Mills v. Brown. 16 P. curred is equivalent to such proceedings. All the defendants origi nally claimed an appeal; some of them have declined to pursue it at all; others have deserted it since it was pending in this court; and, therefore, there is no pretence to say that any practical inconvenience can occur from Todd's now prosecuting it alone, and since the other defendants have all had notice and declined to interfere, and are content to abide by the original decree. In the case of Coxe and Dick v. The United States, 6 Pet. 172, no doubt was entertained by this court, that a writ of error 524] might be entertained by the defendants severally, where the judgment operated, under the laws of Louisiana, as a several as well as joint judgment, although they might have united in the writ of error; and if any one choose not to prosecute it, the others might, upon a summons and severance, proceed alone.. The case of Owings v. Kincannon, 7 Pet. 399, seems to have been misunderstood at the bar. The objection, in that case, was not, that one or more of the defendants might not pursue an appeal for their own interest, if the others refused to join in it upon due notice, and process for that purpose from the circuit court; but that it did not appear that all the defendants were not ready and willing to join in the appeal, and that the appeal was brought by some of the appellants without giving the others an opportunity of joining in it, for the protection of their own interest, not only against the appellee, but against the appellants, as their own interests might be distinct from, or even adverse to that of the appellants; and it was right and proper that all the parties should have an opportunity of appearing before the court, so that one final decree, binding upon all the parties having a common interest, might be pronounced. Upon the whole, therefore, our opinion is, that the appeal must be dismissed, with costs, against all the defendants, except Todd; and as to him, it is to be retained for a hearing upon the merits. 6 H. 201. ADAM S. MILLS and others, Plaintiffs in Error, v. WILLIAM G. BROWN and others, and the County of St. Clair, Defendants in Error. 16 P. 525. It not appearing by any averment on the record, in an equity case, that a question under the constitution of the United States was raised in the state court, and as that court might have decided the case without passing on such a question, this court has not jurisdiction under the twenty-fifth section of the Judiciary Act, (1 Stats. at Large, 85.) THE case is stated in the opinion of the court. Mills v. Brown. 16 P. Bogy and Jones, for the plaintiffs. Key and Reynolds, contrà. *TANEY, C. J., delivered the opinion of the court. [ * 526 ] This case is brought here by writ of error to the supreme court of Illinois under the twenty-fifth section of the act of 1789. It appears that the legislature of Illinois, by a law passed March 2, 1819, granted to a certain S. Wiggins, his heirs and assigns, the right to establish a ferry, upon his own lands, across the Mississippi, near the town of Illinois. By a subsequent act of March 2, 1839, the legislature of Illinois granted to the county of St. Clair, in that State, and to certain commissioners in behalf of the county, the right to locate a road and ferry-landing between Cahokie Creek and the Mississippi River, opposite to St. Louis. And the commissioners appointed by this law proceeded to lay out the road and establish the landing on certain lands which belonged to the plaintiffs in error; and to which, by sundry conveyances, they derived title from the said Wiggins. The plaintiffs in error thereupon filed their bill in the circuit court of the State, praying that the county of St. Clair and the said commissioners should be enjoined from further proceedings under the act of assembly last above mentioned. The respondents, the present defendants in error, appeared and demurred generally to the bill; and upon final hearing of the cause, the demurrer was sustained by the circuit court, and the bill dismissed. From this decision the complainants appealed to the supreme court of the State where the decree of the circuit court was affirmed. The points proposed to be raised here, are, 1. Whether the act of assembly of 1819, was not a contract with the said Wiggins, his heirs and assigns; and 2. Whether the act of 1839 does not impair the contract. These points are not directly stated in the pleadings, [*527 ] nor are they noticed in the decree of the circuit or supreme court of the State. Yet if it appeared from the bill, that the court could not have sustained the demurrer without considering and deciding these points; if they were necessarily involved in the decision of the case, as presented by the bill and demurrer, this court would have jurisdiction upon the writ of error, although they are not expressly stated in the decrees to have been raised and decided. It is unnecessary for the purposes of this opinion to state the contents of the bill. Indeed, as concerns the question before us, it VOL. XIV. 35 Mauran v. Bullus. 16 P. could not well be understood without giving the whole bill in its own words. It is sufficient to say that we have carefully examined it, and are satisfied that the points proposed to be raised here were not necessarily involved in the judgment given by the state court. On the contrary, we think it may have come to the conclusion that the demurrer ought to be sustained on other grounds, and that the bill was not so framed as to require a decision upon these questions. It is true that the plaintiffs and defendants in error have both waived all objections to jurisdiction, and have pressed the court for a decision on the principal points. But consent will not give jurisdiction. And we have heretofore, on several occasions, said, that when the act of congress has so carefully and cautiously restricted the jurisdiction conferred upon this court, over the judgments and decrees of the state tribunals, it would ill become the court to exercise it in a different spirit. And it certainly could not be justified in expressing an opinion favorable or unfavorable as to the correctness of this decree, when it has not the power to affirm or reverse it. The writ of error must therefore be dismissed. JOSHUA MAURAN, Plaintiff in Error, v. EDWARD BULLUS, Defendan in Error. 