author: Mr. Justice DANIEL

text:
    James Williams, Plaintiff in error, v. The United States, Defendants in error.
    The act of Congress passed January 31st, 1823, prohibiting, the advance of public money in any. case whatsoever to the disbursing officers of government, except under the special direction of the President, does not require the personal and ministerial performance of. this duty, to be exercised in every instance by the President under his own hand.
    Such a practice, if it were possible, would absorb the duties of the various departments' of' the government in the personal 'action of the one chief executive officer, and be fraught with mischief to the public service.
    The President’s dutyj in general, -requires his superintendence of the. adminis-' tration, yet he cannot be .required to become the administrative officer of every department and bureau, br to perform in person the numerous details incident to services, which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform.
    It is legal evidence that the President specially authorized and directed, in -writing, the secretary of the Treasury to make such advances, and that such paper was destroyed, when -the Treasury building was burned. It is sufficient if the witness states his belief that it was so destroyed. The case in • ' 9 Wheat. 486, examined and confirmed.
    The dockets and records of a court, showing that money had been, received-by the marshal or.his deputies, under executions, are good'evidence-in a suit-against his securities. The acts of the court hiust, in the first instance, he-presumed to be regular, and in confprmity with settled usage; and are conclusive until reversed by a competent authority..
    This case came up by writ of erro'r from the Circuit Court of - the United States for. the District of Columbia,-Holden in.and'.for the county of Washington.
    The facts were these': ■
    On the 4th of February, 1831,- Henry Ashton was appointed marshal of the District of Columbia, and on the 7th executed-a bond for. the faithful performance of the duties,-by himself and' his deputies. There were several securities, among whom was James Williams, the plaintiff in error. He remained in office until the 28th of'February, 1834.
    In June, 1835, the United States brought suit upon the bond, to which there was a plea of performance. The replication assigned five breaches.' 1. That he had neglected to return executions issued for fines and costs. .3. That Iré had discharged persons committed to his custody under execution. 3. That he had n'ót accounted’ for finés paid. 4. That he had hot accounted for money advanced to him by the¡ secretary of the Treasury under the special direction of the President of .the United States; and, 5. That he. had discharged persons from'prison without authority of. law. To this replication, there were a rejoinder and issues, and in 1839 the case was'tried. The verdict of the jury was for the United States. The two bills of exception taken at the trial are set forth in the opinion of the court, and need not be repeated.

      Bradley, for the plaintiff in error..

      Legaré, .attorney-general, for the United States.

      Bradley made the following points:
    1. The President of the United States holds a relation-toward the secretary of the Treasury different from.that which he holds toward the head of any other department.

      2. No money can be drawn from the Treasury but in the man- ' nej and upon the vouchers designated by law.
    . 3. Where a special discretion is given by positive law to the President to direct money-appropriated by law to be paid out of the Treasury, it must be exercised by him alone, and cannot be delegated.
    4. Where money is by law to be drawn from the Treasury by a special authority,, different from the usual manner, that special authority must bé deposited in-the Treasury Department,, and form part in the settlement of the Treasury account.
    5. And: The Treasury transcript is not evidence per se to charge a surety with money so paid to his principal; but must be accompanied by a copy of the voucher on which such payment was made.
    To support them, he argued that the United States were bound to show the exercise .of the special'power vested in the President. The'-Treasury “transcript is not conclusive evidence that the money was drawn from the Treasury legally. 5 Peters, 292; 8 Peters, 375. Evidence of the contents of the order said to-' have been given by the President could not be received, as there was no proof of its loss. 2 Stark. Ev. 350. Court say, in 1 Peters, .596, that proof must be given of its loss, and that it was searched for. If the money was not 'placed with the marshal according to law, the United States cannot-recover.

      As to the.second exception:
    . The declarations of the marshal do not’ bind the sureties; hot evidence unless-in the regular course of his business,.and he had nothing to do with the docket. If an endorsement be made on the writ, it is his official act, but not otherwise. 3 Bro. and' Bing. 132. .
    The act- of Maryland, February, 1777, c. 13, sec. 2, provides for the recovery of common law fines by fieri facias or ca. sa., but the act of 1797, c. 74, directs capias ad satisfaciendum to be issued for all fines. Here were fi. fa. for common law fines, which proceeding' was contrary to law. The act of 1794, c. 54, provides remedies against the sheriff,- and, of course, the marshal; judgment should have been entered up against him. No-action on the bond until a-judicial sentence of default 18 Johns. 391.

