
    GENERAL COURT,
    APRIL TERM, 1804.
    The State, use of Warder, vs. Page et al.
    
    After a fieri fa• das has been laid, and before a'sale of the property seized thereunder, a writ of error, bond with securi** ty having* been approved, operates as a supei'sedeasto stay further pro* ceedings under tha fieri facias.
    
    In this case a. fieri facias, which had regularly issued on the 2/th of June 18.03. upon a judgment ren, dered in this court, vvas laid on the defendant’s personal property on the 19th July 1S03. A special return was made, as to Henry Page, one of the defen-, dants, viz. That the sheriff advertised that the property would be sold at public sale on the 29th of August, and on the 25th of August 1803, a writ of error, endorsed, bond filed and securities approved, being produced to him, dated the 9th of August, he stayed proceedings.
    
      Motion on the part of the plaintiff for a venditioni exponas.
    
    
      Houston and J. Goldshorough, for the Plaintiff,
    contended, that the fierifacias having been laid before tho issuing of the writ of error, the sheriff ought to have proceeded, 1 Salk. 323. That an execution is an entire thing, and the fieri facias having been begun could not be superseded. Cro. El. 59/. That a record removed before sale, and a supersedeas delivered, yet venditioni exponas was allowed.- 4 Bac. Mr. 648.
    
      Martin, (Attorney General,)
    against the motion, contended, that by the act of assembly of 1/13, eh. 4, and the practice of this state, no writs of superse-deas actually issued j but bond being filed, the writ of error is a supersedeas from its date, and the sheriff is only in contempt for what he does after it is shewn to him. It stays proceedings in the situation in which it finds them—so finding one in custody on a ca. sa. or goods taken under a fi.fa. so injunction will stop proceedings in any stage, liar. Pr. in Chan. The execution is entire as to the sheriff so far as to permit him, and his representatives on his death, or death of the defendant, to complete, it—and if goods are taken on a H. fa. the writ of error enables the sheriff to return them, security being given. That the case in Salkeld, 323, was not a case at' a writ of error, and that cited from Cro. Eli». 597, was of no weig’hteven tinder the English law. It was decided, Hil. term, 40 Eli».} and Moore’s Reports contain the same point, decided by two justices only, and is an anonymous case. That by Jloll. Mr. 491, pi. 5, 6, (decided 17 Jac. I,) there is no change of property on the seizure by the sheriff under a Ji.fa. where a supersedeas on a writ of error is delivered before sale. If the sheriff takes goods on Ji.fa. and a writ of error is produced, it is a supersedeas. 2 Bac. Mr. 210. See note on Cro. Eli», in the old editions of Bacon’s Mridgment, which is omitted in the 5th edition.
    
      Houston and J. Qoldslorough, replied, that by the Seizure the goods were in custodia legis, and the defendant discharged pro tanto. They denied the authority of the case in Rolle’s Mridgment. The reason of which, viz. «that the property is not altered by the seizure,” they said, was overruled in 1 Salk. 323, and 2 Ld. Raym. 1072-3, and they cited Felv. 6, 61, 44, to show, that so far as the sheriffhas taken goods under a.Ji.fa. he must sell. That the delivery of the supersedeas shall stay for the residue not taken in the sheriff’s hands. That if, before n, writ of error, the sheriff has takpn goods and returned them on hand pro defectu emptorum, the execution is not to be undone. 1 Ventris, 255, (in 25 and 26 Car. II.) per Lord Hale| and Holt’s opinion, 2 Ld. Raym. 990; also 4 Bac. Mr. 684, which cited, thp case in Roll. Mr.
    
    
      Martin, (Attorney General,) in reply to the new cases, with leave of the court, said, that the case in Feiv. 6, was contradictory in itself; and if it was in point at ail, was rather in favour of the defendants. The true construction, he said, was that the goods taken should await the decision in error, being in abeyance. That 1 Ventris, 255, was the case of a return actually made to the court from which the f. fa. issued, the proceedings were not in fieri, but facta. In 2 
      JL&. Eaym. 990, the question was how to get at the constable.
   Chase, Ch. J.

delivered the opinion of the court. The writ of error operates as a supersedeas from the time of filing the bond; and if no sale was then made by the sheriff, it prevents and stays him making sale. The court therefore refuse to order a venditioni expo-nas in this case.

The sheriff has a special or qualified property in the goods seized under a fieri facias; they are from that time in the custody of the law, and the property is not absolutely altered until a sale made by the sheriff.

Motion heeusexh. 
      
      
         The decision given in this case was overruled by the Court of Appeals at December term 1806, in the case of Beatty’s adm’rs vs. Chapline.
      
     