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Ingraham et al. v. Dawson et al.

with the solicitation and consent of the plaintiffs. This court does not feel at liberty to disturb them, by an inquiry into the supposed errors or irregularities which may be found in the various entries and proceedings of the State tribunals.

Bill dismissed with costs.

(Signed)

J. A. CAMPbell, Assoc. Justice S. C. U. S.

It was argued in this court by Mr. Strawbridge and Mr. Reverdy Johnson for the appellants, and by Mr. Benjamin for the appellees.

Mr. Justice CATRON delivered the opinion of the court.

This is a suit, by bill in equity, that was prosecuted in the eastern district of Louisiana, by Ingraham and Read, as assignees in trust of the Grand Gulf Railroad and Banking Company, against Dawson, administrator of Moses Groves, John R. Marshall, and Josiah Stansbrough. The cause was pending in the court below for several years, and in its various details is complicated, but the point presented for our consideration is

a narrow one.

According to the practice in Louisiana, the Circuit Court delivered a carefully-prepared opinion on the final hearing there, setting forth the facts and reasons why that court dismissed the bill. The opinion will be found in the preceding report of this cause. We briefly restate the facts on which our judgment proceeds:

In May, 1841, the Grand Gulf Bank recovered two judg ments against Moses Groves, in the District Court of the parish of Madison, in the State of Louisiana, amounting in the aggregate to more than twenty-two thousand dollars. Groves died without having satisfied those judgments, and the assignees by this bill seek to enforce payment of the debt from the estate of Groves, in the hands of his administrator.

The Grand Gulf Banking Company having failed, in February, 1842, assigned its assets in trust to Ingraham and Lindsay, including the two judgments against Groves. Lindsay afterwards died, and Read is his successor. This is the title relied on by the complainants. The defence set up depends on the validity of a sale of said judgments by legal process against Groves.

Marshall was the owner of a large amount of bank notes put in circulation by the Grand Gulf Company. In June, 1843, he instituted a suit against the bank on these notes, by attaching the judgments the bank had recovered against Groves, (and also judgments against other persons.) The suit was

Ingraham et al. v. Dawson et al.

prosecuted in the District Court of the parish of Madison, in Louisiana. To this proceeding the present complainants, Ingraham and Read, as assignees of the bank, intervened and set up their title by the assignment of the judgments, for the purpose of defeating the attachment of Marshall, and of having their claim as trustees established as the better title. Marshall responded to this allegation of the intervenors, that the deed of assignment was void: first, because it was contrary to the express law of Mississippi, prohibiting such assignments; and secondly, that it was void, because it was made for the purpose of defrauding a portion of the bank's creditors, and in order to favor others. The parties really contesting were Marshall and the intervenors. They went to trial before a jury on the law and facts. The verdict found, first, that the debt was due to Marshall from the bank; and, secondly, (says the record,) "we of the jury find the intervenors in the case have established no evidence of their claim to the property, as set forth in the petition.'

The judgment recites that the verdict was in favor of the plaintiff, Marshall, and against the defendants and intervenors; declares the amount due to the plaintiff'; adjudges a preference and privilege upon the property, rights, and credits attached; orders them to be sold, according to law, to satisfy the plaintiff's judgment. "And it is further ordered and decreed, that the demand of the intervenors be rejected with costs."

This judgment was affirmed in the Supreme Court of Lou isiana on appeal, prosecuted on the part of the bank and the intervenors. The judgment as affirmed was duly entered in the District Court, which proceeded to execute the same.

The bill seems to have been founded on the supposition that the intervention was rejected, and the intervenors nonsuited in the District Court; and that therefore they were not concluded, and at liberty to pursue their claim on the deed of assignment made to them by the Grand Gulf Bank.

The assumption that the intervenors were nonsuited in the State court is founded on a supposed record furnished to the complainants by the clerk of the District Court, which probably might bear this construction; but it appears that no such record exists in that court, and that a copy of a memorandum, kept in a book to refresh 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 the informalities, if

Sigerson v. Mathews.

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.

Where the endorser of a promissory note, in conversation with the agent of the holder, before its maturity, dispensed with a presentation of the note and demand of payment, and promised to pay it, or provide for its payment, at maturity, he could not, when sued, set up as a defence 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.

If, after the maturity of the note, the endorser promised the agent of the holder to pay the same, having, at the time of making such promise, knowledge of the fact that the note had not been presented for payment, and no demand made therefor, or notice of non-payment, he could not, when sued, set up as a defence a want of such demand or notice.

