author: Mr. Justice Mc-LEAN

text:
    In the Matter of Nicholas Lucien Metzger.
    The treaty with France, made in 1843, provides for the mutual surrender of fugitives fr.om justice, in certain cases.
    Where a district judge, at his chambers, decided that there was sufficient cause fo;r the surrender of a person claimed by the French government, and committed him to custody to await the order of the President of the United States, this court has no jurisdiction to issue a habeas corpas for the purpose of reviewing that decision.

      •Mr. Coxe moved for a habeas corpus, according to the following petition, which he read, and also the decision of the judge below.
    .“.To the Honorable, the Justices of the Supreme Court of the United States : —
    “ The petition of Nicholas Lucien Metzger respectfully shew-eth, — That he is restrained' from his liberty, and is now a prisoner in jail, and under the custody of the marshal of the Southern District for the State of New York, and- that he has been committed to such jail and custody, and is now confined and detained therein, under and by virtue, of a warrant and order of the Hon; Samuel R. Betts, district judge for the Southern District of New York, as" an alleged fugitive irom justice, pursuant to the provisions of the cpnvention signed between .the United States and the French government, on the 9th'of November, 1843.
    “ That annexed hereto is a_copy of the order, under and by virtue of which your petitioner has been apprehended and committed, and is now detained in custody. . •
    “ Wherefore, your petitioner prays, that a writ of habeas corpus may issue from this honorable court, to be directed to the marshal of the .Southern District of the State of New York, or to such other persons as may hold or detain your petitioner, under and by virtue of said order, ■ commanding him or them to have the body of your petitioner before this honorable court, at such time as in said writ may be specified, for the purpose of inquiring into the cause of commitment of your- petitioner, and to do and abide such order as this honorable court .may make -in the premises.
    “ And your petitioner wiE ever pray, &c.
    Metzger.

      “ Sworn to before me, this 20th day of January, 1847.
    George W. Morton,

      United States Commissioner for the Southern District of New York.”

      iC In the Matter of Nicholas Luci'en Metzger : —
    “ This case having been heard before, me, on requisition through the diplomatic agents of the French government that the said Metzger be apprehended and corfimitted for the purpose of being delivered up as a fugitive from justice,-pursuant to the provisions of the convention signed between the United States and the French government on the 9th of November, 1843':
    “ And exceptions having been taken by the counsel of the said Metzger, in his behalf, to the. competency of a judge of'"the United States to take cognizance of the subject-matter, and' to the sufficiency of the evidence to justify any judicial action under the treaty : ;
    “ And these exceptional objections being fully argued before me by Messrs. Blunt and Hoffman, of counsel for .Metzger, and by Messrs. Tillon and Cutting in support of the requisition, and by Mr. Butler, United States Attorney, on the part of the United-States (in respect to the jurisdiction of the judge, and the period the treaty went into operation) : ’ ■
    “ I find and adjudge, that a judge of the United States has competent authority, under the laws of the United States 'now in force, to take cognizance of this case, and to order the apprehension and commitment of the accused, pursuant to the provisions of the said treaty.
    “ I further adjudge, that the said treaty took effect and went into operation on and from the day of the signature thereof.
    “ I further adjudge, that the laws of France are to determine, the constituents of the crime of forgéry, or ‘ dufauxf of which Metz-ger is accused, and that the facts in evidence adequately prove the commission of that crime by him in France, since the date of the. treaty.
    “I further find and adjudge, that Metzger is, within the meaning and description of the treaty, a person accused, ‘ individu accuse,’’ of the crime of forgery, or ‘ dufauxf named in the treaty, and therefore subject to apprehension and commitment under our laws, pursuant to the provisions of the treaty.
    “ And I find and adjudge, that"the evidence produced against the said Metzger is sufficient in law to justify his apprehension and commitment' on the charge of forgery, had the crime been committed within the United States.
    “ Wherefore I-order, that the said Nicholas iucien Metzger be apprehended and committed, pursuant to the ■ provisions of the said treaty, to abide the order of'the President of the United States in the premises.

      “ Given .under my hand and seal at the city of New York, this nineteenth day of January, one thousand eight hundred [l. s.] and forty-seven.
    (Signed,) Samuel R. Betts,

      Judge of the United States for the Southern District of Neu>’ York.”

    The case was argued by Mr. Coxe, on behalf of the petitioner, and by the Attorney-General (Mr. Clifford) and Mr? Jones, in opposition to the motion.

      Mr. Coxe, for the motion.
    Ip-conveying the intimation that the court would hear an argument on behalf of the petitioner, no suggestion was thrown out as to the .points to which counsel were desired to address themselves under, these circumstances. What fell from the bench conveyed merely the idea that doubts were entertained by.the court, but it conveyed no intelligence as to the character of these doubts, to what part of the case they extended, or whether they embraced the substantial merits of the petitioner’s case, or were limited to the form and language in which the application was presented.
    Had the posture of the case permitted the court to adopt a practice which has on many occasions heretofore prevailed when .similar applications have been made, and grant a rule upon the United States, or those who. represent the French government, to show, cause why the prayer of the petitioner should not be granted, it would have relieved his counsel from much embarrassment. The grounds upon which the application was to be' resisted would have . been distinctly announced, and full- opportunity would' have been afforded to meet, and, if practicable, to answer them: In the situation, however, in which the case then stood, ignorant whether either government felt any such interest in the proceeding as would' induce it to intervene by a direct opposition to. the motion which was submitted, it would scarcely have-been proper for me to have suggested, or for the court to have sanctioned, the adoption of such a course.
    At the same time, the appearance of counsel to resist the application only augments the- difficulties of the position I occupy. Whatever- may have been the origin of the doubts entertained on the bench, it by no means follows that the learning and abilities of counsel may not multiply and increase the number, as well as weight, of these objections. Placed, therefore, in this predicament by the very nature of the case, it imposes upon me the necessity of pursuing a course between two opposing difficulties, — of neither undertaking to anticipate, and attempting to answer by anticipation, the views and arguments of my learned friends, or of failing to exhibit a prima facie case at least calling for the.interposition of this court.

