Page:Federal Reporter, 1st Series, Volume 8.djvu/37

PEBBY V. SHABFE. 23 �of the order of attachment now sought to be diemissed, ftnd of the liens, securities, and fruits they may be able to.obtain by its levy. The plaintiffs cannot succeed finally in the action, except upon proof of the misrepresentation and deceit which ie the basis of their complaint, the existence of which is afl&rmed and denied by the par- ties and witnesses on this motion. �I have not read the affidavits, therefore, for the purpose of deter- mining on which side of this controversy the evidence preponderates, but rather of satisfying myself whether the proceeding now ques- tioned bas been taken in good f aith, and whether there is respectable evidence, which, if believed, would warrant a jury in finding a ver- dict in f avor of the plaintiffs. The resuit of my consideration is that the plaintiffs are entitled to have the question which forms the sole issue between the parties decided by a jury, and that for that reason I decline to prejudge it by granting this motion. To grant the mo- tion on this ground is, so far as the influence of such an opinion might extend, to decide the case finally against them. To refuse to interfere now is to allow the case to be finally disposed of by the tribunal whose peculiar province it is to settle disputed questions of faet, without prejudice from any action on this motion. �The affidavits on which the orders of attachment were issued seem to be in all respects in conformity with the requirements of the statute, and the motions to dismiss them are accordingly overruled. �2. As to the injunction. �(1) It is claimed that the granting of the motion to dissolve ia imperatively required by section 720, Eev. St., which enacts that— �" The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bank- ruptcy." �This is the same provision originally contained in section 5, c. 22, act of March 2, 1793 ; 1 St. 334. It bas been held to prohibit the issite of an injunction by a court of the United States to restrain the sale of property under an execution issued ou't of a state court, althougb the application is made by a third party whose property is taken. Watson V. Bendurant, 30 La. An. 1; Daly v.Sheriff, 1 Woods, 175.. Per contra, Cropper v. Cobum, 2 Curt. 465. �And in the early case of Diggs v. Wolcott, 4 Cranch, 179, it was decided that although a suit to enjoih proceedings in a state court is removed from the state court irito the circtlit court, yet the lattef caiinot grant the relief prayed foi'. Ana'iu that case the removal ��� �