logs or caused them to be taken from the possession of the plaintiffs, and converted them to its own use, on the twenty-fourth of April, 1876. But the attachment levy was made on the twenty-fourth of April by Powers, and the record states that he remained in charge of the logs for some days, and turned the writ over to Geekie on May 9th. The bill of exceptions states, however, that there was other evidence tending to show the time of the conversion of the logs by the defendant, and the manner in which the defendant and the sheriff of Menominee county took possession of them. On the whole, we think, that as to the damages to Klass interest should be given from the twenty-fourth of April, 1876, the date of conversion found by the jury, and as to those to Geekie, interest should be given from the bringing of this suit, November 21, 1876.

The judgment of the circuit court is reversed, with costs, and the case is remanded to that court, with directions to it to enter a judgment for the plaintiffs for $6,731.56, with lawful interest on $6,241.42 thereof from April 24, 1876, and with lawful interest on $490.14 thereof from November 21, 1876, with costs.

(106 U. S. 272)

FINK v. O'NEIL.

(December 11, 1882.)

EXECUTION-EXEMPTIONS-STATE STATUTES.

While United States courts adopt and conform to state process and proceedings, as a general rule, yet they have authority from time to time to alter the process in civil actions in such manner as they may deem expedient, and to make additions thereto and to enlarge the effect and operation of the process.

The courts of the United States can neither adopt nor recognize any form of execution, or give any effect to it, except such as was at the time of the passage of the act of congress, or had subsequently become at the time of its adoption, a writ authorized by the laws of the state. Exemptions from levy and sale under executions apply equally to executions on judgments in favor of the United States as to those in favor of private parties. A state statute exempting homesteads from levy and sale on execution, in force at the time the adoption of section 916 of the Revised Statutes, and remaining continuously in force from that time, becomes a law of the United States within that state, and applies to executions issued upon judgments in civil causes recovered in their courts in their own name and behalf, equally with judgments rendered in favor of private parties.

In case of executions on judgments in civil actions, the United States are subject to the same exemptions as apply to private persons by the law of the state in which the property levied on is found.

Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.

Asst. Atty. Gen. Maury, for appellant.

No counsel for appellee.

MATTHEWS, J. This is a bill in equity filed by the appellee praying for a perpetual injunction to restrain the appellant, then United States marshal for the district, from further proceeding under a fi. fu., issued upon a judgment rendered in favor of the United States in the district court for the eastern district of Wisconsin, against the appellee and others, and which had been levied on real estate alleged to be the homestead of the appellee, and exempt under the laws of that state from sale on execution. The premises levied on are described in the bill as 40 acres of land, with a dwelling-house and appurtenances thereon, occupied by the appellee as a residence for himself and family, consisting of his wife and seven children, the same being used for agricultural purposes, not included in any town, city, or village plat, and alleged to be of the value of $6,000 and upwards; and it is averred that the cause of action upon which the judgment was rendered was not for any debt or liability contracted prior to January 1, 1849. To this bill there was filed a general demurrer, for want of equity, which being overruled, and the appellant declining to answer or plead, a decree was rendered granting the relief prayed for, from which this appeal is prosecuted. The provision of the statute of Wisconsin on the subject of homestead exemptions, the benefit of which was secured to the appellee by the decree appealed from, is as follows:

"A homestead to be selected by the owner thereof, consisting, when not included in any village or city, of any quantity of land, not exceeding 40 acres, used for agricultural purposes, and when included in any city or village, of a quantity of land not exceeding one-fourth of an acre, and the dwelling-house thereon and its appurtenances, owned and occupied by any resident of this state, shall be exempt from seizure or sale on execution, from the lien of every judgment, and from liability in any form for the debts of such owner, except laborers', mechanics', and purchase-money liens, and mortgages lawfully executed, and taxes lawfully assessed, and except as otherwise specially Eprovided in these statutes," etc. Rev. St. Wis. 1878, p. 783, c. 130, § 2983.

This statutory provision was enacted in express compliance with a constitutional injunction, wherein it was declared, in the seventeenth section of the bill of rights, that "the privilege of the debtor to enjoy the necessary comforts of life shall be recognized by wholesome laws." Phelps v. Rooney, 9 Wis. 70-83. And it has been the constant policy of the state in this legislation, as construed by many

decisions of its supreme court, to favor by liberal interpretations the exemptions in favor of the debtor. "For it cannot be denied," says that court in Hanson v. Edgar, 34 Wis. 653-657, "that in all the enactments found in our statute books in regard to homestead exemption, the most sedulous care is manifest to secure the homestead to the debtor and to his wife and family against all debts not expressly charged upon it."

We have found no case in which the question has been raised, or where there has been any expression of judicial opinion, whether the exemption would prevail or not, as to judgments in favor of the state; but we do not doubt, from the language of the constitutional and statutory provisions, and the rules of construction followed in other cases, that it would be held by its courts, if the question should be directly made, that the state, except as to taxes, which are expressly excepted, would be bound by the exemption.

