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    John A. Barry, Plaintiff in error, v. Mary Mercein and Eliza Ann Barry.
    This. court has no appellate power, in a case where the Circuit Court refused to grant a writ' of habeas corpus, prayed for by a father to take his infant child out of the' custody of its mother.'
    The judgments of a Circuit Court can be reviewed only where the matter in idispute exceeds the sum or value of two thousand dollars. It must have a known and certain value which can be proved and calculated in the ordinary mode of busi- ' ness transactions..
    But a controversy between a. father and mother, each claiming the right to the-custody, carerand society of their child, relates to a matter in dispute whieh'i» incapable ofbeiñgreduced to any pecuniary standard of value.
    The writ of error must'bedismisseifor want of jurisdiction.
    This case was brought up by writ of error from the Circuit Court of the United States ibr the Southern District of New York.
    The facts are sufficiently^ set forth in the opinion of the court, to which the reader is referred. •
    A motion was made by the counsel for the defendants, in error, viz. Mr. William, W. Campbell and Mr. Rockwell, to dismiss the case foi want of jurisdiction, which motion was opposed by Mr. Barry, in proper person.

      Mr: Campbell, for the motion.
    In the summer of 1844, John A. Barry, the plaintiff in error, pre- ■ sented his petition to the Circuit Court for the Southern District of New York-, praying that a writ of habeas corpvs ad subjiciendum, might issue, directing Eliza Ann Barry, the wife of petitioner, and Mary Mercein, her mother, to bring up the person of an infant child, the daughter of :the petitioner and the said Eliza Ann, his wife, and Which infant daughter was in the custody of the said Mary Mercein and Eliza Arm” Barry.' Previous to this period, and for more than five years,, a controversy had been going forward in the courts of New York, prosecuted by the petitioner, for the purpose of obtaining the custody of this. same child. Three or four times writs of habeas, corpus had been granted by the local courts of that State, aind indeed in one form or another all the courts, both of common law and of equity, had passed upon this vexed and protracted litigation. Twice h.ad the court of last resort, the Court of Errors, after solemn' and able arguments, passed upon the case, and refused to grant the application of the petitioner. The relatives of Mrs. Barry were weariéd in mind, and -exhausted almost of resources, by the long, persevering, and vexatious proceedings of the plaintiff in error in this cause.
    Prior, however, to the application to the Circuit Court for the Southern District of. New York, the plaintiff in error applied to this coun for a writ of habeas corpus, which was refused. I shall have occasion to refer to these decisions' hereafter.
    In his application to the Circuit Court, in order to bring himself within the provisions of the constitution and laws of the United States, the petitioner sets forth that he is a natural bom subject of the queen of Great Britan, and claims that the- said infant child, though bom in the State of New York, of a - mother who .is a native of that State, is also a British subject and allegient to the British crown.
    . After a patient hearing and a careful investigation of the law and thq facts,. Judge Betts refused to allow the writ, and he gave his re-sons in an opinion of great length, in which he enters upon a review of the whole law upon die subject. .1 feel that there is nothing to be added t0 that opinion.. It is able, lucid, and it seems to me. entirely conclusive. While it is in the highest degree creditable to him as a judge of the courts of the United Statesj it is ¿t . the same time a-masterly vindication of the decisions and the learning of the courts of New York.
    He closes that opinion by saying, —
    £‘ I deny the writ of habetts corpus prayed-for, because:—
    {C 1. If granted, and a return was made admitting the facts stated in the petition, I should discharge the infant on the ground that this court cannot exercise the ■ common law functions of parens patrié - and has no commondaw jurisdiction- over the matter.
    “ 2. Because the court .has not .judicial cognizance of the matter by virtue of any statute of the United States.

      “3. If such jurisfliction.is to be implied, that then the decision of the Court of Errors of New York supplies the rule of law or furnishes the highest evidénce of the common law rule which is to be the rule of decision in-the case. .
    “ 4. Because by that rule the father is not entitled on the case made by this petition to take this child out of the custody of its •mother.”
    It is this decision which the plaintiff in error seeks to reverse, and on this motion'to grant this writ.of error. it is - respectfully submitted, —
    1. That this is not such a final judgment as is contemplated by the statute of 1789, which a writ of error may be brought to re- , verse.
    2. That there is no pecuniary value to the subject in controversy^ nor 'any way in which pecuniary value can be-ascertained so as to allow a court of error to bring up the mattér to this .court from the Circuit Court..
    3. That the application was to the discretion of the Circuit Court, and this court will never interfere to control the discretion of the inferior court. ' The parties who are proceeded against are the wife and mother of plaintiff in error. .The plaintiff in error cannot proceed against his wife in this court, her domicil in the eye of the law • being the same as her husband’s.
    5. The Circuit -Court possess no other or different powers in relation to habeascarpus under the act, than are- possessed by this court, and this court have already passed upon this case by refusing to grant the wit when application was made upon" the same state of facts directly to this court. ■ This court -have no jurisdidtion over the subject-matter, and the writ of error should be quashed for want of jurisdiction.
    1. This is. not suóh a final judgment as is contemplated by the statute.
    The language of the statute, § 22, is, that final decrees and judgments in civil actions in a District Court,, where the • matter in dispute exceeds the sum or value of .fifty dollars exclusive of costs, may be reexamined and rendered or. affirmed in a Circuit Court holden in the same district upon a writ of error whereto shall be annexed aiid returned therewith at the day and place thereby mentioned an authenticated transcript of the record, assignment of errors, prayer for reversal, citation, &c.
    ct And upon a like process ” (that is, writ of error, record, &c.), may final judgments, and decrees in civil actions, and suits in equity in á .Circuit Court, brought there by original process or removed théré from State courts, or by appeal from District Courts, &c., and “ when the matter in dispute exceeds the. sum or value of two thousand'dollars,” &e., bfe reexamined and reversed or-affirmed by the Supreme Court.

      Now it is respectfully hut confidently^submitted to this court that the decision of the Circuit Court in this matter, upon an ex parte application and where no summons or other process was served upon the defendants in error, or either of them, is not a final judgment in a civil action, or a final decree in a suit in equity.
    It is stated that the petition was filed; but it was not served, nor was any original process issued or served ; there were, therefore, no parties before the court, there was no action in personam or in rem, there cannot well be an action at law or a suit in equity where there axe no parties before the. court.
    The act of March 3d, 1803, uses the expression, t{ cases in equity,” but they are confined to cases of admiralty and maritime jurisdiction, and to .be carried up to the Supreme Court by appeal.
    Judge Betts says, in this case, — “A procedure by habeas corpus can in no legal sense be regarded as a suit or controversy between private parties.” Holmes v. Jennison et al., 14 Peters, 540, refused to discharge.under habeas corpus. If a suit not a suit between private' parties.
    2. There is no pecuniary value to the subject in controversy, nor any way in which pécuniary value can be ascertained. Now by the twenty-second section of the judiciary act, to which I have referred, a writ of error to this court does not lie unless the matter in controversy, exclusive of costs, exceeds the sum. of two thousand dollars. Now, though in some cases, the-court have allowed testimony of value to- be. given by affidavits or viva voce, "when the demand is- not for money, yet this appears to have been done only' in cases where real value could be readily fixed5 and if has allowed, the value of an office or its emoluments to bejthus established.
    . I do not see how the value is to be ascertained in this case; and, indeed, if does not seem to be one- of the actions at law or suits in equity contemplated by the1 act to reverse the judgment or • decree in Which writs' of érror may be brought.
    In the case of Columbian Insurance Co. v. Wheelwright and others, 7 Wheaton, 534, a writ of error, was held to lie for tin's court to the Circuit Court for the District of Columbia, upon a judg-1 ment overruling a peremptory mandamus. But it was quashed on accdunt of the matter in controversy not being pf the value of One thousand dollars, though in that case the value of the. office was allowed to be appraised. But the language of the act of February 27 j 18QI, is different from that of the act of 1789.
    In the act of 1801, writs of error maybe1 brought to reverse Or affirm final judgments, orders, or decrees in said Circuit Court. But, as in the act of 1789, .final judgments in-civil actions and suits in equity. Act of 27 February, 1801, § 8 (2,Stat. at Large,106), contains the provision in relation to writs of error to Circuit. Court for the District of Columbia.

