The plaintiff derived his title from receivers of the Morris Canal & Banking Company, who. in consequence of the insolvency of that Company, were appointed by the Chancellor of New Jersey, according to the provisions of an Act of that State, entitled "An Act to Prevent Frauds by Incorporated Companies.”

The case was subsequently transferred to the Superior Court of the City of New York, and was twice taken to the Court of Appeals of that State. The last time, that court ordered final judgment to be entered for the defendants, and remitted the case to the Superior Court of the City of New York for that purpose.

The Superior Court entered final judgment in accordance with this order, and the plaintiff | brought the case to this court by writ of error. The point upon which the case turned is further stated in the opinion and in the arguments of the counsel.

Thompson, one of the original defendants, died while this case was pending in the New York courts, and the suit was revived against Henry Sheldon, as executor. Sheldon died pending this writ of error, and Edward G. Thompson, as his successor, was made a party by order of this court.

Mr. Jesse Hoyt, for himself:

1. We state in our complaint the decree of the Court of Chancery of New Jersey, as the basis of our rights-that decree establishing:

(a) The insolvency of the Morris Canal & Banking Company March 31, 1840.

(b) The Statute of New Jersey of Feb. 16, 1829, declaring the effect of that insolvency to be a prohibition on the part of the Canal Company, its officers, etc., against assigning or transferring any of its property except to bona fide purchasers without notice.

(c) The appointment, by said Court of Chancery, of receivers of said Canal Company and the effects thereof.

2. Upon this showing, the Act of Congress of May 26, 1790, took effect and made the records from New Jersey conclusive proof of the facts before referred to, and the erroneous construction of that Act by the Court of Appeals of New York gives this court jurisdiction; and it may not be inappropriate to remark, that in Miller v. Nicholls, 4 Wheat. 311, 315, it was said by Marshall, Chief Justice, that "it would have been sufficient to give this court jurisdiction, that the record could show that an Act of Congress was applicable to the case."

Martin v. Hunter, 1 Wheat. 304; Williams v. Norris, 12 Wheat. 117, 124; Hickie v. Starke, 1 Pet. 94, 98; Craig v. The State of Mo. 4 Pet. 410; Davis v. Packard, 6 Pet. 41, 48.

Messrs. Samuel Blatchford, E. W. Stoughton and H. G. DeForest, for defendants in error:

This court has no jurisdiction of the writ of error in this case, and it must be dismissed.

(1) It must appear from the record in the case, either in express terms or by clear and necessary intendment, that one of the questions that the Supreme Court has jurisdiction to ex

(2) This may be ascertained, either from the pleadings or by bill of exceptions, or by the certificate of the state court.

(3) Neither the assignment of errors nor the published opinion of the state court can be looked into for that purpose as they make no part of the record proper, to which alone this court can resort to ascertain the subject-matter of the litigation.

These principles are established by the following cases:

Medberry v. The State of Ohio, 24 How. 413; Christ Church v. The Co. of Philadelphia, 20 How. 26; Michigan Cent. R. Co. v. Mich. So. R. Co. 19 How. 378; Williams v. Norris, 12 Wheat. 117; The Ocean Ins. Co. v. Polleys, 13 Pet. 157; Coons v. Gallager, 15 Pet. 18; Calcote v. Stanton, 18 How 243; Lawler v. Walker, 14 How. 149; Commercial Bank of Cincinnati v. Buckingham's Ex'rs, 5 How. 317; Crowell v. Randell, 10 Pet. 368; Armstrong v. The Treas. of Athens Co. 16 Pet. 281.

Mr. Chief Justice Taney delivered the opinion of the court:

This being a writ of error directed to a state court, it is incumbent upon the plaintiff, in order to give jurisdiction to this court, to show that one of the questions enumerated [*521 in the Judiciary Act of Sept. 24, 1789, ch. 20 (1 Stat. 73), arose at the trial, and that a right he claimed under the Constitution of the United States, or an act of Congress, was decided against him.

In the argument here, he alleges that the construction and effect of the 1st section of the 4th article of the Constitution was drawn in question, and the right to the property in dispute, which he claimed under it, was decided against him.

The section referred to is in the following words:

"Full faith and credit shall be given in each State to the public Acts, records and judicial proceeding of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."

