THIS case was brought up by a writ of error from the Circuit Court of the United States for the eastern district of Louisiana. The case was this: On the 27th of July, 1838, Charles Bishop executed the following promissory note:
The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.
Donaldsonville, 27th July, 1838.
In all the month of May next, 1839, I promise to pay H. Williams and A. F. Rightor or order, the sum of five thousand dollars, value received.
Which note was endorsed to Eager, a citizen of Kentucky, by Williams and Rightor, waiving the necessity of a demand of payment on the maker and of protest for non-payment and also of notice to themselves as the endorsers, of the nonpayment of the note.
On the 17th of August, 1838, John Hagan senior, of New Orleans, conveyed to Williams and Bishop, six tracts of land for $50,000, payable in one, two, and three years, with interest, the notes for which were dated on the 1st of August, 1838, and endorsed by Rightor. It was made a condition of sale that, if any one of the notes should not be punctually paid, the whole of the lands should revert to Hagan.
On the 26th of February, 1839, Bishop sold out all his interest in the above purchase to Williams, Rightor, and Andrew McCollum.
On the 3d of August, 1839, the first note given by Williams and Bishop to Hagan, for $16,666.66, was protested for nonpayment.
On the 18th of November, 1839, Eager brought suit by filing a petition in the Circuit Court of the United States, against Williams and Rightor as endorsers upon Bishop's note.
On the 7th of January, 1840, judgment was entered in favor of Eager for the amount of the note, with interest from the 1st of June, 1839. In March, 1840, a fi. fa. was issued, and in April, levied upon one of the tracts of land above mentioned, together with some personal property.
On the 16th of April, 1840, Hagan filed, in the second District Court of the state of Louisiana, a petition, in the nature of a bill to foreclose a mortgage, reciting that the first note of $16,666.66, given for the purchase of the six tracts of land, remained unpaid, and praying a sale of the whole of the tracts, to pay that and the other two notes of the same amount. A judgment or decree upon this petition was entered by consent, with a stay of execution until 1st of January, 1841.
On the 22d of August, 1840, the execution in favor of Eager, which had been lying over for want of bidders, was finally carried out by a peremptory sale of the property which had been levied upon, on a credit of twelve months; when John McCollum (the plaintiff in error) became the purchaser for the sum of $5,442.41, and gave his bond with five sureties for that amount to Jenison Eager.
On the 6th of January, 1841, the stay of execution upon Hagan's judgment or decree having expired, an execution was issued upon it, and Hagan repurchased the six tracts of land.
On the 24th of July, 1841, John McCollum gave a power of attorney to B. W. Lawes to act for him in every thing relating to the twelve ...