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of the damages by any waste committed after the first judgment in dower or ejectment, and give judgment therefor and for costs. This was the form in which the law stood for more than a century prior to our Revolution, and is believed to have generally prevailed in this country either by force of the English statutes, or similar statutes adopted by the Colonies themselves down to the time of the passage of the Judiciary Act by Congress in 1789. See 1 Rev. Laws of N. Y. (1813), p. 143, act of 1801; Acts of New Jersey, Feb. 1, 1799, and Feb. 28, 1820, Elmer's Dig. 159, 160; Act of Maryland, 1713, c. 4, 1 Kilty's Laws; and Alexander's British Statutes in force in Maryland, 16 & 17 Car II., c. 8. In Virginia, by the act of 1788, it was provided that before granting any appeal from a county to a district court, or issuing any writ of error or supersedeas, the party praying the same should enter into bond with sufficient security, in a penalty to be fixed by the court or judge, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence should be affirmed; and the damages were fixed at ten per cent per annum upon the principal sum and costs recovered in the inferior court; and the same provisions were applied to appeals and writs of error to the court of appeals. By the act of 1794, on appeal from a decree in equity to the High Court of Chancery, the condition of the appeal bond required was, to satisfy and pay the amount recovered in the county court, and all costs, and to perform in all things the decree, if the same should be affirmed. Laws of Virginia, ed. 1814, pp. 87, 115, 448. In Massachusetts, as appears by an early case (1804), a supersedeas was granted upon the plaintiff in error giving bond to respond all damages and costs in case the judgment should be affirmed. Bailey v. Baxter, 1 Mass. 156. In Pennsylvania, where the judgment was affirmed upon a writ of error, the execution included the interest from the date of the original judgment. Respublica v. Nicholson,

2 Dall. 256.

It is thus seen that, in the case of money judgments, bail in error was required to secure, 1, the amount of the original judgment; 2, the costs and damages occasioned by the delay of execution. In the case of dower and ejectment, where the

main thing in controversy was land, bail was required to secure only such costs, damages, and money as should be awarded after affirmance of judgment, for mesne profits and waste pending the appeal.

In relation to money judgments, a long train of decisions in England shows that the damages for delay for which the bail in error were to respond were the interest on the sum recovered below from the day of signing final judgment to the time of affirmance, and costs in the writ of error, and in some cases double costs. In the Exchequer Chamber, when double costs. were recoverable, the court exercised its discretion whether to allow interest or not, it not being allowed as a matter of course; but interest was only allowed where the original demand was one that drew interest, and not in cases of mere tort or unliquidated damages. Tidd, 1182, 1183. In the House of Lords, they gave large or small costs in their discretion, according to the nature of the case, and the reasonableness or unreasonableness of litigating the judgment of the court below. Id. 1184.

We have no reason to believe that the rule of damages for delay on a recognizance, or bond in error, was materially different in this country, in 1789, from that which prevailed in England. The statutes being substantially the same, undoubtedly the same rule prevailed in administering them.

On appeals in chancery the practice in England, in case of an appeal from the Master of the Rolls to the Lord Chancellor, was for the party appealing to deposit £10, to be paid to the other party if the decree was not materially varied, and he was also required to pay the costs of the appeal; and on appeal from the Court of Chancery to the House of Lords, the appellant was obliged to make a deposit of £20, and give security by recognizance in the sum of £200, to pay such costs to the defendant in the appeal, as the court should appoint, in case the decree should be affirmed. Harrison's Pract. in Chancery, ed. Newland, pp. 342, 349. In 1810 these amounts were doubled. Smith's Ch. Pr. 27, 44. If a party wished to file a bill of review, the general rule was that he must perform the decree before filing his bill.