And he now contends that, by virtue of the Act of the Legislature of New Jersey, and the proceedings and decree of the Court of Chancery of that State, and the sale by the receivers under the authority of that state, as set forth in the bill of complaint, the right to the property in controversy vested in the vendees, under whom he claims title; and that the state court, by deciding against him, refused to give full faith and credit to the records and judicial proceedings in New Jersey, as required by the clause in the Constitution above quoted.

But, in order to give this court the power to revise the judgment of the state court on that ground, it must appear upon the transcript, filed by the plaintiff in error, that the point on which he relies was made in the New York court, and decided against him; and that this section of the Constitution was brought to the notice of the state court, and the right which he now claims here claimed under it. The rule upon this subject is clearly and fully stated in Maxwell v. Newbold, 18 How. 515, as well as in

many other cases, to which it is unnecessary to | refer.

This provision of the Constitution is not referred to in the plaintiff's bill of complaint in the state court, or in any of the proceedings there had. It is true, he sets out the Act of the Legislature of New Jersey, the proceedings and decree of the Chancery Court of that State un522*] der it, and the sale of the property *in dispute by the authority of the court, which, he alleges, transferred the title to the vendee, under whom he claims, and charges that the assignment set up by the defendants was fraud ulent and void for the reasons stated in his bill. But all of the matters put in issue by the bill and answers, and decided by the state court were questions which depended for their de cision upon principles of law and equity, as recognized and administered in the State of New York, and without reference to the construction or effect of any provision in the Constitu tion or any Act of Congress.

This court has no appellate power over the judgment of a state court pronounced in such a controversy, and this writ of error must, therefore, be dismissed for want of jurisdiction.

In an action of debt on bond, the demand is for the penalty; the condition of the bond is no part of the obligation.

An action on a several covenant to pay a sum of money to A cannot be brought on a covenant to pay A. B and C, jointly.

If, by the condition, the money to be recovered be not for the joint benefit of all, the suggestion of the fat cannot alter the obligation.

That the true reason was, to give jurisdiction to the Circuit Court of the United States, by omitting the names of obligees who are citizens of Illinois, does not cure the omission.

Where a contract is joint and not several, all the joint obligees who are alive must be joined as plaintiffs, and defendant can object to a nonjoinder of plaintiffs, not only by demurrer but in arrest of judgment, under the plea of the general issue.

When there are several covenants by the obligors

as, for instance, to pay to A $100, and B $200, each may sue alone on his several covenant.

But a covenant will not be construed to be several, by reason of several interests, if it be expressly joint.

This court will not disregard this as merely a technical rule, which does not affect the merits of the controversy.

It is no wrong or hardship to suitors who come to the courts for a remedy, to be required to do it in the mode established by law.

Argued Jan. 7, 1862. Decided Jan. 20, 1862.

A

PPEAL from the Circuit Court of the United States for the Northern District of Illinois. This was an action of debt on an injunction bond in the court below, by Tesson against the Farnis.

The bond was a joint obligation by the two Farnis, together with two other persons named

Boutcam and Carey, to pay Edward P. Tesson and four other persons jointly, $17,000 as a penal sum to secure the several undertakings set out in the subsequent part of the bond. The plaintiff, to avoid the objection of nonjoinder of the other obligees, averred that he was the only one interested in the judgment enjoined; that Miner, one of the obligees, was the sheriff who held the execution enjoined, and the other obligees were merely the agents or trustees of Tesson.

Two main objections were made by the Farnis to the recovery in this suit.

First. That the bond sued upon was never delivered by the obligors.

Second. That this suit was wrongly brought in the name of Tesson alone, and that the other obligees named in the bond should have been enjoined with him as plaintiffs.

Verdict and judgment were in favor of Tesson. An appeal was taken by the defendant to this court.

Messrs. Samuel W. Fuller, Badger and Carlisle, for appellants:

1. The penalty of the bond on which this action is brought, is a joint undertaking by four persons to pay five others, jointly, the sum of $17,000.

Two of the obligees were the plaintiffs in the judgment enjoined; two others were agents or trustees for them, and the fifth was the sheriff who had the execution enjoined.

The sheriff, Miner, one of the obligees, was a citizen of Illinois, of the same State as the defendants in this case; so the plaintiff avers, and so the fact was.

