The Evansville journal. (Evansville, Ind.) 1834-184?, 1844-05-02
EVANSVILLE, INDIANA. MAY 2, 1914.

liz OPDi0i0Oo tOAAO5 VI " tAo Vi
Hine-tenths as we'll as for t~wo-thirds, for, if
the power can be exercised to any extent,
its exercise must be- a matter of uncontrola-
bic discretion, in passing laws relating to the
remedywhich are regardless of the effect on
the right of the plaintiff.
This was the ruling principle of the case
of Bronson VS.. Kinzie, which arose on a
mortgage containing a covenant that, in de-
fault of payment, the mortgage might enter
upon, sell and convey the m~ortgaged prem
ises as the Attorney of the %mortgagor; yet
the case was not decided on the effect and
obligation of that covenant, but on the broad
and general principle, that a State law which
professedly provided a remedy for enforcing
the contract of mortgage, effectually impair
ed the rights incident to, and attached to it
by the laws in force at its date, was void.-
The agreement or contract can create no
more binding obligations, than those fasten-
ed by the law, which the law creates and at
taches to contracts; the express power which
a mortgagor confers on amortgagee to sell as
his agent, is not more potent than that which
the law delegates to the Marshal, to sell and
convey the propriety levied on under an ex-
e%cution; he is constituted agent of the de-
PENDANT, invested with all his powers for
these purposes; the Marshal can do under
the authority of the law, whatever he can do
under the fullest power of Attorney from the
execution debtor, and no State law can pro-
hibit it.
1t followes that the law ofIllinois TO- un-
der consideration, so far as it prohibits asale
for less than two-thirds OF the appraised val
ue of the property levied on, is u~nconstitu-
tional and void.
The second aspect in which this case
must be considered, is with reference to the
acts of Congress, relating to process and pro-
ceedings in the Courts Of the United States
in cases at common law. All the early laws
on this subject were carefully and most-ably
reviewed by this court, in Wayman& South
ard, and the Bank United States vs.. Halls
fed. in whiehit was held, that the proceed
ings in the court of the United States should
be the same as they were in the several
States at the time ofpassing the acts of con-
gress, subject to be altered by the circuit
courts, or regulations of the supreme court.
That the proceedings on executions were
to be governed by such laws until final salts
faction was obtained, regardless of any sub
sequent changes by state legislation.-l0
VIII: 20, 81,
Prior to 1928, congress had passed no
process acts applicable to the States admitted
into the Union after 1889. To remedy this
defect, and to confirm the decisions in the
above cases, the act of May, 1928, directed
that writs of execution and other final process
issued on judgments and DEGREES and the pro-
ceedings %thereupon, shall be the same in
each State as are now used in the courts of
such State, &c. thus adopting the same prin-
ciples which had been established by this
court in the construction ofthe Acts of 1889
and 1892. Consequently 40 State law pas
sed since May 1928, can have any effect on
the proceedings on executions issued from
the courts of the United States, unless such
laws are adopted by those courts under the
proviso in the third section of the act.
The rule adopted by the Circuit Court of
Illinois does not fall within the proviso,
which dec lares, "that it shall be in power of
the courts, if they see fit in their discretion,
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.n
This authorizes the Court TO adopt the
change so made by a State law, but not 10
adopt it only in part, or alter it in any res
pect. The law directs the appraisemeht 10
be made by three h~ouse-holders, one to be
selected by the defendant, one by the officer,
one by the plaintiff, without any authority TO
any w to make it, and consequently requir-
ing the concurrence of all. The rule of
court adopting this law provides, ''that any
two of the three house selected under the
law ~agreeing,may make the valuation requir-
ed" Such adoption is not warranted by
the acts of 1928; this legislation in efect,by