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    George W. Phillips, Plaintiff in error, v. John S. Preston, Defendant in error.
    Under the practice of Louisiana, peremptory exceptions tnust he considered as specially pleaded when they are set forth in writing, in a specific or detailed form, and judgment prayed on them.
    Although the court should refuse to receive exceptions thus tendered, yet if the party has the benefit of them on a motion in arrest of judgment and !n a bill of exceptions, the refusal of the court is not a sufficient cause for reversal.
    The statute of Louisiana, requiring their courts to have the testimony taken down in
    • all cases where an appeal lies to the Supreme Court, and the. adoption of this rule by the court of the United States, includes only cases where an appeal (technically speaking) lies, and not cases which are carried to an appellate court bv writ of .error.
    Where the laws permit a waiver of a trial by jury, it is too late to raise an objec- ' tion that the waiver was not made a matter of record, after the case has proceeded to a hearing.
    In a suit by the first indorser of promissory notes against a second indorser, upon an alleged contract that the second indorser would bear half the loss which might accrue from their non-payment by the drawer, it is not a sufficient objection to. the jurisdiction of the court, that the second indorsee and defendant were citizens of the same State. Such an objection would be well founded if the suit had béen upon the notes.
    But not where the suit is brought upon a collateral contract.
    A contract between two indorsers, that they will divide the loss between them, is a good contract, and founded on a sufficient consideration.
    Being a collateral contract, by parol, paral évidence can be given to prove it. The payee is a competent witness, and so is the notary, bringing with him the act of sale.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

      It was a claim advanced by Preston, the first indorser upon certain promissory notes, that Phillips, the second indorser, should pay one half thereof, by virtue of a special agreement between them. The facts in the case were these.
    On the 15th of March, 1836, Sosthain Allain sold to Robert R. Barrow sundry pieces of property in Louisiana, for the- sum of $ 110,700, payable as follows, viz. : —
    1837, March 1, . $ 16,921 27
    1838, March 1, . . . . 18,028 26
    1839, March 1, . 19,135 25
    1840, March 1, . . . . 20,242 20
    1841, March 1, . . 21,349 23
    1842, March 1, . . . . 22,456 22
    1843, March 1, ... . 23,563 21
    For the security of the notes given for the above payments, the property was mortgaged.
    On the 17th of March, 1837, Barrow sold-the above property (•with a slight addition) to Samuel John Carr, for $ 141,695.68, payable as follows : —
    . $16,921 27 Cash,
    . 18,[ XXX XX XXXX ], March 1, .
    . . 19,[ XXX XX XXXX ], March 1,
    . 20,[ XXX XX XXXX ], March 1,
    1841, March 1, 21,349 23
    1842, March 1, 22,456 22
    1843, March 1, 23,563 21
    141,695 68
    The act of sale, which was signed by Barrow and Carr, and executed before Louis T. Caire, a.notary public, contained, amongst other things, the following provisions, viz. —
    . 1. After reciting the cash payment, it proceeded thus ::— u And in payment of the balance, the said purchaser handed over to nie, the undersigned notary, six promissory notes, bearing even date herewith, subscribed by him, to the order [of] John S. Preston, indorsed by himj the said John S. Preston, ‘domiciliated in the parish of Ascension, as first indorser, and by George W. Phillips, domiciliated in the parish of Assumption, as second indorser, it being understood that, although each of" the indorsers is responsible for the whole amount of said notes, they are between themselves equally responsible ; said notes have been made payable at the domicile of the Union Bank of Louisiana, and their amount and terms of payment are as follows, viz.” (then followed an enumeration of the notes as above).
    2. An agreement that the property should stand mortgaged.

      3.- An agreement that the last-mentioned notes should be substituted, if possible, for those given by Barrow to Allain, and if it should not be possible to do so, then that payments made upon the last set of notes should be applied to the first set, as they became due.
    The notes given by Carr to Barrow were indorsed by John S. Preston, as the first indorser, and by-George W. Phillips, as the second indorser.
    On the 1st of March, 1838, the first note became due, and was not paid by Carr. But it appeared by the record not to have been protested until the ,30th of March, 1839.
    On the 1st pf March, 1839, another note became due, which, appears to have been protested in proper time.
    On the 5th of April, 1839, Barrow filed a petition in- the District Court of the Fourth Judicial- District of the State of Louisiana' (a State court), representing the above-mentioned facts, and stating further, that he had made the necessary payments and arrangements with Allain, respecting the notes due in 1837, 1838, and 1839, and praying for a sale of the property.
    On the 1st of March, 1840, another note fell due, which was not paid, and was protested.
    On the 15th of August, 1840, the property was sold in block by the sheriff to Isaac T. Preston, for his brother, John S. Preston, •for the sum of $ 67,500, the purchaser assuming the payment of the notes due in-1841, 1842, and 1843.
    On the 20th of August, 1840, the sheriff executed a deed -for the property to John S. Preston.
    On the 17th of February, 1841, Preston, calling himself a citizen- of South Carolina, filed a petition in the Circuit Court of the United States against Phillips, a citizen of Louisiana, alleging that," by: virtue of the agreement between them, Phillips was bound to pay to him the one half of all that he had paid, being $ 28,702.87,. with legal interest on $ 9,014.13 from the 4th day of March, 1838,. and like interest on $ 9,567.62| from the 4th day of March, 1839. And on $ 10,121, from the 4th day of March, 1840, with half the'costs of protests.
    •On the 26th of February, 1841, the counsel of Phillips filed an exception, being a plea to the juiisdiction of the court, .upon the ground that Barrow was the assignor of the notes to Preston, and that Barrow, being a citizen of the same State with Phillips, was incapable of suing him in the- United States court.
    On the 20th of April, 1841, the, court overruled this exception, and Phillips filed an answer, denying “ all and singular the allegations contained in the plaintiff’s petition, and particularly that he ever promised or undertook to be responsible on the notes described in said petition, in any other capacity except as second in-dorser and after and in default of the plaintiff, or that the said notes ever were duly protested, and notice given to this defendant.”
    In April, 1841, the cause came up for hearing. ' On the trial the following testimony was filed.

