Courtright v. Burnes. think that this was a settlement in the nature of a compromise and adjustment of doubtful and conflicting rights, in which each party desired to settle, and in which each party made concessions, and that they finally came together upon an agreement, each believing at the time he was losing by the transaction, and so settled for the sake of compromise. We say, in such a settlement as that, it must be satisfactorily proved that there was some positive fraud, some false representations made, some gross advantage taken by one party or the other to set it aside; and without going fully into the evidence, it is sufficient to say that neither of us believe that any such case has been made against Mr. Burnes, nor do we believe that he intended to commit any fraud upon Mr. DeCamp in this settlement. We do not believe that any frand was committed upon DeCamp as the representative of Courtright. It may be that, in rendering his statement in regard to the salary item, it may not have been exactly correct, and we are prepared to admit that there is some doubt about this eighteen thousand dollar salary item, and if this account was all there was in this case, it might be necessary to refer it to a master for investigation. We are not clear that Mr. Burnes was entitled to that. The testimony in regard to the East Leavenworth Company's account of $27,000, or whatever it may be, we think the preponderance of the testimony is in favor of the fact that it was rightfully retained by Mr. Burnes; but whether it is absolutely so or not, it is not necessary to decide in this case. Mr. Burnes made large concessions. Mr. DeCamp was communicating to his principal by telegraph. They were two days in making propositions and counter-propositions. Each said to the other: "You yield and I will yield; we think it is best, in view of other matters, to have all matters between us settled." And they were settled. And it is not for one party to come in and ask that it be set aside unless he can clearly show that he was misled and defrauded. This, in our opinion, has not been done in this case. With these views, gentlemen, in which my brother Krekel concurs, the bill in this case will be dismissed. The Domestic and Foreign Missionary Society v. Hinman. THE DOMESTIC AND FOREIGN MISSIONARY SOCIETY V. HINMAN et al. (District of Nebraska. January, 1881.) 1. CONFLICT OF JURISDICTION - REPLEVIN-SERVICE OF WRIT.- By the service of a writ of replevin, the court from which the writ issues obtains possession and control of the property replevied for all the purposes of jurisdiction in the replevin suit, and no other court of concurrent jurisdiction can subsequently interfere with such possession. The same property cannot be subject to two jurisdictions at the same time, and the first levy, whether made under state or federal authority, withdraws the property from the reach of the process of the other. 2. SAME - PROPERTY CLAIMED AS A TRUST FOR CHARITABLE USES.— The rule above stated applies, notwithstanding one of the parties may claim the property for the purposes of a public charity only. The question is, whether by taking jurisdiction this court will deprive another court of concurrent power of the right to proceed to judgment in an action commenced before the institution of these proceedings. Bill in equity. Motion to dissolve injunction upon bill, answer and certain proofs on file. The facts are sufficiently stated in the opinion. J. M. Woolworth, for complainant. George W. Doane, for respondents. -- MCCRARY, Circuit Judge. As one of the grounds upon which the respondent moves to dissolve the injunction, it is alleged that the property in controversy was, at and before the time of the commencement of this suit, and still is, in the possession and control of another court of concurrent jurisdiction, to wit: The district court of the state of Nebraska, in and for the county of Knox, and that therefore this court. ought not to take jurisdiction. The property which is the subject matter of this suit consists of certain buildings erected upon an Indian reservation in Knox county, Nebraska, and the furniture, etc., connected therewith, used as a chapel for religious worship, and for Sunday schools and other religious The Domestic and Foreign Missionary Society v. Hinman. purposes, including clergyman's residence, apartments for an industrial school for Indians, dwellings for employees, etc.; also a farm of about thirty acres of cultivated land. Neither party to this suit claims any title to the soil. The property is used in connection with a church and school established for the civilization and education of Indians; but whether it is the property of the complainant or of the respondent S. D. Hinman is the principal matter of dispute between the parties to this suit. The bill was filed July 30, 1880. It sets forth the facts concerning the acquisition of the property in question, and the purposes for which it was acquired as claimed by the complainant, and concludes with the following prayer: "Wherefore your orator prays the aid of this honorable court as follows: "1. That the said defendants answer this, your orator's bill, according to the course and practice of this court, but not under