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 considerations.

The judgment of the District Court having been reversed, the plaintiff should have taken the nethe Circuit Court, in the same manner as if the cessary steps to bring his case to a final decision in suit had been originally brought there. This court could then have re-examined the judgment of the Circuit Court, if a writ of error were sued out.

THIS

HIS case was brought up by writ of error from the Circuit Court of the United States for the Southern District of Alabama.

It was orginally 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.

ages at $3,709.94. On the trial, the defendant's counsel filed the following bill of exceptions:

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 At the November Term, 1842, the cause section of the Act of 1789. Is it one of those came on for trial, when the jury found a vercases in which we are authorized to re-examine dict for the plaintiff, and assessed his damthe decision of a circuit court of the United States, and affirm or reverse its judgment? We think not. The 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 the ordinary mode of a business transaction. There are no words in the law which by any just interpretation can be held to extend the appellate jurisdiction beyond those limits, and authorize us to take cognizance of cases to which no test of money value can be applied. Nor, indeed, is this limitation upon the appellate power of this court confined to cases like the one before us. It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the Circuit Court. And since this court can exer121*] cise *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.

Be it remembered, that, in the trial of this cause, the plaintiff in the first instance introduced testimony tending to show that sometime 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 [*122 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, sometime 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

JACOB S. MAYBERRY, Plaintiff in Error, thereafter, until after the seizure of said goods

V.

JAMES H. THOMPSON, Defendant. Jurisdiction-this court can revise only final judgments.

Under the acts of 1839, chap. 20 (5 Statutes at Large, 315), and 1840, chap. 43 (5 Statutes at Large, 392), where a case was carried from the District Court for the Middle District of Alabama to the Circuit Court for the Southern District of Alabama, and the Circuit Court re

versed the judgment of the District Court, it was not a proper mode of proceeding to bring the case to this court upon such reversal.

by defendant, was carried on in the name of said plaintiff; but that said business, including the sending of said cotton and drafts 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 and sold as an officer on process in his hands against said Randalls, as his (the said Randalls') 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 then, 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 said 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, 123*] and not on oath, different from *his testimony given in court; and the question was not permitted to be put.

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 Alabama, 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 attorney, 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 the plaintiff in error, and Mr. Dargan for defendant in error.

*The third point of the counsel for [*124 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 The court instructed the jury, that if they entitled to recover in any event, under the facts, believed that the goods purchased by the plain- that that court was right in absolutely reversing tiff in New York were purchased with the the judgment. But if the Circuit Court conmoney of the said Randalls, and that the sidered the District Court correct in its judgplaintiff acted merely as a shield for said Ran- ment as to the illegality of the levy and sale, dalls, to protect the said goods from Randalls' but wrong as to the question of evidence in the creditors, that the said goods were to be con- cross-examination of Randalls only, then it sidered as the goods of Randalls, and were should not have reversed the judgment absolawfully attached by the defendant on an ex-lutely, but have remanded it with a venire de ecution 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 from which the purchases were made, and they being ignorant of any fraud between the plaintiff and said Randalls, 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 money 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 money and lawful interest 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 before mentioned ruling and charge of the court, and the refusal to charge as requested, and prayed that his said exceptions might be

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 de 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 de 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 | ant to the rulings of the court upon several claiming the venire had asked the court below points raised at the trial, and the case removed to award it, and the court had refused it. It by writ of error to the Circuit Court for the is a settled rule, that a party complaining of Southern District of Alabama, where the judgerrors must show it affirmatively; he must ment of the District Court was reversed with show that the inferior court erred, and this costs. And upon this judgment of reversal, error was prejudicial to his rights. Bradstreet without any further proceedings in the Circuit v. Huntington, 5 Peters, 402. Court, the plaintiff sued out a writ of error from this court.

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 Ciropin-cuit Court, in the same manner as if the suit had been originally brought there. And if he supposed any of the rulings or instructions of 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 re-examined the judgment of the Circuit Court, and finally decided upon the matter in controversy in the suit.

JOHN J. HILL, John P. Lipscomb, Absalom Of the individuals composing the two AlaHardin, Lorenzo I. Sexton and Ann R. Sex-bama firms, William H. Whitsett died in Octoton, his Wife, and James Gray, Defendants. ber, 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.

Lipscomb and Hardin answered the bills, | of the Circuit Court the complainants appealed denying generally the merits of the claim. to this court.

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 therefor 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, etc.

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 recover their costs. This was the necessary 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 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.

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, etc.; that is to say, have joined matters against the late firm of Whitsett & Gray, composed of Wm. H. Whitsett, deceased, and Thomas Gray, de-interest in the suit. Therefore the cause is not ceased, 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 Whitsett & Gray. They have joined matters of debt against said late firm, Whitsett & Gray, created by note, payable to certain persons using the name and style of White, Brothers & Co., to which debt 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, etc.

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, etc. Wherefore, for the foregoing causes, and for divers other causes of demurrer appearing in the said bill and amended bill, this defendant doth demur thereto; and he prays the judgment of this honorable court whether he 129*] shall be compelled to make further and other answers to the said bill; and he humbly prays 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 demur

rer.

The complainants appealed to the Circuit Court, which in March, 1843, affirmed the decree of the District Court. From the decision charge each other for services rendered in the care and management of the joint property, unless there is a special agreement for that purpose. Franklin v. Robinson, 1 Johns. Ch. 158; Bradford v. Kimberly, 3 Johns. Ch. 434.

But where the several partners, who are joint owners of a cargo, appoint one of the partners their agent or factor, to receive and sell it, receive the proceeds, etc., a compensation is necesBradsarily implied in such special agreement. ford v. Kimberly, 3 Johns. Ch. 431.

If a partner withdraws funds, he will not be unless compound interest, he chargeable with trades or speculates with them to a profit. Stoughton v. Lynch, 2 Johns. Ch. 210.

One member of a firm is not bound by an indorsement made by another member of the firm, of an accommodation bill of exchange, without express or implied authority to make such indorse ment, independently of that arising from the partnership connection. Chenowith v. Chamberlain,

6 B. Mon. 60.

One member of a firm cannot bind his co-partner

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 chattel, or on 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, secs. 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 [*130 by a bond under seal. McNaughten v. Partridge, 11 Ohio, 223.

One partner has no power to bind his co-partner by deed, unless he be expressly empowered to do so by deed, and that power cannot be proved by parol. Napier v. Cation, 2 Humph. (Tenn.) 534.

The implied authority of one partner to bind his copartner, is generally limited to such acts as are in their nature essential to the general objects of the co-partnership. Kirby v. Ingersoll, Harrington's Ch. 172.

One partner cannot make a general assignment of the partnership effects to a trustee for the benefit of the creditors of the firm without the knowledge or consent of his copartner, when he is on the spot, and might have been consulted.

Ib.

When money is lent to part of the members of the firm, who give a note for it in their own names only, the lender is not a creditor of the firm although the borrowers apply the money towards payment of the debts of the firm. Green v. Tanner, 8 Met. 411.