
    Isaac R. Wade vs. The American Colonization Society.
    An executor is entitled to an appeal without surety, when the judgment or decree is to affect only the assets of the decedent in his hands. Aliter, where he is in a situation in which a personal judgment or decree can be rendered against him, and in which he may be responsible out of his own funds.
    Under the statute (H. & H. 513,) an appeal will lie from an order of the Chancellor, appointing a receiver.
    The American Colonization Society filed a bill against W., and obtained an order for a receiver, to take charge of property held by W. as executor and trustee ; the receiver executed a bond, by order of the chancery court, in the penalty of one hundred thousand dollars ; W. appealed from the order appointing a receiver, and executed bond in the penalty of two hundred dollars, which was not approved by the Chancellor; pending the appeal, the Chancellor ordered the receiver to take the property held by W. into his possession ; W. moved this court for a supersedeas. Heldy that under the circumstances this court would not interfere with the proceedings of the Chancellor, and that the supersedeas should be refused.
    Where the requsitions of the statute, which provides for the granting of appeals from the decision of the chancery court are fully complied with, an appeal, by its own force, suspends the operation of the decree.
    That the appeal bond be approved by the Chancellor, is an important feature in perfecting an appeal.
    On appeal from the superior court of chancery.
    On the 4th day of November, 1S44, the record of the suit pending in the superior court of chancery, in the name of Isaac M. Wade v. The American Colonization Society, was filed and docketed in this court, as an appeal from an interlocutory decree of the said superior court of chancery, in which appeal Isaac R. Wade was appellant, and the American Colonization Society was appellee. On the 30th day of January, 1845, during the session of this court, the appellant, Isaac R. Wade, filed the following petition, viz.:
    “ To the Honorable the Judges of the High Court of Eh'rors and Appeals of the State of Mississippi :
    
    “ The petition of Isaac R. Wade, of the county of Jefferson, respectfully showeth — That on the 19th day of November, A. D. 1842, the American Colonization Society filed their bill in the superior court of chancery of this state, against your petitioner and others, executors of the last will and testament of Isaac Ross, deceased, praying a discovery as to the situation of the said estate, and a decree against the defendants, requiring them to execute the bequests of the said will, and praying the appointment' of a receiver, to hold and keep the property belonging to the estate, until the final decision of the cause.
    “ Your petitioner showeth, that he filed a demurrer to the said bill, setting up, among other things, a want of jurisdiction, by the Chancellor, over the subject-matter of the suit, and alleging that the same was within the separate and exclusive jurisdiction of the probate court of Jefferson county.
    “Your petitioner further showeth, that on the 5th day of June, A. D. 1844, his Honor the Chancellor disallowed the said demurrer, and your petitioner, feeling himself aggrieved by the said order disallowing his demurrer, prayed an appeal therefrom to the high court of errors and appeals, which was granted on his entering into bond, &c.
    “ Your petitioner further showeth, that afterwards, to wit, on the 13th day of June, A. D. 1844, the Chancellor ordered that John S. Chambliss be appointed receiver of the property of the estate of Isaac Ross, deceased, and the defendants, as executors of said estate, were required to deliver said property to said receiver. And your petitioner feeling himself aggrieved by the aforesaid order, appointing a receiver as aforesaid, did, on the 17th day of June, A. D. 1844, pray an appeal therefrom, which was granted by the Chancellor, on his entering into bond in the penalty of two hundred dollars, conditioned according to law, with surety, to be approved by the Chancellor, within-days.
    “ Your petitioner further showeth, that said appeal bonds have been duly given, and the cause regularly brought into this court in pursuance of said appeal so granted, as aforesaid, and the record duly filed.
    
