Higgins agt. Allen. SUPREME COURT. HIGGINS agt. ALLEN. A reference to ascertain damages upon an injunction bond filed under the 31st rule of the late Court of Chancery, is not required where the bond does not contain the clause providing for a reference. The remedy is by action on the bond. But such action can not be brought without leave of the court. Albany Special Term, July 1851. S. F. HIGGINS, Plaintiff in pro. per. J. K. PORTER, for Defendant. PARKER, Justice.-This action is brought on an injunction bond, taken in 1846, under the 31st rule of the late Court of Chancery. The defendant moves to set aside the summons and complaint served on him on three grounds: 1. That there has been no order of reference, and no reference to ascertain the amount of damages. 2. That no leave has been obtained from the court to prosecute the bond; and 3. That the plaintiff demands judgment for $500, the penalty of the bond, without application to the court. The first ground is untenable, for the reason that the bond contains no provision for ascertaining the amount of damages by reference. The last clause required by the 31st rule of the late Court of Chancery is omitted. It was the practice to insert it after the condition of the bond, in the language of the rule as follows: "Such damages to be ascertained by a reference to a master, or otherwise, as the chancellor or vice chancellor, having jurisdiction of the cause in which such injunction issues, shall direct." It was decided in Gracie vs. Sheldon (3 Barb. S. C. Rep. 232), that without such a clause in the injunction bond, the court has no jurisdiction to direct a reference for the purpose of ascertaining the amount of damages. The remedy in such case is by action on the bond. Where an undertaking is executed under the 222d section of the Code, which has been enacted in place of the Higgins agt. Allen. 31st rule of the late court of chancery, it seems no provision for reference is required to be inserted in the undertaking, but the same section authorizes the ascertaining of damages by reference or otherwise, as the court shall direct. Where the proceeding has been taken under the Code, there is therefore jurisdiction in the court to direct a reference without action, though there be no such consent in the undertaking. But this bond was taken under the former practice and not under the Code. The next question is, was an order of the court necessary, giving the plaintiff leave to prosecute the bond, before the commencement of the action? In all cases where injunction bonds were taken under the provisions of the Revised Statutes, to stay proceedings at law, they were required to be filed with the register or clerk before the sealing and delivery of the injunction (2 R. S. 2d ed. page 117, § 155), and the next section provided that the chancellor or vice chancellor should direct the delivery of any bond executed under the provisions of that article, to the person entitled to the benefit thereof, for prosecution, whenever the condition of such bond should be broken, or the circumstances of the case should require such delivery. By the 31st chancery rule, a bond was required in most other cases of injunction, and it was intended to make a similar practice applicable throughout. Such bonds were always required to be filed before the issuing of the injunction (1 Barb. Ch. R. 625) and being placed on file, they could not be removed without the order or leave of the court. The court had the same control over the bond as when it was filed under the statute; and the same practice was adopted by applying for leave to prosecute where the condition of the bond had been broken. The plaintiff was therefore irregular in commencing his action on the bond without the authority of the court. The remedy for such an irregularity is by motion to set aside the proceedings (Harris vs. Hardy, 3 Hill R. 393). I regret the necessity for setting aside these proceedings, when it is probable the plaintiff would have been entitled to leave to prosecute, on application for that purpose; and if the proper facts ⚫ were before me establishing such right, and showing that this Emerson and Crocker agt. Burney. was the proper place to make such application, I should grant such leave nunc pro tunc, and let the proceedings stand, on payment of costs. But the plaintiff has failed to show the facts necessary to entitle him to such relief, and has also failed to show that the bond was filed in this district or in a county adjoining this county, so as to make this a proper place for the application. This irregularity being fatal to the proceedings, it is unnecessary to examine the third point made by the moving counsel. Motion granted, with $10 costs. SUPREME COURT. EMERSON and CROCKER agt. BURNEY. On appeal from an order under § 349 to the general term, no undertaking, or security is required. In an action for the recovery of the possession of personal property with damages for its detention—the defendant failing to answer, and an order of reference to ascertain the damages of detention, is made upon