Statement of the case and opinion of the court. COOKE v. UNITED STATES. 1. The mere fact that an act of Congress authorizes a judgment obtained by the Government against a party, to be discharged by the payment of a sum less than $2000, is no ground to ask a dismissal of a case of which the court had properly obtained jurisdiction before the act passed. The party may not choose thus to settle the judgment, but prefer to try to reverse it altogether. 2. When the sum in controversy is large enough to give the court jurisdiction of a case, such jurisdiction once properly obtained, is not taken away by a subsequent reduction of the sum below the amount requisite. In this case the United States had obtained a judgment for $3796.80 against Cooke, who to the same took a writ of error. The Attorney-General now moved the court to dismiss the cause for want of jurisdiction, and assigned for reason that since the issuing and serving of the writ of error, an act of Congress had reduced the amount in controversy below the sum of $2000. On referring to the act, it appeared to authorize a remission of $2500 from the $3796.80, for which judgment had been obtained; but the remission was offered on condition of payment of the remaining $1296.80: and nothing was put before the court to show that Cooke had availed himself of the offer made. The CHIEF JUSTICE: It does not appear that the proposition has been accepted; and if not, the amount in controversy remains unaffected. But had the alleged reduction been made by an actual payment, the jurisdiction of the court would not be taken away. The jurisdictional facts existed at the time of issuing and serving the writ of error. By its issue and service the court obtained jurisdiction over the cause, and this jurisdiction once acquired, cannot be taken away by any change in the value of the subject of controversy. MOTION OVERRULED AND CASE RETAINED. Statement of the case. SMITH ET AL. v. UNITED STATES. 1 Where several persons sign a bond to the Government as surety for a Government officer, which bond, statute requires shall be approved by a judge, before the officer enters on the duties of his office, an erasure by one of the sureties of his name from the bond-though such erasure be made before the instrument is submitted to the judge for approval, and, therefore, while it is uncertain whether it will be accepted by the Government, or ever take effect.-avoids the bond, after approval, as respects a surety who had not been informed that the name was thus erased; the case being one where, as the court assumed, the tendency of the evidence was, that the person whose name was erased signed the bond before or at the same time with the other party, the defendant. 2. Any unauthorized variation in an agreement which a surety has signed, that may prejudice him, or may substitute an agreement different from that which he came into, discharges him. AN act of Congress, relating to marshals of the United States,* provides, that "before" the marshal enters on the duties of his office, he shall become "bound" for the faithful performance of the same, before the judge of the District Court of the United States, jointly and severally, with sufficient sureties, "to be approved by the district judge." With this act in force, Pine was appointed marshal, and gave bond on which the name of Smith and others had been signed, and appeared as sureties. Suit having been brought against the marshal, Smith, and the others, his sureties, in the Circuit Court for the Northern District of Illinois, upon this bond, Smith pleaded that the bond was not his deed. On the trial the United States offered the bond in evidence. The instrument showed on the face that it had been signed by a certain Hoyne as one of the sureties; but that his name was now erased. The defendants, accordingly, objected to the admission of the bond in evidence, on the ground that there was an erasure and alteration thereon, which it was the duty of the plaintiff to explain. The plaintiff then called the district judge, who had approved the bond. The learned justice testified that when it was brought * Act of 24th of September, 1789; 1 Stat. at Large, 87. Statement of the case. to him for approval, it presented the same appearance exactly as it did now at the trial, except that the names of the sureties were inserted by him in the first part of it; that it was brought either by one McGill or by the defendant, Pine; that Pine had difficulty in getting sureties, and had, some time before, told him, the witness, that Hoyne had objections to having his name on the bond, and Hoyne afterwards told him the same thing. The judge had not then seen it. Afterwards it was brought to him, with Hoyne's name erased. Not knowing the signatures of all the parties, he held the bond several days, and all the sureties came in and acknowledged the execution of it before him, except the defendant, Smith. He then approved the bond, and being personally acquainted with Smith's writing, certified to the genuineness of the signatures. The bond was then admitted in evidence, under objection. At a subsequent stage of the trial the defendant, Smith, called the district judge as a witness, when he testified that some time before the approval of the bond by him, Hoyne