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the doctrine we are considering, is beside the question, because, if there had been a good bond, it would not have superseded the directions of the final decree concerning the receiver, be they what they may; and, of course, a defective bond could have no effect in that direction.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 prepared to rule, if necessary, but with great diffidence as to the correctness 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

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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.

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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 ji. fa., 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," D4; 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 proceedings 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 part of the transcript in the appellate court on an appeal from the judgment made
upon a motion to quash a fi. fa., but belonged to the files in the court below, etc.

In Martin v. Hunter's Lessee, 1 Wheat. 304, 361, it was said: "But there is nothing in
the record by which we can judicially know whether a bond has been taken or not;
for the statute does not require the bond to be returned to this court, and it might,
with equal propriety, be lodged in the court below." etc.

In Irwin v. Bellefontaine Bank, 6 Ohio St. 81, it was held, under a statute almost
identical with our Rev. St. U. S. 2954, that an appeal-bond is a "proceeding," and
as such amendable. Therefore the appellate court allowed the defective bond to be
amended, with consent of the surety, or a new one to be filed.

In Williams v. McConico, 25 Ala. 538, the bond appeared to have been approved after
the appeal, but on affidavit the court sent a certiorari to the judge below to certify when
it was in fact approved, and would not dismiss the appeal until the truth was made
known.

In Dobbins v. Dollarhide, 15 Cal. 374, FIELD, C. J., held that, if the appeal-bond do
not operate as a stay, the remedy is by motion, in the court below, for leave to proceed
notwithstanding the appeal, and not to dismiss the appeal.

In Schenck v. Conover, 13 N. J. Eq. 31, it it distinctly stated that, outside of a rule of
court regulating the supersedeas very much as our Revised Statutes do, a court of equity
may interpose to protect the parties pending an appeal, and stay or allow the decree to
be executed, according to circumstances. And so in Granger v. Craig, 85 N. Y. 619,
that the statutory supersedeas was not the entire reliance of the appellant, but the court
below might stay proceedings when equitable to do so.

Abundant authority could be cited to this point, but care should be taken not to abro-
gate the statutory requirement of a supersedeas bond, though this power has always ex-
isted since 13 Jac. I. c. 8, qualified the absolutely suspensive effect of a writ of error; and
the danger of trenching on the statute is not great. Our act as to this statutory supersedeas
assimilates appeals to writs of error at law, and, certainly, a court of equity can exer-
cise the same discretion as did a court of law under the statute of James; and the books
are full of cases where the court has refused to issue execution pending error, upon con-
siderations extraneous to the four corners of the bond. But a court of equity essen-
tially has a larger power, growing out of its control over appeals in this matter of stay-
ing further proceedings; and when our original act, requiring a decree in equity to be
reviewed only by writ of error, was repcaled, and the appeal substituted therefor, pre-
sumably congress intended to remove the restrictions imposed, by the anomaly of a writ
of error in equity, upon that larger power, both as to the authority of the appellate
court and the court of original cognizance.

When, therefore, the statute invests the court of original cognizance with the power
to grant an appeal, and leaves it to exercise the usual powers in that behalf, among them
was that to stay proceedings pending the appeal in all those circumstances where before
it could have been done if not forbidden by the statute, or fairly not forbidden by im-
plication from it; and, necessarily, when it is called upon to take a bond, that "pro-
ceeding," like the rest, must be liable to amendment, under Rev. St. & 954, if the juris-
diction of the court be subsequently invoked to rule upon that bond, and the circum-
stances surrounding its existence, as it must if the court be applied to for the execution
of the decree notwithstanding the appeal. Our equity rule 85 recognizes this power of
amendment even of decrees, and I see no reason why, under the general power exist-
ing outside that rule, it may not amend an appeal-bond, at least for its own purposes
of procedure in delaying execution of the decree until the appellate court issues its
mandate in the premises, whether the supreme court recognizes that amendment as suf-
ficient for its purposes of procedure on the appeal or not.

And, finally, I think section 954 of the Revised Statutes gives the party a right to
such an amendment before the court can take advantage of the mistake, and execute
the decree, to the defeat, perhaps, of the appellate control of the litigation. Author-
ities are in almost every volume of reports and text writers prescribing the reasonable
and intelligent conditions under which such amendments should be allowed or re-
fused, whether in the one court or the other.