"A rule was granted to show cause, and the, such a case; the Legislature have provided a judge returned the foregoing facts. party another remedy.

"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 exceptions 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,” etc.

"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 at 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, 102.

[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 Union as a State since the writ of error was brought, the act of 1838, regulating its judicial proceedings as a Territory, is necessarily abrogated and repealed; and consequently there is no law in force authorizing this court to re-examine and affirm or reverse a judgment rendered by the Supreme Court of the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 the present session of Congress), an act has been passed to remedy this omission (see Act of 22d February, 1848), and the court have proceeded to hear and determine the case on the errors assigned.

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. v. Wilson, de-act of 22d February, 1847. Since that time (at fendant 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 sign it. The bill of exceptions was not tendered dur273*] ing 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

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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. Consequent- [*274 ly, 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 tune; 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 no 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

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trial, refused to sign it nunc pro tunc, as if taken 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, 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 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 of the trial, reduced to writing, and tendered to the judge, and gives ample remedy to the party injured, in case of a refusal to sign them or permit them to be made a part of the record. If the party does 275*] not avail himself of the remedy 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 on particular occasions depends on so many circumstances which cannot appear on the record, 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 to make up a bill of exceptions two or more years after a trial, where the counsel have disagreed as to the facts, and failed to settle the exceptions at the term in which the cause 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 form; but 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 of exceptions was not taken at the trial, but purported on its face, as in this case, to have been taken and signed after judgment rendered in the cause. "It is true," said 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 de

| cision 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 settled 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 of 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 [*276 all such cases, the bill of exceptions is 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 the 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 neighboring 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 rec

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 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.

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 Oc-more; it was, therefore, wholly within the tober 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 į 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).

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.


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.



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 Where a mortgage was given by a postmaster to Court shall indorse upon the transcript of the secure the Postoffice Department, and the Circuit court below allowance of said writ of error for Court was asked to instruct the jury, that, accordprobable cause; and in such cases, the partying to the true interpretation of the mortgage, there contained therein no stipulation or agreeissuing such writ shall give bond to the op- ment to extend the time, or preclude the governposite party, with good security," etc. 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 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

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.

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.

principal debtors will discharge surety, see note to 12 L. ed. U. S. 111.

As to what forbearance or extension of time to


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. order 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 security for the debt.

here was only a collateral security, which was bencficial 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.

This dis

It is a general rule of law, lying at the foun- . dation 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 & 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 injured in the case under consideration. legal remedy of the department on the official the contrary, it is clear that the mortgage may bond of the postmaster. There is no provision in the mortgage to this effect. And it cannot operate beneficially to them, if they shall pay be successfully contended, that taking col- the amount of their bond. lateral security merely can suspend the remedy Court should have instructed the jury to this 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



And the Circuit

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 error, before his motion for a new trial is heard. In the greater part of the circuits no such rule

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