Statement of the Case.

against all or either of them, referring to the persons named in the judgment, this necessarily means that the judgment is joint and several. If it is several, then certainly each one of the persons against whom it is rendered has a right to sue out a separate writ of error in his own name.

In the case of Estis v. Trabue, 128 U. S. 225, this court said: "There is nothing distributive in the judgment, so that it can be regarded as containing a separate judgment against the claimants and another separate judgment against the sureties, or as containing a judgment against the sureties payable and enforceable only on a failure to recover the amount from the claimants; and execution is awarded against all of the parties jointly. In such a case the sureties have the right to a writ of error.”

If, however, the court shall be of opinion that the judgment referred to in the writ of error was not a separate judgment against the plaintiff in error, and a separate judgment against the persons named therein as sureties, but was a joint judgment against the plaintiff in error and the sureties, then it is submitted, that the writ of error may be amended, under the authority conferred by section 1005 of the Revised Statutes. Pearson v. Yewdall, 95 U. S. 294; Moore v. Simonds, 100 U. S. 145; Knickerbocker Life Ins. Co. v. Pendleton, 115 U. S. 339.

Counsel for defendant in error resisted this motion contending: The judgment of the general term of the court below is a joint judgment against the plaintiff in error, and its sureties in the undertaking on appeal. This court has already so held in this cause. Prior decisions of this court are to the same effect. Estis v. Trabue, 128 U. S. 225, and cases there

cited.

By the terms of their appearance they espouse the cause of the appealing party, and join him in becoming actors in the general term, and agree to pay the judgment if they cannot succeed in having it set aside.

The court had express statutory power to make the rule, and it is binding upon the court and upon the parties. Bank

Statement of the Case.

of Columbia v. Okely, 4 Wheat. 235; Mills v. Bank of the United States, 11 Wheat. 431; Hiriart v. Ballon, 9 Pet. 156.

The objection to the writ of error is jurisdictional and it cannot be cured by amendment. Estis v. Trabue, 128 U, S. 225; Owings v. Kincannon, 7 Pet. 399; Wilson v. N. Y. Insurance Co., 12 Pet. 140.

In Moore v. Simonds, 100 U. S. 145, the appeal was taken in the name of a firm. But the supersedeas bond showed the names of the individual members of the firm and was executed by them. It was held that the appeal might be amended by the bond. In delivering the opinion of the court Chief Justice Waite, referring to a case in 11 Wall. 82, which had been dismissed for a similar defect, said that, "it does not appear that the defect could have been remedied by reference to anything in the appeal papers."

In the case of the Knickerbocker Ins. Co. v. Pendleton, 115 U. S. 339, while a part of the names of the plaintiffs below did not appear as defendants in the writ, they did appear as obligees in the supersedeas bond, and the amendment was made by that.

There is no case in this court, so far as we know, where a writ of error or appeal, defective in parties, has been amended, where there was nothing in the "appeal papers," by which the amendment could be made.

The supersedeas bond and citation in this case have not been printed, but they follow the writ of error in the recital of the parties to the judgment below. There is, therefore, nothing by which the amendment can properly be made.

In this case it is clear that but one of the five defendants in the court below intended to sue out the writ of error, and there was no summons and severance. The judgment referred to in the writ, bond and citation, is said to be one in which Tolson is plaintiff and the plaintiff in error is defendant. But the judgment in the record sent up in return to the writ is a judgment against plaintiff in error and four others. Clearly the writ could not confer jurisdiction upon this court to review the record of that judgment. To allow the insertion of the names of the other defendants below as plaintiffs in the

VOL. CXXXVI-37

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present writ would be to make a new writ and not to amend the present one, and would necessitate a new bond and citation.

But even if the amendment be within the discretion of the court it should not be granted.

PER CURIAM. (January 6, 1890): The motion to rescind the judgment of dismissal, entered November 4, 1889; to restore the cause to the docket; and to amend the writ of error herein by inserting therein, as plaintiffs in error, the names of Henry A. Willard, John W. Thompson, Samuel Norment and J. H. Baxter is

Granted and case returned to the docket.

