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U.S. Supreme Court

Creath's Administrator v. Sims, 46 U.S. 5 How. 192 192 (1847)

Creath's Administrator v. Sims

46 U.S. (5 How.) 192


The following principles of equity jurisprudence may be affirmed to be without exception -- namely 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; that it will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence.

Therefore, where a complainant prays to be relieved from the fulfillment of a contract, which was intentionally made in fraud of the law, the answer is that however unworthy may have been the conduct of his opponent, the parties are in pari delicto. The complainant cannot be admitted to plead his own demerits.

Nor is it any ground of interference when a complainant applies to be relieved from the payment of a promissory note given under the above circumstances, upon which judgment had been recovered at law. The consideration upon which the note was given was then open to inquiry, and it is a sufficient indulgence to have been permitted once to set up such a defense.

The cases examined, sowing how far and under what circumstances the liability of a surety becomes fixed upon him as a principal debtor.

Where the plaintiff in a suit voluntarily abstains from pressing the principal debtor, but receives no consideration for such indulgence, nor puts any limitation upon his right to proceed upon his execution, whenever it may be his pleasure to do so, this conduct furnishes no reason for the exemption of the surety from liability, and especially where the surety had united with his principal in a forthcoming bond.

The authorities upon this point examined.

The reporter finds the following statement of the case prefixed to the opinion of the Court, as delivered by MR. JUSTICE DANIEL. chanrobles.com-red

Page 46 U. S. 193

This is an appeal from a decree of the Circuit Court of the United States for the 9th Circuit and Southern District of Mississippi. The facts of this case, so far as it is necessary to set them forth, are as follows:

On 25 June, 1838, A. G. Creath, together with William N. Pinkard (who signed himself as principal), John I. Guion, and Samuel Mason executed their promissory note to the appellee, as administrator of John C. Ridley, for the sum of $10,392 25/100 payable on 1 October following at the branch of the Planters' Bank at Vicksburg in Mississippi. Upon failure to pay this note, an action was instituted thereupon in the circuit court above mentioned; a judgment was recovered for the amount at the May term of the court, 1839, and upon a fieri facias sued out upon this judgment, the marshal having returned on 2 October that he had levied upon certain slaves enumerated in his return, the parties to the promissory note, the defendants in the judgment, together with a certain T. L. Arnold, on 2 October, 1839, executed to the plaintiff in the action a forthcoming or delivery bond, which has the force of a judgment, by virtue of which the property levied upon was released. The condition of this forthcoming bond not having been complied with, a fieri facias was, on 16 December, 1839, sued out thereupon, and on this process the marshal, on 24 March, made a return that it had been levied on several lots and parts of lots in the Town of Vicksburg, which were not sold by order of the plaintiff's attorney. A copy of the order referred to by the marshal is made a part of the record, and is in the following words:

"The marshal is authorized to levy on property enough of the defendants to pay the plaintiff's execution, and return the levy to court without selling or advertising for sale, unless other judgments younger than this are pressed to an amount to endanger this debt; if so, the property will have to be sold March 24, 1840."

On 21 May, 1840, a venditioni exponas was sued out, ordering the sale of the property which had been levied upon, and on that process there was a return that there had been no sale for the want of bidders. A second venditioni exponas was next sued in November, 1840, and on this the marshal returned that the property had been sold on 2 March, 1841, and the proceeds applied to the execution. The amount made by this sale does not appear by the return of the officer, but it is stated, in the answer of the respondent, to have been $101 only. In consequence of the insufficiency of the sale, under the last venditioni exponas, to satisfy the judgment, process of fieri facias, alias fieri facias, pluries and alias pluries fieri facias was sued out, until the autumn of the year 1842, when the marshal, having levied upon certain real and personal estate of the said A. G. Creath, as set forth in the return of that officer, and in his advertisement for the sale thereof, the complainant, on 25 November, 1842, obtained from the district judge chanrobles.com-red

Page 46 U. S. 194

of the Southern District of Mississippi an injunction to stay all proceedings upon the judgment recovered against him and others at law. The grounds set forth in the bill, and on which relief is prayed, are the following:

1st. That the complainant, was a mere surety in the note on which the action was instituted, and that the indulgence granted by the direction to the marshal after judgment obtained was in fraud of defendant's rights as a surety; was in its operation, in fact, injurious to him, from the deterioration of the property of Pinkard the principal during the interval of that indulgence; was an infraction of the undertaking of the surety, and therefore absolved him from all responsibility.

2dly. That the instrument on which the judgment was obtained was one of several notes given for the purchase of a number of slaves sold by the intestate of the plaintiff to Pinkard, several of whom were unsound, although, as the plaintiff charges, they were (as he believes) warranted to be sound and healthy.

3dly. That although the slaves for which the notes were given were delivered in the State of Tennessee, yet the contract for them was in fact made at Vicksburg, in Mississippi, and was designed to be, and was in reality, a fraud upon the Constitution and laws of Mississippi, forbidding the introduction of slaves, as merchandise, within that state.

The respondent denies that the complainant, Creath, could properly be regarded as a surety, either in the note on which the action at law was instituted, or in the forthcoming bond executed posterior to the judgment; but insists that in both the complainant must, with respect to the respondent, be considered as a principal, equally with the other makers of the note, or obligors in the forthcoming bond. But even could Creath be viewed as a surety, it is further insisted that he could have no just cause of complaint, because, in the short space of five weeks, during which the execution was held up, there could be no material depreciation in property of any intrinsic value; and because, moreover, the forbearance was merely voluntary on the part of counsel of the respondent, was wholly without consideration, and without any agreement for delay with either of the parties, and might have been terminated at any moment, at the will of the respondent, or at the request of either of the defendants, had this been desired by them. The allegations in the bill of a warranty of the soundness of the said slaves, and of the making of the contract of sale within the State of Mississippi, and in fraud of the Constitution and laws of that state, are, in the first instance, directly denied; and it is next insisted by the respondent, that these are objections which, if they ever had any validity, should have been urged as grounds of defense to the action at law. A copy of the bill of sale from Ridley of Pinkard and others, conveying the slaves, is made an exhibit in the cause, and upon the face of that instrument there is no warranty of anything except of the title to the property conveyed. Several depositions were taken on chanrobles.com-red

Page 46 U. S. 195

behalf of the complainant, and some exhibits filed by the respondent, but as these are deemed immaterial to the questions on which the decision of this cause properly depends, they will not be made subjects of comment. Upon a final hearing before the circuit judge, on 15 May, 1844, it was decreed, that the injunction awarded by the district judge on the 25th of October, 1842, should be dissolved, and the bill of the complainant dismissed with costs.

From this decree a appeal was taken to this Court. chanrobles.com-red

Page 46 U. S. 204


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