Plant vs. Gunn. will not create a lien on the property purchased from the defendant, bona fide, prior to such order. The record was only notice of what it contained, and was not notice that there was any legal judgment against the defendants or any lien upon their property." Under such a practice, there is no room left for doubt, that the records of the Bibb superior court contained no evidence of the judgment of Gunn until more than two years after the mortgage to complainants had been executed. As to third parties, there was no judgment until the nunc pro tunc order directing an entry upon the minutes. The memorandum of a judgment which the attorneys for Gunn indorsed upon the declaration at the November term, 1866, was only for the principal sum due. There is no claim that any judgment for interest was rendered at that time. Down to this day, so far as the record shows, there has never been a judgment entered upon the minutes of the court, either by nunc pro tunc order or in any other manner for the principal sum claimed to be due Gunn. The only judgment ordered to be entered nunc pro tunc was a judgment for interest, and this was entered for the first time at the April term, 1871. It cannot be said, that what Woolfolk told Plant about the judgment against himself can make a judgment when there was none. Suppose Plant had gone to the record to find the date and amount of the judgment of which Woolfolk spoke. The minutes of the court and judgment docket would have shown that no such judgment existed. He cannot be charged with notice of anything more than the records of the court revealed. All that he could have learned, even by reading every paper in the case, would be that the jury had rendered a verdict which had never been entered on the minutes of the court, and which the court had never pronounced any judgment. Such a record as that is notice of lis pendens and nothing upon more. The subsequent action of the court, in ordering the verdict and judgment to be entered upon the minutes, could not affect the rights of intermediate incumbrancers. It would avail, at most, as between the parties to the judgment. Strain vs. Gourdin, Assignee. We think, therefore, that the mortgage of the complainants and the judgment recovered thereon is valid and binding, and that it constitutes a lien upon the fund in court, the proceeds of the mortgaged premises, superior to the lien of the judgment recovered by defendant Gunn. ERSKINE, District Judge, concurred. NOVEMBER TERM, 1874. A. & R. STRAIN VS. R. N. GOURDIN, Assignee. 1. A bill of exceptions which shows that the exceptions to the rulings of the court below were not taken at the trial, but were taken for the first time four days after the verdict and judgment, will not, as a matter of right, be considered by the court. 2. A statement made by counsel for plaintiff in error of what he understood the evidence to be, on the trial of the cause in the court below, which is not made a part of the bill of exceptions, and is not verified by the signature of the judge, forms no part of the record, and no matter how formally certified by the clerk, will not as a matter of right be considered by the court on error. 3. The drawing of a check and the delivery thereof to the payee, without presentation, acceptance or payment, does not transfer from the drawer to the holder of the check so much of the fund drawn on as is equal to the sum named in the check. 4. Advice of counsel given to debtors in failing circumstances, that unless they paid their depositors, they would be liable to a criminal prosecution under the state laws, does not take the case out of the operation of the 35th section of the bankrupt act, and make a payment to the depositors a good one. 5. A debtor can not, without the consent of his creditor, substitute another person in his stead as the debtor. 6. The ratification by one, of the unauthorized act of another, can not have a retroactive efficacy so as to defeat the rights of third persons which have intervened between the act ratified and the ratification. ERROR to the District Court. Mr. R. E. Lester, for plaintiff in error. Mr. Geo. A. Mercer, for defendant in error. Strain vs. Gourdin, Assignee. WOODS, Circuit Judge. The record in this case sets out the pleadings and process, the verdict, judgment and certain exceptions to the rulings of the court upon the admissibility of the evidence, and the charge of the court to the jury. The declaration alleges the appointment of Gourdin as assignee of Ketchum & Hartridge, and avers that said A. & R. Strain are indebted to him as such assignce in the sum of $2,250, because on June 1, 1873, the said Ketchum & Hartridge, being indebted to said A. & R. Strain in the amount aforesaid, and being insolvent and in contemplation of insolvency within four months of the filing of the petition in bankruptcy against them, and with a view to give a preference to said A. & R. Strain, paid over to them the said sum of $2,250, said A. & R. Strain having at the time reasonable cause to believe that said Ketchum & Hartridge were insolvent, and that said payment was made in fraud of the bankrupt act; and said A. & R. Strain received said money and appropriated it to their own use, and thereby became indebted to the plaintiff in said amount. To this declaration the defendants