GRIER, Circuit Justice.
“It is certainly true,” says Lord Stowell, in 2 Dod. 289, in speaking of the high court_of admiralty of England, “that this court did formerly entertain questions of title to a greater extent tl^an it has lately been in the habit of doing. In former times, indeed, it decided without reserve upon all questions of disputed title, which the parties thought proper to bring before it for adjudication. After the Restoration, however, it was informed by other courts, that such matters were not properly cognizable here, and since that time it has been very abstemious in the interposition of its authority.” As few cases could arise (unless between part owners,) in which the question of possession when entertained would not necessarily introduce as an incident, the question of title, the courts of admiralty in England have been for a time almost wholly deprived, by the unreasonable jealousy of the common law courts, of a jurisdiction which they were peculiarly suited to exercise, and which has been at last restored to them by statute.3 Recent cases in the supreme court' of the United States, — Waring v. Clarke, 5 How. [40 U. S.] 441; New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] 344, — although not directly in point on the present question, show that the courts of admiralty of the United States, have not considered their jurisdiction restrained to the narrow, and sometimes absurd limits lately imposed by the courts of common law in England. Although I am not disposed to go the length of De Lovio v. Boit [supra], I feel no difficulty in giving my assent to The Tilton [supra], which is to the point on the question now under consideration.
2. That the title acquired by Mr. Taylor to the barque Royal Saxon, was good against all the world, will hardly admit of an argument.
The attachment issued out of the supreme court of Pennsylvania, reached only the title of the defendants in the action. The sale by the order of the court, gave no higher title than if sold on an • execution of the same court. The purchaser took the title of the defendants whatever it was, subject to the liens or rights attached to the vessel.
The lien for mariners' wages attaches to the vessel, in whosesoever hands it may come, with notice of the claim. It is said to be “nailed to the last plank.” If she has been wrongfully seized by belligerents, and restitution of the value is afterwards made, the mariners’ lien will cleave to the proceeds. Brown v. Lull [Case No. 2,018]. The proceedings in the state court were not in rein. The rights of the mariner against the vessel can only be prosecuted in a court of admiralty which pi'oceeds in rem, and has exclusive jurisdiction of the subject matter. The vessel is not attached as the debtor, but the property or right of the defendant in the suit iS distrained to compel his appearance. The purchaser in the state court might have intervened in the district court, and released the vessel by entering stipulation with sufficient sureties to satisfy the liens. He bought with full notice; for the proceedings in the district court were pending at the time of his purchase. If he has suffered a sale in the admiralty for liens which adhered to the vessel when he bought her, his title is divested as completely as if he had bought lands on execution which were afterwards sold on a mortgage which was the oldest lien upon the property.
The case of Certain -Logs of Mahogany [supra] is directly in point as to -this question. There, it was decided that the pendency of a replevin, in which the title and possession of the property was litigated, was no bar to the prosecution in admiralty of a claim which was a lien on the thing, and sought a remedy against it, irrespective of possession, ownership or title. To this extent we concur fully with the learned judge who decided that case, but it has been cited to support doctrines in which we do not concur, and which were not intended to be advanced by the court in that case, and which we shall notice more fully hereafter.
For these reasons, I feel no doubt of the correctness of the decision of these two questions by the learned judge of the district court.
On the third point stated, I am sorry after much reflection and examination, to be compelled to differ from that court.
The plea of lis pendens, in courts of common law, will be allowed to abate the wn’t. only where the first suit is brought by the same plaintiff against the same defendant for the same cause of action. It is founded on the principle that the law abhors a multiplicity of actions, and that to allow a man to be twice arrested or twice attached by his goods for the same thing would be oppressive. It is plain that the plea in this case could not be sustained on these technical grounds, as plaintiff or libellant in this suit was defendant in the replevin suit instituted by the claimants in the supreme court of Pennsylvania.
But, I apprehend, the question before us depends on broader and different principles, and such as will support this plea either in abatement or in bar.
It will not be denied that the courts of Pennsylvania have full power and jurisdiction to seize a ship lying in the port of Philadelphia with a writ of replevin, and to de-[802]*802cicle the Question of possession and property between the parties claimant. And although it has been denied, and probably will be hereafter, that the district court as a court of admiralty, has the same jurisdiction, to decide the question of title, we will assume, that question as settled, at least for the purposes of the present case.
