Brown v. Clarke. 4 H. order vacating the new judgment, so far at least, as respects the liens or rights of third parties which have legally attached in the mean time to the goods of the defendant, discharged from the original judgment by the giving of the forthcoming bond. After that lien was suspended or discharged, the original judgment being, in contemplation of law, satisfied by the new and substituted security, the debtor was at liberty to deal with the property as his own, and it remained in his possession, subject to any charge or lien impressed upon it either by the act of the party, or by operation of law, the same after the forthcoming bond, as before the entry of the original judgment. Possibly as between the parties the judgment revived, but it would be against principle, and work manifest injustice, to give to it this retrospective operation, so as to extinguish the intermediately acquired legal rights of third persons. We deny to it this effect. It would be otherwise, if the forthcoming bond had been shown to be void, as it might then be treated as a nullity, and as affording no foundation for the statutory judgment consequent upon the forfeiture. Under such circumstances, the lien of the original judgment would remain unaffected, and might be enforced by execution; it would then, of course, continue uninterrupted by the lien of any subsequent judgment entered up against the defendant. This view of the statute was taken by the court of Mississippi, in Carleton et al. v. Osgood et al. 6 How. Miss. 285. But no such ground is presented in the record before us; nor did it exist in point of fact in the case. On the contrary, the forthcoming bond was in conformity to the statute, and the only reason for the action of the court in quashing the proceedings, for aught that appears or has been shown, was either that the tribunal conceded to the plaintiff the right to vacate his own judgment at his election, and thus voluntarily give up all the rights acquired under it, or that the surety was irresponsible, which latter ground would probably have been unavailing had the fact appeared before the court, that Brown himself, with full knowledge of all the circumstances, approved of the sufficiency of the security. At all events, it is enough to sustain the ground upon which we have placed the priority of lien upon the property, that for aught appearing in the case, the new judgment of Brown upon the forthcoming bond was regular, and existed in full force and effect until set aside and vacated on his own motion. For if so, it is clear, upon the statute and decisions of the courts of Mississippi, that the lien of his original judgment against Cozart became thereby lost and postponed, so as to let in that of the junior judgment of Clarke, and conse Brown v. Clarke. 4 H. quently the sale of the marshal, by virtue of the execution under it, vested in the purchaser the better title. We have thus far examined this case upon the law of Mississippi, where the cause of action arose, as we under- [ *15 ] stand it to have been expounded and applied by the courts of that State. Another view may be taken, leaving out of consideration the priority of lien as acquired under the judgments of the respective parties, and looking solely to priority as acquired by virtue of an actual seizure of the property under execution, regarding that as the test in cases where the conflicting executions issued out of the federal and state courts, and to the executive officers of the different jurisdictions. Hagan v. Lucas, 10 Pet. 400. In this aspect of the case, the legal result is equally decisive in favor of the right of the plaintiff below. If we have not misapprehended the rule of law prevailing in Mississippi in the view already taken, the right to the property acquired under the seizure of the first execution of Brown became extinguished by the operation and effect of the forthcoming bond. No title, therefore, can be set up by virtue of that seizure. The case, then, as it respects the right depending upon priority of actual seizure and legal custody of the property, instead of priority of judgment, stands thus: The marshal levied upon the slaves on the 9th of November; the sheriff not till the 7th of December following. The former, therefore, under the law giving effect to the first seizure, was entitled to the property, and of course the purchaser at his call acquired the better title. In every view we have been able to take of the case, we are satisfied the judgment of the district court was right, and should be affirmed. The court have had some difficulty in noticing the exceptions taken to the instructions in this case, in the form in which they are presented upon the record. It is matter of doubt whether they point to the instructions given and refused to the jury, or the refusal of the court below to grant a new trial. If to the latter, no question is presented upon which error would lie, according to the repeated decisions of this court. 4 Wheat. 213; 6 Wheat. 542. The counsel were probably misled, in making up the record, by the practice in Mississippi, where error will lie to the appellate court for a refusal to grant a new trial by statute. Laws of Miss. 493, § 53. But the rule is otherwise in the federal courts. That State has also a statute providing for the case of exceptions to be taken in the progress of the trial in the usual form, (p. 620, § 40,) which is the Levi v. Thompson. 4 H. form that should have been observed in this case. The practice is particularly stated and explained in Walton v. The United States, 9 Wheat. 651, and in several later cases, 4 Pet. 102. The practice is well settled and exceedingly plain and simple, and will be strictly adhered to by the court. 13 H. 151; 16 H. 14; 1 Wal. 592. THE TOMBIGREE RAILROAD COMPANY v. WILLIAM H. KNEELAND. 4 H. 16. [ *17 ] Bank of Augusta v. Earle. 