      Reserving, therefore, the privilege of answering the objections which may be urged against my application, I proceed briefly to state the grounds upon which reliance is placed to sustain it.
    The petition, then, alleges, that the party on whose behalf and in whose name it is presented is now in actual confinement in jail, in the custody of the marshal of the 'Southern District of New Yhrk, by whom he is thus held and restrained by virtue of an order or warrant of commitment, issued and signed by the Hon. Samuel R. Betts, district judge of the Southern District of New York. It appears that this warrant of commitment is a process utterly unknown to the common law or statute law of the United Stages. It is not for the purpose of bringing the- accused to trial, .before any court of the Union, for any offence committed against the' laws of the United States, or triable before any of its courts ; it is not for the purpose of enforcing any responsibility in the shape of a debt due to any creditor, for the violation or breach of any contract, or to answer' to any allegation of a tort of which those courts have cognizance ; nor is it in the .nature of an execution to compel the prisoner to respond to any process in the nature of an execution upon any judgment rendered against him by any court of the United States, or in the nature of an attachment for any contempt committed against such tribunal.
    All this is fully set forth in the petition, and in the order of commitment annexed' to it. The object, therefore, of the writ now sued for is, to enable this court to pronounce its judgment upon the lawfulness of such an imprisonment, and upon the authority under which it has been made.
    The simple fact that such imprisonment exists under color and pretence of right presents a prima facie case warranting-the application now made,' and the language of the constitution and statutes of the United States, taken in connection with the reiterated judg-, ments of this court asserting its power, and actually exercising the 'jurisdiction and authority now invoked, would seem clearly to establish. prima facie a right in the petitioner to have the benefit of this high prerogative writ. If there is any ground of objection, growing out of the, circumstances of the case, which destroys this prima fa-cie presumption as to the facts, they are__to be found in the peculiar characteristics of those circumstances which attend the arrest of the petitioner ; if any to meet the legal authorities upon which we rely, they must in consequence of these- circumstances be held inapplicable to the case under consideration.
    The points which are thus presented for the adjudication of this court are, —
    1. Whether the fac*s as presented exhibit a proper case for the •awarding of a writ of habeas corpus.

      2. Whether, if such be the case, this -court has authority and' jurisdiction over it-

      1. As to the-facts. It is understood that an application was made to the executive, by the minister representing the French government, for the apprehension and delivery of the petitioner. This application was declined, on the ground that no such power resided in that branch of the government, and the French government was referred to the judicial department. In declining itself to act without farther legislative authority, I conceive the executive rightly judged. Id die opinion that the judiciary possessed the power, I think it erred. This, however, was clearly an obiter expression of Opinion, and not decisive on this question. The former part of the opinion is opposed by very eminent authority.
    Be this as it may, the executive refused to comply with the requisition, and there .has been no warrant of arrest or order of commitment emanating from that quarter.
    An arrest was then made by a local magistrate of New. York, who decided that he had authority over the case. The ^petitioner was then liberated by a circuit judge of that State, who decided that f te State judiciary had no jurisdiction, and on this ground discharged the party on habeas corpus.

    The' diplomatic representative of the French government then addressed Judge Betts, the district judge of the United States, who, after full hearing, decided that the federal judiciary had jurisdiction over the party and the case, and awarded the order' of commitment.
    The entire judgment of the district judge rests upon the ground that he is exercising judicial power, and determining a question of judicial jurisdiction.
    If he be right on this point, this court will, probably refuse, the habeas corpus, because, concurring in the opinion, they would feel themselves compelled to remand the prisoner, his imprisonment being for lawful cause and by competent authority. If wrong, the writ ought to issue, because the arrqst was unlawful.
    I am aware that this court has held, that, in awarding this writ, it does so in the exercise of appellate and-not original jurisdiction, and that a doubt has been expressed whether, this being a proceeding before the district judge at chambers, this court can exercise any revisory power over it. This question will be presented more fully hereafter. In the mean time I would suggest, that to act upon this distinction would seem to involve this extraordinary conclusion, that if the'"district judge, acting in open court upon a case regularly before him, should commit a party to prison, this court would possess the jurisdiction to award the writ ; but inasmuch as the commitment was in the exercise of an undoubted power, the judgment of the District Court, not. being revisable here, would be final, and the court, seeing that it must necessarily remand upon the hearing, would decline to issue the writ;. whereas, if it appeared that the judge exercised an authority not granted by law. and assumed a jurisdiction not belonging to him,' then, as he did not act. in open court, his procéedings, however erroneous and unauthorized, cannot be drawn in question here, through the instrumentality of this writ.
    Such has not been the interpretation heretofore given by this court to its own grant of power. With this general remark this point will be postponed for the present-, until we reach, it in the regular progress of the argument.
    Let us now examine whether the district judge, either as presiding in- the District Court or at chambers, had any authority to hear this application, to exercise any jurisdiction over the case, and to make the order for commitment. I apprehend this question must-be answered in the negative.
    The courts of the United' States, and the judges of those courts,' can exercise no powers of a judicial character, and can possess no jurisdiction, except that which is conferred upon them. under the authority of the constitution by act of Congress.
    The Supreme Court is the only court named in the constitution, and even this high tribunal hap no existence simply by tbe force and operation of the constitution itself. Until Congress brought it into existence, and gave it organization, it existed rather in posse than in esse. -But the inferior courts, the Circuit and District Courts, exist only under the -authority of legislation. Congress alone created them, meted out to each the powers which it enjoys, prescribed the orbit within which it should move, and prescribed every limit'by which its jurisdiction was to be ascertained. I am entitled to put the question which I now address to .this . court, and to my learned friends, Where is to be found any .grant of jurisdiction to a District Court, far more, to a district judge, to exercise the power assumed in the present case ? Upon what act of Congress can the finger be laid which confers it ? None such exists.
    The only ground upon which this claim was rested before and by the district judge is that of the treaty stipulations with France, and ‘he means by which he acquired jurisdiction on application addressed to him by the diplomatic agent of the French government. With great deference, I cannot but think the -mode as irregular as the authority unfounded.
    Under our institutions, there exists but one legitimate channel of communication between this and any foreign nation ; that organ is the executive. It is unprecedented in our judicial and legislative annals, for the diplomatic representative of a foreign government to address himself immediately to the judicial or legislative departments. Such a course is equally unknown to the history of England.
    Nor in my judgment is it less extraordinary in an American judge to regard such an application to him as in the nature of the original writ out of chancery, to call into action the latent powers of the judiciary. A record which should begin by-setting forth such a paper would be a judicial if not a political curiosity, and it is hoped, it maybe brought before the eyes of this court by a writ of certiorari to accompany the habeas corpus.

