Page:Federal Reporter, 1st Series, Volume 7.djvu/901

 GILMAN V. PEKKINS. 889 �thereof, duly executed by levying upon and taking into his possession the herse in question; and that the defendant Perkins held the horse in question at the time when, etc., by virtue of the said attachaient aud levy. �It was further averred that the horse, at the time when the ^ame was levied upon by virtue of the writ of attaohment by defendant as aforesaid, was, and is, the property of the said Eobert I. Lee, and not the property of the plaintiff; and that the said horse was properly subject to be levied upon and taken by virtue of the said writ of attaohment as aforesaid. Issue was joined upon these pleas, and a trial had before a jury, in which the main question made upon the proof was as to the title of said Eobert I, Lee to the horse, — the defend- ants contending that plaintifE's alleged title was fraudulent as against the creditors of Lee, and that the plaintiff could not, under the law and facts in ihe case, hold such horse as against the said Topeka National Bank, a creditor of Lee. �The jury, bytheir verdict, found the issues for the plaintiff, and defendants now move — First, to dismiss the cause for want of jurisdiction after verdict and before judgment ; second, for a new trial. �The motion to dismiss for want of jurisdiction is based upon the ground that the property in question, at the time it was taken by the marshal of this court under its replevin writ, was in the custody of the sherifE of Eock Island county, under the writ of attachment issued out of the circuit court of that county against the property of Eobert I. Lee, and that it was theref ore in the custody of the law of said state ' court, and could not be taken from said court by the process of any other court of concurrent jurisdiction. In support of this position the defendant relies mainly upon the decision of the supreme court of the United States in Freeman v. Howe, 24 How. 450. �The only question in my mind is whether the defendants, after having tried this case upon its merits, shall now, after a verdict and praetically on a motion for a new trial, be heard to allege want of jurisdiction in this court. �If, in the first instance, or at any time before a trial upon ��� �