omitted to avail himself of a defense, which was equally effective at law as in equity, and he is concluded. (2 Story's Eq., 179; 1 Johns. Ch. R., 465; 9 Wheat., 552.) II. The next ground is, that Redley, Sims's intestate, perpetrated a fraud in the sale of the negroes, for whose payment this debt was originally incurred. The particular point of this objection is not very apparent. The bill says that Redley represented fraudulently, as complainant has been informed and believes, all said slaves to be perfectly sound and healthy, and warranted them, as he has been informed, to be sound and healthy. Whether the sale is sought to be avoided on account of the alleged false and fraudulent representation, or on the ground of the breach of an express warranty of soundness, is not made distinctly to appear. It is manifest that the purchaser never rescinded, or sought to rescind, the sale, on any pretense that it was vitiated by fraud; he holds on to the property purchased, pays through the enforcemet of the law a part of the purchase money, and now, after six years of acquiescence, this ground is brought forward in a court of equity. The bill of sale of the negroes contains no covenant of warranty, and completely falsifies the pretense that one was given; nor was the appropriate remedy, by action for breach of such covenant, ever resorted to. 2. It is wholly unsupported by any evidence in the cause. 3. It appears by the record of the suit, that the then defendants, in an action at law upon one of these notes, endeavored to avail themselves of the same defense, but wholly failed, and a verdict and judgment were rendered against them. See Groves v. Slaughter (15 Pet., 449), which has been again affirmed during the present term. 4. In regard to this particular note, the parties when sued at law omitted to avail themselves of this defense, and are now precluded from making this the ground of invoking the aid of chancery. (See authorities before cited, and see the case of Green v. Robinson, 5 How. Miss. Rep., 80, on the exact point, and Cowen v. Boyce, Ibid., 769.) III. The last objection is, that Redley made this contract in violation or invasion of the provision in the constitution of Mississippi. This ground of appeal to chancery comes with a bad grace from parties who have contin ued to hold the property purchased for a period of six years, without their title being questioned on the ground of an illegal importation. But this point admits of the same answer which has just been given to the former point. It has 204*] been once tried at law and overruled. It was not urged in this case on the trial at law, and it is now too late to make it a ground for equitable relief. In brief, the whole of these objections involve a palpable mistake of the grounds of equitable relief. Chancery will relieve from the effect of a judgment at law which has been obtained by fraud; but it is believed no case can be found in which, after judgment has been obtained at law, which judgment is unimpeachable for fraud, a court of equity has gone be hind the judgment, and looked into the character of the contract in which that suit originated. Upon the whole, and on every ground upon which equitable relief is sought, it is confidently submitted that the decree of the Circuit Court ought to be affirmed, with ten per cent. damages. Mr. Justice DANIEL, after having read the statement of the case prefixed to this report, proceeded to deliver the opinion of the court: In reviewing the ground relied on by the complainant as the foundation of his claim to relief, the second and third, being coincident with the order and progress of the transactions between the parties as stated in the bill, and evincing especially the circumstances and the attitude under which this approach to a court of equity has been made, will be first considered and this examination will be premised by stat ing the following principles of equity jurispru dence, which may be affirmed to be without exception; that whosoever would seek admission into a court of equity must come with clean hands: that such a court will never interfere in opposition to conscience or good faith; and again, and in intimate connection with the principles just stated, that it will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Whenever, therefore, a competent remedy or defense shall have existed at law, the party who may have neglected to use it will never be permitted here to supply the omission, to the encouragement of useless and expensive litigation, and perhaps to the subversion of justice. The effect of these principles upon the statements of the complainant is obvious upon the slightest inspection. The complainant alleges, that the obligation to which he had voluntarily become a party was intentionally made in fraud of the law, and for this reason he prays to be relieved from its fulfillment. This prayer, too, is preferred to a court of conscience, to a court which touches nothing that is impure. The condign and