    But no such jurisdiction exists to be evoked and called into exercise by this or any other process. It has been observed, that no such authority is conferred by any statute. Witli submission I may say, that to me it seems preposterous to assert that it may be conferred by treaty. It is a new idea to me that the treaty-malting power can, by the.most latitudinarian construction, be held to be a constitutional source of power and jurisdiction to any court or judge of .the United States. New objects of judicial power, new subjects upon which it is to operate, may extend the number of cases which may be presented for judicial decision, but can never be .appealed to as a grant of judicial power. Treaty stipulations operate only directly upon the parties .to them., and not-upon the citizens, except as part of the law of their own.land.. All may recollect.the recent circumstance arising between England and Brazil, in which it was thought necessary to invest, by legislative authority, .the British courts with jurisdiction to enforce the provisions of the treaty upon Brazilian subjects.
    In 1794, Jay’s treaty, 27th article, provided for the surrender of fugitives from justice ; 8 Stat. at Large, 129. In 1.842, the Ash-burton treaty, art. 10, ibid. 576. In 1843, the convention with France, ibid. 580. ■ In the absence of legislative provisions, can either of these treaties be executed ?
    A recent occurrence in our history may illustrate this ; Act of Aug. 8, 1846, ch. 105 ; Acts, &c., p. 78.
    If, then, the district judge has assumed a power not conferred upon him, can this court award a habeas corpus ? If adherence is had to judicial precedents, .not hastily or inconsiderately decided, there is an end to this question. United States v. Hamilton, 3 Dali. 17, precisely in point, in 1795 ; in 1806, Ex parte Burford, 3 Cranch, 448 ; in 1807, Bollman & Swartwout, 4 Cranch, 75 ; Ex parte Cábrera, 1 Wash. C* C. R. 232 ; Ex parte Kearney, 7 Wheat. 38-; Ex parte Watkins, 3 Pet. 200; 7 Pet. 568.

      Mr. Clifford, the Attorney-General,
    submitted three propositions : —
    1. That’ the treaty took effect and went into operation on and from the day of the date thereof.
    2. That the judge of the District Court had competent'authority, under the provisions of the treaty and the laws of t;he United States now in force, to take jurisdiction of this case, and to order the ap-. prehension of the accused in the manner in which it was done, pursuant to the stipulations of the treaty.
    As.the decision of the court was exclusively on the point of jurisdiction, it is not considered necessary to do more than give the authorities cited by the A’ttorney-General to sustain these two propositions. On the first he cited, 1 Kent’s Com. 169,- 170 ; Hylton v. Brown, 1 Wash. C. C. R. 312 ; Wheaton’s International Law, 306, 573 ; United States v. Arredondo, 6 Pet. 748, .758 ; 2 Burlamaqui, 233 ; Yattel, B. 3, § 239 ; Rutherford’s Inst., B. 2, chap. 9, § 22 ; Maftens, B. 2, chap: 1, § 3 ; 2 McCulloch’s Diet. Com. 654 — 674. On the second he cited, Foster v. Neilson, 2 Pet. 314 ; United States v. Arredondo, 6 Pet. 734, 735 ; Constitution, art. VI. ; Casé of Thomas Sheagle,. Massachusetts ■ District, October Term, 1845, MS.; 8 Statutes at Large, .129.; Jay’s Treaty, art. 27 ; United States v. Nash alias Robbins, Bee, 266 ; 3 Story’s Com. §§ 1640, 1641 ; Osborn v. Bank of the United States, 9 Wheat. 738 ; Constitution, art. III., § 2 ; Chisholm v. State of Georgia, 2 Dali. 419 ; Rhode Island v. Massachusetts, 12 Pet, 657 ; Barry v. Mercein, ante, p. 103; United States v. Bevans, 3' Wheat. 336 ; United States v. Wilt-berger, 5 Wheat. 76 ; Judiciary Act of 1789, §§ 9, 11, 33 ; Picquet v. Swan, 5 Mason, 42 ; United States v. Schooner Peggy, 1 Cranch, 109', 110; 3 Story’s Com. § 1515; Case of Santos, 2 Brock. 494.
    3. The third proposition submitted was, that the Supreme Court has no authority, under the constitution and laws of the United States, to grant the writ of habeas corpus prayed for in the petition. 1st. Because its original jurisdiction is restricted to cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party. 2d. Because it possesses no appellate power in. any case, unless .conferred upon it by act of Congress, nor can it, where conferred, be exercised in any other-form or by any other mode of proceeding than that which the law pre-scribés. 3d. Because the Supreme Court was created by the com stitution, and its jurisdiction was conferred and defined by that instrument and the laws of Congress made in pursuance thereof; consequently, it possesses no inherent common law powers beyond the written law.
    1st. No original jurisdiction in this case. ' By art. III., § 2, of the constitution, it is provided, that the judicial power shall be vested in one Supreme Court, and in' such inferior courts as the Congress may from time to time ordain and establish. The second section describes the whole circle of the judicial power of the United States, giving its extent and boundaries ; it then distributes that power, first in marking and- defining the original jurisdiction of the Supreme Court, limiting it, with a precision and certainty defying all construction, to cases affecting ambassadors, other public ministers and consuls, and cases to which a State shall be a party. So firmly-is this view of the case established by the constitution, that Congress itself has no power tot-enlarge the original jurisdiction of this coprt, or to extend it to any other cases than those enumerated. It was accordingly held, that so much of the thirteenth section 'of the Judiciary Act as gave authority to the Supreme Court to issue writs of mandamus to public officers was unconstitutional and void. Marbury «. Madison, l Cranch, 173- 175 ; Cohens v. Virginia, 6 Wheat. 4f)0. The original jurisdiction of the Supreme Court can neither be enlarged or restrained, but must stand as it is written in the constitution by which it is. conferred.
    2d. No appellate jurisdiction. The appellate power .of the Supreme Court is described in the constitution in these words : — “In all the other cases before mentioned, the Supreme Court, shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”' The appellate authority, though’ somewhat extensive under the constitution, is not general, but is limited and confined to the cases specially enumerated, and i§. made subject to such exceptions and regulations as Congress may from time, to time prescribe. The grants conferring-original and appellate jurisdiction disclose this marked distinction ; — the former can neither be restrained or enlarged ; the íatter, while it cannot be enlarged beyond the limits of. its. circle, yet with- - in those limits Congress may confer as much or as little as in its discretion it may consider wise and expedient. Barry v. Mercein, ante, p. 103.
    The authority to issue writs of habeas corpus is not claimed to be among the enumerated cases of original jurisdiction conferred upon the Supreme Court. The language of the grant in this respect leaves nothing for implication ; if any doubt could arise,' the case of Marbury v. Madison silences argument and dispute upon the point. Ex"parte Barry,' 2 How. 65. The appellate jurisdiction, being given with such exceptions and under such regulations as Congress may make, can only be exercised in pursuance of an act of .Con? gress conferring the authority and prescribing' the mode in which it shall be performed : that is, the manner of exercising the power must first be regulated by law. The question," .therefore, in any given case, whether the court has appellate jurisdiction .over it, resolves itself into the simple inquiry, whether such case falls within the legislative provisions enacted in pursuance of the constitution relative to the exercise of this branch of jurisdiction. Wiscart v. Dauchy, 3 Dali. 327; United States v. More, 3 Cranch, 172 ; Du-rousseau v. United States, 6 Cranch, 313. In s'earch of the vagrant power to issue this writ, all other resorts failing, it must be found, if it exist anywhere, in the appellate jurisdiction of this court. Thatis clearly admitted, in the case of Bollman & Swaitwort, 4 Cranch, 100, mainly relied on by the petitioner. In all cases where this power has been claimed or exercised, it has been invariably justified on the ground that it was an element of appellate authority.". Thus, in Ex parte Watkins, 3 Peters,'202, Chief Justice Marshall says,— “ It is in the nature of a writ of error to examine the legality of the commitment.” Same cáse, 7 Peters, 572. In Ex parte Mil-, burn,- 9 Peters, 704, in note, Chief Justice Marshall again sajs, —- “ As the jurisdiction of the Supreme Court is, appellate,, it must be first shown that the court has the power, in this case to award a ha-beas corpusIn the final opinion in the case, the writ was refused upon other grounds. Subsequently, in Ex parte Barry, 2 Howard, 65, Mr. Justice Story maintains the same view, and discloses what may be considered the true doctrine upon the whole subject of the power' of .this court to grant writs of habeas corpus under existing laws. He says : — “No case is presented for the exercise of the appellate jurisdiction of this court, by any review of the final decision and award of the Circuit Court upon any such proceedings. The case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court. Now the constitution of the United States has not confided any original jurisdiction to this court, except in cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. The present case falls not within either predicament. It is the case of a private individual, who is an alien, seeking redress for a supposed wrong "done him by another private individual, who is a citizen of New York. It is. plain, therefore, that this court has no original jurisdiction to entertain the present petition, and we cannot issue .any writ of habeas corpus, except when- it is necessary for the exercise of. the jurisdiction, original or appellate, given to it by the constitution or Jaws of the'"United States.” The appellate power must be sought and found, if it exist, in the acts of Congress conferring it upon this court. Certainly no question can arise upon the twenty-fifth section of the Judiciary Act, which stands in many respects upon different principles. The thirteenth section of that act provides, that “ the Supreme Court shall- also have appellate jurisdiction from the Circuit Courts, and courts of the several States, in the cases hereinafter specially provided for.” The twenty-second section limits the appellate power upon a writ of error of a Circuit Court to final decrees, and judgments in civil actions in a District Court, where the matter in dispute exceeds the sum or value, of fifty dollars exclusive of costs. And upon a dike process, this court may reexamine and reverse or affirm final judgments and decrees in civil actions and suits in equity in a Circuit Court, brought there by original process, or removed there from the courts of the several States; Or by appeal there from a District Court,- where the matter in dispute exceeds the sum or value of two thousand dollars exclusive of costs. The proceeding in this case cannot be sustained under this section. There is.no writ of error, which, is the only process mentioned by which it could be. instituted; there is no final judgment or decree in any inferior court, within the meaning of the law ; it is not a civil action, much less a suit in equity, and therefore not within the scope and meaning of the section.

