Page:Federal Reporter, 1st Series, Volume 9.djvu/651

636 FEDEBAIi EEPORTER. �ings are founded, and it is also true that the statute declares, with the evident view of maintaining an orderly course of procedure, and of suitably protecting the rights of the parties, that the proceeding against a garnishee shall be deemed an action. But it is, after all, essentially but a branch of the main suit, and since that suit was not removable at the stage -when a removal was attempted, I am of the opinion that the garnishee proceedings could not be transferred to this court. This conclusion is supported by authorities which are entitled to weight as bearing upon the question. �In Weehs v. Billings, 65 N, H. 371, the question arose whether a defendant under trustee process, — which in its purpose and general character, as existing in New Hampshire, is analogous to garnishee process or procedure in this state — could remove the proceeding to the federal court, there to be tried as a suit against him; and it was held that he could not. In the opinion of the court it is, among other things, said that — �" Although the trustee may in some sense be regarded as a defendant, and the question of hisliability be tried by a jury or by the court, he has, nevertheless, never been regarded by the courts as a defendant, in the proper and usual sense of the term, and, in common parlanee, is known and ealled by the name of trustee, while his alleged crediter is ealled the principal defendant. They are not sued in the same right, and are not answerable to the plaintift in the same manner. The principal is sued on account of some alleged injury which the plaintift has sustained by his act or neglect. But, as between the plaintili and trustee, there is no privity of contract, or other act or neglect by which the plaintifl has sustained damage. The property and credits of the principal de- fendant in his hands are attached, and he is summoned tp show cause why execution should not issue against him for the damage which the plaintiff may recover against the principal defendant. The process as to him is rather to be regarded as an attachment of the defeiidant's property in his hands; and even if this were an action in which the state and federal courts had orig- inal concurrent jurisdiction of the funds of the defendant in the hands Of tho trustee, the state court, being the one before whom proceedings were first had, and whose jurisdiction flrstattached,would retain its jurisdiction to the exclu- sion of the other court, if the only controversy were as to the disposition of the funds so attached." �The removal in the case cited was attempted to be made under the second clause of section 639 of the Revised Statutes, but the discus- sion of the question by the court, from whose opinion the foregoing extract is made, applies with force to the question as it arises in the case at bar, since, under all the statutes authorizing removals of causes to the federal court, the proceeding reraoved must be a suit in the sense of those statutes; and it was not contendcd on the argu- ��� �