ord 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 277*] 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," etc. (completing the entry of a judgment in the usual form).

on the merits; not on the ground that 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; 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 ceased to be of any avail in any court, and are entirely cut off by the statute of jeofails of Iowa of 24th January, 1839, section 6.

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

Order.

This cause came on to be heard on the tran

script 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 six per centum per annum.

Error,

V.

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 THE UNITED STATES, Plaintiffs in [*279 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," etc. There is no evidence on the record, that any of these requisites had been complied with.

A. HODGE and Levi Pearce.

Taking time mortgage from principal debtor as collateral when no discharge to sureties-motion for new trial no waiver of writ of error unless party waives right, on record before motion-in Louisiana sureties may be sued without principal.

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 Postoffice 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 govern

of contract discharges sureties, see note to 6 L. ed. NOTE.-When agreement for delay or variation

U. S. 190.

As to liabilities of sureties on official and other

bonds, see notes to 3 L. ed. U. S. 709; 6 L. ed. U. S. 577; 42 L. ed. U. S. 987, and 51 L.R.A. 222. As to rights and liabilities of sureties, see note to 12 L. ed. U. S. 66.

It is, perhaps, hardly necessary to state that this case bears no resemblance to that of The 278*] 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 principal debtors will discharge surety, see note to

As to what forbearance or extension of time to 12 L. ed. U. S. 111.

law.

ment from suing the principal and sureties upon | principal in the bond, on which this suit is the postmaster's bond, and the court refused, upon brought. The United States agree with the the ground that the jury were the proper judges of the fact whether time was given, on a perusal principal, without the knowledge or consent of the mortgage; this was an error in the court. of the sureties, in order to secure the payment It is the duty of the court to construe all written of his debt, and agree for a large and valuable instruments given in evidence, as a question of consideration to give him time for the payment Payment under this mortgage could not be en- of the debt. The United States receive from forced until after the lapse of six months from its the principal a mortgage of valuable property date. But its acceptance by the government did not release the sureties upon the bond, because, in to secure the whole of their debt. This disorder to discharge the surety by giving time, the charges the sureties, because time for the paytime which is given must operate upon the instru- ment of the debt is given, and it is a higher ment which the surety has signed. The mortgage here was only a collateral security, which was security for the debt. 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 this 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 the 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.

Mr. May and Mr. Brent, for the defendants in error, divided their arguments into three heads, viz.:

I. That the mortgage discharged the defendants from all liability on their bond to the plaintiffs.

II. That the exceptions were not properly taken.

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, 132; Pitman on Princ. and Surety, 167, 170, 182, the law on this subject is very strict. 7 Price, 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 & Collyer, 188, 189; 7 Harr. & Johns. 103; 8 Bing. 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 [*281 security for the debt. In Louisiana, it amountIII. That the action was erroneously brought. ed to a judgment. Code of Practice, art. 732, Before entering upon the argument, the pre-733; 6 Martin, N. S. 465; 15 Peters, 170. liminary 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. 280*] *This proposition involves three, viz.: 1st. The facts attending the execution of the mortgage.

2d. The law authorizing it.

3. The law applying to and expounding it, With respect 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 Ker, who was the

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 Cranch, 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, in the sum of twenty-five thousand dollars, for the faithful discharge of his duties as postmaster. Having failed 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 defense 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 Postoffice 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, "on the trial of the 282*] cause, the district attorney requested the court to charge the jury," etc., 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 deemed 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 and 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.

dorsed by him. Now, if the Postoffice 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 operates beneficially to the defendants. For if they shall pay the defalcation of Ker, or so much of it as shall amount to the penalty of the *bond, and [*283 the mortgaged property shall be sufficient to cover the whole indebtment, there can be no question that the sureties would be subrogated to a due proportion of the rights of the department in the mortgage.

