There is no proof in the record implicating any of the defendants in the alleged wrong, except as to J. M. Duff and James K. Simpson and yet the jury find their verdict against all of the defendants, and we think without any evidence, either positive or circumstantial, as to defendants, Robert Simpson, James Sevier, William Simpson and William K. Reynolds. Messrs. O. H. Browning, Thos. Ewing, and W. H. Sneed, for defendants in error:

The defendants in error had a right, under the law of Tennessee, to attach, in the hands of the plaintiffs in error, the debt due from them to Dunham & Kearfoot, and to attach for that portion of their debt which was not due, as well as for that which was.

Supplement to Laws of Tenn. 1846, p. 11, § 1.

Laws of Tenn. 1855-6, p. 50.

The term "property" includes lands and tenements, money, goods and chattels, things in action, evidences of debt, etc.

2 B. C. 396, 397, 442.

Code of Tenn. p. 79, § 51.

The right of defendants in error to attach the debt due from plaintiffs in error to Dunham & Kearfoot was defeated by the wrongful act of the plaintiffs in error.

The detaining and opening of the letters, and thus obstructing free communication between defendants in error and their attorney, and availing themselves of information thus acquired to defeat the right of defendants in error to attach the assets of Dunham & Kearfoot in the hands of the plaintiffs in error, was a wrongful and illegal act by statue and at common law, injurious to the defendants in error, for which they are entitled to redress by action on the case.

There are no errors assigned on the record in this case.

And the only question saved during the progress of the trial was upon the ruling of the court below, permitting the defendants in error to fill up the indorsements of two promissory notes after the trial had commenced.

I will not stop to sustain by argument a practice so universal and unobjectionable. I know of no case in which the propriety of the practice has been questioned. The notes were had in evidence without objection, and no question can now be raised upon them.

The counsel for plaintiffs in error have also raised an argument, a question upon the ruling of the court in admitting secondary evidence of

the contents of two letters.

Each case

No general rule can be laid down upon this subject, applicable alike to all cases. must depend essentially upon its own circum

stances.

The proof necessary to establish the loss of a writing, so as to let in secondary evidence of its contents, must depend upon the nature of the transaction to which it relates; its apparent value and other circumstances. If suspicion hangs over it, and there is any reason to believe that it is designedly withheld, a rigid inquiry should be made into the reason of its non-production; but if there is no such suspicion, all that ought to be required is reasonable diligence

Williams v. U. S. 1 How. 299; De Lane v. Moore, 14 How. 265; Juzan v. Toulmin, 9 Ala. 663; Jones v. Scott, 2 Ala. 61.

In this case the search for the originals might have been more thorough and rigid; but reasonable diligence was used, and there is no reason to suspect they were intentionally withheld.

But however this may be, the evidence of their contents was given to the jury without objection, and the question of its admissibility cannot now be raised here.

It is a well settled principle, that no bill of exceptions is valid which is not for matter excepted to at the trial.

Walton v. U. S. 9 Wheat. 651; Sheppard v. Wilson, 6 How. 275; Phelps v. Mayer, 15 How. | 161.

Mr. Justice Davis delivered the opinion of the court:

It is contended by the defendants in error that the rulings of the circuit court, which are alleged to be erroneous, were not saved during the progress of the trial, and cannot, therefore, be investigated here. If this was so, it would be fatal; but we do not thus interpret the record. It is well settled that bills of exception are restricted to matter which occurred during the progress of the trial; but it is not necessary, neither is it the practice, to reduce to form every exception as it is taken, and before the trial is at an end. It will do for the judge to note them as they occur, and after the trial is over, if it is desirable to preserve them, they can be properly embodied in a bill of exceptions. In this case the bill of exceptions is unskilfully drawn, and is justly subject to criticism; but it clearly enough appears that the rulings of the circuit court, which are sought to be reveiwed here, were excepted to in proper time, and when the cause was on trial, and not afterwards.

