ton.

cuted a deed for the property to John S. Pres- | fail to pay the notes, and the indorsers compelled to pay them, that he (Phillips) and On the 17th of February, 1841, Preston, Preston should be equally bound, and share calling himself a citizen of South Carolina, alike in the loss, and that he, Preston, wished filed a petition in the Circuit Court of the it so stated in the act. After this conversation, United States against Phillips, a citizen of Colonel Preston turned to Mr. Caire, the notary, Louisiana, alleging that, by virtue of the agree-and remarked that he wished it noted in the act ment between them, Phillips was bound to pay that the indorsers should be bound alike on to him the one half of all that he had paid, failure of Carr. The notary then put down on being $28,702.87, with legal interest on $9,014.- paper the exact words that Colonel Preston 13, from the 4th day of March, 1838, and like dictated; all the parties were near each other, interest on $9,567.62% from the 4th day of and participating more or less in the conversaMarch, 1839. And on $10,121, from the 4th tion. After this, Colonel Preston and Colonel day of March, 1840, with half the costs of Phillips indorsed the notes and handed them protests. over to the notary; Colonel Preston indorsed first, and Colonel Phillips next; and instructions were given to the notary, Caire, to draw up a new act, inserting the clause aforesaid, as regards the equal liability of the indorsers; and then, to identify the notes with the act, the clause was added in the new act, and witness, when his attention was called to it by Mr. On the 20th of April, 1841, the court over- Caire, objected to its insertion, because, as he ruled this exception, and Phillips filed filed an then thought, it made the indorsers liable to answer, denying "all and singular the allega-him for only their half. Mr. Caire called upon tions contained in the plaintiff's petition, and an attorney at law, whose name witness does particularly that he ever promised or undertook not remember, to explain it, and thereupon to be responsible on the notes described in said petition, in any other capacity except as second indorser, and after and in default of the plaintiff, or that the said notes ever were duly protested, and notice given to this defendant."

On the 26th of February, 1841, the counsel of Phillips filed an exception, being a plea to the jurisdiction of the court, upon the ground that Barrow was the assignor of the notes to Preston, and that Barrow, being a citizen of the same State with Phillips, was incapable of suing him in the United States Court.

In April, 1841, the cause came up for hearing. On the trial the following testimony was filed: 281*] *Testimony taken by Consent, this April 23d, 1841.

John S. Preston v. George W. Phillips.

witness was satisfied that it did not affect him, but only *related to the respective liabili-[*282 ties of the indorsers. The act was not signed at the time the notes were given, but was signed at a different time on that day, or the day next, but he cannot remember. Witness recollects the conversation very distinctly, as it was impressed on his mind at the time, and has frequently thought of it since.

Being shown the copy of the act annexed to the petition, and the clause at the top of the The testimony of Robert R. Barrow, a wit-page, says, they are the same referred to by ness for the plaintiff, who, being duly sworn, him. The three notes marked A, B, and C, deposeth and saith, being asked by the plaintiff filed with this deposition, are part of the conwhat he knows in relation to an agreement be-sideration of the sale; Colonel Preston took up tween John S. Preston and George W. Phillips, in relation to their indorsement of certain notes given by Samuel J. Carr to him, on payment of a plantation and slaves in Point Coupee, purchased from him by said Carr, about the 17th of March, 1837.

(The counsel of the defendant, Seth Barton, Esq., objecting to the above question, and reserving all legal exceptions.)

three of the notes, A, B, and C, and paid them after protest, interest and all charges, which payment was made before this suit was instituted. The tract of land in West Feliciana, mortgaged to secure the payment of these notes, was seized and sold to pay prior mortgages of said Carr, and consequently there was nothing to come from that land to pay this debt of Carr's, for the plantation sold as aforesaid; this tract was woodland; Colonel Preston has paid the notes which have matured, and has assumed the balance due, he having purchased in the property mortgaged, to secure the payment of the notes aforesaid.

