
    John M‘Niel, plaintiff in error v. Lowell Holbrook.
    In an action on four promissory notes, one of which was drawn by the defendant, in favour of the plaintiff, and the others were drawn by the defendant, in favour of other persons who had endorsed them to the plaintiff,' parol evidence was properly admitted that the defendant acknowledged that he was indebted to the plaintiff, in the amount of the' notes, and offered to confess judgment, in the course of a negotiation with the plaintiff’s counsel, although the negotiation'fell'through; and. although no proof was given of the handwriting or signatures of the endorsers of the notes. This cáse does not come within the reason or principle qf the rule which excludes.offers to pay, made by way of compromise upon a disputed claim; and to buy peace.
    The court is not bound to give any hypothetical direction to the jury; and to leave them to find a fact, where no evidence of such fact is offered, nor any evidence from which it can be inferred'.
    The admissions of a defendant, that he is indebted to the plaintiff on promissory notes, when prqved by competent testimony, are sufficient evidence of the transfer of negotiable paper, without proof of the handwriting of the payer. Whether the evidence -was legally competent for that purpose, or not, is a question for the eourt, and not for the jury; in the absence of all contradictory testimony.
    By the act of the legislature of Georgia, of I5th December, Í8X0, the assignment or endorsement of a promissory note is made sufficient evidence thereof, without the necessity of proving the handwriting of the assignor. The judiciary act of 1789 declares that the laws of the several states; except when the constitution','treaties, or statutes of the United States require otherwise; are to be rules of decision, in the courts of the United States, in trials at common law, where they apply. The Court does not perceive any sufficient reason for construing ihis act of congress so as to exclude from its provisions those statutes of the - several states, which prescribe rules of evidence in civil cases, in trials at common law.
    •The object of the law of congress, was to make the rules of. decision of the courts of the.United States the same with those of thd states; taking care to preserve the rights of the United States, by the exceptions contained in the section of the judiciary act. Justice to the citizens of the United States required this to be done; and the natural import of the words used in the act of congress, includes the laws in relation to evidence, a$ well'as the laws in relation to property.
    The Court refused to allow ten per centum per’ annum, interest, as damages for suing out the writ of error, in this case, on the amount of the judgment in the circuit court, under the 17th rule of the court. The case was not considered as one where.the writ of error was sued out merely for delay.
    ERROR to the circuit court of the United States, for the district of Georgia.
    In the circuit court of the United States; for the district of Georgia, Lowell Holbrook instituted an action.on four promissory notes; one of which was drawn by the plaintiff in error, in favour of Lowell Holbrook, and the three other notes were drawn, in favour of other persons, who had endorsed the same over to Mr. Holbrook. An affidavit of the agent of the plaintiff, stating that the defendant, John M'Niel, was indebted to Lowell Holbrook in the amount of ¿he said notes, was filed with the declaration. Issue beipg joined-in' the suit, the plaintiff to support the action, witnout having proved the handwriting of the drawer of the notes, or of those-who had endorsed three of the notes to him, offered 'the testimony of W. W. Gordon, Esq. the counsel of the plaintiff, to prove “that John M'Niel had repeatedly, and as late as November 1st, 1835,- admitted his indebtedness upon those promissory notes; and,- at the same time, offered to confess a judgment for the amount of principal and interest, upon certain terms, hy which he was to be allowed time for the payment of part. The negotiation continued until November 3d, 1836; and then was only not completed, from the-inability of John M'Niel to pay the cash, which he had in .the -first instance offered.”' The defendant objected to the admission of this evidence, and insisted that the acknowledgment was -only an offer by the defendant to buy.his peace, by a compromise made m the course of a negotiation,-for the settlement, of the claim of Mr. Lowell Holbrook; which said compromise and negotiation having failed, the acknowledgment could not be given in evidence, to sustain the claim of the plaintiff. The defendant also objected to the evidence;.as the plaintiff had declared against the defendant as' epdorser of promissory, notes alleged to' have been made by certain persons to him, he was bound to prove the endorsement of the notes by the said persons; anddhe court could not dispense with the proof of thé endorsemeiits. The court refused to give the instructions, as asked by the defendant; and instructed . the jury, that the evidence offered and- admitted was sufficient to entitle the plaintiff to recover against the defendant..
    The jury having found a verdict .for the plaintiff, according to the instructions of the court, and judgment having been entered thereon; the defendant prosecuted this writ of error.
    The case wás submitted to the Court by.Mr. King:-who also moved the Court to allow damages to the defendant in error, at the rate of ten per centum per annum, according to the 17th rule'of the Court; which allows such damages, .when a writ of error is sued out for delay..
   Mr. Chief Justice Tanev

delivered the opinion of the Court.

