Page:Federal Reporter, 1st Series, Volume 4.djvu/635

 IIEBNÀK r. BOOTH.* 621 �Drummond, C. J. In thîs case a judgment was rendered by this court in favor of the plaintiff, m an action of eject- ment, on the thirteenth day of Deceniber, 1879, and within the proper time a bond was filed by the defendant, with security approved by the court, in an amount Bufficient to make it a supersedeas. A writ of error was seasonably sued out, and ft copy was also left in the clerk's office for the opposite party, in conformity with the statute. In ail respects, therefore, the necessary steps were taken by the defendant to make the writ of error a supersedeas, unless one is lacking, viz. : because the citation was not signed by the judge until the fourth day of September, A. D. 1880. The practice does not seem to be uniform in the varions circuits courts of the United States as to the manner of making a writ of error a supersedeas by the action of the court. It seems to be conceded that it is not necessary, provided everything has been done required by the statute, for a court or the judge to make an order that the writ of error is a supersedeas. It becomes so per se upon cbmpliance with the statute. The practice in thîs circuit haa usually been to treat a writ of error, upon the execution and àpproval of a sufficient bond and the issue of the citation, as a supersedeas without any express order of the court or judge.. It is generally understood, between parties and by the court, whether the bond that is offered, (being sufficient in amount and the security adequate,} is intended and does operate as a supersedeas. If tfaat is so understood by the counsel and the court, no application is made for an execu- tion or a writ of possession, as the case may be ; and there- fore no order is generally entered in such cases. At the same time, the practice has been occasionally for counsel to ask that a special order shall be entered by the court or judge declar- ing the writ of error a supersedeas, and when so desired the order has been made. The language of the statute is, (section 1000 :) "Every justice or judge signing a citation on any writ of error shall * * * take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect." Undoubtedly the general rule is that the eigning the citation and taking the security are simultaneous ����