oath, their answer under oath being hereby waived. "2. That the said defendants and each of them, and the attorneys, counsellors, agents and employees of each of them be, by the order and injunction of .this honorable court, enjoined and restrained from claiming, using, occupying, incumbering, disposing of or interfering or in any manner intermeddling with the said buildings and the furniture, fixtures and appliances therein, the said farm and crops, or the use of the same for the said mission and its work; and also from interfering with, obstructing or preventing the said plaintiff, its agents and employees, from resuming and taking possession of said property and all thereof, or in using the same or in carrying on the said work of the said mission, as it has been done prior to the twenty-third of June last past. "3. That a receiver be appointed with the usual powers of receivers in such cases, to take possession of the said property and all thereof, and resume and conduct the work of the said mission. "4. That it be decreed that the said defendants and each of The Domestic and Foreign Missionary Society v. Hinman. them has no right, title or interest in the said property, and that the injunction above prayed may be made perpetual. "5. That your orator have its costs of this suit and all other relief that is necessary and equitable." On the twenty-third day of June, 1880, more than a month before the commencement of this suit, the respondent, S. D. Hinman, brought an action of replevin in the district court of Knox county, Nebraska, against William W. Fowler, who was then in possession as complainant's agent, to recover possession of said property; and thereupon a writ of replevin was issued, and the officer's return shows that on that day he seized the property and delivered it to said Samuel D. Hinman, taking from him the bond and security required by the statute. Afterwards in November, 1880, the complainant entered its appearance in said replevin suit in the state court and was made a party thereto and given sixty days to interplead. The replevin suit is still pending. The There can be no doubt that by the service of the writ of replevin the property came into the possession of the state court for all the purposes of jurisdiction in that case. rule upon this subject is not doubtful. The same property cannot be subject to two jurisdictions at the same time. The first levy, whether made under the federal or state authorities, withdraws the property from the reach of the process of the other. Where there are several authorities equally competent to bind the goods of a party, they must be considered effectually and for all purposes bound by the authority which first actually attaches upon them. "This rule," says Mr. Justice Campbell, in Taylor v. Carryl, 20 How. 594, "is the fruit of experience and wisdom, and regulates the relation and maintains harmony among the various superior courts of law and chancery in Great Britain." In Buck v. Colbath, 3 Wall. 341, Mr. Justice Miller stated the rule in these words: "The principle is, that whenever property has been seized by an officer of the court by virtue of its process, the property is to be considered as in the custody of the court and under its conVOL. II-35 The Domestic and Foreign Missionary Society v. Hinman. trol 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." See also to the same effect, Freemen v. Howe, 24 How. 450; Hagan v. Lucas, 10 Peters, 400. This general rule is not controverted by counsel for complainant, but he insists that it does not apply to this case, because the property in controversy is held and claimed for the purposes of a public charity only, and that consequently a trust attaches to it, which necessarily gives this court jurisdiction over it. In the first place it must be said in answer to this suggestion, that whether this is trust property belonging to the complainant as trustee, or individual property of the respondent Hinman, is one of the questions in dispute between the parties, and is, indeed, the very question which must be determined by the state court in the replevin suit, and by this court also if our jurisdiction shall be maintained. It cannot therefore be assumed, in determining the question of jurisdiction as an established proposition, that the property is trust property, and that the complainant is entitled to it as trustee. But even assuming that the complainant is right as to the fact, and that this property is a trust property purchased with funds contributed to the complainant or its agents for the purpose of aiding in a public charity, it still remains true that every ques tion which can arise touching the possession of it may be properly decided by the state court in the replevin suit. A trustee who has the right to the possession of specific articles of personal property which are wrongfully withheld from him, may, without doubt, bring an action at law in replevin to recover the same. The real question here is this: If the jurisdiction of this court be maintained; if the injunction heretofore granted be continued in force and finally made perpetual, will it deprive the state court of the power to go on and determine the issues in the replevin suit, rendering judgment |