Page:Federal Reporter, 1st Series, Volume 9.djvu/806

 DWIGHT V. CENTRAL VKBMONT E. CO. 791 �not a mere matter of abatement ; it goes to the right, and none the less because the right of the defendant may rest upon an order of the court. The order of court, whatever itB eliect is, may be discharged before any decision is reached, and, if it should be, the rights of the parties otherwise would still remain to be determiued. If it should not be, but should remain in force, whatever right it should give to any party, or whatever immunity from interference it should afford, could be maintained and upheld. If that should be the defendant's title, and it should be found to be good, it would prevail. There would be no conflict between courts, for all rights acquired through the state court, and all protection f urnished by the authority of that court, would be respected. There is no sound reason apparent why these rights may not stand for trial according to the usual course, the same as rights acquired by contract, or in any other mode. On prin- ciple this seems to be the proper course. : And there is not any case shown by counsel, or which bas been seen by the court, among the many wherein rights acquired under legal proceedings have corne up for adjudication, in which the decision has been made otherwise than in chief. �In Hagan v. Lucas, 10 Pet. 400, where the title of a sheriff to propei-ty seized by him and receiptedwas upheld against a marshal of the United States, who seized it subsequently, the trial waa upon the merits of these respective rights. 80 in Brown v. Clarke, 4 How. 4, and in Pulliam v. Osbome, 17 How. 471. And in Taylor v. Carryl, 20 How, 583, where the question was as to the right of a state seizure, as against proceedings in admiralty, the trial was not upon any plea denying the right to interfere, but was upon the title acquired through the proceedings. �In Freeman v. Howe, 24 How. 450, the right of a mortgagee to per- Bonal property taken by the marshal, on proeess against the mort- gagor, was tried on replevin in chief. So similar rights were tried in an action of trespass in Btick v. Colbath, 3 Wall. 334. And in Wisivell V. Sampson, 14 How. 52, the right acquired by the levy of a marshal upon property in possession of a receiver was tried upon ejectment on the merits. �In Pond V. Vermont Valley R. Co. 12 Blatchf. 292, the question of this same receivership was raised, but not until after the decision reported, and upon the hearing before Circuit Judge Johnson on answers and proofs, and it was disposed of as not affecting the rights of the parties to the property invoived, nor the jurisdiction of the court over the case. ��� �