author: . Mr. Justice GRIER

text:
    John C. Sheppard and others, Plaintiffs in error, v. John Wilson.
    The statutes of Iowa provide a mode for taking-bills of exceptions, by directing that they shall be tendered to' the judge for his signature during the progress of the trial, although judges may, and often do, sign bills of exception, nunc pro tunc, after the trial.
    Such is also the English practice under the Statute of Westminster 2, and such is the practice recognized hy this court.
    Therefore, where a bill of exceptions was signed two years after the trial, the Supreme Court of Iowa were right in striking it out of the record.
    Where, after verdict, a motion was made for a new trial, which was held under a continuance, and an entry was afterwards made that the motion was overruled, and judgment entered on the verdict, but, at the time of such entry and judgment, the court was not legally in session, it was no error in the court, at a subsequent and regular term, to treat the entry thus irregularly made as a nullity, to decide the motion,-and enter up judgment according to the verdict.
    The difference between this case and that of the Bank of the United States v. Moss (6 Howard, 31) pointed out.
    A continuance, relating back, may be entered at any time, to effect the purposes of justice.
    This cause was brought up by writ of error from the Supreme Court of the Territory of Iowa.
    It was an action commenced in the District Court of Scott county, in .the Territory of Iowa, by Wilson against Sheppard and others, for a breach of a contract for hiring a steamboat. It is not necessary to state the facts in the case, of any other circumstances than those upon which the decision of this court turned.
    On the 7th of October, 1841, the cause came on for trial in the District Court of Scott county, when the jury found- a verdict for the plaintiff; and assessed his damages at $ 1,837.50.
    A bill of exceptions, containing a recapitulation of the evidence upon both sides and sundry prayers to the court, is found in its proper place in the record; but the date of its signature by the judge is the 21st day of December,’1843, whereas the trial took place in October, 1841.
    A motion for a new trial was made by the counsel for the defendants upon several grounds, which it is not necessary to specify.
    In April, 1842, the court commenced in Scott county on the 4th, and in Clinton county, in the samé district, on the 11th. But on- the 12th of April, whilst the court was in session ip Clinton county, the following entries were made in Scott county: —
    John Wilson v. John C. Sheppard et al. —Assumpsit.

    And now come the parties by their attorneys, and the defendants move for judgment on the motion for a new trial, made and argued at the last term of this court in this cause, and held under advisement until the present term.

      Judgment.

    It is considered by the court, that said defendants take nothing by their said motion; and thereupon the plaintiff moves the court for "judgment upon the verdict rendered by the jurors aforesaid at the- last term of this, court in this cause. It is therefore considered by the court, that the plaintiff recover of the defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages aforesaid in form aforesaid assessed, besides his costs by him about his suit in this béhalf expended, and that execu ion issue therefor.

      Appeal granted.

    And thereupon, the said defendants, by their attorney, pray an appeal, which was allowed.
    Whether or not this appeal prevented the District Court of Scott county from correcting the erroneous entry was one of the questions before this court.
    ' At October term, 1842, the following proceedings took place in the District Court of Scott county: —

      Plaintiff’s Motion for Judgment1.

    And- afterwards, to wit, on the third day of October, in the year of our Lord 1842, the said plaintiff filed in the court aforesaid the following motion -for judgment in this cause, to wit: —
    Wilson v. Sheppard and others.
    And now, at this day, October, term, 1842, comes the said plaintiff, by Mitchell & Grant, his attorneys, and moves the court to enter up judgment in this cause, as of the last fall term of this court. Mitchell & Grant, for Plaintiff.

      Second Judgment.

    And afterwards, to wit, on the 7th day of October, in the year last aforesaid, the following1 proceedings were had, to wit: —
    Wilson v. Sheppard and others. — Assumpsit.
    This day came the said plaintiff, by his attorney, and it- appearing to the. court, that, át a previous term of this court, to wit, the October term, 1841, the issue previously joined in this cause was submitted to a jury, who, after hearing the evidence and arguments of counsel, returned' into court the following verdict, to wit: they find the issue for the plaintiff, and assess his damages at thp sum of eighteen hundred and thirty-seven dollars and fifty cents.

      Appeal prayed by Defendants.