*If this is so, we cannot allow a val- [*474 uable right to be defeated, because the judge carelessly used a word in the present tense, when the true expression of his meaning required the use of a word in the past tense.

It is a fair inference from the bill of exceptions that the defendants excepted to the introduction of secondary evidence of the contents of certain letters, when the court decided to admit it; and it is an equal inference that they also excepted, before the jury retired from the bar, to each of the series of instructions which the court gave to the jury. The bill of exceptions is, therefore, valid, and brings to our notice the proceedings of the circuit court, which

are claimed to be erroneous.

ants in error, who resided in Baltimore, MaryThe theory of this action is, that the defendTheodore Allen Jones, an attorney at law, in land, in March, 1858, addressed two letters to Rogersville, Tennessee, which, in his absence, were opened and read by James M. Duff, one of the plaintiffs in error, and their contents communicated to his copartners, and then were detained for the purpose of obstructing the defendants in error in the prosecution of an attachment suit against the indebtedness which the plaintiffs in error owed to Dunham & Kearfoot, a mercantile firm, also resident in Balti

usual course of dealing, remittances or negotiable securities would be sent from Tennessee to discharge it, and it would be singular if the fact that Simpson & Co. were about to remove their property from Tennessee, in order to comply with their agreement, should authorize the issue of an attachment.

The well-settled rules of evidence requires this, and the danger of departing from them is well illustrated in this case; for on the important point of the dates and amount of the notes the testimony of the witness was imperfect, and wanting in clearness and precision. In order 475*] to show the *loss of the letters, it was necessary to prove that a diligent search had been made for them where they were most likely to be found. There is no general rule as to the degree of diligence in making the search; but the party alleging the loss is expected to show "that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. 1 Greenl. Ev. § 558.

In this case this plain rule of evidence was palpably violated; for there was no diligence whatever used to obtain the letters, and no such search as would justify the court in inferring that they were lost.

J. R. Cocke, the attorney, went to the place of trial, under the belief that Jones, who was to be a witness, had the letters and would bring them. Jones was in the saine category. Neither had made any special search for them, for each rested in the conviction that the other was the custodian of them. It was a case of pure negligence, and should have been so treated by the court. To approve the ruling of the court would justify the admission of secondary evidence on the merest pretense, and would do away entirely with the necessity of producing primary evidence. We cannot countenance a practice so loose, and such a manifest departure from the plainest legal principles.

The decision on this point remits the cause to the circuit court; but as it may be tried again, we are called upon to go further and decide the merits of this controversy, as they are involved in the instructions which the court gave to the jury.

Among other things, the court substantially charged the jury, that if Simpson & Co. were about to remove their property beyond the limits of the state, Dall, Gibbon, & Co. would have the right to attach it, and that they could not pay their debt to Dunham & Kearfoot, who 476*1 were insolvent, so as to defeat the measures which Dall, Gibbon, & Co. had in contemplation to prevent it. Such a doctrine as this would effectually destroy credit and com

merce.

If Simpson & Co. were indebteded to Dunham & Kearfoot, they surely had a right to pay them, and the court will not inquire into the motive which prompted the payment. But the motive was meritorious, for the law does not favor a partial appropriation of an insolvent debtor's effects, but prefers an equal and general distribution. When the debt was contracted in

The mere statement of the proposition is enough to show its fallacy. Dall, Gibbon, & Co. had no claim against Simpson & Co. The relation of debtor and creditor did not subsist between them, and we cannot see why it was necessary for these last to procure the consent of Dall, Gibbon, & Co. before they could send money and negotiable notes to pay in good faith an honest debt, due to a mercantile firm residing in Baltimore, which was contracted there, and in the usual course of trade must be paid there.

