tion, in writing, to vacate and dissolve the injunction and restraining order theretofore allowed for reasons specified therein. On December 16, 1880, this cause also, on petition of plaintiffs, was removed into this court.

A motion on the part of the plaintiffs for the appointment of a receiver to take possession of and sell the goods of Pierce levied on, was heard by Hon. John Baxter, circuit judge, on January 29, 1881, and was denied; whereupon, by consent of counsel, (the defendant Sharpe not thereby entering his appearance therein, but reserving all rights to object to the jurisdiction of this court,) it was further ordered that the restraining order theretofore allowed be so far modified as to permit the sheriff of Fairfield county to sell the goods held by him upon executions in favor of Sharpe against Pierce, but the proceeds of the sale to be held and retained in his possession until the further order of the court in the premises. In pursuance of this agreement, as the sheriff reports, the goods were sold, February 28, 1881, to Augustus Sharpe, for $20,000.

On June 9, 1881, the defendant Sharpe, for reasons annexed, moved to dismiss the attachment against him and his property, and also the attachment against Pierce, so far as it interferes with his executions; and on the same day Pierce also moved to dismiss the attachment against him.

The motions of the defendants, in both cases, to dismiss the attachments and to dissolve the injunction, have now been argued and submitted for decision.

1. As to the orders of attachment, several grounds for the motions are relied on, which I will consider in their order.

(1) It is objected as to the defendant Sharpe that he was not properly served with process in the case, and that as to him there is no jurisdiction. The objection is that, being a resident in Montgomery county, he could not be sued in Fairfield county. Section 5031 of the Revised Statutes of Ohio requires, except in specified cases, that civil actions must be brought in the county in which a defendant resides, or may be summoned, and section 5038 provides that when the action is rightly brought under that former section a summons may be issued to any other county, against one or more of the defendants, at the plaintiff's request. This is what was done in the present instance. If it should turn out finally that Pierce is not liable, then there can be no recovery against Sharpe. Dunn v. Haglett, 4 Ohio St. 435. Unless the action is founded upon a joint liability, it cannot be maintained against Sharpe; if it is, he has been rightly

summoned. The petition charges him jointly with his co-defendant, and nothing appears upon the pleadings inconsistent with such a claim.

It is not relevant to say that he was not a joint debtor with Pierce for the price of the goods, on the contract of sale; for the action is not brought to recover on that contract. It is an action for damages on account of an alleged deceit, the wrong complained of being laid as committed by the defendants jointly. This objection is over

ruled.

(2) The next proceeds upon the same misconception. It is that the order of attachment was improperly issued, without the allowance of a judge, as required by section 5565 of the Revised Statutes, the action having been brought before the claim was due. But the claim sued on was not for the price of the goods upon the contract of sale, but for damages occasioned by the alleged deceit.

(3) It is further urged, as a fatal objection to the order of attachment, that a levy under it cannot be made upon goods already in the hands of the officer by virtue of a levy of an execution. This applies only in Pierce's case, and does not go to the regularity and validity of the order of attachment, but only to that of its service by levy upon the goods previously taken in execution by the sheriff.

But there does not appear to be any reason in the nature of the case, nor any statutory provision, which prevents the sheriff from levying an order of attachment, properly directed to him, upon goods already in his hands by virtue of a levy under a prior execution. There is no more difficulty in this case than in the levy of two or more executions of different dates, or of several successive orders of attachment, against the same debtor upon the same property. The case of Lake v. Butler, 19 Ohio St. 587, referred to in argument, was the case of an attempted levy by one officer of an order of attachment upon property in the custody of another officer under other process, where it was held that the levy of the attachment could only be made by regular garnishment.

(4) The motion is further founded on the ground that the charge of misrepresentation and deceit is untrue. A large amount of testimony upon the merits, in the shape of affidavits, pro and con, has been taken. To dismiss the attachment on this ground involves a decision based upon ex parte testimony of the very matter which must ultimately be passed upon by a jury. If the plaintiffs shall eventually succeed in obtaining a favorable verdict, that will determine also that they were entitled to the provisional remedy by virtue

of the order of attachment now sought to be dismissed, and 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 is the basis of their complaint, the existence of which is affirmed and denied by the parties and witnesses on this motion.

I have not read the affidavits, therefore, for the purpose of determining on which side of this controversy the evidence preponderates, but rather of satisfying myself whether the proceeding now questioned has been taken in good faith, and whether there is respectable evidence, which, if believed, would warrant a jury in finding a verdict in favor of the plaintiffs. The result 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 motion 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 fact, 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 is imperatively required by section 720, Rev. 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 bankruptcy."

