Peter Vivian Daniel

“ 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 ought to be affirmed, with ten per cent. damages. ”

“ 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. ”

“ 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 surety will not be discharged by indulgence granted by the creditor to the principal debtor, unless such indulgence ties up the hands of the creditor from pursuing the debtor at law; nor will the surety be discharged even then, if the indulgence shall have been given with his knowledge and assent. ”

“ The respondent denies that the complainant, Creath, could properly be regarded as a surety, either in the note on which the action at law was instituted, or in the forthcoming bond executed posterior to the judgment; but insists that in both the complainant must, with respect to the respondent, be considered as a principal, equally with the other makers of the note, or obligors in the forthcoming bond. ”

“ 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 and all the surities but one become insolvent; and then the creditor sues out execution against the solvent surety. Held that the surety is not entitled to relief in equity. ”

“ The marshal returned, that he had levied upon certain real estate, designated, 'not sold by order of attorney.' The levy does not indicate to which of the defendants the property levied on belonged, and the order of plaintiff's attorney, set forth in the bill, and in the transcript of record, does not name any one of the defendants to whom indulgence was to be granted. Whatever favor was granted would seem to have been extended equally to all. ”

“ 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. (N. Y.) , 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. ”

“ Powell et al, 13 Wheat., 554, in which it was ruled by this court, that an agreement between a creditor and the principal debtor for delay, or otherwise changing the nature of the contract, in order to discharge the surety, must be an agreement having a sufficient consideration to support it and be binding upon the parties. There is not one of the authorities above cited which does not more than cover the predicament presented by the case under consideration. ”

“ Ch., 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. ”

“ A copy of the bill of sale from Ridley of Pinkard and others, conveying the slaves, is made an exhibit in the cause, and upon the face of that instrument there is no warranty of any thing except of the title to the property conveyed. Several depositions were taken on behalf of the complainant, and some exhibits filed by the respondent, but as these are deemed immaterial to the questions on which the decision of this cause properly depends, they will not be made subjects of comment. ”

“ Sims
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. Guion, and Samuel Mason, executed their promissory note to the appellee, as administrator of John C. Ridley, for the sum of $10,392 25/100 payable on the 1st day of October following, at the branch of the Planters' Bank at Vicksburg in Mississippi. ”

“ The condign and appropriate answer to such a prayer from such a tribunal is this;-that, however unworthy may have been the conduct of your opponent, you are confessedly in pari delicto; you cannot be admitted here to plead your own demerits ”

“ The former execution was levied on the 24th of March, 1840, and the real estate levied on was not sold until the 2d of March, 1841, being an interval of eleven months and a few days. Contemporaneously with the date of the execution, the marshal was directed by the plaintiff's attorney 'to return the levy to court without selling or advertising for sale,' unless other judgments were pressed to an amount endangering the debt. The marshal returned on the execution,-'Levied this fieri facias on lots No. ”