
    Saddler et al. vs Glover.
    Covenant, Case 14.
    Error to the Garrard Circuit.
    
      October 23.
    
      Abatement. Pleading. Supersedeas,
    
   Chief Justice Robertson

delivered the Opinion of the Court.

It seems to this Court, that the plea to the action on the injunction bond in this case, was properly adjudged insufficient, by the Circuit Court, for two reasons:

Suspension, by supersedeas of the decree dissolving the injunction is matter in abatement of the action on the injunction bond — notin bar..

The mere exeeutionof the supersedeas bond, according to the act of 1838, does not (like the execution of appeal bonds,) suspend the judgment or decree— the record must be filedhere, and the writ of error with supersede-as sued out.

Bradley for plaintiff: Turner for defendant.

1st. Even if the plea could be understood as averring that the decree dissolving the injunction was suspended by a supersedeas, still continuing in force, such matter would only abate the action on the injunction bond, and would not be pleadable in bar, as pleaded in this. case.

2nd. The plea, avering as it does, only that a supersedeas bond had been executed in the Circuit Court Clerk’s office, is altogether insufficient for any useful purpose to the party offering to file it. It is true that the execution of an appeal bond, conformably with an order-granting the appeal, might be good matter in abatement of an action or other procedure for enforcing the judgment or decree appealed from, because the execution of such a bond consummated the appeal and, ipso facto, suspended the judgment or decree.

But a supersedeas bond, under the authority of the statute of 1838, (Session Acts, 159,) has not, per se, the same suspensive effect. That enactment only provides, “That any person or persons may, on executing bond, “and filing the record and assigning errors, as now required by law, sue out a writ of error with a supersede-“as without order from an appellate Judge-.” consequently, the execution of the bond in this case, was only an initial act which would have enabled the party to procure a supersedeas; but until a writ of error with a supersedeas had been procur'ed and issued there was no suspension of the decree, and the party executing the bond may, in fact, have elected not to file the record in this court, or assign errors, or prosecute a writ of error with a supersedeas.

Therefore, the plea being clearly immaterial, the Circuit Court did not err in refusing to permit the filing of it.

Wherefore, perceiving no error in the judgment of the Circuit Court, it must be affirmed.  