Shields v. Thomas.

tive and the appellant, and not the whole amount for which he has been held liable. And if this view of the matter in controversy be correct, the sum is undoubtedly below the jurisdiction of the court, and the appeal must be dismissed.

But the court think the matter in controversy, in the Kentucky court, was the sum due to the representatives of the deceased collectively; and not the particular sum to which each was entitled, when the amount due was distributed among them, according to the laws of the state. They

all claimed under one and the same title. They had a [*5 common and undivided interest in the claim; and it was perfectly immaterial to the appellant, how it was to be shared among them. He had no controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him.

It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided. between them in equal or unequal proportions. Yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.

This being the controversy in Kentucky, the decree of that court, apportioning the sum recovered among the several representatives, does not alter its character when renewed in Iowa. So far as the appellant is concerned, the entire sum found due by the Kentucky court is in dispute. He disputes the validity of that decree, and denies his, obligation to pay any part of the money. And if the appellees maintain their bill, he will be made liable to pay the whole amount decreed to them. This is the controversy on his part; and the amount exceeds two thousand dollars. We think the court, therefore, has jurisdiction on the appeal.

The cases referred to stand on different principles. The case of Oliver and others v. Alexander and others, 6 Pet., 143, was a suit for seamen's wages. And although the crew are allowed by law, (for the sake of convenience and to save costs,) to join in a suit for wages, yet the right of each seaman is separate and distinct from his associates. His contract is separate; and his recovery does not depend upon the recovery of others, but rests altogether on his own evidence and merits. And he does not recover a portion of a common fund to be distributed among the claimants, but the amount due to himself on his own separate contract.

The case of Rich and others v. Lambert and others, 12

Arthurs et al. v. Hart.

How., 352, was decided on the same ground. The several shippers who owned the goods which had been damaged, had no common interest in the goods. The interest of each was separate; and his contract of affreightment separate. And the libel of each was upon his own contract with the shipowner, and for his own individual and separate property.

The cases of Stratton v. Jarvis and Brown, 8 Pet., 8, and of Spear v. Place, 11 How., 525, were both salvage cases, where the property of each owner is chargeable with its own *6] amount of salvage. The salvage service is entire; but the goods of each owner are liable only for the salvage with which they are charged, and have no common liability for the amounts due from the ship or other portions of the cargo. It is a separate and distinct controversy between himself and the salvors, and not a common and undivided one, for which the property is jointly liable.

The cases relied on are therefore distinguishable from the one before us; and the motion to dismiss for want of jurisdiction must be overruled.

Order.

On consideration of the motion made in this cause by Mr. Smith, on a prior day of the present term of this court, to wit, on Friday, the 19th instant, and of the arguments of counsel thereupon, had as well against as in support thereof, it is now here ordered by the court, that the said motion be, and the same is, hereby overruled.

JOHN ARTHURS, JOHN NICHOLSON, JONAS R. MCCLINTOCK, AND WILLIAM STEWART, CARRYING ON BUSINESS UNDER THE FIRM AND NAME OF ARTHURS, NICHOLSON, AND Co., PLAINTIFFS IN ERROR, v. JESSE HART.

Where a jury is waived, and questions of law and fact decided by the court in Louisiana, the rules of the state appellate court require that the whole evidence should be put into the record. But where a case is brought up to this court, by writ of error from the circuit court of the United States for Louisiana, the rules of this court only require that so much of the evidence should be inserted as is necessary to explain the legal questions decided by the court.

Consequently, the mere fact, that some of the evidence given below is omitted from the record, is not of itself sufficient to prevent this court from examining the questions of law presented by the record.1

1See note to Phillips v. Preston, 5 How., 278.

Arthurs et al. v. Hart.

Where the court decides questions both of law and fact, the admission of improper testimony is not the subject of a bill of exception, although the exclusion of proper testimony is so.

The rule stated, according to which the appellate court should review the legal questions involved in the final judgment of the court below, which has decided both law and fact; and the mode pointed out by which counsel should separate the two classes of questions.2

In an action upon a bill of exchange by a bona fide assignee against the acceptor, it is no good defense that the bill was accepted in order to pay for a sugar-mill which was defective; that the drawers of the bill had promised to put it in order, and that the assignee of the bill knew these facts. The acceptor of the bill relied upon this promise to protect his rights, and not upon a refusal to pay the bill when due.

THIS case was brought up, by writ of error, from the circuit court of the United States for the eastern district [*7

of Louisiana.

In 1847, Hart, who was a citizen of Louisiana, employed Nicholson and Armstrong, of Pittsburg, Pennsylvania, to build and put up a sugar-mill and engine upon his plantation. The mill and engine were put up, and a part of the purchasemoney paid. For the balance a bill of exchange was drawn on March 1, 1848, by Nicholson and Armstrong upon, and accepted by Hart, to the order of James Arthurs and Brothers, and by them indorsed to Arthurs, Nicholson and Co. The bill was payable twelve months after date, and was for the sum of $2540.65. At maturity, the bill was presented for payment, and, payment being refused, was protested. Hart alleged that when the bill was accepted, it was with the understanding that the builders would remedy certain defects in the sugar-mill and engine, and that the holders of the bill knew of this arrangement.

