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was entirely omitted in the subsequent act. ulations to be reconciled, but by resorting to And the circumstance of this act having been the wise and safe provision contained in the confined in its duration to one year, and that at 34th section of the judiciary act, which gives the two succeeding sessions it had been contin- the same rule as to the substance of the remedy ued for the same term only, and when the per- which applies to the right in controversy, and manent act was passed, this clause, as well as the same for the federal courts as is used at the the indefinite expression, “modes of process, time in the state courts? were both excluded, showed that they were To the argument which had been urged for purposely exclud so that no effect should be the plaintiffs, that, upon the supposition that given to writs of execution, other than what executions from the federal courts are to be they would receive from the local laws of the regulated by the local laws in each state, the states.

state legislatures might entirely defeat the adThe provision in the 34th section of the judi- ministration of justice in those courts, by exciary act of 1789, c. 20, making the state laws empting all property from execution, it was rules of decision in cases where they apply, answered, that Congress (supposing them to furnishes the rules by which this case is to be possess the constitutional power) might, at any determined. The question is, whether the time, apply an effectual remedy by enacting a marshal has conducted himself according to law uniform law on the subject; and that, in the in executing this process. The mere form of meantime, all regulations *made by the [*20 the writ is insufficient to determine it. If you states must apply equally to their own courts; apply the state execution laws as existing in and it was an inadmissible and extravagant 1789, or 1792, nearly all the western states will supposition that any state would thus entirely be left without an execution law applicable in suspend the course of civil justice. It was the the federal courts, since they were admitted province of every sovereign legislature to reg18*) into the *Union subsequent to the enact- ulate it, so far as the society had not surrenderment of the process acts.

ed that right to another power. In the present Congress has itself given a legislative exposi- instance, even supposing the constitution to be tion of the acts now in question, evidently con- silent on the subject, Congress had shown a sidering the execution laws of the states to be dispositon to leave to the states the power of the laws of execution for the federal courts. regulating it, except as to cases arising under By the judiciary act of 1793, c. 167 (XXII.), s. the constitution, laws, and treaties of the 8. it is provided, “ that where it is now required Union, and of peculiar federal cognizance, and by the laws of any state, that goods taken in excepting that general power of regulating the execution on a writ of fieri facias, shall be ap- forms of process, and proceedings, which is praised previous to the sale thereof,” the like essential to every court of justice. proceedings are to be had on executions issuing The cause was continued to the present term out of the courts of the United States. So, also, for advisement. by the act of May 7, 1800, c. 199 (XXV.), reg. ulating sales of lands, on judgments obtained Mr. Chief Justice MARSHALL delivered the by the United States, it is enacted, (sec. 1) opinion of the court, and after stating the case, " that where the United States shall have ob- proceeded as follows: tained judgment in civil actions brought in Some preliminary objections have been made those states wherein, by the laws and practice by the counsel for the defendants, to the manof such states, lands, or other real estate, be- ner in which these questions are brought be longing to the debtor, are delivered to the fore the court, which are to be disposed of becreditor in satisfaction of such judgment,” &c., fore the questions themselves can be considered. the marshal is to proceed to sell at public auc- It is said that the proceeding was ex-parte. tion, and to execute a grant to the highest bid. The law which empowers this court to take der. These legislative expositions were made cognizance of questions adjourned from a cirlong before the present case arose, and are as cuit, gives jurisdiction over the single point on binding in fixing the sense of the legislature which the judges were divided, not over the as any declaratory act which Congress could whole cause. The inquiry, therefore, whether make on the subject. .

the parties *were properly before the [*21 The process acts regulate the forms of writs, Circuit Court, cannot be made, at this time, in and the modes of proceeding in suits, and give this place. the courts the power to alter both. The 14th The defendants also insist, that the judgsection of the judiciary act of 1789, c. 20, gives ment, the execution, and the return, ought to 19*] *to the courts power to issue writs nec- be stated, in order to enable this court to deessary for the exercise of their respective juris- cide the question which is adjourned. dictions, and agreeable to the principles and But the questions do not arise on the judgusages of law." Where a court bas issued the ment, or the execution; and, so far as they deexecution, according to the form provided un- penu on the return, enough of that is stated to der the process acts, it has done all that is au- show the court that the marshal had proceeded thorized by the 14th section of the judiciary according to the late laws of Kentucky. act, and by the process acts.

