14 FEDERAL REPORTER.
part of the transcript in the appellatecourt on an appeal from the judgment made
upon a motion to quash ajiefa., ut belonged to the tiles in the court below, etc.
In Martin v. Hunter’s Lessee, 1 Wheat. 304, 361, it was said: "But there is nothing in
the record by which we can judicially know whether a bond has been taken or not;
for the statute does not require the bond to be returned to this court, and it might,
with equal propriety, be lodged in the court below," etc.
In Irwin v. Bellefontaine Bank,6 Ohio St. 81, it was held, under a statute almost
identical with our Rev. St. U, S. Q 954, that an appeal-bond is a "proceeding," and
as such amendable. Therefore the appellate court allowed the defective bond to be
amended, with consent of the surety, or a new one to be filed.
In Williams v. McConico, 25 Ala. 538, the bond appeared to have been approved after
the appeal, but on ailldavit the court sent a certiorari to the judge below to certify when
pz was m fact approved, and would not dismim the appeal until the truth was made
· nown. . .
In Dobbins v. Dollarhide, 15 Cal. 374, Fmma, O. J., held that, if the appeal-bond do
not operate as a stay, the remedy is by motion, in the court below, for leave to proceed
notwithstanding the appeal, and not to dismiss the appeal.
In Schenck v. Conover, 13 N. J. Eq. 31, it it distinctly stated that, outside of a rule of
court_ regulating the eupcrsedeas very much as our Revised Statutes do, a court of equity
may mterpose to protect the parties pending an appeal, and stay or allow the decree to
be executed, according to circumstances. And so in Gran er v. Craig, 85 N. Y. 619,
that the statutory supcrsedcas was not the entire reliau ce of the appellant, but the court
belowinight stay proceedings when equitable to do so. >
Abundant aut ority could be cited to this point, but care should be taken not toabro-
gate the statutory requirement of a supcrsedeas bond, though this power has always ex-
isted since 13 Jac. I. c. 8, qualified the absolutely sus ensive effect of a writ of error; and
the danger of tren ching on the statute is not great. (Eur act as to this statutory supcrscdeas
assnnilates appeals to writs of error at law, and, certainly, a court of equity can exer-
cise the same discretion as did a court of law under the statute of James; and the books
are full of cases where the court has refused to issue execution pending error, upon con-
siderations extraneous to the four corners of the bond. But a court of equity essen-
tially has a larger power, growing out of its control over appeals iu this matter of stay-
1ng_further proceedings; and when our original act, requir1ng a decree in equity to be
reviewed only by wrd gf error, was re ealed, and the appeal substituted therefor, pre-
sumably congress inten ed to remove the restrictions imposed, by the anomaly of a writ
of error in equity. upon that larger power, both as to the authority of t-he appellate
court and the court of original cognizance.
When, therefore, the statute invests the court of original cognizance with the power
to grant an appeal, and leavesit to exercise the usual powers in that behalf, among them
was that to stay proceedings pending the appeal in all those circumstances wherebefore
it could have been done if not forbidden by the statute, or fairly not forbidden by im-
phcatiou from it; and, necessarily, when it is called upon to take a bond, that "pro—
ceeding," like the rest, must be liable to amendment, under Rev. St. Q 954, if the juris-
diction of the court be subsequently invoked to rule upon that bond, and the circum-
stances surrounding its existence, as it must if the court be applied to for the execution
ofthe decree notwithstanding the appeal. Our equity rule S5 recognizes this power of
amendment even of decrees, and I see no reason why, under the general power exist-
ing outside that rule. it may not amend an appeal-bond. at least for its own purposes
of procedure in delaying execution ofthe decree until the appellate court issues its
mandate in the premises, whether the supreme court recognizes that amendment as suf-
iicient for its purposes of procedure on the appeal or not.
And, dually. I think section 954 of the Revised Statutes gives the party a right to
such an amendment before the court can. take advantage of the mista e, and execute
the decree, to the defeat, perhaps, of the appellate control of the litigation. Author-
ities are in almost every volume of reports and text writers prescribing the reasonable
and intelligent conditions under which such amendments should be allowed or re- ·
fused, whether in the one court or the other.