WALLEN v. WILLIAMS

WALLEN v. WILLIAMS. Present.,..Ml the Judges. This Court anU oíeraüon issued by the enibrceitsde10 cree pending the writ of or-of error be'not a supersedeas t« the decree. ERROR to the Circuit Court of the district of Tcrinessee, to reverse a decree iii Chancery. , The Court below liad issued a writ of habere facias possessionem to enforce tfcg decree The writ of error was too late to a SLlpcr sedeas to the decree., Jones, for the Plaintiff in error, now moved to quash the writ of habere facias as irregular,- and contended that the Court below, sitting as a Court of Chancery, lsn¿er j|)c ]awi! 0f Tennessee, could only enforce by execution decrees for the payment of money, and cited Tennessee Laws, Ed. 1807, p, 158. § 2. P. B. Key, contra. This Court has no jurisdiction to quash an execution issued from the Court below, and executed. Rut if this Court had the power to do it, it w’ould not in its discretion quash a process which has merely cairied into effect the decree of the Court below. If the decree be reversed upon the merits, the ex-edition will be of no avail; but the Court will not anticlpate the merits upon such a motion. [MAJORITY — Marshall, Ch. J.] Marshall, Ch. J. The writ of error is to the ginal decree, which did not award this writ of habere facias. It was awarded by a subsequent order of the Court, to which no writ of error issued. Toon, J. The attachment to compel -a performance of the decree was unavailing; and upon the return of it, the habere facias was issued in conformity with the practice in that state, as admitted by the counsel on both sides in the Court below, it was ordered as a mattérof course, and no objection was made. If this motion should prevail, it will make the writ of error operate as a supersedeas, contrary to the intention of the act of Congress. Motion overruled.