8 FEDERAL nmronrmn.
intention? Then, why is the bond, within the purview of a court of
equity, looking at the real facts, any less a superscdeas bond, here
and now, upon the principle of treating that as done which ought to
" be done? "It is a peculiar excellence in chancery, on many occa-
sions, that it goes behind writings, and even sealed instruments and
judgments, to ascertain how the original transaction stood, and what
were its true obligations, in order to enforce them." U. S. v. Price,
9 How. 83, 102. If, therefore, the defendants have been defeated of
I their intention—and they had the right of absolute choice upon exe-
cuting the statutory bond, so that it need not be a mutual mistake,
since the plaintiffs had no choice as to the terms of the contract—to
give a supersedeas bond, which would have suspended the plaintiH’s `
right of property, and, as a consequence of that suspension, any right
of possession pending the appeal, by a mistake relievable in equity in
favor of the plaintiffs, if they desired it, I do not see any reason why
the plaintiffs should not be, in a court of equity, called on to act in
the premises wherever the matter is involved, left to resort to that
remedy, or else compelled to accept the defendants' offer to make the
bond complete. Of course, only upon any just terms as to security
or indemnity, and that containing the same condition as the statu-
tory bond would be just; or an amendment of the defective bond to
conform to the statute, by the consent of the surety, would be just,
and precisely what a court of equity on a bill to reform the contract
would grant.
On this reasoning, if it be correct, the right of this court to direct
the amendment or a new bond does not depend on any jurisdiction
it may have over the instrument qua a supersedeas bond, or any an-
thority over the appellate proceedings which might be deemed a usur-
r pation, but only on the fact that, having lawful custody of the res, and
, a plenary discretion to allow or refuse a surrender of it to the plain-
tiffs on their application to enforce the decree, (so far as the decree
relates alone to that custody, and no further,) it may exercise that
authority according to the demands of the equitable considerations
here suggested, and refuse to deliver possession to the plaintiffs in
spite of their unsuperseded decree, if the defendants shall voluntarily
correct the mistake. And it should be remembered here that, by in-
voking this extraordinary authority of the court over its receivers to
continue them or not upon these equitable considerations, we neither
create nor restore the statutory supersedeas, do not substitute another,
nor affect the rights ofthe plaintiffs growing out of any want of one.
We simply and independently, upon our own terms, withhold pos-
session from them until the supreme court can act. To show this
distinction, let us imagine that no supersedcas bond had been given at
all, or attempted or intended to be given, but, before the receiver was
discharged, the defendants, by motion or petition, should apply to this
court to continue the receiver, or to appoint one originally, pending
the appeal, and we should rightfully or wrongfully do that, is it not