appropriate answer to such a prayer from such a tribunal is this: that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto; you cannot be admitted here to plead your own demerits; precisely, therefore, in the position in which you have placed yourself, in that position we must leave you. And so with respect to the omission by the complainant to *set up at law either the failure or the [*205 illegality of the consideration for which the note was given; no reason is perceived why such a defense should not have been made or attempted. The action at law was founded upon a simple promissory note, a parol contract in legal intendment, and not upon specialty; the consideration was fully open to investigation, and it was surely a sufficient indulgence to the payees of that note to have been permitted once to set up a defense by which payment may have been resisted, whilst the whole consideration received by them for their undertaking would have been withheld, and absolutely possessed and enjoyed by them. But these payees of the note did not stop even here. After the first judgment recovered against them, and after the levy of an execution sued out on that judgment, they voluntarily go forward, the complainant amongst them, execute to the respondent their forthcoming bond, him, springing from the conduct of the reequivalent in effect to a confession of a second spondent or his agents in reference to that judgjudgment, and after these repeated and con- ment and the proceedings had thereupon? The clusive recognitions of their liabilty, they invoke directions given by the attorney for the plaintthe aid of a court which repels whatever is un- in the judgment have been set out in extenso. fair, or even illiberal, to declare that these pro- These directions express upon their face no ceedings, thus solemnly had and evidenced of consideration received or promised for the forrecord, shall be utterly null; that the respond- bearance--no limitation upon the right of the ent shall be stripped of his property without plaintiff at law to proceed upon his execution the promised equivalent, and that property be secured, if not to the complainant, to one with whom he was associated in effecting its relinquishment by the owner. no condition or stipulation of any kind; nor is there a tittle of proof as to the existence of any such consideration, limitation, or agreement, expressed or understood. We see nothing in the case but a voluntary forbearance, which the plaintiff was at perfect liberty to terminate at his pleasure. What say the authorities in relation to a proceeding of this character? In the case of Rees v. Berrington (2 Ves., Jun. ), cited and pressed in the argument, the interposition of the Chancellor was founded upon the ground of an actual and substantive change of the relation and responsibility of the surety, and in such a case his lordship very justly observed, that he would not undertake to calculate the degree of injury which might have flowed from it; that if the situation had in fact been changed, that was sufficient to release the surety altogether, for it was an attempt to im pose on him a responsibility he had never assumed; but in the case before us was there any such change wrought by a mere voluntary forbearance, creating no obligation anywherecontracting with nothing, nor with any person? A few of the numerous cases, both at law and in equity, which are applicable to this question will be adduced. Recurring now to the first ground for relief set up in the bill, being that on which greatest stress is laid-viz., the suretyship of the complainant, and the wrong alleged to have been done him by a change of his position and responsibility, by the indulgence extended to his co-defendant Pinkard-let us test this ground, first, by the proofs upon the record, and next, by trying the accuracy of the deductions attempted to be drawn from them. The promissory note, on which the action at law was founded, is made an exhibit, and it appears that to the name of Pinkard, the first signer of that note, there is added the word "principal," and to the name of each of the other makers is added the word "surety." It is insisted by the respondent, that these designations upon the note had no effect upon the obligations of these parties to him, however it might be supposed to operate upon their relations with each other; that with respect to the respondent all the makers of the note were from the beginning principals, but that at any rate, after their liability was fixed by judgment upon the note, Reynolds v. Ward (5 Wend., 501) It was and still more after their uniting in the forth ruled, that an agreement without consideration, coming bond, in the nature of a second judg- enlarging the time of payment, was not a disment, their equal responsibility as principals charge of the surety to the note. So held on was irrevocably settled. In connection with demurrer to a plea by surety, averring that at this view of the case it may not be irrelevant here