is necessary, but may be issued properly returnable, even after the expiration of the time for taking the appeal, if the allowance of the appeal were before.10 But a citation is one of the necessary elements of an appeal taken after the term, and if it is not issued and served before the end of the next ensuing term of the appellate court, and not waived, the appeal becomes inoperative."1

Cross-appeals are taken and prosecuted in the same manner as other appeals; 12 but are heard at the same time as the original appeal. There is some doubt as to the right and the extent of a cross-appeal from an interlocutory order or decree granting an injunction or appointing a receiver. When the term at which an appeal was returnable has passed without the filing of the record, a second appeal may be allowed if the original time to appeal has not expired.15 Otherwise, appeals are subject to the same rules, regulations, and restrictions as are prescribed in cases of writs of error.16 The entry of the appeal in the clerk's office is analogous to the issue of a writ of error.17

§ 509. Security on writ of error or appeal.-The Revised Statutes provide that every judge or justice signing a citation or any writ of error or appeal shall, except in cases brought up by the United States or by direction of any department of the government, in which case none is required, take good and suf

10 Ibid. When the appeal is taken in open court at a term subsequent to that at which the decree was entered, or when the bond is not approved till a subsequent term, the service of a citation is necessary, although the attorney of the appellee was then present in court on other business. Castro v. U. S., 3 Wall. 46; Sage v. Railroad Co., 96 U. S. 712.

11 Jacobs v. George, 150 U. S. 415, 416.

12 Farrar v. Churchill, 135 U. S. 610; Building & L. Ass'n of Dakota v. Logan, 66 Fed. R. 827, 828.

13 S. C. Rule 22; C. C. A. Rule 75. 14 Marden v. Campbell Pr. P. & Mfg. Co. (C. C. A.), 67 Fed. R. 809.

15 Evans v. State Bank, 134 U. S. 330.

16 U. S. R. S., § 1012; supra, § 507. It has been held that upon an appeal

taken by the district attorney in the name of the collector, the record may be amended so as to show that the appeal was taken by the application of the Attorney-General and by substituting for the original signature to the petition for appeal and the assignment of errors the signature of the Attorney-General. "When any question is made as to the allowance of such an amendment, the usual and proper practice is to remand the case to the Circuit Court to deal with that question. But when, as in this case, the parties agree to the amendment and to the facts which justify and require it, the amendment may be made in the appellate court." U. S. v. Hopewell (C. C. A.), 51 Fed. R. 798, 800, per Gray, J.

17 Villabolos v. U. S., 6 How. 81.

ficient security that the plaintiff in error shall prosecute his writ or appeal to effect, and if he fail to make his plea good shall answer all costs. This provision is merely directory, and an omission to take a bond does not avoid the writ of error or appeal; but on a motion to dismiss the case on that ground an opportunity to file a bond will be allowed the plaintiff in error,3 or appellant, even after his time to appeal or sue out a new writ of error has expired; except in the case of gross laches. But an appeal is not perfected until the bond is approved and filed. The plaintiff in error may be allowed to file his bond nunc pro tunc.' The judge cannot delegate the approval of the bond to the clerk, nor to a commissioner. The judge may approve the bond out of court.10 All the appellants or plaintiffs in error need not join in the bond." A corporation will not be accepted as a surety when there is doubt as to its power under its charter so to act.12 The bond must, however, be payable to the defendants in error or appellees.13 If the sole payee

§ 509. U. S. R. S.. §§ 1000, 1012. Trustees in bankruptcy are excepted. 30 St. at L. 544, 554, § 25. Where, before the signature of the citation, another judge has approved the bond, the signature of the citation is equivalent to a new approval thereof. Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314. The bond is not defective for failing to specify the term at which the decree appealed from was rendered. New Orleans Ins. Co. v. Albro Co., 112 U. S. 506. The bond rendered will be for the whole amount of the judgment unless a supersedeas is asked for. Wheeling Br. & T. R. Co. v. Cochran (C. C. A.), 68 Fed. R. 141; infra, § 510.

2 Martin v. Hunter, 1 Wheat. 304; Davidson v. Lanier, 4 Wall. 447; Seymour v. Freer, 5 Wall. 822; Edmonson v. Bloomshire, 7 Wall. 306, 311.

3 Davidson v. Lanierr, 4 Wall. 447; Seymour v. Freer, 5 Wall. 822; Edmonson v. Bloomshire, 7 Wall. 306, 311; Stewart v. Masterson, 124 U. S. 493; Schenck v. Diamond Match Co. (C. C. A.), 73 Fed. R. 22.

4 Wickelman v. A. B. Dick Co. (C. C. A.), 85 Fed. R. 851; Walker v. Houghteling (C. C. A.), 104 Fed. R. 513.

5

Beardsley v. Arkansas & L. Ry. Co., 158 U. S. 123. 6 Ibid.

