157

private parties) where the judgment is for a specific sum, unless, within 20 days after judgment or decree, an undertaking be given, with security, to abide by, perform, and pay the judgment or decree. Rule 91.

We do not perceive that there is anything peculiar in these appeals from the special to the general term to take them out of the operation of the general principles and rules which govern appeals from one court to another. One general rule in all cases (subject, however, to some qualifications) is that an appeal suspends the power of the court below to proceed further in the cause. This includes a suspension of the power to execute the judgment or decree. But, of course, besides merely taking an appeal, those additional things must be done which the law requires to be done in order to give to the appeal a suspensive effect, whether it be security for the payment of the claim or other condition imposed by law.

One of the qualifications of the general rule as to the suspensive effect of an appeal is that the inferior court may perfect its judgment or decree, usually, at any time during the term at which it is rendered. If, when an appeal is taken or a writ of error is sued out, the record has not been made up, it may be made up in due form. If any obvious mistake has occurred it may be corrected; as, where the jury by mistake has given damages in a penal action, or has given damages for a larger sum than the declaration demanded, the plaintiff may enter a remittitur of the damages on the record after a writ of error is brought. Tidd, Pr. 942. And it is laid down as a general rule, at law, (the principle of which is equally applicable to chancery proceedings,) that those things which are amendable before error brought are amendable afterwards, so long as diminution may be alleged and certiorari awarded; provided, of course, that the time for amendment has not passed by. Tidd, 714. In chancery proceedings it is a rule that when a clerical error has crept into the decree, or some ordinary direction has been omitted, the court will entertain an application to rectify it, even though it has been passed and entered. Where a decree has omitted a direction that is of course at the time it is made, it may be corrected by the insertion. of that direction; as where, in a creditor's suit, the decree has omitted the usual direction to take an account of the personal estate, it was ordered to be inserted. Daniell, Ch. Pr. c. 25, § 5. This rule is formulated in the eighth equity rule established by this court for the government of the circuit courts, which declares that "clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or judge thereof, upon petition, without the form or expense of a rehearing." Such corrections, by analogy to the practice in cases at law, may, undoubtedly, be made after an appeal is taken.

In the present case, the correction of the form of the decree by add

ing the direction to the receiver to pay over the money in his hands to the defendants was a thing of course; it was merely expressing the legal effect and conseqence of the decree. It was an amendment which the court below, (the special term,) was competent to make notwithstanding the appeal. The terms of the injunction were that the defendants should be restrained from receiving the money until the final hearing of the cause. Of course, when the cause was finally heard, and the bill dismissed, the injunction ceased to have effect by its own terms. The appointment of Mr. Riggs as receiver was for the purpose of holding the money as agent of the court, and withholding it from the defendants until the decision. The words of his commission were, "to collect and hold the money until and subject to the further order of the court." It was therefore a necessary consequence of the decree of dismissal, that the injunction should be dissolved, and that the receiver should be discharged and directed no longer to withhold the money from the possession of the defendants. The dissolution of the injunction and the discharge of the receiver were directions of course to be inserted in the decree of dismissal, unless the court should affirmatively order otherwise. The court below, it is true, in view of the appeal, might have made an order to continue the injunction and to retain the property in the receiver's hands; but that was a matter of discretion, to be exercised according to the justice of the case. If the judge did not see fit to exercise it, it was of course to add to the decree of dismissal its legal effect and consequence. The making of the correction without notice to the complainants, if such notice was requisite, was an irregularity of which the receiver was not bound to know. We are of opinion, therefore, that the completion of the decree on the twenty-eighth of June, by adding the usual direction, was within the power of the special term; and the rights of the parties to this appeal must be determined as if the decree had originally contained that direction.

This brings us to the question of the effect of the appeal as a supersedeas, or as a suspension of the decree thus corrected. The appeal was taken in time, and verbal notice that it had been taken and would be followed up by the proper undertaking was given to the receiver at once, before he had parted with the funds in his hands. the same time he was served with a copy of the decree ordering him to deliver those funds to the defendants. The question is whether, under these circumstances, he paid the money in his own wrong, notwithstanding the order of the court.

A supersedeas, properly so called, is a suspension of the power of the court below to issue an execution on the judgment or decree appealed from; or, if a writ of execution has issued, it is a prohibition emanating from the court of appeal against the execution of the writ. It operates from the time of the completion of those acts which are requisite to call it into existence. If, before those acts are performed, an execution has been lawfully issued, a writ of supersedeas, directed

to the officer holding it, will be necessary; but if the writ of execution has been, not only lawfully issued, but actually executed, there is no remedy until the appellate proceedings are ended, when, if the judgment or decree be reversed, a writ of restitution will be awarded. To remedy the inconveniencies that arose from an immediate issue of execution before the appellate proceedings could be perfected, the original judiciary act of 1789 provided, and the present Revised Statutes now provide, that no execution shall issue upon judgments in the courts of the United States, where a writ of error may be a supersedeas, until the expiration of 10 days after the judgment. Rev. St. § 1007. This regulation applies to proceedings in equity as well as to cases at law. But it does not extend to the present case. The regulation of appeals from the special to the general term of the supreme court of the district is specially provided for in the laws and rules before referred to, which cover the whole subject. By these rules it is declared that after judgment is entered in the circuit court, or at a special term, execution may be issued, unless the party condemned move to vacate or set it aside, or resort to a review of it before the general term; but no appeal shall operate as a stay of execution where the judgment is for a specific sum of money, unless the appellant, with surety, within 20 days after the judgment or decree, execute and file an undertaking in the form prescribed. The appellants insist that this rule makes it unlawful to issue an execution within the 20 days. We doubt very much whether that is the true meaning of the rule. It would be more in accordance with the general mode of construing such regulations to hold that the supersedeas does not take effect until the condition is complied with, and will not take effect at all unless complied with during the time limited.

