Dyer's Executors v. Beatty 3 Md. 219

GENERAL COURT,

MAY TERM, 1794.

Edward Dyer’s Executors against Thomas Beatty.

IN this case a ca. sa. issued to May term, 1788, hy Dyer against Adams, directed to the defendant, sheriff of Frederick county, and was returned cepi, and on default, judgment was entered against the sheriff.

Dyer, the plaintiff in the execution, being dead before the ca. sa. issued, his executors sued out a writ of scire facias at May term, 1790, to revive the judgment against the sheriff, and at May term, 1791, a fiat was entered against him on the scire facias. The defendant brought a writ of error to the court of appeals, to reverse the judgment on the scire facias. Errors in fact were assigned on the original judgment, and the court of appeals dismissed the writ of error by non pros. The defendant then brought error, coram vobis, on the original judgment, and a second writ of error to the court of appeals on the judgment on the scire facias. After the second writ of error the plaintiff sued out a ca. sa. against the defendant.

The question was, 1. Whether this second writ of error was a supersedeas to the execution ?

2. Whether a writ of error, coram vobis, is a supersedeas ?

It was contended, on behalf of the plaintiff, that if a writ of error abate or discontinue by the act of the party, a second writ of error shall be no supersedeas. The authorities cited were 2 Cromp. Prac. 385. 1 Salk. 263. 1 Ld. Raym. 71. Garth. 370. 2 Stra. '880. 2 Ld. Raym. 1015. 2 Bac. Abr. 209. 1 Stra. 607. 2 Cromp. 351. 358. 377, 378. 1 Ld. Raym. 97» 151.

*220 3P Mechen, for the plaintiff.

Pinkney, for the defendant.