fees, mariners' wages, and liable to deterioration in her hull, apparel, and furniture, from exposure to ice, wind, sun, and weather." 8. The legal custody of the vessel claimed for the admiralty in this case will not necessarily lead to conflict between the United States and State courts and their respective officers; but, on the contrary, will tend to prevent such conflicts, by maintaining each in the legitimate exercise of its jurisdiction and powers. According to the English admiralty law, as recognised by Sir John Jarvis, Chief Justice of the Common Pleas, when a vessel subject to maritime liens for seamen's wages is seized by the sheriff, under a writ of foreign attachment from a State court, and subsequently a proceeding in rem is commenced in the admiralty, to enforce the seamen's liens, the latter proceeding relates back to the time when the liens were created, and in contemplation of law the legal custody of the vessel is deemed to have been in the admiralty from the period when the lien first attached, (Harmer v. Bell, 22 Eng. L. and Eq. R., 72,) so far at least as may be necessary to protect these liens. This legal custody of the admiralty is not incompatible with, and does not necessarily interfere with, the possession of the sheriff, nor the proceedings in the State court. In such a case, the sheriff may hold the vessel until bail be entered for the owner, or until the owner's interest has been sold to satisfy plaintiff's claim. But the proceedings in rem in the admiralty, being known to the purchaser at the sheriff's sale, he will take the vessel cum onere-and, on paying off the maritime liens, will acquire a perfect title. On the other hand, if the admiralty sell the vessel whilst the proceedings in the State court are pending, and the sheriff still in possession, the title of the purchaser is good against all the world; but the surplus that may remain out of the proceeds of the admiralty sale, after payment of the liens against the vessel, would, on application to that court, be ordered to be paid to the sheriff, or into the State court. In the case of the Royal Saxon, the purchasers at the sheriff's sale might have obviated the necessity of a sale by the admiralty by satisfying the maritime liens. They could have dis |