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 impose on him a respon-
sibility he had never assumed; but in the case
before us was there any such change wrought
by a mere voluntary forbearance, creating no
obligation anywhere-contracting 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.
It was

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 judgment, and after these repeated and con- judgment and the proceedings had thereupon? clusive recognitions of their liability, they invoke The directions given by the attorney for the the aid of a court which repels whatever is un- plaintiff in the judgment have been set out in fair, or even illiberal, to declare that these pro- extenso. These directions express upon their ceedings, thus solemnly had and evidenced of face no consideration received or promised for record, shall be utterly null; that the respond- the forbearance-no limitation upon the right ent shall be stripped of his property without of the plaintiff at law to proceed upon his exethe promised equivalent, and that property be cution-no condition or stipulation of any kind; secured, if not to the complainant, to one with nor is there a title of proof as to the existence whom he was associated in effecting its relin- of any such consideration, limitation, or agreequishment by the owner. ment, expressed or understood. We see nothRecurring now to the first ground for relief ing in the case but a voluntary forbearance, set up in the bill, being that on which greatest which the plaintiff was at perfect liberty to stress is laid-viz., the suretyship of the com- terminate at his pleasure. What say the auplainant, and the wrong alleged to have been thorities in relation to a proceeding of this done him by a change of his position and re- character? In the case of Rees v. Berrington, sponsibility, by the indulgence extended to his 2 Ves. Jun., cited and pressed in the argument, co-defendant Pinkard-let us test this ground, the interposition of the Chancellor was foundfirst, by the proofs upon the record, and next, ed upon the ground of an actual and subby trying the accuracy of the deductions at- stantive change of the relation and responsibiltempted to be drawn from them. The prom-ity of the surety, and in such a case his lordissory note, on which the action at law was ship very justly observed, that he would not founded, is made an exhibit, and it appears undertake to calculate the degree of injury that to the name of Pinkard, the first signer of that note, there is added the word "principle," 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 principles, but that at any rate, after their liability was fixed by judgment upon the note, and still more after their uniting in the forthcoming bond, in the nature of a second judgment, their equal responsibility as principals was irrevocably settled. In connection with this view of the case it may not be irrelevant here to remark, that by the statute of the State of Mississippi, promissory notes, though it be not so expressed upon the face of them, are declared 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 Bank of Utica v. Ives, 17 Wend. 501. Into pass upon it, would not be found without dulgence to the maker of a note, on receiving support from decided cases. Thus, for instance, securities from him, does not discharge the init was ruled by Chancellor Kent in Bay et al. dorser, where there is no valid agreement for v. Tallmadge (5 Johnson's Chancery Reports, giving time of payment for a definite period; 305), that where bail become fixed with the and per Nelson, Chief Justice, in this case, payment of the debt of the defendant, their "Mere indulgence at the will of the creditor, character of bail ceases; that after judgment extended to the debtor, in no way discharges and execution against bail and sureties, there is the obligation of the surety; if it did, it would an end of the relation of principal and surety, be a most inconvenient and oppressive rule, as and the bail cannot claim any advantage against then suits must immediately follow the mathe creditor on the ground of want of diligence turity of paper. It is a settled rule, that there in prosecuting the principal debtor. In Prout v. must be a valid common law agreement to give Lenox, 3 Wheat. 520, it is laid down by Liv-time, founded of course on a good consideraingston, 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 obtained at law; have any of his rights been impaired, or have any new rights grown up to

Reynolds v. Ward, 5 Wend. 501. ruled, that an agreement without consideration, enlarging the time of payment, was not a discharge of the surety to the note. So held or demurrer to a plea by surety, averring that at the time when the note became due the princi pal was able to pay, and would have paid had hot the *time been extended, and that [*207 after the note fell due the principal became in solvent. Held also, in that case, that a promise to pay interest during the time of forbearance was no consideration for such agreement.

tion, to have this effect."

Norris v. Crummie, 2 Randolph, 328. It is ruled, that indulgence granted by a creditor 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 princì

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.

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.

THE UNITED STATES, Plaintiff,

V.

EPHRAIM BRIGGS.

Jurisdiction-on division of opinion of circuit court judges, certificate must state particular point.

When a case is brought up to this court on a certificate of division in opinion, the point upon which the difference occurs must be distinctly stated.