We have then, two equal and independent tribunals with concurrent jurisdiction of the parties, and the subject matter in contest.
The state court has first taken cognizance of the question of possession and property between these parties. And if it were an action of trespass where the same question might be collaterally decided in a suit by A. against B. in one court, that might arise In a suit by B. against A. in the other, it may be admitted that the pendency of such a suit in one court, would be no bar to a proceeding in the other, merely because the same question was involved and might be decided.
But we have something more. The state court has taken possession by her officer of the thing, or subject matter in controversy, and disposed of it according to law. It is true the court have not decided the question of property between the parties; that is still pending; but until that question is decided the possession of the matter in dispute is disposed of according to the law of the land.
Originally the action of replevin was a remedy for an illegal distress; and when the property distrained was delivered to the plaintiff on a writ of replevin, it became as much under his control, and as liable to be taken in execution for his debts, as his other property. The bond is substituted in court in place of the thing distrained, and the lien of the distress is gone. Woglam v. Cowperthwaite, 2 Dali. [2 U. S.] 68. In Pennsylvania a writ of replevin lies in all cases where one man claims personal property in possession of another. But the same consequences must result when the distress or taking is only fictitious, and the title and right of possession are the real matters in dispute. By virtue of the writ of replevin, the sheriff seizes the property; it is taken into the custody of the law.
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GRIER, Circuit Justice.
“It is certainly true,” says Lord Stowell, in 2 Dod. 289, in speaking of the high court_of admiralty of England, “that this court did formerly entertain questions of title to a greater extent tl^an it has lately been in the habit of doing. In former times, indeed, it decided without reserve upon all questions of disputed title, which the parties thought proper to bring before it for adjudication. After the Restoration, however, it was informed by other courts, that such matters were not properly cognizable here, and since that time it has been very abstemious in the interposition of its authority.” As few cases could arise (unless between part owners,) in which the question of possession when entertained would not necessarily introduce as an incident, the question of title, the courts of admiralty in England have been for a time almost wholly deprived, by the unreasonable jealousy of the common law courts, of a jurisdiction which they were peculiarly suited to exercise, and which has been at last restored to them by statute.3 Recent cases in the supreme court' of the United States, — Waring v. Clarke, 5 How. [40 U. S.] 441; New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] 344, — although not directly in point on the present question, show that the courts of admiralty of the United States, have not considered their jurisdiction restrained to the narrow, and sometimes absurd limits lately imposed by the courts of common law in England. Although I am not disposed to go the length of De Lovio v. Boit [supra], I feel no difficulty in giving my assent to The Tilton [supra], which is to the point on the question now under consideration.
2. That the title acquired by Mr. Taylor to the barque Royal Saxon, was good against all the world, will hardly admit of an argument.
The attachment issued out of the supreme court of Pennsylvania, reached only the title of the defendants in the action. The sale by the order of the court, gave no higher title than if sold on an • execution of the same court. The purchaser took the title of the defendants whatever it was, subject to the liens or rights attached to the vessel.
The lien for mariners' wages attaches to the vessel, in whosesoever hands it may come, with notice of the claim. It is said to be “nailed to the last plank.” If she has been wrongfully seized by belligerents, and restitution of the value is afterwards made, the mariners’ lien will cleave to the proceeds. Brown v. Lull [Case No. 2,018]. The proceedings in the state court were not in rein. The rights of the mariner against the vessel can only be prosecuted in a court of admiralty which pi'oceeds in rem, and has exclusive jurisdiction of the subject matter. The vessel is not attached as the debtor, but the property or right of the defendant in the suit iS distrained to compel his appearance. The purchaser in the state court might have intervened in the district court, and released the vessel by entering stipulation with sufficient sureties to satisfy the liens. He bought with full notice; for the proceedings in the district court were pending at the time of his purchase. If he has suffered a sale in the admiralty for liens which adhered to the vessel when he bought her, his title is divested as completely as if he had bought lands on execution which were afterwards sold on a mortgage which was the oldest lien upon the property.
The case of Certain -Logs of Mahogany [supra] is directly in point as to -this question. There, it was decided that the pendency of a replevin, in which the title and possession of the property was litigated, was no bar to the prosecution in admiralty of a claim which was a lien on the thing, and sought a remedy against it, irrespective of possession, ownership or title. To this extent we concur fully with the learned judge who decided that case, but it has been cited to support doctrines in which we do not concur, and which were not intended to be advanced by the court in that case, and which we shall notice more fully hereafter.
