Beers v. Haughton/Opinion of the Court

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ERROR to the circuit court of the United States for the district of Ohio.

On the 14th of June 1830, the plaintiffs, citizens and residents of the state of New York, commenced their action of assumpsit in the United States circuit court, for the district of Ohio, against Joseph Harris and Cornelius V. Harris, of the state of Ohio, and recovered judgment against them at the December term 1830, for 2846 dollars and 56 cents.

In this action against the Harris's, the present defendant, Haughton, became their special bail.

On the 12th day of October 1831, a writ of capias ad satisfaciendum was issued against the Harris's, and returned to the December term of that year 'not found.'

On the 24th day of December 1832, the plaintiffs commenced their present action against Haughton upon his recognizance of bail, returnable to the 1st day of May, then next. A declaration was filed in the usual form, to which the defendant filed several pleas, and among others, the following, designated in the record as the 8th, (the 4th, 5th, 6th and 7th being withdrawn) to wit:

'And the said defendant, for further plea in this behalf, says,' (actio non) 'because, he says, that by the tenth rule of practice of this court, established and adopted by this court, at its December term 1831, which said rule has ever since been and now is in full force and effect, it is provided that if a defendant upon a capias does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who under the insolvent law of the state, has, for such demand, been released from imprisonment. And the said defendant avers, that after the said debt became due, upon which the said judgment in the said declaration mentioned is founded, to wit, in February term in the year 1831, the said Cornelius V. Harris being returned to the court of common pleas, for Hamilton county, and state of Ohio, by the commissioner of insolvents of Hamilton county, and state of Ohio, as a resident of said county and state for more than two years next preceding, as an applicant for the benefit of the act entitled an act for the relief of insolvent debtors, and having also returned a schedule in writing, delivered to said commissioner by said Cornelius V. Harris, of all debts by him owing, among which the said debt in the judgment in the said plaintiff's declaration mentioned is founded, is named, did, at said February term of said court, personally appear before the judges of said court in open court, and the said court then and there having full jurisdiction of such matters and such applications for relief, did then and there, at the term last aforesaid, order and adjudge that the said Cornelius V. Harris should for ever after be protected from arrest or imprisonment for any civil action or debt or demand in the said schedule of his debts, so delivered to the said commissioner of insolvents for Hamilton county, which said order and judgment of said court is now in full force and virtue and unreversed.(a)

'And the said defendant further avers, that afterwards, to wit: in the term of February, in the year 1832, the commissioner of insolvents in and for Hamilton county, in the state of Ohio, returned the said Joseph Harris to the court of common pleas of said county, as a petitioner for the benefit of an act passed by the legislature of the state of Ohio, entitled 'an act for the relief of insolvent debtors,' who at the time of his application was under arrest, and returned to said court a schedule delivered to him by the said Joseph Harris, showing the debts by him owing, and the names of his creditors, among which debts was the said judgment mentioned in the said plaintiff's declaration, and the said Joseph Harris afterwards, in the term of February, in the year 1832, appeared in said court of common pleas, before the judges thereof, and filed his petition in said court, praying for the benefit of the act for the relief of insolvent debtors, and such other proceedings were had thereon, that the said court at the term last aforesaid, ordered and adjudged that the said Joseph Harris be discharged from arrest on account of the debts in said schedule mentioned, in pursuance of the statute in such case made and provided; which said order and judgment is now in full force and virtue, and unreversed. All which the said defendant is ready to verify; wherefore, he prays judgment if the said plaintiffs ought further to have and maintain their aforesaid action thereof against him,' &c.

To this plea the plaintiffs filed a general demurrer, in which the defendant joined. The circuit court overruled the demurrer, and gave judgment for the defendant, and the plaintiffs sued out this writ of error.

The case was submitted to the court on printed arguments, by Mr Elisha W. Chester, Mr D. J. Caswell, and Mr Henry Star, for the plaintiffs in error; and by Mr Charles Fox, for the defendant.

For the plaintiffs in error, it was argued:

The insolvent law of Ohio makes it the duty of the court of common pleas of each county to appoint an officer, denominated the commissioner of insolvents, and any person being arrested upon civil process, either mesne or final, may require the arresting officer to take him before such commissioner, and upon making out a schedule of all the debts which he owes, and also of all his property, and assigning the same to the commissioner, for the benefit of his creditors, the commissioner gives him a certificate, which has the effect to release him from the present arrest, and from arrest for any of the debts contained in his schedule, until the same be acted upon by the court of common pleas of the county, where the arrest is made. This discharge, however, can only be given upon his making oath that he has no other property than that contained in his schedule, &c. He may be examined under oath touching his property by the commissioner or any creditor. These proceedings are to be certified into the court of common pleas of the county, where the discharge is either consummated or the application dismissed. A person not under arrest, who has resided for a certain period in the state and county, may, by a like proceeding, exempt his person from arrest.

The question presented for the consideration of the court, is, whether the facts set forth in this plea constitute a good bar to the plaintiffs' action.

We maintain that they do not, and that upon the demurrer to the plea the plaintiffs were entitled to judgment in the court below.

Before proceeding with the argument, it may be proper to draw the attention of the court to the facts, that, as it appears from the declaration and plea, neither of the Harris's was discharged by the court of common pleas, until after judgment was rendered against them in the circuit court-that Joseph Harris was not discharged until after the return of the ca. sa., and that the rule of court relied on in the plea, was adopted after the return of the ca. sa., and of course after the plaintiff's right of action had accrued. We hold, upon general principles, that an insolvent law of a state, providing a mode for the discharge of the persons of debtors from imprisonment, has no force except in the courts of the state-is only a law affecting the remedy-the mere lex fori.

It seems to us that the very statement of this proposition is enough to secure it a ready assent.

Between a bankrupt law and an insolvent law, a distinction has not unfrequently been made, defining the former as a law, by virtue of which the debtor is discharged, upon certain terms, from his contracts; and the latter, as a law, by which, on similar terms, the person of the debtor is exempted from imprisonment.

In relation to the rights of the several states to pass bankrupt laws, thus defined, (no law of congress existing upon the subject) after much litigation and a thorough investigation of the subject, it has been settled by the supreme court:

1. That bankrupt laws may be passed by a state, affecting all contracts subsequently made within the state, between citizens of the state.

2. That such laws cannot affect contracts, though made within the state, with a citizen of another state.

3. That they cannot affect contracts not made, or not to be performed within the state. 3 Story's Commentaries on the Constitution, 256.

But as to the insolvent laws of the states thus understood, we deny that they have any force in the courts of the union. A bankrupt law reaches the contract-such an insolvent law only the person of the debtor. The one discharges the contract upon certain specified terms-the other only the body. The one absolves the debtor from his debt-the other, leaving the debt in existence, declares that the creditor shall look only to the property of the debtor for satisfaction. The one acts upon and limits the effect of the contract-the other the remedy for a breach of the contract. One is the lex loci contractus, the other the lex fori. By a bankrupt law the contract is discharged, and cannot be enforced in any court or in any place. An insolvent law of this kind extends only to the courts, and the suitors in the courts, and the remedies by the courts of the government enacting the law. The right to pass insolvent laws of this description, is incident to the power of establishing courts of justice, and, as it respects the federal courts, it would not be necessary to derive it from the clause in the constitution authorizing congress to pass bankrupt laws. 2 Kent's Com. 462.