      Legaré, for the United States.
    If the President could not delegate this power, he could do little' else but- look at marshal’s accounts. But this court have recognised the authority to delegate. Wilcox v. Jackson, 13 Peters; 10 Peters, 291; 1 Peters, 296.
    As to the evidence:-The court has allowed reasonable evidence to be given. 7 Peters, 99; 12 Peters, 3.
    As to the Maryland practice:
    The general r.ule is, that an admission of a deputy does not bind surety; but see 10 Barn. and Cres. 17, 317. In this case the party is dead, and it is his declaration against his own interest. But the acts of parties, part of the res gesta, are binding. 8 Wheat. 326; 3 Wash. C. C. R. 369. The confession of an under-sheriff evidence against the sheriff. 1 Lord Raym. 190. At common law., fi.fa. could issue for fines. 3 Coke, 12, b; 2 Just. 19. The act of Maryland was merely directory. Inventory of sheriff evidence between, other parties. Buller’s N. P. 249 ; 2 Campb. 379.

      Bradley, in conclusion:
    The act of 1809, c. 199, gives the President power to transfer appropriations; but no one supposes, he can delegate this power to the secretary. In Kendall’s case, 12 Peters, the court draw a distinction between, general and special powers. General'rule is, that discretionary powers cannot be delegated.
   Mr. Justice DANIEL

delivered the opinion of the court.'

This cause comes up on a writ of error to the Circuit Court - of the United States for the District of Columbia. The defendants in-error instituted an action of debt in the Circuit Court against the plaintiff in error, as surety for. Henry Ashton, deceased, late marshal of the District of Columbia, in a bond executed by Ashton, conditioned for, the faithful performance of the duties of his office.' On oyer of the bond, the defendant pleaded generally conditions performed by the marshal and his deputies; after this plea várious breaches of the condition of,the bond were specially, assigned, charging the late marshal with failing to .account for moneys advanced to him by the secretary of the Treasury, under special direction of the President of the United States ; with not having accounted for and paid over moneys received by him and his deputies on executions, and with having failed to collect under executions which came to his hands, moneys that .he ought to have collected from persons who were solvent. Issues, wére taken to the country upon the several .breaches thus assigned,,and the jury empannelled to try those issues, returned as their verdict, in substance, that the said Henry Ashton, by himSélf and his deputies, did not.well and faithfully perform and fulfil all the duties of. his Office Of marshal of the district, in. pursuance'of the acts of Congress in such cases made and provided; and they found the'sum of $8279 25'cents, with interest thereon from the 24th'day'of November, 1836, to be really and justly due-to the United States on the marshal’s bond. . Upon this verdict the court gave a judgment for $20,000, the penalty of the bond, but to be discharged' by the1 amount assessed by the jury, together with the costs Of suit. .

At the trial, and before the jurors. withdrew from the bar, the defendant below tendered two bills of. exceptions to the, ruling of the court in the cause, which bills of exceptions are as follow:

• Defendant’s first bill of exceptions. — On the trial of this cause, the plaintiffs, to support the issues joined, on their part, offered to give in evidence the accounts settled between the United States and Henry Ashton, late marshal of the District of Columbia, upon whose off pial bond this action is brought against, the defendant, as one of the sureties therein named. By these accounts it appears, that abalance appears due from the.said Ashton to the United States, of $6455-16. That in making up the said balance, various sums of money were, from time to time,- during his continuance in Office, advanced and paid to him, as marshal as aforesaid, out' of the Treasury of the United States, by order of the secretary of the Treasury, before the said Ashton, as marshal, had rendered accounts or vouchers, showing, that he had himself advanped and paid the same, or any part thereof, to those entitled by law to receive the same; and while balances for moneys pre-. . viously advanced to him existed on the books of the department, and before it had ■ been shown that the -same had been properly applied and expended, and when the said sum- of $6455 16, was riot-in fact due from the United States for any services rendered or money expended.

And the plaintiffs offered in evidence the statements of Asbury ■ Dickins, formerly - a clerk in .the Treasury Department, and of Me'Clintock Young, now chief clerk of said department; which, reserving all objections- to the competency of such testimony, it was agreed should be received as if said parties had béen sworn . in the ease, and had testified in accordance with said statements. To the admissibility of all which testimony the defendant objects, but the court overruled the objection, and the defendant, by his counsel, excepts; and the said evidence being thus admitted to go to the jury, the counsel for the plaintiffs prayed the court to instruct the jury, that upon this evidence the plaintiff was entitled to recover the said sum of $6445 16, against the defendant; and the court overruling the objection of the defendant thereto, gave said instruction, to which the defendant excepts; and the court, in pursuance of the statute, sign and seal this bill of exceptions to all the matters so ruled, as aforesaid, this 11th day of January, • 1840. W. Cranch, [l. s.]

