pending the appeal heretofore granted in this case, and that, in pursuance thereof, and in obedience to the statutes in that behalf regulating the supersedeas of proceedings pending an appeal, the execution of said decree be, and it is hereby, stayed, as it has been heretofore stayed since the said appeal was taken, the property remaining in the hands of the receiver, as heretofore; the original bond not to be affected in any way by the allowance of the new bond, but to stand as if this order had never been made.

To all of which the plaintiffs except, and ask that their exception be entered of record, and that the affidavits used upon both sides upon the hearing of these motions be filed as a part of the record, and taken as such to all intents and purposes as if they were incorporated in a bill of exceptions, which, in that respect, this order shall be taken to be, which is granted, and it is done accordingly. And thereupon the plaintiffs pray an appeal from this order, and from that of April 26, A. D. 1886, which is allowed; and their bond for $250, conditioned as appeal-bonds are required by law to be, with T. B. Edgington as surety therein, executed and filed this day, is accepted and approved by the court, the defendants in open court waiving all other citation and notice; the affidavits so used upon the hearing of these motions, and so as above made a part of the record, and as though embraced in a bill of exceptions for the purposes of this appeal, being those of C. W. Frazer and D. H. Poston, dated June 22, A. D. 1886, and of T. B. Edgington, dated June 28, A. D. 1886, and of W. B. Weisiger, dated June 29, A. D. 1886; the same being properly filed, and entitled in this cause.

NOTE BY JUDGE HAMMOND.

AMENDMENT OF THE BOND. Rafael v. Verelst, 2 W. Bl. 1067; S. C. Cowp. 425. There were two defendants, with verdict against one and in favor of the other. Writ of error joined both, as did the bail in error, which was by recognizance. Motion, in the appellate court, to amend the writ, granted. Same day fi. fa. issued and levied, although plaintiff in error offered to alter the recognizance; motion in court below to quash fi. fu., and to amend the recognizance, granted; and bail in error entered into a new recognizance. In Justice v. Mersey Steel Co., 1 C. P. Div. 575, the old practice of giving bail in error on appeal to house of lords being still in force, the defendants in error, not knowing that, put in no bail; fi. fa. issued; application to appellate court to extend time and stay execution pending appeal. Held, application should be made to the court below.

Attorney General v. Swansea, etc., Co., 9 Ch. Div. 46. Practice now in England that in equity cases application to stay proceedings for any cause pending appeal should be made by to the court below in the first instance, and, if refused, then to appellate court by motion by way of the appeal." But see Wilson v. Church, 11 Ch. Div. 576; S. C. 12 Ch. Div. 454.

That a bail-bond could always have been amended, see 1 Bac. Abr. 567, tit. "Bail in Civil Cases," D 4; Hampton v. Courtney, Cro. Jac. 272; Anderson v. Noah, 1 Bos. & P. 31, and numerous other common-law authorities.

In the chancery practice of England there was no difficulty; for, if the stay of proceelings should be granted below, of course the terms as to security bonds. etc., were all in the control of that court, but if by the house of lords, then, of course, in the control of that court; and, in both, the proceedings were subject to amendment as liberally as proceedings in chancery always were, but the application had to be made to the court in which the stay had been obtained. The only difficulty in our practice is in determining to which court the bond belongs, or in which the proceedings for stay may be said to be taken; for, unlike a writ of error at law, the appeal is granted below, while the bond is taken below in both; and in neither is the supersedeas directly and expressly ordered, as it always is in chancery in England, but comes by an implication from the statute, addressed alike to both the appellate court and the court below. 2 Daniell, Ch. Pr. (1st Ed.) 675; 3 Daniell, Ch. Pr. 105, 109, 134, 136, 140, and 97-150 generally; 2 Daniell, Ch. Pr. (3d Ed.) 1467.

In Arnold v. Frost, 9 Ben. 267, BLATCHFORD, J., held that an appeal-bond was so much a part of the suit in which it is given that an action on it might be maintained in the same court where given, as ancillary to the original suit, on a question of jurisdiction.

In Tipton v. Cordova, 1 N. M. 383, an appeal-bond was held to be "process" under the internal revenue act, and as such required a stamp.