The laws of the states, vi propria, have no other force and effect in the federal courts than the laws of a foreign country. They regulate, limit and control contracts, and the titles to property, and give to the injured a right to satisfaction for wrongs done to their persons and property. The rights of parties arising out of any of these matters will be enforced in a foreign country, taking the laws of the state where the contract was made or to be performed, where the title was acquired, or the injury done, as the rule by which to ascertain the rights of parties litigant; but in the mode of redress and the remedy to be applied, the law of the country where the action is brought, the lex fori, must prevail.

The law of the place where the right of action accrued, can in no manner control the court, or absolve it from its own law in applying the remedy.

The courts of the United States, in relation to the laws of the several states, stand in these respects, in the same situation. Under the decisions of this court, a state may, as between its own citizens, provide a mode by which contracts made after the passing of the law, and to be performed within the state, shall be discharged without payment, provided no bankrupt law of the United States be in existence at the time. But in relation to the effect of the discharge of the person of the debtor, the debt remaining, the law, so far as state adjudications go, has been well settled. See 2 Cowen's Rep. 626; 3 Mass. Rep. 84; 1 Dallas 188; 2 Johns. Rep. 198; 7 Johns. Rep. 117; 11 Johns. Rep. 194; 14 Johns. Rep. 346; 2 Cowen 632; Graham's Practice 93, 94; 8 Wheat. 253, 5 Cond. Rep. 432.

Judge Johnson, in delivering the opinion of the court in Ogden v. Saunders, said: 'no one has ever imagined, that a prisoner in confinement, under process from the courts of the United States, could avail himself of the insolvent laws of the state in which the court sits. And the reason is, that these laws are municipal and peculiar, and appertaining exclusively to the exercise of state power in the sphere in which it is sovereign, that is, between its own citizens, between suitors subjected to state power exclusively, in their controversies between themselves.' 12 Wheat. 367, 6 Cond. Rep. 523; Wayman v. Southard, 10 Wheat. 1-51, 6 Cond. Rep. 1.

Upon general principles, therefore, we consider it beyond question, that the insolvent laws of Ohio, and discharges under them, can have no effect, when urged in the courts of the United States. Has any act of congress given to them an effect which they would not have vi propria?

By the act of the 24th of September 1789, it is enacted, 'that the laws of the several states, except where the constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States where they apply.'

This is a mere recognition of the principles of universal jurisprudence as to the operation of the local law, and cannot therefore affect the general principle contended for. Robinson v. Campbell, 3 Wheat. 221, 4 Cond. Rep. 235; United States v. Howland, 4 Wheat. 108, 4 Cond. Rep. 404; Wayman v. Southard, 10 Wheat. 1, 6 Cond. Rep. 1.

The first section of the act of the 19th of May 1828, was passed to regulate process, &c., in the courts of the United States held in the states admitted into the union, since the 29th of September 1789. It provides, that the forms of mesne process, and the forms and modes of proceeding in suits in such courts, shall be the same in each of the said states respectively, as were then used in the highest court of original and general jurisdiction of the same, subject to be altered by rules of court.

By the third section of the same statute it is 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 thereon, shall be the same, except their style, in each state respectively, as are now used in the courts of such state; 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.'

This last section applies to all the courts of the United States, except those held in Louisiana, and is the only part of the act that has any reference to final process. Does it reach the present case, or in any way affect the liability of the Harris's to be arrested and imprisoned upon a ca. sa., or of the defendant, their bail, in the present action? We think not.

It may be proper to observe, that in this act the word process, throughout, is used in its limited, and not in the extended sense which has sometimes been given to it. In the first section, 'mesne process' is spoken as distinct from 'the forms and modes of proceeding,' and in the last section, the expression, 'writs of execution and other final process, and the proceedings thereon,' renders it certain that, by process, the legislature intended a writ or something analogous, and that it is contradistinguished from the proceedings to be had by virtue of a writ.

Under this act, the plaintiff had a right to a capias ad respondendum against the Harris's, and thereon was entitled to bail, as given; for that was according to the forms of mesne process, and to the forms and modes of proceeding in the courts of Ohio. After judgment, he was entitled to a capias ad satisfaciendum against them, for this is the same writ that was in 1828, and at the time, used in Ohio. This right of the party, and the duty of the court or its officer to issue the writ, cannot be disputed. The right and duty existed before the passage of the act of congress of 1828, and is confirmed by it, so long as such writ is used in the state courts.

But the very nature of this writ requires that the party be arrested and detained-this is its command, its object. If there be a right to issue it, it is obligatory upon the marshal to execute it, and there is but one way in which the command of the writ can be obeyed, to wit, by arresting the defendant. Subsequent proceedings: the manner in which the defendant shall afterwards be dealt with; the limits within which he shall be confined; the nature of the walls within which he shall be enclosed, whether the walls of an actual prison, or the paper walls erected by the bond of a friend, may be regulated by the statutes of the state adopted by this act of congress, (had there existed no law of congress upon the subject of prison bounds).

Yet the defendant is obliged to maintain that the proceedings which ought to be had in the case of the Harris's, if they had been arrested, are nothing more nor less than instantly discharging them. This would not be a proceeding upon a capias ad satisfaciendum, but an annulling of the writ and all its efficacy. If they would have been entitled to such a discharge, it must be because the arrest was wrongful and illegal, and could be for no other reason. If the arrest by the officer would be illegal, the issuing of the writ commanding the arrest must be illegal. And if it were illegal to issue the writ, then the plaintiff had not a right to a writ of execution used in the state courts, which the statute expressly gives him.

We beg leave to present another view of this statute. If the defendant can claim any benefit from it, it is under that part of it which requires that the proceedings upon final process shall be the same as used in the state courts. Does this enjoin upon the marshal, with a capias ad satisfaciendum in his hands, every duty, which, in the same circumstances, is enjoined upon the sheriff of the state by its laws? If so, when he makes an arrest of an individual, who, not having taken benefit of the insolvent law of the state, is desirous of doing so; shall he carry him before the state commissioner of insolvents as the sheriff is required to do? If so, the state commissioner takes the prisoner's bond to appear-where? In the state court. He takes his schedule and certifies all his proceedings into the state court, and there the prisoner must appear, there his discharge be consummated, or, his petition being dismissed, he may still remain liable to imprisonment upon the capias ad satisfaciendum. Here there would be no difficulty, in a case arising in a state court. The sheriff being of course present, would take the defendant immediately into custody and commit him to jail. But the marshal of the United States not being present, unless by accident, his prisoner would go at large. Can a defendant when thus arrested by the process issuing from the court of one government, in the exercise of its legitimate jurisdiction, be thus turned over to another power, entirely disconnected with that which has the rightful jurisdiction of the case? This certainly would be something different from adopting the same mode of proceedings used in the state courts; it would be transferring its own proceedings, its process, its jurisdiction over persons, to another tribunal with which it has no connection-it would be taking from a party a right secured to him by the constitution of the United States.