the time when the note became due the princito remark, that by the statute of the State of pal was able to pay, and would have paid had Mississippi, promissory notes, though it be not not the *time been extended, and that [*207 so expressed upon the face of them, are de-after the note fell due the principal became inclared in their legal effect to be joint and several. (See Howard & Hutchinson's Statutes of Miss., 578.) The proposition contended for by 206*] *the respondent, were it necessary here to pass upon it, would not be found without support from decided cases. Thus, for instance, it was ruled by Chancellor Kent in Bay et al. v. Tallmadge (5 Johnson's Chancery Reports, 305), that where bail become fixed with the payment of the debt of the defendant, their character of bail ceases; that after judgment and execution against bail and sureties, there is an end of the relation of principal and survey, and the bail cannot claim any advantage against the creditor on the ground of want of diligence in prosecuting the principal debtor. In Prout v. Lennox (3 Wheat., 520), it is laid down by Livingston, Justice, in delivering the opinion of the court, that "the indorser of a note, who has been charged by due notice of the maker's default, is not entitled to the aid of a court of equity as a surety. But without pushing further an investigation which is unnecessary to the decision of the case before us, let it be conceded that the complainant was strictly a surety in the note on which the judgment was ob tained at law; have any of his rights been impaired, or have any new rights grown up to solvent. Held also, in that case, that a promise to pay interest during the time of forbearance was no consideration for such agreement. Bank of Utica v. Ives (17 Wend., 501). Indulgence to the maker of a note, on receiving securities from him, does not discharge the indorser, where there is no valid agreement for giving time of payment for a definite period, and per Nelson, Chief Justice, in this case, "Mere indulgence at the will of the creditor, extended to the debtor, in no way discharges the obligation of the surety; if it did, it would be a most inconvenient and oppressive rule, as then suits must immediately follow the maturity of paper. It is a settled rule, that there must be a valid common law agreement to give time, founded of course on a good consideration, to have this effect." Norris v. Crummie (2 Randolph, 328). It is ruled, that indulgence granted by a cred:tor to the principal debtor will not discharge the sureties of such debtor, unless the creditor shall have bound himself in law or in equity not to pursue his remedy against the principal for a definitive length of time. Hunter's Administrators v. Jett (4 Randolph, 104). A surety will not be discharged by indulgence granted by the creditor to the princi pal debtor, unless such indulgence ties up the hands of the creditor from pursuing the debtor at law; nor will the surety be discharged even then, if the indulgence shall have been given with his knowledge and assent. McKinney's Executors v. Waller (1 Leigh, 434). A mere indulgence to a principal debtor by a creditor, not binding him to suspend his proceedings for any time, though such indulgence be given at the very time the sheriff is about to levy the execution on the property of the principal, and although in consequence of that indulgence the principal debtor has been enabled to remove his property out of the reach of future process, was not, even in equity, a discharge of the surety. Alcock v. Hill (4 Leigh, 622). A creditor suspends execution on a forthcoming bond for several years, but he does so without consideration, and he no wise binds himself to suspend execution for any definitive time, the principal and all the sureties but one become insolvent; and then the creditors sues out execution against the solvent surety. Held, that the surety is not entitled to relief in equity. The requisites in in that case stated as indispensable for absolving the surety are, first, a consideration; second, script of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs. Cited-14 How., 74, 75, 586; 17 How., 445; 4 Otto, 658; 5 Otto, 161; 3 Wood. & M., 506; 5 Dill., 142. THE UNITED STATES, Plaintiff, v. EPHRAIM BRIGGS. Jurisdiction-on division of opinion of circuit court judges, certificate must state particular point. tificate of division in opinion, the point upon which When a case is brought up to this court on a certhe difference occurs must be distinctly stated. Where there was a demurrer,upon three grounds, to an indictment, it is not enough to certify that the court was divided in opinion whether or not the demurrer should be sustained. HIS case came up from the Circuit Court of a promise to indulge: third, the definite nature the United States for the District of Michiof such a promise; and, fourth, the absence of assent by the surety. The last case which will be cited on this point is that of M'Lemore v. Powell et al. (12 Wheaton, 