This contrivance in pleading was, therefore, resorted to, to support the jurisdiction of the United States Court, for if the suit had been brought in the name of all the obligees, it must have failed, because one of the plaintiffs, Miner, would have been a citizen of the same State with the defendants.

It must be kept in mind that this is an action of debt on the penalty of the bond, and that all the authorities make a wide distinction between this form of action and one of covenant upon the undertaking in the conditional part of the obligation, and most if not all the cases turn on this distinction.

We refer to Cabell v. Vaughan, 1 Saund. 291, where it is said "all the obligees or covenantees, if alive, ought to join in the action; if dead, that fact should be averred."

The plaintiff in this case averred, in substance that the ebligees not joined were still

alive.

1 Chit. Pl. 9; 1 Saund. Pl. & Ev. 9; Pearce v. Hitchcock, 2 N. Y. 388; Arnold v. Tallmadge, 19 Wend. 527; Bailey v. Powell, 11 Mo. 414; Sims v. Harris, 8 B. Mon. 55; Gayle v. Martin, 3 Ala. 593.

2. How may this defect of parties be taken advantage of?

By demurrer, plea in abatement, objection at the trial, or by motion in arrest of judgment, or by writ of error.

1 Chit. Pl. 12 A; Cabell v. Vaughan, 1 Saund. 291, if.

The objection for want of party is believed to be well taken, and the only answer that has or can be made to it is, that it has been waived by the defendants by their stipulation to plead to the merits.

The plaintiff filed a declaration which was demurred to. He then amended by filing two new counts to which the defendants stipulated that they would plead to the merits (and this was all the answer they ever made to it). They did plead to the merits; at the trial they in sisted on the objection; the court overruled it; then overruled the motion in arrest, because he thought the objection too technical to be sus tained; yet the authorities all say that the objection was a good one at any stage of the proceeding, and ought to prevail when insisted on. There is no surprise to the plaintiff in this, for he has deliberately taken the hazard of trusting that the court will disregard long and well-settled rules of common-law pleading, in order to extend the jurisdiction of the Federal Court.

Messrs. S. F. Vinton and Thos. Hayne, for appellee:

The first objection presents a question of practice and not of principle. It is a bald techniciality foreign to the merits of the case, and in the present instance against its justice and equity.

It has been a rule of practice from an early period of the common law, that covenantees may sue separately in covenant, if the interest and cause of action be several, though the covenant be, in terms, joint; but if an action of debt be brought on the same obligation to recover the penalty for breach of covenant, all the obligees must join in the suit.

1 Chit. Pl. 3, 6 and 7; Eccleston v. Clipsham, 1 Saund. 153, and note 1.

The inquiry naturally presents itself, why was this distinction in the rule of practice where the suit is on the same instrument.

When debt was brought to recover the penalty of the bond, the severe rule of the common law gave judgment for the whole penalty according to the letter of the obligation, and not only shut out all inquiry into the damage which the obligee had sustained, but provided for the obligor no relief in any other form. And so great was this hardship of the common law, that the Court of Equity gave relief in such cases, one of its special grounds of jurisdiction, which directed an issue of quantum damnificatus, and enjoined the excess of the judgment beyond the damage actually sus tained.

2 Selw. N. P. 517.

If the obligee by his action of debt claimed the penalty of the bond, according to its letter, it was but just that he, too, should be held to its letter, and compelled, though his interests were separate, to sue in the name of all the obligees. But if he brought covenant on his obligation, he recovered such damages only as he had actually sustained; and as he thus relaxed his hold upon the letter of the bond, the rule of practice was relaxed also in his favor by allowing him to sue separately, if his interest and cause of action were separate, though the terms of the obligation were joint. The law remained on this footing until the passage of the Statute of the 8 and 9 William III. ch. 11, § 8, which enabled the obligor to compel the obligee in an action of debt on the penalty, to assign the breaches of the condition of the bond, and limited his recovery to the damage actually sus tained.

