Nathan Clifford

“ Whenever a defendant sues out a writ of error, and he desires that it may operate as a supersedeas, he is required to do two things, and if either is omitted, he fails to accomplish his object: 1, he must serve the writ of error as aforesaid, within ten days, 'Sundays exclusive,' after the rendition of the judgment; and 2, he must give bond with sureties to the satisfaction of the court, for the benefit of the plaintiff, in a sum sufficient to secure the whole judgment in case it be affirmed. ”

“ Many qualifications also exist to the general rule as applied to the levy of an execution upon the goods of the judgment debtor, as might be illustrated and enforced by numerous decided cases. Where the goods seized are taken out of the possession of the debtor, and they are sufficient to satisfy the execution, it is doubtless true, that if the marshal or sheriff wastes the goods, or they are lost or destroyed by the negligence or fault of the officer, or if he misapplies the proceeds of the sale, or retains the goods and does not return the execution, the debtor is discharged ”

“ Partial satisfaction of a judgment, whether obtained by a levy or voluntary payment, is not, and never was a bar to a writ of error, where it appeared that the levy was made, or the payment was received prior to the service of the writ, and there is no well-considered case which affords the slightest support to any such proposition. ”

“ Plaintiff also may bring error to reverse his own judgment, where injustice has been done him, or where it is for a less sum than he claims; but he, like the defendant, is required to give bond to answer for costs. ”

“ Motion to dismiss is grounded solely upon the alleged fact that the judgment was satisfied before the writ of error was sued out and prosecuted. Matters of fact alleged in a motion to dismiss, if controverted, must be determined by the court. Actual satisfaction beyond the amount specified in the return of the marshal cannot be pretended, but the theory is, that the levy of the execution in the manner stated affords conclusive evidence that the whole amount was paid, and it must be admitted that one or two of the decided cases referred to appear to give some countenance to that view of the law ”

“ If, however, he meant to say that the rule established by his predecessors, in his own court, in its best days, had 'no foundation in reason,'-a meaning difficult, with proper respect to him, to suppose-then we may observe, as the fact is, and as he himself declares [4] it was, that his remarks on this subject were not necessary to the decision; and were made only at the wish of counsel; and, we may observe also, that they are put by the reporter as dicta simply 'per Bronson, C.J.;' impertinent really to the case. ”

“ Breach of the bond as assigned in the declaration was that the principal obligor failed to pay over, or account for the sum of twenty thousand and eighty-five dollars and seventy-four cents of the public moneys intrusted to his keeping, and for which he and his sureties were jointly and severally liable. ”