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Rh Not a single quern has been found in a hut, and this indicates that the occupants neither grew nor ground corn extensively. They lived mainly on milk and meat. Numerous rubber-stones have been unearthed that served for smoothing the seams of skin clothing sewn together; and plenty of flint scrapers that turn up show that the skins employed for garments were previously carefully scraped and cleaned. Esquimaux women chew the leather to get it flexible, and then rub it with similar smoothers of stone. 7. Tracklines in abundance are everywhere found, made of stones, but without close investigation it is not possible to determine to what period they belong. 8. Paved roads exist; the main road across the moor has been traced from Wray Barton in Moreton Hampstead, by Berry Pound to Merripit, by Post Bridge, and thence on to Mis Tor. From somewhere near the Powder Mills a branch struck off in the direction of Princetown, aiming probably for Tamerton, but it has been obliterated by the prison inclosures. A raised paved road leaves the camp above Okehampton Station and takes a direction due south, but cannot be traced far. That these ways were not Roman is tolerably certain. The ancient Britons drove chariots with wheels, and where wheeled conveyances were in use, there roads are postulated. 9. The cairns that are abundant, and were of considerable size, have nearly all been ransacked by treasure-seekers. Only such as were too small to

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 king's son Edmund in 1016, and together they ravaged the shires that refused to help them against the Danes. Finding, however, that Canute was threatening York, Uhtred hastened northwards, and was forced to submit to the Danish king and give him hostages. Canute bade him come to him at a place called Wiheal (possibly Wighill, near Tadcaster), and instructed or allowed his enemy Thurbrand to slay him there. As Uhtred was entering into the presence of the king a body of armed men of Canute's retinue emerged from behind a curtain and slew him and forty thegns who accompanied him, and cut off their heads. He was succeeded in his earldom by Canute's brother-in-law Eric, and on Eric's banishment the earldom came to Uhtred's brother, Eadwulf Cutel, who had probably ruled the northern part of it under Eric.

By Ecgfrida, Uhtred had a son named Ealdred (or Aldred), who succeeded his uncle, Eadwulf Cutel, in Bernicia, the northern part of Northumbria, slew his father's murderer, Thurband, and was himself slain by Thurbrand's son Carl; he left five daughters, one of whom, named Elfleda, became the wife of Earl Siward [q. v.] and the mother of Earl Waltheof [q. v.]. By Ethelred's daughter Elgiva, Uhtred had a daughter named Aldgyth or Eadgyth, who married Maldred, and became the mother of Gospatric (or Cospatric), earl of Northumberland [q. v.]. He also had two other sons—Eadwulf, who succeeded his brother Ealdred as earl in Bernicia and was slain by Siward, and Gospatric. His wife, Ecgfrida, married again after he had repudiated her, and had a daughter named Sigrid, who had three husbands, one of them being this last-named Eadwulf, the son of her mother's husband. Ecgfrida was again repudiated, returned to her father, became a nun and died, and was buried at Durham (on these northern marriages see Essays, p. 172).

[De Obsid. Dunelm. ap. Sym. of Durham, i. 215–20, also ii. 197, 383; Will. of Malmesbury's Gesta Regum, ii. cc. 170, 180 (both Rolls Ser.); A.-S. Chron. ann. 1013, 1016; Flor. Wig. (Engl. Hist. Soc.); Freeman's Norm. Conq. i. 358, 394, 416.]  UHTRED, UTRED, or OWTRED (1315?–1396), Benedictine theologian, sometimes called John Utred, was born about 1315 at Boldon, North Durham, whence he is also called Uhtred Boledunus, and erroneously Uhtred Bolton. Apparently about 1332 he entered the Benedictine order, being at Michaelmas 1333 attached to the cell at Boldon belonging to the Benedictine monastery at Durham. In February 1337 he was sent to London, and in March 1340 was one of the scholars regularly sent by the Benedictines of Durham to undergo the regular course of study at Oxford. In 1344 he removed to Stamford, probably because the Benedictines had a cell there, and not owing to the secession thither from Oxford ten years before. In 1347 he was again at Oxford, and probably graduated in arts, having accomplished the requisite seven years' course of study. At Michaelmas 1352, after the further requisite four or five years' study, he was licensed ‘ad opponendum,’ i.e. to dispute with incipient graduates, a license which apparently conferred the degree of B.D. Two years later he was licensed to lecture on the Sentences, and in 1357 on the Bible, thus becoming ‘sacræ theologiæ professor’ or D.D. (Vita Compendiosa apud Add. MS. 6162, f. 31 b; cf., Universities, ii. 452–3). In these capacities he had some notable disputations at Oxford, mostly attacks on the friars (, Greyfriars at Oxford, pp. 243, 253). One John Tryvytlian celebrated these performances in a poem on Uhtred, printed in Hearne's ‘Vita Ricardi II’ (App. p. 357), and again in Wood's ‘History and Antiquities’ (ed. Gutch, i. 491). Bale and other writers have described Uhtred as a supporter of Wyclif, but the only ground for the assertion is that both attacked the friars. Bale also states that the Dominicans at Oxford accused Uhtred of introducing new opinions, and endeavoured to procure his expulsion from the church. In 1367 Uhtred was appointed prior of Finchale Abbey, and in 1368 sub-prior of Durham. He was reappointed prior of Finchale in 1379, 1386, and 1392, and sub-prior of Durham in 1381.

In 1373 Uhtred was sent, with Wyclif and others, by Edward III to Bruges to complain of various proceedings of the pope, such as keeping benefices vacant (, Polychron. viii. 379;, Hist. Angl. i. 316; , Fœdera, Record ed. iii. 1007). In 1374, as proctor for Durham, he attended a great council held at Westminster, under the presidency of the Black Prince, to determine the question of papal tribute. According to the curious account given in the ‘Flores Historiarum,’ Uhtred maintained the temporal suzerainty of the pope, which was unanimously approved; but on the following day an opposite decision was reached. Uhtred retracted his opinion, and answer was returned to the pope that King John's surrender was invalid as lacking the consent of the barons and the realm (Flores Hist. Rolls Ser. iii. 337–9). Uhtred was again

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has no dungeon in her island tomb

So deep that she may hide injustice there;

The cry of innocence, despite her care,—

Despite her roll of drums, her cannon's boom,—

Is heard wherever human hearts have room

For sympathy: a sob upon the air,

Echoed and reëchoed everywhere,

It swells and swells, a prophecy of doom.

Thou latest victim of an ancient hate!

In agony so awfully alone,

The world forgets thee not, nor can forget:

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 Rh Such martyrdom she feels to be her own,

And sees involved in thine her larger fate;

She questions, and thy foes shall answer yet.


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 resident at Oxford at Michaelmas 1383. He died on 24 Jan. 1396, and was buried before the entrance to the choir in the church at Finchale.

Bale and subsequent writers attribute to Uhtred a long list of works. Those of which the existence has been traced are: 1. ‘De Substantialibus Regulæ Monachalis,’ extant in Durham Cathedral Library (, Cat. MSS. Angliæ, iii. 12;, North Durham, p. 360). 2. ‘De Perfectione Vivendi,’ extant in the Durham manuscript. The same manuscript contains some remarkable ‘Meditaciones,’ extracts from which are printed by Raine, who does not, however, think they are by Uhtred. 3. ‘Contra Querelas Fratrum,’ a copy formerly in the abbey library at St. Albans, and now in British Museum Royal MS. 6. D. x, was written about 1390. 4. ‘Meditacio edita ab Uthredo,’ extant in Brasenose College MS. xv. f. 61 seq., in Cambridge Univ. MS. Gg. iv. 11, and also in the Bodleian (, Cat. MSS. in Coll. Aulisque Oxon.;, Cat. MSS. in Univ. Cantabr. iii. 151; , Cat. MSS. i. 142). 5. ‘Numquid licitum sit Monachis secundum B. Benedicti regulam professis carnes edere, exceptis debilibus et infirmis,’ formerly extant in Cotton. MS. Vitellius E. xii. 32 (, Cat. 1696, p. 160), is now destroyed. A translation of Eusebius's ‘History’ which Uhtred had made in 1381 is extant in British Museum Burney MS. 310.

