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by its judgment a debt against the receivership, which
mu&t be recognized, even by the court appointing the receiver,
and is not open to revision by it, if the court rendering the deci-
sion had jurisdiction of the subject-matter and the parties. The
manner in which it shall be paid, and the adjustment of the
equities between all persons having claims on the property and
effects in the hands of a receiver, must be under the control of
the court having custody through its receiver; but this does not
affect the jurisdiction of other courts conclusively to establish
by judgment the- existence and extent of a claim®^ ; . . . .
Courts accord to suitors and litigants all necessary latitude ; and
they are not restricted to any one forum for the adjudication of
any question or right, provided onlj that such adjudications are
not upon questions pending in another concurrent court which
had prior jurisdiction, and provided that its writs or process
shall not hinder the performance of any lawful mandate of such
concurrent court, or interfere with or disturb the possession of
any subject-matter then in gremio legis. Possibly plaintiffs might
sue the Brierfield Coal and Iron Company in a court of law, and
recover judgment, and have execution as in the case of the steam-
boat Daniel Kaine^^^ or file a bill on the judgment as in the
Holladay case^ or, when necessary to fix and establish a lien,
they may proceed for this purpose as in the case of Heidritttr
V. Elizabeth Oil Cloth Co.,^^ and in neither instance trans-

»• Stanton v. Kmbrey, 98 U. S. 648. I »» 85 F«d. Rep. 786.

»' DiUingham v. RubboU, 16 Am. St. Rep. 753. | »» 112 U. 8. 294.

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gress the domain of the United States court. Any attempt to
enforce the judgment or Hen thus established, by interfering
with the possession or subject-matter under the control of the
concurrent court, would be nugatory." Stone, C.J., expressed
concurrence with that opinion and said : " When one court has
acquired and is in jurisdiction over a subject-matter infer />ar/6«,
no other court of simply concurrent power can take jurisdiction
of that same subject-matter between the same parties; and the
rule is much more inflexible when, under some color or process
of its own, the court first acquiring jurisdiction has obtained
possession of the res which is the subject of the suit. When
this is the case, the thing is in the custody of the court, and
until disposed of by final judgment or decree, that possession
cannot be interfered with by any court of concurrent jurisdiction,
whether its powers be invoked by a party to the first suit
or by a stranger to the litigation." He then expressed his full
concurrence with the statements of Justice Coleman as to the
extent of the rule, and proceeded thus: ^* The reason of the
rule exists in the prevention of collisions between courts of
concurrent jurisdiction. Neither the reason nor the rule finds
any field of operation, when the proceedings in one jurisdiction

do not in any manner interfere with those in the other

Under the suit by the trustee in the United States Court» all
the property of the Brierfield Coal and Iron Company was
placed in the hands of a trustee or receiver, to be administered
for the purposes specified in the mortgage, and the further
assurance. Until that court finishes the litigation there pend-
ing, and relinquishes the possession of the property, no other
court can disturb that possession, or interfere with the un-
trammeled adjudication of the issues raised in that suit;
and the decision or decree rendered, or to be rendered in
that suit, will bind all the parties to it and their privies,
unless it is reversed by a court having authority to revise
its judgment. ^^ In other words, while the proceedings of
the court are t^i fieriy and the corporation's effects are in the
hands of that court's trustee or receiver, no other court
of concurrent jurisdiction, and no suitor in such court,
can disturb or interfere with such possession, or with that
court's untrammeled adjudication of the questions before it.
The rule has no greater extent than this : " ^ The learned
Editors of the American State Reports say : * ** Where two

100 Btoat V. Lye, 103 U. 8. M. I ' ^^ Am. St. B«p. 149.

1 I Lead. Cas. in equity, part. 2, 1468. |

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courts |>0S9es8 €qual and concurrent jurisdiction qf a matter,
that court in which jurisdiction first attaches will retain tlie
case for final di<*position : ' This rule was applied in re2:ard
to Federal and State Courts in Hines v. Rawson,^ Sharon v.
Sharon.^ When once the State courts have acquired juris-
diction of a question, the Federal judiciary has no control
over it until the State has finally exhausted its judicial power
by a final decision in its highest tribunal :^ on the other
band, a State court has no jurisdiction of an action to foreclose
a mortgage where the premises were, at the commenotment of
the action, in the hands of a receiver appointed by a federal
court having jurisdiction to make such appointment." ^