Mr. Arthur A. Birney and Mr. Charles C. Cole for defendant in error.

IRWIN v. SAN FRANCISCO SAVINGS UNION.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 181. Submitted January 23, 1890. Decided February 3, 1890.

Wright v. Roseberry, 121 U. S. 488, affirmed and applied to this case.

THE United States, being the real party interested as plaintiffs in error, by their counsel filed the following statement as a brief for the plaintiff in error:

"This is an action of ejectment, brought in the Superior Court of Solano County, California, and afterwards removed into the United States Circuit Court, to recover a large body of swamp and overflowed lands contiguous to the mainland of Mare Island, upon which island the United States have a navy-yard, and have erected extensive buildings, etc.

"The plaintiff in error, the defendant below, was the officer

Statement of the Case.

in command of the said navy-yard at the time the suit was brought, and had no other interest in the controversy.

"The case was tried without a jury, under a stipulation in writing, and judgment rendered for the plaintiffs, to the effect that they were entitled to the possession of the lands in controversy.

"This writ of error raises but one question.

"The plaintiffs claimed title to the swamp and overflowed lands in question, under the State of California, and introduced in evidence a patent from the State to one John W. Pearson, from whom they derived title.

"This evidence was objected to by the defendant on the ground: 'That a patent issued by the State to any individ ual for swamp or overflowed lands does not convey title to the lands therein described, unless it be shown that the same lands have been patented by the United States to the State, or listed to the State by the Land Department of the United States. That it has not been shown by competent evidence that it has been determined by the proper authority of the Land Department of the United States that the lands described in the patent, or any part thereof, are swamp or overflowed lands within the meaning of the act of Congress approved September 28, 1850, commonly known as the Arkansas land act.'

"The objection was overruled and the patent read to the jury, whereupon the defendant excepted.

"The plaintiffs, then introduced other evidence, parol and documentary, for the purpose of showing that the land sued for answered to the description of swamp and overflowed lands, and the defendant moved the court to strike out and, exclude all said evidence, including the patent, but the court denied the motion, and thereupon the defendant excepted.

"The opinion of the eminent Circuit Justice upon the questions raised by the bill of exceptions, appears to be sustained by the subsequent opinion of this court in Wright v. Roseberry, 121 U. S. 488.

"The case is, therefore, submitted without further observation."

Statement of the Case.

PER CURIAM. It is conceded by counsel for plaintiff in error that this case is governed by Wright v. Roseberry, 121 U. S. 488, and the judgment is, therefore, upon the authority of that Affirmed.

case,

Mr. Assistant Attorney General Maury for plaintiff in error. Mr. George A. Nourse for defendants in error.

DAVENPORT v. PARIS.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.

No. 268. Submitted April 8, 1890. — Decided April 14, 1890.

Glenn v. Fant, 134 U. S. 398; Raimond v. Terrebonne Parish, 132 U. S. 192; Andes v. Slauson, 130 U. S. 435; and Bond v. Dustin, 112 U. S. 604, affirmed and applied to the stipulation filed in this case by counsel, the jury being waived.

THIS was an action to recover on bonds and coupons issued by the defendant, a municipal corporation, in aid of the construction of a railroad. The record contained the following stipulation "as to facts, etc." being signed by the counsel:

"It is stipulated in the matter of Charles Davenport v. The Town of Paris, in assumpsit, now pending in the U. S. Circuit Court for the Southern District of Illinois, that the instruments sued on, being bonds numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, 19, 20, 23, 24, 25, 31, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 and 80, with coupons now attached, which purport to be the bonds of the town of Paris, were signed, respectively, by Henry Van Sellar and James A. Dittoe on the dates of said instruments, and that the said Henry Van Sellar was on that date supervisor of said town of Paris, and that the said James A. Dittoe was on said date the town clerk of said town of Paris.