      3. The application was to the discretion of the Circuit Court, and this court will not interfere to control the discretion of an in-' ferior court. .
    It.has been repeatedly decided in this court that the exercise of the discretion of the court below in refusing or granting amendments of pleadings on motions for new trials, and refusing to rein-» state cases after nonsuit, affords no ground for writ of error. See United States v. Buford, 3 Peters,' 31. ;■ United States v.- Evans, 5 Cranch, 280 ; Maryland Insurance Co* v. Hodgson, 6 Cranch, 206.
    See also the case of Boyle v.-Zacharie, 6 Peters, 657, where the object of the writ of' error was. to reverse the decision of the Circuit Court in refusing to quash a writ óf venditioni exponas, and where it was held not-to lie. In that case, Mr. Justice Story, said, — “A very strong case illustrating the general doctrine is, that error will not . lié’to. the refusal of a court to grant a peremptory mandamus upon a return made to a. prior mandamus which the court allowed as sufficient.”
    . The case before the court is. one of a similar character, and resting equally in the sound discretion of the Circuit Court.
    . 4. The plaintiff in error cannot proceed in this Court against his wife ; her domicil.being in law the samé as his. If the proceeding in the Circuit Court can be annulled as an action at law or a suit in equity, then clearly the plaintiff in error could not carry on such action or suit in any of the courts of the United States against his wife, as one of the defendants.
    * 5. The Circuit Court possesses no other or different power than this court in relation to a writ of habeas corpus, and this court have already passed upon this case and refused the writ for want of jurisdiction. . The writ of error should therefore be quashed for want of jurisdiction.
    The language of the fourteenth section is,l C that all the before mentioned courts of the United States shall have power to issue writs, of scire facias, habeas corpus,” &c. .The power of this court to issue writs of habeas corpus has never been doubted by the court and has. repeatedly been exercised ; but its power to issue a writ.in the present case has been doubted and the writ refused. The court, after .hearing the plaintiff in error on original application to this court on thé same state of facts as were presented to the' Circuit. Court, refused to grant the writ. It is respectfully submitted that the application to a' Circuit Court has in no respect changed the aspect of the matter, and if this court had no jurisdiction over the subject- ■ matter when the original petition was presented, neither can it have jurisdiction now, when the subject comes up for its decisionfrom the judgment of an inferior court.
    In the, case of Ex parte Barry, 2 Howard, 65', Mr. Justipe Story says :•— “ It is plain, therefore, that this court has no original jurisdiction to entertain the present petition, and .we cannot issue any writ of habeas corpus,- except when it is necessary for the exercise of the jurisdiction, original or appellate, given to it by The constitution and laws of the United States.”
    Is it not equally plain that the Circuit Court can-issue no writ of habeas corpus, except when it is necessary for the exercise . of its jurisdiction, original or appellate, given to it by .the constitution and laws of .the United States ? Was this habeas corpus necessary to the exercise of thd jurisdiction of the Circuit Court ? True, the éleventh section of the judicial act gives the Circuit Court original cognizance with the courts of the several States, of all suits of a éivil nature at common law or in equity.
    But “ a procedure by habeas corpus (says Judge Betts) can in no legal'sense be'regarded as a suit or controversy between private parties; ", It is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of sovereign, to ascertain whether the infant in this case ¡s'wrongfully detained, and in a way conducing to its prejudice.”
    •- ...It has been well and often remarked, that the power of the courts of the United. States is . given to them by express and written grant ; and where they exercise the power -of issuing'writs of habeas corpus, they find their authority in “ thus .it is -written.” They derive no jurisdiction from the common law. The grand inquisition of the Sovereignty of the United States is not to be invoked unless-jn cases where the written law gives thcpower to invoke it. , Certainly, this' is not one of the cases. -It is a case for the grand inquisition of the State of New York. That grand inquest has repeatedly decided this matter.
    “ What question (says Judge Bétts in this same opinion)' can be regarded as in principle more local or intro-territorial than those which pertain to .the domestic institutions of a State, — the social and domestic relations of its citizens ? Or, what could probably be less "within the meaning of Congress than that, in regard to these interesting matters, the courts of the United States should be empowered to introduce rules or principles, because found in the ancient common law, which should trample down and abrogate the policy and cherished usages of a State, authenticated and sanctified as a part of her laws by the judgment of her highest tribunals.”
    I submit this question of jurisdiction, with entire confidence^ to . this court; ■ I know its practice has been in conformity with the language of its late eminent chief justice. ‘
    “ We must tread the direct and narrow path proscribed for us. As this court has never grasped at ungranted jurisdiction, so it never will, we trust, shrink from that which is conferred upon it.”
    I submit, therefore,-with great deference, the motion that this writ of error should be quashed, as-irregular, and for want of jurisdiction.

      Mr. Barry,
    in opposition to the motion, made the following points, which he maintained at great'léngth.
    1. The record in the above cause presents the case of á “ final judgment ” by the Circuit Court for the Southern District of New York m a “ suit,” within the.meaning of the twenty-second section, of the judiciary act of 1789 ;. and the plaintiff in' error is .therefore entitled to have, such judgment reexamined in this court by writ of error, provided the court below had jurisdiction of the case, authority to issue the writ of habeas corpus "ad subjiciendum, and the record presents a prima, facie• case' for the award óf such writ. United States Laws, Statutes at Large, 81 ; Holmes v. Jennison, 14 Peters,'540 ; Weston et al. v. City Council of Charleston, 2 Peters, 449 ; .Kendall v. United States, 12 Peters, 614 ; Sto. Com.. Abr* 608 ; Columbian Ins. Go. v. Wheelwright and others, .7 Wheat. 534 ; Co. Litt. 288,.b .
    2. The court below had jurisdiction of this' case, and authority to-issue the writ of habeas corpus' under, the Constitution, at the common law, by implicatipn,-and by statute; and consequently committed error in deciding that it had not such jurisdiction and authority. The petition on the record presents aprima facie case for-the-award of such writ, and the court below committed error in denying it .to the plaintiff in error, to whom it belonged as a writ of right by the “ law of the .lánd his title resting, in debito justi-tice,” on probable cause shown, by affidavit; 36 Edw. 3, cap; 9,; 42 Edw. 3; 8 Henry'4 ; 8.Henry 6 ; 28 Edw. 1 ; 3-Car. 1 ; 16 Car. 1, cap. 10 ; 31 Car. 2 ; Bac. Abr.'Title Hab. Corp.; Greeiihill’s casé, 4 Adolph. & Ellis, Eng. Com. Law Rep. 624 ;' United States v. Green, 3 Mason, 482-; Rex. v. Winton, 5 D. & E. 89 ; Rex v. Isley, 5 Adolph. & Ellis, 441 ; Constitution United States ; Yates’s case, 6 -Johns. 422,423 ; Bollman-& Swartwout, 4 Cranch, 75 j Ex parte Randolph, 2 Brock. C. C. R. 447 ; 3 Bl. Com. 132; 3 Bac.* Abr. 421 ; Judiciary Act, 1789,- § 14 ; United States Stat., 2 Mar., 1831, § 38 ; Kearney’s case, 7 Wheat. 38 ; Crosby’s 'case, 3 Wilson, 172; 1 Kent’s Com. 301 ; Wood’s case, 3 Wilson ; 3 Bac. Abr. (3) ; In re Pearson, 4 Moore, 366 ;. Mag. Char., cap. 29; .United States v. Bainbridge, 1 Mason,-71 ; Í Kent’s Com. 220; United States Supreme Court, Ex parte Barry, 2 How. 65 ; 19 Wendell, 16, and cases cited ; Vernon v. Vernon, MS. casé, New York Chancery, 11th June, 1839 ; Ahrenfeldt’s case, Ch.-New York, July, 1840; Commonwealths. Briggs,-16 Pick. .204 ; In re Mitchell, Charlton’s Rep. 489; State of South Carolina s. Nelson, MS. case, 1840 ; Práther’s case, 4 Dess. 33 ; 25 Wendell, 72, 73 ;. Gov. ■ Seward’s Mess, to Senate, Albany, 20th .March, 1840 ; 5 East, 221 ; 12 Vesey, 492; 2 RuáSell, 1 ; Review of D’Haute-ville.’s case, 30 2 and 3 Victoria1, cap». 54 ; -11 Vesey, 531'; People a.'Mercein, 3 Sill, 399 ; Ex parte Burford, 3 Cranch, 449.

      3. The court below, if it 'had jurisdiction by implication, committed error in assuming that the court for the correction of- errors, by its decisions oh the case of the plaintiff pn ’ two former writs of habeas corpus, in 1840 and 1842, had either “ supplied the rule of law,” or given u evidence of the common law rule ” which was to be the rule of decision in'the case on this record, two years after, — a case entirely de novo, — in 1844. And the court below committed further error in deciding, that by such assumed rule of law or evi-* dence of the common law rule, the plaintiff in this cause was not' entitled, on thecase made by him, to the custody of' his child, —. the same being a prejudication on the merits, — no argument being had before the court in respect of either -such assumed rule, or the evidence thereof,'or on the merits. -No such rule existed in point of fact, and consequently no' evidence thereof could exist; decision ■Supreme Court New York, 1842-, 3 Hill, 399; MS. Opinion, Chan. New York, April, 1844.
    4. The plaintiff in error being of .legeance to the crown of England, his child, though born in the United States during its father’s temporary residence therein, — twenty-two. months- and'-'twenty days, — notwithstanding its mother be an American citizen, is Bet a citizen of the United States. It is incapacitated by -its infancy from making any present election, follows the legeance óf its father; partus sequitur patron, and is a British subject. The father being domiciled and resident within the dominions of her Britannic Majesty, such is also the proper and rightful domicil of his wife and child, and hé has a legal right to remove them, thither. The child being detained from the father, its natural guardian and protector, without authority of law, the writ of, habeas corpus dd subjiciendum is his appropriate legal remedy for1 its restoration to him froni its present illegal detention' and restraint; Constitution United States, art. 3, ' § 2 ;-Judiciary Act, .1789, § 11 ; Inglis v. Trustees Sad.. Snug-Harb., 3 Peters, 99 ; 7 Anne, cap. 5; 4 Geo. 3, cap. 21 ; Warrgnder v. Warrender, 2 Ciar. & Fin.,, Ap. Ca. 523 ; Story’s Confl; Laws, 30, 36, 43,'74, 160 ; Shelford on Marriage,-Ferg. Rep. 397, 398.
    5. If the laws of the proper domicil of the plaintiff (and by necessary consequence that of his family), applicable to the case on the record, be not repugnant to the laws or policy of this country, and this be proved to the court, the case-is one proper for, the exercise of the comity of the American nation, — not of the court, but of the nation ; arid the court below will extend that comity to the plaintiff, not only by awarding him the writ of habeas corpus ad, subjiciendum, -the appropriate legal remedy sought, but also by de-< ciding .the case on its merits, at the hearing, agreeably to the law of his domicil; In re Wilkes, 1 Ken. 279 ; Dartmouth College v. Woodward, Con. Rep. United States, -577 ; Wárrénder v. War-render, 2 Ciar. & Fin. Par. Rep. 529 ; 9 Bligh., N.' Si 110 ; Bill for Protection of Minors, Senate of New York,-1840 ; Gov. Seward’s Message to Senate, 20th March, 1840.

