1824.

Walker

V.

Turner.

and that the deeds referred to were of such a colour or appearance of title as, connected with seven years peaceable and continued possession, by the persons claiming under them, and the grant to Walker, would protect the possessor under the statute of limitations. It is deemed unnecessary to notice the third point, because, if the charge requires of a defendant more than the law does, to entitle him to the benefit of the seven years possession, it is so far favourable to the plaintiff in error. It certainly does not require of him less. Neither does the Court notice the Shcriff's deed to Sappington for the lot in controversy, purchased by him at public auction, under process of the County Court, for non-payment of taxes, as that subject was not noticed by the Judge, in his charge to the jury, and it can, therefore, present no question for the consideration of this Court.

Judgment reversed, and a venire facias de novo awarded.

JUDGMENT. This cause came on to be heard, &c. On consideration whercof, his Court is of opinion, that the said Circuit Court red in stating to the jury that the deed to R. B. Sappington, under the judgment of said M. B. Sappington's administrator against said Walker, was sufficient to vest the title of said Walker in said Sappington, and that the deeds referred to, were of such a colour or appearance of title, as, connected with seven years peaceable and continued possession, by the person claiming under them, and the grant

to said Walker, would protect the possession under the statute of limitations. It is, therefore, ORDERED and ADJUDGED, that the judgment of the said Circuit Court in this case be, and the same hereby is reversed and annulled.

1824.

Catlet

Brodie,

[PRACTICE.]

CATLETT V. BRODIE.

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 March 17. 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 Dis ict 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

1824.

Catlett

Brodie.

a writ of error, to take good and sufficient secu rity 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 di

rects 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.

1824.

Catlett

V.

Brodio.

1824.

Baits Peters.

[EXTINGUISHMENT.]

BAITS V. PETERS & STEBBINS.

A covenant, under seal, to come to a settlement within a limited time, and to pay the balance which might be found due, is merely collateral, and cannot be pleaded as an extinguishment of a simple contract debt, the period, within which the settlement was to be made, having elapsed before the commencement of the suit, and the plea not averring that any such settlement had been made.

ERROR to the District Court of Alabama.

This was an action of assumpsit, commenced in the Court below, in February, 1821, by Baits, the plantiff in error, against Peters & Stebbins, the defendants in error, in which the plaintiff declared against the defendants, upon an agreement to account with him for goods delivered by him to the defendants, for sale on commission, and also for money had and received, and upon an in simul computassent. The defendants pleaded the fol- · lowing pleas: 1st. The general issue. 2d. Payment. 3d. An agreement, under seal, made at New-York, on the 15th of July, 1820, and long after the said promises and undertaking, between the plaintiff and one of the defendants, by which the plaintiff covenanted not to sue the defendants within six months, and to send on an agent, within the same term of time, to settle the accounts with the defendants, at Blakely, in Alabama; and the defendants covenanted to come to a settlement