Page:Federal Reporter, 1st Series, Volume 7.djvu/903

 OILMAN V. FEBEINS. a91 �«ourt, but in this case it might have been removed from the fitate to the federal court. If the plaintiff in this replevin suit had interpleaded under the etatute pt Illinois in the original attachment suit, he undoubtedly could, under the act of 1875 in regard to the removal of cases from the state to iihe federal courts, have removed the controversy between himself and the sheriff, as to the sheriff's right to attach this property as the property of Lee, from the state into the fed- eral court; and ought not this court to presume that the defendants acted in this case upon the assumption that the «ontroversy was one which might, in some form, be properly taken from the state into the federal court, and therefore waived all question as to the manner in which it was so brought before the federal court, and tried it bere upon its merits, in the first instance, on the ground that he knew he might ultimately be compelled to do so ? �It will be noticed that the extreme doctrine of Freeman v. Howe is somewbat modified in its practical application by the subsequent case of Bvick v. Colbath, 3 Wall. 334; and it is very clear, in the light of the two cases, that the supreme «ourt does not now hold to the extreme doctrine that the controversy in regard to the ownership of this property, having originated in the state court, must necessarily, under all combination of fact, be held and determined there, and there alone. �In this case the court could have taken jurisdiction of the parties, as the citizenship was such as to give it such juris- diction of them, and it would only refrain from taking juris- diction of the subject-matter by reason of comity towards another court of concurrent jurisdiction. The parties to assert the right of the state court to keep possession of the property were either the of&cers representing that court or the attaching crediter who had selected that forum. But neither of those parties disputed the jurisdiction of this court, on the ground that it belonged for any reason to the state court, until after the trial on the merits, and then, I think, it was too late to raise the point. It seems to me that these defendants may be justly charged with having been willing ��� �