
    LYNCH vs. BULLET, &c.
    The court will hear motions for a dif charge of a fu-■j>erfecUai> or for additional fecu-rity, when the fecurity taken is an improper or infufficient perfon.
    A perfon who Is fecurity in a replevy bond,is not a proper fe-curiry m a ju« ferjedeas bond,, given on fuing out a writ of er* ror to reverfe a decree in chancery which dif-folved an injunction ftay-jng proceedings at law upon th« replevy bond*
    Rules of proceeding where the fecurity is alleged to be in-fufiicient*
    THE defendants in this cause, obtained a judgment at law, against the plaintiff, in the Jefferson circuit court.
    The debt was replevied, and Stephen Smith entered as the security. Subsequent thereto, Lynch filed a bill in chancery against Bullet, &c. and procured an injunction, staying proceedings on the judgment at law. A decreee was pronounced dissolving that injunction. Lynch then sued out his writ of error, and obtained a supersedeas, upon Stephen Smith’s entering security in the supersedeas bond.
    At the last term, the defendants in error moved to discharge the supersedeas, unless other security were given. On account of its being a new question, that motion was postponed until this term. It was now argued.
    Talbot, for the defendants in error.
    — The law requires security to be given, whenever a supersedeas is obtained. Its object is, to give a man an additional safeguard for his debt, when his judgment is superseded. But we have no security here. The man who has entered security, is already bound to us in the replevy bond. We can come at him on that, in a short way, by an execution immediately on the affirmance of the j udgment; but on this bond, we should have to commence suit, if we were to resort to him. A new bond from the same man, and for the same demand, is no additional security. It must be another individual. It is no answer that the debt is safe. You have no right to omit taking security, because the debt is secured before. This, I consider no security.
    
      Allen and Bledsoe, for the plaintiff in error.
    — The clerk is the judge of the security : his act is conclusive. It is like a sheriff taking a replevy bond. Can a court, in such a case, order new or other security to be taken ? It is impolitic to hear motions for new or additional security ; it will consume much of the time of the court. It is better that a particular mischief should happen to individuals, than that a general inconvenience should be introduced.
    But the object of the law was, to have the debt secured. If one man is good for the money, it is as well as if fifty good men were bound for it. In 2 Call 217, it is said, the same security was taken in aft injunction bond, who was before bound in a forthcoming bond. And 3 Call 522-3, is a case nearly in point.
    May 15th.
    April 19th.
    Edwards, Ch. J. now delivered the resolution of the court: — We are of opinion that we have jurisdiction of the motion ; and ought to hear motions to discharge a supersedeas, when improper or insufficient security is taken. Smith, who was bound in the replevy bond, ought not to have been received as security in the su-persedeas bond. This is not like the case in 3 Call. Here, Smith is bound directly and absolutely for the payment of the money ; and is, in truth, a party to the judgment at law, by entering into the replevy bond : but there, the person taken as security, was bound collaterally only. The object of the law was to make the debt more secure. That cannot be done by taking a person as security, who is already bound.
    Enter a rule that unless new security be given by the -of-- next, the supersedeas will be dismissed. On a subsequent day, the cause was re-argued and re-considered. '
    Hardin, for the plaintiff in error.
    — I shall not question the. correctness of the principle decided by this court in this motion the other day; that a person who is already bound for the payment of the judgment or decree, cannot be received as security in the supersedeas bond, given on a writ of error to reverse that judgment or decree. But I contend that the security in the superse-deas bond, is only answerable for the amount of the judgment or decree,, for the reversal of which, the writ of error is sued out; and for the costs in this court. The decree, to reverse which, this writ of error is prosecuted, is a decree for ÍO per cent, damages, on the amount of the judgment at law, given on the dissolution of an injunction, and for costs. It is not a decree for the payment of the amount of the judgment at law. In cases where the injunction is dissolved, no decree is ever pronounced, for the amount of the judgment at law : nor could an execution issue for it, from the office of the court of chancery, where the cause should be removed to a different court, by a change of venue* The injunction being dissolved, and the decree- entered for 10 per cent, the common law judgment is reviyed, and the party proceeds on it, to recover his money ⅞ and: not under the chancery decree..
    
