2 irmniznsr. nizronrsn.
ceiver and surrendering the possession to them. The mcndamus was
refused, but without any opinion or other information as to the
grounds of the refusal. The penalty of the bond as actually executed
was as follows:
"Whereas, the above-named George G. Dent and others have prosecuted a
writ of appeal to the supreme court of the United States to reverse the judgment
rendered in the above-entitled action by the circuit court of the United States
for the Western district of Tennessee, now, therefore, the consideration of
this obligation is such that if the above-named George G. Dent and qthers
shall prosecute said writ of appeal to effect, and answer all costs; or if they
shall fail to make good their plea, then this obligation shall be void; otherwise
to remain in full force and virtue." ·
This bond, as executed, was copied by the deputy-clerk from a
form filled up by one of _the lawyers in the case, and it (does not dis-
( tinctly appear whether the deputy-clerk or the lawyer left out the
words "and damages," for which .a blank was left in the printed
form in use in the clerk’s oihce, _to be inserted when desired by par-
ties to make a supersecleas bond. On discovery of the omission, and-
on application to him, the clerk issued the writ of possession ordered
by the final decree, and the marshal put the plaintiffs in possession.
This action was revoked by the district judge, and the receiver rein-
stated. The plaintiifs, having been refused a mandamuc by the su-
preme court, moved in the circuit court (1) to now discharge the
receiver, and surrender possession to them in accordance with the
Hnal decree; and (2) to vacate the order of revocation. The defend-
ants moved to be allowed to amend the bond or to file a new one.
_ T. B. Edgington, for plaintiffs. I
Paston rt Paston and L. VW. Finlay, for defendants.
Hmmorm, J. The affidavits here show, what is well known to the
court, that it was intended by the defendants and the court that this
bond should be a supersedeas bond. The penalty was sufficiently
· large to cover any damages likely to come within the liability pend-
ing the appeal. Kountzc v. Omaha Hotel C0., 107 U. S. 378; S. C.
2 Sup. Ct. Rep. 911; Roberts v. Cooper, 19 How. 373.
· I cannot think, as suggested by the plaintiifs’ counsel, that the
words necessary to make it in form a supersedecs bond were design-
edly omitted in order to evade that responsibility. The surety un-
derstood the full extent of it, as well as the defendants; for when he
came to sign the bond he inquired of me, and it was fully explained
to him, as it had been to Mr. Frazer when he drew the bond. I
y. must protest, good-naturedly of course, against the inaccuracies of
Mr. Frazer’s affidavit. He is mistaken when he states that I under-
took to see that "the appeal was perfected as aihant desired." I read
to him the statute, the twenty-ninth rule of the supreme court, and
certain passages in Phillips' Practice, and warned him of the strict-
ness of the practice. I subsequently saw in the clerk’s oihce the
soiled form of bond mentioned in the affidavits as in his hand-writ-