      Mr. Rockwell,

    for the motion to dismiss, in reply and conclusion.
    1. The writ of habeas corphs is not issued as a matter of course, upon the application, but is addressed to the discretion of the court, and may be refused if upon the application itself it appears that, if. admitted to be true, the applicant is not entitled to relief. 2 Bl. Com. 132, 133, n. (16) ; 3 Bulstr. 27 ; 2 Roll. Rep.. 138.
    King v. Hobhouse, % Chitty, K. B. Rep. 207, marg. note.— a The writ of habeas corpus, whether at common law or - under the 3 Car. .2, does not issue as a matter of course , in the first instance, upon application, but must be grounded on affidavit, upon which, the court are to exercise their discretion whether'the suit shall issue or not.”
    ■See also .The Spanish Sailors, 2 Sir W. Bláckstone, 1324.
    . King «. Barnard Schiever, 2 Burr. 765. — Habeas corpus fora prisoner of war taken oh board an enemy’s prize-ship denied in the' first instance.
    ' Ex-parte Kearney, 7 Wheat. 38. —In this case the application was ex parte, and in the first instance denied by the court, , and in subsequent cases. •
    Commonwealth v. Robinson, 1 Serg. & Rawle, 353. — The court declared it a matter of discretion whether to grant or refuse a writ of habeas corpus to discharge an apprentice from military service on application of the master.
    Ex parte Tobias Watkins, 3 Peters, 193. — Petition denied, in the first instance.
    ' 2. A writ of error does not lie to review the decision of a court, except upon final judgment, and the order of a court, denying in the first instance ' an ex parte application, for a writ of habeas corpus, cannot be reviewed by writ of error.
    The People e. President of Brooklyn, 13 Wend. 130, Court of Errors Mandamus, marg. note..— “ A writ of error does not ie upon the refusal of the Supreme. Court to grant a peremptory mandamus when application is made by motion. It only lies for the relator when judgment is pronounced after issue joined upon plea or demurrer interposed upon,the coming in of the return of the .alternative mandamus.”
    Boyle v. Zacharie et al., 5 Peters, 648, marg. note. — “A-writ of error will not lie to a Circuit Court of the United-. States, to revise its decision in refusing to grant a writ oí venditioni exponas, issued on a judgment obtained in that-court.”
    Per Story, J. (p. 657.) — “ A very strong ease, illustrating the general doctrine, is, that error will not lie to the refusal of.a court to grant a peremptory mandamus upon a return made to a prior mandamus which the court allowed as sufficient. ” 3 Bro. Park Cas: 505.

      The Dean and Chapter of- Dubliner. King, 1 Bro. Párl. Cas, 73.— Application to; the King’s Bench for mandamus to admit Robert Dugdale to his office as clerk, upon which there Vas an award of a peremptory mandamus ; held writ of error not to lie, there being no plea and judgment.
    Weston v. City Council of Charleston, 2 ;Peters, 449»
    Holmes v. Jennison,-14 Peters, 540. — ££ I do not intend to ex-1 amine the question whether proceeding upon a habeas corpus is a 1 suit,’ within the meaning of thé twenty-fifth section ; or whether writ of error will lie tq? review proceedings upon a habeas corpus, although the case on these points is' not free from doubts,” &c. Per Thompson, J., 550;.Judge Baldwin’s opinion,- 622, 62'5.
    Columbian Insurance. Co. v. Wheelwright, 7 Wheat. 534. Mandamus valuation of office.
    II. The Circuit Court had no jurisdiction of the subject ffiátter.
    1. That court derives all its jurisdiction from the constitution of the United States and the acts of Congress, and is Strictly confined to the acts of Congress conferring jurisdiction, and defining, the powers of the court.
    y 1 Kent’s Com. 294. — “ With judicial power, it may be generally observed, as the Supreme Court declared in tb© case of Turner v* Bank of North America, 4 Dali. 8, that the disposal of the judicial power, except in.- a few specified.cases, belongs- to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress^ who are not bound to enlarge the jurisdiction* of the federal courts to every subject which the constitution might warrant;”
    McIntyre v. Wood, 7 Cranch, 504, to the same effect; United States, v. More, 3 Cranch, 159; 6 Cranch, 305; 3 Dafl. 321; 1 Cranch, 212.

      Mr. Barry.. The Circuit Court must enlarge their jurisdiction* ' as the Circuit Court has the residuum of authority inherent, and incidental powers at common law as a high court of.record.
    2. The only power conferred on’ the Circuit Court is in the judicial áct of 1789 .
    ■ § 14. ££ That all the beforementioned courts of. the United States shall have power to issue writs of scire facias, habeas corpus, and ¿11 Other writs not specially-provided for by statute, which - may be necessary for the exercise of their .respective jurisdictions, • and agreeable tb the principles‘and usages of law.
    £ £ And that either. of them, as well as judges of the District Courts, shall, have power to grant writs of habeas corpus., for the purpose of inquiring into the. cause of commitment.
    Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless when they are in custody under or by or-dér of the authority of the United States, or are committed for trial-before some. court of the same, or arfe necessary to be brought into court to testify.”

      1. This statute peo vides thattc all the beforementioned courts,” &c., referring to the Supreme, Circuit, and District Courts, and conferring like powers on all. The original jurisdiction of all these courts, and the appellate jurisdiction of the Supreme and Circuit Courts had been all .defined. The court derives all its power from this, statute, arid the limitations of it are to be precisely-followed, expressio unius exclusio est alterius.

    Ex parte Ballard ; Ex" parte Swartwout, 4 Cranch, 75, per Marshall, Ch. J., 93. : — “ Courts which originate in the common law .possess a jurisdiction which must be regulated by the common law, but the courts which are created by written law, ,and whose jurisdiction is defined by written law, cannot transcend their jurisdiction'.”
    “ The power to award the writ by any of the courts of the United States must be given by written law.”
    Page 95. —“If the power be denied to this, court, it is denied to every other court of the United States.”
    Ex parte Tobias Watkins, 3 Peters, 193j by Marshall, Ch. J., p. 201. — “ The judicial acCauthorizes this court, and all the courts of the United States, and the judges thereof, to issue the writ for the purpose of inquiring into the cause of commitment.”
    Ex parte Barry, 2 Howard, 65, marg. note.-r — “The original jurisdiction of this court does not extend to the case of a petition by a private individual for. a habeas corpus to bring up the body of his infant .daughter, alleged to be unlawfully obtained from him.”
    Why not ? If not conferred on the Supreme Court it is not conferred on the Circuit-or District Courts by this statute'.
    . 2. The object of this section was not to confer upon any of these courts a general authority to issue this writ.. It was designed as auxiliary, — “ Which may be necessary for the exercise of their respective jurisdictions.”
    The scire facias, is a writ of execution, in all cases founded upon a record, and is a necessary incidental power to the exercise of the jurisdiction ' of any court. So of habeas corpus, without which power the court would not be able even to protect suitors or witnesses attending court from a writ, &c., &c.
    3. That part of the section conferring the power upon the judges in vacation to issue .the writ “ for the purpose of inquiring into the cause of commitment,” as does the proviso, indicates that reference was only had to confinement under a United States process, or “ under cojor of authority of the United States.”
    31'Car. 1, ch. 2, provides,' — “.That on complaint and request in writing by or on behalf of any' persons committed and charged with any crime, (unless,” &c.)„ “ the chancellor, &c., shall award a writ of habeas corpus,” &c. ‘
    The powers of the section had doubtless reference to the English statute, and to confer a limited and not general authority.

      The decisions of the United States courts in relation to writs of. 'mandamus are enfirely analogous. They are both prerogative writs, and the defining and limiting the power to issue writs of habeas corpus by statute restricts them more than the others. •
    1 Kent’s Gom. 294. — “ It has been decided that Congress has not delegated the exercise of judicial power to the Circuit Court but in certain specified case.s. The eleventh section of the judicial act of 1789, giving jurisdiction to the Circuit Court, has not covered the whole ground of the constitution, and these courts .cannot, for instance, issue a mandamus but in those cases in which it may be necessary to the exercise of their jurisdiction.”
    Mclntire v. Wood, 7. Cranch, 504; McClurg v. Silliman, 6 Wheaton, 598 ; Kendall v. United States, 12 Pet. 524 — 618.
    If this is' considered one of “ the other writs not specified by statute ” (§ 14, judiciary act), the term is very properly used,— “necessary for the' exercise of their respective jurisdictions,” giv-' ing a judicial construction to the meaning. <?f the latter term.' .
    Ex parte Colura, 1 Wash. C. C. R. 232, marg. note. — “ The courts of the United States and the justices thereof are only authorized to issue writs of habeas corpus to prisoners in jail under color of the authority of the.United States, pr committed by courts of the United States, or required to testify in a case depending iñ a court of the United States.”,
    “ The jurisdiction of the courts of the United States is limited ; and the inferior courts can exercise it only in cases in which it is' conferred by act of Congress.”
    United States a. French, 1 Galiison, 1, marg. .note. — “ The Circuit Court has no authority to issue a habeas corpus for the purpose of surrendering a principal in discharge of his bail, when the principal is confined in jail merely under process of a State court.”

