and holding Federal courts would follow its interpretation by State court; McDonald v. Priolean, 44 Fed. 770, affirming Federal jurisdiction. of a libel for pilotage against consignee liable by State law; De La Vergne Refrig. Macli. Co. v. Montgomery Brewing Co., 46 Fed. 830, holding Federal courts will enforce a statutory mechanic's lien in equity, when the remedy is more complete than at law; The H. E. Willard, 52 Fed. 389, holding that Federal courts in admiralty have no jurisdiction of a claim by a part owner of a vessel for supplies furnished by him before the taking of an account with the other part owners; Brisenden v. Chamberlain, 53 Fed. 309, holding that a suit under Lord Campbell's act is removable to Federal court by a nonresident defendant; Wyman v. Mathews, 53 Fed. 680, holding Circuit Court has jurisdiction of a suit in equity to enforce a trust and distribute a fund under section 4160, Code of South Dakota; The City of Norwalk, 55 Fed. 106, 109, holding District Court had jurisdiction to recover damages for death by negligence arising under law of New York; Prentice v. Duluth Storage etc. Co., 58 Fed. 442, 7 C. C. A. 293, holding that owners in severalty, under a common source of title of vacant and unoccupied lots, may bring suit to quiet title in Federal court, under Minnesota statute enabling such suit; Gilchrist v. Helena Hot Springs etc. Co., 58 Fed. 711, 712, sustaining jurisdiction of a suit in equity to enforce a judgment lien on corporate property, when the State law provided no mode of enforcement; Bigelow v. Nickerson, 70 Fed. 119, 30 L. R. A. 340, 17 C. C. A. 1, holding a suit under statute of Wisconsin, giving right of action for negligence causing death, in a cause arising on Lake Michigan, in jurisdiction of admiralty court; Missouri etc. Trust Co. v. Krumseig, 77 Fed. 43, 23 C. C. A. 1, in concurring opinion, holding that the Minnesota statute reversing the rule of tender before seeking relief from a usurious contract, was binding on Federal courts; Atlantic Works v. Tug Glide, 157 Mass. 526, 528, 532, 34 Am. St. Rep. 307, 308, 309, 310, 33 N. E. 163, 164, affirming validity of Statute, chapter 192, section 14, giving a lien for repairs to vessel in home port, and that Federal court had jurisdiction to enforce the lien; The Willapa, 25 Or. 77, 34 Pac. 691, holding that when maritime law does not give a lien, State law cannot confer jurisdiction in rem; The Sue, 137 Fed. 135, arguendo.

Distinguished in Illinois Life Ins. Co. v. Newman, 141 Fed. 450, denying Federal equity jurisdiction to enjoin collection of State tax on ground of its illegality, though such power is conferred by State statute; Anthony v. Burrow, 129 Fed. 789, denying Federal equity jurisdic

tion to require State officer to certify nomination of certain person as candidate for Congress.

State court's jurisdiction on action against national banks to recover excessive interest. Note, 28 Am. Rep. 463.

Party forfeits nothing by going into a Federal tribunal. Jurisdiction having attached, the case is there tried and decided on same principles and considerations as if brought in proper State tribunal.

Approved in McClellan v. Carland, 187 Fed. 919, 110 C. C. A. 49, holding legal custody of estate by State court no obstacle to exercise by Federal court of jurisdiction over suits by nonresidents to enforce trusts in property; First Nat. Bank v. Port Townsend, 184 Fed. 576, 106 C. C. A. 554, holding State statute requiring claims on warrants against city to be enforced by mandamus did not apply to Federal courts; Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. 75, 16 Ann. Cas. 560, 93 C. C. A. 422, holding Federal court could require plaintiff suing for physical injury to submit to medical examination; Brun v. Mann, 151 Fed. 149, 12 L. R. A. (N. S.) 154, 80 C. C. A. 513, holding Federal court rendering decree, which was allowed as claim against estate, could enforce decree, though estate proceedings were pending in State court, where administratrix refused to proceed with sale of property to pay debts; Postal Tel. Cable Co. v. Southern Ry. Co., 122 Fed. 159, denying trial by jury and following State law in proceeding condemning land under eminent domain; dissenting opinion in Wahl v. Franz, 100 Fed. 701, 40 C. C. A. 638, court holding proceeding for probate of will not suit in law or equity removable though applicant citizen of another State; Davis v. Gray, 16 Wall. 222, 21 L. Ed. 453, applying rule in suit by receiver of a railroad to enjoin the regrant of parts of the railroad land grant by State officers, the State having declared the lands forfeited; Brine v. Hartford Fire Ins. Co., 96 U. S. 635, 24 L. Ed. 861, holding that the right of redeeming property sold under foreclosure, enacted by State law, is obligatory on Federal courts in State; The Corsair, 145 U. S. 347, 36 L. Ed. 731, 12 Sup. Ct. 952, holding that unless local law gives a lien in cases subject to State legislation, there is none to enforce by proceedings in rem in admiralty, a libel in rem for damages from death by collision will not lie under Louisiana law; Darragh v. H. Wetter Mfg. Co., 78 Fed. 13, 14, 23 C. C. A. 609, holding that rights created or provided by State law may be enforced in Federal courts, either at law or in equity or admiralty; dissenting opinion in Cates v. Allen, 149 U. S. 462, 37 L. Ed. 809, 13 Sup. Ct. 978, arguendo.

