upon an injunction, in the Slaughter-house Cases, 10 Wall. 273. The only reasonable doubt in its application here, as before suggested, is as to the power of this court after the final decree and the term at which it was rendered; but the ninety-third equity rule itself recog nizes that it then exists, as well as before, as it did in England, and does yet; for it directs the judge to exercise it when he "allows” the appeal, which may be after the term at which the final decree was There rendered, and at any time within the statute of limitations. is no reason why the court may not exercise it at any time, particularly since Goddard v. Ordway, 94 U. S. 672, decides that it is the duty of the court below, notwithstanding an appeal, to give the necessary orders to preserve the property in the hands of the receiver pending the appeal whenever it remains in its possession.

Now, applying the doctrine here, and it appears that the final decree directed the possession of the receiver to be delivered to the plaintiffs. As already explained, it was not thereby intended to determine that pending the appeal they should have possession. As to that no special directions were given, as ought to have been done; but, as a fact, it was supposed that a supersedeas bond would be necessary to continue the receiver pending the appeal. It was further supposed that a supersedeas bond had been given, and in fact the receiver has been continued without any special instructions to that effect. A bond intended to be a supersedeas, but omitting the operative words, was filed, and the proof shows that the omission was by mistake. But this mistake, under the doctrine we are considering, is beside the question, because, if there had been a good bond, it would not have superseded the directions of the final decree concerning the receiver, be they what they may; and, of course, a defective bond could have no effect in that direction. In Hovey v. McDonald, supra, the directions to the receiver were to deliver the fund, and they were not in the decree at first, but the supreme court sanctioned the insertion of them by amendment; saying, however, that "it was merely expressing the legal effect and consequence of the decree;" so here the directions given merely expressed the legal effect of the decree without them.

The plaintiffs were as much entitled to the possession then as now, and no more now by reason of the mistake than they would be now without it. Wherefore, when they ask us to discharge the receiver, we consider the application independently of the mistake; and, I think, for reasons stated, the court should retain its control pending the appeal, at least until the supreme court directs otherwise, and I should, as I understand the law, make the same ruling precisely if the defendants had appealed intentionally without a supersedeas, though at the time the appeal was granted I thought, as we all did, that a supersedeas was absolutely necessary to effectuate that result. Draw a broad line between the right of property of the plaintiffs, whether they claim under the original title or the final decree, and the right

of possession, which has been in fact but not in law severed from it by the appointment of a receiver, and we have two entirely distinct things, as to one of which the defective bond may be important, but as to the other it seems not to be; and if we keep these two things apart, and do not confuse them, the case becomes clearer as to existing rights of the parties in this application. And in this connection. it is useful to distinguish between that continuance of the receiver which would have necessarily resulted from a suspension of plaintiffs' right of property by a supersedeas of the final decree in their favor, and that continuance of the receiver which comes of the present action of the court. In the one, the plaintiffs' possession would have been arrested by the suspension of their right of property; in the other, it is arrested regardless of such suspension, and rightly on the facts of this case.

I do not know why, in this case, any terms should be imposed. We imposed none on the plaintiffs as a condition for appointing a receiver in the first instance; and, considering that the supreme court may disagree with us as to the right of property, there is no apparent reason for imposing any on defendants for continuing a custody that protects all alike till the end of the appeal. At all events, the same bond that the statute requires would, by analogy, be sufficient here. There would often be circumstances when the court should not continue the receiver at all, or only on terms indicated by the peculiarities of the case; but I recognize no such circumstances here, and think, on the whole, no terms ought to be imposed, except that the defendants have leave and be required to carry out the original design by inserting the omitted words, with the consent of the surety, if he will consent, or, if not, to file a new bond with the omitted condition supplied, and a superadded stipulation that it shall operate retrospectively to cover all "damages" from the date of the appeal. Perhaps, as these conditions are somewhat logically inapplicable to the views above expressed, and if any terms are to be imposed they should be such as the court would require independently of the mistake that has been made and of the statutory requirements for a supersedeas, they should not be demanded. But the defendants move to amend the bond or to file another, and are willing to do so; and, as I see no occasion on the facts of this case to impose any independent conditions for the continuance of the receiver, I see no harm in permitting them to complete the bond according to the original design, so that, if plaintiffs are entitled to any benefit of it, they can have it in such form of bond as it ought originally to have been. They cannot object to this, and it does not, if we have no power to do that here, injure them in the least, nor impose a supersedeas if none already exists. This disposes of the motions quite satisfactorily to my own judgment.