7 Shepherd v. Pepper, 133 U. S. 626, 644.

8 O'Reilly v. Edrington, 96 U. S. 724; National Bank v. Omaha, 96 U.S. 737; Freeman v. Clay (C. C. A.), 48 Fed. R. 849. In such a case, leave to file a new bond will usually be given. Chicago Dollar Directory Co. v. Chicago D. Co. (C. C. A.), 65 Fed. R. 463. 9 Haskins v. St. Louis & S. E. Ry. Co., 109 U. S. 106.

10 Hudgins v. Hemp, 18 How. 530. 11 Brockett v. Brockett, 2 How. 238. The bond is not defective because the court refused to entertain a motion for the withdrawal of its approval to a surety after a month's delay. National Harrow Co. v. Hench, 81 Fed. R. 1005.

12 Black v. Black, 53 Fed. R. 985. 13 Bigler v. Waller, 12 Wall. 142; Swan v. Hill, 155 U. S. 394. An omis

14

is a person not a defendant in error or appellee, the appeal will be dismissed. Where the proceeding is in the name of a State at the relation of an individual, the bond may be payable in the alternative to either the State or the relator, and either may enforce it.15 No security is required upon a writ of error to the judgment of conviction of a crime in a court of the United States.16 No bond is required on a writ of error or appeal by direction of the Comptroller of the Currency in a suit against a receiver of a national bank."7

An error in the names of the parties,18 or an omission of some who should be obligees,19 or an error in the description of the decree,20 in an appeal or supersedeas bond, may be cured by an amendment. In a proper case a party may be allowed to take an appeal or to sue out a writ of error in forma pauperis without a bond; " but it has been held that leave to do this by a party unable to pay the fees or to give the bond is not a matter of course, and may be denied when his assignment of errors is clearly frivolous.23

22

§ 510. Supersedeas.- A supersedeas is a stay of proceedings upon a judgment or decree to which a writ of error is issued or from which an appeal is taken. To secure a supersedeas in a civil case, the writ of error or appeal, and the security required to be given upon the issue of a citation, must be lodged in the clerk's office for the use of the defendant in

sion in this respect may be cured by amendment in the appellate court. Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314. A writ is not defective because other parties are also joined as obligees. Hill v. Chicago & E. Ry. Co., 129 U. S. 170.

14 Davenport v. Fletcher, 16 How.

142.

15 Spalding v. People, 2 How. 66. 16 25 St. at L., ch. 113, § 6, p. 656; In re Claasen, 140 U. S. 200, 208. See 20 St. at L., ch. 176, § 2, p. 354.

17 Pacific Bank v. Mixter, 114 U. S. 463; Robinson v. Southern Bank, 94 Fed. R. 22. A bond for costs is required upon an appeal by an individual to the Circuit Court from a

ruling of the Board of General Appraisers. In re Certain Merchandise, 64 Fed. R. 576.

18 Knox County v. U. S., 131 U. S. clxvi.

19 Farmers' L. & Tr. Co. v. Chicago & N. P. R. Co. (C. C. A.), 73 Fed. R. 314.

20 New Orleans Ins. Co. v. Albro Co., 112 U. S. 506.

21 Volk v. B. F. Sturtevant Co. (C. C. A.), 99 Fed. R. 532; Fuller v. Montague, 53 Fed. R. 204; supra, § 200.

22 The Presto (C. C. A.), 93 Fed. R. 522; Brinkley v. Louisville & N. R. Co., 95 Fed. R. 345; supra, § 200. 23 Ibid.

§ 510. U. S. R. S., § 1007.

error or appellee within sixty days, Sundays exclusive, after the rendering of the judgment. Security must also be given that the plaintiff in error, if he fail to make his plea good, will answer all damages and costs.2 The latter security, if filed concurrently with the issue of the citation and the lodging of the writ of error in the clerk's office, or at any time within the said sixty days, Sundays exclusive, may be approved by the judge or justice who signs the citation, and operates as a stay as a matter of right. Otherwise, it can only operate as a stay by the permission of a judge or justice of the appellate court, and then only if the writ of error was sued out and served within the sixty days. Where through a mistake of law an appeal instead of a writ of error was taken within the sixty days, it was held that a supersedeas could not be obtained, although a writ of error was subsequently sued out. If a petition for a rehearing is duly filed, or a motion for a new trial duly made, or a motion to set aside the judgment made during the term, the time does not begin to run until the petition or

2 U. S. R. S., SS 1000, 1007. A receiver may be relieved from filing a bond to secure a supersedeas. Central Tr. Co. v. St. Louis & T. Ry. Co., 41 Fed. R. 551. Cf. Ferguson v. Dent, 29 Fed. R. 1. As to trustees in bankruptcy, see 30 St. at L. 544, 554, § 25; supra, § 494. A bond conditioned that the appellants "shall duly prosecute their appeal with effect, and moreover pay the amount of costs and damages rendered and to be rendered in case the decree shall be affirmed " by the Supreme Court, was held sufficient. Knox County v. U. S., 109 U. S. 229. But see Peace R. Ph. Co. v. Edwards (C. C. A.), 70 Fed. R. 728. A bond conditioned that the plaint. iff in error "shall prosecute its writ of error to effect, and answer all damages and costs if it shall fail to make the plea good," was held sufficient. Chateaugay Ore & Iron Co. v. Blake, 35 Fed. R. 804.

