Henry Billings Brown

“ The plaintiffs in error invoke the jurisdiction of this court upon the ground stated in the 3d clause of Rev. Stat. § 709, of a 'title, right, privilege, or immunity claimed under . . . an authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed.' The special right claimed was a right as purchaser under the marshal's sale upon execution to a priority of payment from the goods sold as against the chattel mortgage. ”

“ The claim set up in the second assignment of error was that the mortgage was invalid as against such execution for the reason that there were many more animals of the same description mingled with those upon which the mortgage was given, and that the animals covered by the mortgage were not separated from the others of the same description with which they were mingled, nor was there such separation up to the time said execution from the United States court was levied upon the property in controversy ”

“ Sanger (Tex.) 12 S. W. 616) , but if any such conflict existed, it was for the supreme court to settle it, as it seems to have done in Elliott v. Long, by overruling the former cases. Whether the right of selection recognized as between mortgagor and mortgagee is also applicable as between a purchaser upon execution and the mortgagee, is not a Federal question, if no discrimination be made against executions from Federal courts. ”