Adoption by Federal courts of remedies created by State statutes.
Note, 18 L. R. A. 266.

Corporate taxation and the commerce clause. Note, 60 L. R. A. 694.

Miscellaneous. Cited in The Schooner Kalmar, 10 Ben. 244, Fed. Cas.

7601.

13 Wall. 244-251, 20 L. Ed. 539, BATH COUNTY v. AMY.

Power to issue mandamus as original proceeding does not belong to Circuit Court; it is authorized only when ancillary to jurisdiction already acquired.

Approved in Ex parte Massachusetts, 197 U. S. 488, 49 L. Ed. 848, 25 Sup. Ct. 512, denying jurisdiction to issue extraordinary writs to restrain proceedings in equity cause; Blake and Others, 175 U. S. 119, 44 L. Ed. 96, 20 Sup. Ct. 44, denying mandamus without regard to whether State court complied with mandate remanding cause; Burnham v. Fields, 157 Fed. 248, dismissing application for mandamus; Ex parte Moran, 144 Fed. 596, 75 C. C. A. 396, upholding jurisdiction of Circuit Court of Appeals to issue habeas corpus to determine power of Oklahoma court to imprison one convicted of capital crime; United States v. Norfolk etc. Ry. Co., 138 Fed. 851, denying mandamus to compel interstate railroad to equitably distribute cars according to contract; Barber Asphalt etc. Co. v. Morris, 132 Fed. 953, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel circuit judge to vacate order staying proceedings pending State court appeal; Mystic Milling Co. v. Chicago etc. Ry. Co., 132 Fed. 292, denying jurisdiction of mandamus proceeding on removal; Kelly v. Grand Circle, W. O. W., 129 Fed. 831, proceeding for mandamus by motion and affidavits as authorized by Bal. (Wash.) Code, § 5765, authorizing assessment for damages on judgment for applicant, is not removable; dissenting opinion in Lankford v. Platte Iron Wks. Co., 235 U. S. 496, 59 L. Ed. 329, 35 Sup. Ct. 173, majority holding Federal court had no jurisdiction of suit by depositor in bank to compel payments from depositor's guaranty fund by State banking board, such being suit against State; Graham v. Norton, 15 Wall. 429, 21 L. Ed. 178, holding neither District nor Circuit Court could issue mandamus to compel repayment of State taxes to an assignce in bankruptcy of several bankrupts; Heine v. Levee Commrs., 19 Wall. 660, 22 L. Ed. 226, holding a bill in equity will not lie to compel levy of a tax to pay bonds unless a judgment at law has been previously obtained; Louisiana v. Jumel, 107 U. S. 727, 27 L. Ed. 454, 2 Sup. Ct. 141 (but see dissenting opinion in 107 U. S. 762, 763, 27 L. Ed. 466, 2 Sup. Ct. 170, 171), mandamus will not lie at suit of bondholders to compel State officials to perform a ministerial duty without a prior judgment; Rosenbaum v. Bauer, 120 U. S. 455, 30 L. Ed. 745, 7 Sup. Ct. 635 (affirming 11 Sawy. 621, 622, 28 Fed. 224), holding that the removal of causes act of 1875 does not enable the issue of an original writ to compel supervisors to levy a tax to pay bonds; United States v. Pearson, 24 Blatchf. 455, 32 Fed. 310, refusing

mandamus to compel postmaster to transmit mail matter at a different rate of postage; In re Vintschger, 50 Fed. 461, mandamus refused to compel a customs collector to examine into facts and decide whether an entry should be refused or not; Gares v. Northwestern Nat. Bldg. etc. Assn., 55 Fed. 210, refusing mandamus to compel a corporation to hold a stockholders' meeting for election of directors; In re Forsyth, 78 Fed. 301, holding the District Court cannot by mandamus compel clerk of the court to deliver to a receiver appointed by a State court a check drawn on the fund in court representing surplus proceeds of sale; Denton v. Baker, 79 Fed. 194, 24 C. C. A. 476, holding that mandamus will not issue to holder of a judgment against a national bank to compel the receiver in insolvency to file and allow the claim, the remedy is an action at law; United States v. Judges, 85 Fed. 179, 29 C. C. A. 78, holding Circuit Court of Appeals cannot issue writ to compel judges of Court of Appeals in the Indian Territory to admit to bail pending an appeal; Rosenbaum v. Bauer, 120 U. S. 455, 30 L. Ed. 745, 7 Sup. Ct. 635, holding jurisdiction not enlarged in cases of removal, by act of 1875; dissenting opinion in United States. v. Union Pac. R. Co., 2 Dill. 530, 531, Fed. Cas. 16,599, arguendo.