Since the passage of that statute, the action

of debt on a penal bond is virtually put on the same footing with the action of covenant on the obligation. The result of an action on a penal bond, whether debt or covenant be brought, is now substantially the same to both parties to the suit. The English Statute on this subject has been everywhere adopted in this country, and the record of this case shows that the plaintiff assigned the breaches of the condition of the bond, and recovered what was equitably due him, being more than $7,300. When the reason for this distinction in the rule of practice ceased to exist, the distinction itself ought also to have ceased. Rules of practice are adopted to promote and not to defeat justice, and they are accordingly modified to conform to the modifications of the law, and if the rule of practice in this particular has not yet been made to conform to the modifications of the law in the action of debt on a penal bond, now is a fit time, and this court is a fit tribunal to do it. In the present state of the law it is an idle and useless distinction. It is not now even a respectable technicality. But in this case there is another and conclusive answer to this objection, which is that the plaintiff in error waived it in the court below; and for that reason that court overruled the motion to arrest the judgment for that cause. This waiver is not denied and this court called upon to go into an examination of the fact of the waiver having been made. Whether this objection was waived or not, is a matter of fact and not of law. The fact of its waiver must be established to the satisfaction of the tribunal where it is made. In such a case as the present, it may be done in express terms, written or verbal, or by the conduct of the party making it; and it inay be proved or established by evidence to the satisfaction of the court, like any other matter in pais.

When, therefore, the court before whom the case is pending is satisfied, from the evidence before it, or knows of its own knowledge, that a defense has been waived, a court of error will not and cannot go into a review of the sufficiency of the proof to establish the fact thus found and acted upon by the inferior court, any more than it can go into a review of the testimony submitted to a jury for the purpose of correcting its conclusion about a matter of fact. In a word, a court of error reviews questions of law only, and not questions of fact found in the inferior tribunal, whether the finding of the fact be by the court or by a jury; it is enough that it was within the legitimate providence of the court to determine that matter of fact, to make its finding conclusive.

Mr. Justice Grier delivered the opinion of the court:

The amendments made to the declaration after demurrer have not removed the original mistake, as to the parties who should have been joined as plaintiffs. In an action of debt on bond, the demand is for the penalty. The condition of the bond is no part of the obligation. It is true, the judgment for the penalty will be released, on performance of the condition annexed to it. The plaintiff may declare on it as single, and defendant would then have to pray oyer of the deed; and have the condition put on the record, so that he could plead a performance of it, or any other defense

the decree by the respondent to this court, and which was affirmed, as will appear by the report of the case in Clark v. Clark & Hackett, 17 How. 315, and the cause remanded to the Circuit Court. The fund was afterwards, in pursuance of the decree below, remitted to the District Court of New Hampshire. While it remained in that court, and before distribution among the creditors, the complainant, the bankrupt, filed the present bill for the purpose of setting aside the decree of the Circuit Court of this district, and of the Supreme Court affirming it, on the allegations of fraud committed by the parties, including his own solicitor and counsel, in procuring these decrees, and claiming that he was entitled to the fund, and that payment should be made to him accordingly.

The court below, after hearing the case on the pleadings and proofs, which were volum inous, held, that the evidence entirely failed to

establish the allegations of fraud, and dismissed

the bill. It is now here on appeal. The case is a very plain one; and we need only say, that the court, upon the pleadings and proofs, could

come to no other conclusion.

Decree of the Circuit Court, affirmed.

HENRY B. CROMWELL et al., Owners of the Steamboat Westernport, etc., Appts.,

v.

THE BARK "ISLAND CITY" and Cargo. (See S. C. 1 Black, 121-131.)

Derelict, what is-salvage, apportionment of-when earned--embezzlement forfeits salvage -co-salvors, when jointly guilty.

To constitute a case of derelict, the abandonment must have been final, without hope of recovery or intention to return.

If the crew has left the ship temporarily, with intention to return after obtaining assistance, it is no abandonment, nor will a rescuer be entitled to salvage as of a derelict.

Where a bark was not abandoned after the salvage service commenced and it was one continuous

of record return may be made by clerk of court below and need not be made by the judge. Stew art v. Ingle, 9 Wheat. 526; Worcester v. Georgia, 6 Pet. 515, 537, 563.

In criminal cases Supreme Court will issue the writ of certiorari in aid of the writ of habeas corpus to revise the decision of the Circuit Court remanding prisoner, or after indictment, not to review whole case, but to examine authority of court below to act at all [Ex parte Virginia, 100 U. S. 339; Ex parle Yerger, 8 Wall. 85; Ex parte McCandle, 6 Wall. 318]; or where prisoner shows that he is held under a judgment of a federal court without authority of 'aw, to look into the record so far as to ascertain that fact and discharge him if it is found so. [Ex parte Lange, 18 Wall. 163]; but in an extradition case court cannot pass upon discharge of executive functions of the President [Farez' case, 2 Abb. U. S. 346; 7 Blatchf. 345; 40 How. Pr. 107]; nor revise decision of commis sioner on question of fact as to the criminality of the accused. In re Stupp, 12 Biatchf. 501.

