M'KIM v. VOORHIES

M'KIM v. VOORHIES. fresent....All the Judges. A staieCouct dtotuT t¿Tn-' join a judgj?.e“C of„ the U.S, THIS was a case certified from the Circuit Court for the district of Kentucky, in which the opinions of the Judges'were opposed. Ac the July adjourned term of the Court below, in the year 1808, MfKvm, a citizen oí Maryland, recover-0f ed a judgment in ejectment against Voorhies, a citizen of Kentucky, for the undivided third part of a watermill, with its appurtenances, in the county of Franklin, in the state of Kentucky. At the same time Voorhies filed his bill in Chen eery in the Court below against M‘Kim, and John Instone, a citizen of Kentucky, and Hayden Edw;ards, a citizen of South Carolina, claiming an equitable lien on the said third part of the mill, &c. on account of contracts, &c. between Bennett Pemberton (under whom Voorhies held the premises) and Hayden Edwards and John Instone; Pemberton having sold the said third part of the mill, &c. to Edward's; who sold to Instone, who sold and conveyed to M‘Kim. Instone was the only Defendant served with process the Court below, M‘Kim and Instone answei’ed tije bill, and brought on a motion to dissolve the injunction on the merits, which was overruled by the Court below. At the term next.preceding November term, 1810, ([Edwards not having answered) the Court below.dismissed the suit as to him; and as to Instone, for want of, jurisdiction ; after which Voorhies had leave to discontinue as to on payment of costs. The suit was accordingly discontinued. Previous to this disposition of the cause, Voorhies filed his bill in Chancery against the same parties in the State Circuit Court for the county of Franklin, in the state of Kentucky, in which he set -up the same equity as he charged in his bill in the Court below. . On this bill he, by an order fronuone of'the Circuit Judges of the State, obtained an injunction, staying all further proceedings on the said judgment in ejectment, until the matters of the said bill were heard in equity. This injunction was dissolved at the July term of the FrankM Circuit Court; shortly after which the said injunction was reinstated by the order of the honorable Caleb yy allace, one of the judges of the Court of Appeals of the state of Kentucky, issued under the act of the general assembly of that statey passed at their December session in the year 1807. The injunction issued in the cause, by the State Court, and the order reinstating that injunction, were duly notified to the’ clerk of the Qdiirt below, and offi.cial copiers of each lodged in his office. On the third day of the session of the Court below; at its Novem. her term, 1810, M‘Kim, by his attorney, applied to the clerk of the Court below for a writ of habere fadas possessionem on the said judgment in ejectment, but the clerk refused to issue the writ in consequence of the injunction and orders aforesaid; whereupon M‘Kim, by his counsel, moved the Court below to instruct and order their clerk to issue a writ of habere facias possessionem,- on the judgment of that Court, the injunction and orders aforesaid notwithstanding. • Upon this motion of the.plaintiff, the opinions of the Judges were opposed. The case was submitted by Harper for the Plaintiff, without argument.. There was no appearance for the Defendant. March 14th.... All the Judges being present, [MAJORITY — Todd, J.] Todd, J. stated the opinion of the Court to be; that the State Court liad no jurisdiction to enjoin a judgment of the Circuit Court pf the United ' States; and that the Court below should be ordered to issue, the writ of habere facias.