[The principal authority is the remarkably circumstantial but brief Vita Compendiosa Uthredi monachi Dunelmensis, written early in the fifteenth century, probably by John Wessington [q. v.], prior of Durham, and extant in Brit. Mus. Addit. MS. 6162, f. 31 b. See also, besides authorities cited, Bale, De Ill. Scriptt. vi. 53; Pits, p. 528; Tanner's Bibliotheca; Wharton's Anglia Sacra, i. 220; Wood's Hist. et Antiq. ed. Gutch, i. 475, 491; information has also been kindly supplied by Mr. E. Bishop.]  ULECOT, PHILIP (d. 1220), judge, was in 1204–5 constable of Chinon (Patent Rolls, p. 40 b). He seems to have been taken prisoner in France, and he stood so high in the royal favour that on 7 May 1207 King John gave him two hundred marks for his ransom (Close Rolls, p. 82 b). He witnessed charters at Rockingham and Carlisle in July and August 1208 (Charter Rolls, pp. 181 b, 182), and is mentioned by Roger of Wendover (ii. 60) as among John's evil counsellors in 1211. On 11 May 1212 he was given the custody of the lands of Robert de Ros (Patent Rolls, p. 92 b). In 1213 he became forester of Northumberland, received several manors from the king, 12 Feb. 1213 (Charter Rolls, p. 190), and became sheriff of that county and custos of the bishopric of Durham during its vacancy in conjunction with the archdeacon of Durham and Earl Warenne (Patent Rolls, p. 94 b). On 3 Sept. 1212 he and Reiner de Clare seem to have been in charge of Richard, the king's son (ib. p. 104). He afterwards held the sheriffdom alone, and continued to hold it during the first four years of Henry III.

In 1216 Ulecot and Hugh de Balliol were put by John in command of the country between the River Tees and Scotland, and held the castles against the barons' ally, the king of Scots (, pp. 166, 191). The custody of the lands of the bishopric of Durham between Tyne and Tees had, however, been taken from him and given to Robert de Vieuxpont [q. v.] on 15 Aug. 1215 (Close Rolls, p. 225 b). Early in the reign of Henry III Ulecot had a quarrel with Roger Bertram, and was threatened with the seizure of his lands before he would restore Roger's castle of Midford on 4 April 1213 (Close Rolls, p. 357 b), while on 18 July he was ordered to destroy an adulterine castle he had built at Nafferton to the injury of the lands and castle of Prudhoe, belonging to Richard de Umfraville (ib. p. 379 b). He still held his offices in the north, though Pandulph had no confidence in him (ib. p. 434;, i. 162). In 3 Henry III he was one of the justices itinerant for the three northern counties, and on 16 Sept. 1220 Henry committed Gascony to his custody, in addition to his other commands. He died before 2 Nov. following (Close Rolls, p. 473 b). He married Johanna, sister of the wife of Sewel FitzHenry, and was fined 100l. and a complete horse for doing so.

[Authorities cited in text; Foss's Judges of England.]  ULFCYTEL or ULFKETEL (d. 1016), earl of the East-Angles, probably, as his name suggests, of Danish descent, is perhaps the thegn Ulfcytel who witnesses a charter of 1004 (, Codex Dipl. No. 710); in that year he was earl of the East-Angles, and, Norwich having been taken and burnt by Sweyn [q. v.], king of Denmark, Ulfcytel gathered together the East-Anglian ‘witan’ and made a peace with the invaders. Shortly afterwards the Danes broke the peace and marched against Thetford. On this Ulfcytel sent to men whom he trusted to destroy the ships of the Danes in their absence, but they did not carry out his orders. Then, having gathered such force as he could muster, he met the Danes near Thetford on the day after


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 they had burnt the town. The battle was fierce and the loss heavy on both sides, many of the chief men in the earl's army being slain. The result was indecisive, and it was said that, if the earl had had a larger force, the Danes would not have been able to return to their ships; indeed, as it was, they declared that ‘they had never met with a worse hand-play in England than Ulfcytel brought them.’ When the Danes invaded East-Anglia in 1010, Ulfcytel met them with the force of his earldom on 18 May at Ringmere, near Ipswich, where another battle took place. In the thick of the fight a thegn of Danish race named Thurcytel in the English army set the example of flight, and was followed by the army generally, though the men of Cambridgeshire stood their ground for some while longer. The Danes were completely victorious, and again slew many of the chief men of the earldom. After the battle they harried East-Anglia for three weeks. The earl was slain fighting against the Danes in the battle of Assandun in 1016 [see under or, called ‘’].

ULLATHORNE, WILLIAM BERNARD (1806–1889), Roman catholic bishop of Birmingham, afterwards archbishop of Cabasa, was born at Pocklington in the East Riding of Yorkshire on 7 May 1806. His father, who was a grocer, draper, and spirit merchant, belonged to the ancient catholic family of the Ullathornes, and his mother, a convert, was a distant relative of Sir John Franklin, the arctic navigator. When William was between nine and ten years old the family removed from Pocklington to Scarborough, and at the age of fifteen he became a sailor, and made several voyages to the Baltic and the Mediterranean. Touching at Memel on one of these voyages, he landed on a Sunday in order to hear mass, and was powerfully affected by the solemnity of the celebration and the devotion of the people. Soon after his return home he was placed, in February 1823, at the Benedictine College of St. Gregory, Downside, near Bath.

On 12 March 1824 he received the Benedictine habit, taking the name of Bernard, and on 5 April 1825 he made his profession as a religious. He next studied theology under Dr. Brown, afterwards bishop of Newport and Menevia, and in October 1828 he was made subdeacon. In September 1830 he was raised to the diaconate at Prior Park by Bishop [q. v.]. He was ordained priest at Ushaw College on 24 Sept. 1831.

In 1832 he accepted the invitation of Bishop Morris to assist him in the Australasian mission as vicar-general, and at the same time received from government the appointment of his majesty's catholic chaplain in New South Wales. Embarking on 12 Sept. 1832 at London, he reached Sydney on 19 Feb. 1833. A graphic account of his missionary labours in Australia is given in his ‘Autobiography,’ including a most interesting description of his intercourse with the convicts, who then formed a large portion of the Australian population. It was mainly through his representations to the Holy See as to the necessity of a bishop to carry on the work of the Roman church in Australia that the hierarchy was established by Gregory XVI, and Dr. [q. v.] was appointed to the newly erected see of Sydney. In the course of this first visit to Australia, Ullathorne displayed his skill in controversy by publishing ‘A Few Words to the Rev. Henry Fulton and his Readers,’ Sydney, 1833; ‘Observations on the Use and Abuse of the Sacred Scriptures, as exhibited in the Discipline and Practice of the Protestant and Catholic Communions,’ Sydney, 1834, reprinted in London 1838; a ‘Sermon against Drunkenness,’ Sydney, 1834, often reprinted; and ‘A Reply to Judge Burton, of the Supreme Court of New South Wales, on “The State of Religion in the Colony,”’ Sydney, 1835, reprinted 1840 and 1841.

