
    John B. Conger, et al. vs. Joseph H. Robinson, Administrator of R. W. Simington, deceased.
    In judicial sales of personal property, as in all other sales of such property, the right passes by delivery, and the purchase and ownership under it may be established by parol proof. The want of a perfect bill of sale, will not therefore of itself afford sufficient ground to suspend the execution which issued on the sale bond, or to rescind the sale.
    The mortgage, decree, and report made by the commissioner appointed to sell property under a decree foreclosing a mortgage, are to be taken together as parts of an entire thing; if therefore the property be described in the mortgage, and the decree follows the mortgage, and the report certifies that the decree was executed by a s^ile of the property therein described, the report is sufficiently certain to identify the property, although no description of it is given in the report.
    The omission by a commissioner appointed to sell property under a decree of foreclosure of a mortgage, to state in his report the name of the purchaser, and the amount of sale, renders the report defective, but such defects are not of sufficient consequence to justify a suspension of an execution on the sale bond.
    Before confirmation it is competent for the purchaser, at a sale by a commissioner in chancery, to move to reject the report, and an application for a supersedeas to the execution which issued on the sale bond, will be regarded as equivalent to such a motion, and the decision of the Chancellor dismissing the supersedeas, must in effect amount to a confirmation of the report.
    If the purchaser of slaves at a sale by a commissioner in chancery, holds the same slaves decreed to be sold,'it is immaterial what name may be given them in the bill of sale.
    C. C. & S. filed a petition in the superior court of chancery, averring that at a sale made by a commissioner under a decree of foreclosure of a mortgage on a credit of six months, C. became the purchaser of seventeen slaves, and gave bond with C. and S. as sureties for the payment of the purchase money; that relying on the integrity of the commissioners he did not examine the bill of sale for the slaves until some time after he executed the bond, and when he did examine it, he found thirteen slaves only, instead of seventeen, named therein‘T that the four slaves not named in the bill of sale were valued at $ 3,200; that some of those named in the bill of sale are not nalmed in the decree; and that the commissioner’s report neither contained a description of the property sold* nor the name of the purchaser, and had not been confirmed; that the purchase money had not been paid, and (an execution had been issued on the sale bond by the clerk of the chancery court, &c., and prayed for a supersedeas^ which was granted. The Chancellor, on motion, discharged the supersedeas. Heldj that the decree of the Chancellor discharging the supersedeas, should be affirmed.
    