      Testimony taken by Consent, this April 23d, 1841.
    John S. Preston v. George W. Phillips.
    The testimony of Robert R. Barrow, a witness for the plaintiff, who, being duly sworn, deposeth and saith, being asked by the .plaintiff what he knows in relation to an agreement between John S. Preston and George W. Phillips, in relation to, their indorsement of certain notes given by Samuel J. Carr to him, on payment of a plantation and slaves in Point Coupee, purchased from him by said Carr, about the 17th of March, 1837.
    (The counsel of the defendant, Seth Barton, Esq., objecting to the above question, and reserving all legal exceptions'.)
    The witness says,, that he was present at the time the notes were signed, about the 17th of March, 1837. Samuel J. Carr, the plaintiff, and defendant, with deponent, met by appointment at the time of the sale, at Caire’s office, before whom the act was passed ; the act was already prepared when the aforesaid parties met, it having been prepared by the notary, under, the directions of witness and said Carr ; the notes were also- drawn up and ready to be signed, under Carr and witness’s directions and instructions ; the notes were then handed to the plaintiff to indorse ; when about to sign, Mr. Preston observed that he thought those notes were to .have been drawn to the order of Phillips, the defendant. Mr. Carr replied, that he did not know that it would make any difference. And thereupon Colonel Preston turned round, and, addressing ■ himself to . Colonel Phillips, the defendant, said he supposed it made no difference, .and said he. wished it particularly understood between them, that in case Carr should fail to -pay the notes, and the in-dorsers compelled to páy them, that he . (Phillips) and Preston should be equally bound, and share alike in the loss, and that he, Preston, wished it so stated in the act. After this conversation, Colonel Preston turned to Mr. Caire, the notary, and remarked,. thát he wished it noted in.the act, that the indorsers should be bound alike on failure of Carr. ' The notary then put down on paper the exact words that Colonel Preston dictated ; all the parties were near each other, and participating more or less, in the conversation. After .this, Colonel Preston and Colonel Phillips indorsed the notes and handed them- over to the notary ; Colonel' Preston indorsed first, and Colonel.Phillips next; and instructions were given to the notary, Caire, to draw up a new .’act, inserting the clause aforesaid, as regards the equal liability of the indorsers ; and. then, to identify the notes with the act, the clause was added in the new act, and witness, when his attention was called to it by Mr. Caire, objected to its insertion, because, as he then thought, it made the indorsers liable to him for only their half. Mr. Caire called upon an attorney at law, whose name witness does not remember, to explain it, and thereupon witness was. satisfied that it did not affect him, but only related to the respective liabilities of the indorsers. The act was not signed at the time the notes were' given, but was signed at a different time on that day, or the day next, but he cannot remember. Witness recollects the conversation very distinctly, as it was impressed on his mind at the time, and has frequently thought of it since.
    Being shown the copy of the act annexed to the petition, and the clause at the top of the page, says, they are the same referred to by him. The three notes marked A, B, and C, filed with this deposition, are part of the consideration of the sale ; Colonel Preston took up three of the notes, A, B, and C, and paid them after protest, interest and all-charges, which payment was made before this suit was instituted. ■ The tract of land in West Feliciana, mortgaged to secure the payment of these notes, was seized and sold to pay prior mortgages of said Carr, and consequently there was noihing to come from that land to pay this debt of Carr’s, for the plantation sold as aforesaid ; this tract was woodland ; Colonel Preston has paid the notes which have matured, and- has assumed the balance, due, he having purchased in the property mortgaged, to secure the payment of the notes aforesaid.
    The defendant, by S. Barton, his attorney, objects to the who! of the. foregoing deposition of the witness, as illegal and incompetent ; and specially to all such parts of it as are hearsay or secondary proof; and specially, also, to all such parts of it as go to vary, or contradict, or explain the written testimony to which the witness refers ; and particularly such parts as tend to prove any thing against or beyond the authentic act of sale, on file in this cause, and insisting on such objections (to be' urged-on trial), and waiving no part thereof, cross-examines the witness, under the above reservar tions.
    Witness never had-the act of sale referred to -recorded in West Feliciana 5 that the property in Feliciana was sold for judgments of younger date than the sale aforesaid ; the first note of ‡ 18,000 was paid by a renewal' of note payable to the Union Bank; the other two were paid by drafts ; the note given on renewal was not indorsed by Colonel Phillips ; Colonel Phillips was no party to the drafts referred to ; the drafts were on time and suited witness ; witness thought-from appearances that Preston and Phillips were just introduced to each other, or n.ot long acquainted, when they met at the notary’s, as above related ; some short time before the act was passed,.witness met Colonel Phillips at the theatre, and had some conversation about his indorsing for Carr-, said he,-Phillips, had promised to indorse for Carr, but Carr said it would only be temporarily, as he. had made arrangements to change the- indorse-ments, by substituting Colonel Isaac T. Preston in the place ; witness thinks that Colonel Phillips must have heard the conversation related to abovedas it took’ place at the notary’s ; does not recollect that