Returning to England in 1836, he issued a pamphlet on the ‘Catholic Mission in Australasia,’ which passed through five editions. He also lectured on the subject both in England and Ireland, and generous contributions flowed into his hands. He brought out another pamphlet on the ‘Horrors of Transportation’ (Dublin, 1836; reprinted 1837 and 1838) at the request of (1797–1840) [q. v.], under-secretary for Ireland, and it was circulated at the expense of the Irish government. In 1837 he was summoned to Rome at the instance of Cardinal Weld, in order to give an account of the Australasian mission. His report to propaganda was translated into Italian, and published under the title of ‘Relazione sulla Missione o Vicariato Apostolico della Nuova Olanda’ (Rome, 1837). The Roman authorities took a lively interest in the mission, and the pope conferred upon Ullathorne the diploma of doctor of divinity. On coming back to England he was, at the suggestion of


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 Ullathorne Dr. Lingard, examined before Sir William Molesworth's select committee of the House of Commons on ‘Transportation’ (8 and 12 Feb. 1838). On his return to Sydney shortly afterwards he found himself the object of universal indignation in the colony because he had made known throughout Europe the state of moral degradation prevailing in the colony, and had exposed the evils of the assignment system.

In 1840 he returned to England, owing to ill-health, and in 1841 he was entrusted with the charge of the mission at Coventry. He had already declined the bishopric of Hobart Town; he now received news that he had been nominated to the see of Adelaide. This he also refused, as he did subsequently the offer of the bishopric of Perth in Western Australia.

On 16 Oct. 1845 Ullathorne was appointed by Gregory XVI to the western vicariate of England. He was accordingly consecrated at Coventry on 21 June 1846 to the see of Hetalona ‘in partibus, sub archiepiscopo Bostrensi.’ In 1848, at the request of the other English vicars-apostolic, he went to Rome to petition in their name for the restoration of the hierarchy, and to represent the English episcopate in the negotiations. The history of these transactions he afterwards minutely detailed in his ‘History of the Restoration of the Catholic Hierarchy in England’ (London, 1871, 8vo). By brief dated 28 July 1848 he was transferred to the central district, and he was installed in St. Chad's Cathedral, Birmingham, on 30 Aug. (, Episcopal Succession, iii. 333, 336). When the hierarchy was restored by Pius IX, Ullathorne was translated from the titular bishopric of Hetalona to the newly erected see of Birmingham by brief dated 29 Sept. 1850.

His tenure of the see extended over thirty-eight years, and during that time the cause of catholicism made great progress in the diocese of Birmingham. He was ever ready to promote both by writing and speech what he deemed to be the interests of his church. His speeches at public meetings in the town-hall, Birmingham, in opposition to the popular tumult against the ‘papal aggression,’ had a marked effect in abating the agitation. Among his writings on questions of the day may be mentioned his pamphlets on popular education; on the proposal to submit convents to government inspection; letters on ‘Certain Methods of the “Rambler” and the “Home and Foreign Review”’ (1862–1863); ‘Letter on the Association for the Promotion of the Unity of Christendom’ (1864); ‘Lectures on the Conventual Life’ (1868); and a ‘Pastoral Letter on Fenianism’ (1869).

Ullathorne was a prominent figure at the Vatican council of 1870, and he played an important part in the proceedings of that body. On his return to England he published a letter on ‘The Council and Papal Infallibility’ (two editions, 1870). This was followed by ‘The Döllingerites, Mr. Gladstone, and Apostates from the Faith’ (1874); ‘Mr. Gladstone's Expostulation Unravelled’ (three editions, 1875), a reply to the famous pamphlet on ‘The Vatican Decrees;’ and ‘The Prussian Persecution’ (1876).

While he was at Birmingham the relations between him and Cardinal Newman were uniformly characterised by mutual admiration and affection. In the ‘Apologia’ Newman remarked that if he wished to point to a straightforward Englishman he should instance the bishop of Birmingham; and Ullathorne, writing to the cardinal in 1882, speaks of the ‘forty years of friendship which have enriched my life.’ In 1879 Dr. Ilsley was consecrated bishop of Fesse, in order to act as Ullathorne's auxiliary. In 1888 Ullathorne was allowed to retire from his diocese, and he withdrew to end his days at Oscott College, receiving from Leo XIII the honorary title of archbishop of Cabasa. He died in the college on 21 March 1889, and was buried at St. Dominic's Priory, Stone, Staffordshire. There are several portraits. One of them, drawn from life, by Edwin Cocking, has been lithographed (, Characteristics, p. xxxvi). Another was painted by John Pettie, R.A. (Cat. Victorian Exhib. No. 228).

Ullathorne's publications of a permanent character comprise: 1. ‘The Holy Mountain of La Salette,’ 1854; 6th edit. 1861. 2. ‘The Immaculate Conception of the Mother of God: an Exposition,’ 1855; translated into French and German. 3. ‘A Pilgrimage to the Proto-Monastery of Subiaco and the Holy Grotto of St. Benedict,’ 1856. 4. ‘Ecclesiastical Discourses delivered on special occasions,’ 1876. 5. ‘Church Music,’ 1880. 6. ‘The Endowments of Man considered in their relations with his Final End,’ 1880; reprinted 1882 and 1888. 7. ‘The Groundwork of the Christian Virtues,’ 1882; 2nd edit. 1888. 8. ‘Christian Patience, the Strength and Discipline of the Soul,’ 1886; 2nd edit. 1888; dedicated to Cardinal Newman. 9. ‘Memoir of Bishop Willson, first Bishop of Hobart, Tasmania,’ 1887.

‘The Autobiography of Archbishop Ullathorne, with Selections from his Letters,’ appeared at London in 2 vols. [1891–2], 8vo. There is also a volume of ‘Characteristics


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 from the Writings of Archbishop Ullathorne … arranged by the Rev. Michael F. Glancey,’ London, 1889, 8vo.

ULLERSTON, RICHARD (d. 1423), theological writer was born in the Duchy of Lancaster. He was taught by his relative, [q. v.], and on 19 Dec. 1383 he took orders. He took the degree of doctor of theology at Oxford. In 1407–8 he was chancellor of Oxford, and on 1 June 1407 he was made rector of Beford, Yorkshire. Anthony à Wood calls him a fellow of Queen's and canon of York (cf., Novum Repertorium, cixiv, 321).

He wrote in 1408 at the request of [q. v.], bishop of Salisbury, sixteen ‘Petitiones pro Ecclesiæ Militantis Reformatione,’ which have been printed in Von der Hardt's ‘Concilium Constantiense’ (i. 1126). In 1409 he wrote a work on the creed which was reissued with commentaries by [q. v.] in 1463. His commentary on the Psalms, written in 1415, was dedicated to or Chicheley [q. v.]; it is extant among Lord Mostyn's manuscripts (Hist. MSS. Comm. 4th Rep. App. p. 349). His ‘De Officio Militari,’ written at Courtenay's request to Henry, prince of Wales, is in the library of Corpus Christi College, Cambridge (clxxvii. 26). In 1415 he wrote ‘Expositions on the Song of Songs,’ based on Nicholas de Lyra, of which there is a copy in the Magdalen MS. cxv. A copy of his ‘Defensorium Dotationis Ecclesiasticæ’ (per Constantinum) is in Exeter Cathedral library (No. 46, according to Oudin); it was seen there by Leland (Comm. iii. 151).

