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George W. Phillips, Plaintiff in Error, v. John S. Preston, Defendant in Error U.S. 278 (1846)

handle is hein.slavery/ussccases0295 and id is 1 raw text is: 278 SUPREME COURT. Phillips v. Preston. from the District Court of the United States far the Northern Dis- trict of Alabama, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said District Court in this cause be and the same is hereby affirmed, with costs and damages, at the rate of six per centum per annum. William Taylor, George Taylor, William Primrose, and Eliza, his wife, George Porter, and Elspet, his wife, William Rainey, Al- exander Rainey, and Elizabeth Rainey, appellqnts, v. Vincent M. Benham, administrator de bonis non, with the will annexed, of Samuel Savage, deceased. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern Dis- trict of Alabama, and was argued by counsel. On consideration whereof, this court having affirmed the decree of the said District Court in this cause, on the appeal of the respondents at the present term, it is now here ordered and decreed by this court, that this ap- peal of the complainants be and the same is hereby dismissed with costs. GEotGE W. PHILLIPS, PLAINTIFF IN ERROR, V. JOHN S. PRESTON, DE- FENDANT IN ERROR. Under the practice of Louisiana, peremptory exceptions must be considered as spe- cially pleaded when they are set forth in writing, in a specific or Jetailed form. and judgment prayed on them. Although the court should refuse to receive exceptions thus tendered, yet if the party has the benefit of them on a motion in arrest of judgment and in a bill of exceptions, the refusal of the court is not a sufficient cause for reversal. The statute of Louisiana, requiring their courts to have the testimony taken down in all cases where an appeal lies to the Supreme Court, and the. adoption of this rule by the court of the United States, includes only cases where an appeal (techni- cally speaking) lies, and not cases which are carried to an appellate court by writ of error. Where the laws permit a waiver of a trial by jury, it is too late to raise an objec- tion that the waiver was not made a matter of record, after the case has proceed- ed to a hearing. In a suit by the first indorser of promissory notes against a second indorser, upon an alleged contract that the second indorser would bear half the loss which might accrue from their non-payment by the drawer, it is not a sufficient objection to the jurisdiction of the court, that the second indorsee and defendant were citi- zens of the same State. Such an objection would be well founded if the suit had been upon the notes. But not where the suit is brought upon a collateral contract. A contract between two indorsers, that they will divide the loss between them, is a good contract, and founded o- a sufficient consideration. Being a collaterai contract, by parol, parel evidence can be given to prove it. The payee is a competent witness, and so is the notary, bringing with him the act of sale. Tuis case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana.

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