In the Matter of Josiah S. Stafford and Jeannette Kirkland, his Wife, Appellants, v. The Union Bank of Louisiana, 16 How. 135

Mr. Justice M’LEAN delivered the opinion of the court. This is .an appeal from the District Court of Texas, and a motion is máde to dismiss it, ,on the ground that security has been given in the sum of ten thousand .dollars only, when the sum decreed to be paid was sixty-five thousand dollars. And a procedendo is prayed, commanding the District Court to execute the decree. Notice of this motion was acknowledged by the counsel for the appellant the 11th of March, 1854. As the appeal was taken since the commencement of the present term, the appellant is not bound to file the record until the next term.

By the decree in the District Court, a mortgage on a large number of slaves, to secure the payment of a debt due to the Union Bank of Louisiana, was foreclosed.

A receiver having been previously appointed, who hired out the slaves and received the hire, he was directed by the decree to pay to the bank the sum of twenty-five thousand three hundred and twenty-nine dollars and thirty-nine cents, moneys in his hands, and that the residue of the money due, amounting to the sum of thirty-nine thousand eight hundred and seventy-seven dollars and thirteen cents, should be paid on the first day of July next, and if not so paid, that the slaves should be seized and sold.

On the 7th of March, 1854, the tenth day after the decree was entere'd, the defendants prayed an appeal, which was. granted, and on the same day a bond was given in the penal sum of ten thousand dollars, as required by the court. As the appeal has not been regularly entered on the docket, an<J as the appellant is not bound to enter it until next term, a motion to dismiss it eannot be entertained.

But as the record is before us, which states the facts on which the.motion is founded, the- court will suggest their views of the law, in regard to an important point of practice. ’ The act of 1803-places appeals in chancery on the same footing as writs of error. And in the case of Catlett v. Brodie, 9 Wheat. 553, this court held, that security must be given on a writ of error, to operate as a supersedeas for the amount of the ■judgment.

By the act of 12th December, 1794, when a stay of execution is not desired, security shall be given only to answer costs. • A motion was made, in the District Court, to dismiss the allowance of the appeal, on the ground that security in the amount of the decree had not been given.

This was opposed by the counsel of the appellant, and it was alleged,' as the re-, ceiver had given two bonds, each in the penalty of twenty thousand dollars, for the faithful discharge of his duties, and as the mortgaged slaves were in possession of persons who had hired them, who had given bonds in the joint penalty of eighty thousand dollars, for the safe keeping and delivery of the slaves, that no further security, under the statute, ought to be required to entitle the appellant to a supersedeas against the decree. The court overruled the motion.

The decision of this court, in the case above cited, was, that the words of the act, “ sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all-damages ' and costs, if he fails to make his plea good,” do not refer to “ the nature of the claim upon which the original judgment is founded, but that they are descriptive of the indemnity which the defendant is entitled to, if the judgment be affirmed.” And the court further say, “whatever losses he, the defendant in error, may sustain by the judgment not being satisfied and paid after- the affirmance, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security.” If this construction of the statute be adhered to, the amount of the bond given on the appeal must be the amount of the judgment or decree.

There is no discretion to be exercised by the judge taking the bond, where the appeal or writ of error is to operate as a supersedeas. This rule was established in 1817, and'it has been adhered to ever since. The hardship of this rule, on the appellant, is more imaginary than real. Suppose the appellant had given ample personal security on the original obligation for the payment of the money,. and the sureties were sued with the principal, would they be excused from giving bail on an appeal or writ of error, as the act requires ?

And how does such a. case differ from the one before us, where mortgage has been given on’ personal property. If the receiver has given security, in forty thousand dollars, faithfully to pay over the money in his hands; and if those persons who employed the slaves have given bond in eighty thousand dollars, for the safe keeping and delivery of them, and the sureties are good, the appellant can have no difficulty in giving the security on his appeal, to the amount of the decree in the District Court.

It is true the property is taken out of his possession and control, but it is in possession of persons who gave bonds for its safe keeping and delivery when required, a part of it in payment of the decree, and the residue to be sold in satisfaction of the balance of the decree. In this condition of the próperty, if the transaction be bond fide, (and it must be presumed to be fair, as the arrangement was made under the order of the court,) the responsibility on the appeal bond, can.be little more than nominal.

The state of -the property affords more safety to the security on the appeal bond than if the property and money were in possession.of the appellants, and under their control. A double mortgage is on the property, that it shall be faithfully applied to the payment of the decree.' The appeal is for the benefit of the appellant.

A decree in the District Court has been entered against him, and there is, in the custody of the law, a sufficient amount of money and property to pay the amount decreed.' An appeal suspends the payment some one or two years, and as this is done for the benefit of the appellants and at their instance, is it not equitable that the risk should be provided for by them ? The law has so decided, by requiring security to be given to the amount of the decree, without reference to the.nature of the suit. The provision of the act, as construed by this court, is-not a matter over which the court can exercise a discretion.

The language is mandatory, and must be complied with. We can know nothing of the responsibility of the receiver or of the hirers of the "slaves, nor is it proper that we should inquire into their circumstances, and the responsibility of the sureties, with the view of substituting" them for the security on the appeal, which the law requires. For the reasons, stated, the court cannot dismiss the appeal, nor award a procedendo. A more appropriate remedy would seem to be a rule on the district judge, to show cause why a mandamus should not be issued; but this can be done only on • motion. Mr. Justice CATRON.

The ease was decided in. the District Court, m March last, and during the present term of this court, and an appeal taken to our next term; consequently the cause is not here, nor have we any power to dismiss it. The motion to dismiss must therefore be overruled. But I do not agree to the opinion expressed by a majority of my brother judges, ¡advising the appellees what course to jSursue against .the aicirict judge: First, Because we have no case before us authorizing such an' expression of opinion; and I am opposed to a mere dictum attempting to settle so grave a matter of practice.

And Secondly, My opinion is that the statute referred to does not govern a case in equity, where property is pursued under a mortgage, and the mortgaged property,' at' the complainant’s instance, has been taken into the hands of the court, and so remains at the time of . the appeal. If-.the property, from its perishable -nature, had been by interlocutory decree converted into money, and this was in court, then, I think, no security tó cover its contingent loss should be required; and here twenty-five thousand dollars has been earned, previous to the suit, by the mortgaged slaves, and is in court.

That this mortgagor is stripped of his property, and cannot give security for so large an amount, is manifest, and to construe the act of Congress as if this was a simple judgment at law, would ’ operate most harshly. Motion overruled.