ULSTER,. [See, d. 1219?;, d. 1242?;, called Earl of Ulster, d. 1271;, second earl of the Burgh family, 1259?-1326; , third earl, 1312-1332; , 1338-1368; , 1374-1398; , 1391-1425.]

ULTAN (d. 656), Irish saint, called of Ardbrecain to distinguish him from eighteen other saints of the same name in the Irish calendar, was the tribal bishop of his clan, the Dal Conchubhair, whose country lay round Ardbrecain in Meath. As his episcopal jurisdiction in later times became part of that of Meath, he is considered an ecclesiastical predecessor of the bishops of that diocese. The mother of St. Brigit [q. v.], who was Broicsech of the Dal Conchubhair, was his kinswoman. In the ‘Tripartite Life of St. Patrick’ Ultan is said to have made collections for the ‘life’ of St. Patrick, and Tirechan in the ‘Book of Armagh’ is made to say that Ultan told him, as an eye-witness, of Patrick's life. This error has led to the statement that Ultan was aged 189 when he died in 656. He is mentioned in later writings as a biographer of Brigit, and the Irish hymn (Liber Hymnorum, i. 110), ‘Brigit be bith-maith’—‘Brigit, woman ever good’—is attributed to him, as is the Latin hymn (ib. i. 14), ‘Christus in nostra insola quæ vocatur Hibernia,’ but in each case other authors are possible. Besides his literary occupations, Ultan is always mentioned as feeding and teaching orphans, and as addicted, like St. Erc of Slane, to bathing in cold water. His well at Killinkere in Cavan, near the borders of Meath, was long a place of pilgrimage; 4 Sept. is celebrated as the day of his death. A hymn in his honour is printed by Dümmler in his ‘Poetæ Latini Ævi Carolini.’

UMFRAVILLE, GILBERT, (1244?–1307), was the son of Gilbert de Umfraville and Matilda, countess of Angus. The Umfravilles, a Norman house whose name is derived from Amfreville, between Brionne and Louviers in Normandy, had possessed since the Conquest the liberty of Redesdale in Northumberland (cf. Red Book of the Exchequer, ed. Hall, p. 563), and since Henry I's time the castle of Prudhoe, south of the Tyne, in the same county (ib. p. 563;, Baronia Anglica, p. 244). The elder Gilbert is described by Matthew Paris as a ‘præclarus baro, partium borealium custos et flos singularis’ (Hist. Major, iv. 415). Matilda, his wife, was daughter and heiress of Malcolm, earl of Angus, the last male representative of the old Celtic earldom of Angus, a dignity that had become feudalised


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Umfraville like the other Scottish earldoms (, Celtic Scotland, iii. 289–90). Malcolm's possessions and earldom passed to Matilda during the lifetime of her first husband, John Comyn, who was styled Earl of Angus. Comyn died in 1242, and in 1243 Matilda married the elder Umfraville, who died in April 1245.

Gilbert the younger was therefore born about 1244. The wardship of the young heir was entrusted by Henry III to Simon de Montfort, earl of Leicester (, Hist. Major, iv. 415). Simon is said to have paid a thousand marks for it, and to have made no scruple in utilising its revenues for his own purposes (ib. v. 209–10). Umfraville's relation to the Earl of Leicester accounts for his taking the popular side during the barons' wars, but he did not come of age until towards their conclusion, and then his policy changed. Before Evesham he was fighting with John de Baliol's northern army against the barons. In a charter dated 1267 he is styled ‘Earl of Angus, and not before,’ adds Dugdale, ‘that I have seen’ (Baronage, i. 505). In writs, especially in summonses to the host, from 1277 onwards he is generally called Earl of Angus (Parl. Writs. i. 876–7), and he was summoned to the Shrewsbury parliament of 1283 by that title. The peaceful relations between England and Scotland before 1290 made it easy for Umfraville to enter into effective possession of the Angus dignity and estates, and he appears as actual possessor of Dundee, Forfar, and other chief places in Angus.

In March 1290 Angus was at the Scottish parliament of Brigham, which agreed to ratify the treaty of Salisbury for the marriage of the Maid of Norway with Edward, the king's son (Hist. Doc. Scotl. i. 129). In May 1291 he was at the council of magnates at Norham (Annales Regni Scotiæ in, p. 253), where, though he accepted Edward's arbitration and overlordship, he scrupled to surrender the Angus castles of Dundee and Forfar into the English king's hands. However, on 10 June Edward and the chief competitors pledged themselves to indemnify him for their surrender (Fœdera, i. 756), and on 13 June Umfraville did homage to Edward as king of Scots. He was soon made governor of the surrendered castles and of all Angus. Next year (1292) Angus was at Berwick, and accepted the sentence that made John Baliol king of Scots (Annales Regni Scotiæ, pp. 263, 358). In 1293 he witnessed Balliol's agreement with England as to his hereditary English lands (Rot. Parl. i. 115 b). In 1294 he was sent to Gascony against the French, and in 1295 and 1296 was summoned to parliament as simple ‘Gilbert of Umfraville.’ When John Balliol broke with Edward, Angus adhered to the English side. He attended Edward during his victorious tour through Scotland in the summer of 1296, being at Montrose on 10 July, and in August at Berwick, attending a great council (Hist. Doc. Scotl. ii. 62, 65). There, on 22 Aug., his son, Gilbert de Umfraville, laid violent hands upon the king's servant, Hugh de Lowther, and was saved from the king's wrath only by Angus and other magnates acting as his manucaptors, and by giving full satisfaction to the injured Hugh (ib. ii. 81).

On 26 Jan. 1297 Umfraville was for the first time since 1283 summoned to parliament as Earl of Angus, a title given to him, his son, and grandson in all subsequent writs. It has been disputed in later times whether these summonses involved the creation of a new English earldom of Angus. That opinion is maintained by F. Townsend, Windsor herald, in ‘Collectanea Topographica et Genealogica,’ vii. 383; but the preponderance of opinion is rather towards the doctrine that, though allowed by courtesy the title of earl, the Umfravilles were really summoned as barons (Lords' Reports on the Dignity of a Peer, 1st Rep. p. 432, 3rd Rep. pp. 113–14;, Historic Peerage, ed. Courthope, pp. 24–5; , Complete Peerage, i. 92–3, which quotes some remarks of Mr. J. H. Round to the same effect.

Angus continued to support Edward in Scotland. In 1297 he was ordered to go himself or send his son with at least three hundred infantry to the army of invasion (Hist. Doc. Scotl. ii. 180), and on 1 Nov. received the king's thanks for his services (ib. ii. 241). In 1298 he served personally through the Falkirk campaign, attending the Whitsuntide parliament at York, and receiving on 28 May letters of protection till Christmas (, Scotland in 1298, pp. 30, 31, 96). On 21 July he was one of the two earls who announced to Edward the position of the Scots army in Selkirk forest, and thus enabled the king to make the dispositions which insured his victory (, ii. 177). In April 1299 he received letters of protection before a new official visit to Scotland (Cal. Pat. Rolls, 1292–1301, p. 402); but in July he was ordered to join a commission that met at York to deliberate as to the garrisoning of the Scottish fortresses (Cal. Doc. Scotl. ii. 379). The statements of the fifteenth-century chronicler John Hardyng, that he took Wallace prisoner, defeated Bruce in battle, and was regent of Scotland north of the Forth (Chron. pp. 301, 303), are the fictions of an over-loyal servitor


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 of the house of Umfraville. He received his last summons to the Carlisle parliament of August 1307 (Rot. Parl. i. 115 b), and died the same year. He was buried with his wife in Hexham Priory, where their effigies can still be seen (figured in Hist. of Northumberland, ed. A. B. Hinds, III. i. 142). Angus's arms are given in the Falkirk roll of arms as gules, crusilly or, with a cinquefoil or (, pp. 134–5).