This case comes up, upon a writ of error directed to the circuit court for the district of Georgia. ■

An action of Assumpsit .was brought in that court by Lowell Holbrook against John MfNiel, to recover the amount of four promissory nófes made by the -defendant;'one of them payable to Lowell Holbrook, and three’ to other persons, who. had endorsed them to ■the said Holbrook, whó was^hé plaintiff in the court below.

The plaintiff ueclared on the promissory notes; and did not insert in the declaration any of the-usual money couhfs. . The- defendant pleaded thé general issue; and at-the trial of the case, the plaintiff, offered to-prove, by a competent witness,'“that John MNiel had repeatedly, and as late as -the first of November, (the trial took place on-the 11th of that’month) admitted his .indebtedness, upon- these four promissory notes yand at that tibie offered to confess a judgment for the ámount-óf principal and - interest, upon certain teriris, by which' he was to be allowed time for the payment of part. The negotiatióh continued until-the third of -November, and was then only, not Completed from John "M£NieFs inability to. pay the cash, which he had in the first instance offered.” ' The counsel for the defendant objected to the admissibility of this evidence, upon the ground'that it -was merely' an offer’ on ;the.- part of the defendant' to buy- his .peace,-in the' course of a. negotiation for the.settlement of the claim pf the plaintiff, which had failed. The objection was-oyerruled by ;the court,-and the evidence.given to'the jury.' -The defendant exCepted-to this opinion of the court.1

The notes,.(which were endorsed In blank) together with the evidence abpve -. stated,- was the only testimony givép in the cause. The' plaintiff offered no evidence to prove the handwriting of the-drawer or endorsers; and rip evidence was offered by the defendant.

The defendant thereupon-moved the court to instruct the jury: 1st. That the evidence given on-the-part of-the plaintiff, was not sufficie'nt to entitle him to' -recover on the -three notes, on which he,had declared as.endorsee; without proving the endorsements of the payees mentioned in the said notes. 2d. That if the jury believed the ácknówledgriient abovementioned to have been made by the defenda'nt, in the course of a.negotiation with the plaintiff) or his attorney, for a compromise, which had failed; and for the purpose of buying his peace 'by such compromise; that such acknowledgment was. not'.sufficient to entitle the plaintiff to recover on the three notes, on which he sued as endorsee, without proving the endorsement of the payees. A third prayer was also. made,.which is. the same in substance with the-first. - The court refused tp.-give>the in-, structions asked for by the defendant, and-directed-the jury, that the. evidence was sufficient to entitle the plaintiff -to-recovei|: To-these opinions and to the instruction of the court,.the defendant exempted; and the case has been brought here for the revision' of this Court.

We think the circuit court was. right in admitting the evidence above stated. There does not appear to'have been-tany dispute between the parties, as to the aijioupt due on the. notes,;nor ás, to the plaintiff’s right to receive it, The .negotiation as disclosed in the testimony, was altogether concerning the time of - payment, and not in relation to the' amount to be paid; and the defendant, in the course of that negotiation, admitted the debt; and offered to confess judgment for it in the suit then pending, provided tipie. wa$ given to hint -. for the payment of a part. This was the acknowledgment, of, a. fact by the defendant, and- not an offer, to- buy his peace, and we -think the testimony was properly, received;' although the admission was made pending a negotiation to enlarge -the time of payment.., The case does not come within.,the .reason, or the principle which' excludes offers to pay, made by way of compromise upon a disputed.' claim, and to buy peace.

. We concur, also, with the circuit court, in the instructions given to the jury after the testimony was admitted. • The plaintiff was in possession of the notes endorsed in-bla’nk. -The admission of the; defendant of. his liability fóf the amount, and his offer to confess a-judgment, was. an admission of the plaintiff’s right to the'money due on the notes; and, consequently, was an acknowledgment that he was :the maker of thé notes, and that- they had been legally transferred to the plaintiff. There could, therefore, be no necessity for proving the endorsements; because that proof would have established nothing more than what had already been proved by, the admissions of the defendant.. For, he could, not have been indebted to the plaintiff on these notes, unless he was the maker of them, and unless they had also been legally transferred to the plaintiff.

This view of the subject-disposes of the first and third instructions, asked for by the defendant.

As relates to the second' prayer, the court would unquestionably have been bound to give it, if there had been any testimony from which the jury could have inferred that the admission in question was made as an offer .of compromise, and to buy his peace. But we see nothing in the evidence from, which such an inference could ■have been drawn. .There 'does not appear to have been any negotiation concerning the amount of the debt, or the plaintiff’s right to re-r ceive it; and the court is not bound io give an hypothetical direction to the jury; and to leave it to them to find a fact, where no evidence of such fact, is offered, nor any evidence from which, it can be inferred. Such being the case here,- we think the court did not err in refusing this direction.