In the case of Doe v. Deavors, 11 Ga. 79, it was decided by the supreme court of Georgia, in 1852, that the state was bound by acts of the legislature exempting certain articles of personal property from levy and sale for debts, for the benefit of the wife and children of the debtor, so that they could not be seized and sold under execution for the payment of taxes. The court said, page 89:

"These laws are founded in a humane regard to the women and children of families. The preamble to the act of 1822 announces the grounds on which the legislature acted. Whereas,' (is its language,) 'it does not comport with justice and expediency to deprive innocent and helpless women and children of the means of subsistence, be it therefore enacted,' etc. In our 2 judgment, the state falls within the operation of a public law, passed for the benefit of the poor, and the state is within the policy of our own legislation upon this subject-matter."

Mr. Thompson, in his Treatise on Homesteads and Exemptions, (section 386,) says:

'In many of the states this question is determined by the express provisions of statutes, which declare, in various terms, that nothing shall be exempt from execution where the debt other than public taxes, is due the state; or where the debt is for public taxes legally assessed upon the homestead or other property; or where the demand is for a public wrong committed, punished by fine. But where the question has arisen, in the silence of statutes, the highest courts of the states, with two exceptions, have held otherwise."

The case of Com. v. Cook, 8 Bush, 220, which is one of the exceptions referred to, is shown, however, to have been materially qualified by the decision in Com. v. Lay, 12 Bush, 283. That of Brooks v. State, 54 Ga. 36, turned on the point that the exemption

claimed operated retrospectively, and was disallowed on the authority of Gunn v. Barry, 15 Wall. 610. So that in point of fact the decisions of state courts upon the point are practically unanimous.

It is said, however, that the laws of the state creating these exemptions are not laws for the United States; and this is certainly true, unless they have been made such by congress itself. This has not been an open question in this court since the decision in the cases of Wayman v. Southard, 10 Wheat. 1, and of the U. S. Bank v. Halstead, 10 Wheat. 51. Mr Justice THOMPSON, delivering the opinion of the court in the latter case, said:

"An officer of the United States cannot, in the discharge of his duty, be governed and controlled by state laws, any further than such laws have been adopted and sanctioned by the legislative authority of the United States. And he does not, in such case, act under the authority of the state law, but under that of the United States, which adopts such law. An execution is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execution are proceedings in the suit," etc.

In Wayman v. Southard, 10 Wheat. 49, Chief Justice MARSHALL had said that the proposition was "one of those political axioms, an attempt to demonstrate which would be a waste of argument not to be excused."

The question therefore is, whether the United States, by an appropriate legislative act, has adopted the laws of Wisconsin exempting homesteads from execution, and, if at all, whether they apply in cases of executions upon judgments in favor of the United States. Section 916, Rev. St., is as follows:

"The party recovering a judgment in any common-law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the state in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such circuit or district courts; and such courts may, from time to time, by general rules, adopt such state laws as may hereafter be in force in such state in relation to remedies upon judgments as aforesaid, by execution or otherwise."

This provision, in its present form, has been in force since June 1, 1872, and is part of the sixth section of the act "to further the administration of justice," approved on that date. 17 St. at Large, 196. It is the result of a policy that originated with the organization of our judicial system. The fourteenth section of the judiciary act of 1789 (1 St. at Large, 81) provided that the courts of the United

States should have "power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law;" and this was held to embrace executions upon judgments. Wayman v. Southard, 10 Wheat. 1. But simultaneously with the judiciary act, September 29, 1789, was passed the first "Act to regulate processes in the courts of the United States," in which it was enacted "that until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided, the forms of writs and executions, except their style and mode of process and rates of fees, except fees to judges in the circuit and district courts 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, and expired by its own limitation at the end of the next session of congress. The act of May 8, 1792, provided that the forms of writs, executions, and other process, and the forms and modes of proceeding in suits at common law, should continue to be the same as authorized by the act of 1789, "subject, however, to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court shall think proper, from time to time, by rule to prescribe to any circuit or district court concerning the same." 1 St. at Large, 275. This legislation came under review in this court in the cases of Wayman v. Southard and U. S. Bank v. Halstead, in the latter of which it is said, (10 Wheat. 60:)

"The general policy 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. They have authority, therefore, from time to time, to alter the process in such manner as they shall deem expedient, and likewise to make additions thereto, which necessarily implies a power to enlarge the effect and operation of the process."

This discretionary power in the courts of the United States was restricted by the act of May 19, 1828, (4 St. at Large, 278,) so that thereafter writs of execution and other final process issued on judgments rendered in any of the courts of the United States, and the proceedings thereupon, should be the same, except their style, in each state respectively, as were then used in the courts of such state: provided, however, that it should be in the power of the courts, if they saw fit in their discretion, by rule of court, so far to alter final