notice and opposed-such order is appealable to the general term. It involves some part of the merits. And the appeal taken from such an order is per se a stay of proceedings in the action. Steuben Circuit and Special Term, May 1851. In August 1850, E. Corning & Co. having obtained a judgment in the Supreme Court against Harlow L. Emerson, caused an execution to be issued thereon to the sheriff of Steuben county, by virtue of which, the defendant as under sheriff of said county, levied upon a drove of sheep and horses as the property of said H. L. EmerSoon afterwards the plaintiffs brought this action to recover the possession of the said sheep and horses, under ch. 2, title 7, part 2 of the Code (§ 206 to 217, inclusive), in pursuance of which, they obtained possession of the same. After the time for answering the complaint had expired, and no answer having been received, the plaintiffs obtained an order of reference to Isaac Q. Leake, Esq. to report the plaintiffs' damages for the taking and son. Emerson and Crocker agt. Burney. detention of the property. This order of reference was made upon notice, and upon the apppearance of both parties by their counsel, at a special term held in Chemung county in February 1851. The defendant appealed from the order of reference to the general term, within the thirty days allowed by the Code for that purpose, by giving notice of such appeal, but without giving any undertaking as required by § 348, or any other section of the Code. The plaintiffs disregarded the appeal and proceeded to execute the order of reference, and obtained a report from the referee of $345.55, for the detention of the property in question. The defendant now moves to set aside the report of the referee and all subsequent proceedings. JAMES DUNN, for Defendant. WM. H. GIBBS, for Plaintiff. WELLES, Justice.-There were several questions discussed upon the argument of this motion, none of which, in my judgment, are worthy of consideration, excepting the one which involves the validity of the appeal from the order of reference, as a stay of the plaintiffs' proceedings. It is objected by the plaintiffs' counsel that the order is not appealable, and that if it is, the appeal in this case was imperfect and inoperative as a stay of proceedings, for the reason that no undertaking, as required by § 348, has been executed. The appeal is from an order as distinguished from a judgment entered upon the direction of a single judge, as provided in § 348, where an undertaking is necessary. Section 349 provides for appeals from orders made by a single judge, and defines the cases in which they may be brought. This section declares that "an appeal may in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may thereupon be reviewed in the following cases," &c. It is contended that the words "in like manner," mean in this connection, the same as if the expression had been in the same form and with the like proceedings;" in other words, that they enjoin or require the same steps and proceedings to be taken Emerson and Crocker agt. Burney. by the appellant in order to perfect the appeal, as are required by the previous section, 348, on an appeal from a judgment. I am disposed to hold that no undertaking is necessary in a case like the present, of an appeal from an order made by a single judge. Section 327 directs how an appeal shall be made, which is by the service of a notice in writing, on the adverse party, and on the clerk with whom the judgment or order appealed from, is entered, stating the appeal from the same or some specified part thereof. This provision is in the chapter entitled " of appeals in general." The next chapter is entitled "appeals to the Court of Appeals," and relates exclusively to that class of appeals. The next (ch. 3) to appeals to the Supreme Court from inferior courts. Then comes chapter 4, which provides for and regulates appeals from judgments in the Supreme Court, entered upon the direction of a single judge of the same court, and appeals in the same court from orders made by a single judge to the general term. In the former, security must be given in the same manner as upon an appeal to the Court of Appeals (§348), which is an undertaking on the part of the appellant by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; or that sum must be deposited with the clerk with whom the judgment or order was entered, to abide the event of the appeal (§ 334). In case of the latter, it is provided that "an appeal may in like manner, and within the same time, be taken from an order, &c. The words "in like manner," I think, are satisfied by referring them to the directions contained in § 327, prescribing how appeals are to be brought generally, as before stated. That is to say, an appeal from an order may be taken by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof, in the same manner as other appeals are brought. The section giving these appeals does not in terms require security to be given by the appellant, and as the only words in the section, or elsewhere in the Code, which seem to |