This is the same provision originally contained in section 5, c. 22, act of March 2, 1793; 1 St. 334. It has been held to prohibit the issue. of an injunction by a court of the United States to restrain the sale of property under an execution issued out of a state court, although 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. Coburn, 2 Curt. 465.

And in the early case of Diggs v. Wolcott, 4 Cranch, 179, it was decided that although a suit to enjoin proceedings in a state court is removed from the state court into the circuit court, yet the latter cannot grant the relief prayed for. And in that case the removal

was effected by the defendants to the bill in chancery, against whom the relief was asked.

But by section 646, Rev. St., it is now provided that-

"Any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States court into which the cause is removed."

And by section 646, Rev. St., (act of March 3, 1875, c. 137, § 4, 18 St. 571,) it is provided, in reference to all cases removed from a state court, that

"All injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed."

It is clear, then, that by virtue of this last-mentioned provision the injunction in the present case is continued in force until otherwise ordered by this court, and does not cease to operate by the peremptory effect of the prohibition contained in section 720. And the inference from sections 640 and 646 is equally cogent to my mind, that in the cases provided for it is the intention of the law to authorize and require that the question of dissolving, continuing, or perpetuating the injunction originally granted by the state court, shall be dealt with by the courts of the United States, into which the cause shall have been lawfully removed, without in anywise being affected by section 720, and that it shall be disposed of by the courts upon its merits, precisely as it ought to have been disposed of by the state tribunals if the cause had not been removed. This construction of these several provisions of the law is necessary, that they may each have some effect, and restrains the interpretation of section 720 to cases where the jurisdiction of the courts of the United States is originally invoked for the very purpose of staying proceedings in state courts.

(2) The question, then, seems, whether this injunction ought originally to have been granted, and whether it ought now, upon general principles of equity jurisprudence, to be permitted to stand. Upon this point it is urged by counsel, in support of the motion to dissolve, that it is not a case for equitable interference, for the reason that the party has a complete and adequate remedy at law.

It seems, in the present condition of the case, hardly necessary to enter upon the discussion of that question. The whole scope of the injunction, as originally prayed for and allowed, was simply to restrain the sale of the stock of goods held by the sheriff of Fairfield county, under the execution of Sharpe and the complainants' order

of attachment, until the validity and priority of the former, brought into question by the allegations of the bill, could be determined on final hearing. By consent of parties the injunction was modified, after the removal of the cause into this court, so far as to permit the sheriff of Fairfield county to sell the goods held by him under said levies, with the proviso that the sheriff should hold and retain the proceeds of such sale in his possession until the further order of this court.

It is true that this consent was given by Sharpe with the qualification that he did not thereby enter his appearance in the suit, and reserving all rights to object to the jurisdiction; but that could only have reference to the question of jurisdiction over his person, which we have already decided. What is left is simply a question as to the appropriation of the fund in the hands of the sheriff. The injunction granted by the court has spent its force, and there is no longer a question as to staying by injunction proceedings in the state court. The parties themselves have agreed that the fund shall remain in its present custody, to abide the order of this court.

It is nevertheless still true that if the complainants have no equity to detain the fund for final disposition, the order should now be made authorizing the sheriff to pay it to Sharpe; and in this view it is material to determine whether such an equity exists.

So far as the objection now under consideration is concerned, that there is open to the complainants an adequate remedy at law, the case of Wood v. Stanberry, 25 Ohio St. 150, seems conclusive. It was there adjudged that "where a sheriff has in his possession goods. and chattels by virtue of a levy under an execution issued upon a void judgment, and aferwards levies, subject to his former levy, an order of attachment in favor of the creditors of the judgment debtor upon the same property and proceeds, or threatens to proceed, under the direction of the plaintiff in execution, to sell the same for the purpose of applying the proceeds upon the execution, the plaintiffs in attachment may restrain the sale by injunction."

In meeting the objection urged here the court say, p. 150:

"The remedy which an injunction affords them is complete, and no other process or proceeding is adequate to the preservation of their rights, or their just compensation for injuries, if the sale under the execution is permitted. They cannot appear in the case of Stanberry v. Purviance and ask the court to recall the execution, for the reason that they are not parties therein; and for the same reason they cannot, upon the return of the execution, ask the court to control the proceeds of the sale for their benefit; nor can they, by proceedings in error, stay the execution or reverse the judgment upon which it was