Statement of the case. affidavits, nearly or quite as large and from a similar class of persons, was produced to show the contrary; the highest value given to the lands by any of these being $2,500,000. After hearing and considering these affidavits, an appeal was allowed by Swayne, J., to operate as a supersedeas, and the security fixed at $10,000, with two persons, named Wells and Crosby, as sureties. An appeal bond was given accordingly. There was no allegation in making the present motion, that there was any altered condition of the mortgaged property or of the sureties in the appeal bond. The case, however, was No. 655 on the calendar, the case last argued prior to the date of the motion having been No. 96, and it appearing that the present case would hardly, in regular course, come on to be heard for two years. Affidavits by the same persons who had made them before, and affidavits by numerous other persons on both sides, were now produced and laid before the court; there being now, as before, vast differences in the estimates of the property mortgaged, and as to whether it would be found more valuable than it now was or not. To understand the arguments in the case, it is necessary to advert to certain statutes and to the twentieth rule of this court. The twenty-second section of the act of 1789,* confers upon this court the power to review the final judgments and decrees of the Circuit Court by means of a writ of error, and the judge who signs the citation is directed to take good and sufficient security from the plaintiff in error, "to answer all damages and costs if he fail to make his plea good." The twenty-third section prescribes the mode by which this writ of error may operate as a supersedeas and stay execution, and when the writ so operates, this court is directed, when they affirm the judgment or decree, to adjudge to the respondent in error, "just damages for his delay, and single or double costs, at their discretion." * 1 Stat. at Large, 85. Argument for the right in this court. When the writ is not a supersedeas, an act of 12th Decernber, 1794,* provides that the security shall only be to such an amount as, in the opinion of the justice signing the citation, may be sufficient to cover the costs. In 1867,† this court promulgated its twenty-ninth rule, as follows: "Supersedeas bonds in the Circuit Courts must be taken with good and sufficient security that the plaintiff in error or appellant shall prosecute his writ of appeal to effect and answer all damages and costs if he fail to make his plea good. Such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including 'just damages for delay,' and costs and interest on the appeal. But in all suits where the property in controversy necessarily follows the event of the suit, as in real actions, replevin, and in suits on mortgages; or where the property is in the custody of the marshal under admiralty process, as in case of capture or seizure; or where the proceeds thereof or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use or detention of the property, and the costs of the suit, and 'just damages for delay,' and costs and interest on the appeal." Messrs. G. F. Edmunds and A. Russell, in support of the motion: By the twenty-second section of the act of 1789, security is to be taken by the judge signing the citation that the plaintiff in error "answer all damages and costs, if he fail to make his plea good." From 1789 to 1867-the long term of seventy-eight years-the construction of this act of Congress was uniform, that the bond must be sufficient to secure the whole decree in case of its affirmance. Thus this court, by Story, J. (A.D. 1824), in Catlett v. Brodie, declared the law to be. Twenty-nine years later, in 1853, in Stafford v. Union Bank,§ * 1 Stat. at Large, 404. † 6 Wallace, v. 16 Howard, 140. Argument for the right in this court. this court again declared, "that the amount of the bond given on the appeal must be the amount of the judgment on decree," and that no discretion could be exercised by the judge taking the bond. That case was a foreclosure, where the sum decreed was $65,000, and the judge had taken a bond in $10,000. The property was in the hands of a receiver, who had given bonds in $40,000, and the persons in actual custody of the property had also given bonds for its safe keeping in $80,000. The allegation of hardship was set up there, as doubtless it will be here. But this court said that the hardship was more imaginary than real, and that the act of Congress was "mandatory," and that this court must com ply with it. The year after the last decision, in 1854, the appellant, Stafford, having failed to file the bond called for by the decision of this court, and the judge below still refusing to execute the decree, the court awarded a peremptory manda mus,* and a second affirmance is found in Stafford v. Canal Company.