1825. struction.

Wayman

V.

Southard.

The 14th section of the Judiciary Act of

1789, c. 20. au

Courts of the

writs of execu

The constitution concludes its enumeration of granted powers, with a clause authorizing Congress to make all laws which shall be necessary and proper for carrying into execution. the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all which it has power to render judgment.

That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause, neither require nor admit of elucidation. The Court, therefore, will only say, that no doubt whatever is entertained on the power of Congress over the subject. The only inquiry is, how far has this power been exercised?

tion, as well as ses. other writs.

The 13th section of the Judiciary Act of 1789, c. 20. describes the jurisdiction of the Supreme thorizes the Court, and grants the power to issue writs of proU. S. to issue hibition and mandamus, in certain specified caThe 14th section enacts, "that all the before mentioned Courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." The 17th section authorizes the Courts "to make all necessary rules for the orderly conducting busi

ness in the said Courts ;" and the 18th, empowers a Court to suspend execution, in order to give time for granting a new trial.

These sections have been relied on by the counsel for the plaintiffs.

The words of the 14th are understood by the Court to comprehend executions. An execution is a writ, which is certainly "agreeable to the principles and usages of law."

There is no reason for supposing that the general term "writs," is restrained by the words, "which may be necessary for the exercise of their respective jurisdictions," to original process, or to process anterior to judgments. The jurisdiction of a Court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied. Many questions arise on the process subsequent to the judgment, in which jurisdiction is to be exercised. It is, therefore, no unreasonable extension of the words of the act, to suppose an execution necessary for the exercise of jurisdiction. Were it even true, that jurisdiction could technically be said to terminate with the judgment, an execution would be a writ necessary for the perfection of that which was previously done; and would, consequently, be necessary to the beneficial exercise of jurisdiction. If any doubt could exist on this subject, the 18th section, which treats of the authority of the Court over its executions as actually existing, certainly implies, that the power to issue them had been granted in the 14th section. The same implication is afforded by the 24th

Wayman

V.

Southard.

1825. and 25th sections, both of which proceed on the idea that the power to issue writs of execution was in possession of the Courts. So, too, the Process Act, which was depending at the same time with the Judiciary Act, prescribes the forms of executions, but does not give a power to issue them.

On the clearest principles of just construction, then, the 14th section of the Judiciary Act must be understood, as giving to the Courts of the Union, respectively, a power to issue executions ⚫ on their judgments.

The 34th section of the Ju

1789, c. 20.

But this section provides singly for issuing the writ, and prescribes no rule for the conduct of the officer while obeying its mandate. It has been contended, that the 34th section of the act supplies this deficiency.

That section enacts, "that the laws of the diciary Act of several States, except where the constitution, does not apply treaties, or statutes, of the United States, shall to the process otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the Courts of the United States, in cases where they apply."

and practice of the Courts.

This section has never, so far as is recollected, received a construction in this Court; but it has, we believe, been generally considered by gentlemen of the profession, as furnishing a rule to guide the Court in the formation of its judgment; not one for carrying that judgment into execution. It is "a rule of decision," and the proceedings after judgment are merely ministerial. It is, too," a rule of decision in trials at

Wayman

V.

Southard.

common law;" a phrase which presents clearly 1825. to the mind the idea of litigation in Court, and could never occur to a person intending to describe an execution, or proceedings after judgment, or the effect of those proceedings. It is true, that if, after the service of an execution, a question respecting the legality of the proceeding should be brought before the Court by a regular suit, there would be a trial at common law; and it may be said, that the case provided for by the section would then occur, and that the law of the State would furnish the rule for its decision.

But, by the words of the section, the laws of the State furnish a rule of decision for those cases only "where they apply;" and the question arises, do they apply to such a case? In the solution of this question, it will be necessary to inquire whether they regulate the conduct of the officer serving the execution; for it would be contrary to all principle to admit, that, in the trial of a suit depending on the legality of an official act, any other law would apply than that which had been previously prescribed for the government of the officer. If the execution is governed by a different rule, then these laws do not apply to a case depending altogether on the regularity of the proceedings under the execution. If, for example, an officer take the property of A., to satisfy an execution against B., and a suit be brought by A., the question of property must depend entirely on the law of the State. But if an execution issue against A., as

Wayman

V.

Southard.

1825. he supposes, irregularly, or if the officer should be supposed to act irregularly in the performance of his duty, and A. should, in either case, proceed against the officer, the State laws will give no rule of decision in the trial, because they do not apply to the case, unless they be adopted by this section as governing executions on judgments rendered by the Courts of the United States. Before we can assume, that the State law applies to such a case, we must show that it governs the officer in serving the execution; and, consequently, its supposed application to such a case is no admissible argument in support of the proposition that it does govern the execution. That proposition, so far as it depends on the construction of the 34th section, has already been considered; and we think that, in framing it, the legislature could not have extended its views beyond the judgment of the Court.

The 34th section, then, has no application to the practice of the Court, or to the conduct of its officer, in the service of an execution.

The 17th section would seem, both from the context and from the particular words which have been cited as applicable to this question, to be confined to business actually transacted in Court, and not to contemplate proceedings out of Court.

The act to "regulate processes in the Courts of the United States," passed in 1789, has also been referred to. It enacts," that until farther provision shall be made, and except where by this act, or other statutes of the United States,