ley, 10 Pet., 343; U. S. v. Linn, 15 Pet., 290; U. S. v. Hodson (supra), 10 Wall., 395.

The conditions of this bond, which are within the statute, give us damages equal to the penal sum.

The defendant, by the terms of the bond in which he agreed to pay all damages in case he did not prosecute his writ of error, undertook to pay the whole judgment.

Catlett v. Brodie, 9 Wheat., 553; Stafford v. Bank, 16 How., 139; S. C., 17 How., 275 (58 U. S., XV.,101); Ives v. Bank, 12 How.,159; Many v. Sizer, 6 Gray, 141; Ex parte French, 100 U. S., 4 (XXV., 530).

Messrs. Jeremiah S. Black, J. I. Redick, Clinton Briggs and Geo. E. Pritchett, for the Omaha Hotel Company et al., defendants below:

It is very plain what the intention of the parties was in giving this bond, and how it should be construed. As this court said, in the case in 3 Cranch, 235: "There are many cases on the construction of bonds where the letter of the condition has been departed from to carry into effect the intention of the parties."

And to the same effect are the cases of Swain v. Graves, 8 Cal., 549, and the case of Ward v. Buell, 18 Ind., 104, where the court says: "Any instrument in writing, however defective, which the parties execute for the purpose of staying execution on an appeal, and the officer accepts for such purpose, will have the force and effect of an appeal bond."

Any obligations of an appeal bond, which are additional to those required by statute are void. Tomlin v. Green, 39 Ill., 225.

It would seem as though this court had pretty well settled the question as to what the loss of a mortgagee could be by reason of superseding his decree of foreclosure, in the cases of Supervisors v. Kennicott, 103 U. S., 555 (XXVI.,487), and Jerome v. McCarter, 21 Wall., 17 (88 U. S., XXII., 515), and shown that such loss depends upon the facts.

The Statutes of Nebraska provide that "In the absence of stipulations to the contrary, the mortgagor retains the legal title and right of possession" until sale is confirmed. See, Compiled Statutes of Nebraska, p. 394, sec. 55.

Webb v. Hoselton, 4 Neb., 318; Ins. Co. v. Lovitt, 10 Neb., 301.

If the mortgagees never were entitled to the possession of the premises, how can it be claimed that they are entitled to recover for rents and profits which go with the possession.

Mr. Justice Bradley delivered the opinion of the court:

This is an action on an appeal bond given for supersedeas of execution on a decree of foreclosure rendered by the Circuit Court for the District of Nebraska, and appealed to this court and affirmed; and the question is as to the measure of damages to be recovered on said bond.

The foreclosure suit was brought to raise the amount due on certain bonds of the Omaha Hotel Company out of certain lands and premises situated in the City of Omaha, which had been mortgaged by the Company to secure the payment thereof. A decree was made on the 8th of May, 1875, by which it was ordered that the mortgaged premises be sold and the pro

| ceeds applied to pay the debt, after paying costs of sale and insurance and taxes accruing in the mean time. The defendants appealed and, to obtain supersedeas of execution, gave the appeal bond which is the subject of the present controversy. The bond was in the penalty of $50,500, and after reciting the decree and appeal was conditioned as follows:

"Now, the condition of the said obligation is such that if the said Omaha Hotel Company shall duly prosecute said appeal to effect, and pay said Jeptha H. Wade, James W.Bosler, Thomas Wardell, John A. Creighton, administrator of the estate of Edward Creighton, deceased, Andrew J. Poppleton, Augustus Kountze, Herman Kountze and Henry W. Yates, their executors, administrators or assigns, for the use and detention of the property covered by the mortgage in controversy in this suit, during the pendency of said appeal, and the costs of the suit, and just damages for delay, and costs and interest on said appeal, if it fails to make good its plea, this obligation shall be void; otherwise to remain in full force and virtue."

The decree being affirmed and the premises sold, the proceeds were found to be insufficient to satisfy the debt, to the amount of $88,480.85; and for this deficiency a decree was rendered against the Omaha Hotel Company, and an execution issued, which was returned unsatisfied.

Thereupon the present suit was brought on the appeal bond, and the plaintiffs by their petition claimed the entire penalty and interest cn the facts above stated and on the ground that the Company was insolvent, that, pending the appeal, the property had depreciated in value $30,000, and that the use and detention of it was worth $30,000 more. The defendants, in their answer, averred that they had kept the property in good repair at a large expense, had paid all the taxes upon it, and had kept it insured for the benefit of the bondholders to the amount of $100,000; and that instead of depreciating, it was worth much more when the sale was made, than it was at the time of the original decree. The jury, by a special verdict, found that the rental value of the property, pending the appeal, with interest to the time of trial, was $44,838.67, and that the expenses paid by the defendants for taxes, insurance and repairs, with interest thereon, was $26,082.71; that the value of the property in May, 1875, was $92,500, and in April, 1878, $139,000; that in May, 1875, it would have sold at master's sale for $62,000 (whereas, it sold in 1878 for $120,000); that the interest on the decree pending the appeal was $58,870.25; and that the penalty of the bond, with interest from July 11, 1878, to the time of the trial, amounted to $57,750; and that the costs of the original s it unpaid by the defendants was $520.