Where court of claims finding an appeal grant a new trial and thereby resumes control of the case, the Supreme Court will not grant a certiorari to bring before it the proceedings subsequent to ap peal, but the appeal will be dismissed. U. S. v. Young, 94 U. S. 258.

Certiorari is not proper to an inferior court to remove a cause for want of jurisdiction. Fowler v. Lindsey, 3 Dall. 411; contra, Kennedy v. Gor man, 4 Cranch C. C. 347.

Supreme Court cannot review by certiorari proceedings of a military commission ordered by of

peril from which the bark was rescued, and each of several salvors contributed to the final result, eral salvors was just and proper. the apportionment of the salvage among the

sev

In establishing a new rule as regards steamboats, tion, and claiming adverse interests, should both the parties interested in the decision of the quesbe heard, on a proper issue made between them.

Compensation for salvage service presupposes good faith, meritorious service, complete restoration, and incorruptible vigilance so far as the property is within reach or under the control of the salvors.

If they are guilty of embezzlement, whether at ered into the custody of the law, it works a forfeisea. in port, or even after the property is delivture of their claim to salvage.

When secret, and purely an individual act, it is

justly held not to prejudice co-salvors, who are innocent. But all may become guilty by consenting to, or by connivance, concealment, or encouragement afforded to the actors, or by not preventing the act when it is in their power.

Argued Jan. 8, 1862. Decided Jan. 27, 1862. APPEAL from the Circuit Court of the United

States for the District of Massachusetts. trict Court. The case was certified to the CirOriginally three libels were filed in the Discuit Court because the district judge was inter

ested.

The first libel was by the owners, officers and crew of the steamer R. B. Forbes; the second was by the oflicers, owners and crew of the schooner Kensington; the third was by the owners, officers and crew of the steamer Westernport; and all were for services rendered in saving the bark "Island City" and cargo.

The Circuit Court decreed that the "Island City" and her cargo should pay the sum of $13,000, for all the services which contributed to their salvage; that of this amount the owners, officers and crew of the R. B. Forbes were justly entitled to the sum of $5,200; those of the schooner Kensington to the sum of $3,300; and the residue, $4,500, is the proper salvage compensation which would be recoverable by the owners, officers and crew of the steamer "Westernport;" but that all that part of this salvage compensation which would otherwise have belonged to the officers and crew of the ficer of U. S. Army commanding a military department. Ex parte Vallandigham, 1 Wall. 243.

When a new jurisdiction is created by statute, certiorari, not writ of error, will lie. Campbell v. Strong, Hemp. 195.

A court of exclusively appellate jurisdiction cannot issue a certiorari to bring up a case, passing over a court whose appellate jurisdiction is intermediate the two. Carr v. Tweedy, Hemp. 87.

Certiorari may issue with habeas corpus to bring before a circuit court for review, proceedings before U. S. Commissioner on commitment. In re Martin, 5 Blatchf. 303.

This writ lies from Supreme Court of District of Columbia to justices of the peace, where amount involved exceeds $50. Coleman v. Freedman, 1 MacArthur, 160.

Common law certiorari does not lie to bring before appellate court proceedings subsequent to appeal or writ of error. U. S. v. Young, 94 U. S. 258.

Circuit Court of District of Columbia has jurisdiction to issue certiorari to justice of the peace in case of forcible entry and detainer. Holmead v. Smith. 5 Cranch, C. C. 343; U. S. v. Browning, 1 Cranch, C. C. 500; U. S. v. Donahoe, 1 Cranch, C. C. 474.

On petition for certiorari, court will ordinarily not hear case on merits, but wait for the return even though an admitted copy of the record is produced. Ex parte, 2 Wall. 134.

In criminal cases, the U. S. Supreme Court cannot revise or control proceedings and judgments of circuit court by writ of error or prohibition, or examine them by certiorari. Ex parte Gorden, 1 Black. 503, post, 134.