Bloomington herald. [volume] (Bloomington, I. T. [Iowa]) 1840-1849, 1844-05-10

shortly Of the law, whatever he can do un.
der the fullest powers of attorney from the
execution debtor, aud no State law can
prohibit it. sue as
!, follows that The law Of Illinois now
under considerations, so (ar as j, prohibits
sale for less than two-thirds of the ap-
praised value Of the properly levied on. is
unconstitutional and void.
Tue second aspect in which this case
must be considered, is with reference TO
the acts of Congress, relating to process
and proceedings in the courts Of the Uni>
ted States in cases a, common law. All
tho early laws on this subject were care>
fully and most ably reviewed by this cour,
in Wayman T. Soa,hard, and the Bank
United States ys. Hals,ead. in which it
was held that The proceedings in the courts
of the United States should be the same as
they were in the several States a. ,he time
Of passing the acts Of Congress. subject to
be altered by the Circuit Courts, or regu.
lalions Of the Supreme Court. That the
proceedings on executions were TO be gov.
erned by such laws until final satisfaction
was obtained, regardless Of any subsequent.
charges By State legisla:ion:-lo VIII. 20.
81.
Prior 10 1928 Congress had passed no
process acts applicable 10 tie States add
mi,led into the Union after 1889. To
remedy this defect, and TO confirm the de.
cisions in The above cases. the act Of May
1928, directed, that w,ils of execution aud
others. final process issued on judgments
and decress and the proceedings there's
upon, shall be The same in each State. &c,
thus adopting the same principles which
have been established by this court in con
s,ruc,ion Of the acts Of 1889 and 1892:
consequently, no State law passed since
May. 1928. can have any effac. on the
proceedings on executions issued from the
courts Of the United States. unless such
laws are adopted by those courts under the
provisio in the third section of the act.
The rule adopted by tine Circuit Court
Of Illinois. does no, fall within this provi.
so, which declares, That it shall be IN
The power Of the courts, if they see fit in
their discretion, SO far 10 alter final process
in said courts, as 10 conform the same to
any change which may be adopted by the
legislatures Of the respective States for the
State courts" ~
This authorizes the court 10 adopt the
change SO made by State law. but not to
adopt it DULY 10 part, o. alter il in anysfes:
pect. The law s6tfrts the. appraismen. 70
be made by three housed olders, one be-
selected by The defedaapi. ono by the or
Ger. and enc by heplain,if, wfhou, aay
authority TO any two IN make it, and con-
scquen,Iy requiring the Concurrence Of all.
The rule of court adopting this law. pro.
vides. that any two Of the three house,
holders selected under the law agreeing,
may make the valuation required Such
adoption is no. warranted by the act Of
1923; tits legislation in effect, by prescri-
blng a new rule, unknown 10 any act Of
Congress or the State law professedly
adopted. But had the adoption been In
the terms Of the law, II could no: De REC
ognized, inasmuch as the appraisnent
therein directed, with the prohibi,ion 10
sell q. less than two thirds of the valuation.
is repugnani 10 the constitution of the Uni.
ted States. 1t also co0icts with the pro-
cess acts, as construed in Wayman and
Sou.hard and the Bank vs.. }jalstead, and
The repeated decisions of this court in lat
ter cases-,hat no State law can be adopt.
ed under the act of 1923, which is in col.
Iision with any &C. Of Congress.-i6Pet.
81. 3i2.i3-l4. Asf
/. must therefore be certified 10 the cir
cui, court, that the motion made by the
plaintiffs counsel ough. TO be granted
and that the directions TO the marshal pray
ed for by the plaintiff ought to be given
in the manner stated in the second, third.
fourth and fifth points certified.
WM. TIIOS. CARROLL.
C..S. G.. u. s.