In April, 1880, appellee TenEyck recovered a judgment against Francis L. Bittings and others for the possession of real estate, and for $566.66 for the detention thereof.
During term time an appeal was prayed to this court from that judgment, and an appeal bond, fixed and approved by the court, was filed. The judgment was affirmed by this court, and in March, 1883, appellee TenEyck was put into the possession of the real estate. This action is upon the appeal bond executed by Francis L. Bittings as principal, and appellant Opp as surety. Judgment was rendered against. *346these obligors in the court below, in favor of TenEyck, not only for the amount of the money judgment in the action for the possession of the real estate, but also for the rental value of the real estate from the rendition of that judgment until the possession was restored to him. Whether or not, under the bond and the law, the obligors are liable for the rents pending the appeal, is the controlling question presented by the record.
The appeal bond, after reciting the judgment appealed from, closes with the following: “ Now, if the said defendants will duly prosecute their appeal, and abide by and pay the judgment and costs which may be rendered or affirmed against them, tthen this obligation shall be void, otherwise in full force.”
It is very apparent that if the obligors are liable for the rents, it is not by virtue of anything expressed in the bond. Unless there was some statute in force when the bond was ■executed, fixing such liability, the court below was in error in charging the obligors with the rents.
Section 555 of the code of 1852, 2 R. S. 1876, p. 240, provided : “ When an appeal is taken during the term at which the judgment is rendered, it shall operate as a stay of all • further proceedings on the judgment, upon an appeal bond being filed by the appellant, payable to the appellee, with condition that ho will duly prosecute his appeal, and abide by and pay the judgment and costs which may be rendered, or affirmed against him, with such penalty and surety as the court shall approve,” etc. This section provided, in ' broad terms, that the appeal and bond should stay all proceedings in the way of enforcing the judgment, pending the appeal, but contained no provision to secure the appellee against the loss of rents pending the appeal, in a case like this. That all proceedings, in the way of enforcing a judgment for the possession of real •estate, should be stayed by the filing of a bond that would not protect the judgment plaintiff against the loss of rents pending the appeal, would seem to be a hardship. Evidently, here is an omission, such as was meant to be provided for by section 802 of the code of 1852. 2 R. S. 1876, *347p. 314. That section provides as follows: “ The laws and usages of this State relative to pleadings and practice in civil actions and proceedings, not inconsistent herewith,” (the code) “ and as far as the same may operate in aid hereof, or to supply any omitted case, are hereby continued in force.” We think that, by this section, section 44 of chapter 37, R. S. 1843, p. 633, was continued in force. That section is as follows: “ When any appeal is taken to the Supreme Court from a judgment in waste, or for the recovery of land, or the possession thereof, the condition of the appeal bond, in addition to the matters hereinbefore prescribed, shall further provide, that the appellant shall also pay and satisfy all damages which may be sustained by the appellee for the mesne profits of the premises recovered, or for any waste committed thereon, as well before as during the pendency of such appeal.” This section is in no way in conflict with section 555 of the code of 1852, supra, but, on the contrary, operates in aid thereof, by supplying an omission. With this section in force in aid of section 555, supra, the judgment defendant might have the benefit of an appeal, be left in possession of the premises pending the appeal, and the judgment plaintiff be secured against loss by reason of being kept out of possession during such appeal. Prior to this case, it has not been held, directly, that the above section 44 was continued in force by section 802, supra, but there have been a number of decisions as to the scope and effect of this latter section. See Belton v. Smith, 45 Ind. 291; Stockton v. Coleman, 42 Ind. 281; Chidester v. Chidester, 42 Ind. 469; Walker v. State, 23 Ind. 61; Patterson v. Crawford, 12 Ind. 241; Forsythe v. Park, 16 Ind. 247; Wright v. State, 5 Ind. 290. In the case of Jones v. Droneberger, 23 Ind. 74, it was held that the obligors upon an appeal bond were liable for the rents pending the appeal, by virtue of the statute, but under what statute was not stated.
The question yet remains as to whether or not the obligors ■can be held liable for the mesne rents, there being no provision of that kind in the bond. Section 790 of the code of *3481852 was as follows: “Ro official bond entered into by any officer, nor any bond, recognizance or written undertaking taken by any officer in the discharge of the duties of his office, shall be void for want of form, or substance, or recital, or condition, nor the principal or surety be discharged; but the principal and surety shall be bound by such bond, recognizance or written undertaking, to the full extent contemplated by the law requiring the same, and the sureties to the amount specified in the bond or recognizance. In all actions on a defective bond, recognizance or written undertaking, the plaintiff or relator may suggest the defect in his complaint, and recover to the same extent as if such bond, recognizance or written undertaking were perfect in all respects.” 2 R. S. 1876, p. 311. See same section, 1221, R. S. 1881. The force and effect of this section is to cure defects and supply omissions in the class of bonds named, whether the defects and omissions be of form or substance, and to hold the obligors, both principals and sureties, to the full extent of the law requiring the bond. This is the plain interpretation of the section, and so it has been often ruled. See Moore v. Jackson, 35 Ind. 360; Ward v. Buell, 18 Ind. 104; Boden v. Dill, 58 Ind. 273; Fuller v. Wright, 59 Ind. 333; Black v. State, ex rel., 58 Ind. 589 ; Hudelson v. Armstrong, 70 Ind. 99; Corey v. Lugar, 62 Ind. 60; Cook v. State, ex rel., 13 Ind. 154; Gavisk v. McKeever, 37 Ind. 484; Bugle v. Myers, 59 Ind. 73; Dunn v. Crocker, 22 Ind. 324.
In this connection we are cited to the case of Malone v. McClain, 3 Ind. 532, in which it seems to have been held that the obligors were not liable for the mesne rents, because the bond did not so provide. This case was distinguished in the case of Jones v. Droneberger, supra, and seems to be in conflict with many subsequent cases. It is apparent that the case was decided without reference to section 485, R. S. 1843, p. 760, which was very .much the same as section 790 of the code of 1852. "We adhere to the later cases. In the case before us, a copy of the bond was filed with the complaint as a part *349of it. This, with -the several averments of the complaint, sufficiently suggested the defects in the bond to authorize a recovery upon it, as if it had contained an undertaking to pay the mesne rents, and had otherwise been perfect in all respects. See the cases last above cited.
Filed Nov. 13, 1884.Our conclusion is that the obligors are liable under the bond for the rents pending the appeal in which the bond was given, and that there is, therefore, no error in the record. It may be noted.in passing, that the code of 1881 has a provision similar to section 44, in the revision of 1843.
The judgment is affirmed, with costs.