The rule which general question respecting the obligation of is to govern the manner of levying the execu- these laws on the officer, it is immaterial whethtion, is to be found in the 34th section of the er he has been exact, or otherwise, in his objudiciary act. Various regulations prevail in servance of them. It is the principle on which the states, as to what property is liable to exe. the judges were divided, and that alone is recution.

In some, lands are exempt, except ferred to this court. upon an elegit; in others, certain personal prop- In arguing the first question, the plaintiffs erty is exempt; in all, the ca. sa. is variously contend that the common law, as modified by modified How are all these conflicting reg- acts of Congress, and the rules of this couri, Wheat. 10. U. S., BOOK 6. 17

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and of the Circuit Court by which the judg. 1 it even true, that jurisdiction could technically ment was rendered, must govern the officer in be said to terminate with the judgment, an all his proceedings upon executions of every execution would be a writ necessary for the description.

perfection of that which was previously done; One of the counsel for the defendants insists and would, consequently, be necessary to the that Congress has no power over executions is- beneficial exercise of jurisdiction. If any doubt sued on judgments obtained by individuals; could exist on this subject, the 18th section, and that the authority of the states on this sub- which treats of the authority of the court over ject, remains unaffected by the constitution. its executions as actually existing, certainly That the government of the Union cannot, by implies that the power to issue them had been law, regulate the conduct of its officers in the granted in the 14th section. The same implicaservice of executions on judgments rendered in tion is afforded by the 24th *and 25th *24 the federal courts; but that the state legisla- sections, both of which proceed on the idea tures retain complete authority over them. that the power to issue writs of execution was

The court cannot accede to this novel con- in possession of the courts. So, too, the pro22*) struction. *The constitution concludes its cess act, which was depending at the same time enumeration of granted powers, with a clause with the judiciary act, prescribes the forms of authorizing Congress to make all laws which executions, but does not give a power to issue shall be necessary and proper for carrying into them. execution the foregoing powers, and all other On the clearest principles of just construction, powers vested by this constitution in the gov. then, the 14th section of the judiciary act must ernment of the United States, or in any depart- be understood, as giving to the courts of the ment or officer thereof. The judicial depart- Union, respectively, a power to issue executions ment is invested with jurisdiction in certain on their judgments. specified cases, in all which it has power to But this section provides singly for issuing render judgment.

the writ, and prescribes no rule for the conduct That a power to make laws for carrying into of the officer while obeying its mandate. It has execution all the judgments which the judicial been contended that the 34th section of the act department has power to pronounce, is ex- supplies this deficiency. pressly conferred by this clause, seems to be That section enacts, that the laws of the one of those plain propositions which reason- several states, except where the constitution, ing cannot render plainer. The terms of the treaties, or statutes, of the United States, shali clause neither require nor admit of elucida- otherwise require or provide, shall be regarded tion. The court, therefore, will only say, that as rules of decision in trials at common law, in no doubt whatever is entertained on the power the courts of the United States, in cases where of Congress over the subject. The only in they apply." quiry is, how far has this power been exercised? This section has never, so far as is recollected,

The 13th section of the judiciary act of 1789, received a construction in this court; but it has, c. 20, describes the jurisdiction of the Supreme we believe, been generally considered by gentleCourt, and grants the power to issue writs of men of the profession, as furnishing a rule to prohibition and mandamus, in certain specified guide the court in the formation of its judgcases. The 14th section enacts, “ that all the ment; not one for carrying that judgment into before-mentioned courts of the United States execution. It is “a rule of decision,” and the shall have power to issue writs of scire facias, proceedings after judgment are merely ministehabeas corpus, and all other writs not specially rial. It is, too, "a rule of decision in trials at provided by statute, which may be necessary *common law; a phrase which presents (*25 for the exercise of their respective jurisdic clearly to the mind the idea of litigation in tions, and agreeable to the principles and court, and could never occur to a person intend. usages of law.

