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Adler, Goldman & Co. v. Roth and Shapleigh & Co.

custody and holding it, subject to the order of the court. Upon other personal property by delivering a copy of the order, with a notice specifying the property attached, to the person holding the same." Section 399, Gantt's Dig.

These provisions only formulate the previously well settled rules of law on this subject. The "custody and holding" required in the case of property capable of manual delivery is actual and real, not ideal or constructive.

The officer's indorsement on the writ, that he has levied on the property and taken it into his custody, amounts to nothing if he has not in fact done so. He must obtain the power and control over it, and take it out of the power and control of the debtor. The object of a writ of attachment is to take the property out of the debtor's possession, and transfer it into the custody of the law, for the security of the plaintiff. Hollister v. Goodale, 8 Conn. 332.

The authorities are uniform that to constitute and preserve an attachment of personal property, capable of manual delivery, the officer must take the property into custody, and continue in the actual possession of it by himself or an agent appointed by him for that purpose. If to do this it is necessary to remove the property, then it must be removed. Where the debtor is divested of his possession and control, and the officer or his agent is in the actual custody of the property, it may remain in the place where it is found. But if a removal is necessary in order to retain possession, it is the duty of the officer to remove it; and the fact that the removal will be attended with some inconvenience does not furnish an excuse for a neglect to retain possession. Chadburne v. Sumner, 16 N. H. 129; Miller v. Camp, 14 Conn. 219; Gower v. Stevens, 19 Me. 92; Lane v. Jackson, 5 Mass. 157; Gale v. Ward, 14 Mass. 356; Odiorne v. Colley, 2 N. H. 66; Huntington v. Blairdell, id. 317; Butterfield v. Clemence, 10 Cush. 269; Crowfor v. Newell, 23 Iowa, 453.

The wagons and salt in question were capable of manual delivery. They were the property of the defendant in the

Adler, Goldman & Co. v. Roth and Shapleigh & Co.

writs, on his premises, and in his possession. The deputy sheriff did nothing whatever to divest or change this possession, or prevent the attachment of the property by any other officer. In the first instance the levy made by the marshal was no better than that made by the deputy sheriff, but afterwards, and before the deputy sheriff had taken or attempted to take the actual custody of the property, the marshal perfected his levy by taking actual possession, and now has the property in his custody. It is needless to inquire whether the writ from this or the magistrate's court was first issued. The rule is well settled that in case of such writs issuing from a federal and state court against the same defendant, the writ under which the property is first actually taken into custody has priority, without regard to the date of the respective writs. The usual statutory provision that an execution or writ of attachment shall be a lien upon or bind the property of the defendant in the writ from the time it comes to the hands of the officer has no operation in such cases. In the case at bar neither the marshal nor the deputy sheriff had the least priority of right until one had acquired it by a prior valid levy. The possession under such a levy is notice of the attachment, and prevents a second attachment, and all conflict of jurisdiction. Nor can the marshal of this court and a sheriff make a joint or partnership levy on the same property, nor can one of these officers make a levy subject to the prior levy of the other. They act under authority of different governments, and each must make his return and account to the court of which he is an officer. Any effort to mingle their powers and authority would lead to confusion, and tend to bring about conflicts between the courts of the two governments and their officers. To avoid these results the rule is inflexible that property cannot be the subject of levy under writs issuing from a federal and state court at the same time. The first actual seizure, whether under the federal or state authority, withdraws the property from the reach of the process of the other. Hagan v. Lewis, 10 Pet. 400; Brown v. Clark, 4 How. 4; Pul

Douglass v. Lincoln County, in the State of Missouri.

liam v. Osborne, 17 How. 471; Taylor v. Caryl, 20 How. 583; Fox v. Hempfield R. Co. 2 Abb. U. S. 151; Johnson v. Bishop, 1 Woolw. 324; S. C. 8 Bank Reg. 533.

Petition dismissed.

DOUGLASS v. LINCOLN COUNTY, IN THE STATE OF MISSOURI.

(Eastern District of Missouri. December, 1880.)

1. MUNICIPAL BONDS

"ISSUED "STATUTE OF MISSOURI.- Municipal bonds are not duly "issued," under the laws of Missouri, unless the same have been duly registered in the office of the state auditor.