B. Thrüston, [e. s.]

James S. Morsell. [l. s.J

Second bill of exceptions. — In the further trial of this cause, the plaintiffs produced the dockets and records of this court, showing that in á numb'er of cases where judgment had been entered against defendants for common law fines, forfeitures, and costs, adjudged against the said defendants, and the said defendants had paid the said amounts, so respectively adjudged against them, to the marshal, and entries were thereupon made by the said marshal or his deputy, on the dockets of said courts, “ money made and ready,” “money paid,” and that the amounts so received by said marshal amounted to the sum of

. And the plaintiffs further proved by the dockets, records, &c.,. as aforesaid, that certain sums of money were adjudged by the court aforesaid, against- certain defendants, for common law fines, forfetures, and costs, upon which writs of ca. sa. were issued, which writs were returned by the marshal, “satisfied marshal,” and showed that the said sums so received by said Ashton, amounted to

A'nd the defendant objected to the said several amounts as being recoverable.-iu this action against the said defendant, and prayed the court to instruct the jury that he was not liable therefor; but the court refused so to instruct the jury, and instructed them that the defendant was.liable for the amounts so received by said Ashton: _.

To which refusal the defendant, by his counsel, excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly,-this 11th dav of January, 1S40.,

’ W1 Cranch, [l. s.]

• James S. Morseu,. [n. s.]

The statements of'Asbury Dickins and McClintock Young, referred to in the first bill of exceptions, áre in the following words:

Washington* January 11, 1840.

Dear Sir : — In compliance with your request, I now state, as. I mentioned to you verbally, some time ago, that it is within my recollection that soon after the passing of the “act {of the 31st of January, 1823,) concerning the disbursement of public money,” the secretary of the Treasury was specially authorized and directed in writing, by the President of the United States, to make such advances of money, from time to time, to various classes of the disbursing officers of the government, and among others to the marshals of the United States, as should be found necesary, to the faithful and prompt discharge of their respective duties, and to the fulfilment of the public engagements. The papers containing these directions of the President were, as I believe, destroyed in the late burning of the Treasury building.

I am, dear sir, sincerely yours,

Asbury Dickins.

To Francis S. Key, Esq., fyc. fyc. fyc

Dear Sir : — In reply to your inquiry, I have to state, that all advances to marshals U. S. are made by the secretary of the Treasury, and not by. direction of the accounting officers.

Yours'resp’y,

llth January, 1840. McG. Young.

F. S. Key, Esq.

The .questions presented, for consideration here upon the aforegoing bills of exceptions, and the proofs .to which they refer are these: 1. Whether the.surtís of money placed in the hands of the late marshal by the secretary of the Treasury, and "forming a part of the aggregate found by the verdict of the, jury, were so advanced in conformity with the law, as to create a liability on the part of the sureties of the marshal for their proper application by that officer ? and

2. Whether the several sunjs admitted to have been paid to the marshal upon executions for fines, forfeitures, and costs adjudged against’various defendants, and as to a part of which sums the marshal or his deputy had made upon “ the dockets of the court/i the following entries, “ money, made and ready” and “ money paid;” and as to other portions of which levied on exe- ■ cutions for fines and forfeitures, the marshal had made on the executions themselves this entry, “ satisfied marshal,” were so proved to have been received by the marshal in virtue of his office, as to rénder his sureties responsible for these latter sums ?

