Albert Creath Administrator, Complainant and Appellant v. William Sims

• Decision Date: 01 January 1847
• Citation: 12 L.Ed. 111,46 U.S. 192,5 How. 192
• Parties: ALBERT G. CREATH'S ADMINISTRATOR, COMPLAINANT AND APPELLANT, v. WILLIAM D. SIMS
• Court: U.S. Supreme Court

46 U.S. 192 5 How. 192 12 L.Ed. 111 ALBERT G. CREATH'S ADMINISTRATOR, COMPLAINANT AND APPELLANT, v. WILLIAM D. SIMS. January Term, 1847

THE reporter finds the following statement of the case prefixed to the opinion of the court, as delivered by Mr. Justice Daniel.

Page 193

This is an appeal from a decree of the Circuit Court of the United States for the 9th Circuit and Southern District of Mississippi. The facts of this case, so far as it is necessary to set them forth, are as follows:—On 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. 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 the 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 fieri facias was, on the 16th of December, 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 upon, and on that process there was a return that there had been no sale for the want of bidders. A second venditioni exponas was next sued in November, 1840, and on this the marshal returned that the property had been sold on 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 $101 only. In consequence of the insufficiency of the sale, under the last venditioni exponas, to satisfy the judgment, process of fieri facias, alias fieri facias, pluries and alias pluries fieri facias was sued out, until the autumn of the year 1842, when the marshal, having levied upon certain real and personal estate of the said A. G. Creath, as set forth in the return of that officer, and in his advertisement for the sale thereof, the complainant, on the 25th day of November, 1842, obtained from the district judge

Page 194

of the Southern District of Mississippi an injunction to stay all proceedings upon the judgment recovered against him and others at law. The grounds set forth in the bill, and on which relief is prayed, are the following:—1st. That the complainant, was a mere surety in the note on which the action was instituted, and that the indulgence granted by the direction to the marshal after judgment obtained was in fraud of defendant's rights as a surety; was in its operation, in fact, injurious to him, from the deterioration of the property of Pinkard the principal during the interval of that indulgence; was an infraction of the undertaking of the surety, and therefore absolved him from all responsibility. 2dly. That the instrument on which the judgment was obtained was one of several notes given for the purchase of a number of slaves sold by the intestate of the plaintiff to Pinkard, several of whom were unsound, although, as the plaintiff charges, they were (as he believes) warranted to be sound and healthy. 3dly. That although the slaves for which the notes were given were delivered in the State of Tennessee, yet the contract for them was in fact made at Vicksburg, in Mississippi, and was designed to be, and was in reality, a fraud upon the constitution and laws of Mississippi, forbidding the introduction of slaves, as merchandise, within that State.

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

Page 195

behalf of the complainant, and some exhibits filed by the respondent, but as these are deemed immaterial to the questions on which the decision of this cause properly depends, they will not be made subjects of comment. Upon a final hearing before the circuit judge, on 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, a 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 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. 93, &c., and not sold by order of attorney.'

Another execution did not issue on the judgment until the 21st 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. On the contrary, it would seem to be admitted. For it says,—'This respondent is informed, and believes, that the only reason which influenced the attorney of record to consent to one day's time in the sale, and the only reason assigned to him by Pinkard when asking such time, was to enable Pinkard, if possible, to complete some negotiations that he had then going on, to relieve his property,' &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.

Page 196

He says,—'The stay of execution was granted at my request, and the only consideration that I knew for granting it was, that the attorney, F. Norcom, who granted it believed I would be able to pay it in a short time, as he knew it was the first levy that had ever been made on my property, and that he considered it ample to pay every dollar against me under any circumstances.'

If, however, it should be supposed that the evidence does not establish an agreement for the delay, the foregoing statement of the witness, together with other proof to which the attention of the court...