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1825.

Wayman

Southard.

common law ;" a phrase which presents clearly 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 pro perty 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., aș

Vol. X.

1825. he supposes, irregularly, or if the officer should

be supposed to act irregularly in the performance Wayman

of his duty, and A. should, in either case, proSouthard.

ceed 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, is otherwise provided, the forms of writs and 1825. executions, except their style, and modes of pro

Wayman cess, in the Circuit and District Courts, in suits V. at common law, shall be the same in each State

Southard. respectively, as are now used in the Supreme Courts of the same.

This act, so far as respects the writ, is plainly confined to form. But form, in this particular, it has been argued, has much of substance in it, because it consists of the language of the writ, which specifies precisely what the officer is to do. His duty is prescribed in the writ, and he has only to obey its mandate.

This is certainly true, so far as respects the object to be accomplished, but not as respects the manner of accomplishing it. In a fi. fa., for example, the officer is commanded to make of the goods and chattels of A. B. the sum of money specified in the writ; and this sum must, of course, be made by a sale. But the time and manner of the sale, and the particular goods and chattels which are liable to the execution, unless, indeed, all are liable, are not prescribed.

To " the forms of writs and executions,” the law adds the words, “ and modes of process." These words must have been intended to comprehend something more than “ the forms of writs and executions." We have not a right to consider them as mere tautology. They have a meaning, and ought to be allowed an operation more extensive than the preceding words. The term is applicable to writs and executions, but it is also applicable to every step taken in a cause.

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Wayman

v. Southard.

It indicates the progressive course of the business from its commencement to its termination; and “modes of process” may be considered as equivalent to modes or manner of proceeding. If, by the word process, Congress had intended nothing more than a general phrase, which might comprehend every other paper issuing out of a Court, the language would most probably have resembled that of the first section, where the word “processes,” not “process,” is used in that sense. But the introduction of the word “modes,” and the change of the word “processes” for “process,” seem to indicate that the word was used in its more extensive sense, as denoting progressive action ; a sense belonging to the noun in the singular number, rather than in the sense in which it was used in the first section, which is appropriate to the same noun in its plural number. This construction is supported by the succeeding sentence, which is in these words: “ and the forms and modes of proceedings, in causes of equity, and of admiralty, and maritime jurisdiction, shall be according to the course of the civil law.” The preceding sentence had adopted the forms of writs and executions, and the modes of process, then existing in the Courts of the several States, as a rule for the Federal Courts, “ in suits at common law.” And this sentence adopts “the forms and modes of proceedings” of the civil law, “in causes of equity, and of admiralty and maritime jurisdiction.” It has not, we be

lieve, been doubted, that this sentence was intend-
ed to regulate the whole course of proceeding,
“in causes of equity, and of admiralty and ma-
ritime jurisdiction.” It would be difficult to as-
sign a reason for the solicitude of Congress to
regulate all the proceedings of the Court, sitting
as a Court of equity, or of admiralty, which
would not equally require that its proceedings
should be regulated when sitting as a Court of
common law. The two subjects were equally
within the province of the legislature, equally
demanded their attention, and were brought to-
gether to their view. If, then, the words making
provision for each, fairly admit of an equally ex-
tensive interpretation, and of one which will effect
the object that seems to have been in contempla-
tion, and which was certainly desirable, they
ought to receive that interpretation. “The
forms of writs and executions, and modes of pro-
cess in suits at common law,” and “ the forms
and modes of proceedings, in causes of equity,
and of admiralty and maritime jurisdiction,” em-
brace the same subject, and both relate to the
progress of a suit from its commencement to its
close.
It has been suggested, that the words “in
suits at common law,” restrain the preceding
words to proceedings between the original writ
and judgment. But these words belong to “writs
and executions,” as well as to “modes of pro-
cess,” and no more limit the one than the other.
As executions can issue only after a judgment,

29 1825.

Wayman

v. Southard.

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