      Per curiam, “We have no authority in this case to issue a habeas corpus. The authority given by the judicial act of 1789, chap. 20, § 14, is confined to cases where the party is in custody under color of process under authority of the United States) or is committed for trial before some court of the United States, or is necessary to be brought into court to testify.”
    N. B. The party in this case was confined under a penal law. of Congress (2 Statutes at Large, 506), in which State courts have, by repeated decisions, no jurisdiction.
    In all the following cases habeas, corpus was issued, where the party was confined under color of process of the United States, and although any other exercise of the power "was. not in express terms denied, yet in a number of them the court proceed upon the assumption of its being so limited, and in no instance form a contrary opinion. Ex parte Wilson, 6 Cranch, 52 ; Ex parte Kear-ney, 7 Wheaton, 38 ; Ex parte Randolph, 2 Brock. 476, 477 ; 3 Dali. 17 ; 4 Dali. 412 ; 3 Cranch, 447 ; 4 Cranch, 75 ; 3 Peters, 201 ; 9 Peters, 704 ; 1 Mason, 71 ; 2 Brock. 6, 447 ; 1 Wash. 277. The case in 3 Mason, 482, of United States.®. Green, the only case where.granted and point not then raised.
    3. Although in numerous decisions infants are doubtless under the control of courts of law as to their custody, and courts having jurisdiction may issue writs of habeas corpus, yet the courts, representing the sovereign power of the State, adopt the course which they may deem for the benefit of the child at their discretion. . It is an extension of the original purposes of the writ, and not contemplated by the powers of the judicial act, nor consistent vrith the limited authority of the general government.
    De Manneville v. De Manneville, 10 Yes. 52 — -66, Ld. Chan, in conclusion, p. 66. —, “ I must either give the' child to the father, when I know not what he proposes to do if it remain with him ; or- to the mother, to which upon some principles there is great objection ; or I must take some middle course ; and I shall take care that the intercourse of both father and mother with the child, so far as is consistent with its happiness, shall be unrestrained.” Ordered that the child should not be removed out of jurisdiction.
    King ®. Grenhill, 4 Adol. & Ellis, 624. — “ Nor will this rule be departed from on die ground that the father has formed an adulterous connection, which still continues, if it appear that he has never brought the adulteress to his house, or into contact with his children, and does not intend to do so.” . Marg. note.
    The general government' is one ..of defined and limited powers. It is the design of the constitution that the judicial should be coextensive with the legislative authority, but not to exceed it. These powers are comparatively free and well defined, and are exceptions to the authority residing in the State, and subject to their judicial authority. The great mass of authority remains in the States, and is governed by and dependent upon State authority.
    All questions .arising out of the domestic relations are peculiarly and appropriately within the province of the State governments; and the court will be slow in countenancing any principle, or giving any construction of the constitution arid laws that shall decree to itself this branch of local authority.
    In relation to husband and wife, parent and child, the/various and diversified and vexed questions that arise concerning the custody of children, the court will not be anxious by any doubtful construction to enlarge their jurisdiction. The court exercising that jurisdiction cannot dispose of the various questions involved, as in ordinary questions of pecuniary value, by a judgment and execution. They must enter the nursery and inquire as to the character and habits of the respective parents, — the wishes of the child, — and make such orders from time to time as may be required by the ever changing circumstances of all the parties concerned... What portion of these questions would this court have to take charge of, mid what new set of rules or officers for these wards of the court ?
    ■’ If the Writ of error is sustained, and. the case remanded, and the Circuit Court ordered to issue the writ, ■ it will be the duty of the Circuit Court to make such orders as will be for the benefit of the child, and vary them from time to time. Can these be reviewed by this court ?
    This proceeding is reaily a question as to the custody of an infant child, and of guardianship on the part of the courts of the United States ; and although called habeas corpus ad subjiciendum, it is so by fiction of law. It- is not a question of the personal liberty of the child, but of its custody and nurture.. It is not in substance at all that great writ of English or American liberty, but a great extension, if not entire pervérsion, of its object. •

      Master and Servant. — Are the relative rights and duties of the master and servant a matter of local or national jurisdiction ?
    Suppose, a servant .from Kentucky'flies to Ohio. His master •pursues him and takes'him. He is ordered to bring his writ of habeas corpus before the Circuit Court. The court denies the application. He brings his writ of error to this court. Has the- court jurisdiction ?. Will it order the Circuit Court to issue the writ ? If not, why not ? "
    If in- obedience to the order the Circuit Court issues the writ, and. refuses to discharge the person, a writ of error lies to this court.

      Petition for Divorce. — It is not embraced in the tenth section of the judicial act of 1789.
    1. The power of the court to issue the writ at .all is given by statute, in the fourteenth section, and must be limited to the purposes, and by the restrictions in the act.
    2. It is not a ££ suit of a civil nature at common law' or in equity, when the matter in dispute exceeds the sum or value of $500.”
    3. The phraseology in the twenty-fifth section is different, — ££ in any suit.” The ' object is different, to have the. power of the United States, in relation to treaties, constitution, laws, or authority of United States. ‘ The term is used in its most general sense, — civil, criminal,' equity, and all others. The object is to control the decisions of State courts on national questions. See Holmes' v. Jennison,. 14 Peters, 2. .
    1 III. The court has not jurisdiction-of the parties. One pf the defendants in error, Mrs. Barry, has. no domicil in the United States, but follows that of her husband.
    1. In order to give the court jurisdiction all the defendants must be liable to be sued before the United States court.. 1 Kent, Com. 324 ; Strawbridge®. Curtiss, 3 Cranch, 267; .
    • 2. £t A married' woman follows the .domicil- of her husband. This results from the general principle,, that- a person who is under the .power and authority of another possesses no right to choose a domicil.” Story on Conflict of Laws, 45, and authorities there cited.
    Greene v. Greene, 11 Pick. 410. — “ The domicil1 of the wife follows that of the husband.” 14 Pick. 181.
    So in settlement cases. — “A wife and minor child can have no settlement separate from the husband and father.”. Shirley®. Watertown ; Sears v. City of Boston, 1 Met. 242, absent a number of years, &c.' The petitioner himself declares (pi 4), “ That the said Eliza Ann, by her intermarriage with your petitioner, became a denizen of the British empire, arid entitled to inherit within the said realm as though she were a British subject. All the privileges, advantages, and immunities, being supervenient upon those of her domicilium originis as án American citizen.” If só, can anything but a divorce-or déath deprive her of these rights ? He speaks of her going “ to her own proper home at Liverpool and, p. 6, that his wife should “.return to her own proper home and duties.”
    3. The Supreme-Court have their appellate jurisdiction only 'in those cases.in which it is affirmatively given by the acts of Congress, and no such appellate jurisdiction is given in this case. Wiscart v. Dauchy, 3 Da'll. 321 ; Clarke v. Bazadone, 1 Cranch, ¿12; Court of United States Territory northwest of the Ohio, United States v. More,. 3 Cranch, 159, criminal case from Circuit Court of District of Columbia ; Ex parte Kearney, 7 Wheat. 38. No appeal from Circuit Court in criminal cases.
    IV. The Supreme Court has not jurisdiction, as the matter in dispufe does not amount to $ 2,000. Ex parte Bradstreet, 7 Pet. 634. “In cases where the demand is not for money, and the nature of the action does not require the value of . the thing demanded to be stated in the declaration, the pr'actice'of this court and of the courts of the United States has been to allow the value to be given in evidence.”
    In this cáse evidence was offered in the court below between Martha Bradstreet arid Apollos Cooper, a writ of right of the value of the land in dispute'; but that value not appearing on the record the court dismissed the proceedings. ,' Mandamus issued to reinstate the case. -
    Per Marshall, C. J., p. 64.7. — “ Every party has a right to the judgment of this court in a suit , brought ,by him in' one of the inferior courts of the United States, provided the matter in dispute exceeds the sum- or value of two thousand dollars.
    “ In cases where the demand is not for money, and' the nature of the action does not requite the value of the thing demanded to be stated in the declaration, the practice of this court and of the courts of the United States is to allow the value to be given in evidence. In pursuance of this practice, the demandant in the' Suits dismissed by order of the judge .of the District Court had a right tcfrgive the value of the property demanded in evidence at or before the trial of the cause,”- &c.
    United States v. More, 3 Cranch, 172, per Marshall, C. J., p. 172. — “ But as the jurisdiction of the court has been described, it has been regulated by Congress, and an affirmativé description of its powers must be understood as a regulation under the constitution, prohibiting the exercise of other powers than those described.” “ Thus the appellate jurisdiction of this court from the judgments of the Circuit Court is described affirmatively ; no restrictive words are used. Yet it has never been supposed that a decision of a Circuit Court could be reviewed, unless the matter in dispute should exceed the value of two thousand dollars. There are no words in the act restraining the Supreme Court from taking cognizance of causes under that sum ; their jurisdiction is only limited by the legislative declaration, that' they may reexamine the decisions of the Circuit Court when the matter in dispute exceeds the value of two thousand dollars.” The words “ matter in dispute ” seem appropriated to civil cases, when the subject in contest has a value beyond the sum mentioned in the act.
    Wilson v. Daniel, 3 Dali. 401. — “ The verdict or judgment does, not ascertain the value of the matter in. dispute,” &c.
    All the judges, in giving their opinions, proceed upon the ground that the case- must be one of pecuniary value.
    United States v. Brig Union, 4 Cranch, 216, marg. note. — “ It is incumbent on the plaintiff in error to show that this court has jurisdiction of the cause.” “ This court will permit viva voce ■ testimony to; be given of the value of the matter in dispute.”
    Gordon v. Ogden, 3 Peters, 33. The plaintiff claimed two thousand dollars ; had judgment for less ; writ of error by defendant below; court held no jurisdiction ; aliter where writ -in such case is by plaintiff below; action for violating a patent.
    Ritchie v. Mauro & Forrest. 2 Peters, 244, per Marshall, C.. J. of Supreme Court, p. 244.- — “In'the present case the .majority of the court are of opinion that the court has • no jurisdiction of the case ; the value in controversy not being sufficient to entitle .the party by law to claim an appeal. The valué is not the value of the minor’s estate, but the value of the office of guardian. The present is ,a controversy merely between persons claiming adversely as guardians, havirig no distinct interest of their own. The office of guardian is of no value^ except so far as it affords a compensation for labor and services, thereafter to be-earned.”
   Mr. Chief Justice TANEY