The same reasoning applies to the direction which the court gave. If- there had been any evidence conducing to prove the fact insisted on by the defendant, the jury were certainly the proper judges of. its sufficiency; and the court could not, without encroaching on the province of the jury, have instructed them on’ that point. But there was no contradictory testimony, nor any question in' relation to the credibility of the. witness.' The facts as stated by him were not controverted; and in-this .State of the evidence, the counsel for the defendant, in his third prayer, moved ■ the court to instruct the jury, that the acknowledgment so proved was not sufficient to entitle.the plaintiff to recover, without proof of the endorsements of the payees. The point thus presented to the circuit court, was upon the legal sufficiency of the evidence; the counsel for the defendant insisting, that notwithstanding the admissions of the party, that he owed the money on the notes, and his offer to confess a judgment to the plaintiff for the amount, yet the law required the plaintiff to go further, and to prove the endorsements of the payees, before he, could entitle himself to recover. In other words, the point was raised, whether the admissions'of a defendant, when proved by. competent testimony, are sufficient evidence of the transfer of negotiable paper, without proof of the handwriting of the payee. It is in answer to this ■prayer, that the court instructed the jury that the evidence was sufficient. The question submitted to the court, was a question of law; scription, to establish a particular fact. And whether it was legally and' turned upon the legal sufficiency of evidence of a certain desufficient for that purpose or not; or whether the law'required higher or different evidence; was.a question for the court, and not .for the jury. The point had, in effect, been-decided' by ¿he opinion of the court oil the defendant’s first prayer; and.was properly and correctly decided.

-There is another ground upon which, we think, that the court Were right in refusing to instruct the jury, that it was incumbent on the plairitiff to prove the endorsement on the notes purporting to have been made by the payees. ■ By an áct of the legislature of Georgia, passed on the 15th of December, 1810, Prince’s Digest of the Laws-of Georgia, p. 144, it is enacted, “that, in all qaSes brought by any endorsee of endorsees, assignee or assignees, - on any bill, bond, or note, before any court of law or equity, in this state,’ the assignment, or endorsement, without regard to the form thereof, shall be. sufficient evidence of the transfer thereof; and the said bond, bill, or note shall be admitted as evidence, without the necessity of proving the handwriting of the assignor or assignors, endorser or endorsers; any law, usage or custom to the contrary notwithstanding.”

In a suit, therefore, in the state courts, there would have been no necessity for proving the handwritings of the endorsers; .and the endorsements themselves would have been prima facie evidence that, the notes in question had been transferred to* the- plaintiff; he being in possession of the notes, and the endorsements of the payers appearing thereon in blank.

The 34th section of the judiciary act, establishing the courts of the United States, (1789, eh. 20,) provides, “ that the laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common, law, in the courts of the United States, in cases where they apply.”

We do not perceive ány sufficient reason for so construing this act of congress as to exclude' from its provisions those statutes of the several states which prescribe rules of evidence, in civil cases, in trials at common law. Indeed, it would be, difficult to- make the laws of the state, in relation to-the rights of property, the rulé of decision in the circuit courts; without associating with them the laws of the same state, prescribing the' rules of evidence by which the rights of property must be decided. How could the courts of the United States decide whether property had been legally transferred, unless thej' resorted to the laws of the state to ascertain by what evidence the transfer must be established ? In some cases, the laws of, the states require written evidence; in others, it dispenses with it, and permits the party to prove his case by parol testimony: and what rule of evidence could the courts of the United States adopt, to decide d question of property, but the rule which the legislature of the state has p'rescribéd? The object of the law of congress was to make the rules of decisions,in. the courts of the United States, the same with those of the states; taking care to preserve the rights of the United States by the exceptions contained in the same section. Justice to the citizens of the s'everal states required this to be done; and the natural import of the words used in the act of congress, includes the laws in relation to evidence; as well as the laws in relation to property. We think they are both embraced in it: and as, by a law of Georgia, the endorsement on these notes was made prima facie evidence’ that they had been so endorsed by the, proper party, we think the circuit court were bound to. pegard this law as a rule of evidence. It-dispensed with the proof which the defendant insisted On; .and the circuit court, on that ground, were right in refusing the prayers, of the defendant, which required proof of. these endorséments. Upon the production .of the notes, the plaintiff was entitled to recovér without the-aid of the parol evidence; which is the subject of all the 'defendants exceptions. For this reason,.independently of the principles.herein before stated, we think the judgment of the circuit court below,, ought to be affirmed.

The defendant in error has moved the Court to allow him ten per cent, damages, under the 17th rule of the court, which provides, that when a writo’f error shall appear to have been sued out merely for’ delay; damages shall be awarded at the "rate of ten per cent, per annum, on the amount of the judgment. We do not consider this case as one of that description: and therefore,aw ard nothing more than the ordinar-y interest' of six per cent.

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 Georgia, and was.argued by counsel; on consideration whereof, it is adjudged and ordered by this Court, that the judgment.of the said circuit court in this cause be, and. the same is hereby affirmed, with costs and damages, at the rate of- six per centum per annum.  