. mucus0N v. DENT. 5
dependent action at law for the trespass or injury done. I need not
say that the ultimate purpose of all concerned is to give the plaintiffs
the benefit of their recovery, pending the appeal, if they be entitled
to it, or the defendants the privilege of their supcrscdecs, if there be
one; but it is a mistake to suppose that whether we shall, or how we
shall, execute the nnal decree in this case, for example, depends al—
together upon the fact of the omission discovered in this bond. Here
this property was taken from the defendants pending the controversy
over its ownership, and, without any bond at all from plaintiffs, ex-
cept for costs, put into the hands of a receiver, so that the defendants
could not waste it, or destroy it, or sell it and embarrass its recovery
by plaintiffs. Now, pending the appeal, it would seem that justice
requires that it should equally remain protected, if there be neces-
sity for it, from the waste or destruction of plaintiffs, or its embarrass-
ment by their sale, until the plaintiff’s right to it has been confirmed.
It was not thought safe to plaintiffs to leave it with defendants pend-
ing litigation in this court, because they were insolvent, etc.; and,
without going into details, if these non-resident plaintiffs be not also
insolvent, as to which there is no proof, they are not shown to be
solvent, and it may be doubtful, at the least, whether they could re-
. spond to any claim of defendants arising out of their possession dur-
ing the continuance of the litigation pending the appeal if our decree
be reversed; and, if they could do that, defendants would have to go
to a distant state to seek a recovery. Again, they might sell the
property to strangers, and embarrass its recovery by the defendants,
if it be theirs. The purchasers would take pcndentc lite, no doubt,
but the embarrassment would still exist; S0 we might have pre-
vented that by a special injunction at the hearing, but it is too late
now, and a receiver would be better for all concerned, any way, as
well after as before appeal. A
When we took it from the defendants, in contemplation of law
their right of possession remained, although the property was in the
hands ofa receiver; for which additional reason this court should, if
it has the power, be careful to protect defendant’s possession which
is in its keeping. If there were no statute, and the court as free to
act as it always was in England, it would, under the circumstances
of this case, stay proceedings pending the appeal; and I doubt if a
case can be found surrendering a possession, so taken, to the tri-
umphant plaintiff, if the defendant appeals, and the court be unre-
stcicted by some limitation on its powers in that regard. Has our
statute abrogated all such equitable considerations, and required us
here, without inquiry into other facts, to surrender possession because
of this omission in the bond? I think not. Not even the precise
language of the statute requires such a ruling. Rev. St. 1000, 1007,
1012. The appellants cannot have the statutory supersedeas without
doing certain things, among which is an undertaking by surety to
pay damages, as well as costs; but, as Mr. Justice Brom says in