The witness says that he was present at the time the notes were signed, about the 17th of March, 1837. Samuel J. Carr, the plaintiff, and defendant, with deponent, met by appointment at the time of the sale, at Caire's office, before whom the act was passed; the act was already prepared when the aforesaid parties met, it having been prepared by the notary, under the directions of witness and said Carr; the notes were also drawn up and ready to be signed, under Carr and witness' directions and instructions; the notes were then handed to the plaintiff to indorse; when about to sign, Mr. Preston observed that he thought those notes were to have been drawn to the order of Phillips, the defendant. Mr. Carr replied that he did not know that it would make any difference. And thereupon Colonel Preston turned round, and, addressing himself to Colonel Phillips, the Witness never had the act of sale referred to defendant, said he supposed it made no differ- recorded in West Feliciana; that the property ence, and said he wished it particularly under-in Feliciana was sold for judgments of youngstood between them, that in case Carr should er date than the sale aforesaid; the first note of

The defendant, by S. Barton, his attorney, objects to the whole of the foregoing deposition of the witness, as illegal and incompetent; and specially to all such parts of it as are hearsay or secondary proof; and specially, also, to all such parts of it as go to vary, or contradict, or explain the written testimony to which the witness. refers; and particularly such parts as tend to prove anything against or beyond the authentic act of sale, on file in this cause, and insisting on such objections (to be urged on trial), and waiving no part thereof, cross-examines the witness, under the above reservations.

to which decision of the court the defendant excepts.

$18,000 was paid by a renewal of note payable to the Union Bank; the other two were paid by drafts; the note given on renewal was not in- 4th. The plaintiff offered in evidence the dorsed by Colonel Phillips; Colonel Phillips first, second, and third of the promissory notes was no party to the drafts referred to; the described in the petition, together with the prodrafts were on time and suited witness; wit- tests thereof, and the several certificates of the ness thought from appearances that Preston and notary in relation to the manner and times in Phillips were just introduced to each other, or which he notified the plaintiff and defendant not long acquainted, when they met at the of the dishonor of the notes as they respectivenotary's, as above related; some short time be-ly matured. Whereupon the defendant objected fore the act was passed, witness met Colonel Phil- to the admission of the said certificates, or any lips at the theatre, and had some conversation proof adduced for the purpose of, and leaving about his indorsing for Carr; said he, Phillips, notice to the indorsers of, protest, as no such had promised to indorse for Carr, but Carr notices were alleged *in the petition; [*284 said it would only be temporarily, as he had the court overruled the objection, and admitted made arrangements to change the indorsements, the evidence; and to its decision therein the deby substituting Colonel Isaac T. Preston in the fendant excepts. place; witness thinks that Colonel Phillips must have heard the conversation related to above, as it took place at the notary's; does not 283*] recollect *that Phillips made any reply to Colonel Preston; Phillips must have heard it, as the conversation was made direct by Preston to him; and Phillips must have heard the direction of Preston to the notary, to insert the clause; thinks they met at the notary's at ten or eleven in the morning; neither the plain-clause in the act of sale, setting forth said agreetiff or defendant attended at any other time at the notary's than that mentioned, nor were they present when he and Carr executed the Act, nor can he say that Phillips has seen the act; there was no arrangement between him and Preston, in relation to the sale of the property. It is admitted that the property was purchased by Colonel Preston, plaintiff, for $67,500; that the third note was paid by draft prior to the sale under the seizure and sale; the three last notes assumed by Preston are in the hands of witness; witness has never had the mortgage raised, to secure the last three notes.

(Signed)

R. R. Barrow. Sworn to and subscribed before me, this 23d April, 1841.

Duncan N. Hennen, Clerk. Upon the trial, the counsel for Phillips, the defendant, filed the following bill of exceptions: 1st. The defendant, by his attorney, offered to file document A as his peremptory exceptions founded in law; to the filing whereof the plaintiff's counsel objected, and their objection was sustained by the court; to which decision the defendant excepts.