The court rendered judgment in favor of the plaintiffs for $19,735.93, being the difference between the rental value of the property pending the appeal, and the sums expended by the defendants for taxes, insurance and repairs, alowing interest on both sides; with the addition of the item of $530 costs unpaid by the defendants, and interest from the time of trial to the date of the judgment.

Both parties brought writs of error.

The plaintiffs now contend that they ought to have had judgment for the entire penalty of

the bond, because, first, the bond expressly provides that the Omaha Hotel Company shall pay for the use and detention of the property pending the appeal, as well as costs and just damages for delay, which greatly exceeds the penalty; secondly, if the bond is to be limited in effect to the terms of the statute prescribing a bond, the damages are still greater than the penalty, its legal effect being to secure, to the extent of the penalty; (1), payment of the whole decree beyond what may be produced by the sale of the property; (2), the interest accruing pending the appeal, which alone exceeds the penalty; (3), the value of the use and detention of the property pending the appeal.

The defendants contend that judgment should have been given for them.

The appeal bond sued on in this case was given under the requirement of section 1000 of the Revised Statutes, which declares that every justice or judge signing a citation or any writ of error shall, except in cases brought up by the United States, etc., take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a supersedeas as aforesaid. Section 1007 gives the effect of a supersedeas to a writ of error where such a bond as above described is given, and the writ is sued out and filed in proper time. Section 1010 declares that where judgment is affirmed, the court shall adjudge to the respondent in error just damages for his delay, and single or double costs, at its discretion. Section 1012 declares that appeals from the circuit courts, etc., shall be subject to the same rules, regulations and restrictions as are or may be prescribed in law in cases of writs of error.

These enactments are substantially a reproduction of like clauses in the Judiciary Act of 1789 [1 Stat. at L., 73], as regards writs of error, and of the Act of 1803 [2 Stat. at L.,244], as regards appeals. The material words are the clause in the bond which declares "That the plaintiff in error (or appellant) shall prosecute his writ to effect, and if he fail to make his plea good, he shall answer all damages and costs." The scope and effect of this phrase, as applied to cases like the present, are the principal point in controversy. The bond sued on has an additional phrase, not required by the law, the effect of which will be separately considered.

By the common law a writ of error, without any security, was of itself a supersedeas of execution from the time of its allowance or recognition by the court to which it was directed; and even before, if the defendant in error had notice of it; or, in the common pleas, from the time of its delivery to the clerk of the errors of that court, whose business it was, amongst other things, to prepare the returns. 1 Tidd, Pr., 530, 1145; Impey, Pr., C. P. 16; Petersd. Abr., tit. Error, I. (H, a.) The presentation of the writ issuing from the Superior Court, stopped all further proceedings except such as were incidental to a compliance with its command to certify the record. But as writs of error came to be sued out for the purpose of delay, various Acts of Parliament were passed, requiring security in certain cases, in order that the writ

might operate as a supersedeas. First, without referring to a statute in the time of Elizabeth, the Statute of 3 James I., ch. 8, declared that no execution should be stayed or delayed, upon or by any writ of error, or supersedeas thereon, for the reversing of any judgment in debt upon a single bond, or a bond with condition for the payment of money only, or in debt for rent, or upon any contract, unless the plaintiff in error with two sufficient sureties, should first be bound to the plaintiff in the judgment, "By recognizance, in double the sum recovered by the former judgment, to prosecute the writ of error with effect, and also to satisfy and pay, if the said judgment should be affirmed, or the writ of error non-prossed, all and singular the debts, damages and costs, adjudged upon the former judgment; and all costs and damages to be awarded for the delaying of execution." This statute was specific as to the cases in which bail in error (as it was called) was required, and it was frequently held, that it could not be required in any other cases. 2 Sellon, Pr., 367374; 2 Tidd, 1150. Subsequently by the Statute of 13 Car., 2, ch. 2, as enlarged by 16 and 17 Car., 2, ch. 8, the same recognizance was required to stay execution in all personal actions in which a judgment was rendered upon a verdict, and in most cases double costs were given in case the judgment was affirmed; and in writs of error upon judgment after verdict in dower and ejectment, it was provided that execution should not be stayed unless the plaintiff in error should be bound to the plaintiff, in such reasonable sum as the court below should think fit, with condition, that if the judgment should be affirmed, or the writ of error discontinued, in default of the plaintiff in error, or he should be non-suited therein, that then he should pay such costs, damages and sum or sums of money as should be awarded upon or after such judgment affirmed, discontinuance or non-suit; and to ascertain the sum and damages to be awarded, it was provided, that the court should issue a writ of inquiry as well of the mesne profits, as 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, ch. IV., 1 Kilty's Laws; and Alexander's British Statutes in force in Maryland, 16 and 17 Car. 2, ch. 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; and, in the case of dower and ejectment, the only other cases in which bail was required and 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. Tidd, 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.

ject 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 subjected 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 23d 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.

By an Act passed December 12, 1794, 1 Stat. at L., 404, it was declared that the security to be required on signing a citation on a 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 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 defendant 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 costs.

(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.

Such being the rules prevailing on the sub

The latter rule was changed in 1852, when by an amended rule, still in force, on affirmance of a judgment, 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. [For Rules of 1884, see, Book XX., 901.]

The other rule was amended in 1871, giving ten per cent damages in addition to interest,