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

two kinds, one as to form, and one as to law. $19,688 74 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 Louisi ana R. 315; 4 Martin, N. S. 437.

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.

288*] *Preston took renewed notes, and thereby extinguished Phillip's liability. For It is true, that by a statute of Louisiana, the doctrine of novation, see New Civil Code, passed July 20th, 1817, their courts are directart. 2181, 2187, 2194; 2 Martin, N. S. 144; 1 ed to have the testimony taken down "in all Louisiana R. 527; 4 Ibid. 511, 512; 1 Robin-cases where an appeal lies to the Supreme son, 302, 303; Code of Practice, 642, 680, 732, 745.

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 char-habits of the people under the civil law inclined acter 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.

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; McCollum v. Eager, 2 Howard, 64.

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 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 resi dent of Louisiana, in the same State with the defendant, and that his title was assigned to the plaintiff, and thus the latter cannot sue the dedendant in this court, if Barrow could not. This position would be well taken under the provision in the 11th section of the Judiciary

In this case, likewise, it would be totally useless to have all the facts taken down in that manner, because, if so taken and sent up here, 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, 425; Minor v. Tillotson 2 How. 394.

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

tween him and the defendant; and does not set 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.

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.

ment of them by the plaintiff, and his right | pecially if it did not contradict any legal imunder the agreement and facts to recover of plication from the name being there. And the defendant one half of the amount. The whole claim proceeds on the collateral agreement, and there is no pretense of grounding the suit, as holder or indorsee, on any premises contained in the notes, or in the indorsements on them.

hence, under circumstances like these, where, as in Louisiana and some other States, it is implied by law that such a person puts his name there as a surety or guarantor, no objection exists to parol proof to that effect. 10 Louisiana R. 374; Lawson v. Oakey, 14 Ib. 386; Nelson v. Dubois, 13 Johns. 175; Dean v. Hall, 17 Wend. 214; 5 Mass. R. 358; 12 Ibid. 281; R. 233; 4 Wash. C. C. R. 480; 5 Serg. & Rawle, 363. In White v. Howland, 9 Mass. R. 314, he is held to be liable as if signing with the maker as a surety. But however much, in some States, the practice may go beyond this in suits between the parties to the agreement, as in 1 Hammond, 420, and 5 Serg. & Rawle, 363, it could generally not be competent to prove anything by parol, in actions on the note, contrary to what is written or to what is implied in law. Bank of the United States v. Dunn, 6 Peters, 59.

And in other States and in other circumstances, where the inference of law is not that such a name is placed there as a surety, it is very doubtful whether, in a suit on the note, proof that he did it only as a surety is competent. 6 Martin, N. S. 517; Bank of the United States v. Dunn, 6 Peters, 59.

There is also a good consideration for this collateral agreement. It is the promise of the plaintiff before hand to lose one half, if the de-1 Vermont R. 136; Ulen v. Kitteridge, 7 Mass. fendant would become a surety with him and lose the other half, and the actual payment afterwards of the whole by the plaintiff. Being then a collateral agreement by parol, which is sued, it stands free from the objection to the parol evidence offered to prove it. Were the action on the notes, and this evidence offered to contradict them, it would be entirely different; because, in an action on a note, parol testimony is not competent to vary its written terms and probably not to vary a blank indorsement by the payee from what the law imports. Civil Code of Louisiana, art. 2256; Stone et al. v. Vincent, 6 Martin, N. S. 517; 15 La. R. 539; 10 Ibid. 205; 1 Peters's C. C. R. 84; Bank of the United States v. Deane, 6 Peters, 59; 3 Camp. N. P. 56, 57; 9 Wheat. 587; 1 Martin, N. S. 641; Chitty on Bills, 541; 12 East, 4; 4 Barn. & Ald. 454. So, between the contracting parties, likewise, all prior conversation is supposed, as far as binding, to be embodied into the written contract. 4 Louisiana R. 269; Taylor v. Riggs, 1 Peters, 591; 8 Wheat. 211. But the parol evidence here is 292*] not offered in any action on the note, or to alter its terms or its indorsements; nor is any prior or contemporaneous conversation of fered to vary the note, or its indorsement, in an action founded on either of them. But it is offered to prove a separate contract, which was made by parol, and is of as high a character as the law requires in such cases, and this evidence is plenary and entirely satisfactory to substantiate the separate contract. It is true, at the same time, that, after a prior indorser has paid a note, he cannot recover, even in an action, not on it, but for contribution of one half from a second indorser, if they were not in fact joint sureties, nor in fact made any collateral contract whatever, nor in fact had any communication whatever as to their liability. McDonald v. Magruder, 3 Peters, 474; 3 Harris & Johns. 125; 7 Johns. 367.

