macuson v. DENT. i 11
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 exist-
ing 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 plaintiiTs’
right of property by a supersedeas of the final decree in their favor,
and that continuance of the receiver which comes of the present ac-
tion of the court. In the one, the plaintiEs’ possession would have
been arrested by the suspension of their right of property; inthe
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 sumcient here. There would often be circumstances when the
court should not continue the receiver at all, or only on terms indi-
cated by the peculiarities of the case; but I recognize no such circum-
stances 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 ile a new bond with
the omitted condition supplied, and a superadded stipulation that it
shalloperate 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 independ-
ently of the mistake that has been made and of the statutory re-
quirements for a supersedeas, they should not be demanded. But the
defendants move to amend the bond or to ile another, and are will-
ing 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 re.
ceiver, I see no harm in permitting them to complete the bond ac-
cording 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 pre-
pared to rule, if necessary, but with great diflidence as to the correct-