That act very materially alters the act of 1788. It adopts in those states admitted into the Union since that time, the mesne process and modes of proceeding used in the highest courts of the state, the nineteenth of May, 1828, while it adopts for all the states in the Union, no matter when admitted, the final process and proceedings used in the courts of the state at that time. It will doubtless exert a salutary influence upon the practice of the federal courts. While the act evinces a desire in the general government to conform the practice of its judicial tribunals to that of the states, it properly forbears to adopt the changes which the states may make, leaving such changes to be by the courts adopted into the practice, if deemed expedient.

The laws of Ohio in force when the judgment in question was rendered in the circuit court, make judgments in the state courts liens upon lands from the first day of the term on which they were rendered in the courts where the judgment was taken. It is contended, and we think successfully, that the acts of the Ohio assembly, in their terms, only establish the lien of judgments of the courts of the state. Those laws were enacted as rules for the Ohio courts. The legislature, in the very nature of things, could only intend to enact laws upon subjects within their constitutional jurisdiction, not to embrace subjects and tribunals especially confined to another and distinct government. Such laws do not, by their mere enactment, become rules for the courts of the United States. For rules to govern the proceedings of these courts, we must look to the congress and to the judicial decisions or rules of the courts of the United States themselves. Judgments are not liens upon lands at common law.

Such liens are the creatures of positive statute. The supreme court of the United States, in Parkin v. Scott, 12 Wheat. 179, recognizes this position, and holds such liens to have capacity to bind and hold land so long as the statute preserves them in force. This court, in McCormick v. Alexander, 2 Ohio, 65, adjudge that judgments are not of themselves liens upon either real or personal property. They depend upon legislative enactment, are varied from time to time as policy dictates, and the provisions on the subject differ widely in different states: 4 Kent Com. 428, 429, 430; 2 P. Wms. 491.

In the United States v. Worson, 1 Gall. 518,' the circuit court letermined that the thirty-fourth section of the judiciary act of

1. See United States v. Wonson, 1 Gall. 5.

1789, making the state laws rules of decision in the courts of the Union, did not apply to the process and proceedings in those courts. In Palmer v. Allen, 7 Cranch, 564, the supreme court of the United States held that the process act of 1789 did not give efficacy to the laws of Connecticut, touching the mode of executing processes in the United States courts, or impose upon the officers of the United States an obligation to conform their conduct to those laws. That court, in Robinson v. Campbell, 3 Wheat. 212, held that the remedies in the courts of the United States at common law and equity, are to be not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in the country from whence we derive our knowledge of those principles.

In Wayman v. Southard, 10 Wheat. 1, that court held that congress had the exclusive authority to regulate the proceedings in the courts of the United States, and the States have no authority to control those proceedings, except so far as the state process acts are adopted by congress, or by the courts of the United States, that the proceedings on executions in the courts of the United States were to be the same in each state as were used in the supreme court of the state in September, 1789, subject to such alterations and additions as said courts may make; that a state law regulating executions, enacted subsequent to September, 1789, is not applicable to executions upon judgment rendered by the courts of the United States, unless expressly adopted by the regulations and rules of those courts. Judge Marshall, in giving the opinion of the court, makes the following remarks upon the origin of the acts of congress of 1789, 1792, 1793, p. 46: "Congress, at the introduction of the present government, was placed in a peculiar situation. A judicial system was to be prepared, not for a consolidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws, which, though originating in the same great principles, had been variously modified. The perplexity arising from this state of things was much augmented by the circumstance that in many of the states the pressure of the moment had produced deviations from the course of administering justice between debtor and creditor, which consisted not only with the spirit of the constitution, and, consequently, with the views of the government, but also with what might safely be considered as the permanent policy as well as interest of the states themselves. The new government could neither entirely disregard those cir

AM. DEO. VOL. XXIV-20

cumstances nor consider them as permanent. In adopting the temporary mode of proceeding with executions then prevailing in the several states, it was proper to provide for the return to ancient usage, and just, as well as wise principles, which might be expected from those who had yielded to a supposed necessity in departing from them. Congress probably conceived that this object would be best effected by placing in the courts of the Union the power of altering the modes of proceeding in suits at common law, "which includes the mode of proceeding in the execution of their judgments, in the confidence that in the exercise of this power, the ancient, permanent, and approved system would be adopted by the courts, at least as soon as it should be resorted to in the several states by their respective legislatures." He held it extravagant and utterly inadmissible to maintain that the practice of the federal courts, and the conduct of their officers, would be indirectly regulated by state legislatures, by acts professing to regulate state courts. And in the United States Bank v. Halstead, 10 Wheat. 64, that court thought, that to permit a marshal to be governed or controlled by the state law would be not only delaying proceedings against the act of congress, second March, 1793, 3 U. S. Laws, 367, but might entirely defeat the effect and operation of the execution, and would be inconsistent with the advancement of justice. The court decided " that the circuit court had authority to alter the form of the process of execution, so as to extend to real as well as personal property, when, by the laws of Kentucky, lands were made subject to like process from the state courts; and that the act of the general assembly of Kentucky does not operate upon, and bind, and direct the mode in which "executions should be enforced by the marshal, so as to prohibit the sale of land levied upon, unless it commanded three fourths of its value according to the provisions of said act.”