But it is necessary to discuss the evidence in the case, as the charge of the court assumed that there was a cause of action. Duff and Jones were intimate friends, and to a degree not often seen, for Duff was permitted to open and read certain letters written by Jones, which are not generally read by third persons. Duff had for years been authorized to take the letters of Jones out of the postoffice ot Rogersville, and to forward them when he was absent, and the postmaster always put them into the box of Simpson & Co. Jones and James K. Simpson, the active member of the firm were connected by marriage; and Cocke, who wrote the letters from Baltimore, was also his relative, and a member of the firm of G. W. Howard & Co., whose name was stamped on the envel- [*477 opes. This fact Duff knew, and as his house had no dealings with Howard & Co., it was very natural for him to suppose that the letters were on business requiring prompt attention, which, as an act of kindness, he ought to give to it, during the absence of Jones.

Cannot Duff's authority to open these letters be fairly inferred from these circumstances, and who can say that he erred in doing so? It is true that he committed an error in not informing Jones that he had opened them, but no harm resulted from that omission. The right to open them cannot be affected by what occurred afterwards. These letters were not detained, but were immediately resealed and forwarded to Florence, Alabama, where Jones lived. There is absolutely no evidence raising a presumption even that they were withheld. Duff was probably to blame for telling Simpson the purpose for which they were written; but he could hardly have refrained from doing so; and if he obtained the information rightfully, what principle of law or morals prevented Simpson & Co. from paying their Baltimore creditors, who had indulged them, and were then pressing them for payment? If they had acted otherwise, they would have been justly censurable. Their obligation was to Dunham & Kearfoot, not to Dall, Gibbon, & Co., and the information obtained simply hastened the payment of an overdue debt, which they had for some time been endeavoring to procure exchange to discharge.

But if Duff had not opened the letters, is it not manifest that Jones, on his arrival in Rogersville, would have communicated their contents to James K. Simpson?

Jones swears that he would, on account of their intimacy, and because Cocke had directed him to do so. And if Dall, Gibbon, & Co. authorized their attorney to consult Simpson, and give him the same information which Duff did, how can they complain of the manner in which the information was obtained?

The procurement of Cocke, who had nothing to do with the matter, to select an attorney in 478*] Tennessee, who was his "relative and also a relative of one of the Simpsons, was a contrivance to obtain more surely and easily the information on which the proceedings in attachment could be predicated. The scheme was a failure, and Dall, Gibbon, & Co. have no just right to complain. They are in no proper sense the losers by the conduct of Duff. The result would have been the same if Jones had got the letters unopened, for he would have told the Simpsons what he wanted; and it is easy to see that instead of responding to his request, the firm would, in obedience to a plain sense of duty, have paid their just debts to their own creditors.

On what basis, then, can this claim be sustained? The examination of the record discloses none, and we are unable to supply the omission.

The judgment of the Circuit Court is reversed, and a new venire awarded.

Dissenting, Mr. Chief Justice Chase.

THE UNITED STATES, Piff. in Err.,

0.

JEREMIAH Y. DASHIEL et al.

(See S. C. 3 Wall. 688-703.) Disputed facts on motion determined by the court-when levy on execution satisfies judgment-levy on personal property waste of

by the officer, that the title to the goods is changed, or that the goods are lost to the debtor, the judgment is extinguished, and the creditor must take his remedy against the officer.

8. Return of the marshal in this case shows that he only obtained a partial satisfaction of the execu

tion, and the clear inference from the record is, that the sale was discontinued at the request and

for the benefit of the debtor.

of the judiciary act, is substantially the same as 9. Effect of a writ of error under the 22d section that of the writ of error at common law, and the practice and course of proceedings in the case are the same, except so far as they have been modified by acts of Congress, or the rules and decisions of this court.

10. Service of the writ of error in the practice of this court is, the lodging of a copy of the same in the clerk's office where the record remains.

11. Two things are required of the defendant in order that his writ of error may operate as a supersedeas: (1) He must serve the writ, as aforesaid, rendition of the judgment; (2) he must give bond, within ten days, "Sundays exclusive," after the with sureties, in a sum sufficient to secure the whole judgment.

12. Plaintiff, also, may bring error to reverse his own judgment where injustice has been done him, or where the judgment is for a less sum than he claims; but he, like the defendant, is required to give bond to answer for costs.

