Sigerson v. Mathews.

the memory of the clerk from which the record signed by the judge was made, is the writing relied on. The memorandum has no value in this cause. The judgment above recited defeated the assignment set up by the complainants in their petition of intervention, and in terms bound the property attached; nor could a court of the United States, in a suit by bill in equity, call in question [*496] the informalities, if any exist, that may have occurred in executing the judgment of the State court. It was the duty of that court to correct any misconduct or mistake on the part of the sheriff in conducting the sale of the judgments, had complaint been made in time and proper form.

*

We concur with the circuit court, that the bill must be dismissed, and so order.

JOHN SIGERSON, Plaintiff in Error, v. EDWARD Mathews.

20 H. 496.

NEGOTIABLE PAPER-PAROL PROMISE TO PAY.

1. When an endorser of negotiable paper, before its maturity, promises the holder to pay it, he is liable without demand and notice at maturity.

2. So a promise to pay, made after maturity, with the knowledge that payment had not been demanded of the principal when the paper came due, is a valid promise.

THIS is a writ of error to the circuit court for the district of Missouri, and the case is well stated in the opinion.

Mr. Cushing and Mr. Gillett, for plaintiff in error.

Mr. Blair, for defendant.

[* 498]

*Mr. Justice MCLEAN delivered the opinion of the court. This is a writ of error to the circuit court for the dis

trict of Missouri. An action was brought by Mathews against John Sigerson, as endorser on a note of James Sigerson, now deceased, dated the 10th of March, 1852, for the payment of the sum of two thousand dollars, two years after date, at the Bank of the State of Missouri, with interest from the date.

It was proved on the trial that, in 1851, Mathews advanced largely to John Sigerson on some transactions in pork, whereby Sigerson became indebted to him in the sum of two thousand dollars; that Sigerson wanted two years' time, on which Mathews

Sigerson v. Mathews.

required a mortgage on real estate as security; but Sigerson offered to give the note of his brother James, endorsed by himself, instead of the mortgage; and he *represented that his [* 499] brother James was the owner of a valuable real estate near St. Louis; which offer was accepted, and the note was given. Some time in the fall of 1852, Joseph E. Elder, a witness, received the note from Mathews for collection, soon after the death of James Sigerson, and before the note became due. Witness called on John Sigerson, and asked him if he should have the note protested against the estate of James Sigerson. He replied, that the witness need not do so, and that the note should be paid at maturity. The witness then placed the note in his portfolio, where it remained until after due. After it was due, witness called on John Sigerson, and informed him that he had neglected to put the note in bank for collection, and asked him what he was going to do; he said he would see witness in a few days, and arrange it. Afterwards Sigserson said to the witness that he did not consider himself liable as endorser, as the note had not been protested.

In February, 1852, John Sigerson sold his interest in the farmi near St. Louis, which was one-half of it, and which contained about one thousand acres, to James Sigerson, who was to pay off the encumbrances on the land, which amounted to about sixteen thousand dollars. James executed twenty notes for two thousand dollars each, payable in six, twelve, and eighteen months; and John Sigerson made him a deed. In July, 1852, James reconveyed the land to John, and the bargain was rescinded. This was done because James had not fulfilled his contract. Nineteen of the notes were given up, but the note now in suit was not surrendered, and for which the account of James was credited on the books of John. James, on his decease, left no property.

On the above facts the court charged the jury, "if they believe, from the evidence, that, before the maturity of the note, in conversation with the agent of the plaintiff, the defendant dispensed with a presentation of the note and demand of payment, and promised to pay it or provide for its payment at maturity, he cannot now set up a defense to this suit, that the note was not presented for payment, and demand made therefor, when it was due, and that no notice of its dishonor was given."

That, "if, after the maturity of the note, the defendant promised the plaintiff or his agent to pay the same, having at the time of making said promise knowledge of the fact that the note had not been presented for payment, and that no demand had been made therefor, or notice of non-payment given, the defendant cannot

Sigerson v. Mathews.

now set up, as a defense to said note, a want of such demand or notice."

[ *500]

*If the defendant dispensed neither with the presentation of the note and notice, nor promised to pay the same, having knowledge as above stated, the plaintiff cannot recover." Exception was taken to these instructions.

Certain instructions were asked by the defendant, which were refused; but it is unnecessary to state them, as they are substantially embraced in those given by the court.

As there was no formal demand of payment, nor protest for nonpayment and notice, those requisites must have been waived by the defendant, to make him responsible as endorser; and to this effect were the instructions of the court; and we think the testimony not only authorized the instructions given, but also the verdict rendered by the jury. Before the note was due, the defendant said to Elder, the agent of Mathews, and who held the note, that he need not take steps to collect it from the estate of his brother James, as it should be paid at maturity. This was an assurance which could not be mistaken, and it was relied on by the agent. He placed the note in his portfolio, where it remained until after it became due. After this, the agent called on the defendant, and informed him. that he had neglected to take measures for the collection of the note, and asked him what he was going to do; he answered, that. in a few days he would see the witness, and arrange it. This was an unconditional promise to pay the note, which no one could misunderstand, and which he could not repudiate at any subsequent period.

