Opinion
06-02-1807
Cheshire v. Atkinson
In this case the following points were decided.
1. That an attachment would not lie from this Court against a sheriff, for proceeding to carry into effect an execution under a decree of a Superior Court of Chancery, after an appeal had been granted in vacation by the Judge of that Court; (although the sheriff had notice of the appeal; ) if such proceeding by him took place before the record was brought up; for it was said to be no contempt to this Court, until the cause was depending therein.
See Rev. Code, 1st vol. c. 64, sect. 59, as to granting appeals in vacation. --Note in Original Edition.
2. That the act of the last session of Assembly, Rev. Code, vol. 2, c. 102, sect. 4, p. 128, which declares, that no appeal from a decree of a Superior Court of Chancery, nor any writ of error or supersedeas shall be granted by the Court of Appeals in Court, but only by a Judge, or by the Judges thereof during the term, or in vacation, was not meant to extend to such a supersedeas as is merely auxiliary to the proceedings of the Court; for example, to stay the execution of a decree of a Superior Court of Chancery; where an appeal had been granted in vacation, and no supersedeas had been awarded at the time.
OPINION
Lyons, Fleming and Roane Judges.