value received, payable and negotiable at the | defendant the money paid by plaintiff to Union Bank of Maryland. Wm. Smith. Thornton, or any part of it, as being money 4th of January, 1840.-J. G., N. P. Non-paid for his (Smith's) use? payment.

No. given.-H. & S.

January 1.

2. If the first question is answered in the negative, then can the defendant, upon the isWm. Smith, $2,669. sue joined in this case, offer evidence that James McCaleb, Smith and McCaleb were both citizens of James Kent. Mississippi when the notes stated in the testimony were given in order to bar the plaintiff of his action in this court as assignee of said notes?

99*] *In consideration that the amount of the within note, with interest thereon, was paid by Henry A. Hall, Esq., in behalf of James S. McCaleb, deceased, the indorser thereon, now I do hereby assign to said Henry A. Hall, said note.

Jona. McCaleb, Administrator of
James S. McCaleb, deceased.

May 20th, 1842. $2,678.90. Baltimore, August 10th, 1839. On the first day of April next I promise to pay to the order of James S. McCaleb twentysix hundred and seventy-eight dollars and 90-100 for value received, payable and negotiable of the Union Bank of Maryland.

Wm. Smith. April-Prot. nonpayment, 4th April, 1840. Indorsed.-Union, 583. William Smith, $2,678.90. April 1. Jas. S. McCaleb, James Kent. Baltimore, July 13th, 1840. $1,500. By cash, received of James S. McCaleb, on account, the within fifteen hundred dollars.

John M. Gordon, Attorney for P. Thornton. $400. July 24th.-By cash, $400. John M. Gordon. $200. By cash, two hundred dollars. August 3d, 1840. J. M. Gordon. I assign the within note to Henry A. Hall, for value received.

Jonathan McCaleb, Administrator of May 20th, 1843. James McCaleb.

The defendant offered to give in evidence that Smith and McCaleb, the drawer and payee of the two notes given to Thornton, were citizens of the State of Missisippi at the date of the notes, and that McCaleb continued to be so until his death, and that Smith still continues to be so.

Upon this evidence the following questions occurred:

1. Is the plaintiff entitled to recover of the ties to the extent they are equitably bound_to_contribute. Cuyler v. Ensworth, 6 Paige, 32; Eddy v. Traver, Idem. 521.

A person who has been compelled to pay money by the judgment of a court of competent jurisdiction, to the payment of which, others should in justice have contributed, may by bill in equity, compel them to contribute. Mitchell v. Sproul, 5 J. J. Marsh. 270.

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As to the first question presented by the record, it cannot be denied that the money paid by Hall to Thornton was expended for the benefit of the defendant, Smith. It went pro tanto to extinguish the debt due by Smith to Thornton; it was money, therefore, advanced for the use of Smith, and of which, in fact, he obtained the full benefit. What reason then can be alleged why an action for money laid out and expended for the use of Smith cannot lie to recover it again on the part of Hall? The Circuit Court has jurisdiction over the subject matter of such a suit, and over the parties; for Hall is a citizen of the State of Maryland, and Smith of the State of Mississippi.

But it is alleged that Smith became indebted to James S. McCaleb, on his, Smith's, failure to pay the two promissory notes, on each of which notes said McCaleb was indorser; that Smith and McCaleb were citizens of the same State; that, as such, McCaleb could not have sued Smith in the courts of the United States; and that, by the assignment of the notes to Hall, he was placed in the shoes of McCaleb, and could no more appear in the courts of the United States as plaintiff, to enforce payment of the notes against Smith, than McCaleb himself could have appeared for that purpose.

