Under the Judiciary Act of 1780, ch. 20, s. 22, the security to
be taken from the plaintiff in error by the judge signing a
citation on a writ of error must be sufficient to secure the whole
amount of the judgment, and is not to be confined to such damages
as the appellate court may adjudge for the delay.
MR. JUSTICE STORY delivered the opinion of the Court.
A motion has been made to dismiss this and several other suits
unless the plaintiff in error shall give new bonds for the
prosecution of the writ within a limited period, to be fixed by the
court, upon the ground that the writs of error have been allowed by
the judges of the Circuit Court for the District of Columbia upon
bonds being given in small sums to respond the damages and costs,
the debts secured by the judgments being very much larger.
The Judiciary Act of 1789, ch. 20, s. 22, requires every judge
or justice signing a citation on
Page 22 U. S. 554
a writ of error to take good and sufficient security that the
plaintiff in error "shall prosecute his writ to effect, and answer
all damages and costs if he fails to make his plea good." A writ of
error lodged in the clerk's office within ten days after the
rendition of judgment operates as a supersedeas of execution, and
the question arises whether, in cases where it operates as a
supersedeas, the security taken by the judge or justice ought not
to be sufficient to secure the whole amount of the judgment.
It has been supposed at the argument that the act meant only to
provide for such damages and costs as the court should adjudge for
the delay. But our opinion is that this is not the true
interpretation of the language. The word "damages" is here used not
as descriptive of the nature of the claim upon which the original
judgment is founded, but as descriptive of the indemnity which the
defendant is entitled to, if the judgment is affirmed. Whatever
losses he may sustain by the judgment's not being satisfied and
paid after the affirmance, these are the damages which he has
sustained and for which the bond ought to give good and sufficient
security. Upon any suit brought on such bond, it follows of course
that the obligors are at liberty to show that no damages have been
sustained, or partial damages only, and for such amount only is the
obligee entitled to judgment.
In the present case and in the other cases which are in the same
predicament, the Court directs
Page 22 U. S. 555
that these suits stand dismissed unless the plaintiff in error
shall give good and sufficient security to an amount to secure the
whole judgments on which the writs are brought within thirty days
from the rising of this Court, such security to be taken and
approved by any judge or justice by whom a writ of error or
citation may be allowed.
ORDER. It is ordered by the Court, on motion of Mr. Key, of
counsel for the defendant in error, that this cause do stand
dismissed unless the plaintiff in error shall, within thirty days
from the rising of this Court, give a bond with good and sufficient
security in due form of law to prosecute his writ with effect and
to answer all damages and costs if he fail to make his plea good,
the amount of such security to be sufficient to secure the whole
judgment in case the same shall be affirmed and be not otherwise
discharged, such security to be taken and approved by any judge or
justice who is authorized to allow a writ of error and citation on
the said judgment.