He was commemorated as a benefactor to the Cistercians of Newminster, though he only seems to have sold them a confirmation or extension of his predecessor's grants to that house (Monasticon, v. 400). He also made small gifts to Hexham Priory (Hist. of Northumberland, III. i. 140). His chief pious work was the assignment of some land in Prudhoe for the maintenance of a chaplain to celebrate divine service in St. Mary's Chapel within Prudhoe Castle, for which he had license on 13 April 1301 (Cal. Pat. Rolls, 1292–1301, p. 588).

Angus married Elizabeth, the third daughter of Alexander Comyn, second earl of Buchan [q. v.], and of his wife, Elizabeth de Quincy (, Cronykel of Scotland, bk. viii. lines 1141–8; Calendarium Genealogicum, pp. 650–1). This lady survived her husband, but died before November 1328 (Cal. Pat. Rolls, 1327–30, p. 330). Their eldest son, Gilbert, the Berwick delinquent, who took some part in the Scots wars, and married Margaret, daughter of Thomas de Clare, died in 1303 without issue. Robert de Umfraville, the eldest surviving son, is noticed below. A third son, Thomas, was in 1295 a scholar dwelling at Oxford (Cal. Doc. Scotl. ii. 5). In 1306 his father assigned him 20l. a year from his Redesdale estates. Thomas was then described as the king's yeoman (Cal. Pat. Rolls, 1301–7, p. 414).

(1277–1325), was more than thirty years old at his father's death. He adhered to Edward II both against Scots and barons, and was regularly summoned to the English parliaments as Earl of Angus. He fought at Bannockburn, and was taken prisoner after the battle by Robert Bruce, but soon released. Though formerly in opposition to the Despensers, he sat in judgment on Thomas of Lancaster. Bruce deprived him of his Scottish estates and title, and before 1329 the real earldom had been vested in the house of Stewart, from whom it passed in 1389 to a bastard branch of the Douglases [see, first (1380?–1403)]. Robert married twice. His first wife was Lucy, sister and heiress of William of Kyme, whose considerable estates in Yorkshire and Lincolnshire, including the castle of Kyme, passed thus to the Umfravilles. By her he had a son Gilbert (see below) and a daughter Elizabeth. By his second wife, Eleanor, he had two sons, Robert and Thomas (see below).

(1310–1381), the son of Earl Robert and Lucy of Kyme, was summoned, like his father, to parliament as Earl of Angus. He made strenuous but unsuccessful attempts to win back his inheritance, and was prominent among the disinherited who followed Edward Balliol in his attempt on the Scots crown, fighting in the battles of Dupplin Moor, Halidon Hill, and Neville's Cross. He married Matilda de Lucy, who ultimately brought him the honour of Cockermouth and a share of Lucy estates in Cumberland, and who after his death became the second wife of Henry Percy, first earl of Northumberland [q. v.]. There was no surviving issue to the marriage, so that his heir by law was his niece Eleanor, wife of Sir Henry Talboys (d. 1370), and daughter and heiress of Earl Gilbert's only sister of the full blood, Elizabeth, and her husband, Sir Gilbert Barradon. The great mass of the Umfraville estates now passed to this lady. However, in 1378 Earl Gilbert had created a special entail which settled Redesdale, with Harbottle and Otterbourne, on his brothers of the half blood and their heirs male (Cal. Patent Rolls, 1377–81, p. 134). Of these, the elder Robert de Umfraville died before his half-brother the earl, so that his half-brother (d. 1386) now inherited Redesdale under the entail. This Thomas was never summoned to parliament, either as earl or baron, a fact which his poor and scanty estates will sufficiently explain. It is thought, however, that he acquired the Kyme property (Notes and Queries, 2nd ser. xi. 330–31), though how this happened it is not easy to see. He married Joan, daughter of Adam de Rodom, and had by her two sons. The elder son, Sir Thomas de Umfraville (1362–1391), who actually sat in the commons in 1388 as member for Northumberland, was the father of Gilbert de Umfraville (1390–1421) [q. v.], ‘Earl of Kyme.’ The younger son, Sir Robert de Umfraville (d. 1436), was knight of the Garter [see under ,(1390–1421)].

[Calendars of Patent Rolls; Rymer's Fœdera; Rotuli Hundredorum, Abbreviatio Placitorum; Historical Documents relating to Scotland; Cal. of Documents, Scotland; Rolls of Parl. vol. i.; Hemingburgh (Engl. Hist. Soc.); Rishanger (Rolls Ser.); Cartulary of Newminster (Surtees Soc.); Gough's Scotland in 1298; G. E. C[okayne]'s


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Manton Praed writes in his 'Chaunt of the Brazen Head:'— Still brokers swear the shares will rise, Still Cockneys boast of Manton's gun.

He took out several patents between 1792 and 1825 for an improved hammer and breeching; a spring to prevent the rattling of the trigger; cartridges; a perforated hammer to allow air to escape when the charge is being rammed down; the ' elevated rib, by which the barrels of double guns are connected together; the 'gravitating stop' to prevent accidental discharge, and the 'musical sear,' by which a musical sound was produced on cocking the piece. According to Daniel (Rural Sports, iii. 440), Manton applied for a patent in 1790 for a machine for rifling cannon, and for an improved shot with a base of soft wood to take into the grooving. He was offered a sum of 600l. for these inventions, which he declined. The patent was refused, in consequence of the interposition of the board or ordnance, although the king's warrant for the sealing of the patent had been issued. In his best guns he introduced platinum touch-holes for preventing corrosion, and his barrels were proved by hydraulic pressure. He used to say that none of his guns were ever known to burst. His inventions unconnected with gunmaking comprised a method of enclosing clocks in exhausted cases; air-tight sliding tubes for telescopes; and a tool for boring holes in horses' feet, so that shoes might be attached by screws instead of by nails. Hawker claims for Manton the introduction of the copper nercussion-cap, but this is hardly borne out by the evidence. He unquestionably had something to do with the introduction of the percussion system, as is proved by his patents of 1818 and 1825 for priming tubes, but these inventions fall far short of the simplicity of the copper cap.

Notwithstanding Manton's great reputation and the high prices he received for his guns he did not succeed in business, and in January 1826 he became bankrupt (London Gazette, p. 194). His certificate was eventually allowed, 20 July, but he never seems to have recovered himself. At the time of his bankruptcy he was carrying on business at 11 Hanover Square, but the next year he was in the New Road, then in Burwooi Place, and subsequently in Holies Street. He died at Maida Hill, 29 June 1835, aged 69, and was buried in Kensal Green cemetery, his epitaph being from the pen of Colonel Hawker, who prints it in his 'Instructions,' Manton's business was carried on by his sons at 6 Holies Street until 1840, when it was acquired by Messrs. Charles and Henry Egg, also a name of repute in the gun trade. Manton married, on 17 Jan. 1792, at St. George's, Hanover Square, Marianne Aitkens, and the baptism of several of their children is recorded at that church.