Defendant requests the court to instruct the jury as follows: "The jury are instructed that the bonds from which coupons sued on are alleged to have been detached were not executed or issued by the defendant until the same were countersigned, before delivery, by an agent of Lincoln county.. If, therefore, the jury find from the evidence that either of the bonds sued on was thus countersigned and delivered after March 30, 1872, by James M. McClellan, claiming to act as agent of Lincoln county under and by virtue of an order of the county court of said county, made May 16, 1872, the jury are instructed that as to such bonds, and as to any coupons from such bonds detached, plaintiff cannot recover unless the jury further find from the evidence that said bonds and coupons have been registered in the office of the state auditor of the state of Missouri."

John B. Henderson and John H. Overall, for plaintiff.

H. A. Cunningham, for defendant.

TREAT, District Judge (orally).- The question presented is very clear. It is as to the meaning of the term "issued," as found in the act of the general assembly of the state of Missouri, entitled "An act to provide for the registration of bonds. issued by counties, cities and incorporated towns, and to limit

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Douglass v. Lincoln County, in the State of Missouri.

the issue thereof." Section 4 provides: "Before any bond hereafter issued by any county, city or incorporated town, for any purpose whatever, shall obtain validity or be negotiated, such bond shall first be presented to the auditor, who shall register the same in a book or books provided for that purpose, in the same manner as the state bonds are now registered; and who shall certify, by indorsement on such bond, that all the conditions of the law have been complied with in its issue, if that be the case, and also that the conditions of the contract under which they were ordered to be issued have also been complied with, and the evidence of that fact shall be filed and preserved by the auditor," etc. It seems from the evidence that the county court, on the twenty-first of June, 1870, ordered that these bonds be issued, and that the presiding judge of the county court and the clerk of the court signed the same, and that the seal of the county court was affixed thereto on said day, and that on the following day the bonds were placed in the hands of D. S. Waddy, as agent of Lincoln county; that afterwards, on the sixteenth of May, 1872, said Waddy resigned, and surrendered into the custody of the court all bonds numbered above a certain number; that on said day the court appointed James M. McClellan agent of Lincoln county, and that the bonds above said number are countersigned only by said James M. McClellan as agent of Lincoln county. Upon the face of each of these bonds it is declared that "this bond shall be countersigned by the agent of said county before the delivery thereof." I cannot hold that these bonds were properly executed or issued by Lincoln county before the same were countersigned and delivered or negotiated by the agent of Lincoln county, as required upon the face of each of said bonds. Until these acts were duly performed by a duly authorized agent of Lincoln county, the bonds were neither executed nor issued, within the meaning of the aforesaid registration act, and I shall therefore give the instruction asked by defendant.

To which ruling of the court plaintiff's counsel excepted.

Lonergan v. Mississippi River Bridge Co.

LONERGAN V. MISSISSIPPI RIVER BRIDGE COMPANY.

(Eastern District of Missouri. February, 1881.)

1. ERECTION OF DIKE IN MISSISSIPPI RIVER-OVERFLOWING LANDSINJURING FERRY FRANCHISE.-Suit to recover damages for injuries alleged to have been done to certain lands, and to a certain ferry franchise, by reason of the construction of a certain dike in the Mississippi river by the defendant. Held, (1) that plaintiff had, under the laws of Illinois, and according to the evidence, no title to the lands, for injury to which the suit was brought; (2) that the act of the general assembly of Illinois granting a charter for a ferry across the Mississippi river, under which the plaintiff claims, did not give the grantee any right to control the channel of the river, or to prevent its improvement without compensation to him by the United States. Mississippi River Bridge Co. v. Lonergan, 91 Ill. 508, followed.

D. P. Dyer, for plaintiff.

R. H. Kern, for defendant.

MCCRARY, Circuit Judge (orally).—The plaintiff sues the defendant to recover damages for injury alleged to have been done to certain lands and to a certain ferry franchise by reason of the construction of a certain dike in the Mississippi river by defendant. By an act of congress approved March 3, 1871, the erection of a railway bridge across the Mississippi river at Louisiana, Missouri, was authorized, which bridge was to be built under and according to such regulations for the security of the navigation of the river as the secretary of war should prescribe. 16 Stat. at Large, 473. The secretary of war, in pursuance of the recommendation of a board of engineers, required the erection of the dike in question for the better improvement of the navigation of the river. The bridge connected two great thoroughfares by rail, terminating on the opposite banks of the river.

The plaintiff alleges that the consequence of the erection of the dike was to injure lands belonging to him adjoining the river, and also to impair the value of his ferry franchise, under

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