*167

Metcalf Brothers & Co., from taking any further proceedings under any judgment obtained by them in the supreme court of the state of New York in a judgment creditors' action, wherein certain transfers made by the bankrupts had been set aside as to them as fraudulent and void, and wherein receivers of the property of the bankrupts appointed by the said supreme court had been directed to pay to them the amount of their judgments at law upon which their said judgment creditors' action was founded.

"For its proper decision of the matter this court desires the instruction of the Supreme Court upon the questions of law here inafter stated, and hereby certifies the same to the Supreme Court of the United States for that purpose.

"Statement of Facts.

pointed now hold the proceeds thereof. This order was made November 23, 1896. The action is still pending, undetermined.

"On the 22d day of October, 1896, and the 29th day of October, 1896, Metcalf Brothers & Co. procured judgments in the supreme court of the state of New York against the Lessers for $930.21 and $2,547.80 respectively, upon which executions were issued and returned unsatisfied.

"On the 17th day of December, 1896, Metcalf Brothers & Co. commenced a judgment creditors' action in the supreme court of the state of New York, which came to trial on the 17th day of December, 1897, and as a result of which the transfers to which reference has been made and the proceedings for the appointment of the receivers were adjudged fraudulent and void as to them. The court, however, set aside the transfers of the copartnership property, not only in favor of Metcalf Brothers & Co., but also in favor of the receivers. It set aside the transfer of the real estate in favor of Metcalf Brothers & Co. alone. Judgment was entered on this decision April 6, 1898.

"On the 2d of October, 1896, Lesser Brothers, subsequently adjudged bankrupts, who were copartners, being then insolvent, transferred all their property, copartnership and individual, to certain favored creditors. All their outstanding accounts, being copartnership property, they transferred by instruments of assignment to Marcus A. "This judgment determined that the proAdler and others. They confessed various ceeds of the sale of the tangible property judgments in the supreme court of the state then in the hands of the receivers and the of New York in favor of Bernhard Moses outstanding accounts or their proceeds in and others, upon which executions were at the hands of the transferees (to be accountonce issued to the sheriff of the county of ed for under the judgment to the receivers) New York, who levied thereunder on all were to be administered by the receivers for their tangible personal property, consisting the benefit of all the creditors of the coof clothing material and stock in trade. partnership__equally, including Metcalf This also was copartnership property, and, with the book accounts, comprised all their property except a piece of real estate owned by Israel Lesser individually and a ground lease of another piece of real estate owned by Tobias Lesser individually. These two pieces of real estate the individuals owning them conveyed to Joseph Lilianthal.

"After making these transfers, and after the levy by the sheriff under the executions issued upon the confessed judgments, and on the same day, by a fraud upon the court, in a collusive action in the supreme court of New York to dissolve the partnership, they procured the appointment of a receiver of the partnership property, Morris Moses, who was nominated by and in collusion with them. Subsequently a receiver nominated by certain creditors, James T. Franklin, was associated with Mr. Moses by the same court

"Various creditors of the bankrupts immediately commenced actions of replevin to recover portions of the goods in the hands of the sheriff. Their claims were conflicting with each other and with those of the confessed judgment creditors, and in an action brought in the supreme court of New York by the receivers an order was made restraining the sale by the sheriff under the executions, directing a sale by receivers (Mr. Moses and Mr. Franklin being also appointed such receivers in that action), and that the latter should hold the proceeds of the sale subject to the claims of all parties, such claims to be determined in that action. Pursuant to this order, the goods were sold, and the receivers so ap

Brothers & Co., while the real estate transferred became subject to the lien of the judgments of Metcalf Brothers & Co. on October 22d and 29th, 1896.