Such being the rules prevailing on the subject when the act of 1789 was passed, which required the plaintiff in error to give security to prosecute the writ of error to effect, and to answer all damages and costs if he failed to make his plea good," the extremely general terms of the law are noticeable. According to the English law, the terms "all damages and costs" would only cover the damages for delay, security for the original judgment being expressly provided for by separate words; but the act of Congress does not say "damages for delay," but generally "all damages and costs," without any specific provision for the original judgment; and the bond is required in all cases, and not merely on error to money judgments and judgments in dower and ejectment; and not merely in cases at law, but in cases of equity also; for the writ of error was the process of review prescribed by the Judiciary Act both at law and in equity; and when appeals were allowed in the latter by the act of 1803, they were subjec.ed to the same rules and conditions as writs of error. The only guide, or hint of guidance, given by the Judiciary Act as to what damages were to be awarded on a bond in error, other than what might be deduced by analogy from the English and State laws, is an expression contained in the twenty-third section, where it is said that if, upon a writ of error, the Supreme or Circuit Court shall affirm a judgment or decree, they shall adjudge or decree to the respondent in error just damages for his delay, and single or double costs at their discretion. So that, as the result of the whole, the matter was left very much at large, and subject to the regulation of the courts, and such analogies as existing laws afforded.

The act of Dec. 12, 1794, c. 3, declares that the security to be required on the signing of a citation on any writ of error which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error. The substance of this act is reproduced in the Revised Statutes; but it sheds no light on the question of damages as distinguished from mere


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The Supreme Court at an early day (February Term, 1803) adopted the two following rules:

"1. In all cases where a writ of error shall delay the proceedings on the judgment of the Circuit Court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of ten per centum per annum on the amount of the judgment.


2. In such cases where there exists a real controversy, the damages shall be only at the rate of six per centum per annum. In both cases the interest is to be computed as part of the damages." 1 Cranch, xviii.

The latter rule was changed in 1852, when by an amended rule, still in force, on affirmance of a judginent, interest was directed to be calculated and levied from the date of the judgment below until paid, at the same rate that similar judgments bear interest in the courts of the State where the judgment was rendered. 13 How. V.

The other rule was amended in 1871, giving ten per cent damages in addition to interest, when the writ of error appears to be sued out merely for delay. 11 Wall. x.

And both rules were extended to appeals from decrees in chancery for the payment of money in 1852. 13 How. v.

These rules may undoubtedly be regarded as prescribing the measure of damages for delay in the cases in which they apply; that is, in the case of money judgments and decrees. But whether the bond in error covered the original debt was not distinctly decided until the case of Catlett v. Brodie, 9 Wheat. 553, came before the court. In that case judgment was rendered for the plaintiff below for a large sum; but the judge who signed the citation took a bond in a small amount to respond the damages and costs. On a motion to dismiss the writ of error for insufficiency of the bond, it was contended for the plaintiff in error that the act meant only to provide for such damages and costs as the court should adjudge for the delay. But the court held that the word "damages" covered whatever losses the plaintiff might sustain by the judgment's not being satisfied and paid after the affirmance; in other words, that the bond in error had the same effect as the recognizance required by the English statutes, and was intended to secure

payment of the original judgment, as well as the damages for delay. Hence, the bond should have been taken in an amount sufficient to secure the whole debt; and it was ordered that the writ of error should be dismissed unless, within thirty days from the rising of the court, the plaintiff in error should give a bond sufficient in amount to secure the whole judgment.

In Stafford v. Union Bank of Louisiana, 16 How. 135, though no decision was made, because the case was not properly before the court, an opinion was delivered by Mr. Justice McLean, as for the court, that the same rule would apply in case of an appeal from a decree in equity for the sale and foreclosure of certain negroes who had been delivered to a receiver pendente lite; and that the bond should have been to secure the whole mortgage debt. Mr. Justice Catron dissented from this view, holding that, where there was a fund in the possession of the court, no security to cover its contingent loss should be required; and that to construe the act as if this were a simple judgment at law would operate most harshly.

In accordance with the suggestion made by the court, application was made for a mandamus to the judge below, to compel him to cause the decree to be carried into execution notwithstanding the appeal. On a rule to show cause the judge returned the facts as above stated, and that he had no power to take further order in the case. But the court, deeming the appeal bond insufficient to operate as a supersedeas, granted the mandamus. 17 How. 275.

Subsequent decisions have undoubtedly modified the rule followed in this case, and, indeed, have overruled it, and are more in accordance with the views expressed by Mr. Justice Catron.

In Roberts v. Cooper, 19 How. 373, which was an action of ejectment for the recovery of mining lands, the plaintiff having recovered the land with only nominal damages, a writ of error was brought by the defendant, who was required to give a bond for only $1,000. The plaintiff applied to this court for an order requiring additional security, producing affidavits to show that the damages which he would sustain by the delay in working the mine, caused by the supersedeas, would exceed $25,000. The court refused the motion; and said that if it

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