Phillips made any reply to Colonel Preston ;■ Phillips must have heard it, as the conversation was made direct by Preston to him ; and Phillips must have heard the dirfection of Preston to the notary, to insert the clause ; thinks they met at- the - notary’s at ten or eleven in the morning ; neither the plaintiff or defendant attended at any other time at the notary’s than that mentioned, nor were they present when he and Carr executed the act, nor can he say that Phillips has seen the act; there was no arrangement between him and Preston, in relation to the sale of the property. It is admitted, that the‘property was purchased by Colonel Preston, plaintiff, for $ 67,500 ; that the third note was paid by draft prior to the sale under the seizure and sale ;. the three last notes assumed by Preston are in the hands of witness ; witness has never had the mortgage raised, to secure the last three.notes.
    (Signed,) R. R. Barrow.
    Sworn to and subscribed before me, this 23d April, 1841.
    Duncan N. Hennen, Clerk.
    Upon the trial, the counsel for Phillips, the defendant, filed the following bill of exceptions : —
    1st. The defendant, by his attorney, offered to file document A as his peremptory exceptions founded in law ; to the filing whereof the plaintiff’s counsel objected, and their objection was sustained by the court; to which decision the defendant vcepts.
    This document was offered after the pleadings- were read :
    2d. Before any evidence was offered by either of the parties in support of the several issues, on their respective parts to be maintained, the defendant’s counsel moved the court that the clerk be directed to take down the testimony of all the witnessfes whom'either party should adduce on .the trial, and to file all docdmentary proof received in evidence, and keep minutes thereof; but the court overruled the motion, and witnesses were examined without their testimony being taken down,. Mid documentary proof received without being marked as filed, or minutes taken thereof; to which decision'the defendant excepts.
    3d. The plaintiff offered in evidence the deposition of Robert R. Barrow, marked B, to the reception whereof the defendant objected ; but the objection was overruled by the court, and the deposition was admitted in evidence ; to which decision of the court the defendant excepts.
    4th. The plaintiff offered in evidence the first, second, and third of the promissory notes described in the petition, together with the protests thereof, and the several certificates of the notary in relation to the manner and times in which he notified the plaintiff and defendant of the dishonor of the notes as they respectively matured. Whereupon the defendant objected to the admission of the said* certificates, or any proof adduced for the purpose, of, and leavifig-notice to the indorsers of, protest, as no such notices were alleged in the petition ; the court overruled the objection, and admitted the evidence ; and to its decision therein the defendant excepts.'
    5th. The plaintiff offered Louis T. Caire (the notary before whom the act of sale was passed that is described in the petition) as a witness to prove the allegations of the petition, and a verbal agreement between the plaintiff and the defendant, made before the passing of the act' of sale, that, as between- themselves, they would be equally liable as indorsers, as stated in the petition. And, also, to prove by him that the clause in the act of sale, setting forth said agreement, was inserted therein by the instruction of the plaintiff, in the presence of the defendant, and without any objection thereto on his part. Whereupon the defendant objected to the admission of such evidence ; but the court overruled the objection, and admitted the evidence ; and to its decision therein the defendant excepts.
    6th.' The plaintiff offered in evidence the copy of the act of sale describedin the petition, and marked (C),to the admission of which, and such parts thereof as were adduced for the purpose, and tended to prove any agreement between the plaintiff and’the defendant, - as to their equal liability between themselves, upon their several in-dorsements upon the promissory notes described in the petition, and to charge the defendant with any liability resulting therefrom, the defendant objected-but the court overruled the- objection,' and admitted the evidence ; and to such, its decision, the defendant excepts. -
    7th. The plaintiff offered in evidence the record of the suit of Robert R. Barrow v. S. John Carr, being the. order' of seizure, and sale, and proceedings therein, relating to the seizure and sale of such of the property described in the petition and act of sale, as was situated and located’' in the parish of Point Coupee, Louisiana. The said record is marked (D), to the- admission of which record and proceedings the defendant objected, but the objection was overruled by the court ;'and to such, its decision, the defendant excepts.
    8th. The plaintiff offered in evidence document marked (B), purporting to be an act of sale from the sheriff of Point Coupee, adjudicating the property last mentioned-to the plaintiff, as the purchaser at public sale ; to the admission whereof- the defendant objected, but the court overruled the objection; to which decision of the court the defendant excepts.
    The defendant, by his attorney, haying reserved the foregoing .several exceptions, as the o tcasions. thereqf. severally arose in the course of the trial, and at the suggestion of the' court; the drafting of separate, till? of exceptions-Were dispensed with* and the’general bill for the whole postponed,- till the plaintiff’s testimony was closed.
    He now respectfully presents to the court this his bill of exceptions, embracing all the several points reserved, and prays the court to sign and seal the same, which-is done accordingly.
    (Signed,) J. McKinley, [seal.]' •
    P. K. Lawre'nce. -Tseál.]