These decisions, taken by themselves, would seem to settle the question so far as it regards the acts of the Ohio legislature against the plaintiff; for it will not be pretended that the law applicable to the acts of Connecticut, or to the execution laws of Kentucky, are not equally applicable to the laws of Ohio of the like nature. But the supreme court, in Waring v. Jackson, 1 Pet. 571, say, it has been the uniform course of that court, with respect to the titles to real property, to apply the same rules that are applied by the state tribunals in like cases. And in koss v. Doe et al., 1 Pet. 664, it is held that where a practice has obtained in a state affecting titles to land, even if deroga

tory to the principles of the common law, the court would regard it, in cases affecting property in such state, if it did not contravene any act of congress.

Mr. Justice Johnston, in delivering the opinion of the court, in Fullerton v. Bank of the United States, 1 Pet. 612, says, the district court of Ohio, which was created in 1803, and exercised circuit court jurisdiction, and had power to create a practice for its own government, did not create a system for itself, but finding one established in the state, in the true spirit of the policy pursued by the United States, proceeded to administer justice according to the practice of the state courts; or in effect adopted, by a single rule, the state system of practice, etc. So that when the seventh circuit was established, in the year 1807, the judge of this court who was assigned to that circuit found the practice of the state courts adopted, in fact, into the circuit court of the United States. It has not been found necessary to make any material alteration since, but as far as it was found practicable and convenient, the state practice has, by a uniform understanding, been pursued by that court without having passed any positive rules on the subject." Again he says: "Written rules are unquestionably to be preferred, because their commencement, and their action, and their meaning are most conveniently determined; but what want of certainty can there be when a court by long acquiescence has established it to be the law of that court, that the state practice shall be their practice as far as they have the means of carrying it into effect, or until deviated from by positive rules of their own making. Such we understand has been the course of the United States court in Ohio for twenty-five years past. The practice may have begun, and probably did begin, in a mistaken construction of the process. act; but then it partakes of the authority of adjudication. But there was a higher motive for adopting the provisions of this law into the practice of the court, etc., which must often occur in a court in which the remedy is presented by one sovereign, and the law of the contract by another. It is not easy to draw the line between the remedy and the right, where the remedy constitutes so important a part of the right."

"But what is the course of prudence and duty when these cases of difficult distribution as to power and right present themselves? It is to yield rather than encroach; the duty is reciprocal and will no doubt be met in the spirit of moderation and comity. In the conflict of power and opinion, inseparable from very peculiar relations, cases may occur in which the

maintenance of principle, and the administration of justice according to its innate and inseparable attributes, may require a different course, and when such cases do occur, our courts must do their duty; but until then, it is administering justice in the true spirit of the constitution and laws of the United States to conform, as nearly as practicable, to the administration of justice in the courts of the state."

We are certainly disposed to meet this, as well as every other question, "in the spirit of moderation and comity." It is unquestionably the province of the tribunals of the Union to expound the constitution and laws of the Union as applicable to themselves; and with this it is neither our wish nor purpose to interfere. We shall always feel gratified to find the decis ions of those respectable tribunals, upon the grave and important questions before them, in perfect harmony with each other. We have no desire either to arrogate to ourselves power that does not belong to us, to surrender any that does, or to detract from that of other tribunals. The case in 1 Peters is the only one, we believe, where the origin of the practice in the United States courts in Ohio is expressly alluded to. We are not aware that any express and positive rule of those courts was ever made adopting the execution laws of the state, and the proceedings under them, as the law of those courts; but the practice of one member of this court for many years at the bar of those courts, gave him opportunity to know that those laws have been repeatedly adjudicated upon in those courts as affecting both original and final process there. Sales upon execution have been, most generally, for years examined as to their conformity with the state laws, and confirmed or set aside, as found to conform. Relying, then, upon the exposition by the supreme court of the United States, of the practice and proceedings of the circuit court of Ohio, and our own observation of its course of proceeding, we may regard the execution laws of the state of Ohio as adopted into the practice of that court, and as the law thereof: Shrew v. Jones, 2 McL. 78. The doubts we have on the subject yield the more readily where we are only called upon to give to the judgments and proceedings of the circuit court of the United States the ordinary effect and operations of the judgments and proceedings of our own courts; and to give to the acts of our own legislature effect as the rule of proceeding in the courts of the United States: Simpson v. Niles, 1 Smith Ind. 104; Massingill v. Downs, 7 How. (U. S.) 760.

The profession has almost uniformly acquiesced in the