Opinion of the Court.

or reported there until at or about 2 o'clock P. M. of that day, and that it was then too late to enter the said goods in the usual course of business within that day in the said customhouse.

"4. The first day of July, 1883, was a Sunday. The said goods were duly entered at the said custom-house on the second day of July, 1883, having remained meantime solely in the custody of the said customs officers on board the said vessel.

"5. The said goods were not in any public storehouse or bonded warehouse on the first day of July, 1883, otherwise than as hereinabove appears.

"6. The defendant, as collector of said port, levied customs duties upon plaintiffs' said goods, at the rates provided for by section 2504 of the Revised Statutes of the United States, amounting to $2754.41.

"The plaintiffs objected and protested against such levy upon the ground that the levy should have been made under the act of Congress entitled An act to reduce internal revenue taxation, and for other purposes,' approved March 3, 1883, under which last-mentioned act the duties upon the said goods would have amounted to $2179.59, but they paid the amount of the said levy of the defendant and duly brought this action to recover the difference or excess so paid, to wit, to recover $574.82.

“And hereupon the counsel for both parties deem it not necessary to print the record on this appeal or to argue the appeal before the court, and the Attorney General, in behalf of the defendant, submits to the direction of the court upon the motion of plaintiffs' counsel for judgment."

Mr. Waldo Hutchins and Mr. William Forse Scott for plaintiffs in error.

Mr. Solicitor General for defendant in error.

PER CURIAM. The judgment of the court below is Reversed with costs, on the authority of the decision of this court in the case of Hartranft v. Oliver, (No. 190 of October term, 1887), 125 U. S. 525, and the cause is remanded with directions to enter judgment for the plaintiffs.

Statement of the Case.

INLAND AND SEABOARD COASTING COMPANY v.

TOLSON.

ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 532. Submitted December 23, 1889. Decided January 6, 1890.

At a special term of the Supreme Court of the District of Columbia a judgment was rendered in favor of the plaintiff against a sole defendant. The defendant appealed to the general term and gave sureties. The general term affirmed the judgment below, and entered judgment against the defendant and against the sureties. The defendant sued out a writ of error to this judgment without joining the sureties. The defendant in error moved to dismiss the writ for the non-joinder of the sureties, and the writ was accordingly dismissed. The counsel for the plaintiff in error then moved to rescind the judgment of dismissal, and to restore the case to the docket. Briefs being filed on both sides; Held, that the motion should be granted, and the case should be restored to the docket.

THIS cause was first tried in the Supreme Court of the District of Columbia, at special term, where the following judgment was entered :

"Now, again, come here the parties aforesaid, in manner aforesaid, and the same jury that was respited yesterday, who, after the case is given them in charge, on their oath say that they find said issue in favor of the plaintiff, and assess his damages by reason of the premises at the sum of eight thousand dollars, besides costs; therefore it is considered that the plaintiff recover against said defendant eight thousand dollars for his damages in manner and form as aforesaid assessed and for his costs of suit, and have execution thereof."

$

An appeal from this judgment was taken to the general term by the defendant, the Inland and Seaboard Coasting Company, and an undertaking given as provided by the rules of court, Henry A. Willard, John W. Thompson, Samuel Norment and J. H. Baxter being the sureties.

The court in general term thereupon entered judgment as follows:

"Now again come here as well the plaintiff as the defend

Statement of the Case.

ant by their respective attorneys, whereupon it appearing to the court that the defendant's exceptions to the admissibility of evidence and to the rulings and instructions of the court in special term were not well taken; and the defendant by its counsel having, in open court, abandoned its various appeals and applications for new trial on other grounds, the motion. for a new trial on exceptions is now overruled and the judgment of the court in special term is affirmed with costs. And it is further adjudged that the plaintiff recover upon his said judgment, to wit, the sum of eight thousand dollars as of the date of the said judgment of the special term and the costs as well against the said defendant, and as against Henry A. Willard, John W. Thompson, Samuel Norment and J. H. Baxter, its sureties, on said appeal to this court, and have execution against them and each of them."

The writ of error recited that the judgment to which it was directed was against the Inland and Seaboard Coasting Company; and in the citation that company was described as plaintiff in the writ, and no mention was made of the sureties.

