cases,) "shall not operate so as to stay the proceedings, unless a recognizance be entered into before the Supreme Court or Circuit Court, or a judge thereof, and filed in the office of the Clerk of the Circuit Court." This would seem inevitably to give authority to those courts and judges to take recognizances generally, of the kind and description specifically pointed out in the next section, to have the legal operation provided for them.

Now the legal

And it will be perceived that this section does not provide that these recognizances shall be entered into before the courts and judges only who grant the appeals, nor does the next section make any such provision, and the only thing that squints that way, is that the "sufficiency" of the "sureties" shall be approved by the court or judge granting the appeal. validity of a recognizance, like any other bond, in no way depends upon either the solvency of the principle or of his securities, or of the approval of their sufficiency: although the approval of the sufficiency of the sureties may be a pre-requisite to their statutory operation in staying the proceedings. And this will appear when we consider that a recognizance can be valid as such, without any reference to the solvency of the recognizors, or of any approval of their sufficiency, because "a recognizance is an obligation of record, which a man enters into before some court of record, or magistrate duly authorized, with condition to do some particular act. It is, in most respects, like another bond, the difference being chiefly this, that the bond is the creation of a fresh debt or obligation de novo; and the recognizance is the acknowledgment of a former debt upon record," (Black. Com.,) and, consequently, whether the recognizors be solvent or insolvent, and whether their sufficiency be approved or not, the recognizance may be valid, provided the court, before which it was entered into, had authority. And, this being so, it might still be valid, although for want of approval by the "court or judge who granted the appeal," it might not operate to stay the proceedings; and no one can doubt but that it was in the power of the legislature to have provided that the recognizance of appeal in these cases might be taken before one court or judge, and the

sufficiency of the sureties be approved by another; although all should be done before it should have the legal operation designed. And if we are to interpret this statute according to its letter, and without reference to its spirit and the mischief and the remedy, this interpretation will make it as consistent with itself, as any other. And especially would we give it this construction rather than declare it void upon the ground, that under the pretence of regulating one of the inherent powers of this court incident to its jurisdiction, of a case regularly brought within the action of its appellate power, it, in effect, attempted to destroy this incidental power.

But we think it clear, that any such narrow and literal interpretation of this statute, would be totally unauthorized, when it is remembered that it is essentially of that class of statutes known as remedial. And it cannot be doubted but that it is properly so; its whole scope being "to supply the defects and abridge the superfluities of the old law." And the long established rule as to such statutes is, that they "are to be construed liberally;" and that "there are three points to be considered in the construction of remedial statutes; the old law, the mischief and the remedy; that is, how the old law stood at the making of the act; the mischief was what the old law did not provide; and the remedy the parliament hath provided to cure this mischief." (Black. Com.) "And it is the business of the judges so to construe the act as to suppress the mischief and advance the remedy." (1 Mon. R. 208. 4 Bac. Abr. 650. 3 Rand. R. 522.) "And cases are sometimes considered as embraced by the equity of the statute which are within the mischief, though not within the letter." Bac. Abr. 649. 1 Mon. R. 208. On this principle, the letter of the act is sometimes restrained and sometimes enlarged;" (4 Bac. Abr. 650.) "and they should be compared with other laws that are made by the same legislature that have affinity with the subject," (4 Buc. Abr. 645')" and sometimes, the construction made is contrary to the letter," (Dwarris 718,) "and hence courts, whenever they discover a thing within the mischief, which it was the intention of the legislature to remedy, hold that such things must be

6.

TERM, 1852.]

Davis vs. Tarwater.

considered within the statute." 816, sec. 701.

Smith's Com. on St. Const. p.

