55 U.S.

70
14 How. 70
14 L.Ed. 330

SAMUEL SAMPLE, ISRAEL W. PICKINS, AND BURWELL

SCOTT, APPELLANTS,
v.
SHADRACH BARNES.
December Term, 1852

THIS was an appeal from the Circuit Court of the United States for the
Southern District of Mississippi.
The facts are all stated in the opinion of the court.
It was argued, in a printed brief, for the appellants, by Messrs. Walker,
Freeman, and Volney E. Howard. No counsel appeared for the appellee.
The argument consisted chiefly in comments upon the testimony, and
contending that giving a forthcoming bond did not recognize the validity
of the judgment.
The giving and forfeiture of the forthcoming bond did not deprive the
party of his right to a decree for a new trial at law. It is, in legal effect,
little more than the ordinary bond of replevin. There was no judicial
proceedings on the forfeiture, and no right, under the laws of Mississippi,
to inquire into the irregularities, errors, or frauds of the original judgment.
The giving of the bond therefor did not operate a delay in presenting his
defence at law. He could only make it in equity.
It has been decided, in Mississippi, that the giving and forfeiting of a
forthcoming bond operates as an extinguishment of the original judgment.
But this has been held with reference to judgment liens and process. The
courts would not, of course, permit an execution on the original judgment,
and on the statutory judgment on the forthcoming bond, or sustain liens on
both judgments. The courts of that State, however, have fully recognized
the principle, that the statutory judgment rested entirely on the judicial
judgment, and have held that the former could not be supported without
the latter, and became void on its reversal. Hoy v. Couch, 5 How. Miss.

Rep. 188. If, therefore, the appellant had a good cause for a new trial in
chancery, he did not lose it by giving the forthcoming bond. So far as the
merits and the equity is concerned, both proceedings are but one
judgment. The statutory proceeding is only held a judgment, as a mere
legal fiction, and cannot stand in the way of a court of equity.
Mr. Justice DANIEL delivered the opinion of the court.

In their bill, filed in the Circuit Court, it is alleged by the appellants that, in the
month of October, 1836, the appellee, Barnes, in conjunction with one Dunett,
introduced from other States of the Union into the State of Mississippi, and in
violation of her constitution and laws, a number of negro slaves, for the purpose
of being sold as merchandise. That, in execution of the design for which they
were introduced, a number of those slaves were sold by the appellee to one
Thomas B. Ives, from whom he took, in payment, a bill of exchange, bearing
date in October, 1836, drawn by Ives on N. and J. Dicks, of New Orleans, and
indorsed by the appellant, Sample, and one G. A. Thompson. That this bill,
being presented first for acceptance and subsequently for payment, was, in each
instance, refused by the drawees, but was not protested either for nonacceptance or non-payment. That, after these transactions, upon some
agreement between Barnes and Ives, a second bill of exchange was, in 1837,
drawn by the latter upon the firm of Ford, Markham, & Co., for $5,916.66, at
ten months after date, and was indorsed by the appellant, Sample, and by
George A. Thompson, the indorsers of the previous bill, and was substituted in
lieu thereof. That this second bill was not paid; but whether it was protested, or
whether notice of its dishonor was ever given, the appellant, Sample, states that
he was unable to recollect. That Barnes, being urged by Sample to sue Ives
immediately for the amount of the second bill, instead of complying with this
direction, took a deed of trust on certain property of Ives, stipulating in this
deed to give further time for the payment of the bill; and that this deed of trust,
and the agreements therein contained, were made without the knowledge and
against the consent and directions of the appellant, Sample, and in fraud of his
rights as a surety. That a suit having been instituted in the Circuit Court of the
United States for the Southern District of Mississippi, against Sample, as the
last indorser of the bill of exchange drawn on Ford, Markham, & Co.; the said
Ives, upon information being given him of that fact by Sample, assured him
that he need not feel any uneasiness on that account, as he, Ives, had employed
able counsel to defend him in that suit. That, subsequently to this assurance
from Ives, in a conversation of the appellant, Sample, with Barnes, the latter
promised him, that, if Ives would confess a judgment in the State court for the
amount of the bill, he, Barnes, would dismiss the suit he had instituted against
the appellant as indorser of that bill. That, upon communicating to Ives the

