V.

is otherwise provided, the forms of writs and 1825. executions, except their style, and modes of proWayman cess, in the Circuit and District Courts, in suits at common law, shall be the same in each State 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.

Southard.

Wayman

V.

Southard.

1825. 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 " pro-
cesses" for "process," seem to indicate that
the word was used in its more extensive sense,
as denoting progressive action; a sense belong-
ing 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

Wayman

V.

Southard.

lieve, been doubted, that this sentence was intend- 1825.
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 process," and no more limit the one than the other. As executions can issue only after a judgment,

Wayman

1825. the words," in suits at common law," must apply to proceedings which take place after judgment. But the legal sense of the word suit adheres to the case after the rendition of the judgment, and it has been so decided..

V.

Southard.

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

a Co. Litt. 291. 8 Co. 53. b.

costs be tendered in gold or silver. It relates to the time and circumstances under which the execution may issue, and to the conduct of the officer 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.

1825.

Wayman

V.

Southard.

The Process Act of 1792, c.

the law which

cutions issu

Courts of the

This law, though temporary, has been consi- 137. [xxxvi.] is dered with some attention, because the perma- regulates exenent law has reference to it, and adopts some ofing from the its provisions. It was continued until 1792, when U. S.; and it a perpetual act was passed on the subject. This, pra whether merely explanatory, or also amendatory of the States in of the original act, is the law which must decide 1789, as the the question now before the Court.

adopts the

rule for governing proceedings on such executions, subject to such al

ecuti

as

the Courts of

make, but not

alterations

since taken

State laws and

practice.

It enacts, "that the forms of writs, executions, and other process, except their style, and the terations forms and modes of proceeding in suits in those the U. S. may 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 in the Courts of the United States," except so 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