Page:United States Statutes at Large Volume 4.djvu/327

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the principles, rules, and usages, which belong to courts of admiralty, as contradistinguished from courts of common law, except so far as may have been otherwise provided for by acts of Congress; subject, however, to such alterations and additions, as the said courts of the United States 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 rules, to prescribe to any circuit or district court concerning the same.

Where judgments are a lien upon the property of the defendant.Sec. 2. And be it further enacted, That, in any one of the United States, where judgments are a lien upon the property of the defendant, and where, by the laws of such state, defendants are entitled in the courts thereof, to an imparlance of one term or more, defendants, in actions in the courts of the United States, holden in such state, shall be entitled to an imparlance of one term.

When writs of execution and other final process issued on judgments, &c., rendered in any of the courts of the United States, &c.
Proviso.
Sec. 3. And be it further enacted, That writs of execution and other final process issued on judgments and decrees, rendered in any of the courts of the United States, and the proceedings thereupon shall be the same, except their style, in each state, respectively, as are now used in the courts of such state, saving to the courts of the United States in those states, in which there are not courts of equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of the court: Provided, however, That it shall be in the power of the courts, if they see fit in their discretion, by rules of court, so far to alter final process in said courts as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.

    court as the first attachment. Query, If the plaintiff must, in all cases under that act, sign and make oath to his petition to be admitted to defend against the first attachment, or if he is abroad, it may be done by his agent. Lodge v. Lodge, 5 Mason’s C. C. R. 407.

    Pennsylvania. Levy and condemnation, under an execution, keep a judgment alive, and preserve the lien without a scire facias. United States v. The Mechanics’ Bank, Gilpin’s D. C. R. 54.
    Where there is a scire facias to revive a judgment, the defendant cannot avail himself of matters of defence which occurred previous to the original judgment. United States v. Thompson Gilpin’s D. C. R. 622.
    Laws which relate to practice, process, or modes of proceeding before or after judgment, are exceptions to the 34th section of the judiciary act of 1789, as Congress have legislated on the subject. The Supreme Court of the United States have established the distinction to be this: State laws, which furnish the court a rule for forming a judgment, are binding on the federal courts, not laws for carrying that judgment into execution; that is governed by the acts of Congress, and the rules of practice adopted in pursuance thereto. Thompson v. Philips, Baldwin’s C. C. R. 274.
    The act of the legislature of Ohio, of February, 1820, relative to proceedings against parties to promissory notes, by which all the parties to a note might be proceeded against in one suit, was a very wise and benevolent law, and its salutary effects produced its immediate adoption into the practice of the courts of the United States, and the suits have, in many instances, been prosecuted under it. Fullerton v. The Bank of the United States, 1 Peters, 604.
    Although the act of the legislature of Ohio, regulating the mode of proceeding in actions on promissory notes, was passed after the making of the note upon which this action was brought, yet the circuit court of the United States for the district of Ohio, having incorporated the action under that statute, with all its incidents, into its course of practice, and having full power by law to adopt it, there does not appear any legal objection to its doing so, in the prosecution of the system under which it has always acted. Yeaton v. Lenox, 8 Peters, 123.
    The process act of 1828 expressly adopts the mesne process, and modes of proceeding in suits at common law, then existing in the highest stat court, under the state laws; which of course included all the regulations of the state laws as to bail, and exemptions of the party from arrest and imprisonment. In regard, also, to writs of execution, and other final process, and “the proceedings thereupon;” it adopts an equally comprehensive language, and declares that they shall be the same as were then used in the courts of the state. Beers v. Haughton, 9 Peters, 329.
    The circuit court of each district, sit within and for that district, and are bounded by its local limits. Whatever may be the extend of the jurisdiction of the circuit court over the subject matter of suits, in respect to persons and property, it can only be exercised within the limits of the district. Congress might have authorized civil process from any circuit court to have run into any state in the Union. It has not done so. It has not, in terms, authorized any civil process to run into any other district; with the single exception of subpœnas to witnesses within a limited distance. In regard to final process, there are two cases, and only two, in which writs of execution can now by law be served in any other district than that in which the judgment was rendered; one in favour of private persons in another district of the same state; and the other in favour of the United States, in any part of the United States. Toland v. Sprague, 12 Peters, 300.