6 FEDERAL Rnroarma. .
Martin v. Hunter’s Lessee, 1 Wheat. 374, we must not resort to "hyper·
critical severity in examining the distinct force of words," etc. There-
fore, when we construe this language by the light of the law of super-
_ sedeas, as it applies to courts of chancery especially, we are forced to
acknowledge that those courts have not been shorn of their ordinary
' power to stay proceedings pending an appeal, outside of and beyond
this statute. I do not break down the act of congress, nor claim a
power unrestricted by it, nor forget the abundant rulings on it, from
a critical examination of which I have just emerged. But, not to be
misunderstood, and confining the rulings to the facts before us here,
I affirm that when a court of equity appoints a receiver, and by the
_ final decree adjudges the property to belong to one of the parties, it
may, pending the appeal, continue the receiver or not, according to
circumstances; and this statute does not affect that power except so
far as it furnishes an analogy as to the terms it may impose upon
the parties. The appellate court may, beyond question, control the
exercise of the power, but still it exists, and, in my judgment, the
most important consideration to govern the discretion is that which
demands that we save that control of the appellate court which it
should always have over the res to make its jurisdiction effectual. Just
as before the appeal it was within the power of this court, why should
not we do all we ought, to transfer the control to the appellate court?
If _ it be equitable to commence the judicial custody, generally it
would be equitable to continue it.
If we had not appointed a receiver, this property would have been
in the hands of defendants at the final decree. Possession would
have been decreed to plaintiffs, and could have been enforced under
equity rule 9, unless they had perfected the statutory supersecleas.
But the plaintiffs were not content with this, but invoked the extra-
ordinary power of this court to appoint a receiver,-—extraordinary in
its commencement and in its continuance before and since the appeal; ·
and, being extraordinary, it is governed by its own rules as well in
relation to a stay of proceedings pending an appeal as everything
else. We suspend the ordinary laws of procedure, and oust ten-
ants without ejectment. We allow no man to eject the receiver, or
to sue him, or to tear down the buildings, (which power has been in-
voked in this case as against the city police,) without our consent.
Why, then, does not this extraordinary procedure of appointing a re-
ceiver likewise stretch itself beyond the ordinary law of statutory su.-
persedeas, and present some element of its own in that regard? It
does, I think. p
The result of it is that the most that can be technically claimed
by the plaintiffs because of this omission in the bond is that the decree
declaring them entitled to the right of property in this real estate
has not been suspended, as it was intended to be, per force ofthe stat-
ute and the bond; and, as against the defendants, they would be en-
titled to a writ of assistance to acquire that possession which ordi·