proposition of the appellee, Ives professed his perfect readiness to comply with
that proposal, and Barnes then parted with the appellant, with the professed
purpose of obtaining from Ives a confession of judgment, and at the same time
agreed with the appellant, Sample, that, in the event of a failure by Ives to give
such confession, he would inform Sample thereof, in order that they, conjointly,
might endeavor to obtain from Ives a fulfilment of his promise. That Barnes
omitted to give information of the refusal on the part of Ives; but permitted the
appellant, Sample, to remain under the impression that a confession of
judgment had been given by Ives, until after the commencement of the Circuit
Court, in the month of May, 1839, when the appellant, Sample, was informed
by Barnes that Ives was insolvent. That, by these circumstances, and especially
by the conduct of Barnes, Sample was thrown off his guard, and a judgment by
default was, in consequence thereof, rendered against him at the May term of
the Circuit Court, in 1839, for the sum of $6,822.62, and the costs of suit. That,
execution having been sued out on this judgment, the appellant, Sample, in
conformity with advice given him, had, with the other appellants, Pickins and
Scott, as his sureties, executed a forth-coming bond for the delivery to the
marshal of the property therein named; which bond, having been forfeited,
operated as a judgment, and execution thereon had been sued out, and had been
levied on the slaves and other personal property of Sample.
2

Upon the foregoing statements, the appellants prayed, that the original contract
for the sale of the slaves by Barnes, and all the undertakings and liabilities
growing out of that sale, might be declared to be void as having been in
violation of the constitution and laws of Mississippi; and that for this cause
affecting the character of the contract, and by reason too of the fraud and
deception imputed by the bill to the appellee, Barnes, with reference to Sample,
the judgments and executions obtained for his benefit might be perpetually
enjoined.

Upon the 24th of April, 1840, an injunction was awarded the appellants by the
Judge of the District Court of the United States for the Southern District of
Mississippi.

To that portion of the bill which charges the introduction of slaves in violation
of the constitution and laws of Mississippi, the appellee declines to answer, as
that charge included the liability to a criminal prosecution. To this refusal of
the appellee no exception was taken, either in the pleadings or at the hearing of
the cause. To every other charge in the bill the answer is directly responsive,
and fully denies every material allegation. And with respect to all the charges,
inclusive of the first, the testimony adduced by the complainant below, falls far
short of sustaining any one of them. It is deemed loose, vague, and immaterial.

Nay, the very contract with Ives, filed as an exhibit with the bill, and which is
alleged to have been an agreement for indulgence to Ives, to the prejudice of the
rights of Sample, absolutely overthrows this assertion, and is shown upon its
face, and by its terms and object, to have been simply an additional security
from Ives, operating, if at all, for the advantage of Sample; a security too,
which the grantee, in that instrument had the right to enforce immediately upon
failure to pay the bill of exchange drawn on Ford, Markham, & Co.
5

Upon the hearing of this cause before the Circuit Court at the November term
of 1848, the injunction which had been awarded the appellants was dissolved,
and the bill dismissed with costs. For the examination of that decree upon
appeal, this cause is now before us.

This case is then left to be decided upon its features, as disclosed in the bill and
answer; and the application to these of a few settled and familiar principles of
equity jurisprudence, will at once determine its fate. And first with respect to
the intrinsic merits of the appellant's original claim to exemption from liability;
and secondly, as to the degree or extent in which such claim, if ever existing,
has been affected by his own conduct, as evincing either the assertion or the
surrender of that claim. The bill commences by charging the introduction and
sale of slaves within the State of Mississippi, in violation of the constitution
and laws of that State, as the essential ground of impeachment of the original
contract and of Sample's exemption from liability accruing therefrom. Yet it is
somewhat singular, that whilst urging this objection and whilst admitting his
participation in the sale, by giving it the sanction of his name and credit, he is
entirely silent as to any knowledge by him as to the illegality of a transaction in
which he bore so important a part. He certainly possessed, at some period of
time, knowledge of the character of that transaction; and if his knowledge
reached back to its origin and purposes, or to the date of his own participation
therein, he must be viewed as standing in pari delicto with all similar actors
thereina position which, however it might shield him against attempts from
associates in wrong, so far as these should be urged through the instrumentality
of courts of justice, can invest him with no rights, either at law or in equity as
against advantages acquired by his confederates. The appellant, Sample, was
certainly bound to show himself clear of the taint of a transaction which he
denounces as illegal and fraudulent, but in which he shows that he has mingled
from its inception, and which he deliberately ratified at an interval of six
months after his first participation in it. His failure to do this, if his
denunciation of the transaction be taken as true, must be decisive of his fate
before a tribunal which lends its aid or countenance to those only who can
present themselves with pure hands, and who are free from suspicion.