      Jlp'ril 28th, 1841. .Peremptory exceptions referred to in fill of exceptions, marked as filed, same day¡

      United States of America : — Circuit Court of the United States, being the Ninth Circuit thereof, and holden at New Orleans, in and for the Eastern District of Louisiana.

    John S. Preston v. George W. Phillips. April term, 1841.
    And now at said term came the defendant, George W. Phillips, by his attorney, and (not waiving^ but insisting on his- answer heretofore filed in this cause), availing himself of the provisions of the Louisiana code of practice in that behalf, and as' the same has been adopted by this honorable court, he here presents his peremptory exceptions, founded in law, to the further maintenance of this suit.
    And for causes of peremptory exception, he sets forth and assigns the following, to wit.: —
    1st. The agreement stated in the petition to have been entered, into by the plaintiff and defendant is nowhere alleged to have been in writing, or signed by the parties, or embodied in any instrument of writing to which they were parties, or' to which they, or either of them, assented, by their presence_qr otherwise, at the time of the execution of any such instrument of writing, by those who may have been parties thereto.
    2d. The petition in no part alleges any, or a. sufficient, consideration for the said supposed agreement, nor does it allege or show, that the said agreement imported in itself any, or a sufficient, consideration.
    - 3d. The said supposed agreement is at variance with, and in contradiction of, and seeks to change, the liabilities and relations of the plaintiff and defendant to each other, in relation to certain contracts in writing, to which the petition alleges they are parties, by respectively signing their names on the backs of six several promissory notes, as first and second indorsers thereof.
    4th. The' petition, in no part of it, alleges that either the plaintiff or the defendant were duly notified of the dishonor of any of the said promissory notes, which it alleges to have been protested for non-payment, as they severally matured, nor does the petition show in what manner the plaintiff was, or could have been, coerced to make the several payments he alleges he has made.
    5th. All the statements and allegations of the petitions in reference to any agreement or circumstance, out of which any lia- . bility of the defendant to the plaintiff is supposed to arise,'are loose, vague, arid indefinite, and insufficient in law. to put the parties to their proofs upon the several issues of fact .whicli -the pleadings' present.
    Wherefore, and for divers other good' reasons in this behalf, the defendant prays judgment of this honorable court upon the' said petition, and the dismissal thereof, with a further iudgment for costs in this behalf most unjustly sustained.
    (Signed,) Janin & Bartow,

      Defendant’s attorneys.

    And afterwards, to wit, on the '29th day of April, 1841, the following motion in arrest of judgment was filed.

      United States of America :— Circuit Court of the United States, holden at New Orleans, in and for the Eastern District of Louisiana.

    John S. Preston v. George W. Phillips. April term, 1841.
    And now comes the defendant, by his attorney, and prays the court to arrest the judgment in this'case, and sets forth and assigns ■ as grounds for the motion : —
    1st. That the plaintiff’s petition does not allege that the agreement described therein, and out of which the defendant’s liability is supposed to arise, was signed by- either plaintiff or defendant, or that the same was in writing.
    2d. The petition does not allege any, or a sufficient, consideration for the agreement which it states to have been entered into by the defendant, to and with the plaintiff.
    3d. .The agreement stated in the petition is at variance with, and in contradiction of, the contract of indorsements, which arises from the signatures of.plaintiff and defendant as first and second indorsers, upon several promissory notes, which the petition alleges they signed as such.
    4th.' There is no allegation in the petition of notice or notices being given, either to plaintiff or defendant, of the dishonor or protest of any one of the said promissory notes, as they respectively matured.
    5th. The evidence adduced at the trial, as shown by the statement of facts, and the several documentary proofs to which it makes reference, is not sufficient in law to support the issues on the plaintiff’s behalf to be maintained, or to authorize any judgment in favor of the plaintiff, and against the defendant.
    6th. A trial of this cause by the court, and without the intervention of a jury, unless there had been an express waiver of record, is not authorized by the law regulating the practice of this court.
    Wherefore, the defendant prays that the judgment be arrested, that the plaintiff take nothing by his plaint, that his petition be. dismissed,.and that the defendant may go hence without day, and recover of the plaintiff his costs in this behalf most wrongfully sustained.
    (Signed,) S. Barton, Defendant’s attorney.

