776

BROOKS et

vol. 45.

aZ.v.. FRY et aZ.

(OiJrcuit Oourt, W.P. Arkansas. February Term, 1891.)
FOLLOWrnG STATB PRAOTIOB.-.t\TTAQHME.NT-LEVIllS. .

A circuit court of the United States, by reason of the existence of section 915 ot the Revised Statutes of the United States, administers the attachment law of the state where such court is held; alldwhen the statute of the state provides for sue. cessivillevies, 88 well as for a method of settling all priorities of the several liens '. arising fromsuoceseive leVies, the marshal.of the United States court may make ·a levy of a writ of aitaenment '8ub modo, and such levy will be sufficient, when the property is already in· the custody of the law by virtue of a prior levy upon a 'wrltissued from a state oourt, to enable a plaintiff to assert his lien if the attachment is sustained, as it mat effect the property remaining the satisfaction of the flrst attachment. (SUHabus by the Oourt.)

. .

At Law. This is a suit brought by .plaintiffs by attachment against the defendants. The writ Of attachment was duly issued, and the same was by the marshal levied upon the property of the defendants,but not taken into actual possession by the marshal for the reason that the property was in the actual possession of the sheriff of Crawford county by virtue of prior writs of attachment issued by the circuit court of the state. These facts are recited in the levy of the marshal. The defendants file their motion to quash the levy made, or attempted. to be made, in obedience to the writ of attachment issued in said cause, because it waS no levy in law, for the reason that the property was already in the possession of the sheriff ofCrfl,wford county, and was therefore in custody of a court of competent jurisdiction, and not subject to the levy of the writ ofattachment issued in this case by this courtjthat the marshal could hot make a legal levy without taking actual possession of the property, and this he could not do because it was already in the custody of. an officer of another court by virtue of a prior valid_writ of attachment is'Bued by tbat court. . Sanq.el8 &; H1ll, for plaintiffs. Du Coffey, for defendants.
'PARltER., J. As a general rule, actual physical possession is necessary to constitute It valid seizure under It writ of fieri facias or a writ of attachment, unless there be garnishment· pl'oceedings; then service· of interrogatories on the garnishee suffices. Section 915 of the Revised Stat.. utes of the United States is as follo:Ws: "In common-law causes in the circuit and district courts the plaintiff shall be entitled to similar remedies by attachment or other process against the property of the defendant which are now provided by the laws of the state in which such court is held for the courts thereof; and such circuit or district courts may from time to time, by general rules, adopt such state laws as may be enforced in the states where they are held, in relation to attachment and other process: provided, that similar preliminary affidavits or proofs and similar security as required by such state Ill. \VS shall be first fur-

BROOKS V. FRY.

777

nished by the party seeking such attachment or other remedy." Under the provisions of this law of the United States the federal courts administer the attachment laws of the several states in which they sit, and this court administers the attachment law of the state of Arkansas. The object of the rule requiring actual physical possession to make a valid levy is that by a clear, distinct, positive act in the shape of an actual seizure the purpose to pmce the property sought to 1;e attached in the custody of the law shall be clearly indicated. But when it is already in the custody of the law such :1Otual seizure for such a purpose is unnecessary. The purpose of the actual seizure has been already accomplished. Section 319 of Mansfield's Digest of the Laws of Arkansas is: "Where there are several orders of attachment ae:ainst the same de-' fendant fheyshall be executed in the order in were received by the sheriff or other officers." This section providt:s for successive levies. Sectioh 359 provides: "Where several a'ttlichments are executed on t!:lesame property, the court, on the motion of any; oneoLt)1lj attaching pl,ailltiffs, may order a reference to a commissioner to asceriain andrep,ortthe amounts and priorities of the several attactlIlJ.enp,." Thesesections ofthe state lawofattachments clearly have reference to by writs issuing from different courts of co-ordinate the reas0110f the existence of. section 915 of the Revisecl Statutes oNhe United States, it matters not whether these are courts of the state ()J l,t. federal court sitting in t,hestate. The sections .above mentioned 'also have reference to different writs of attachment issuing frotn the same court. As was said by the court in BateB v. Days, 5 McCrary,345 :1 " Federal and state courts are not foreign courts, or in hostility to eiac9 other in l!-dmjni.stering jU!ltice between Thljcitizendf the state in the federal court is as much in his own courf as in thec.ourls of the state." \In matters of attachment they are courts of co-ordinate jurisdiction, administering the same laws of the state. I thinK 'the sounder rule is, that when the property is already in the custody olthe law by virtue of a prior levy of a writ of attachment, issued, say, from a state COu!t,tomak{l a valid levy of a writ of attachment issued by a federal court- sitting in that state actual seizure is not neceSSal'Y... ' Under such circumstances the property may be constructively seized by the marshal when the law of the state provides for successive levies as well as for a method of settling all priorities of the attachments of the several plaintiffs. When such a seizure is made it is a sufficiently good ser\,.:. ice of the writ of attachment to enable the plaintiff to ask that the cause of attachment and his case be tried upon their merits, and, if ceeds in sustaining the cause of attachment and the cause of action upon which it is based, although it may be an execution of the writ of attach. ment sub 'Ino'<YJ, it will he' availahIe to hold the surpJus ptopertyaher the first attachment is satisfied, though the plaintiff after Bustaining his attachment and his cause of suit, and thus establishing his lien, may have to go into the court from which the first writ of attachment issued,
,..

