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5 How. 103-121

Notes on U. S. Reports.

548

ing surety bound to pay on principal's default and action, therefore, maintainable by him.

Payment by surety of a surety, of principal's debt under a legal obligation, from which principal was bound to relieve him, is sufficient consideration to raise implied assumpsit to repay, though payment made without request from principal, pp. 102, 103.

Cited in Gibson v. Love, 2 Fla. 620, and Nichols v. Porter, 2 W. Va. 23, 94 Am. Dec. 506, holding action maintainable by surety for money paid upon principal's default.

5 How. 103–121, 12 L. 70, BARRY v. MERCEIN.

Supreme Court possesses no appellate power unless conferred by act of Congress, nor can it be exercised, when conferred, otherwise than as the law prescribes, p. 119.

Cited approvingly and followed in Ex parte Vallandigham, 1 Wall. 251, 17 L. 593, denying jurisdiction to review proceedings of military commission; Daniels v. Railroad Co., 3 Wall. 254, 18 L. 225, denying jurisdiction where certificate of division brought up the whole case; United States v. Young, 94 U. S. 259, 24 L. 153, collecting cases, dismissing appeal and refusing certiorari to compel court to send up proceedings after appeal when new trial granted; Elgin v. Marshall, 106 U. S. 580, 27 L. 249, 1 S. Ct. 486, construing statute strictly; American Construction Co. v. Jacksonville, etc., Ry. Co., 148 U. S. 378, 37 L. 489, 13 S. Ct. 761, collecting cases, denying mandamus to review order of inferior court; United States v. New Bedford Bridge, 1 Wood. & M. 435, F. C. 15,867, denying to Federal Circuit Court jurisdiction not conferred by Congress; San Francisco v. United States (The Pueblo Case), 4 Sawy. 580, F. C. 12,316, denying motion for appeal where not expressly provided for by law; Stevens v. Clark, 62 Fed. 323, 18 TJ. S. App. 584, holding appeal does not lie from judgment in action at law; City of Wilmington v. Ricaud, 90 Fed. 213, collecting cases, holding errors in law case reviewable only by writ of error; principle applied by analogy in the following: State v. Daugherty, 5 Tex. 3, reviewing cases, dismissing appeal by State from judgment in criminal case for defendant where not allowed by statute; McFarland v. Johnson, 27 Tex. 106, collecting cases, holding respondent could not appeal from judgment in habeas corpus proceeding; North Point, etc., Irrigation Co. v. Canal Co., 14 Utah, 167, 46 Pac. 827, collecting cases, holding right of appeal denied where not expressly granted. Cited also in Ex parte Bradley, 7 Wall. 384, 19 L. 221, dissenting opinion, reviewing cases, majority holding mandamus lies from supreme to inferior court to restore attorney for contempt committed in another court; Ex parte Lange, 18 Wall. 205, 21 L. 888, dissenting opinion, collecting cases, majority holding court could by habeas corpus and certiorari look into record to ascertain whether judgment in criminal case

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valid; In re McDonald, 16 Fed. Cas. 23, 27, arguendo, discussing Federal court's powers, original and appellate, to issue habeas corpus, and history of the writ under Federal legislation; Sanders v. Cabaniss, 43 Ala. 190, concurring opinion, holding appellate court without authority, in absence of legislative enactment, to remand cause in which appeal pending. Cited, arguendo, in State v. McKone, 95 Wis 220, 70 N. W. 166, holding statute excepting from provisions of a statute granting appeals, cases involving less than $100, applied only to cases involving rights reducible to pecuniary standard; Rogers v. Kennard, 54 Tex. 38, denying jurisdiction not conferred by statutes defining court's powers.

Appeal and error.— Right to review decisions of State courts of last resort depends on character, not value, of matter in controversy, p. 120.

Appeal and error. - Judgments of Federal Circuit Courts are reviewable only where the matter in dispute is some right, the money value of which can be calculated and ascertained, and exceeds the value of $2,000 exclusive of costs, p. 120.