    On the 29th of April, 1841,-the court entered up.judgment in favor of thr plaintiff, John S. Preston, and against the defendant, George W. Phillips, for the sum of $ 19,688.74, with interest of five per centum per annum upon $9,567.62 thereof, from the 4th day of March, 1839 ; and upon $ 10,121.12, from the 4th day of March, 1840, till paid ; for $5.25, cost of protest, and costs of this suit.
    This judgment was for one half of the note due March 1, 1839, and one half of the note due March 1, 1840, . viz. :
    Amount of judgment, . . . $19,688 74
    Note due l-4th March,' 1839, $19,135 25 One half of which is. ... 9,567 62
    Note duel-4th March, 1840, $20,242 24 One half of which is .... 10,121 12
    $19,688 74
    The defendant’s counsel moved an arrest of judgment, upon the grounds just stated, which motion was overruled.
    To review all these opinions of the court, the case was brought up to this court.
    The cause was argued by Mr. Barton for the plaintiff in error, who contended, that if Preston obtained the.notes from Barrow by substitution, then the plea to the jurisdiction of the court must be sustained, because Barrow and the original defendant, Phillips, were both citizens of Louisiana. 4 Dali. 8, 10, 11.
    Until paymeñt of the note, there is no claim against the present indorser. 4 Cranch, 46.
    By the -law of Louisiana, peremptory exceptions are taken to matters of fact or matters of law, by way of demurrer. Code of Practice, art. 343 — 346.
    The court was wrong in refusing them. Act of 1824 ; 4 Statutes at Large, 62.
    An appellate court may admit the exceptions, and go on to decide the case. Code of Practice, 902 ; 1 Louisiána R. 315 ; 4 Martin, (N. S.) 437-
    Barrow did not record the deed, and therefore a younger judgment came in. It was sold when three notes only were paid. When Preston got it, there was nothing due upon it.
    • Parol evidence cannot be introduced to vary a written contract. Civil Code, 2256 ; 1-Martin, (N. S.) 641.
    The'first indorser is always supposed to assign to the second for a valuable consideration. 2 N. S. 361, 367 ; 3 ibid. 692 ; 5 ibid. 3 ; 2 Louisiana R., 48, 447, 448 ; 3 ibid. 692 ; 4 ibid*. 469 ; 6 Martin, (N. S.) 517.
    In order to be bound by an act before a notary!, the party concerned must sign. 11 Martin, 453.
    The first indorser is liable, and must pay notwithstanding the existence of an Understanding. 4 Wheat. 174 ; 1 Peters’s C. C-. R, 85 ; 6 Peters, 59.

      Presión-took renewed notes, and. thereby extinguished Phillips’s liability. For the doctrine of novation, see New Civil Code, art. 2181,2187, 2194 ; 2 Martin, (N. S.) 144 ; 1 Louisiana R. 527 ; 4 ibid. 511, 512 ; 1 Robinson, 302, 303 ; Code of Practice, 642, 680, 732, 745.
   Mr. Justice WOODBURY

delivered the opinion of. the court.

- The points - which have been argued in this -case are in part connected with matters of form, and in part with what is substance. We shall dispose of the first, before proceeding to examine the last.-

The principal objection in respect to form is, that the court be-lo.w refused to receive what are called in the practice of the State of Louisiana “. peremptory exceptions.” These are of two kinds, one as to form; and one as to law. Those in this cáse were.offered as ££ peremptory exceptions, founded in law.” By the Code of Practice in Louisiana, art. 345, such exceptions ££ may■ be pleaded in every stage of the action previous to. the definitive judgment.” 1 Louisiana R. 315 ; 4 Martin, (N. S.)' 437. •

' Hence, though offered here after the pleadings were read, they are admissible, while peremptory exceptions relating to form would not be then admissible. See art. 344. The only doubt as to their being duly offered arises from the provision in the 346th article, which requires them to ££ be pleaded specially,” and they are not here in the precise' form of a special plea at common law.. But, in the absence of any adjudged cases to the contrary, we are inclined to think, that, under the liberal and general pleading in usé in Louisiana, these exceptions must be considered as ££ specially pleaded,” when set forth as they were here in writing, and in a specific or detailed form, and judgment prayed on them in favor of the present plaintiff. Has he then been deprived of the advantage attached to them ? That is the important inquiry. On examination of the record it will be seen, that "he had the benefit of all .these exceptions, first in a motion in arrest of judgment.

Again, he had the benefit of all the important matter in those exceptions by the bill which was afterwards filed and allowed, and upon which this writ of error has been brought. We cannot, therefore, perceive that he has suffered any by the refusal of the court to receive these peremptory exceptions when first offered.

The case in' this respect is like one- at. common law, where the. defendant should propose to demur generally to the declaration, but, being refused, objects to the sufficiency of it to cover various portions of the evidence as it is offered, and also objects to the sufficiency jpf the declaration in arrest of judgment. He thus, by a 'subsequent!-bill of exceptions to the rulings on the testimony and on the •sufficiency of the declaration, obtains every advantage that he could have had under'his general demurrer, and thus suffers nothing which requires .a reversal Of the'judgment and a new trial for. his relief/

The next objection of a formal character is, that the court below refused, though requested by the original defendant, to have the clerk take down in writing and file the testimony of the witnésses and the documentary evidence.

It is true, that by a statute of Louisiana, passed July 20th, 1817, their courts are directed to have the testimony taken down in all cases where an appeal lies to the Supreme Court, if either party require it.” It is also true, that an act of Congress, passed May. 26th, 1824 (4 Statutes at Large, 63), has made the practice existing in Louisiana the guide to that in the courts of the United States, when sitting in that State, except as it may be modified by rules of the judge of the United States court.

