[Reynolds et al. v. Douglass et al.]

Greenleaf, on the 11th April, 1829, and that Daniel Greenleaf at that time was engaged to pay all the debts of the said firm, and to secure the defendants from their liability on the letter of guaranty; and that Daniel Greenleaf, on 24th December, 1829, by deed of trust to one of the defendants, James S. Douglass, transferred claims to the amount of twenty-eight or nine thousand dollars, to secure the defendants for their liability on said letter of credit; then it is not necessary for the plaintiffs to prove that the defendants were duly notified of their liability on said letter of credit: which charge the court refused to give.

The facts, hypothetically stated as the basis of this instruction, are such, as if found by the jury, must have had influence on their minds; for they conduce to show that the defendants had received knowledge of their responsibility under the letter of credit, and of the circumstances of Haring. But as the instruction does not necessarily import the insolvency of Haring, which, or his death, can alone excuse the plaintiffs from making a demand on him, and giving notice to the defendants of his failure to pay; the court did not err in declining to give the instruction. The facts supposed in the instruction might be admitted; and yet the insolvency of Haring, at some subsequent period, would not follow as a consequence.

Several instructions were given by the court, at the request of the defendants' counsel, to which the plaintiffs excepted; and we will now consider them.

And first, the court charged the jury, that to entitle the plaintiffs to recover on said letter of credit, they must prove that notice had been given in a reasonable time after said letter of credit had been accepted by them to the defendants, that the same had been accepted. This instruction, being in conformity to the rule formerly laid down by this Court in this case, was properly given. 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.

The court also instructed the jury, that if they believed from the evidence that two of the defendants, Going and Singleton, admitted that the debt sued for was a just debt, and that the said two defendants stated that they would try to arrange the payment thereof, out of the funds or effects that had been assigned by Daniel Greenleaf to James S. Douglass; and that the admission and declaration were made in 1830, and that at said period no notice had been given by

[Reynolds et al. v. Douglass et al.]

the plaintiffs to the defendants, that said guaranty had been accepted by them; and that said defendants were uninformed at the time of such admission and declaration of such failure to give such notice;" that then such admission and declaration do not operate in law a waiver of, and dispense with the necessity of such notice.

This instruction must have been hastily drawn; but we understand it as laying down the principle that a recognition of their obligation to pay, by the defendants, under a supposed liability which did not exist, from the facts of the case, and of which facts they were ignorant; would not be a waiver of the notice. In this view, the instruction was correctly given.

And the court further instructed the jury, that in the absence of evidence of notice given in a reasonable time by the plaintiffs, that said letter of credit had been accepted by them, the mere acknowledgment by the defendants, that the debt sued for is a just debt, does not dispense with the necessity of such notice; but that to dispense with such notice, there must be evidence of an express and unconditional promise by the defendants to pay, made under a full knowledge that such notice had not been given.

This instruction is not founded upon the supposition that the defendants were ignorant of the necessity of a notice to bind them; and this ignorance, therefore, cannot be presumed. The proposition then is, that although the defendants knew that a notice was necessary to bind them, and which had not been given; an acknowledgment of the debt and a promise to pay, which is not express and unconditional, would not dispense with notice. In giving this instruction, we think the court erred. A party to a note entitled to notice, may waive it 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. Hopes v. Alder, 6 East, 16; Selw. N. P. 323; Haddock v. Beery, 7 East, 236; Rogers v. Stephens, 2 T. R. 713; Anson v. Baily, Bul. N. P. 276. In the case of Thornton v. Wynn, 1 Wheat. 183, thi Court say: an acknowledgment of his liability, by the endorser of a bill or note, and knowledge of his discharge by the laches of the holder, will amount to a waiver of notice.

In their fourth instruction the court say, that a qualified or conditional promise, made by the defendants to pay the debt sued for, which was rejected by the plaintiffs or their agent, is not a waiver of VOL. XII.-3 S

[Reynolds et al. v. Douglass et al.]

the necessary notice from the plaintiffs to the defendants, that said letter of credit had been accepted by them.

This instruction is somewhat vague in its language; but if it is to be considered as laying down the rule, that a promise to pay the debt, qualified with a condition which was rejected by the plaintiffs, or their agent; the court were right in saying that it was not a waiver of notice.

In their fifth and last instruction, the court charge the jury that to enable the plaintiffs to recover on said letter of credit, they must prove that a demand of payment had been made of Chester Haring, the principal debtor, of the debt sued for; and in case of non-payment, notice should have been given in a reasonable time, to the defendants; and on failure of such proof, the defendants are in law discharged.

