857); Wilmer v. Atlanta & R. A. L. R. Co. 2 | tain provisions regulating trials of the right
Woods, 427.
Mr. Justice Matthews delivered the opinion of the court:
of property in such cases, it might be most con-
venient to make them a part of the practice of
the court as contemplated by sections 914, 915,
916, of the Revised Statutes."
The grounds on which the circuit court pro-
ceeded in denying the relief prayed for by the
intervener, and which have been reiterated in
argument at the bar, are: (1) that no levy of the
writ of attachment was in fact made by the
sheriff, because he did not and could not ac-
quire actual possession of the property sought
to be seized then in the possession of the mar-
shal, it being essential, under the laws of
Louisiana, to the validity of the levy of such a
writ, that the officer should thereby acquire act-
ual and exclusive possession of the property to
be attached; and (2) that no levy by the sheriff
under his writ of attachment was effected by
the notice served upon the marshal as gar-
nishee, because the marshal, as an officer of the
Circuit Court of the United States, was not
amenable to and could not be affected by proc-ultimate right to be asserted otherwise and else-
ess from a state court.
In the subsequent case of Covell v. Heyman,
111 U. S. 176 [28-390], it was decided that the
principle that whenever property has been
seized by an officer of the court, by virtue of
its process, the property is to be considered as
in the custody of the court and under its con-
trol for the time being, applies both to a taking
by a writ of attachment under a mesne process
and to a taking under a writ of execution. It
was there also decided that "
property thus
levied on by attachment or taken in execution
is brought by the writ within the scope of the [145]
jurisdiction of the court whose process it is, and
as long as it remains in the possession of the
officer it is in the custody of the law. It is the
bare fact of that possession under claim and
color of that authority, without respect to the
where, as already sufficiently explained, that
furnishes to the officer complete immunity from
the process of every other jurisdiction that at-
tempts to dispossess him." So in Lammon v.
Feusier, 111 U. S. 17, 19 [29:337], it was said:
"When a marshal upon a writ of attachment
on mesne process takes property of a person not
named in the writ, the property is in his official
custody and under the control of the court,
whose officer he is, and whose writ he is exe-
cuting; and, according to the decisions of this
court, the rightful owner cannot maintain an
action of replevin against him, nor recover the
property specifically in any way except in the
court from which the writ issued."
that he must depend exclusively on the circuit
court for such relief as he can there obtain, for
it is quite clear that the civil district court ac-
quired no jurisdiction over the property under
the writ of attachment held by the sheriff, nor
any jurisdiction over the person of the marshal
as garnishee, by virtue of the notice served upon
him to answer interrogatories as such. The
sheriff acquired no such possession of the prop-
erty as to bring it within the custody of the
state court, and the marshal was not amenable
to the state court as its custodian for property
which he claimed to hold officially under process
from the circuit court. The circuit court
It may be remarked in the outset, that if the intervener is entitled to any relief, the mode in which he has sought it is appropriate. On the motion to dismiss the writ of error, 113 U. S. 545 [28:1128], it was decided that his right to intervene by petition in this action was justified by the laws of Louisiana and by the decision of this court in Freeman v. Howe, 65 U. S. 24 How. 450 [16:749]. In Krippendorf v. Hyde, 110 U. S. 276, 283 [28:145, 148], it was said: "The grounds of this procedure are the duty of the court to prevent its process from being abused to the injury of third persons, and to protect its officers and its own custody of property in their possession so as to defend and It thus appears that the plaintiff in error came preserve its jurisdiction, for no one is allowed rightfully into the circuit court for whatever to question or disturb that possession except relief, either of a legal or equitable nature, that by leave of the court. So the equitable pow-court was competent to give. It is equally true ers of courts of law over their own process, to prevent abuses, oppression and injustice, are inherent and equally extensive and efficient, as is also their power to protect their own juris diction and officers in the possession of property that is in the custody of the law. Buck v. Colbath, 70 U. S. 3 Wall. 334 [18:257]; Hagan v. Lucas, 35 U. S. 10 Pet. 400 [9:470]. And when in the exercise of that power, it becomes necessary to forbid to strangers to the action the resort to the ordinary remedies of the law for the restoration of property in that situation, as happens when otherwise conflicts of jurisdiction must arise between courts of the United States and of the several States, the very circum-alone had jurisdiction to inquire into and deterstance appears which gives the party a title to an equitable remedy, because he is deprived of a plain and adequate remedy at law; and the question of citizenship, which might become material as an element of jurisdiction in a court of the United States when the proceeding is pending in it, is obviated by treating the intervention of the stranger to the action in his own interest as what Mr. Justice Story calls in Clarke v. Mathewson, 37 U. S. 12 Pet. 164, 172 [9:1041, 1044], a dependent bill." In that case it was further stated, speaking of contests between execution or attachment creditors in the federal courts on the one hand and strangers to the actions claiming title to the property on the other, that If the statutes of the State con
mine all questions relating to the property, and
the rights growing out of its custody held by
its own officer under color of its authority, sav
ing, of course, all rights of action against the
marshal personally for his wrongful and ille-
gal acts resulting in injury to third persons, ex-
cept such as involved the legal right to take the
property out of his possession.
