owmvs v. onro cam. 1:. co. 13
ure on that mortgage, and the trustee refused to take any step or to
exercise any of the discretionary powers for that purpose. It is now
the settled law that whenever a trustee neglects or refuses to insti-
tute proceedings for the protection of bondholders secured by a mort-
gage, that the bondholders themselves may begin proceedings for that
purpose. This was done by the present complainants on behalf of
themselves and other bondholders, and the case being first fully ma-
tured in this court, by reason of that fact, the court in this circuit
first took cognizance of tl1e subject-matter in controversy, acquiring
full and complete jurisdiction over it, and as an incident to that ju-
risdiction has possession and control over any property, which may be
the subject-matter of the dispute, to the end of the litigation. Union
Trust Co. v. Roc/{ford, etc., R. C0. 6 Biss. 197; Riggs v. Johnson O0. 6
Wall. 187. `
It is claimed that Martin, having been appointed receiver on the
thirty-nrst day of October, under the bill filed by the Central Trust
Company in the Sixth circuit, and that he having seized and taken act-
ual possession and control of the defendant company’s property prior
to the appointment of Sharp under the order of this court, that the
seizure by him of the road gave to that court prior jurisdiction over
it in this proceeding. It will be observed that this proceeding in the
Sixth circuit was instituted eight days after the proceedings in this
court, and the service of process in this court was five days before serv-
ice in that court. In this position we cannot concur. The jurisdiction
of this court attached as soon as the bill was filed and process served,
and the fact that an actual seizure was made under the bill subsequently
filed, and after process was served under a bill previously filed in this
circuit, will not deprive this court of its jurisdiction. We think the
rule of law laid down by the learned judge in the case just cited from 6
Biss. is correct, and that "the proper application of this rule does not
require that the court which Hrst takes jurisdiction of the case shall
also first take, by its oflicers, possession of the thing in controversy, if
tangible and susceptible of seizure, for such a rule would only lead to
unseemly haste on the part of its officer to get the manual posses-
sion of the property. While the court first appealed to was investigating
the rights of the respective parties, another court, acting with more
haste, might by a seizure of the property make the hrst suit wholly
unavailing. To avoid such a result, the broad rule is laid down that
the court first invoked will not be interfered with by another court
‘ while the jurisdiction is retained." The jurisdiction thus acquired is
exclusive, and it is- the duty of all other tribunals, both by law and
comity, not to interfere with it. Chief Justice Miuasnanr., in the case
of Smith v. Mclver, 9 Wheat. 532, says "that in all cases of concur-
rent jurisdiction the court which hrst has possession of the subject
must decide it." This rule the supreme court of the United States
has approved in several subsequent cases, notably, Buck v. Oolbath,
3 Wall. 341; Riggs v. Johnson Co. 6 Wall. 166: Itmust follow. from