      An. execution was issued on a sale bond against C. C. & S. who, on petition, obtained a supersedeas which was afterwards on motion discharged by the Chancellor, and they appealed to this court: Held,, that on affirmance of the Chancellor’s decree, judgment should be entered in this court against the principals and surety in the appeal bond for the debt superseded, with damages, interest and costs.
    An appeal bond, the obligatory portion of which is in the usual form, with a condition in these words : Now if the said John B. Conger, in case he shall fail to prosecute said appeal with effect, shall within thirty days thereafter well and truly perform the decree of the said superior court of chancery, and also abide by the decision of the said high court of errors and appeals in the premises, then this obligation shall be void, otherwise to remain in full force and virtue,” though not in literal, is in substantial conformity to the statute, and is a good and valid bond.
    John B. Conger, Isaac W. Conger, and George W. Summers, filed in the superior court of chancery, a petition setting forth that at the December term, 1838, of that court, Joseph H. Robinson, as administrator of the estate of R. W. Simington, deceased, obtained a decree for the foreclosure of a mortgage in a suit in which one William G. Hann was defendant, whereby thirty-five slaves, naming them, were directed to be sold by the sheriff of the counties in which the slaves might be found; that a copy of said decree was placed in the hands of S. M. Flournoy, sheriff of the county of Madison, who on the 29th day of April, 1839, sold, on a credit of six months, as directed in the decree, seventeen of the slaves named in the said decree, to the said John B. Conger, at the aggregate price of $ 12,135, and took from said Conger a bond for the payment of said sum, due six months after date, with Isaac W. Conger and George W. Summers as sureties. That said Flournoy, when he received said bond, gave said John B. Conger a writing purporting to be a bill of sale of the seventeen slaves purchased by him, which he, said Conger received in full confidence that it was a full and complete bill of sale, as directed by the decree, of the seventeen slaves purchased by him. That some time afterwards said John B. Conger to his surprise, discovered that said paper, purporting to be a bill of sale of said slaves, conveys to him but thirteen slaves in all, and several of the slaves mentioned in the bill of sale are not included in the decree, or are therein described by other and different names which cannot sufficiently identify them, and he is consequently without any bill of sale to four of the slaves purchased by him, which four were valued at three thousand two hundred dollars, while his title to others, not included in the decree, or described therein by different names, valued at about six thousand dollars, is left uncertain and doubtful. The petition avers that said sheriff has made no return of said sale, that the petitioners could ascertain or discover, or any report of his proceedings under said decree, except his return thereon, which is in the following, words, namely: “ Executed the foregoing decree by exposing to public sale the negroes therein named as being in Madison county, and taking from the purchaser bond with security as reqydred by the provisions of said decree. April 29, 1839. S. M. Flournoy, Sheriff.”
    That the petitioners are informed and believe that no action of the court has been had on said return, and the same remains still unconfirmed and pending before the court. Notwithstanding the premises said Robinson has caused a writ of fieri facias to be issued on said bond for the full amount thereof, and placed in the hands of the sheriff of Claiborne county, who threatens to enforce the same. The petitioners aver a willingness to pay the whole of said bond upon the perfection of the title to all the slaves purchased by John B. Conger, and pray for a decree directing said sheriff or a commissioner to be appointed by the court to make full and perfect titles to John B. Conger to ail the slaves purchased by him. They also pray for a supersedeas to said writ of fieri facias, and that all further proceedings on said bond be enjoined and restrained until the titles to said slaves be perfected, and in the event that they cannot be perfected then that said sale be rescinded.
    The bill of sale and bond are both made exhibits in the petition. The former is in the following words, to wit:
    “ Canton, 29th April, 1839.
    “ Pursuant to a decree of the chancery court of the state of Mississippi, dated 24th January, 1839, I, Samuel M. Flournoy, sheriff of Madison county, state aforesaid, have this day bargained and sold, and this day delivered to John B, Conger, the following negro slaves, to wit : Elias, George Sanford, Bill Guy, Frances Cooper, Merrett, Bob Chism, George Houghton', Eliza Brooks and child, Lucy Ann, George Elliott, Roy, and Francis Powell, to have and to hold the same, for and in consideration of the sum of $12,135 ; to him, the said John B. Conger, his heirs and assigns, forever. Given under my hand and seal, this 29th April, 1839.
    
      “ The above negroes were sold under the decree of the chancery court, in the case of Joseph H. Robinson v. William G. Hann, of Madison county, state aforesaid.
    “ S. M. Flournoy, Sheriff, fyc.
    
    
      “ Commissioner under said decree.”
    
    The said bond is in the following words, to wit:
    “$12,135. Canton, 29th April, 1839.
    “ Six months after the 29th day of April, A. D. 1839, we, or either of us, promise to pay Joseph H. Robinson, administrator of Ro. W. Simington, $12,135, for value received. Witness our hands and seals.
    “ John B. Conger. (Seal.)
    “ Isaac W. Congee. (Seal.)
    “ G. W. Summers.” (Seal.)
    On which is the following indorsement, to wit :
    “ In pursuance of the act of the legislature, I have this day issued an execution on the within bond, to Claiborne county, for $12,135, and $2 75 costs. January 25th, 1840.”
    “ R. L. Dixon, Clerk, Sup. Ct. Chan.”
    
    On this petition a supersedeas was granted, which was after-wards, on motion, discharged by decree of the Chancellor; from which decree said petitioners appealed to this court.
    