      The Supreme Court has no appellate jurisdiction in criminal cases, according to repeated decisions which have never been questioned. United States v. More, 3 Cranch, 172; United States v. La Vengeance, 3 Dali.' 297 ; United States v. Hudson et al., 7 Cranch, 32.
    Jurisdiction is defined to be- the power to hear and determine a cause.. Appellate jurisdiction is the power to correct' and revise the judgment of an inferior court. Chief Justice Marshall says, in Marbury v. Madison, 1 Cranch, 175, — “ It is the essential crif/3-’ rion of .appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create the cause.” The case, or subject-matter in dispute, now under consideration was not instituted in any tribunal over which this court may exercise any supervisory power; it was not a proceeding in court, but before the district judge,, sitting and acting in his capacity as a magistrate, under the thirty-third section of the act of. 1789. The power of this court, under the constitution and laws of Congress, dops; not and -cannot reach the forum where the matter’ was instituted’and decided.. This court has no revising power over the ■District Court, nor is it' authorized to issue- a writ of -prohibition to it in any case, except where that court is proceeding as a court of admiralty and maritime jurisdiction. Ex parte. Christie, 3 How. 352. And this is true, although writ's of prohibition are enumer.ated in the fourteenth section of the act. The application in that case was, that the writ might issue to an inferior court, performing the functions of a court, and having exclusive jurisdiction of the subject-matters in controversy. If there -is no power to revise the doings of a bankrupt -court under federal authority, where is the right to assume control over the doings of a justice of the peace, of a district.judge, while sitting as a committing magistrate ? Mc-Cluny v. Sillimari, 2 Wheat. 369 ; Mclntire v. Wood, 7 Cranch, 504. The revising power of this court does not extend to. the person, but, when it exists, it operates upon- the inferior tribunal and the subject-matter in controversy. The district judge, in the capacity in which he acted, under the laws, of the United States, was .entirely independent of this court; his-decision was, final-and-conclusive ; and this court, could not reverse or áffirm it were the record brought up directly by writ of error,-and so is the decision in Ex parte Watkins, 3 Peters, 201. It has already appeared that the Supreme Court has no appellate jurisdiction of crimes and offences, and of course no process issuing here can extend to the subject-matter of this application. This is therefore, undeniably, a call upon the court to' exercise original power-in granting the writ in question. That power this court has directly and '.solemnly, on several occasions, decided it does not possess. In all the cases where the power has been exercised or countenanced, it has been upon the ground of revising, in some form, the doings of án inferior tribunal, over which this court'possesses appellate power. Here, the Attorney-General cited and commented on the following cases on this point, in addition to those already mentioned: United States v. Hamilton, 3 Dali. 17 ; Ex parte Burford, 3 Cranch, 453 ; Ex parte Dorr, 3 Howard, 104.
    3d. The Supreme Court possesses, no inherent or common law power to grant writs of habeas corpus. On this point it was in-' sisted, that a reviéw of all the cases would show' that the doctrine had been uniformly repudiated by the court, and that since the decision of Bollman & Swartwout it has been abandoned by the bar. Some comments were made on' the second clause of section ninth of the first article of the constitution, which provides that the privilege of the' writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. This provision was regarded as one containing a prohibition upon the powers' of Congress, and not as one conferring any authority on the federal courts. ,3 Story’s Com. ■§ 1332.
    In conclusion, it was insisted, that all the power of this court to issue writs of habeas corpus was derived from the fourteenth section of the Judiciary Act. There are two clauses in the1 section upon this subject, which should be treated separately. The seeming inconsistency, if any exists, in the cases decided, has doubtless ■arisen by omitting to keep clearly in view the manifest distinction in the nature and character of the power conferred by these two clauses'. The first provides, that “ all the before-mentioned courts of the United States shall have power to issue writs of scire /acias, habeas corpus, and all other writs not specially provided for by Statute, which may be necessary for' the exercise of their respective jurisdictions, and agreeably to the principles and usages of law.” This clause undoubtedly authorizes the issuing of inferior writs of habeas corpus in aid of jurisdiction, which have been long known in the practice of courts, and are indispensable in the course of legal proceedings. Bac. Abr. Habeas Corpus, A ; 2 Chitty’s Black, 130. The -second clause is in these words : — “And that either of the justices of the Supreme Court, as well as the judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of ah inquiry into thé cause of commitment.” Un-' doubtedly this clause authorizes the issue of the great writ of habeas corpus ad subjiciendum, which is of general use to examine the legality,of commitments in criminal cases. The. power conferred by this clause is expressly delegated to either of the justices of the Supreme Court, and not to the whole, when convened for the trial of causes. If the question were one of new impression, it would seem to follow, that the authority to be derived from the law should be exercised according to the language of the act. . In the present case, however, it is not necessary to insist on the point, as the proceeding below was not in a tribunal over which this court has any appellate power.
   Mr. Justice Mc-LEAN

delivered the opinion of the court.