Under the first of these inquiries, it is contended for the plaintiff in érror, that, the act of Congress of- January 31,1823, expressly prohibits the advancing of public money in any case whatsoever,, except under the special direction of the President, in the disbursing officers of the government, for the faithful and prompt discharge of their public duties, and to the fulfilment of the public faith : and it is insisted upon as the correct, interpretation of this statute, that the power thereby vested to make advances for the public service, is not one appertaining to the office of President, but is an authority strictly personal and ministerial, to be exercised in every instance only by the individual .himself, by his own hand, and never in any respect to be delegated. Such an interpretation of the law this court can by no means admit. While it has been doubtless the object of Congress to secure economy and regularity in public disbursements, and for that end to limit, as far as was proper, the discretion of subordinate agents over the public money, it never can be- reasonable to ascribe to them a. conduct which must defeat every beneficial end they could have' in view, and render the government an absolutely impracticable machine. The President’s duty in general requires his superintendence of the administration; yet this duty cannot require of him to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services, which, nevertheless, he is,in a correct sense,-by the Constitution and laws required and expected-to perform. This cannot be, 1st, Because, if it were practicable, it would be to absorb the duties and responsibilities of the various. departments of the government in the-personal action of the one chief executive officer. It cannot be, for the stronger reason, that it. is impracticable — nay, impossible.' The position here assumed may be illustrated in the single example of a • marshal. This officer has various, duties to perform, which, though well understood, yet all of them, as. to duration and extent, contingent, and varying, of course, as to the quantum of expense‘attending their performance. He is to summon and pay grand and petit juries and witnesses; to provide stationery and fuel -for the court; guards for the transportation and safe-keeping of prisoners; to pay the per diem allowed to clerks and attorneys, and other incidental charges. If ,the argument-for the plaintiff in' error be correct, it would be indispensable either that the-President should ascertain (and that too -before their performance, or, in other words, their existence) these indefinable services, and,- when so ascertained, that he, under his own hand, and none other, .should give special written instructions for the- payment of each one of• them; or that the marshal'should, upon credit, or from his .own private resources, obtain the performance - of these services, and await his reimbursement upon accounts -to be subsequently allowed and certified by the couit. Such consequences, so fraught with mischief to the public service, utterly forbid the construction of the law contended for by the plaintiff in error. If it be asked, How then shall the provisions and the purposes of the statute be fulfilled? the answer is obvious, and satisfies at opee the meaning, of the law and the public exigencies. Average estimates may be formed of the expenses incident to the courts, and instructions may be given by the President to the secretary of the Treásury to make advances from time to time, either upon the basis of those estimates, or upon statements or requisitions made by the marshals themselves, showing the necessity of advances to meet the public service. And this plain and only feasible mode of complying with the law appears to have been adopted and to have become the settled .usage of the government, as is shown by the testimony of Asbury Dickins, admitted by the parties to be received as if taken upon oath. It is insisted, however, that if this interpretation of the statute be the true one, Still a compliance with its requirements has not been shown; that neither is an order from the President to the secretary of the Treasury nor the copy of such an order produced-; nor is the absence of both or either of these so accounted for as to authorize the admission of inferior evidence to supply their place. How stands this objection? .Dickins, formerly a clerk in the Treasury Department, states it to be a fact « within his recollection,- that soon after the passing of the act of January 31, 1823, concerning the ■ disbursement of the public money, the secretary of the Treasury was specially authorized and directed in writing, by the President of the United States, to make such advances of money, from time to time, to various classes of disbursing officers of the government, and among others to the,marshals, as should be found necessary to the faithful and prompt discharge of their respective duties, and to the fulfilment of the public engagements. The papers containing these directions of the President were, as he believes, destroyed in the late burning of the Treasury building.”' The general principle as to. the admissibility of secondary evidence is familiar to all, and will receive no comment from the court; but -we will simply inquire whether the facts here shown do not present a case falling within the operation of that principle ? What does Dickins prove? 1st, The existence of the special written-instruction from the President, made expressly to carry into effect the law of 1823, and forming the established rule and usage of the department; 2d, The conflagration of the Treasury Department, the legal and .proper- depository for this instruction; and, Sdly, The belief of the witness, then a elerk in the Department, and, by consequence, to a great extent cognisant of its arrangement and condition, that the document was destroyed in that conflagration. Authorities need not be multiplied to show that the case'before us is completely within the rule respecting secondary evidence; a single decision of this court will be cited, as placing that matter wholly beyond controversy. In Riggs v. Tayloe, 9 Wheat. 486, the court, after laying down the general rule, proceeds thus: “ It is contended that the affidavit is defective; not being sufficiently certain and positive as to the loss of the particular writing. The affiant only states his impression that he tore it up; and if he did not tear it up, it has become lost or mislaid; that this is in the alternative, and not certain and positive. We do not concur in this reasoning. An impression is an image fixed in the mind; it is belief; and believing the.paper in question was . destroyed has been deemed sufficient to let in the secondary evidence.” The testimony of Dickins appears to this court much more direct upon the point than that admitted in the case of Riggs v. Tayloe: -we consider it as fully justifying oral proof of the contents of the instrument to which it related, and as establishing the character and import of that instrument, as well as the usage founded thereupon; and upon this fact of the usage, Dickins is corroborated by the testimony of Young, the chief clerk in the Treasury Department at the time of the trial.'

In considering the second exception made by the defendant, it may be remarked that the grounds of the exception are not stated with that distinctness and precision necessary to clear it entirely of obscurity '; still the statement is thought to contain enough to guide the court to a correct solution of the question involved. The second bill of exceptions sets forth that the plaintiffs produced the dockets and'records of the court, showing that ip a number of cases where judgments had been entered against defendants for common law fines, forfeitures, and costs, and the said defendants had paid the amounts so respectively adjudged against them to the marshal, and ent es were made by the- said marshal or his deputy, on the said dockets, “ money made and ready,” “money paid;” and that the amounts so- received amounted, &c. And again: The plaintiffs further proved by the dockets, records, &c., that certain sums of money were adjudged by the court against certain defendants for fines, .forfeitures, &c., upon which judgments ’ivrits of ca. set- were issued, which writs were returned by the marshal, “satisfied marshal,” and showed that the said sums amounted, &c. In the evidence sét forth upon the face of the^e exceptions, nothing particular is disclosed relative to the modes of proceeding on executions, or of the means in practice by the court for recording and preserving the evidence of such proceedings, or of the acts and returns of the officers who may be charged with the management of final process; of course nothing is adduced to impeach .the regularity of the reception by the court, of the returns and entries made by the marshal, or of the manner of placing them permanently upon the archives of the court. But it is admitted in the exception, that all these things are apparent on the records, viz.: The judgments and executions; the receipt of the money by the marshal, and his admissions of the receipt thereof, both by himself and his deputies. These facts are conceded to be- parts of the records of the court to which the officer properly belonged, and before which his conduct was regularly cognisable: a tribunal in all respects competent to pass upon his acts; competent to fashion its records, and to preserve the evidences of its own proceedings and of the acts of its officers. The acts of this court, then, must, in the first instance, be presumed to be regular, and in conformity with settled usage; and they áre conclusive until they shall be reversed by a competent power, and.upon a case properly made. Upon both the instructions-given and excepted to, in this cause, we approve the opinion of the Circuit Court, and therefore affirm the same.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United S.tates for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed.


