Page:Federal Reporter, 1st Series, Volume 7.djvu/902

 890 FBDEEAL REPORTER. �the merits, the defendants had submitted to this court that the property in question was in the eustody of the state court, iftnd that. the controversy over the ownership of it, which was initiated by the levy of the writ of attachment upon it as the property of Lee, eould and should properly be remitted to that court for determination, this court, in the light of Free-, man v. Howe, and other cases in the supreme court of the United States involving the same principle, would undoubt- edly have dismissed the cause and returned the property to the officers of the state court. �The defendants might with propriety have said to this court; "This property is alleged to be the property of Eob- ert I. Lee. It is seized as such ; it is in the possession of the sta^e court as such. The law of the state of Illinois (chapter 11, § 29, Eev. St. of Illinois) expressly provides that any third person claiming the property attached, as this property has been, ean interplead and protect his awa title; and therefore this court ought not to take from the state court the controTersy of whieh it had properly aCquired Jurisdiction." But instead of doing this the de- fendants plead to the merits, and try the case upon the merits ; challenge the validity of plaintiff 's title, charge that plaintiff 's title is fraudulent as against the attaching cred- iter of Lee, and only after their defeat by the jury upon that issue do they raise the question of jurisdiction. �In the case of Freeman v. Howe the marshal of the United States had levied a writ of attachment upon certain cars as the property of the railroad company, the defendant in the attachment. A mortgagee of the railroad company brought replevin in the state court, and the supreme court of the United States in that case held that the possession of the marshal could not be interfered with by the process of the state court. �This case is not strictly analogous in its facts to that. Here the attachment was by the officers of the state court, and the replevin was from the federal court. In Freeman v. Howe the controversy in regard to the title to this property could not have been removed from the federal into the state ��� �