As we have already seen, and as has been
many times declared by this court, the equita-
ble powers of the courts of the United States,
sitting as courts of law, over their own process,
to prevent abuse, oppression and injustice, are
inherent, and as extensive and efficient as may
be required by the necessity for their exercise,
and may be invoked by strangers to the litiga-
tion as incident to the jurisdiction already vested, istence of the proceeding by attachment (it is
without regard to the citizenship of the com- said in Drake on Attachments, § 272) could
plaining and intervening party. This is the hardly fail to give rise to fraudulent attempts
equity Invoked by the plaintiff in error, which to obtain preference where the property of a
was denied to him by the circuit court.
debtor is insufficient to satisfy all the attach-
ments issued against him. When it transpires
that there are circumstances justifying resort
to this remedy, the creditors of an individual
usually press forward eagerly in the race for
precedence, sometimes to the neglect of impor-
lant forms in their proccedings, and sometimes
without due regard to the rights of cthers. On
such occasions, too, notwithstanding the safe-
guards generally thrown around the use of this
process, and in violation of the sanctity of the
preliminary oath, it has been found that men
in collusion with the debtor, or counting on his
absence for impunity, have attempted wrong-
fully to defeat the claims of honest creditors by
obtaining priority of attachment on false de-
mands. There is, therefore, a necessity-ap-
parent to the most superficial observation-for
some means by which all such attempts to over-
reach and defraud, through the instrumentality
of legal process, may be summarily met and
defeated. Hence, provision has been made in
the statutes of some States for this exigency;
but where such is not the case, the courts have
broken the fetters of artificial forms and rules,
and attacked the evil with commendable spirit
and effect." Accordingly, it has been held in
New Hampshire, in the absence of a statute
authorizing an attaching creditor to impeach
the good faith of previous attachments, that on
a suggestion that a prior attachment was pros-
ecuted collusively between the plaintiff and de-
fendant for the purpose of defrauding creditors,
the court would permit a defense to be made
by the creditors in the name of the defendant,
(Buckman v. Buckman, 4 N. H. 319); and that
a subsequent attaching creditor might move to
dismiss a prior attachment on the ground that
there was no such person as the plaintiff there-
in. Kimball v. Wellington, 20 N. H. 439.
It is certainly true, and must be conceded, as
was adjudged in the court below, that Gumbel
acquired under his writ of attachment no strict
and technical legal standing as an attaching
creditor with an actual levy on his debtor's
property. There was no such actual seizure of
the property by the sheriff as was necessary to
constitute a levy at law. That seizure was pre-
vented, and the attempted levy thus defeated,
by the wrongful and illegal act of the marshal.
That officer had taken possession of the goods
on Sunday, under color of process issued the
same day, illegal by the laws of the State, and
as such discontinued and abandoned by the par-
ties. The possession thus acquired was made
use of for the benefit of the plaintiffs in attach- |
ment in the circuit court to defeat the execu-
tion of the process of the state court. It was
illegal in the marshal to have taken possession
of the goods under the writs in bis hands issued
on Sunday. It was his duty, when the sheriff
appeared with a lawful writ from the state
court, to surrender possession to him. His fail-
ure and refusal to do so was an actionable in- |
jury in which the present plaintiff in error, in
a suitable action at law, would have been en-
titled to recover, both against him and against
the attaching creditors for whom and at whose
request he was acting, the whole amount of
the loss, measured by what the plaintiff would
have made if he had secured the benefit of the
priority to which he would have been entitled
by a first levy of his attachment upon the prop-
erty. Instead of resorting to such an action,
the plaintiff in error appealed to the circuit
court for that equity which that court was en-
titled to administer by virtue of its duty to re-
dress injuries occasioned by the abuse of its
process on the part of its officers and suitors.
