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the question now under consideration, some doubt which might be entertained in relation to the correctness with which the act of 1789 has been construed. It distinguishes very clearly between the forms of writs, and all other process of the same character, and the forms and modes of proceeding in suits, and provides for both. It is impossible to confound "the forms of writs, executions, and other process," which are to be attested by a Judge, and to be under the seal of the Court from which they issue, with "the forms and modes of proceeding in suits." They are distinct subjects. The first describes the paper which issues from the Court, and is an authority to the officer to do that which it commands ; the last embraces the whole progress of the suit, and every transaction in it, from its commencement to its termination, which has been already shown not to take place until the judgment shall be satisfied. It may, then, and ought to be understood, as prescribing the conduct of the officer in the execution of process, that being a part of "the proceedings" in the suit. This is to conform to the law of the State, as it existed in September, 1789. The act adopts the State law as it then stood, not as it might afterwards be made.

A comparison of the proviso to the permanent act, with that which had been introduced into the temporary act, will serve to illustrate the idea, that the proceedings under the execution were contemplated in the enacting clause, and supposed to be prescribed by the words "modes of pro

cess," in the one law, and "modes of proceed- 1825. ing," in the other.

The proviso to the act of 1789, authorizes the creditor to sue out a capias ad satisfaciendum in the first instance, and to continue it "until a tender of the debt in gold and silver shall be made." The proviso to the act of 1798, omits this last member of the sentence.

The appraisement laws existing in some of the States, authorized a debtor taken in execution to tender property in discharge of his person; and this part of the proviso shows an opinion, that the enacting clause adopted this privilege, and an intention to deprive him of it. The enacting clause of the act of 1793, adopts the State law, to precisely the same extent with the enacting clause of the act of 1789; and the omission of the clause in the proviso which has been mentioned, leaves that part of the adopted law, which allows the creditor to discharge his person by the tender of property, in force.

The subject was resumed in 1793, in the act, entitled, "An act in addition to the act entitled an act to establish the judicial Courts of the United States."

The 8th section enacts, "that, where it is now required by the laws of any State, that goods taken in execution on a writ of fieri facias shall be appraised previous to the sale thereof, it shall be lawful for the appraisers appointed under the authority of the State, to appraise goods taken in execution on a fieri facias issued out of any Court of the United States, in the same manner VOL. X.

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as if such writ had issued out of a Court held under the authority of the State; and it shall be the duty of the Marshal, in whose custody such goods may be, to summon the appraisers in like manner as the Sheriff is, by the laws of the State, required to summon them ;"" and if the appraisers, being duly summoned, shall fail to attend and perform the duties required of them, the Marshal may proceed to sell such goods without an appraisement."

This act refers to the appraisement laws of the respective States, which were in force at the time of its passage, without distinguishing between those which were enacted before, and those which were enacted after, September, 1789. The fact, however, is understood to be, that they were enacted previous to that time, generally as temporary laws, and had been continued by subsequent acts. They required, so far as they have been inspected, that appraisers should be appointed by the local tribunals to appraise the property taken in execution. Supposing laws of this description to have been adopted by the act of 1789, the regular mode of proceeding under them would have been, for the Courts of the United States, respectively, to appoint appraisers, who should perform the same duty with respect to executions issuing out of the Courts of the Union, as was performed by appraisers appointed under State authority, with respect to executions issuing out of the Courts of the State. It was unquestionably much more convenient to employ that machinery which was already in operation, for such a

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purpose, than to construct a distinct system; it 1825.
was more convenient to employ the appraisers Wayman
already existing in the several counties of a State,
than to appoint a number of new appraisers, who
could not be known to the Courts making such
appointments. Accordingly, the section under
consideration does not profess to adopt the ap-
praisement laws of the several States, but pro-
ceeds on the idea, that they were already adopted,
and authorizes the officer to avail himself of the
agency of those persons who had been selected
by the local tribunals, to appraise property taken
in execution. Had these laws been supposed to
derive their authority to control the proceedings
of the Courts of the United States, not from
being adopted by Congress, but from the vigour
imparted to them by the State legislatures, the in-
tervention of Congress would have been entirely
unnecessary. The power which was competent
to direct the appraisement, was competent to
appoint the appraisers.

The act, passed in 1800,"for the relief of persons imprisoned for debt," takes up a subject on which every State in the Union had acted previous to September, 1789. It authorizes the Marshal to allow the benefit of the prison rules to those who are in custody under process issued from the Courts of the United States, in the same manner as it is allowed to those who are imprisoned under process issued from the Courts of the respective States.

Congress took up this subject in 1792, and provided for it by a temporary law, which was

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1825. continued from time to time, until the permanent law of 1800. It is the only act to which the attention of the Court has been drawn, that can countenance the opinion, that the legislature did not consider the Process Act as regulating the conduct of an officer in the service of executions. It may be supposed, that, in adopting the State laws as furnishing the rule for proceedings in suits at common law, that rule was as applicable to writs of capias ad satisfaciendum, as of fieri facias; and that the Marshal would be as much bound to allow a prisoner the benefit of the rules under the act of Congress, as to sell upon the notice, and on the credit prescribed by the State laws.

The suggestion is certainly entitled to consideration. But were it true, that the Process Acts would, on correct construction, adopt the State laws which give to a debtor the benefit of the rules, this single act of superfluous legislation, which might be a precaution suggested by the delicacy of the subject, by an anxiety to insure such mitigation of the hardships of imprisonment, as the citizens of the respective States were accustomed to see, and to protect the officer from the hazard of liberating the person of an imprisoned debtor, could not countervail the arguments to be drawn from every other law passed in relation to proceedings on executions, and from the omission to pass laws, which would certainly be requisite to direct the conduct of the officer, if a rule was not furnished by the Process Act.