The principle that the Circuit Court of the United States has not jurisdiction, on account all or of the excess paid by any one among the others, ascertains the amount of contribution; but if any of the sureties are insolvent, such as are so in equity are not reckoned, but a division is made among the remaining solvent sureties. Thus where one of three sureties has paid the whole debt, he may be allowed a moiety for contribution from a co-surety, because the third was insolvent. Peter v. Rich, 1 Ch. R. 19; Hole v. Harrison, 1 Ch. C. 246; Layer v. Nelson, 1 Vern. 456. But at law, the insolvency of a co-surety is not considered, and the one who has paid can recover from the solvent sureties no more than an aliquot part of the sum he has paid and his expenses, regard being had only to the number of the sureties, deducting any sum which has been re-imbursed to him by the debtor or from counter seBrown v. Lee, 9 D. & R. 700; 6 B. & C. 697; Babcock v. Hubbard, 2 Conn. 536; Willy v. Poulk, 6 Conn. 74, 4 Wend. 432; Knight v. Hughes, 4 Car. & P., N. P. C. 467; Knight v. Hughes, 3 Car. & P. 46; Taylor v. Savage, 12 Mass. 101; 1 Moo. & Mal., N. P. C. 247; Roach v. Thompson, Id. 487; Swain v. Wall, 1 Ch. R. 80, 17 Mass. 470.

Anciently, it was in courts of equity alone that one surety who had been made to pay the whole debt could compel contribution from his co-sureties. But now a surety who has been compelled to pay the whole debt, may coerce contribution from his co-sureties by an action at law. Ibid. If surety pay debt of principal, in money, he is entitled to sum paid and interest, if in property, he is only entitled to value of property and inter-curities. Cowell v. Edwards, 2 Bos. & Pull. 268; cst. The same criterion as to recovery from cosurety. Ibid.; Hickman v. M'Curdy, 7 J. J. Marsh. 569.


Where one of the several sureties pays the whole debt or more than his share in proportion to the number of sureties, he may call on the others to contribute their proportion. If all the sureties are solvent, an equal division of the debt amongst

and the relation of the parties, will, we think, show that this objection cannot be sustained. Smith was the drawer of both of the notes in favor of James S. McCaleb, who became the acthem to Smith, who, from his own accommodation, and to relieve himself from a threatened arrest, gave them to Thornton, to whom he was indebted, and at whose instance the writ against Smith had been issued. These notes were not paid at maturity, as they should

of the character of the parties, in a contest between citizens of different States, where the cause of action arises upon a debt assigned, and originally contracted between citizens of the same State, is fully admitted. But its ap-commodation indorser, and who redelivered plication to the present case is denied. It is admitted that, when the assignor could not sue there, in an action on the debt assigned, the assignee is in no better situation than the assignor, although he may be a citizen of a different State from the original debtor. In the case now under consideration the ac-have been, by Smith; in consequence of whose tion is not instituted upon the notes assigned, but for money expended for the use of Smith, and upon his implied request. The money expended, which is the cause of action, was paid on the 30th of June, 1841. The notes was not assigned until the 20th of May, 1843. The cause of action, then, under the money counts of the declaration, arose long anterior to the assignments, and subsisted wholly independent of them; the notes, with the assignments upon them, being introduced in evidence to show in what manner the money paid by Hall inured to the benefit of Smith, and were therefore collateral to the true cause of action, and designed merely as links in the chain of evidence to support it.

default writs were issued out of Baltimore County Court against James S. McCaleb, as indorser, under which he was arrested by the sheriff, and whilst in the hands of that officer applied to Mr. Lemmon to become his bail, who consented to do so, in the confidence that he would be indemnified by the plaintiff, who was the father-in-law of the said McCaleb. Lemmon accordingly became bail for McCaleb, who was then released by the sheriff.

Afterwards, at the first interview Lemmon had with the plaintiff, *he assured him [*102 that he, the plaintiff, would save him harmless for having gone bail for his son-in-law. Pending these suits Smith had paid part of one of the notes; and before judgment was obThe declaration shows that the suit is be-tained upon either of them Hall paid the bal101*] tween citizens of different *States, and ance of the other note. Suit was then dockclearly, therefore, within the general jurisdic-eted against Hall in the Circuit Court by tion of the Circuit Court, unless it falls within the restrictive clause of the eleventh section of the Judiciary Act of 1789, ch. 20, which declares, that the Circuit Court shall not "have cognizance of any suits to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in said court to recover the said contents if no assignment had been made."