The 17th section authorizes ing to describe an execution, or proceedings the courts "to make all necessary rules for the after judgment, or the effect of those proceed. 23*] orderly conducting business *in the said ings. It is true, that if, after the service of an courts;" and the 18th empowers a court to execution, a question respecting the legality of suspend execution, in order to give time for the proceeding should be brought before the granting a new trial.

court by a regular suit, there would be a trial These sections have been relied on by the at common law; and it may be said, that the counsel for the plaintiffs.

case provided for by the section would then The words of the 14th are understood by the occur, and that the law of the state would furcourt to comprehend executions. An execution nish the rule for its decision. is a writ, which is certainly “agreeable to the But, by the words of the section, the laws of principles and usages of law."

the state furnish a rule of decision for those There is no reason for supposing that the cases only "where they apply;" and the quesgeneral term “writs,” is restrained by the words, tion arises, do they apply to such a case? In

which may be necessary for the exercise of the solution of this question, it will be necestheir respective jurisdictions," to original pro- sary to inquire whether they regulate the concess, or to process anterior to judgments. The duct of the officer serving the execution; for it jurisdiction of a court is not exhausted by the would be contrary to all principle to admit, rendition of its judgment, but continues until that, in the trial of a suit depending on the that judgment shall be satisfied. Many ques- legality of an official act, anv other law would tions arise on the process subsequent to the apply than that which had been previously dejudgment, in which jurisdiction is to be exer- scribed for the government of the officer. If cised. It is, therefore, no unreasonable extension the execution is governed by a different rule, of the words of the act, to suppose an execution then these laws do not apply to a case dependnecessary for the exercise of jurisdiction. Were ing altogether on the regularity of the proceedings under the execution. If, for example, an of the business from its commencement to its officer take the property of A, to satisfy an ex- termination; and “modes of process” may be ecution against B, ånd a suit be brought by A, considered as equivalent to modes or manner the question of property must depend entirely of proceeding. If, by the word process, Conon the law of the state. But if an execution gress had intended nothing more than a general 26*] issue against A, as *he supposes, irregu- phrase, which might comprehend every other larly, or if the officer should be supposed to act paper issuing out of a court, the language would irregularly in the performance of his duty, and most probably have resembled that of the first A should, in either case, proceed against the section, where the word " processes," not "proofficer, the state laws will give no rule of decis cess,” is used in that sense. But the introducion in the trial, because they do not apply to tion of the word “modes, and the change of the case, unless they be adopted by this section the word “ processes” for “

process," seem to as governing executions on judgments rendered indicate that the word was used in its more exby the courts of the United States. Before we teusive sense, as denoting progressive action; a can assume that the state law applies to such sense belonging to the noun in the singular a case, we must show that it governs the officer number, rather than in the sense in which it in serving the execution; and, consequently, was used in the first section, which is approits supposed application to such a case is no ad- priate to the same noun in its plural number. missible argument in support of the proposition This construction is supported by the sucthat it does govern the execution. That propo- ceeding sentence, which is in these words: sition, so far as it depends on the construction :- And the forms and modes of proceedings, of the 34th section, has already been considered; in causes of equity, and of admiralty, and and we think that, in framing it, the legislature maritime jurisdiction, shall be according to the could not have extended its views beyond the course of the civil law.” judgment of the court.

The preceding sentence had adopted the The 34th section, then, has no application to forms of writs and executions, and the modes the practice of the court, or to the conduct of of process, then existing in the courts of the its officer, in the service of an execution. several states, as a rule for the federal courts,

The 17th section would seem, both from the “ in suits at common law.” And this sentence context and from the particular words which adopts the forms and modes of proceedings” have been cited as applicable to this question, of the civil law, “in causes of equity, and of to be confined to business actually transacted admiralty and maritime jurisdiction. It has in court, and not to contemplate proceedings not, we believe, *been doubted that this (*29 out of court.

