FERGUSON *0. DENT. 13
pending the appeal heretofore granted in this case, and that, in pursuance
thereof, and in obedience to the statutes in that behalf regulating the super-
sedeas of proceedings pending an appeal, the execution of said decree be, and
it is hereby, stayed, as it has been heretofore stayed since the said appeal was
taken. the property remaining iu the hands of the receiver, as heretofore; the
original bond not to be affected in any way by the allowance of the new bond.
but to stand as if this order had never been made.
To all of which the plaintiffs except, and ask that their exception be entered
of record, and that the aflidavits used upon both sides upon the hearing of these
motions be filed as a part of the record, and taken as such to all intents aud
purposes as if they were incorporated in a. bill of exceptions, which, in that
respect, this order shall be taken to be, which is granted, and it is done accord-
ingly. And thereupon the plaintiffs pray an appeal from this order, and
from that of April 26, A. D. 1886, which is allowed; and their bond for $250,
conditioned as appeal-bonds are required by law to be, with T. B. Edgington
as surety therein. executed and tiled this day, is accepted and approved_by
the court,—the defendants in open court waiving all other citation and notice;
the aiiidavits so used upon the hearing of these motions, and so as above
made a part of the record, and as though embraced in a bill of exceptions for
the purposes of this appeal, being those of C. W. Frazer and D. H. Poston,
dated June 22, A. D. 1886, and of T. B. Edgington, dated June 28, A. D.
1886, and of   B. Weisiger, dated June 29, A. D. 1886; the same being prop-
erly tiled, and entitled in this cause. `
NOTE BY JUDGE HAMMOND. _
Ammnnunrrr or rm: Bonn. Rafael v. Verelst, 2 W. Bl. 1067; S. C. Cowp. 425.
There were two defendants, with verdict against one and in favor of the other. Writ
of error joined both, as did the bail in error, which was by recognizance. Motion, in
the appellate court, to amend the writ, granted. Same day fl. fa.. issued and levied,
although plaintiff in error offered to alter the recognizance; motion in court below to
quash ji. fa., and to amend the recognizance, granted; and bail in error entered into a
new recognizance. In Justice v. Mersey Steel Co., 1 C. P. Div. 575, the old practice of
giving bail in error on appeal to house of lords being still in force, the defendants in
error, not knowing that, put in no bail; ji. fa. issued; application to appellate court to
extend time and stay execution pending appeal. Held, application should be made to
the court below.
Attorney General v. Swansea, etc., Co., 9 Ch. Div. 46. Practice now in England that
in equity cases application to stay proceedings for any cause pending appeal should be
made by to the court below in the nrst instance, and, if refused, then to appellate court
by " motion by way of the appeal." But see Wilson v. Church; 11 Ch. Div. 576; S. C.
12 Ch. Div. 454.
That a bail-bond could always have been amended, see 1 Bac. Abr. 567, tit. "Bai1
in Civil Cases," D 4; Hampton v. Courtney, Cro. Jac. 272; Anderson v. Noah, 1 Bos.
& P. 31, and numerous other common·law authorities.
In the chancery practice of England there was no difficulty; for, if the stay of pro-
ceedings should be granted below, of course the terms as to security bonds, etc., were all
in the control of that court, but if by the house of lords, then, of course, in the control
of that court; and, in both, the proceedings were subject to amendment as liberally as
proceedings in chancery always were, but the application had to be made to the court
in which the stay had been obtained. The only difiiculty in our practice is in deter-
mining to which court the bond belongs, or in which the proceedings for stay may be
-said to be taken; for, unlike a writ of error at law, the appeal is granted below, while
the bond is taken below in both; and in neither is the superseded.: directly and ex-
pressly ordered, as it always is in chancery in England, but comes by an implication
from the statute, addressed alike to both the appellate court and the court below. 2
Daniell, Ch. Pr. (1st Ed.) 675; 3 Daniell, Ch. Pr. 105, 109, 134, 136, 140, and 97-150 gen-
erally; 2 Daniell, Ch. Pr. (Bd Ed.) 1467.
In Arnold v. Frost, 9Ben. 267,_ Brncnronn, J., held that an appeal·bond was so
rnuch a part of the suit in which lt is given that an action on it might be maintained
an the same court where given, as ancillary to the original sud, on a question of juris-
1C IOH.
In Tipton v. Cordova, 1 N. M. 383, an appeal-bond was held to be "process " under
the internal revenue act, and as such required a stamp.
In Bentley v. Jones, 8 Or. 47, it was held that the appeal-bond was not properly a