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Opinion of the Court.

andria v. Fairfax, 95 U. S. 774, where the sufficiency of the seizure was brought up collaterally in another suit, and the whole proceeding held void, because notice of the seizure or attachment of the debt of the city of Alexandria was not made to the officer of the city named by the statute of the State, though it was given to another officer of the city government.

The statute authorizing these confiscation proceedings requires that they be conducted according to proceedings in admiralty as near as may be, and hence libels, monitions, publications, and sentences have been the usual mode of enforc ing confiscation. The 37th Admiralty Rule, in force long before this statute was enacted, provides how such seizures shall be made.

"In cases of foreign attachment, the garnishee shall be required to answer under oath or solemn affirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded to him by the libellant ; and if he should refuse so to do, the court may award compulsory process against him. If he admits any debts, credits, or effects, the same shall be held in his hands liable to the exigency of the suit."

Here was a plain mode of attaching the debt of the Phoenix Bank due to the Georgetown Bank pointed out by the very rule to which the act of Congress referred as prescribing the mode of practice in such cases.

In the first case, above referred to, the court, after referring to the practice in admiralty, said: "These are indeed, proceedings to compel appearance, but they are, nevertheless, attachments or seizures bringing the subject seized within the jurisdiction of the court, and, what is of primary importance, they show that, in admiralty practice, rights in action, things intangible as stocks and credits, are attached by notice to the debtor or holder without the aid of any statute."

In the latter case the court said: "We are compelled to inquire whether the simple statement of the marshal, that he had given notice to R. Johnson, auditor of the city, was a

Opinion of the Court.

sufficient seizure, in face of the conceded fact that he had made no actual or manual seizure of anything to give jurisdiction to the court. And in determining what it was of which Johnson had notice, it is, perhaps, fair to infer that the marshal read to him the paper issued by the district attorney."

The court, after saying there is no doubt that the stocks were credits and liable to confiscation within the meaning of the act, added:

"It is clear that there was a mode of reaching them under the act of Congress, notwithstanding the evidences of Fairfax's right to them were in his pocket and beyond the reach of the court. If the debt due him had been by an individual, there would have been no difficulty in serving such a process or notice on the debtor, as would have subjected him to the order of the court in regard to it."

The record of the District Court in the confiscation proceedings gives no evidence of any service of notice on the Phoenix Bank, the debtor in this case, and as it was an ex parte proceeding in the absence of the party whose property was condemned, the language of the court in Alexandria v. Fairfax is appropriate, that "where the seizure of it is a sine qua non to the jurisdiction of the court, and where, as in the present case, actual manucaption is impossible, the evidence which supports a constructive seizure should be scrutinized closely, and be of a character as satisfactory as that which would subject the party holding the fund or owing the debt, which is the object of the proceedings, to an ordinary civil suit in the same court." 95 U. S. at p. 779.

Assuming that, as argued by counsel, this was a proceeding to reach the debt of the Phoenix Bank to the Georgetown Bank, then it could not be the subject of actual manucaption or seizure, and there should be such evidence of service of the attachment or notice on the Phoenix Bank as would be sufficient in an ordinary civil suit for that debt.

Nothing of the kind is shown here. No notice of any kind. to the Phoenix Bank is shown in that record.

But in the deposition of the cashier of the Phoenix Bank in the present suit, he is shown the monition in the confiscation

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Opinion of the Court.

case, and says that paper was served on him on the 5th day of January, 1865, at 11.50 in the morning.

It admits of grave doubt whether the essential fact on which the jurisdiction of the court in the confiscation case depended, not being found in the record, can be supplied in another suit where it is introduced in evidence, by parol proof of that fact.

But if it could be done at all, the monition which was served on the cashier gave no intimation of a proceeding to charge the Phoenix Bank with a debt due from it to the Georgetown Bank, and require it to pay said debt to the marshal or into the court. Nothing in that monition required the bank to answer in regard to such a debt, and the bank made no answer. If it had been called on by that notice to answer, as it certainly would if a debt was claimed of it as being due to the Georgetown Bank, it would have been bound at its peril to have disclosed the assignment of that debt to Risley by the Georgetown Bank, and the demand and notice of Risley to the Phoenix Bank before the commencement of the confiscation proceedings. Indeed it is quite remarkable that no answer or appearance for the Phoenix Bank is made in that proceeding. If the money, the actual cash in the bank vaults, was attached, the bank must have known that the dollars were its dollars, and it should have defended. If it was the debt which was attached, its legal duty to its creditor, whether that was Risley or the Georgetown Bank, was to have stated the facts to the

court.