This document was offered after the pleadings were read:

5th. The plaintiff offered Louis T. Caire (the notary before whom the act of sale was passed that is described in the petition) as a witness to prove the allegations of the petition, and a verbal agreement between the plaintiff and the defendant, made before the passing of the act of sale, that, as between themselves, they would be equally liable as indorsers, as stated in the petition. And also to prove by him that the

ment, was inserted therein by the instruction of the plaintiff, in the presence of the defendant, and without any objection thereto on his part. Whereupon the defendant objected to the admission of such evidence; but the court overruled the objection, and admitted the evidence; and to its decision therein the defendant excepts.

6th. The plaintiff offered in evidence the copy of the act of sale described in the petition, and marked C, to the admission of which, and such parts thereof as were adduced for the purpose, and tended to prove any agreement between the plaintiff and the defendant, as to their equal liability between themselves, upon their several indorsements upon the promissory notes described in the petition, and to charge the defendant with any liability resulting therefrom, the defendant objected; but the court overruled the objection, and admitted the evidence; and to such, its decision, the defendant excepts.

7th. The plaintiff offered in evidence the record of the suit of Robert R. Barrow v. S. John Carr, being the order of seizure and sale, and proceedings therein, relating to the seizure and sale of such of the property described in 2d. Before any evidence was offered by the petition and act of sale, as was situated and either of the parties in support of the several located in the parish of Point Coupee, Louiissues, on their respective parts to be main-siana. The said record is marked D; to the adtained, the defendant's counsel moved the court that the clerk be directed to take down the testimony of all the witnesses whom either party should adduce on the trial, and to file all documentary proof received in evidence, and keep minutes thereof; but the court overruled the motion, and witnesses were examined without their testimony being taken down, and documentary proof received without being marked as filed, or minutes taken thereof; to which decision the defendant excepts.

3d. The plaintiff offered in evidence the deposition of Robert R. Barrow, marked B, to the reception whereof the defendant objected; but the objection was overruled by the court, and the deposition was admitted in evidence;

mission of which record and proceedings the defendant objected, but the objection was overruled by the court; and to such, its decision, the defendant excepts.

8th. The plaintiff offered in evidence document marked D, purporting to be an act of sale from the sheriff of Point Coupee, adjudicating the property last mentioned to the plaintiff, as the purchaser at public sale; to the admission whereof the defendant objected, but the court overruled the objection; to which decision of the court the defendant excepts.

The defendant, by his attorney, having reserved the foregoing several exceptions, as the occasions thereof severally arose in the course of the trial, and at the suggestion of the court,

And for causes of peremptory exception, he sets forth and assigns the following, to wit: 3d. The agreement stated in the petition is 1st. The agreement stated in the petition to at variance with, and in contradiction of, the have been entered into by the plaintiff and de-contract of indorsements, which arises from the fendant is nowhere alleged to have been in writing, or signed by the parties, or embodied in any instrument of writing to which they were parties, or to which they, or either of them, assented, by their presence or otherwise, at the time of the execution of any such instrument of writing, by those who may have been parties thereto.

4th. There is no allegation in the petition of notice or notices being given, either to plantiff or defendant, of the dishonor or protest of any one of the said promissory notes, as they re2d. The petition in no part alleges any, or aspectively matured. sufficient, consideration for the said supposed 5th. The evidence adduced at the trial, as agreement, nor does it allege or show that the shown by the statement of facts, and the sevsaid agreement imported in itself any, or a suffi-eral documentary proofs to which it makes cient, consideration.

due March 1, 1839, and one half of the note | ana "peremptory exceptions." These
due March 1, 1840, viz.:
Amount of judgment,

two kinds, one as to form, and one as to law. Those in this case were offered as "peremptory exceptions, founded in law." By the Code of Practice of Louisiana, art. 345, such exceptions "may be pleaded in every stage of the action 9,567 62 previous to the definitive judgment." 1 Louisiana R. 315; 4 Martin, N. S. 437.