The 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 waives a notice of demand. But if the holder of the 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 anything 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 under consideration, and consequently it can in no respect affect or suspend the remedy of the Postoffice 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 not 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 action on the official bond. Consequently, no injury is done to the sureties on that bond, They are left free to act for their own interest, as they could have acted before the mortgage. Payment under the mortgage could not be The principle on which sureties are released is enforced until after the lapse of six months not a mere shadow without substance. It is from its date. And it appears that the mort- founded upon a restriction of the rights of the gage was designed to cover the whole amount sureties, by which they are supposed to be inof Ker's defalcation. But the important ques-jured. But by no possibility can they be tion is, whether this mortgage suspended the legal remedy of the department on the official the contrary, it is clear that the mortgage may injured in the case under consideration. bond of the postmaster. There is no provision operate beneficially to them, if they shall pay in the mortgage to this effect. And it cannot be successfully contended, that taking col- the amount of their bond. lateral security merely can suspend the remedy on the bond. The holder of a bill of exchange, by taking collaterial security of the drawer, not giving time, does not 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.

Giving time for payment, to discharge the indorser, must operate upon the instrument in

Оп

And the Circuit

Court should have instructed the jury to this

effect.

The motion for a new trial was not a waiver of a writ 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 requir ing a party to waive on the record a writ of er. ror, before his motion for a new trial is heard. In the greater part of the circuits no such rule

JACOB MARSHALL and William B. White Whitesides sold to Bush a pre-emption right to

It appears, also, from the same evidence, that lots. And also that said Whitesides, by himthe land officers "had received instructions self, or agent duly authorized for said purfrom the general land office, to expose all lots pose, did propose and offer to said Bush, that to public sale where the claimants should re- if said Bush would bid for said lots, and agree linquish their right to pre-emption (under the that his purchase should be under the contract law laying off the town) to the United States." for them set out in the pleading in the above In September, 1840, the lots in the town of causes, said Whitesides would make no opposiDubuque were offered at public sale. Bush tion to his so doing, but was perfectly willing went to the land office, and protested against said Bush should become the purchaser with the lots No. 7 and No. 194 being offered at pub- this understanding; but that said Bush utterlic sale. ly refused so to do; when said Bush was inPrevious to the sale, however, it appears, formed by said Whitesides, or by his agent, from the testimony of Dougherty, that a "com- that said Whitesides would bid for said lots at mittee of arrangements had been appointed for said sale, in order to enable him to comply with the purchase of lots in the town of Dubuque;" his contract with said Bush. That said Whitethat there was a "public bidder," who was a sides and Bush were the only bidders for said person selected by the claimants to lots in the lots at said sale, and that Philip S. Dade was town of Dubuque, to purchase the lots they the bidder for said Whitesides, of which the claimed, as they were offered at the public sale. said Bush, previous to and at the time of said It appears from the evidence of Dougherty, sale, was advised and informed. That the memthat the committee of arrangements called on orandum at the foot of the deed or mortgage, Bush, and informed him that the committee de- that said Bush was to furnish the money to sired him to make his relinquishment to lot pay for said lots, was there inserted by the No. 7, which he positively refused to do. The express agreement and understanding of said committee then erased the name of Bush, and Bush, at the time of executing said deed and inserted the name of Whitesides, and informed mortgage. Whitesides immediately of the same; when he, The public sale took place in September, the said Whitesides, came before the commit-1840, after Bush had refused to purchase under tee, 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 pre-emption 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 the 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.

287*] *2d. That said lots would not have been put up and sold at said sale, unless the said William B. Whitesides had 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 relinquishment, and subsequent thereto (but previous to the sale), said Bush was informed by E. C. Dougherty and White sides, and by said Whitesides's agent, that his object in having the said lots put up to sale was expressly with a view that the title to them might be perfected in said Whitesides, so that he could make a good title to said Bush, upon said Bush paying the purchase money for said

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 off to Bush, and 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. appeal was taken to the Supreme Court [*288 of Iowa, where the decree of the court below was affirmed, and the cause was brought by appeal to this court.

An

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 Whitesides. The property mortgaged consisted of two lots (number 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, 1833) 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 situated 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 pre-emption from the government, or, at least, that they could complete their title by purchase from it, when the lots should be offered for sale.