Wayman v. Southard

23 U.S. 1 (1825)


The Process Act of 1792, authorized the federal courts to establish rules of practice, provided such rules were not repugnant to the laws of the United States. The Act stated: That the forms of writs, executions, and other process, except their style, and the forms and modes of proceeding in suits in those of common law, shall be the same as are now used in the said Courts respectively, in pursuance of the act entitled, “an act to regulate processes in the Courts of the United States,” except so far as may have been provided for by the act to establish the judicial Courts of the United States; 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 of the United States shall think proper, from time to time, by rule, to prescribe to any Circuit or District Court concerning the same. Ds contend that this clause if extended beyond the mere regulation of practice in the court, would be a delegation of legislative authority which Congress can never be supposed to intend, and has not the power to make. This cause was certified on a division of judges on several motions; which occurred on a motion made by Ps to quash the Marshal's return on an execution issued on a judgment obtained in Court, and also to quash the replevin bond taken on the said execution.