The cause was argued by Mr. Barton for the plaintiff in error, who contended, that if Preston obtained the notes from Barrow by substi-use in Louisiana, these exceptions must be contution, then the plea to the jurisdiction of the court must be sustained, because Barrow and the original defendant, Phillips, were both citizens of Louisiana. 4 Dall. 8, 10, 11.

Until payment of the note, there is no claim against the present indorser. 4 Cranch, 46. By the law of Louisiana, peremptory ex-examination of the record it will be seen that eptions are taken to matters of fact or matters of law, by way of demurrer. Code of Practice, art. 343-346.

was connected with this point, Wilcox et al. v. | refusing to do what we think neither the lanHunt, 13 Peters, 378, it was remarked, that guage nor spirit of the law requires in a case the plea put in there as a part of the State like this. Parsons v. Bedford, 3 Peters, 433. practice, as the latter had not been adopted, There are two other objections of form, was not received. But the practice there stand- which appear on the record and may well be ing differently from that which is urged in this noticed, though they are not embodied in the case, that decision does not control the present bill of exceptions. One is as to the waiver of a trial by jury in this case in the court below. After a hearing there, it was urged, that, the waiver not having been entered on the record, the court was not authorized to proceed without a jury.

one.

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

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

The other objection is spread upon the early part of the record, and was a proper one for the consideration of the court in that stage of the case, as it went to its jurisdiction. This was urged on the ground that the notes mentioned in the petition of the plaintiff below belonged or ran originally to R. Barrow, a resident of Louisiana, in the same State with the

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

plaintiff, and thus the latter cannot sue the deIn this case, likewise, it would be totally use- dendant in this court, if Barrow could not. less to have all the facts taken down in that This position would be well taken under the manner, because, if so taken and sent up here, provision in the 11th section of the Judiciary it would be irrelevant and improperly burden-Act of 1789, if the original plaintiff had instiing the record, as much as the whole charge tuted his suit upon the notes as assignee of and opinion of the judge, instead of the naked them. See Towne v. Smith, 1 Wood. & Min. points excepted to. See 28th rule of this court, 115; Bean v. Smith *et al. 2 Mason, [*291 and Zeller's Lessee v. Eckert et al. 4 How. 297, 252; 16 Peters 315; Stanley v. Bank of North 298. If a case comes up in that manner, this America, 4 Dall. 8-11; Montalet v. Murray, 4 court never reconsiders or re-examines all the Cranch, 46. But so far from that, he does not facts, but merely the law arising on them, as if declare at all on the notes. He sets out a sep290*] a bill of exceptions *had been properly arate and different contract as his ground for filed. This has been decided already in Par- recovery, resting on an original agreement besons v. Armor et al. 3 Peters, 25; Minor v. tween him and the defendant; and does not set Tillotson 2 How. 394. out any assignment of those notes to himself by Barrow. Even if he counted on the notes, but not on or through an assignment of them, this court would have jurisdiction. 6 Wheat. 146; 9 Ibid. 537; 2 Peters, 326; 11 Ibid. 801; 3 Howard, 576, 577; 1 Mason, C. C. 251; 1 McLane, C. C. 132. The judge below, then, properly overruled this objection.

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

To conclude on this point, then. it will be seen that the plaintiff in error, notwithstanding the refusal to have the clerk take down this evidence, has enjoyed all the benefit of it under his bill of exceptions, where it was material and he wished to raise any question of law on it, and has enjoyed it as fully as if the whole had been taken down and filed. And thus he loses nothing and suffers nothing by the court

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

On looking to the petition, it will be seen that it sets out a sale of land between other parties; the mode of payment stipulated; the agreement between the plaintiff and defendant to become indorsers of certain notes, and divide between them any loss; the subsequent failure of the purchaser to pay the notes; the settle