11 U.S. 278
7 Cranch 278
3 L.Ed. 342
March 13, 1812
Present. All the Judges.
ERROR to the Circuit Court of the district of Tennessee, to reverse a decree in Chancery. The Court below had issued a writ of habere facias possessionem to enforce its decree. The writ of error was too late to be a supersedeas 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, under the laws of Tennessee, could only enforce by execution decreesfor 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. But if this Court had the power to do it, it would not in its discretion quash a process which has merely carried into effect the decree of the Court below. If the decree be reversed upon the merits, the execution will be of no avail; but the Court will not anticipate the merits upon such a motion.
MARSHALL, Ch. J.
The writ of error is to the original 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.
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 matter of 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.
Last modified: October 2, 2009