[Beaston v. The Farmers' Bank of Delaware.]

respects the beforementioned questions of the validity or construction of the said constitution, treaties, statutes, commissions or authorities in dispute." The preceding part of the same section, authorizes the writ of error only when the decision of the state court has been against the validity or construction of the constitution, treaties, statutes, commissions or authorities stated in the section. So that it is manifest, and so has been the uniform course of this Court, that no question not made in the court below, on which its judgment ultimately turned, can be made, or is re-examinable here. I have already said, that it is apparent upon this record, that no such point arose, or decision was made in the court of appeals of Maryland; and, therefore, I cannot but consider the decision here pronounced upon it, as coram non judice; and in no just sense, obligatory upon us, or upon our successors.

I know that my brother, Mr. Justice BARBOUR, held the same opinion as I do, on this question. His departure from the Court before the opinion in this case was pronounced, does not entitle me to speak further in his behalf.

Mr. Justice BALDWIN concurred with Mr. Justice STORY in the opinion delivered by him; and with the majority of the Court, in affirming the judgment of the court of appeals.

Mr. Justice M'LEAN concurred with Mr. Justice STORY.

This cause came on to be heard, on the transcript of the record from the court of appeals for the Eastern Shore of Maryland, and was argued by counsel. On consideration whereof, it is now here adjudged, and ordered by this Court, that the judgment of the said court of appeals in this cause be, and the same is hereby affirmed, with costs.

THE HEIRS OF NICHOLAS WILSON V. THE LIFE AND FIRE INSURANCE COMPANY OF NEW YORK.

In certain proceedings for the sale of property mortgaged, the widow and children of the deceased owner of the property were made defendants. The district court of Lousiana gave a judgment in favour of the plaintiffs. The widow was entitled to her community in the property mortgaged, and had taken the property at the appraisement and estimation. The writ of error to the district court of Lousiana was issued in the name of "The heirs of Nicholas Wilson," without naming any person as plaintiff. The widow of Nicholas Wilson did not join in the writ of error. The writ of error was dismissed on the two grounds: that no person was named in it; and that the widow of Nicholas Wilson had not joined in it. The rule of Court is, that where there is a substantial defect in the appeal, or writ of error, the objection may be taken at any time before the judgment; on the ground that the case is not legally before the Court, and that it has not juris liction to try it.

The cases of Mary Deneale and others, Plaintiffs v. Stump's Executors, 8 Peters, 526; and Owings and others v. Kincannon, 7 Peters, 399; cited.

ERROR to the district court of the United States for the eastern district of Louisiana.

Mr. Butler, for the defendants, moved to dismiss the writ of

error.

1. Because no persons are named in the writ as plaintiffs; but they are described, generally, as The Heirs of Nicholas Wilson.

2. That the widow of Nicholas Wilson, who is interested in the suit, did not join in the application for the writ of error.

The motion was opposed by Coxe and Mr. Webster.

Mr. Chief Justice TANEY delivered the opinion of the Court. The proceedings in this case were instituted in the district court for the eastern district of Louisiana, for the purpose of procuring the sale of certain property mortgaged by Nicholas Wilson in his lifetime, to the Life and Fire Insurance Company of New York. The widow and children of the deceased were made defendants in the petition, and the judgment in the district court was in favour of the plaintiffs. The widow, it appears, was entitled to her community

[The Heirs of Wilson v. The Life and Fire Insurance Co. of New York.] in the property mortgaged; and had taken the property of the deceased, as she had a right to do, at the appraisement and estimation.

The counsel for the defendant in error has moved to dismiss this case; 1st, Because no persons are named as plaintiffs in the writ of error; but they are described generally in the writ as "The Heirs of Nicholas Wilson." 2dly, If this general description is sufficient, yet it appears by the petition for the writ, which is referred to in the appeal bond, that the widow did not join in the application for the writ of error: and as the judgment against the defendants was a joint one, they must all join in a writ of error, unless there is a summons and severance.

We think the writ of error must be dismissed on both grounds; and that the points raised have already been decided by this Court.