Mr. Herman says that jurisdiction may depend upon the state
of the res on which the decree was intended to operate, if, for
instance, a prize court should be induced to condemn as prize of
war a vessel which was never captured, such a condemnation as
that would certainly not transfer any property ; so, if the prize
courts should lose possession as by recapture, voluntary dis-
charge or escape, the prize courts of the captor would thereby
lose jurisdiction." ® The correctness of the last proposition has
often been denied. In The Rio Orandey^ the United States
Supreme Court said: "We do not understand the law to be
that an actual and continuous possession of the res is required
to sustain the jurisdiction of the court. When the vessel was
seized by order of the court, and brought within its control,
the jurisdiction was complete. A subsequent improper removal
cannot defeat such jurisdiction.''

The court of the sovereign of the captor is the only com-
petent tribunal to decide on the validity of captures. Prize
courts cannot adjudicate on a prize lying in a foreign port or
out of the jurisdiction of the captor or his ally. And if they
proceed to pass upon such a question when the subject-matter
of their sentence is within the territory of a neutral power,
such sentence is void, transfers no rights, and may be dis-
regarded by the Common law courts.*^ Mr. Justice Story in
Bradstreet v. Insurance Go.,^^ said: ** It does not strike me
that any sound distinction can be made between a sentence
pronounced in rem by a court of Admirality and Prize, and a

s Merrillv. Lake, 47 Am. Deo. d77.
Chapin o. James, SS Am. Rep. 412,
Keatio^.o. BpiiO:, 03 Am. ueo. Xl4.
Datn 9. Paobeoo, 82 Am. Deo. 740.

4 2Am.Bep. 681.

• 84 Gal. m.

4 State 9. BaelielAer« 80 Am. Deo. 410.

f Milwaukee, &c., B. R. Go. «. Milwaakee, ico.
R. R. Go., 88 Am. Deo. 735.

ft Herm. Comm. 683.

9 23 Wall, 463.

10 Wlieelwright v. Depeyater, 3 Am. Deo. 345.
lis Bam. 605.

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like sentence pronounced by a municipal court upon a seizure
or other proceeding in rem. In each case, the sentence is con-
clusive as to the title and property, and it seems to me that
it must be equally conclusive as to the facts on which the
sentence professes to be founded. This, I think, is the settled
doctrine in England, and in the courts of the United States.
It is a just result from the whole reasoning in Rose v. Himely;^^
The Marpy^^ and Gelston v. HoyV^ Such is the general
rule. ... In respect to the jurisdiction of courts of prize
acting in rem^ as they are courts sitting under the law of
nations, the courts of other nations are competent of themselves
to inquire into and ascertain whether there has been any
excess of jurisdiction, or not, without any resort to the laws of
the particular country where the tribunal is established. But
in respect to municipal courts acting in rem, but deriving their
authority solely from the territorial laws of the sovereign, they
are, and must, from the nature of the case, be presumed to be
the best judges of the nature and extent of their own juris-
diction, and of its just and legitimate exercise. Their judg-
ment, therefore, affirming that jurisdiction, must ordinarily be
conclusive upon all foreign tribunals, subject, however, to this
reserve, that the res is either within the territory, or is posi-
tively or constructively in the possession of the sovereign, or
his officers, so that the jurisdiction can, according to the law
of nations, rightfully attach in such tribunals. I say, ordi-
narily conclusive, because no foreign court can be permitted
to sit as a court of errors to revise the decisions of municipal
courts in the exercise of the jurisdiction conferred on them by the
municipal laws. That would be to assume the final interpreta-
tion of those laws. But this doctrine again must be under-
stood with its proper limitations that the tribunal is recognized
by the sovereign of the country as competent to act in the
premises, which competency may be conclusively established
from the express recognition of the sovereign, or his silent
acquiescence in its decrees."

