Page:Federal Reporter, 1st Series, Volume 9.djvu/27

12 FEDKBAL EEPOETER. �In Banh of U. S. v. Halstead, Mr. Justice Thompson said : �" I£ the alterations are limited to mare form, without vaiying the eiiect and operation of the process, it would be useless. The power here given, in order to answer the object in view, cannot be restricted to form, as contradistin- guished from substance, but must be understood as vesting in the courts authority so to frame, mould, and shape the process as to adapt it to the pur- pose intended. The general poliey of all the laws on this subject is very apparent. It was intended to adopt and conform to the state process and proceedings, as the general rule, but under such guards and checks as might be necessary to insure the due exercise of the powers of the courts of the United States. It is said, however, that this is the exercise of legislative power which could not be delegated by congress to the courts of justice. But this objection cannot be sustained. There is no doubt that congress might have legislated more speciflcally on the subject, and declared what property should be subject to executions from the courts of the United States. But it does not follow that because congress might have done this they necessarily must do it, and cannot commit the power to the courts of justice." �These authorities well establish the validity of the rule of this court regulating attachments. It is strenuously contended in behaK of the defendant that if this writ was valid its service, which was by copy of the wi'it and return of attachment upon it lodged in the town clerk's office where the land records are kept, without possession, was not, and that it did not create any lien upon the land. If this was strictly a sequestration this point would be well taken; butit is not, although it is called so to someextent. A sequestration is intended to accom- plish its obj'ect by the actual taking of goods and chattels, or the rents and profits of lands, and withholding them until the distress brings compliance with what is then required, and it creates no lien in favor of future judgments or decrees, while an attachment creates such a lien and nothing more. This is in effeot strictly an attachment to create a lien, and is so understood in the laws of the state adopted by the rule. Frenchy. Winsor, 36 Vt. 412. The creation of the lien provided for by the rule includes as well the mode of service as the issuiug of the writ, and adopts the state law for both purposes. Besides, if the writ was valid, and there was no law or rule providing any mode of service, the return upon the process of an attachment of land would be sufficient without any taking possession or entry upon the land by the officer. Taylor v. Mixter, 11 Pick. 341. And this argument would prove too much ; for, if the rules of court did not provide for the service of executions in equity cases, there would be no provision at all for that purpose, nor, in fact, for issuing execu- tions in such cases. Executions are satisfied by levy on land only by appraisal and setting out the land to the creditor under the state ��� �