Nov. 22, 1871, the said motion for a new trial | preme Court of the United States, affirming having been argued on behalf of the defendants the judgment rendered by this court in favor in support of it, and on behalf of the said Rus- of said Russell, and the same was ordered by sell against it, before the court composed of this court to be placed on file. Drake, Chief Justice, and Loring, Peck and Nott, Judges, was submitted to the court. In conference thereon the said judges were equally divided in opinion; but the majority of them did not authorize any judgment to be entered in open court upon the motion; nor was any such judgment rendered. Dec. 11, 1871, while the said motion was still pending in conference before the judges to whom it had been submitted, the Assistant Attorney General filed a motion in open court to remand the said motion for a new trial to the law docket for a re-argument; and on the 13th day of said month, it was ordered by a majority of the court that a re-argument of the motion for a new trial should be granted; whereupon Judges Peck and Nott dissented, and Judge Nott read in open court and placed on file the following opinion, giving reasons for their dis sent: "The defendant's motion for a new trial in this case was argued before and submitted to four of the judges of this court for their decision. It was also stated on the argument by the counsel for the claimant, and conceded by the counsel for the defendants, that the Supreme Court had affirmed the judgment of this court. Subsequently, and while the motion was still undetermined, an oral suggestion was made by 702*] the Assistant Attorney General *that the case be remanded and heard before a full bench, the only legal reason assigned being the decision of the Supreme Court affirming the judgment of this court. The counsel for the claimant objected, on the ground that the decision of the Supreme Court had been known and was announced on the hearing. The suggestion of the Attorney General was not a motion, according to the rules of this court, but it was subsequently reduced to writing and filed. Jan. 29, 1872, the said motion for the new trial came up before a full bench of this court for re-argument, when a majority of the court decided, for the reasons stated in the following order entered on the record of the court, that the said motion should be dismissed; the Chief Justice and Loring, Judge, dissenting. ORDER. "In this case it was ordered that the defendant's motion for a new trial be dismissed for want of jurisdiction, because, since the same was made, the mandate of the Supreme Court had been filed affirming the judgment of the court in this case, and because two of the four judges before whom the motion was argued, and to whom it was submitted on the 21st of November, 1871, have heretofore rendered and filed their decision that the motion be denied upon the merits." Since the making of this order, no action has been taken by this court in reference to said motion for, a new trial. *The reasons assigned in said order [*703 against the jurisdiction of this court to hear and determine said motion are the only causes which the majority of the court have to show why the alternative mandamus should not issue from the Supreme Court in this case. In regard to the motion for stay of payment of judgment in the case of said Russell, which was filed by the Assistant Attorney General, on behalf of the defendants, on the 11th of November, 1871, the undersigned respectfully state that no action has at any time been taken by this court in relation thereto, and it is now on the files of this court undecided. It was a motion to stay payment of said judgment pending the said motion for a new trial, and the Assistant Attorney General has not heretofore called it up for hearing. April 24, 1872. C. D. DRAKE, "We are of the opinion on these facts that the final judgment of this court, affirmed by the Supreme Court, is property which cannot be taken away except by proceedings in the form of law, and that it should be protected by the full discharge of our judicial duty; that the four judges who heard the motion, constituted a tribunal which can alone decide it, and that it is the right of the parties to have it decided by And the undersigned for themselves give them; that the fifth member of the court, who these additional reasons against the rule: that did not hear it, and to whom it was not sub- the defendants, by voluntarily arguing their mitted, can take no part in its disposition; that