
    HAYDEN vs. HERBERT, ex’r. of DUNLAP.
    An appeái from a ^ecifion of an inferior court overruling a motion to fet afide proceedings fubfe-quent to judgment, does not fuperiede the proceedings un, der the princi* pal judgment.
    Cofts will not be given on the dec.ilior. of a motion for an attachment-
    
      January 12th.
    
    SOME years since, Dunlap obtained, in the general court, a judgment against Hayden ; execution issued on it, and a replevy bond was given. An execution issued on the expiration of the replevy, and land was taken but not sold.
    After this Dunlap died. His executor, by his agent, issued a venditioni exponas, under which the land taken, was sold for part of the debt. Hayden, by his counsel, moved the general court, at their jast term, to quash the replevy bond, venditioni exponas, and proceedings subsequent to the judgment, for errors in fact and inlaw, alleged by him to exist in the proceedings. The motion was overruled ; from which decision Hayden obtained an appeal, and entered into bond.
    After the appeal, Herbert, the executor, caused another execution to be issued on the replevy bond, for the balance which was unpaid.
    Notice being acknowledged, a motion was made for an attachment against Herbert, for suing out the execution ; on the ground that the appeal taken was a super-sedeas to the replevy bond and all subsequent proceedings.
    
      Littell and Clay, for the appellant.*
    — The appeal which has been taken from the decision of the inferior court, removes the record here. The proceedings by appeal, are unknown to the common law ; we derive it from the civil law. Under it an appeal removed the whole record and proceedings, and the fact and law were both open for decision. And when by statute we have adopted the appeal, it must retain all its consequences, except where it is restrained by the statute. The errors assigned below, were in the replevy bond and subsequent proceedings ; and by this rule of technical law, the record ought to be considered here, and not liable to be proceeded on there. By the motion below, a question of right was made, whether Dunlap’s executor could proceed without a scire facias ? That right we are about to have determined by this court, by the appeal; and surely an appeal from a decision on that right, supersedes the exercise of that right, until the appeal is decided. Leftwitch vs. Stoval, 1 Wash. 306, and Gordon vs. Frazier, 2 Wash. 134, shew that an appeal will lie from a decision of an inferior court, on a motion to eor~ rect t^le errors of their officers in proceedings subsequent to the judgment. Herbert, the executor, has violated. the supersedeas, if it extends thus far, and therefore an attachment should be awarded against him.
    
      Talbot and Allen, for the appellee.
    — An appeal must be of exact width with the case decided by the inferior court. That court, in giving the decision which has been appealed from, had not the principal judgment in the cause, nor the execution in question, before them. It was, from the nature of the motion, limited J:o ministerial acts, subsequent to the judgment in the cause, and prior to their decision. If the motion below had been successful, it might have set aside intermediate proceedings, but would not have restrained us from ordering a pew execution. Can their being overruled in their motion be more beneficial to them than if they had succeeded in it ?
    The case Dever vs. Peyton, in this court* at October term 1806, in which this court overruled a motion made for a mandamus, to compel the Franklin circuit court to grant an appeal from a decision of theirs, overruling a motion for an injunction, shows the difference between cases where there has been a prohibitory order and the inferior court discharges it, and where the prohibitory order never has been granted. In the former case an appeal will lie, in the latter it will not.
    If in this case, the party had proceeded by writ of error coram vobis, and obtained a supersedeas, and the inferior court had discharged it, an appeal from that decision would have continued the supersedeas» If he had pursued that method without supersedeas, an appeal from, a decision would not so operate. An appeal can only continue to suspend a right which was suspended before, the decision appealed from.
    The appeal removes the record of the motion; restrains us from proceeding on our judgment below for costs ; but does not concern the former judgment. If. the doctrine contended for on the other side, is tolerated, yoiv will, in every case where the party is disposed to be litigious, have a motion to quash an execution, and an appeal. If the judgment be affirmed, a new execution will have to issue ; another motion may be made to quash; another appeal taken ; and thus continued ad 
      
      lorfinitum. It will open a wide field for litigation ; pa-ralize the powers of every court; shut the doors of justice, and render litigation immortal.
    
      January 14th.
    
      January 18th.
    The Court took time, and two days after, overruled the motion.
    . The defendant’s fcourtsel then claimed costs. Some observations were made by the counsel on each side, on that point, and a further day taken for the consideration thereof.
   Edwards, Cii. J.

now delivered the opinion of the ¡court, on that point.

This is an incipient stage of the proceeding, and must be exparte, Until there is the order of this court to bring the defendant in; He cannot, therefore, be entitled to costs for appearing, where his appearance was not required;  