Why should that equity not be administered in In Virginia it has been held that a junior at-
this proceeding? The court had before it all taching creditor may come in and defend against
the parties, together with the property which a senior attachment by showing that the debt
was the subject of contention. The remedy for which it issued had been paid. McCluny
was plain, simple and effectual. It could award v. Jackson, 6 Gratt. 96. In Smith v. Gettinger,
to the intervener the position in respect to the 3 Ga. 140, it was decided upon general princi-
property and fund in court which, but for the ples, and without any aid from statutory pro-
injustice done him by the conduct of its officer visions, that a judgment in an attachment suit
and suitors in the abuse of its process, he would may be set aside in a court of law upon an is-
have acquired by a legal levy under his attach-sue, suggesting fraud and want of consideration
ment. Neither the marshal nor the creditors in it, tendered by a junior attaching creditor of
for whose benefit he acted ought to be allowed the common defendant. In Massachusetts pro-
to say that the intervener had been deprived of vision is made for appropriate relief in such
the substance of his rights, because by their il-cases by statute. Lodge v. Lodge, 5 Mason, 407;
legal and oppressive conduct he had been pre- Carter v. Gregory, 8 Pick. 165; Baird v. Will
vented from clothing it with technical forms. iams, 19 Pick. 381; Swift v. Crocker, 21 Pick.
It is a cardinal maxim that no one shall be al- 241.
lowed in a court of justice to take advantage
of his own wrong. No more flagrant instance
of a violation of that fundamental principle can
be conceived than that which is furnished by
the circumstances of the present case. The
very ground, and the sole ground, on which
relief is denied to the plaintiff in error is that
he has been prevented from asserting it legally
by the violence and wrong of those who now
deny it.
The case of Paradise v. Farmers & M. Bank,
5 La. Ann. 710, is an important adjudication,
having a direct bearing upon the point now
under consideration. A suit in chancery was
instituted in Memphis, Tennessee, by stock-
holders of a bank there against the bank and
its president and directors, in which a receiver
was appointed, an injunction obtained, and an
order for the delivery of the assets of the bank
to the receiver served on the president, who, [
This principle has especial application in during an unsuccessful attempt to enforce the
cases of proceedings by attachment. "The ex-process of the court, obtained possession of the
UNIVERSITY OF MICHIGAN - FLINT LIDADINE
ed. Upon general principles, therefore, and in
the exercise of its equitable power as a court of
law to prevent and redress injustice committed
upon a stranger by the abuse of its process on
the part of its officers and suitors, the circuit
court ought to have granted the relief to the
intervener which by its judgment it denied.
pursuance of the state law and share in the
distribution, although citizens of the same
State with the defendant, and although the
amounts due then were less than the jurisdic-
tional sum of $500.
assets and ran off with them to New Orleans, where they were attached in his hands by a creditor of the bank, and were claimed in the attachment suit by the receiver appointed by the court in Tennessee. The courts of Louisiana ordered the attached property to be released from the process and delivered to the receiver. The supreme court of the State, in its There is, however, another ground on which opinion, said: "The property which thus the same conclusion may safely rest. By secstands before us for adjudication thus appears tion 915 of the Revised Statutes, the circuit to have been brought within the jurisdiction court is authorized, in favor of suitors in that of this court in disobedieuce and in violation of court, to administer the attachment laws of the process of a court of a sister State, and in the State in which the court is held, and the exfraudulent violation of the rights of property ercise of this jurisdiction necessarily draws to of its real owners. It is proved that the itself everything properly incidental, even process of the court of chancery and a writ of though it may bring into the court for the injunction and an order directing the delivery adjudication of their rights parties not other of the assets of the bank forthwith to the re- wise subject to its jurisdiction. ceiver were duly served on Fowlkes (the presi- Krippendorf v. Hyde, 110 U. S. 276, 284 [28: dent), as well as the directors of the bank. 145, 148], where the Statute of Indiana reguThe grounds on which it is contended the judg- lating the process of attachment provided that, ment of the district court (ordering the property after the institution of the suit and before final to be delivered to the receiver) is to be reversed judgment, any creditor of the defendant might are; (1) that a receiver in chancery cannot main- tile and prove his claim with the right to par tain a suit without special authority from the ticipate in the distribution of the proceeds of court which appoints him; (2) that the posses the attached property, it was said that in an ac sion of the property attached not having been tion rightly instituted in the circuit court, in in the receiver, it is liable to the process of at- which the property of the common debtor was tachment at the instance of a bona fide cred-attached, all other creditors might appear in itor. We will not inquire into the technical question whether the authority of the chancellor is necessary to institute a