source: Caselaw Access Project

author: Mr. Justice CATRON

license: Public Domain

text:
    Andrew Duncan, Plaintiff in error, v. Isaac Darst, Henry Darst, and Jacob Darst, Defendants.
    A person in custody under, a capias ad satisfaciendum issued under the authority of the Circuit Court of the United States, cannot legally be discharged from imprisonment by a state officer, acting .under a state insolvent law!
    This case came up by writ of error from the Circuit Court of the United States for the eastern district of Pennsylvania.
    The facts in the case were not disputed, and were as follow: Isaac Darst; Henry Darst, and Jacob Darst, citizens of the state of Ohio, recovered a judgment in the Circuit Court of Pennsylvania, against one Jacob Roth, who was arrested on a capias ad satisfaciendum, and handed over for safe-keeping to Andrew Duncan, sheriff of the county of York.' This was on the 6th of December, 1832. On the next day, Roth applied to George Barnitz, an associate judge of the Court of Common Pleas for the county of York, for the benefit of an act-of the legislature of Pennsylvania, passed on the 28th of March, 1820, entitled, “ A supplement to the act entitled A supplement to the act entitled An act for the relief of insolvent debtors, passed the twenty-ninth of January, one thousand eight hundred and twenty.”
    The first section of the act referred to is as follows :
    “ That if any debtor shall hereafter be arrested or held in execution, on a bail piece, in a civil suit, and who shall have resided six months in this commonwealth previously thereto, he may apply, when arrested on execution, to the president or any associate judge of the Court of Common Pleas of the county in which he is so arrested, or when held on a bail piece, may apply to the president or • associate judge of the said court, in the county in which the suit was instituted, and give bond to the plaintiff or plaintiffs, at whose suit he is so arrested and held, with such security as shall be required and approved of by the said judge: the condition of which bond shall be, that the said debtor shall be and appear at the next Court of Common Pleas for said county, and there take the benefit of the insolvent laws of this commonwealth, and to 'surrender himself to the jail .of the said county, if he fail to comply with all things required by law- to entitle him to be- discharged, and generallyjo abide all orders of the said court: whereupon the said judge shall give an order to the sheriff, constable, or other person, having such debtor in custody, to forthwith discharge him upon his paying the jail fees, if any be due.”
    It was admitted that this act was in force on the 7th of December, 1S32, and for a long time afterwards; that Roth had resided in the commonwealth of Pennsylvania for six months previously to his.application,.and that he complied, in all respects, with the. provisions of the above -section. The judge gave an order to the sheriff having Roth in custody, to forthwith discharge, him upon his paying the jail fees, arid he was thereupon discharged.
    Darst brought an action against Duncan for an escape, who pleaded specially the above matters n his defence. The plaintiff demurred to the plea, and the demurrer was sustained in the Circuit Court; and, upon the validity of this demurrer, the case was brought up to this court.
    .The statute of Pennsylvania, above recited, required the party who desired to be discharged from imprisonment, to give bond that he would, appear at the next Court of Common Pleas, and there take the benefit'of the insolvent laws of the commonwealth. Upon a reference to the acts then existing, it will be found that the' privileges'conferred upon the debtor and the duties required of him, by the insolvent laws, are the following: He wras to be declared free from imprisonment, not only upon that suit, but from subsequent arrests, on .his giving a warrant to appear in court; and although the property which he might subsequently acquire was subject to execution, yet the court was at liberty to exempt it, provided two-thirds of his creditors assented. The duties required of the- debtor were, that he should hand, in a list of his property, creditors,.debts, and losses; that he should not be guilty of collusion or false" swearing; that he should not conceal or convey away his property, under penalty of imprisonment; and that he should be liable to punishment at hard labour, if found to be a fraudulent debtor. The property of and debts due to- the debtor were vested in trustees, who were to‘convert them into cash and divide it among the'creditors; the surplus, if any, belonging to the debtor.

      This is the process through which it was necessary to pass, according to the bond of any one who might be discharged from imprisonment, as Roth was.

      Read, for the plaintiff in error.

      Penrose, for defendant.