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing and Mr. Gillet for the plaintiff in error, and by Mr. Blair for the defendant.

The points made by the counsel for the plaintiff in error were the following:

First. The note in question was not an accommodation note, made for the defendant.

The evidence shows that there could be no pretence that the note in question was made for the accommodation of the defendant; but that it was, in fact, a regular business note, taken by defendant on the sale of real estate, without security. And that when, at a subsequent day, the property was re-deeded, and the remainder of the notes given up, the defendant credited this particular note on another debt (account) due him from James Sigerson, the maker. When it was given, and when it was transferred, the defendant must have confidently expected that it would be paid by the maker. When he took back the property, and credited the note to the maker, he clearly relied upon its being paid by the maker, or he would not have given him credit for it until he had actually taken it up, or he have been discharged from it as endorser.

Sigerson v. Mathews.

Second. Unless the defendant agreed, unconditionally, after the note became due, and after he knew that the note had not been presented for payment, to pay said note, he was not liable therefor.

The note not having been made for the defendant's accommodation, he could only be made liable by presentation at the bank, demand of payment, and notice of non-payment. His liability depended upon the holder taking the steps required by law to charge him. If they had been taken, his liability became fixed by them, but otherwise not. If he supposed they had not been taken, and that he had been made liable, and acted under a mistake in relation to the facts, he would not be bound by such action when the real facts are developed. If he made any promise, on misapprehension of the facts, he is not bound by it, because the inducement to make it was unreal, and was not what it appeared to be. A promise under such circumstances has nothing to stand upon. There is no evidence that the note had been presented to the bank, or that any steps whatever had been taken to charge the endorser; nor does it appear that the defendant had been informed of the true state of the facts in relation thereto at the time of the conversation, which is now claimed to be a promise of payment.

In Thornton v. Wynn, 12 Wheat., 183, it was held that where the promise or agreement was not unequivocal, it would not authorize a recovery.

Third. An agreement to pay the debt of a third person by an endorser, where the note was not presented at the time and place of payment, and notice of non-payment duly given, unless made and signed by the party to be charged, upon a consideration specified therein, is not binding, and cannot be enforced.

Fourth. The suggestion by the defendant to the plaintiff's agent, that he need not prove the note against the estate of James Sigerson, and that it would be paid at maturity, created no liability on the part of the defendant.

The liability of the defendant did not depend upon the probating of the note, nor did the remark that it would be paid at maturity amount to a promise to pay. It implied that there would be funds ready to take it up at the time and place of payment, and nothing more. The inference was, that the means would be supplied by those whose duty it would be to provide for the payment.

Nor did the suggestion to Elder tend to show that a presentation, demand of payment, and notice of non-payment, were dispensed with. The remark that the note would be paid at maturity seems to imply that the defendant expected the note

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32

Sigerson v. Mathews.

would be paid at maturity, on being presented in the usual course of business. It clearly implied that it was expected, when it matured, it would be presented somewhere to be paid; and as no place or person was named, the time and place named in the note must have been intended. It follows, that there was no waiver by the defendant of the condition of presentation, demand, and notice of non-payment, prior to its falling due.

The defendant did not occasion the omission of that necessary duty in order to create a liability on his part. Nothing was said on that subject. The plaintiff's agent was left to take such steps as his principal directed, or that he deemed expedient, and the plaintiff must abide the consequences.

Fifth. The court erred in instructing the jury upon questions not raised by the evidence.

Mr. Blair said:

The principle declared by the court amounts only to this, as has been said in a similar case, (that of the Taunton Bank v. Richardson, 5 Pickering, 436,) that a party may dispense with conditions for his benefit; and it has been applied in many cases similar to this. (See Dinkwater v. Tibbatts, 5 Shepley, p. 16; Boyd v. Cleveland, 4 Pickering; Marshall v. Mitchell, 35 Maine, 221; Thornton v. Wynn, 12 Wheat., 183; and the Union Bank of Georgetown v. Magruder, 7 Pet., 287. See also Story on Bills, 389, 390, 499 to 507; Jones v. Foles, 4 Mass., 245, 253; Farmers' Bank v. Waples, 4 Harring., 429; Hoadley v. Bliss, 9 Geo., 393; Lary v. Young, 8 Eng., 402; 5 Pickering, 436; 8 ib.; 1 Har. and J., 531; 2 N. H., 340; 1 Hill S. C., 411; 3 Met., 434.)

Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court for the district 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 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 repre

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