Jackson, ex dem. Bogert, against Schauber

Jackson, ex dem. Bogert, against Schauber. ALBANY, Oct. 1827. A party has judgment*^61 within which both to bring his writ of error, and put in bail; and this shall supersede Wtod^before either writ of bail put in. At the last term, a rule was made staying all proceed ings on the execution in this cause, until further order; on the ground that a writ of error had been brought. (Vide ° o \ ante, 417.) L. H. Palmer, on affidavits that personal property had been taken, and was now in the hands of the sheriff, moved that he be allowed to proceed and sell. He said that otherwise, the property must remam on his hands at great expense; and some of it would perish before the writ of error could be determined. J. T. B. & A. Van Vechten, contra. [MAJORITY — * Curia.] * Curia. We must have intended at the last term, to set this execution aside; or to do what was equivalent. The fact of the levy did not appear very distinctly; and we might, therefore, have supposed that staying the execution would be the same thing in effect. But we held the writ of error regularly brought; and the direct consequence should have been the setting aside of the execution. Palma• said he was not aware that the court intended to lay down what he supposed to be a new rule; that the party should have four days to bring his writ of error, so as to supersede an examination already levied. Savage, Gh. J., doubted whether that could be called a new rule in this court. He considered Blunt v. Greenwood, (1 Cowen, 15,) as laying down such a rule. Palmer said he had looked into that case ; and thought it equivocal, whether four days both for a writ of error and bail were to be allowed; or whether, according to the old practice, the writ must be filed before execution levied, to become a supersedeas by bail within the four days, though the execution should be levied intermediate the writ filed, and bail put in. Sutherland, J. That appears to me to be a distinction not warranted by the reason and principle of the case. The writ of error derives its effect upon the execution entirely from the bail. Till that be in, whether the writ of error be filed or not, it is a nullity as to the execution. Thus, the rule now stated by counsel is, in effect, the same as that laid down in this case; that the party shall have his four days for both writ of error and bail; and that a judge at chambers may enlarge the time. Per totam curiam, Execution set aside.