In Bean v. Smith et al. 2 Mason, 279, it is said, speaking of the above clause, "It is perfectly clear that the statute never contemplated| an exclusion of jurisdiction in cases where a negotiable instrument or chose in action was mixed up in the ingredients of the case; but where that chose in action constituted the sole cause of action, and the assignment the whole ground of the plaintiff's right."

In the present case it is manifest that the assignment of the notes does not constitute the whole ground of the plaintiff's action; but, on the contrary, that the cause of action subsisted independent of, and anterior to, the assignments, and at and from the moment when the money was paid by the plaintiff to the attorney of Thornton, in discharge pro tanto of his claim against Smith. If this be so, then it is clear that the restrictive clause of the Judiciary Act, above quoted, does not exclude the jurisdiction of the Circuit Court over the parties and the subject matter of this cause.

But it may be replied, that if the money advanced by Hall is regarded as the true cause of action, and not the assigned notes, then the plaintiff is not entitled to recover; because the debt of Smith, to which the money was applied, was paid without his request or consent, and was therefore a mere voluntary act, from which no cause of action can arise against him. A consideration of the evidence in this case,

Thornton, and judgment was confessed, to be released on payment of $2,669, with the interest from the 1st of January, 1840. The payment of the balance of the note by Hall, and the confession of the judgment aforesaid, was the fulfillment, on the part of Hall, of his agreement with Lemmon to save him harmless for having gone bail for McCaleb; the suits against him in Baltimore County Court being dismissed, upon the confession of the judgment by Hall in the Circuit Court, as has been previously agreed between the attorney of Thornton and Hall. At the same time that the judgment was confessed the notes above mentioned were delivered to Hall by the attorney of Thornton.

The argument upon the second question is omitted.

Mr. Stewart and Mr. Giles made the following points:

1. That the plaintiff cannot recover of the defendant the amount of the payments so made, because, in making them, the plaintiff was a mere volunteer so far as the defendant was concerned.

2. That the plaintiff cannot recover upon the promissory notes referred to, because he claims title through an assignment made by Jonathan McCaleb, administrator of James S. McCaleb, the payee of the said notes, both of whom were citizens of the State of Mississippi, of which State the defendant was also a citi


3. That it was perfectly competent for the defendant, after the plaintiff had given the promissory notes in evidence under the declaration in this case, to rely under his plea, filed upon the defect of title in the plaintiff as assignee of the said notes, to recover in the Circuit Court.

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Upon the trial of this cause in the Circuit Court, two points were made, upon which the judges differed in opinion; and it has been certified to this court, as is provided for in the sixth section of the Act of 1802, entitled “An Act to amend the judicial system of the United States." 2 Statutes at Large, 159. From the evidence, we think that all the persons in this transaction became privies in the same contract to secure the payment of a debt due by the defendant to Thornton. The payment of it, therefore, by any one of them, other than the debtor, was a payment at his request, and an express assumpsit to re-imburse the amount. But suppose such a privity not existing between the parties, the evidence shows it also to be a case of the surety of a surety paying the debt of a principal, under a legal obligation, 103*] from which the *principal was bound to relieve him. Such a payment is a sufficient consideration to raise an implied assumpsit to repay the amount, though the payment was made without a request from the principal. Tappin v. Broster, Î C. & P. 112; Exall v. Partridge, 8 Term R. 310; Child v. Morley, Ibid. 610.

HIS case was brought up by writ of error from the Circuit Court of the United States for 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 for 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, presented *his peti- [*104 tion to the Circuit Court for the Southern District of New York, praying that a writ of habeas corpus 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 Ann 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 We shall decide the first point certified to be child. Three or four times writs of habeas answered in the affirmative, which makes it un-corpus had been granted by the local courts of necessary to notice the second.


that State, and indeed in one form or another all the courts, both of common law and of equity, had passed upon this vexed and proresort, 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 wearied in mind, and exhausted almost of resources, by the long, persevering, and vexatious proceedings of the plaintiff in error in this cause.

