_ Fnneuson v. DENT. it 7
r narily belongs to the right of property; but theyhave themselves de-
feated that effect by taking the possession of the property from defend- '
ants, and placing it with this court. On applying here for posses-
sion other procedure comes into play, and the fact appears that there r
has been an appeal, and the question is, shall the court surrender its
possession because there has been no bond under the statute? Gen-
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 posses-
sion along with the right of property, unless some equitable consider-
ation 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 sur-
render possession to them, not because the supersecleas 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 nnal ,
decree had declared the right of property to be with defendants; and,
certainly, if that l1ad 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 plaintiffs right of property as declared by s
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 pro-
ceedings 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 O0., 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 I