      Quitman and McMurran, for appellants.
    We contend, 1. That upon a foreclosure and sale, under a mortgage, the purchaser at such sale will not be compelled to pay the purchase money, until a complete title, that is, all the title which the mortgagor possessed, shall have been fully conveyed to the purchaser. See cases referred to below.
    2. That the proceedings of the court are all in fieri, and the sale not complete or perfected, until the report of the sale is acted on and confirmed by the court.
    3. That a full and detailed report of the proceedings of the commissioners is indispensable, in such cases, to authorize an execution to issue, upon the bond given for the purchase-money.
    4. That no execution can properly issue, until the report, or proceedings of the Commissioners are confirmed.
    5. That to authorize an execution to issue upon a bond, taken for the purchase money, the' bond must recite the essential prerequisites, to authorize such summary execution; or it must, by a report, be connected with the proceedings in the cause, and exhibit clearly its character.
    6. That although a title to slaves may be acquired, by mere salé and delivery, without a formal bill of sale, yet that under this decree, which expressly requires the commissioner to execute bills of sale to the purchaser, no title would pass without a bill of sale, executed according to the decree.
    7. That the court will protect a purchaser from an execution, or attachment, for the purchase money, where its own officer abuses the authority of the court, by seizing and selling property not included in the decree.
    8. That until the confirmation of the proceedings and sale by the commissioner, Conger, the purchaser, had a right to be heard against the confirmation of the report, and to have proceedings against him, for the. purchase money, suspended, until the sale was confirmed. 2 Robinson’s Chatr. Prac. 387. 4 Leigh, 373. 2 McCotd’s Chan. R. 152, 162, 165. 1 & 2 Smith’s Chan. Prac. 188. Ex parte Minor, 11 Yes. 559. Maclcrel v. Hunt, 2 Madd. 34. 1 Paige’s R. 120. Anon. 2 Yes. 335, cited 2 Sm. Pr. 201. 1 Sug. Y. & P. 60. 2 Hoffman’s Prac. 145. Sug. on Yend. 50, 51, Veeder v. Fonda, 3 Paige, 97.
    
      
      Montgomery and Boyd, for appellees.
    This is a novel proceeding, for which no precedent can be found. In every other state and nation, where the chancery system is known, sales under decrees are made for cash, and possession of the property sold is never given, until payment is made. As a general rule, the purchaser is not bound to complete the purchase, until a good title can be made, unless the defects of title are made known at the time of the sale; and when a good title can be made, the court will enforce the purchaser to complete the purchase.
    From the bill, or petition, it would appear inferentially, though not directly admitted, that the slaves which were bought by petitioner were delivered at the sale, and bond given for the purchase money. And no adverse claim to the slaves has been made known, or any agreement that any such adverse title exists ; but the petitioner is still in the undisturbed possession of all the slaves which were sold and delivered to him. The only complaint he makes is, that the commissioner has not given him a bill of sale of all the slaves he purchased, and that some of the names contained in the bill of sale are not contained in the decree. Now as to the bill of sale, that is a matter of no consequence, as the title is complete by sale and delivery; and the defect can always be cured by the court, and does not constitute any ground for the refusal to pay the purchase money. And the defect is as much, or more, attributable to the carelessness and negligence of the petitioner, as to any one else engaged in the transaction. It is plain the commissioner intended to give a bill of sale of the slaves which he sold, and the purchaser should have taken care that they were properly described in the bill of sale, so as to be identified if he desired it; which was easily done when the negroes were all present, and neighbors present, who knew their names.
    It has been decided in New York, that a purchase at a master’s sale would not be relieved op any other grounds than such as would relieve him from the performance of an ordinary contract. 'If the sale was conducted with fairness, no fraud or concealment, and the purchaser could get what he had bought, he should be compelled to complete the purchase. 2 Paige’s R. 64.
    There is no complaint that the petitioner did not obtain what he purchased, but an expression of an indefinite dread that he may not have obtained a good title to the slaves, in consequence of a difference of names. The name of a slave is often a material, and sometimes the only description, which is given ; but this is no evidence that the slaves purchased by the petitioner are not the same mentioned in the decree. If they are not, the defendant in the suit, who surrendered them to the commissioner as such, is estopped from denying that they are the same ; and they may be identified by other evidence than the decree and bill of sale. Negroes sometimes change their names, sometimes their masters do it for them ; and the mere circumstance that the negroes differ in names, is not alone a sufficient averment that they are not the same. There should have been an averment that the slaves were not the same decreed to be sold ; and an allegation of an outstanding title, with an offer to return the slaves. 4 Paige, 441.
    But we are at a loss to conceive on what principle a purchaser can come into equi ty to rescind a salé, who has never been threatened with legal disturbance, nay, has never had notice of an adverse claim.
    The neglect of the commissioner to make a sufficient report, does not affect' the rights of the parties. The purchaser had a right to move for a rule on him to make a full and proper report, and could have obtained a complete report, and had it confirmed. Having neglected this, he has no right to complain that it has not been done. 5 Paige, 48.
    The Chancellor’s opinion shows sufficient other reasons for dismissing the supersedeas, to which we refer this honorable court. Freeman’s R. 265.
    