There could be no such transfer of a prisoner and process from the court of one government to that of another. Nor can the benefit of the state insolvent law be extended to a prisoner, under federal process, in any other way. No one could, for a moment, entertain any such idea; and we only mention it to show, that proceedings to be had under the insolvent law of the state, are not such proceedings, upon either mesne or final process, as are adopted by the act of congress. Indeed, proceedings under the insolvent law of the state cannot be regarded as proceedings upon final process; process, either mesne or final, is not necessary to exist to entitle an applicant to the benefit of the act; though, when that benefit has been extended to him, it affects final process from the court of the state, in its operation upon him.

But supposing that our reasoning is thus far unsatisfactory, there is another argument which must set this matter at rest. In relation to the right of discharge from imprisonment, under final process from the courts of the United States, congress has left nothing to inference or implication. It has legislated directly upon the subject, has prescribed the cases in, and the mode by, which prisoners in execution may be discharged. The act referred to was passed in 1800, and is found in Gordon's Dig., Acts 2834, 2835, 2836, 2837.

By this act, the district judge, or commissioner appointed by him, is authorized to administer an oath, prescribed in the statute, to the prisoner, and to discharge him from imprisonment; but notice must be served on the opposite party, or his attorney, at least thirty days previous, if within one hundred miles, to show cause, on a given day, against the discharge. If any sufficient cause be shown, or appear from the examination, in the opinion of the judge or commissioner, the prisoner is not to be discharged.

The legislature having thus prescribed the mode and the terms upon which prisoners, under process from the United States courts, shall be discharged, upon what principle is it contended, that they are entitled to a discharge, without comcomplying with any of these terms-without pursuing, for a single step, that mode, and virtually by a tribunal different from that provided; and one which, in the nature of our governments, can have no control over, or power in, the matter? It cannot be contended that this act of 1800 is repealed by anything in the act of 1828. A repeal would not be inferred by this court from an act of that nature, and passed for the objects obviously aimed at by congress. Nor can it be supposed, that the legislature intended to confer upon the courts, the officer, or upon the prisoner, a power to dispense with its minute provisions, and to be governed, at pleasure, by the law of the state in preference. It is too obvious, that congress could never, in the act of 1828, have contemplated any such thing.

But even if this act, of 1800, were out of existence, we think there would be in the way of the defendant another obstacle, which he could not surmount.

Let it be admitted that the federal courts are required to adopt the mode of proceeding upon final process, prescribed by the state legislature, in all the latitude that can be claimed, still they are not required to adopt the acts of the state tribunal in a particular case. These acts are not made binding upon them, or upon the present plaintiffs. It is not so much the law of the state, that the defendant would avail himself of, as a particular adjudication of the state court. It is the discharge by the court, which he pleads. This act-this adjudication-this discharge is not reached-is not in any manner contemplated or affected by the act of 1828. It is the law of the state, as it regulates process and the proceedings thereon, that is adopted. The judgments and adjudications of the state courts stand in the same situation, and have neither more nor less effect in the courts of the union, than if this act had never been passed. And to make them binding upon the plaintiffs, and conclusive upon their rights, they must have been a party in the cause in which they were made-they must have been rightfully subject to the jurisdiction of the court: the state in legislating, and the court in adjudicating, must have possessed a power over them to bind them by their acts. Such was never the fact-they were citizens of another state, suing upon a contract made and to be performed in another state, and in no respect whatever bound by the laws of Ohio, or amenable to her tribunals. The act of the court of common pleas of Hamilton county, therefore, could affect none of their rights, nor deprive them of any legal remedies for the violation of those rights.

We think, then, upon general principles, and upon a review of the acts of congress supposed to bear upon the question, that an insolvent law of a state, providing a mode for the discharge of debtors from imprisonment, and discharges under such a law, do not confer upon them an exemption from any process used in the courts of any other state, or of the United States. If we have established this, the Harris's were liable to arrest and imprisonment upon a capias ad satisfaciendum, and not having been found, their bail, the present defendant, is liable to pay the judgment recovered against them.

Can the rights of the parties, as drawn in question in this case, be affected by any rule which it was competent for the circuit court to establish?

Rules of court can never vary the mode of proceeding prescribed by statute, or give a right of discharge in any other mode, or upon any other terms than those contained in it. They are the only mode adopted by the court in administering the laws of the land-they can never add to, diminish, or vary the provisions of a statute. A recognizance of bail is a contract, the form of which may be prescribed by the court: the nature, effect and obligation are regulated by fixed laws. The obligation of the contract can only be discharged by law, never by the mere virtue of a rule of practice established by court-certainly, not by a rule, made after the execution of the bond, or recognizance.

The tenth rule of the circuit court, for the district of Ohio, relied on by the defendant in this case, is in these words: 'But under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has, for such demand, been released from imprisonment.'

One in prison only can be released from imprisonment. One who has never been imprisoned on a debt, never can have been released from imprisonment for that debt, though he may have been absolved or released from liability to imprisonment on account of it. If, in this case, the plaintiffs had, in the state court, caused the Harris's to be arrested and imprisoned for their debt, and they had been discharged by the court, to whose jurisdiction the plaintiffs voluntarily submitted their rights, there would have been an adjudication by a competent tribunal, and the circuit court might well refuse to suffer a second arrest for the same debt. We think the rule susceptible of this construction, and thus literally understood, we do not object to it. But, if it was intended to be understood as broadly as the defendant claims, we must, with all due respect to the circuit court, deny its competency to establish such a rule.

If we are not mistaken, it has been attempted to derive the authority to establish such a rule, from the act of 1828. No such power is there given. The power given, is, so far to alter final process by rules, as to conform it to any changes made in the state courts. If the authority existed at all, it must be derived from some other act of congress, or from the power inherent in a court. We know of no such conferred or inherent power.

We think we have sufficiently shown before, that the state court or the state legislature could not confer on an individual, by its insolvent law, an exemption from arrest in the federal courts-that they had no power to release the Harris's from the operation of any process used in the circuit court. Could such a power be granted by the circuit court? Surely not.

Perhaps it may be said, that it is not because of any force in the discharge itself by the state court, that a defendant can claim an exemption from arrest in the federal court, but because the federal court, in its comity to the state court, sees fit to take it as a reason for discharging him from its own process. This answer is certainly claiming for the federal court a very high prerogative power. A court pronounces the law-it declares, not who shall be imprisoned and who released, in civil causes, according to its own will and pleasure, but who is pronounced by the law to be a prisoner, or to be liable to imprisonment-enforces the law in its operation upon an individual, not its own arbitrary pleasure. We know not this thing, called comity, between courts when our rights are involved and to be adjudicated.

