U.S. Supreme Court
United States v. Hodge, 47 U.S. 6 How. 279 279 (1848)
United States v. Hodge
47 U.S. (6 How.) 279
Where the bill of exceptions appears upon its face to have been regularly taken, the court cannot presume against the record.
Where a mortgage was given by a postmaster to secure the Post Office Department, and the circuit court was asked to instruct the jury that, according to the true interpretation of the mortgage, there was contained therein no stipulation or agreement to extend the time, or preclude the government from suing the principal and sureties upon the postmaster's bond, and the court refused, upon the ground that the jury were the proper judges of the fact whether time was given, on a perusal of the mortgage, this was error in the court. It is the duty of the court to construe all written instruments given in evidence as a question of law.
Payment under this mortgage could not be enforced until after the lapse of six months from its date. But its acceptance by the government did not release the sureties upon the bond, because, in order to discharge the surety by giving time, the time which is given must operate upon the instrument which the surety has signed. The mortgage here was only a collateral security, which was beneficial to the surety.
A motion for a new trial waives the right to a writ of error in those circuits only where the courts have adopted a rule to this effect, and in those circuits the right should be waived upon the record before the motion for a new trial is heard.
The practice in Louisiana allows the sureties to be sued without joining the principal.
This was an action brought against the defendants in error as the securities upon the bond of the Postmaster of the City of New Orleans. The facts of the case are sufficiently set forth in the opinion of the Court. chanrobles.com-red