A promise by an endorser to pay a note or bill, dispenses with the necessity of proving a demand on the maker or drawer, or notice to himself. (Pierson v. Hooker, 3 Johns. 68; Hopkins v. Liswell, 12 Mass. Rep. 52.) Where the drawer of a protested bill, on being applied to for payment on behalf of the holder, acknowledged the debt to be due, and promised to pay it, saying nothing about notice, it was held, that the holder was not bound to prove notice on the trial. (Walker v. Laverty, 6 Manf. 487.) An unconditional promise by the endorser of a bill to pay it, or an acknowledgment of his liability, and knowledge of his discharge by the laches of the holder, will amount to an implied waiver of due notice of a demand of the drawee, acceptor, or maker. (Thornton v. Wynn, 12 Wheat. 183; Bank of Georgetown v. Magruder, 7 Pet. 287.) We think the instructions of the court were correct, and that, consequently, the judgment must be affirmed, with costs.

Marks v. Dickson.

JAMES MARKS, Plaintiff in Error, v. MICHAEL DICKSON AND ELIZABETH M. DICKSON.

20 H. 501.

PRE-EMPTION-ASSIGNMENT OF CERTIFICATE.

1. Under the acts of congress concerning pre-emption of 1830, (4 Statutes, 420,) as amended January, 1832, (4 Statutes, 496,) and revived June, 1834, (4 Statutes, 676,) a pre-emptor could assign his certificate of pre-emption and location after entry at the

land office.

2. Assignments of floats made before such entry were void; but a power to assign, though made before the location, would support an assignment under it made after location.

THIS is a writ of error to the supreme court of Louisiana. case is fully stated in the opinion.

Mr. Benjamin, for plaintiff in error.

Mr. Taylor, for defendants.

The

[ * 504 ] * Mr. Justice CATRON delivered the opinion of the court. This cause is brought here by a writ of error to the supreme court of Louisiana, which, by its judgment, construed the acts of congress of 1830, 1832, and 1834, securing pre-emption rights to actual settlers on the public lands.

The facts giving rise to the questions decided are these: John Butler and Elkin T. Jones resided on the same quarter section of land, lying in the parish of Claiborne, Louisiana; and having duly proved their residence on the land, as required by the acts of congress, were allowed to purchase jointly at the proper land office the quarter section on which they resided.

Being entitled to additional land, Jones and Butler obtained a certificate, known as a float, authorizing them to enter a quarter section. Butler sold his float to Murrill in 1837; Murrill sold to Wood in 1838, and Wood sold to Dickson in 1839. The land was located in August, 1840, in Butler's name, by Bullard, who held a power from Butler to locate and sell it.

And in November, 1840, Butler, by his attorney in fact, Bullard, conveyed to William Dickson. In April, 1843, a joint patent issued in favor of Butler and Jones for the quarter section. In 1851, Butler again sold his undivided moiety of the land to James Marks, and conveyed to him in due form. The supreme court of Louisiana held, that the assignment made in August, 1840, to William Dickson, was lawfully made, and that Marks had no equity to sustain his petition, in which he demanded partition and possession. His petition was dismissed in the State courts.

Marks v. Dickson.

If the assignment of the entry to Dickson was valid, then the judgment below must be affirmed; on the other hand, if the assignment made by Bullard, as Butler's attorney in fact, was made in violation of the acts of congress, then it cannot be set up as a defense against the deed made to Marks in 1851. This is the only question that can be revised here on this writ of error to the proceeding in the supreme court of Louisiana. Its decision depends on the true meaning of the acts of congress referred to.

The act of 1830 (sec. 3) provides that all assignments [*505] and * transfers of the right of pre-emption given by that

act, prior to issuing of the patent, shall be null and void. In 1832 a supplementary act was passed, which recites the act of 1830, and declares that all persons who have purchased under the act may assign and transfer their certificates of purchase, or final receipts, anything in the act of 1830 to the contrary notwithstanding.

The act of June 19, 1834, revived the act of 1830, and continued it in force for two years without referring to the act of 1832. If this act was made part of that of 1830, then the revival of the latter carried with it no incapacity in the pre-emptor to assign his certificate of purchase.

A difficulty arose in the general land office, as to the effect of the revival of the act of 1830 by the act of 1834; and whether the act of 1830, as revived, included the provision of the act of 1832. The commissioner referred the matter to the secretary of the treasury for his decision; and this officer presented the question to the attorney general for his official opinion, who decided that the acts of 1830 and 1832 stood together as one provision; and being revived by the act of 1834, the intention of congress was to confer on the purchaser the power to sell before the patent issued.

This opinion was given in March, 1835, and has been followed at the general land office ever since; and as Butler's claim originated under the act of 1834, it was governed at the land office by that decision.

We think the construction then given was, in effect, the true one. Before the prohibition was made by the act of 1830, the purchaser, when he had obtained his final certificate, acquired with it a right to sell the land he had purchased in all cases, nor has that right ever been questioned by congress, where entries had been made in the ordinary operations of the land office; so that the act of 1832 repealed the prohibition imposed on those having a preemption, and placed those who purchased under it on the footing of other purchasers.

The act of 1832 provided that patents might issue to assignees;