On a somewhat similar principle, courts of probate have
no authority to order the sale of property situate in another
State, and the order of sale will be void, even if given with
regard to personal property that was in another State^^ at the
time of the testator's death, and brought subsequently within
the jurisdiction of the court passing the order.i« A grant of

iil^ ~ i " Salmond v. Price, « Am. Deo. 204"

,!2S?^»1?S- lAtimer«.E.R.Co.,97Am.D60.37d.

i*8Wlitat.,24e. I i«Vamert.B«7il,47Ala.»88L

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administration made in England to the estate of a person who
had resided and died there does not extend even to his property
in the colonies,^' though if the intestate should have been
domiciled in England, the court in the colonies might be
bound to make a grant to the same person.*^ It is expressly
daid down in William's well known work on Executors that it
must not be understood, that where a testator dies domiciled
in England, leaving assets abroad, the grant of probate can
extend to them.^® In thiscountry^ however, it is enacted in the
Indian Succession Act, 1865, that, *' where the deceased has left
property in British India, letters of administration must be
granted according to the rules (contained in the said Act),
although he may have been a domiciled inhabitant of a country
in which the law relating to. testate and intestate succession
differs from the law of British India." 20 In America, probate
courts are limited in their jurisdiction to the oases in which the
deceased at the time of his death had an abode in the country
where the courts are situate, and letters testamentary or of
administration granted in any other country are held to be

In England, in Enohin v. Wylie^^^ Lord Westbury said,** I
hold it to be now put beyond all possibility of question, that the
administration of the personal estates of the deceased belongs to
the court of the country where the deceased was domiciled at his
death. All questions of testacy and intestacy belong to the
judge of the domicile. It is the right and duty of that judge
to constitute the personal representative of the deceased. To
determine who are the next-of-kin or heirs of the personal
estate of the testator is the prerogative of the judge of the
domicile. In short, the court of the domicil is the forum con^
cursus to which the legatees under the will of a testator, or the
parties entitled to the distribution of the estate of an intestate
are required to resort.*' This view was dissented from, how.
ever, especially by Lord Selborne who in Ewing v. Orr Ewing^^^
said :•' It has always appeared to me to be clear that the domicil
of a deceased testator or intestate cannot in principle furnish any
governing or necessary rule except for the purpose of determin-
ing the succession to movable estate. The succession being
once ascertained, the rights resulting therefrom belong to, and
follow, the person of the living successor, and not the dead

IV Atkyni^ o. Smith, S Atk. 63. I 21 Harl«n*i Estate, 85 Am. Deo. 68.

i« Bum V. Oole» Amblar, 416. I Moore «. Phftbriek, fiS Am. Deo. 64i.

!• rW«, p, 800. « 10 H. L. 16. -ua. lAW. o«*

^•aS07ofAotX1866. I 2S10Ap.Oa.468.

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predecessor. It has never been held that the Jbrwmt io which
such rights may be vindicated, depends on the domicil (as
distinguished from the place of residence for the time being,
which is sometimes inaccurately so denominated) either of
the plaintiff or defendant, in any action or suit ; and if the
domicil of the living man, whose rights and liabilities are in
question, is for that purpose immaterial, I am unable to un-
derstand how the place in which those rights are to be pro-
tected or those liabilities enforced, can necessarily depend
on the domicil of the deceased/' After referring to the
above cases, Stirling, J., in Trafford\. Blanc,^^ said: "The
rule to be extracted from these cases appears to be this, that
although the parties claiming to he entitled to the estate of a
deceased person may not be bound to resort to the tribunals of
the country in which the deceased was domiciled, and although
the courts of this country may be called upon to administer
the estate of a deceased person domiciled abroad, and in such
case may be bound to ascertain as best they can who, accord-
ing to the law of the domicil, are entitled to that estate ; yet
where the title has been adjudicated upon by the courts of the
domicil, such adjudication is binding upon and must be
followed by the courts of this country.*'

A finding as to the deceased's residence, like that in
regard to all jurisdictional facts is conclusive, however, and
where a probate court has, upon a petition asserting the essen-
tial jurisdictional facts, and after due notice to the parties
interested) granted letters testamentary or of administration,
the proceedings cannot he avoided collaterally, by proving
that the deceased did not die within the jurisdiction of the
court.«* Mr. Freeman says: «* Any other rule would lead to
the most embarrassing results. The residence of a deceased
person can be determined only by hearing parol evidence.
Different judges may reach opposite conclusions from the same
evidence. The parties in interest may at separate times pro-
duce different evidence on the same issue. If, after a court
had heard and decided the issue concerning the residence of
the deceased, the question remained unsettled to such an
extent that it could be relitigated for the purpose of avoid-
ing all the proceedings of the court, no person would have the
temerity to deal with executors or administrators.*' '^

34 36 Gh. D. 600. I Wight «. WaUtenm. 80 111. fi64.

