By the Oourt
Atwateb, J.The Plaintiff Lewis brought an action of replevin, alleging title and right of possession in the Plaintiff', and a wrongful taking and detention by the Defendant. The answer denies the - allegation as to title and right of possession, and then alleges, that Defendant, being United States Marshal, and having in his hands a writ of attachment from the United States District Court against one Edmund W. Lewis, levied upon the property as the property of said Edmund W., and demands judgment for a return or the value of the property. There was no reply. .
On these pleadings, upon Defendant’s motion, the Court ordered judgment for Defendant, for a return of property, or the value thereof, which judgment was entered. Prom this judgment Plaintiff appeals. These facts we understand to be admitted by- the parties, as no paper book, or certified record of the case has been furnished to the Court.
The first proposition of the Appellant, is to show that Defendant’s right to judgment for a return or the value does not follow of course upon his right to judgment. That the claim for a return of the property named in see. 10, Comp. Stats., 566, is not a bare demand in the answer, but it must be a demand based upon facts showing the right of possession in Defendants, and before a return can be ordered, the Court must adjudge such facts to be sufficient to entitle Defendant in law to the possession.
*116This position we think correct. Under the plea oí non cepit in the former action of replevin, where the title or right of the Plaintiff was not denied, the Defendant was not entitled to a’ return of the property. That plea in substance disavowed all connection with the property, and made no claim to it, and if the Defendant succeeded upon it, he was entitled to a judgment of costs only. The name and form of the action only, under the Code, is changed, and where the Defendant, denying the wrongful taking or detention, establishes substantially the same facts as would entitle him to a judgment for costs under the plea of non cepit, under the former system, the judgment should be the same under the Code. And it is undoubtedly true, that all pleas in j ustification of the alleged wrongful taking or detention, must show either a better, or at least as good a right to the possession in the Defendant, as in the Plaintiff. And it must therefore follow that the Defendant in this case, cannot have judgment for the return or value of the property, unless the new matter in the answer shows that when the suit was commenced, the Defendant was just as much, or better entitled to the possession than the Plaintiff. The gist of the action is .to determine whi'cli of the parties is entitled to the immediate possession of the property.
This leads us to inquire whether the new matter set up in the answer, (and which stands admitted for want of a reply,) does entitle the Defendant to a return of this property. Upon this question it is claimed by Respondent, that the decision of the United States Supreme Court, in the case of Freeman vs. Howe, 24 How., 450, is. conclusive. If the question of the validity and conclusiveness of the new matter here set up as a defence, rested or was to be determined upon general legal principles, and was to be regarded as an open question, I think there are but few jurists who would not unhesitatingly declare, that the facts stated, if admitted, constituted no de-fence. The proposition that an officer of any court, with a writ against A., may seize the property of B., and by simply alleging that he seized it under such writ, as the property of A., may claim immunity against such illegal seizure, at least in any other court than that which issued the writ, strikes the mind at first blush, as being not only a novel legal principle, *117but one conflicting with all our preconceived ideas of right and justice, as well as of the protection to which the citizen is entitled in his rights of person and property. And so we find, that long since that eminent jurist, Chancellor Kent, laid it down as an elementary and fundamental principle, that C( if a Marshal of the United States, under an execution in favor of the United States against A., should seize the person or property of 13., then the State Courts have jurisdiction to protect the person and the property so illegally invaded.” Rent’s Com., vol 1, 410. And the doctrine that this new matter must constitute a complete bar to the action, would seem none the more tenable, whether it be based upon the ground of want of j urisdiction in the State Court to entertain the action, or that, having jurisdiction, the plea constitutes, if not denied, a complete and perfect defence to the action.
■ Nevertheless, we think the case of Freeman vs. Howe, clearly decisive of this question. That case is in every respect entirely analagous to this, and the plea there was in substance exactly the same as is here interposed, and the judgment of the State Court overruling the plea, was in that case held erroneous and reversed. And the case holds, that no novel doctrine was established by the decision in that case, nor was there any departure therein from other rulings of that Court in like cases. However this may in fact be, we cannot think that jurists and courts have generally understood the decisions of that tribunal to have gone to the same extent at least, as in Freeman vs. Ilowe. The remarks of Chancellor Kent, above quoted, and the decision of the Supreme Court of Massachusetts, in the recent case of Freeman vs. Rowe, and other cases that might be named, confirm this view. This, however, is immaterial to the proper disposition of this case. Whatever doubts may have hitherto been entertained upon the subject, none can now exist, but that the Supreme Court has distinctly decided, in that case, that such a plea as is here interposed, is a bar, or complete defence to the action in the State Court, and that the Plaintiff must resort to the United States Court, to contest his right ot property. If we correctly understand the decision, it is based upon the sole ground that “ one Court cannot take the property from the custody of the *118otlior by replevin, or any other process ; for this would produce a conflict extremely embarrassing to the administration of justice.” 'Whether this evil may be greater than that of always compelling a party in these cases, to resort to the Court out of which the process issued, upon which his property has been seized, to assert his legal rights, may well be questioned. It is, however, unnecessary and useless to discuss that question here. The Supreme Court of the United States, having tiie final disposition of this question and this case, it only remains for this Court to apply the law, as stated and held by that Court, to the case at bar.