13 P. 519, affirmed. *TANEY, C. J., delivered the opinion of the court. The only question arising on this record is, whether, by the laws of Alabama, a contract made in that State, by the agents of a corporation created by the law of another State, is valid. This point was fully considered and decided in the case of The Bank of Augusta v. Earle, 13 Pet. 519, and cannot now be considered as open for argument in this court. The principles decided in that case must govern this; and the judgment of the district court is, therefore, reversed, with costs. ALEXANDER LEVI v. JOHN THOMPSON et al. 4 H. 17. The title acquired by a register's certificate, upon which a patent issues, is such an equitable title as was liable to be levied on by the law of Iowa. THE Commissioners under the act of the 3d of March, 1837,1 amendatory of the act entitled: "An act for laying off the towns of Fort Madison," &c., approved July 2, 1836,2 confirmed unto Alexander Levi and John Thompson, as tenants in common, the right of purchase, by preemption, of lot No. 68, in the town of Dubuque, being of the first class, containing seventeen one hundredths of an acre. The lot was entered in the land-office, and the receiver's receipt given to Levi and Thompson for the purchase-money, on the 1st of April, 1840. It appears that William Chilson and Joel Campbell had instituted a suit, on the common law side of the district court of Dubuque county, against Levi and Thompson, and that judgment was rendered against them for $780.50 and costs of suit, in August, 1839. Execution was issued upon the judgment in due 15 Stats. at Large, 178. 2 Ib. 70. Levi v. Thompson. 4 H. form of law; it was placed in the sheriff's hands to be executed, and he levied upon the lot for which Levi and Thompson had a preëmption certificate, and the same was sold to satisfy the execu tion, before a patent had been issued by the United States [18] to Levi and Thompson for the same. Thompson, the ten ant in common with Levi, became the purchaser, paid the purchasemoney, and took the sheriff's deed for the same. Thompson, in November, 1841, sold the lot to the other defendants, who had paid for the same before Levi sued out his bill. They state, in their answer to Levi's bill, that when they bought the lot from Thompson, they were informed by him, and so supposed the fact to be, that he had a full and perfect right thereto, free from all incumbrances and of all claim by any other person or persons, and that at the time of their purchase, and when they made the payments to Thompson for the same, they were utterly ignorant of any title or claim to property in Levi, or that he set up or pretended to have any claim or title to the same. That the first notice they had of any such claim by Levi, was about three weeks before the date of their answer to his bill, when he sent them word that he desired them to make a division of the property with him. They further state, at the time of their purchase there was a small log-house upon the lot, of little or no value to them, which they tore down and removed. That they went into quiet and peaceable possession of the lot at the time of their purchase, and have so remained ever since; that they had made lasting and valuable improvements upon the lot; that for a considerable part of the time whilst they were making these improvements, Levi had been in the city of Dubuque, and they believe must have discovered them, as he frequently passed and repassed the lot, and never informed them of his having any claim to the same. The cause was tried in the district court, upon the bill and answers of the defendants, and the court adjudged that the petition of the complainant should be dismissed. An appeal was taken to the supreme court, and that court affirmed the decree of the court below; and from that court it has been brought to this court by appeal. Washington Hunt, for the appellant. Davis and Crawford, for the appellees. [*19] * WAYNE, J., delivered the opinion of the court. The only question raised by the pleadings in this cause, and it seems to us the only one argued at its hearings in the district and supreme courts of Iowa, was, whether the lot, for which Lee and Thompson had a preëmption certificate, which had been entered Buchanan v. Alexander. 4 H. and paid for by them, was or was not liable to be sold upon execu tion issued upon a judgment rendered against them previous to a patent having been issued for the land by the government of the United States. Their right to a preëmption purchase of the lot was acquired under the act of the 2d of July, 1836, c. 262, entitled: "An act for laying off the towns of Fort Madison and Bur lington, in the county of Des Moines, and the towns of Bellevue, Dubuque, and Peru in the county of Dubuque, territory of Wiscon sin, and for other purposes," and under the act of the 3d of March, 1837, c. 36, amendatory of the preceding act just recited. The right of Levi and Thompson to a preëmption, under those acts, is not a controverted point in the case. Taking it for granted, then, that it had been lawfully acquired, that they entered the land in the proper office, and that it was paid for in their names, this gave them the right to the register's certificate of purchase, to be transmitted to the commissioner of the general land-office, as in other cases of the sale of public lands. The fee continues in the United States until the issue of the patent, but the right to the fee was in the purchasers, and they were entitled to a patent for the land unless there was some legal objection by the United States against issuing it, of which this court is not advised. This right to the fee and a patent in this case gave to Levi and Thompson that "equitable right" to the land, under the certificate from the receiver of the land-office, which the law of Iowa has made subject to execution for the satisfaction of judgments. Stat. Law Ter. of Iowa, 197, January 25, 1839. We further remark that the principle upon which the case of Carroll v. Safford, 3 How. 441, was decided, covers this case. Nor do we find any thing in the case of Bagnell v. Broderick, 13 Pet. 436, or of Wilcox v. Jackson, 13 Pet. 498, 516, 517, cited by the counsel for the plaintiff in error, or in any other case decided by this court, which conflicts with the decision it here gives. We direct the decree of the court below to be affirmed. M'KEAN BUCHANAN, Plaintiff in Error, v. JAMES ALEXANDER. 4 H. 20. Money in the hands of a disbursing officer of the United States, though due and payable by him to a private person, cannot be attached by process out of a state court. M'LEAN, J., delivered the opinion of the court. This is one of six cases depending upon the same principle, which have been brought before this court by writs of error to the circuit |