
    James Conn v. Thomas Doyle.
    Writ of error and supersedeas from the territorial general court to common pleas, staying proceedings when sheriff has vendi. in his hands, judgment affirmed. Procedendo from general court to sheriff, authorizing him to proceed to sell, is irregular, and sale under such procedendo is void.
    A motion was made in the Supreme Court for Hamilton county, by Charles Yattier, for an order on the present sheriff of Hamilton county, successor of James Smith, a former sheriff, to make the applicant a deed for tho lot No. 86, in Cincinnati, alleged to have been sold by Smith, as sheriff, upon legal process, to Yattier. The facts of the case, material to be stated, were as follows:
    
      At February term, 1801, in the common pleas of Hamilton county, James Conn obtained a judgment against Thomas Doyle for debt and costs; fifty dollars and seventy-three cents. C. Yattier, at the same term, also obtained a judgment against Doyle for debt and costs, thirty-seven dollars and fifty-two cents. On February 11, 1801, a writ of ft. fa. et. lev. fa. issued on each judgment. On each of these writs, the sheriff made the same return, that he had levied on the house and lot, No. 86, and held an inquest, which appeared in the schedule annexed to the return. The inquest attached to each writ, found the yearly issues to be of the value of twelve dollars.
    On May 12, 1801, a writ of vendí, issued on each judgment, upon which the sheriff returned, “stayed by writ of supersedeas from the general court.”
    *In April, 1801, writs, of error were allowed and issued in both cases, and on the 30th of April, writs of supersedeas issued to the sheriff, commanding him, that if final process of any kind was in his hands, or should come into his hands, in the causes stated, he should forbear, and altogether surcease proceedings thereon until the judgment of the general court should be signified to him.
    On March 27, 1802, a writ of procedendo issued from the general court in the case of Conn and Doyle, directed to the sheriff, reciting the issuing of the writ of supersedeas and the writ of error, and the affirmance of the judgment, and commanding the sheriff as follows: “Therefore, you will now proceed to do execution in the premises, as the law directs, our writ of supersedeas aforesaid, to you before directed, to the contrary thereof in any wise notwithstanding.” Upon this writ of procedendo is indorsed the amount of damages, interest, and costs, in the common pleas, the costs in the general court, and sheriff's fees, amounting in the whole to ninety-five dollars and ten cents. The sheriff has also indorsed upon this writ as follows: “I have sold the property within referred to, being in-lot No. 86 in Cincinnati, to Charles Yattier, for ninety-five dollars, and have made the money.”
    It was proved by parol testimony, that Yattier purchased the lot at sheriff’s sale, and that the sale was advertised in a newspaper, in the manner prescribed by law.
    The question arising upon these facts was reserved for decision here.
    
      Caswell, for the application.
    Doddridge and Haynes, against it.
   By the Court :

This application is made to us, upon the ground that the writ of procedendo, from the general court, was the process upon which the sale was made, and that the Supreme Court of the state now represents that court.

By the judgment of affirmance, upon the writ of error, in the general court, the judgment of the common pleas, *and the proceedings under it, were placed in the situation in which they stood when the writs of error and supersedeas issued. The party was at liberty to sue out a new writ of venditioni, upon which the sheriff could proceed as he would have done upon the writ previously superseded in his hands. The procedendo, if it were well directed to the sheriff, which is certainly doubtful, conferred no power to sell. It only removed the prohibition interposed by the writ of supersedeas. The authority to sell was originally given by the process of the common pleas; it had been suspended, but was not taken away by the writs of error and supersedeas. The procedendo restored it, but did nothing more. If the sale was really made without other process than the procedendo, it was made without authority. As no other process issued from the general court, this court, now representing that one, can not make the order asked for. They have no jurisdiction of the subject,'and the application must be overruled.  