But, while I am not now required to go further, I should be prepared to rule, if necessary, but with great diffidence as to the correct

upon an injunction, in the Slaughter-house Cases, 10 Wall. 273. The only reasonable doubt in its application here, as before suggested, is as to the power of this court after the final decree and the term at which it was rendered; but the ninety-third equity rule itself recognizes that it then exists, as well as before, as it did in England, and does yet; for it directs the judge to exercise it when he "allows" the appeal, which may be after the term at which the final decree was rendered, and at any time within the statute of limitations. There is no reason why the court may not exercise it at any time, particularly since Goddard v. Ordway, 94 U. S. 672, decides that it is the duty of the court below, notwithstanding an appeal, to give the necessary orders to preserve the property in the hands of the receiver pending the appeal whenever it remains in its possession.

Now, applying the doctrine here, and it appears that the final decree directed the possession of the receiver to be delivered to the plaintiffs. As already explained; it was not thereby intended to determine that pending the appeal they should have possession. As to that no special directions were given, as ought to have been done; but, as a fact, it was supposed that a supersedeas bond would be necessary to continue the receiver pending the appeal. It was further supposed that a supersedeas bond had been given, and in fact the receiver has been continued without any special instructions to that effect. A bond intended to be a supersedeas, but omitting the operative words, was filed, and the proof shows that the omission was by mistake. But this mistake, under the doctrine we are considering, is beside the question, because, if there had been a good bond, it would not have superseded the directions of the final decree concerning the receiver, be they what they may; and, of course, a defective bond could have no effect in that direction. In Hovey v. McDonald, supra, the directions to the receiver were to deliver the fund, and they were not in the decree at first, but the supreme court sanctioned the insertion of them by amendment; saying, however, that "it was merely expressing the legal effect and consequence of the decree;" so here the directions given merely expressed the legal effect of the decree without them.

The plaintiffs were as much entitled to the possession then as now, and no more now by reason of the mistake than they would be now without it. Wherefore, when they ask us to discharge the receiver, we consider the application independently of the mistake; and, I think, for reasons stated, the court should retain its control pending the appeal, at least until the supreme court directs otherwise, and I should, as I understand the law, make the same ruling precisely if the defendants had appealed intentionally without a supersedeas, though at the time the appeal was granted I thought, as we all did, that a 'supersedeas was absolutely necessary to effectuate that result. Draw a broad line between the right of property of the plaintiffs, whether they claim under the original title or the final decree, and the right

of possession, which has been in fact but not in law severed from it by the appointment of a receiver, and we have two entirely distinct things, as to one of which the defective bond may be important, but as to the other it seems not to be; and if we keep these two things apart, and do not confuse them, the case becomes clearer as to existing rights of the parties in this application. And in this connection it is useful to distinguish between that continuance of the receiver which would have necessarily resulted from a suspension of plaintiffs' right of property by a supersedeas of the final decree in their favor, and that continuance of the receiver which comes of the present action of the court. In the one, the plaintiffs' possession would have been arrested by the suspension of their right of property; in the other, it is arrested regardless of such suspension, and rightly on the facts of this case.