16 P.528. In aid of the construction of a letter of guarantee, it is proper to have reference to the facts and circumstances which attended its execution; and the court may leave the jury to find those facts, and instruct them, hypothetically, concerning the legal effect of the writing. Where a written promise of indemnity against certain debts, did not point out from what fund they must be paid to render the guarantor liable, it was proper to leave it to the jury to find, upon extrinsic evidence, what was the understanding of the parties in this respect. THE case is stated in the opinion of the court. Whipple, for the plaintiff. Z. Collins Lee and Southard, contrà. M'LEAN, J., delivered the opinion of the court. "The defendant in error and Joshua Mauran, Jr., of the city of New York, on the 8th of September, 1836, entered into arti cles of copartnership in the trade and business of general shipping merchants, and of buying and selling merchandise on their own account, and also on commission for the account of others; which was to continue three years. Mauran agreed to pay into the firm as Mauran v. Bullus. 16 P. capital stock, such sums as he should be able to realize on closing the business of merchandising, in which he had been engaged. Bullus agreed to pay a sum of from $28,000 to $30,000 in cash.. And it was stipulated that Mauran should not withdraw from the concern more than $2,000 per annum, nor Bullus more than $3,000, unless by consent of the copartners in writing. Mauran covenanted that within a reasonable time he would pay the debts owing by him, out of his private funds; and that on or before the 8th of September instant, he would give to Bullus satisfactory security for the performance of this covenant. On the 9th of September, 1836, the defendant below wrote to Bullus the following letter: Mr. Edward Bullus-Dear Sir: As you are about to form a connection in the mercantile business in the city of New York with my son, Joshua Mauran, Jr., under the firm of Mauran and Bullus; and, as the said J. * Mauran, [*529 ] Jr., having been, and is at this time prosecuting mercantile business in that city, on his own account; now, therefore, in consideration of the same, and at the request of Joshua Mauran, Jr., I hereby agree to bear you harmless in regard to the closing up and settlement of the said Joshua Mauran, Jr.'s, former business; and I hereby guarantee you against any loss or liability you may sustain from the former business of said Joshua Mauran, Jr., &c. Joshua Mauran.' Signed, The action was brought by Bullus on this guarantee. On the trial an account against the old concern of Joshua Mauran, Jr., with the firm of Mauran and Bullus, was given in evidence, from which it appeared that the old concern was indebted to the new, the sum of $5,403.75. And it was proved by Joshua Mauran, Jr., that the partnership continued until August, 1839, when the firm failed. That Bullus paid into the partnership stock $29,695.86, and that the witness was unable to pay any thing. That at the time of forming the copartnership, his father, the defendant, was in New York, with whom he conversed relative to the terms of the partnership. That he showed his father the articles, or the minutes from which they were drawn, and is satisfied that the conditions were fully known to him. But the witness stated that he did not know of his father's having any knowledge that the firm were to settle and pay the debts owing by the witness. The witness stated that certain loans were made by the firm to him, in anticipation of the receipts from the old concern, which were charged. After the completion of the articles of copartnership, the witness delivered to his father a paper drawn by the attorney who drew the articles, for his father's signature, and that his father did not Mauran v. Bullus. 16 P. sign the paper, but after his return to Providence, sent the letter of guarantee. Many of the debts of his old concern, the witness stated, became due before sufficient funds could be collected from the same to meet them, and these debts were paid by the firm. That this was a mode of settlement of the accounts of the old concern, not originally contemplated. His father often inquired what the deficiency of the old concern would amount to, but he did not know, to the knowledge of the witness, that the old concern was indebted to the firm. [* 530 ] * That the firm, on their failure, assigned all their property and estate to William D. Robinson, including the debts of the old concern, which amounted to the sum of $12,418.95. These debts were credited to the stock of Joshua Mauran, Jr.; and at the time they were all, except one of George Bucklin, of about $1,800, considered bad; and that one had been released, though the witness considered him bound in honor to pay it. Various accounts between the firm and Joshua Mauran, junior and senior, and other persons, were given in evidence. The defendant introduced his son Suchet Mauran as a witness, who stated that his father brought with him on his return from New York, about the 8th of September, 1836, a bond, binding him to pay the debts of Joshua Mauran, Jr. It was under seal, and the witness read it; and it was, as he believes, in the handwriting of Mr. Bonney, of the city of New York, who wrote the articles of copartnership. That his father would not sign the bond, but sent the letter of guarantee. The bond remained among the loose papers of his father for some time, but after a diligent search could not be found. That the bond, by its terms, required his father to pay all the outstanding debts of Joshua Mauran, Jr., to his creditors, or to whoever might pay them. The evidence being closed, the defendant below moved the court to give the following instructions: 1. That said letter of guarantee of the defendant, dated the 9th of September, contained no authority to the said Mauran and Bullus to pay any part of the debts of the said Joshua Mauran, Jr.'s old concern; that if it authorized any payment of said debts by any person, it was by the said Edward Bullus alone; and that the said Edward Bullus could not recover said sum of $5,403,75, or any part thereof; inasmuch as he had paid no part thereof, the whole having been paid by the said Mauran and Bullus. Which instruction the court refused to give, as prayed for; on the contrary, they instructed the jury that if, from the evidence submitted to them, they were of opinion that at the time of signing said letter of |