This is a petition, for a habeas corpus, in which the petitioner represents that he is a prisoner, in jail, under the custody of the marshal for the Southern District of the State of New York, by virtue of a warrant issued by the judge of the United Stales for said district, as an alleged fugitive from justice, pursuant to the provisions of the convention signed between the United States and the French government on the 9th of November, 1843.

On a full hearing at chambers, the district judge held “ that the ■evidence produced against the said Metzger was sufficient in law to justify his apprehension and commitment on the charge of forgery, had. the crime been committed within the United States ” ; and the prisoner was “ committed, pursuant to the provisions of the said treaty, to abide the order of the President of the United States.”

In the first article of the convention for the surrender of criminals between the United States and his Majesty, the king of the French, on the 9th of November, 1843, it was “ agreed, that the high contacting parties shall, on requisitions made in their name, through the medium of their respective diplomatic agents, deliver up tp justice persons who, being accused of the crimes enumerated ■in the néxt following article, committed within the jurisdiction of the requiring party, shall seek an asylum, or shall be found within the territories of the other: provided, that this shall be done only when the fact of the commission of the crime shall be so-established, as that the laws of the country in which the fugitive or the person so Accused shall be' found would justify his or her apprehension and commitment for trial, if the crime had been there committed.”

The second article specifies, among other crimes, that of forgery, with which the prisoner was charged.

The third article declares that, ‘‘ on the part of the government of the . United States, the surrender shall be made only by the authority of the executive thereof.”

It is contended that the treaty, without the aid of legislation, does not authorize an afrest of a fugitive from France, however clearly the crime may be proved against him ; — that the treaty provides for a surrender by the executive only,* and not through the instrumentality of the judicial power.

The mode adopted by the executive in the present case seems to be the proper one. Under the provisions of the constitution, the treaty, is the supreme law of the land, and, in regard to rights and responsibilities growing out of it, it may become a- subject of judicial cognizance. The surrender of fugitives from justice is a matter of conventional arrangement between states, as no such obligation is imposed.by the laws of nations.

Whether the crime charged is sufficiently proved, and comes within the treaty, are matters for judicial decision ; and the executive, when the late demand of' the Surrender of Metzger was made, very properly, as we suppose, referred it to thef judgment of a judicial officer. The arrest which followed, and the committal of the accused, subject to the order of the. executive, seems to be the most appropriate, if not the only, mode of. giving effect to the treaty.

The jurisdiction of .this court in this matter is the main question for consideration... As this has been arguéd fully, and as it is supposed- that there is a conflict in the decisions of this court on the subject, a reference will be made to the cases which have been adjudged.

in the United States v. Hamilton, 3 Dallas, 17, a writ of habeas corpus was issued, on which the defendant, who was charged with high treason, was brought into' court. He had been committed on the warrant of the district judge. A motion was made for his discharge, “ absolutely, or at least upon reasonable bail.” The court held the- prisoner to bail. From the opinion pronpunced, it appears the deliberation of the court was chiefly on the subject of appointing a special circuit court to try certain offences, which, for the reasons assigned, they'refused to do.

Here, it is said, was an original exercise of jurisdiction by the court, as it does hot appear that the district judge was holding a court at the time of the commitment. No objection, seems to have been made to the jurisdiction,. and the court did not consider it. The defendánt was discharged on bail, and' this may be presumed to have been one of the main objects of the writ.

The thirty^third section of the Judiciary . Act of 1789 provides, that, “ upon all arrests in criminal cases, bail shall be admitted, except where the, punishment may be death, in which cases it, shall not be admitted but by the Supreme or a Circuit Court, or by. a justice of the Supreme Court,” &c; Hamilton’s case was within this section, the charge against him being treason, which was punishable with death. The case is not fully reported. The motion to discharge the prisoner is hot noticed in the opinion of the court, and this omission may be accounted for on the ground that they had no power to discharge; But, whether this presumption be well founded or not, it is clear, if this were not, the exercise of an-original jurisdiction, that the court had a right to admit to bail, under the section, and for that purpose to cause the defendant to be brought before them by á habeas corpus.

Ex parte Burford, 3 Cranch, 448, was a habeas corpus, on which the prisoner, who had been committed by the Circuit Court of.this District, was discharged, there being no sufficient cause for the commitment.

Ex parte Bollman & Swartwout, 4 Cranch, 75, gave rise to much discussion on the power of the court to issue a writ of habeas corpus ; .and, in their opinion, they consider the subject with great care.

... The chief justice disclaimed all jurisdiction in the case, “not given by the constitution or.laws of the United States.”

He refers to the fourteenth section of the Judiciary Act above cited, in these words :— “ That all the before-mentioned courts of the United States shall have power tti issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the' principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of 'the same, or are necessary to be brought into' court to testify.”

Bollman and Swartwout had “ been committed by the Circuit Court of the District of Columbia, on a charge of treason against the United Stales.”

The.court held, that the proviso limiting the cases in which the writ should issue extends to the'whole section, and that .they could issue the writ, as it was clearly the exercise of an. appellate jurisdiction ; that “ the revision of a decision of- an inferior court, by which a citizen has been committed to jail,”, is an appellaté power.

In Ex parte Kearney, who was committed by the Circuit Court of the District of Columbia, for an alleged contempt,” 7 Wheat. 38, the court said, that the case of Bollman and Swartwout expressly decided, upon full argument, that this court possessed such an authority, and the question has ever since been considered at rest.” And they held, “that a writ of habeas corpus was -not a propér remedy, where a party was committed for a contempt by a court of competent jurisdiction.”

The preceding cases were all referred to in Ex parte Watkins, 3 Peters, 193, and the court said, — “ Without looking into the indictments under which the prosecution against the petitioner was conducted, we are unanimously of opinion that the judgment of a court of general criminal jurisdiction justifies his imprisonment, and that the writ of habeas corpus ought not to be awarded.”