    Whereupon, a motion was made by the attorney for defendants for a new trial herein, which motion was, at said October term, taken under advisement by the court; and it further appearing to the court, that this court has not at any time since decided said motion, but that said motion was continued under advisement until the present term, that the order of continuance at last term was not entered of..record. It is therefore ruled, that said order of coñtinuance be entered “ nunc pro tunc ” ; and the court, having - now fully considered the said •motion for a new trial, doth overrule .the . samé. And it is further considered by the court, .that the plaintiff have and recover of and from the said defendants the said sum of eighteen hundred and thirty-seven dollars and fifty cents, his damages in manner and form aforesaid assessed, together with his costs by him about, his suit in that behalf expended, and that a special execution against the property attached issue therefor; thereupon the defendants prayed an appeal to the Supreme Court.
    To this judgment of the District Court, the counsel for the defendants took a bill of exceptions, with a view to carry the case tip to the Supreme Court of Iowa.
    In January, 1844, the1 case came before the Supreme Court-of Iowa, when the counsel for Wilson moved to strike from the record, and reject from the consideration of the court, the bill of exceptions filed and dated in December, 1848; which motion the court sustained.
    The counsel for Sheppard then moved for a mandamus, directed to the judge of the District Court, of Scott county, requiring him to sign and seal, nunc pro time, the bill of exceptions tendered on the original trial. But- the court refused to grant the mandamus.
    After some other proceedings, which it is not necessary to , state, the Supreme Court of Iowa, in January, 1845, affirmed the judgment of the District Court of Scott county.
    To review this affirmance, a writ of error brought the case •up to this court.
    It was argued by Mr. Clement Cox and Mr. Learned (in-print), for "the plaintiffs in error, and by Mr. Grant, for the defendant.
    The counsel for the plaintiffs in error assigiied twelve causes of error, the last six of which are as follows : —
    7th. The court erred, in entering an order for a continuance of this cause, nunc pro tunc, on motion therefor, at the October term, 1842, and in rendering a judgment upon the verdict of the jury at said term, upon a mere motion of the plaintiff.
    8th. The court erred, in rendering a judgment at the,October term, 1842, the second judgment in this record, after a writ of error had been sued out and served, and made a supersedeas by the allowance of a judge of the Supreme Court, which was then pending.
    9th. The Supreme Court erred, in expunging from the record the defendant’s bill of exceptions, tendered at the trial of the cause before thé Distriot Court of Scott county.
    10th. The Supreme Court erred, in refusing the writ of mandamus, on the motion of. the plaintiff in error, to the judge of the District Court of Scott county, requiring the said judge to sign and seal, nunc pro tunc, the bills of exceptions tendered at the trial of this cause before the District Court, by the defendants below, or show cause against the said motion.
    11th. The said Supreme Court erred, in reversing the judgment of the District Court, rendered upon the verdict of the jury on the 12th of April, 1842, on the ground that the supersedeas bond did not appear in the record with the writ of error.
    12th. The Supreme Court erred, in affirming the judgment of the District Court, rendered on the 7th of October, 1842, being fhe second judgment rendered in said cause, and which said judgment was rendered when a writ of error was pending, and after the cause had been removed thereby from the jurisdiction of said District Court.
    The argument on behalf of the plaintiffs in error, upon the above points, was as follows.
    We will now examine~the 7th and 8th errors assigned, as they are connected in substance, and inquire what this, first, judgment of April was in its character.
    Suppose the plaintiffs in error had acquiesced in this judgment, and ha,d not taken any steps to have it reversed, could not the plaintiff below have enforced his judgment? . Was it not a final judgment in the cause, conclusive on its face, upon the parties to it, upon the subject-matter embraced in the, suit ? Suppose the plaintiff below had issued his execution, levied it upon property, and sold the same. in. satisfaction of the judgment, while the judgment remained unrevérsed, and without any supersedeas to restrain its operations, could an action have been maintained against the officer for levying upon, taking, and- selling the defendants’ property in satisfaction of the judgment debt ?- We say it could not; and the defendant in error thought so, too, for he did issue his execution upon this judgment, which appears by the records, and the officer made his full return thereof before the writ of error to reverse the judgment was sued out. In 6 Peters, 8, the Supreme Court decide, — “ If execution issue upon an erroneous judgment, the party who acts under it is justified until it is reversed, for it is the act of the court.” So in 9 Petera, 8, the court say, — “A judgment of a court of competent jurisdiction,” ( which' means, I suppose, a court having a legal jurisdiction of the subject-matter of the suit,) “while unreversed, concludes the subject-matter of it between the parties to it.” In 3 Cranch, 300, the court decide, that “ a judgment of a court of competent jurisdiction, although obtained by fraud, has never been considered void, and all acts done under such judgments are valid as respects third persons.” Such judgments, then, by these authorities, would protect the sheriff acting under the. authority of an execution to enforce them. Such is the case of the first judgment rendered in this cause, as the record will show. Again, in 3 Dallas, 401, the court gay, that “ although a judgment, of an inferior court be defective, yet, if in its. nature it is final, and one on which an execution can issue, the party is entitled to his writ of error.” This judgment of the 12th of April,-. 1842, was not only final by its terms, but it was one bn which an execution could issue, — one on which the plaintiff below did actually, issue, and have a legal return of his execution, and one on which we were entitled to a writ of error. We obtained our writ of error, and made it a supersedeas, as the record proves.
    The court erred, then,.in rendering a judgment at the October term, 1842, in this cause, after a writ of error had been sued out. and was pending, and which was made a supersedeas to the former judgment by allowance of a judge of the Supremie Court. ' We contend that the writ of error was a supersedeas, and stayed all proceedings of the District Court upon this judgment after its date; that the District Court was, from that hour, held in abeyance in relation to the whole cause and every matter connected with it, until the writ of error was disposed ,of in the appellate court. For this point I refer to 1 Blackford, 483, where the court say*■— “A writ of error is a supersedeas, so far as to stay all proceedings until the writ of error is disposed of.” If this be law, — and the books are full of similar'decisions,-- then we say, that the .District Court , of Scott county had no power, at the October term, 1842, nor at any subsequent term, to render the second judgment in this cause, which was brought there -to be reversed by. the second writ of error appended to the record, even if the cause was otherwise open for the action of the court, and- a judgment might have1 been legally rendered at that term.; - But I contend that the District Court had no power or legal authority to alter or amend a final judgment, at a subsequent term after it is rendered. It can only amend as to.mere form. We refer the court to 1. Ohio Reports, 375, where this doctrine'is fully laid down,- also to 2 Ohio Reports, 32, and 3 Ohio Reports, 306. In both of these last cases, the same principles are decided. In 2 Washington’s C. C. Rf 433, the court de1 cide, that, “ where there is error in, entering a judgment, the court, at a subsequent term; cannot set it aside, unless ft'Was entered by misprision of the clerk, by fraud!” This is a strong case, from high authority, and is as directly in point, it'seems to me, as language can make a case. In 3 Marshall’s Ken. Rep. 268, the court say,- “ A court possesses no power, at a subsequent .term, to modify, set aside, or alter, on motion, a judgment of a. previous term. This proceeding must be by writ of error.” ' In the case at bar; the court not only set aside a final judgment rendered at a preceding term, but in defiance of a writ of error issued to reverse that judgment; . and this was done on the motion of the party who voluntarily asked to have the erroneous judgment, as he termed it, rendered.
    In 1 Greenleaf, 369, the court decide, that “ the judgment of a court of competent jurisdiction cannot be áffected by entries on the record, except upon a writ of error.” How much less, then, should an entire, judgment be annulled, however erroneous it • may be, and a" new judgment' entered at a subsequent term, upon a mere motion, and without any rulé for the"opposite party to show cause against it, as was the case at bar. It is decided in 1 Blackford, 168, that. “ a grant erro- ■ neously made, until it is reversed, is a bar to a suit.” The reasoning, from all these authorities, seems to me to be this, — that an act done by legal authority, appearing on its face to have been correctly done, however erroneous, can only be corrected. in a legal manner, and by the proper tribunal in whom the law has vested the power to correct the error complained of.
    We contend that .the court had no power, at the October term, 1843, to enter, any judgment whatever in this cause; that the court had not then any jurisdiction over it. The cause, had been discontinued from the docket of the court, and could not be brought' before the court again, either by motion or by any other process, but by a writ of procedendo from the Supreme Court, reversing the judgment of April upon a writ of error. After the judgment of April, the case was no longer .on the docket of the court, and the court had no authority to én-¡ ter a continuance, nunc pro tunc, to regain a jurisdiction over, the cause, when its judicial functions had ceased to exist in relation to it. As well might the court docket a new cáse, nunc pro tunc, with all its previous proceedings made out in form, and proceed to render a judgment upon motion, without a rule to the . opposite party to show cause against it, as to do what appears by this record was done, so. far as either proceeding would be justified by the law. For an authority that there, was a discontinuance of this cause, and that the District Court, could not again assume any jurisdiction over it, except the case had been remanded from the Supreme Court, I refer the court to Graham’s Practice, 493, to 8 Petersdorff, 387, and the. cases there referred to. In the first case, where a venire was returnable on the first day of the term, and the distringas was dated the day after, the court held it to be a discontinuance, because every process must be tested on the day it is awarded. Here there w§!Sra space of one .day, when the court had no jurisdiction over the case, and it was adjudged a discontinuance. In the case at bar, there were six months when the court had no jurisdiction over the action, and execution had been issued and returned, and a writ of error was pending; yet the court resumed a jurisdiction, entered a continuance contrary to the fact, when the case was never intended'to be continued in contemplation of law, and rendered a judgment. So, in 8 Petersdorff, No. 13, 390, the court say, — “ There is a discontinuance, because the action was not regularly continued from term to term.” Here, in the case at bar, the record shows that there was not any continuance of the cause whatever. In No. 15, same page, the court say, — “ On a writ of error, if a continuance be not alleged, it shall be intended a discontinuance, for it is so in fact.”
    Hów the court could preface their second judgment by the declaration, that no judgment had been rendered .on the verdict, when the first judgment "was staring it in the face, is, to me, inconceivable. It is something more than a legal fiction.
    We think the Supreme Court erred, in rejecting the bills of exceptions referred to in the 9th error assigned. In the statute of' Iowa of January 25th,- 1839, section 19, entitled “ An act regulating practice in the District Courts,” <fcc., page 375, will be found the law of the Territory relating to bills of exceptions. The statute simply requires that they should be reduced to writing during - the progress of the trial, The other provisions of the statute are not material to this cause. This was done in our case. See the transcript, page 24. The bills were prepared during the progress of the trial; they were then-reduced to writing, as the exceptions arose. The counsel not agreeing to all the facts stated in the bills, they were submitted to the court for correction, in its discretion, according to the facts, and to sign,' seal, and deliver them into the office of the clerk, with the papers in the cause, in the event that the motion for a new trial, held "under advisement, should not prevail. The court mislaid the bills, but never refused to sign them. At length they were found, signed, and returned, as seen by the record. The Supreme Court rejected them because they were not filed in time.
    We hold it to be both law and universal practice, that when any- controversy arises between parties, in settling a bill of exceptions, an application can only be made to the court to correct "the bill, according to the facts, which the court is always presumed to possess and retain The bills become a part of the record of the court, and are always under its control, and the court is as much bound, as an important part of its duty, to see its bills correctly made' out, as it is to inspect and. correct any other portion of its records and proceedings. In relation to this matter, all that we could do was to reduce our exceptions to writing, as we understood the facts to be. If the . other party objected to any of our statements, a reference could alone be made to the court to decide the matter between us, and to correct the bills according to the facts. This we did, and in proper time, under the statute. We submitted our bills to the court for its judgment upon them.. The court held them, with the papers in the cause, to decide the motion for a new trial. The court mislaid the bills, found them again, signed and sealed them, as we had prepared them, without an alteration ; the best evidence, one would think, that they were deemed, by the court, to be correct.
    : But the Supreme Court rejected them because they were not in time; although the judge held them in his hands from the time of the verdict until he signed and filed them. Was it our fault that they were not sooner in the record ? The cause had not cOme on for trial before the Supreme Court, upon the writs of error. We then applied for a mandamus to the judge below, to sign the hills, nunc pro tunc, as of the term of the trial, and when they were placed in • his possession. This would have taken them out of the objection to our exceptions. But the court overruled Our motion. In the haste with which this argument has been prepared, I-have not been able here to refer the court to authority upon this point of bur case. Most of the decisions of the courts, arising upon the subject of bills of exceptions; are based upon the particular facts of each case, or limited by statutory provisions ; —a case analogous to the one at bar is, probably, not to be found reported.
    The eleventh error assigned has been noticed in a previous part of this argument. That the court erred, in .reversing the first judgment of April 12th, 1842, upon the ground assumed by the court, we cannot doubt. We think the court erred, in a still greater degree,- in affirming the second judgment of the Tth of October; the second judgment, which is our 12th Specific error assigned. If the District Court erred, in reversing its own judgment at a subsequent term, or striking it out of the record after an execution had been issued and returned, and after the cause had been removed from the jurisdiction of the court by a writ of error that was then pending, it seems to us that the Supreme Court doubly erred in sustaining both pro*ceedings, and in affirming the second judgment.