2* Abbott o. Cobom, 67 Am. DM. 186. I >• ft, Jad. 108.

Dtfrotl«.Qt»«J*88 0ol.880. I

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So also if an enaetmeot relating ta the settlement and
distribution of the estates of deceased persons does not contain
any provision concerning the estates of those who died prior to
it, there will be no jurisdiction to administer the estate of any
such person, and the proceedings taken will be void for want of
it/^ This was the case with the Indian Succet^ion Act 1865, but
the Probate and Administration Act expressly enacted that
the executor or administrator of a person, dying before its
coming into force, would be his legal representative for all
purposes; and a probate granted before the Hindu Wills
Act came into force has been held to be valid, even though
the executor to whom the grant was made, could in such a case
have the powers of a manager only.^®

Courts of probate have no power to grant probnte or letters
of administration in respect of the estate of a living person,*^
and if a grant is made under a mistake of fact upon the
supposition that he is dead, that as well as the proceedings
taken in connection with it will be void for want of jurisdic-
tion, and can have no effect.^ Grants of letters of administra-
tion are sometimes judged to be void, unless the deceased did
in fact die intestate.'* The more recent view, however, appears
to be that a grant of administration, made by a court having
jurisdiction of the subject matter, and of the particular case, is
valid, while unrevoked/^ But one who deals with an executor
is not protected, if he had notice of the existence of a later will
than the one admitted to the probate/^ There are other
limitations also of Probate Court;?. Thus, if a Probate Court
appoints an executor or administrator, it cannot, while he
continues in office, appoint another. Its jurisdiction being
exhausted, its further grant of letters is void.'* Neither can
it appoint an administrator after an estate has been fully
administered upon and distributed to the heirs.'^

205. The greatest conflict, in regard to the jurisdiction

in proceedings in rem is in regard to the

JurisdictioQ m proceed- ^^^^^ f^^ dissolution of marriage or divorce.

mwri^e."^"* ^^ India, the Indian Divorce Act, 1869,

provides that nothing contained in the

'* Coppinger p. Bice. 33 Gal. 408. I Rodnrigas v. £a«t Biv. Sav. Inat. 32 Am. Rep.

MoNeU V. Tint Congregational Sooietj, 66 30i>.

Cal. 105. I 2i Holyoke v. Haskins, 16 Am. Deo. 372.

M Grleh Ohnnder Boy e. Broaghton, I. L. R. | Brock o. Fraak,0l Ala. 01.

XIV Cal. 861. , »' Bigelow «. Bigelow, 10 Am Dec. 601

»» Swinb. Pt. 6. S. 13, pi. 1.

ae Danoan o. Stenarti W Am. Dec 537.

Withers v. Patterson, 86 Am. Deo. 64S.

Vidt also,

Broaghton «. Bradley, 73 Am. Dec. 474.
ss Gaines r. De La Croiz, 6 WsU. 720.
** Griffith o. Prazier, 8 Cranch. 0.

Flinn «. Chase, 4 Oenie 00.
3* Fisk e. NorveU 58 Am. Dw. U8.

