¶1delivered the opinion of the court. It is cleár that the plaintiffs liad a right to sue for the afledged trespass, and that neither tlift defendant’s commission as deputy-marshal, nor the writ of fieri facias, alluded to, can afford him any-protection, if the facts set forth in th@ petition be true.
¶2We do not mean to say, that the injunction obtained, in this canse, can be so enforced as to prevent of delay the execution of the process of the court of the United Stales; but if, under color of*it, the defendant lies committed a trespass on the property of a citizen of his state) *437tie is, in the opinion of this court (PkRB'ONV. J. . V . dissenting) spaide in her /courts, for he is not suable in thoSe of the United States.
¶3It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided aud reversed, atft* this-court proceeding to give such a judgment as, in its opinion, ought to have been given, in the district court, it ⅛ order*l, adjiulged áínd'decreed that the plea in abatetaent 6é overruled and set aside, and the ca®% remanffmh\with directions to the. district judge to proceed to the trial of it, on the merits : and it is oMé^hiUttiát ⅜⅜ defendant and appellee pay the costs of &fe ap* feeaL ⅝ / ,⅞