Page:United States Reports, Volume 257.djvu/100

Rh 10. such order or decree, it would be best to sell it in some other manner."

We think that the language of this act limits its application to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and that it does not extend to sales under common-law executions which issue by mere praecipe of the judgment creditor on the judgment without order of the court, and in which the levy and sale of the marshal are ministerial, do not need confirmation to give them effect, and only come under judicial supervision on complaint of either party. The sale in such a case depends for its validity on the marshal's compliance with the requirements of law. While the Act of 1893 is not limited to equity and admiralty cases, its passage was doubtless chiefly prompted by the fact that they were excepted from the conformity sections.

It is objected that petitioners can not now rely on § 916 because they did not rely on it in the courts below. Their seventh assignment of error on appeal to the state Supreme Court complained of the refusal of the chancery court "to hold and adjudge that whether the said Act of Congress [i. e. the Act of 1893] or the laws of Mississippi governed the sale under said execution, the validity vel non of said execution was a Federal question, for that even if the statutes of the State were applicable, the same became Federal statutes by adoption under Act of Congress of June 1, 1872, U. S. Revised Statutes, Section 916". It seems to us that this submitted in the alternative with sufficient specification to the state Supreme Court the question whether § 916 of the Revised Statutes conferred validity on the marshal's sale.

Section 916 gives to the judgment creditor "similar remedies... by execution... as are now provided in like causes by the laws of the State in which 6267*227