delivered the opinion of the court;

This casp is- brought up by writ of error to the Circuit Court for the Southern District of New York. .

It appears from the record that the plaintiff in error is a subject of. the queen of Great Britain, and resides in Liverpool, Nova Sco-tia. In April, 1835, he intermarried with Eliza Ann Barry, one of the defendants in error, who is the daughter of the late Thomas B. Mercein, of the city of New York ; - and upon some unfortunate disagreement between the. plaintiff in error and his wife, a separation took place in the year 1838, and they have ever since lived apart ; she residing in New York, and he at Liverpool. They have two children, a son and a daughter. ■ The son is with his father ; and the daughter, now about ten years of age, is with her mother,

The plaintiff in error filed his pétition in the Circuit Court of the United States for the Southern District of New York, at April term, 1844, stating that his wife had separated from him without any justifiable cause and refused to return, and unlawfully detained and kept frorn'him his daughter ; that she was harboured, countenanced, and encouraged in these unlawful proceedings by her mother, Mary Mercein, the other defendant in error ; and prayed that the writ of habeas corpus ad subjiciendum might issue/, commanding the said Mary Mercein and Eliza Ann Barry to have the body of his daughter, Mary Mercein Barry, by them imprisoned and detained, with' the time and cause of such imprisonment or detention, before the Circuit Court to do and receive what should then and there be considered of the said Mary Mercein Barry. The petition was supported by the usual affidavits and proofs. The case cáme on,to Be heard in the Circuit Court, and it was then ordered and adjudged by the court that the petition be disallowed, and the writ of habeas corpus denied. It is ujwn this judgment that the writ of érror is brought.''

A motion has been made to dismiss the writ of error for the want of jurisdiction in this court. In the argument upon this motion, the power,of the Circuit Court to award the writ of habeas corpus, in a case- like this, has also been very fully discussed at the bar. But this question is-not before us, unless we have power by writ of error to reexamine the judgment given by the Circuit Court, and to affirm or reverse it, as we-may find it to be correct or otherwise. And' the question therefore to be first decided is, whether a writ of error will lie upon the judgment of the Circuit Court in this case refusing to grant the writ of habeas corpus. It is an important question ; deeply interesting to :the parties concerned,; and we have given to it a full and mature consideration.

By the constitution of the United States, the Supreme Court possesses .no appellate power in any case, unless conferred upon it by' act of Congress.; nor can it, when conferred be exercised in any •other form, or by any other mode of proceeding than that which the law prescribes.

The act of- 1789, ch. 20, § 22,. provides that final judgments and decrees, in civil actions and suits in equity in a Circuit Court, when the matter in dispute exceeds the sum or value of two-thousand dollars^ exclusive of costs,'-may be reexamined and reversed or affirmed in the Supreme Court. . And it is by this law only that we aré authorized to reexamine any judgment in a Circuit Court by writ of error.

Before we speak more particularly of the construction of this section, it may be proper to notice the difference between the provisions contained in it, and those.of the twenty-fifth section, in the same act of Congress, which gives the appellate power over the judgments of the State courts. In the latter case, the right to.reexamine is not made to depend on the money valué of thé thing in controversy, but upon the character of the right in dispute, and the judgment which the State court has pronounced upon it; and it is altogether immaterial whether the right in controversy can or cannot be meásured by a money standard.

But in the twenty-second section, which is the -one now under consideration, the' provision is otherwise; and in order to give this court jurisdiction to reexamine the judgment of a Circuit Court of the United States, the judgment or decree must not only be a final one, in a civil action or suit in equity,-but the mattef in dispute must exceed the. sum or value of two-thousand dollars, exclusive of costs. And in order, therefore, io 'give us appellate power under this section, the matter in dispute must be moriéy, or some' right, the value of Which, in money, can be calculated and ascertained.

In the case before us, the controversy is between the father and mother of an infant daughter. They are living separate from each other, and each claiming the right .to-the custody, care, and society, of their child. This is the matter in dispute. And it is evidently utterly incapable of being reduced to any pecuniary standard of .value, as.it rises superior to money consideration;,.

The question for this court to decide, is, whether a controversy of this character can, by a fair and reasonable construction,'be. regarded as within the provisions of the twenty-second section of the act of 1789. Is it one of those cases in which we a.re. authorized to reexamine the decision of a Circuit Court of the United States, and affirm or reverse'its judgment ? We'think not. Thé. words of the .act of Congress are plain and unambiguous. They give .the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute, has a known and certain value,-which can'be proved and calculated, in thé ordinary mode of a business transaction. There are no words in the law, which by any just interpretation cari.be held to.extend the áppellgte jurisdiction beyond those limits, and authorize us to take cognizance of cases to which.no test of money‘value can tje applied. ■ Nor indeed is this limitation upon the appellate power of this court confined to cases like the one before'us. It is thé sáme in judgments in crimi-. nal cases, although the liberty or life of thé party may. depend on the decision of the Circuit Court. And since this court can exercise no appellate power unless it is conferred by act of Congress, the writ of error in this case must be dismissed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be and the same is hereby dismissed for the want of jurisdiction.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    Jacob S. Mayberry, Plaintiff in error, v. James H. Thompson, Defendant.
    Under tile acts of 1839, chap. 20 (5 .Statutes at Large, 315), and 1840, chap. 43 Í5 Statutes at Large, 392), where a case was carried from the District Court or the Middle District of Alabama to the Circuit Court for the Southern District of Alabama, and the Circuit Court reversed the judgment of the. District Court, it was not a proper mode of proceeding to bring the case to this court upon such reversal.
    The judgment of the District Court having been reversed, the plaintiff should have taken the necessary steps to bring his case to a firup. decision in the Circuit Court,' in the same manner as if the. suit had been originally brought there. This court could then have reexamined the judgment of the Circuit Court, if a'writ of error were sued out.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Alabama.
    It was ^originally brought by Mayberry in the District Court of the United States for the Middle District of Alabama. Mayberry was a citizen of Mississippi:
    The action was brought at the May term, 1841, and was an action of trespass to recover damages from Thompson, for forcibly taking, seizing, and carrying away certain goods, wares, and merchandise of the plaintiff, at Warsaw, in Sumter county, Alabama.
    At the November term, 1842, the cause came on for trial, when the jury found a verdict for the plaintiff, and assessed his damages at § 3,709.94. On the trial, the defendant’s counsel filed the following bill 'of exceptions.
    Be it remembered, that, in the trial, of this cause, the plaintiff in the first instance introduced testimony tending to show that some time in February or March, 1841, he sent cotton and drafts to Mobile, and received the proceeds thereof, about $ 3,200, and that he went with the same, and with letters of recommendation, to the city of New York, for the purchase of goods,, and there purchased sundry bills of goods, of different houses, for which he paid to each house about one half of the price of each purchase in money, the proceeds of the cotton' and drafts aforesaid, and gave his own notes to said several houses for the residue of the purchase money/, maturing at different dates, which said notes still remain unpaid, and that the sellers of said goods knew no persons.in the transaction except the plaintiff; that said goods were marked in the name of the plaintiff, and sent-forward to his address for Cooksville, in the State of Mississippi, but that,-before reaching their destination, they were seized by the defendant; at Warsaw, in the State of Alabama,, and by him sold.
    The defendant then introduced testimony, conducing to show that a fraudulent and collusive arrangement had been entered into between the plaintiff and one James Randalls, some time in June, 1840, for .the purpose of screening the property of said Randalls from claims of his creditors, by which a certain stock of goods and other property, which said Randalls then had, were collusively passed to said plaintiff, and the business of said Randalls thereafter, until after the seizure of said goods by defendant, was carried on m the name of said plaintiff; but that said business, including the sending of said cotton and draft's to Mobile, the raising of said ’money, and the purchase of said goods in New York, though done ostensibly by said plaintiff, and in his name, was really done by said Randalls, acting by and through said plaintiff, and in his, the plaintiff’s, name, and -that said goods, seized and sold by the defendant, were- by him seized an,d sold as an officer on process in his hands against said Randalls, as his, the said Randalls’s, property, and for-his debts ; and also that the plaintiff had little or no cotton at or about the time said cotton was forwarded to Mobile as aforesaid.
    The plaintiff then introduced the said Randalls as a'witness, and asked him the single question, whether he had interest in said goods seized, at the time they were seized and sold ; ’to which question the witness answered that he had not. The defendant thén, on cross-examination, for the purpose of contradicting said Randalls by the testimony of other witnesses, if he answered in the negative, and thus impeaching his testimony, inquired of him whether he had stated to an individual, at about the time said cotton was sent to Mobile, that he, the said Randalls, had succeeded in sending cotton to Mobile, so that the same had not been attached ; but the plaintiff’s counsel objected to the witness answering the question, and'the court ruled that the inquiry was of matter collateral and irrelevant, and that the witness need not answer the question propounded, and he did not answer the same.. The defendant, also, for the same purpose, last expressed, proposed to inquire of said Randalls, whether he had not stated to a certain individual,- at or about - the time .salid plaintiff left for New York, for the .purchase of said- goods, that he, the said'Randalls, had;sent said -plaintiff for goods ; but it was ruled by the court that it would not be competent for the defendant to discredit said witness by. Showing that he "had made statements, when out of court, and not on oath, different from hiá testimony given in court; and the question was not permitted to be put.
    The court instructed the jury, that if they believed that the goods purchased by the plaintiff in New York were purchased with the money of the said- Randalls, and that the plaintiff acted merely as a shield for said Randalls, to protect, the said goods from Randalls’s creditors, that the said goods were tobe, considered as the goods of Randalls, and were lawfully'attached by the defendant on an ex-ecutgm against Randalls ; but that when the goods were purchased for said .Randalls in part with the money of Randalls, and in part upon the credit of plaintiff, he giving his note to the several New York mercantile houses frqm which the purchases were made, and they being ignorant of any fraud between the plaintiff and said Ran-dalls, then the said goods thus purchased could not lawfully be sold by the defendant on. execution against said Randalls ; that the remedy of creditors of Randalls, when the goods were- purchased in part with the jnoney of Randalls, and in part upon credit of plaintiff, was in a court of equity, where the interest of all concerned might be apportioned and'adjusted.
    The defendant thereupon requested the court to instruct, the jury, that if they should, find for the plaintiff, they might, in making up their verdict, deduct from the amount the monéy and lawful in-. teres't thereon, in all cases where said goods were purchased in part with the money of Randalls, and in part upon the credit of the plaintiff; which charge the court refused to give.
    - And the defendants took exception to the beforementioned ruling and charge of the court, and foe refusal to charge as requested, and prayed that'his said exceptions might be. signed, sealed, and allowed, and the same is done accordingly.
    The defendant, Thompson, sued out a writ of error, and Carried the case to the Circuit Court of the United States for the Southern. District, of Alabáma, under the act of 1839, ch. 20 (5 Statutes at Large, 315).
    At March term, 1843, the Circuit Court, passed the following order : — “ This day came the parties, by their attomey, and this" cause coming on to be heard upon the transcript of the record, and the matters assigned for error being heard by the court, and mature deliberation being* thereupon had, it is considered by the court that there is error in the record and proceedings of the Said District Court; whereupon, it is ordered and adjudged by the court there that the judgment of the District Court be reversed and annulled, and that the said plaintiff recover his costs.”
    From which judgment Mayberry sued out a writ of error, and brought the case up to this court.
    It was argued by Mr. Brockenbrough ■ and Mr. Sherman, for die plaintiff in error, and Mr. Dargan, for defendant in error.