But this case is not within the terms of the rule. There was no decree for a specific sum of money; there was no decree at all in favor of the complainants; and no execution was applicable to or could be issued in the case, except an execution for the costs of the defendants. The truth is that the case is not governed by the ordinary rules that relate to a supersedeas of execution, but by those principles and rules which relate to chancery proceedings exclusively. It depends upon the effect which, according to the principles and usages of a court of equity, an appeal has upon the proceedings and decree of the court appealed from, and the doctrines which apply to a supersedeas can only be brought in by way of analogy.

In England until the year 1772 an appeal from a decree or order in chancery suspended all proceedings; but since that time a contrary rule has prevailed there. The subject was reviewed by the house of lords in 1807, and an order was made establishing the right of the chancellor to determine whether and how far an appeal should be suspensive of proceedings, subject to the order of the house on the same subject. See Palmer, Pr. H. L. 9, 10; 15 Ves. 184; 8 Paige, 883-385.

In this country the matter is usually regulated by statute, or rules of court, and generally speaking an appeal, upon giving the security required by law, (when security is required,) suspends further proceedings, and operates as a supersedeas of execution. This, as we have seen, is the case in the circuit courts of the United States. But the decree itself, without further proceedings, may have an intrinsic effect which can only be suspended by an affirmative order either of the court which makes the decree, or of the appellate tribunal.

This court, in the Slaughter-house Cases, 10 Wall. 273, decided that an appeal from a decree granting, refusing, or dissolving an injunetion does not disturb its operative effect. Mr. Justice CLIFFORD, delivering the opinion of the court, said "it is quite certain that neither an injunction nor a decree dissolving an injunction passed in a circuit court is reversed or nullified by an appeal or writ of error before the cause is heard in this court," and held that the same rule applies to writs of error from state courts in equity proceedings; and the decision of the court was based upon that view of the law. It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requisites for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the effect of the decree as rendered; but it is a discretionary power, and its exercise or non-exercise is not an appealable matter. In recognition of this power, and for the purpose of facilitating its proper exercise in certain cases, on appeals from the circuit courts, this court by an additional rule of practice in equity, adopted in October term, 1878, declared that

"When an appeal from a final decree, in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending or modifying the injunction, during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party." Rule 93.

*Of course, where the power is not exercised by the court, nor by the judge who allows the appeal, the decree retains its intrinsic force and effect.

Applying these principles to the present case, it is clear that the force of the decree was not affected by the appeal, although it was in the power of the special term to have continued the injunction and to have retained the fund in its control in the hands of the receiver had it seen fit to do so. Judging only from what appears in the record, we cannot refrain from saying that, in this case, the latter course would have been eminently proper. It would have protected all par

ties and produced injury to none. But if the court failed to do what it might properly have done, such failure ought not to be visited upon the receiver, who was the mere instrument and hand of the court, and subject to its order. It was his duty to obey the decree as made.

This disposes of the case, and requires that the decree appealed from should be affirmed; and it is so ordered.

(109 U. 8. 221)

BOARD OF LIQUIDATION OF THE CITY DEBT v. LOUISVILLE & N. R. Co. and another.

(November 12, 1883.)

BOARD OF LIQUIDATION OF New Orleans-ACT OF LEGISLATURE OF LOUISIANA,
No. 133, OF 1880-ACTs Nos. 81 AND 20 OF 1882-BATTURE PROP-
ERTY-COMPROMISE OF SUIT BY CITY COUNCIL.

In 1880 the board of liquidation of the city of New Orleans was, by act of the legislature, (No. 133,) created and given power to dispose of and sell the property of the city not dedicated to public uses, and out of the proceeds pay the public debt. But before any new rights had accrued under this power the control and disposition of batture property (including that in controversy in this suit) not needed for public purposes was withdrawn from the board by act No. 81 of 1882 and given to the city council, and the proceeds of the sales and leases of public privileges and franchises were appropriated to the payment of the expenses of public improvements which were permanent in their character. In 1882 a compromise was effected in a suit pending between the New Orleans, Mobile & Texas Railroad Company, who claimed certain rights in the property, against the city, by which the railroad company were to pay a certain sum of money to the city, and the city was to dismiss its appeal. The board of liquidation laid claim to the amount agreed to be paid by the railroad company. Held, that the compromise itself was within the departmental authority of the city council, and not subject to the control of the board of liquidation. Whether the money realized from the compromise should be applied to the payment of the public debt or to make permanent improvements is not decided.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

Henry C. Miller and R. T. Merrick, for appellant.
Thos. L. Bayne and John L. Cadwalader, for appellee.
WAITE, C. J. This appeal presents the following case:

Prior to the year 1820 disputes had arisen between the city of New Orleans and certain proprietors of riparian estates as to the ownership of the batture or alluvion in front of the city on the Mississippi river. In compromise of these disputes the proprietors surrendered to the city all their claims to property within certain boundaries.

In 1869 the legislature of Louisiana undertook, by act No. 26 of 1869, to grant to the New Orleans, Mobile & Chattanooga Railroad Company, now by change of name the New Orleans, Mobile & Texas Railroad Company, "the right to locate, construct, maintain, and use