author: Mr. Justice WAYNE

text:
    The United States, Plaintiffs in error, v. Jehiel Brooks and others, Defendants.
    A supplementary article to a treaty between the United States and the Caddo Indians', providing that certain persons “ shall have their right to the said four leagues of land reserved'for them and their heirs and assigns for ever. The said lands to be taken out of the lands ceded to the United States by the said Caddo nation of Indians, as expressed in the treaty to which these articles are supplementary. And the four leagues of land shall be laid off,” &e., — gave to the reservees a fee simple to all the rights which the Caddoes had in those lands, as fully as any patent from the government could make one. Nothing further was contemplated by the treaty to perfect the title.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.
    The facts are very fully set forth in the opinion of the court, to which the reader is referred.
    It was argued by Mr. Crittenden (Attorney-General), for the United States, and Mr. Walker¡ for the defendants.

      Mr. Crittenden made the following points: —
    I. That the first supplementary article of the treaty does not make a grant or reservation in favor of the Grappes of four leagues of land, but the true meaning and import is simply that the Grappes shall have their right, whatever it may be, to the four leagues of land stated as being reserved to them in 1801, in the preamble.: and there was, therefore, error in the refusal of the court to give the first instruction prayed for.
    This, it is contended, is the true construction. The language of the second supplementary article, relating to the donation to Edwards, is very different in its terms, and imports a present grant. “ There shall be reserved to Larkin' Edwards, &c., one section of land.”
    II. That the recital of the reservation to the Grappes, in 1801 does not relieve the defendants from producing the primordial title on which they must rely, and the court, therefore, erred in refusing to give the second instruction prayed for, and in charging as it did on this point under the second head of the charge as given.
    The law of Louisiana, borrowed froth the civil law, is against the court below. The 2251st article of the Code declares that “ recognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth.” In this case its .tenor is not set forth, and the primordial title must therefore be produced. The recognitive act is no proof of the contents of the primordial, even when the latter is fully set forth, unless it also be shown that the latter is lost. 1 Evans’s Pothier, §§ 742,743, p. 443; Brooks v. Norris, 6 Rob. 181.
    Bat had the Spanish authorities in 1801 any power to authorize and sanction the reservation ? That they had no such power has been decided many times in this court, in-the case of the Perdido boundary. The country embraced within the limits of Louisiana, west of the Mississippi, stretched far beyond even the Sabine, and it was not until the treaty with Spain of 1819, that the -United States relinquished their claim to it, and ceded what lay west of that river to Spain. The United States claimed it from the first. In the act of 20th February, 1811 (2 Stat. at Large, 641), to authorize the people of the Temtory of Orleans to form a State government, the Sabine is declared to be the western boundary of the new State. Besides, it is to be remembered, that the fourteenth section of the act of 26th March, 1804 (2 Stat. at Large, 287),- declares that all grants, and every act and proceeding subsequent to the treaty of St. Ildefonso, of whatsoever nature, towards the obtaining of any grant, title, or claim to land in Louisiana, under whatsoever authority transacted or presented; shall be null and void.
    In addition to all this, it may' here be mentioned that the Caddoes themselves never claimed Rush Island, or ever used it in ’ any way. It was occupied by whites, and was never intended by the Caddoes to be included in the treaty or given to the Grappes.
    TII. That by the law of Spain.the Caddo' Indians had no primitive title to any land, and had no power to alienate without consent of the Spanish authorities; and these authorities at Natchitoches had no right to sanction the donation mentioned in the preamble and supplementary article. Mitchel et al. v. The United States, 9 Pet. 714. The Spanish office'rs at Natchitoches had no control over the Caddoes, the territory they inhabited being within the jurisdiction of the post of Nacogdoches. See 2 Martin’s History of Louisiana, 202,203,261, 262; see also House Doc. No. 49,1st Session, 24th Congress.
    IV. That there was error in the court refusing to give the fourth instruction prayed for, because the matters therein mentioned^ were part of the history and public archives of the country, on which it was the' duty of the court to inform the jury.' See the state papers above referred to.
    ■ V. That the court erred in refusing to give the fifth instruction prayed for, and in charging as in the third point of the charge given.
    VI. That if there is no title in Brooks, there can be none in the purchasers under him

      VII. That the court erred in not admitting as evidence in the cause the letter of General Cass to Mr. Garland, of the 17th-of March, 1836, and the memorial of the Caddoes to the Senate of the United States, of the 19th of September, 1837, and the report of the House and depositions therein, and in thé case of Brooks v. Norris; and in admitting copies of the affidavits of David, Trichel, and D’Ortlont.

      Mr. Walker's points were as follows: ■—
    1. Defendants’ title rests upon a grant by treaty to the Grappes, a bona fide sale by them to Jehiel Brooks, and a bona fide sale of part of the land by him to the other defendahts. The treaty of 1st July, 1835, being ratified and corr irmed by the President and Senate, becomes the supreme law, and cannot be set aside by the courts, on any ground whatever, not even upon an allegation of fraud. Const. U. S., art. 6, § 2; Story on Const., 684, 686; Foster & Elam v. Neilson, 2 Peters, 254, 306, 307; 6 Peters, 711, 738; 3 Peters’s Digest, 654, 655, Nos. 1, 4, 6, 8, 11, and 12; 1 Kent, 286,287; 6 Cranch, 136, 139.
    2. The boundaries of the Indian lands ceded to the United States by the treaty are fixed therein, and cannot now be disputed by either party thereto, nor can they be altered but by the consent of both parties; the right of the Indians to the lands ceded is admitted by the treaty, and by the general policy of the government in treating with them. Story on Const., 379 et seq., §§ 532,535; 12 Peters, 516, 725; 14 Peters, 13, 14.
    3. The boundaries cannot be varied by parol proof, because, —
    1st. The United States are parties to the treaty, which is
    in writing, and cannot be varied or contradicted by them. 2 Peters’s Digest, 234 et seq., Nos. 898, 903, 904, 909, 921, 922, 933.
    2d. The treaty is part of the supreme law of the land, and cannot be varied or contradicted by parol proof. 2 Peters’s Digest, 153, No. 35; 161, No. 128; 172, No. 238.
    4. The treaty, by its terms, declared that the Caddo Indians had previously donated the lands in dispute to the Grappes, the defendants’ vendors, and confirmed that donation to them; which treaty having, the force of a law, it is equal in dignity and effect to a complete ¿/-ant by the United States, and they cannot go beyond that grant 9 Pet. 746; Johnson v. McIntosh, 8 Wheat. 571; 6 Peters, 342; 2 Howard, 344.
    5. The motives that induced the President and Senate to ratify the treaty containing this grant, or the reasons, if any, that should have influenced them to reject that part of-the .treaty, are not proper Subjects of inquiry in any court, but all such acts must be received as conclusive on all subjects within the scope of their power. 6 Cranch, 129, 131; Story on Const. 567.
    6. Congress cannot, by legislation in any form, divest a citizen of rights acquired under a treaty, or previous act of Congress. 6 Cranch, 132, 133, 135.
    7. Brooks is a boná fide purchaser from the Grappes, who acquired a good legal title under the treaty, which title cannot be questioned by the grantors of his vendors. 6 Cranch, 133, 134; Story on Const. 567.
    8. Fraud cannot be charged on Brooks, as United States commissioner, in negotiating the treaty, without charging the same on the President and Senate, for he was their agent, and they made his act their own by their confirmation of the treaty. Story on Const. 557.
    ,9. Congress have not authorized the inquiry of fraud to be made, but expunged it from the House resolutions, 38. Resolution of Congress, 30th August: 1842 (5 Stat, at Large, 584).
    10. The fact of Brooks having been commissioner to negotiate the treaty did not disqualify him from purchasing long afterwards, and when his functions had ceased, land reserved in said treaty, and such purchase is no evidence of fraud in negotiating the treaty. 2 Peters’s Digest, 357; 3 Wash. C. C. R. 556 et seq.
    11. The question of fraud was, however, submitted by the court to the jury, and decided in favor of the defendants, as appears by the record.
    12. Report of commissioners, Doc. 1035, and record of Brooks

      v. Norris, not admissible. 1st. The depositions not taken in any suit nor in any issue joined before any judicial tribunal, nor any other tribunal having power to try or decide title to property. 1 Phil. Ev. 14 (and note 42), 378, 394, and 395; Const. U. S., art. 1, § 1; art. 2, § 1; art. 3, § 1 and 2; 2 Peters’s Digest, 164, No. 153. 2d. Consent to read the testimony in Brooks v. Norris does not bind the parties to admit the testimony in this suit, which is between different parties, both plaintiff and defendants. 10 Martin, 91, 92; 6 Peters, 340, 341; 2 Peters’s Digest, 229, No. 837 ; Ibid. 230, No. 850.
   Mr. Justice WAYNE

delivered the opinion of the court.

This is another chapter in our dealings with Indians, and it illustrates our character and theirs in such transactions. The case will be better understood from its history, than by the discussion of points which it suggests. After the narrative*, our conclusion will be brief.

The case is brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiána.'