For these reasons, I feel no doubt of the correctness of the decision of these two questions by the learned judge of the district court.
On the third point stated, I am sorry after much reflection and examination, to be compelled to differ from that court.
The plea of lis pendens, in courts of common law, will be allowed to abate the wn’t. only where the first suit is brought by the same plaintiff against the same defendant for the same cause of action. It is founded on the principle that the law abhors a multiplicity of actions, and that to allow a man to be twice arrested or twice attached by his goods for the same thing would be oppressive. It is plain that the plea in this case could not be sustained on these technical grounds, as plaintiff or libellant in this suit was defendant in the replevin suit instituted by the claimants in the supreme court of Pennsylvania.
But, I apprehend, the question before us depends on broader and different principles, and such as will support this plea either in abatement or in bar.
It will not be denied that the courts of Pennsylvania have full power and jurisdiction to seize a ship lying in the port of Philadelphia with a writ of replevin, and to de-[802]*802cicle the Question of possession and property between the parties claimant. And although it has been denied, and probably will be hereafter, that the district court as a court of admiralty, has the same jurisdiction, to decide the question of title, we will assume, that question as settled, at least for the purposes of the present case.
We have then, two equal and independent tribunals with concurrent jurisdiction of the parties, and the subject matter in contest.
The state court has first taken cognizance of the question of possession and property between these parties. And if it were an action of trespass where the same question might be collaterally decided in a suit by A. against B. in one court, that might arise In a suit by B. against A. in the other, it may be admitted that the pendency of such a suit in one court, would be no bar to a proceeding in the other, merely because the same question was involved and might be decided.
But we have something more. The state court has taken possession by her officer of the thing, or subject matter in controversy, and disposed of it according to law. It is true the court have not decided the question of property between the parties; that is still pending; but until that question is decided the possession of the matter in dispute is disposed of according to the law of the land.
Originally the action of replevin was a remedy for an illegal distress; and when the property distrained was delivered to the plaintiff on a writ of replevin, it became as much under his control, and as liable to be taken in execution for his debts, as his other property. The bond is substituted in court in place of the thing distrained, and the lien of the distress is gone. Woglam v. Cowperthwaite, 2 Dali. [2 U. S.] 68. In Pennsylvania a writ of replevin lies in all cases where one man claims personal property in possession of another. But the same consequences must result when the distress or taking is only fictitious, and the title and right of possession are the real matters in dispute. By virtue of the writ of replevin, the sheriff seizes the property; it is taken into the custody of the law. But as it would be injurious to both parties that the property should be so retained, the sheriff is ordered by the writ to deliver it into the custody and possession of the plaintiff, on his giving sufficient pledges. If the defendant or party in possession claims title, the sheriff does not hold an inquisition to try the question nor does any writ de proprietate probandfi issue; but the defendant is allowed to retain the possession by giving what is called “a claim property bond.” When this is done, the suit proceeds as a common action of trespass de bonis asporta-tis. The plaintiff recovers in damages the value of the property, and the only advantage which he gains by his action of replev-in, is the security which he has obtained for the damages he may recover. The delivery to the defendant is final; no retorno habendo ever issues for delivery of the specific thing to the plaintiff, or withernam to compel it. In fact, whatever the defendant’s title may previously have been, it becomes indefeasible by his “claim property bond,” which is substituted for the property, and has the effect, like a recovery of damages in trespass, to confer a good title on the trespasser. If the sheriff were to deliver possession to the plaintiff according to the letter of the writ, without any judgment of the court on the question of title, or any inauisition by the sheriff, or writ de proprietate probanda without regard to the defendant’s claim of title, it is plain that very great abuses might be committed.
But practice has shown that these abuses are sufficiently restrained by giving the person who has the actual possession, which is prima facie evidence of title, the first right or refusal, of taking the property into his possession during the contest about its title, and in fact of perfecting his title as against the plaintiff in the writ, by substitution of his bond.
But if the person in possession and claiming title, does not desire to retain it on these conditions, the sheriff in obedience to the command of his writ, delivers the thing seized to the plaintiff, taking sureties or pledges for the ultimate sufficiency of which the officer and his sureties are liable.
The plaintiff having thus obtained the possession by process of law, has the legal possession. The title of his antagonist is transferred to him in consideration of his bond, liable only to recaption if found in his possession by a writ of retorno habendo. In practice, this writ is seldom or never resorted to, unless to have the formal return of “elongatur.”
