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ture may transfer this discretion to the Courts, 1825. and enable them to make rules for its regulation, v

Wayman will not, we presume, be questioned. So, with

Southard. respect to the provision for leaving the property taken by the officer in the hands of the debtor, till the day of sale. He may do this, independent of any legislative act, at his own peril. The law considers the property as his, for the purposes of the execution. He may sell it, should it be produced, in like manner as if h- had retained it in his personal custody, or may recover it, should it be withheld from him. The law makes it his duty to do that which he might do in the exercise of his discretion, and relieves him from the responsibility attendant on the exercise of discretion, in a case where his course is not exactly prescribed, and he deviates from that which is most direct. The power given to the Court to vary the mode of proceeding in this particular, is a power to vary minor regulations, which are within the great outlines marked out by the legislature in directing the execution. To vary the terms on which a sale is to be made, and declare whether it shall be on credit, or for ready money, is certainly a more important exercise of the power of regulating the conduct of the officer, but is one of the same principle. It is, in all its parts, the regulation of the conduct of the officer of the Court in giving effect to its judgments. A general superintendence over this subject seems to be properly within the judicial province, and has been always so considered. It is, undoubtedly, proper for the legislature to prescribe the man

V.

1825. ner in which these ministerial offices shall be per

W formed, and this duty will never be devolved on Wayman

any other department without urgent reasons. Southard.

But, in the mode of obeying the mandate of a writ issuing from a Court, so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide, that there is some difficulty in discerning the exact limits within which the legislature 'may avail itself of the agency of its Courts.

The difference between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes the law ; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.

Congress, at the introduction of the present government, was placed in a peculiar situation. A judicial system was to be prepared, not for a consolidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws, which, though originating in the same great principles, had been variously modified. The perplexity arising from this state of things was much augmented by the circumstance that, in many of the States, the pressure of the moment had produced deviations from that course of administering justice between debtor and creditor, which consisted, not only with the spirit of the constitution, and, consequently, with

the views of the government, but also with what 1825. might safely be considered as the permanent po- y

Wayman licy, as well as interest, of the States themselves. "Av. The new government could neither entirely dis- Southard. regard these circumstances, nor consider them as permanent. In adopting the temporary mode of proceeding with executions then prevailing in the several States, it was proper to provide for that return to ancient usage, and just, as well as wise principles, which might be expected from those who had yielded to a supposed necessity in departing from them. Congress, probably, conceived, that this object would be best effected by placing in the Courts of the Union the power of altering the “modes of proceeding in suits at common law,” which includes the modes of proceeding in the execution of their judgments, in the confidence, that in the exercise of this power, the ancient, permanent, and approved system, would be adopted by the Courts, at least as soon as it should be restored in the several States by their respective legislatures. Congress could not have intended to give permanence to temporary laws of which it disapproved ; and, therefore, provided for their change in the very act which adopted them.

But the objection which gentlemen make to this delegation of legislative power seems to the Court to be fatal to their argument. · If Congress cannot invest the Courts with the power of altering the modes of proceeding of their own officers, in the service of executions issued on their own judgments, how will gentlemen defend a de

1825.

Wayman

Southard.

gulate the proceedings of the State Courts, and the conduct of the officers who execute the process of those Courts. It is a general rule, that what cannot be done directly from defect of power, cannot be done indirectly.

The right of Congress to delegate to the Courts the power of altering the modes (established by the Process Act) of proceedings in suits, has been already stated; but, were it otherwise, we are well satisfied that the State legislatures do not possess that power.

This opinion renders it unnecessary to consider the other questions adjourned in this case. If the laws do not apply to the Federal Courts, no question concerning their constitutionality can arise in those Courts.

CERTIFICATE. This cause came on to be heard on the questions certified from the United States Court for the seventh circuit and District of Kentucky, and was argued by counsel : on consideration whereof, this Court is of opinion, that the statutes of Kentucky in relation to executions, which are referred to in the questions certified to this Court, on a division of opinion of the said Judges of the said Circuit Court, are not applicable to executions which issue on judgments rendered by the Courts of the United States ; which is directed to be certified to the said Circuit Court.

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U. S. Bank

(CONSTITUTIONAL LAW. PRACTICE.)

Halstead.

THE BANK OF THE UNITED STATES v. HALSTEAD.

The act of assembly of Kentucky of the 21st of December, 1821,

which prohibits the sale of property taken under executions for less than three fourths of its appraised value, without the consent of the owner, does not apply to a venditioni exponas issued out of

the Circuit Court for the District of Kentucky. The laws of the United States authorize the Courts of the Union so

to alter the form of the process of execution used in the Supreme Courts of the States in 1789, so as to subject to execution lands and other property, not thus subject by the State laws in force at that time.

This cause was argued at the last term, by the same counsel with the preceding case of Wayman y. Southard, (ante p. 1.) and continued to the present term for advisement.

Mr. Justice THOMPSON delivered the opinion Feb. 15th, of the Court.

1825. This case comes up on a division of opinion of the Judges of the Circuit Court of the United States for the District of Kentucky, upon a motion there made to quash the return of the Marshal upon a venditioni exponas issued in this cause, The writ commanded the Marshal to expose to sale certain articles of property therein particularly specified; and, among other things, two hundred acres of land of Abraham Venable, one of the defendants. The Marshal, in his return, states substantially, that he had exposed to

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