      Hughes, in reply.
    It is insisted, upon the part of the appellants, that the supersedeas should not have been discharged.
    
      1. There was no report made by the sheriff of his proceeding to sale, under the decree, sufficiently certain in its character, to make the bill single sued, a record under the statute, upon which, when due, an execution might issue. He says only in his return, that he had sold the negroes in Madison, mentioned in the decree, for twelve thousand one hundred and thirty-five dollars, and had taken bond with security; he does not say who was the purchaser, or who-was the security; nor does he say that he returns the bond taken with his report, nor is there any kind of reference, in his report, which will reduce it to a certainty that the bond on which the execution was issued, is the bond taken upon the sale of the negroes.
    The execution which was issued on the note was issued by the clerk, without the interposition of the court, and was intended, no doubt, to be in conformity to the act of 1838. See Laws of Mississippi, ed. 1838, p. 865, which directs that in future, sales in chancery, made by a commissioner under decrees, shall be on a credit of not less than six months; that the purchaser give bond with security; that the bond be returned to the clerk’s office, and there filed away by the clerk; that if not paid it shall have the force and effect of a judgment; the clerk shall note the non-payment, and upon request of the obligee, issue execution thereon, &c. - It cannot be that the bare fact, that a bond found in the chancery office, filed away by the clerk, will give him authority to issue execution upon such bond; the officer or commissioner taking it must do some act in writing, to be filed in the office, and treated as a record, from which it may appear that the bond returned is taken on a sale of property, in pursuance of the decree of the court. It is admitted that it is the bond which is to have the force and effect of a judgment; yet we suppose it will hardly be insisted that a bond signed by principal and surety, and found filed in the office of -the superior court of chancery, without something else with which it could be connected, could be supported as a bond having the force and effect of a judgment, and upon which the execution might issue. It .must in the office be connected with the record, in order to' be a statutory bond, haying the force and effect of a judgment. There must be a decree ordering a sale by a commissioner, then a copy of the decree placed in the hands of the commissioner, a sale made by him, and a return stating a sale, to whom sold, and that bond was taken from the purchaser, with A and B surety. If this is not done, on what is the statutory judgment founded ? In case of a forthcoming bond, there mus.t be an execution levied on personal property, the bond forfeited, and so returned by the sheriff; the deposit of the bond in the office, without a return of a levy and the taking the bond, would not do.
    2. But again. The statute requires a bond to be given, which if unpaid is to have the force and effect of a judgment. Now if we are wrong in our first position, that the bond must be connected with other parts of the record, then we insist that the bond must be complete in itself, and- show a compliance with the provisions of the statute, so as to make a statutory judgment and bond. The thing which is called and treated, as a bond'in this case, is a mere bill single, or promissory note, under seal, in the usual form. That it might be known for what purpose it was given, we ask, was it not necessary that it contain a recital of the decree, the sale, the purchase, the price of the purchase, the delivery of the negroes sold and purchased, and that the money was to be paid in six months? And should it not have been a penal bond in the usual form, to be void an condition that the money was paid ? In this form the bond would then have all the requisites of certainty, and could be safely treated as a judgment upon which execution might issue.
