4 FEDERAL REPORTER.
made by petition," etc. 3 Dauiell, Ch. Pr. (lst. Ed.) 408; 2 Dnuiell, Ch. Pr.
(5th Ed.) 1765.
Naturally enough this final decree was treated as a direct order of
the court to dispossess the receiver; and, strictly, there should have
been an order continuing his possession after the decree, and pend-
ing the appeal; so while, under the circumstances, neither the plain-
tiffs nor the clerk would be guilty of willful contempt in dispossessing
him, yet, since he had been, without any special order, continuously
in possession since the appeal, and repeated orders had been given
for his direction in the management of the property, it seemed to me
that, whether the bond justified that continued possession or not, the
application to the court, which is now made, should have been then
made, before turning him out, notwithstanding the command of the
Hnal decree. Just as if the final decree, or one subsequently made,
had contained specinc directions for continuing the receiver pending
the appeal, the clerk would not have issued the writ; so that, posses-
sion having been continued, in fact, he should not have issued it
without a further order to that effect. For these reasons the motion
to vacate the order of revocation is denied. I cannot sanction any
interference with the receiver’s possession without the special order
of the court whose receiver he is; and, under the circumstances
stated, the nnal decree cannot be treated as such sanction, whether
the bond be a supersedeas bond or not.
It does not follow, even at law, that the court will either issue an
execution, or refuse to quash one issued by the clerk, simply because
the bail in error is fatally defective. The text writers, abridgments,
and cases show that it is very much a matter of sound discretion in
the court; and one of the chief influences in controlling that discre-
tion is the desirability of preserving the existing status until the ap-
pellate court can exercise its undoubted power of determining whether
there be in facta fatal defect or not. Undoubtedly, the plaintiff, the
clerk, and the sheriif—indeed, all the officials concerned—may be
called on to determine, each for himself, just as the clerk did here,
‘ whether the judgment or decree has been superseded or not by the
writ of error or appeal; and each for himself must act at his peril,
for there is no tangible writ of supersedeas to guide them. It is done
`by implication of law from the existing facts, and the matter to be `
` determined is whether there can be any action towards executing
the judgment or decree,-—whether there be any supersedcas. Still,
the court can always revise that action of the officials, andthe fallacy
is in supposing that the matter is to be always determined by either
the officials or the court solely and exactly upon the face of the bail-
piece, be it recognizance or bond. Often the court below will not
proceed, notwithstanding the defects; and just as often it will refuse
to interfere where execution has in fact issued under equivocal cir-
cumstances, although there may be in fact no defect, and in a law a
supersedcas,—1eaving the party to some other remedy, such as an in-