It was a petition filed by the United States in consequence of the passage of the following joint resolution of both houses of Congress, on the 30th of August, 1842: —

Resolved, &c,, That the District Attorney of the United States for the Western District of Louisiana be, and is hereby, directed to institute such legal proceedings in the proper court as may be necessary to vindicate the right of the United States to Rush Island, which is alleged to have been improperly, included in the limits of the lands ceded by the Caddo .Indians to the United States, by the treaty of the 1st July, 1835, and reserved by said treaty in favor of certain persons by the name of Grappe.” (5 Stat. at Large, 584).

The facts in the .case were these.

On the 28th of January, 1835, the President of the United States received the following letter from the Caddo Indians: —

“. To his Excellency the President of the United States.
“ The memorial of the undersigned, chiefs and head men of the Caddo nation of Indians, humbly represents : —
“ That they are now the same nation of people they were, and inhabit the same country and villages they did, when first invited to hold council with their new brothers, the Americans, thirty years (sixty Caddo years) ago ; and our traditions inform us that our villages have been established where they now stand ever since the first Caddo was created, before the Americans owned Louisiana. The French, and afterwards the Spaniards, always treated us as friends and brothers. No -white man ever settled on our lands, and we were assured they never should. We were told the same things by the Americans in our’ first council at Natchitoches, and that we could not sell our lands to any body but our great father the President. Our two last agents, Captain Grey and Colonel Brooks, have driven a great many bad white people off from our lands; but now our last-named agent tells us that he is no longer our agent, and that we no longer have a gunsmith or blacksmith, and says he does not know what will be done with us or for us.
“ This heavy news has put us- in great trouble. We have held a great council, and finally come to the sorrowful resolution of offering all our lands to you, Which lie within the boundary of the United States, for sale, at such price as we oan agree on in council one with the other. These lands are bounded on one side by the Red River, on another side by Bayou Pascagoula, Bayou and Lake. Wallace, and the Bayou Cypress; and on the other side by Texas.
“ We have never consented to any reservation but one, to be taken out of these lands, and that was made a great many years- ago. The Caddo nation then gave to their greatest and best friend, called by them Touline, but known to all the white people by the name of Francois Grappe, and to his three sons then born, one league of land eaeh, which was to be laid off, commencing ait the lowest corner of our lands on the Red River, (as above described,) and running up the river four leagues, and one league from that line back, so as to make four leagues of land. We went with our friend and brother Touline (otherwise Grappe) before the Spanish authority, and saw it put down in writing, and gave our consent in writing, and the Spanish authority ratified our gift in writing. But, before the Americans came, our brother’s house .was burned, and the writings- we have mentioned were consumed in it. Touline (otherwise Grappe) was a half-blood Caddo ; his father was a Frenchman, and had done good things for his son when a boy. When he grew to be a man, he returned among us, and continued near to us till he died. He was always our greatest counsellor for good. He was our" French, Spanish, and American interpreter, for a great many years; our brother now is dead, but his sons live.
We, therefore, the chiefs and head men of the Caddo nation, pray that the United States will guarantee to the sons now living of our good brother, deceased, Touline (otherwise Grappe), the whole of our original gift, — four leagues to him and to them; and your memorialists further pray, that your Excellency will take speedy measures to treat with us,for the purchase of the residue of our lands, as above described, so that we may obtain some relief from our pressing necessities; and your memorialists, as in duty bound, will ever pray,” &c.

This letter was signed by twenty-four chiefs.

Upon the back of this memorial, the President made the following indorsement.

“ The President incloses to the Secretary of War the memorial of the Caddo chiefs, for his consideration, whether it will not be proper to appoint a commissioner, to obtain a complete cession of their lands to the United States. There will be about half a million of acres, it is supposed. Care must be taken in the instructions that no reservations shall be made in the treaty; and, if the request [for one of their friends] in the memorial be adopted a( all, it must be in a schedule, which may be confirmed or rejected by the Senate, without injury to the treaty.
January 28Ih, 1835.
“ P. S. Will it not be well to ask an appropriation to coyer this expense ? A. J.”

On the 30th of May, 1835, Jehiel Brooks, the Indian agent, commenced a negotiation with the Caddo Indians for the •cession of their land, which continued until the 1st of July, when the following treaty was made, which was ratified by the Senate on the 26th of January, 1836, and proclaimed by the President on the 2d of February, 1836.

“ Andrew Jackson, President of the United States of America, to all and singular to whom these presents shall come, greeting:
“ Whereas a treaty was made at the agency-house in the Caddo nation and State of Louisiana, on the 1st day of July, 1835, between the United States, by their commissioner, Jehiel Brooks, and the chiefs, head men, and warriors of the Caddo nation of Indians; and whereas certain supplementary articles were added thereto, at the same time and place; which treaty, and articles supplementary thereto, are in the words following, to wit: —
" Articles of a Treaty made at the Agency-House.in the Caddo Nation and State of Louisiana, on the 1st day of July, in the year of our Lord 1835, between Jehiel Brooks, Commissioner on the part of the United States, and the Chiefs, Head Men, and Warriors of the Caddo Nation of Indians.
“ Article 1st. The chiefs, head men, and warriors of the said nation agree to cede and relinquish to the United States all their land contained in the following boundaries, to wit:
“ Bounded on the west by the north and south line which separates the said United States from the republic of Mexico, between the Sabine and Red Rivers, wheresoever the same shall be defined and acknowledged to be by the two governments ; on the north and east by the Red River, from the point where the said north and south boundary line shall intersect the Red River, whether it be in the Territory of Arkansas .or the State of Louisiana, following the meanders of the said river down to the junction with the Pascagoula Bayou; on the south by the said Pascagoula Bayou to its junction with the Bayou Pierre; by said bayou to its junction with Bayou Wallace ; by said bayou and Lake Wallace to the mouth of the Cypress Bayou; thence up said bayou to the point of its intersection with the first-mentioned north and south line, following the said watercourses ; but if the said Cypress Bayou- be not clearly definable so far, then from a point which shall be definable by a line due west, till it intersects the said first-mentioned north and south boundary line, be the contents of land within said boundaries more or less.
“ Article 2d. The said chiefs, head men, and warriors of the said nation do voluntarily relinquish their possession to the territory of land aforesaid, and' promise to move, at their own expense, out of the boundaries'of the United States, and the territories belonging and appertaining thereto, within the period of one year from and after the signing of this treaty, and never more return to live, settle, of establish themselves as a nation, tribe, or community of people within the same.
“ Article 3d. In consideration of the aforesaid cession, relinquishment, and removal, it is agreed that the said United States shall pay to the said nation of Caddo Indians the sums in goods, horses, and money hereinafter mentioned, to wit: Thirty thousand dollars to be paid in goods and horses, as agreed upon, to be delivered on the signing of this treaty; ten thousand dollars in money, to be paid within one year from the 1st day of September next; ten thousand dollars per annum, in money, for the four years next following, so as to make the whole sum paid and payable eighty thousand dollars,
“ Article 4th. It is further agreed, that the said Caddo nation of Indians shall have authority to appoint an agent or attorney in fact, resident within the United States, for the purpose of receiving for them, from the said United States, all of the annuities stated in this treaty, as the same shall become due ; to be paid to their said' agent or attorney in fact, at such place of places within the said United States as shall be agreed on between him and the proper officer of the government of the United States.
“ Article'5th.' This treaty, after the same shall have been ratified and confirmed by the President and Senate of the United States, shall be binding on the contracting parties.
“ In testimony whereof the said Jehiel Brooks, commissioner as aforesaid, and the chiefs, head men, and warriors of the said nation of Indians, have hereunto set their hands and affixed .their seals at the place, and on the day and year above written.
(Signed,) J. Brooks.”

The chiefs, head men, and warriors who signed this treaty were twenty-five in number, and it purported to be executed in presence of

“ T. J. Harrison, ‘Capt. 3d Regt. Inf. command’g detachment.
J. Bonnell, 1st Lieut. 3d Regt. U. S. Infantry.
G. P. Frile, Brevet 2d Lieut. 3d Regt. U. S. Infantry.
D. M. Heard, M. D., Acting Assistant Surgeon, U. S. A. Isaac C. Williamson.
Henry Queen.
John W. Edwards, Interpreter.”
Agreeably 'to the stipulations in the third article of the treaty, there have been purchased, at the request of the Caddo Indians, and delivered to them, goods and horses to the amount of thirty thousand dollars. As evidence of the purchase and delivery as aforesaid, under the direction of the commissioner, and that the whole of the same have been received by the said Indians, the said commissioner, Jehiel Brooks, and the undersigned, chiefs and head men of the whole Caddo nation of Indians, have set their hands and affixed their seals the third day of July, in the year of our Lord one thousand eight hundred and thirty-five.

Supplement.