    3. The record shows that the report made by the commissioner, such as it was, never was confirmed, and we insist, until this was done, no execution could issue upon the bond.
    The rule of .practice in the chancery court is, that no order can be made, upon the report of a master or commissioner in chancery, until its confirmation, in all those cases, where the report involves a question of law, or a question of fact, upon which the court may be called upon to give a legal decision ; and this class of cases includes a report .allowing the highest bidder at a sale under a decree. And in addition to this broad rule it is laid down, that whenever exceptions will lie to a report, it must be confirmed before any order can be made upon it. See 2 Smith's Chancery Prac. 357, 358; Scot¿ v. Levesey, 1 Cond. Eng. Ch. R. 467.
    Now will it be denied, that the report under consideration is within some of these rules? It was such a report, upon which the legal opinion of the Chancellor might be asked, and to which exceptions might be taken. The authority referred to above is not, that the report be one which will, necessarily call for the legal opinion of the court, but which may call for such opinion. Now was the report under consideration within this rule ? The proceedings which are now being reviewed we think is a sufficient answer to any objection. But there are other answers. Suppose the commissioner who made the sale had reported that ^he had sold to A, and taken bond with B and C, as security, according to the directions of the decree, had made a bill of sale to the purchaser, and returned the bond with his report, and it could be shown by the complainant, that when the bond was about being executed, the security offered was found to be insolvent, and was objected to, yet the commissioner took such insolvent security and delivered the property ; would the court be necessarily called upon to give its judgment? and would it not set aside the sale ? Again, suppose the commissioner had reported in this case that he had sold and delivered the property to J. B. Conger, and taken his bond with Isaac W. Conger and G. W. Summers, with security, but upon the coming in óf the report, it could be proved that after the giving the bond with surety, and after it was approved, the commissioner had refused to deliver all the property — had delivered half of the negroes, refused to deliver the balance, and retained them for his own use, — will it be contended that Conger might not have brought the question before the court, and either have set aside the sale, or compelled the commissioner to deliver up the negroes? Suppose, as in this case appears to be the fact, that seventeen negroes were sold at the price reported, for which the purchaser, as evidence of his title, was entitled to a bill of sale, but he only obtained bill of sale for thirteen; was the purchaser not entitled to be heard before the purchase money could be forced from him? Or again, suppose, as is the fact, that part of the negroes which were sold were not embraced in the decree; would not the purchaser be entitled to be heard ? In either of these supposed cases, both of which are in part the gravamen of the complaint of Conger, he had a right to be heard. And the report was one in which the legal opinion of the court might have been required; and, consequently, a motion should have been made to confirm; when the parties and the purchaser would have had a day in court, when he could have been heard either by exceptions, or by petition. We therefore think that the chancellor should not have discharged the supersedeas, but should have directed the complainant in the original suit to move to confirm; when the question could have been made properly before the court, and right and justice done between the parties.
   Per Curiam.

