covert, non compos mentis, or imprisoned, in all which cases five years are allowed exclusive of such disability. But in order to make the writ of error operate as a supersedeas, a copy must be lodged for the adverse party in the clerk's office,1 where the record remains, within ten days,2 Sundays exclusive, after the judgment is rendered, or the decree passed, which is complained of. And in any case where a writ of error may operate as a supersedeas, no execution shall issue during the ten days.

The judge signing the citation is required to take good and sufficient security that the appellant shall prosecute his appeal to effect, and answer all damages and costs if he fail to make his plea good. As a general rule, to entitle the appeal to operate as a supersedeas the bond must be filed within the ten days.. The bond should mention the parties correctly.5

The word damages does not mean damages for the delay, but 1 See Wood v. Lide, 4 Cranch, 180; Davidson v. Lanier, 4 Wallace, 454.

City of Washington v. Dennison, 6 Wallace, 495. In Thompson v. Voss, 1 Cranch, C. C. 108, it was held that a writ of error was not a supersedeas unless it was served within ten days after the rendition of the judgment, although the parties had agreed to a stay of execution for two months, and the writ of error had been served before the expiration of that time. It would seem that an appeal must date from the time when it is actually made, and that an inferior court cannot give it any additional effect by allowing it to be entered nunc pro tunc. Garrison v. Cass County, 5 Wallace, 823; The Roanoke, 3 Blatchf. C. C. 390. And the same rule applies to the date of a decree. Rubber Co. v. Goodyear, 6 Wallace, 153.

Act of 1789, c. 20, § 22, 1 U. S. Stats. at Large, 85. See post, 508, n. 4. Adams v. Law, 16 How. 144; Hudgins v. Kemp, 18 How. 530. In Ex parte Milwaukee R. 5 Wallace, 188, the bond was tendered within the ten days, but the judge refused to approve of it on the ground that all the sureties were nonresidents of the district. The appeal to the Supreme Court was allowed, but not as a supersedeas. Application was then made to the Supreme Court for a mandamus to compel the judge to approve the bond and allow a supersedeas, or for such other relief as the court could give. The court held, that although they did not concur in the opinion of the judge below, that the fact of the non-residence of the sureties was a sufficient reason for rejecting the bond which was in other respects unobjectionable, they were not inclined to interfere by mandamus with the discretion of the judge in approving or rejecting a bond offered for his approval; but that as the case was properly before them they could issue a writ of supersedeas. It was accordingly ordered that on the filing of a bond within thirty days, to be approved by the clerk of the Supreme Court, a writ of supersedeas should issue.

Kail v. Wetmore, 6 Wallace, 451.

the penalty must be sufficient to cover the whole amount of the judgment. If a writ of error is not to operate as a supersedeas, the bond" 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.2"

The Thirty-Second Rule of the Supreme Court,3 provides that supersedeas bonds in the circuit court must be taken, with good and sufficient security that the appellant shall prosecute his appeal to effect, and answer all damages and costs if he fail to make his appeal good. Such indemnity where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including "just damages for delay," and costs and interest on the appeal; but where the property is in the custody of the marshal, under admiralty process, as in case of capture or seizure; or where the proceeds thereof, or a bond for the value thereof, is in the custody or control of the court, indemnity in all such cases is only required in an amount sufficient to secure the sum recovered for the use or detention of the property, and the costs of the suit, and "just damages for delay," and costs and interest on the appeal.

The question of the sufficiency of an appeal bond is to be determined in the first instance by the judge who signs the citation, but after the allowance of the appeal the Supreme Court can take cognizance of it.4

All the appellants should join in the appeal, though they need not join in the bond.5

The law presumes that the judge granting the appeal has attended to his duty, and it need not, therefore, appear affirmatively that the bond was given. In one case, where the transcript 1 Stafford v. Union Bank of La. 16 How. 135; Catlett v. Brodie, 9 Wheat. 553.

Act of 1794, c. 3. 1 U. S. Stats. at Large, 404.

3 6 Wallace, iv.

Rubber Company v. Goodyear. 6 Wallace, 153. Chase, C. J., said: "It is, therefore, matter of discretion with this court to increase or diminish the amount of the bond, and to require additional sureties, or otherwise, as justice may require."

Brockett v. Brockett, 2 How. 238.

• Martin v. Hunter, 1 Wheat. 304, 361; Davidson v. Lanier, 4 Wallace, 454.

*

showed that no bond was given, the appeal was dismissed.1 But the court will not always dismiss the appeal if no bond is filed, but will generally allow the appellants time within which to file it. The bond must be taken and approved in such a case by any judge authorized to allow the appeal.3

If the inferior court issues an execution notwithstanding the appeal, the Supreme Court may issue a supersedeas, if the appellant was entitled to one in the inferior court. But the appeal cannot operate as a supersedeas unless it is properly taken within the ten days. If, therefore, an appeal is taken and a bond filed, and the appeal is afterwards dismissed because of some informality in another respect, and then another appeal is taken and sufficient security offered, the appellant is not entitled to a supersedeas.5

If, after the decree is pronounced, the inferior court suspends the operation of it, as by entertaining a petition to open it, the ten days do not begin to run till the decree is finally entered.

An appeal need not be in writing or taken in court. If it is taken in open court, no citation is necessary. If not taken in open court, a citation signed by the judge of the circuit court or by a justice of the Supreme Court must be issued, citing the adverse party to appear at the Supreme Court on the first day of the next succeeding term; 10 and the appeal must be entered at that term.11 1 Boyce v. Grundy, 6 Pet. 777.

2 Anson v. Blue Ridge R. 23 How. 1. See also Davidson v. Lanier, 4 Wallace, 454; Brobst v. Brobst, 2 id. 96; Seymour v. Freer, 5 id. 822.