" Articles supplementary to the Treaty made- at the Agency-House, in the Caddo Nation and State of Louisiana, on the 1st day of July, 1835, between Jehiel Brooks, Commissioner on the part of the United States, and the Chiefs, Head Men, and Warriors, of the Caddo Nation of Indians, concluded at the same place, and on the same day, between the said Commissioner on the part of the United States, and the Chiefs, Head Men, and Warriors of the said Nation of Indians, to wit: —
“ Whereas the said nation of Indians did, in the year 1801, give to one Frangois Grappe, and to his three sons then bom and still living, named Jacques, Dominique, and Balthazar, for reasons stated at the time, and repeated in a memorial which the said nation addressed to the President of the United States in the month of January last, one league of land to each, in accordance with the Spanish custom of granting land to individuals. That the chiefs and head men, with the knowledge ánd approbation of the whole Caddo people, did go with the said Francois Grappe, accompanied by a number of white men, who were invited by the said chiefs and head men to be present as witnesses, before the Spanish authority at Natchitoches, and then and there did declare their wishes touching the said donation of land to the said Grappe and his three sons, and did request the same to be written out in form, and ratified and confirmed by the proper authorities agreeably to law.
“ And whereas Larkin Edwards has resided for many years, to the present time, in the Caddo nation, was a long time their true and faithful interpreter, and, though poor, he has never sent the red man away from his door hungry ; he is now old, and unable to support himself by manual labor, and, since his employment as their interpreter has ceased, possesses no adequate means by which to live : Now, therefore, —
“ Article 1st. It is agreed, that the legal representatives of the said Francois Grappe, deceased, and his three sons, Jacques, Dominique, and Balthazar Grappe, shall have their right to the said four leagues of land reserved for them, and their heirs and assigns, for ever. The said lands to be taken out of the lands ceded to the United States by the said Caddo nation of Indians, as expressed in the treaty to which these articles are supplementary. And the said four leagues of land shall be laid off in one body in the southeast corner of their lands ceded as aforesaid, and bounded by the Red River four leagues, and by the Pascagoula Bayou one league, running back for quantity from each, so as to contain four square leagues of land, in conformity with the boundaries established and expressed in the original deed of gift made by the said Caddo nation of Indians -to the said Francois Grappe' and his three sons, Jacques, Dominique, and Balthazar Grappe.
“ Article 2d. And it is further agreed, that there shall be reserved to Larkin Edwards, his heirs and assigns, for ever, one section of land; to be reserved out of the lands ceded to the United States by the said nation of Indians, as expressed in the treaty to which this article is supplementary, in any-past thereof not otherwise appropriated by the provisions contained in these supplementary articles.
“ Article 3d. These supplementary articles, or either of them, after the same shall have been ratified and confirmed by the President and Senate of the United States, shall be binding on the contracting parties, otherwise to be void and of no effect upon the validity of the' original treaty to which" they are supplementary.
“ In testimony whereof, the said Jehiel Brooks, commissioner as aforesaid, and the chiefs, head men, and warriors, of the said nation of Indians, have hereunto set their hands and Prffixed their seals, at the place and on the day and year above written.
J. Brooks.”

(Signed by the same chiefs and attested by the same witnesses.)

“ Now, therefore, be it known that I, Andrew Jackson, President of the United States of America, having seen and considered the said treaty, do, by and with the advice and consent of the Senate, as expressed in their resolution of the 26th of-Janary, 1836, accept, ratify, and confirm the same, and every clause and article thereof. >
“ In testimony whereof, I have caused the seal of the United States to be^ hereunto affixed, having signed the same with my' hand.
“ Done at the city of Washington, this 2d day of February^ in the year 1836, and of the independence of the United [l. s.] States the sixtieth.
Andrew Jackson.
“ By the President:
John Forsyth, Secretary of State.”

At the ensuing session of Congress, memorials were presented by some of the persons who claimed land situated upon Rush Island, which was included within the boundaries of the above cession; and a correspondence was exhibited between Rice-Garland, one of the members of Congress from Louisiana, and Lewis Cass, then Secretary of War. These circumstances are mentioned here, because they are referred to in the bills of exceptions. The memorialists alleged that Rush Island had never belonged to the Caddo Indians, and was fraudulently included in the treaty. On the 30th of. December, 1836, a committee of the House of Representatives reported that the title to the reservation did not pass to the Grappes.

On the 18th of'January, 1837, Jehiel Brooks, the commissioner, obtained deeds from the devisees of Grappe, he having devised all his property to his children, by a will duly executed and recorded. These deeds conveyed all the land included within the reservation.

On the 19th of September, 1837, the following memorial was presented to the Senate of the United States. It was signed by twenty-one chiefs, many of whorft were parties to the treaty.

To the Honorable the Senate of the United States:

“ The undersigned chiefs, head men, and warriors of the Caddo tribe of Indians would most respectfully represent unto your honorable body, that they have, this 19th day of September, 1837, heard the treaty read and interpreted to them by a white man who understands and speaks their language well, by which treaty, (concluded between Jehiel Brooks, the Indian agent, on the one part, and the chiefs, head men, and warriors of the Caddo Indians on the other part,) the said chiefs, head men, and warriors sold to the United States their land; that they discover that the bounds and limits of the treaty are not such as they understood at the time of the treaty; that they contain lands that the Indians never claimed, and never sold, which land the Indians believed belonged to the United States, or to the French or Spanish; that the land sold by them to the United States is contained within the following' bounds, to wit: Bounded on the west by the north and south line which separates the United States and Mexico, between the Sabine and Red Rivers, wheresoever the same shall be defined and acknowledged to be by the two governments; on the north and east by the Red River, from the point where the said north and south boundary line shall intersect said Red River, following the western waters of said river down to where the Bayou Cypress empties into the same; thence up Bayou Cypress, following the meanders of the stream, to the western boundary line; that the said Indians never claimed any of the low lands between the Bayou Pierre (the western channel of Red River) and the main Red River, which is the. eastern channel; that they know that the land between the Bayou Pierre and the main channel of Red River has, for a long time, been exclusively settled and claimed by the white people; that the Indians did not claim said land, and never requested the Indian agent to remove them; and further, that they, the said chiefs, head men, and warriors of the said Caddo Indians, never made any reserve to any person in the treaty aforesaid, except to Mr. Larkin Edwards, an old white man that lived among them a long time; that Mr. Brooks, the Indian agent, told them that they could give Larkin Edwards a small piece of land if they wished to do so; that they then told Mr. Edwards that they would give him a small piece of land anywhere he wanted it' in their lands. The said chiefs, head men, and warriors would further represent unto your honorable body, ttiat Jehiel Brooks told one of the chiefs that one Jacques Grappe requested him to ask the Indians for a piece of land on Red River, in the .bottom and on the east side of the Bayou Pierre (the western water of Red River); that the said chief told Mr. Brooks that it was not their land, and Mr. Brooks told him that it was their land. The chief then told Mr. Brooks that, if it was their land, he was willing to give Jacques Grappe a little piece; but that they never made any reserve to Francois Grappe, or any of his heirs or representatives, by the treaty, within the limits of land they claimed or sold to the United States.
“ In witness of the truth of the above statement the said chiefs, head men, and warriors have hereunto set their hands, the day of the date above.”

On the 22d of May, 1838, a committee of the Senate reported that Rush Island never belonged to the Caddo Indians, and recommended a confirmation of the titles of certain settlers who were living on it anterior to the treaty between the United States and Caddoes.

In 1840, memorials were again presented to Congress by these last-mentioned settlers, and much testimony was taken by the authority of Mr. Bell, chairman of the committee to whom the memorials were referred.

In April, 1842, a committee of the House of Representatives reported in favor of confirming the titles of these settlers, an’d on the 6th of July, 1842, an act of Congress was passed confirming them. (5 Stat. at Large, 491.)

On the 30th of August, 1842, the joint resolution was passed which is set forth in the commencement of this statement.

On the 24th of February, 1846, S. W. Downs, the District Attorney of the United States, filed a petition in the Circuit Court of the United States for the District of Louisiana against the parties named in this report, alleging that they had unlawfully and fraudulently taken possession of the land therein described. The claim of the United States is thus set forth in the petition : —

“ Petitioners allege, that they are the true and lawful owners of the above-described land and premises, and that the pretended claim of the said possessors is illegal, invalid, and fraudulent; that by the treaty of cession of the province of Louisiana by the French Republic to the United States of America, and by the treaty between Spain and the United States of America in 1819, the United States succeeded to all the rights of France and Spain, as they then were in and over said province, including all-lands which were not private property, and that the aforesaid tract of land, ever since the said treaties, remained vested in the said plaintiffs, who are now the true and legal owners of the same; that plaintiffs have suffered damage to the amount of twenty thousand dollars, by the disturbance and occupation of said land by said possessors.”

On the 18th of March, 1846, Brooks answered the petition. He set forth the treaty, its ratification and proclamation; alleged that the heirs of Grappe acquired a perfect title under the reservation which he had since purchased, and that under the joint resolution of Congress the District Attorney of the-United States was not authorized to allege fraud against him. as commissioner; that he had sold and delivered sundry parts of the land to other persons, who were also defendants.

On the 13th of April, 1846, the District Attorney of the United States filed the following notice to the defendants of certain evidence which he proposed to offer upon the trial of the cause.

