It is clear that the stay of the execution was produced by an agreement between Pinkard, the principal, and the attorney of the plaintiff. The answer of the defendant does not deny this. On the contrary, it. would seem to be admitted. For it says: "This respondent is informed, and believes, that the only reason which influenced the attorney of record to consent to one day's time in the sale, and the only reason assigned to him by Pinkard when asking such time, was to enable Pinkard, if possible, to complete some negotiations that he had then going on, to relieve his property," etc. "And this respondent believes he (the complainant) well knew that said Pinkard and the attorneys of record in this and other cases were trying to aid him, Pinkard, to get through his difficulties," etc.

either of the parties, and might have beened this fieri facias on lots No. 93, etc., and not
terminated at any moment, at the will of the sold by order of attorney."
respondent, or at the request of either of the Another execution did not issue on the judg-
defendants, had this been desired by them.ment until the 21st of May, 1840, that being
The allegations in the bill of a warranty of the the date of the venditioni exponas.
soundness of the said slaves, and of the mak-
ing 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 re-
spondent, 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 to 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 behalf of
195*] *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 the
15th of May, 1844, it was decreed, that the in-
junction 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, an appeal was taken to this
court.

Proof to the same point is contained in the
deposition of Pinkard. *He says: "The [*196
stay of execution was granted at my request,
and the only consideration that I knew for
granting it was, that the attorney, F. Norcom,
who granted it, believed I would be able to pay
it in a short time, as he knew it was the first
levy that had ever been made on my property,
and that he considered it ample to pay every
dollar against me under any circumstances."
If, however, it should be supposed that the
Mr. Crittenden, after stating the case, pro- | evidence does not establish an agreement for
ceeded with the argument.
the delay, the foregoing statement of the wit-
The question arising upon the case thus pre-ness, together with other proof to which the
sented is, whether the complainant, as
the complainant, as the
surety of Pinkard, is discharged, in equity,
from his liability as such.

The cause was argued by Mr. Crittenden for the appellant, and by Mr. Coxe and Mr. Chalmers for the appellee.

The proof in the cause leaves no room to doubt that he was a surety. Being such, it is contended that the successive suspensions of the executions of the 16th of December, 1839, and of the 15th of March, 1841, discharge the plaintiff as a surety. The former execution was levied on the 24th of March, 1840, and the real estate levied on was not sold until the 2d of March, 1841, being an interval of eleven months and a few days. Contemporaneously with the date of the execution, the marshal was directed by the plaintiff's attorney "to return the levy to court without selling or advertising for sale," unless other judgments were pressed to an amount endangering the debt. The marshal returned on the execution, "Lev

Can, 7 Paige, 451; Davis v. People, 1 Gilman, 409; 10 Peters, 257, 10 Johns. 587, 3 Met. 255; 4 N. J. 112, 11 Wend. 312.

The law does not stop to inquire whether the surety is injured. Bangs v. Strong. 7 Hill, 250. The agreement must, however, be a valid and binding one, a mere voluntary promise or agreement without any consideration to extend the time of payment will not discharge the surety, because it is not binding and does not prevent immediate proceedings. Draper v. Romeyn, 18 Barb. 166; | Reynolds v. Ward, 5 Wend. 501; Halliday v. Hart. 3 N. Y. 474; Van Rensselaer v. Kirkpatrick, 46 Barb. 194; Anderson v. Mannon, 7 B. Mon. 217: Vilas v. Jones, 10 Paige, 76; Hunter v. Clark, 28 Tex. 159; Thompson v. Watson, 10 Serg. 362; Wright v. Watt, 52 Miss. 624.

The time of the extension must be definitely fixed, for a sufficient consideration and, a fixed time. Gardner v. Watson, 13 Ill. 347; David v. Malone, 48 Ala. 429.

attention of the court will be called, sufficiently
maintains the position, that, by the postpone-
ment of the sale, the risk of the surety was
materially increased, and the property levied
on, which he had a right to rely on for his
indemnity, was greatly depreciated in value.

The bill charges, that "the property on
which the execution was levied, together with
other property of Pinkard's not levied on, was,
at the time of the levy, and until after the re-
turn term of the execution, amply sufficient to
pay, not only this judgment, but all other
judgments and liens of prior date to the time
when the lien of this judgment took effect;
and had said sale been made, said judgment
would have been satisfied out of the property of
said Pinkard."