The rule, as applicable to the position of this party, a rule believed to be without
exception, has been distinctly announced by this court in a case very similar in
most of its features to the one now before us; for that, like the present, was a
case in which the contract was impeached for precisely the same reason for
which the interposition of equity was here invoked; and in that, too, as in this
instance, after the omission to set up a defence at law. We allude to the case of
Creath's Administrator v. Sims, in the 5th of Howard, where this court, on page
204, have thus announced the rule by which courts of equity are governed.
'Whosoever,' say they, 'would seek admission into a court of equity must come
with clean hands, and such a court will never interfere in opposition to
conscience or good faith. The effect of these principles upon the statements of
the complainant is obvious upon the slightest consideration. 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 addressed to a court of
conscience, to a court which touches nothing which is impure. The condign and
appropriate answer from such a tribunal to such a prayer is this, that, however
unworthy may have been the conduct of your opponent, you are confessedly in
pari delicto; you cannot be permitted here to plead your own demerits:
precisely therefore, in the position in which you have placed yourself, in that
position we must leave you.' The attitude of the appellant, Sample, in
connection with this aspect of the case, would of itself alone be conclusive
against his application to equity for relief; but as this party has adduced other
reasons upon which he has supposed himself entitled to equitable interposition,
it may not be out of place to show their utter inconsistency with the very
rudiments of equity jurisprudence; with principles so familiar to the courts and
to the profession as to render their particular annunciation scarcely necessary.
The defence now attempted to be set up by Sample, viz.: the illegality under the
constitution and statutes of Mississippi of the consideration for which the two
bills of exchange were given, if true, was a legal defence, to be availed of in the
action at law by plea or demurrer. Of this principle he seems to be aware, and
therefore he endeavors to escape from its operation by attempting to fix upon
Barnes certain practices by which he, Sample, was prevented from making a
proper defence in the action against him in the Circuit Court; but with respect to
the testimony adduced to establish such alleged practices, it may be remarked in
the first place, that it does not make them out as they are averred by the bill to
have occurred, and in the next place, admitting the averments in the bill, with
respect to the practices objected against Barnes after the institution of the suit at
law, supposing them to have occurred as stated in the bill, they could have
formed no valid obligation upon Barnes to surrender, without consideration or
equivalent, his legal rights, nor any dispensation to the appellant, Sample, from
his duty to guard his interests in the pending litigation in which he was a party.

Barnes had no power to compel a confession of judgment by Ives; and even if

such confession had taken place, there could be no propriety in requiring
Barnes to substitute for his demand, upon a solvent debtor, a judgment against
another who was not solvent.
8

The appellant, Sample, appears to have been guilty of the grossest neglect and
disregard of that diligence which the law requires at the hands of all suitors,
and from the consequences of which they cannot be rescued consistently with
the rights of others or the order of society. The law, as applicable to such
neglect, is plainly declared in the case of Creath v. Sims, already quoted, in
which this court have said that 'a court of equity will never be called into
activity to remedy the consequences of laches or neglect, or the want of
reasonable diligence. Whenever, therefore, a competent remedy or 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.'

How, then, shall the conduct of the appellant, Sample, be reconciled with the
principles by this court so emphatically announced? He not only omits to insist
upon his legal defence in the suit at law against him in the Circuit Court, but,
after the judgment in that court by default, he executes a delivery bond, with the
other appellants as his sureties; thus, after the first judgment against himself by
default, the procures a second judgment against himself and his sureties as it
were by confession. This party has, by his conduct, four times recognized the
claim against him by Barnestwice by his indorsement upon the bills drawn
on N. and J. Dicks & Co., and on Ford, Markham, & Co.; in the third instance
by permitting the judgment by default; and fourthly, by executing the
forthcoming bond, which he knew was tantamount to a confession of judgment
for the demand.

10

Upon these grounds, solely, and independently of the original consideration on

which the undertaking by Sample was founded and supposing that
consideration to have been invalid, if inquired into at the proper time, this
appeliant must, by his conduct, be regarded as having waived all right of
inquiry into that consideration, nay, rather as having repeatedly admitted its
validity. To permit him, after so doing, to contradict all that he has repeatedly
and formally declared, would be to allow him to falsify his solemn acts, to trifle
with the settled rules of law and the practice of the courts, and would lead to
endless litigation. We therefore order that the decree of the Circuit Court,
dissolving the injunction and dismissing the bill in this case, be, and the same is
hereby, affirmed.

Order.
11

This cause came on 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, adjudged,
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.