“ United States v. Jehiel Brooks et al.

“ The defendants in the above-entitled cause will take notice that the plaintiffs will offer, as evidence on the trial of this cause, so much of Report 1035 of the House of Representatives of the United States of the 27th Congress, second session, as is hereafter mentioned, to wit: The various reports of the '.committees embraced in this report, and the following depositions, that of Lewis Naville Rembin, Charles Rembin, Thomas Wallace, Jacob Irwin, Joseph Valentine, Sylvester Poi'ssot, Cesair Lafitee, John Joseph Le Bars, Michel Lattier, Francis Lattier, Pierre Rubio, Manuel Lafitte, D. M. Heard, Athanase Poissot, and all the depositions which were taken on the'part of the United States embraced in this report aforesaid ;• also, plaintiffs will offer in evidence the same depositions, embraced in a similar report and admitted by consent of parties in a suit between Jehiel Brooks v. Samuel Norris, in the District Court of the parish of Caddo, in said State, said Norris holding title under the United States, on Rush Island, in which the same issues were made as in this suit, and said'Brooks, plaintiff in that suit and defendant in this. Defendants are hereby notified to make objection, if any they have, on Friday the 17th instant, why the testimony aforesaid should not be admitted on the trial of this cause; said reports and depositions are herewith filed for reference,” &c.

On- the 28th of April, 1846, the court overruled so much of the above motion as proposed to introduce, as evidence, the report made by a committee of Congress, and disposed of the remaining part of the motion, viz. that part of it which proposed to introduce certain .testimony, by the following order, applicable to that part of the motion : —

“ United States v. Jehiel Brooks.
United States Circuit Court, District of Louisiana.
“Be it remembered, that on the 13th of April, 1846, a rule • was taken in this cause by the plaintiffs, calling on the defendants to show cause on the 17th of the same month why the depositions of certain witnesses named in said rule, and taken as therein stated, should not be read in evidence in this cause, when the same shall come on to be tried, as appears in said rule, which is hereunto annexed, and made a part of this bill of exceptions; and on the said 17th of April, 1846, Jehiel Brooks, by his counsel, Thomas H. Lewis, appeared and showed cause against the said rule, and contended that the said rule ought to be dismissed and discharged on the following grounds:—
“ 1st. The court cannot entertain this rule at the present stage of the suit, because the only law authorizing such a rule is an act of the legislature of- the State of Louisiana, entitled ‘ An Act to amend the Code of Practice,’ approved March 20, 1839, (see Acts 1839, page 108, section 17,) and said act does not apply to the present case, but is only applicable to depositions taken under commissions issued by the court, and in the suit in which such depositions are offered as evidence.
2d. The court cannot be called upon to decide upon the admissibility of any evidence in a cause before the same shall come on for trial, except in the case pointed out in said act of 20th March, 1839, and these depositions do not fall within the exception provided for by that act.
“ 3d. These depositions were not taken in any action or suit pending before any judicial tribunal, or by authority of any tribunal having power to decide upon title to property, or to bind parties litigant by its decisions.
“ 4th. There is no evidence before the court of any such suit as that of Jehiel Brooks v. Samuel Norris, or that these depositions were read in evidence, by consent or otherwise, on the trial of such suit, and these facts are not admitted.
“ 5th. If such a suit as Brooks v. Norris did exist, and if said depositions were read in evidence on the trial thereof, still they are not admissible in this cause, because the parties to this suit are not the same as the parties to that of Brooks v. Norris.
“ "Which grounds of objection being sustained by the court, the counsel for plaintiffs tendered this bill of exceptions, which was signed and sealed.
(Signed,) •* Theo. H. McCaleb, U. S. Judge."

On'the 7th of April, 1847, the District Attorney of the United States (Thomas J. Durant). filed a .petition that the case might be tried by a jury.

In the early part of the year 1848, the defendants, other than Brooks,, named in statement, filed their answers, averring that they were boná fide purchasers for a valuable consideration, without notice of any fraud.

On the 2d of May, 1848, the cause came on to be heard, and a jury was impanelled, who, on the 5th of May, found a verdict for the defendants, and judgment was entered accordingly.

The four following bills of exceptions were taken during the progress of the trial: —

“ No. 1.
The United States v. Jehiel Brooks et al.
" In the Circuit Court of the United States for the Fifth Circuit and District of Louisiana, Honorable T. H. McCaleb, Judge of the District Court, alone presiding; April term, 1848.
“ Be it remembered, that on the trial of this cause, on the 3d day of May, 1848, the attorney of the United States offered to read in evidence before the jury a letter from Lewis Cass, Secretary of War, to Rice Garland, Representative in Congress from Louisiana, dated 17th March, 1836, a copy of which is hereunto annexed.
“ The counsel for defendants objected to the reading of said letter, which objection was sustained by the court; whereupon the attorney of the United States tenders this his bill of exceptions, praying that the same may be signed and made part of the record in this case.
(Signed,) Theo. H. McCaleb, U S. Judge”
“ No. 2.
“ The United States v. Jehiel Brooks et al.
“ In the Circuit Court of the United States for the Fifth Circuit and District of Louisiana, Honorable T. H. McCaleb,, Judge of the District Court, alone presiding; April term,. 1848.
“ Be it remembered, that on the trial of this cause, on the 4th day of May, 1848, the counsel of defendants offered to read in evidence before the jury copies of affidavits of David,, Triebel, and D’Ortlont, made ex parte in Louisiana, and' attached to a copy of a memorial of Pelagie Grappe and others to the Senate of the United States, and contained in a certified copy of the proceedings of said Senate of 12th January, 1836, the attorney of the United States -objected to the reading of said affidavits, but the court overruled his objections, and allowed them to be read, merely to prove the fact that such affidavits had been submitted to the Senate of the United States, but not as evidence of the contents of said affidavits,, and the jury were so especially instructed' by the court; whereupon the attorney of the United States tendered this as his bill of exceptions, praying that the same rpay be signed and made part of the record.
(Signed,) Theo. H. McCaleb, TJ. S. Judge."
“ No. 3.
“ The United States v. Jehiel Brooks et al.
“ In the Circuit Court of the United States for the Fifth Circuit and District of Louisiana, Hon. T. H. McCaleb alone presiding; April term, 1848.
“ Be it remembered, that on the trial of this case, on the 4th day of May, 1848, the attorney of the United States offered to read in evidence before the jury a memorial dated on the 19th of September, 1837, to the Senate of the United States, from the Caddo tribe of Indians, a copy of which is hereunto annexed.
“ The counsel of defendants objected to the reading of said memorial, which objection was sustained by the court; whereupon the attorney of the United States tenders this his bill of exceptions, praying that the same may be signed and made part of the record in this case.
(Signed,) Theo. H. McCaleb, U. S. Judge."
No. 4.
" The United States v. Jehiel Brooks et al.
“ In the Circuit Court of ihe United States for the Fifth Circuit and District of Louisiana, Hon. T. H. McCaleb, Judge oi the District Court, alone presiding; April term, 1848.
“ Be it remembered, that on the trial of this case, on the 5th day óf May, 1848, after the arguments of counsel on both sides had been closed, and before the-jury had retired to consider on their verdict, the attorney of the United States prayed the court to charge the jury as follows, to wit: —
“ First. That the first of the supplementary articles to the treaty between the United States and the Caddo Indians, made at the agency-house of the Caddo, nation on the 1st of July, 1835, does not amount in law to a grant of four leagues of land from the United States to Francois Grappe and his sons, nor does it amount in law to a reservation then made of said lands to. the said Grappes, but it is simply a reservation of whatever right the said Grappes may have acquired to said land by the donation mentioned in the preamble to the supplementary articles to the said treaty.
“ Second. That the recital in the said preamble and supplementary articles, of a donation to the Grappes in 1801, does not relieve the defendants from the necessity of producing tbe primordial title or donation of 1801, nor does said recital prove the existence of said donation.
“ Third. That by the laws of Spain, which governed the locus in quo in 1801, the Indians had no primitive title to any' land on this continent; and that in 1801 the Spanish authority at Natchitoches had no legal right to ratify and confirm the donation recited in tlie aforesaid preamble and supplementary articles.
“ Fourth. That, by the laws and usages of the government of the United States, the Caddo Indians did not hold their land by the usual Indian title, but that they had been merely permitted to live upon it.
“ Fifth. That the legal construction of the Caddo treaty of the 1st of July, 1838, is, that those Indians merely relinquished to the United States their permissive possession of the lands.
Sixth. That, as all the other defendants, besides Brooks, are his vendees, and hold title under him, if the jury think from the evidence that Brooks has no title to the land, then that the other defendants stand in the same category, and are also without title.
“ But the court refused so to charge the jury, and did charge them as follows : —
First. That the treaty between the United States and the Caddo Indians on the 1st of July, 1835, and the articles supplementary thereto, having been ratified by the President and Senate of the United States, is part of the supreme law of the land, and as such must be respected and enforced by the courts of the United States.
“ Second. That the first supplementary article to the said treaty, and the preamble thereof, contain a recognition of title in Francois Grappe and his three sons to the land described in said preamble and article, and dispensed them, and those who hold under them, from producing any other title to said lands.
Third. That the United States, by treating with the Caddo Indians for the purchase of their lands, recognized in said Indians a right to said lands, similar to the rights to lands generally recognized in Indian tribes with whom the United States have made treaties. •
Fourth. That the testimony offered on behalf of the United States, to prove the lands reserved by the treaty in question to the Grappes had been fraudulently included within the limits of the territory ceded to the United States by the Caddo Indians, by the defendant, Jebiel Brooks, while acting as commissioner of the United States in making said treaty, was properly admitted to be read to the jury, and they should consider the same; and if they found said Brooks guilty of fraud, they should find a verdict for plaintiffs against said Brooks.
“ Fifth. That the other defendants stood in a different light before the court from Brooks, and the jury should inquire (if they found fraud in Brooks) whether said defendants had notice or knowledge of such fraud when they purchased the land held by them ; and if the.jury believed, from the evidence, that these other defendants (purchasers from Brooks) had notice or knowledge of such fraud, they should find also against them. But if, on the contrary, these purchasers had no such knowledge or notice, then the fraud in Brooks, their vendor, would not affect their title.
“ Whereupon the attorney of the United States for the District of Louisiana excepted to the said refusal and charge, and tenders this as his bill of exceptions, which he prays may be signed and made part of the record.
(Signed,) Theo. H. McCaleb, U S. Judge.”

