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any provision that both plaintiffs may unite within the district'as aforesaid, shall not in one suit in a state in which either of them constitute matter of abatement or objection is a citizen.” The court, referring to sev to the suit." Construing this act, it was eral prior cases in this court in which it was held in Shields v. Barrow, 17 How. 130, that held that the word "citizen," as used in the it did not enable a circuit court to make a judiciary act of 1789, is used collectively, decree in equity, in the absence of an indisand means all citizens upon one side of a pensable party, whose rights must necessuit, and if there are several coplaintiffs the sarily be affected by such a decree. Says intention of the act is that each "plaintiff Mr. Justice Curtis (page 141): "It remains must be competent to sue, and if there are true, notwithstanding the act of congress and several codefendants each defendant must the forty-seventh rule, that a circuit court be liable to be sued, or the jurisdiction can can make no decree affecting the rights of not be entertained, held that the same con an absent person, and can make no decree struction must be given to the word “in between the parties before it which so far habitant" as used in the above paragraph involves or depends upon the rights of an in the act of 1888, and that, if suit were absent person that complete and final justice begun in a district whereof the plaintiff was cannot be done between the parties to the an inhabitant, jurisdiction would only attach suit without affecting those rights." This if there were no other plaintiffs, citizens and ruling was applied in Barney v. Baltimore inhabitants of other districts. If this doc City, 6 Wall. 280, to a bill for partition filed trine be also applicable to defendants in by Barney, a citizen of Delaware, in the local actions, it necessarily follows that suit circuit court of Maryland, against the city will not lie in any district of which a defend of Baltimore and several individuals, citiant is a citizen or inhabitant, if there are zens of Maryland, and certain other citiinhabitants of other districts also made de zens of the District of Columbia. These fendants. As above stated, this practically latter had made conveyance to one inhibits all suits against defendants resident Proud, a citizen of Maryland, for the special in different districts.

purpose of conferring jurisdiction on the fedA brief review of the history of correspond eral court; such conveyance being made ing provisions in prior acts will sh that without consideration, and with an agreeit has never been supposed that the federal ment that the grantee would reconvey on recourts did not have jurisdiction of local ac quest. It was held that the court of chantions in which citizens of different districts cery could not render a decree without havwere defendants, and in fact provision was ing before it the citizens of the District of expressly made by law for such contingency. Columbia, and that their conveyance to In the eleventh section of the judiciary act Proud, being merely collusive, conferred no of 1789 (1 Stat. 79) is a provision, subse | jurisdiction upon the court. quently incorporated in section 739 of the The law remained in this condition until Revised Statutes, that "no civil suit shall June 1, 1872, when congress, apparently to be brought before either of said courts remove the difficulty suggested by these cases, against an inhabitant of the United States, passed an act (17 Stat. 196, § 13; subsequentby any original process in any other district ly incorporated into the Revised Statutes as than that whereof he is an inhabitant, or in section 738) providing that “when any dewhich he shall be found at the time of serv fendant in a suit in equity to enforce any leing the writ." Under this section any num gal or equitable lien or claim against real or ber of nonresidents could be joined as de personal property within the district where fendants if only they were served within the the suit is brought, is not an inhabitant of jurisdiction of the court. Ober v. Gallagher, nor found within the said*district, and does * 93 U. S. 199.

not voluntarily appear thereto, it shall be But, to obviate any objection that might lawful for the court to make an order directbe raised by reason of the nonjoinder or in ing such absent defendant to appear, plead, ability to serve absent defendants, it was answer or demur to the complainant's bill, at provided by the act of July 28, 1839 (5 Stat. a certain day therein to be designated,” etc. 321), subsequently carried into the Revised And then follows the provision, in section Statutes (section 737), that “when there are 739, that "except in the cases provided in the several defendants in any suit at law or in next three sections,