      The third point of the counsel for the plaintiff in error was the one upon which the opinion of this court turned, and is therefore the only one inserted. It was as follows : —
    III. As to the venire facias de novo and an absolute reversal.
    There can be no doubt that if the Circuit Court was clear, from the record, that the plaintiff had no cause of action, and was not entitled to recover in any event, under the facts, that that court was right in absolutely reversing the judgment. But if the Circuit Court considered' the District Court correct in its judgment as to the illegality of the levy and sale, but wrong as to the question of evidence in the cross-examination of Randalls only, then it should not have reversed the judgment absolutely, but have remanded it with a venire dé novo, that the plaintiff might have the benefit of his meritorious right of action, and the defendant not be deprived of his full rights in the cross-examination.
    But as we contend the District Court was right in both points, we ask to set aside .the reversal, and set up the judgment of the District Court.
    But if this court thinks the District Court did not err upon the main question, but did err on-the question of the cross-examination, then this-court-will reverse the decision of the Circuit Court, with the proper directions ; because that court .did not award a venire facias dc novo.

    The counsel for the defendant in error noticed this point as follows : —
    The act of Congress that established the Middle District of the State of Alabama, and allowed appeals and writs.of error from that court to the Circuit Court for the Fifth Judicial Circuit, does not by any express words make it obligatory on the Circuit Court to award a venire dé novo, but is silent on the' subject, therefore we must look to the general rules of practice on this subject. I admit that the Circuit Court may award the venire de novo on reversing the judgment of the District Court, but I deny that an omission to do so can be reached by a writ of error, unless the party claiming the the venire had asked the court below to award it, and-the court had refused it. It is a settled rule, that a .party complaining of errors must show it affirmatively; he must show .that the inferior court erred, and this error was prejudicial to his rights. Bradstreet v. Huntington, 5 Peters, 402.
    Now, the defendant in error in the Circuit Court (who is plaintiff here) could have demanded a venire-de novo, but he did not; the Circuit Court, therefore, did npt deny him the right of the writ of venire, nor act on it. How did this action of "the Circuit Court-leave the rights of the plaintiff in error ? '
    The judgment of the District Court was reversed, and held for nought. The parties were put by this judgment .in the same situation they- occupied before the suit was'-brought!; and the plaintiff in error in this court .-could have issued a new writ. In Bank of the United States v. Bank of Washington, 6 Peters, 8, the Supreme Court held, that a party who had derived a benefit from a' judgment which had been reversed, must make' restitution ; that is, the reversal of the judgment puts the parties .in statu .quo. So in 2 Gal. 216, it is held, that a judgment-reversed is no bar-to an action on the same subject-matter. So iii 1 Root, 421 $ it .is decided that, if a judgment on a note is reversed the note is revived ; to the very same effect see 10 Mass. 433; 5 Mass. 264 ; 3 Johns. 443. .
    These authorities, I think, settle the point that Mayberry, on the reversal of the judgment by the Circuit Court, - could have brought a new suit in the State-or'federal courts, or he could have demanded a venire de novo, But he had the option to do the one or the other; he did not inform the court which remedy he .chose.- Can-he now complain of error that the court left him to select for himself ? Can he. complain that the court did not. grant him a remedy which he did not apply for, , when he had the power to select between two remedies l ' This view will show that the court did him no injury, —the court was merely passive ; it did not decide on any right, nor act on any. Will error lie, therefore, in such a case ? If so, may I not well ask, in what did the court erf ?
    Again. The motion for the venire must be made in the court below. I think it plain that the party cannot come, here by writ of error, and, for thé first time, move for the venire in tins court; the object of the writ bf error being merely to make such a motion.
   Mr. Chief Justice TANEY

delivered the. opinion of the court.

Upon looking into the record, in this case, we find that there was no final judgment in the Circuit Court, and consequeiiUy no writ of error will lie from this court.

It appears that the -plaintiff in error brdught an action of trespass against the defendant, in-the District Court for the. Middle District of Alabama, for taking and carrying away certain goods and .chat-ties alleged. to be the property of the plaintiff, and recovered a judgment for 3,709.94 and costs-

. A bill of exception was -taken by the defendant to the rulings of the court upon several points raised at the trial, and the case re1 moved by writ of error to the Circuit Court for the- Southern District of Alabamá, where the judgment of the' District Court'was reversed with costs: And upon this judgment of reversal, without any further proceedings in the Circuit Court, the plaintiff sued out a writ of error from this court.

The writ of error to remove, the case to the Circuit Court is given by the act of 1839, ch. 2Ó, § 9 ; and as this law contains no special provision in relation to the judgments of the Circuit Court, in such cases, .the decisions of that court must be reexamined here, in the manner and upon the principles prescribed in the general laws upon that subject.

The judiciary act of 1789, § 24, provides, that where the judgment of a, District Court is reversed in the Circuit Court, such court shall proceed to render such judgment as the District Court should have rendered. Under this act, however, the judgment of a Circuit Court upon a writ of error to a District Court could not be reexamined in this Court; no writ of error in such cases being given. And so the law stood until the act of July 4th, 1840, ch. 43, § 3, which provides that writs of error in such cases shall lie, upon the judgment of a Circuit Court, in like manner and under the same regulations, limitations, and restrictions as were there provided by-law for writs of error on judgments rendered upon suits originally brought in the Circuit Court.” And, under the 22d seótion of the act of 1/89, writs of. error on judgments rendered m a Circuit Court upon suits originally brought there will lie only in cases when the judgment is a final one, and the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs.