Conger filed his petition, in the superior court of chancery, for a supersedeas, to stay proceedings under an execution which had issued from that court against him, as the purchaser of certain property which was sold under a decree, to foreclose a mortgage, which Robinson, as administrator of the mortgagee, had obtained against Hann, the mortgagor. The sale was on a credit of six months, and Conger gave his bond for the purchase money, and on non-payment the execution issued, according to the provisions of the statute. On motion, the supersedeas was dismissed, and Conger appealed.

The first ground taken in the petition, as a reason for the interposition of the Chancellor is, that Conger purchased seventeen slaves, and confiding in the sheriff who sold, he supposed, for some time, that the bill of sale which he received.was for all the slaves purchased ; but he has since discovered that it only embraces fourteen. There is no allegation in the petition that he did not receive the complement purchased;, the complaint is, that he has not received title papers. The Chancellor, in his opinion, has given a very satisfactory answer to this objection. He held that a bill of sale was unnecessary; that in judicial sales of personal property, as in all other sales of such property, the right passed by delivery, and the purchase and ownership under it may be established by parol proof. But, say the counsel, the report is defective, in not showing what property was sold, and has not been confirmed, and the purchaser receives no title until confirmation. The mortgage, the .decree, and the report, are to be taken' together, as parts of an entire thing. The mortgage designates the property conveyed ; the decree follows the mortgage in description; and the report, as the petition represents it, certifies that the decree was executed, by a sale of the property therein described. By the aid of the mortgage and the decree, the report is sufficiently certain as to the identity of the property. It is, perhaps, defective in certainty, in omitting the name of the purchaser, and the amount of sale; but these defects do not seem to us to be of sufficient consequence to justify a suspension of the execution. It is true that the report should have been confirmed ; but for anything that we can know, this may have been done. The record does not profess to set out any of the proceedings in the original suit. Before confirmation it was competent for the purchaser to move to reject the report, and this application may be regarded as equivalent to such amotion; and the decision of the Chancellor, dismissing the supersedeas, must, in effect, amount to a 'confirmation of the report. This point seems to depend very much on a mere matter of practice, which seems to be somewhat unsettled. We cannot reverse the judgment, without a clear showing that it was made in violation of an established practice. In looking at the bill of sale, which is made an exhibit, it is difficult to determine whether it conveys seventeen or thirteen slaves, owing to thfe fact, that some of them seem to have two names, but how many of them were intended to be so designated, we cannot say. This supposed omission may arise from a mistake, in regarding names as double which should be separated.

Another ground on which relief is sought is, that several of the-slaves conveyed by the bill of sale, are not contained in the decree or that they are there described by other and different names. This objection is probably owing to the difference in spelling names, which is an immaterial circumstance. If the petitioner has purchased and holds the same slaves which were decreed to be sold, it is immaterial what name may be given them in the bill of sale, and he does, not aver that he purchased slaves, which were not embraced in the decree. There is no allegation that the petitioner has fewer slaves than he purchased, or that any of them are adversely claimed ; and we have come to the conclusion, that the supersedeas was properly dismissed.

Decree affirmed.

On a subsequent day of the term, the counsel for the appellee entered a motion, in the following words, to wit :

“ The appellee moves the court to correct the judgment heretofore rendered in the above cause, by inserting therein a judgment for $12,135; the amount of the bond stated in the record, with eight per cent, interest thereon, from the 29th day of October, 1839.”

Montgomery and Boyd, in support of the motion.

The first question is, as to what was the decree from which an appeal was taken 1

It appears from the record, that Conger had given bond and surety for the purchase money of certain slaves bought on credit, under a decree of the chancery court, and petitioned for a supersedeas of an execution issued thereon, and for relief against said bond.

The statute of 1838, (see Collection of Statutes, 1834 to 1838, p. 865,) provides that sales under decrees shall be made on a credit; that the purchaser shall give bond, &c., which being unpaid, the clerk should indorse thereon the non-payment; and thereupon such bond should have the force and effect of a judgment ; and the clerk should issue execution, &c.

The provisions of this law differ very little in principle froth those of the forthcoming bond law, which has been frequently sustained by this court. 3 How. R. 1, 34; 1 Ib. 98; 5 Ib. 200, 566.

According to these authorities the bond, when it arrived at maturity, having remained • unpaid, assumed the nature of a regular decree against the obligors to pay the amount thereof to the obligees, on which an execution would issue. The supersedeas then was but ancillary to the main object of the petition ; and when it was quashed or set aside by order of the court the legal effect and meaning of that order was to reinstate the ideal decree against the obligors of the bond, from which decree the parties prayed an appeal. Such must have been the understanding of the Chancellor, or why did he refuse to allow the appeal to operate as a supersedeas until appellants gave bond in double the amount of the quasi decree ? And what was superseded ? Was it the judgment on the borid, or the order of the court, setting aside the supersedeas ?

That the appeal was regular in such case appears to have been -settled in the case Bank of the United States v. Patton, 5 How. R. 233.

The only remaining question is, whether the judgment can be rendered on the appeal bond, which is moved for by the appellees?

The statute regulating judgment on appeal bonds will be found in How. & Hutch. 513, § 34. The condition of the appeal bond required by this act is that the appellant shall pay, satisfy, and perform the decree, &c., and all costs, in case the same be affirmed.

The condition of the bond is, that the said Conger shall well and truly perform the decree of said superior court of chancery, and also abide by the decision of the said high court of errors and appeals.

