ERROR to the District Court for the Northern District of Mississippi. In an action on a certificate of deposit, instituted, on the 7th of November 1839, by the defendant in error, Nathan Smith, in the district court of the United States for the northern district of Mississippi, against the plaintiff in error, with others, who were the surviving partners in the Real Estate Bank of Columbus, Mississippi, the plaintiff obtained a judgment by default against all the defendants, except Daniel W. Wright, who had been sued with them as one of the partners. All the defendants, except Wright, had entered a plea of non assumpsit, which they afterwards, at the trial, withdrew; on which a judgment was entered by nil dicit for $2584.74. Wright pleaded non assumpsit separately; and the plaintiff then discontinued the suit against Wright.
The plaintiff issued an execution, which was levied on personal property belonging to John D. Amis, who thereupon executed a forthcoming bond, with Samuel F. Butterworth as surety; which bond being duly forfeited, operated, under the laws of Mississippi, as a judgment against the obligors in the bond, on which execution might be issued forthwith. On the 14th December 1840, John D. Amis and Samuel Butterworth moved the court to quash the forthcoming bond: 1. Because it increases the costs, not warranted by law, the execution having included interest on the judgment. 2. That there is no authority for taking the said bond, or any such bond; and the bond creates a judgment against the obligors, and precludes them from a defence, and a trial by jury secured by the constitution of the United States. The court overruled the motion, and the defendant, John D. Amis, prosecuted this writ of error.
The case was argued by Key, for the plaintiff in error; and by Walker, for the defendant.
Key contended:-1. That there was error in the proceedings of the district court in allowing a discontinuance as to Daniel W. Wright, one of the defendants, and entering a judgment against the other defendants. 2. There was error in the court having refused to quash the forthcoming bond given by John D. Amis and Samuel Butterworth. The Fieri facias which had been issued on the judgment, was not warranted by the judgment, because it included interest, which was not given by the judgment. The execution was illegal, and the bond given after it had issued, was void. 3. Refusing to quash the bond, and leaving it in force as forfeited, was a final judgment on which a writ of error will lie.
1. What does the record bring up for revision? The whole case; the original judgment; this is so from the nature of the proceeding. The forfeited bond is a proceeding by statute; it is made a statutory judgment. It must, therefore, conform to the statute, and to do so, it must be founded on a lawful execution, and a valid judgment. Take away that judgment, the foundation, and all the rest falls. This is settled in 7 Cranch 288; 5 How. (Miss.) 191-2, 194-5. Hence it is, that the act of the legislature, of 1837, was necessary. Without that act, the original judgment could have been taken up to a court of error, and reversed; and that reversal would have put up an end to the proceedings under it. United States Bank v. Patton, 5 How. (Miss.) 223; 1 Ibid. 98.
2. And then the question arises, as to the effect of the act of 1837, in the courts of the United States. How can any legislation in Mississippi affect or limit the jurisdiction of the courts of the United States? Suppose, the legislature of Mississippi had said, there should be no appeal in any case, or (as in the Digest 538), without a certificate of the appellate court; that could not affect the jurisdiction of the courts of the United States, or take away from a suitor in these courts rights expressly conferred by the laws of the United States. It would defeat the object of the constitution in giving jurisdiction to the courts of the United States.
3. The original judgment is, then, here for revision, an in the case in 7 Cranch 202. How far is it examinable? For what errors is it responsible? Upon this point, Mr. Key cited 7 Cranch 202; 1 Pet. 46.
4. It is, then, upon authority, error for which judgment can be arrested, as is said by Judge WASHINGTON, in 7 Cranch 202; and if so, it is revisable. That case is decisive; for it adjudges that the plaintiff must proceed as far as the law allows against all the defendants, even when all were not taken; a fortiori, where they were taken, and when the other defendants had a right to expect the plaintiff would go on against all. This is the law, unless there is something in the laws of Mississippi which operates in a court of the United States, and allows a discontinuance.
The law of Mississippi allows contracts to be sued upon either as joint or several. This should not extend beyond the actual provisions of the statute to authorize suits to be so brought on such contracts. 3 How. (Miss.) 83. But when the suit is brought, and the parties are before the court, then it is altogether another question, whether you can discontinue as to any of the defendants. Cited, Digest Laws of Miss. 595-6; 2 How. (Miss.) 870; 5 Ibid. 411-12; 3 Ibid. 78; 4 Ibid. 364, 369, 377.
