property would give rise to actual physical friction. The rule has become well settled, therefore, that Section 265 does not preclude the use of the injunction by a federal court to restrain state proceedings seeking to interfere with property in the custody of the court. * * * And where a state court first acquires control of the res, the federal courts are disabled from exercising any power over it, by injunction or otherwise. * * * '
Subsequently, in a similar situation in Mandeville v. Canterbury, 318 U.S. 47, at page 48, 63 S. Ct. 472, at page 473, 87 L. Ed. 605, referring to Section 265 above referred to, the court again stated,
'To this sweeping command there is a long recognized exception that if two suits pending, one in a state and the other in a federal court, are in rem or quasi in rem, so that the court or its officer must have possession or control of the property which is the subject matter of the suits in order to proceed with the cause and to grant the relief sought, the court first acquiring jurisdiction or assuming control of such property is entitled to maintain and exercise its jurisdiction to the exclusion of the other.
'In such cases this Court has uniformly held that a federal court may protect its jurisdiction thus acquired by restraining the parties from prosecuting a like suit in a state court notwithstanding the prohibition of § 265. This exception to the prohibition has been regarded as one of necessity to prevent unseemly conflicts between the federal and state courts and to prevent the impasse which would arise if the federal court were unable to maintain its possession and control of the property, which are indispensable to the exercise of the jurisdiction it has assumed. But where the judgment sought is strictly in personam for the recovery of money or for an injunction compelling or restraining action by the defendant, both a state court and a federal court having concurrent jurisdiction may proceed with the litigation at least until judgment is obtained in one court, which may be set up as res judicata in the other. * * * '
Under the circumstances of this case and applying the applicable principles so clearly enunciated by the Supreme Court, it seems to me that this Court's first concern is to preserve as far as possible the delicate balance of authority between the state and federal judiciary. This motivating principle was well expressed by the Supreme Court in Covell v. Heyman, 111 U.S. 176, at page 182, 4 S. Ct. 355, at page 358, 28 L. Ed. 390, 'The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, by avoiding interference with the process of each other, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord; but between state courts and those of the United States, it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience. These courts do not belong to the same system, so far as their jurisdiction is concurrent; and although they coexist in the same space, they are independent, and have no common superior. They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues. * * * '
We are, therefore, not presently concerned with the question as to whether these slot machines, still in their original shipping crates, are per se gambling devices or otherwise violative of the Pennsylvania Criminal Code, or whether, at the time of their seizure, they were in interstate commerce and, if so, whether for any reason they were susceptible of seizure by state officers. These are matters that call for determination by the court having first secured jurisdiction of the res.
Motion of defendants to dismiss the complaint is granted.