It is objected that this bond does not conform to the statute because it contains a condition to abide the decision of this court. We do not deny that a bond which contained an onerous condition not required by the statute, would be but a common law bond, and that judgment thereon could not be evidence as on a statutory bond; but when the condition is idle and imposes no duty but such as the party was under without it, it should be treated as surplusage. This condition undertook nothing, nor imposed any duty but such as every citizen is bound to render without stipulation, therefore it does not vitiate the bond.

Our right to a judgment in this.court for the amount of the decree, damages and costs, will be found in the statutes H. & H. 535, § 20. This statute has also received the repeated examinations of this court, and needs no argument. The bond in this case was designed as a supersedeas bond, and is within the precise words of the statute.

Hughes, against the motion, for the surety in the appeal bond:

He insists there can be no judgment against him, upon the affirmance of the order in the court below, discharging the supersedeas, because he has entered into a bond, only with this condition, “ that the appellant, Conger, should perform the order or decree of the court below, and the order or decree of this court.” The appeal was taken under the 34th section of the Chancery Court Law, Revised Code, 93, 94, which requires that the party (praying the appeal) shall enter into bond, with sufficient security, to be approved of 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 shall be affirmed.” As a starting point, it is admitted, that the order or decree of the Chancellor has been affirmed, whatever that «may be, by the condition of the bond given and required by the statute, the security in the bond has engaged shall be performed by the appellant, or the bond is forfeited, and the security is liable to judgment, as upon a statutory bond, or upon it as a common law bond. This final order, or decree of the Chancellor, is not, however, an order or decree upon the appellant to pay money, or to do any act, but is a mere order, that the supersedeas which had previously been obtained be discharged. There is nothing for Conger, the appellant, to perform ; he is to do nothing, but to remain passive. The condition of the bond is not and cannot be broken.

But it may, perhaps, be said, that there are other provisions in the statutes, and the 20th section of the supreme court law-may be referred to. Revised Code, 154. That section provides, that a copy of the bond given be sent up with the record, and then if the decree of the court below be affirmed, “ the supreme court shall enter up judgment or decree against all the obligors in such bond, both principal and security, for the debt, damages, and costs, which may be adjudged to the appellee, or' defendant in error.” This provision contemplates that there should be in the supreme court, on affirmance, a judgment or decree for debt, damages, and coste, upon which a judgment or decree shall be rendered against the obligors in the bond. In this proposition is involved, necessarily, the prerequisite of such a judgment in the court below; for the judgment in the supreme court is to be upon affirmance, and unless there were a judgment for a debt, damages and costs below, it would not be an affirmance, but something more. Now in this case there cannot, upon the affirmance, be a judgment by the court for debt, damages, and costs; because the judgment for debt, damages, and costs below has not been appealed from. That judgment is one in contemplation of law, upon the bond filed in the office, and the decree or order appealed from is only that the supersedeas be discharged, which gives the complainant below, Robinson, the benefit of his execution. The Chancellor did not, and could not, have made any legal order or decree, by which the order discharging the supersedeas could be converted into a decree, for the payment of money. But if it could have so done, it did not, and consequently this court having merely affirmed, could, under the statute last referred to, give no judgment for debt, damages, and costs.

But suppose this court say, that in addition to the order of affirmance, that they will give sanction to the office judgment below, by decreeing that Conger, and his securities in that judgment, shall pay it with costs. Can this decree be the foundation of a summary judgrflent against Conger and his securities, on the appeal bond 1 The answer is, that it cannot; because the security has in no statutory bond, executed in conformity to the law, agreed so to undertake for Conger. It is true that the bond has a condition, that Conger shall perform the order or decree of the high court; but there is no law applying to appeals in chancery which requires such a condition, and such“ a condition being required or inserted, can give no authority to this court to proceed upon it, and enter up a summary judgment against the security. This can only be done upon a bond, taken in pursuance of the requisitions of the law. See Bowie v. Hagan, 5 How. 13. Jones v. Parsons, 2 Yerg. 322. Banks v. Brown, 4 Ib. 200.