His brother, (d. 1834), was also a gunmaker, with a reputation little inferior to that of Joseph. His shop was at No. 6 Dover Street, Piccadilly, where he carried on business down to the time of his death. He took out four patents, but none were of much importance. The business was continued by nis sons for some years afterwards.

The patent indexes also contain the names of George Henry Manton (son of John Manton) and John Augustus Manton, both of whom were gunsmiths. Charles Manton, brother to John Augustus, was appointed master furbisher at the Tower about 1829. Some of his inventions are described in a volume lettered 'Percussion Arm Papers, 1836 to 1847,' preserved among the ordnance papers at the Public Record Office. The same volume contains reports of trials of several inventions by the Mantons.

 MANTON, THOMAS, D.D. (1620–1677), presbyterian divine, baptised at Lydeard St. Lawrence, Somerset, 31 March 1620, was son of Thomas Manton, probably curate of that place at the time. He was educated at the free school, Tiverton, and was an 'apt scholar, ready at fourteen for the university.' On 11 March 1635 he entered Wadham College, Oxford, and applied himself to divinity; he graduated B.A. from Hart Hall 15 June 1639, and was ordained by Bishop Hall of Exeter at the age of twenty. This premature step he afterwards speaks of (Exposition of James) as a 'rash intrusion,' Wood conceives that he was not ordained until the beginning of 1660, by Bishop Galloway at Westminster, which is unlinely. Hill of Rotterdam says that he only took deacon's orders from bishop Hall, and that he never would submit to any other ordination (Athenæ Oxon. iii. 1135 «.) Manton preached his first sermon at Sowton, near Exeter. He was in that city during the siege by the royalists, and upon its surrender (4 Sept. 1643) went to Lyme. Soon afterwards he was chosen lecturer at Cullompton, Devonshire. About the end of 1644, or early in 1645, he was appointed by Colonel Alexander Popham, M.P., and lessee of the manor, to the living of Stoke Newington, on the sequestration of William Heath. Manton soon became ex-


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Nazi War Crimes Disclosure Act

 * Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Nazi War Crimes Disclosure Act”.

SEC. 2. ESTABLISHMENT OF NAZI WAR CRIMINAL RECORDS INTERAGENCY WORKING GROUP.

(a) Definitions.—In this section the term—

(1) “agency” has the meaning given such term under section 551 of title 5, United States Code;

(2) “Interagency Group” means the Nazi War Criminal Records Interagency Working Group established under subsection (b);

(3) “Nazi war criminal records” has the meaning given such term under section 3 of this Act; and

(4) “record” means a Nazi war criminal record.

(b) Establishment of Interagency Group.—

(1) In general.—Not later than 60 days after the date of enactment of this Act, the President shall establish the Nazi War Criminal Records Interagency Working Group, which shall remain in existence for 3 years after the date the Interagency Group is established.

(2) Membership.—The President shall appoint to the Interagency Group individuals whom the President determines will most completely and effectively carry out the functions of the Interagency Group within the time limitations provided in this section, including the Director of the Holocaust Museum, the Historian of the Department of State, the Archivist of the United States, the head of any other agency the President considers appropriate, and no more than 3 other persons. The head of an agency appointed by the President may designate an appropriate officer to serve on the Interagency Group in lieu of the head of such agency.

(3) Initial meeting.—Not later than 90 days after the date of enactment of this Act, the Interagency Group shall hold an initial meeting and begin the functions required under this section.

(c) Functions.—Not later than 1 year after the date of enactment of this Act, the Interagency Group shall, to the greatest extent possible consistent with section 3 of this Act—

(1) locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration, all classified Nazi war criminal records of the United States;

(2) coordinate with agencies and take such actions as necessary to expedite the release of such records to the public; and

(3) submit a report to Congress, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight of the House of Representatives, describing all such records, the disposition of such records, and the activities of the Interagency Group and agencies under this section.

(d) Funding.—There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.

SEC. 3. REQUIREMENT OF DISCLOSURE OF RECORDS REGARDING PERSONS WHO COMMITTED NAZI WAR CRIMES.

(a) Nazi War Criminal Records.—For purposes of this Act, the term “Nazi war criminal records” means classified records or portions of records that—

(1) pertain to any person with respect to whom the United States Government, in its sole discretion, has grounds to believe ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion, during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with—

(A) the Nazi government of Germany;

(B) any government in any area occupied by the military forces of the Nazi government of Germany;

(C) any government established with the assistance or cooperation of the Nazi government of Germany; or

(D) any government which was an ally of the Nazi government of Germany; or

(2) pertain to any transaction as to which the United States Government, in its sole discretion, has grounds to believe—

(A) involved assets taken from persecuted persons during the period beginning on March 23, 1933, and ending on May 8, 1945, by, under the direction of, on behalf of, or under authority granted by the Nazi government of Germany or any nation then allied with that government; and

(B) such transaction was completed without the assent of the owners of those assets or their heirs or assigns or other legitimate representatives.

(b) Release of Records.—

(1) In general.—Subject to paragraphs (2), (3), and (4), the Nazi War Criminal Records Interagency Working Group shall release in their entirety Nazi war criminal records that are described in subsection (a).

(2) Exception for privacy, etc.—An agency head may exempt from release under paragraph (1) specific information, that would—

(A) constitute a clearly unwarranted invasion of personal privacy;

(B) reveal the identity of a confidential human source, or reveal information about the application of an intelligence source or method, or reveal the identity of a human intelligence source when the unauthorized disclosure of that source would clearly and demonstrably damage the national security interests of the United States;

(C) reveal information that would assist in the development or use of weapons of mass destruction;

(D) reveal information that would impair United States cryptologic systems or activities;

(E) reveal information that would impair the application of state-of-the-art technology within a United States weapon system;

(F) reveal actual United States military war plans that remain in effect;

(G) reveal information that would seriously and demonstrably impair relations between the United States and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the United States;

(H) reveal information that would clearly and demonstrably impair the current ability of United States Government officials to protect the President, Vice President, and other officials for whom protection services, in the interest of national security, are authorized;

(I) reveal information that would seriously and demonstrably impair current national security emergency preparedness plans; or

(J) violate a treaty or international agreement.

(3) Application of exemptions.—

(A) In general.—In applying the exemptions listed in subparagraphs (B) through (J) of paragraph (2), there shall be a presumption that the public interest in the release of Nazi war criminal records will be served by disclosure and release of the records. Assertion of such exemption may only be made when the agency head determines that disclosure and release would be harmful to a specific interest identified in the exemption. An agency head who makes such a determination shall promptly report it to the committees of Congress with appropriate jurisdiction, including the Committee on the Judiciary of the Senate and the Committee on Government Reform and Oversight of the House of Representatives. The exemptions set forth in paragraph (2) shall constitute the only authority pursuant to which an agency head may exempt records otherwise subject to release under paragraph (1).

(B) Application of title 5.—A determination by an agency head to apply an exemption listed in subparagraphs (B) through (I) of paragraph (2) shall be subject to the same standard of review that applies in the case of records withheld under section 552(b)(1) of title 5, United States Code.

(4) Limitation on application.—This subsection shall not apply to records—

(A) related to or supporting any active or inactive investigation, inquiry, or prosecution by the Office of Special Investigations of the Department of Justice; or

(B) solely in the possession, custody, or control of that office.

(c) Inapplicability of National Security Act of 1947 Exemption.—Section 701(a) of the National Security Act of 1947 (50 U.S.C. 431) shall not apply to any operational file, or any portion of any operational file, that constitutes a Nazi war criminal record under section 3 of this Act.