In making a rule of practice-(and courts cannot create a rule of law)-the first inquiry is, what is the law; and what are the rights of persons conferred or secured by the law; and this being ascertained, the province of rules of court is to fix the mode and form of enforcing the law.

But what is claimed here for a rule of court? Not that it is a form and mode of administering the law as it previously stood; but an overruling power to suspend, to vary, to annul, the law. Before this rule was established, the defendant had become bail for the Harris's-had entered into a contract, the force, effect and operation of which were settled and established by the laws of the land-a capias ad satisfaciendum against them had been issued, and returned 'not found'-the legal effect of this return was also fixed by the law in existence, and rights were thereby acquired and then what is claimed? Nothing less, than that the court, by some high power, exercised in the shape of a rule, can provide a mode, before unknown, by which this bail should be discharged from liability-this contract vacated-these vested rights wrested from the present plaintiffs: we cannot argue against such an assumption, because the simple statement of it carries, to our mind, a stronger refutation than any argument.

The point insisted upon by the defendant in the court below, is, that according to the law of the state, if the Harris's had been arrested upon a capias ad satisfaciendum, issued from a state court, after their discharge under the insolvent law of the state, it would have been the duty of the sheriff, upon the production to him of their certificates of discharge, instantly to release them in other words, that they were not liable to arrest by the state officer; that as, by the act of the state legislature, this is the course of proceeding pointed out for the sheriff, so it must be the proper course to be adopted by the marshal upon a similar writ from the United States court, for the proceeding on final process must be the same in the United States, as used in the state court.

To this argument, we reply, as we have already said, that this would not be a proceeding upon the writ, but a forbearance to proceed upon, or execute it in any way, and that for the reason that it does not lie against this particular person-that it is not the 'same' process which could be used against him in the state courts. The matter, therefore, is not governed by that part of the law which requires 'the proceedings to be the same,' but by that part which requires 'writs of execution to be the same as used in the state courts.' To our mind, it is clearly sufficient, that a capias ad satisfaciendum is a writ used in the state courts, and if it be such a writ, the adjudication of a state tribunal cannot restrain the use of it by the federal court against a particular person-no such efficacy is given by the act of congress of 1828, to an adjudication by a state court. The Federal court and federal officer are neither authorized nor required to look into the records of the state court, to ascertain the extent of their power over a certain person. No such thing was contemplated by the act of congress.

The same answer to the argument of the defendant may be given, if as is claimed, this matter should be considered as more properly coming within that part of the act of congress, which relates to the proceedings upon the execution.

It will be recollected, too, that before any of these proceedings under the insolvent laws of Ohio, the circuit court was exercising its jurisdiction over all the parties; that the defendant had become special bail for the Harris's, and that judgment had been rendered against them before the discharge of either of them, and that one of them was not discharged until after a capias ad satisfaciendum had been issued against them, and returned not found. The recognizance was therefore forfeited, and the present defendant liable to an action before the discharge of Joseph Harris. Was it intended by the act of 1828, directly or indirectly, to give to a state court power to release a bail from his recognizance in the federal court? To release to him an action accrued against him? To discharge him from a contract after it was broken? Could the act of the state court divest the present plaintiffs of rights thus acquired under, and cognizable by, another jurisdiction?

Is there an inherent power in a state court-is there an authority conferred upon such a court, by a necessary construction of any act of congress, or by any rule of court, which it is competent for judges to establish, to take from the federal courts their prisoners, confined under their process, in a suit of which they not only have the right to jurisdiction, but in which they are actually exercising that jurisdiction, and set them at large? The principle insisted upon by our opponents goes the full extent; the courts of common pleas of Ohio can, upon this principle, extend the benefit of her insolvent laws to the actual prisoners of the United States courts, as well as to those who are liable to imprisonment under their process, by a proceeding commenced in the state courts, after the key has been actually turned upon the prisoners. If they can protect the one, they can by the same means release the other. It may be the law of the land; but we have not thus learned the nature of our federal and state institutions.

We have endeavoured to show,

1. That an insolvent law of a state, by which an individual is relieved from imprisonment, is merely a law affecting the remedy, the mere lex fori, and that it can have no force except in the courts of the government enacting it; that, therefore, upon general principles, it does not govern the courts of the United States.

2. That there is no act of congress that gives to such insolvent laws any force or effect in the courts of the union

3. That if the act of congress of May 1828 could be supposed to give any effect to the insolvent law of Ohio, yet it does not give any new effect to the adjudications of her courts; that it does not give to them the power of exempting any individual from any process used in the courts of the United States.

4. That it is not competent for the circuit courts of the United States, by any rule, to confer such a power upon the state courts, or in any way to alter the legal effect of the adjudications of a state court upon parties litigant in the circuit court; and especially, that the circuit court could not be any general rules, made after a contract-whether such contract be a recognizance of bail or any other contract-has been made and broken, alther the effect of that contract; or take away the right of the party to damages for that breach.

5. We think we have also shown in the course of our argument, and that it is manifest, that the present plaintiffs, being residents of another state, their contract with the Harris's having been made in another state-judgment having been recovered against them in the circuit court upon that contract-the present defendant having been special bail in the case-the state courts could not so interfere with the persons of any of the parties-with their contracts or any matter relating thereto, as directly or indirectly to affect any of their rights or liabilities in the circuit court.

We think that we have thus shown that the plea of the defendant to the plaintiff's action below, was insufficient, and that the demurrer thereto ought to have been sustained, and judgment rendered for the plaintiffs.

We are aware that there have been decisions in the circuit courts of the United States differing, in some respects, from the principles for which we have contended. Persons arrested on mesne process have sometimes been discharged on common bail, because they had been previously discharged under a state insolvent law. But even this has been refused, when the plaintiff was not at the time within the jurisdiction of the state, or where the contract sued on, was made without its jurisdiction. See Peters's Circuit Court Reports 484, and cases there cited.

But it is obvious, that in many cases, defendants are entitled to be discharged on common bail, who after judgment are not exempt from a capias ad satisfaciendum, and to all the effects of this writ. No attempt, however, so far as we are aware, has ever before been made to nullify a final process of the United States courts, by means of such an insolvent law of a state, or by means of any adjudication by a state tribunal under such law. Yet even if this were a question, as to a right of bail on mesne process, the plaintiffs being citizens of another state, the debt on which judgment was recovered having been contracted in that state, the case would come within the principle decided by Judge Washington, above referred to, of Read v. Chapman.

Mr Fox, for the defendant.

The defendant in error thinks this judgment ought to be sustained. But whether it shall be sustained or reversed, depends upon the question, whether a discharge from imprisonment, obtained in the state courts of Ohio, under her insolvent law, can be of any validity in the United States courts. If such a discharge is valid, the question is at an end. That it is valid in the Ohio courts is not questioned. I maintain it is valid in the federal courts.

