sought to be put in issue by the replication | sheriff, by levying upon the goods of a third are those necessarily involved in the former person, becomes a trespasser, and being so, the trial; and to uphold it would be to permit the law does not impose on him the duty of holdsame facts to be agitated over again. Cering the goods after he has ascertained their true tainly, neglect to levy the money on the execu- ownership. Another observation in that case tion out of the defendant's goods within the is applicable here. The court says it may be, sheriff's bailiwick, or neglect to sell them, if a loss results to the plaintiff by being cast and make the money after the levy, are facts in costs, or otherwise, from the neglect of the bearing directly on the former issue; and one sheriff to retain the affidavit of claim, or bond criterion for trying whether the matters or executed by the claimant, he may be liable in cause of action be the same as in the former an action on the case, but not for the value suit, is, that the same evidence will sustain of the property levied on. Although the suit both actions. (2 Phil. Ev., 16; C. & H. Notes, on the bond in this case, according to the p. 19, note 17.) practice in the courts of Alabama, may be regarded as a substitute for this action, still no such ground or cause of action is set out in any of the assignments of breaches, and of course no opportunity is given to answer it. We are satisfied, therefore, that the plea is a full answer to all the breaches assigned to which it refers, and has been pleaded.

The issue upon the suggestion that the sheriff could have levied the money on the execution with the exercise of due diligence, is a very broad one. It is held by the courts of Alabama, that the sheriff may discharge himself from responsibility by showing due diligence; and to enable him to do this nothing more is necessary than to traverse the facts contained in the suggestion. But if the defense consists of new matter, or matters of avoidance, he must then plead it. (3 Ala.. 28.)

It is difficult to conceive of a broader issue for the purpose of charging this officer with neglect or default in the course of his duty under the execution.

Then, as to the plea that the goods levied on were not the goods of the defendant in the execution, and not liable to the satisfaction of the judgment. This the demurrer admits. Of course, the sheriff had no authority to make the levy, and stood responsible himself to the owner, as a trespasser, as soon as the seizure took place. In the face of this admission on the record, it is impossible to hold him liable 134*] for the value of the goods. *The plea answers the material allegation in each of the assignments of breaches, and without which the assignment would be substantially defect ive, namely: the seizure of the goods on the execution. The allegations as to no claim having been made to the property by third persons, and no affidavit taken or bond given, or if given, that it was lost, are matters depending upon the levy. If that is denied or avoided, the several breaches are fully answered.

Now, the seizure of the goods of a third person, on the execution, does not change the title or make them the goods of the defendant on the execution. The only effect is, if after this the sheriff returns the execution nulla bona, the burden is thrown upon him in a suit for a false return to show that the goods were not the defendant's, and therefore not liable to the execution. (Magne v. Seymour, 5 Wend., 309; 1 B. & C., 514.)

The same principle was held in Mason et al. v. Watts, 7 Ala., 703. That was a case arising out of a suggestion against the sheriff and his sureties, under the stutute to which we have referred, and in a case where the goods had been seized, and a return upon the exe cution accordingly. The suggestion was met that the goods were not the property of the defendant in the execution.

The court say that the sheriff may excuse himself by showing that the defendant in the execution had no property in the goods levied upon. That the reason for this is, that the

There are many other pleas, replications and issues of law raised upon them, arising out of the useless number of breaches assigned in the declaration, and which have very much tangled and complicated the pleadings in the record; but we do not propose to examine or express any opinion upon them, as upon the whole record we see a complete defense to all the causes of action set forth in the [*135 declaration, it would be an idle and profitless waste of time to enter upon their examination, and besides, whatever might be our conclusions, they would not vary the result. (Stephens' Pl., 153, 176.)

The judgment of the court below is affirmed.

ORDER.

This cause came on to be heard on the tran

script of the record from the District Court of the United States for the Middle District of Alabama, and was argued by counsel; on con sideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby affirmed, with costs.

IN THE MATTER OF JOSIAH S. STAFFORD
AND JEANNETTE KIRKLAND, HIS
WIFE, Appellants,

v.

THE UNION BANK OF LOUISIANA.

Practice-premature motion to dismiss appealdisposition of-court's views expressed-mode of relief suggested.