and the cases equity, and one or more of them are neither provided by the preceding section [section inhabitants of nor found within the district 738) no civil suit shall be brought in any other within which the suit is brought, and did district than that of which the defendant is not voluntarily appear, the court may enter an inhabitant,” etc. The “next three sectain jurisdiction, and proceed to the trial tions” are section 740, in which special provi. and adjudication of the suit between the par sion is made for states containing more than ties who are properly before it; but the judg one district, requiring the defendant, if a ment or decree rendered therein shall not single one, to be sued in the district where conclude or prejudice other parties not regu he resides, but, if there are defendants in larly served with process nor voluntarily ap different districts, suit may be brought in pearing to answer; and non-joinder of par either, and a duplicate writ issued against ties who are not inhabitants of nor found residents of the other districts; section 741,

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wherein provision is made for sults of a local wise there is no limitation upon such jurisalicnature, where the defendant resides in a dit tion. Section 8 of the act of 1975, saved by ferent district in the same state from that in section 5 of the act of 188S, does, however, which the suit is brought, permitting process confer a privilege upon the plaintiff of joining to be served in the district where he resides; in local actions defendants who are nonresiand section 742, providing that in any suit dents of the district in which the action is of a local nature, at law or in equity, where brought, and calling them in by publication; the land, or other subject-matter of a fixed thus creating an exception to the clause of character, lies partly in one district and part- section 1, that no civil suit shall be brought ly in another, within the same state, suit may in any other district than that of which debe brought in the circuit or district court of fendant is an inhabitant. Hence, it appears either district, etc. These sections (740– that the case of Smith v. Lyon really has no 742) are the “next three sections” mentioned bearing, as that case involved only the rights in section 739 as exceptions to the general of parties to personal actions residing in difrule that no civil suit shall be brought against ferent districts to sue and be sued, and was an inbabitant in any other district than his entirely unaffected by the act of 1838 (section

5), which deals with defendants only in locals But, by the act of March 3, 1875, § 1 (18 actions, and expressly reserves. jurisdiction * Stat. 470), a slight change was made in the If the suit be one to enforce a lien or claim previous phraseology, to the effect that "no upon real estate or personal property. The civil suit shall be brought before either of | precise question here involved has never been said courts against any person by any orig- | passed upon by this court, but in the only inal process or proceeding in any other dis cases in the circuit courts to which our attentrict than that whereof he is an inhabitant, tion has been called the jurisdiction was upor in which he shall be found at the time of held. American F. L. M. Co. v. Benson, 33 serving such process or commencing such pro Fed. 456; Carpenter V. Talbot, Id. 537; ceedings, except as hereinafter provided." Ames v. Holderbaum, 42 Fed. 341; McBee v. This exception is contained in section 8 of the Railway Co., 48 Fed. 243; and Wheelwright same act, which deals with the class of cases v. Transportation Co., 50 Fed. 709. mentioned in Rev. St. $ 738, and provides for In line with these cases, and almost di. publication "in any suit

to enforce rectly in point here, is the decision of this any legal or equitable lien upon or claim to, court in Goodman v. Niblack, 102 U. S. 556. for to remove any incumbrance or lien or in which it was held that where a bill was

