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be sufficiently uninjured to remain, and this was performed by allowing it to stand, and by not directing it to be taken down. We lay no stress, as the court of claims did not, on what was said at the time to that effect by unauthorized subordinates. The foundation and walls themselves, as left standing by authority of the proper officers, constituted under the circumstances a representation on the part of the United States that they had been adjudged to be so far uninjured by fire that they were to remain, upon the faith of which the intending contractor was entitled to rely for the purpose of estimating the probable cost of the work to be done.

Judgment in favor of the appellee was rendered by the court of claims upon two other claims for small amounts, in respect to which we do not deem it necessary to say more than that it appears to us the allowance was proper. The defense by reason of the statute of limitations, also for the reasons alleged in the opinion of that court, was, in our opinion, properly overruled.

The judgment of the court of claims is accordingly affirmed.

(109 U. S. 232)

ALABAMA GOLD LIFE INS. Co. v. NICHOLS.

(November 12, 1883.)

JURISDICTION-AMOUNT OF JUDGMENT REDUCED BY REMITTITUR-WRIT OF ERROR DISMISSED.

Where a defendant against whom a judgment has been obtained in a circuit court of the United States for more than $5,000, in open court enters a remittitur reducing the amount to "$5,000 and costs of suit," and judgment is entered for that amount, a writ of error will not lie to the supreme court in a case in which the jurisdiction depends on the amount in controversy.

In Error to the Circuit Court of the United States for the Eastern District of Texas. On motion to dismiss.

*

P. Phillips and W. Hallett Phillips, for plaintiff in error.

Jos. H. Bradley and A. B. Duvall, for defendant in error. WAITE, C. J. In this case a verdict was rendered against the plaintiff in error for $6,610, and a judgment entered thereon December 9, 1879. In the verdict was included, for damages, $600; attorney's fees, $500; and interest, $510,-in all, $1,610. The next day, December 10, 1879, the defendants in error appeared in open court and "entered a remittitur" of these amounts, "leaving the amount of said judgment to be for the amount of five thousand dollars and costs of suit." Upon this being done a new judgment was entered "that the plaintiffs have and recover from said defendant the sum of five thousand dollars, and also all costs about this suit incurred as of the date of said judgment, and have execution therefor, instead of the sum

of six thousand and six hundred and ten dollars, and also all costs about this suit incurred, as in said judgment is recited." This wri of error was brought on the eighth of January, 1880, to reverse the judgment so entered. The defendant in error now moves to dismiss the writ because the value of the matter in dispute does not exceed $5,000. The judgment as it stands is for $5,000 and no more. The entry of the tenth of December is equivalent to setting aside the judgment of the ninth and entering a new one for the amount remaining due after deducting from the verdict the sum remitted in open court. There was nothing to prevent this being done during the term and before error brought. The judgment of the tenth is therefore the final judgment in the action.

In Thompson v. Butler, 95 U. S. 696, it was said:

"Undoubtedly the trial court may refuse to permit a verdict to be reduced by a plaintiff upon his own motion; and if the object of the reduction is to deprive an appellate court of its jurisdiction in a meritorious case, it is to be presumed the trial court will not allow it to be done. If, however, the reduction is permitted, the errors in the record will be shut out from our reexamination in cases where our jurisdiction depends on the amount in controversy."

Articles 1351 and 1352 of the Revised Statutes of Texas are as follows:

"Art. 1351. Any party in whose favor a verdict has been rendered may in open court remit any part of such verdict, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment, after deducting the amount remitted.

"Art. 1352. Any person in whose favor a judgment has been rendered may in open court remit any part of such judgment, and such remitter shall be noted on the docket and entered in the minutes, and execution shall thereafter issue for the balance only of such judgment, after deducting the amount remitted." Rev. St. Texas, 1879, pp. 211, 212.

Without deciding what effect these statutes will have on our jurisdiction in cases coming up from that state, if the amount is remitted after judgment without any action thereon by the court other than noting on the docket and entering on the minutes what has been done, we are of opinion that it is within the discretion of a court of the United States, sitting in that state, if a plaintiff appears in open court and remits a part of a verdict in his favor, to make the proper reduction and enter judgment accordingly. That was the effect of what was done in this case, and the rule established in Thompson v. Butler, supra, applies.

The motion to dismiss is therefore granted.

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(109 U. S. 205)

BOOTH, Jr., and others v. TIERNAN.1

(November 12, 1883.)

PRACTICE-EXCEPTION TO FINDING OF FACT-EVIDENCE-OFFER OF CERTIFIED COPY OF LOST DEED-MISTAKE IN RECORD.

Where no exceptions appear on the record to the rulings of the trial court upon any questions relating to the evidence upon which a finding of fact by the court was based, and it cannot be claimed that the evidence as stated in the bill of exceptions was not legally sufficient to justify the conclusion reached by the court, error of law cannot be predicated of such finding, although duly excepted to.

Under a statute authorizing the record of a deed or a certified transcript from the record to be offered and read in evidence on a trial, in place of a lost original, with like effect as though the original of such deed was produced and read in evidence, parol evidence is admissible to show that there is a clerical error in the description of the land as entered upon the record and contained in the copy offered in evidence.

In such a case, the testimony of witnesses who had read the original deed as to their recollection of its contents, and a certified copy of an entry made by the recorder of the county where the land was situate, in a file wherein he was required to enter such conveyance, as the first step in the recording thereof, are admissible as tending to prove the mistake.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

B. C. Cook and C. W. Needham, for plaintiff in error.

Wm. Burry, for defendant in error.