Where an appeal was taken from a decree in chancery, which decree was made by the court be low during the sitting of this court in term time, the appellant is allowed until the next term to tile the record; and a motion to dismiss the appeal. made at the present term, before the case has entertained, nor can a motion to award a proce been regularly entered upon the docket, cannot be dendo.

This court, however, having a knowledge of the case. will express its views upon an important point of practice.

Where the appeal is intended to operate as a s persedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is

in the case of a judgment at common law.
The two facts, namely: first, that the receiver

appointed by the court below had given bond to a large amount, and second, that the persons to whom the property had been hired had given security for its safe keeping and delivery, do not affect the above result.

The security must, notwithstanding, be equal to

the amount of the decree.

A mode of relief suggested.

fendants prayed an appeal, and the following order was made by the court:

On this day came the defendants, by their counsel, and prayed an appeal to the next term of the Supreme Court of the United States, to be held in Washington City on the 1st Monday in December next, from the decree of the court

THIS was an artes for the State of fendants; and to them it is granted, upon con

HIS was an appeal from the District Court rendered in favor of complainants against de

Texas.

It will be seen, by a reference to 12 How., 327, that this case was formerly before this court, and that the decree of the court below (dismissing the bill filed by the Union Bank) was reversed.

In the execution of the mandate of this court, the District Court of Texas passed a decree on the 25th of February, 1854, from which Stafford and wife appealed. Mr. Hale and Mr. Core, on behalf of the Union Bank, moved to dismiss the appeal, for the following reasons: 136*] *This motion is made to dismiss the appeal in this cause, and to award a procedendo to the District Court, on the ground that the appeal bond given by the appellants is not sufficient to stay the execution of the decree.

The cause was originally commenced by the Union Bank of Louisiana against Josiah S. Stafford and wife, in the District Court for the District of Texas, for the purpose of foreclosing a mortgage on certain negro slaves. A decree having been rendered by the District Court against the complainant dismissing the bill, an appeal was taken to this court, and at the December Term, 1851, the decree of the District Court was reversed, and the cause remanded, with directions to that court to enter a decree in favor of the complainants. (Union Bank of Louisiana v. Stafford and wife, 12 How., 327, 343.) No term of the District Court was held until July, 1853, when some objections being raised by the defendants to the proposed form of the decree, and to the report of the master on the receiver's accounts, the court took the whole matter under cor sideration until the next term. The objections to the master's reports having been waived, a final decree was rendered on the 25th of February, 1854, by which it was directed that the sums accruing from the hire of the slaves in the custody of the receiver, pendente lite, amounting to $25,379.39, should be paid by the receiver to the complainant, and credited on the total amount due by the defendants; and that in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13, on the 1st of July, 1854, they should be foreclosed of their equity of redemption, and the master should seize and sell the mortgaged slaves at public auction, on the 3d of the same month, after giving three months' notice by advertisement of the time, place and terms of sale, and should pay to the complainants out of the proceeds of the sale the foregoing sum of $39,877.13, in satisfaction of the debt.

It appears, then, as well by the decree as by the report of the master, which was confirmed, that on the 1st of July, 1854, when the foreclosure was to take effect, the debt, interest and costs, due to the complainant, would amount to $65,256.52.

dition that the defendants enter into a good and *sufficient bond, with good and suffi- [*137 cient surety in the penal sum of $19,000, conditioned that they prosecute their appeal with effect, and answer all damages and costs, if they fail to make their plea good. And thereupon the defendants, in open court, tendered a bond with L. C. Stanley, Patrick Perry, and William H. Clark, as sureties in the sum of $10,000, and the court having inspected the bond, and being satisfied it is in conformity to law, and the order of the court herein, and that the sureties are good and sufficient, it is now ordered that the bond be approved and filed. It is ordered to be entered that the bond of appeal taken and filed in this cause operates as a supersedeas to the decree of the court."

On the same day the appeal bond referred to in the order was filed. The complainant objected to the bond being received to supersede or stay the decree, because the penalty was much less than the amount of the decree, and was wholly insufficient, but this objection was overruled.

On the 11th of March, 1854, notice was given to the defendants and their counsel that the present motion would be made, and this notice, with the acknowledgment of service, is herewith filed.

