cree at the date of such sale. The commissioner duly reported said sale to said court, and the report was duly confirmed with the consent of the defendant Electric City Amusement Company. The complainant subsequently thereto took no further steps to procure a decree for the deficiency arising on such sale against the Electric City Amusement Company, nor made demand of said company for the payment thereof. The rental value of said premises during the years 1908 and 1909 exceeded the sum of $3,000 per annum. Upon the above statement of facts, the circuit judge found that the chancery appeal having been prosecuted to effect, and complainant's costs paid, there was no breach of the appeal bond, and he entered judgment for the defendants.

The plaintiff brings error. The assignments of error may well be considered together as raising the single question of liability on an appeal bond given in a chancery foreclosure of a land contract, pursuant to Act No. 340, Pub. Acts 1907. It is the claim of the appellant that under the decree of this court the condition of the bond was not performed, and that he is entitled to recover from the obligors therein the amount of his damage, not exceeding the penalty of the bond, and that his damage is proven by the deficiency found upon the sale, being $2,722.54, that sum being less than the rental value of the property for the year during which the complainant therein was deprived of the possession thereof. On the other hand, it is contended by the defendants that the appeal was diligently prosecuted to effect; that the modification of the decree below made by this court should be considered, and that, in any event, the only liability of Francis O. Gaukler as surety on the bond was that fixed by this court for costs, which has been satisfied by payment; that the defendant Francis O. Gaukler, surety, is not liable for the deficiency of $2,722.54, either under the facts, or under the law pursuant to which the bond was given. Section 2 of said act of 1907 reads as follows:

"Any person conceiving himself aggrieved by the decree of any court in chancery may, within forty days after the filing of the decree, claim an appeal from the said decree to the Supreme Court of the State of Michigan by filing a written claim of appeal with the register of the court in which the decree complained of was rendered. Final process shall not issue nor shall any proceeding for the enforcement of said decree be had if said appellant shall file with the aforesaid claim a bond to the opposite party in amount to be fixed by the court in which the decree was rendered, or by any judge thereof or by any circuit court commissioner of the county in which the decree was rendered, signed by one or more sureties to be approved by the court which rendered the decree or in his absence by a circuit court commissioner and conditioned for the diligent prosecution of the appeal, for the payment of costs which may be taxed or which have been taxed in the cause, and for the performance of all relief which the appellant may be required to perform by the final decree entered in said cause upon the appeal.”

The condition of the bond given is in exact conformity with the above provision of the statute, to wit:

"And shall perform all relief which it may be required to perform by the final decree entered in this cause upon the appeal."

There having been no decision of this court construing this particular statute, it may be well to compare its provisions with those of the former statute, in order to reach a correct construction of the statute in question, and thereby determine whether the surety on the bond here in suit is liable for the deficiency reported after the foreclosure sale. The first statute in this State providing for chancery appeals appears in Rev. Stat. 1838, p. 379:

"SEC. 122. Such appeal shall be claimed and entered within ninety days from the time of the making of such decree or final order, and the appellant shall, within the said ninety days, file a bond to the appellee, with sufficient sureties to be approved by the chancellor, and in such sum as the chancellor shall direct, conditioned to pay, satisfy or perform the decree or final order of the Supreme Court, and to pay all costs, in case the decree or order of

the court of chancery shall be affirmed; and upon the entering of such appeal and the filing of said bond, as above directed, all further proceedings in the cause shall be stayed in the court of chancery, until otherwise ordered by the Supreme Court."

The first decision under the act of 1838 was handed down in 1857, being Kephart v. Farmers' & Mechanics' Bank, 4 Mich. 602. The case was the foreclosure of a mortgage. The decree of the court of chancery ordered the sale of the mortgaged premises, if payment should not be made by a given date, in which case the equity of redemption would be foreclosed. It is also decreed that the mortgagor Ward, who was personally liable, should pay such deficiency of the mortgage debt as might appear after a sale of the mortgaged premises, precisely the same as the decree in the instant case. The appeal bond was conditioned

"To pay, satisfy, or perform the decree or final order of the Supreme Court, and pay all costs, in case the decree or order of the court of chancery shall be affirmed."