cloud upon the title to real or personal prop filed to enforce a claim or lien upon a spe. erty within the district where such suit is cific fund within reach of the court, and brought," with a further proviso that "said such of the defendants as were neither inadjudication shall, as regards such absent de habitants of nor found within the district fendant or defendants without appearance, did not voluntarily appear, the circuit court affect only the property which shall have had the power to adjudicate upon their right been the subject of the suit and under the ju to or interest in the fund, if they be notified risdiction of the court therein, within such of the pendency of the suit by service or tlistrict.” As no exception was made in that publication in the mode prescribed by Rev. act of the cases provided for by sections 740- | St. § 738. This is a distinct adjudication 7+2, it is at least open to some doubt as to that defendants who are neither inhabitants whether suits will lie against nonresident of nor found within the district may be cited defendants under those sections. So, too, in by publication to appear, and, if tbis be so, the act of August 13, 1888 (section 5), there it is difficult to see how the omission of the was an express reservation of any jurisdic words "found within the district," in the act tion or right mentioned in section 8 of the of 1888, makes any difference whatever with act of congress of which this act was an regard to the right to call absent defendants amendment (that is, the act of March 3, 1875), in by publication. The act of 1875 gave the which, as above stated, is the section permit- right to sue defendants wherever they were ting suits to enforce any legal or equitable "found.” The act of 1888 requires that they lien upon or claim to real estate to be brought shall be inhabitants of the district. But in in the district where the property lies, and de both cases an exception is created in local fendants, nonresidents of such district, to be actions, wherein any defendant interested brought in by publication or personal service in the res may be cited to appear and anmade in their own districts. It is entirely swer, provided he be not a citizen of the true that section 8 of the act of 1875, authoriz same state with the plaintiff. So, too, in ing publication, does not enlarge the jurisdic Mellen v. Iron Works, 131 U. S. 332, 9 Sup. tion of the circuit court. It does not purport Ct. 781, a suit instituted by a creditor to set to do so. Jurisdiction was conferred, by the aside a conveyance of the real estate and a first section of the act of 1888, of "all suits mortgage upon the personal property of his of a civil nature,” exceeding $2,000 in amount, debtor, made to secure certain preferred “in which there shall be a controversy be- creditors, was held to be a suit brought to tween citizens of different states;" and this remove an incumbrance or lien or cloud upimplies that no defendant shall be a citizen of on the property, within the meaning of secthe same state with the plaintiff, but other tion 8 of the act of 1875, and that the circuit

court-was authorized to summon an absent bill by a party in or out of possession, to defendant, and to exercise jurisdiction over quiet title to lands, such remedy would be bis rights in the property in suit within the enforced in the federal courts, if it did not jurisdiction of the court.

infringe upon the constitutional rights of the Indeed, any other construction of this act parties to a trial by jury. Clark v. Smith,. would practically nullify section 8 of the act 13 Pet. 193; Holland v. Challen, 110 U. S. of 1875, permitting the publication of absent 15, 3 Sup. Ct. 495; Reynolds v. Bank, 112 defendants, since the entire object of the U. S. 403, 5 Sup. Ct. 213; Chapmau v. Brewsection is to call in defendants wbo cannot er, 114 U. S. 171, 5 Sup. Ct. 799; Cummings. be served within the district, by reason of V. Bank. 101 U. S. 153, 157; U. S. v. Lan. their absence or nonresidence.

dram, 118 U. S. 81, 89, 6 Sup. Ct. 951; More It follows, then, that if this be a suit cov v. Steinbach, 127 U. S. 70, 8 Sup. Ct. 1067. ered by section 8 of the act of 1875, the cir This suggestion is the more important in cuit court of the district wherein the land view of a statute of Florida which authorin dispute lies may properly assume jurisdic. |izes a court of equity, in partition cases, “to tion. We think that it is such a suit. The ascertain and adjudicate the rights and inbill in question is one for the partition of terests of the parties," which has apparently land, wherein plaintiff avers that he is been held to authorize the court, in its disseised, as tenant in common, of an estate in cretion, to settle the question of title, as infee simple, and is in actual possession of the cidental to the main controversy, or retain land described, and after setting forth the the bill, and refer it to a court of law. Street interests of the other tenants in common, v. Benner, 20 Fla. 700; Keil v. West, 21 Fla. and alleging that no remedy at law exists to 508. enable him to obtain his share of said ands These questions, however, are not presentin kind, or of the proceeds, if sold, and that ed by the record in this case, and are menhe is wholly without remedy, except in chan tioned only as giving color to plaintiff's cery, prays for the partition of the land, and claim that the existence of controversies bethe segregation of his own share from that tween different defendants is not fatal to of the others, and incidentally that certain the jurisdiction of the federal court upon the deeds may be construed, and, if invalid, allegations of this bill. inay be canceled, and that he may recover 3. The objection that Eliza B. Anderson his advances for taxes and expenses. This was alleged in the bill to be a resident and is clearly a bill to enforce a claim and settle citizen of the District of Columbia was met the title to real estate.