      Mr. Grant’s argument, for the defendant in error, upon the above points, was as follows : —
    The 9th assignment of error is the first one for the consideration of this court, to wit: — “ Striking the bill of exceptions of 21 December, 1843, from the records of the Supreme Court.”
    In discussing this point, we make this preliminary question, that this bill of exceptions is not a part of record here, and the propriety of rejecting it cannot be examined by the court. True, the clerk has sent it here, but unless it be a part of the record, the court will pot examine it.

      “ Nothing but what constitutes the record of the court below will be examined here.” — Davis v. Packard, 6 Peters, 41L
    “ The plaintiff relies, for a reversal of the judgment, on his having been -entitled to a continuance, in consequence of an affidavit alleged to have been made in his behalf, and on his having objected to the cancelling the order of continuance. These grounds of error, however, do not appear of record. The affidavit and objection of the plaintiff could only be shown by a bill of exceptions. The transcript of the reeord, to be sure, contains a copy of the affidavit of continuance, together with ■ a statement of the clerk, that he objected to proceeding to trial after the order of continuance, and that he tendered a bill of exceptions to the opinion of the court ordering the trial, which the court refused to sign. These circumstances, however, are only the statements of the clerk, and constitute no part of the record.” — Wilson v. Coles, 2 Blackford, 403.
    The bill of exceptions, filed with the record in the Iowa Supreme Court, was stricken from the record; it constituted a part of the record no longer, and to make it a part, of the record here, it must have been embodied and made a part of the bill of exceptions to the decision of the Iowa Supreme Court. It was not. See record, pages 32 and 33.
    On this point, we refer to the following authorities : — Huston v. Brown, 1 Blackford, 429 ; Henderson v. McKee, 1 ib. 347 ; Hays v. McKee, 2 ib. 11 ; Yanlandingham v. .Fellows, 1 Scammon, 283 ; Huff v. Gilbert, 4 Blackford, 20,
    A bill of exceptions is a “ pleading Of the party, and is to be construed most strongly against him who. alleges the exception.”— Rogers v. Hale, 3 Scammon, 6.
    “ A bill of exceptions is. the method of placing on the record matters which do not properly belong to it, and it should contain the matter so intended to be placed on the. record. A reference in the bill is not sufficient.” —Berry v. Hale, 1 Howard, Miss. 315.
    “ When the clerk transcribed certain records mtended to be placed in the bill of exceptions, and stated that they were the records and executions referred to in the bill of exceptions; held, it did not spread them on the record.” — Maundrig v. Rig-by, 4 Howard, Miss. 222.
    The bill of exceptions in this case, pages 32 and 33, does not identify the paper referred to.

      “ The bill of exceptions refers to some extrinsic paper or document, which is said to be marked B, and to be considered part of the bill of exceptions; but what that document is we do not know, for, in looking through the record, we find no document which has such a mark, or is otherwise identified. It-is true, there is in the subsequent history of the case a document,- but it has no mark of identity with the one referred to by the judge in the bill of exceptions.” — Oliver v. State, 5 Howard, Miss. 14-18.
    “ Nothing which does not properly belong to the record is part of it, unless inserted in the bill of exceptions.”
    A bill of exceptions, stating that “ the following evidence was offered,” then adding, “ her^ insert the same,” is incomplete, and does not make part of thp record the evidence thus attempted, to be embraced in it, though contained in the transcript of the record. Rankin v. Holloway, 3 Smedes <fc Marshall, 614.
    “ It is said' there was a motion to quash the writ, and that the motion was improperly overruled; but as the writ is not inserted in the record, we have no means of examining the objection, and must presume the decision-correct.” — State Bank v. Brook, 4 Blackford, 485.
    [Opinion in the text, near bottom of page; there is no reference to it in the marginal note.] ■
    The bill of exceptions of the District Court of Scott county was stricken from the records of the Supreme Court of Iowa • how can it be made a part of the record here, unless included in the bill of exceptions taken to thei- decision? Strike it out of pages 16 et seq., and what is there in the bill of exceptions, pages 32 and 33, to bring it before this court ?
    But admit thát it is properly Jbere, we sa,y that tne 9th error is not .well assigned ,• the Iowa Supreme Court decided correctly in striking it from the record.
    The plaintiffs in error, in their printed argument by Learned, ■ produce no authority on this point,-place great stress on the supposed fact, nowhere Existing in reality, and nowhere appearing on the récord, that the excéptions were by counsel reduced to writing during the progress of the trial, and by inference tender ' to the court, and that the Iowa Supreme Court rejected, the bill of exceptions, because-it was not filed during the trial. - .
    “ Most of the decisions of courts,” says Learned, for plaintiffs in error, “on the subject of bills of exceptions, are based upon the particular facts of each case, or -limited by statutory provisions. 'A case analogous to the .one at bar is, probably, not to be found reported.” If by this he refers to his side of the case, we shall not deny it, but we show both authority and statutory provisions in favor of rejecting this bill of exceptions. The .Words, “ no entry of record,” that the bill Of exceptions was tendered at the trial, are emphasized in the statement of the counsel for the plaintiffs in error, thereby intending, we suppose, to convey the idea that it appears in some other way.

      “ The statement of the bill of exceptions, as to the time when it was taken, will prevail over the memorandum of the clerk.” — Carpnew v. Carravan, 4 Howard, Miss. 370.
    “ The bill of exceptions must show affirmatively that the exception was taken at the trial, and if it does not so appear, •the error will be fatal.” — Patterson v. Phillips, 1 Howard, Miss. 572.

      Perhaps Howard’s Mississippi Reports are not high enough authority for counsel. Hear the opinion of this court.
    “ It is not necessary,” under laws of the United States, “ that a bill of exceptions should be, formally drawn and signed before the trial is at an end. The exception may be taken at the trial, and noted by the court, and may afterwards, during the terin, be reduced to form, and signed by the judge; but-in such case it is signed nunc pro tunc, and purports on its face to be the same as if actually reduced to form and signed, during the trial; it would be a fatal error if it were to appear otherwise.” — Walton v. United States, 9 Wheaton, 651.
    The bill of exceptions in this cause was taken, reduced to writing, “ signed and sealed this 21st December^ 1843,” in record, pages 23 and 24. The trial took place in October, 1841, nearly two years before.
    It -appears conclusively from the bill of exceptions, that it was not taken or tendered during the progress of the trial.
    The statutory provisions of the Territory of Iowa will not assist the plaintiffs in error. Indeed, they are perfectly conclusive on this point in favor of the defendant in error.
    The act of the Legislature of Iowa, approved January 25, 1839 (see first edition of Iowa laws, printed at Dubuque, in 1839), section 19, provides (375 of the statutes): —
    “ If, during the progress of any trial, in any civil cause, either party, shall allege an. exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said bill of exceptions, and to sign and seal the same and said bill of exceptions.shall thereupon become a part of the records of such cause ; and if any judge refuse to allow and sign said bill of exceptions tendered, and the same is signed by three or more disinterested by-standers, or attorneys of said court, the judge shall then permit the said bill to be filed, and become part of. the record,” &c.
    . Mr. Grant then examined the cases from Missouri and Illinois, which States had statutes similar to Iowa, citing 7 Missouri, 351; 3 Scammon, 6,17, 24,63; 2 Scammon, 253 -256, 490. And cited, also, 9 John. Ch, 345; 3 Cowen, 32.
    This court has decided no less than fifteen-causes on bills of exceptions, down to 13 Peters. We will cite only such as bear directly on the case at bar.-
    Walton v. United States, 9 Wneaton, 657, has been referred to. Ex parte Martha Bradstreet is, to our mind, conclusive for-our client.
    “ On the trial of a cause in the District Court of New York, exceptions were taken to the opinions of the court, delivered during the progress of the trial; and, some rime after the trial was over, a bill of exceptions was-tendered to the judge, which he refused to sign, objecting, to some' of the matters stated, in the same, and at the same time altering the bill so tendered, so as to conform to his recollections of the facts, and inserting in the bill all that he deemed proper to be contained in the same; which bill, thus altered, was signed by the judge.”
    ' “ A rule was granted to show cause, and the judge returned the foregoing facts.