554), in which it was ruled by this court, that an agreement between a creditor and 208*] the principal *debtor for delay, or other wise changing the nature of the contract, in order to discharge the surety, must be an agreement having a sufficient consideration to support it and be binding upon the parties. There is not one of the authorities above cited which does not more than cover the predicament presented by the case under consideration. Those authorities furnish examples af agreements arrangements between creditor and debtor-situations from which something like hardship might possibly spring. In the present case. there is neither contract, arrangement, nor even a scintilla of right, on which either law or equity can lay hold. The complainant, after permitting a judgment on the note, without attempting a defense at law, and after execution was levied upon the judgment, voluntarily united in withdrawing the effects of his associate from the operation of that process, and by this very act bound himself with the force of a second judg ment for the validity and for the satisfaction of the demand. After this course of conduct, he addresses himself to a court of equity, praying that court to undo all that he has voluntarily and deliberately performed, and in order to accomplish this end, he seeks to stamp his own acts with illegality from their very incep tion. For such purposes he surely would have no standing and receive no countenance in a court of equity, upon any of its known principles. We hold the decree, therefore, of the Circuit Court, dissolving the injunction awarded the complainant below, and dismissing his bill with costs, to be corrrect; and that decree is accordingy affirmed. ORDER. gan, on a certificate of division in opinion. The circumstances of the case are thus stated by the Chief Justice, as introductory to the opinion of the court: *This case comes before the court [*209 upon a certificate of division from the Circuit Court of the United States for the District of Michigan. The defendant was indicted under the Act of Congress of March 2, 1831, ch. 66 (4 Statutes at Large, 472), for unlawfully cutting timber upon certain lands of the United States, called the Wyandotte reserve. He demurred to the indictment upon the following grounds: First. Because the offense stated and set forth in the indictment is not an offense under the statute of the United States, punishable criminally by indictment. Second. Because, under the statutes of the United States, trespass on the public lands of the United States is in no case an offense punishable criminally by indictment; but it is either a mere trespass, punishable by action of trespass at common law, or by action of debt in the statute. Third. For that the said indictment is in other respects informal, insufficient, and defective. The United States joined in demurrer; and the record states, that the demurrer coming on to be heard, and having been argued by counsel on either side, the opinions of the court were opposed as to the point whether said demurrer should be sustained; and thereupon it was ordered that the cause be certified to this court on the indictment, demurrer, and joinder thereto. The cause was argued by Mr. Clifford (Attorney General) and Mr. Norvell, on behalf of the United States. Mr. Chief Justice TANEY, after stating the case as above, proceeded to deliver the opinion This cause came on to be heard on the tran- of the court: Error, v. JOHN WILSON. of error. Where a writ of error was allowed, the citation The Act of Congress of April 29, 1802, ch. | JOHN C. SHEPPARD ET AL., Plaintiffs in. 31, sec. 6, provides, that whenever a question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point on which the disagreement shall happen, upon the request of either party, shall be stated, Jurisdiction-practice-Territory of Iowa-writ and certified to this court, to be finally decided. It is this act alone that gives jurisdiction to the Supreme Court in cases of division of opinion in the Circuit Court, and the jurisdiction thus given must of course be exercised in the manner pointed out in the law. Consequently, we are not authorized to decide in such cases, unless the particular point upon which the judges differed is stated and certified. (United States v. Bailey, 9 Pet., 272; Adams v. Jones, 12 Pet., 213; White v. Turk et al., 12 Pet., 238.) Now, in the case before us, the question up on which the disagreement took place is not certified. The difference of opinion is indeed stated to have been on the point whether the demurrer should be called a point in the case, should be sustained. But such a ques 210*] *within the meaning of the act of Congress; for it does not show whether the difficulty arose upon the construction of the act of Congress on which the indictment was founded, or upon the form of proceeding adopted to inflict the punishment, or upon any supposed defect in the counts in the indictment. On the contrary, the whole case is ordered to be