such vessel, and every one interested may become parties; but as it is a specific proceeding against a chattel, the order of the court decreeing the sale of such chattel vests the title in the purchaser, no matter who the owner is or what his interest may be, if the court has jurisdiction over the subjectmatter. Such seizure and sale divests all prior liens and claims; and all lien holders and claimants are compelled to seek satisfaction of their claims out of the proceeds of the sale which are subject to distribution by the court. The writ is the statutory manner of executing the decree of condemnation and order of sale. It points out specifically the property to be sold; no levy is necessary, the property being already in custodia legis, the proceeds are returned into court, and by it disposed of. In all admiralty cases the sale is made on a kind of special execution, and by the marshal of the district in which such seizure is made, who, in making the sale, is the agent of the court to carry its order into effect."

§ 388. SALE IN ADMIRALTY. Where a libellant in a suit in rem establishes a clear legal right to a condemnation and sale, there is no power in the court to refuse or postpone it.' The party commencing proceedings first is entitled to prior payment. In such sales, after the satisfaction of prior liens. if there is a surplus after paying them, it is applied on the

1 The Mary, 9 Cranch, 126. Crousdon v. Leonard, 4 Id. 434. Gelson v. Hoyt, 3 Wheat. 246. French v. Hall, 9 N. H. 137. Penhallow v. Doane, 3 Dall. 86. Commander-in-Chief, 4 Wall. 52. The Monte Allegro, 9 Wheat. 616. Griffith v. Fowler, 18 Vt. 390. Hight v. Steamboat, 4 Iowa, 472. Phegley v. Tatum, 33 Mo. 461. McCall v. Elliott, Dudley, 250. Grignon's Lessee v. Astor, 2 How. 338. Beauregard v. New Orleans, 18 Id. 497.

Brackett v. The Hercules, Gilp. 184. The Amelia, 6 Wall. 18. Rem

nants in Court, Olcott, 382. Harper v. New Brig, Gilp. 536.

The Phoebe, Ware, C. C. 354. Andrews v. Wall, 3 How. 568. The Siren, 7 Wall. 152.

4 Soward v. Pritchett, 37 Ill. 517. Coffee v. Coffee, 16 Id. 145. Bozza v. Rowe, 30 Id. 198. Armor v. Cochran, 66 Penn. 308. Moore v. Schultze, 13 Id. 102. Mason v. Osgood, 64 N. C. 467. 391.

Hurst v. Stull, 4 Md. Ch.
Inglehart v. Armiger, I Bland
Ch. 527.

Davis v. New Brig, Gilp. 473.
The Globe, 2 Blatch. R. 427.

payment of mortgage debts next.' within the statute of frauds.'

Such sales are not

$389. EXECUTIONS UPON DECREES IN ADMIRALTY AS AFFECTING LAND. In all cases of final decree for the payment of money the libellant shall have a writ of execution, in the nature of a fi. fa., commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulators. Until 1862 there had been no executions issued out of the admiralty courts, under which the real estate of a libellee would be taken in the same manner as upon final process out of the state courts. The question having arisen, the supreme court of the United States, by CLIFFORD, J., said, "Courts of justice may construe a legislative opinion, but they can not repeal what is expressly enacted. When Congress, in plain and unambiguous terms, declares that writs of execution on decrees rendered in any of the courts of the United States, and the proceedings thereupon, shall be the same as now used in the courts of such state, it is not possible for this court to hold that the decrees of one of the courts of the United States are not embraced in that provision; especially not, as the very court whose decrees are said to be excluded from the provision is specifically mentioned in the first section of the same act, as one of the courts of the United States, and its proceedings there made the subject of special and material regulation. Exclusive original jurisdiction in admiralty and maritime cases, is conferred upon the district courts of the United States, but the circuit courts hear such cases on appeal, and, as a matter of daily practice, render decrees therein for the payment of money; and it is not to be doubted, we think, that such decrees are as much within the provisions under consideration as decrees in equity; and, if so, no reason is perceived why the

1 Remnants in Court, 10 Olcott, 382.

'The Monte Allegro, 9 Wheat. 616. Rule of Admiralty Courts, U. S.

same rule should not be applied to decrees of a like character rendered in the district courts.'