It is evident that the judgment of the Circuit Court now before us is not a final one.' It does not dispose of the matter in dispute. And if it was affirmed in this court, it would still leave, the matter in dispute open to another suit; and might result in another writ of error to remove it to the Circuit Court, and then again to this court. The act of Congress certainly never intended to sanction such fruitless and inconclusive litigation ; and therefore directed that the Circuit Court should give such judgment as the District Court ought to have given, that is to say, a final judgment upon the matter in dispute. Instead of suing out a writ of error upon the judgment of reversal, the plaintiff should have taken, the necessary steps to bring his case to a final decision in the Circuit Court, in the same manner-as if the suit had been originally brought ther.e. And if he supposed any of the ruljngs or instructions 6f the court at the trial to be erroneous, he would, have been entitled to his exception, and this court could- then by writ of error have reexamined the judgment of the Circuit.Court, and finally decided upon the matter in controversy in the suit.

But upon the judgment of reversal only, which leaves the'dispute between the parties still open, no writ of. error will lie, and the writ issued in this case must therefore, be dismissed.

Order.

This cause qame on to'be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. Ón consideration •whereof, it. is now-here ordered and adjudged by. this court that this cause be and the same is hereby dismissed for the want of jurisdiction.


author: Mr. Justice DANIEL

text:
    John G. Nelson, Charles G. Carleton, William H. Stewart (Partners in Trade under the Name of Nelson, Carleton, & Co.), Henry Parish, Daniel Parish, John R. Marshall, John B. Seaman, Thomas Parish, Leroy M. Wiley (Partners in Trade under the Name of Parish, Marshall, & Co.), Appellants, v. John J. Hill, John P. Lipscomb, Absalom Hardin, Lorenzo I. Sexton and Ann R. Sexton (his Wife), and James Gray, Defendants.
    It is not irregular for two mercantile firms to unite as complainants in equity in a creditor’s bill.
    An objection that a bill is multifarious must be made before answer, and can be tested only by the struc .ure of the bill itself.
    The creditor of a partnership may, at bis option, proceed at law against the surviving partner or go, in the first instance, into equity against the representatives • of the deceased partner. It is not necessary for him to exhaust his remedy at ■law against the surviving partner before proceeding in equity against the estate. of the deceased. .
    Where there were twoanercantile firms and some of the members common to both, a creditor’s bill was not multifarious when- filed against the personal representa, fives of two or the deceased partners of the two firms and also against the surviving partner of one of the firms.
    This was an appeal from the Circuit Court of the United States for the Southern District of Alabama.
    The suit originated in the District Court óf the United States for the Middle District of Alabama, from which it was carried,, by. appeal, to the Circuit Court, ’ and thence was brought to this court.
    In 1834, thfe appellants, consisting of two mercantile houses in New York, became the creditors of two .firms in the State of Alabama, namely, the firms of Whitsett, Gray, &>Cd. and of Whitsett & Gray ; the former composed of William H. Whitsett, Thomas . Gray, John J. Hill, the latter of William H, Whitsett and Thomas Gray. . -
    The debts of these Alabama houses to their New York creditors set forth as follows : —
    Whitsett, Gray, & Co.,to Nelson, Carleton, &Co., a note dated May 17th, 1834, for $I;061.36, at 9 months^ Whitsett, Gray, & Co, to Parish, Marshall, & Co., two notes, one datéd May 10th, 1834, for $.1,470.95, at 9 months, and one, same date, for $1,470.95, at 11 months ; a bill of exchange drawn by Whitsett, Gray, & Co. on John C. Sims & Co. for $1,901.56, at 4.months ; and a note to White, Brothers; & Co., by Whitsett, Gray, & Co., for $331.43, at 12 months.
    Of the individuals composing the two Alabama firms, William H. Whitsett died in October, 1835, and administration of his estate was committed ,to Lipscomb & Hardin. Thomas Gray died in 1835, and administration of his estate was granted to James Gray and Ann R. Gray, the .widow of Thomas, who afterwards intermarried with Lorenzo Sexton.

      Upon three of the above notes, judgments were obtained in December, 1835, against Hill, as surviving partner of Whitsett, Gray, & Co. In January, 1840, a bill was filed on the equity side of the District Court of the United-States for the Middle District of Alabama by the New York firms, which, in August, 1841, was amended. The amended bill included, as defendants, James Gray, Lorenzo Sexton and Ann R. Sexton, (formerly Ann Gray), administrators of Thomas Gray, deceased, Absalom Hardin, John P. Lipscomb, and Joseph J. Hill, administrators of William H. Whit-sett, deceased. ■ ... ■
    The bills recited the above fact; stated that execution, had been sued out against Hill, but that no property could be found ; that .the estate of Whitsett had been reported to the County Court as insolvent, but that the estate of Gray was fully able to pay the debts of the partnerships ; praying for a discovery and payment, &c. -
    Lipscomb and Hardin answered the bills, denying generally the merits of the claim. - c
    Hill answered separately, and concluded his answer with denying the right of the complainants to unite their claims in one suit.
    Gray filed a separate demurrer, assigning therefore the following causes : —
    I. That the said. complainants' have not by their said bill and amended bill made such a case as entitles them in a court of equity'■ to any discovery from this defendant or any relief against him as to matter contained in the said bill and amended bill, &c.
    II. That the complainants have joined in their bill and amended bill distinct matters which, according to law and the practice of this court, ought not to be joined, &c.; that is to say, have joined matters against the late firm of Whitsett & Gray, composed of Wm. H. Whitsett, deceased, and Thomas Gray, deceased, with matters against the late firm of Whitsett, Gray, & Co., composed of the said Whitsett & Gray and one John J. Hill, the said John J. Hill having no interest in the matter against the said late firm of Whit-sett & Gray. They have joined matters of debt against said late ■fiim, Whitsett & Gray, created by note, payable to certain persons using the name and style of White, Brothers, & Co., to which deb', (the said complainants, or either of them, have, not any interest, as far as appears by their said bill or amended bill, and in which the said defendant, Hill) is in no wise interested, nor in any wise liable, &c. .
    III. The' complainants’ bill and amended, bill do not show that complainants had exhausted their remedy at law before coming into this court in such manner as to entitle them to the aid of this honorable court as a court of chancery, &c. Wherefore, for the foregoing causes, and for-divers other causes of demurrer appearing in the said bill and ¿mended bill, this defendant doth demur thereto ; and he prays the judgment of this honorable court vhether he shall be compelled to make further and other answers to the said bill; and he humbly práys to be dismissed from hence with his reasonable cost in this behalf sustained.
    In December, 1841, the cause came before the-District Court, which sustained the demurrer.
    The complainants appealed to the Circuit Court, which in March, 1843, affirmed the decree of the District Court. From the decision of the Circuit Court the complainants appealed to this court.
    The cause was argued by Mr. Dargan, for the appellants,- and Mr. Crittenden, for the appellees.

      Mr. Dargan.

    The decree, rendered on the demurrer of James Gray, dismissed the bill as to all the defendants, and they were adjudged to recoyer theii costs: This was the necessáry result upon sustaining the demurrer of James Gray, for he being a joint administrator with Sexton and wife, the suit could not-proceed without him. The appeal was taken against all the defendants, and the cause was pending properly in this court, when Gray died; his death did not abate the suit or render it defective, for his entire interest survived to Sexton and wife, and the administrator of James Gray has no interest in the suit. Therefore the cause is not out of court or abated by 'the death of James Gray, nor is it necessary to make his representatives parties, - The only question that can' be raised against the bill is, that it is multifarious.
    The bill is not . multifarious because it is filed in. the name of Parish, Marshall, & Co. and Nelson, Carleton, & Co., two distinct firms.
    It is well settled that when a creditor seeks the aid of a court of equity to subject the assets of a deceased debtor to the payment of his debt, he may sue for himself and all other creditors who will make themselves parties to the suit, unless his application, to a court of equity be founded on a specific lien on a specific chatteí, or oh particular real estate, as a mortgagee. But in the absence of any specific lien, that would give him an exclusive right as against the thing bound by the lien, he may sue for himself and all other creditors. Story’s Equity Pleadings, §§ 99, 100, and the cases Cited.
    Indeed, if the bill seeks to subject the real estate of the decedent, it is said the creditor must sue in behalf of all; here two firms sue for themselves and all other creditors who will join in the suit.
    The bill is not multifarious because it seeks to obtain satisfaction of debts due Nelson, Carleton, & Co. and Parish, Marshall, '& Co. by Whitsett, Gray, & Co., and also debts due Parish, Marshall, & Co.' by_ Whitsett & Gray alone. The debts due the complainants by Whitsett, Gray, & Co. had been sued at .law against Hill, the surviving partner, and executions have been returned, — “ no property ”; of course the complainants can. come into equity against the assets of the deceased partners on those debts, for they have done, all at law they can do. Now, if it be .true that, as to'the two debts due by Whitsett & Gray alone to Parish, Marshall, & Co.,, they have a perfect remedy at law, or if they have as yeffio equity, because they must proceed at law first against the administrators of Whitsett, the question, will then be raised, — if complainants seek to enforce an equitable right, and- in the same bill state a different and legal right, as to which equity will afford no relief, and this is apparent on the bill, will the statement of this legal right and prayer for relief, which by possibility cannot be granted, rendér the bill defective as to the equitable right ? To hold that a bill thus framed would be defective, would be a rigid rule, not perhaps productive of benefit or convenience; would it not go to the full extent, that a-complainant must recover on all calises of actions or suits stated in his bill, or he could not recover at all ? I have not found, a case that goes thus fay, and-1 submit that no case can be found where a bill is held to be multifarious because it states and seeks relief as to a clear equitable right, and also states and seeks relief as to a different and distinct legal right; but relief would be granted as to the equitable right; arid so far as it sought relief on a legal title the bill would be dismissed at the hearing. If I am right in "this view, the demurrer should not Have been sustained, even if the debts due by Whitsett & Gray alone to Parish, Marshall, & Co. cannot be enforced in equity against the representatives of Gray, or if their remedy on these two debts is at law. As to the doctrine of multifariousness, see Gaines v. Chew et al., 2 Howard, 619; Story on Eq. Pleadings, 515-517.
    This view is submitted on the supposition, that the court may hold that Parish, Marshall, & Col have a perfect right at law on the two debts not sued at law, and due by Whitsett &' Gray alone to them. But I think the rule is now- well established, fhat a creditor may file his bill in the first instance- against the assets of a deceased partner, notwithstanding the : urviving partner may even be solvent. See 1 Mylne & Keen, 582. This seems to be a well considered case, and maintains this position; also Story on Partnership, § 362, pp. 513, 514; also the case of Devaynes v. Noble, 1 Merivale, 5B9. I admit that formerly, the reverse was held -to be the law ; but since the decision in the case of Devaynes v. Noble, the rule seems to be settled, that a creditor máy go into equity in the first .instance against the assets of a deceased partner, although the. surviving part-, ner may be solvent. The text writers have'adopted this rule without objection. If the court should hold this to be the rule,, then Parish, Marshall, & Co: would be entitled to rélief against the administrators of Thomas Gray, although no'suit was brought against Whitsett’s representatives who. had survived Gray ; and in that aspect of the case, could Thomas Gray, administrator, demur, because. Parish,.Marshall, & Co. sought to enforce debts changeable on the estate, because the deceased was liable on them, — on one jointly with A., the other jointly with B. The estate is .bound for both, they sire both merely debts, and due to the same complainant. The same authorities show that when a bill is thus filed against the representatives of' the deceased partner, the surviving partner, whether solvent or insolvent, is a necessary party to the bill, although no .decree eait be rendered against him, for the remedy as against him is at law;
    In conclusion, if the remedy on the bill and note to Parish, Marshall, & Co., due by Whitsett & Gray, is at law exclusively ; or if, as yet, Parish, Marshall, & Co. are not entitléd to equitable relief as to these two debts, then the demurrer is too broad, and should not have been sustained. But if they can go into equity in the first instance against the assets of Gray, these two debts áre merely debts due by Gray; and what inconvenience will result from uniting them with othér debts due the same complainant by Gray ? For the reasons above stated, the court erred in sustaining the demurrer. ,