And it is further shown in this record, that the district judge there, November 20th, 1837, adopted the practice of Louisiana, as then existing, in all cases not of admiralty jurisdiction.

In a cause once decided by this court, which wag connected with this point, Wilcox et al. v. Hunt, 13 Peters, 378, it was remarked, that the plea put in there as a part of the. State practice, as the latter had not been adopted, was not received. But the practice there standing differently from that which is urged in this case, that decision does not control the present one.

In considering, then, the propriety of the ruling of the court here, it is first, to be noticed, that, by the words of the statute, this tésti-mony is to be taken down and filed only in those cases “ where an appeal lies.” That means, of course, a technical appeal, where the facts are to be reviewed and reconsidered, for in such an one only is there any use in taking them down. But in the present case no appeal of that character lay to this court, but merely a.writ of error to bring the law and not the facts here for reexamination. To construe the act of 1824 as if meaning to devolve on this court siich a reexamination of facts, without a trial by jury, in a case at law, like this, and not one in equity or admiralty, would be to give to it an unconstitutional operation, dangerous to the trial by jury, and at times subversive of the public liberties. Parsons v. Bedford et al., 3 Peters, 448.

In a case of chancery or admiralty jurisdiction it might be different, as in those, by the law of the land, a technical appeal lies, and the facts are there open to reconsideration- in this court. Livingston v. Story, 9 Peters, 632; McCollum v. Eager, 2 Howard, 64.

In this case, likewise, it would be totally useless to have all the facts taken down in that manner, because, if so taken and sent up here, it would be irrelevant and improperly burdening the record, as much as the whole charge and opinion of the judge, instead of the naked points excepted to. See 28th rule of this court, and Zeller’s Lessee v. Eckert et al., 4 How. 297, 298. If a case comes up in that manner, this court never reconsiders or reexamines all the facts', but merely the law arising on them, as if a bill of exceptions had been properly filed.. This has been decided already in Parsons v. Armor et al., 3 Peters, 425; Minor v. Tillotson, 2 How. 394.

Beside these considerations, showing that neither the words of the statute, nor the reasons for it, reach a case like this, there is another, in the practice and laws of Louisiana, which shows that this provision does not extend to a cause like the present in this court. There the court of appeal, even in cases at law, often decides on all-the facts as well as the law; but not so, here.. The court there máy be substituted for a jury by consent of the parties in a trial at law, and were in this case below. But no such power can be conr ferred on this Supreme Court by parties in cases át law ; and, as before shown, it exists under acts of Congress merely in cases in equity and admiralty.

To conclude on .this point, then, it will be seen' that the plaintiff in error, notwithstanding die refusal to have the clerk take down this evidence;, has enjoyed all the benefit of it under his bill of exceptions, where it was material and he wished to raise any question of law on it, and has enjoyed it as fully as if the whole had been taken down and filed. And thus he loses nothing and suffers nothing by the court refusing to do what we think neither the language nor spirit of the law requires in a case like this. Parsons v. Bedford, 3 Peters, 433.

There are two other objections of form, which appear on the record and may well be noticed, though they are not embodied in the bill of exceptions. One is as to the waiver of a trial by jury in-this case in the court below. After a hearing there, it was urged, that, the waiver not having been entered on the record, the court was not authorized to proceed without a jury.

But it would hardly be permissible for a party to proceed without objection in a trial of facts before the court, in a case at law in a State where the statutes permitted it, and the habits of the people under the civil law inclined them to favor it, and then, after a decision- might be- announced which was not satisfactory, to offer such an objection as this. From its not being incorporated into the bill of exceptions, or argued at the hearing before us, a strong presumption arises that it has been abandoned.

The other objection is spread upon the early part of the record, anji was a proper one for the consideration of the court- in that stage of the case, as it went to its jurisdiction. This was urged on the ground, that- the notes mentioned in the petition of the plaintiff below belonged or ran originally to R. Barrow, a resident of Louisiana, in the same State with the defendant, and that his title was assigned to the plaintiff, and thus the latter cannot sue the defendant in this court, if Barrow could not. This position would be well taken under the provision in the 11th section of the Judiciary Act of 1789, if the original .plaintiff had instituted his suit upon the notes as assignee of them. See Towne v. Smith, 1 Wood. & Min. 115; Bean v. Smith et al., 2 Mason, 252; 16 Peters, 315; Stanley v. Bank of North America, 4 Dall. 8—11; Montalet v. Murray, 4 Cranch, 46. But so far from that, he does not declare at all on the notes. He sets outr a separate and different contract as his ground for recovery, resting on an original' agreement between him and the defendant: and does not set out any assignment, of those notes to himself by Barrow. Even if he counted on -the notes, but not on oY through an assignment of them, this court would have jurisdiction. 6 Wheat. 146; 9 ibid. 537; 2 Peters, 326; 11 ibid. 801; 3 Howard, 576, 577; 1 Mason, C. C. 251; 1 McLane, C. C. 132. The judge below, then, properly overruled this objection.