      Read, for plaintiff, took the following positions:
    1. The third section of the process-act of the 19th May, 1828, expressly adopted the act of Assembly of Pennsylvania of the 28th March, 1820, and particularly the first section thereof, as a part of the proceedings on writs of execution, issued out of the courts of the United States, sitting within the state of Pennsylvania, and the discharge therefore of the said Jacob Roth, in pursuance thereof, was a lawful one, and obligatory both upon the said sheriff of York and the plaintiff in the execution.
    2. That the said defendant, a state officer, in thus obeying the legal order of a state judge under a state law, adopted by the express words of an act of Congress, was not guilty of an escape.
    3. That under the circumstances appearing on the record, no action of debt for an escape would lie against the plaintiff in error.
    To sustain these positions, he referred to Wayman v. Southard, 10 Wheat. 1; United States Bank v. Halstead, 10 Wheat. 51; Beers v. Haughton, 9 Peters, 329; Ross v. Duval, 13 Peters, 45; Amis v. Smith, 16 Peters, 303; Bronson v. Kinzie, decided at the present term. In 9 Peters, 362, all the laws regulating state officers were, adopted, and the reason is found in 12 Wheat. 288.
    In 1789, the United States applied to the states for the use of their jails, 1 Story, 70,207; and Pennsylvania complied. 2 Smith’s Laws of Pa. 513. (Mr. Read referred to and commented upon the several acts of Congress respecting writs and processes, and traced the history of laws relaxing imprisonment for debt.)

      Penrose, for defendants,
    entered into a critical examination of the powers of the federal government and states, and contended, that whether the act of Congress of 1828 adopted'state insolvent laws or not, it did not intend that they should be enforced by state officers, to the exclusion of the jurisdiction of the United States courts. He then reviewed the cases cited on the other side, and maintained that they did not authorize the positions assumed.

      Read, in reply :
    The argument made on the other side takes the same ground as the dissenting opinion of Mr. Justice Thompson, in the case of Ogden v. Saunders. But the court did not so think. In 1819, Pennsylvania passed a law exempting females from imprisonment for debt, which was not enacted by Congress until 1838. In the mean time, they would have been subject to this process from the federal court, if the argument on the. other side be corrects In 1828, it was declared that the United States courts should have the same rules as state courts. Suppose a.man imprisoned under process from both courts; could he come out, under the insolvent law, from one and not the other? If so, how have they both the same rules ?
   Mr. Justice CATRON

delivered the opinion of the court.

It appears from the record that in 1824 Darst and others recovered, in the Circuit Court of the United States for the eastern district of Pennsylvania, a judgment against Jacob Roth, for the sum of $5465.'

In November, 1832, a capias ad satisfaciendum was sued out against him, returnable to the April term, 1833, of the court. On the 6th of December, 1832, the marshal arrested Roth, and delivered him to Duncan, the sheriff and jailer of York county, for safe-keeping in the jail of that county, until discharged by due course of law. On the 7th of December, Duncan discharged him from custody, and the present suit was brought for an escape.

He pleaded in justification, that Roth applied to G. B., an'associate judge of the Court of'Common Pleas of York county, gave bond and security to appear at the next Court of Common Pleas, then and there to take the benefit of the insolvent laws of Pennsylvania; and to surrender himself to the jail-of the county, if he failed to comply with all things required by law, to entitle him to be discharged, &c. To this plea there was a demurrer, and judgment for the plaintiffs.

To the regularity of the writ of capias-ad satisfaciendum? to its execution on the body of Roth; or to his delivery to Duncan as the proper jailer to receive him, there is. no objection made: the. case turns exclusively on the question, whether by giving bond and security to appear in the insolvent court, the sheriff was authorized to release Roth from imprisonment.

It is admitted that had Roth been arrested by a sheriff on a ca. sa., issued from a state court of Pennsylvania, a discharge would have been proper on his giving the bond: and it is contended the same consequence followed in this case, because the acts of Congress had adopted the modes of proceeding on final process, governing the state courts and officers.

This brings up the question, to what extent Congress had adopted the various causes of discharge, (in 1832,) provided by the state laws, for the release of debtors, imprisoned by virtue of writs of ca. sa. issued by courts- of the United States: beyond the state laws adopted, it is settled the federal courts are not bound to conform to state regulations. What state laws apply, and regulate the modes of proceeding in the courts of the United States, depends on a proper understanding of the acts of Congress, on the subject.

The first in order, is that of 1789, c-. 21, s. 2; which declares, the forms of writs and executions, and the modes of process in suits at common law, shall be the same in each state respectively-as are now used, or allowed in the Supreme Courts of the same. This act was temporary, but is referred to, and in part sanctioned, by that of 1792, c. 36, s. 2. This declares: That the forms and modes of proceeding, in suits at common law, shall be the same as are now used in the courts of the United States respectively, in pursuance of the act of 1789, c. 21.

By the first section of the act of 1828, c. 68, the then processes and modes of proceeding of the highest state court of original jurisdiction, are prescribed as applicable to the courts of the United States in the states respectively that came into the Union, after 17S9.