pleaded the general issue. The verdict and judgment were for the plaintiffs in the court below for the amount claimed, and the judgment was rendered on April 25, 1874. The bill of exceptions states that the defendants excepted to the ruling out of certain evidence offered by defendants, and to certain charges of the court, but does not show what the evidence ruled out was, nor does it set out any of the evidence in the case by which this court can judge whether the charges given were correct or not. It also appears from the bill of exceptions that the exceptions were not taken at the trial, but on April 29, 1874, four days after the verdict and judgment. It is impossible for this court to say, upon this bill of exceptions, whether the court below fell into any error or not. We cannot say whether the evidence ruled out was properly ruled out or not, because there is no statement to show what the evidence was or for what purpose it was offered. Neither can we say whether the charge of the court was correct or not, for the facts to which it is applicable are not shown. Error is never Strain vs. Gourdin, Assignee. presumed; it must be made to appear. Cliquot's Champagne, 3 Wall., 140. But it appears from the bill that the exceptions were taken four days after verdict and judgment. To be effectual, they must be taken at the trial, although the bill itself may be signed after the trial. Bradstreet v. Potter, 16 Pet., 317; Stimson v. Westchester Railroad Co., 3 How., 553; Pomeroy's Lessee v. The Bank, 1 Wall., 592, 599, 600; French v. Edwards, 13 id., 506. There is, in the record, a petition for a writ of error, which purports to set out all the evidence in the case. This court can take no notice of this. It is not made a part of the bill of exceptions; it is not verified by the signature of the judge, but is simply the statement of the counsel for plaintiffs in error, of what they understood the evidence to be. This forms no part of the record, no matter how formally certified by the clerk, and this court is not bound to take notice of it. Suydam v. Williamson, 20 How., 428, 433, 437, 440; Pomeroy's Lessee v. The Bank, 1 Wall., 592; Young v. Martin, 8 id., 354; Thompson v. Riggs, 5 id., 675; Reed v. Gardner, 17 id., 409. Although the bill of exceptions is ineffectnal to present the points to which exception was taken, I have looked into the statement of the evidence presented by counsel for the plaintiffs in error, to determine whether the court below did in fact fall into error. It appears from this statement, that A. & R. Strain, living at Darien, Georgia, had on deposit with Ketchum & Hartridge, before their bankruptcy, the sum of $2,250. Early in April, 1873, Ketchum & Hartridge became embarrassed. On April 14th, they became satisfied that they must stop payment, and on that day, took legal advice about the propriety and duty of providing for the payment of their depositors, and were advised that they would be liable to a criminal prosecution under the state laws if they failed to pay their depositors. On the 15th of April, they procured certificates of deposit in the Savannah Bank & Trust Company for the amounts due their several depositors, among them one for the amount due A. & R. Strain and payable to their order. Strain vs. Gourdin, Assignee. On the 16th of April, Ketchum & Hartridge telegraphed to A. & R. Strain as follows: "We have stopped payment; you will lose nothing; where shall we deposit your funds?" This was the first intimation that A. & R. Strain had of the failing condition of Ketchum & Hartridge. To this, on the same day, they replied: "Place the funds in the Southern Bank of Georgia." Thereupon Ketchum & Hartridge turned over the certificate of deposit to the Southern Bank of Georgia, where it was placed to the credit of A. & R. Strain. The defendants below offered in evidence four checks drawn by them on Ketchum & Hartridge, amounting, in the aggregate, to $1,312; the first dated April 2d and the last April 14th, but it was conceded that none of them had been presented or paid. These checks were ruled out by the court. On these facts and the charge of the court, as set out in the paper called the petition for writ of error, the following questions appear to have been raised. Were the checks drawn by A. & R. Strain admissible in evidence to show an appropriation pro tanto, before the failure of Ketchum & Hartridge of the funds deposited with them? In other words, does the simple drawing of a check and delivery thereof to the payee, without presentation, acceptance or payment, transfer the fund drawn on, to the amount of the check, from the drawer to the holder of the check? The authorities answer this question in the negative. Morse on Banks and Banking, 471; Mandeville v. Welch, 5 Wheat., 286. See Bank of the Republic v. Millard, 10 Wall., 157, and numerous cases there cited. These checks were offered for the purpose of reducing the amount due from Ketchum & Hartridge, at the time of their failure, to A. & R. Strain. It is clear, upon the authorities cited, they were not admissible for that purpose, and were, therefore, properly ruled out. The next question presented is, whether the legal advice received by Ketchum & Hartridge that unless they paid their depositors, they would be liable to a criminal prosecution, would |