In Bentley v. Jones, 8 Or. 47, it was held that the appeal-bond was not properly a

Martin v. Hunter's Lessee, 1 Wheat. 374, we must not resort to "hypercritical severity in examining the distinct force of words," etc. Therefore, when we construe this language by the light of the law of supersedeas, 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 supersedeas. But the plaintiffs were not content with this, but invoked the extraordinary 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 tenants without ejectment. We allow no man to eject the receiver, or to sue him, or to tear down the buildings, (which power has been invoked in this case as against the city police,) without our consent. Why, then, does not this extraordinary procedure of appointing a receiver likewise stretch itself beyond the ordinary law of statutory supersedeas, and present some element of its own in that regard? It does, I think.

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 of the statute and the bond; and, as against the defendants, they would be entitled to a writ of assistance to acquire that possession which ordi

narily belongs to the right of property; but they have themselves defeated that effect by taking the possession of the property from defendants, and placing it with this court. On applying here for possession other procedure comes into play, and the fact appears that there has been an appeal, and the question is, shall the court surrender its possession because there has been no bond under the statute? erally, it ought to do so; because, but for any statutory command to stay its further action on the giving of a proper bond, generally it would do so. 3 Daniell, Ch. Pr. (1st Ed.) 105-110. I mean that whatever restrictions there may be in this statute, if it were out of the way, the court would, notwithstanding an appeal, pass the possession along with the right of property, unless some equitable consideration supervened to prevent it. I have already suggested those that should influence this court to withhold that possession in this case, at least temporarily, until the appellate court can be heard from; and, I think, until the appeal is finally heard.

Moreover, if the defendants had given a bond which would have suspended the force of the decree declaring the right of property to be with the plaintiffs, the latter could not have expected the court, in the exercise of its power over receivers pending an appeal, to surrender possession to them, not because the supersedeas deprived the court of its power over the receiver in that behalf, but because, not having the established right of property, they would not be entitled to possession,-not any more than they would have been if the final decree had declared the right of property to be with defendants; and, certainly, if that had been done, the plaintiffs would not have wished the court, pending appeal, to let the defendants into possession, though the power to do so would have been unquestioned. But the defendants have been deprived of that statutory supersedeas which would have suspended the plaintiff's right of property as declared by the final decree, by a mistake of some one, against which they may equitably ask this court to relieve them by continuing the receiver pending the appeal otherwise than through a supersedeas, if it has the power to do so. That it has that power by a direct stay of proceedings for the discharge of the receiver, pending the appeal, I do not doubt. The plaintiffs, if occasion required, could be relieved against the mistake by a reformation of the contract upon a bill for the purpose. 3 Pom. Eq. 1367; 2 Pom. Eq. 843, 845, 846, 852, et seq.; Bisp. Eq. 469, 871; Ivinson v. Hutton, 98 U. S. 79; Snell v. Insurance Co., Id, 85; Elliott v. Sackett, 108 U. S. 132; S. C. 2 Sup. Ct. Rep. 375; Pickersgill v. Lahens, 15 Wall. 140; State v. Frank, 51 Mo. 98; Craft v. Dickens, 78 Ill. 131.

Let us suppose, for instance, that plaintiffs had not discovered this mistake until after an affirmance of our decree, and a suit by them upon the bond, does any one suppose they could not, on a bill, reform it according to the facts stated here, and would not defend-. ants and their surety be liable for "damages" according to their real

intention? Then, why is the bond, within the purview of a court of equity, looking at the real facts, any less a supersedeas bond, here and now, upon the principle of treating that as done which ought to be done? "It is a peculiar excellence in chancery, on many occasions, that it goes behind writings, and even sealed instruments and judgments, to ascertain how the original transaction stood, and what were its true obligations, in order to enforce them." U. S. v. Price, 9 How. 83, 102. If, therefore, the defendants have been defeated of their intention-and they had the right of absolute choice upon executing the statutory bond, so that it need not be a mutual mistake, since the plaintiffs had no choice as to the terms of the contract-to give a supersedeas bond, which would have suspended the plaintiff's right of property, and, as a consequence of that suspension, any right of possession pending the appeal, by a mistake relievable in equity in favor of the plaintiffs, if they desired it, I do not see any reason why the plaintiffs should not be, in a court of equity, called on to act in the premises wherever the matter is involved, left to resort to that remedy, or else compelled to accept the defendants' offer to make the bond complete. Of course, only upon any just terms as to security or indemnity, and that containing the same condition as the statutory bond would be just; or an amendment of the defective bond to conform to the statute, by the consent of the surety, would be just, and precisely what a court of equity on a bill to reform the contract would grant.