"All parties except the receivers appealed from this judgment to the appellate division of the supreme court of New York; that court affirmed the judgment of the trial court as to the fraud, but reversed it in so far as it granted relief in favor of the receivers. It directed the payment by the receivers to Metcalf Brothers & Co. of the amount of their judgments out of the money in the receivers' hands, and, since Metcalf Brothers & Co. were to be so paid, it reversed the judgments in their favor against Adler, one of the transferees of the accounts. Upon the ground that there was no proof of fraud, it also reversed it against the transferee of the real estate.

"This decision was embodied in an instrument made the 30th day of December, 1898, entitled an 'order,' but which, after reciting the necessary facts, 'ordered and adjudged' that the judgment of the trial term be modified as stated, and also 'ordered and adjudged' that the transfers in question, except the transfer of the real estate, were fraudulent and void as to Metcalf Brothers & Co.; that the receivers be, and they were thereby, directed to pay to Metcalf Brothers & Co. the amount of their judgments, with costs, and that final judgment should be entered in accordance therewith. This instrument was filed in the office of the clerk of the appellate division of the supreme court of New York, and was the only paper signed by that court or kept

*169

•172

preme court appears not to have entered it until January 31, 1899. The decision of the court of appeals (161 N. Y. 587, 56 N. E. 67), was made February 6, 1900, and the remittitur was received and filed in the court below March 12, 1900.

if incorrect, that question should be answered in the affirmative.

Doubtless the lien created by a judgment creditor's bill is contingent in the sense that it might possibly be defeated by the event of the suit, but in itself, and so long as it exists, it is a charge, a specific lien, on the assets, not subject to being devested save by payment of the judgment sought to be collected.

The subject was fully discussed, and the effect of bankruptcy proceedings considered, by Vice Chancellor Sandford in Storm v. Waddell, which has been so repeatedly rec ognized with approval as to have become a leading case.

The bankruptcy law was approved July 1, 1898. May 12, 1899, Lesser Brothers filed their petition in bankruptcy and were adjudicated bankrupts, and Barker was appointed trustee June 7, 1899. March 8, 1900, the bankrupts' trustee procured from the district court an order entitled in the bankruptcy proceedings requiring Metcalf Brothers & Company to show cause on March 13 why a writ of injunction should not issue enjoining them from taking any As Mr. Justice Swayne remarked, in Milfurther proceedings under any judgment in ler v. Sherry, the commencement of the suit their creditors' action, and so enjoining amounts to an equitable levy (2 Wall. 249, them in the interim, which injunction, after 17 L. ed. 830), or, in the language of Mr. argument on the merits, was continued. No Justice Matthews, in Freedman's Sav. & T. question arises here in respect of real es- Co. v. Earle: "It is the execution first betate, and on the case stated in the certifi-gun to be executed, unless otherwise regucate the property affected was equitable as-lated by statute, which is entitled to priorisets. There had been tangible personal ty. The filing of the bill, in cases property, subject to levy and sale under ex- of equitable execution, is the beginning of ecution, but this had been previously sold executing it." 110 U. S. 717, 28 L. ed. 304, by an order of the supreme court of New 4 Sup. Ct. Rep. 230. And the right to pay. York, and the proceeds were held by receiv- ment out of the fund so vested cannot be affected by a subsequent transfer by the debtor (M'Dermutt v. Strong, 4 Johns. Ch. 687), or taken away by a subsequent dis

ers.

U. S. 699, 32 L. ed. 1083, 9 Sup. Ct. Rep. 725; Doe v. Childress, 21 Wall. 642, 22 L ed. 549; Eyster v. Gaff, 91 U. S. 521, 23 L ed. 403; Peck v. Jenness, 7 How. 612, 12 L ed. 841.

Kittredge v. Warren, 14 N. H. 509, was relied on as to the effect of attachments on mesne process in New Hampshire, in Peck v. Jenness. And it may be remarked that Chief Justice Parker's vigorous discussion in that case of the point that the attachment lien was not contingent on a subse quent judgment is a fortiori applicable in cases where the prior establishment of the creditor's claim is the foundation of the creditor's suit.