      “ By the court. This' is not a case in which a judge has refused to sign a bill of exceptions. The judge has signed such a bill of exceptions as he thinks correct. The object of the rule is to compel the judge to sign a particular, bill of excep-. tions which has been offered him. ' The court.,granted a rule to show cause, and the judge has shown cause by saying he has done all that can be .required of him,” &c.
    “ The law requires that, a bill of exceptions, should be taken at the trial. If a party intends to take a bill of exceptions, he should give notice to the judge át the trial;' and if he does not file it at the trial, he should move the judge to assign a reasonable time within which he may file it. A practice to file it after the. term must be understood to be matter of consent between the parties, unless the judge has made an express order in term, allowing such a period to prepare it.” Ex parte Martha Bradstreet, 4 Peters, 103.
    10th error. “ The Supreme Court erred in refusing the motion of the plaintiff in error for a mandamus to the judge of the District Court.” How comes this assignment of error in the case of Sheppard et al. -a..Wilson, defendant, in error, here ?
    That was an ex parte proceeding against Judge Thomas Wilson of the District Court, to compel him, by mandamus, to sign a bill of exceptions.. Has any writ of error been sued out against Judge Wilson ? Has he been cited to appear here ? The proceedings against him form no part whatever of the suit of Sheppard et al. v. John Wilson; but if they did, and this court can examine the question, it is settled by the case of Ex parte Martha Bradstreet.
    The counsel for Sheppard et al. made a motion for a writ to compel Judge Thomas- S. Wilson to sign and seal a particular' bill of exceptions, 'or -show cause ; the motion is based on a statement of facts, ex parte, which shows that no exceptions were tendered during the trial; that the next day after the trial the bill was tendered, and, the parties not being able to agree as to the bill, Sheppard’s counsel delivered the bill to the court,, requested the judge to correct, and, when corrected, to sigh it..
    The bill, of exceptions was not tendered (luring the trial, as the law of Iowa requires. No other time was appointed or allowed for tendering, as the laws of the United States require. It was not, when tendered after the trial, such an one as the' judge could sign until he had corrected it by his notes. In other words, the party requested the judge to do what the. law requires him to do, — to prepare a correct bill of exceptions; and because the judge neglected to prepare a new one, they wish the court to compel him to sign a particular bill, which they admit was imperfect.
    But a mandamus will not lie, in Iowa, to a judge, to compel him to sign a bill of exceptions. This writ issues only when there is no other adequate remedy. By the laws of Iowa of 1839, already quoted, if the judge refuses to sign a bill of exceptions, the by-standers may do it; and if the judge refuse to allow it, when signed by them, to be placed on the record, the Supreme Court, on affidavit, admits it to the record. No mandamus can issue in Iowa in such a case;.the legislature have provided a party another remedy.
    (The remainder of Mr, Grant's argument is omitted.)
   . Mr. Justice GRIER

delivered the opinion of the court.

When this case was before this court at the last term, on a motion to dismiss the writ of error (see 5 Howard, 211), one of the reasons urged was, — “ That, Iowa having been admitted into the Unión as a State since the writ of error was brought, the act of 1838, regulating its judicial proceedings as a Terri- . tory, is necessarily abrogated and repealed ; and consequently there is no law in force authorizing this court to reexamine and affirm or reverse a judgment rendered by the Supreme Court of the Territory, or giving this court any jurisdiction over it.” And. the court there say, — “ This difficulty has been removed by an act of Congress, passed during the present session, which authorizes the court to proceed to hear and determine .cases of this description.” It afterwards appeared that this court had been misinformed on this subject, and that by mistake - the State of Iowa had- been omitted in the act'of 22d February, 1847. Since that time (at the present session of Congress), an act has been passed to remedy this omission (see act of 22d of February, 1848), and the court have proceeded to hear and determine. the case on the errors assigned.

Of the numerous errors assigned in this case, but three can be noticed as coming properly under the cognizance of -this court. The cause was originally tried before the District Court of Scott county, and removed, by writ of error,.-to the Supreme Court of the Territory of Iowa. That court struck from the record the bills of exceptions alleged to have , been taken on the trial in the court below. Consequently, the - matters said to be contained in those bills are not before this court.

But bills of exceptions were taken by the plaintiffs in error to the ruling of the Supreme Court of Iowa, in rejecting the bills sealed by the District Court, and in refusing to grant a mandamus to the judge of the District Court to sign a bill of exceptions nunc pro tunc; and this rejection and refusal are now assigned for error in this court. It has been questioned whether the action of the Supreme Court of Iowa on these points is the proper subject of a bill of exceptions,- or can be reviewed in this court. But as we- perceive ho error in the course pursued by the court, it will be unnecessary to notice these objections.

^The case was tried in the District Court of Scott county at October term, 1841, and the bill of exceptions which was struck from the record was dated on the 21st of December, 1843. It did not purport to have been taken on the trial, nor was there any evidence on the record that any exceptions were taken or noted by the judge. And, assuming the fact as stated by the counsel for the defendant below, that he had taken ,the exceptions during the trial, and had reduced them ' to. form afterwards, yet the /bill was not settled during the term in consequence of objection made to certain matters therein by the opposite counsel; and the judge, though/ he signed a bill two years after the trial, refused to sign it nunc pro tunc, as if takeii on the trial.

The act of Assembly of Iowa regulating the practice of their courts provides, .that “if, during the progress of any trial in any civil cause, eithe party shall allege an exception to the opinion of the court, and reduce the same .to writing, it shall be the duty of the judge to allow said exceptions, and to sign and seal the same; and the said bill of exceptions shall thereupon become' a part of the record of- such cause; and if any judge of the District Court shall refuse to allow or sign such bill of exceptions tendered, and the same ■ is signed by three or more disinterested by-standers or attorneys of said court, the judge shall then permit the said bill to be filed and become a part of the record ; if the judge refuse, the Supreme Court of the Territory may, when such, cause is brought before them by writ of error or appeal^ upon proper affidavit of such refusal, admit such bill of exceptions as part,of the record.”

This act requires that' the exceptions must be taken during the progress , oi the trial,-reduced to writing, and tendered to the judge, and gives ample renied- to the-party, injured, in case of-a refusal to sign them or permit them to be made á part of the record. If the party does not avail himself of thereinedy given him by the act, he has no one to blame but himself. It is true, judges may, and often do, sign bills of exception .after the trial, nunc pro tunc, the bills being dated as if taken on the .trial; but the propriety of their refusal to do so pn particular occasions depends on so many circumstances which'cannot ap- ' pear on the récord, and are known only -to themselves, that we ought not to presume they have acted improperly in the exercise of their discretion. Certainly a judge ought not to be called on tó make up a bill of exceptions, two or more' years after a trial, where the counsel have disagreed as to the facts, and faded to -settle the exceptions at the term in which .the causé was tried. It is too plain for argument, also, that a bill purporting to be taken more than two years after the trial cannot properly be made a part of the record, by any possible construction of this act. It is much more stringent in its requirements as to the ¿time and mode in which a bill of exceptions shall be obtained and placed on record, than the Statute, of Westminster 2, which first gave the bill of exceptions. Yet under that statute, the courts have always held that the exception should be taken and reduced to writing at the trial. Not that they need be drawn up in formbut the substance must be reduced to writing whilst the thing is transacting. 1 Bacon’s Abr., tit. Bill of Exceptions.

The practice is well settled, also, by the decisions of this court. See. Ex parte Martha Bradstreet (4 Peters, 106); and the case of Walton v. The United States (9 Wheaton, 657), which is precisely parallel with the present. There the objection was made, that the bill o,f exceptions was not taken at the trial, but purported on its face, as in this case, tó have been taken and signed after judgment rendered in the cause. It is true,” say the court, that the bill of exceptions states that the evidence was objected to at. the trial; but it is not said that any exception was then taken to the decision of the court. So that, in fact, it might be true that the objection was made, and yet not insisted upon by way of exception. • But the more material consideration is, that the bill of exceptions itself appears, on the record, not to have been taken at all until after the judgment. It is a settléd principle, that no bill of exceptions is valid which is not for matter excepted to at the trial. We do not mean to say that it is necessary (and in point of practice we know it to be otherwise) that the bill óf exceptions should be formally drawn and signed before the trial is at an end. It will be sufficient if the exception be taken at the trial; and noted by the court with the requisite certainty; and it may afterwards, during'the term, according to the rules of the court, be reduced to form, and signed by the judge. And so,.in fact, is the general practice. But in all such cases, the bill of exceptions i° signed nunc pro tunc, and it purports on. its face to be the same' as if actually reduced to writing during the trial. And it would be a fatal error if it were to appear otherwise; for the original authority under which bills of exceptions are allowed has always been considered to be restricted to matters of exception taken pending the trial, and ascertained before verdict.”