991

$390. STAY OF EXECUTION IN U. S. COUrts. Section 18 of the act known as the Judiciary Act, provides that in all civil actions, after the rendition of judgment, executions may, on motion of either party, at the discretion of the the court, on such conditions for the security of the adverse party as may be judged proper, be stayed forty-two days from the time of entering judgment, in order to allow the parties time for the filing of a petition for a new trial, and upon a certificate of the filing of such petition, execution is further stayed until the succeeding term of court. Section 23 of the same act provided that writs of error should be a supersedeas and stay of execution in cases only where the writ of error is served within ten days after the rendition of judgment. Not until after the expiration of the ten days shall executions issue in any case where a writ of error may be supersedeas. But under the eleventh section of the act of June 1st, 1872, "To further the administration of justice" (and which allows any person desiring to have a judgment, decree, or order, &c., reviewed on error or appeal, and to stay proceedings during the pendency of such writ of error or appeal, to "give the security required by law therefor, within sixty days after the rendition of such judgment, decree, or order," &c.), it is not necessary to make it a supersedeas, that the writ of error be served, as was required by the twenty-third section of the Judiciary Act, or the supersedeas bond be filed, within ten days (Sundays excepted) after the rendering of the judgment complained of. The supersedeas bond may be executed within sixty days after the rendition of the judgment, and the writ may be served at any time before, or simultaneous with, the filing of the bond.'

$391. REQUISITES TO OBTAIN A SUPERSEDEAS. To entitle a party to the privilege of a supersedeas, he must strictly Ward v. Chamberlain, 2 Black. Telegraph Co. v. Eyser, 19 Wall

comply with the requirements of the statute, both as to time of serving the writ and as to the security to be given. He must bring himself within the letter of the law, or the supreme court will not interfere with the execution of the judgment below pending the review.' There is no equitable power in the court to stay execution on the ground of mistake in the appellant's proceedings.' The security necessary to be given, must be for the whole amount of the judgment. The time runs from the date of the entry of judgment in the inferior court.' Where the judgment is given in the highest court of a state on appeal or writ of error from an inferior one, and the record is returned to the inferior court, with the order to enter judgment thereon, the time runs from the day the judgment is entered there.*

Adams v. Law, 16 How. 144. Hogan v. Ross, II Id. 294.

Saltmarsh v. Tuttle, 12 How. 387. 38

8 Hogan v. Ross, II Howard, 294.

4 Green v. Van Buskirk, 3 Wall. 448.

CHAPTER XXIII.

STAYING, SUPERSEDING, ENJOINING, AND QUASHING EXE. CUTIONS.

When they may be stayed.-Causes for staying.-Stay of exccution in justices' courts; what will be sufficient.-Supersedeas. -What it is.-Requisites of.--When it will be granted. -How granted.-Effect of.-Of the effect of a reversal or setting aside of a judgment by an appellate court.-As to purchasers, with and without notice.-Of staying proceedings by injunction. When and for what causes injunctions will be granted.-Effect of an injunction. When an injunction will not be granted.--Of the effect of the dissolution of the injunction. When an execution will be quashed.—Causes for quashing-When it will not be.-Effect of quashing an

execution.

392. Having traced the proceedings on final process from its issue through the various steps necessary to make it effectual, showing how it is executed, when to be executed, and the matters arising the matters arising from proceedings thereunder, there is yet another matter of importance to the debtor, and perhaps the most important of all the proceedings relating to execution. That is the stay of an execution, by motion, by statutory enactments permitting it to be stayed, by appeal, writ of error or supersedeas, by injunction, and by quashing it or setting it aside. And where superseded, or if the judgment be reversed in an appellate tribunal, of the party's, rights, and remedies. It must be understood that the execution of final process concerns only the creditor and the debtor, the plaintiff and defendant, and they alone are interested in the regularity of the officer's