Opinion of the court.

have depicted as attendant upon the doctrine of Lord Eldon, and would, in effect, transfer to the civil courts where prop erty rights were concerned the decision of all ecclesiastical questions.

And this is precisely what the Court of Appeals of Kentucky did in the case of Watson v. Avery. Under cover of inquiries into the jurisdiction of the synod and presbytery over the congregation, and of the General Assembly over all, it went into an elaborate examination of the principles of Presbyterian church government, and ended by overruling the decision of the highest judicatory of that church in the United States, both on the jurisdiction and the merits; and, substituting its own judgment for that of the ecclesiastical court, decides that ruling elders, declared to be such by that tribunal, are not such, and must not be recognized by the congregation, though four-fifths of its members believe in the judgment of the Assembly and desired to conform to its decree.

But we need pursue this subject no further. Whatever may have been the case before the Kentucky court, the appellants in the case presented to us have separated themselves wholly from the church organization to which they belonged when this controversy commenced. They now deny its authority, denounce its action, and refuse to abide by its judgments. They have first erected themselves into a new organization, and have since joined themselves to another totally different, if not hostile, to the one to which they belonged when the difficulty first began. Under any of the decisions which we have examined, the appellants, in their present position, have no right to the property, or to the use of it, which is the subject of this suit.

The novelty of the questions presented to this court for the first time, their intrinsic importance and far-reaching influence, and the knowledge that the schism in which the case originated has divided the Presbyterian churches throughout Kentucky and Missouri, have seemed to us to justify the careful and laborious examination and discussion which we

Opinion of Clifford and Davis, JJ., dissenting.

have made of the principles which should govern the case. For the same reasons we have held it under advisement for a year; not uninfluenced by the hope, that since the civil commotion, which evidently lay at the foundation of the trouble, has passed away, that charity, which is so large an element in the faith of both parties, and which, by one of the apostles of that religion, is said to be the greatest of all the Christian virtues, would have brought about a reconciliation. But we have been disappointed. It is not for us to determine or apportion the moral responsibility which attaches to the parties for this result. We can only pronounce the judgment of the law as applicable to the case presented to us, and that requires us to affirm the decree of the Circuit Court as it stands.

DECREE AFFIRMED.

The CHIEF JUSTICE did not sit on the argument of this case, and took no part in its decision.

Mr. Justice CLIFFORD, with whom concurred Mr. Justice DAVIS, dissenting.

I dissent from the opinion and decree of the court in this case, and inasmuch as the case presents an important question of jurisdiction, I deem it proper to state in a few words the grounds of my dissent.

Before this suit was commenced, a suit in respect to the same subject-matter and substantially between the same parties had been instituted in the Chancery Court of Louisville, by parties representing the same interests as those prosecuted in this case by the appellees, and they obtained a final decree in their favor against the respondents therein, representing the same interests as those defended by the present appellants. Whereupon the respondents in that suit appealed to the Court of Appeals of that State, where the decree of the Chancery Court was in all things reversed and the cause remanded for proper corrective proceedings respecting the possession, control, and use of the property

Opinion of Clifford and Davis, JJ., dissenting.

in controversy, and for final judgment in conformity with the opinion of the appellate court.*

On the twenty-first of February, 1868, the present appellants filed in the Chancery Court the mandate of the Court of Appeals, together with a copy of the opinion of the appellate court, and moved that an order issue for the restitution of the property and for judgment in conformity with the opinion of the court. Pending the consideration of that motion the defeated party filed an original bill in equity against the then appellants, praying that they be restrained from all further prosecution of their motion for restitution and from all proceedings, by action, suit, or otherwise, to obtain possession or control of the property in controversy, and the chancellor, instead of executing the mandate of the appellate court, granted the injunction prayed by the losing party in the original case. Feeling aggrieved by that proceeding the then appellants applied to the Court of Appeals for a rule to compel the chancellor to carry the mandate of the appellate court into effect, and upon that hearing the Court of Appeals decided that the chancellor had exceeded his jurisdiction in granting the injunction prior to the entry of their mandate, and rendering a final decree in conformity therewith, and peremptorily required him to render a judg ment of restitution of the property to the appellants, in so far as they had been deprived thereof by his previous orders †

Those orders of the appellate court were not executed, but the unsuccessful party immediately dismissed their bill of complaint to enjoin the appellants from executing the decree of the Court of Appeals, and on the twenty-first of the same month filed in the Circuit Court of the United States the bill of complaint in this case, before the second mandate of the appellate court commanding the chancellor to execute the first mandate was filed in the subordinate court.