By the act of congress of 19th May 1828, 9 Laws U.S. 219, it is provided, '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 thereon, shall be the same, except their style in each state respectively, as are now used in the courts of such state: 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.' By this statute, I understand, the same executions then in use in the state courts of Ohio, and the same modes of proceeding on those executions, were adopted for the federal court in Ohio. Such appears to have been the object of congress in passing that law, and such I believe has been the practice under it, in the seventh circuit, at least. And for the purpose of enabling the circuit courts to continue to use the same executions, and the same modes of proceeding thereon, power is given the courts to 'alter final process so as to conform the same to any change which may be adopted by the legislatures of the respective states for the state courts.' In Kentucky, where imprisonment for debt is abolished, I understand the federal courts do not pretend to issue a capias.

If this was the object of the law in question, this court has only to ascertain the mode of proceeding to execute writs of capias ad satisfaciendum in the courts of Ohio; for it is that mode of proceeding which is to govern this cause.

By the law of Ohio, passed 12th March 1831, 29 Ohio Statutes 329, entitled 'an act for the relief of insolvent debtors,' it will be found, section twenty-one, that on the applicant first applying to the commissioner of insolvents for the benefit of that act, he obtains a certificate which protects his person from arrest or imprisonment for any debt or demand in any civil action, at the suit of any person named in his schedule, until the second day of that term of the court of common pleas, to which the commissioner shall return copies, &c. By the twenty-second section, the sheriff, or any officer having custody of the defendant, is directed to discharge him out of custody on his producing his certificate; and the officer is directed 'to return a copy of such certificate, and also return that, in obedience to such certificate, he had discharged the person named therein.' Provision is made for the court of common pleas of the county to receive the returns of the proceedings before the commissioner of insolvents, and for the final granting or rejection of such application, and granting to the applicant a final certificate of discharge from arrest, on account of any and all debts mentioned in his schedule, for ever. And by the thirty-sixth section it is provided, in addition, that 'if any sheriff or other officer shall arrest any person having been so discharged by the court, such officer having knowledge of such discharge, and that the person so arrested has a certificate so granted to him by the court, or shall refuse to discharge the person so arrested out of his custody, as soon as such certificate shall be produced and shown to him, the officer so offending shall be deemed guilty of a trespass, and shall be liable to be prosecuted in the court of common pleas, in an action at the suit of the person injured,' &c.

Here, then, we have the whole law which governs this case. The mode of proceeding to execute a capias writ in Ohio, if the defendant has not been discharged from imprisonment under the insolvent law, is to arrest him. If the defendant has taken the benefit of that act, or has only applied for it and obtained a certificate of exemption from arrest until the sitting of the next court, the officer having the execution is bound to release him from arrest. If he knows of the defendant's having been previously discharged by the court from imprisonment on account of the debt named in the writ, he is considered as a trespasser in making the arrest. The return of the defendant's having taken the benefit of the act, is a good return to such an execution; and the reason why such a return is good, is because it is the mode of proceeding required by the statute.

And by the tenth rule of practice of the circuit court of Ohio, this practice or mode of proceeding is adopted by that court, as is admitted by the demurrer. This rule of proceeding was adopted at the December term 1831, and was intended to avoid all doubt as to the course which the marshal ought to pursue on mesne and final process.

There can be no question, I think, but the rule does adopt in effect the whole insolvent law of Ohio, so far as the same is connected with capias writs.

But there was no necessity, in fact, for the court to have adopted this rule after the passage of the act of 19th May 1828; for by the fair construction of that act, as has been already remarked, the proceedings of the state courts are expressly adopted, and by that adoption became the law of the federal courts in Ohio. And it will be found, that at the time the act of congress was passed, the proceedings upon execution, in the state of Ohio, were the same as in December 1831. 22 Ohio Laws 326.

It is said, the legislature intended by the term 'process,' a writ, or something analogous; and that it is contradistinguished from the proceedings to be had by virtue of a writ; and that mesne process is spoken of as distinct from the 'forms and modes of proceeding.' The distinction may exist, but affords no favourable argument for the plaintiffs. The act is to regulate the processes in the courts of the union. How can the process be regulated, unless by directing the mode of proceeding in executing it? The form of the process, whether mesne or final, is of no benefit to the plaintiffs, unless a mode is pointed out, by law or rule of court, of making that form available. To make a demand available against a debtor, a writ must be devised, and a mode of executing that writ adopted, or the debtor cannot be brought into court. For the purpose of ascertaining or fixing that form or mode of executing it, the first section of the act of 19th May 1828, was adopted. And the third section of the act adopts the same executions, and the proceedings thereupon, as were at the passing of the act used in the courts of the state. Of what beneficial use could the mere blank execution have been without a mode of executing it? The mere formal writ is of no validity without the mode of executing it. The form and the mode of executing it constitute its real value. And it is evident that congress intended to adopt the form and mode of proceeding also, as they have used the language of the act of 1789; which has been construed by this court to embrace the whole progress of an execution, from its formation to the time of its being fully executed. 10 Wheaton 1, 6 Cond. Rep. 8.

Congress, therefore, have adopted the state court executions, and also the mode of proceeding upon those executions, as they existed in May 1828. And if the sheriff could not arrest a person on a capias ad satisfaciendum issued from a state court, neither could the marshal on an execution from the federal court.

It is not contended on the part of the defendant in error, that the state legislature could pass insolvent laws to affect the process of the federal courts. But we do contend that congress may adopt any of the state laws as a rule for the government of the federal courts; and they have adopted the laws of Ohio in force at the passage of the act of 19th May 1828. The laws of Ohio, therefore, are the laws of congress by adoption. It is only on this view of the act of 1789, the federal courts have any known modes of practice or serving writs. The great object of the latter act was to assimilate the process and proceedings of the federal courts to the process and proceedings of the then state courts. The object of the act of 1828 was to assimilate the process and practice of the new states and the federal courts therein.

And is it not a matter known to us all, that the federal courts did not pretend to issue writs not issued in the state courts, and that they always made their rules of practice, &c. to conform to the rules and practice of the state courts? Did the federal courts pretend to sell land in Virginia, as they did in New York and Pennsylvania? They did not. But when Kentucky authorized land to be sold, the federal courts, under the authority given them so to alter the form of process, &c. by the act of 1789-1792, adopted the state writs of execution suitable to subject land for sale on judgments obtained in those courts.

The counsel appear to be labouring under a great mistake, in supposing they have shown the special bail bond forfeited absolutely by the return of the capias ad satisfaciendum not found. That the bond is so far forfeited by the return as to authorize an action to be brought on the bond, I admit; but still the bail has the right to surrender his principal at any time before the return day of the scire facias against the bail, and thus defeat the plaintiff's right of action. This right of surrender is absolute. And if the principal dies after the return of the capias ad satisfaciendum, and before the return of the scire facias against the bail, the bail is discharged by the statute law of Ohio. The bail is not fixed till the scire facias is served. Bank of Mount Pleasant v. Administrators of Pollock, 1 Ohio Rep. 35.