A -writ of error, sued out on behalf of the United States, brought these several rulings before this court.

Such is the history of this transaction before and since it was brought into court by the United States.

All of us concur in opinion, that no exception was taken by the counsel of. the United States-to the rulings of the District Court in this cause, which can be sustained here.

- -We think that the treaty gave to the Grappes a fee simple title to ail the rights which the Caddoes had in these lands, as fully as any patent from the government could make one. The reservation to the Grappes, “their heirs and assigns for ever,” creates as absolute a fee as any subsequent act upon the part of the United States could make. Nothing further was contemplated by the treaty to perfect the title.

Brooks'being the alienee of the Grappes for the entire reservation, he may hold it against any claim of the United States, as his alienors would have done.

We have nothing to do, in our consideration of the case, with the conjectural intimations, which were made in the argument of it, concerning the influences -which were used to secure the reservation, or the designs of the commissioner in having it done. The record shows that he became a purchaser for a valuable consideration. Whether for an adequate one is not for us to say. His right to the land against the claim of the United States, as that has been asserted in this case, we think good, and we shall direct the judgment of the, court below to be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was' argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    The Louisville Manufacturing Company, Plaintiff in error, v. Michael Welch.
    The following guaranty, viz. “ I hereby guaranty the payment of any purchases of bagging and rope, which Thomas Barrett may have occasion to make between this and the 1st of December next,” extends the liability of the guarantor to purchases upon a/reasonable credit, made anterior to the 1st of December, although the time of payment was not to arrive until after that day.
    The vendor was not bound to give immediate notice to the guarantor of the amount furnished, or the sum of money for which the guarantor was held responsible. It was sufficient to give this notice within a reasonable time after the transactions were closed, and the question what was a reasonable time was a question of fact for the jury.
    If the principal debtor be insolvent at the time when the payment becomes due, even this notice is not necessary, unless' some damage or loss can be shown to have accrued to the guarantor in consequence of his not receiving such a notice. And in no instance, in case of a guaranty, will the guarantor be exempt from liability for want of the notice, unless loss or damage is shown to have accrued as a consequence.
    But when a party intends to avail himself of the guaranty by making sales on the faith of it to the person to whom it is given, suoh.party must give notice, within a reasonable time, to the gup.rantor, of his acceptance and intention to act on it. _ "Where the guarantor took defence upon the ground that he had before notice given, up securities belonging to the receiver of the guaranty which would have made him whole, the time of his doing this should have been giyen to the jury as an essential ingredient for their judgment upon the question whether or not he had received reasonable notice of his liability.
    The admission of the guarantor, when called upon for payment, did not conclusively bind him as a matter of law, because it may not have been made with a- full knowledge of all the facts in the case. It was therefore properly left to the jury to decide whether so made or not.
    Tins case was brought up, by writ of error, from the Circuit Court of the United "States for the District of Louisiana.
    The Louisville Manufacturing Company was incorporated by an act of the legislature of Kentucky, and was domiciliated and transacting business in that State.
    On the 3d of May, 1845, Michael Welch gave to one Thomas Barrett the following letter of credit, viz.: —

      “ T hereby guaranty the payment of any purchases of bag-

      ging and rope which Thomas Barrett may have occasion to make between this and the 1st of December next.
    M. Welch.
    “ New Orleans, 3d May, 1845.”
    This letter of credit was deposited by Barrett with the -house of Worsley, Forman, & Kennedy, the factors of the Louisville Manufacturing Company, who made sundry sales of bagging and rope to Barrett upon the following credits, viz.: —
    Up to the 22d July, 1845, and on that day, the sales of bagging and rope by plaintiffs to Barrett amounted to $ 891.32, for which, on that day, Thomas S. Forman, agent of plaintiffs, drew a bill on Barrett, to the order of the Louisville Manufacturing Company, due and' demandadle on the 20th of December, 1845, which bill, "was accepted by Barrett.
    On 28th August, 1845, Barrett drew on himself, and accepted a bill for $ 605.07, to the order of the plaintiffs, due 10th January, 1846.
    On the 18th September, 1845, Barrett drew on himself, and accepted a bill for j§ 531.50, to the order of the plaintiffs, due 15th January, 1846.
    On the 1st December, 1845, Barrett drew on himself, and accepted a bill for $ 433.08, to the order of plaintiffs, due on the 20th January, 1846.
    The first-named bill for f! 891.32 was not protested, having been withheld from the protest, at the instance of Barrett. The other three bills were protested at maturity.
    The circumstances which. occurred, prior to the institution of the suit, are stated in the evidence given upon the trial, which was made a part of the bill of exceptions.
    On the 1st of August, 1847, the Louisville Manufacturing Company brought an action, by filing a petition against Michael Welch, in the Circuit Court of the United States for the District of Louisiana, which came on for trial in May, 1848. The following is the evidence which was given.
    “ And afterwards, to wit, on the 11th day of May, 1848, the testimony of W. Chambers was offered in evidence.

      “ I was a clerk in the houses of Worsley & Forman, Worsley, Forman, & Kennedy, and Forman & Kennedy, from the winter of 1842 to July, 1847. In the spring or summer of 1845, Thomas Barrett deposited with Worsley, Forman, & Kennedy a letter of credit from Michael Welch, guarantying the payment of bagging and rope, which Barrett might purchase, to a certain amount, within a certain named period. On the said letter of credit. Worsley, Forman. & Kennedy did, as factors of the Louisville Manufacturing Company, sell to Barrett, at various times, sundry invoices of bagging and rope belonging to said Louisville Manufacturing Company, for which they took his acceptances for account of said company as follows; viz. one dated 22d July, 1845, due 20 - 23 December, for $ 891.32; one dated 28th August, 1845, due 10 -13 January, 1846, $ 605.07; one dated 18th September, 1845, due 15-18 January, 1846, $ 531.50; one dated 1st December, 1845, due 20 - 23 January, 1846, $ 433.08.
    “ Subsequently to taking the acceptance last named, they sold him bagging and rope to the amount of $ 78.86, which stands to his debt on open account.
    “ Mr. Welch was not notified by Worsley, Forman, & Kennedy that the letter of credit had been deposited with them at the time it was deposited, nor until after the maturity of the acceptance first named above. Shortly after the maturity of the said bill, in the latter part of December or - early part of January, I think between the 5th and 10th of January, I saw Mr. Welch in person; informed him of the sales of bagging and rope made by Worsley, Forman, & Kennedy to Mr. Barrett on his letter of credit; told him that the acceptance of Barrett for $> 891.32 was unpaid; that he would be looked to for the payment of it, and the other acceptances should they not be paid. He requested me to try and get all I could from Barrett.
    “On the 7th of May, 1846, I addressed him a letter urging him to settle the claim. Saw him in person, don’t recollect the date of the interview, and urged him to settle the business. He requested that he might not be pressed for payment, saying that it was a very hard ease; that he did not wish to place any obstacle in the way of collecting the money ; that he had not then at command the means of paying it conveniently; that he would have more ample means when the next cotton crop came into market.
    “ On the 26th of April, 1847, I had an interview with Mr. Welch. He remarked that he understood the letter of credit to restrict the time of the credit which might be given for goods purchased under it to the month of December; that, under the impression, to protect himself against the liability, he retained under his control certain valuable papers of Barrett’s, until the expiration of the time to which he thought his liability extended, when, upon' the assurance of Mr. Barrett that the debt was settled, he surrendered the papers.