It also charges, "that after the return term of the execution by which said property was

Part payment of the debt does not constitute a valid consideration. King v. State Bk. 9 Ark. 185; Matthewson v. Strafford Bk. 45 N. H. 104; Halliday v. Hart, 30 N. Y. 274.

If the agreement is valid the surety is discharged though at the time of the extension the principal was actually insolvent. Huffman V. Hulbert, 13 Wend. 375; Gahn v. Neincewicz, 11 Wend. 312.

An usurious agreement to extend time will discharge a surety. The usury can only be set up by the borrower or those claiming under him. It is not available to the lender. Scott v. Harris, 76 N. C. 205: Brown v. Prophit, 53 Miss. 649; Myers V. First Nat'l B'k. 78 Ill. 257; Billington v. Wagoner, 33 N. Y. 31, 7 Hill. 391, 9 N. Y. 241; 1 Barb. 271; 4 Barb. 346; Draper v. Trescott, 29 Barb. 401: La Farge v. Herter, 9 N. Y. 241. This was, however, questioned in Silas v. Jones, 1 N. Y. 274, by some of the judges; and see, contra, Burgess v. Dewey, 33 Vt. 618.

levied on, it became (as indeed all real property | ciple could be built." Nor will the court, it is had) greatly depreciated in value, in conse- contended, look into the incumberances upon quence of commercial embarrassments and the property, alluded to in the defendant's other causes, and there being other judgments, of younger date, against said Pinkard, the effect of the suspension of said sale was thought by many to give those younger judgments the preference at least the doubt which this suspension created on this point caused said property, which was sufficient at the time of the levy to have twice paid the judgment, to sell for little or nothing."

This evidence, connected with the additional statement of the deponent, that, "at the time the stay was granted, the amount of liens older than this judgment was comparatively small, not exceeding $20,000," shows very clearly that the interests of the complainant were materially affected by the suspension of the execution; and that if the property had been reg-1 Munf. 269, the Court of Appeals of Virularly sold, it would have brought much more than it produced on the final sale. The court will not inquire into the degree of the injury received by the surety, for that would lead, in the language of Lord Loughborough (Rees v. Berrington, 2 Ves. Jun. 543), "into a vast variety of speculation, upon which no sound prin

executions, such direction being given without | from having the full benefit and effect of such their concurrence. judgment.

1. It appears from the record, that Sims brought his action in the Circuit Court at the May Term, 1838, against sundry defendants upon the same promissory note. The declaration in this case sets forth a joint promise by Pinkard, as principal, Creath, Guion, and Mason, as sureties, on the 25th June, 1838, to pay on the 1st October, 1838, to the plaintiff, or order, the sum of $10,392.57, and it avers a joint responsibility on all the parties defendants. *The defendants all united in [*200 the plea of the general issue, and upon the trial the jury found a general verdict against all, upon which judgment was entered.

The case of Jones v. Bullock, 3 Bibb. 467, is I. The alleged suspension of the execution directly to the same effect. There the party which had been levied upon the property of interested in an execution directed it to be Pinkard. stayed after it had been levied. The court say: "The execution which was levied upon the property of the principal debtors was postponed by the creditor without the privity or consent of the complainants. This course of proceeding evidently tends to their prejudice as securities; and it is a principle recognized by courts of chancery and perfectly consonant to the dictates of natural justice, that any arrangement between the creditor and principal debtor, for the easement of the latter, and to the prejudice of the securities, will, if the securities are not privy to or approve of such arrangement, operate in equity to release them from their responsibility." And the court directed a decree, making the injunction of the surety to the judgment perpetual.

199*] *In The Bank of Steubenville v. Carroll, 5 Ohio, 207; S. P., Bank of Steubenville v. Hoge, 6 Ohio, 17, the court held, that if the principal at the instance of the creditor confess a judgment with a stay of execution, the sureties are discharged.

I will merely direct the attention of the court, without comment, to the question presented by the record as to the consideration of the note on which the judgment was rendered.

On the whole, it is submitted that the decree of the Circuit Court is erroneous, and ought to be reversed.

Mr. Coxe and Mr. Chalmers, for the appellee: The errors alleged in the decree, so far as we can learn them from the record, are supposed to be three.

Upon this judgment a writ of fieri facias issued against all the defendants jointly. Upon this writ the marshal returned a levy upon sundry slaves, and that he had taken a forthcoming bond, with Thomas L. Arnold as surety, which bond is set forth in the record.