    
      That the amount of the decree, to reverse which, this writ of error is prosecuted^ is only the 10 percent, damages, and costs ; and does not extend to the judgment at common law, I consider settled in the cases of Lansdale vs. Findley, and Lowry vs. M'Murtry 
      , decided # ~ ; , ⅝ this term, qti'the question as to the 10per cent. to be gi« ven by this court, bn an affirmance.
    It must follow, from this view of the case, that the security required here, would be answerable for the amount of the chancery decree only, and not for the" amount of the common law judgment ; and Smith, the' security taken here, being answerable for the common law judgment only, is correctly taken to secure the payment of the decree below, for which he was not before bound.
    
      Talbot, for the defendants.
    — The object of the law requiring security to be given when a judgment or decree below is suspended by a supersedeas which issues from this court, was, to secure the payment of the money, the collection of which, was prevented by the superset deas.
    
    The security taken, must be answerable for the payment of the money suspended in the hands of the plaintiff in error. This includes both the judgment at common law, and the decree in chancery. This court should give a liberal construction to the law, to effectuate the intention of the legislature. And every shift or device resorted to by a debtor to procrastinate, should be met by some additional security to the creditor, if the rules pf law will permit. It is the more necessary, as those who are the most disposed to procrastinate, are the most apt to become insolvent, and generally get securities like themselves, who, though good when taken, may become entirely insufficient before they can be resorted to. If the construction contended for is correct, many debts which have been considered safe, by the parties giving security on obtaining a supersedeas, will be lost. The securities taken on obtaining the injunctions, having removed, or become insolvent. The law which directs security to be taken, says, it is to be given for the due prosecution of the appeal or writ of error  ; and under it I contend that the security would be answerable for all the money which is stayed in the hands of the debtor by the supersedeas. And such has been the ge-peral understanding ; for the penalty of those bonds have always been made large enough to cover the judgment at law.
    
      May 6th.
    
    
      October 11th.
    
      December 3rd.
    
      Clay and Hardin, for the motion in the firfl: cafe ; and Allen and Talbot, contra,
    
    In the fecondj Talbot and Hardin, for the motion ; and Wickliffey contra.
    
      
       Ant&zo⅝,
    
    
      
      
        i) afls of ^796-7, p. 70, ⅛⅛**- ¿ ’ ’
    
   Edwards, Ch. J.

_r-We have deliberated upon this subject since it was last argued, and have come to a final determination, that Smith was improperly received as security in this court; and that other security must be given.

Enter the rule as before directed. 
      
       In the cafes of Reefe vs. Lawlefs, and Allen & wife vs. Coffmant fall term 1808, the court fuftained motions fimiiar to the preceding, on the ground of the tecurity taken being inefficient.
      The following rules were then laid down relative to this proceeding :
      The motion mull be founded upon an affidavit of the infufficiency of the fecurity taken. The affidavit of a perfon interefted in the judgment belww, may be read, when application is made ior the jule to fliew caufe.
      Ifthe court are fatisfied, from the affidavit, th^t there is caufe to interfere, a rule will be entered ¡or the plaintiff in error to fliew caufe, by a day to be named, why the juperjedeas ihould not be difcharged, or other fecurity given \ proviaed a copy of the rule be ferved on him by a day to be named by the court.
      On /hewing caufe, affidavits taken by either party, (upon reafonable notice given to thé other) may be read, to fliew the Sufficiency or infufficiency of the fecurity taken*
      The affidavit of the fecurity may be received.
      Coils will be given to the fuccefsful party on this application, but a lawyer’s ffee will not be taxed.
      It the fecurity is adjudged inefficient, the additional fecurity offered mu/l be approved of by the court.
      Whenever iecurity is offered to the clerk, he may put the fecurity tendered on oath, and examine him as to the amount of his property $ and in detail relative thereto. And chough the perfon tendered, fliould /wear he was able to pay the fum in which he was to be bound $ yet ifthe clerk was not, from the dfetail, fatisfied of the corre&nefs of the ftatement $ he was not bound to receive Jlim as fecurity.
     