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 in 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 that case stated as indispensable for absolving the surety are, first, a considera. The united States for the District of Michition; second, a promise to indulge, third, THIS case came up from the Circuit Court of gan, on a certificate of division in opinion.

the definite nature of such a promise; and, fourth, the absence of assent by the surety.

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.

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.

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 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.

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 otherwise changing the nature of the contract, in order to discharge the surety, must be an agree- The defendant was indicted under the Act of ment having a sufficient consideration to sup- | Congress of March 2, 1831, ch. 66, 4 Statutes port it and be binding upon the parties. There at Large, 472, for unlawfully cutting timber 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 of agreementsarrangements between creditor and debtorsituations 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 judgment 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 inception. 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 correct; and that decree is accordingly affirmed.

Order.

This cause came on to be heard on the tran

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 of the court:

The Act of Congress of April 29, 1802, ch.

31, sec. 6, provides, that whenever a question | JOHN C. SHEPPARD et al., Plaintiffs in 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, aand certified to this court, to be finally decided.

This cause came on to be heard on the tran-ner and under the same regulations as from the script 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 adjudged 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.

*Order.

[*213

On consideration of the motion made by Mr. Grant, on a prior day of the present term, to dismiss this writ of error, and of the arguments of counsel thereupon, had as well against as in support of the said motion, it is now here ordered by this court, that the said motion be, and the same is hereby overruled.

Error,

V.

ex rel. JAMES

THE UNITED STATES

Under these two last mentioned acts of Con- | objection no longer exists, and the writ of ergress, the judgment of a circuit court may be ror, citation, and bond appear to have beer. 212*] brought up for re-examination to the *Su- regularly issued, signed, and approved, the case preme Court, by a writ of error, issued by the is legally and properly in this court, and the clerk of the court in which the judgment was motion to dismiss must be overruled. 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 Supreme Court of the Territory of Iowa to this court, in the same manner and under the same regulation as from circuit courts of the United 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 the bond approved by one of MINERS' BANK OF DUBUQUE, Plaintiffs in 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

GRANT.

Jurisdiction-judgment, when not final.

A judgment of a court, sustaining a demurrer under the following circumstances, is not a final judgment which can be reviewed by this court. calling upon the President, Directors, and ComInformation in the nature of a quo warranto. pany of the Miners' Bank of Dubuque to show by what warrant they claimed the right to use the

franchise.

Plea. referring to an act of incorporation. Replication, that the act of incorporation had been repealed.

without notice to the parties, and without any
evidence of misuse of the franchise.
Demurrer to the rejoinder.
Joinder in demurrer.

Rejoinder, that the repealing law was passed

Sustaining the demurrer, without any further judgment of the court, did not prevent the parties from continuing to exercise the franchise, a final judgment. and therefore is not a The writ of error must, upon motion, be dismissed.

MOTION was made by Mr. Grant and Mr.

writ of error. We think it cannot be main-A Hastings to dismiss the writ of error in

tained, 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.

this case, upon the same grounds as in the preceding 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.

Mr. Chief Justice Taney delivered the opinion 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 This case has been brought here by a writ of or reverse a judgment rendered by the Supreme error to the Supreme Court of the Territory of Iowa. A motion has been made to dismiss Court of the territory, or giving this court any jurisdiction over it. This difficulty has, how-the writ upon several grounds, and among ever, been removed by an act of Congress, others, upon the ground that the judgment of passed during the present session (and since the territorial court is not a final one; and, this motion was made), which authorizes the therefore, under the Act of June 12, 1838, ch. Supreme Court to proceed to hear and deterNOTE. AS to quo warranto, see note to 5 L. mine cases of this description.1 And as this ed. U. S. 91.

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

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.

96, sec. 9, 5 Statutes at Large, 238, cannot be brought here for revision by writ of error.

the territory awarded the procedendo to the District Court in order to enable it to proceed It appears that an information in the nature to final judgment, the Supreme Court [*215 of a quo warranto was filed by the United having no power to give a judgment of ouster, States in the District Court of Iowa, against in the shape in which the case came before it. certain persons named in the information, who Inasmuch, therefore, as there has been no are now the plaintiffs in error, charging them final judgment, the writ of error from this with having used the liberties and franchises court must be dismissed for want of jurisdic214*] *of President, Directors, and Company | tion. And being dismissed on this ground, it is of the Miners' Bank of Dubuque, without any unnecessary to examine the other objections lawful authority; and calling upon them to which have been taken in support of the moshow by what warrant they claim the right to tion. use the liberties and franchises aforesaid.