This bond having been forfeited, another fieri facias issued against all the parties, including all the defendants in the original suit, together with Arnold, the security, but without designating him as such. The marshal returned, that he had levied upon certain real estate, designated, "not sold by order of attorney." The levy does not indicate to which of the defendants the property levied on belonged, and the order of plaintiff's attorney, set forth in the bill, and in the transcript of record, does not name any one of the defendants to whom indulgence was to be granted. Whatever favor was granted would seem to have been extended equally to all. This order, as well as the levy, bears date 24th March, 1840. May 21, 1840, a venditioni exponas issued in like manner, without distinction of parties, which was returned, "Not sold for want of bidders." An alias issued on the 3d 2. That the original contract for the sale of December, 1841, which was returned, "Sold to the negroes made by Colonel Ridley, and for S. S. Prentiss, and proceeds applied." March part of the purchase money of which the note 15th, 1841, a pluries issued, which was stayed in which this suit was originated was given, as against the other defendants. June 8th, was null and void, on the ground of fraud in 1841, an alias pluries issued, to which the marthe vendor in making the sale, either because shal returned a levy on certain specified propof his false representations as to the soundness erty of Pinkard. Subsequent process was of the slaves when sold, or because of his hav-issued, but the fieri facias which was enjoined ing made an actual warranty of such soundness, does not appear in the record. which was broken.

1. That complainant Creath was exonerated from his responsibility by the postponement of the sale of Pinkard's property, which had been levied upon under the execution issued upon the judgment obtained upon the forthcoming bond.

3. That the original contract as aforesaid was void, because of the violation of the provision of the constitution of Mississippi, prohibiting the importation of slaves.

The only act complained of as an undue act of forbearance, or giving of time, is that of March 22d, 1840; quære, if not March 24, 1840. This obviously was in no respect detrimental to complainant. It was an indulgence, if any, equally extended to all the defendants; and if any contract of forbearance is to be inferred from it, all were parties; neither has cause of complaint.

The decree of the Circuit Court does not show upon its face whether these grounds were overruled, because not supported in point of fact, or because under the circumstances they were not deemed to constitute a legal defense But what was then the position of the parties? to the action. In vindicating the correctness A judgment at law had been obtained against of this decree, the counsel for the appellee feel all jointly. The responsibility of each was then themselves fully authorized to sustain it as well fixed. The plaintiff was at perfect liberty to upon the law as the facts. They therefore in-issue an execution, or to withhold it, to issue sist, that neither of these grounds of defense is established by the proof in the cause; and, second, not under circumstances which justify the interposition of a court of equity to prevent a party who has obtained a judgment at law

against all or any, to compel payment of his debt from any or either.

Even if the engagement of Creath was a subsidiary one at any time, which is denied, it had become absolute and primary by the ren

dition of the first judgment against him. The right of the plaintiff was perfected. He might now pursue his remedy against either or all, and the omission to proceed against one, or even a positive indulgence granted to one, would in no degree impair his rights as against any other.

cases cited in the note to that case (Phil. ed.) fully illustrate the distinctions which exist.

*3. The act complained of was not [*202 one which, in any case, and with the most rigid application of the most favorable decisions in favor of sureties, would operate a discharge. No peculiar benefit is granted to the so-called principal. No especial forbearance as regards him. The order is general as to all the defendants in the execution.

But the strength of the appellee's case does not rest here. He did take out execution; he caused a levy to be made; and complainant 201*] *again, with his associates, enters into Nor was there any agreement obligatory on a new and solemn instrument, under hand and the parties to grant indulgence to the principal seal, in the shape of a forthcoming bond. This debtor. In Reynolds v. Ward, 5 Wend. 501, bond created a new and substantive contract; it was held that an agreement, without considand, being forfeited, gave rise to another judg-eration, by a creditor with a principal debtor, ment, comprehending all the parties to it. enlarging the time for the payment of a note, Again, plaintiff had a perfect right to proceed does not discharge the surety. against one or all; to direct the marshal to levy upon any property of any one of the defend-dulgence to the maker of a note, on receipt of ants. He did issue execution, a levy was made, a sale advertised, when complainant resorted to equity, and obtained an injunction. The first question arising in the case is, whether the original direction given to the marshal, prior to the forthcoming bond, to the forfeiture of that bond, the judgment upon it, and the issue of the fieri facias, invalidate all these subsequent proceedings, and discharge complainant's liability.