It is another question, and beside the one under consideration, whether this bond may' be treated as a common law bond, and sued and recovered on in an action at law, and which it will be time enough to look into when suit is commenced. As it stands, the party appealing was entitled to his appeal, upon his entering into bond, with one condition, to which the court superadded another, not required by law, as a prerequisite to the obtaining the appeal, which was given, and the appeal obtained. And, now we insist, that according to the principles, laid down in the cases referred,to, only such decree can be rendered in' this court against the security as the statutory obligation authorizes, and no greater; and that'the balance of the condition of the bond is either void, or can only be enforced by action at law. ,

But it may be insisted, that a judgment or decree may be rendered against Conger, for costs, on the affirmance in this court, and consequently against the obligors, principal and security, in the appeal bond. Had'the bond been conditioned for the payment of costs, this would have been the result; but such is not the bond. Nothing is said in it about costs, and the cases before referred to show, that the undertaking of the surety cannot be made to go beypnd his contract. And the condition as to performing the decree in this court, will not embrace the costs, being a condition, as before insisted, not binding on the surety, or only to be otherwise enforced.

In conclusion it may be observed, that the question now argued, is upon the law of appeals from the chancery court, and may perhaps be different from what it would be if arising upon the law providing for appeals and writ's of error from the circuit court to the high court of errors and appeals. For on the subject of appeals from the.circuit court, it is required, see circuit court law, sec. 149, Rev. Code, 138, that a bond be given, conditioned, “ To pay the amount of the recovery (in the court below) and all costs and damages awarded, in case the judgment or sentence be affirmed,” and on a writ of error with supersedeas, the bond is to be conditioned for, “ The payment of the judgment or decree, damages, interest and costs,” (in case of affirmance) “ and for the performing of the sentence, judgment or decree, which the supreme court may render therein.” See Rev. Code, sec. 149, p. 139.

And here may be noted the distinction between the two modes of taking cases from the circuit court to the high court, that by appeal and by writ of error. The first seems to contemplate an undertaking by the security upon which upon affirmance, a judgment may be rendered, to pay the amount of the recovery below, and all costs and damages awarded in the high court; while the latter looks also to an allowance, and contemplates the like judgment, but provides for the contingency of a reversal of the judgment, and the proper judgment being rendered by the high court, in which court the condition is, for the performing that judgment, and upon this, judgment in like manner may be rendered by this court against the security. These provisions ho,wever do not apply to appeals from the court of chancery, there being a substantial and distinct provision as to them.

Mr. Justice Clayton

delivered the opinion of the court, on the motion.

Since the decree was .pronounced in this case, some difference has arisen between the counsel as to the judgment to be here entered. The counsel for the appellants contend that no judgment can be rendered upon the appeal bond, except for costs; whilst the appellee insists upon a judgment for the full amount of principal, interest, damages and costs.

After a careful examination of the statutes, we have come to the conclusion that the latter construction is the true one. The matter was discussed in the case of Houston, et al. v. Hayter's administrator, reported upon another point in 6 How. The first entry in that case was a simple judgment of affirmance, with the costs of this court. Upon motion to amend this judgment and argument thereon, the judgment was entered against all the parties to the appeal bond, principals and sureties for principal, interest, damages and costs. That was an appeal in a case in which a supersedeas had been granted to a judgment and execution upon a forthcoming bond; the supersedeas was discharged, and an appeal from the order of discharge. The cases are'in principle parallel.

It is objected that this bond is not in the form prescribed by the statute, and is therefore not good as a statutory bond. The obligatory portion is in the usual form; the condition, though not in literal, is in substantial conformity to the statute. Its words are, “now if the said John B. Conger, in case he shall fail to prosecute said appeal with effect, shall within thirty days thereafter well and truly perform the decree of the said superior court of chancery, and also abide by the decision of the said high court of errors and appeals in the premises, then this obligation shall be void, otherwise to remain in full force and virtue.”

These latter words, it is alleged, are not authorized by the statute. This may be true, yet they would not vitiate the other part of the bond, and may be rejected as surplusage. The judgment must therefore be entered-in this court, for the full amount of debt, damages and costs, against 'all the parties to the bond.  