If the plaintiff has sold and delivered the property to another, the sheriff cannot seize it on a writ of de retomo habendo: but if not found in possession of the plaintiff, he must necessarily return his writ “elonga-tur.”
If ever a case should arise, in which the restoration of the identical property for some peculiar reason, should be preferred to a recovery of its value, a writ of withernam would lie to compel the plaintiff to restore it, and if he had sold it, to purchase it again. But whether the replevin be to restore a real or fictitious distress, the title and possession of the plaintiff to the things are considered as good and defeasible only in case of recovery by defendant, and a reseizure on writ of retorno habendo.
The plaintiff’s replevin bond has been suo-stituted in the court by consent of the defendant, and by process of the law, for the property in dispute: if the plaintiff prosecute the suit with effect, or if the defendant recover his damages, the title of plain[803]*803tiff is absolute and indefeasible, and Ms possession continues to be legal till taken from him by process of the same court wMch gave it to him.
But on this subject we are not without cases directly in point, which confirm the views here taken. In the case of Morris v. De Witt, 5 Wend. 71, it has been decided that a writ of replevin by defendant to obtain a re-deliverance of the property taken from him by virtue of a writ of replevin issued against him, is irregular and will be quashed. The court say: “The law has provided guards against abuses in practice under the writ of replevin. It would be a very useless proceeding, if the defendant in replevin has a right to turn round and bring his action of replevin, and thus regain possession of the property which has been legally taken from him. If such a proceeding were permitted, there would be no end to suits, and the benefits of this action would never be realized. The title to the property in question must be tried upon issue regularly joined, and until such trial, the party from whom the property has been taken by due process of law, must remain out of possession, unless it is restored to him on his claim of property.”
Lowry v. Hall, 2 Watts & S. 129, also asserts and confirms the views which we have taken. A raft of lumber had there been delivered to Lowry on a writ of replevin, in which Hall and others were defendants, in the state of New York. When the raft was brought into Pennsylvania, Hall took out a replevin here, Lowry pleaded the delivery to Mm on a replevin in New York, as conclusive evidence of his title, and a bar to a- second replevin between the same_ parties in this state. The court below decided that an adjudication of the question of property in New York would have been conclusive, but the mere pendency of an earlier replevin there was not. The supreme court reversed the judgment, on the ground that whatever may have been the previous rights of the parties, after the delivery in replevin to one of the parties, he had not only the right of possession but of property also, till actual re-deliverance by process from the same court. “After the execution of the first re-plevin, then” asks CMef Justice Gibson “who had a right to the possession of this lumber by the law of New York? Unquestionably not he from whose possession it had been taken by the authority of that law and committed to the custody of an antagonist claimant, to abide the event of the suit.” Again, he remarks, “it is unnecessary to contend that his title becomes absolute in form by the eloignment, for it is enough that the ownership is taken to be in Mm, till his title is disproved by the trial of the issue. But the property has been delivered to him as his own, on the basis, real or supposed, of having been wrongfully taken from him, and as possession is prima, facie evidence of title, delivery to him, after a claim of property which admits the taking, is so too; at least it settles the right to treat it as his own, till it be adjudged to belong to another.
It is clear, therefore, that the supreme court of Pennsylvania would not have entertained a second replevin, if Mr. Taylor had brought his suit in that court; not only because it would be oppressive to compel the opposite claimants a second time (and if a second, then any other number of times,) to give sureties for prosecuting their claim to the barque, but because, by operation of law, the proceedings in the first replevin, have vested the right of possession in the party to whom it was delivered in the first writ. The pendency of the first replevin, would therefore be a valid plea, not only in abatement but in bar. And if the second replevin had been issued in the district court of the city and. county of Philadelphia, which has concurrent jurisdiction with the supreme court, it is plain that they must sustain the plea, not oMy on the well established principle “that in cases of concurrent jurisdiction, the court which first has possession of the subject must determine it conclusively” (Smith v. McIvor, 9 Wheat. [22 U. S.] 532), but because the pendency of the first writ shows conclusively that the party in possession has a legal possession, which the plaintiff in the second replevin is estop-ped to deny; the disposition of the property by the law during the pendency of the litigation, being as conclusive on the parties as the final decision of the court on the question of title. These points being (as we think) conclusively established, it remains only to inquire whether a court of admiralty, a court of concurrent jurisdiction receiving her authority from the United States, is bound by the same- rules of comity and of law, or may disregard the disposition made of the property now in dispute by the law and courts of Pennsylvania, and anticipate the decision of a controversy already submitted by the parties to the state tribunal.