The general rule is that the filing of a judgment creditors' bill and service of process creates a lien in equity on the judg-charge in bankruptcy. Hill v. Harding, 130 ment debtor's equitable assets. Miller v. Sherry, 2 Wall. 237, 17 L. ed. 827; Freedman's Sav. & T. Co. v. Earle, 110 U. S. 710, 28 L. ed. 301, 4 Sup. Ct. Rep. 226. And such is the rule in New York. Storm v. Waddell, 2 Sandf. Ch. 494; Lynch v. Johnson, 48 N. Y. 27; First Nat. Bank v. Shuler, 153 N. Y. 163, 47 N. E. 262. This was conceded by the district court, but the court held that the lien so created was "contingent upon the recovery of a valid judgment, and liable to be defeated by anything that defeats the judgment, or the right of the complainants to appropriate the fund;" that "such a contingent or equitable lien, it is evident, cannot be superior to the judg. ment on which it depends to make it effec- Granting that possession of the power "to tual, but must stand or fall with the judg-establish uniform laws on the subject of ment itself;" and "§ 67f, therefore, in de- bankruptcies" enables Congress to displace claring that a judgment recovered within these well-settled principles and to devest four months 'shall be deemed null and void,' rights so acquired, we do not think that etc., necessarily prevents the complainants Congress has attempted to do so. from acquiring any benefit from the lien, or Section 67f provides: "That all levies, the fund attached, except through the trus-judgments, attachments, or other liens, ob tee in bankruptcy pro rata with other cred-tained through legal proceedings against a itors," it being also held that, although the judgment at special term was rendered more than four months before the filing of the petition, yet that the judgment of the appellate division, as affirmed by the court of appeals, was within the four months. 100 Fed. 433.

person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed rupt, and the property affected by the levy, null and void in case he is adjudged a bankjudgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee Assuming that the judgment at special as a part of the estate of the bankrupt, unterm is to be disregarded, and that the judg-less the court shall, on due notice, order ment of the appellate division was entered that the right under such levy, judgment, within the four months, it will be perceived attachment, or other lien shall be preserved that if the views of the district court were correct, the third question propounded should be answered in the negative, while

for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as

*174

aforesaid. And the court may order such In Peck v. Jenness, 7 How. 612, 12 L. ed. conveyance as shall be necessary to carry 841, the district court had decided that the the purposes of this section into effect." lien of an attachment issued out of a court [30 Stat at L. 565, chap. 541, U. S. Comp. of New Hampshire was defeasible and inStat. 1901, p. 3418.] valid as against an assignee in bankruptcy. In our opinion the conclusion to be drawn But this court held that this was not so, from this language is that it is the lien cre- and that the district court had no superated by a levy, or a judgment, or an attach-visory power over the state courts, and Mr. ment, or otherwise, that is invalidated, and Justice Grier said: "It is a doctrine of that where the lien is obtained more than law too long established to require a citafour months prior to the filing of the petition of authorities, that, where a court has tion, it is not only not to be deemed to be jurisdiction, it has a right to decide every null and void on adjudication, but its validi- question which occurs in the cause, and ty is recognized. When it is obtained with- whether its decision be correct or otherwise, in four months the property is discharged its judgment, till reversed, is regarded as therefrom, but not otherwise. A judgment binding in every other court; and that, or decree in enforcement of an otherwise where the jurisdiction of a court, and the valid pre-existing lien is not the judgment right of a plaintiff to prosecute his suit in denounced by the statute, which is plainly it, have once attached, that right cannot be confined to judgments creating liens. If arrested or taken away by proceedings in this were not so the date of the acquisition another court. These rules have their founof a lien by attachment or creditor's bill dation, not merely in comity, but on neceswould be entirely immaterial. sity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other. The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum." The rule indicated was applied under the act of 1841 in Clarke v. Rist, 3* McLean," 494, Fed. Cas. No. 2,861; under the act of 1867, by Mr. Justice Miller in Johnson v. Bishop, Woolw. 324, Fed. Cas. No. 7,373, and by Mr. Justice Nelson in Sedgwick v. Menck, 6 Blatchf. 156, Fed. Cas. No. 12,616, and under the act of 1898, among other cases, by the circuit court of appeals for the fourth circuit in Frazier v. Southern Loan & T. Co. 40 C. C. A. 76, 99 Fed. 707, and Pickens v. Dent, 45 C. C. A. 522, 106 Fed. 653.