13. Whether sued out by plaintiff or defendant, the writ of error at common law operated in all cases as a supersedeas, but it never had any retroactive effect.

14. Nothing is better settled at common law than the doctrine that the sheriff, if he has made a

levy before the supersedeas comes, is at liberty to proceed and sell the goods.

15. Partial satisfaction of the judgment, whether obtained by a levy or voluntary payment, is not and never was a bar to a writ of error, nor can it be held that it is a release of errors, or that it takes away or impairs the jurisdiction of this court.

16. Neither the decisions of the courts nor the views of text writers, afford and countenance to such a theory at common law, and it finds no support in the rules and decisions of this court.

court.

2. Present motion is grounded solely upon the erroneous assumption that the judgment was extinguished before the writ of error was sued out and prosecuted.

3. Where an execution is levied on personal property sufficient to satisfy the amount, and the property is taken out of possession of the debtor, the prima facie presumption is, that the judgment is extinguished.

4. Such a presumption becomes a conclusive one if it appears that the officer wasted the goods, or that they were lost or destroyed through his fault, or that he misapplied the proceeds of the sale, or that he retained the same and did not return the

execution.

5. No such conclusion follows from a levy of an execution on land, because the acts of the officer without a sale, occasion no loss to the debtor, and the creditor gains nothing, as the title and possession remain unchanged.

6. Levy of an execution, even if made on personal property sufficient to satisfy the execution, does not extinguish the judgment if the levy is overreached by a prior lien, or if it is abandoned at the request of the debtor or for his benefit, or if it is defeated by his misconduct.

7. Whole extent of the rule, if rightly understood is, that when the execution has been so used

Headnotes by Mr. Justice CLIFFORD.

Mr. George W. Paschal for defendants in

Mr. Justice Clifford delivered the opinion of the court:

Defendants move to dismiss the case because it appears by the record, as they allege in the motion, that the judgment in the court below was in favor of the plaintiffs and, that before suing out the writ of error, they obtained satisfaction of the judgment "by execution and sale."

1. Principal defendant had been a paymaster in the Army of the United States, and the record shows that the suit was commenced against him and the other defendant, as one of his sureties on the official bond of the former, given for the faithful discharge of his duties. Breach of the bond, as assigned in the declaration, was that the principal obligor failed to pay over, lic moneys intrusted to his keeping, and for or account for the sums of $20,085.74 of the pubwhich he and his sureties were jointly and severally liable.

2. Claim of the plaintiffs was for that sum, as shown in the treasury transcript, but the defendants in their answer denied the whole claim, and they also pleaded specially that the princi

case were accordingly that the sheriff should proceed to the sale of the goods he had already levied, and that he should return the money into court to abide the event of the writ of error. Meriton v. Stevens, Willes, 282.

6. Effect of a writ of error under the 22d section of the judiciary act is substantially the same as that of the writ of error at common law, and the practice and course of proceedings in the appellate tribunals are the same except so far as they have been modified by acts of Congress, or by the rules and decisions of this court. Service of a writ of error, in the practice of this court, is the lodging of a copy of the same in the clerk's office where the record remains. Brooks v. Norris, 11 How. 204. Whenever a defendant sues out a writ of error, and he desires that it may operate as a supersedeas, he is required to do two things, and if either is omitted, he fails to accomplish his object: (1) He must serve the writ of error as aforesaid, within ten days, "Sundays exclusive," after the rendition of the judgment; and (2) he must give bond with sureties to the satisfaction of the court, for the benefit of the plaintiff, in a sum sufficient to secure the whole judgment in case it be affirmed. Catlett v. Brodie, 9 Wheat. 553; Stafford v. Union Bank, 16 How. 35. Security for costs only is required of the defendant when the writ of error sued out by him does not stay the execution, and he is not compelled, in any case, to make the writ of error a supersedeas, although it may be sued out within ten days after the judgment. 1 Stat. at L. 404.