      Mr. Crittenden

    referred to the complicated nature of the suit, brought by two firms against two other firms, and contended it was objectionable- on account of multifariousness, misjoinder of parties, and causes of action. That a judgment should have been obtained against the surviving partner at law, before resorting to equity. For these principles, he cited 2 Madd. Chanc. 294; 2 ..Anstruther, 447 ; Hardress, 337 2 Vesey¿ jun. 323 1 Story on Partnership, 512 - 514.
   Mr. Justice DANIEL

delivered the opinion of the court.

Amongst the causes assigned for the demurrer in this case no objection is urged as founded upon the joinder of the different complainants in the bill arid amended bill, unless it be supposed that, an objection may be implied in'the general language of the first assignment, namely,-that the complainants had.not by their-bills made su6h a case as entitled them to. , relief. From a statement thus vague and indefinite it would be difficult to deduce any one obr jection rather than another; but could this assignment be understood as pointing specifically to the structure of the bills as multifarious, from the nuinber or. relative position of the complainants, it is certain that no valid exception could on either of those grounds be sustained.

These bills are -formally, as well as substantially, creditors’ bills, by -which thé complairiants are regulárly and properly united in seeking satisfaction from subjects against which, as .creditors of the defendants, they can properly clairn. As to the nature and. regularity of such a proceeding see Mitford’s Equity Pleadings, 166, Í67; Story’s Equity Pleadings, .§§ 99, 1(10, and the authorities there cited..-

From a want of perspicuity in the statements contained in the bill and amended bill, in the former especially, there might seem at first view some plausibility in the second cause assigned for the demurrer, namely, the multifariousness of the bills from the joinder of parties as defendants, who are supposed to.be unconnected in interest and in liability. The objection of multifariousness is one of. which it is said by the authorities a defendant can- avail himself by demurrer or exception taken to the pleading only. That being designed for his protection against the vexation and expense of answering to matters irrelevant to the true controversy existing between him and the complainant, if instead of arresting the irregularity at the commencement and claiming the exemption intended' for him, he will go on and answer the bill, the reason for the exemption designed- by the rule no longer exists •$ and although at the hearing the court may, sponte sua, make an objection for multifariousness, it is no longer in the power of a party, after answer, to do so. See Whaley v. Dawson, 2 Scho. & Lef. 370, and Ward v. Cooke, 5 Madd. 80. From the character of this objection, then, and from the established requisition as to the time and mode of making it by a defendant, it must of'course be tested and determined by the structure of the bill alone, and cannot be enforced, explained, or removed by proceedings posterior to the bill and de-' murrer, nor by the evidence. From some obscurity in the bill and amended bill, as has already been observed, there might seem to be a want of connection in interest and in liability between the' defendants', such as would not warrant their being joined in the same suit. This objection, however, will entirely vanish upon a closer examination of the relative positions of the parties.

The complainants consist of two sets of creditors. First, the firm of Nelson, Carleton, & Co.; secondly, the firm of Parish, Marshall, & Co.- To each of these firms the copartnership of Whitsett, Gray, & Co. became-indebted. The debt contracted to the former house was evidenced by the note of Whitsett, Gray, & Co. The debts (for there were several in the second instance) due to Parish, Marshall, & Co. were evidenced by two notes of Whitsett, Gray, & Co.', by a bill drawn by Whitsett, Gray, & Co. on Sims & Co. (which it is alleged was not accepted), and by a note of Whitsett & Gray, payable to White, Brothers, & Co., and passed in some mode not distinctly set forth by Whitsett, Gray, & Co. to Parish, Marshall, & Co. The firm of Whitsett, Gray, & Co. was comr posed of William H. Whitsett, Thomas Gray, and John J. Hill ; that of Whitsett & Gray was composed of William H. Whitsett and Thomas Gray. Thus it appears that Thomas Gray was a member of both firms. The complainants allege the deaths of both Whitsett & Gray, leaving Hill as surviving partner of the firm of Whitsett, Gray,’ & Co. They aver that Lipscomb & Hardin administered upon the estate of Whitsett, and had reported that estaté to the County Court to be insolvent; that Ann R. Gray, widow of T-homas Gray, and who had intermarried with L. Sexton, had, conjointly with James Gray, taken administration of the estate of Thomas ; that upon judgments obtained on the notes of Whitsett, Gray, & Co., against Hill, the surviving partner, executions had been sued-out and returned nulla bona. 'There is, in the next place, charged a belief of frauds and concealment on the part of Hill, and of the administrators of Whitsett, and also' the perfect' solvency of the estate of Thomas Gray ; the whole .concluding with a prayer for accounts of the effects of Whitsett, Gray, & Co., of William H. Whitsett, and of Thomas Gray, in the hands of their representatives, and for satisfaction.

It is now a rule of law too well settled to be shaken, that the creditor of a partnership may, at his option, proceed at law against the surviving partner, or go in the first instance into equity against the representatives of the deceased partner. See the several cases on this point collected in Story on Partnership, § 362, note 3. This being conceded, there can be no valid exception.to the prosecution of this suit immediately against the representatives of Thomas Gray, and it is to the advantage of his estate, that the representatives of Whitsett, and the surviving partner, Hill, should both be called in, that they may be required to contribute from any appropriate means in their possession towards the discharge of their joint and several obligations. Here, then, will be-perceived the answer to the third cause assigned for the demurrer, namely, that the complainants had not exhausted their remedy at law before going into a court of equity. It is the right also of the representatives of. the deceased partner, Whitsett, and that of the surviving partner, Hill, to participate in settlements in which their interests are directly involved ; and an omission in the bills to convene these joint parties in interest for this purpose, with the representatives of the other deceased partner, Gray, would have exhibited a palpable and material defect in the proceedings of the complainants. ■

According to the case made in the bill and amended bill, there are, no visible partnership effects, and it may be the fact, that the" surviving partner,' Hill, and the estate of the deceased partner, Whitsett, are both insolvent. Should this turn out to be true, then the separate estate of the partner, Gray, said to be solvent, must be responsible to the creditors of each of 4he firms of which he was a member. In order to ascertain the precise extent of Gray’s responsibility, accounts would be proper, not only between the- two firms and their respective creditors, but also between these firms themselves ' Accounts would likewise be proper of the separate effects of the deceased partners. This view of the case removes the ground set forth in the second assignment of causes of demurrer. ■ We are of opinion that the court could, in equity, properly take cognizance, of this cause without the necessity for further previous proceedings at law; that the bill and amended bill bf the complainants were not exceptionable for multifariousness ; "that the decree of the Circuit Court dismissing those bills for either of the causes assigned for the demurrer is erroneous. The decree is therefore reversed, and this cause is remanded "to the Circuit Court, with directions to be there proceeded in, conformably with the principles here established.

Order.

This cause came on to be heard on the'transcript of the record from the Circuit Court of the United States for the Southern District of Alabama, and was argued by counsel. On consideration whereof, it is ordered and decreed by this court that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to proceed therein conformably to the opinion of this court.