This cause came on to be heard on the tran-tracted litigation. Twice had the court of last script of the record from the Circuit Court of the United States for the District of Maryland, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion agreeably to the acts of Congress in such case made and provided, and was argued by counsel; in consideration where- Prior, however, to the application to the of, it is the opinion of this court that the plain- Circuit Court for the Southern District of New tiff in this case is entitled to recover of the de-York, the plaintiff in error applied to this court fendant the money paid by the plaintiff to for a writ of habeas corpus, which was refused. Thornton, as being money paid for his (Smith's) I shall have occasion to refer to these decisions use. Whereupon it is now here ordered and 'hereafter. adjudged by this court, that it be so certified; to the said Circuit Court.

JOHN A. BARRY, Plaintiff in Error,


MARY MERCEIN and Eliza Ann Barry. Habeas Corpus ad subjiciendum-writ of error will not lie to re-examine judgment of circuit court refusing to grant.

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 dispute 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

business transactions.

But a controversy between a father and mother, each claiming the right to the custody, care, and society of their child, relates to a matter in dispute which is incapable of being reduced to any pecuniary standard of value.

The writ of error must be dismissed for want of jurisdiction.

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 born subject of the Queen of Great Britain, and claims that the said infant child, though born 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 the facts, Judge Betts refused to allow the writ, and he gave his reasons in an opinion of great length, in which he enters upon a review of the whole law upon the subject. I feel that there is nothing to be added to 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 States, it is at 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 habeas corpus prayed for, because

"1. If granted, and a return was made ad

mitting the facts stated in the petition, I should | an ex-parte application, and where no summons discharge the infant on the ground that this or other process was served upon the defendcourt cannot exercise the common law func-ants in error, or either of them, is not a final tions of parens patriæ and has no common law judgment in a civil action, or a final decree in jurisdiction over the matter. a suit in equity.

"2. Because the court has not judicial cognizance of the matter by virtue of any statute of the United States.

105*] *"3. If such jurisdiction 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 evidence of the common law rule which is to be the rule of decision in the case.

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 are no parties before the court.

The Act of March 3d, 1803, uses the expression, "cases in equity," but they are confined "4. Because by that rule the father is not to cases of admiralty and maritime jurisdiction, entitled on the case made by this petition to and to be carried up to the Supreme Court by take this child out of the custody of its mother." appeal. It is this decision which the plaintiff in error Judge Betts says, in this case: "A procedure seeks to reverse, and on this motion to grant by habeas corpus can in no legal sense be rethis writ of error, it is respectfully submitted-garded as a suit or controversy between private 1. That this is not such a final judgment parties." Holmes v. Jennison et al. 14 Peters, as is contemplated by the statute of 1789, 540, refused to discharge under habeas corpus. which a writ of error may be brought to re- If a suit not a suit between private parties.


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 matter to this court from the Circuit Court.

2. There is no pecuniary value to the subject in controversy, nor any way in which pecuniary 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 contro3. That the application was to the discretion versy, exclusive of costs, exceeds the sum of of the Circuit Court, and this court will never two thousand dollars. Now, though in some interfere to control the discretion of the in-cases the court have allowed testimony of ferior court. The parties who are proceeded value to be given by affidavits or viva voce, against are the wife and mother of plaintiff in when the demand is not for money, yet this aperror. The plaintiff in error cannot proceed pears to have been done only in cases where against his wife in this court, her domicil in real value could be readily fixed, and it has althe eye of the law being the same as her hus-lowed the value of an office or its emoluments band's. to be thus established.

