28 F. 356 | U.S. Cir. Ct. | 1886
The trustee, as marshal of this district, has $884.98 in his hands which he has collected on an execution issued out of this court in favor of this defendant. The statutes of the state provide that “a person having goods, effects, or credits of the defendant intrusted or deposited in his hands or possession, ” may be summoned as a trustee, and that “such goods, effects, and credits shall thereby be attached, and held to respond to the final judgment in the suit. ” Rev. Laws, § 1068. The marshal has been summoned as trustee of the defendant in this suit commenced in a court of the,state to attach and hold the money so collected under that statute, and the suit has been removed into this court. The question now is whether this money in the hands of the marshal can now be held in that manner.
It is held by the highest courts of the state that money collected by a sheriff on execution may be attached by such trustee process. Hurlburt v. Hicks, 17 Vt. 193; Lovejoy v. Lee, 35 Vt. 430; Adams v. Lane, 38 Vt. 640, The contrary was held in Turner v. Fendall, 1 Cranch, 116, and in Wilder v. Bailey, 3 Mass. 289. It is argued with plausibility, in behalf of the plaintiff, that this proceeding rests on a • statute of the state, and that the construction of the statute by the highest court of the state should govern. This argument is well ■ founded, so far as the proceeding rests upon the statute of the state; but this money is held by the trustee as marshal under and by virtue of the laws and authority of the United States. The manner of the holding is to be determined upon those laws and the effect of the proceedings under them, which have resulted in the collection of the money by the marshal. The question is whether the money when collected is so held by the marshal as to come within the operation of this statute of the state. It is not claimed or doubted .but that ¡ marshal holding specific property in his hands by virtue of the process of a court so holds it that it cannot be interfered with by any other officer or process; Freeman v. Howe, 24 How. 450; Lammon v. Feusier, 111 U. S. 17; S. C. 4 Sup. Ct. Rep. 286; Covell v. Heynan, 111 U. S. 176; S. C. 4 Sup. Ct. Rep. 355,
It is argued that this does not apply to money collected on execu
Trustee discharged, with costs.