MATTHEWS, J. This was an action of ejectment brought by the defendant in error against the plaintiffs in error to recover the title and possession of a tract of land in Grundy county, Illinois, described as the north-east quarter of section twenty-nine, (29,) in township thirtytwo, (32,) north of the base line, and in range eight, (8,) east of the third principal meridian. By stipulation the intervention of a jury was waived by the parties, and the cause was submitted upon the evidence to the circuit court. One of the defenses relied on was the statute of limitations of Illinois, being section 4 of chapter 83 of the Revised Statutes of that state, providing that possession for seven years, by actual residence thereon by any person having a connected title in law or equity, deducible of record from the state or United States, etc., should be a bar to an action brought for the recovery of lands, etc. Evidence was introduced on the part of the defendant below, the ancestor of the plaintiffs in error, tending to prove, as was claimed, that he had possessed the premises in controversy, by actual residence, for seven years next preceding the commencement of the action; but the finding of the court was that he had not been possessed, by actual residence thereon, of the land in controversy for that period. This finding, although excepted to and alleged as error,

18. C. 4 Fed. Rep. 620.

is a conclusion of fact which we cannot review. No exceptions appear on the record to the rulings of the court upon any questions relating to the evidence upon this point, and it cannot be claimed that the evidence, as stated in the bill of exceptions, was not legally suffi. cient to justify the conclusion reached by the court. No error in law can therefore be predicated of this conclusion of fact.

On the trial it was admitted that Ibzan Lacey, the common source of title, derived title to the premises in controversy from the United States in 1839, and a power of attorney from Lacey and wife, dated April 20, 1839, to Joel Wicks, authorizing him to sell and convey the premises, was proved. It was further admitted that an original deed from Lacey and wife by Wicks, their attorney in fact, to Alva Newman, dated May 6, 1840, had been lost, and it was proved that it was not in the power of the plaintiffs to produce it, and that it had not been intentionally destroyed or disposed of for the purpose of introducing a copy thereof in place of the original.

The plaintiffs below then offered in evidence a certified copy from the proper recorder's office of the record of said original deed, which, however, described the land conveyed as the south-east quarter of section 29, etc., instead of the north-east quarter of that section; but counsel for the plaintiffs stated in connection with the offer that there would be offered other evidence tending to show that there was a clerical error in the description of the land as entered upon the record and contained in the copy, and that it should be the northeast instead of the south-east quarter of the section.

To the introduction of this certified copy objection was made, because it did not describe the land in controversy, and because no evi. dence was admissible to prove and correct any alleged mistake.

The ground of this objection is stated to be that the statute of Illinois, (Laws 1861, p. 174, § 1,) in force at the time, authorizing the record of a deed or a certified transcript from the record to be used as evidence on a trial in place of a lost original, provided that it might be read in evidence "with like effect as though the original of such deed, conveyance, or other writing was produced and read in evidence," and that, as in this case, if the original had been produced, no evidence would be admitted to prove and correct the alleged mistake in the description of the premises conveyed, none can be admitted to prove and correct such a mistake in the record or transcript.

The court overruled the objection and admitted the certified copy of the deed in evidence, reserving the question upon the subsequent evidence to be offered, for the purpose of proving and correcting the alleged mistake. Such evidence was, in the further progress of the trial, admitted, on which, as a conclusion of fact, the court found that the land actually described in the lost deed was that in controversy; and thereon judgment was given for the plaintiffs below. Exceptions were taken to the rulings of the court admitting the evidence subse

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quently offered as to the mistake in the description, upon the ground of its competency, which will be hereafter considered. The general question raised by the exception to the introduction of the certified copy from the record, is whether evidence of any description is admissible for such a purpose.

The

The ruling of the circuit court on this point was correct. language of the statute was intended merely to declare that the record of a deed, or a transcript from the record, though a copy only, and therefore in its nature merely secondary evidence, should nevertheless have the same effect, when competent as evidence at all, as the original itself, if it had been produced, upon the determination of the issues to be tried. It was not intended to declare that the record or a copy from it should, in law, be an original instrument for all purposes. The presumption is that as public officers generally perform their prescribed duties accurately, that the record, and all certi fied transcripts from it, will be true copies of the original; but they are none the less copies on that account, and are made evidence only in lieu of the original, and on the grounds on which secondary evidence is permitted to be given. And there is nothing in the statute,. either expressed or implied, which forbids the party from showing by extrinsic proof, otherwise legitimate, what the contents of the lost original really were, where it is shown that the record itself, or a copy from it, is not a true copy.

By the very terms of the statute, the record of a deed is not origi. nal evidence, for it can be used only on proof of the loss of the origi nal deed, or that the latter cannot be produced by the party offering the proof; and the object of the statute evidently was to require recording, in the first place, as notice to subsequent purchasers, and inthe second, to supply a convenient statutory mode and instrument of secondary evidence. Its whole effect can be accomplished, without in any manner displacing or superseding the common-law principles which authorized other modes of proving the contents of lost deeds and other instruments. It is in this light that the statute has beenviewed and treated by the supreme court of Illinois. Bowman v. Wettig, 39 Ill. 416. In Nattinger v. Ware, 41 Ill. 245, it was decided that a deed, properly executed and acknowledged, but recorded with a misdescription of the premises, would protect the grantee against subsequent purchasers and incumbrancers. But how could this be, unless the party were at liberty to prove the mistake in the record, either by the production of the original, or, in case of its loss, by other competent secondary evidence? This is what happened in Nixon v. Cobleigh, 52 Ill. 387. There the plaintiff in ejectment, to prove his title, relied on a deed, signed, as he claimed, "Samuel H. Turrill." The original not being in his power to produce, he offered a certified copy from the record. It purported, however, to be signed by "James H. Turrill." Against the objection of the defendant he was allowed to prove by parol evidence that the original was signed "by the name