      “Your petitioner further showeth, that the solicitors of the said Colonization Society, pretending that the said appeal does not operate to supersede and suspend the execution of the order for the appointment of a receiver, appealed from, as aforesaid, have lately entered a motion in the said superior court of chancery, for the issuance of an attachment against your petitioner, for a contempt of said court of chancery, in consequence of an alleged refusal by your petitioner to deliver said property to the receiver aforesaid, on a demand alleged to have been made therefor, since the granting of said appeal, and the giving bond as aforesaid ; that said motion has been argued and submitted to the chancellor for decision, but at the time of signing this petition your petitioner has not been informed in regard to the decision.
    “ Your petitioner, in view of the premises, prays your Honors to grant a supersedeas, to supersede and stay all further proceedings in the said cause, in the superior court of chancery, whether taken to enforce the execution of any decree or order already made, or for any other purpose, until the final determination of the appeal now pending in this court. And your petitioner will ever pray, &c. Isaac R. Wade.”
    This petition was verified by affidavit.
    A supplemental petition was filed on the 14th of February, A. D. 1845, setting up that the Chancellor had lately made a rule upon the petitioner, to appear and show cause why an attachment should not issue against him for a contempt, on account of his alleged refusal to deliver said property to the said receiver, since the granting and perfecting of the said appeal, which rule to show cause was then pending in full force ; that on the 13th day of February, 1845, on motion of the complainant in the bill, founded on the alleged refusal of the petitioner to deliver up the property in controversy to the receiver, the Chancellor had made an order, directing the sheriff of Jefferson county forthwith to put the receiver in possession of said property.
    
      The original bill was filed in the superior court of chancery, on the 19th day of November, 1842. Its object is in brief, as stated in the petition of Wade, above set out. The property in the hands of Wade, as executor of Ross, consisted of two large plantations and negroes, and other personal property. The inventory of the personal estate of Ross Was upwards of one hundred thousand dollars in value.
    It is not deemed necessary, at this stage of the case, to set out at greater length the allegations in the pleadings.
    On the 22d of May, 1843, Wade and two other defendants demurred to the bill, for reasons assigned ; on the 5th day of June, 1844, this demurrer was disallowed. The other defendants answered the bill.
    On the 30th of November, 1842, notice was served on the defendants, for the appointment of a receiver ; on the 13th of June, 1844, the motion for the appointment of a receiver was heard and allowed, and the Chancellor appointed John F! Chambliss receiver, to take charge of the property, upon his entering into bond, payable to the Chancellor, in the penalty of one hundred thousand dollars.
    On the 17th day of June, 1844, Wade, feeling himself aggrieved by the order appointing a receiver, and the disallowance of his demurrer by the Chancellor, prayed an appeal from both orders, which was granted him, “ upon his entering into bond in the penalty of two hundred dollars, conditioned according to law, with security, to be approved by the Chancellor, within --days.”
    The appeal bond contained in the record does not appear to have been approved of by, or submitted to the Chancellor. It is in the ordinary form, and is signed by “ Isaac R. Wade,” for himself, and as attorney in fact for “Walter Wade,” and “ J. S. Marye.”
    Upon this state of the case, the appellant, Wade, made the following motion, viz.:
    “ For a supersedeas to restrain the execution of the order of the Chancellor, for the appointment of a receiver, until the determination of this appeal, on petition filed.”
    
      The appellees made the following motion, viz:
    “ To dismiss the appeal, for the following reasons:
    “ 1. That an appeal will not lie from the interlocutory order appealed from.
    “ 2. That the order granting an appeal does not show that the Chancellor considered such appeal proper, in order to settle the principles of the cause, or to avoid expense and delay.
    
      “ 3. That the appeal was improperly granted.”
    Both motions were submitted together.
    
