
    John F. Baskin vs. Thomas A. May.
    The clerk of the circuit court has no power to issue a supersedeas under the statute of 1837, authorizing clerks of the circuit and other courts, to issue writs of error and supersedeas, in certain cases, unless the applicant for the supersedeas gives bond with two or more sufficient sureties ; and a supersedeas granted by the clerk upon a bond with only one surety, will be dismissed.
    "Where the clerk has issued a writ of error with supersedeas upon a bond given by the applicant for the supersedeas, with only one surety, this court will discharge the supersedeas, but not dismiss the writ of error, as the clerk may issue the writ of error merely, without any bond at all.
    Time will not be allowed to perfect a bond improperly taken by the circuit clerk, on which a supersedeas has been issued by him, by retaining the supersedeas until a new bond can be given. If the supersedeas was granted without authority, it must be discharged, and a new application for superse-deas be made. The rule is different if the bond was properly given, but the sureties have since become insolvent. In such case, time to perfect the security will be allowed, and the supersedeas retained for that end.
    In error from the circuit court of Holmes county.
    A motion was made in this case to dismiss the writ of error and supersedeas, because the clerk below had issued them upon a bond given by the plaintiff in error, with only one surety.
    
      Brooke, for the motion,
    contended that the statute was imperative, and required two sureties before a writ of error could be issued by the clerk, and referred to the statute. Laws of Miss. 1824-1838, p. 753.
    
      George S. Yerger, contra,
    
    insisted that the statute was not imperative, but was merely directory, and left it in the discretion of the clerk to take more sureties than one or not, as he saw proper. And that it had been frequently decided in other states, where the phraseology of the statute required two sureties to a bond, that a bond with only one surety, was a sufficient and valid bond.
    If the court should think the bond insufficient, time is asked to perfect the security and give new bond.
   Per Curiam.

This court has repeatedly held that the statute authorizing clerks of the inferior courts to issue writs of error is imperative in its requisitions that there shall be two or more sureties on the bond. A bond with only one surety is an invalid bond under the statute. The clerk of the court below had no power to receive it, or issue the supersedeas upon it; and the supersedeas accordingly must be discharged.

It is a different question, however, as to the writ of error. No bond is necessary to entitle any party defendant to the mere writ of error, without supersedeas. The clerk must issue the writ of error on application, though no bond be offered; but in such case it does not operate as a supersedeas. The supersedeas must be discharged, but the writ of error retained.

As to the application for time to perfect the bond or execute a new bond in, that must be the subject of another motion. This supersedeas must be discharged, because improperly grant» ed. Time is never allowed to perfect that which issued without authority. The court cannot retain a supersedeas which ought never to have been granted. Where the sureties on a lawful bond are held insufficient in point of solvency, And the superse-deas was in its origin properly granted, time is allowed to perfect the security, and the supersedeas retained for that end for the time limited.. But where there is no bond the court has no power to retain the supersedeas.  