certified upon the indictment, demurrer, and joinder, leaving this court to look into the record, and determine for itself whether any sufficient objection can be made in bar of the prosecution; and without informing us what questions had been raised in the Circuit Court, upon which they differed. Neither can this omission in the certificate be supplied by the causes of demurrer assigned by the defendant. The judges do not certify that they differed on the points there stated, or on either of them, and indeed the third ground there taken is as vague and indefinite as the certificate itself, and could not therefore help it, even if it could be invoked in its aid. But we are bound to look to the certificate of the court alone for the question which occurred, and for the point on which they differed, and as this does not appear, we have no jurisdiction in the case, and it must be remanded to the Circuit Court. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; and it appearing to this court, upon an inspection of the said transcript, that no point in the case, within the meaning of the act of Congress, has been certified to this court, it is thereupon now here ordered and adjndged by this court, that this cause be, and the same is hereby dismissed; and that this cause be, and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law. Cited-18 How., 568; 3 Wall., 255. signed, and the bond approved, by the Chief Justice of the Territorial Court of Iowa, it was a sufficient compliance with the statutes of the United' States. Under the acts of 1789 and 1792, the clerk of the Circuit Court where the judgment was rendered may issue a writ of error, and a judge of that court may sign the citation and approve the bond. *The Act of 1838, providing that writs of error,[*211 and appeals from the final decision of the Supreme Court of the territory, shall be allowed in the same the circuit courts of the United States, gives to manner and under the same regulations as from the clerk of the Territorial Court the power to issue the writ of error, and to a judge of that court the power to sign the citation, and approve the bond. M. GRANT case upon two grounds. R. moved to dismiss the writ of 1st. Irregularity in the allowance of the writ of error, and the citation. 2d. That since the rendition of the judgment Iowa had become a State, and cited 3 How., 534; 4 How., 590. Mr. C. Coxe opposed the motion. He stated that the writ of error had been allowed, the citation signed, and bond approved, all by a judge of the Supreme Court of the Territory of Iowa. He then referred to the acts of 1792: and 1838, and contended that there was no irregularity. Mr. Hastings controverted these views, and sustained the motion to dismiss. Mr. Chief Justice TANEY delivered the opinion of the court: This case is brought up by a writ of error to the Supreme Court of the Territory of Iowa. A motion has been made to dismiss it, upon the ground that the writ of error was allowed, the citation signed, and the bond approved, by the chief justice of the Territorial Court, and not by one of the justices of a circuit court of the United States, or a justice of the Supreme Court, as required by the Act of 1789, ch. 20, sec. 22. The Act of 1838, ch. 96, sec. 9, under which this writ of error is brought, provides that writsof error and appeals from the final decision of the Supreme Court of the territory shall be allowed and taken to this court in the same manner and under the same regulations as from the circuit courts of the United States, where the value in controversy shall exceed one thousand dollars. And the Act of 1789, which regulates writs of error from the circuit courts, requires the citation to be signed by a judge of the Circuit Court in which the judgment was rendered, or by a justice of the Supreme Court; and that the judge or justice signing the citation shall take good and sufficient security for the prosecution of the writ of error, and the payment of the damages and costs if the plaintiff in error shall fail to make his plea good. And the Act of May 8, 1792, ch. 36, sec. 9 (1 Stat. at Large, 278), authorizes the clerks of the circuit courts to issue writs of error in the same manner as the clerk of the Supreme Court might have issued them under the Act of 1789. objection no longer exists, and the writ of error, Grant, on a prior day of the present term, to Under these two last mentioned acts of Congress, the judgment of a circuit court may be 212*]brought up for re-examination to the *Supreme Court, by a writ of error, issued by the clerk of the court in which the judgment was rendered, and the citation may be signed and the bond approved by a judge of the said court. And as the district judge is a member of the Circuit Court when sitting for his district, he may sign the citation and approve the bond. The Act of 1838 having declared that writs of error may be prosecuted from the judgments of the Su-support of the said motion, it is now here orpreme Court of the