The cause being docketed here counsel for the defendant in error, on the 21st of October, 1889, moved to dismiss the writ because the judgment was rendered against the company and the several sureties; and the sureties had not joined with the company in the writ; citing Hampton v. Rouse, 13 Wall. 187; Masterson v. Herndon, 10 Wall. 416; Simpson v. Greeley, 20 Wall. 152; Feibelman v. Packard, 108 U. S. 14; Estis v. Trabue, 128 U. S. 225; Wilson's Heirs v. New York Insurance Co., 12 Pet. 140; Hilton v. Dickinson, 108 U. S. 165.

Counsel for plaintiff in error opposed this motion, contending as follows:

It is respectfully submitted that the judgment of the general term affirming the judgment below, which was a judg ment against the defendant, the Inland and Seaboard Coasting Company, for a specific sum of money, was a separate judg ment against the Inland and Seaboard Coasting Company.

The fact that the court proceeded further to adjudge that

Statement of the Case.

the plaintiff recover on his said judgment (meaning the judgment of the special term) the amount therein named, and the costs as well against the said defendant as against its sureties and have execution against them and each of them, did not deprive the defendant of its right to a separate writ of error to the judgment that was separately against it.

The most that can be claimed as to the adjudication by the court in general term is, that it was a separate judgment against the company, and also another judgment against the

sureties.

Estis v. Trabue, 128 U. S. 225, so far from supporting the motion, is authority for saying that if a judgment is "distributive" and can be regarded as containing a separate judgment against a defendant who is a principal, and, also, a judgment against the sureties, the defendant against whom the judgment is entered as a principal can have his separate writ of error.

The practice of allowing judgment on the forthcoming bond, referred to in the case of Estis v. Trabue, above, is statutory. Amis v. Smith, 16 Pet. 303.

An affirmance of a judgment or decree against sureties can only be rendered when there is a statutory provision authorizing it. Hiriart v. Ballon, 9 Pet. 156; Beall v. New Mexico, 16 Wall. 535; Moore v. Huntington, 17 Wall. 417; Smith v. Gaines, 93 U. S. 341; Marchand v. Frellsen, 105 U. S. 423.

But in the present case there was no authority of law for the entry of a judgment by the court in general term. The judg ment was entered in accordance with what is believed to be a new practice under a rule of court, and the defendants had no personal knowledge that the judgment had been entered.

On the 4th of November, 1889, the court ordered the writ to be dismissed, and judgment was entered accordingly.

On the 23d of December, 1889, the counsel for the plaintiff in error moved to rescind that judgment, and to restore the case to the docket and for leave to amend the writ of error by

Statement of the Case.

inserting therein as plaintiffs in error the names of the several trustees, stating that it was too late to sue out another writ of

error.

He further said: In respect of the original suit, the court in general term affirmed its judgment in special term against the plaintiff in error. It then took up and considered the undertaking, made after the judgment at special term, and rendered judgment upon that. These were in fact, and in law, two judgments. The defendants in the second judgment occupy precisely the same relation to the judgment they would occupy if, instead of a judgment rendered in the same cause on the undertaking, there was a separate suit to enforce the undertaking after a judgment rendered for the tort.

In such a suit it is plain that the parties to the undertaking could not show error in the suit in which the undertaking was given, aud they can no more show it here than in such separate suit. The defendants in the undertaking are proceeded against by reason of the contract. They have said: we agree that if the judgment appealed from be affirmed, judgment may be rendered against us, and upon this contract judgment is rendered. The sureties were no parties to the tort suit, and although the plaintiff in error was a party to both, it is proceeded against in distinct capacities, in the suit, as a tort feasor, and, on the undertaking, as a party to a written contract.

In New York, an undertaking by the appellant and his sureties has, to a great extent, taken the place of a bond in error, but suit must then be brought on the undertaking.

The legal character of such an undertaking has been fully considered by the courts of that State. Robinson v. Plympton, 25 N. Y. 484; Hinckley v. Kreitz, 58 N. Y. 583.

The terms of the judgment are that the plaintiff recover upon the judgment entered at the special term against the defendant and its sureties, "and have execution against them and each of them." These words authorize execution against either. At common law the execution had to be against all, although it might be levied upon any one. Where, as in this case, a judgment provides that execution may be sued out