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1825. the words, “ in suits at common law," must apply wan to proceedings which take place after judgment.

But the legal sense of the word suit adheres Southard.

to the case after the rendition of the judgment, and it has been so decideda

This construction is fortified by the proviso, which is in these words: “Provided, that on judgments, in any of the cases aforesaid, where different kinds of executions are issueable in succession, a capias ad satisfaciendum being one, the plaintiff shall have his election to take out a capias ad satisfaciendum in the first instance, and be at liberty to pursue the same, until a tender of the debt and costs in gold or silver shall be made.”

The proviso is generally intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some measure, to modify the enacting clause. The object of this proviso is to enable the creditor to take out a capias ad satisfaciendum in the first instance, and to pursue it until the debt be satisfied, notwithstanding any thing to the contrary in the enacting clause. It is perfectly clear, that this provision is no exception from that part of the enacting clause which relates to the “ forms of writs and executions," and can be an exception to that part only which relates to the “modes of process.” It secures the right to elect the capias ad satisfaciendum, in the first instance, where that writ was at all issueable under the law of the State ; and to pursue it until the debt and

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89, as the rule f

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to such al.

costs be tendered in gold or silver. It relates to 1825. the time and circumstances under which the exe

Wayman cution may issue, and to the conduct of the offi

Southard. cer while in possession of the execution. These, then, are objects which Congress supposed to be reached by the words “modes of process," in the enacting clause.

The Process

Act of 1792, c. This law, though temporary, has been consi- 137. [xxxvi. Jis

* the law which dered with some attention, because the perma- regulates exe

ecutions issunent law has reference to it, and adopts some of ing from the

Courts of the its provisions. It was continued until 1792, when u. S.; and it

: adopts the a perpetual act was passed on the subject. This, practice of the

,,Supreme Court whether merely explanatory, or also amendatory of the States in of the original act, is the law which must decide. the question now before the Court.

ing proceed

ings on such exIt enacts, “that the forms of writs, executions, ecutions, suband other process, except their style, and the terations as

the Courts of forms and modes of proceeding in suits in those the U. S. may

inake, but not of common law, shall be the same as are now subject to the used in the said Courts respectively, in pursuance which have of the act entitled, “ an act to regulate processes place in the

since taken in the Courts of the United States,” except so praleis

State laws and far as may have been provided for by the act to establish the judicial Courts of the United States; subject, however, to such alterations and additions as the said Courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any Circuit or District Court concerning the same.

This act is drawn with more deliberation than the original act; and removes, so far as respects

alterations

v.

1825. the question now under consideration, some doubt

· which might be entertained in relation to the corWayman

rectness with which the act of 1789 has been Southard.

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.

Wayman The proviso to the act of 1789, authorizes the v.

Southard: creditor to sue out a capias ad satisfaciendum in the first instance, and to continue it 6 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.

1825. as if such writ had issued out of a Court held

under the authority of the State ; and it shall be Wayman

the duty of the Marshal, in whose custody such Southard.

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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