Plaintiff also may bring error to reverse his own judgment, where injustice has been done him, or where it is for a less sum than he claims; but he, like the defendant, is required to give bond to answer for costs. Johnson V. Jebb, 3 Burr. 1772; Sarles v. Hyatt, 1 Cow. 254. Writs of error at common law, whether sued out by plaintiff or defendant, operated in all cases as supersedeas; but it has never been heard in a court of justice since the decision in

702*] the case of *Meriton v. Stevens, that they had any retroactive effect, or any effect at all, until they were allowed and served.

Applying these rules to the present case, it is

clear that there was no conflict between the action of the marshal in obtaining partial satisfaction of the judgment in this case, and the pending writ of error which was subsequently a judgment, whether obtained by a levy or voluntary payment, is not, and never was, a bar to a writ of error, where it appeared that the levy was made, or the payment was received prior to the service of the writ, and there is no well considered case which affords the slightest support to any such proposition. Subsequent payment, unless in full, would have no greater effect; but it is unnecessary to examine that point, as no such question is presented for decision. Where the alleged satisfaction is not in full, and was obtained prior to the allowance of the writ of error, the authorities are unanimous that it does not impair the right of the plaintiff to prosecute the writ, and it is only necessary to refer to a standard writer upon the subject to show that the rule as here stated has prevailed in the parent country from a very early period in the history of her jurisprudence to the

sued out and allowed. Partial satisfaction of

present time. 1 Chit. Archb. Pr. 558 (ed. 1862).

Substance of the rule as there laid down, is that where the execution is issued before the writ of error is sued out, if the sheriff has commenced to levy under the execution, he must proceed to complete what he has begun; but if when notified of the writ of error he has not commenced to levy, he cannot obey the command of the execution. 2 W. Saund. 101, h; Perkins v. Woolaston, 1 Salk. 321; Milstead v. Coppard, 5 T. R. 272; Kinnaird v. Lyall, 7 East. 296; Belshaw v. Marshall, 4 B. & Ad. 336; Messiter v. Dyneley, 4 Taunt. 289. Even the levy of the execution after the supersedeas has commenced to operate, is no bar to the writ of error; but the court, on due application, will enjoin the proceedings and set the execution aside, and it has been held that the sheriff and all the parties acting in the matter, are liable in trespass. 2 W. Saund. 101, g; Bac. Abr. Error, H.; Dudley v. Stokes, 2 W. Bl. 1183. *Neither the decisions of the courts, [*703 therefore, nor text writers, afford any countenance to the theory that partial satisfaction of the execution operates as an extinguishment of the judgment, or a release of errors, or that it takes away or impairs the jurisdiction of this court. Carefully examined it will be found that the cases cited assert no such doctrine, but that every one of them proceeds upon the ground that where the plaintiff has sued out execution, enforced his judgment, and obtained full satisfaction, there is nothing left on which a writ of error can operate.

Import of the argument is, that a writ of error lies only on a final judgment, and that the plaintiff, when he accepts full satisfaction for his judgment, removes the only foundation on which the writ of error can be allowed. Suffice it to say, in answer to that suggestion, that no such question arises in the case, which is all that is necessary to say upon the subject at the

present time.

The motion to dismiss is denied.

Motion is also denied in No. 39. Let the

same order be entered in that case.

Mr. Justice Grier, dissenting:

missed. The plaintiff's having elected to take I think this writ of error ought to be disexecution and satisfy his judgment, has no longer any judgment upon which the writ can operate. His election to accept and execute his judgment below is a "retraxit" of his writ of error. Such has been the unanimous decision of every court of law that has passed on the question. Appeals in chancery can furnish cree in chancery may have a dozen different no precedent for a contrary decision. A departs, some of which may stand good and be executed, while others may be litigated on appeal. A judgment at law is one thing. The plaintiff cannot divide his claim into parts, and when he obtains judgment for part, accept that part, and prosecute his suit for more. Having writ of error he cannot elect to have both. a right to elect to pursue his judgment or his

We concur in this dissenting opinion.

Samuel Nelson. David Davis.