Again, in 7 Peters, 568, the case of Ex parte Watkins was brought before the court- on a writ of habeas corpus, on the ground that-the prisoner.. “ would not be detained in jail longer than the return day of the process, and he had been brought into court and committed, by the order of the court, to the custody of' the marshal.” This committal was required by the law of Maryland, in force in this District, and it not having been ordered, the court discharged' the petitioner.

In all the above cases, except in that of Hamilton,, this court sustained' the power to issue the writ of habeas corpus, in the exercise' of an appellate jurisdiction under the fourteenth section of the act of 1789 ; and the case of Hamilton was probably sustained-under the thirty-third section of the same act, for the purpose of taking bail. The same doctrine, was maintained in Ex parte Dorr, 3 Howard, 104. In that case the proviso in the fourteenth section was considered as restricting the jurisdiction to cases-where a prisoner is “in custody under or by color of the authority of the. United States, or has been committed for trial before some court of the same, or is necessary to be brought into court to testify.”

The case under consideration was .heard and decided by the district judge at his chambers, and not in court; and the question arises, whether the court can exercise jurisdiction to examine into' the cause of commitipent, under such a státe of facts.

There is no pretence that this can be done, in the nature of an appellate power. This court can exercise no power, in an appellate form, over decisions made at his chambers by a justice of- this court, or a judge of the District Court. • The argument of. the-court, in the case of. Solimán and Swartwout, that the power given to'an individual judge may well be exercised by the court, must riot be considered as asserting an original 'jurisdiction to issue the writ. On'the contrary, the power exercised in that casé was an appellate one, and the jurisdiction Was maintained on that ground.

It may be admitted that there is some refinement in denominating that an appellate, power which is exercised through the instrumentality of a writ of habeas corpus. In this form nothing more- can be examined into than the légality of the commitment. However erroneous the judgment of the court may be, either in a civil or criminal case, if - it had jurisdiction, and the defendant has been'duly committed, under an execution or sentence, he cannot be discharged by this writ. In .criminal cases, this court have no revisory power over the decisions of the Circuit Court.; and yet, as appears fromthecas.es cited, “the cause of commitment” in that court may be examined in this, on a writ of habeas corpus. And this is done by the exercise of an-appellate powers — a power to inquire merely into the legality of the imprisonment, but not to correct the errors of the judgment of the Circuit Court. This does not conflict with the principles laid down in Marbury v. Madison, 1 Cranch, 137. In that case., the court refused to exercise an original jurisdiction by issuing a mandamus to the Secretary of State ; and they held, that “ Congress have not power to give original jurisdiction to the Supreme Court in other cases than those described in the constitution.”

There is no form in which an appellate power can be exercised by this court over the proceedings of a district judge at his chambers. He exercises a special authority, and the law has made no provision for the revision of his judgment. It cannot be brought before the District or Circuit Court; consequently it cannot, in the nature of an appeal, be brought before' this court. The éiercise of an original jurisdiction only could reach such a proceeding, and this has not been given by Congress, if they have the power to confer it.

Upon the whole, the motioh for the writ of habeas corpus in this case is overruled.

Order.

Mr. Coxe, of counsel for the petitioner, having filed, and read* in open .court the petition of the aforesaid .Nicholas Lucien Metzger, and moved the court for a writ of habeas corpus, as prayed for in the aforesaid petition, to be directed to the marshal of the United States for the Southern District of New York, commanding, him forthwith to produce before this honorable court the body of the petitioner, with the cause of his detention, — on consideration whereof, and of the arguments" of counsel thereupon''had, as well against as in support of the said motion, and after mature deliberation thereupon bad, it is now here ordered and adjudged by this court, that the prayer of the petition be denied, and that the said motion be and the same is hereby overruled.


source: Caselaw Access Project

author: Mr.’ Justice DANIEL,

license: Public Domain

text:
    Albert G. Creath’s Administrator, Complainant and Appellant, v. William D. Sims.
    The following principles of equity jurisprudence maybe 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 diligenq^
    Therefore, where a complainant prays to be relieved from the fulfilment of a., con* tract, which was. intentionally made in fraud of the- law, the answer is, that however unworthy inay 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. Tim consideration upon which the note waa given was then open to inquiry, and it is a sufficient indulgence to have been permitted once to set up such a defence.
    The cases examined, showing how far and under what circumstances the liability of a surety becomes fixed upon him as a principal deb.tor.
    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, this1 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 Datíiel.

      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 the 25th of June, 1838, A. G. Creath, together with William N. Pinkard (who signed himself as principal), John I. Guión, and Samuel Mason, executed their promissory noté to the appellee, as administrator of John C. Ridley, for the sum of ‡ lO,392fC50,, payable on the 1st day of 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 the 2d of October, that he had levied upon certain slaves enumerated in his return, the parties to thé promissory note, the defendants in the judgment, together with a certain T. L. Arnold, on the, 2d day of 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 fien facias was, on the 16th of Decembér, 1839, sued out thereupon, and on this process the marshal, on the 24th of 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 24th,. 1840.” On the 21st of May, 1840, a venditioni exponas was sued out, ordering the- sale of the property which had been levied npon, 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 the 2d of 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 $10L only. In consequence of the insufficiency of the- sale, under the last venditioni exponas, to satisfy the judgment, process oí fieri facias, alias fieri facias, plwries and alias plwries 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 the 25th day of November, 1842, obtained from the district judge of the Southern fiistrict 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 : — 1 st. 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 th^t 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 thé 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 in-, tririsic 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 defence 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 any thing except of the title to the property conveyed. Several depositions were taken on behalf of the complainant, and some exfiibits 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 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, an appeal was taken to this court.
    The cause was argued by Mr. Crittenden, for the appellant, and by Mr Coxe and Mr. Chalmers, for the appellee.
    . Mr. Crittenden,

    after stating the case, proceeded' with the argument.
    The question arising ’upon the case thus presented is, whether the complainant, as the surety of Pinkard, is discharged, in equity, from, his liability as such ?
    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 daté of the execution, the marshal was ■ directed by the plaintiff’s attorney “to return the- ’ivy to court without selling or advertising for sale,” unless otb~r judgments were préssed to an amount endangering the debt. The marshal returned on the execution,— “ Levied this fieri facias on lots No. 93, &c.', and not sold by ordeV of attorney.”
    Another execution did not issue on the judgment until the 2lst-of May, 1840, that being the date of the venditioni exponas.