For the appellee it is contended, that no such legal or equitable consequences result.

1. Because, by the terms of the original note, all the parties were equally bound, jointly and severally. There was no primary responsibility in one, or a contingent and subordinate responsibility in the other.

Bank of Utica v. Ives, 17 Wend. 501. Insecurity from him, does not discharge the indorser, where there is no valid agreement extending the time for payment for a definite period. Nelson Ch. J., in this case, distinctly says: "Mere indulgence at the will of the creditor, extended to the debtor, in no way impairs 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 well settled, there must be a valid common law agreement to give time, founded of course upon a good consideration, to have this effect."

In M'Lemore v. Powell, 12 Wheat. 554, this court, after a review of the authorities in the case of an indorser while holding merely that character, held that a mere agreement with the drawers for delay, without any consideration for it, and without any communication with, or assent of, the indorser, is no discharge of the latter, after he has been fixed in his responsibility by the refusal of the drawer and due notice to himself.

If such be the law, as thus laid down by the unanimous voice of this court, and the authority of this decision has never been questioned, a fortiori the complainant in this case was not discharged by the facts which he avers in his bill; as between himself and the creditor he never occupied the position of a surety. The designation of the relative characters of the parties to the note was simply to indicate their relative rights and obligations as among themselves, to confer upon the sureties the right of complete indemnification as against their principal, and of contribution among themselves. The order of the attorney to the marshal, upon which complainant relies, is destitute of every feature and character which has hitherto been regarded by courts as requisite to operate the results sought to be deduced from it.

2. Because, even had such been the case, by the judgment all became principals. Even in the case of indorsers, whose contract is confessedly conditional and contingent, such is the law. Lenox v. Prout, 3 Wheat. 520, is express upon this point. It was there held, that, when judgment has been obtained against the drawer and indorser, both become principals; and the creditor ought not to be restrained by any fear of exonerating the indorser from countermanding the service of any execution he may have issued, and proceeding immediately, if he chooses, on the judgment against the indorser. But it is obvious, that in this case the designation in the original note of one of the parties does not have this effect. 5 Johns. Ch. R. 315. In the case of Bay v. Tallmadge, which was, in many particulars, analogous to the present, but in which bail, who are always especially favored, sought to be exonerated in consequence of the postponement of proceedings against their principal, Chancellor Kent says, "that even an express dissent by the bail will not discharge them from their obligation to pay the judgment against them. Their priv- If further answer be required upon this ileges as bail were lost, and they had become point, it will be found in the fact that the obfixed as principal debtors." I am not aware of jection comes too late. If ever available, it any case that has ever imposed upon the cred- should have been urged before the issue of the itor the necessity of peculiar diligence against execution upon which the forthcoming bond the principal, on the ground of the still subsist- was given, before judgment had upon that ing relation of principal and surety, after judg-bond-the forfeiture of which was a satisfacment and execution against the bail or surety. tion and extinguishment *of the origi- [*203 It becomes, then, too late to inquire into the an-nal judgment. King v. Terry, 6 Howard's tecedent relations of the parties. Those relations become merged in the judgment.

The case of Rees v. Berrington, 2 Ves. Jun. 540, is a leading case upon this point, and the

Miss. Rep. 513; The United States Bank v. Patton, 5 How. Miss. Rep. 200-before the execution against which the injunction was prayed. With full knowledge, complainant

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.

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

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 per-relief, the second and third, being coincident fectly 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 re-dence, which may be affirmed to be without scinded, 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 enforcement 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 convenant of warranty, and completely falsifies the pretense that one was given; nor was the appropriate remedy, by action for breach of such convenant, 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.

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 stating the following principles of equity jurispruexception; 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 inIn brief, the whole of these objections in- dulgence to the payees of that note to have volve a palpable mistake of the grounds of been permitted once to set up a defense by equitable relief. Chancery will relieve from the which payment may have been resisted, whilst effect of a judgment at law which has been ob- the whole consideration received by them for tained by fraud; but it is believed no case can their undertaking would have been withheld, be found in which, after judgment has been and absolutely possessed and enjoyed by them. obtained at law, which judgment is unimpeach- But these payees of the note did not stop even able for fraud, a court of equity has gone be- here. After the first judgment recovered against hind the judgment, and looked into the charac-them, and after the levy of an execution sued ter of the contract in which that suit origina-out on that judgment, they voluntarily go forted. ward, the complainant amongst them, execute

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 continued 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.