And when we regard it in this light of being purely a remedial law, and apply these various rules of interpretation, we find not only abundant reason but ample authority to hold that a case situated like that at bar, is as fully within the reason and equity of the statute as to the security of the sum involved by recognizance, to be taken and approved here, as if the legislature had enacted in express terms that, whenever an appeal should be pending here, brought up in either of the two modes provided by the statute, this court should not make any special order allowing such an appeal to operate as a stay of proceedings, unless a recognizance be first entered into here, such as is provided for the stay of further proceedings in other chancery causes, where appeals may be granted by this court or one of its judges, the sufficiency of the securities to be approved here, and the recognizance to be sent down to the Circuit Court as in such other cases. There can be no reason to suppose that the framers of the constitntion contemplated any less facilities for equity than for law suitors: or that the legislature could have desired to discriminate onerously against them. And we have seen that so far as law suitors are concerned, it did not destroy (or attempt to do so) the incidental power of this court to suspend proceedings in the court below, pending a writ of error, or an appeal at law here; but simply regulated that incidental power by providing that it should not be exercised unless the opposite party was first secured by a recognizance. And in chancery causes, the same sort of process is provided-that is to say, recognizance, for the security of the opposite party as a condition precedent for the stay of proceedings in this class of causes. Thus substituting this process for that which was used in England of requiring the money to be brought into the chancery court.

And it is impossible to devine any reason why the legislature could have desired that, when an appeal had been regularly brought here in either of the two modes provided, and was here pending, that the undoubted incidental power of this court to

suspend the proceedings, should be exercised under the onerous English rule of requiring the money to be brought into the chancery court at the same time that they had by regulation allowed the substitute for this by recognizance in the other class of cases where the appeal had been granted by the Circuit Court when it had been granted by this court or one of its judges. So far from the legislature having shown any disposition to cripple or impair in any way the facilities of suitors either at law or equity, to obtain a stay of proceedings pending cases in this court, the very reverse is manifested in every act on this subject.

Not only are equity suitors facilitatad in the allowance of recognizance in lieu of bringing the money into the chancery court, but suitors of both classes have been secured the privilege by this process, if they avail themselves of it with an appeal in the Circuit Court, at the proper time of securing a stay of proceedings, without any appeal to the discretion of the court beyond the fixed statutory pre-requisites. Upon what ground then, can it be supposed that the legislature could have suddenly changed the policy to discriminate against only such equity suitors as had brought their cases here by the legitimate mode of an appeal from the Circuit Court without recognizance; and to this end had either cut them off entirely from a stay of proceedings, or had left such cases to be governed by the English usage? The first would be but a futile effort, under the garb of regulation, to take from this court one of its powers derived under the constitution, necessarily incident to its appellate jurisdiction over the case. The other would be in the face of the spirit and policy of every statutory regulation touching supersedeas or stay of proceedings either at law or equity. We cannot, therefore, think that either was the will or intention of the legislature upon so slim a basis. as that which assumes that the general words "unless a recognizance be entered into before the Supreme Court or Circuit Court, or a Judge thereof," contained in the 136th section of the statute, must be restrained by the prticular words in the succeeding section "with one or more sufficient sureties to be approved by the court or Judge granting the appeal."

Such an interpretation of the legislative will would be enjoined perhaps in a criminal or penal statute and authorized in a statue taking away common rights; but surely it would be a violation of all sound rules to interpret, in this stick-to-the-bark manner a statute purely remedial—and designed to advance the right of the citizen to resort to the courts of justice for the redress of grievances.

Holding then that we have a right by special order to stay the proceedings below in the case at bar during its pendency here, and that by a fair and sound interpretation of the statute we have authority to take and approve a recognizance just as we would if we had granted the appeal under the statute; and finding, upon an inspection of the record, sufficient ground, we shall grant the motion on the statutory terms, and overrule so much of the case of Bently v. Fowler & Blackburn, as conflicts with these views of the law.

TAYLOR VS. ADams, Adr.

Where a party appeals from a decree of the Circuit Court in Chancery, but does not enter into recognizance to stay execution, one of the judges of this court, in vacation, has no power to order a stay of execution upon the appellant entering into recognizance, though the court may do it in term time, after the cause is docketed, as held in the case of Davis v. Tarwater, ante.

Appeal from Jefferson Circuit Court.

THE appeal in this case, was granted by the Circuit Court in Chancery; and the appellant failing to enter into recognizance to stay proceedings on the decree, applied to the Chief Justice,