And at the time this bail bond was given, by special rule of the seventh circuit court, it was provided, that special bail might surrender the principal before the court at any time, before of after judgment, or to the marshal, provided such surrender be made before a return of a scire facias executed or a second scire facias nihil. It is not true, therefore, as suggested in plaintiff's argument, that the rule of court relied upon took away any vested right from plaintiff, or conferred any on defendants.

Such being the right of the principal to surrender, I take it to be a well settled principle, that wherever the law takes the principal out of the custody of his bail, either by the operation of an insolvent or bankrupt law, or otherwise, so as to prevent his surrendering, it is tantamount to a surrender. The law having made it unlawful to arrest, excuses the surrender. 14 East 593; 1 vol. Law Library, July 1833, p. 124; 1 M'Cord's Rep. 373; 18 Johns. Rep. 335; 5 Binney 338; 9 Serg. and Rawle 24.

This question is referred to for the purpose of showing the plaintiff's counsel are mistaken in supposing that the court below, by adopting the rules of December 1831, undertook to divest them of any vested right of action in the bail bond by the return of the ca. sa.; because, as before remarked, the tenth rule of the court, then existing, gave the right to surrender at any time before the scire facias against the bail returned executed.

Having, as is supposed, established the proposition that the act of congress of May 1828 has adopted, the state court executions, and the modes of proceeding thereon, as used in 1828, I might here leave this branch of the case. But should the court differ with me in this view, it is contended, that the rules of practice adopted by the court below, at December term 1831, fully shield the defendant from all responsibility. The tenth rule, recited in the plea, refers to the insolvent law of Ohio particularly, and adopts it altogether. Under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has for such demand been released from imprisonment. Is not this a full and complete recognition of the validity of the insolvent law? Does it not recognise the effect of that law, as an excuse to the bail for not surrendering? By the fifteenth rule, bail may surrender their principal at any time before judgment; that is, judgment against the bail. Now, as before remarked, the principal having become protected by the law from arrest for this debt, his bail could not legally surrender him, and hence he is excused.

But it is said, the court has no power to adopt rules which take from a citizen of another state the right to imprison his debtor. This position cannot be sustained. This court have decided that the states have the right to abolish imprisonment altogether. 12 Wheat. 378, 381; 4 Wheat. 200.

The United States courts have the right to suit their process to such legislation: they have the power, therefore, to abolish by rule of court the use of the capias writ. If they can abolish it as to all the citizens of Ohio, cannot they do it in favour of that small but unfortunate class of debtors, whose necessities compel them to petition for that liberty which ought to be the right of every American?

But it is said, there is provision made by the act of congress of 1800, by which an insolvent may be discharged; and hence it is urged that no other mode than the one pointed out in that act could be resorted to for the purpose of releasing him from imprisonment. I contend that the act of the 19th of May 1828, so far as it conflicts with the act of 1800, repeals the latter act. But whether this is so or not, the act of 1800 is not an act for the general relief of insolvents, but is only intended to release an insolvent debtor from imprisonment on the particular debt on which he is charged on execution, while the insolvent law relieves the debtor from arrest in any debt he is owing at the time of his application. The object of the two laws, therefore, is widely different; and congress, by adopting the state laws, and the circuit court, by adopting those laws, may prevent the defendant from being arrested; and I contend that the act of 1828, and the rules aforesaid, have virtually abolished imprisonment of insolvent debtors.

But it is said, that in attempting to relieve himself from responsibility in the present case, the defendant is not availing himself of the state law, but of a particular adjudication of a state court. But suppose the law of Ohio had declared that no man should be arrested for debt; suppose the legislature had extended to defendants, Harris's, an exemption from imprisonment by a legislative act, as was done in the case of Mason v. Haile, 12 Wheat. 370, 6 Cond. Rep. 535; would it be contended that in that case no exemption from imprisonment could be claimed?

Again, will it be contended that no rights or exemption can be acquired under judicial acts of the state courts? Surely not. An application for the benefit of the insolvent act, although a judicial proceeding, is not therefore void. All creditors named in the application are parties to it, and are bound by the judgment rendered. They may appear and object to the applicant's discharge.

It is said, that if the Harris's, after being arrested, were entitled to be immediately discharged, this would be annulling the execution, not proceeding to execute it. But might not the same remark be made in all cases? Would it be considered as annulling an execution in the state courts, by the sheriff discharging a defendant from arrest on his producing the certificate of his discharge? The sheriff, in proceeding to execute a capias ad satisfaciendum, would not be considered as annulling the execution under such circumstances. And certainly, if congress, by the act referred to, or by the rules of its own courts, have adopted the state practice, the marshal performs his duty by returning the discharge of the defendant by the insolvent debtor proceeding, in the same manner as the sheriff is discharging his duty on the state court execution by a similar return.

Nor is it true that a capias writ can only be obeyed by an actual arrest. If the law forbids the arrest, or if the defendant dies, or if he is imprisoned on a criminal charge, so that the officer cannot legally arrest, he may return the facts, and by so doing he obeys in a legal sense the command of the writ. It does not necessarily follow that the writ unlawfully issued, merely because the defendant is privileged from being arrested. A writ is lawful when issued against a suitor attending court; but the suitor would be privileged from arrest, and if he claimed his privilege by suing out a habeas corpus, he would be discharged. So of a member of congress, a judge, and all that class of persons whom the policy of the law has seen fit to exempt from arrest. The insolvent laws of the state are, in principle, nothing more than granting like privileges for arrest to an unfortunate class of honourable men; and the period during which that privilege shall continue depends upon the legislature.

Again, it is said the court could not adopt any rule, the effect of which would be to discharge the bail from liability to vacate their contract, and wrest their vested rights from the plaintiffs.

Before we discuss the proposition as to whether the court below did by their rule vacate the contract of the plaintiffs, we had better ascertain what that contract was. The contract is found in the declaration in these words: the defendant, at the time mentioned, 'acknowledged himself special bail for the said Joseph Harris and Cornelius V. Harris in the sum of 4000 dollars, in the cause or suit in which judgment was rendered as aforesaid; that is to say, that they, the said Joseph Harris and Cornelius V. Harris, should pay and satisfy the said judgment, or render themselves into the custody of the marshal.'

Now, it is asked, what contract does this present in and of itself? Without the aid of the rules of court, or the statute of Ohio, it is perfectly senseless. What is meant by special bail, the rules of court tell; but without those rules, the contract is senseless jargon. If, then, the contract depends upon the rules of court; if they gave it life originally; if they preserved its existence: the plaintiffs are entitled to what those rules give them, and to nothing more. When they took the recognizance, it was with a knowledge that those rules were under the entire control of the court; that they could be moulded by the court; that the state legislature could abolish imprisonment for debt, and the writ of capias also; and that the court were authorized to alter their writs to suit the state legislation. The plaintiffs took their recognizance, subject to all those contingencies. 12 Wheaton 370.

