[Ex parte Sibbald v. The United States.] officers, and without objections by the Spanish governor, These were the surveys confirmed by this Court, at the place referred to in the plots in the record. Vide 10 Peters, 323, 324. There can, therefore, be no difficulty in understanding the mandate in this respect. It gives to the surveys of four and two thousand acres, the same validity as if they had been made for the land specified in the grant; as the "equivalent" of what could not be found vacant at the place called for in the grant. In the decree of the court below, the proviso, if vacant lands, of sufficient extent can be obtained at that place; must be referred to the decree of this Court affirming that part of the decree, in conformity with the opinion, as to the "equivalent," for such portion of the whole quantity as was not open to appropriation when the ten thousand acres were surveyed. To make up such "equivalent," consistently with the declared opinion of the Court, the party must have the right of filling up his claim in some mode, or he will obtain a less quantity than has been confirmed to him by our final decree; which the law declares shall be final and conclusive between the parties, who were the United States and the petitioner. 3 Story L. 1961. The latter must, therefore, have his sixteen thousand acres somewhere. By the eleventh section of the act of 1824, provision is made for the case; in enacting, "That if in any case it should so happen, that the lands, tenements or hereditaments, decreed to any claimant under the provisions of this act, shall have been sold by the United States, or otherwise disposed of; or if the same shall not have been heretofore located; in each and every such case the party may enter the like quantity," &c. &c. 3 Story, 1963. This section applies to each of the three surveys, provided that either comes within its provisions, by its appearing that any part thereof cannot be obtained pursuant to our decree. By the sixth section of the same act, the duties to be performed after a final decision in favour of the claimant, are prescribed; the clerk of this Court is to give a copy of the decree under the seal of the Court to the party, who shall deliver it to the surveyor of the state or territory, who shall cause the land to be surveyed, and a plot thereof to be made out and returned to the land office; which shall entitle the party to a patent. 3 Story, 1962. This section ap-` plies to confirmations, where there is no interfering claim, so that nothing remains to be done by the court below; but when the case comes under the eleventh section, then the surveyor, and the court [Ex parte Sibbald v. The United States.] below must both act: the one to ascertain what portion of either of the confirmed survey comes within its provisions; and the other to decide on the return of the surveyor, how much land, if any, is to be entered at the proper land office. In such cases, the court below acts under our mandate to execute our decree on those matters which remained for their future action; which is to be done in the same manner, por tanto, as when the whole case was originally before it, in the first instance; according to the provisions of the first section of the act, with this exception; that they cannot act on any question of the title of the party to the full quantity confirmed, or decide against the validity of the surveys which have been confirmed by this Court. So far as our final decree goes, it must be taken to be conclusive. On receiving the mandate, the court below must "determine all questions arising (in its execution) in relation to the extent, locality, and boundaries of the said claim, or other matters connected therewith, fit and proper to be heard and determined; and may, at discretion, order disputed facts to be found by a jury; and otherwise proceed as directed in that section." 3 Story, 1961. By this reference to the law the meaning of the mandate of this Court directed to the surveyor, commanding him to do and perform the acts enjoined on him by law; and to the court below, "to cause further to be done therein, what of right, according to law and justice, in conformity to the opinion and decree of this Court, ought to be done;" [is evident.] In Mitchell v. The United States, where the Court apprehended that some difficulty might occùr, a special mandate was made out on great deliberation. 9 Peters, 761-2. In the United States v. Soulard, one was made to meet the case, 10 Peters, 105–6: and had it appeared from the record, in the case between the United States and the petitioner, that a mandate more special than the one made out would have been necessary, it would have been done. The one ordered is, in substance, the same as those; and with the references now made, will meet the prayer of the petition, which we feel bound to grant, for the reasons set forth. The mandate which is annexed to the petition, was issued by the clerk, directed only to the court below, and no direction is given to the surveyor; it is therefore no execution of our final decree: and as it thus remains unexecuted. it is not too late to have it done, and requires no new order or decree, [Ex parte Sibbald v. The United States.] in any way modifying that which has been rendered in the reported case. It is therefore ordered, that the clerk of this Court make out a