      “ I remarked to him that, in the interview which I had with him in the spring of 1846, he assured me that it was not his intention to place any obstacle in the way of the collection of the money; that he asked, as a favor, that he might not be pressed for its immediate payment, representing that he had not then the means at command to pay it, but that he would be able to pay it with less inconvenience when the next cotton crop came into market; that he had induced the belief that he would pay it as soon as he could do so. He replied that it was at that time his intention to pay it, and that he would have done so, but'that he subsequently learned that he would lose a much larger sum by Mr. Barrett; that he would be unable to bear so heavy a loss, and had come to the determination not to pay this claim, or any other claim growing out of his liability for Barrett, unless compelled by law.
    ■“ The papers to which I refer as having been in the hands of Mr. Welch,' and which he said he might have retained to indemnify him, I did not understand him as saying had been placed in his hands by Mr. Barrett for that purpose, but came into his hands without any reference whatever to this' liability; but that, if he had known he was liable, he could and would have re ained them.
    “ Mr. Welch did not, as well as I remember, make to me any promise to pay the bills, except in the manner previously referred to.
    • “ Worsley, Forman, & Kennedy, or Worsley & Forman, their predecessors in business, had previously sold to Mr. Barrett bagging and rope to a large amount, upon a letter of credit of Mr. Welch and Mr. Elgee, acting as the agent of Worsley, For-man, & Kennedy. I would not have sold goods to Mr. Barrett on time upon his individual responsibility alone.

      “ On the day of the maturity of the bill first maturing, the one for if 891.32, d e 20-23 December, Mr. Duff, a young man who had charge of Mr. Barrett’s business, called on me and told me that Mr. Barrett was sick; that he would be unable to pay the bill on tpat day, and requested that Worsley, Forman, & Kennedy would take it up, representing that he would be in funds to pay it in a few days, and, as soon as.he was able, would pay it. In consequence of which, the bill was taken up by' Worsley, Forman, & Kennedy, as agent of the Louisville Manufacturing Company.
    W. Chambers.
    “ New Orleans, February 23,1848.

      “ To be admitted as evidence, as if sworn to and given in'open court.
    Wm. Dunbar, for Welch.

    Stockton & Steele, for Plaintiff.

      “ New Orleans, .February 23,1848.

      “ And on the same day the testimony of W. W. "Whitehead was offered in evidence.
    “ I ana acquainted with the bagging and rope trade in New Orleans; have been several times, at different periods, in the commercial house of Worsley, Forman, & Kennedy, and For-man && Kennedy; know that those articles are sometimes sold ■ for cash, and sometimes on time. Time sales made about this period of the year are most frequently made payable about the beginning of the ensuing year, but vary as to the time; sometimes the bills are drawn payable as early as November and December, and sometimes the time is extended to January, February, and March. Time sales are also sometimes made on shorter time, to wit, thirty, sixty, ninety, and one hundred and twenty.days.
    W. W. Whitehead.
    “ New Orleans, May 10,1848.”
    “ The above evidence is taken by consent of parties, .and it is agreed that it may be read on the trial of the case of the Louisville Manufacturing Company v. Welch, as testimony, by either party.
    Stockton & Steele, for Plaintiffs.

    Wm. Dunbar, for Defendant.

    “ New Orleans, May 10,1848.
    “ And further on" the same day, the testimony of D. Griffon was offered in evidence.
    “ I certify that the two accounts, A and B, are taken from the books of the late Thqmas Barrett, and are a true copy of the same, and that they contain a full and correct statement of the accounts of Thomas Barrett and Michael Welch, Esq. I was a clerk in the house of Thomas Barrett during the period of the above two accounts, and know them to be correct, having compared them with the books. There were not, at anytime, any funds or notes placed in the hands of Mr. Welch to secure him for his guaranty of the 3d May, 1845 ; if there had been, I should have known it. I have known that Captain Welch traded from Alexandria to New Orleans as captain of a steamboat, and was here every eight or ten days, from the 3d of May, 1845, up to this time.
    D. Griffon.
    “ New Orleans, 23d February, 1848.
    “ We agree that the above evidence may be used as if the witness was sworn and examined in open court, in the case of the Louisville Manufacturing Company v. Mr. Welch, and that

      the accounts A and B be taken without requiring the production of the books of Banett.
    Stockton & Steel,®, for.Plaintiffs.

    Wm. Dunbar, for Defendant.”
    “ New Orleans, February 23, 1848.”
    (Then folio-wed a transcript of long accounts between Welch and Barrett.)
    The following bill of exceptions was taken upon the tiial: —
    “ Be it remembered, that on the trial of this cause, 'and before the jury retired, the plaintiffs by their counsel, Stockton & Steele, requested the court to charge the jury as follows : —
    “ 1. That the statement made by defendant to witness Chambers, who had called on behalf of plaintiffs to demand payment, that on the assurance of Barrett that the debt had been paid, he, Welch, had given up papers and security, by which he could have secured himself from loss, was an acknowledgment that he had due notice of the fact that the plaintiffs had sold the goods to Barrett on the faith of the letter of credit.
    “ 2. That if notice of the purchase of' goods from plaintiffs on the letter of credit was given within a reasonable time by Barrétt to defendant, it enured to the benefit of plaintiffs as effectually as if the notice had been given him directly from the plaintiffs.
    “ 3. That the immediate and' strict notice required to be given by the holder of a protested bill of exchange or promissory note is not requisite in cases of guaranty.
    “ 4. That if there was no other notice, that given by plaintiffs at the time of the protest of the first bill, or shortly before or shortly after the date, was sufficient.
    “ 5. That' the statement made by Welch, the defendant, to witness, Chambers, while the latter was acting for plaintiffs in endeavoring to collect the debt, that he had not then the means to pay the debt, but after another cotton crop he would be able to pay, and that ‘ he did not wish to throw any obstacles iri the way of the collection of the debt,’ was a waiver of all objections to the payment thereof, was an acknowledgment of his legal liability, and a promise to plaintiffs to pay them the debt.

      “ 6. That the failure to protest any of the bills of exchange was not a giving of further time to the debtor, Barrett, and the liability of the defendant was in no way affected thereby.

      “ 7. That the giving a reasonable' credit to Barrett on the sales was no violation of the rights of Welch, and that the credits in this case were reasonable.

      “ 8. That the mistake of Welch as to the fact of the debt having been paid does not release his obligation.
    “ Whereupon' the eourt instructed the jury as desired by the plaintiffs in their second, third, and sixth points of instruction, but refused to give any of the other instructions asked by the plaintiffs; to which ruling of the court, the plaintiffs by their said counsel excepted, tendered this their bill of exception, and prayed that it might be signed, which is done accordingly.
    “ And be it further remembered, that at the same time the defendant, by William Dunbar, his counsel, asked the court to charge the jury as follows: —
    “ 1. That upon acceptance by the plaintiffs, or theiv agents, of •the letter of credit, notice should have been given in a reasonable time to the defendant that they had accepted the guaranty, and that they meant to furnish Thomas Barrett with bagging and rope upon the faith of defendant’s guaranty.
    “ 2. That after the bagging and rope had been furnished by them, they should have given immediate notice to the defendant of the amount furnished, and the sum of money for which they looked to the defendant for payment.
    “ 3. That the credit to Thomas Barrett should not have been extended beyond the term mentioned in said letter of credit, viz. the 1st of December, 1845, the term mentioned in said guaranty.
    “ 4. That if the defendant had been released or discharged by the failure of the plaintiffs or their agents to give the proper notices to the defendan as before charged, the obligation of the defendant on the guaranty could be revived, or the laches or neglect of the plaintiffs, or their agents, waived only by a promise of the' defendant to pay with a full knowledge of all the circumstances ; and that the promise must.be explicit, and made out by the most clear and unequivocal evidence.
    “ 5. That if the jury believe that time was given by the plaintiffs or their agents to Thomas Barrett, at the maturity of any of the drafts or notes sued on, without the consent of the defendant, the defendant is hereby relieved from the payment of any one of them upon which said time was given.
    “ Whereupon the plaintiffs objected to the court giving such instructions so asked by the defendant through his said counsel, but the court overruled said objections of the plaintiffs, and gave to the jury all the said instructions so asked as aforesaid by the' defendant; to which ruling and instructions by the court the plaintiffs; by their said counsel excepted, tendered this their bill of exceptions, and prayed the same might be signed, whieh is done accordingly. The court, in refusing to give the fifth instruction asked by the plaintiffs, stated to the jury that it was a question of fact for their own determination, and that for that reason he refused to give that instruction.
    “Theo, H. McCaleb, U. S. Judge.”

    The jury found a verdict for the defendant, and the plaintiffs sued out a writ of error, under which the case was brought to this court.
    It was argued by Mr. Buttenoorth, in a printed brief, for the plaintiffs in error, no counsel appearing for the defendant.
    The points made by the counsel for the plaintiffs in error were the following, viz.: —
    I. That the court erred in refusing to charge the jury as follows: —
    1. “ That the statement made by defendant to witness Chambers, who had called on behalf of the plaintiffs to demand payment, that on the assurance of Barrett, that the debt had been paid, he, Welch, had given up papers and security, by which he could have secured himself from loss, was an acknowledgment that he had due notice of the fact that the plaintiff’s had sold the goods to Barrett on the faith of the letter of credit.”