suit at law; it is suflicient for us that property, in relation to which an order of a court of a sister State of competent jurisdiction has been issued, has In the case of Bates v. Days, 17 Fed. Rep. been fraudulently or forcibly withdrawn from 167, decided by the Circuit Court of the United its jurisdiction by a party to the suit, and that States for the Western District of Missouri, it the injunction issued in this case by the chan- was held, first by Judge Krekel, and affirmed cellor is still in force and binding upon the of- by the Circuit Judge, McCrary, on a motion for fending party. The order of the court of chan- a rebearing, that questions of priority between cery is a sufficient authority for the intervener attaching creditors, some of whom were plaint(the receiver) to receive the assets of the bank; iffs in that court and some in the state court, and the delivery to him will be a good delivery, might be determined on proceedings for distribinding upon the bank as well as in fur-bution of the proceeds of sale of the attached therance of justice. We have uniformly dis- property made by the marshal, who had the countenanced all attempts, in whatever form actual custody by virtue of the first seizure, they may be made, of making our courts in- upon the ground that section 915 of the Re150] struments for defeating the action of courts of vised Statutes incorporated, as a part of the other States on property within their jurisdic-practice of the courts of the United States for tion by means of clandestine or forcible re- that district, section 447 of the Statutes of Mismoval to this State. The only decree which souri, which provided that: "Where the same we render in such cases is that of immediate property is attached in several actions, by dif and prompt restitution, or one preventing any ferent plaintiffs against the same defendant, the rights to be acquired by these attempts to de-court may settle and determine all controver feat the ends of justice. This is an answer to the question raised concerning the peculiar right of the creditor. The only right which he in any event could reach would be subordinate to the injunction from the operation of which this property has been attempted to be removed. Not only on general principles, but on the cases cited by the learned judge who decided this case, the claim of the plaintiff to subject this property to attachment is without the shadow of right."
The case just cited was not so flagrant as the present. The attaching creditor in that case was innocent of any participation in the wrong involved in the removal of the property from the jurisdiction of the Tennessee court. Here the attaching creditors are the very parties at whose instance and for whose benefit the wrong upon the intervener has been perpetrat
sies which may arise between any of the plaint-
iffs in relation to the property, and priority,
validity, good faith, and effect of the different
attachments, and may dissolve any attach-
ment, partially or wholly, or postpone it to an-
other, or make such order in the premises as
right and justice may require;" it being held in
that State that if the writs issue from different
courts of co-ordinate jurisdiction, such con-
troversies shall be determined by that court in
which the first writ of attachment was issued
and levied. In the case referred to, the first
attachment was issued out of the Circuit Court
of the United States, the marshal having pos-
session of the property by virtue of a seizure
under that writ. The writ of attachment is-
sued out of the state court was returned by the
sheriff, stating that he had levied the same on
the stock of goods of the defendant, subject to
the attachment of the plaintiff, in the United | act of the sheriff in the case now under consid-
States Court, and that he notified the marshal eration, in taking the invoice of the goods in
of the attachment and levy, and summoned him connection with the constable, ‘available to
as garnishee. In deciding the case, it was said hold the surplus after satisfying the previous
by the district judge that " The executive of - | attachment, made by the constable? The con-
ficers of courts should understand that when stable had the requisite notice. It in nowise
writs issue from state and federal courts against interfered with the prior custody. It produced
the same property, the officer first obtaining no conflict, and would lead to no confusion."
possession, on being notified that a state court Upon this reasoning it is contended, on be-
officer, as in this case, has a writ against the half of the plaintiff in error, that he was en-
same property, all reasonable facilities should | titled to the benefit of section 1942 of the Re-
be offered such officer to make a full return, vised Statutes of 1870 of Louisiana, which
and the officer holding the property should provides that "Whenever a conflict of privi-
show in his return whatever was done by such leges arises between creditors, all the suits and
state court officer. Federal and state courts are claims shall be transferred to the court by
not foreign courts, or in hostility to each other, whose mandate the property was first seized,
in administering justice between litigants. either on mesne process or on execution, and
The citizen of the State in the federal court is the said court shall proceed to class the privi
as much in his own court as in the courts of leges and mortgages according to their rank
the State. The rights he has he cannot be de- and privilege, in a summary manner, after
prived of in a federal court. The citizen of notifying the parties interested."