We come next to the only remaining question in this case, which branches into five or six different exceptions. If is a question of substance, and’ in some Yespects is not without difficulty. It-is whether the ground upon which the objection going to the jurisdiction was overruled is well founded in the declaration and the facts, by showing a separate and independent contract, and'one which had a good .consideration in law.

On looking to the petition, it will be seen that it sets out a sale of land between other parties ;'the mode of payment stipulated ; the agreement between the plaintiff and defendant to become indorsers of certain notes, .and divide between them any loss ; the subsequent failure of the purchaser to pay the notes ; the settlement of them by the plaintiff, and his right under the agreement and facts to recover of the defendant one half of the amount. The whole claim proceeds on the collateral agreement, and there is no pretence of grounding the suit, as holder or indorsee,.on any promises contained in the notes, or in the indorsements on them.

There is also a good consideration for this collateral agreement. It is the promise of the plaintiff beforehand to loose one half, if'the defendant would become a surety with him and loose the other.half, and the actual payment ■ afterwards of the whole by the jfiaintiff. Being then a collateral agreement by parol, which is sued, it stands free from the objection to the parol evidence offered to. prove Jt, Were the action on the notes, and this evidence offered to contradict them, it would be entirely different; because, in an action on a note, parol testimony is not competent to vary its written terms' and probably not to vaiy a blank indorsement by the payee from what the law imports. Civil Code of Louisiana, art. 2256; Stone et al. v. Vincent, 6 Martin, (N. S.) 517; 15 La. R. 539; 10 ibid. 205; 1 Peters’s C. C. R. 84; Bank of the United States v. Deane, 6 Peters, 59; 3 Camp. N. P. 56, 57; 9 Wheat. 587; 1 Martin, (N. S.) 641; Chitty on Bills, 541; 12 Eas, 4; 4 Barn. & Ald. 454. So, between the contracting parties, likewise,, all prior conversation'is supposed, as far as binding, to be embodied into the written contract. 4 Louisiana R. 269; Taylor v. Riggs, 1 Peters, 591: 8 Wheat. 211. But the parol evidence here is not offered in any action on the note, or to alter its terms or its indorsments ; nor is any prior or contemporaneous conversation offered to vary the note, or its indorsement, in an action founded o.n either of them. But it is offered to prove a separate contract, which was made by parol, and is of as high a character as the law requires in such cases, and this evidence is plenary and entirely satisfactory to substantiate the separate contract. It is true, at the same time, that, after a prior indorser has paid a note, he cannot recover, even in an action, not on it, but for contribution of one half frórr- a second indorser, if they were not in fact joint sureties, nor in fact made any collateral contract whatever, nor in fact had any communication whatever as to their liability. McDonald v. Magruder, 3 Peters, 474; 3 Harris & Johns. 125; 7 Johns. 367.

But the present is a case differing, toto calo, from that. Here, by a deliberate arrangement before a public notary, and by the positive evidence of two witnesses, the two indorsers were co-sureties, and specially agreed to bear any. loss equally between them ; and the right to recover is, therefore, entirely clear. 3 Peters, 477; Douglass v. Waddle, 1 Hammond, 413, 420; Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270.

, There are two or three other views, connected with this part of the case, which may be usefully adverted to, but by which we do not decide it.

Thus, where a person like Phillips, the original defendant, was not a party to a note, but put his name on the back of it, parol testimony has been deemed competent to show the real object for which it was placed there ;\and especially if it did not contradict any legal implication from the name being there. And hence," under circumstances like these, where, as in Louisiana and some other States, it is implied by law that such a person puts his name there as a surety or guarantor, no objection exists to parol proof to. that effect. 10 Louisiana R. 374; Lawson v. Oakey, 14 ibid. 386; Nelson v. Dubois, 13 Johns. 175; Dean v. Hall, 17 Wend. 214; 5 Mass. R. 358; 12 ibid. 281; 1 Vermont R. 136; Ulen v. Kitteridge, 7 Mass. R. 233; 4 Wash. C. C. R. 480; 5 Serg. & Ruwle, 363. In White v. Howland, 9 Mass. R. 314, he is held to be liable as if signing with the maker as a surety. But however much, in some States, the practice may go beyond this in suits between the parties to the agreement, as in 1 Hammond, 420, and 5 Serg. & Rawle, 363, it could generally not be.competent to-prove any thing by parol, in actions on the note, contrary to what is written or to what is implied in law. Bank of the United States v. Dunn, 6 Peters, 59.

And in other States and in other circumstances, where the inference of law is not that such a name is placed-there as a surety, it is very doubtful whether, in a suit on the note, proof that he did it only as a surety is competent. 6 Martin, (N. S.) 517; Bank of the United States v. Dunn, 6 Peters, 59.

In England, in the case of such a name on the back of a bill of exchange, the person may be treated as • a new drawer (Chitty on Bills, 241) ; and if thé payee there has also ihdbrsed the note, the implication deemed most proper is, that another' name on the back is that of a second indorser, and should so be held in the hands of third persons. Chitty on Bills, 188, 528; Holt’s Nisi Prius, 470; 5 Adolph. & Ellis, 436; 6 Nev. & Man. 723. So, 6 Martin, 517. It will be seen, however, that these last are generally cases of actions on the notes or bills of exchange themselves, while the present case is not brought on the note itself, but on a distinct and collateral contract.

