p . rsseusorc v. mzxr. 3
ing, but did not inspect it, and do not know whether it contained the
words "and damages" or not; but he left my chambers to write a
bond which would be sure to have those words in it: He is altogether
mistaken when he says in his affidavit that, "under the direction of
the court, the clerk made out the bond as filed."` I gave no direc-
tions about it, and had nothing to do with it, except to justify the
surety and approve it, which I did, as I always do, without the least
scrutiny. of the bond; for it is the business of counsel to see that it is
in the form they wish it, and it is a matter about which I should not
and do not meddle at all.
But, in my own view, it is wholly immaterial how this mistake in
the bond occurred. It is not in form a supcrsedeas bond. Yet it oper-
ated dcfa-ctc as a superscdeac bond for seven months from September
29, 1885, the date it was Bled, until April 23, 1886, when counsel
for the plaintiifs nrst discovered the omission, and applied to the
clerk for a writ of possession to oust the receiver. I was then absent
at Cleveland, Ohio, holding court, and, upon my return, sua sponte
revoked the action of the clerk, and restored the possession to the re-
ceiver, because it was not, in my judgment, a case for action by the
clerk, and the receiver could not or properly should not be dispossessed
except upon the order of the court, and possibly not without an ap-
plication to the supreme court itself.
It is true that the opinion in the case, and the decree following
it, directs that "the receiver deliver possession to the plaintiffs, for
which purpose a writ of possession should issue to place them in the
quiet possession of the property, freed from all tenants of the receiver
and their effects," (Ferguson v. Dent, 24 Fed. Rep. 426;) but this was
merely a mode of declaring the right of the plaintiff to the property,
and was not intended, at least, to direct that the receiver be dispos-
sessed without a further order of the court to that end. Strictly speak-
ing, there is no such thing in our equity practice as a writ of possession,
and certainly none is ever needed to dispossess a receiver of the court.
If a receiver should refuse to obey an order of the court, possibly a ·
writ of assistance might be issued by the clerk, under equity rule 9; ‘
but even that is doubtful, for it seems to provide rather for that writ
as against the parties to the suit without an application to the court
which otherwise would have to be made. 2 Daniell, Ch. Pr. (1st Ed.)
724; 1 Daniell, Ch. Pr. 643. We have, in Tennessee chancery prac-
tice, a writ of possession in analogy to that writ in ejectment at law;
but that, of course, has no application here, though it was used in
Wallen v. Williams, 7 Cranch, 278. At all events,this decree meant no
more than would have been implied if it had not contained the direc-
tions as to a writ of possession against the receiver. Mr. Daniell
~ says:
‘f The appointment of a receiver, made previous to a decree, will be super-
seded by it, unless the receiver is expressly continued. A receiver, however,
is never discharged by decree, but the application for his discharge must be ’·