      2. “ That if there was no other notice, that given by the plaintiffs at the time, of the protest of the first bill, or shortly before or after that date, was sufficient.”
    3. “ That the statement made by Welch, the defendant, to the witness Chambers, while the latter was acting for the .plaintiffs in endeavoring to collect the debt, that he had not then-the means to pay the debt, but after another crop of cotton, he would be able to pay, and he did not wish to throw any obstacles in the way of the collection of the debt, was a waiver of all objections to the payment thereof, was an acknowledgment of his legal liability, and a promise to plaintiff’s to pay them the debt.”
    4. “ That the giving a reasonable credit to Barrett on the sales was no violation of the rights of Welch, and that the credits given in this case were reasonable.”

      5. “ That the mistake of Welch as to the fact of the debt having been paid does not release his obligation.”
    II. The court erred in charging the jury as follows:
    1. “ That the credit of Thomas Barrett should not have been extended beyond the term mentioned in said letter of oredit, viz. the 1st of December, 1845.”
    Upon this assignment of errors, we have only a few words of remark to offer to the court.
    The conversation of Welch with Chambers, referred to in the first item of instructions to the jury asked by plaintiffs, shows conclusively that Welch had had securities, or means of indemnity, in his hands against loss on account of this guaranty ; that he had intended to hold on to them; and that he gave up these securities to Barrett only on the assurance of Barrett that the debt had been paid to the plaintiffs.
    It seems, then, that Welch not only had notice, but he had reaped the fruits which the law intends shall be gathered from notice, security against loss. If he afterwards gave up these securities to Barrett, on his assurance that the debt had been paid, it was his own folly and misfortune ; but the very reason which Welch assigned to Chambers for having given up the securities necessarily establishes the fact of due notice.
    That Welch intended to hold on to these securities is established by the fact that he gave them up on the assurance of Barrett that the debt had been paid.
    The court should have given the jury the instruction contained in- the fourth item of instructions asked for by the plaintiffs. However, we do not deem it material, as what is said above is, in our opinion, conclusive on the matter of notice.
    , The same reason also relieves us from any necessity to remark upon the instructions given the jury at' the instance of defendant, in regard to notice.
    The conversation of Welch with Chambers, in our opinion, clearly establishes, also, that Welch acknowledged his indebtedness, and promised to pay the defendant; and, therefore, the fifth item of instruction to the jury, asked by the plaintiffs, should have been given by the court. Welch said that he had not then money to pay the debt; that after another crop of cotton he would be able to pay, and that he did not wish to throw any obstacles in the way of the collection of the debt.
    This was certainly equivalent to a direct acknowledgment of, and promise to pay, the debt.
    He did not wish to throw any’obstacles in the way of the collection of the debt. Collection of the debt from whom?' From a third person over whom he could have no control ? From Barrett, who was assuredly bound, and the collection of the debt from whom, Welch could in ño way whatever retard or obstruct ? It would be unphilosophical to suppose, that Welch did not speak only in reference to his own liability, and to the collection of the debt from himself. It was tantamount to saying, I know I am liable for the debt; but I have no present means with which to pay; after another cotton crop, I shall be able to pay; I have no intention to dispute the debt. I do not dispute the debt.
    The judge of the court of first instance assigned in the bill of as a reason for to this instruction to the jury, that it was matter of fact, and therefore to be judged of by the jury only.
    We answer, that it is the province of the court to determine what words and circumstances amount to a promise to pay, or a waiver of a right.- This is made plain, when the supposed promise to pay, or waiver, has been reduced to writing. In such case, it is clear that the court must instruct the jury as to the point of its being in law a. promise or not, or a waiver or not. The court in such case instructs the jury, that if they believe the instrument of writing to have been executed by the party against whom it is adduced, then such instrument amounts in law, or does not amount in law (as the case may require), tp a promise to pay, &c.
    Now, we cannot conceive any reason which could give this power to the court in the case of a written instrument, and yet refuse it in case the obligation is evidenced only by parol; the question in each case is, Do the words, whether written or not, under the circumstances, amount, in law, to a promise, &c. ?
    The court should then, in our opinion, have instructed the jury, that, if they believed that Welch stated to Chambers that he had not then the means to pay the debt, but after another cotton crop he would be able to pay, and that he did not wish to throw any obstacles in the way of the collection of the debt, or spoke to him in words to that effect, then such words amounted to a waiver of all objections to the payment of the debt, to an acknowledgment of his legal liability therefor, and ■ to a promise to the plaintiffs to pay them.
    The rule attempted to be applied to this case, by the defendant, as to the necessity of knowledge on the part of Welch of all the' circumstances, &c., is not applicable here, because that rule applies only when the party promising has done so without the knowledge of the fact, that notice had not been given according to law in order to bind him. But in the ease at bar, the statements of Welch himself to Chambers show that ho had had due notice; for Welch tells Chambers, that, on the assurance of Barrett that the debt had been paid, he had given up the securities, &c., which establishes that, notice had been given, and that it came to his, Welch’s, knowledge.
    We think it fully established that this item of instruction should have been given the jury.
    The seventh item of instruction asked for by the plaintiffs assumes that the giving a reasonable credit to Barrett on the sales was no violation of the rights of Welch.
    The sales in this casé were made to Barrett between the 3d May and 1st December, 1845; the four obligations of -Barrett were taken, falling due on the 20th Deeembei, 1845; 10th.Jan-uary, 1846; 15th January, 1846; and 20th January, 1846.

      The court refused to give the instruction ; and on the contrary, at the instance of the defendant, instructed the jury that the credit given Thomas Barrett should not have been extended beyond the term mentioned in the letter of -credit, viz. the 1st of December, 1845.
    The case of Samuell v. Howarth, mentioned in Fell on Guaranties, pages 165,166,167, is directly opposed to the ruling of the Circuit Court in this- case.
    .The time within which.sales were to be made under the guaranty in that case extended from 2d April, 1814, to 2d April, 1815. Goods were furnished during that period on certain credits, to be then paid for, with bills at three months, which' bills were accordingly drawn and accepted, &c. These bills were again renewed from time to time; and the fresh bills again renewed, till June, 1816..
    The Lord Chancellor said, as no stipulation was made as to the terms of credit, he would suppose them to be in the usual course of trade. In that case, in consequence of the frequent and unusual extension of the time of payment, by repeated renewals of the bills, the guarantor was held to have been discharged.
    There is no necessity for a guaranty, when the terms of sale are cash; the very nature of the undertaking presupposes a credit; indeed, guaranty can exist only in cases in which credit is given.
    Now, the guaranty in the case at bar extended to sales made at any time between its date; 3d May, 1845, and the 1st of December of the same year.
    It is apparent, then, that the latter part of the term, according to the ruling of the Circuit Court, could have no effect at all. By the terms of the guaranty, the sales made on the 30th of November are as fully protected as those made on the 4th day of May; but the ruling of the court would confine the sales of the 30th of November to the short credit of twenty-four hours.
    We have not a doubt this ruling of the Circuit Court is erroneous.
    The eighth item of instruction asked for by plaintiffs-assumes that the mistake of Welch as to the fact of the debt having been paid does not release his obligation.
    The court refused to give this instruction. Welch, in conversation with Chambers, the agent of plaintiffs for collection of the-- debt, stated to Chambers, that on the assurance of Barrett that the debt had been paid, he, Welch, delivered up to Barrett securities, &e., by means of which he could have secured himself from loss. We are at a loss to conceive how the mistake of Welch as to a fact, to look to which was his duty, can in any degree affect the rights of -the plaintiffs, who had neither any interest, nor any authority, to meddle with the matter of indemnity against loss furnished by Barrett to Welch.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a writ of error to the Circuit Court held by the ■district judge in and for the District of Louisiana.

The suit was brought upon the following letter of credit signed by the defendant, and dated New Orleans, 3 May, 1845: * I hereby guaranty the payment of any purchases of bagging and rope which Thomas Barrett may have occasion to make between this and the 1st of December next.”

It appeared that this letter of credit, soon after it was given, was deposited by Barrett with a house in-New Orleans, who, ■as the factors of the plaintiffs, sold, at different periods, within the time prescribed, several parcels of bagging and rope, and delivered the same to Barrett on the faith of it, giving the usual credit on the sales of goods of this description, and taking his acceptances for the price, payable at the expiration of the credit to the order of the plaintiffs.

There were four different parcels sold at different times, and the usual credit given, on each of the sales, extended beyond the 1st of December, the time mentioned in the guaranty.

No notice was given to the defendant by the. house in New Orleans, nor by the plaintiffs, of the acceptance of his letter of credit, or of the sales made to Barrett on the faith of it.