Beyond all question jurisdiction was assumed by the Circuit Court in this case by virtue of the fact that the parties are citizens of different States, in which case the Judiciary Act provides that the Circuit Courts shall have original cog† 3 Id. 635.

* Watson et al. v. Avery et al., 2 Bush, 382.

Opinion of Clifford and Davis; JJ., dissenting.

nizance concurrent with the several States. Indeed, jurisdiction in the case is claimed solely upon the ground that the Circuit Court of the United States possesses concurrent and co-ordinate jurisdiction with the State court in such a controversy.

In view of these considerations, as more fully set forth in the record and in the opinions given in this case by the Court of Appeals, I am of the opinion that the Circuit Court had no jurisdiction to hear and determine the matter in controversy, as there were two courts of common law exercising the same jurisdiction between the same parties in respect to the same subject-matter, within the same territorial limits, and governed by the same laws.

Neither court had any peculiar jurisdiction over the property in question nor of any peculiar right or lien upon it claimed by either party. Originally the State court had the same power with the Circuit Court to hear and decide any and every question that might arise as to the rights of property of either party in the course of the litigation. State courts and Circuit Courts in such cases are courts of concurrent and co-ordinate jurisdiction, in respect to which the principle is that "whenever property has been seized by an officer of the court, or put in his custody by the process of the court, the property will be considered as in the custody of the court and under its control for the time being, and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises."* Decided cases asserting that principle and enforcing it are very numerous in the reported decisions of this court, and also in the reported decisions of other courts of the highest respectability.t

Buck v. Colbath, 3 Wallace, 341.

Hagan v. Lucas, 10 Peters, 400; Taylor v. Carryl, 20 Howard, 594; Freeman v. Howe, 24 Id. 450; Payne v. Drewe, 4 East, 523; Peck v. Jenness, 7 Howard, 612; Evelyn v. Lewis, 8 Hare, 472; Noe r. Gibson, 7 Paige, 513; Russell v. East Anglian Railway Co., 3 McNaughton & Gordon, 104.

Statement of the case.

Remarks to show that the suit in the State court was pend.. ing and undisposed of when the bill was filed in the Circuit Court are unnecessary, as the fact is admitted, and in view of that fact I am of the opinion that the Circuit Court had no jurisdiction of the case.

Being of the opinion that the case ought to be reversed and dismissed for the want of jurisdiction, I do not think it necessary or proper to express any opinion upon the merits of the case.

THE MABEY.

A commission from this court to take testimony refused, on an appeal in a collision case in admiralty, where the party moving had in the District Court the same witnesses whom he proposed to examine here, and did not examine them only because he had agreed with a co-defendant (who was apparently as between themselves alone liable-be, the co-defendant, having led the other defendant into the fault for which the libel had been filed,-) that he, the co-defendant, would manage the whole case and pay the sums awarded by any decree (the purpose of this agreement having apparently been to keep from the court below a full knowledge of the case), and where especially the party now moving did not appeal from the decree of the District Court.

ON motion. The owners of the Chapman had libelled in the District Court at New York, the steamtug Mabey and the sailing vessel Cooper, which the tug had been towing out to sea, for injuries caused to the Chapman by collision on the way out. The owners of both the tug and sailing vessel appeared in the District Court with their witnesses, but the owners of the tug soon withdrew from court, and gave no evidence in defence of the tug. This course, it appeared, had been done upon a written agreement between the owners of the tug and sailing vessel, that the owner of the tug should take no active part in the conduct of the suit; that no evidence should be offered in behalf of the tug, and that the owners of the sailing vessel would assume the whole defeuce for both, and would pay whatever damages should be awarded against either or both; for the performance of