
    Smith vs. Dorsey.
    Motion for, a rule to show cause why an execution should not issue on a judgment affirmed in this court at June term 1819, on an appeal from Charles county court, from a judgment rendered therein, in an action of debt brought by Smith against Dorsey. After the affirmance of the judgment in this court, Dorsey obtained an injunction to stay proceedings thereon. The injunction was continued by the chancellor until final hearing in May 1824, ■when he decreed, “that unless the complainant shall, on or before the 13th of May next, pay to the defendant the sum of 85867 25, with interest, &c. “the injunction heretofore issued shall be dissolved,” &c. From that decree Dorsey appealed to this court, and entered into the fallowing appeal bond, which was approved by the chancellor. “Know all men,” &c. and after reciting the decree and appeal therefrom, proceeded as follows: “The condition of the obligation is such, that if the said Clement Dorsey shall not well and truly prosecute the said appeal, and also pay and satisfy to the said Charles S. Smith the amount of the debt as stated in the proceedings aforesaid, with interest and costs, in case the said decree shall be affirmed, and also all gosIs and damages that may be awarded by the court of appeals aforesaid, or shall arise by reason of the appeal - aforesaid, then,” &c,
    
      S, obtained & judgment m the county eouri against D, which, was i amoved to and affirmed in the court of appeals, 2) after-wards obtained an injunction to stay proceedings thereon, which was continued until final hearing, when, the chancellor “decreed, that unless I> should on or before, &c. pay to S a certain sum of money, v\ ith interest, &<s the injunction should be dissolved D appealed from that deet ee, and entered into an appeal bond, which was not, in point of form, agreeabiy ta the act of 1713, cha 4, but wa> approved. by the chancellor. On motion of S for a, rule on I), to show cause wh) an execution should not issue on the judg* ment of affirmance, notwithstanding the appeal from the decree of the chan? eeiior»and the approval of the appeal boiid — &n,ie refused.
    
      The motion was argued, (after no.» ¿ice, &c.) before Buchanan, Ch. J. Earle, Martin, and, Archer, J.
    
      Kshion Sr JR. Johnson, in support of the rule,
    contended, That the court of chancery had no right to take a bond which could operate as a supersedeas to stay execution. 2. That the bond which had been taken was informal. 3.. That if the bond operated to stay execution, it «ras only on the decree of the chancellor, and this was a decree upon which no execution could issue; but that it did not operate to stay execution op the judgment at law. They insisted, on the first point, that no bond could be. given, unless it was demanded by statute. That the acts of July 1721, ch. 14, s. 4; July 1729, ch. 3, s. 3; 1785, ch. 72, s. 27; provide for appeals from the court of chancery, but there is no mention made in them as to the bond to be given. It is.admitted, that an appeal in England operates asa supersedeas without a bond being given; and there is no objection to its doing so here on the decree of the court of chancery, but it cannot have the effect to stay execution on the judgment at law. The act of 1713, ch. 4, is applicable only to judgments at law, and the bond in-this case can» not be brought within its provisions. On the second point. The bond is not in form, if the court of chancery had a right to take one. Unless the bond is in the form prescribed by law, execution may issue. Johnson vs. Goldsborough, 1 Harr. & Johns. 499, The bond is defective In various particulars — it is made payable to Smithy omitting his executors, &c. The act of assembly is not referred to in the bond, but is wholly omitted The word effect is also omitted. It is a material word, as the words to prosecute the appeal iyilh effect, were held in Karthaus vs. Owings, (ante 134,) to mean to prosecute the. appeal to a successful termination. The act of 1713, ch. 4, prescribes a formula which mu,st be substan.tia.Jly if not. strictly pursued — and so decided as to femes covert in Hawkins et al. Lessee vs. Burress et al. 1 Harr. & Johns. 513, where the word ill-usage was omitted; also in Lewis’s Lessee vs. Waters, 3 Harr. & M‘Hen. 430, where the word was treats instead of threats’, also in Smoot’s Adm’r. vs. Bunbury’s Ex’r. 1 Harr. & Johns. 136, where the words or any security were omitted in the probat to an account; so also in Shivers vs. Wilson, 5 Harr. & Johns. 130, where the form, of the oath was not pursued. On the third point. The bond, if correctly taken, does not operate to stay execution on the judgment at law. The decree is one on which no execution can issue, and the bond, if to stay execution, must be on the decree upon which it operates, and not the judgment at law, with which it hás nothing to do. The injunction being dissolved, ther¿ is nothing to stay execution on the judgment at law.
    
      Magruder and Taney, against the rule.
    The right to issue execution on the judgment at law, is derived from the decree of the chancellor dissolving the injunction. That decree is siispended by the appeal, and bond being approved, all proceedings under the decreé are suspended until a hearing in this court. What will be the decree in this court if the decree of the chancellor is reversed? Not that tlie injunction be revived, but that it be perpetual. The practice lias universally been, that á bond in a case like thé present, stays execution on the judgment at law. The party appeals as well from that part of the decree dissolving the injunction, as the part decreeing the sum of money that is due. In England no bond is required on appeals from chancery; but the appeal itself stays execution of the decree; and as the appeal itselF, independent of a bond, is a supersedeas, the party, to entitle himself to an execution, must show that theré is some law requiring á bond tó be given. This is not a case where any bond was required to be given; but if a bond is necessary, and the one given is defective, this court would do what the chancellor would do — -call on the defendant to give a correct one by a particular time. Why should a bond be given? One has already been given on obtaining the injunction, and none other is required. If the decree had given costs, then, to stay execution on the decree, a bond would be necessary. There are many cases where the party might appeal from a decree where no bond can at all be necessary. The question on the appeal in this case will be, whether or not the injunction ought to have been continued; and until decided on by this court the injunction must continue. The bond being approved by the chancellor, shows that it is the form usually given on appeals from decrees in chancery. If the form prescribed by the act of IflS has not been literally complied with, it ha? been subfetantially so: It covers every possible loss which Smith Cari sustain.
   ttULE REFUSED.  