stated to him that he had signed the bond, with others, for Pine, but that he had become dissatisfied, and that McGill and Pine had both agreed that his name should be taken off; that he wanted it off, and was not willing it should remain on the bond. The witness said, further, that when the sureties who acknowledged the execution of the bond appeared before him, he might have called their attention to the erasure of the name of Hoyne, but was not positive; was inclined to think he did; thought he handed it to each one of them, and asked them if they signed it; he didn't know that they read it. Hoyne himself testified that "he signed the bond,—which was circulated for signatures,-with others;" but that soon after, and before its approval, he became dissatisfied, and requested McGill and Pine to have his name erased; and that they promised to do this. Not being able himself to get the bond to do it, and knowing that it would have to be approved by the district judge, he went to that officer and informed him of his wish; said he had signed it, and wanted Argument for the United States. to have his name erased, &c. The judge told him, that in justice to the other signers, he should tell them that he wanted his name off; that accordingly, in a very short time, he, the witness, spoke to all the parties who had signed, except Smith, who was absent, and told them that he wanted his name off. A few days after, in response to his inquiry, the judge told him that his name had been erased. When it was done, and by whom, he did not know. On this state of facts, the counsel of the defendant, Smith, requested the court below to charge, among other things, as follows: 1. That if the jury believed, from the evidence, that the name of Hoyne was erased from the bond in suit, without the knowledge or consent of him, the defendant, Smith, and that he, Smith, did not acknowledge the bond as his, subsequently to such erasure, the jury should find in his favor. 2. That the law places the burden of proving such consent upon the plaintiffs, and if they have failed to make such proof, they are not entitled to a verdict. The court refused so to charge, and the defendants excepted. Verdict and judgment having gone for the United States, the defendants took this writ of error. Mr. Coffey, special counsel for the United States, defendant in error: There is no evidence in this case that Smith, or any of the signers of Marshal Pine's bond, made any condition when signing as to what persons, or what number of persons, should unite with them. Indeed, it is quite evident not only that there was no agreement or condition made by any of them on signing, but that each signed independently of the others, and without knowing, except so far as they had signed, who their co-sureties were to be. For IIoyne testifies that he "signed the bond, which was circulated for signatures, with others;" and the district judge testifies that when he approved the bond he inserted the names of the sureties in the first part of it. It was the common case of Argument for the United States. a person carrying around an official bond, and getting any persons whatever who are willing to oblige, to a certain extent, the principal. When, therefore, the sureties signed, they must have done so without knowing who were to be their co-sureties, and, of course, without any agreement as to who or how many were to sign. This, then, we think may be assumed as part of our case. The erasure of Hoyne's name, of which Smith now seeks to avail himself,-the first point, and one which, if decided as we think it ought to be, will render the others unimportant on the proofs,-was made, not only before the delivery of the bond to the plaintiff, but before the essential preliminary to its execution of approval by the United States dis. trict judge; and it was evidently made by Marshal Pine himself, or at his instance, and before the plaintiff had any connection with it. Certainly it was not made by or at the instance of the plaintiff. The explicit direction of the act of Congress relating to marshals, that the marshal shall "become bound" before the judge of the District Court, with "sureties to be approved by the district judge,” shows that the bond is in no manner executed until it is brought to the judge and approved by him. That approval is as essential to its valid execution as is the acknowledgment made in court to a valid recognizance. Before it is given, the signatures do not bind the sureties, for one important element to a good contract is wanting, viz., the agreement of the United States to accept them; that agreement being, by the law, expressed by the judicial approval. When, therefore, Hoyne's name was stricken off the bond, the erasure left him, as to the obligation which the sureties were about to assume, precisely where he would have stood if he had only promised to sign it, and had not done so. And surely if, having promised to sign it, he had never done so, it could not be pretended that his failure to sign would discharge the sureties who had signed and been approved, even though he and they had previously agreed that unless all signed, none should be bound; unless, indeed, the United States had been a party to that agreement. Such an agreement might bind all the sure |