Cited and principle applied in De Krafft v. Barney, 2 Black, 714, 17 L. 351, where matter in dispute was right to custody of children; Potts v. Chumasero, 92 U. S. 361, 23 L. 499, denying appellate jurisdiction of proceedings to prevent change of territorial capital; Youngstown Bank v. Hughes, 106 U. S. 524, 27 L. 269, 1 S. Ct. 490, dismissing appeal where value of matter in dispute not ascertainable in money; Elgin v. Marshall, 106 U. S. 580, 27 L. 249, 1 S. Ct. 486, collecting cases denying jurisdiction where contest involved liability for interest less than statutory sum, on bonds for larger sum; applied by analogy in Kurtz v. Moffitt, 115 U. S. 495, 496, 29 L. 459, 460, 6 S. Ct. 150, reviewing cases, holding writ of habeas corpus not removable from State to Federal Circuit Court; Hatch v. Chicago, etc., R. R. Co., 6 Blatchf. 116, F. C. 6,204, holding case fulfilling statutory requirements was removable from State to Federal Circuit Court. Cited also in Ruddick v. Billings, Woolw. 336, 3 N. B. R. 14, F. C. 12,110, quære whether creditor resisting bankrupt's discharge claims debt or damages; Gartside v. Gartside, 42 Mo. App. 514, holding, arguendo, where appeal depends on value of matter in dispute, it must be estimated in money; arguendo, in Dryden v. Swinburn, 15 W. Va. 248, holding public office had pecuniary value.

Distinguished in King v. McLean Asylum, etc., 64 Fed. 333, 21 U. S. App. 481, 26 L. R. A. 784, 785, taking appellate jurisdiction of habeas corpus proceeding.

Supreme Court is without appellate power where Circuit Court denied habeas corpus prayed for by father to take his child from its mother's custody, since matter in dispute is incapable of being reduced to pecuniary standard of value, pp. 120, 121.

5 How. 121–134

Notes on U. S. Reports.

550

Cited and followed in De Krafft v. Barney, 2 Black, 714, 17 L. 351, involving right to custody of children; Perrine v. Slack, 164 U. S. 454, 41 L. 511, 17 S. Ct. 79, denying jurisdiction to review judgment in proceeding for custody of children. Cited and discussed, arguendo, In re Burrus, 136 U. S. 594, 595, 34 L. 510, 511, 10 S. Ct. 853, denying jurisdiction of District Court to issue habeas corpus to restore infant to father's custody.

Miscellaneous.- Cited in Taylor v. Carpenter, 2 Wood. & M. 15, F. C. 13,785, as instance of foreigner suing in Federal court; Bennett v. Bennett, Deady, 319, F. C. 1,318, upon question of jurisdiction of Federal court in contest for custody of infant; People v. Bradley, 60 Ill. 399, quoting counsel's argument upon nature of writ of habeas corpus; Noble v. Cullom, 44 Ala. 583, erroneously citing argument of counsel.

5 How. 121-126, 12 L. 78, MAYBERRY v. THOMPSON.

Appeal and error.- Error to Supreme Court on Circuit Court judgments in original causes or causes taken up from the District Court on error, lie only when judgment is final, and matter in dispute, exclusive of costs, exceeds $2,000, p. 126.

See note in 91 Am. Dec. 195, collecting cases.

Appeal and error.- Circuit Court judgment merely reversing District Court judgment, with costs, is not final, judgment. not reviewable in Supreme Court, p. 126.

5 How. 127-134, 12 L. 81, NELSON v. HILL.

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Equity practice.- Objection to a bill for multifariousness must be made before answer, though the court may, at the hearing, sua sponte, make such objection; and it must be tested and determined by the structure of the bill alone, p. 132.

Cited and rule applied in Hefner v. Northwestern, etc., Ins. Co., 123 U. S. 751, 31 L. 311, 8 S. Ct. 339, holding multifariousness could not be taken advantage of except by demurrer, plea or answer; Bunnel v. Stoddard, 4 Fed. Cas. 681, collecting cases, holding objection for multifariousness, taken by answer, was too late; Converse v. Michigan Dairy Co., 45 Fed. 20, collecting cases, holding objection to bill at hearing for multifariousness too late; Thornton v. Houtze, 91 Ill. 220, holding objection of multifariousness cannot be urged after answer; Abbot v. Johnson, 32 N. H. 23, 24, collecting cases, holding objection for multifariousness apparent in the bill must be made by demurrer; Veghte v. Raritan Water Power Co., 19 N. J. Eq. 146, collecting cases, holding objection waived by answering the matter of the bill; Woodworth v. Gibbs, 61 Iowa, 401, 16 N. W. 288, collecting cases, where court, sua sponte, took the objection and affirmed judgment dismissing petition. Cited also in Wales v. New

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bould, 9 Mich. 81, concurring opinion, collecting cases, holding objection waived where not taken before answer; Ronayne v. Loranger, 66 Mich. 383, 33 N. W. 845, dissenting opinion, majority ignoring the point.

Partnership.— Creditors of a partnership may, at their option, proceed at law against the surviving partner, or go into equity against the representatives of the deceased partner, without first exhausting their remedy against the former, p. 133.