      H. T. Ellett, for appellant.
    By the English practice, on appeals from chancery to the house of lords, the appeal operated to supersede all proceeding in the court of chancery, pending the appeal. But in 1772, .Lord Apsley modified the rule so as to suspend proceedings only upon the point made the subject of the appeal. And in 1807 the house of lords, by a general order, directed that appeals should only operate to suspend proceedings, when so specially ordered, either by the chancellor, or the appellate court. 15 Yesey,' Jr. 184; 9 Cow. 528; 3 Paige C. R. 384.
    In New York the rule is, that an appeal does operate .as a stay of proceedings in the first instance, but that the respondent may apply to the chancellor, and, on a showing of very special circumstances, may obtain leave to proceed to the execution of the decree. 3 Johns. C. R. 66, 120, 160; 9 Cow. 529; Hent v. Mayor, fyc. of Albany, 3 Paige, 384.
    But he cannot do this, if the court of errors is actually in session, and in possession of the cause. Green v. Winter, 1 Johns. C. R. 77.
    The cases all go, mainly, on the ground that the appellant gives no bond, and that the respondent has no security. See the above cases, and particularly 3 Johns. C. R. 66.
    The rule, even as modified in New York, is inconsistent with that which prevails in analogous cases. Thus, a writ of error at common law, after bail is put in, operates as a supersedeas. 2 Tidd’s Pr. 1070, et seq. And on the same footing stood appeals from chancery, before the order of the house of lords, in 1807. Per Wood, Baron, 5 Price, 468, cited 9 Cow. 529.
    In admiralty cases, an appeal suspends entirely the effect of the decree appealed from. 3 Dali. 87, 118, (1 Cond. R. 21) ; 5 Cranch, (2 Cond. R. 2.)
    An appeal from the decree of a surrogate suspends all proceedings under it. 4 Paige C. R. 279.
    In Virginia and Kentucky the appeal operates as a supersedeas. 4 Bibb, 221; 5 Rand. 332.
    If the New York rule is the one which is to prevail in this state, then it is necessary that the complainant below, in this case, should have applied to the Chancellor, and, upon a showing of some urgent necessity-, should have obtained leave to proceed to the execution of his decree.
    But instead of this, the complainant, without any leave of the court, so far as the record shows, (and we cannot look beyond the record,) proceeds to put the appellant in contempt, and then applies to the Chancellor to punish him for that contempt, and to issue compulsory process, founded on the alleged disobedience of the party to the decree, to compel its execution. We insist that, according to the New York rule of practice, the appellant could not be in contempt, nor could any compulsory process issue, founded on such contempt, until the party had first applied to the Chancellor, and obtained leave to proceed. The appeal protected him until such an order was made, and the Chancellor cannot, by ordering an attachment, or other compulsory process, give such order a retrospective operation, so as to bring the party into a constructive contempt. The supersedeas ought, therefore, to be granted to restrain the execution of this decree, at least until the Chancellor, on application for that purpose, shall give the party leave to proceed.
    But we do not rest this motion on these grounds. We contend that by our statutes, the appeal does operate, “ ipso facto, et ex débito justifico,” as a supersedeas, and that the Chancellor cannot grant the party leave to proceed in his cause in the face of an appeal. How. & Hutch. 513, sec. 34, 35, 36, 37.
    The 34th sec. which provides for appeals granted in court at the time of the decision, does not speak of a supersedeas, but the other sections, which provide for appeals granted out of court, and where the record of the chancery court does not show the fact, authorize the clerk of the high court to issue a supe?-sedeas, if necessary.
    The 37th sec. places appeals from interlocutory decrees on the same footing with appeals from final decrees, and all appeals, we think, have the same effect as a writ of error at law. No security was given in this case, because the appellant is sued as executor, and is not bound to give bond. 1 S. &M. 590.
    As'to the objection that the appeal does not lie from an interlocutory order, appointing a receiver, we answer, that the Chancellor overruled our demurrer before he appointed the receiver, and we appealed from the judgment overruling the detaurrer, which appeal- suspended the appointment of the receiver. See Acts of 1844, p. 123, sec. 3.
    
      George /S'. Yerger, on the same side.
    In this case a demurrer was filed to the bill, and a motion was made for the appointment of a receiver. The defendant appealed to this court, which was granted. Whilst the case is pending in this court, the order below, appointing a receiver, is attempted to be enforced ; and the present application is made for a supersedeas.
    
    1. We say, the appeal suspended all proceedings in the court below; and if the security ordered by the Chancellor is insufficient, the proper course would be to move this court for additional security, upon showing there was danger, &c.
    The case is entirely governed by our own statutes. Independent of our statutory provisions, the rule will be found in the following cases: Green v. Winter, 1 Johns. Ch. R. 77; 3 lb. 66, 123, 160. In England and New York security was not required.
    Our statutes seem to contemplate the appeal, when granted in court, as a suspension or supersedeas to the order; (see 34th, 35th, 36th, and 37th secs, of How. & Hutch. 513,) and require security.
    
