given with such exceptions and under such regulations as Congress may make, can only be exercised in pursuance of an Act of Congress 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 Dall. 327; United States v. More, 3 Cranch, 172; Durousseau v. United States, 6 Cranch, 313. In search of the vagrant power to issue

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 like process, this court may re-examine 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

er.

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 ex185*] amine the legality of the *commitment." Same case, 7 Peters, 572. In Ex-parte Milburn, 9 Peters, 704, in note, Chief Justice Marshall again says: "As the jurisdiction of the Su

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 [*186 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 Dall. 297; United States v. Hudson et al. 7 Cranch, 32. Jurisdiction is defined to be the power to hear and determine a cause. Appellate juris

that the court has the power in this case to award a habeas corpus." In 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 neces sary for the exercise of the jurisdiction, original or appellate, given to it by by the Constitution or laws 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

judgment of an inferior court. Chief Justice Marshal says, in Marbury v. Madison, 1 Cranch, 175: "It is the essential criterion 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 proceeding 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, does not and can not 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 writs of prohibition are enumerated 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, or a district judge, while sitting as a a committing magistrate? McCluny v. Silliman, 2 Wheat. 369; McIntire 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

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 commitment, under such a state of facts.

There is no pretense 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 jus

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 had, 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.

Court. The argument of the court, in the case of Bollman and Swartwout, that the power given to an individual judge may well be exercised by the court, must not be considered as asserting an original jurisdiction to issue the writ. On the contrary, the power exercised in that case 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 legality 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 from the cases 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 power-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 192*] judgment. It cannot be brought *be

fore the District or Circuit Court; consequently

it cannot, in the nature of an appeal, be brought before this court. The exercise 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 motion 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

Complainant and Appellant,

V.

WILLIAM D. SIMS.

Court of equity will give no relief in the case of judgment in action on illegal contract-bill to enjoin showing no reason for omission of legal defense, dismissed-voluntary forbearance towards principal will not discharge surety.

The following principles of equity jurisprudence may be 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 diligence.

Therefore, where a complainant prays to be relieved from the fulfillment of a contract, which was intentionally made in fraud of the law, the answer is, that however unworthy may have been the conduct of his opponent, the parties are in pari delicto. The complainant cannot be admitfed to plead to 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. The consideration upon which the note was given was then open to inquiry, and

it is a sufficient indulgence to have been permitted once to set up such a defense.

The cases examined, showing how far and under what circumstances the liability of a surety becomes fixed upon him as a principal debtor.

Where the plaintiff in a suit voluntarily abstains from pressing the principal debtor, but re

seives 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, this 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 court, as delivered by Mr. Justice Daniel:

of the case prefixed to the opinion of the

*This is an appeal from a decree of [*193 the Circuit Court of the United States for the

9th Circuit and Southern District of Mississip

1

Mason, executed their promissory note to the appellee, as administrator of John C. Ridley, for the sum of $10,302.25, 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

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 District of Mis- [*194 sissippi an injunction to stay all proceedings upon the judgment recovered against him and others at law. The grounds set forth in the

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 with out 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

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. 2d. That the instrument on which the judgment was obtained was one of several notes given for the purchase of 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. 3d. 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.

a

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

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 atias fieri facias, pluries and alias pluries fieri

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