1877. March Term. Richmond. CARDWELL V. ALLEN, Trustee. March 15. r. That portion of 13, chapter 178, of the Code of 1873, prescribing the penalty of an appeal and supersedeas bond, refers only to the damages mentioned in 24 of the same chapter, and was not intended to cover the rents and profits of real estate in the possession of the appellant who had given a deed of trust thereon to secure a debt fully its value, he having obtained an injunction to prevent the sale of such real estate, which injunction was dissolved, and the bill dismissed, and the penalty of the appeal and supersedeas bond will not be fixed with reference to such "rents and profits." 2. The word "awarded,” in said section 13, refers to the words "damages and costs;" and the word "incurred" to the word "fees" therein, so as to make the meaning the same as if the sentence had been written; "and also to pay all damages and costs which may be awarded against, and all fees which may be incurred by, the appellants or petitioners." 3. The penalty of the appeal and supersedeas bond should be sufficient to indemnify and save harmless the surety in the injunction bond. Wiltshire Cardwell filed his bill in the circuit court of Prince Edward county, and obtained an injunction to prohibit Edgar Allan, the trustee in a deed of trust executed by Cardwell and wife, from selling certain real estate conveyed in said deed to secure two negotiable notes held by the English and American Bank at Farmville, Va. The penalty of the injunction bond was five hundred dollars. Upon the hearing of the case the injunction was dissolved, and the bill dismissed with costs. Cardwell then obtained from a judge of this court an appeal from, and supersedeas to, the decree of the circuit court dissolving the injunction and dismissing the bill; and the penalty of the supersedeas bond required by said judge was only $200. A motion was made to require the appellant to give a new bond in a larger penalty, on the ground that the real estate conveyed would not sell for enough to satisfy the debt due; that the appellant was in possession of the same, enjoying the rents and profits, and that the penalty of the bond ought at least to be sufficient to cover the amount of said rents and profits, in addition to the amount of damages, costs and fees intended to be covered by the said penalty of two hundred dollars on the first bond required. Guy & Gilliam, for the appellant. W. W. Henry, for the appellees. MONCURE, P., delivered the opinion of the court. This is a motion to require the appellant to give bond with security in a larger penalty than two hundred dollars, the penalty of the appeal bond required to be given by the judge who granted the appeal in this case. The appeal is from a decree dissolving an injunction to a sale of land under a deed of trust, and dismissing the bill. The appellant is in possession of the land, enjoying the issues and profits thereof, pending the appeal. The appellees contend that the land is not of sufficient value to satisfy the debt for which it is bound to them; and that the penalty of the appeal bond ought therefore to be large enough to cover the amount of the said issues and profits in addition to the amount of damages, costs and fees intended to be covered by the said penalty of two hundred dollars. VOL. XXVIII-24 1877. Term. March Cardwell V. Allen, trustee. 1877. March Cardwell V. trustee. The question we now have to solve is not what the Term. law ought to be, but what it actually is. The former question is addressed to the legislature, the latter to the courts. If we were a legislature, we might and Allen, probably would consider it very reasonable and proper that in such a case as this the penalty of the appeal bond should be large enough for the purpose aforesaid, and that the condition of the bond should plainly provide to that effect; and we might and probably would make or amend the law accordingly. But as we are a court, and not a legislature, the enquiry we have to solve simply is, what is the law as it now stands, not what it ought to be. The law which we now have to construe is the 13th section of chapter 178 of the Code of 1873, page 1139, which is in these words: "13. Except where an appeal, writ of error, or supersedeas, is proper to protect the estate of a decedent, convict, or insane person, the same shall not take effect until bond is given by the appellants or petitioners, or one of them, or some other person, in a penalty to be fixed by the court or judge by or in which the appeal, writ of error, or supersedeas, is allowed or entered, with condition, if a supersedeas be awarded, to perform and satisfy the judgment, decree or order, or the part thereof proceedings on which are stayed, in case the said judgment, decree or order, or such part, be affirmed, or the appeal, writ of error, or supersedeas, be dismissed; and also to pay all damages, costs and fees which may be awarded against or incurred by the appellants or petitioners; and if it be an appeal from an order dissolving an injuction or dismissing a bill of injunction, with a further condition to indemnify and save harmless the surety in the injunction bond against all loss or damage in consequence of his suretyship; and with condition, when no supersedeas is awarded, to pay such specific damages and such costs and fees as may be awarded or incurred." 1877. March Term. Cardwell V. trustee. This is the only law which requires the execution of an appeal bond and makes provision in regard to the Allen, amount of the penalty and terms of the condition of the bond. That portion of it which involves the question we are now considering is in these words: "with condition, if a supersedeas be awarded, to perform and satisfy the judgment, decree or order, or the part thereof proceedings on which are stayed, in case the said judgment, decree or order, or such part thereof, be affirmed, or the appeal, writ of error or supersedeas be dismissed; and also to pay all damages, costs and fees which may be awarded against or incurred by the appellants or petitioners." Now if the damages which may arise from a loss of issues and profits of the land in controversy while in possession of the appellant pending the appeal as aforesaid, are provided for by the terms of the condition of the appeal bond prescribed by the said law, it must be because they are included in the word "damages," in that part of the law which is as follows: "And also to pay all damages, costs and fees which may be awarded against or incurred by the appellants or petitioners." Are they so included? What is the meaning of the word "damages" in that connection? Plainly, we think its meaning is defined by a succeeding section of the same chapter, page 1142 of the Code, which is in these words: "24. When any judgment, decree, or order is affirmed, damages shall be awarded to the appellee; such damages, when the judgment, decree or order is for the payment of money, shall be the interest to which the parties are legally entitled in the cause (to March Term. Cardwell V. trustee. 1877 be computed upon the whole amount of the recovery, including interest and costs), from the time the appeal, writ of error or supersedeas took effect, until the affirmance, or if the affirmance be by the court of appeals, Allen, until a copy of its decision is entered in the order book of the court below, which damages shall be in satisfaction of all interest during that time. When the judgment, decree or order is not for the payment of any money, except costs, the damages shall be such specific sum as the appellate court may deem reasonable, not being more than one hundred dollars, nor in the court of appeals less than thirty dollars." In construing the words, "and also to pay all damages, costs, and fees which may be awarded against or incurred by the appellants or petitioners," we must apply the rule, "redendo singula singulis," and refer the word "awarded" to the words "damages" and "costs," and the word "incurred" to the word "fees." So as to make the meaning of the sentence the same as if it had been thus written: "And also to pay all damages and costs which may be awarded against, and all fees incurred by the appellants and petitioners." In that form of expression the meaning of the word damages" in the 13th section seems to be perfectly plain, especially when we take that section in connection with the 24th of the same chapter; which declares that when any judgment &c. is affirmed, damages shall be awarded to the appellee; such damages to be a certain percentage on the recovery, if of money, or a specific sum, if the recovery be not of money except costs. That the words "incurred by," in the 13th section, refers, and is confined to, the word "fees" therein, appears from the act passed February 15, 1844, acts of assembly 1843 '44, page 46, chap. 54, § 3, which enacts |