Anson v. Blue Ridge R. 23 How. 1.

Stockton v. Bishop, 2 How. 74.

Hogan v. Ross. 11 How. 294.

Brockett v. Brockett, 2 How. 238. See also Wylie v. Coxe, 14 How. 1. Hudgins v. Kemp, 18 How. 530, 537. In England the practice was formerly, after a party had appealed, for him to pray" apostles" from the judge, i. e. short letters dismissory, signed by the judge, stating shortly the case and sentence, etc. 2 Browne, Civ. & Adm. Law, 438. The word "apostles " is also used in one of the circuit court rules in New York, 1 Blatchf. C. C. 660.

Reily v. Lamar, 2 Cranch, 344; Brockett v. Brockett, 2 How. 238.

'City of Washington v. Dennison, 6 Wallace, 495; Alviso v. United States, 5 Wallace, 824.

10 Insurance Co. v. Mordecai, 21 How. 195; United States v. Curry, 6 How. 106. Agricultural Company v. Pierce County, 6 Wallace, 246.

" Hamilton v. Moore, 3 Dall. 371; Villabolos v. United States, 6 How. 81; Steamer Virginia v. West, 19 How. 182; Mesa v. United States, Black, 721; Castro v. United States, 3 Wallace, 46; Garrison v. Cass Co. 5 id. 823. For a

To this rule there are, however, certain exceptions, which are thus stated by Mr. Justice Clifford: "Where the appellant, having seasonably procured the allowance of the appeal, is prevented from obtaining the transcript by the fraud of the other party, or by the order of the court, or by the contumacy of the clerk, the rule does not apply, provided it appears that the appellant was guilty of no laches, or want of diligence in his efforts to prosecute the appeal."

If the appeal is taken after the commencement of the term of the Supreme Court, the appellant is not bound to file the record. until the next term, and until the record is filed, the court cannot order the appeal to be dismissed.2

If the writ of error is defective, the Supreme Court of the United States has no power to amend it, or to issue another citation.3

The citation must be signed by the judge who allows the appeal and not by the clerk, and it should name all the parties to the suit, and name them correctly, and it should be served before the commencement of the term, and it has been said that if thirty

case where the writ was destroyed before reaching the Supreme Court, see Mussina v. Cavazos, 6 Wallace, 355. In Insurance Co. v. Mordecai, 21 How. 195, Taney, C. J., after stating that the writ must be returnable the first day of the term, said: the plaintiff in error " may, it is true, return the writ with the transcript at any time during the term, unless the case has been docketed and dismissed, when it cannot afterwards be filed without the special order of the court. But this permission to return the writ and file the transcript at a subsequent day, is upon the principle that, for certain purposes of convenience or justice, the term is considered as but one period of time, as one day, and that day the first of the term." 1 United States v. Gomez, 3 Wallace, 763.

2 Stafford v. Union Bank of Louisiana, 16 How. 135. Insurance Co. v. Mordecai, 21 How. 195.

United States v. Hodge, 3 How. 534; Villabolos v. United States, 6 How. 81, 90.

6

Smyth v. Strader, 12 How. 327. In Louisiana, it is the practice for the name of the husband to be put in the petition when a suit is brought by the wife. This is done to signify the assent of the husband to the suit, but he is not considered a party to it, and is not responsible for costs. Under these circumstances it has been held that calling in the citation one of the parties A. B. wife of C. D., when she was wife of E. F., was not a fatal error. Peale v. Phipps, 8 How. 256.

Kail v. Wetmore, 6 Wallace, 451.

'Yeaton v. Lenox, 7 Pet. 220; Garrison v. Cass Co. 5 Wallace, 823; City of Washington v. Dennison, 6 Wallace, 495.

days will not elapse before the commencement of the term, the respondent is not obliged to be ready for the argument before the thirty days have elapsed.1 And in 1803, a rule was passed to this effect, but this rule was omitted in the new rules.2 At the December Term, 1867, the Supreme Court provided that where final judgment is rendered more than thirty days before the first day of the next term of that court, the writ of error and citation, if taken before, must be returnable on the first day of said term, and be served before that day; but where the judgment is rendered less than thirty days before the first day, the writ of error and citation may be made returnable on the third Monday of the term, and be served before that day.3

The citation should, we presume, be served personally, either on the appellee or his attorney of record, and the latter cannot, after the decision in the court below is given, withdraw his name to avoid service. If the attorney of record is dead, it is not sufficient to serve it on his executor or personal representatives, or on another member of the bar who was a partner of the deceased, the name of the latter not appearing of record. And in one case, where a woman married after judgment, it was held that the service of the citation upon her husband was sufficient. The appellee should, if no citation is served upon him, or if one is served in any way irregularly, at the term when the appeal is entered, move that the appeal be dismissed, because if an appearance is entered

1 Lloyd v. Alexander, 1 Cranch, 365. See also Wood v. Lide, 4 Cranch, 180. In Welsh v. Mandeville, 5 Cranch, 321, the court refused to take up a case without the consent of both parties, during the term, the citation not having been served thirty days before the commencement of the term.

The 16th Rule, passed in 1803, 1 How. xxvi., provided that when the writ of error issued within thirty days before the meeting of the court, the defendant in error could enter his appearance and proceed to trial, otherwise the cause must be continued. The 9th Rule, of 1858, which provides for the manner of docketing and dismissing causes, which we give in the Appendix, makes no provision for this case, nor do any of the rules upon which it was founded. The old rules are revised and corrected in 21 How., and renumbered, but they are not expressly repealed, and the rule of 1803 may yet be in force.

* Rule No. 33, 6 Wallace, vi.

United States v. Curry, 6 How. 106.

Bacon v. Hart, 1 Black, 38.

Fairfax v. Fairfax, 5 Cranch, 19.