5. The Circuit Court possess no other or different powers in relation to habeas corpus under the act, than are possessed by this court, and this court have already passed upon this case by refusing to grant the writ when application was made upon the same state of facts directly to this court. This court have no jurisdiction over the subject matter, and the writ of error should be quashed for want of jurisdiction.

1. This is not such a final judgment as is contemplated by the statute.

The language of the statute (sec. 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 re-examined and rendered or affirmed in a circuit court holden in the same district upon a writ of error whereto shall be annexed and returned therewith at the day and place thereby mentioned an authenticated transcript of the record, assignment of errors, prayer for reversal, citation, etc.

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"And upon a like process" (that is, writ of error, record, etc.), may final judgments, and decrees in civil actions, and suits in equity in a circuit court, brought there by original process or removed there from State courts, or by appeal from district courts, etc., and "when the matter in dispute exceeds the sum or value of two thousand dollars," etc., be re-examined and reversed or affirmed by the Supreme Court. 106*] *Now, it is respectfully but confidently submitted to this court that the decision of the Circuit Court in this matter, upon

I do not see how the value is to be ascertained in this case; and, indeed, it does not seem to be one of the actions at law or suits in equity contemplated by the act to reverse the judgment or decree in which writs of error may be brought.

In the case of Columbian Insurance Co. v. Wheelwright et al. 7 Wheaton, 534, a writ of error was held to lie for this court to the Circuit Court for the District of Columbia, upon a judgment overruling a peremptory mandamus. But it was quashed on account of the matter in controversy not being of 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, 1801, is different from that of the Act of 1789.


In the Act of 1801, writs of error may be brought to reverse or affirm final judgments, orders, or decrees in said Circuit Court. as in the Act of 1789, final judgments in civil actions and suits in equity. Act of 27 February, 1801, sec. 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 dis- [*107 cretion of the Circuit Court, and this court will not interfere to control the discretion of an inferior 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 re-instate cases after nonsuit, affords no ground for writ of error. See United

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 is wrongfully detained, and in a way conducing to its prejudice."

States v. Buford, 3 Peters, 31; United States But "a procedure by habeas corpus (says v. Evans, 5 Cranch, 280; Maryland Insurance Judge Betts) can in no legal sense be regarded Co. v. Hodgson, 6 Cranch, 206. as a suit or controversy between private parSee, also, the case of Boyle v. Zacharie, 6ties. It is an inquisition by the government, 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 of 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 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."

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 authorThe case before the court is one of a similarity in "thus it is written." They derive no jucharacter, and resting equally in the sound dis- risdiction from the common law. The grand cretion of the Circuit Court. inquisition of the sovereignty of the United States is not to be invoked unless in cases where the written law gives the power 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.

4. The plaintiff in error cannot proceed in this court against his wife; her domicil being in law the same 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 defend


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, "that all the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, etc. 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 the 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 decision from the judgment of an inferior court.

"What question (says Judge Betts in this same opinion) can be regarded as in principle more local or intraterritorial 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 prescribed for us. As this court has never grasped at ungranted jurisdiction, so it neverwill, 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 mo- [*109 tion, made the following points, which he maintained at great length:

In the case of Ex-parte Barry, 2 Howard, 65, Mr. Justice Story says: "It is plain, there- 1. The record in the above cause presents. 108*] fore, that this court has no original *ju- the case of a "final judgment" by the Circuit risdiction to entertain the present petition, and Court for the Southern District of New York. we cannot issue any writ of habeas corpus, ex-in a "suit," within the meaning of the twentycept when it is necessary for the exercise of second section of the Judiciary Act of 1789; 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 the jurisdiction of the Circuit Court? True, the eleventh section of the Judicial Act gives the Circuit Court original cognizance with the courts of the several States, of all suits of a civil nature at common law or in equity.

and the plaintiff in error is therefore entitled to have such judgment re-examined 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 of such writ. Ünited 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. Co. v. Wheelwright et al. 7 Wheat. 534; Co. Litt. 288, b.

2. The court below had jurisdiction of this

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