by an amended allegation that Anderson 2. Further objection was made to the ju was “a citizen of South Carolina, now residpisdiction of the court upon the ground that ing in Washington City, District of Columit appeared from the face of the bill that the bia;" and, while this allegation was tratitle of some of the parties to the land was in versed, it must, for the purpose of this heardispute; that such titles must be settled be ing, be taken as true. fore partition could be made; that the inter * As this case was appealed under section 5 ests of several of the defendants were ad

of the act of March 3, 1891, upon a question verse to each other; and that, as some of these of jurisdiction, no other question can be defendants were citizens of the same state, properly considered; and the decree of the it would raise controversies beyond the ju

court below must therefore be reversed, and risdiction of the circuit court to decide. the case remanded for further proceedings These objections, however, are not witbin in conformity with this opinion. the question certified to us for decision, which is that it had been “adjudged and de

Mr. Chief Justice FULLER dissented. creed that this court has not jurisdiction over all of the defendants to this action, because they are not all citizens and residents

(155 U. S. 137) of the district in which the land sought to NORTHERN PAC. R. CO. V. HOLMES. be partitioned lies, and are not all found in

(November 12, 1894.) said district at the time of service of pro

No. 61. cess, although they are all residents and citi.

TERRITORIAL Courts--CONTINUING CASES IN STATE zens of other states than that in which com

COURT-REVIEW BY UNITED States plainants have residence and citizenship."

SUPREME COCRT. The objections go not to the jurisdiction of 1. Where a case pending in a territorial suthe federal court, as such, but to the main

preme court, on a petition for rehearing, at the tenavce of such a bill in any court of equity

time the territory becomes a state, is continued

in the state court, instead of being removed to in the state of Florida. They are questions the federal court on request, as it might have proper to be considered on demurrer to the been, the judgment of the state court, on denybill, and, as bearing upon such questions,

ing the rehearing, cannot be reviewed by the

supreme court of the United States, no federal the local practice of the state in that regard question being involved. may become an important consideration. 2. In such case the time that the petition. This court has held in a multitude of cases

for rehearing was pending in the territorial

court will not be deducted in computing the that where the laws of a particular state

two years from the rendition of judgment by gave a remedy in equity, as, for instance, a the territorial court, in which to bring error.

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in Error to the Supreme Court of the State does not begin to run until the motion or pe of Washington.

tition is disposed of. Until then the judg. James McNaught and A. H. Garland, for ment or decree does not take final effect, for plaintiff in error. W. R. Andrews, for de the purposes of the writ of error or appeal. fendant in error.

Smelting Co. v. Billings, 150 U. S. 31, 36, 14

Sup. Ct. 4; Vorhees v. Manufacturing Co., Mr. Chief Justice FULLER delivered the 151 U. S. 133, 1+ Sup. Ct. 29.5. opinion of the court.

Under Sections 22 and 23 of the act of James Holmes recovered judgment in the congress providing for the admission of the district court of the Fourth judicial district state of Washington into the Union (25 Stat. of the territory of Washington against the 676, 682, 683, c. 180, printed in the margin 1), o Northern Pacific Railroad Company. The this petition, which was pending in the su. railroad company prosecuted an appeal preme court of the territory at the time of therefrom to the supreme court of the terri the admission of the state, became a mattory, and the judgment was affirmed by that ter over which the state court had. juriscourt on February 2, 1888. 18 Pac. 76. diction. The court took jurisdiction, and Thereupon, and on the same day, the su might, in its exercise, bave granted a rebearpreme court of the territory, on the applica- ing and reversed the judgment, but, upon tion of plaintiff in error, entered an order consideration, both parties presenting their granting it leave to file a petition for re views, saw fit to refuse the rehearing, and hearing on or before July 17, 1888; giving 60 thereby to confirm the action of the supreme days after the determination of the petition court of the territory in affirming the judg. within which to perfect proceedings upon ap ment. It was then that the judgment took peal in the event that the petition should be final effect for the purposes of the writ of denied, and staying all proceedings and error, and plaintiff in error so regarded it. withholding a remittitur pending the filing But plaintiff in error could not take the and determination of the petition and for writ to the supreme court of the territory, 60 days thereafter.