certificate of the final decree heretofore rendered in the case of the United States v. Sibbald; and also a mandate according to such final decree, the opinion of the Court in that case, and on these petitions. On consideration of the motion made in this cause by Mr. Clarke, of counsel for the appellant, on a prior day of the present term of this Court, to wit, on Saturday, the 10th day of February, A. D. 1838, and of the arguments of counsel thereupon had, it is now here considered, ordered and adjudged by this Court, that the clerk of this Court make out a certificate of the final decree heretofore rendered in the case of the United States v. Sibbald; and also a mandate according to such final decree, the opinion of the Court in that case, and on this petition. ་ JAMES M. REYNOLDS, JOHN B. BYRNE AND WILLIAM FARRIDAY, MERCHANTS, TRADING UNDER THE FIRM OF REYNOLDS, BYRNE & Co. v. JAMES S. DOUGLASS, THOMAS G. SINGLETON AND THOMAS GOING. Commercial guaranty. The rule is well settled, that the guarantor of a promissory note, whose name does not appear on the note, is bound without notice, where the maker of the note was insolvent at its maturity; unless he can show he has sustained some prejudice by want of notice of a demand on the maker of the note and notice of non-payment. If the guarantor could prove he had suffered damage by the neglect to make the demand on the maker of the note, and to give notice, he could only be discharged to the extent of the damage sustained. In order to enable the party claiming under a guaranty, to recover from the guaran tor by a letter of credit, he must prove that notice of its acceptance had been given in a reasonable time after the letter of credit had been accepted. This notice need not be proved to have been given in writing, or in any particular form; but may be inferred by the jury from facts and circumstances which shall warrant such inference. A recognition of the parties to a letter of credit of their obligation to pay as guarantors under a supposed liability, which did not arise from the facts of the case, and of which facts they were ignorant, would not be a waiver of the notice they were entitled to have of the acceptance of their guaranty. A party to a note entitled to notice, may waive the notice by a promise to see it paid, or an acknowledgment that it must be paid; or a promise that "he will set the matter to rights;" or by a qualified promise, having knowledge of the laches of the holder. A promise to pay a debt by the guarantors, qualified with a condition which was rejected, is not a waiver by the guarantor of his right to notice of the acceptance of the guaranty. When the party in whose favour a letter of credit is given afterwards becomes insolvent, and his insolvency is known to the guarantors; it is not necessary, in an action on the letter of credit, to prove that a demand of payment was made on the insolvent. IN error to the district court of the United States for the district of Mississippi. This case was before the Court at January term, 1833, on a writ of error prosecuted by the plaintiffs in the court below; and was then remanded to the district court of Mississippi, with directions to issue a venire facias de novo, 7 Peters, 113. The facts of the case are fully stated in the case reported in 1833. The plaintiffs again brought up the case; and it was argued by VOL. XII.-3 R [Reynolds et al. v. Douglass et al.] Mr. Southard for the plaintiffs in error, and by Mr. Jones for the defendant. Mr. Justice M'LEAN delivered the opinion of the Court: This case is brought before this Court by a writ of error to the district court of Mississippi. The action is founded on the following guaranty: Messrs. Reynolds, Byrne & Co. Port Gibson, 27th December, 1827. Gentlemen,-Our friend, Mr. Chester Haring, to assist him in business, may require your aid from time to time, either by acceptances or endorsement of his paper, or advances in cash. In order to save you from harm in so doing, we do hereby bind ourselves severally and jointly, to be responsible to you, at any time, for a sum not exceeding eight thousand dollars, should the said Chester Haring fail to do so. Your obedient servants, JAMES S. DOUGLASS, On the trial, the plaintiffs proved that they treated this paper as a continuing guaranty; and from time to time, on the faith of it, accepted drafts, endorsed bills, and made advances of money at the request of Haring. And an account current was given' in evidence showing a balance due to the plaintiffs, from Chester Haring, on the 1st of July, 1828, of thirteen thousand seven hundred and two dollars. and seventy-three cents; on 1st of January, 1829, of thirty-two thousand nine hundred and twenty dollars fifty-seven cents; and on the 1st of July in the same year, of twenty-five thousand one hundred and nine dollars and fifty-seven cents. And eight bills of exchange, drawn by Haring on the plaintiffs, amounting to eight thousand dollars, and which were accepted and paid by them in the year 1828; were also given in evidence. On the first of May, 1829, it was proved that Haring executed five promissory notes, in the whole amounting to twenty-five thousand dollars, which were endorsed by Daniel Greenleaf, and also by the plaintiffs; and which were payable in the months of November, December, January, February and March, succeeding; the proceeds of |