These cases are conclusive as to • the correctness of the proceedings of the Supreme Court of Iowa, in striking out the bill of exceptions and refusing to award a mandamus to compel the district judge to sign a bill nunc pro tunc.- It will be unnecessary, therefore, for this court to express any opinion on. the questions, whether, under the peculiar provisions of the statute of Iowa, a party who had neglected to pursue the course pointed out by it would be' entitled, under any circumstances, to t(ie remedy of a mandamus; and if so, whether a refusal by • the Supreme Court to grant it could be alleged for error in this court.

The only other assignments of error which can be noticed by this court are those numbered 11 and 12: — “ That the Supreme Court'erred in affirming the action of the District Court in regard to the judgment of April 12, 1842, on the ground that the supersedeas bond did not appear on the record with the writ of error. And in affirming the judgment rendered by the District Court at October term, 1842.” ■

To understand the nature of these objections, it will be proper to state that this case was tried in the District Court of Scott county, at October term, 1841, and a verdict rendered for the plaintiff,- and the defendants having moved for a new trial, the case was continued under a curia advisare vult. Owing to a mistake (the cause of which it is unnecessary to explain), the court did not meet at the time appointed by law for the April term in Scott county, but on the week following, which had been fixed for the term of a neighbouring county. On the 12th of April, 1842, an entry was made on the record, overruling the motion for a new trial, and rendering a judgment on the verdict. The mistake was soon after discovered, and the defendants sued out a writ of error to reverse this judgment, as being coram non judice; but before the -writ was served, at the next regular term of the District Court, in October, 1842,- that court, treating the entry made on the record in April as a nullity, because entered by the clerk without any authority from the court, made the following entry of judgment: —

“ This day came the said plaintiff, by his attorney, and it appearing to the court that, at a previous term of this court, to wit, the October term, 1841, the issue previously joined in this cause was submitted to a jury, who, after hearing the evidence and arguments of counsel, returned .into court the following verdict, to wit: — They .find the issue for the. plaintiff, and assess- his damages at the sum of $ 1,837.50; whereupon a motion was made by the attorney for the defendants for a-new trial herein, which motion was, at said October term, taken under advisement by the court. And it further appearing to the court, that this court has not, at any time since, decided said motion, but that said motion was continued under advisement until the present term; that- the order of continuance at last term was not entered of record; it is therefore ruled that said order of continuance be entered, nunc pro tunc. And the court,, having now fully considered the said motion for a new trial, doth overrule the same ; and it is further considered by the court, that the plaintiff have and recover,” &c. (completing the entry .of a judgment in the usual form).

■ In this action of the court we can see no error, or any just ground of complaint on the part of the plaintiffs in error. If the court had ordered the prior entry, made in April, to be stricken from the record, as a mistake, or misprision of the clerk, being made without the authority or order of the court, the record could not have been successfully assailed. The court certainly had full power to amend their records, and are the sole judges of the correctness of the entries made therein; and although they have not said in direct terms that this entry should be erased or stricken from the record, they have done so by violent implication, when they adjudge that the court ’had never decided the motion for a new trial, and treat the record as if the entry of the 12th of April was not upon it, or had been entirely erased from it- The objection, that the record was beyond the reach of amendment, because the writ of error had become a supersedeas and removed it to the Supreme Court, is not founded in fact. The writ of error had not been served on the court, and the record was therefore legally, as well as physically, in possession of the District Court, and subject to amendment. In order to a supersedeas, the statute of Iowa evidently requires a service of the writ upon the court below, and not only so, -but “ that one of the judges of the Supreme Court shall indorse upon the transcript of the court below allowance of said writ of error for probable cause ;. and in such cases, the party issuing such writ shall give bond to the opposite party, with good security,” &c. There is no evidence on the record, that any of these requisites had been complied with.

It is, perhaps, hardly necessary to state that this case bears no resemblancé to that of The United States Bank v. Moss, decided at this term. There, the Circuit Court had set aside a regular valid judgment' entered by the court’ at a former term, after a verdict and trial on the merits ; not on the ground thát the clerk had made the entry by mistake or without proper authority from -the court, but because of some supposed error in law. This case exhibits a question of amendment, and nothing more -f it was, therefore, wholly within the discretion of the court below, who were acquainted with all the facts, and • belonged appropriately and exclusively to them. Matheson v. Grant, 2 Howard, 263, 284. Besides, the action of the court wrought no injury to the plaintiffs in error. If they had removed the record to the Supreme Court by the first writ of error before this amendment was made, and obtained a reversal of the judgment because it was entered without the authority . of a properly constituted court, the Supreme Court would have remitted the record, with orders to proceed and enter a regular judgment on the verdict.

The objection, that the court below could not make this amendment for want of a continuance, is hardly worthy of notice. The entry of C. A. V. operates as a continuance, and if it did not, a continuance could be entered at any time, to effect the purposes of justice. Such technical, objections have long ¿eased to be of any avail in any court,, and axe entirely cut off by the statute of jeofails of IoWa of 24th January, 1839, section 6.

The judgment pf the Supreme, Court of Iowa must be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Iowa, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that, the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs and damages at the rate of si± per centum per annum.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    The United States, Plaintiffs in error, v. A. Hodge and Levi Pearce.
    Where the bill of exceptions appears upon its face to have been regularly taken, the court cannot presume against the record.
    Where a mortgage was given by a postmaster to secure the post-office department, and the Circuit Court was asked to instruct the jury, that, according to the true interpretation of the mortgage, there was contained therein no stipulation or agreement to extend the time, or preclude the government from suing the principal and-sureties upon the postmaster’s bond, and the court refused, upon .the ground that the jury were the proper judges of the fact whether time was given, on a perusal of the mortgage; this was error in the court. It is the duty of the court to construe all written instruments given' in evidence, as a question of law.
    Payment under this mortgage could not be enforced until after the lapse of six ■ months from its date. But its acceptance by the government did not release the sureties upon the bond, because, in order to discharge the surety by giving time, the time which is given must operate upon the instrument which the surety has signed. The mortgage here was-only a collateral security, which was beneficial to the surety.
    A motion for a new trial waives the right to a writ of error in those circuits only where the courts have adopted a rule to tbis effect; and in those circuits the right should be waived upon the record, before the motion for a new trial is heard.
    The practice in Louisiana allows the sureties to be sued without joining-the principal.
    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 an action brought against,., the defendants in error, as the securities upon th bond-of the postmaster' of the city of New Orleans. The facts of the case are sufficiently set forth in the opinion of the court.
    It .was argued' by Mr. Clifford (Attorney-General), for the United States, and by Mr. May and Mr. Brent, for the defendants in error. Of the argument of the Attorney-General the reporter has no notes.

      Mrí May and Mr. Brent, for the defendants in error, divided their argument into three heads, viz-.: —
    I. That the mortgage discharged the defendants from all lia*, bility on their bond to the plaintiffs.
    II. That the exceptions were not properly taken.
    III. That the action was erroneously brought.
    Before entering upon the argument, the preliminary remark was made, that although the court below may have erred in refusing to instruct the jury; yet if the party was not prejudiced by it, this court would not reverse. 5 Peters, 135 ; 9 Gill & Johns. 439.
    If in point of law the judgment ought to. be affirmed, the court will.affirm it, notwithstanding error. 8'Peters, 214.
    I. The mortgage discharged the defendants from all, liability on their bond.