Another suggestion bearing on the case might be, that in Louisiana the surety, when paying, may step into the shoes of his creditor, if he pleases, by subrogation, and enjoy all his rights against the debtors or other sureties. Hewes et al. v. Pierce, 1 Martin, (N. S.) 361; Calliham v. Fanner, 3 Rob. (Louisiana) 299; Civil Code of Louisiana, art. 2157. But there the suit is probably in the creditor’s name, and not, as here, in that of the surety. So, in some countries where the civil law prevails, such a contract as this, deliberately made before a notary, and by him reduced to writing by request of the parties, would in law be deemed equivalent to a contract in writing ; and on that ground be admissible even in a suit on the note between the original parties to it.

The doings of the parties thus have a sort of public form given to them, quasi judicial, and they are -bound by them, though not signed by the parties. 2 Domat’s Civil Law, b. 2, tit. 1, § 1, art. 28, and tit.'5, § 5, pp. 661, 662. . It would be there deemed an act of too much deliberation by the parties, and of too much formality before that public officer, to be treated merely as an ordinary verbal arrangement. Coop. Justinian, 586 ; 3 Burr. 1671; Story on Bills, § 277. But, though the Louisiana code, founded chiefly on the civil law, may not expressly abrogate such a doctrine, it does not in terms make records by a notary valid, unless signed by the parties,’ or consisting of copies of papers signed by the parties and acknowledged before witnesses. Civil Code, art. 2231,2413 ; 8 Martin, (N. S.) 568 ; 10 Louisiana R. 207, 354.- And though the paper containing this is signed by the parties to the sale and attested by witnesses, it is not signed by Preston and Phillips, the parties to this arrangement.

It is not necessary, however, to decide absolutely on the effect of either oí these last views. Deeming the action here tó be founded on the collateral agreement, and deeming the evidence offered to be competent, for the reasons first stated under this head, these conclusions will virtually dispose of the last six exceptions contained in the record of this case.

Thus, as to Barrow’s deposition, the admission of which was the grofind of one of these exceptions, it is clearly competent to protm this separate parol contract in a suit on that, and not on the note. So, the certificates and notices, also excepted'to, were properly proved as a part of the collateral transaction under the general expressions in' the petition, and not as notices that should be specially set out in a declaration, where ’ notes are counted on by a holder. In a case like that, the averment of them and the proof are highly material, but in' the former case they are rather historical and merely a part of the res gestee, without its being essential to give them in detail. The original plaintiff avers in the petition that the notes were protested, and that he was obliged to pay them, which would not have been the case without due notices ; and this is quite enough in an action on a collateral undertaking.

So, the notaiy’s evidence, which is another of the exceptions, becomes under this aspect entirely competent, and the written 'memorandum made' by him at the time, which is another objection, was also admissible evidence to refresh his memory, if not per se of the facts stated.in it. Greenleaf's Ev. §§ 436, 437. That, it was admissible to refresh his memory, see Smith v. Morgan, 2 M. & Rob. 259; Horne v. McKenzie, 6 Cl. & Fin. 628. Other cases say such a memorandum is admissible itself to go to the jury. Greenl. Ev. § 437, note; 1 Rawle, 182; Smith v. Lane et al., 12 Serg. & Rawle, 84; 2 Nott & M’Cord, 331; 15 Wend. 193; 16 ibid. 586 — 598. If this last be a rule controverted, the writing here was the act of sale,” and contained other matters as to the .transaction in connection with this as the whole terms of sale, which were clearly competent, and the whole properly, went together to the jury as exhibiting the progress and character of the transaction, beside being admissible to refresh the memory of the witness. Bullen v. Michel, 2 Price’s Ex. R. 422, 447, 476.

So, the evidence of the sale of Carr’s property and of the transfer of it to the original plaintiff, Preston, by the sheriff, and the terms of the transfer, though objected to, are mere links in the chain of the transaction, ánd unexceptionable in that view; and were, like the evidénce of the former sale to Carr by Barrow, duly authenticated.

Upon the whole case, then, we are happy to find that no legal objection seems to be tenable.against making the original defendant meet an engagement which, on the record, he appears to have been bound in honor and justice, no less than law, faithfully to discharge. Although the court have deemed it proper thus to deliver an opinion on this case, as it has been argued by the' counsel for the plaintiff. in error, yet the death of the plaintiff has'since been suggested ; and no appearance is entered for the defendant. We shall not, therefore, enter judgment in conformity to the. opinion until the defendant or the representatives of the deceased appear.


author: Mr. Justice McLEAN

text:
    James Innerarity, Plaintiff in error, v. Thomas Byrne.
    A citation is not necessarily a part of the record, and the fact of its haying been . issued and served may be proved aliunde.

      Mr. Bagby

    moved to dismiss the writ of error in this case for the want of a citation. None appeared in the record.
   Mr. Justice McLEAN

delivered the opinion of the court, saying, that the citation was not necessarily a part of the record, it forming no part of the proceedings of the court below. The presumption is, that one was issued when the writ of error was allowed, and it may be proved aliimde.

Motion overruled, and case continued to next term.