On this reasoning, if it be correct, the right of this court to direct the amendment or a new bond does not depend on any jurisdiction it may have over the instrument qua a supersedeas bond, or any authority over the appellate proceedings which might be deemed a usurpation, but only on the fact that, having lawful custody of the res, and a plenary discretion to allow or refuse a surrender of it to the plaintiffs on their application to enforce the decree, (so far as the decree relates alone to that custody, and no further,) it may exercise that authority according to the demands of the equitable considerations here suggested, and refuse to deliver possession to the plaintiffs in spite of their unsuperseded decree, if the defendants shall voluntarily correct the mistake. And it should be remembered here that, by invoking this extraordinary authority of the court over its receivers to continue them or not upon these equitable considerations, we neither create nor restore the statutory supersedeas, do not substitute another, nor affect the rights of the plaintiffs growing out of any want of one. We simply and independently, upon our own terms, withhold possession from them until the supreme court can act. To show this distinction, let us imagine that no supersedens bond had been given at all, or attempted or intended to be given, but, before the receiver was discharged, the defendants, by motion or petition, should apply to this court to continue the receiver, or to appoint one originally, pending the appeal, and we should rightfully or wrongfully do that, is it not

plain that the plaintiffs' rights of property under the final decree would not be affected by the action of the court? No more are they affected by the action we now take in continuing this receiver.

The only possible fault with this reasoning that occurs to me is, that by the final decree we adjudged, not only the right of property, but also the right of possession,-construing the decree as plaintiffs construe it, to them; thereby technically bringing the possession of the receiver within the influence of the supersedeas law, so that the right to that possession, so decreed, could only be suspended by command of the statute, and not otherwise. The court and parties certainly intended to surrender the possession along with the right of property decreed, unless defendants complied with the statute; but the court did not intend to do so by that decree, and supposed that, if the defendants did not give the bond, the receiver would first pass his accounts, and then surrender the property by some subsequent order to that effect. But this is beside the question, and of no importance now, I think; for, being better informed, the court finds it has larger power than it was aware of, and that its continued control does not depend at all upon whether a bond was given or not. I think it is not precluded by the final decree from exercising that larger power.

In other words, it is proposed now to exercise only that power which Mr. Justice BRADLEY Confirms in Hovey v. McDonald, 109 U. 2. 150, S. C. 3 Sup. Ct. Rep. 136, and Mr. Chief Justice WAITE in Leonard v. Ozark Land Co., 115 U. S. 465, S. C. 6 Sup. Ct. Rep. 127, and for the exercise of which, so far as it relates to injunctions, the ninety-third equity rule was established. That rule does not extend to the regulation of the practice in the matter of continuing receivers pending an appeal, but the power is not created by or derived from the rule at all, and exists without it. The court not yet having prescribed any precise regulations in relation to receivers, we are directed by equity rule 90 to the general practice as it existed in 1842, just as the supreme court itself is directed by its rule 3 to the practice prior to 1791. This practice, in its relation to receivers, Mr. Daniell briefly summarizes at the last citation above made from that author, and Mr. Justice BRADLEY in Hovey v. McDonald, supra. That case is somewhat complicated by a reference to the local practice on appeals from special to general term in the District of Columbia, which misled counsel in Leonard v. Ozark Land Co., supra; but a careful reading makes it very plain in its application here. I had intended to quote largely from it, but forbear, as nothing less than a careful reading of the whole case will suffice. It was the case of a receiver, and I regard it as directly in point as to the doctrine to control us here. It shows that the supersedeas of the statute does not suspend the power of the court below as to the receiver, pending the appeal, any more in a case coming from the circuit court than the one from which that appeal then under discussion came. It is a general principle of our appellate law, established, as to the effect of an appeal