      This proposition involves "three, viz.: —
    1st. The facts attending'the.execution of the mortgage.
    2d. The law authorizing it. .
    3d. The law applying to and expounding it.
    With rhspect to the first subdivision, viz. the facts, .the counsel examined the record, to show that .the execution of .the mortgage was concealed from the sureties; that it .was exhibited to the Postmaster-General, and by him referred to the auditor, in whose office it. was filed on the. 19th November, 1839, and nothing further was done until the 7th January, 1840.
    '2d. The law authorizing it. (This branch of the argument is omitted, as the court did not appear to question.it, inasmuch, as the acceptance of the mortgage, is considered to- be the act of the United States.)
    3d. The law applying to and expounding it. This is the important inquiry in the case. The- defendants were sureties of Eer, who. was the principal in the bond, on which this suit is brought. The United States agree with the principal, without the knowledge or consent of the sureties, in order' to secure the payment of his debt, and agree for a large and Valuable consideration to give him time for the payment of the debt. The United States receive from the principal a mortgage of valuable property to secure tfye whole of their debt. This discharges the sureties, because time for the payment of the-debt is given, and it is a higher security for the debt.
    It is a general rule of law, lying at the foundation of all these contracts, that “ a party taking a surety is bound to notice the nature" of his engagement, and protect him.,” ' Hence, the law on this subject is very strict. 7 Price, 132 ; Pitman on Princ. and Surety, 167, 170, 182, 183; .3 Merivale, 277 '; 1 Moore & Payne, 759; Holt’s Nisi Prius Cases, 84 ; 2 McLean, 74; 10 Peters, 266, 268; 7 Johns. 337; 7 Taunt. 53 ; 2 Marsh, 363.
    That time for the payment of the debt is given by this' mortgage, the following authorities show. 12 Wheat. 554, 505; 5 Howard, 206; 3 Wash, C. C. R. 71; 3 Younge & Coll-yer, 188, 189 ; 7 Harr. & Johns. 103 ; 8 Birig. 156.
    A creditor, by giving time of payment, undertakes .that he will not during the time given ■ receive the debt-from any surety of the debtor; for the instant any surety paid it, he. would ’have a right to demand and recover it from his principal. 4 Bing. 719. . . .
    .
    If giving time might injure the surety, he is discharged. . It is not necessary that in point of fact he is injured. The law is the same even if he is benefited. He is the judge of that; 7 Price, 225, 232, 234.

      This mortgage was also a higher security for the debt. In Louisiana, it amounted to a-judgment. Code of Practice, art. 732, 733; 6 Martin, N. S. 465; 15 Peters, 170.
    A judgment is a security of a higher nature, and merges a bond. 1 Chitty, PL 49, 50; 1 Peters, C. C. R. 301; 18 Johns. 477; 11 Gill & Johns. 14, 15 ■ 6 Crunch, 253; 2 Harr. & Johns. 474.
    This mortgage is then a confession of judgment, with a stay of execution for . six months, and will discharge the surety. 6 Munf. 6; 3 Call, 69; 6 Gill & Johns. 168.
    III. The action was erroneously brought. (The counsel cited many cases from the English authorities and from other States, to show that all the obligors should have been sued, and the following authorities from Louisiana. Code of Practice, 330, note ; 4 New Series, 435; 4 La. Rep. 107; 2 Robinson, 389.)
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a writ of error to the Circuit Court 'for the Eastern District of Louisiana.

William. H. Ker, being appointed postmaster of the city of New Orleans, in 1836, gave a bond, with the defendants as his security, iñ the' sum of twenty-five thousand dollars, for the faithful discharge of his duties-as postmaster. Having faiíed to perform those duties, an action was commenced on the bond against his securities, alleging a large defalcation by Ker, and claiming the'penalty of the bond.

In their defence the defendants set up a mortgage which was executed by Ker the 15th of August, 1839, on property real and personal, to secure the payment to the post-offiee department of a sum not exceeding sixty-five thousand dollars, or such sum as might be found due on a settlement, from and after six months from the date of the mortgage.' This instrument, which gives time for the payment of the. indebtment by Ker, it is pleaded, releases the defendants as the sureties of Ker.

A jury, being impanelled, found a verdict for the defendants. A motion for a new trial was made and overruled. No exception lies to this decision. The motion is made to the sound discretion of the court.

• The questions arise on certain instructions to the jury prayed for by the ' district attorney; none were asked by the defendants.

It. is objected, that it does not- appear that the exceptions were taken on the trial, and signed by the judge during the term- The bill of exceptions states, that, “ oh the trial of the cause, the district attorney requested the court to ■ charge the jury,” &c., and at the close, “ to which opinions of the court, refusing to charge as requested, the district attorney excepts, and prays that the bill of exceptions, with the documents referred to therein, be signed, sealed,, and made a part of the record, which is accordingly done,” and which is signed by the judge. Upon its face, this bill of exceptions appears to have been regularly signed; and the court cannot presume against the record.

The first, fifth, seventh, ninth, and tenth instructions, refused by the court, are not so connected with the case as to require a consideration. Nor is it déémed necessary to consider ■ the instructions given as asked or as modified by the court, until ■ we come to the eleventh and last prayer. In this the district attorney requested the court to instruct the jury, “ that, according to. the true interpretation of said mortgage, there was arid is contained therein no stipulation or agreement to extend the time, or preclude the government from suing the principal and sureties on said bond.” This the court refused to give, on the ground that the jury were the proper judges of the fact whether time was given, on a perusal of the mortgage. In this the court erred. It is its duty to construe all written instruments given in evidence, as a question of law.

Payment under the mortgage could not be enforced until after, the lapse of six months from, its date. And it appears that the mortgage was designed to cover the.whole amount of Ker’s defalcation. But the important question is, whether this mortgage- suspended the legal remedy of the department on the official bond of the postmaster. There is no provision in the mortgage to this effect. And it cannot be successfully contended, that taking collateral security merely can suspend the remedy bn the bond. The holder of a bill of exchange, by taking collateral security of the drawer, not giving time, does dot release the Indorser. James v. Badger, 1 Johns. Cas. 131 ; Kennedy v. Motte, 3 McCord, 13; Hurd v. Little, 12 Mass. 502 ; Ruggles v. Patten, 8 Mass. 480.

Triving time for payment, to discharge the indorser, must operate noon the instalment indorsed by him. Now if the. post-office department had;- by the mortgage,'suspended the right of action on the bond for the time limited in the mortgage, it might have released: the sureties. But no such condition is expressed, and none such can be implied. The mortgage does not purport to be given in lieu of or in discharge of the bond; It. is merely a collateral security, which operatés beneficially to. the defendants. For' if they shall pay the. defalcation of Kér, or so» much of it as shall amount to the penalty of the bond, and the. mortgaged property shall be sufficient to cotel the whole iridebtment, there can be no. question that the sureties would be subrogated to á due proportion of the rights of, the department in the mortgage. . 1

The1 principle is in no respect different. from that which arises on a promissory note or bill, where collateral security is taken. In the authorities above cited, it was considered that, where an indorser takes, an indemnity for indorsing a note, he. wáives a notice , of demand. But if the holder of tlie note take additional security from the drawer, the indorser is not released. And it cannot be material of what character the collateral security may be. It may consist of promissory notes, not due, a mortgage payable on time, or any thing else, it does not affect the remedy on the original instrument. This, can only be done by an express agreement, for a valuable consideration. The remedy on the collateral instrument is wholly immaterial, unless it discharges or postpones that on the original' obligation. There is no- such condition in the. mortgage inkier Consideration, and. consequently it can in no respect affect or suspend the remedy of the post-office department on the. bond;

If the remedy on an instrument is suspended, for a valuable consideration, the indorser or security is released, because his right’ to discharge the obligation and be subrogated to the rights of the holder of the paper is also suspended. But a contract to give time is void, and does riot release the security, -unless it be founded. upon a valuable consideration. , It must be a contract which a court of law. or equity can enforce. Now there is no contract in the mortgage which suspends the right of áction on the official bond. Consequently, no injury is done to the sureties on that'bond. They are. left. tree to act for their'own interests, as they could have acted before the mortgage. The principle on which - sureties are released is not a mere shadow without substance; It is founded upon a restriction of the rights of the sureties, by which they are supposed -to be injured. But by no possibility can they be injured in the case under consideration.. On the contrary, it is .clear that the mortgage may operate beneficially to them, if they shall pay the amount of their bond. And the Cirfcuit Court should have instructed the. jury. to. this effect.

The motion for a new trial was not a waiver of a wni of .error. ■ In some of the circuits-there is a rule of court to this effect. But effect could be given to. that rule only by requiring a party to waive on the record a writ of error, before his motiori for a new trial is heard. In,the greater part of the circuits no such rule exists. • It does not appear to have been adopted in Louisiana.

It is insisted that the action ÍS' brought wrong; and that, if the judgment be reversed, the plaintiffs cannot recover, because of the nonjoinder of Ker ás a defendant.”

The action against the sureties, omitting the principal, is sustained by the Louisiana practice. In Maria Grilling, Adm’x, v. Caldwell, 1 Robinson, 15, it was held that a creditor has' the right, but he is under no obligation, to include the principal and surety in the same suit. And in Smith, Adm’r, v. Scott, 3 Robinson, 258, it is said a surety, who binds himself with his principal, in solido, is not entitled to the benefit of discussion, and may be sued alone for the whole debt. So in Curtis v. Martin, 5 Martin, 674, it is laid down, that the surety may be sued without the principal.