This motion is similar to that presented to this court in the case of Cat lett y. Brodie, 9 Wheat., 553. The Act of March 3, 1803, adopts in appeals the same rules that are applied to writs of error (The San Pedro, 2 Wheat., 132), and the 22d section of the Judiciary Act provides that "every justice or judge signing a citation or writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to ef-, fect, and answer all damages and costs, if he fails to make his plea good." In the case above cited, it is said: It has been supposed at the argument that the Act meant only to provide for such damages and costs as the court should adjudge for the delay. But our opinion is, that this is not the true interpretation of the language. The word damages' is here used, not as descriptive of the nature of the claim upon which the original judgment is founded, but as descriptive of the indemnity which the defendant is entitled to, if the judgment is affirmed. Whatever losses he may sustain by the judgment's 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. Upon any suit brought on such bond, it follows, of course, that the obligors are at libery to show that no damages have been sustained, or partial damages only, and for such amount only is the obligee entitled to judgment."

This language applies to the present case. It was, however, urged with success in the On the 7th of March, 1854, the tenth day District Court, *that inasmuch as the [*138 after the entry of the above decree, the de- | receiver had given two bonds, each in the pen.

alty of $20,000, for the faithful discharge of his duties, and as the mortgaged slaves were in the possession of hirers. who had also given bonds in the joint penalty of $80,000, for the safe keeping and delivery of such slaves, the complainant had no right to require any further security from the defendants than sufficient to cover the special damages which might be imposed by this court for delay. This conclusion is directly opposed to the reasoning of the court in Catlett v. Brodie. It is evident that, notwithstanding the bonds given by the receiver and the hirers, the complainant is exposed by the appeal to the danger of losing the whole of the debt. The sureties on these bonds may become insolvent; the money in the hands of the receiver may be squandered; the slaves may die or run away. And in the language of the court: whatever losses the complainant may sustain, these are the damages which he has sustained, and for which the bond ought to give good and sufficient security. Indeed, if the construction put upon the Act by this court is applicable in any case, it must be in all, and no special circumstances can constitute an exception.

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 $25,329.39, moneys in his hands, and that the residue of the money due, amounting to the sum of $39,877.13, 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 entered, the defendants prayed an appeal, which was granted, and on the same day a bond was given in the penal sum of $10,000 as required by the court.

As the appeal has not been regularly entered on the docket, and as the appellant is not bound to enter it until next term, a motion to dismiss it cannot 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.

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.

It may be objected that this motion cannot be entertained, at this time, because the appeal has been taken to the next regular term. But The Act of 1803 places appeals in chancery neither the Acts of Congress which regulate on the same footing as writs of error. And in practice in the court, nor the rules adopted for the case of Catlett v. Brodie, 9 Wheat., 553, this its government, imply that a motion of this court held, that security must be given on a kind cannot be made before the cause is re-writ of error, to operate as a supersedeas for the quired to be docketed. On the contrary, it is a well-established principle, that at the moment of the appeal, and by that act alone, the cause is virtually removed to this court; and the jurisdiction thus vested may, of course, be exercised generally. (Wylie v. Coxe, 14 How., 1.) Every consideration would seem to induce the action of the court on motions of this character-the urgency of the case-the injury sustained by the appellee-the delay of justice-the danger of renewed and vexatious appeals; and in no instance can stronger reasons be offered than in this, where the amount of the appeal bond is but $10,000, and the debt is $65,000; and where the decree from which the new appeal is prayed, is in exact conformity with the former mandate of this court.

But if there would be any objection to the dismissal of the appeal at this time, there can be none to the award of a procedendo to the court below, to enforce the decree by the issuance of an order of sale. The District Court has directed the stay of all proceedings; and if such a result was not the lawful consequence of the appeal, this court must be competent to require the execution of what is, in fact, nothing but its own decree.

139*] *Mr. Justice M'Lean delivered the opinion of the court:

This is an appeal from the District Court of Texas, and a motion is made to dismiss it, on the ground that security has been given in the sum of $10,000 only, when the sum decreed to be paid was $65,000. 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.

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 for the appellant, and it was alleged, as the receiver had given two bonds, each in the penalty of $20,000, for the faithful dis charge of his duties, and as the *mort- [*140 gaged slaves were in possession of persons who had hired them, who had given bonds in the joint penalty of $80,000, 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 judg ment 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