    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. Ón the contrary, it would seem to he 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,” &c. “ 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,” &c.
    Proof to the same point is- contained in the deposition'of Pinkard. He says, — “ The stay of execution was granted at my request, and the only consideration that I kné'w 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 evidence does not establish .an agreement for the delay, the foregoing statement of the witness, together frith other proof to which the attention of the court will be called, sufficiently maintains the position, that, by the postponement oLthe 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 return term of'the execution, amply sufficient to páy, 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 Pink-ard.”
    It also .charges, “ that after the return term of the execution by which said property was levied on, it became (as indeed all-real property had) greatly depreciated in value, in consequence of commercial embarrassments and 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.”
    In support of these allegations of the bill, the undersigned refer the court to the deposition of Pinkard. -The deponent states, —• “ There were two stays given on the execution by-F. Norcom, attorney for W. D. Sims, administrator of John C. Ridley’s estate, at my request, without the knowledge or consent óf Creath, and the sureties, in the case. The first was given in writing on the' execution at the marshal’s-office, in Vicksburg, on the-4th of March, 1840, erased,” — =.“ the second was given between the 15th of March and the first Monday of May, 1841.” “ I had sufficient property át the time the stay was given to pay five times the amount of judgments, then against me; and I could, if the execution had been presse.d, at any time within two weeks of the time the suspension was granted, have raised the money to pay it, as the counsel granting the stay was perfectly satisfied at the time.”
    ■ “ The effect of tiie stay was to cloud the title to the property levied on in this case, and cause doubts in the minds of the best attorneys, whether the executions which had taken their regular course had' not a preference lien in every instance where they had not been paid, which would not have been the case if the suspension had never taken place. These doubts in the minds of purchasers opelated seriously against the sale of the property when it was finally offered.”
    Again,, the same deponent says, —“ If said stay had not been granted, I would and could have paid the money rather than the. property should have been sold, but the stay operated so seriously against me, that when the property was sold it was impossible for me to protect’it.”
    £?-At the time the sale was made, Major Milkie was anxious to purchase the property ” (one half at $ 16,000, and General Vick was in treaty for lots 9.3 and 94 at $ 32,000, one half in Planters’ Bank money, the balance in good funds); “ and was deterred from doing so owing to the advice of Mr. Yerger, who gave as his opinion that he could not get a title, owing to the stay given on said execution.”
    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 regularly 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. jr. 543), “into a vast variety of speculation, upon which no sound principle could be built.” Nor will the court, it is contended, look into the' encumbrances upon the property, alluded to in the defendant’s answer, with a view of determining the liability of the surety. Pinkard’s testimony is ample to show; that at all events, if the sale had taken, place, the debt for which the complainant was bound could have been made ; not only was the property itself sufficient, but Pinkard asserts he would have paid the money rather than it should have been then sold. The complainant was entitled to the benefit of these chances. The creditor, with an execution levied, was a trustee for all the parties interested in the' subject-matter concerning which such execution was taken out. Pitman on Principal and Surety, 177 ; Mayhew v. Crickett, 2 Swanston, 185.
    Upon the proof in the cause, therefore, it is contended, that the complainant is released from his obligation as surety. The authorities are fully to the point.
    The rule was distinctly recognized in Rees v. Berrington, 2 Ves. jr. 540. Lord Loughborough said in that case,.— “It is the clearest and most evident equity, not to carry on any transaction without the privity of him (meaning the surety) who must necessarily have a concern in every transaction with the principal debtor. You cannot keep him bound, and transact his affairs (for they are as much his as your own), without consulting him.” “The authorities fully warrant me in this though I should have granted the in-; junction, even without that-strong authority before Lord Thurlow.” “ There the creditor,” “ thinking that by leaving the debtor at large, and taking a judgment against him,' which affected all his property, he pursued a better mode, using his discretion, and acting upon his own account, he thought it better to give stay of execution than to have confounded the affairs of the man by destroying his credit, and holding him in prison. But he did it without consulting the surety ; and therefore Lord Thurlow held, and very rightly, that the surety was.discharged. The transaction in-this case was much more mischievous ; after circumstances of communication, that showed great embarrassment, great difficulty, and great distress, indulgence was from time to time given, under circumstances apparently very hazardous, without any communication with this man who had. so great an interest.”
    A question, similar in principle, arose in the case of Mayhew v. Crickett, 2 Swanston, 193, in which the Lord Chancellor said, — “ I always understood that, if a creditor takes out execution against the principal debtor, and waives it, he destroys the surety, on an obvious principle which prevails both in courts of law and in courts of equity,” for “ the principle is,” he 'observed in another place, “ that he is a trustee of his. execution for all the parties interested.”
    In the case of Bullitt’s Executors v. .Winstons, 1 Munf. 269, the Court of Appeals of Virginia had occasion to allude to the question now before us ; and Judge Tucker held, that a plaintiff, by directing the sheriff to put off the sale of property taken in execution to a day after the return day, 'hnd to suffer- it to remain in the possession of the principal, releases the sureties altogether from that or any subsequent executions^, such direction being given without their concurrence.' '*
    The case of Jone,s a..Bullock, 3 Bibb,.467, is directly to the same effect. . There the party interested in an execution directed it to be 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 thém from their responsibility.” And the court -directed a decree, making the injunction of the surety to the judgment perpetual.

      In th9 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.
    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.
    2. That the' original contract for the sale of the negroes made by .Colonel Ridley, and for part of the purchase money of which the note in which this suit originated was given, was null and void, on the ground of fraud in the vendor in making the sale, either because of his false representations as to the soundness of the slaves when sold, or because of his having made an actual warranty of such'soundness, which was broken.
    3. That the .original contract as aforesaid was void, because of the violation of the provisión of the constitution of Mississippi, prohibiting the importation of slaves.
    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 defence to the action. In vindicating the correctness of this decree, the counsel for the appellee feel themselves fully authorized to sustain it as well upon the law as the facts. They therefore insist, that neither of these grounds of de-' fence is. established by the proof in the cause ; and, secondly, not .under circumstances which justify the interposition of a court of equity to prevent a party who has obtained a judgment .at law 'from having the full benefit and effect of such judgment.
    I. The alleged suspension of the execution which had been levied upon the property of Pinkard.
    1. It appears from the record, that Sim§ 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, Guión, 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 ■ ávers a. joint .responsibility on all the parties defendants. The defendants all united in the plea of the general issue, and upon the trial the jury found a general verdict against all, upon which judgment was entered.
    Upon this judgment a writ oí fieri facias issued against- all the defendants jointly. Upon this writ tire 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 seern 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 December, 1841, which was returned,— “ Sold to S. S. Prentiss, and proceeds applied.” March 15th, 1841, a pluries issued, which was stayed as against the other defendants. June 8, 1841, an alias pluries issued, to which the marshal returned a levy on certain specified property of Pinkard. Subsequent process was issued, but the fieri facias, which was enjoined does not appear- in the record.
    The only act complained of as an. undue act of forbearance, or giving of time, is that of March 22d, 1840 ; qucere, if not March 24, 1840. This, obviously was in no respect detrimental to complainr ant. 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.
    But what was then the position of the parties ? 1 A judgment at law had been obtained against all jointly. The responsibility of each was then fixed. The plaintiff was at perfect liberty to issue an execution, or to withhold it, to issue 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 rendition of the first judgment against him. The right of thq plaintiff was perfected. He might noy 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.
    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 again, with his associates, enters into a new and solemn instrument, under hand and seal, in the shape of a forthcoming bond. This bond created a new ¡and substantive contract; and, being forfeited, gave rise to another judgment, comprehending all the parties to it. Again, plaintiff had a perfect right to proceed against one of all ; to direct the marshal to levy upon any property of any one of the defendants. 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 Éond, 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 patties were equally bound, jointly and severally.- There was no primary responsibility in one, or a contingent and subordinate responsibility in the other.
    2. Becáuse,- 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. Pavert, 3 Wheat. 525, 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. Gh. 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 Kedt says, “ that even an express dissent by the bail will not discharge them from their obligation to pay the judgment against them. Their privileges as bail were lost, and they had become fixed as principal debtors.” I am not aware of any case that hás ever imposed upon the creditor the necessity of peculiar diligence .against the principal, on the ground of the still subsisting relation of' principal and surety, after judgment and execution against the bail or surety. It becomes, then, too late to inquire into the antecedent relations of the parties. Those relations bec.ome merged in the judgment..
    The case of Rees v. Berrington, 2 Ves. jr. 540, is a leading case upon this point, and the cases cited in the note to that case (Phil, ed.) fully illustrate the distinctions which exist.