Moreover, other provisions of the act render it unreasonable to impute the intention to annul all judgments recovered within four months.

By63a, fixed liabilities evidenced by judgments absolutely owing at the time of the filing of the petition, or founded upon provable debts reduced to judgments after the filing of the petition and before the consideration of application for discharge, may be proved and allowed, while under § 17 judgments in actions of fraud are not released by a discharge, and other parts of the act would be wholly unnecessary if67f must be taken literally.

Many of the district courts have reached and announced a similar conclusion (Re Blair, 108 Fed. 529; Re Beaver Coal Co. 110 Fed. 630; Re Kavanaugh, 99 Fed. 928; Re Pease, 4 Am. Bankr. Rep. 547); as have also the supreme court of Rhode Island and the chancery court of New Jersey in wellconsidered decisions. Doyle v. Heath, 22 R. 1. 213, 47 Atl. 213; Taylor v. Taylor, 59 N. White v. Schloerb, 178 U. S. 542, 44 L J. Eq. 86, 45 Atl. 440. And see Wakeman ed. 1183, 20 Sup. Ct. Rep. 1007, proceeded v. Throckmorton, 74 Conn. 616, 51 Atl. 554. on the familiar doctrine that property in As under §§ 70a, e, and § 67e, the trustee the custody of a court of the United States is vested with the bankrupt's title as of the cannot be taken out of that custody by any date of the adjudication, and subrogated to process from a state court, and the jurisdic the rights of creditors, the foregoing consid- tion of the district court sitting in bankerations require an affirmative answer to ruptcy by summary proceedings to mainthe third question, but in answering the tain such custody was upheld. Mr. Justice first question some further observations Gray, speaking for the court, said: "By must be made. This creditors' action was § 720 of the Revised Statutes, U. S. Comp. commenced December 17, 1896, more than Stat. 1901, p. 581, 'the writ of injunction eighteen months before the passage of the shall not be granted by any court of the bankruptcy act, and was prosecuted with United States to stay proceedings in any exemplary diligence to final and complete court of a state, except in cases where such success in the judgment of the court of ap- injunction may be authorized by any law peals. At this point the bankruptcy court relating to proceedings in bankruptcy. intervened and on summary proceedings en- Among the powers specifically conferred joined Metcalf Brothers & Company from upon the court of bankruptcy by § 2 of the receiving the fruits of their victory. The bankrupt act of 1898 are to (15) make state courts had jurisdiction over the par- such orders, issue such process, and enter ties and the subject-matter, and possession such judgments, in addition to those specifiof the property. And it is well settled that cally provided for, as may be necessary for where property is in the actual possession the enforcement of the provisions of this of the court this draws to it the right to act.' 30 Stat. at L. 546, chap. 541, U. S. decide upon conflicting claims to its ulti-Comp. Stat. 1901, p. 3418. And by clause mate possession and control. 3 of the twelfth general order in bankruptcy

Mr. Chief Justice Fuller delivered the

opinion of the court:

applications to the court of bankruptcy 'for Messrs. J. J. Darlington and Joseph an injunction to stay proceedings of a court A. Burkhart for defendants in error. or officer of the United States, or of a state, shall be heard and decided by the judge; but he may refer such an application, or any specified issue arising thereon, to the referee to ascertain and report the facts.' 172 U. S. 657, 43 L. ed. 1191, 18 Sup. Ct. Rep. VI. Not going beyond what the decision of the case before us requires, we are of opinion that the judge of the court of bankruptcy was authorized to compel persons, who had forcibly and unlawfully seized and taken out of the judicial custody of that court property which had lawfully come into its possession as part of the bankrupt's property, to restore that property to its custody."