• In Barrow v. Norwood, 3 Louisiana Rep. 437, the court held, where>.the obligation is joint, all the obligors must be made parties to the, j3uit. But that was not a case of suretyship. The action was' brought against one of three indorsers.

On the grounds above stated, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, conformably to this opinion..

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. ' On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of- the said Circuit Court in this cause be and the, same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court,, with directions-to award a venire Jadas de-novo.


author: Mr. Justice GRIER

text:
    John D. Bush, Appellant, v. Jacob Marshall and William B. Whitesides.
    Where the holder of a preemption right to lots in the town of Dubuque sold them to another person, the facts, that the vendor had received certificates of his right, although the land-officers were not satisfied with their sufficiency, and that the vendor acted as the undisputed owner, were sufficient to negative the charge of fraud in his representing his title to be good.
    The relinquishment, by the vendor, of his title to the United States, with a view to a public sale and completion of his title, was not fraudulent .towards thevendee, if it was the purpose of the vendor to enable .himself to convey a,perfecrtitle to his vendee.
    If, at the public sale, the vendee himself became the purchaser, he became a trustee for his original vendor; and if, at the public sale, the original vendor became the purchaser, the title inured to the benefit of his vendee.

      The following statement of the case was the brief of Mr. Howard, who argued it.
    This was an appeal from the Supreme Court of Iowa Territory, sitting as a court of equity, under the following circumstances.
    On the 2d of July, 1836, Congress passed an act (chap. 262, 5 Statutes at Large, 70) for laying off the town of Dubuque, amongst other towns, under the direction of the surveyor-general. ' The 1st section directed lots to be laid out in a certain manner, and a plat returned to the Secretary of the Treasury, and within six months thereafter the lots should be sold to the highest bidder. The 2d section directed the lots to be classed according to their value'into three classes, viz. at $40, $20, and $ 10 per acre, respectively ) and gave a right of preemption to those persons who had obtained a permit' to settle, or who had actually , occupied and. improved the lots, paying for the lot according to its class.
    On the 3d of March, 1837,- Congress passed another act (chap. 36, 5. Statutes at Large, 178), amendatory of the former, substituting a board of commissioners for the surveyor. They were empowered to “ hear evidence, and determine all claims to lots ” ; to reduce the evidence to writing, which they were directed to file with the. register and receiver, together with a certificate in favor of each person having'the right of preemption. Upon payment for the lot being made to the receiver, the receiver was. directed to give a receipt for the same, and the' register to issue a certificate of purchase, .to be transmitted to the commissioner of the general land-office, as in other cases of, the sale of public lands.
    The 3d. section directed the register and' receiver to expose the residue of the lots to'public .sale, after advertising, &c.
    ' On the 8th of February, 1839, Marshall and Whitesides sold to. Bush a preemption right to two lots in the town of Dubuque, viz. No. 7 and No. 194. The-deed is not upon the record, but the consideration is stated in the bill, and admitted. in the answer (Rec. '3, 6), to have been three thousand dollars, one half of which, viz. $ 1,500, was paid in cash by Bush. To secure the payment, of the other half,. Bush executed a mortgage to Whitesides, and also gave his promissory note to Marshall for $ 1,790, payable on or before the 1st of October, 1839. Of this $1,790, $ 1,500 was for the .purchase of the lots, and the remaining $ 290 was for rent in arrear, which was transferred to ‘Bush. '
    •It appears from the evidence of B. R. Petrikin, the register in' the land-office- in the town of Dubuque, that. “ Bush came frequently to the land-office to enter the lots No. 7 and No. -1114, under the preemption law, hut was hot allowed to do so by the land-officers, because the, proof filed by William B. Whitesides with the commissioners, under the law laying off, the town of Dubuque, did not satisfy the land-officers as being sufficient to maintain a right under the law in favor of White-sides’s preemption.” -
    It appears, also; from the same evidence, that the land-officers “ had received instructions from the general land-office, to expose all lots to puMie sale where the claimants should relinquish their right to preemption (under the law, laying off the town) to the United’ States.”
    In September, 1840, the lots in the town of Dubuque were offered at public sale. Bush went to the Jand-rOffice, and protested against the lots No, 7 and No. 104 being offered at public sale. ,
    Previous to the sale, however, it appears, from the testimony of Dougherty, that a “ committee of arrangements had been appointed for the purchase of lots in the town of Dubuque ”; that there was a “public’ bidder,” who,was a person selected by the claimants to lots in • the town of Dubuque, to purchase the lots they claimed, as they were offered at the public sale.
    It appears from the evidence of Dougherty, that the committee of arrangements called on Bush, and informed him that the committee desired him to make his relinquishment to lot No. 7, which he positively refused to do. The committee- then erased the name of Bush, and inserted the name of Whitesides, and informed Whitesides immediately of the same ; when he, the gaid Whitesides, came.before the committee, and made his relinquishment to said lot.
    It appears, also, from the testimony of Petrikin, the register, that,-Whitesides came to the land-office, and. produced the deeds in relation to the property before the officers of the land-office, and the said officers considered that the said Whitesides had a right to relinquish his preemption right, and ■ thereupon the said Whitesides did relinquish; in consequence of which the lots No. 7 and No. 194 were, put up at public sale.
    The following statement of facts was agreed upon in the court below.
    It is agreed the following statement of facts may be used, in the same manner as if the same were proved by witnesses on the hearing of the above' causes : —
    1st. That the lots mentioned in the foregoing pleadings were sold at a public sale of lots’ in the town of Dubuque, by tue United States, in last, at which sale John D. Bush, above named, became the purchaser of lot No. 7, and the above-named William B. Whitesides ,of lot No. 194.

      2d. That said lots would not- have been put up and sold at said sale, unless the said William B. Whitesides bad relinquished all claim to the same to the United States previous to said sale; and that said Whitesides did thus relinquish, previous to the same being put up to sale, and for the express purpose-of having them sold at said sale.
    3d. That said Bush objected and protested'to said Whitesides against the said Whitesides thus relinquishing.
    4th That previous to said sale, and at the time of said re-, linquishment, and subsequent thereto (but previoüs to the sale), said Bush was informed by E. C. Dougherty and Whitesides, and by said Whitesides’s.agent, that his object in having the said lots put wp to sale was expressly with a,view that , the title to them might be perfected in said Whitesides, so that he could make a goqd title to said Bush, upon said Bush paying the purchase-money for said lots. . And also, that said White-sides,, by himself, or agent duly authorized for said purpose, did propose and offer to said Bush, that -if said Bush would bid for ■ said lots, and agree that his.purchase should be Under the contract for them set out in the pleading in the abové causes," said Whitesides would make no opposition to his so doing, but was perfectly willing said Bush should become the purchaser with this understanding ; but that said Bush utterly refused so to do ; when said Bush was informed by said Whitesides, or by his agent, that said Whitesides would bid for said lots at said sale, in order to enable him to comply with his contract with said Bush.' That said Whitesides and Bush were the only bid-, dersfor said lots at said sale, -and that Philip S. Dade was the bidder for said Whitesides, of which the said Bush, previous to and at the time of said sale, was advised and informed. That the- memorandum at the foot of the deed or mortgage, that’ said Bush was to furnish the money to pay for said lots, was there inserted by the express agreement and understanding of said Bush, at the time of executing said deed and mortgage.
    The public sale took place in September, 1840, after Bush had . refused to purchase under his contract. At the sale, the public bidder and Bush were the only bidders for the two lots No. 7 and No. 194, the public bidder bidding for Whitesides, of which Bush was informed previous to and at the time of said sale. The lot No. 7 was bid oif to Bush, arid No. 194 to Whitesides.
    In April, 1841, Whitesides and Marshall filed a bill in the District Court of Dubuque county, praying a foreclosure of the mortgage and sale of both lots. After an. answer and a general replication, the court decreed for the complainants, and ordered both lots to be sold. ■ An appeal w;as taken to the Supreme Court of Iowa, where the decree of the court below was affirmed, and the cause was brought' by appeal to this court.'
    It was argued by Mr. Berry (in a printed argument) and Mr. Howard, for the appellant, and Mr. May, for the appellees.
   Mr. Justice GRIER

delivered, the opinion of the court.

This suit originated in the District Court for Dubuque county, in the Territory of Iowa. It was a bill in chancery to foreclose a mortgage given by the appellant, Bush, to White-sides. The property mortgaged consisted of two lots (numbered 7 and 194) in the town of Dubuque, which Whitesides • had sold and conveyed on the same day to the mortgagor, for the sum of $ 3,000 ,• and the mortgage (dated 8th February, 1839) was.given to secure the sum of $> 1,500, the balance of the purchase-money.