Distinguished in State v. Philips, 97 Mo. 346, 3 L. R. A. 481, 10 S. W. 861, holding mandamus will lie from State Supreme Court to compel Court of Appeals to correct an erroneous and arbitrary exercise of its discretion.

Mandamus is one of the writs authorized to be issued by Circuit Courts under section 14 of Judiciary Act, and is not included in suits in civil nature, of which original jurisdiction is given by section 11.

Approved in Barber Asphalt etc. Co. v. Morris, 132 Fed. 952, 67 L. R. A. 761, 66 C. C. A. 55, granting mandamus to compel circuit judge to vacate order staying proceedings pending State court appeal; United States v. Capdevielle, 118 Fed. 813, 55 C. C. A. 421, holding State statute prohibiting mandamus for collection of judgment against city not binding on Federal courts; Board of Liquidation v. United States, 108 Fed. 691, 47 C. C. A. 587, awarding mandamus judgment rendered against board of liquidation to compel payment thereof; Rosenbaum v. Board of Supervisors, 11 Sawy. 622, 28 Fed. 224, holding the writ is not a suit of a civil nature within the meaning of the removal act of 1875, and is not removable under it; State v. Lake Erie etc. R. Co., 85 Fed. 3, holding a proceeding for an original writ of mandamus commenced in a State court is not a civil suit removable under the acts of 1887 or 1888; Shepard v. Tulare Irr. Dist., 94 Fed. 6, arguendo.

Denied in Erwin v. Walsh, 23 Blatchf. 536, 27 Fed. 580, refusing to remand a proceeding by mandamus to compel a probate judge to allow an appeal. (For the reasoning leading to this decision, see Washington Imp. Co. v. Kansas Pac. R. Co., 5 Dill. 489, Fed. Cas. 17,242.)

Act of Congress of 1828, adopting State process in Federal courts, did not confer on Circuit Court original jurisdiction to issue mandamus; that act was not designed to enlarge Federal jurisdiction.

Approved in Sewchulis v. Lehigh Valley Coal Co., 233 Fed. 424, holding section 1914 Revised Statutes construed in light of act of 1828 which it succeeded did not apply to process issued out of Federal Court before jurisdiction attached; In re Wright, 123 Fed. 464, dismissing writ, Circuit Court without power to admit to bail under extradiction treaty.

Circuit Court has no jurisdiction to compel by mandamus the levy of a tax to pay interest coupons on county bonds without a previous judgment in favor of holder and an attempt to enforce payment by ordinary process. Approved in Burlington Sav. Bank v. Clinton, 106 Fed. 275, holding before mandamus issuing to compel levy to pay bonds, amount due must be established; Greene County v. Daniel, 102 U. S. 195, 26 L. Ed. 101, following rule; Davenport v. Dodge County, 105 U. S. 243, 26 L. Ed. 1021, to same effect as to tax to pay bonds; Jordan v. Cass Co., 3 Dill. 191, Fed. Cas. 7517, holding that where the State enabling act had provided no means of suing bodies politic on their bonds, suit might be brought in Federal courts and enforced by mandamus to compel levy of tax; Sanford v. Town of Portsmouth, 2 Flipp. 106, Fed. Cas. 12,315, holding assumpsit was the proper remedy to enforce payment of interest warrants and mandamus would not lie until after judgment; McCauley v. Kellogg, 2 Woods, 18, Fed. Cas. 8688, refusing a mandatory injunction to compel State officers to levy a tax for payment of bonds, the proper remedy was by mandamus after judgment at law; Moore v. Town of Edgefield, 32 Fed. 501, refusing mandamus to compel levy of tax when the judgment previously obtained was void for want of jurisdiction; Stryker v. Board of Commrs. of Grand County, 77 Fed. 574, 23 C. C. A. 286, holding Colorado statutes of 1877 and 1887 did not authorize the issue of writ to a judgment creditor for ordinary county expenses to compel the levy of a special tax; Waite v. City of Santa Cruz, 89 Fed. 623, 624, holding Circuit Court had jurisdiction of an action on a municipal bond, though to enforce it a writ of mandamus to compel levy of a tax would be required; Shepard v. Tulare Irr. Dist., 94 Fed. 3, 4, to same effect, and holding that because mandamus was available in the first instance in State court the plaintiff was not obliged to sue in that court on the bond; Herring v. Modesto Irr. Dist., 95 Fed. 710, to same point and effect; Fuller v. Aylesworth, 75 Fed. 699, 21 C. C. A. 505, arguendo.

Distinguished in United States v. Virginia-Carolina Chemical Co., 163 Fed. 67, 75, holding on indictment for conspiracy in restraint of trade Circuit Court could issue process to another State to bring in corporation defendants, citizens of such State; Santa Cruz v. Waite, 98 Fed.