Territory of Iowa to this dered by this court, that the said motion be, court, in the same manner and under the same and the same is hereby overruled. regulations as from circuit courts of the United S. C., 6 How., 260. States, it would seem to be very clear that the writ of error may be issued by the clerk of the territorial court, and the citation signed and MINERS' BANK OF DUBUQUE, Plaintiff's the bond approved by one of the judges. This is the plain import of the words of the law; and we think they cannot justly receive any other interpretation. There is certainly nothing in the object and purpose of the act of Congress calculated to create any doubt upon this subject, or to call for a different construction. For it can hardly be supposed that Congress intended to deny to suitors in the territorial courts the conveniences and facilities which it had provided for suitors in the courts of the United States when sitting in a State, and to require them to apply to the clerk of the Supreme Court for a writ of error, and to a justice of the Supreme Court to sign the citation and approve the bond, when these duties could be more conveniently performed by the clerk and a judge of the court of the territory, and indeed far better and more safely performed, as regards the approval of the bond, since the judge of the Supreme Court would have frequently much difficulty in deciding upon the sufficiency of the sureties in a bond executed in a remote territory. The construction contended for would in its results be very nearly equivalent to an absolute denial of the writ of error. We think it cannot be maintained, and that the writ of error in this case was lawfully issued by the clerk of the Supreme Court of the territory, and the citation and bond properly signed and approved by the Chief Justice of the court. Another objection was taken upon the motion to dismiss. It was insisted, that, Iowa having been admitted into the Union as a State since the writ of error was brought, the Act of 1838, regulating its judicial proceedings as a territory, is necessarily abrogated and repealed; and consequently there is no law now in force authorizing this court to re-examine and affirm or reverse a judgment rendered by the Supreme Court of the territory, or giving this court any jurisdiction over it. This difficulty has, however, been removed by an act of Congress, passed during the present session (and since this motion was made), which authorizes the Supreme Court to proceed to hear and determine cases of this description.' And as this 1-The court refrained from pronouncing its opinion in this case, and also in one from Florida, until Congress might pass an act to supply the omission of previous legislation in relation to writs of error and appeals from their territorial courts upon judgments and decrees rendered before their admission into the Union as States. An act was passed, as the court understood, with this view, and then the above opinion was given. But it ap in Error, v. THE UNITED STATES ex rel. JAMES Jurisdiction-judgment, when not final. under the following circumstances, is not a final A judgment of a court, sustaining a demurrer judgment which can be reviewed by this court. Information in the nature of a quo warranto, calling upon the President, Directors, and Comwhat warrant they claimed the right to use the pany of the Miners' Bank of Dubuque to show by franchise. Plea, referring to an act of incorporation. been repealed. Replication, that the act of incorporation had Rejoinder, that the repealing law was passed without notice to the parties, and without any evidence of misuse of the franchise. Demurrer to the rejoinder. Joinder in demurrer. Judgment of the court, did not prevent the parties from continuing to exercise the franchise, and therefore is not a final judgment. Sustaining the demurrer, without any further The writ of error must, upon motion, be dismissed. A MOTION was made by Mr. Grant and Mr. case, upon the same grounds as in the precedHastings to dismiss the writ of error in this ing case of Sheppard et al. v. Wilson, and upon the additional ground that the judgment in this case was not a final judgment. Mr. Webster. If it was not a final judgment, the court below is abolished, and the counsel on the other side may make whatever use they can of the record. ion of the court: This case has been brought here by a writ of error to the Supreme Court of the Territory of Iowa. A motion has been made to dismiss the writ upon several grounds, and among others, upon the ground that the judgment of the territorial court is not a final one; and, therefore, under the Act of June 12, 1838, ch. v. Anderson, 5 Wheat., 291. pears, that owing, it is supposed, to some misapprehension, the act provides for Florida and Michigan, and Iowa is not included in it. Act of Feb. 22, 1847, ch. 17. There is, therefore, no law relating to Iowa. This note has been shown to and approved by the Chief Justice, who delivered the opinion of the court. |