The decree of the court of chancery was affirmed by this court, the case remanded, sale followed, and deficiency found. A suit was brought on the bond for the deficiency and recovery had in the circuit court for the full amount. This judgment was reversed in this court; it being held that the contention of counsel for the plaintiff that the appeal of the defendants operated to delay the complainant in the enforcement of his decree, urging as a reason that it was the intention of the legislature to require security for the performance of the entire decree appealed from, was untenable, for the reason that this court had ample power to award damages against the defendants for the delay occasioned by such appeal, and the same might have been fixed and determined by the decree of this court, that, this court not having made any such award of damages, no recovery for deficiency could be had.

The statute remained unchanged as to the provision in question until the adoption of Act No. 13, Pub. Acts

1877 (1 Comp. Laws, §§ 550, 551), when the statute was changed to read as follows:

"SEC. 144. Such appeal shall be claimed by a written claim, delivered or transmitted, within forty (40) days from entry of such decree or final order, to the register of the court where such decree or order was entered, which said register shall make entry of, and the appellant shall, within said forty (40) days, file with said register, a bond to the appellee, or appellees, with sufficient sureties, approved by a circuit judge or circuit court commissioner of said county, and with such penalty as such judge or commissioner shall approve, conditioned for the performance or satisfaction of the decree or final order of the Supreme Court in the cause, and payment of all costs of the appellee or appellees in the matter of the appeal.

* * *

"SEC. 145. Upon the entering of such appeal and the fixing of such bond, as directed in the preceding section, all proceedings in the cause in the circuit court, in chancery, shall be stayed, except taxation of costs and proceedings in relation to an additional bond, provided for in said section, until otherwise ordered by the Supreme Court.

*

* * ""

This statute remained unchanged as to the condition of the bond until the act of 1907, here under consideration. A number of decisions were handed down construing the act of 1877. The first case was decided in 1883, being Kennedy v. Nims, 52 Mich. 153 (17 N. W. 735). In that case suit was brought on an appeal bond, given on appeal of a mortgage foreclosure case, the decree of the lower court being affirmed by this court, the cause remanded, sale had, and deficiency found. The single question presented was, Were the sureties liable for anything beyond the amount of the costs taxed in this court, the costs in the circuit court having been paid, and no damages having been assessed by way of penalty on the appeal? In other words, Were the sureties on the appeal bond liable for a deficiency, to be ascertained after sale, this court not having assessed any damages for the appeal by way of penalty? This court held that the sureties were not liable upon the bond for any portion of the de

ficiency left on sale of appellant's property to satisfy the decree; that the costs in the circuit court having been paid from the moneys realized on the sale of the property under the decree, and when the suit was brought on the bond, the surety having tendered the costs of this court and the expenses of the suit to that time, his liability was discharged. It will be borne in mind that in the case at bar this court did not assess any damages by way of penalty for the appeal. It did fix the liability of the surety, and in express terms limited it to the costs of the appeal, and the decree was promptly satisfied by payment thereof.

The next case was that of Michie v. Ellair, 60 Mich. 73 (26 N. W. 837), decided in 1886, in which Kennedy v. Nims, supra, was followed, and it was held that the intention of the legislature in amending the statutory condition of the bond given on a chancery appeal (Act 1877) was to limit the liability of the obligors to the payment of costs upon the appeal proceedings, and the undertaking of the sureties in such bond cannot be enlarged by the courts; that the condition in such bond, "for the performance of the decree of the Supreme Court," cannot be construed as raising a liability for the payment of the costs below, any more than the payment of a money decree; and that said bond is not intended as additional security for the original indebtedness, but as an indemnity to the appellee against further trouble, expense, and costs while the case is undergoing a review in this court. And Kountze v. Omaha Hotel Co., 107 U. S. 378-391 (2 Sup. Ct. 911), is cited. In Warner v. Cameron, 64 Mich. 185 (31 N. W. 42), decided in 1887, this court again held in affirmance of the doctrine in Kephart v. Farmers' & Mechanics' Bank, supra, Kennedy v. Nims, supra, and Michie v. Ellair, supra, that recovery upon a chancery appeal bond was limited to costs upon the appeal proceeding, in the absence of an order awarding damages in this court. In Richardson v. Richardson, 82 Mich. 305 (46 N. W. 670), decided in 1890, this court drew a distinction between a bond on appeal from a personal decree, requiring a party