Sheerer v. Grier

The opinion of the Court was accordingly expressed at a subsequent day by Gibson, C. J.

A writ of error is a supersedeas of execution, I believe, at the common law; but its operation per se is restrained by the 3 Jac. 1, c. 8; 13 Car. 2, st. 2, e. 2, and 16 and 17 Car. 2, c. 8, which require bail in error to be superadded to prevent execution, in most cases, without an application to the Court. These statutes are in force here; and indeed, all our law on the subject, whether statutory or customary, is identical with the English law, as it stood at the declaration of our independence, except the act of 1834, which makes a writ of error with bail and service in three weeks from the date of the a even of an execution ^executed. But it is an indisputable that a second writ of with effectively a supersedeas where the first abated by the act of God or the law, is not so where it abated by the act of the party. The law is so fully stated by Lord Ellenborough in Birch v. Triste, (8 East, 412), where the point was distinctly ruled, as to make a review of it unnecessary; and indeed its unreasonableness is so apparent, as to dispense with an appeal to authority; for without it a party might baffle his antagonist interminably. It is sufficient to say, it has been the admitted law of the Court, probably from the foundation of the province — certainly for thirty years, for as far back does my knowledge of it extend ; and that the absence of judicial recognition of it in the reports, especially of causes in the country, where the greater frequency of attempts to delay has made the professional mind more alive to it, is attributable to the fact, that it is one of those familiar principles which no one whose attention has been directed to it is prepared to contest. It is also the law in Maryland, having been enforced in Dyer v. Beatty (3 Har. & M‘Hen. 219); and Whitecroft v. Dorsey, ( 3 Har. & J. 482 ); and that traces of it are not to be found in the reports of other states, is doubtless attributable to the causes which precluded a particular notice of it here. It is, however, an established principle of our law, and has been delivered to us, as such, by our predecessors.

Mr. Fallon withdrew his motion.

Cited by 6 P. F. 93.

See also, 2 Grant, 306 .