No contract, therefore, has been violated, nor have there been any vested rights wrested from the plaintiffs. To make the worst possible case, all that can be said, is, that the plaintiffs, by the adoption of the rule in question, were deprived of one remedy which they had when the bail was given, viz. the imprisoning the defendants. But as it is admitted that this only affected the remedy, the plaintiffs in error cannot complain.

The counsel appear not to view the contract of bail correctly, when they attempt to liken it to other contracts. It is, in fact, nothing but a part of the process of the court. It is a mere substituting of a keeper of the defendant's own choice to one appointed by law. For the bail is said to be the keeper of the principal: he can take him wherever he pleases, and his obligation is to keep him so that the plaintiff may take him at the proper time. And the moment the creditor loses his right to take or hold the principal, the bail is discharged; for the latter cannot keep where the former cannot take the body. It is no question, therefore, about interfering with vested rights. The simple inquiry is, had the plaintiffs a right to take the bodies after they had taken the benefit of the insolvent act? If they had, the judgment is erroneous: if they had not, it is correct. 14 East 598. Law Library, title Bail.

Mr Justice STORY delivered the opinion of the Court.

This is a writ of error to the judgment of the circuit court for the district of Ohio.

The material facts are these. In June 1830, the plaintiffs in error (who are citizens of New York) brought an action of assumpsit in the circuit court of Ohio, against one Joseph Harris and Cornelius V. Harris, and at the December term of the court, recovered judgment for 2818 dollars and 86 cents, and costs. In this action the defendant in error became special bail by recognizance, viz., that the Harris's should pay and satisfy the judgment recovered against them, or render themselves into the custody of the marshal of the district of Ohio. In October 1831, a writ of capias ad satisfaciendum was issued upon the same judgment, directed to the marshal; who, at the December term 1831, returned that the Harris's were not to be found. At the same term the circuit court adopted the following rule, 'that if a defendant, upon a capias, does not give sufficient appearance bail, he shall be committed to prison, to remain until discharged by due course of law. But under neither mesne nor final process, shall any individual be kept imprisoned, who, under the insolvent law of the state, has for such demand been released from inprisonment.' In February 1831, Cornelius V. Harris was duly discharged from imprisonment for all his debts, under the insolvent law of Ohio, passed in 1831; and in February 1832, Joseph Harris was in like manner discharged. In December 1832, the plaintiffs in error commenced the present action of debt, upon the recognizance of bail, against the defendant in error; stating, in the declaration, the original judgment, the defendant becoming special bail, and the return of the execution 'Not found.' The defendant, among other pleas, pleaded the discharge of the Harris's under the insolvent law of Ohio of 1831, and the rule of the circuit court, above mentioned, in bar of the action. The plaintiffs demurred to the plea, and, upon joinder in demurrer, the circuit court gave judgment for the defendant; and the present writ of error is brought to revise that judgment.

The question now before this court is, whether the plea contains a substantial defence to the action of debt brought upon the recognizance of special bail. In order to clear the case of embarrassment from collateral matters, it may be proper to state, that the recognizance of special bail being a part of the proceedings on a suit, and subject to the regulation of the court, the nature, extent and limitations of the responsibility created thereby, are to be decided, not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court and the principles of law applicable thereto. Whatever in the sense of those rules and principles will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument, as much as if it were expressly stated. Now, by the rules of the circuit court of Ohio, adopted as early as January term 1808, the liability of special bail was provided for and limited; and it was declared, that special bail may surrender their principal at any time before or after judgment against the principal; provided such surrender shall be before a return of a scire facias executed, or a second scire facias nihil, against the bail. And this in fact constituted a part of the law of Ohio at the time when the present recognizance was given; for in the Revised Laws of 1823, 1824, (22d vol. of Ohio Laws 58) it is enacted that, subsequent to the return of the capias ad respondendum, the defendant may render himself or be rendered in discharge of his bail, either before or after judgment; provided such render be made at or before the appearance day of the first scire facias against the bail returned scire feci, or of the second scire facias returned nihil, or of the capias ad respondendum or summons in an action of debt against the bail or his recognizance returned served; and not after. This act was in force at the time of the passage of the act of congress of the 19th of May 1828, ch. 68, and must, therefore, be deemed as a part of the 'modes of proceeding' in suits, to have been adopted by it. So that the surrender of the principal by the special bail within the time thus prescribed, is not a mere matter of favour of the court, but is strictly a matter of legal right.

And this constitutes an answer to that part of the argument at the bar, founded upon the notion, that by the return of the capias ad satisfaciendum, the plaintiffs had acquired a fixed and absolute right against the bail; not to be affected by any rules of the court. So far from the right being absolute, it was vested sub modo only, and liable to be defeated in the events prescribed by the prior rules of the court, and the statute of Ohio above referred to. It is true, that it has been said that by a return of non est inventus on a capias ad satisfaciendum, the bail are fixed; but this language is not strictly accurate; even in courts acting professedly under the common law, and independently of statute. Lord Ellenborough, in Mannin v. Partridge, 14 East's Rep. 599, remarked that 'bail were to some purposes said to be fixed by the return of non est inventus upon the capias ad satisfaciendum; but if they have, by the indulgence of the court, time to render the principal until the appearance day of the last scire facias against them, and which they have the capacity of using, they cannot be considered as completely and definitively fixed till that period.' And so much are the proceedings against bail deemed a matter subject to the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered in such cases of indulgence, as well as in cases of strict right. But there is this distinction: that where the bail were entitled to be discharged, ex debito justitiae, they may not only apply for an exoneretur by way of summary proceeding; but they may plead the matter as a bar to a suit in their defence. But where the discharge is matter of indulgence only, the application is to the discretion of the court, and an exoneretur cannot be insisted on except by way of motion.

And this leads us to the remark, that where the party is, by the practice of the court, entitled to an exoneretur without a positive surrender of the principal, according to the terms of the recognizance, he is, a fortiori, entitled to insist on it by way of defence, where he is entitled, ex debito justitiae, to surrender the principal. Now, the doctrine is clearly established, that where the principal would be entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exoneretur, without any surrender. This was decided in Mannin v. Partridge, 14 East 599; Boggs v. Teackle, 5 Binn. Rep. 332; and Olcott v. Lilly, 4 Johns. Rep. 407. And, a fortiori, this doctrine must apply where the law prohibits the party from being imprisoned at all; or where, by the positive operation of law, a surrender is prevented. So that there can be no doubt, that the present plea is a good bar to the suit, notwithstanding there has been no surrender; if by law the principal could not, upon such surrender, have been imprisoned at all.