Cited and principle applied in Lewis v. United States, 92 U. S. 622, 23 L. 514 (affirming 13 Bank. Reg. 37, 26 Fed. Cas. 924), holding United States need not exhaust legal remedies against partnership in which members of bankrupt firm were partners, before proceeding in equity against latter's trustee; Coopwood v. Wallace, 12 Ala. 797, holding attorney entitled to sue estate for fee, without first exhausting remedy against administrators; Cannon v. Copeland, 43 Ala. 261, holding bill lies directly against estate for accounting where advances made to former administratrix for estate's benefit; Fillyau v. Laverty, 3 Fla. 102, holding creditor of firm, dissolved by a partner's death, could proceed in equity directly against latter's estate; Doggett v. Dill, 108 Ill. 566, 48 Am. Rep. 568, reviewing cases, holding partnership creditor could proceed against deceased partner's estate in first instance; Postlewait v. Howes, 3 Iowa, 381, holding partnership creditor may proceed directly against surviving partner without joining deceased partner's administrator; Comins v. Culver, 35 N. J. Eq. 96, holding surety who had paid judgment against surviving partner, could proceed against deceased partner's estate. See also In re Lloyd, 15 Fed. Cas. 711, 15 N. B. R. 257, holding partnership creditors' claims provable against bankrupt partners' estate. And good discussion in note to 43 Am. St. Rep. 367.

Creditors' bill - Parties.- Where there were two mercantile firms and some members common to both, creditors' bill is not multifarious when filed against the personal representatives of two of the deceased partners of both firms, and also against the surviving partner of one, p. 133.

Cited and followed in Powell v. Spaulding, 3 G. Greene, 462, holding bill not multifarious for joining complainants interested in same claim of right; Brown v. Buckner, 86 Va. 616, 10 S. E. 883, holding bill not multifarious if common interest exists in plaintiffs, and common liability in defendants, though interests not co-extensive.

5 How. 134-141, 12 L. 85, ROWAN v. RUNNELS.

Slaves.- Constitution of Mississippi did not, of itself, without legislative enactment, prohibit the introduction of slaves as merchandise and for sale, pp. 138, 139.

5 How. 134-141

Notes on U. S. Reports

552

Cited and rule applied in Truly v. Wanzer, 5 How. 142, 12 L. 88, and Sims v. Hundley, 6 How. 6, 12 L. 321, holding note given for purchase of imported slaves valid, notwithstanding constitutional prohibition; State v. Buckley, 54 Ala. 616, reviewing cases, distinguishing between certain self-executing and non-self-executing constitutional provisions. Cited also in Harris v. Wall, 7 How. 705, 12 L. 880, reversing judgment rendered upon immaterial issues, where case depended upon construction of the constitutional provision; Illinois Cent. R. Co. v. Ihlenberg, 75 Fed. 877, 43 U. S. App. 726, 34 L. R. A. 396, upon self-executing constitutional provisions; Cummings v. Spaunhorst, 5 Mo. App. 31, holding certain constitutional provisions not self-operating; arguendo, in State v. Newark, 39 N. J. L. 388, holding certain constitutional amendments self-executing and discussing effect on existing legislation; Wells County Road Matter, 7 Ohio St. 21, suggesting probability of necessity for legislation supplementary to Constitution. Valuable note in 98 Am. Dec. 682.

Supreme Court will respect State court decisions, and from the time they are made will regard them as conclusive in all cases upon the construction of their own Constitution and laws, p. 139.

Cited and applied in Luther v. Borden, 7 How. 58, 12 L. 606, holding Federal courts would follow State decisions in determining which was the legitimate State government.

Stare decisis.- Where Federal Supreme Court, in absence of State decisions, and in accordance with practical construction by State legislature, has held State constitutional provision prohibiting slave importations for sale, not self-executing, it will not adopt a different construction to avoid contracts with citizens of another State, because State courts subsequent to the transaction have held it to be self-executing, p. 139.

Cited and principle followed in Ohio, etc., Ins., etc., Co. v. Debolt, 16 How. 432, 14 L. 1003, following construction of State Constitution by all departments of State government at time of transaction; Pease v. Peck, 18 How. 599, 15 L. 520, and Meyer v. Muscatine, 1 Wall. 393, 17 L. 567, following long-established construction by State courts rather than latter's more recent decisions; Douglas v. Pike Co., 101 U. S. 686, 25 L. 971, and Loeb v. Trustees, etc., 91 Fed. 43, reviewing cases, determining rights in municipal bonds according to statutes as construed when bonds put on the market; Burgess v. Seligman, 107 U. S. 34, 27 L. 365, 2 S. Ct. 22, collecting cases, and King v. Dundee Mortgage, etc., Co., 11 Sawy. 666, refusing to reverse decision construing State law not theretofore construed because State court afterwards adopted different interpretation; Talcott v. Pine Grove, 1 Flipp. 126, 128, 176, 181, F. C. 13,735, sustaining contracts made in reliance upon long practical construction of

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