The plaintiffs in error appeared, and pleaded that the privileges and franchises which they were exercising were conferred on them by a charter of incorporation, duly passed by the proper authority, which is more particularly set forth in the plea, but need not be here stated.

To this plea, the defendant in error replied, that the act of incorporation conferring the privileges in question was repealed by the Legislature of Iowa; and the plaintiffs in error rejoined, averring that the repealing law was passed without any notice to them, or any opportunity afforded them of being heard in their defense, and without any evidence of the abuse and misuse of any of the liberties and franchises in question. To this rejoinder the defendant in error demurred, and the plaintiffs joined in demurrer, and at the trial of the case, the following judgment was given by the court: "It appears to the court that the said rejoinder, and the matters therein contained, are not sufficient in law to bar or preclude the said plaintiffs from having and maintaining their aforesaid information thereof against the said defendants, and that said demurrer ought to be sustained.

"Therefore it is ordered by the court here, that the said defendants take nothing by their said rejoinder, and that they have leave to amend or answer over to the said plaintiff's' replication, by Monday morning next, at the meeting of the court."

No amendment, however, appears to have been made, nor any further proceedings to have been had in the District Court; but upon the judgment above stated the case was removed to the Supreme Court of the territory, where the judgment of the District Court was affirmed, and a procedendo awarded.

It is evident that this judgment is not a final one against the plaintiffs in error. It merely decides, that the rejoinder and the matters therein contained are not sufficient to bar the information, and that the demurrer ought to be sustained, and that the plaintiffs in error take nothing by their rejoinder. But there is no judgment of ouster against them, nor anything in the judgment which prevents them from continuing to exercise the liberties and privileges which_the_information charges them to have usurped. In order to make the decision a final ‘one, the court, under the opinion expressed by them, should have proceeded to adjudge that the plaintiffs in error do not in any manner use the privileges and franchises in question, and that they be forever absolutely forejudged and excluded from exercising or using the same, or any of them, in future. And we presume that the Supreme Court of

Order.

This cause came on to be heard on the transcript of the record from the Supreme Court of the Territory of Iowa, and was argued by counsel; on consideration whereof, and it appearing to the court here upon an inspection of said transcript that the judgment of the said Supreme Court is not a final one in the case, it is thereupon now here ordered and adjudged by this court, that this writ of error be, and the same is hereby dismissed for the want of jurisdiction.

WHARTON JONES, Plaintiff,

V.

JOHN VAN ZANDT.

Fugitives from labor-"harboring," what ispenalties for, under statute-constitutionality of.

Under the fourth section of the Act of 12th and persons escaping from the service of their February, 1793, respecting fugitives from justice, master, on a charge for harboring and concealing fugitives from labor, the notice need not be in such person is a fugitive from labor under the writing by the claimant or his agent, stating that third section of the above act, and served on the person harboring or concealing such fugitive, to make him liable to the penalty of five hundred

dollars under the act.

Such notice, if not in writing and served as aforesaid, may be given verbally by the claimant or his agent to the person who harbors or conceals the fugitive; and to charge him under the statute a general notice to the public in a newspaper is not necessary.

by his own confession or otherwise, that he knew Clear proof of the knowledge of the defendant, the colored person was a slave and fugitive from labor, though he may have acquired such a knowledge from the slave himself, or otherwise, is sufficient to charge him with notice.

Receiving the fugitive from labor at three o'clock in the morning, at a place in the State of Ohio tucky where the fugitive was held to labor, from a about twelve miles distant from the place in Kencertain individual, and transporting him in a closely covered wagon twelve or fourteen miles, so services were thereby lost to his master, is a barthat the boy thereby escaped pursuit, and his boring or concealing of the fugitive within the statute.

A transportation under the above circumstances, though the boy should be recaptured by his master, is a harboring or concealing of him within the statute.

the services of the boy' were entirely lost to his Such a transportation, in such a wagon, whereby master, is a harboring of him within the statute. A claim of the fugitive from the person harboring or concealing him need not precede or accom

pany the notice.

Any overt act so marked in its character as to show an intention to elude the vigilance of the attain such an object, is a harboring of the fugimaster or his agent, and which is calculated to tive within the statute.

In this particular case, the first and second counts contain the necessary averments, that

Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio.