Reed vs. Lander. And section 886 provides that "an appeal shall not stay proceedings on the judgment or order unless a supersedeas is issued." And section 887 provides that a supersedeas shall not issue" until the appellant shall cause to be executed, before the clerk of the court which rendered the judgment or order, or the clerk of the Court of Appeals, by one or more sufficient suretics, to be approved by such clerk, a bond to the effect," &c. It is perfectly apparent from these several sections that whilst the order of appeal and execution of an appeal bond are essential prerequisites to the obtainment of a supersedeas, that neither one nor both constitutes it; therefore the judgment is not superseded until the order of supersedeas from the proper clerk is issued; hence, ten per cent. damages cannot be awarded in the absence of this order constituting the supersedeas; for it is provided in section 904, Civil Code, that "upon an affirmance of a judgment, order, or decree, for the payment of money, the collection of which, in whole or part, has been superseded, as provided in this chapter, ten per centum damages on the amount superseded shall be awarded against the appellant." Wherefore, the order awarding damages in this case, on the affirmance of the judgment below, is set aside for the want of a supersedeas, no authority being found in this court to award damages unless the judgment be actually superseded; for until that is done, there is no legal impediment to the plaintiff, in coercing his judgment by execution. Wood vs. Anders, &c. CASE 60-PETITION EQUITY-SEPTEMBER 27. Wood vs. Anders, &c. APPEAL 1. Attorneys have a lien, under the act of 1866 (Myers' Sup., 635), upon claims arising on contract, express or implied, which are put in their hands for collection; and on judgments, recovered in actions prosecuted by them, without regard to the claim on which the action was prosecuted. But 2. Attorneys have no lien, under said statute, before judgment, on plaintiff's claim for 'unliquidated damages in cases of tort; and if such an action is compromised and adjusted by the parties, and dismissed before judgment, notwithstanding the objection of the attorney for the plaintiff, the defendants are not liable to plaintiff's attorney for his fee for prosecuting the action, even if they had notice of his employment and services. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: Appellant, an attorney-at-law, brought an action for one Morse, under a special contract with him to receive, as his fee therefor, a sum equal to one half the amount which might be recovered in the action against appellee, Anders, and others, for injuries inflicted on the person of said Morse. Wood vs. Anders, &c. After having, on their motion, continued said action. once, the defendants therein compromised with said Morse, as is alleged, by paying him two hundred dollars, and he dismissed his action against them, notwithstanding the objections of the appellant thereto. This action was then brought by appellant against the plaintiff and defendants in the former action, alleging that the plaintiff therein recovered and received two hundred dollars, which sum was paid by the defendants with a full knowledge that appellant was the attorney who brought said suit, and was prosecuting it; that, by. the terms of his contract with Morse, he was entitled to the one half of the sum received by him from said Anders and others; and by virtue of his employment by Morse as aforesaid, he had, in law, a lien on said claim for damages against the defendants in said action. And as they paid the two hundred dollars with a knowledge of his employment as aforesaid, they are responsible to him for one hundred dollars; and for that sum he prayed judgment against them. Anders and Sherley filed a demurrer to the petition, which was sustained, and appellant failing to amend the same, it was dismissed as to said defendants, and he has appealed. The lien secured by the act of 1866 to attorneys is upon claims arising on contracts, either express or implied, which are put in their hands for collection, and on "judgments" recovered in actions prosecuted by attorneys, without regard to the nature of the claim on which the action was prosecuted. But we do not understand the statute as going to the extent that for a claim for unliquidated damage in cases of tort, before judgment is obtained, the defendant or defendants are to be made liable for the fee of the attorney of the plain Buckner's ex'rs, &c., vs. Cromie's ex'rs. tiff, where the parties compromise and adjust their litigation before judgment. Such cases are not embraced by the letter of the act certainly, nor does it appear from the language that such was the intention of the Legislature; and courts should not give to it a meaning and operation more comprehensive than was intended. Such an interpretation would discourage compromises, and conflict with the divine precept, to "agree with thine adversary quickly, while thou art in the way with him, lest at any time the adversary deliver thee to the judge," &c. Nor do we understand the common law as authorizing the relief sought. Wherefore, the judgment is affirmed. CASE 61-PETITION EQUITY-SEPTEMBER 28. Buckner's ex'rs, &c., vs. Cromie's ex'rs. APPEAL FROM LOUISVILLE CHANCERY COURT. 1. Executors, with no express power to sell, have no authority to sell and convey real estate which relapsed to heirs and distributees, and did not pass under the will. 2. 3. 4. Real estate which did not pass under the will, but relapsed to testa- When the will is inoperative, and real estate relapses and passes to Buckner's ex'rs, &c., vs. Cromie's ex rs. MUIR & BIJUR, CITED- For Appellants, 3 Bush, 384-5, and 394; Cromic's heirs vs. Louisville Orphans' Home, &c. Act of 1797, sec. 44, 1 M. &. B., 666. Revised Statutes, sec. 9, art. 1, chap. 37, 1 Stanton, 499. BARR & GOODLOE, CITED For Appellees, Revised Statutes, sec. 9, art. 1, chap. 37, and Amend- 3 Marshall, 131; Anderson vs. Turner. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: Claiming the power under the will of Isaac Cromie, which was probated in the proper court in Louisville, the city of his residence, on the 16th of August, 1865, John Gill and William Cromie, who had qualified as the executors of said testator, on the 1st day of September, 1865, undertook to sell and convey to James P. Buckner, now deceased, valuable real estate in the city of Louisville, the property of said testator, for the sum of $28,500, all of which has been paid to said executors. In the early part of the year 1869, after he had paid all the purchase money for said property to said execu tors, and had accepted their deed for the same, James P. Buckner departed this life, having first made and published his will, in which he appointed Henry S. Buckner his executor. The will was probated, and the nominated |