It is only necessary, therefore, further to consider whether there was any error committed by the Court below, in rendering judgment for the return of the property to the Defendant. The case of Freeman vs. Howe, does not directly decide this question, as nothing is said in that case as to the disposition of the property, consequent upon a reVersal of the judgment of the State Court, upon this plea. The proper determination of this question, in my judgment, depends upon what ground the United States Supreme Court reversed the decision of the State Court. It is contended by Appellant that it was upon the ground that the State Court had no jurisdiction of the case whatever, that the replevin process was entirely void, and the Plaintiff took nothing by virtue of it, and that the United States Marshal, in delivering or permitting the Sheriff to take this property under that process, did so voluntarily, and cannot claim the aid of this Court in regaining possession of the same. If the premises of Appellant are correct, it would seem that his conclusions must legitimately follow. I cannot see how it can consistently be. claimed, that the State Court has no jurisdiction in the matter, either of the person or property ; that the process by which the latter was seized was a nullity, and by virtue of which the Plaintiff acquired, and could acquire no rights whatever, and yet, that such Court has the right to renderfinal judgment, disposing of the property to all intents and purposes, as fully and completely as it could do, in a case where it has full power to adjudicate upon the same. I understand that by the lack of jurisdiction is meant the want of power in a court *119to determine upon tbe respective rig-bts of the parties, in regard to the subject matter in dispute. And yet, when the main question at issue in the case is, as to who is entitled to the immediate possesion of the property, it is claimed that the Court may have jurisdiction to decide that issue alone— that is, to decide upon the Defendant’s rights, while it cannot examine the right of the Plaintiff. It would seem that the mere statement of such a proposition must show its absurdity, and that it can be sustained neither by reason or authority.
It cannot be denied but that there are expressions and statements in the opinion in Freeman vs. Howe, which would lead to the conclusion that the Court in that case reversed the decision of the State Court, upon the ground that that Court had not jurisdiction of the case; but upon a careful examination of the opinion, we cannot think that the Court intended to base its decision upon that ground, but rather upon that of a’conflict of jurisdiction or authority between the Courts. And such inust have been the understanding of the reporter of the case, as appears from the syllabus of the points decided. In referring to the case of Taylor et al. vs. Carryl, 20 How., 583, it is stated that a majority of the Court were of opinion that, according to the course of decision in the case of conflicting authorities under a State and Federal process, and in order to avoid unseemly collision between them, the question as to which authority should for the time prevail, did not depend upon the rights of the respective ]' arties to the property seized, whether the one was paramount to the other, but upon the question which jurisdiction had first attached by the seizure and custody of the property under its process. And that this principle is equally applicable to the case of property attached under mesne process, for .the purpose of awaiting final judgment, as in the case of property seized in admiralty, and tlie proceedings in rem. Here is not only no' denial of the inherent j urisdiction of the State Court to determine the action, but a recognition of it. But it is also held, that as another Court had jurisdiction of the subject matter of the action, and which had first attached, that Court should determine the issues between the parties. And, in*120deed, the State Court in fact, has jurisdiction of both the subject matter and person of the Defendant, both being within' the territorial limits over which the jurisdiction of the Court by law extends, and neither being exempt therefrom, by any special provision of law or otherwise.
The plea is neither in terms or substance one to the jurisdiction of the Court, but going directly to the merits of the action, as alleging facts for the consideration of the Court, and upon which it is to determine who is entitled to the immediate possession of the property, which, as above stated, is the gist oí the action. In other words, it alleges facts which, by an arbitrary rule of law, arising out of the peculiar relations which the Federal and State Courts.sustain to each other under our system of government, constitute a conclusive de-fence to the action. By the operation of that rule of law, it shows a better right in the Marshal, as - the representative of the United States Court, to the possession of the property for the time being than in the Plaintiff, who must submit the custody of the property to that Court, until his right can be determined therein. "We think, therefore, that there was no error in the Court below, in rendering judgment for a return of the property or the value thereof.
There is another consideration which has a bearing upon this question. If it be admitted that the Marshal has the right of possession, under his seizure, then he has the right to resist the seizure by the sheriff, and may forcibly repossess himself of tire property at any time. This Court now has possession of the property, and the control thereof, and it would be an anomaly in the law, to concede that another Court has the right of, and is entitled to the possession, and yet refuse to restore the possession. The effect of this course would be practically to deny the right which is conceded in theory, and in nowise tend to diminish that embarrassing conflict in the administration of justice, which it seems to have been the main purpose of the decision to avoid. Conceding, therefore, the correctness, or at least the binding force, of the decision in Freeman vs. Howe, we think the judgment in such a case must necessarily be for the return of the property to the Defendant, and have no doubt but that the United States *121Supreme Court will so determine, whenever the question shall be directly presented to that tribunal for adjudication. In Booth's case, 21 How., 506, will be found a further discussion of the principles herein referred to, and from the reasoning of the Court in that case, as well as those above cited, but little if any doubt can be entertained of the proper .judgment to be rendered.
The judgment below must be affirmed.