Page:Federal Reporter, 1st Series, Volume 7.djvu/560

 -.6^8 .;, FEDERAL REPpBIEE. �eightji of Febraary, :1879i wbrea ,they were levied upon by lie ma,rahal of this court in thfl syit -pf Bamey & Smith Manii- factaring Cpmpa^y against B^rthourd. This may hetrile^is to,the manual. possession of thes0cajiSb.;but the legal and oon- s.truptivei possession, wag. in; the receivei? from May 12, 18 W, else Berthourd waSftriflingwith .the Fleming cireuit court and •ita^ QfSicer,.and I lifill notjpre#uSij%itliat to have been,the fact. The suit ;in this (jourt was -jjrought onthe twenty-eigbtb of February,.1^7&,-,agaiustBe^th«urd clones, and proaeeute|d to judgment, and a ■wfitissuedfrofla.this court directing the mar? shal ta deM^®^,'*^®''»^'^:^ to'the jBi^rney &iSmith Mftinufacturing Company. That-ocimpanyfl^inied the possession of th« cars undet its contract:qfur;fc, who immediately sued him in that court and replevied.them, Afterwards, the Barney & Spaith Manufacturing Gompany -were iSlibstituted as defendaut in- stead of the maxshal} and upon .petition filed removed the case to this court. .This suit -was approved by an ordei;;of the Fleming circuit .court, and thus itris properly in this coprt...,j .,,, ; . ; . ; ... ..^ ,, ■ : ■ . ^'V . �.. rt ,is insisted that whatevev .right is not in defendant; to thesp cars remains tn Berthourd; and as he isin no wayliable to the at|aching creditors, the plaintiff eau, have no right to recover. If this be.tru,e, pla<intifi certainly bas no cause of action, as Berthourd is inct a party to the suit in the state court. .1 think, however, the .evidence shows'that these cars belouLg, as again^t Berthourd, .either to Quintard or the rail- road companyj and in this case it does not matter which. This is shown by affirmative and negative evidence. The negative evidence is the fact that Berthoud has.never set-up any daim to these cars in the pending suits in the state court, although those suits have been pending since March, 1877. His own interest, as well as bis friendliness to the defendant, the Barney & Smith Manufacturing Company, would have impelled him to set up his claim had it been a valid one, The affirmative evidence is the fact that Ber- thourd, as the agent of Quintard, rendered, in February, 1878, ��� �