This constitutes the turning point of the case, and to the consideration of it we shall now proceed. In the first place, there is no doubt, that the legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released, or protected from arrest or imprisonment of their persons on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract; and a discharge of the person of the party from imprisonment, does not impair the obligation of the contract, but leaves it in full force against his property and effects. This was clearly settled by this court in the cases of Sturges v. Crowninshield, 4 Wheat. Rep. 200; and Mason v. Haile, 12 Wheat. Rep. 370. In the next place, it is equally clear, that such state laws have no operation, proprio vigore, upon the process or proceedings in the courts of the United States; for the reasons so forcibly stated by Mr Justice Johnson, in delivering the final opinion of the court in Ogden v. Saunders, 12 Wheat. Rep. 213; and by Mr Chief Justice Marshall in delivering the opinion of the court in Wayman v. Southard, 10 Wheat. Rep. 1; and by Mr Justice Thompson in delivering the like opinion in the Bank of the United States v. Halstead, 10 Wheat. Rep. 51.

State laws cannot control the exercise of the powers of the national government, or in any manner limit or affect the operation of the process or proceedings in the national courts. The whole efficacy of such laws in the courts of the United States, depends upon the enactments of congress. So far as they are adopted by congress they are obligatory. Beyond this, they have no controlling influence. Congress may adopt such state laws directly by a substantive enactment, or they may confide the authority to adopt them to the courts of the United States. Examples of both sorts exist in the national legislation. The process act of 1789, ch. 21, expressly adopted the forms of writs and modes of process of the state courts, in suits at common law. The act of 1792, ch. 36, permanently continued the forms of writs, executions and other process, and the forms and modes of proceeding in suits at common law, then in use in the courts of the United States, under the process act of 1789; but with this remarkable difference, that they were subject to such alterations and additions as the said courts respectively should, in their discretion, deem expedient: or to such regulations as the supreme court of the United States should think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same. The constitutional validity and extent of the power thus given to the courts of the United States, to make alterations and additions in the process, as well as in the modes of proceeding in suits, was fully considered by this court in the cases of Wayman v. Southard, 10 Wheat. Rep. 1; and the Bank of the United States v. Halstead, 10 Wheat. Rep. 51. It was there held, that this delegation of power by congress was perfectly constitutional; that the power to alter and add to the process and modes of proceeding in a suit, embraced the whole progress of such suit, and every transaction in it from its commencement to its termination, and until the judgment should be satisfied; and that it authorized the courts to prescribe and regulate the conduct of the officer in the execution of final process, in giving effect to its judgment. And it was emphatically laid down, that 'a general superintendence over this subject seems to be properly within the judicial province, and has always been so considered;' and that 'this provision enables the courts of the union to make such improvements in its forms and modes of proceeding as experience may suggest; and especially to adopt such state laws on this subject, as might vary to advantage the forms and modes of proceeding, which prevailed in September 1789.' The result of this doctrine, as practically expounded or applied in the case of the Bank of the United States v. Halstead, is, that the courts may, by their rules, not only alter the forms, but the effect and operation of the process, whether mesne or final, and the modes of proceeding under it; so that it may reach property not liable, in 1789, by the state laws to be taken in execution, or may exempt property, which was not then exempted, but has been exempted by subsequent state laws.

If, therefore, the present case stood upon the mere ground of the authority conferred on the courts of the United States by the acts of 1789 and 1792, there would seem to be no solid objection to the authority by the circuit court of Ohio to make the rule referred to in the pleadings. It is no more than a regulation of the modes of proceeding in a suit, in order to conform to the state law of Ohio, passed in 1831, for the relief of insolvent debtors. A regulation of the proceedings upon bail bonds and recognizances, and prescribing the conduct of the marshal in matters touching the same; seems to be as completely within the scope of the authority, as any which could be selected.

But in fact the present case does not depend upon the provisions of the acts of 1789 or 1792; but it is directly within and governed by the process act of the 19th of May 1828, ch. 68. That act in the first section declares, that the forms of mesne process, and the forms and modes of proceeding in suits at common law in the courts of the United States, held in states admitted into the union since 1789, (as the state of Ohio has been) shall be the same in each of the said states, respectively, as were then used in the highest court of original and general jurisdiction in the same; subject 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 shall think proper from time to time, by rules, to prescribe to any circuit or district court concerning the same. The third section declares, that writs of execution and other final process issued on judgments and decrees rendered in any courts of the United States, and 'the proceedings thereupon,' shall be the same in each state, respectively, as are now used in the courts of such state, &c. &c. 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 such courts, as to conform the same to any change which may be adopted by the legislature of the respective state, for the state courts.

This act was made after the decisions in Wayman v. Southard, and the Bank of the United States v. Halstead, 10 Wheat. 1 and 51, and was manifestly intended to confirm the construction given in those cases to the acts of 1789 and 1792, and to continue the like powers in the courts to alter and add to the processes whether mesne or final, and to regulate the modes of proceedings in suits and upon processes, as had been held to exist under those acts. The language employed seems to have been designed to put at rest all future doubts upon the subject. But the material consideration now to be taken notice of, is that the act of 1828 expressly adopts the mesne processes and modes of proceeding in suits at common law, then existing in the highest state courts 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. Now, the words 'the proceedings on the writs of execution and other final process,' must, from their very import, be construed to include all the laws which regulate the rights, duties and conduct of officers in the service of such process, according to its exigency, upon the person or property of the execution debtor, and also all the exemptions from arrest or imprisonment under such process created by those laws.

We are then led to the inquiry, what were the laws of Ohio in regard to insolvent debtors at the time of the passage of the act of 1828. By the insolvent act of Ohio, of the 23d of February 1824 (Laws of Ohio, Revision of 1824, vol. 22, sect. 8, 9, p. 327, 328), which continued in force until it was repealed and superseded by the insolvent act of 1831, it is provided, that the certificate of the commissioner of insolvents, duly obtained, shall entitle the insolvent, if in custody upon mesne or final process in any civil action, to an immediate discharge therefrom, upon his complying with the requisites of the act. And it is further provided, that the final certificate of the court of common pleas, duly obtained, shall protect the insolvent for ever after from imprisonment for any suit or cause of action, debt or demand mentioned in the schedule given in under the insolvent proceedings; and a penalty is also inflicted upon any sheriff or other officer, who should knowingly or wilfully arrest any person contrary to this provision. The act of 1831 (Laws of Ohio, Revision of 1831, vol. 29, sec. 21, 36, p. 333, 336) contains a similar provision, protecting the insolvent under like circumstances from imprisonment, and making the sheriff or other officer, who shall arrest him contrary to the act, liable to an action of trespass. Now, the repeal of the act of 1824, by the act of 1831, could have no legal effect to change the existing forms of mesne or final process, or the modes of proceeding thereon in the courts of the United States, as adopted by congress, or to vary the powers of the same courts in relation thereto; but the same remained in full force, as if no such repeal had taken place. The rule of the circuit court is in perfect coincidence with the state laws existing in 1828; and if it were not, the circuit court had authority, by the very provisions of the act of 1828, to make such a rule, as a regulation of the proceedings upon final process, so as to conform the same to those of the state laws on the same subject.

Upon these grounds, without going into a more elaborate review of the principles applicable to the case, we are of opinion that the judgment of the circuit court was right; and that it ought to be affirmed with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel; on consideration whereof, it is ordered and adjudged by this court, that this judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.