sentence was intended to regulate the whole The act to "regulate processes in the courts course of proceeding, “in causes of equity, and of the United States,” passed in 1789, has also of admiralty and maritime jurisdiction.” It been referred to. It enacts, " that until farther would be difficult to assign a reason for the provision shall be made, and except where by solicitude of Congress to regulate all the prothis act, or other statutes of the United States, ceedings of the court, sitting as a court of 27*) *is otherwise provided, the forms of writs equity, or of admiralty, which would not and executions, except their style, and modes equally require that its proceedings should be of process, in the circuit and district courts, in regulated when sitting as a court of common suits at common law, shall be the same in each law. The two subjects were equally within state, respectively, as are now used in the su- the province of the legislature, equally depreme courts of the same.

manded their attention, and were brought toThis act, so far as respects the writ, is plainly gether to their view. If, then, the words makconfined to form. But form, in this particular, ing provision for each, fairly admit of an equal. it has been argued, has much of substance in ly extensive interpretation, and of one which it, because it consists of the language of the will effect the object that seems to have been writ, which specifies precisely what the officer in contemplation, and which was certainly deis to do. His duty is prescribed in the writ, and sirable, they ought to receive that interpretahe has only to obey its mandate.

tion. “The forms of writs and executions, This is certainly true, so far as respects the and modes of process in suits at common law, object to be accomplished, but not as respects and “the forms and modes of proceedings, in the manner of accomplishing it. In a fi. fo., causes of equity, and of admiralty and marifor example, the officer is commanded to make time jurisdiction,” embrace the same subject, of the goods and chattels of A. B. the sum of and both relate to the progress of a suit from money specified in the writ; and this sum must, its commencement to its close. of course, be made by a sale. But the time and It has been suggested, that the words, “in manner of the sale, and the particular goods suits at common law,” restrain the preceding and chattels which are liable to the execution, words to proceedings between the original writ unless, indeed, all are liable, are not prescribed. and judgment. But these words belong to

To “ the forms of writs and executions,” the "writs and executions," as well as to “modes law adds the words, “and modes of process.' of process," and no more limit the one than the These words must have been intended to com- other. As executions can issue only after a prehend something more than “the forms of judgment, *the words “in suits at [*30 writs and executions." We have not a right to common law," must apply to proceedings which consider them as mere tautology. They have a take place after judgment. meaning, and ought to be allowed an operation But the legal sense of the word suit adheres more extensive than the preceding words. The to the case after the rendition of the judgment, term is applicable to writs and executions, but and it has been so decided." it is also applicable to every step taken in a 28*] cause. *It indicates the progressive course 1.-Co. Litt. 291; 8 Co. 53, b.

This construction is fortified by the proviso, judge, and to be under the seal of the court which is in these words: "Provided, that on from which they issue, with “the forms and judgments, in any of the cases aforesaid. modes of proceeding in suits. They are diswhere different kinds of executions are issu- tinct subjects. The first describes the paper able in succession, a capias ad satisfaciendum which issues from the court, and is an author. being one, the plaintiff shall have his election ity to the officer to do that which it comto take out a capias ad satisfaciendum in the mands; the last embraces the whole progress of first instance, and be at liberty to pursue the the suit, and every transaction in it, from its same, until a tender of the debt and costs in commencement to its termination, which has gold or silver shall be made.”

been already shown not to take place until the The proviso is generally intended to restrain judgment shall be satisfied. It may, then, and the enacting clause, and to except something ought to be understood, as prescribing the which would otherwise have been within it,or, conduct of the officer in the execution of proin some measure to modify the enacting clause. cess, that being a part of “the proceedings" in The object of this proviso is to enable the the suit. This is to conform to the law of the creditor to take out a capias ad satisfaciendum state, as it existed in September, 1789. The in the first instance, and to pursue it until the act adopts the state law as it then stood, not as debt be satisfied, notwithstanding anything to it might afterwards be made. the contrary in the enacting clause. It is per. A comparison of the proviso to the permafectly clear, that this provision is no exception nent act, with that which has been introduced from that part of the enacting clause which re- into the temporary act, will serve to illustrate lates to the forms of writs and executions,' the idea that the proceedings under the execuand can be an exception to that part only tion were contemplated in the enacting clause, which relates to the * modes of process." It and supposed to be prescribed by the words, secures the right to elect the capias ad satis modes of process," *in the one law,and [*33 faciendum, in the first instance, where that writ “modes of proceeding,” in the other. was at all issuable under the law of the state; The proviso to the act of 1789, authorizes the 31*] and to pursue it until the debt and *costs creditor to sue out a capias ad satisfaciendum be tendered in gold or silver. It relates to the in the first instance, and to continue it “ until time and circumstances under which the exe- a tender of the debt in gold and silver shall be cution may issue, and to the conduct of the made.” The proviso to the act of 1798, omits officer while in possession of the execution. this last member of the sentence. These, then, are objects which Congress sup- The appraisement laws existing in some of posed to be reached by the words, "modes of the states, authorized a debtor taking in exeprocess,” in the enacting clause.