† Fourteen years later, in 1867, the court promulgated its rule number twenty-nine, declaring, that where the property in controversy necessarily follows the event of the suit, as in suits on mortgages, indemnity is only required, on appeal, in an amount sufficient to secure the costs of the suit, just damages for delay, and costs and interest on the appeal. It is apparent, that while the act of Congress, regulating the subject of security on appeal, remains unrepealed, the court can make no rule contravening the statute. The power of the court is necessarily limited to the giving of a construction to the statute. As was observed in Stafford v. Union Bank, already cited, the act is "mandatory," leaving no discretion. The rule, then, can be sustained only as a construction of the statute. But how can the court construe a statute by a rule? Must not the construction be made in the exercise of appellate power in a case between party and party, arising under the Constitution and laws? This rule * Same Case, 17 Id. 275. + Ib. 288. Argument for the right in this court. operates to reverse the decisions of the court above referred to by declaring that the security shall not be for the face of the decree, but for damages for delay, interest, and costs. This rule also adds to the statute by giving a discretionary amount for delay. We submit that the rule was improvidently adopted. But if the rule is valid and is adhered to, it is mandatory on the judge taking the security, and establishes a minimum, below which he cannot fix the security, i. e., interest on the appeal, &c. In this case, it is ten per cent. on $3,000,000 for at least two, and probably three years; from $600,000 to $900,000. And to this should be added damages for delay and costs. The amount actually fixed ($10,000) would not pay the interest accruing while the clerk was engaged in preparing the transcript. That a discretion exists in this court to diminish, was decided in Rubber Company v. Goodyear,* where the court did actually diminish it. The right of this court to review and modify the action of the court below, was a point in the case solemnly adjudged. In French v. Shoemaker,† the most recent decision, the rule was reiterated. Clifford, J., in delivering the opinion of the court, says: "The question of sufficiency must be determined in the first instance by the judge who signs the citation, but after the allowance of the appeal, that question as well as every other in the cause becomes cognizable here. It is, therefore, matter of discretion with the court to increase or diminish the amount of the bond, and to require additional sureties or otherwise as justice may require." However, neither of these cases was a case of foreclosure, and the latter portion of the rule fixing "interest on the appeal," &c., absolutely, as the amount of the bond in such cases, does not appear to have been passed upon by this court. If then the court shall hold that discretion does exist in 6 Wallace, 158, 156. † 12 Id. 99. Argument against the right in this court. foreclosure cases, we call attention to the affidavits and other papers filed in support of the motion, in regard to the value of the mortgaged property. These affidavits show the value to be less than the amount of incumbrances found by the court below. Nothing has been done in the bankruptcy of the corpora tion subsequent to the adjudication two years ago. We may properly infer that the adjudication was procured merely to cause delay and embarrassment in the foreclosure proceedings, and not in good faith for the administration of the mortgaged property, which is all the property possessed by the bankrupt corporation. The cause will stand at least two years on the docket before it can be reached, and the certain increase of the mortgage debt in this cause and of the prior incumbrances, by interest, will be about $600,000. The prospect of any rise in the property to meet this certain increase of the debt is conjectural, resting upon the chance of a discovery of more valuable ores, &c. The so-called "indemnity" to the appellee is at least sixty times too small. Messrs. P. Phillips, M. H. Carpenter, and W. P. Wells, contra: 1. Until the determination of the cause, the appellants stand upon a supersedeas bond, duly approved by the judge who signed the citation, in strict compliance with the requirements of the twenty-third section. The pretence now set up by the appellee is that, admitting all this to be true, the statutory right thus acquired by the appellants to a supersedeas shall not be maintained, without the appellants enter into a new bond in another amount and with other securities, now to be prescribed by this court. The duty of taking the bond is, under the act of 1789, conferred on the judge below. It involves the exercise of discretion. To fix the amount, there must be an estimate of the damages, and what these may be, must have regard to the nature of the litigation. |