another State has the same claim to a debtor's
property in the State of Missouri as a resident,
There are difficulties in the literal application of such a statutory provision, intended, of course, to regulate the practice between themThe same principle is asserted by the Su- selves of co-ordinate state courts, to cases of preme Court of the State of Missouri in the case conflicting rights arising between suitors in the of Patterson v. Stephenson, 77 Mo. 331, as be- federal and state courts where the systems are tween co ordinate state courts. It was there independent. It is impossible to transfer suits said: "On principle and reason, the validity pending in the state courts into the Circuit of successive levies by the same officers on the Courts of the United States, except as provided same property is a recognition of the practical by Act of Congress for the removal of such fact that there may be, after a taking into cus- causes. Nevertheless, the substance of the protody of the law the property of the debtor, an vision may be applied to the practice of the effectual imposition of another writ without an courts in attachment proceedings in such a way actual caption, or a taking away of the property, as to promote and secure that comity which or an appropriation of it for the time being, to ought to prevail between federal and state the attaching creditor's claim. It is held in tribunals exercising concurrent jurisdiction, and such case that the second writ in the hands of to administer justice in a conflict of rights growthe same officer is executed by him sub modo, so ing out of their independent action. Where, 'it will be available to hold the surplus after under a writ of attachment, the Marshal of satisfying the previous attachment, or the the United States has first seized property and whole, if that (the first) attachment should be | taken it into custody, the exclusive jurisdicdissolved. In such case no overt act on the tion of the circuit court is established over it part of the officer is necessary to effect the and over all questions concerning it; but it second levy, but a return of it on the writ will ought not to follow that the property is therebe sufficient. So, where the property is in the by withdrawn from the assertion and enforcehands of the bailee, the officer who placed it ment of claims against it by those who must there may make another attachment, without necessarily pursue their remedy in the first inthe necessity of an actual seizure, by making stance in a state court. A creditor residing in return thereof, and giving notice to the bailee.' the same State with the defendant and, thereDrake, Attach. § 269. In Tomlinson v. Collins, fore, required to institute proceedings in the 20 Conn. 364, it is held in such case that the state tribunal, ought to be enabled, by his second attachment is valid even without any writ of attachment, to subject the property of notice to the bailee." the debtor in due course and according to the order of priority, even though when the sheriff proceeds to execute the writ he finds that property in the possession of the marshal of the United States, and, therefore, subject to the jurisdiction of the federal court. In that case no rule of law or of convenience is violated if he is permitted, by service of notice upon the marshal to make a constructive levy upon the property, subject to all prior liens, and without disturbing the marshal's possession. of course, would not have the effect of subjecting the marshal personally or officially to answer as garnishee to the state court as custodian of the property for the purposes of its jurisdiction, but would entitle the attaching creditor in the state court to acquire a right in the property and to appear in the proceeding in the circuit court to enforce it on a motion to distribute the proceeds of the sale of the at
"Evidently the making of a second levy by the same officer is recognized because it does not disturb his custody of the property. If the rule which prevents one officer from levying on goods seized by another officer rests mainly on the prevention of conflict of jurisdiction and the interference of one officer with the prior custodianship of another, then, on the maxim, Cessante ratione legis, cessat ipsa lex, I can see no reason for the operation or recognition of the rule, where the second levy does not produce such conflict or interference. For it must be borne in mind that the other requirement of the law, that the levying of an attachment is an actual seizure of the property, is satisfied in the case of successive levies by the same officer, by a constructive application of the succeeding writ to the surplus after satisfying the previous attachment.' Why, then, was not the
tached property in its custody. This is the rec-sense, therefore, the property was in custodia
ognized practice in those States where succes- legis, and not subject to a levy under process
sive attachments are authorized to be served by which would have the effect of taking it out
the same officer, acting as the executive of dif- of his possession and control. But when, in
ferent courts, or by different officers each act- the exercise of jurisdiction by the circuit court
ing independently of the other. There seems in the determination of the question raised by
to be no reason why a similar practice should the petition of intervention, the nature of the
not be adopted as between federal and state marshal's title and possession came to be inquired
tribunals acting concurrently in the adminis- into, it was made apparent that he held the
tration of the same laws. Indeed, every con- property illegally as a trespasser, and in that
sideration of justice and convenience might be forum could be treated as holding it in a pri-
adduced to support it, And such a practice in vate and not an official capacity. It was sub-
the courts of the United States, when author-ject, therefore, in the view of that court, to the
ized by law in the administration of attach- consequences of the notice served upon the
ment proceedings as between state courts, seems marshal as garnishee. It was held by the
to us to be justified as a reasonable implica- marshal as if it had been a surplus arising from
tion from section 915 of the Revised Statutes. the sale of the property of a defendant on ex-
That section expressly secures to plaintiffs in ecution, which, as is well established, may be
common-law causes in Circuit and District attached in his hands. Drake, Attachment,
Courts of the United States similar remedies by 251.
