#### Finley and Creath, Plaintiffs in Error, v. John Ankeny, Defendant in Error.

ERROR TO JACKSON.

When the •circuit court, sitting as a court of chancery, grants a re-hearing, the first decree is thereby vacated, and the case stands as if no decree had been rendered in the cause.

After the time of the replevy of a judgment has expired, the plaintiff may, if he chooses, proceed on Ms original judgment without issuing against the security in the repjevy. (1)

(1)

This law is now repealed by statute.

Opinion of the Court by

Justice Lockwood.

This case presents the following facts. Judgment was obtained in the Jackson circuit court in favor of Ankeny against Finley and Creath, at November term, 1822. Subsequently, Finley and Creath filed an injunction bill, and at the August term, 1823, a decree was entered, perpetually enjoining the judgment. *251At the next term after said decree, a re-hearing was granted, and a different decree entered which dissolved the injunction, upon the complying with certain requisitions on Ankeny’s part, first to be performed. From this last decree, Finley and Creath brought a writ of error to the supreme court. At the December term, 1825, of the supreme court, the said decree was reversed generally, at the costs of the defendant in error. On the 18tli of October, 1826, Ankeny procured an execution on the judgment at law. At the April term, 1827, of the Jackson circuit court, a motion was made to quash said execution, upon the ground that the decision of the supreme court operated as a perpetual injunction of the judgment at law, which motion was overruled by the court, and the cause is brought into this court, by writ of error, to reverse the decision of the circuit court in refusing to quash the execution.

It may well be questioned, whether a writ of error will lie in a case situated as this is. If a party proceeds to take out an execution, in violation of an injunction, he can be attached for contempt. But without intending to decide whether a writ of error will lie or not, the court are of opinion that the circuit court decided right in refusing to quash the execution. When the circuit court, sitting in chancery, granted a rehearing in the suit in equity, the first decree was thereby vacated, and the case stood as if no decree had been rendered in the cause. By the reversal in the supreme court, of the second decree, without remanding the cause for further proceedings, or pronouncing such decree as the circuit court ought to have given, the suit in chancery was ended, and left the judgment at law in full force. Consequently, the issuing the execution could not be erroneous. The judgment of the circuit court is affirmed with costs. It was assigned.for error, that the execution does not follow the judgment. It appears, by an examination of the record, that previous to the filing the bill in chancery, an execution issued on the judgment, and the same was replevied by one Garner, who indorsed on the back of the execution, that he entered himself security for the debt; which indorsement, the statute declares, shall have the force and effect of a judgment, and after the expiration of said replevy, the like execution may issue in favor of the plaintiff, against the principal and security, as may issue on judgments at law. The variance relied on is, that the execution should have been on the replevin, and not on the original judgment. But it may be asked, who is injured by this course ? certainly no one.

The statute does not declare what effect the replevy shall *252have on the original judgment. If it had enacted, that upon the execution of the replevin security, that the original judgment should be considered satisfied, it would clearly have been unconstitutional. The only effect that the replevin can, or ought to have, is, to delay the plaintiff, and after the time has expired, he may proceed on his original judgment if he prefers that course. This then, is not error.

Cowles, for plaintiffs in error.

Baker, for defendant in error.

Judgment affirmed.