This cautious utterance and courts must be cautious when dealing with a conflict of jurisdiction-sustains as far as it goes the converse of the proposition when presented by a different state of facts.

We are of opinion that the jurisdiction of the district court to make the injunction order in question cannot be maintained. Louisville Trust Co. v. Comingor, 184 U. S. 18, 26, 46 L. ed. 413, 416, 22 Sup. Ct. Rep. 293.

The first question will be answered in the negative, and the third question in the affirmative, and it is unnecessary to answer the other questions.

Certificate accordingly.

(187 U. S. 159)

HELEN C. RAUB, Charles D. Collins,
Lewis E. Collins, et al., Plffs. in Err.,

v.

HELEN C. CARPENTER, Helen K. Bremerman, Edmund H. Brown, et al.

Witnesses-expert testimony

undisclosed facts-judgments-motion to vacate for incompetency of juror.

1. An expert witness cannot base his opinion
as to the mental capacity of a testator upon
his personal knowledge of any undisclosed
facts concerning the testator's condition.
2. The refusal of the trial court to vacate a
decree because of the incompetency of a
Juror, first discovered after verdict and
Judgment, is not an abuse of its discretion
In the premises, where the verdict rendered
was the only one which could be rendered
consistently with the facts.

This is a writ of error to a judgment of the court of appeals of the District of Columbia, affirming certain orders of the supreme court of the District, holding a special term for orphans' court business, admitting a will and codicil to probate and granting letters testamentary thereon; and denying a motion to vacate that decree.

Plaintiffs in error filed a caveat to the

probate and record of the writings purporting to be the will and codicil, and issues, addressed to both, as to mental capacity, fraud or coercion, and undue influence, were framed for trial by jury.

Trial was had, and on the conclusion of the evidence the court, at the request of the caveatees, instructed the jury that there was no evidence tending to show fraud, undue influence, or coercion, and that on these issues the jury should render its verdict for the caveatees. To which the caveators made no objection, and preserved no exception. Three instructions in respect of the mental capacity of the deceased to make a valid will or codicil were given on behalf of the caveators as requested by them.

The jury returned a verdict June 15, 1900, in favor of the caveatees. No motion for a new trial was made within four days as required by rule 53 of the court, or prior to June 26, when the court entered an order and decree admitting the will and codicil to probate, and granting letters testamentary thereon, from which an appeal was taken to the court of appeals.

Several exceptions were reserved to the rulings of the court in the progress of the trial, which were disposed of by the court of appeals satisfactorily, as we think. But one of them has been pressed on our attention.

Dr. George B. Heinecke, a practising physician in Washington, and a grandnephew of deceased, testified that he had known de ceased ever since he could recollect, and was accustomed to seeing him frequently; that he had seen him when recovering from attacks of epilepsy subsequently to the execu-tion of the will and codicil; "that testator had stated to him that he was a sufferer from urethral calculus; that on the 13th of March 1896, he had seen the testator have a fainting spell;" "that he had on one occasion seen testator laughing to himself; that on or about the 13th of February, 1899, during the Decided De- blizzard, the testator acted peculiarly about the snow in his yard; did not know how it got in there, all of it, and went out there 'N ERROR to the Court of Appeals of the and tried to get it removed;" and witness

[No. 64.]

Argued November 3, 4, 1902. cember 1, 1902.

judge

stated the

of

Columbia to

autopsy the

cause of death. He was then asked the following question: "Doctor, have you formed any opinion, from your uncle's general condition of health and the conditions disclosed by his brain at this investigation, and from all you know about him yourself, what his condition of mind was?"

To that portion of the question which