cution to tender property in discharge of his This law, though temporary, has been con- person; and this part of ihe proviso shows an sidered with some attention, because the perma- opinion that the enacting clause adopted this nent law has reference to it, and adopts some privilege, and an intention to deprive him of it. of its provisions. It was continued until 1792, The enacting clause of the act of 1793, adopts when a perpetual act was passed on the sub- the state law, to precisely the same extent with ject. This, whether merely explanatory, or the enacting clause of the act of 1789; and the also amendatory of the original act, is the law omission of the clause in the proviso which has which must decide the question now before the been mentioned, leaves that part of the adopted court.

law which allows the creditor to discharge his It enacts, “that the forins of writs, execu: person by the tender of property, in force. tions and other process, except their style, and The subject was resumed in 1793, in the act, the forms and modes of proceeding in suits in entitled, “ An act in addition to the act entitled those of common law, shall be the same as are an act to establish the judicial courts of the now used in the said courts respectively, in United States." pursuance of the act entitled. “An act lo regu- The 8th section enacts, “that, where it is late processes in the courts of the United now required by the laws of any state, that States," except so far as may have been provid- goods taken in execution on a writ of fieri faed for by the act to establish the judicial cias shall be appraised previous to the sale courts of the United States; subject, however, thereof, it shall be lawful for the appraisers to such alterations and additions as the said appointed under the authority of the state, to courts respectively shall, in their discretion, appraise goods taken in execution on a fieri fadeem expedient, or to such regulations as the cias issued out of any court of the United Supreme Court of the United States shall think States, in the same manner *as if such [*34 proper, from time to time, by rule, to prescribe writ had issued out of a court held under the to any circuit or district court concerning the authority of the state; and it shall be the duty

