M'Kay v. Hite's Executors , 4 Rand. 564 ( 1826 )

Judge 'Coalter

delivered his opinion, in which the other Judges concurred.

Since the order made in this cause at a former term, requiring the appellant to give better security than had before been given, to prosecute this appeal, and in a larger sum, which was made in haste, and in which the question, was not made or considered, whether a party appealing from an order dissolving an injunction, was bound to give security for the payment of the debt, as on the grant of an original injunction, that question has been solemnly considered by the Court, and it has been decided that such an appeal must be allowed on the appellant giving security merely to perform the decree of the Inferior Court, and to pay costs and damages awarded here, if the decree shall be affirmed. This will be a small sum sufficient to cover the costs in the Court below.

In this case, the appellant had entered into bond with surety, in the penalty of $ 6000; perhaps ten times the sum necessary for that purpose, conditioned as above stated. It is possible the security originally given will not be objected to as sufficient for the purposes above. If it is, the Court will hear the appellants on that point. But the appellant petitioned to be permitted to appeal, on giving security for costs here, under the late Act of Assembly. This, it is presumed, he would not have done, but for the large sum, in which this Court, by mistake, required him to enter into bond. That order must; therefore, be set aside; so that the appeal will stand on the bond first given, unless that is now objected to as aforesaid.

That order must also be set aside for another reason. This Court is not perfectly satisfied, on re-consideration, that an appeal can be taken under the act aforesaid, after an appeal, on bond being-given to perform the-decree below, when further security is required here, which the party cannot give; in consequence of the possible effect, that in this way, even the security givemnay be discharged; a question, which this Court wishes to keep open for more deliberate consideration, whenever it shall arise.