The court of king’s bench in England, treating the court of admiralty as an inferior tribunal, have refused to sustain a plea in abatement, that the plaintiff had libelled the defendant in admiralty, for the same cause of action. Bae. Abr. tit. “Abatement,” M. But while the supreme court (the king’s bench) of Pennsylvania, could not treat the court of admiralty deriving her power from the United States, as an inferior court, so neither can the latter disregard the penden-cy of process in the state courts, where they have concurrent jurisdiction. The principle that the first tribunal which has possession of the subject matter should be left to determine it conclusively, is not founded on mere comity, but on necessity and to avoid the unpleasant collision of jurisdictions which would otherwise ensue. Where, as in the present ease, the courts derive their power from different sovereigns, there is the great[804]*804er reason and necessity, why “uberrima com-itas” (if I may be allowed the phrase,) should be observed to avoid a conflict. It would exhibit a humiliating spectacle, to have a ship delivered by the state officer to Ward yesterday, restored to Taylor by the court of admiralty to-day — to be re-taken by process from the state court to-morrow, aud so on alternately.
[See Taylor v. Caryl, 20 How. (G1 U. S.) 5S3; Id., 24 Pa. St. 201.]
The fact that the title of one party was acquired under the judgment and process of the court of admiralty, and that of the other under the state court, furnishes no reason why either court should consider itself bound to warrant or sustain the title emanating from it. It is to be presumed that justice will be administered according to Taw, in either court, and Mr. Taylor's title, and the well known principles of maritime law on which it is founded, will be sustained in the state court, as well as here.'
But it is denied that this is a case of concurrent jurisdiction, because of the different form and course of proceeding in a court of admiralty. This proceeding it is said is in rem, that all the world is .a party, while the action of replevin is a mere personal action of trespass; that in the one case, the thing, passes into possession of the court, in the other, the delivery is made by the officer without any order or judgment of the court.
These distinctions, though ingenious, do not constitute a difference or furnish an argument to justify the court of admiralty in disregarding the disposition made of this property by the law of Pennsylvania, whether it be temporary or final. By that law Ward has a good title to the possession of this property as against Taylor, till the court by whose process it was delivered to him, \shall award a return of it.
• And why is not the process of .replevin as much a proceeding in rem as the petitory or possessory action in the admiralty? The forms of process and course of proceeding will differ of course, one being modeled on the common law and the other on the civil law. The caption of the suit in one case is against the thing, with a citation to the parties claiming and in possession, whoever they may be found to be. In the other, the claimants are first ascertained and made the jiarties at once. In either ease, the officer of the court takes the subject matter in contest, into his possession. In admiralty, the court order it to be delivered to .one of the parties during the contest, on his stipulating with sureties; in the state court, the officer delivers it to one of the parties according to fixed rules of law. In either case, the thing itself is disposed of by the legal process of the court, and the question of title is afterwards contested. In admiralty, where eases are more speedily decided, the property is often detained till a decision of the question of title, and is then delivered to the successful party.
It is true, that the court of admiralty, from the peculiarity of her process and modes of proceeding, is more competent to render speedy and exact justice to the parties, than the courts of common law, (more especially in disputes between part owners,) but it cannot, on that assumpTm, disregard their acts and process, or anticipate their decisions. The proceeding in the one court, is in fact just as much in rem as in the other. The barque has been seized by the officer in each court, and has been delivered to one of the claimants, during the pendency of the litigation. And neither court has a right to disregard the process or judgment of the other.
The delivery by the sheriff in one case, is as conclusive between the parties, as the interlocutory order or judgment of the admiralty in the other.
The case of Certain Logs of Mahogany, already noticed, has been relied on as authority for supporting the judgment of the district court on this point, and if this were a proceeding against the vessel to enforce a bottomry bond or mariner’s wages, which follow the vessel, whether the party in possession has taken it by writ of replevin or in any other way, that case would be an authority to which we would willingly assent. But the point now before us did not arise in that case, nor can we receive the arguments used by the learned judge, which were conclusive in the case before him. as having any bearing whatever on the point now under consideration.
Judgment with costs accordingly.