Sigerson v. Mathews.

sented that his 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 Sigerson 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 farm 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 In July, 1852, James reconveyed the land to John, and the bargain was rescinded.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 as a defence 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 now set up, as a defence to said note, a want of such demand or notice.'

Sigerson v. Mathews.

"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 non-payment 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 an swered, 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 et al.

JAMES MARKS, PLAINTIFF IN ERROR, V. MICHAEL DICKSON AND ELIZABETH M. DICKSON.

Je May, 1830, Congress passed an act (4 Stat. at L., 420) which gave the right of preemption to settlers on the public lands, but made null and void all assignments and transfers of the right of pre-emption prior to the issuance of patents. This act was to remain in force for one year.

In January, 1832, another act was passed, (4 Stat. at L., 496,) supplementary to the former, allowing certificates of purchase to be transferred, and patents to be issued in the name of the assignee.

In June, 1834, another act was passed, (4 Stat. at L., 678,) reviving the act of 1830.

The true construction of this act of 1834 is, not that it restored the prohibitory clause of 1830, but that it revived the supplement, together with the original act; and that, consequently, an assignment was good and legal before a patent was issued.

But it was necessary to enter the land at the land office, before the right of assignment accrued; and, therefore, assignments made before such entry were assignments of floats, and void.

A power, however, although executed before the location, was sufficient to justify an assignment made after the location, there being a tacit affirmance of the power, when it might have been set aside.

THIS case was brought up from the Supreme Court of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act.

The facts are stated in the opinion of the court.

It was argued by Mr. Benjamin for the plaintiff in error, and by Mr. Taylor for the defendants.

Mr. Benjamin made three points:

I. The policy of Congress has been fixed and invariable, not to allow the beneficent purposes of the pre-emption laws to be defeated, nor its objects perverted to the profit of land speculators. Whether wise or unwise, this is the unmistakable policy of the law.

Under this point, Mr. Benjamin contended, that although the deed from Butler's attorney was dated after the location, yet the power to make it was executed before the location, whilst the interest was yet nothing but a float; and that such an arrangement was a mere device to elude and evade the law. For example: the power to sell, locate, and transfer, was executed on 17th July, 1840. The location was made on the 8th August, 1840. The deed to Dickson was executed on 25th November, 1840.

Mr. Benjamin reviewed several acts of Congress and cases, to show that such a device as this power, given prior to the loca tion, was against the whole policy of the law.

Marks v. Dickson et al.

II. The court erred in determining that when Congress, in 1834, revived the act of 1830, it also revived that of 1832.

An opinion to that effect was given in 1835, by Mr. Attorney General Butler, (2d Opinions, 701;) but no reasons are given for it. He simply says, "that the revival of the original law is to be considered as embracing the provisions engrafted thereon by the supplementary act of 23d January, 1832."

It is submitted that this opinion is utterly untenable.

It is not true that the act of 1832 engrafted any provision on that of 1830. On the contrary, the act of 1832 was a partial repeal of that of 1830.

The act of 1830 prohibited assignments of pre-emption rights prior to issuance of patents. The act of 1832 repealed this prohibition so far as to permit the assignment of certificates of purchase or final receipts.

In 1834, Congress re-enacts the law which prohibited assignments before issuance of patents. By what possible train of reasoning can it be shown that this act of 1834 is also to be controlled by that of 1832? The whole of the subsequent legislation shows the contrary. Every law since passed by Congress repeats the prohibition, as already shown.

The act of 1834 is to be construed just as if the entire act of 1830 had been copied into it. If this had been done, would any one pretend that the act of 1832 could control its interpretation?

III. The act of 1832, however, can have no possible application to the case before the court. That act, in its very terms, applies only to persons who purchased before its passage. It says, in words, that "persons who have purchased under the act of 1830," may transfer their certificates of purchase, and patents may issue to assignees.

The act of 1830 had expired by its own limitation on the 29th May, 1831. Nobody who had acquired rights under it could sell or assign before the issuing of the patents. On the 23d January, 1832, Congress, speaking of this expired law, says that those who have purchased under it may assign their certificates of purchase, notwithstanding the prohibition.

The law applied to a certain class of pre-existing cases. When those cases were settled, the law was functus officio. Now, Butler was not a person who had purchased under the act of 1830. His pre-emption was established in 1836, under the act of 1834.

To apply the act of 1832 to his case, is to violate the lan guage of the law, the rules of grammar, and the legislative intention as exhibited in long-continued and repeated expressions of the will of Congress.

Marks v. Dickson et al.

Mr. Taylor made the following points:

The judgment of the court of the first instance in Louisiana was against the plaintiff, and in favor of the defendants. Upon an appeal to the Supreme Court of that State, this judgment was affirmed, on the ground that the revival of the act of 1830, by the act of 19th of June, 1834, was "to be considered as embracing the provisions engrafted thereon by the supplementary act of the 23d of January, 1832," "under the construction put upon the Congressional acts on this subject by the Attorney General of the United States;" for, say the court, "the officers of the Government appear to have uniformly acted on this construction," and "this construction, it appears to us, expresses the manifest intention or will of the law maker."

The only point before the court for review upon the writ of error to the Supreme Court of Louisiana in this case, is this: Is there any error in the judgment of that court, based upon this construction of the acts of Congress, under which the land in controversy has been separated from the public domain, to satisfy a right of pre-emption growing up in virtue of settlement and cultivation prior to the 19th of June, 1834?

The defendants say there is no error, because

I. The act of the 29th of May, 1830, and the supplementary acts of January 23d, 1832, and July 14th, 1832, constituted but one act; and any revival of the act of the 29th of May, 1830, in the absence of any declaration to the contrary, would necessarily carry with it the supplementary acts. (Sedgwick on Statute and Constitutional Law, pp. 247, 251, 255; 1st Cranch, 299.)

This view confirmed by the act of June 22d, 1838, which is cited by plaintiff's counsel for a different purpose. And,

II. The administration of the land system of the United States is vested in the Executive department of the Government, and the officers charged with the disposal of the public domain under the authority of acts of Congress are required and empowered to determine the construction of those acts so far as it relates to the extent and character of the rights claimed under them, and to be given, through their action, to individuals. This is a portion of the political power of the Government, and courts of justice never interfere with it. (Cousin v. Blanc's Ex., 19 How., 206, 209; 2 Pet., 253; 12 Pet., 511; 9 How., 154.)

The decision of the Attorney General, and the action of the Land Department for a long series of years in conformity with it, is conclusive as to the right of a pre-emptor to sell the land embraced in his entry before the issuing of the patent.

A different conclusion would unsettle a vast number of titles,