An execution, issued in the court below, after a writ of error
has been sued out, a bond given, and a citation issued, all in due
time, may be quashed either in the court below or this Court, these
things operating as a stay of execution.
In the Circuit Court of the United States for the Western
District of Pennsylvania, Harriet Bishop, the defendant in error
and a citizen of the State of Ohio, obtained a judgment against
Stockton and Moore for $6,500 damages and costs, on 7 December,
On 15 December, 1843, Stockton and Moore entered into a bond
with Hugh Campbell as surety, for the prosecution of a writ of
error to this Court, which was approved by the judge, and, on the
same day, a writ of error and citation was sued out. On 16
December, 1843, the citation was returned served on R. Biddle,
Esq., attorney of defendant in error.
On 11 January, 1844, the plaintiff below sued out a writ of
and placed it in the hands of the marshal,
returnable on 20 May.
Coxe moved to quash the writ of fieri facias,
been irregularly issued.
Page 43 U. S. 75
MR. JUSTICE STORY delivered the opinion of the Court.
Upon the facts stated in the application, there is no doubt that
the writ of error, bond, and citation, having been given in due
season according to law, operated as a stay of execution, and that
a supersedeas to the fieri facias
ought to issue from this
Court, to supersede and quash the same, as prayed for in the
motion. Indeed, the issuing of the execution was wholly irregular,
and it might have been quashed by an application to the court
below. But it is equally competent for this Court to do the same
thing in furtherance of the purposes of justice.
The motion is therefore, granted and a supersedeas will be
"UNITED STATES OF AMERICA, ss.: "
"The President of the United States of
"To the Honorable the Judges of the Circuit Court of the United
States for the Western District of Pennsylvania, and to the Marshal
of the United States for the said district, greeting: "
"WHEREAS, lately in the said circuit court, _____ before you, or
some of you, in a cause between Harriet Bishop, plaintiff, and
Lucius W. Stockton and Daniel Moore defendants, judgment was
rendered by the said circuit court on 7 December, 1843, in favor of
the said plaintiff and against the said defendants, for the sum of
$6,500 and costs of suit, and on 15 December, 1843, the aforesaid
defendants, with sufficient security, filed their bond in error,
which was approved by the judge of the district court, so as to
operate as a supersedeas, the defendants having sued out a writ of
error in due form and time, and a citation having been regularly
taken out, served upon the defendant in error and duly returned, as
by the inspection of the transcript of the record of the said
circuit court, which was brought into the Supreme Court of the
United States, by virtue of a writ of error, agreeably to the act
of Congress in such case made and provided, fully and at large
appears. And whereas, in the present term of January, in the year
of our Lord one thousand eight hundred and forty-four, it is made
to appear on affidavit to the said Supreme Court of the United
States, that, notwithstanding the premises, the aforesaid plaintiff
in the said circuit court caused a writ of fieri facias
be issued on 11 January, 1844, upon the judgment obtained in said
cause, and to be placed
Page 43 U. S. 76
in the hands of the aforesaid marshal for service and
satisfaction thereof. On consideration whereof, it is now here
ordered by this Court that a writ of supersedeas be, and the same
is hereby awarded to be directed to the aforesaid marshal,
commanding and enjoining him and his deputies, to stay every and
all proceedings upon the said writ of fieri facias,
that he return the said execution with the writ of supersedeas to
the said circuit court, and that the judges of the said circuit
court do cause the said writ of execution to be quashed, the same
having been unjustly, improvidently, and erroneously issued out of
the said court, at the instance of the said plaintiff. You
therefore, the marshal of the United States for the Western
District of Pennsylvania, are hereby commanded that, from every and
all proceedings on the said fieri facias
or in any wise
molesting the said defendants on the account aforesaid, you
entirely surcease, as being superseded, and that you do forthwith
return the said fieri facias,
together with this
supersedeas to the said circuit court, as you will answer the
contrary at your peril. And you the judges of the said circuit
court are hereby commanded that such further proceedings be had in
the premises, in conformity to the order of this Court, and as
according to right and justice, and the laws of the United States
ought to be had, the said execution notwithstanding."
"WITNESS the HONORABLE ROGER B. TANEY, CHIEF JUSTICE of the said
Supreme Court, 13 March, in the year of our Lord, one thousand
eight hundred and forty-four."
"WM. THOS. CARROLL"
"Clerk of the Supreme Court of the United States"