*In England, in the case of such a [*293 name on the back of a bill of exchange, the person may be treated as a new drawer (Chitty on Bills, 241); and if the payee there has also indorsed the note, the implication deemed most proper is, that another name on the back is that of a second indorser, and should so be held in the hands of third persons. Chitty on Bills, 188, 528; Holt's Nisi Prius, 470; 5 Adolph. & Ellis, 436; 6 Nev. & Man. 723. So, 6 Martin, 517. It will be seen, however, that these last are generally cases of actions on the notes or bills of exchange themselves, while the present case is not brought on the note itself, but on a distinct and collateral contract.

Another suggestion bearing on the case might be, that in Louisiana the surety, when paying, may step into the shoes of his creditor, if he pleases, by subrogation, and enjoy all his rights against the debtors or other sureties. Hewes et al. v. Pierce, 1 Martin, N. S. 361; Calliham v. Fanner, 3 Rob. Louisiana, 299; Civil Code of Louisiana, art. 2157. But there the suit is probably in the creditor's name, and But the present is a case differing, toto cælo, not, as here, in that of the surety. So, in some from that. Here, by a deliberate arrangement countries where the civil law prevails, such a before a public notary, and by the positive evi- contract as this, deliberately made before a dence of two witnesses, the two indorsers were notary, and by him reduced to writing by reco-sureties, and specially agreed to bear any quest of the parties, would in law be deemed loss equally between them; and the right to re-equivalent to a contract in writing; and on that cover is therefore entirely clear. 3 Peters, 477; Douglass v. Waddle, 1 Hammond, 413, 420; Deering v. The Earl of Winchelsea, 2 Bos. & Pull. 270.

There are two or three other views connected with this part of the case which may be usefully adverted to, but by which we do not decide it.

ground be admissible even in a suit on the note between the original parties to it.

The doings of the parties thus have a sort of public form given to them, quasi judicial, and they are bound by them, though not signed by the parties. 2 Domat's Civil Law, b. 2, tit. 1, sec. 1, art. 28; and tit. 5, sec. 5, pp. 661, 662. It would be there deemed an act of too much Thus, where a person like Phillips, the orig- deliberation by the parties, and of too much inal defendant, was not a party to a note, but formality before that public officer, to be put his name on the back of it, parol testimony treated merely as an ordinary verbal arrangehas been deemed competent to show the real ment. Coop. Justinian, 586; 3 Burr. 1671; object for which it was placed there; and es-Story on Bills, sec. 277. But, though the

Louisiana code, founded chiefly on the civil Upon the whole case, then, we are happy to law, may not expressly abrogate such a doc-find that no legal objection seems to be tenable trine, it does not in terms make records by a against making the original defendant meet an notary valid, unless signed by the parties, or engagement which, on the record, he appears consisting of copies of papers signed by the to have been bound in honor and justice, no parties and acknowledged before witnesses. less than law, faithfully to discharge. Although Civil Code, art. 2231, 2413; 8 Martin, N. S. the court have deemed it proper thus to deliver 568; 10 Louisiana R. 207, 354. And though an opinion on this case, as it has been argued the paper containing this is signed by the par- by the counsel for the plaintiff in error, yet the ties to the sale and attested by witnesses, it is death of the plaintiff has since been suggested; not signed by Preston and Phillips, the parties and no appearance is entered for the defendto this arrangement. ant. We shall not, therefore, enter judgment in conformity to the opinion until the defendant or the representatives of the deceased appear.