attachment against the property of the defend- The case, therefore, stands thus: for the
ant to those provided by laws of the State in reasons growing out of the peculiar relation be-
which such court is held for the courts thereof, tween federal and state courts exercising co-
and authorizes the courts of the United States, ordinate jurisdiction over the same territory,
by general rules, to adopt from time to time the circuit court acquired the exclusive juris-
such state laws as may be in force in the States diction to dispose of the property brought into
where they are held in relation to the same its custody under color of its authority, al-
subject. The remedies here spoken of, of though by illegal means, and to decide all
course, are to be understood as they are de- questions of conflicting right thereto; the plaint-
fined in the state laws, and subject to the same iff in error having pursued his remedy by
conditions and limitations. The authority thus action against his debtor in the state court, to
conferred is ample to authorize and sanction which alone by reason of citizenship he could
the practice of permitting the constructive levy resort, attempted the levy of his writ of attach-
by attaching creditors under state process upon ment upon the goods in the possession of the
the property in possession of the marshal and marshal; not being allowed to withdraw from [157]
their intervention in proceedings in the Circuit the marshal the actual possession of the prop-
Court of the United States for the same dis-erty sought to be attached, he served upon the
trict where, as between state courts of concur-
rent jurisdiction, a similar method of acquiring
and adjusting conflicting rights is prescribed.
Under such a practice, if in the present case
the marshal had acquired and held possession
of the attached goods, by virtue of a valid writ
first levied, the plaintiff in error, by making
his constructive levy, subject to the prior right
and possession of the marshal, by giving him
the appropriate notice of his claim to hold him
as a garnishee in possession of the property for
his benefit as to any surplus that might remain
after payment of prior claims, would have
thereby acquired the right, after establishing
his claim by judgment in the state court and
presenting proper proof thereof, to appear in
the circuit court as an intervener and secure
his right to share in the proceeds of the sale of
the attached property in his proper order.
marshal notice of his writ as garnishee; not be-
ing able by this process to subject the marshal
to answer personally to the state court, he
made himself a party to the proceedings in the
circuit court by its leave, and proceeded in
that tribunal against its officer and the credit-
ors for whom he had acted; on a regular trial
it appeared as a fact that at the time of the
notice the marshal was in possession of the
property wrongfully as an officer, and there-
fore chargeable as an individual. It was com
petent for the circuit court, and having the
power it was its duty, to hold the marshal liable
as garnishee, and having in its custody the
fund arising from the sale of the property, and
all the parties interested in it before it, that
court was bound to do complete justice between
all the parties on the footing of these rights,
and give to the plaintiff in error the priority
over all other creditors, to which by virtue of
his proceedings, and as prayed for in his peti-
tion of intervention, he was entitled.
On these grounds, the judgment of the Circuit
Court is reversed and the cause remanded, with
directions, upon the facts found in the Circuit
Court, to award judgment in favor of the inter-
vener, Gumbel, in conformity with this opinion;
and it is so ordered.
But the case, as actually presented upon the
circumstances disclosed in this record, is much
stronger for such an intervention. When the
sheriff of the civil district court undertook to
levy upon the goods in question, and served
the marshal with notice as garnishee holding
actual possession of the property, the latter
was in fact, as we have already seen, in posses-
sion illegally under a writ, which protected his
official possession only so far as to prevent the
property from being forcibly withdrawn from
the jurisdiction of the circuit court by judicial
process, that court having acquired jurisdic-
tion, by virtue of the seizure under color of its
authority, to decide all questions concerning
it. That writ, though illegally issued and
levied, was not void on its face. In a certain Decree
ISAAC C. BAKER ET AL., Appts.,
THOMAS C. POWER, ET AL.
(See S. C. Reporter's ed. 167-169.)
entered by direction of district judge.
|