Page:Federal Reporter, 1st Series, Volume 9.djvu/201

186 FEDERAL REPORTER. �Pemihigton -^.France, 2 Houston, 417, and this recognizes and affirms the ancient practice. �Without examining at any greater length into the matter, we may say that all doubt is removed by the certificate presented by the de- fendant's attorney for the inspection of the court, and signed by all the state judges, declaring what is the practice in the state courts in this regard. This, although it bas not the weight of a decision given by these eminent judges while on the bench, in a case duly argued by counsel, and maturely weighed by them in their of&cial capacities, yet is of value as settling the question of practice upon this point in the courts of the state. �Upon an examination of the Delaware statute itself, and giving due ■weight to the declaration of the judges of the superior court as to the fact as to what. the practice is in the superior courts of,the state on this point, -we have no hesitation in directing that the judgment be set aside, and the defendant let in to try his case upon its merits, upon his pleading an issuable plea, and paying the costs of the suit up to date. ���Black, Trustee, v. Scott and others.* �(Circuit Vourt, 8. D. OMo, E. D. 1881.) �1. JuKisDiCTiOH OF Unitbd States Oottkts — Suns TO EuFoiiCE Liens — NoN- Kebident Defendants— Section 738, Rev. St.— Conflict of Juhisdictions �— ASSIGNMENTS FOR BeNBFIT OF OeEDITOIIS — PhOBATE COTJKTS. �Bill in equity in United States circuit court by complainants, citizcns of states other than Ohio, to foreclose a mortgage upon real estate in Ohio. Before the suit was begun the mortgagor Imd made an assignmcnt for the beneflt of his creditors of all his property, real and Personal. The bill made the mortgagor, his assignee, (who was a resident of Ohio,) and others, defendants, The mort- gagor and assignee iiled pleas to the iurisdiction — the former allcging that he was not a citizen of Ohio, and l)y reason thereof the court had no Jurisdiction : and the latter setting up that he had accepted the trust as assignee, and quali- fied ; that the probate court of Athens county, having exclusive jurisdiction of the trust, had, before the bringing of the suit, ordered liim to sell the real estate of the assigner, inoluding that described in the bill ; that said order is still in full force, and that he is engaged in executing it ; that the real estate is of greater value than complainant's claim, and that the property is insufH- cient to pay all the indebtednesa of said mortgagor ; that said real estate was, at the commencement of this suit, in the custody of the law, and subject to the order of said probate court ; wherefore the court has no jurisdiction thereof, or of this suit. On demurrer to pleas, held : �•Reported by J. C. Harper, Esq., of ths Cincianati bar. ��� �