It is not necessary, however, to decide absolutely on the effect of either of these last views. Deeming the action here to be founded on the collateral agreement, and deeming the evidence offered to be competent, for the reasons first stated under this head, these conclusions will virtually dispose of the last six exceptions contained in the record of this case.

*JAMES INNERARITY, Plaintiff in [*295

Error,

V.

THOMAS BYRNE.

Thus, as to Barrow's deposition, the admission of which was the ground of one of these exceptions, it is clearly competent to prove this 294*] *separate parol contract in a suit on that, and not on the note. So, the certificates A citation is not necessarily a part of the rec and notices, also excepted to, were properly ord, and the fact of its having been issued and proved as a part of the collateral transaction served may be proved allunde.

under the general expressions in the petition,

and not as notices that should be specially set MR. Bagby moved to dismiss the writ of

out in a declaration, where notes are counted on by a holder. In a case like that, the averment of them and the proof are highly material, but in the former case they are rather historical and merely a part of the res gestæ, without its being essential to give them in de tail. The original plaintiff avers in the petition that the notes were protested, and that he was obliged to pay them, which would not have been the case without due notices; and this is quite enough in an action on a collateral undertaking.

tion.

error in this case for the want of a citaNone appeared in the record.

Motion overruled and case continued to next term.

WILLIAM G. COOK, Plaintiff in Error,

V.

ants in Error.

So, the notary's evidence, which is another of the exceptions, becomes under this aspect entirely competent, and the written memorandum made by him at the time, which is another objection, was also admissible evidence to refresh his memory, if not per se of the facts stated in it. Greenleaf's Ev. sec. 436, 437. That it was admissible to refresh his memory, JOHN L. MOFFAT and Joseph Curtis, Defendsee Smith v. Morgan, 2 M. & Rob. 259; Horne v. McKenzie, 6 Cl. & Fin. 628. Other cases say such a memorandum is admissible itself to go to the jury. Greenl. Ev. sec. 437, note; 1 Rawle, 182; Smith v. Lane et al. 12 Serg. & Rawle, 84; 2 Nott & McCord, 331; 15 Wend. 193; 16 Ibid. 586-598. If this last be a rule controverted, the writing here was "the act of sale," and contained other matters as to the transaction in connection with this as the whole terms of sale, which were clearly competent, and the whole property went together to the jury as exhibiting the progress and character of the transaction, beside being admissible to refresh the memory of the witness. Bullen v. Michel, 2 Price's Ex. R. 422, 447, 476.

So, the evidence of the sale of Carr's prop erty and of the transfer of it to the original plaintiff, Preston, by the sheriff, and the terms of the transfer, though objected to, are mere links in the chain of the transaction, and unexceptionable in that view; and were, like the evidence of the former sale to Carr by Barrow, duly authenticated.

Notes-lex loci-Maryland insolvent law cannot discharge citizen from contract made in New York with its citizen-State court bound to conform to decision of this court declaring State law unconstitutional.

A contract, made in New York, is not affected by a discharge of the debtor under the insolvent laws of Maryland, where the debtor resided, although the insolvent law was passed antecedently to the

contract.

The prior decisions of this court upon this subject reviewed and examined.

THIS case was brought up by a writ of error from the Circuit Court of the United States

for the District of Maryland.

Cook was a citizen of Maryland, and Moffat and Curtis were citizens of New York.

NOTE.-Lex loci, and lex fori as to interpreta tion, effect and validity of bills and notes, see note to 3 L. ed. U. S. 205.

Conflict of laws as to negotiable paper, see note to 61 L. R. A. 193.

The above notes were remitted by Mr. Cook to said firm previously to March, 1832, when he stopped payment. On the 7th June following, his New York creditors generally agreed to give him time to pay, and the said firm of Wilmarth, Moffat & Curtis, about that time, by arrangement made with Mr. Disosway, Cook's attorney in New York, gave time, and took Cook's three notes, drawn payable to the said firm, for the sums following, all dated 12th May, 1832, as the respective time as follows, viz.:

One, 12 months after date, for....
One, 15 months after date, for..
One, 18 months after date, for......

$2,107 00 2,107 00 2,107 03 $6,321 03