      Ia Virginia and Kentucky, where appeals are allowed by statute, and security as here, the appeal itself suspends all future proceedings. Turner v. Scott, 5 Rand. 332; Yocum v. Moor.e, 4 Bibb, 221.
    2. But suppose we are in error on this subject. The cause is in this court by regular appeal; and if the appeal is not a supersedeas, we now ask this court to award one, upon such terms as they think right.
    The cause is an important one. It involves important questions. 1st. Whether the will of Mr. Ross, directing the executor to carry his negroes to Liberia, is a compulsory trust, or a directory one-.
    2d. If they refuse to perform the trust, can it be enforced by the American Colonization Society, who were not incorporated at the decease of the testator.
    3d. This involves another question, whether the statute of 43 Eliz. in regard to charitable bequests, is in force in this state; and
    4th. If it is, whether this is such a charity as is embraced by it.
    5th. Many trusts are merely voluntary or directory, and if not voluntary, performance cannot be enforced.
    6th. Again. The act of the legislature, limiting the time when the executors must carry into effect these trusts, is directly brought before the court.
    This case is wholly different from the case of Ross v. Wade, decided by this court in 5 Howard. That was a bill, by the heirs and distributees, to declare the trust void, and enjoin the executors from executing or carrying it into effect.
    The executors have not carried, or attempted to carry it into effect, and the American Colonization Society is by this bill attempting to force them.
    Until this suit is determined the negroes must remain in the country. There is no allegation in the bill, nor is it pretended the executors will remove them. The allegations are, that they are working them.
    If they are put into the hands of a receiver they must be worked, or they will become a nuisance to the community.
    The practice in this state, upon our statute and its construction, has been, that the appeal suspends.
    Cases in New.York are founded on the fact, that no security ean be required there as in writs of error.
    Executors are not required to give security upon appeals, but if there is danger I have no doubt the court could order it.
    The difference of our practice and that in England, is, that there an order for a supersedeas is necessary, here the appeal operates as a supersedeas.
    
    
      Quitman and McMurran, for appellees.
    It is contended on the part of appellees, that the appeal does not of itself operate, according to the practice of the court of chancery here, or in England. Green and others v. Winter, 1 Johns. Ch. R. 77.
    The rule in New York is, that the appeal will operate as a supersedeas or not, in the discretion of the chancellor, and the chancellor may authorize the order to be executed, notwithstanding the appeal. This has been done in this case. The petition of Wade, filed in this court for the first motion, shows that the chancery court has granted a peremptory order to the sheriff to put the receiver in possession. 3 Johns. Gh. R. 65-67; lb. 120-123.
    As to the provisions of the statute upon this subject; an appeal and its effect under the statute. (How. & Hutch. Dig. 513, 514, sec. 37, &c.)
    Appeals from the interlocutory order of the chancery, in two cases. 1st. Where money is directed to be paid^over, or changing the possession of property. The interlocutoryhn this case does neither. According to the decisions, the placing property in the hands of a receiver of the court, does not change the possession of the property. It is merely placing it in the hands of the court, to abide the decision of the court. The same as directing the party to bring the money into court. It does not change either the possession or right to it, in contemplation of law.
    As to the provision of the law, that the Chancellor may grant an appeal to settle the principles of the case, it does not appear either by the order granting the appeal, or in the case itself, that this order was granted upon such grounds.
    We insist, that upon a true construction of the statute upon this subject, the supersedeas is a distinct, separate matter from the appeal, and requires the action of the judge or court, that the appeal shall operate as a supersedeas, before it can have that effect. The distinction too is a sound one, under the statute, between the effect of an appeal from a final decree and an appeal from an interlocutory order. The terms and effect of the appeal in the latter case depending entirely upon the discretion of the chancellor, judge or court granting the order of appeal.
    Again. We contend that this court will not grant a supersedeas, when appellant’s petition shows that the Chancellor has granted an order to execute the interlocutory order, as already stated. And no appeal has been taken from this last order of the chancery court, which, surely, cannot be treated by this court as a nullity.
    The cases cited by the opposite counsel, from Kentucky and Virginia, were in cases in which final decrees had been rendered. They are different from the English and NewYork decisions, and may depend upon something peculiar in the provisions of the laws of those states, and if not, they will not be recognized as law here, in opposition to those cited from New York, &c.
    But the strongest attitude to place the case in for the appellant, on his motion is, that the granting or refusing of the supersedeas by this court, rests upon its sound discretion, and in the exercise of that discretion, this court, if it grant the writ; will look into the case as it appears of record, and require or exact such terms and security as the court shall deem necessary to protect the property and assets involved in this controversy, to be subject to the final decision of the case. It will be seen that the bond in the penal sum of two hundred dollars, is no security whatever for the forthcoming of the property, to abide the’final decree.
   Mr. Justice Clayton

delivered the opinion of the court.