for when that court ceased to exist a peti. The state of Washington was admitted in. tion for rehearing was pending, which, aftto the Union November 11, 1889, and on er the admission, could not be disposed of March 8, 1890, an order was entered by the by that court, and which plaintiff in error supreme court of the state, reciting the af. did not deem expedient to withdraw or aban. firmance of the judgment by the supreme don. And if the petition and the case could court of the territory and the order of that have been transferred to the circuit court of court of February 2, 1888, and, further, that the United States because plaintiff in error “the said petition having been filed within was a corporation created by the United the time provided by the order of said court, and having been pending undetermined at

1 Sec. 22. That all cases of appeal or writ of

error heretofore prosecuted and now pending in the time of the admission of the state of

the supreme court of the United States upon Washington, and the organization of this, any record from the supreme court of either of the supreme court of the state, and this court

the territories mentioned in this act, or that

may bereafter lawfully be prosecuted upon any having directed the defendant in error to

record from either of said courts, may be heard answer said petition, the said answer hav. and determined by said supreme court of the ing been filed within the time provided by United States. And the mandate of execution or said order, and said petition and answer

of further proceedings shall be directed by the

supreme court of the United States to the circuit having been taken under advisement by

or district court hereby established within the this court, now, on this 8th day of March, state succeeding the territory from which such A. D. 1890, the court, being fully advised in record is or way be pending, or to the supreme

court of such state, as the nature of the case the premises, denies said petition for rehear

may require.

And each of the circuit, ing; to which ruling and judgment, as well district, and state courts, herein named, shall, as the judgment of the supreme court of respectively, be the successor of the supreme said territory affirming the judgment of said court of the territory, as to all such cases arisdistrict court, plaintiff in error, by its coun

ing within the limits embraced within the ju

risdiction of such courts respectively with full sel, excepts, and said exception is allowed.” power to proceed with the same, and award And it was ordered “that a writ of error to mesne or final process therein; and that from all the supreme court of the United States

judgments and decrees of the supreme court of

either of the territories mentioned in this act, the judgment of the supreme court of the

in any case arising within the limits of any of the territory of Washington, now a record of proposed states prior to admission, the parties this court, and to the judgment, order, and

to such judgments shall have the same right to

prosecute appeals and writs of error to the suruling of this court upon the petition for

preme court of the United States as they shall rebearing, be and hereby is allowed." Su have had by law prior to the admission of said persedeas bond was given and approved, a state into the Union. writ of error issued, and citation signed

Sec. 23. That in respect to all cases. proand served.

ceedings, and matters now pending in the su

preme or district courts of either of the terriIt is well settled that if a motion or peti tories mentioned in this act at the time of the tion for rehearing is made or presented in

admission into the Union of either of the states

mentioned in this act, and arising within the season, and entertained by the court, the

limits of any such state, whereof the circuit time limited for a writ of error or appeal or district courts by this act establisbed migkt

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States (Glaspell v. Railroad Co., 144 U. S. 211, 12 Sup. Ct. 593), that could only have been done upon request, and no request to that effect was preferred. On the contrary, plaintiff in error elected to continue the jurisdiction of the cause in the supreme court of the state, and as no federal question was involved, and the judgment could not take effect, so far as a review of it on error was concerned, until after the state court acted, and only through that action, the writ of error cannot be maintained. Moreover, the judgment of the supreme court of the territory was rendered February 2, 1888, and the writ of error was not brought until more than two years thereafter, and therefore too late, unless the time of the pendency of the petition in that court were deducted, which is quite inadmissible, in view of the fact that the petition remained pending notwithstanding the admission of the state had terminated the existence of the court in which it was originally filed. The result is that the writ of error must be dismissed.

