In re Davidson

7 F. Cas. 26, 2 Ben. 506

Opinion

BENEDICT, District Judge.

The facts presented in these papers do not make out a case of conflict between the marshal and the officers of the state court as to the possession of the property in question; nor do they require the interference of the court by its summary order to avoid a conflict of jurisdiction. This property has not been taken by the marshal from the officers of any court, but from private persons, who claim to be the owners of it No interference with the process of the state court,'by any officer of this court, is shown, and no officer of the state court makes application to this court for protection. The remedy of these parties, therefore, is not by an application like the present but by an action at law against the marshal or the assignee; or, perhaps, by a bill in equity, where all the rights of all parties could be passed on and determined; or by a petition in accordance with the suggestion made by the supreme court in Buck v. Colbath, 3 Walk [70 U. S.] 347. It might be that the present proceeding could, without injustice, be treated as such petition; but I forbear to do so, in order to give these parties opportunity to indicate, by a formal petition, a clear intention to submit the question of their title in this property to the determination of the court

The motion is therefore denied, but the assignee will forbear to make any disposal of the property for the space of ten days, unless by consent of the parties here moving, to enable them to take such- proceedings to protect their rights as they may be advised.