Lum v. Reed

Campbell, J., delivered the opinion of the court. This motion to discharge the supersedeas, because the judg [72] ment is for recovery of possession of land, and $4,850 for mesne profits, and the supersedeas bond is in the penalty of but $2,000, presents the question, whether it is allowable to supersede the writ of possession on recovery in ejectment, without giving a writ of error bond in double the amount of the judgment for mesne profits, where there is such a judgment, and, if so, on what terms the writ of possession is superseded on writ of error. As supersedeas has relation to the execution, as there may be in ejectment a writ of possession and fieri facias for damages assessed for mesne profits and costs, thus presenting the case of two separate executions for distinct things different in their nature, and as the statute which provides for a writ of error to operate as a supersedeas expressly excludes the idea of a bond in any case to cover the value of land, we think it allowable to supersede the writ of possession without superseding the execution for mesne profits, and that a writ of error without bond operates as a supersedeas of the writ of possession in ejectment. This results because at common law a writ of error itself operated as a supersedeas, and no security was required for the prosecution of the writ or the payment of the judgment, if affirmed, and it was by virtue of acts of Parliament that bail in error was required in certain cases. 2 Tidd’s Practice (1st Am. ed.), 1079 et seq. Finally, by St. of 16 & 17 Chas. II., c. 8, § 3, it was required that bail in error should be necessary in any action ejectione firmce. Under this statute the practice in the King’s Bench was to require of the plaintiff in error a recognizance in double the yearly value of the premises. 2 Tidd’s Practice (1st Am. ed.), 1085 et seq. We have no such statute, and the writ of error must operate as at common law as to the writ of possession, and supersede it. But as a judgment for money may be executed, though a writ of error be prosecuted, unless the plaintiff in error gives bond in double the amount of the judgment, such bond is necessary to supersede execution for mesne profits, as adjudged in the action of ejectment. Motion denied as to the writ of possession, but supersedeas will be confined to that.