(155 U. S. 89) PEOPLE OF STATE OF NEW YORK

V. ENO.
(October 29, 1894.)

No. 602.
FEDERAL AND STATE COURTS-JURISDICTION-HA-

BEAS CORPUS. Except in cases of urgency, one in custody under process from a state court should not be released by a federal court on habeas corpus, on the ground that the crime with which he is charged is within the exclusive jurisdiction of the federal courts, or that he is detained in violation of the federal constitution; but the decision of the highest court in the state should be obtained on the question, and this, if adverse, may be reviewed by the supreme court of the United States. Mr. Justice Field and Mr. Justice Shiras dissenting.

Appeal from the Circuit Court of the United States for the Southern District of New York.

John R. Fellows and John D. Lindsey, for the People. George Bliss, for appellee.

(155 U. S. 141) NORTHERN PAC. R. CO. v. O'BRIEN.

(November 12, 1894.)

No. 65. In Error to the Supreme Court of the State of Washington.

James McNaught, A. H. Garland, and Heber J. May, for plaintiff in error. Reese H. Voorhees and John Paul Jones, for defendant in error.

Mr. Chief Justice FULLER. This case falls within that just decided (Railroad Co. v. Holmes, 15 Sup. Ct. 28), and for the reasons there given the writ of error must be dismissed.

bave had jurisdiction under the laws of the United States had such courts existed at the time of the commencement of such cases. the said circuit and district courts, respectively, shall be the successors of said supreme and district courts of said territory; and in respect to all other cases, proceedings and matters pending in the supreme or district courts of any of the territories mentioned in this act at the time of the admission of such territory into the Union, arising within the limits of said proposed state, the courts established by such state shall, respectively, be the successors of said supreme and district territorial courts; and all the files, records, indictments, and proceedings relating to any such cases, shall be transferred to such circuit, district, and state courts, respectively, and the same shall be proceeded with therein in due course of law; but 10 writ, action, indictment, cause or proceeding now pending, or that prior to the admission of any of the states mentioned in this act, shall be pending in any territorial court in any of the territories mentioned in this act, shall abate by the admission of any suclı state into the Union, but the same shall be transferred and proceeded with in the proper United States circuit, district or state court, as the case may be: provided, however, that in all civil actions, causes, and proceedings, in which the United States is not a party, transfers shall not be made to the circuit and district courts of the United States, except upon written request of one of the parties to such action or proceeding filed in the proper court; and in the absence of such request such cases shall be proceeded with in the proper siute courts.

* Mr. Justice HARLAN delivered the opinion of the court.

The appellee presented to the court below his petition for a writ of habeas corpus, alleging that he was restrained of his liberty by the warden of the city prison in New York City; that he had not been committed, and was not detained, by virtue of any judg. ment, decree, final order, or process; that the cause or pretense of such restraint was certain bench warrants issued upon indictments against him in the court of general sessions of the peace of the city and coun. ty of New York; and that those indictments, copies of which are exhibited with the peti. tion, charge him with the commission of certain offenses over which that court “has not and never has had jurisdiction." The relief asked was that the petitioner be discharged from the custody of the state authorities.

The indictments referred to were five in number, and were based upon the Penal Code of New York, which, among other things, declares any person guilty of forgery in the second degree, and punishable by imprisonment for a term not exceeding ten years, who, with intent to defraud, forges an entry made in any book of records or accounts kept by a corporation doing business within the state, or in any account kept by such a corporation, whereby any pecuniary obligation, claim, or credit is or purports to be created, increased, diminished, dischar. ged, or in any manner affected; and any person guilty of forgery in the third degree, and punishable by imprisonment for not more than five years, who, with intent to defraud or conceal any larceny or misappro priation of any money or property, alters, erases, obliterates, or destroys an account, book of accounts, record, or writing belonging to or appertaining to the business of a corporation, association, public office or officer, partnership, or individual; or makes a false entry in any such account or book

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