At the time of this transaction, the United States had not yet offered the lands on which the town of Dubuque was sit'uated for sale. But notwithstanding the occupants of lots were mere tenants at sufferance only, they proceeded to make valuable improvements, under the expectation of the grant of a right of preemption from the government, or, at least, that they could complete their title by purchase from it, when the lots should, be offered for sale.

These possessions and improvements were treated as valid and subsisting titles ■ by the settlers, and were the subjects of contract and sale by conveyances in the forms usual for passing a title in fee. On one of the lots which was the subject of the mortgage in question, a tavern-house and other improvements were-erected, for which the tenant paid.a rent of seventy dollars per month at the time of this purchase. The deed from. Whitesides to Bush was not put in evidence, but, from the recitals of the mortgage and admissions of the answer, it appears to have been a deed in fee' simple, with a covenant of general warranty. The mortgagor is estopped by his deed from denying seizin, and cannot make out a sufficient defence unless by proving payment of the money, want of consideration, or fraud which will avoid the contract.

Accordingly, the appellant, in his answer, has set up two grounds of defence by way of avoidance of his deed. First, fraudulent misrepresentation by the vendor ito -induce him to make the purchase; and, secondly, want of consideration from failure of title.

1st. The fraudulent misrepresentation charged consists of three particulars. First, that the vendor represented, “that he held a valid preemption right to the lots, by virtue of the laws of the United States in relation to town lots in the town of Dubuque ” ; secondly, that he represented that the fixtures in the tavern, to wit, the bar shelves and counter, formed a part of the property sold, whereas they were claimed and taken away by Hale, the tenant, and the house much injured by the moving and tearing away of said,fixtures; and, thirdly, that by falsely representing Hale, the tenant, to be punctual in his payments, Bush was prevailed on to give his note to the complainants forithe sum of $ 290, for the rent of the unexpired term; whereas Hale was not punctual, and defendant was unable to collect the rent from him.

- The latter two of these charges may be summarily disposed of by the remark, that there is no evidence in the case of any representations by the complainants on the subject: and as the matter alleged in the answer is not responsive to the bill, but set up by way of avoidance, the defendant was bound to prove it.

But the first is the one chiefly relied on in the argument, and deserves more particular notice.

It is proved by Davis, the scrivener who drew the deed and mortgq^e, that Whitesides told Bush “that he, Whitesides, had a preemption to the property.” Was this representation false ? The only evidence on the subject is in the testimony of Petrikin, the register of the land-office, who swears, “ that the commissioners, appointed under the act of Congress laying off the towns of Dubuque, &c., filed in the land-office certificates in favor of Whitesides’s preemption to these lots, No. 7 and No. 194.” He states, also, “that the land-officers had instructions from the general land-office to expose all lots to public sale, where the claimants should relinquish their right of preemption to the United States.” He states, moreover, “ that the land-officers were not satisfied with the regularity or sufficiency • of Whitesides’s certificate ” ; but whether these doubts or opinions were well founded or not does not appear from any testimony in the case. The facts, also, that Whitesides was permitted. to relinquish the preemption right to the United States, and that no other person laid any claim to the possession and preemption of these lots except Whitesides, and Bush, claiming under him, are conclusive, when taken in connection with evidence of a certificate in his favor by the commissioners, to show that the representation of. Whitesides was not false or fraudulent, and that defendant has wholly failed to support this allegation, as set forth in his answer.

But it has been conténded, that this relinquishment, made by Whitesides to the United States against the consent of Bush, was -fraudulent, and*’injurious to the interests of Bush. To this argument two answers may be given, either of which is conclusive. First, that there is no allegation in the pleadings on the subject; and, secondly, the evidence clearly showsj. that, although Whitesides did relinquish his preemption to the Unit-. ed States, and that, too, without the consent of Bush, yet the act was not fraudulent, as it was not intended, and did not tend, to do any injury to Bush.. Whitesides, by his warranty, was bound, under penalty of $j 3,000, to obtain a good title for Bush, cost what it may, while Bush was bound to pay only the minimum or preemption price. The relinquishment of his preemption right by Whitesides was not intended as an abandonment of his claim, but was a plan adopted by himself, in common with the other claimants of lots in Dubuque, as the most convenient method of obtaining a title. By thus suffering them to be exposed to auction, they ran the risk of being compelled to pay more than the minimum or preemption price for a title, but could not -get it for less. The record admits that Bush knew “ that Whitesides’s object in having the lots put up to sale was expressly with a view that the title to them might be perfected in said Whitesides,-in order that he could' make a good title to Bush.” It? is not easy to apprehend how fraud can be predicated of the conduct of Whitesides, who, it is admitted, was using every endeavour to fulfil his contract, and obtain a good title for his vendee. As to the alleged fraud on the government by the conduct of the people in Dubuque on this occasion, it is sufficient to say that the question is not raised; in the. pleadings, nor the fact proved in the evidence. -

We are of opinion, therefore, that the appellant has wholly failed to show any fraud or misrepresentation on the part of his vendors, which would justify a court of chancery in annulling an executed contract.

Indeed, the facts of the case tend rather to show that the fraud, if any, in this transaction, maybe more justly charged to the party who is so liberal in imputing it to- others.

If Bush could have thwarted Whitesides in his endeavours to procure the legal title for him, if he could hold the lot on which the tavern-house and improvements were situated (and valued at $ 2,200) for his bid. of less than twenty dollars, and then recover the' §2,200 from Whitesides, oh his warranty, he will have effected what is commonly called a speculation; but one in the perpetration of which he ought not to expect the aid óf a court of equity. The anxious disavowal ,of an intention ■“ to defraud or wrong the complainants,” contained in the defendant’s answer, was not called out by any charge in complainants’bill, but seems rather to have resulted from a. consciousness that his conduct was justly liable to such an imputation.

II. The other ground of avoidance is failure of consideration.

The answer alleges, that, at the public sale by the United State ; lot No. 7 was purchased by défendant himself, and therefore the vendor is unable to comply, with his contract by making him a title, and, moreover, that Whitesides has become . the purchaser of lot No. 194, and therefore he, Bush, was with- ■ out. title "to it.

This defence seems founded on an entire mistake or ignorance of the law ; as the facts alleged lead to a directly cohtrary • conclusion,'.and show that the defendant has á complete legal N title! If Whitesides sold'to him with, covenant of warranty, mid afterwards purchased the legal title, as the answer asserts, with regard to lot No. 194, then is the title vested in Bush, the vendee, by estoppel, and no further conveyance is necessary.

As to lot No! 7, Bush, having obtained possession under Whitesides, cannot, by the purchase of an outstanding title, ‘ defeat the claim of his vendor. It is a well-established rule of equity,- “ that if a. vendee buys up. a better title than that of the vendor, and the vendor was guilty of no fraud, he can only be compelled to refund to the vendee the amount of money paid for the better title.” “ Equity treats the purchaser as a trustee for his vendor, because he holds, under him; and acts done to perfect the title by the former, when in possession of the land, inure to the benefit of him under whom the possession was obtained, and through whom a knowledge of a defect of title was obtained. The vendor and vendee stand in the relation of landlord and tenant; the vendee cannot disavow the vendor’s title!” (See Galloway v. Findlay, 12 Peters, 295, and cases there cited.)

In the present case; the vendee has bought, in, for twenty .dpi- ' lam; the legal title to a property worth more than two thousand, the possession of which he received from his vendor.!; and not .'only so,.but, contrary to good faith and fair dealing,' he has interfered to overbid his vendor, who was using every endeavour to purchase the title for the use of his vendee, in fulfilment of his-; own covenants. The appellant has paid no more (or, if more, so little as to be unworthy of notice) than he.agreed to pay for the .purpose of getting the legal'title. He has got a good title to the property, and ought- in justice and eqility to pay for it the full consideration which he has covenanted to pay.

The decree pf the Supreme Court of Iowa must therefore be affirmed, with costs, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest thereon and the costs, within sixty days from the filing of the record in this case in the proper court of the State of Iowa.

Order.

This cause came op.to be heard on the transcript of the record from the Supreme Court of the Territory of Iowa, and was ¡argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the • said Supreme Court in this cause be and the same is hereby affirmed, with costs and damages at the- rate of six per centum per annum, with leave to the appellees to sell the mortgaged property in the mode prescribed by law, unless the appellant shall pay the amount of said decree, with interest thereon, and the costs, within sixty days from the filing of the mandate in this case in the proper court of the State of Iowa.