United States v. Allsbury, 71 U.S. (4 Wall.) 186

United States v. Allsbury.

If a judgment is obtained against a surety, the amount of it being flxea by a judgment previously obtained against his principal, the former judgment cannot be reversed on error as for an amount too small, though the latter should be afterwards reversed as having so been.

Error to the District Court of the United States for the Western District of Texas.

Allsbury had become bound as surety in the official bond of Dashiel, paymaster. Suit having been brought on this bond against Dashiel, and Paschall, one of the sureties, to recover what the United States alleged was due, to wit, $20,085, a defence was set up to part of the claim; and the defence being sustained by the court below, the United States had verdict and judgment for but $10,318.22. Error was taken to that judgment, and the judgment reversed. The case next preceding gives report of the matter.

The present suit was brought on the same official bon of Dashiel, against the personal representatives of Allsbury, another of the sureties. The case came on for trial after the trial, verdict, and judgment, just mentioned, against t e principal, and Paschall, the other surety, for $10,318.22.

The judgment was pleaded puis darrein continuance, in this suit, for the purpose of reducing the recovery to t a amount.

It was admitted by the court, and instructions given accordingly, and the jury found a verdict for the above sum.

The correctness of what was thus done was the ques ion now here.

Jfr. Stanbery, A. Gr., submitted the case in behalf of t e United States. J/r. Paschall, contra.

Mr. Justice NELSON delivered the opinion of the court.

It is unnecessary to refer to authorities to show that liability of the surety cannot exceed that of his pnnc and that amount having been fixed by a judgmen a

it formed the rule to determine the sum to be recovered in this suit. The verdict and judgment were competent evidence on behalf of the surety for this purpose; indeed, the highest evidence of the fact. Other questions would have arisen if this judgment had been offered against the surety. The counsel for the government, if desirous of recovering a greater amount, should have postponed the trial of this case till the error had been corrected which was committed in the case against the principal. Then he would have been in a situation to avoid the effect of the erroneous judgment. This is the only question presented on the record.

Judgment affirmed.

Leftwitch v. Lecanu.

. When a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the 2 ThDe re^erre^ *n the bill of exceptions, otherwise it will be disregarded. • that a copy of a paper is attached to a pleading in the case, which purports to be the same as the paper mentioned in the bill of exceptions, oes not make it a part of that bill, nor can this court presume that it is the same paper read in evidence and excepted to.

A statute of Louisiana* enacts “that notaries shall keep a book, m which they shall transcribe all the protests by them ma e, with mention made of the notices which they shall ave given to drawers and indorsers, &c.; which declaration,

Q y recorded under the signature of the notary public and two

received as a legal proof of the notices.” nth 1 • statute in force, Lecanu sued Leftwitch and Ea 1Dn^e. Court of the United States for the not lstr^t Louisiana, as indorsers of a promissory to s * h 6 WaS ^1G f°rm usual in Louisiana, that is y> y petition, and the plea was a general denial,

On the trial before a jury, the counsel for the plaintiff be« low offered in evidence an instrument in writing on the back of the protest, and purporting to be a certificate of the notary, that he had notified the indorsers of the note, which is contained in the record.

The certificate, although it stated in the body of it that it was signed by two persons, Janin and Lenes, the “two witnesses,” had not their signatures to it.

The counsel for the defendants objected to reading the instrument, on the ground that the certificate was not in conformity with the laws of Louisiana, and, consequently, that it did not prove the notice. The court overruled the objection, and the plaintiff excepted.

The bill of exceptions stated that “ plaintiff offered in evidence an instrument in writing on the back of the protest, purporting to be a certificate of the notary, that he had notified the indorsee to this note, which is hereunto annexed for reference as a part of this bill, to which certificate counsel for defendant objected,” &c. No such paper was, however, found attached to the bill of exceptions, nor in any manner referred to, or marked, or identified as being a part of it, or as the paper which was offered in evidence.

Mr. Justice MILLER delivered the opinion of the court.

The only allegation of error in this record relates to a certificate of a notary public, that he had notified the indorsers of a promissory note of the dishonor of said note. .

The bill of exceptions states that “ plaintiff* offered in evidence an instrument in writing on the back of the protest, purporting to be a certificate of the notary, that he ha notified the indorser of the note, which is hereunto annexe for reference as a part of this bill, to which certificate counse for defendant objected,” &c. No such paper is found an nexed to the bill of exceptions, nor in any manner referre^ to, or marked, or identified as being a part of the bi 0 exceptions, or as the paper which was offered in evidence.

The suit being in the Circuit Court for the District of Louisiana was commenced by petition, and according to the practice in such cases, there is annexed to the petition a copy of the note sued on, and of the protest and certificate of notice to the indorsers. But this is merely a copy attached to, and a part of the pleading, and is certainly not the paper which was offered in evidence. It may or may not be a perfect copy of that paper; but whether it is so br not, it is certain that it does not become a part of the bill of exceptions by being attached to the pleading.

If a paper which is to constitute a part of a bill of exceptions, is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number, or other means of identification mentioned in the bill, as to leave no doubt, when found in the record, that it is the one referred to in the bill of exceptions.

There is nothing of the kind here; and as we must presume the ruling of the court to be right, in the absence of anything showing it to be wrong, the judgment must be

Affirmed.