Page:Federal Reporter, 1st Series, Volume 9.djvu/157

 142. FBDERAIi BEFOBXES. �110; Neuiconib \. Boston, etc., B. 116 Mass. 230; Merckants' Bank V. U.R. Go. 69 N.Y. 373; 1 Am, Lead. Cas. (4thEd.) 323; 1 Smith, Lead. Cas. (7th Ed.) 816; Id. 1147, 1227; Hutch. Car. §§ 720, 737; 2 Daniell, Neg. Inst. c. 64. Demurrer overruled. �Note. The writer of this opinion cannot, resist an impulse of affectionate remembrance, and begs the privilege of adding here a word of admiration for the thorougb, careful, and able work of his deceased friend, Robert Hutchinson, the author of the treatise on "Carriers," above referred to, who died in the great plague of yellow fever that desolated Memphis in 1878. Often — very often— while he was engaged in the preparation of that book, have we labored tcgether in the late hours of the night in the library where the writer at this moment works alone beside the silent but enduring monument his dead friend has left. ���AliABAMA GOLD LiFB InS. Co. ». GiBABDT. �[Circuit Court, D. Louisiana. 1881.) �1. Btaib ComiT— Process. ' �A state court cannot reach f unds which have been made by an ofScer of a federal court on execution. �Eule on marshal to pay over moneys collected on execution. �Pardbe, 0. J. In this case the marshal, on execution, has made the Bum of' $1,880.16 for the plaintiffs. To a rule directing him to pay over or show cause, he answers that the funds in his hands have been attached under process from the civil district coiirt of the parish of Orleans, in a suit brought by W. H. Finnegan v. The Alabama Gold lAfe Ins. Co. The answer is not sufficient. The funds are in the custody of this court, and are not subject to the control or process of the state court. See case of EUis v. Wooldridge, 2 Wood, 667. �The only doubt I have about making the rule absolute is whether, as a matter of comity, this court should not wait until the attach- naent is discharged in the state court, as it undoubtedly will be on suggestion of the facts, before disposing of the proceeds in the hands of the marshal. �But considering the absolute illegality of the pretended seizure, and that a dolay may be taken as waiving the undoubted jurisdiction of this court in the promises, and repudiating any desire or intention of forestalling the action of the state court or of prejudicing its juris- diction, I deem it my duty to make the' rule absolute; and it is so ordered. ��� �