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Act '^ shall authorize any court to make decrees of dissolu-
tion of marriage, except (a) where the marriage shall have
been solemnized in India ; or {b) where the adultery, rape or
unnatural crime complained of shall h&ve been committed in
India; or(c) where the husband has, since the solemnization of the
marriage, exchanged his profession of Christianity for the pro-
fession of some other form of religion; or to make decrees
of nullity of marriage, except in cases where the marriage has been
solemnized in India." in America, it appears to be generally
settled that the domicile of marriage is not material in regard
to the question of jurisdiction in such proceedings, and that
the courts of the country where the marriage was celebrated or
where the parties dwelt at the lime of the marriage, or where
the fact giving a right to the dissolution or divorce occurred,
have no particular jurisdiction in such cases. The courts appear
also to be agreed that the bondjtderes'xdnnceot the parties within
the jurisdiction of any court is sufficient to give jurisdiction in
such cases to that court. Mr. Herman speaking of the rule
of the American Courts, says: ** Jurisdiction in matters of
divorce depends in general upon the domicile or residence of
the parties to a marriage at the time of the commencement
of the proceedings for divorce. A court of any country
having jurisdiction, where the parties are then domiciled,
has jurisdiction to dissolve their marriage which is valid.
Such jurisdiction of the court in respect to such parties is not
affected by the residence, allegiance, or domicile, at the
time of marriage, place of marriage, or place where the
offence in respect of which divorce is sought was committed.*'^
The English courts did not long recognize a decree of a
divorce of a foreign court as a dissolution of a marriage celebra-
ted in England between English subjects.^' In Deck v. Deck^^
Sir C. Cresswell said that the husband ** could not shake off
his allegiance to the law of England by a change of domicile,
and the same view was expressed in Bond v. Bond.^ Reference
was often made to the British tenet of perpetual allegiance as
the root of the English doctrine ol the indissolubility of the
marriage contract." In Shaw v. Gould,^ Lord Westbury trea-
ted that as an unfounded notion, observing that the political
maxim of nemo potest exuere patriamyyi\\\c\i preserves the duty
of allegiance, notwithstanding the change of domicile, has no-
's Herm. Comm. 640. I ** 2 Sw. and Tr. 90.
«t R. « Lolley, a Rats. & R. C. C. »»7, m « j^w. and Tr. 93.
Shaw c. AtUrney-Oeneral, 2 P. D. 161. I «« 3 H. L. 66.

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thing to do with the personal relations aiid rights of British
subjects under civil contracts. Tbedecree of divorce, in that case
was pronounced by a Scotch court on the application of a husband
who had been hired by the wife's friends to go to Scotland and
reside there for forty days, in order to obtain a divorce from
the courts there, and Lord Westbury said : '* If the court of a
foreign country permits the subjects of a bordering nation to
resort to it for the purpose only of getting rid of the personal
status and obligations of husband and wife, which release they
cannot obtain in the courts of their own country, it is plain
that such foreign court is in reality, by its tribunals^ usur-
ping the rights and functions of sovereignty over the subjects
of another country, who still retain, and, as soon as the pur-
pose is answered, intend to return to their native country and
resume their original position. . . . When they return to
the country of their domicile, bringing back with them a foreign
judgment so obtained, the tribunals of the domicile are entitled,
or even bound, to reject such judgment, as having no extra-
territorial force or validity. They are entitled to reject it, if
pronounced by a tribunal not having competent jurisdiction ;
and they are hound to reject it, if it be an invasion of their
own laws and policy." The correctness of this view has
never been denied, and had been maintained in a number of
cases before ;*^ but the English courts go much further, and
Judges have often considered that to make jurisdiction depend
on doroicil is against general principles, and would make the
dissolution of the marriage depend upon the mere will of the
husband, and that in such a case if a decree of nullity were
asked by the wife, her domicil would depend upon the very
matter in controversy.'*^ The grounds on which the non-
recognition of such judgments in England was based, have
long since been considerably shaken,'^'^ and the recognition is
not refused now, if both the parties were at the time of
the decree bond fide domiciled in the country where that
court had jurisdiction.*^ In Shaw v. Gould, cited above, Lord
Westbury himself said: ** The position that the tribunal of a
foreign country having jurisdiction to dissolve the marriages of
its own subjects, is competent to pronounce a similar decree be-
tween English subjects who were married in England, but who
before and at the time of the suit are permanently domiciled
within the jurisdiction of such foreign tribunal, such decree

41 Dolphin o. Bobina, 7 H. L.Ca8. 390. I ** Warr«nder o. Warrender, 2 01 and Fm. 541

«» Niboyet •. Niboyet, 4 P.J). 1. I


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being made in a banAJide suit without collusion or concert,
is a position consistent with all the English decisions,
although it may not be consistent with the resolution commonly
cited as the resolution of the Judges in LoUy*s case." In Wilson
V. Wilson,^^ Lord Penzance said: ** It is not disputed that if the
petitioner was domiciled in England at the time the suit was
commenced, this court has jurisdiction • • • It is the strong
inclination of my own opinion that the only fair and satisfactory
rule to adopt on this matter of jurisdiction is to insist upon the
parties in all cases referring their matrimonial differences to
the courts of the countiy in which they are domiciled "

Online LibraryHukm ChandA treatise on the law of res judicata: including the doctrines of ... → online text (page 73 of 107)