An appeal from a judgment at the circuit or special term does not stay the proceedings, unless security is given, as upon an appeal to the court of appeals, or unless the court or a judge thereof so order, &c. {Code, § 348.) There was no order of the court or a judge directing the appeal to operate as a stay of proceedings. ■ The question is, whether the security given should have that effect.
To render an appeal to the court of appeals effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all the costs and damages which may be awarded against him on the appeal, not exceeding $250, or that sum must be deposited, &c., to abide the event of the appeal. {Code, § 334.) By the following section, (335,) if the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect as contained in the undertaking given in this case. By ^ 340 these undertakings may be in one instrument or several at the option of the appellant. The plaintiffs have not, therefore, done enough to have their appeal operate as a stay of proceedings. Security has not been given <£ as upon an appeal to the court of appeals.” The security given does not provide, as required by § 334, that the appellant will pay all costs and damages which may be awarded against him *135on the appeal. The costs of the appeal are not provided for in the undertaking. This was essential, and the omission is fatal.
The defendant was not bound to return the copy of the undertaking. It was good as far as it went. If it was a case where the defendant was bound to return the paper with a statement of the reasons, &c., I should have no hesitation in saying the reasons stated in this case were entirely too vague. They gave no information to the plaintiffs calculated to apprise them of any specific objection. But the plaintiffs were bound, at their peril, to give the security required by law to prevent an execution, and not having done so, the defendant was regular in issuing it.
The order for time to make a case or bill of exceptions, did not stay the defendant from issuing execution. The appeal was regular and effectual without the case or bill of exceptions, which, if settled after the judgment roll is filed, the court may order annexed. (Voorhies’ Code, 2d ed. 304, note and authorities there cited.)
The motion is denied, with $10 costs.