"

'';.

117 Fed. Rep. 167.

n:DERAL RE;PORTER,

vol. 45.

and .intervene to obtain the. proper relief, and to assert such priority of lien as. the laws of the state respecting attachments permit. The principle sustaining the law., as .above expressed,is, in my opinion, clearly asserted in Patterson v,Btephen80tl,77 Mo. 329; Gumblev. Pitkin, 124 U. S. 131,8 Sup. Ct. Rep. 379; and Bate8 v. Days,.s McCrary, 342, 17 Fed. Rep. 167. " . The motion to quash' the levy will be overruled·.

.' .TOHN SHILLITO.

ldCCI,."ONG,. Collector of Customs.

(Circuit Po:un, 8. D.

1

0¥O. w. D.,

April 21>, 1891.)

t. SutE-I'LJi:ADI:No-:DJilPABTtlttll.

'7

Under'Rev·.St.U. B; 5 regu,iring an .l!oCtion for the eltCe!l!l ()f customs duties to 'be within 90 flay II after the deci!lion of the appeal froDi·th& collector by the secretary of the treasury, it is not the duty of the collector to hdorm. the olaimant of the appeal by tpe secretary, and the , t.hatthe oollector, by.his silence, leads suppose that the appeal haS not 'been acted on, wh'eli in fact it has been decided, does not estop the collector' , 'fromett1Dg up tb.e OO,d-.yJbnitation ,to a euitby the cla\ml)Dt to reoover the excess ,," .' '.', . i. WherU.$ueh suit the answer alleges that the appeal was decided :more than 90 da,Y"" Pef:qrEI the. Buit ,brQught, a reply setting up tb.&,t th,e collectol' is esto.pped .fr.ompleaqing the lImltation because' ot bis silence and fallure to inform plamtUr that the :appeal had been .deoided is Doll&. departure from the petition, whioh aldeoided,before the suit was brought. leged that, the:..ppeall1&4l1ot. Mattel'S ofeBto'ppel tn' pail may be iet up in OOtiODS at la.w as well as in suits in equity.,
:1·'

To RECOVIlR

EXOBSS",;A.PPEAL PRt»)( COLLEOTO_EsTOPPJ:L.

3. E8TOPPE,t.::-ACTION';AT I.,Aw""

,"

".'

;::

,

;IIenriJ

S.\GE,Jor; 'rhis·

for the;J'ecove:ry

for defend,llnt.

at law under section 3011, Rev. St. U. ofc\1stoms dutieE! claimed to have been froJ;n:the plaintiff company, and paid by it under protest. The petition that the appeal rp,quired by section 2931 . of the Revised Statutes had been duly made, but not decided by the secret&J:y,·of the treasu.ry:upto; the titnethat suit was brought. The anSl1P.8r this allegatioI;l" ijnd alleges that the appeal was decided more than the was brought, and on that ground'alone. , ,.:u; '£he second amended, reply. alleges certain cond\1ct, and afterwardssi. his quty, tOi speak, on the part of defendant, whereby plaintiff to ,its, prejudicf\ ,in not discovering that said decision had been madeu»til aftl:1'f the bringing of tbeaction. The praye.: u.pon these allegations is that the defendant be estopped from denyingtbat said decision had not been made.