By the Court,

The motion must be denied. We consider this judgment so far final as to authorize the clerk of the circuit court to transmit to this court the original papers, unless he was directed by the circuit judge to make and send copies thereof, pursuant to chap. 139, Laws, 1859. No such direction having been given by. the circuit judge, the papers are properly here.

After the decision of the foregoing motion, Mr. Knapp, on the 21st of October, again moved this court to make an order that *553said appellants do execute an undertaking, as is required by law to be executed, in order to stay the execution of the judgment appealed from; and also that the appellant Dean do make and deposite a proper conveyance of the lands mentioned in the said judgment, and therein directed to be executed by the said appellant Dean to the partners; and in case of noncompliance in making said undertaking and conveyance, that the appeal be dismissed; and for such further order, &c.

On this motion reference was made to chap. 139, § § 15 and 18, Rev. Stat, 1858, chap. 139, Laws of 1859; to the case of Reed vs. Jones et al., in which this court granted an injunction; also to Jarvis vs. Jarvis, in which this court made an order for alimony, pendente lite, in a case of appeal from an order.'

By the Court,

The motion must be denied ; a sufficient undertaking on appeal having been executed, and the appeal regularly taken, this court will not compel the appellant, against his wishes, to stay the proceedings on the judgment below by the execution of an undertaking for that purpose, or in default of his so doing, dismiss his appeal. It is optional with him to execute such undertaking, and procure such stay or not, as he may deem most advisable, and whether he does so or not, is a matter which in no way affects the proceedings in this court upon the appeal. Inasmuch as the transmission to this court, by the •clerk of the circuit court of the original papers in the cause, operates incidentally, as a stay of proceedings in that court, without the giving of the undertaking required by statute for that purpose, we will allow them to be remitted to the court below, upon the filing in' their place copies thereof, to be made by the clerk of this court, at the expense of the party making this motion.