But the third section applies to the old and new States equally, except Louisiana; and declares: — “ That writs of execution, and other final process) issued on judgments and decrees, and the proceedings thereupon, shall be the same in each state, respectively, as are now used in the courts of such state.” Giving the courts power to alter final process by rules so far only, as to conform to any state law subsequently passed, on the subject. No rules have been adopted in Pennsylvania, and the acts of Congress referred to therefore govern this case.

The terms, “ modes of process,” in the act of 1789; and, proceedings upon executions, and other final process,”, in the act of 1828, have the same meaning, and include all the regulations and steps incident to that process, from its commencement to its termination as prescribed by the state laws-; so far as they can he made to apply to the federal courts: as this court held in Wayman v. Southard, 10 Wheat. 27, 28, and also, in Beers v. Houghton, 9 Peters; United States v. Knight,; 14 Peters; Amis v. Smith, 16 Peters, 312.

Congress however did not -intend to defeat the execution of judgments rendered in the court's of the United States-; but meant they should have full effect,.by force of the state laws adopted: and therefore All state laws regulating proceedings, affecting insolvent persons; or that are addressed to state courts, or magistrates in other respects; which confer peculiar powers on such courts and magistrates, do not- bind the federal courts, because they have no power to execute such laws. The case of Palmer v. Allen, 7 Cranch, 563, is to this effect. Palmer as deputy mafshal- arrested Allen on a capias ad respondendum, in the district of Connecticut, and imprisoned him. By the laws of that state, this could not be done, without a mittimus from a magistrate. This court held the process acts did not adopt, the law of Connecticut, which required the mittimus: “ That it was a peculiar municipal regulation, not having any immediate relation to the progress of the suit, and only imposing a restraint on the state officers; but altogether- inoperative upon those of the United States.” Had it been necessary to ask the aid of the magistrate, to execute the process; .then he would have had .the discretion to refuse, and thereby to defeat it.

As state courts, or magistrates, cannot be compelled to aid a federal court in the'exercise of its jurisdiction; so neither can' they be permitted to restrain its process by injunction, or otherwise, as was held in McKim v. Voorhies, 7 Cranch. It follows, that a state law, regulating the practice of state courts, and addressed to its judges and magistrates; but which can only be executed by them, or with their aid, is a peculiar municipal regulation ; not adopted by the acts of Congress, nor applicable to the courts of the United States.

The case of Duncan must be tested by these rules. Roth ap- , plied to a judge of the Common Pleas, and gave a bond, to appear at that court, at its next term, and take the benefit of the insolvent laws. On this single step being taken, the jailer discharged him. The proceeding had no reference to the process by which Roth was imprisoned ; but to a new proceeding, proposed to be instituted, by which all his property should be equally dis-’ tributed among all his creditors; and his person be exempted in future from arrest for his existing debts when discharged.

As all the creditors of Roth had the right to become parties to the proceeding in the insolvent court, no matter wberé they resided, it is manifest the Circuit Court of the Uuited States could take no jurisdiction oX the parties, nor execute the insolvent law, had an application been made to that court for such purpose. It is therefore a peculiar law, as respects the court of the United States; is strictly municipal in its character: and as it could only be executed by the state courts, no action under it, by these courts, could affect the process by which Roth was imprisoned.

This opinion is. in conformity to the decision of the Supreme Court of Pennsylvania, in the case of Duncan v. Klinefetter, 5 Watts’s Rep. 141. That was an action on the case, by the present plaintiff in error, Duncan, against the jailer his deputy, for discharging Roth; whereby, Duncan alleged he had sustained damage.

It is insisted the foregoing conclusion is in conflict with the decision of this court in the case of Beers v. Haughton, 9 Peters; and which decision is confidently relied on as governing this case. In that case, Beers sued Harris, in the Circuit Court of Ohio; Haughton became bail for Harris. Judgment was recovered in December, 1830; a ca. sa. was run against Harris, and returned not found.

In February, 1832, Harris took the benefit of the insolvent law of Ohio: by this proceeding his person was exempted from arrest in all cases, for debts previously contracted.

In December, 1832, Beers sued Haughton on the bail bond; who pleaded and relied on the discharge of Harris.

By the laws of Ohio, the bail has the right to surrender the principal at any time before he is thus sued,and served with the process.

Haughton undertook that Harris should surrender his person, if he failed to pay the debt. To' enforce this condition, the ca. sa. issued. The bail had the right to arrest the principal, and deliver him to the marshal, who could imprison the debtor as if arrested by the ca. sa. Not being subject to imprisonment after the discharge under the insolvent .law, the marshal could not receive the prisoner; nor could he have lawfully arrested him. It followed, the bail was equálly inhibited; and of course discharged from performance, by the act of the law; just as certainly as he would have been discharged by the act of God, had Harris died, at the time he was released .under the insolvent act. This is the doctrine settled in Beers v. Haughton.