SEC. 4. EXPEDITED PROCESSING OF FOIA REQUESTS FOR NAZI WAR CRIMINAL RECORDS.

(a) Expedited Processing.—For purposes of expedited processing under section 552(a)(6)(E) of title 5, United States Code, any requester of a Nazi war criminal record shall be deemed to have a compelling need for such record.

(b) Requester.—For purposes of this section, the term “requester” means any person who was persecuted in the manner described under section 3(a)(1) of this Act who requests a Nazi war criminal record.

SEC. 5. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect on the date that is 90 days after the date of enactment of this Act.

Approved October 8, 1998.

Legislative History

 * CONGRESSIONAL RECORD, Vol. 144 (1998):
 * June 19, considered and passed Senate.
 * Aug. 6, considered and passed House.
 * Aug. 6, considered and passed House.

title: Nazi War Crimes Disclosure Act


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  C[okayne]'s Complete Peerage, i. 91–3; Nicolas's Hist. Peerage, ed. Courthope, pp. 24–5, 483–4; Lords' Reports on the Dignity of a Peer; Dugdale's Baronage, i. 505–6; Jervise and Gammack's Memorials of Angus and the Mearns [1885]; Hodgson's Northumberland, vol. i. pt. ii. pp. 1–48.]  UMFRAVILLE, GILBERT (1390–1421), popularly styled the ‘Earl of Kyme,’ was the son of Sir Thomas de Umfraville (1362–1391) [see under ]. He was born about the end of July 1390, and was only twenty-eight weeks old when his father's death on 12 Feb. 1391 put him in possession of Harbottle and Redesdale, and such of the Umfraville estates as were included in the entail of 1378. He was a royal ward (, p. 365), and Ralph Neville (afterwards first Earl of Westmorland) [q. v.] received from Richard II the governorship of Harbottle Castle during his minority. The chief care for the youth devolved, however, upon his uncle, Robert Umfraville, whose martial exploits against the Scots did much to restore the waning fortunes of the house of Umfraville. After the Lancastrian revolution, to which Robert Umfraville early adhered, Henry Percy, called Hotspur, became guardian of young Gilbert's lands. The Umfravilles and the Percys were closely related, the Earl of Northumberland's second wife being the widow of the Earl Gilbert of Angus who died in 1381, who was Robert's uncle of the half-blood. Prudhoe Castle, an old Umfraville property, was already in Northumberland's hands. In 1400 Robert Umfraville was actually in command at Harbottle (Ord. Privy Council, i. 125), where on 29 Sept. he signally routed a Scottish force. In 1403 the wardship of the young heir was transferred, after the Percys' fall, to George Dunbar, earl of March (Fœdera, viii. 323); while in 1405 Warkworth was transferred from the rebel house to Robert Umfraville, who in 1408 became knight of the Garter (, Memorials of the Garter, p. clvii). Trained from infancy in the rude school of border warfare, Gilbert entered early on his career of arms. About 1409 he distinguished himself in a tournament at Arras (, p. 365), and on 10 Jan. 1410 he had livery of his lands and was soon afterwards knighted. He now took an active share in his uncle's plundering forays against the Scots (, p. 367), though apparently not participating in Robert's destruction of Scottish shipping in the Forth early in 1411. In the autumn of 1411 Gilbert accompanied his uncle on the expedition sent under Thomas Fitzalan, earl of Arundel (1381–1415) [q. v.], to help Philip of Burgundy against the Armagnacs. Hardyng, the rhyming chronicler, who after 1403 transferred his services from the Percys to Robert Umfraville, is careful in chronicling the exploits of his lord and lord's nephew, giving them perhaps a larger share of the glory of the expedition than is allowed by more sober historians. Both took part in the capture of Saint-Cloud on 8 Nov., and, according to Hardyng, gave voice to the English protest against the massacre and torture of the prisoners (p. 368; cf., however, Henry IV, iv. 62–3). Hardyng also says that after the battle of Saint-Cloud Gilbert ‘proclaimed was Earl of Kyme’ (p. 367). This certainly does not mean that he was formally created an English earl. Neither he nor his uncle after him received a summons, even as a baron, to the House of Lords. The title may have been simply a mere popular recognition of his descent from earls, though he was not famous enough as a soldier to extort any special popular acclamation. It is not quite impossible, as Sir James Ramsay suggests (Lancaster and York, i. 131), that he received a grant of this title from his French allies. Nevertheless all similar titles given in France were, like the Greys' county of Tancarville, derived from French places and represented existing French dignities. Hardyng's authority, moreover, is of little weight, and the French writers, who mainly use the title, are so ignorant as to confuse him with the Earl of Kent. His designation in English official documents is ‘G. de Umfraville miles’ (Testamenta Vetusta, p. 20), or at most ‘dominus de Kyme’ (, Siège de Rouen, p. 86; cf. Gesta Henrici V, p. 280). When asked his name by the Rouennais in 1412, he answered that he was a knight and named Umfraville (, p. 253).

In 1412 Umfraville served at Calais under the Earl of Warwick, and wrought great devastation in the Boulonnais, burning Samer and taking Wissant by assault (, pp. 69–70).

Umfraville took a prominent part in Henry V's French wars, attended the campaign of 1415 at the head of twenty men-at-arms and ninety horse archers, and was, says Hardyng, joined at Harfleur by his uncle, with whom came his esquire, John Hardyng the chronicler (, pp. 573–5). On 14 Aug. Gilbert was sent to reconnoitre Harfleur. On 22 Sept., when the formal surrender was made, he bore King Henry's


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Heirs of De La Lande v. Treasurer of the State of Louisiana

THIS case was brought up from the supreme court of the State of Louisiana, by a writ of error, issued under the 25th section of the judiciary act.

Mr. Dunbar moved the court to allow him to strike out his appearance for the State of Louisiana; and further moved the court to dismiss the case, on the ground that no process had been issued against, or served on, the chief executive magistrate and attorney-general of the State of Louisiana, under the 10th rule of this court.

Mr. Janin opposed the motion.

Mr. Chief Justice TANEY delivered the opinion of the court.


text: Talk:Heirs of De La Lande v. Treasurer of the State of Louisiana


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Heirs of De La Lande v. Treasurer of the State of Louisiana/Opinion of the Court

This case is brought here by writ of error directed to the supreme court of the State of Louisiana, under the 25th section of the act of 1789.

It appears that a proceeding was instituted in the state court by the treasurer of the State to recover certain taxes, alleged to be due from the plaintiffs in error, under a law of Louisiana, which imposes a tax of ten per cent. upon the amount of property inherited by aliens in that State.

The payment of the tax was resisted by the plaintiffs in error; but the case was finally decided against them in the supreme court of Louisiana; and they thereupon brought this writ of error, upon the ground that the authority exercised under the state law was contrary to the constitution and treaties of the United States.

The citation required by the act of 1789, was served on the treasurer, by whom and in whose name, as treasurer, the proceedings had been instituted and conducted, and in whose favor the judgment was entered.

A motion is now made to dismiss this writ of error, upon the ground that the State is the real party to the suit, in the name of the treasurer; and that the citation ought, therefore, to have been served on the chief executive magistrate and attorney-general of the State, according to the provisions of the 10th rule of this court.

But that rule applies to those cases only in which the State is a party on the record. It is intended to point out the officers who shall be held to represent the State when process is issued against it, so far as the service of the process is concerned. The only mode in which a State can be cited to appear, is by serving the process on some one or more of its officers; and those above named in the rule were considered by the court to be its appropriate representatives, in a summons or citation to appear in this court.