In May, 1849, the plaintiffs in error, the holders of the bill, brought suit by way of petition, according to the Louisiana practice, in the circuit court of the United States.

The cause was tried by the court without the intervention of a jury.

The following bill of exceptions states the point of evidence upon which the case came up to this court.

Be it remembered, that, on the trial of this cause, the defendant offered to prove, by the testimony of Francis Armstrong, that Mr. Arthur, Mr. Nicholson, and witness, went to the levee, on board the steamboat Luna, to see Captain Hart, in reference to the second payment; that he (Captain Hart)

2 CITED. Graham v. Bayne, 18 How., 61; Suydam v. Williamson, 20 Id., 434; Burr v. Des Moines Co., 1 Wall, 103; Flanders v. Tweed, 9 Id., 431; Estate of Toomes, 54 Cal., 517.

If the whole of the evidence be sent up, the case will be remanded, with directions to award a venire de novo. Graham v. Bayne, supra. S. P.; Guild v. Frontin, 18 How., 135.

Arthurs et al. . Hart.

complained that the machinery had not worked well, that it was not then running; that he complained, that, from the bad working of the sugar-mill and engine, he had lost juice, and he required us to deduct the interest then due; that Messrs. Arthur and Nicholson suggested that Captain Hart should accept a bill of exchange for the balance then due, after deducting the interest; that it was understood that the sugarmill and engine were to be put in first-rate order, and that Captain Hart then agreed to accept a bill; to the introduction. of said evidence, or of any conversation, or of any agreement and understanding of the parties, previous to and at the time of accepting the bill sued upon, the plaintiff objected, for the reason that such evidence, or conversation, or agreement, or understanding, would tend to convert an absolute into a conditional acceptance; that it would either vary or contradict the written agreement entered into by the parties; and plaintiffs also objected to the competency of the witness Francis Armstrong, to testify in this case, for the reason that he was one of the drawers of the bill of exchange sued upon. *8] All of which objections were overruled by the court; to which ruling plaintiffs excepted, and tendered this their bill of exceptions, which is filed and signed by the court. THEO. H. MCCALEB, [SEAL,] U.S. Judge.

Judgment was rendered for the plaintiffs for the sum of $1,743.50, with interest.

The plaintiffs, thinking that the judgment ought to have been for the whole amount of the bill, brought the case up to this court.

It was argued by Mr. Wylie, for the plaintiffs in error, and by Mr. Lawrence, for the defendants.

Mr. Wylie, for plaintiffs in error.

There are two principal points which present themselves. upon the record in this case.

First, whether the court below ought not to have entered a judgment in favor of plaintiffs, for the whole sum expressed upon the face of the bill, with interest, &c.

And second, whether this court, under its decisions, will reverse the judgment of the court below in this case, if erroneous in law.

First question. That the decision of the neous on this point would seem to be clear. Sumrall, 2 Pet., 170-183, it was held by this

court was erroIn Townsend v. court, that "if

Arthurs et al. v. Hart.

the holder of a bill of exchange, at the time of taking the bill, knew that the drawee had not funds in his hands belonging to the drawer, and took the bill on the promise of the drawee to accept it, expecting to receive funds from the drawer; the promise of the drawee to accept the bill constitutes a valid contract between the parties, notwithstanding the failure of the drawer to place funds in his hands. The acceptance of the drawee of a bill binds him, although it is known to the holder that he has no funds in his hands. It is sufficient that the holder trusts to such acceptance." And in Grant and Casey v. Elliott, 7 Wend. (N. Y.). 227, it was held, "in an action by the payee against the acceptor, it is no defense that the bill was accepted without consideration, and that fact known to the payee. See also United States v. Bank of Metropolis, 15 Pet., 377; 7 Johns. (N. Y.), 361; 7 Sm. & M., (Miss.), 244; Byles on Bills, 150; 2 Wheat., 385; Civil Code, 2256; D'Aquir v. Barbour, 4 La. Ann., 441; Henderson v. Stone, 1 Mart. (La.), N. S., 641.

Second point. This case having been submitted to and tried by the court without a jury, a question arises, whether, under the recent decisions of this court, the erroneous judgment of the court below can be corrected. Weems v. George et al., 13 How., 190-197; Bond v. Brown, 12 How., 254.

*In Weems v. George et al., Mr. Justice Grier, in

delivering the opinion of the court, says: "When the [*9 case is submitted to the judge to find the facts without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment of the law."

Although this principle, thus stated, goes much beyond the doctrine laid down in Bond v. Brown, and is, indeed, considerably modified by the subsequent context of the opinion of Mr. Justice Grier itself, yet we must take it to be the law for the present case.

But the meaning of the court could not have been, that, in such a case, where there was no jury, no judgment of the court, however given and however erroneous, could be reviewed by this tribunal. If there be a simple issue of law between the parties, and the court below should make an erroneous decision, this court would undoubtedly reverse it. It is, therefore, only where facts and law are both referred for the decision of the court below, that such decision is conclusive upon the parties as to the matter of fact in question. So far, then, as the admissibility and competency of the witness in this case, were questions raised by the bill of exceptions, the