appeal in the Supreme Court, after having the suggestion of the Assistant Attorney Gen-made their several motions in the court of eral presents no legal or just ground for order-claims, which they did not proceed to argue in ing a re-argument; and that the defendant's apt time, and by allowing the Supreme Court motion for a new trial is unjust, inequitable to proceed to judgment thereon while their moand contrary to the intent of both the statute tions in the court of claims were still pending, and the common law, and it must be denied. were guilty of experimenting upon the deci"We are also of the opinion that this decisions of both courts in a manner prejudicial to sion by moiety of the four judges constituting the tribunal that heard the motion, and to which it was submitted, does, ipso facto, deny the motion, according to the constant and invariable practice of this court and of the Supreme Court; and that, on its rendition, an order should be entered by the court denying the motion." Dec. 12, 1871, the attorney of said Russell produced in open court the mandate of the Su the ends of public justice; and that the course pursued by them in the Supreme Court while their motions in the court of claims were still pending, must be deemed a withdrawal of those motions from the latter court; and that it was against the course of justice for the defendants to subject the claimant to the expense and risk of a needless trial in the Supreme Court. E. PECK, CHARLES C. NOTT. The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas., not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions. American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: Atl. Atlantic Reporter, Pac. Pacific Reporter, N. E. Northeastern Reporter, N. W. Northwestern Reporter, So. Southern Reporter, S. W. Southwestern Reporter, S. Ct. Supreme Court Reporter. We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books. U. S. Notes 16 Wall. 21 L. ed. 510-104 EDITOR. T XVI WALLACE. 16 Wall. 1-6, 21 L. 491, DAIR v. UNITED STATES. Principal and surety. Where obligee on bond was without notice, and there was nothing to put him on inquiry, the bond being regular on its face, sureties cannot defeat recovery on ground that they signed upon condition that they were not to be bound unless bond was executed also by others, pp. 4-5. This important principle has been applied in the following citing cases: Butler v. United States, 21 Wall. 274, 22 L. 615, and Mutual Life Ins. Co. v. Wilcox, 8 Biss. 199, F. C. 9,979, both holding signer, as surety, of blank government bond, already signed by principal, is bound, though latter inserts a larger sum than that agreed upon and procures worthless sureties; Veach v. Rice, 131 U. S. 318, 33 L. 171, 9 S. Ct. 739, that signatures of sureties were unauthorized, will not constitute a defense as to those executing bond without being misled; Moses v. United States, 166 U. S. 582, 584, 41 L. 1123, 1124, 17 S. Ct. 686, 687, where bond was rejected as not bearing seals, and was taken away by principal and returned with proper seals, it will be presumed that they were attached with the consent of the sureties; American, etc., Co. v. Murray, 1 Fed. Cas. 622, holding obligors not liable where they deliver bond to agent of obligee upon condition that he obtain other signatures, which is not done; Wallace v. Wilder, 13 Fed. 715, holding that fraudulent representations of principal are no defense to surety against obligee; Joyce v. Cockrill, 92 Fed. 840, holding breach of condition, not known to receiver accepting note from payee, will not relieve surety; State v. Churchill, 48 Ark. 441, 3 S. W. 359, holding, where name of surety is erased, the alteration puts obligee upon notice; State v. Wallis, 57 Ark. 73, 20 S. W. 812, that those who have not signed it are named as sureties in the bond, is held to give notice of the existence of the condition; Tidball v. Halley, 48 Cal. 613, and Cooper v. De Mainville, 1 Colo. App. 19, 27 Pac. 86, where sureties sign with understanding that others shall sign, a delivery to obligee without such signatures does not relieve signers; as also in Lewis v. Board of Commissioners, 70 Ga. 495, 496, 498. Carroll Co. v. Ruggles, 69 Iowa, 273, 275, 58 Am. Rep. 225, 227, 28 N. W. 592, 593, Carter v. Moulton, 51 Kan. 14, 37 Am. St. Rep. 262, 32 Pac. 634, 20 L. R. A. 311, Doorley v. Farmers, etc., Co., 4 Kan. App. 97, 46 Pac. 196, Brown v. Probate Judge, 42 Mich. 504, 4 N. W. 196, State v. Potter, 63 Mo. 227, 21 Am. Rep. 449, Russell v. Freer, 56 954 |