This instruction rests upon the necessity of a personal demand of Haring by the plaintiffs. It has been already shown that this demand was unnecessary in case of Haring's insolvency; the in truction was therefore, on the facts in the case, erroneous. The judgment of the district court must be reversed; and the cause remanded for a venire de novo.

Mr. Justice BALDWIN dissented.

This cause came on to be heard on the transcript of the record from the district court of the United States for the district of Mississippi, and was argued by counsel. On consideration whereof, it is now here adjudged and ordered by this Court, that the judgment of the said district court in this cause be, and the same is hereby reversed and annulled; and that this cause be, and the same is hereby remanded to the said district court, with directions to award a venire facias de novo.

PIERRE CHOTEAU, SENIOR, PLAINTIFF IN ERROR V. MARGUERITE, A WOMAN OF colour, DEFENDANT.

Jurisdiction. The Supreme Court has not jurisdiction of a case brought by a writ of error from the supreine court of the state of Mississippi, under the 25th section of the judiciary act, where the question was whether the appellee was a slave. The provisions of the treaty by which Louisiana was ceded to the United States, and in which was a guaranty of the property of persons residing at the time of the cession within the territory of Louisiana, may be enforced in the courts of the state of Missouri. The allegation that the treaty has been misconstrued by the supreme court of the state, in refusing to sanction the claim asserted, will not give the Supreme Court of the United States jurisdiction in the case.

In the case of Crowell v. Randall, 10 Peters, 369, the Court revised all the cases on jurisdiction under the 25th section of the judiciary act, and laid down the law as they wished it to be universally understood.

ERROR to the supreme court of the third judicial district of the state of Missouri.

In 1825, Marguerite, a woman of colour, by her next friend, Pierre Barrebeau, filed a declaration in the circuit court for the county of Jefferson, in the state of Missouri, alleging that Pierre Choteau, sr., had beat and bruised her, and unlawfully detained her in prison, against her will, &c. The object of this proceeding was to establish that the complainant, the descendant of an Indian woman, Marie Scipion, was free, and was unlawfully held as a slave by the defendant.

Pierre Choteau appeared to the suit, and pleaded that Marguerite was a slave, in his lawful possession, and so detained by him..

The case was submitted to a jury in Jefferson county, and a verdict was found for the plaintiff; which was afterwards set aside by the court, and a new trial ordered. The suit was afterwards tried before the same court, and a verdict was given for the defendant. The plaintiff filed a bill of exceptions; and on a writ of error to the supreme court of Missouri, the judgment of the circuit court was reversed, and the cause was remanded to that court. 'It was afterwards remanded to the circuit court of St. Charles county, and was there tried again before a jury; and a verdict and judgment were rendered in favour of the plaintiff. The defendant, on the trial, moved the court to instruct the jury:

[Choteau v. Marguerite.]

1st. If the jury find, from the evidence, that the mother of Marie Scipion was an Indian woman, of the Natchez nation, taken captive in war by the French; and that she and her descendants were publicly and notoriously held as slaves, in the province of Louisiana, while the same was held by the French, prior to the year 1769; and that she and her descendants were so publicly and notoriously held as slaves, without interruption, in the said province, until the 30th April, 1803, and thence to the time of the commencement of this suit; the jury ought to find for the defendant.

2d. If the jury find, from the evidence, that the mother of Marie Scipion was an Indian woman, taken captive in war, and reduced to slavery by the French; and that from the time of her capture she and her descendants were publicly and notoriously held as slaves, in the province of Louisiana, while the same was held by the French, before the year 1769, and afterwards, while the same province was in the possession of, and held by Spain and France, until the 30th day of April, 1803, and thence until the commencement of this suit; they ought to find for the defendant.

3d. That Indians taken captive in war by the French, might, lawfully, be reduced and held in slavery in the province of Louisiana; whilst it was held by the crown of France.

4th. If the jury find, from the evidence, that the said Marie Scipion was born while her mother was so held in slavery, within the province of Louisiana, while the same was held by the French, prior to the year 1769; that the said mother was held in slavery, in the province of Louisiana, from the time of her birth until the 30th April, 1803, and thence until the time of her death; then the jury ought to find for the defendant.

5th. If the jury find, from the evidence, that Marie Scipion was born while her mother was held in slavery, and that she, the said Marie Scipion, was publicly and notoriously held as a slave, from the time of her birth until her death, within the territory ceded to the United States, by the treaty between the United States of America and the French Republic, bearing date the 30th April, 1803, and that, at the date of said treaty, the said Marie Scipion was so held as a slave, within the said ceded territory, by an inhabitant thereof; then the jury ought to find for the defendant..

The court refused to give these instructions: and the defendant sued out a writ of error to the supreme court of Missouri, where the judgment of the circuit court of Jefferson county was affirmed.