In this cause there is a motion on the part of the appellees to dismiss the appeal, because improvidently granted. On the part of the appellants there is a motion for a supersedeas, to suspend proceedings in the chancery court upon its interlocutory order, until the decision in this court. ' We shall consider of both.

The appeal is taken from an order of the Chancellor, appointing-a receiver in the cause, to take charge of the large estate in controversy. The penalty of the bond is two hundred dollars. It is quite manifest that this bond was wholly insufficient as an indemnity to the appellees, because it bears no proportion to the amount of property in controversy. The receiver was required to give a bond in the penalty of one hundred thousand dollars, which was executed by him with several sureties. The bond of the appellant is barely sufficient to secure the costs. The appellant is charged in the bill with insolvency. He is made a defendant in the character of trustee as well as of executor. Much of his dealing, in reference to the property, which is the subject of the suit, is in the former character, and his liability in regard to it is personal. An executor is entitled to an appeal without surety, where the judgment or decree is to affect only the assets of the decedents in his hands; because the appeal bond would bind him personally, and tend to render him liable beyond the assets. But when an executor is in a situation in which a personal judgment or decree can be rendered against him, and in which he may be responsible out of his own funds, then there is no more reason to allow him an appeal without surety, than to allow it to any other person. Dunton v. Robins, 2 Mun. 341; 6 Leigh, 299. The language of the statute, in regard to appeals from interlocutory orders and decrees, is so comprehensive, that we think it will embrace an appeal from an order appointing a receiver. H. & H. 513. It is word for word the same with an act passed in Yirginia in 1816. The facility given to appeals was thereby so much increased, and the docket of the court of appeals in that state so much clogged by its operation, that the right was put under some restrictions in 1828. See 2 Rob. Pr. 423; Lomax v. Picot, 2 Ran. 250. It is evident that the Chancellor, in granting this appeal, did not intend that it should have the effect to suspend his decree, because he has issued an attachment against the party, for a failure to surrender the property to the receiver. If that effect is attached to it, the order is virtually eluded and set at naught, for the party is alleged to be insolvent, and has given no security as executor. Whether the appeal does operate a suspension of the decree, depends on a fair construction of the act on the subject. The most material part of the act is in these words : “ Before granting any appeal, the party shall enter into bond with sufficient security, to be approved by the Chancellor, in a reasonable penalty, with condition to pay, satisfy, and perform, the decree or final order of the superior court of chancery, and all costs, in case the same be affirmed.” If this requisition be complied with, our opinion is, that the appeal by its own forcé does suspend the decree. But without such bond, it would not be proper to allow it so to operate, except in those cases in which the law itself virtually provides, that no security shall be required, as in the case of executors, where the decree is against assets in their hands. The subsequent proceedings in the chancery court, and the inconsiderable amount of the bond, show that the Chancellor did not intend that the appeal should obstruct the enforcement of his order. For us to give it that effect under the circumstances, would defeat the purposes of the law. It does not appear, from the record, that the appeal bond was ever approved by the Chancellor, an important matter in perfecting an appeal. The decree should not be suspended, except upon compliance with the terms prescribed by the statute. We shall therefore, in this instance, not interfere with the proceedings of the Chancellor, in the present posture of the cause.

It would be, in our view, an anomalous proceeding to allow, at this time, a supersedeas to issue from this court. We have very great doubt of its regularity or propriety, when the party had an opportunity to comply fully with the law in regard to appeals, and failed to do so. We shall entertain the appeal, but shall not suspend the proceedings in the chancery court; but leave that matter as the Chancellor placed it.  