of the marshal, in whose custody such goods This act is drawn with more deliberation may be, to summon the appraisers in like manthan the original act; and removes, so far as ner as the sheriff is, by the laws of the state, 32*] respects *the question now under consid required to summon them;" "and if the aperation, some doubt which might be entertained praisers, being duly summoned, shall fail to in relation to the correctness with which the act attend and perform ibe duties required of them, of 1789 has been construed. It distinguishes the marshal may proceed to sell such goods very clearly between the forms of writs, and without an appraisement." all other process of the same character, and the This act refers to the appraisement laws of forms and modes of proceeding in suits, and the respective states, which were in force at provides for both. It is impossible to con. the time of its passage, without distinguishing found "the forms of writs, execution and between those which were enacted before, and other process," which are to be attested by a those which were enacted after, September, 1789. The fact, however, is understood to be, tion, which might be a precaution suggested by that they were enacted previous to that time, the delicacy of the subject, by an anxiety to generally as temporary laws, and had been con- insure such mitigation of the hardships of imtinued by subseqent acts. They required, so prisonment as the citizens of the respective far as they have been inspected, that apprais- states were accustomed to see, and to protect ers should be appointed by the local tribanals the officer from the hazard of liberating the to appraise the property taken in execution. person of an imprisoned debtor, could not Supposing laws of this description to have been countervail the arguments to be drawn from adopted by the act of 1789, the regular mode every other law passed in relation to proceedof proceeding under them would have been, ings on executions, and from the omission to for the courts of the United States, respective pass laws, which would certainly be requisite ly, to appoint appraisers, who should perform to direct the conduct of the officer, if a rule the same duty with respect to executions issu- was not furnished by the process act. ing out of the courts of the Union, as was per- *But there is a distinction between [*37 formed by appraisers appointed under state the cases, sufficient to justify this particular authority, with respect to executions issuing out provision. The jails in which prisoners were of the courts of the state. It was unquestion to be confined did not belong to the governably much more convenient to employ that ma- ment of the Union, and the privilege of using chinery which was already in operation, for them was ceded by the several states, under a 33*) such a *purpose, than to construct a dis- compact with the United States. The jailers tinct system; it was more convenient to employ were state officers, and received prisoners comthe appraisers already existing in the several mitted under process of the courts of the counties of a state, than to appoint a number United States, in obedience to the laws of their of new appraisers, who could not be known to respective states. Some doubt might reasonathe courts making such appointments. Ac- bly be entertained, how far the process act cordingly, the section under consideration does might be understood to apply to them. not profess to adopt the appraisement laws of The resolution of Congress under which the the several states, but proceeds on the idea that use of the state jails was obtained, “recomthey were already adopted, and authorizes the mended it to the legislatures of the several officer to avail himself of the agency of those states, to pass laws, making it expressly the persons who had been selected by the local tri- duty of the keepers of their jails, to receive, bunals, to appraise property taken in execution. and safe keep therein, all prisoners committed Had these laws been supposed to derive their under the authority of the United States, until authority to control the proceedings of the they shall be discharged by due course of the courts of the United States, not from being laws thereof.” The laws of the states, so far adopted by Congress, but from the vigor im- as they have been examined, conform to this parted to them by the state legislatures, the in. resolution. Doubts might well be entertained, tervention of Congress would have been entirely of permitting the prisoner, under this resoluunnecessary. The power which was competent tion, and these laws, to have the benefit of to direct the appraisement, was competent to the rules. The removal of such doubts seems appoint the appraisers.

same.

to have been a prudent precaution. The act passed in 1800, "for the relief of The case of Palmer v. Allen (7 Cranch's persons imprisoned for debt,” takes up a sub- Rep., 550) may be considered, at first sight, as ject on which every state in the Union had" supporting the opinion that the acts for reguacted previous to September, 1789. It author- lating processes in the courts of the United izes the marshal to allow the benefit of the States, do not adopt the laws of the several prison rules to those who are in custody under states, as they stood in September, 1789, as the process issued from the courts of the United rule by *which the officers of the federal [*38 States, in the same manner as it is allowed to i courts are to be governed in the service of prothose who are imprisoned under process issued cess issuing out of those courts; but, upon an from the courts of the respective states. examination of that case, this impression will

Congress took up this subject in 1792, and be removed. provided for it by a temporary law, which was In that case, as appears from the statement 36*) *continued from time to time, until the of the judge who delivered the opinion of this permanent law of 1800. It is the only act to court, Palmer, as deputy-marshal, arrested Alwhich the attention of the court has been len on a writ sued out of the District Court of drawn, that can countenance the opinion that Connecticut, by the United States, to recover a the legislature did not consider the process act penalty under a statute of the United States. as regulating the conduct of an officer in the Bail was demanded, and, not being given, Allen service of executions. It may be supposed, was committed to prison. For this committhat, in adopting the state laws as furnishing ment Allen brought an action of trespass, asthe role for proceedings in suits at common sault and battery, and false imprisonment, in law, that rule was as applicable to writs of ca- the state court. Palmer pleaded the whole pics ad satisfaciendum, as of fieri facias; and matter in justification, and, upon demurrer, that the marshal would be as much bound to the plea was held insufficient. The judgment allow a prisoner the benefit of the rules under of the state court was brought before this the act of Congress, as to sell upon the notice, court by writ of error, and was reversed; this and on the credit prescribed by the state laws. court being of opinion that the plea was a

The suggestion is certainly entitled to con- good bar to the action. sideration. But were it true, that the process The demurrer was sustained in the state acts would, on correct construction, adopt the court, because, by an act of the legislature of state laws which give to a debtor the benefit of Connecticut, the officer serving process similar the rules, this single act of superfluous legisla- to that which was served by Palmer, must, be

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