I do not know why, in this case, any terms should be imposed. We imposed none on the plaintiffs as a condition for appointing a receiver in the first instance; and, considering that the supreme court may disagree with us as to the right of property, there is no apparent reason for imposing any on defendants for continuing a custody that protects all alike till the end of the appeal. At all events, the same bond that the statute requires would, by analogy, be sufficient here. There would often be circumstances when the court should not continue the receiver at all, or only on terms indicated by the peculiarities of the case; but I recognize no such circumstances here, and think, on the whole, no terms ought to be imposed, except that the defendants have leave and be required to carry out the original design by inserting the omitted words, with the consent of the surety, if he will consent, or, if not, to file a new bond with the omitted condition supplied, and a superadded stipulation that it shall operate retrospectively to cover all "damages" from the date of the appeal. Perhaps, as these conditions are somewhat logically inapplicable to the views above expressed, and if any terms are to be imposed they should be such as the court would require independently of the mistake that has been made and of the statutory requirements for a supersedeas, they should not be demanded. But the defendants move to amend the bond or to file another, and are willing to do so; and, as I see no occasion on the facts of this case to impose any independent conditions for the continuance of the receiver, I see no harm in permitting them to complete the bond according to the original design, so that, if plaintiffs are entitled to any benefit of it, they can have it in such form of bond as it ought originally to have been. They cannot object to this, and it does not, if we have no power to do that here, injure them in the least, nor impose a supersedeas if none already exists. This disposes of the motions quite satisfactorily to my own judgment.

But, while I am not now required to go further, I should be prepired to rule, if necessary, but with great diffidence as to the correct

ness of the conclusion in view of the sinuosities of our American law in relation to the implied appellate supersedeas, that this court has the power, under the authority of Revised Statutes, § 954, to direct the amendment of a writ of error or appeal-bond, and to permit the amendment asked for here, as a part of the proceedings of this court. I have not the least doubt it could be done in England, particularly in chancery; but, through the influence of statutes and the distorted growth of an American notion that an appeal transfers a case bodily into the appellate court, and strips the court below of all power over the record and the case, I am not certain that the power could be sustained here, though there is no adjudication of the supreme court of the United States against it, whatever may be said of expressions. to be found in the opinions. Experimentally, I will permit the amendment pro forma, and not undertake to justify it now, since I find it unnecessary, but will cite in a note to this opinion some authorities which seem to sustain it. It is not a practical question of much value in a situation precisely like this, because the case of Seward v. Corneau, 102 U. S. 161, and other cases like it, furnish a complete remedy in the supreme court itself for the correction of the mistake made; and, if the position first assumed in this opinion be correct, the receiver would be continued independently of the statutory supersedeas, and that would give the defendants relief until the supreme court could act to correct the bond.

Motions of plaintiffs denied. Motion of defendants granted.

DECREE.

Because it appears to the court that the appeal-bond filed herein on the twenty-eighth day of September A. D. 1885, was intended, by the obligors, the court, and the judge approving the bond, to operate as a supersedeas, but by some mistake the words "and damages" were unintentionally omitted from the condition thereof, and for other satisfactory reasons to the court appearing, the motion of the plaintiffs to vacate the order of April 26, 1886, recalling the writ of possession issued by the clerk, and to now proceed with the execution of the final decree of August 1, 1885, by such orders as may be necessary to discharge the receiver, and deliver possession of the property in dispute to the plaintiffs pending the appeal of the defendants herein, is denied. And for the same reasons, on motion of defendants, they are permitted to amend the said bond, by interlining the words so unintentionally omitted in the place left for them in the printed blank upon which the said bond was executed, if the surety in the bond shall in writing indorse thereon his consent thereto; and it is ordered that the bond shall then operate as if said words had originally been inserted therein. And thereupon the said M. L. Bacon, surety as aforesaid in the said bond, appeared in open court, and declined to consent to the change in the bond as above allowed; and thereupon defendants moved the court to be allowed to file another bond, conditioned as required by law to operate as a supersedeas, whereupon they tendered a bond with J. H. Malone and W. H. Robinson as sureties, conditioned as therein expressed, which said bond is hereby accepted and approved; and it is ordered that, according to the tenor and effect thereof as established by law and by the consent of said sureties and the defendants herein, it shall be taken, and in all respects operate, to supersede the said final decree