Had Roth been discharged, in the insolvent court, by its judgment, from future imprisonment, before the ca. sa. was executed by the marshal; then a case would have arisen, to which the principle declared in that of Beers v. Haughton would apply; as the state of Pennsylvania had the undoubted right to exempt persons thus discharged from imprisonment far debt: so she might exempt all persons whatever. But it does not follow,, that one not excepted from the operation of the general law, who had been properly arrested, arid imprisoned by the process of a federal court, could be discharged by a state judge. The general rule is, — 10 Co. 76, b, same cases cited in note, 5 Watts’s R. 144, — (and nothing is better settled,) that an officer is not justified in obeying the order of a judge, or court,' having no jurisdiction in the matter ; and this rule applies in an especial manner, as between the state and federal courts; where it'never has been supposed, that the judges of the one, could control the process of the other. If it was otherwise, and writs of injunction, of supersedeas, and orders to discharge defendants from imprisonment, could be. granted by state courts, or judges, to render ineffectual process issued from the courts of the United States, the jurisdiction oí the latter might be, and probably would be, overthrown in parts ■ of the Union; as it would be the exercise of the power of prohibition ; and might be extended to defeat the fruits of all judgments rendered by federal courts, at the discretion of state courts and judges. A conflict of jurisdiction, fraught with more dangerous consequences, could not well be supposed: and to concede the validity of the discharge of Roth, would involve such a consequence, however innocently meant by the state judge; of whose integrity of intention, we have no doubt.

If, during Roth’s confinement in prison, he had been declared insolvent, by the Court of Common Pleasof York county; then it might have been a questipn properly made before the Circuit Court of the United States, whether he should be discharged from imprisonment. But as such a motion would have called into exercise the legal discretion of the court upon a mixed question of law and fact; it can be affirmed with something like safety, that the merely giving a bond to appear before the insolvent court, would not have been sufficient to authorize his release from imprisonment. Be this as it may, that court alone had jurisdiction to act in the matter.

It is insisted for the defendant in error, that the act of Congress of 1800, c. 4, for the relief of persons imprisoned for debt, is the only law by which a discharge can be had, from a ca. sa., awarded by a court of thé United States. We do not think so. By that law, the district judges are authorized by themselves, or through commissioners appointed for the purpose,.to discharge' the debtor: he must show, and swear, that he is not worth thirty dollars; and give notice to the execution creditor, before a discharge can be ordered. The debtor may have, and usually has, outstanding claims to choses in action, and interests in property of various kinds; perhaps contingent, and remote; probably of little value, or it might turn out they are of much value: and as he has to swear, that he has no estate real or personal, in possession, reversion, or remainder, to the amount or value of thirty dollars, it will often'happen the oath cannot be taken, by the most honest and conscientious debtor. The consequence is, he must remain in prison until the humanity of the creditor interposes: and as he usually resides at a distance, cases of the greatest hardship and distress may occur, if the state laws afford no additional remedy. Whereas, by the laws of some of the states, he may give bond and security, when the process issues from a state court, to the sheriff, to appear at the return term of the writ, and give in a schedule of his property; the title and possession of which are conferred on the sheriff for the benefit of the execution creditor; and the proceeds are applied to the satisfaction of. the judgment: and then the debtor is permitted to take the insolvent oath, and be discharged.

As the marshals and .courts of the United States, are necessarily governed by the same rules that the sheriffs and courts of the respective states are, in this respect, they must proceed in the same manner.

So there are other modes of discharge prescribed by the state laws, that can be executed just as conveniently and properly, by the federal courts and judges, as they can be by the state courts or judges,, in cases where the execution issues from the latter courts. State laws of this description have been adopted by the acts of Congress, as incident to the remedy: they are cumulative, and in addition to the act of Congress of 1800; both being in force.

As we have adopted in effect the same construction, where property had been levied on, in Amis v. Smith, 16 Peters, 312, it would be harsh to' hold otherwise, in restraint of personal liberty.

In that case, a forthcoming bond, for property levied on, had been taken by the marshal, and the property been released according to the laws of Mississippi; the statute of that state, authorizing such a bond and the release of the property. This mode of proceeding was held to be incident to the process of execution, because it had been adopted by the act of Congress of 1828: previously, no delivery .bond could have been taken, nor the property released by the marshal.

If bond and security could be taken for the delivery of property seized; the same could not be refused, for the appearancé at court of the defendant; conditioned that he give in a schedule of his property, and take the benefit of the insolvent laws; when the statutes of the state where the proceeding was had, expressly commanded it to be done in like cases, under process issued from the state courts, directed to their officers.

We think the judgment of the..Circuit Court upon the demurrer was correct, and order it to be affirmed.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the'United States for the eastern district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs and damages at the rate of 6 per centum per annum.