As to the form of a supersedeas bond, see In re Woerishoffer (C. C.

A.), 74 Fed. R. 915. It has been held to be immaterial that is only signed by one of the plaintiffs in error. McClellan v. Pyeatt (C. C. A.), 49 Fed. R. 259.

3 U. S. R. S., § 1007; Kitchen v. Randolph, 93 U. S. 86; Danville v. Brown, 128 U. S. 503. Where the dates upon

the papers are within the sixty days, it is incumbent upon the appellee to show that the bond was approved nunc pro tunc. The Colonel McLeod, 112 U. S. 710.

4 U. S. R. S., § 1007; Kitchen v. Randolph, 93 U. S. 86; Sage v. Central R. Co. of Iowa, 93 U. S. 412; Peugh v. Davis, 110 U. S. 227; Covington S. Y. Co. v. Keith, 121 U. S. 248.

5 Saltmarsh v. Tuthill, 12 How. 387. If the writ of error was not sued out within the sixty days, neither the appellate court, nor the court below, nor any judge can grant a supersedeas. New England R. Co. v. Hyde (C. C. A.), 101 Fed. R. 397; Logan v. Goodwin (C. C. A.), 101 Fed. R. 654.

8

motion has been denied. The application for a supersedeas should not be made to the appellate court. It has been said that a supersedeas bond is not defective because executed before the entry of the decree from which the appeal was taken, if approved and delivered after such entry; but that a supersedeas approved after a writ of error has been allowed but not issued is a nullity." The supersedeas to a judgment of a state court does not operate until the time when the writ of error, or a copy of the same, is lodged in the clerk's office of the court where the judgment which is to be reviewed was entered.1o The approval of the bond need not be in writing." The security upon a supersedeas, where the judgment or decree is for the recovery of money not otherwise secured,12 must be for the whole amount of the judgment or decree, including just damages for delay, and costs and interest on the appeal." In suits

6 Brockett v. Brockett, 2 How. 238; Memphis v. Brown, 94 U. S. 715; Texas & Pac. Ry. Co. v. Murphy, 111 U. S. 488.

11 Davidson v. Lanier, 4 Wall. 447. Where the judge who signed the citation took the oath of the sureties to their sufficiency, his approval of the Silver v. Ladd,

7 Covington S. Y. Co. v. Keith, 121 bond was presumed. U. S. 248. 6 Wall. 440.

8 Chateaugay Ore & Iron Co. v. Blake, 35 Fed. R. 804. The supersedeas was allowed when the bond was approved before the writ of error was sued out. McClellan v. Pyeatt (C. C. A.), 49 Fed. R. 259.

9 Ex parte Ralston, 119 U. S. 613. 10 Foster v. Kansas, 112 U. S. 201. As to Circuit Courts of Appeal, see McCarley v. McGhee, 108 Fed. R. 494. It was said that the bond is executed in the State where it is filed, although signed elsewhere. Howard Ins. Co. v. Silverberg (C. C. A.), 94 Fed. R. 921. In case of an appeal from the District Court of Alaska, it was held that filing in the clerk's office below certified copies of the order of a judge of the Circuit Court of Appeals allow ing an appeal, of the assignment of errors and of the supersedeas bond, together with the original writ of supersedeas, was sufficient. Tornanses v. Melsing (C. C. A.), 106 Fed. R. 775, 786; Re McKenzie, 180 U. S. 536.

12 S. C. Rule 29; C. C. A. Rule 13; Fuller v. Aylesworth (C. C. A.), 75 Fed. R. 694.

13 S. C. Rule 29; C. C. A. Rule 13. A judgment against a county for the payment of drainage warrants, although it contains a provision for a mandamus, is one for money not otherwise secured. Fuller v. Aylesworth (C. C. A.), 75 Fed. R. 694. But see U. S. v. New Orleans, 8 Fed. R. 112. It has been held that a decree declaring a lien for a sum of money upon certain property, and directing that the defendant pay the same within sixty days, and, in default of such payment, that plaintiff have leave to apply to the court for further order, is not. Louisville, N. A. & C. Ry. Co. v. Pope (C. C. A.), 74 Fed. R. Cf. Johnson v. Waters, 108 U. S. It has been held that the supersedeas bond upon appeal from a decree upon a creditor's bill subjecting property to the payment of a judg

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