      3. The aet complained of was not 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.
    Nor was there any agreement obligatory on the parties to grant indulgence to the principal debtor. In Reynolds v. Ward, 5 Wend.' 501, it was held that an agreement, without consideration, by a creditor with a principal debtor, enlarging the time for the payment of a note, does not discharge the surety.
    Bank of Utica v. Ives, 17 Wend. 501. Indulgence to the maker of a note, on receipt of security from him, does not discharge the indorser, where there is no valid agreement extending the time for payment'for. a definite period. Nelson, C. J., in this case, distinctly says, — “ Mere indulgence at the will of the creditor, ex tended 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 tim’e, fQunded-of course upon a good consideration, to have this effect.’’
    In M’Lemorer. 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 netfer 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 Tight of completa, 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.
    If further answer be required upon this point, it will be found in the-fact that the objection comes too late. -If ever available, it should have been urged beforé the issue of the execution upon which the forthcoming bond was given, before judgment had upon that bond, —; the forfeiture ófwhich was a satisfaction and extinguishment of the original judgment ; King v. Terry, 6 Howard’s 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 defence, 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 pretence 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 á court of equity. The bill of sale of the negroes contains no covenant of warranty, and completely falsifies the pretence that One was' given ; nor was the appropriate remedy, by action for breach of such covenant, ever resorted ‡0.
    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, endeavoured to avail themselves of the same defence, 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 defence, 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. ]VIiss. 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 evasion 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 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 ' rélief.
    In brief, the whole of these objections involve a palpable rpistake 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 behind 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 might 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 grounds relied on by the complainant as the foundation of his claim to relief, the second and third, being coinci-. dent 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 hás been made, will be first considered, and this examination will be premised by,stating the following principles of equity jurisprudence, which may be affirmed to be without exception ;— that whosoever would seek admission into a court of equity must come with' clean hands J 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 rémédy the consequences of laches or neglect, or the want of reasonable diligence. Whenever, therefore, a competent remedy or defence 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 fulfilment. This prayer,.too, is preferred to a court of conscience, to á 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 he 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 illegality of the consid» eration for which the note was given ; no reason is perceived why ■such a defence 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 a 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 defence 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 compilainant- amongst them, execute to the respondent their forthcoming bond, equivalent, in effect to a confession of a second judgment,-and after these repeated-and.'concjusive recognitions .of their liability, they invoke the aid of a court which repels whatever is unfair, or even illiberal, to declare that these proceedings, thus solemnly had and evidenced of record, shall be utterly null; that the respondent shall be stripped of his property without the ■promised equivalent, and that 'property be secured, if not to the complainant, to one with whom he was associated in effecting its rer linquishment by the owner.

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 ¿lleged to have been done him by a change of his position'and responsibility, by the indulgence extended to his codefendant 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 bM, 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,' and still moré 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 tp be joint and several.' See Howard & Hutchinson’s Statutes of Miss. 578. The proposition contended for by the respondent, were it necessary^here to pass upon it, would not be found without support from decided cases.. Thus, for in-, stance, it. was ruled by Chancellor Kent in Bay and others 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 surety, 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 riot 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 him, springing from the conduct of the respondent or his agents in reference to that judgment and the proceedings had thereupon ? The directions given by the attorney for the plaintiff in the judgment have- been set out in extenso. These,' directions express upon their face no consideration received or promised for the forbearance^ — no limitation upon the right of the plaintiff at law to proceed upon his execution, — 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. Berfington., 2 Yes. jr., 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 Ins 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 • stirety altogether, for it was an attempt to impose 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 anywhere, —contracting with nothing, nor with any person ? A few of the numerous cases, both at law an&in equity, which are applicable to this question will be adduced.

Reynolds v. Ward, 5 Wend. 501. It was ruled, that an agreement without consideration, enlarging the- time of payment,, was not a discharge of the surety to the note. So held on demurrer to a plea by surety, averring that at the time when the note became due the principal was able to pay, and would have paid had not the’ time been extended, and, that after the note fell due the principal became insolvent. 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 .foe 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 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 .foe principal' for a definite length of'time.

Hunter’s Administrators v. Jett, 4 Randolph, 104. A surety will not be discharged by indulgence granted by foe creditor to foe principal debtor, unless such indulgence ties up the hands, of the creditor from pursuing the debtor at law ; nor will the surety be discharged evén 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 foe very time foe sheriff is about to levy execution on the property of foe principal, and although, in consequence of . that indulgence foe principal debtor has been enabled to remove his properly 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 definite time ; the principal ánd all the sureties but one become insolvent ; and then the creditor sues out execution against foe 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 consideration ; second, a promise to indulge ; third, the definite nature of 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, the -principal debtor for delay, or otherwise. «hanging 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 of agreements, — arrangements between creditor and debtor, —: situations from which something like hardship might possibly spring. In the. present case, there is neither contract, arrrangement, nor even’a scintilla of right, on which either law; or equity cán lay hold. The complainant, after permitting a judgment on the note, without attempting a-defence 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 off conduct, he addresses himself to a court of equity, práying 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 décree, 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 oh to be heard on the transcript 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.