Walker, for the defendant in error, made the following points:-That the severance in the pleading was discretionary with the court below, as every other interlocutory incidental order preceding the judgment, and furnished no ground to reverse the judgment for error. After a severance in the pleadings, by the defendants, a discontinuance as to any one of them is not irregular. In this case, the severance was by consent, and so was the discontinuance as to that party, and simultaneous with this, and in the same order, was the withdrawal of the plea by the other defendants, and the judgment by default final against them. By this withdrawal, after the severance, these defendants, by implication of law, and in fact, consented to the separate judgment against them. A judgment thus given, has, in law, the same effect as a judgment confessed, so as to release all errors; and especially, where no objection was made in the court below. 3 Stew. & Port. 269; 6 Port. 352, 358; 2 Stew. 13; 1 Pet. 165. The compulsory non pros. of the English practice, entered by the court, upon the motion of the defendant, against the plaintiff, does not prevail in this country. Such a non pros. which puts the whole case out of court, is entirely unlike the discontinuance under our practice; which in this case is a mere partial forbearance for the present to proceed further in the suit against one of the defendants, and leaves the case in court to proceed regularly against the other defendants. Note to Powell v. White, 1 Doug. 169; 1 Pet. 46, 74, 469; 5 Ibid. 476; 6 Ibid. 598; 3 How. (Miss.) 598. This discontinuance as to one defendant may be taken, even where both plead separately to the merits. 1 Pet. 46; 5 Johns. 160; 20 Ibid. 126; 1 Pick. 500. Even at common law, a plaintiff might always discontinue as to one defendant, where the cause of action was joint and several in its nature, or where one or more might be sued separately. Note to Parker v. Laurence, Hob. (ed. of 1829) 177. By the statutes of Mississippi, this contract is made joint and several, and a separate suit authorized against one or more of the defendants. How. & Hutch. Dig. Laws Miss. 578, 594. Under these statutes, the right to discontinue, in such cases, is expressly recognised by the decisions of the courts of the state. 2 How. (Miss.) 870; 4 Ibid. 377. If this discontinuance had been erroneous, it is cured, after verdict, by our statute of jeofails; and a judgment by nil dicit is placed on the same footing. How. & Hutch. 591; 2 How. (Miss.) 834, 902, 934.
As to the interest, it is allowable on judgments, even at common law. 3 Anstr. 804; 1 Har. & Johns. 755. In Mississippi, this interest is given by statute, on the judgment, and the execution is required to embrace the interest. Turn. Dig. 331: How. & Hutch. 375, 616, 622-3, 626-8, 653; 3 How. (Miss.) 184; 4 Ibid. 377. Even if there had been error in the original judgment, that error is released by the new judgment on the forthcoming bond. How. & Hutch. 541; 4 How. (Miss.) 9. The new judgment is an extinguishment of the judgment on which the bond was given, and the bond operates as an estoppel at law, as to any error in the original judgment. The bond is a waiver of any error in the original judgment, and operates as a judgment by consent or confession. 2 Call 507; 6 Ibid. 1; 8 Pick. 386; 3 Cond. Rep. 244, 248-9. The court cannot go beyond the execution which is recited in the bond, and not the judgment preceding the execution; and the bond admits the interest to be due, and is conclusive. If the execution had been erroneous, it should have been superseded; but on the contrary, the validity of the execution is admitted by the bond, and by the judgment which is founded upon it. 5 How. (Miss.) 566, 573-4. If the interest was erroneously admitted to be added to the original judgment, it is a mere clerical error which is cured by the bond and new judgment upon it. Ibid. 200; 1 Ibid. 98. The error alleged here, as to the interest, is at most equivalent to a motion in the court below to open the judgment on the bond. And on what ground? Because it included interest alleged to be omitted to be calculated in the original judgment. But if this omission were made, it was a mere clerical error, the interest, it is conceded, is due by the law; it is included in the bond, signed by the defendant, and admitted thereby to be due the plaintiff, and on that bond the judgment is entered; and why should the judgment be opened, when it is for no greater sum than in law and justice was due the plaintiff?
The bond is constitutional. 4 How. (Miss.) 363; 5 Ibid. 434, 456; 4 Cond. Rep. 439, 442. The forthcoming bond law of the state applies to judgments in the courts of the United States. 1 Cranch. 299. If it be adopted in part, must not all its provisions be adopted, and also the construction given by the state courts to their local statutes? By these statutes, the original judgment is extinguished by the bond and forfeiture; and it is further specially provided, that no writ of error can be prosecuted as regards the original judgment, after the forfeiture of the bond. It is said, this provision cannot apply here, because the writ is given by act of congress. There might be force in this argument, if a motion were now pending to dismiss the writ of error for want of jurisdiction. No such motion is made, but it is insisted, that after a judgment, the defendant has his choice, either to arrest the judgment for error, or to waive that right and release all errors, as in case of a judgment by confession, by giving the bond; and that such bond is a voluntary waiver of all such errors, and that this waiver must be upheld by this court.
As to the last error assigned, it has been expressly decided by the courts of Mississippi, that the bond may be given by one co-defendant. 5 How. (Miss.) 480, 483.
McKINLEY, Justice, delivered the opinion of the court.