It does not appear to us that any seizure or attachment of the debt due by the Phoenix Bank to the Georgetown Bank was made, by which the District Court, if it intended to do so, obtained jurisdiction to confiscate it.

On the whole case, we are of opinion

1st. That the specific money in the Phoenix Bank, against which the confiscation proceedings seem to have been directed, and which was condemned, was the money of that bank, and not of the Georgetown Bank, and the loss, if any, is the loss of the Phoenix Bank.

2d. That no such seizure or attachment was made of the debt

Statement of Facts.

due by the Phoenix Bank to the Georgetown Bank, if any such debt existed, when the proceedings were commenced, as would give the District Court jurisdiction of that debt, and no actual condemnation of that debt, or order on the Phoenix Bank to pay it, was made, which can constitute a defence to the present action.

3d. That the right of Risley to recover the debt as assignee of the Georgetown Bank remains unaffected by those proceedings.

The judgment of the Court of Appeals of New York is affirmed.

CHESAPEAKE & OHIO RAILROAD COMPANY v. WHITE.

ORIGINAL.

Argued March 11th, 1884.-Decided March 24th, 1884.

Jurisdiction-Practice-Removal of Causes.

When a cause is properly removed from a State court to a Federal court, and the State court nevertheless proceeds with the case, and forces to trial the party upon whose petition the removal was made, the proper remedy is by writ of error after final judgment, and not by prohibition or punishment for contempt. Insurance Company v. Dunn, 19 Wall. 214, and Removal Cases, 100 U. S. 457, again reaffirmed.

This was a petition for an original process from this court to stay proceedings in the Circuit Court of Greenbrier County, West Virginia, in a suit in which the defendant in these proceedings was plaintiff and the plaintiff in these proceedings was defendant, on the ground that the cause was removed to the Federal courts under the removal act, and that the substantial rights of the parties were involved in a suit, pending in this court, in error to the Court of Appeals of West Virginia. The facts upon which the motion was founded appear in the opinion of the court.

Mr. W. S. Hogeman for the railroad company, petitioner.

Opinion of the Court.

Mr. Henry M. Matthews opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The motion papers in this case present the following facts: On the 17th of September, 1881, A. E. White, as administrator of the estate of John D. White, sued the Chesapeake and Ohio Railroad Company in the Circuit Court of Greenbrier County, West Virginia. The summons was returnable on the first Monday in October, and on that day a declaration was filed. On the filing of the declaration an order was entered at rules that judgment be entered for the plaintiff for his damages, unless the defendant appear and plead to issue on the first Monday in November. The defendant failing to appear on that day, an order was entered, also at rules, for the assessment of damages at the next term.

On the 10th of November, which was during the next term, the defendant did appear and demur generally to the declaration, in which the plaintiff joined. At the next term, on the 18th of April, 1882, the defendant again demurred to the declaration and to each count thereof, and then presented a petition, with sufficient bond, for the removal of the suit to the District Court of the United States for the District of West Virginia, sitting at Charleston, and exercising Circuit Court powers. This petition the State Circuit Court refused to receive, on the ground that it was not filed before or at the term at which the cause could be first tried. The defendant then pleaded not guilty and a special plea, and again presented his petition and bond for the removal of the suit, which was also refused and on the same ground.

On the first of May the defendant filed in the District Court of the United States a copy of the record, and, on its motion, the suit was docketed in that court. On the 29th of June the plaintiff moved the State Circuit Court to proceed with the trial of the action, but this was refused on the ground that the case had been docketed in the District Court of the United States. On the 14th of October the plaintiff applied to the Supreme Court of Appeals of the State for a mandamus requiring the Circuit Court to proceed with the trial of the cause, and a rule

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