In the case in 8 Peters, 526, the writ of error issued in the name of "Mary Deneale, executrix of George Deneale and others." It was dismissed on the motion of the defendants in error, and the Court said, "the present writ of error is brought by Mary Deneale and others' as plaintiffs; but who the others are cannot be known to the Court, for their names are not given in the writ of error, as they ought to be. Mary Deneale cannot alone maintain a writ of error on this judgment; but all the parties must be joined and their names set forth, in order that the Court may proceed to give a proper judgment in the case." In the case now before the Court, the name of no one of the parties is set forth in the writ of error; and according to the rule laid down in the case referred to, this writ of error cannot be maintained.

The second objection above stated, falls within the principle decided in Owings and others v. Kincannon, 7 Peters, 399. In that case a joint decree was passed by the circuit court for the district of Kentucky, against six defendants. An appeal was prayed generally from the decree; but in the appeal bond, it was stated that two had prayed an appeal, and nothing was there said of the others. The Court considered the statement in the bond as explaining the general entry granting the appeal; and dismissed the case because all of the defendants in the court below had not joined in it.

In the case before the Court, if the omission to name the plaintiffs in error in the writ was not regarded as an insuperable objection, and if the general description of "The Heirs of Nicholas Wilson," could be supposed under the laws of Louisiana, to include his widow; yet the statement in the petition for the writ of error which is referred

[The Heirs of Wilson v. The Life and Fire Insurance Co. of New York.]

to in the bond, would explain the general description in the writ, and bring this case within the principle decided in Owings and others v. Kincanion.

In both of the cases referred to, it appears that the motions to dismiss were not made at the first term, or at the time of appearance in this Court; but each of the cases had been depending here two years. before the motion was made. The rule of this Court therefore is, that where there is a substantial defect in the appeal, or writ of error, the objection may be taken at any time before judgment, on the ground that the case is not legally before us; and that we have not jurisdiction to try it. It follows, that the writ of error in the case under consideration must be dismissed.

Mr. Justice BALDWIN dissented.

On consideration of the motion made in this cause by Mr. Butler, to dismiss this case for irregularity, on the ground that the writ of error does not set forth the names of all the parties, and of the arguments of counsel thereupon had, as well in support of as against the motion; it is now here ordered and adjudged by this Court, that this writ of error to the district court of the United States for the eastern district of Louisiana be, and the same is hereby dismissed, and that it be so certified to the said district court.

EDWARD SARCHET AND OTHERS, APPELLANTS V. THE UNITED STATES.

The United States instituted a suit, on a bond for duties, in the district court of the southern district of New York; and after a trial and verdict for the United States, judgment was given against the defendant; who thereupon prosecuted a writ of error to the circuit court for the southern district of New York, where the judgment of the district court was affirmed. The defendant then appealed to the Supreme Court. Held, that cases at law can only be brought from the circuit court by writ of error, and cannot be brought by appeal. In cases at law, removed from the district to the circuit court, the judgment of the circuit court is final and conclusive. It is otherwise in cases of admiralty and maritime jurisdiction.

The cases of the United States v. Hudson and Goodwin, 7 Cranch, 108; and the several cases, 7 Cranch, 287; 2 Wheat. 248, 395, cited.

ON appeal from the circuit court of the United States from the circuit court for the southern circuit of New York.

Mr. Butler, the attorney general, moved to dismiss the appeal on two grounds.

1. That this was originally a proceeding at law, on a bond fqr duties, in the district court of New York for the southern district; and was, after a judgment of that court for the United States, taken by a writ of error to the circuit court for the southern circuit, by the defendant: where the judgment of the district court was affirmed. The judgment of the circuit court is final in such a case.

2. This is a proceeding at law; and the defendant has brought the case from the circuit court by an appeal, and not by a writ of error. Mr. Butler cited the United States v. Goodwin, 7 Cranch, 108; 7 Cranch, 287; 3 Wheat. 248, &c.

Mr. Sarchet opposed the motion, in person; cited, 3 Dall. 171; 2 Wheat. 259.

Mr. Chief Justice TANEY delivered the opinion of the Court.

In this case, an action was brought by the United States against Edward Sarchet and others, in the district court for the southern district of New York; upon a bond for duties charged by the collector upon certain iron imported into the United States. The duties