Shortly after the maturity of the first acceptance, which was •in. the latter part of December, the clerk of the New Orleans house called on the defendant, and gave him notice the acceptance was unpaid, and that he would be looked to for payment; and also for the payment of the acceptances then running to maturity, if unpaid when they fell due. The defendant desired the clérk to obtain all he could from Barrett towárds the payment. Subsequently, and after all the acceptances had become due and were dishonored, the clerk hád •a second interview with him, when he expressed a wish that he might not be pressed for the payment immediately, observing, that he did not wish to interpose any obstacle to the collection of the demand; that he had not the means of paying the amount then conveniently; but would have them at the coming in- of the next cotton crop,

•At a still later interview, the defendant expressed the opinion, that his letter restricted the time of cr.edit to' Barrett for the goods to be purchased to the 1st of December, stating that, under this impression, he had delivered up to him certain securities at the expiration of the period of the credit given, which he held as an indemnity, Barrett assuring him at the time that the demand had been settled.

The evidence being closed, the following instructions were, among others, prayed for, on the part of the plaintiff, and refused.

1. That the giving a reasonable credit to Barrett on the sales was no violation of the rights of the defendant; and that the credits in this case were reasonable.

2. That the mistake of the defendant as to the fact of the demand having been paid did not release his obligation.

And the court gave, among others, the following instructions : —

1. That after the bagging and rope had been furnished bj the plaintiffs, they should have given immediate notice to. the defendant of the amount furnished, and the sum of money for which they looked to him for payment.

2. That the credit to Barrett should not have extended beyond the term mentioned in the said letter of credit, to wit, the 1st of December.

The jury found a verdict for the defendant.

I. We are of opinion, that the court below erred in the construction given to the terms of the letter of credit. It guarantied the payment of any purchases of bagging and rope that Barrett might have occasion to make between its date and the 1st of December. The limitation is as to the time within which the purchases were to be made ; not as to the time of the credit to be given to the purchaser. As credit was contemplated, indeed was the special object of the guaranty, that which was given upon the. sales of goods of this description in the ordinary course of trade must have been intended. And, for aught that appears in the case, this was the credit given.

The time for which credit was to be given upon the purchases is left indefinite in the instrument, and must receive a reasonable interpretation; one within the contemplation of the parties ; and that obviously is as we have stated. Samuell v. Howarth, 3 Mer. 272.

There might be some doubt upon the language used by the court below on this point, whether, in charging that the credit to Barrett should not have been extended beyond the 1st of December, it was not intended to refer to the purchases of the goods, and not to the period of credit given.

But when taken in connection with the seventh instruction prayed for and refused, all ambiguity is removed.

Besides, no question appears to have been raised, that the price was claimed for any goods sold beyond the limit of the guaranty.

II. We are also of opinion, that the court erred in the instruction, that, after the bagging and rope had been, furnished t.p Barrett, the plaintiffs should have given immediate notice to the defendant of the amount furnished, and of the sum of money for which they looked to him for payment.

The rule as laid down by this court in Douglass and others v. Reynolds and others (7 Peters, 126) is, that, in a- letter of .credit of this description, all that is required is that, when ail the transactions between the parties under the guaranty a:< e closed, notice of .the amount for which the guarantor is held responsible should, within a reasonable time afterwards, be cornmunicated to him.

What, is a reasonable time must depend upon the circumstances of each particular case, and is generally a question, of fact for the jury to determine. Lawrence v. McCalmont et al., 2 Howard, 426.

It was also ruled in that case, that, when the debt fell due against the principal debtor, a demand of payment should be made, and in case of non-payment by him, that notice of such demand should be given in a reasonable time to the guarantor, and that otherwise he would be discharged from his liability.

■ When the case came before the court a second time, and which is reported in 12 Peters, 497, the principle here" stated was somewhat'qualified, the court holding that, in case of the insolvency of the principal debtors, and total inability to respond to the surety before the debt fell due, the demand and notice might be dispensed with.

The court refers to a class of cases both in England and in ■this country, drawing the distinction between the liability assumed by a guarantor, and that of the drawers or indorser of commercial papers; the former being held liable on his guaranty in .the absence of any demand and notice, unless some damA age or loss had been sustained by reason of the neglect; while, ■in order to charge the latter, strict demand and notice must be •shown according to the law merchant

The authorities are very full on this, head, and are founded mpon sound and substantial reasons. 8 East, 242; 2 Faunt. 206; 3 B. & Cr. 439, 447; 1 Ib. 10 ; 5 M. & S. 62; 5 M. & Gr. 559 ; 9 S. & R. 198; 1 Story, 22, 35, 36; Chitty on Bills, 324; Chitty, jr. 733; 3 Kent, Com. 123.

When this case was before the court the second time, one of the grounds' upon which a new trial was ordered was the refusal of the court below to instruct the jury, that, if they found the principal debtors, at or previous to the time the payment of the debt fell due, insolvent, the omission to demand paymertt and give notice to the guarantor did not discharge him from his liability. The rule, therefore, above stated, was not only laid down very distinctly, but applied in that case in the final disposition of it by the court.

The same doctrine is very fully stated and enforced by MrJustice Story in Wilder v. Savage, already referred to; and also laid down in his work on Promissory Notes (§ 485), and by Chancellor Kent in his Commentaries (Vol. III. p. 123.)

The same course of reasoning and authority would seem to be equally applicable to the notice required of the goods furnished or credits given under the guaranty, and on the faith of it at the close of the transactions, and of the amount for which the party intended to look to the guarantor for payment, so as to advise him of the extent of his liabilities: We perceive no reason why the rule in respect to notice should be more strict in thi's stage of the dealings of the parties, than at the time when the debt becomes due; or that the guarantor should be discharged for the delay in giving this notice, when no loss or damage has resulted to him thereby. He has already had notice of the acceptance' of the guaranty, and of the intention of the party to act under it. The rule requiring this notice within a reasonable time after the acceptánce is absolute and imperative in this court, according to all the cases ; it is deemed essential to an inception of the contract; he isj therefore,' advised of his accruing liabilities upon the guaranty, and may very well anticipate, or be charged with notice of, an amount of indebtedness to the extent of the credit pledged. Still, it may be reasonable that he should be advised • of the actual amount of liability, when- the transactions .are closed; and, if any loss happens in consequence of the omission to give the nbtice within, a reasonable time, the fault is attributable to the laches of 'the creditor, and must fall on him.

Upon this view, the doctrine governing the question of notice at the close of the dealings on! the faith of the guaranty, and also at the subsequent period when the indebtedness under it becomes due, is consistent and reconcilable, and places the duty of the creditor on the one hand, and the obligation of the guarantor on the other, in both instances, upon those general principles which have always been applied to contracts, of this description, and preserves and maintains throughout the settled distinction on the subject of. notice between the liability assumed by the guarantor, and that of the drawer or indorser of commercial paper.

■ This intermediate notice required in this court does not appear to be a necessary step to charge the guarantor according to the English cases, as notice of acceptance and intention to. act upon the guaranty is regarded as sufficient, until the debt becomes due and payable; then reasonable notice of the default of the principal to pay must be given, as otherwise, if loss or damage should happen in consequence of the omission, it would operate as a discharge to that extent.

Returning, then, to the case in hand, we think the court erred in charging the-jury in respect to this intermediate notice of the goods furnished, and of the sum for which the plaintiffs intended to look to the-defendant for. payment, in holding that it should be given immediately upon the closing of the dealings under the guaranty; as reasonable notice, in the cases in which it is required, is all the diligence that is essential in order to comply with the rule. According to the instruction, the jury must have understood that notice to charge the defendant should- have been as strict as in the case of a drawer or indorser of a bill of exchange.

The eighth, instruction refused, to wit, that the mistake of the defendant as to the fact of the debt having been paid did not discharge him, is not very intelligible ; but, as a proposition standing alone, should have been given or explained. The refusal implied that the mistake operated to discharge the defendant, which we presume was not intended. The instruction is incautiously drawn, and was, doubtless,- connected with some other matters that have not been brought into it. It was probably connected with the facts embodied in the -first instruction, in which the court was requested to charge that the admission of the defendant to the clerk that he had given up certain papers to Barrett which would have indemnified him, on his assurance that the debt had been settled, was an acknowledgment of due notice that the plaintiffs had sold the goods on the faith of the letter of credit.

This instruction was properly refused, as the inference sought to be drawn from the statement was not a matter of law. At most, it could only be a question for the jury, accompanied with proper directions of the court as to the law. The admissions were made more than a year after the debt had become due, and the failure of Barrett to make payment. The time when the defendant possessed this knowledge was material in order to make out due- notice, and this is not embraced in the proposition upon which the- court was called upon to charge. If submitted to the jury, this must necessarily have entered into the instructions that should have been given to them.

The court was also right in refusing the fifth instruction, as it respected the promise of the defendant to the clerk to pay, as the effect of the promise, if made, depended upon the question whether it was made with a full knowledge of ail the faets going to discharge him from his obligation.

This question was, therefore, properly submitted to the jury.

But, upon the grounds above stated, and principally the misconstruction of the terms of the letter of credit, which was fatal to the right of the plaintiffs, and the error in respect to the degree of diligence to be used in giving notice of the transactions under it, the judgment must be reversed, and the case remitted, and a venire de novo awarded for a new trial.

Order.

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