
    JANUARY TERM, 1844.
    John A. Grimball v. The Mississippi and Alabama Railroad Company, use, &c.
    Upon motion of the clerk and sheriff, a rule was granted against the plaintiff for security for costs ; the security was not given, yet the cause was tried, and judgment rendered in favor of the plaintiff; held, to be too late, after judgment, for the defendant to complain that the security was not given.
    If the clerk unnecessarily insert in the record an improper name, that .will constitute no sufficient ground of error for the reversal, by this Court, of the judgment of the Court below.
    Error from the Circuit Court of Hinds county.
    The facts are accurately set out in the argument of the Messrs. Briggs.
    
      D. C. & R. W. Briggs, for plaintiff in error.
    The Mississippi and Alabama Railroad Company, suing to the use of Robert Jaffray, instituted an action of assumpsit to the May term, 1839, of Hinds Circuit Court, against Grimball, Long & McGowan, on a promissory note for $500, dated September 7th, 1837, and due at four months, made by said defendants, and one Trahern, who was not sued.
    At the return term, plea of the general issue was filed for all the defendants.
    At the September term, 1840, the cause was continued under the sixty day rule for costs, upon motion of the circuit clerk and sheriff.
    This rule was not complied with, the security for costs was not given.
    On the 4th day of January, 1842, judgment was entered up in favor of Brandon Bank use- v. Grimball, Long & Me Gowan, for $660 ; verdict having been found.
    McGowan has sued out his writ of error, in the names of all the defendants, and bis writ of “summons and severance,” against Grimball & Long, has been returned executed.
    As the points of practice under the sixty day rule, as it is commonly called, arise daily, the attention of the Court is called to the fact exhibited in the record, that a rule on the plaintiff, requiring security for costs, was not complied with, and its opinion solicited as to the construction of the statute. How. & Hutch, p. 587.
    And whether, at the expiration of the sixty days, if the rule be not complied with, the case must not go off at all events.
    And whether, if the benefit of the rule may seem to have been waived by the defendants, whether this waiver, by the defendants, can suffice to keep a cause on the docket, when this rule was granted in favor of the officers of Court.
    But whatever may be the view taken of this matter by the Court, there is one error which is incurable, viz. : The verdict was obtained by, and a judgment rendered in favor of, not “ The Mississippi and Alabama Railroad Company, for the use of Robert Jaf-fray,” but in favor of “ Brandon Bank use.” (See third page of transcript.) Had no names been inserted, but the usual phrase employed, “came the parties, &c.,” such phrase could only refer to “ the parties,” whose names are set forth in the declaration ; but here the record shows a trial of an issue between different parties from those mentioned in the declaration, and a judgment in pursuance of such issue. Nor can this be deemed a mere clerical error ; this Court cannot, judicially, know that, in common parlance, the phrase “Brandon Bank,” means the “Mississippi and Alabama Railroad Company ; ” but can only see, from the record, that a verdict was obtained, and a judgment had in favor of a different plaintiff from him by whom the suit was instituted.
    Tarpley, for defendant in error.
    Referring to the abstract and brief of the plaintiff in error, there are but two causes assigned as error.
    1st. That no security was given for costs.
    2d. A variance between the judgment and writ.
    The statute which authorizes the rule for security for costs, does not of itself dispose of the case, upon a failure to comply, without the action of the Court making the rule absolute, and dismissing the case. The motion being made, in legal contemplation, for the benefit of the defendant, he has the right to waive the privilege, and must be presumed to have done so, when he does not ask the aid of the Court to render the rule absolute. In other words, the mere omission to give security, after notice, or a rule entered, does not of itself put the case out of Court; and while the case remains in Court, the plaintiff is entitled to all the right pertaining to it which he would have had if the rule had not been entered.
    The subject-matter of the second assignment constitutes no part of the record, it being a mere memorandum, to direct the clerk in what case the entry should be made. After setting out the writ, declaration, plea, and continuance, which are legitimate parts of the record, it states, that on a day of the term, being the 4th day of January, 1843, No. 11,552, Brandon Bank, &c. v. Grimball, Long & McGowan, came the parties, &c. Now, if the clerk had left out all the words after the day, except “came the parties,” &c., the record would have been full and complete, and the mere addition of those words cannot make that defective which was good without them. The pleadings designate the case, and the record states, that the judgment was. rendered, upon those pleadings, between the parties, and it matters not by what name the caprice of a clerk might call the plaintiff; the only question would be, was the judgment of the Court and the verdict of the jury, pronounced upon those pleadings ; and upon this point the record is full, certain, and complete, and the plaintiff’s petition for the writ of error, which brought up the record in this case, designates the case as The Mississippi and Alabama Railroad Co. use of Robert Jaffray v. Grimball, Long & McGowan, &c., and it was the judgment in that case of which he complained, which he brings here to reverse ; and the evidence of this judgment he proves by the record, which he brings into Court; and this record corresponds with the pleadings in the case.
    The first record filed in the case obviates the supposed difficulty, by leaving out the name of the case at the head of the judgment, and states that “ this case was called for trial on the 4th day of January, when the parties came by their attorneys,” &c. Both records are certified to be true, complete, and perfect, and in fact are so for all purposes necessary to affirm the judgment.
   Mr. Justice ThacheR

delivered the opinion of the Court.

This was a writ of error to Hinds county Circuit Court. In this case, it appears that a rule was made against the plaintiff below for security for costs, upon the application of the clerk and sheriff, with which there was no compliance. The defendants below permitted the case to proceed to trial and judgment, without objection upon the score of this non-compliance. It is now contended, that the cause should have been dismissed, and. that the judgment below was error. But it is certainly too late, after a judgment, to seek to dismiss a case upon the principle here contended for by the plaintiff in error. If the judgment is in other respects regular, the right of a party defendant below to have it dismissed during its pen-dency, but which right was not then exercised, cannot constitute a reason for a reversal here. The judgment, as such, is without fault. The dismissal below is not of course, but incident upon due application, and we are compelled to view the want of action of the defendants below, as a waiver of their right to a dismissal of the cause.

There is also an objection to the judgment, that, in the place of the record where it occurs, it is preceded by the name of a party other than the plaintiff below. The insertion of the words, “ Brandon Bank, &c. v. Grimball, Long & McGowan,’’ were entirely unnecessary, had they constituted the true title of the case ; and not being so, they cannot vitiate the judgment. They form no part of the judgment of the Court, but are merely the unauthorized introduction of the clerk, and may be wholly disregarded. For a judgment is a feature of a record, and, appearing there,'refers back to the caption of that record of which it forms a part, and to that caption we look for the true parties in the case.

Judgment affirmed.  