But the citation must be directed to the party on the record, and served on him. And when an officer of the State is the party prosecuting the suit for the State, the citation must be served on him. In this case, a notice or citation on the chief executive officer of attorney-general would not be sufficient; for the treasurer is the person who has obtained the judgment, and has the right to receive the money. He is the actor-the plaintiff in the suit. And the chief executive officer and attorney-general do not represent him, and may or may not support his proceedings.

This rule of practice has been uniformly followed in this court. There have been many cases in which an officer of the State, acting in behalf of the State, has been one of the parties. And the 10th rule has never been applied to a case of that kind; and the citation has always been served on the officer, whether conducting the proceedings in his own name, or that of his office. The practice is founded upon the language of the act of 1789, c. 20, which directs the 'adverse party' to be cited, on a writ of error or appeal. The 'adverse party' is the one which appeared in the suit, and who prosecuted or defended it, and in whose favor the judgment was rendered, which the plaintiff in the writ of error seeks to reverse.

The motion to dismiss this writ of error must, therefore, be overruled.

On consideration of the motion made by Mr. Dunbar, to dismiss this cause on a prior day of the present term, to wit, on Friday, the 19th instant, and of the arguments of counsel thereupon, had as well against as in support thereof, it is now here ordered by the court that the said motion be, and the same is, hereby overruled.


text: Talk:Heirs of De La Lande v. Treasurer of the State of Louisiana/Opinion of the Court


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Shields v. Thomas (58 U.S. 3)

THIS was an appeal from the district court of the United States for the northern district of Iowa.

Mr. Platt Smith moved to dismiss the appeal for want of jurisdiction, as the amount of none of the several decrees was for $2,000, and referred to the case of Oliver et al. v. Alexander et al. 6 Peters, 143.

The motion was opposed by Mr. Gillett.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Shields v. Thomas (58 U.S. 3)


text: Talk:Shields v. Thomas (58 U.S. 3)

title: Talk:Shields v. Thomas (58 U.S. 3)


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Shields v. Thomas (58 U.S. 3)/Opinion of the Court

This is an appeal from the decree of the district court of the United States, exercising the powers of a circuit court for the district of Iowa. A motion has been made on behalf of Isaac Thomas, one of the appellees, to dismiss it upon the ground that the sum in controversy with him is less than two thousand dollars.

The facts in the case may be stated in a few words, so far as they are material to the decision of the motion.

John Goldsberry, of Kentucky, died intestate, Leaving a large personal estate, to which the present appellees, together with other persons named in the proceedings, were entitled as his legal representatives, in the proportions set out in the proceedings. The widow of Goldsberry obtained letters of administration on his estate, and afterwards intermarried with Shields, the appellant, who thereby obtained possession of the property of the deceased.

The representatives of John Goldsberry, (of whom Isaac Thomas, in right of his wife, is one,) filed a bill in the chancery court of Kentucky, against Shields, charging that he had converted to his own use a large amount of the property, to which these representatives were entitled. And in that proceeding they obtained a decree against him for a large sum of money, the shares of the respective complainants being apportioned to them in the decree; and the appellant was directed to pay to each the specific sum to which he was entitled, as his proportion of the property misappropriated by Shields.

The appellant (Shields) lived in Iowa when this decree was made; and the present appellees, who are a portion of the representatives of John Goldsberry, united in the bill in equity now before us, to enforce the decree of the Kentucky court, and praying that Shields might be compelled to pay to them respectively the several sums decreed in their favor in the proceedings in Kentucky; and they obtained the decree in question, according to the prayer of their bill.

The whole amount recovered against Shields, in the proceeding in Iowa, exceeds two thousand dollars. But the sum allotted to each representative, who joined in the bill, was less. And the motion is made to dismiss, upon the ground that the sum due to each complainant is severally and specifically decreed to him; and that the amount thus decreed, is the sum in controversy between each representative and the appellant, and not the whole amount for which he has been held liable. And if this view of the matter in controversy be correct, the sum is undoubtedly below the jurisdiction of the court, and the appeal must be dismissed.

But the court think the matter in controversy, in the Kentucky court, was the sum due to the representatives of the deceased collectively; and not the particular sum to which each was entitled, when the amount due was distributed among them, according to the laws of the State. They all claimed under one and the same title. They had a common and undivided interest in the claim; and it was perfectly immaterial to the appellant, how it was to be shared among them. He had no controversy with either of them on that point; and if there was any difficulty as to the proportions in which they were to share, the dispute was among themselves, and not with him.

It is like a contract with several to pay a sum of money. It may be that the money, when recovered, is to be divided between them in equal or unequal proportions. Yet, if a controversy arises on the contract, and the sum in dispute upon it exceeds two thousand dollars, an appeal would clearly lie to this court, although the interest of each individual was less than that sum.

This being the controversy in Kentucky, the decree of that court, apportioning the sum recovered among the several representatives, does not alter its character when renewed in Iowa. So far as the appellant is concerned, the entire sum found due by the Kentucky court is in dispute. He disputes the validity of that decree, and denies his obligation to pay any part of the money. And if the appellees maintain their bill, he will be made liable to pay the whole amount decreed to them. This is the controversy on his part; and the amount exceeds two thousand dollars. We think the court, therefore, has jurisdiction on the appeal.

The cases referred to stand on different principles. The case of Oliver and others v. Alexander and others, 6 Pet. 143, was a suit for seamen's wages. And although the crew are allowed by law, (for the sake of convenience and to save costs,) to join in a suit for wages, yet the right of each seaman is separate and distinct from his associates. His contract is separate; and his recovery does not depend upon the recovery of others, but rests altogether on its own evidence and merits. And he does not recover a portion of a common fund to be distributed among the claimants, but the amount due to himself on his own separate contract.

The case of Rich and others v. Lambert and others, 12 How. 352, was decided on the same ground. The several shippers who owned the goods which had been damaged, had no common interest in the goods. The interest of each was separate; and his contract of affreightment separate. And the libel of each was upon his own contract with the ship-owner, and for his own individual and separate property.

The cases of Stratton v. Jarvis and Brown, 8 Pet. 8, and of Sepear v. Place, 11 How. 525, were both salvage cases, where the property of each owner is chargeable with its own amount of salvage. The salvage service is entire; but the goods of each owner are liable only for the salvage with which they are charged, and have no common liability for the amounts due from the ship or other portions of the cargo. It is a separate and distinct controversy between himself and the salvors, and not a common and undivided one, for which the property is jointly liable.

The cases relied on are therefore distinguishable from the one before us; and the motion to dismiss for want of jurisdiction must be overruled.

On consideration of the motion made in this cause by Mr. Smith, on a prior day of the present term of this court, to wit, on Friday, the 19th instant, and of the arguments of counsel thereupon, had as well against as in support thereof, it is now here ordered by the court, that the said motion be, and the same is, hereby overruled.


text: Talk:Shields v. Thomas (58 U.S. 3)/Opinion of the Court


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Arthurs v. Hart

THIS case was brought up, by writ of error, from the circuit court of the United States for the eastern district of Louisiana.

In 1847, Hart, who was a citizen of Louisiana, employed Nicholson and Armstrong, of Pittsburg, Pennsylvania, to build and put up a sugar-mill and engine upon his plantation. The mill and engine were put up, and a part of the purchase-money paid. For the balance, a bill of exchange was drawn on March 1, 1848, by Nicholson and Armstrong upon, and accepted by, Hart, to the order of James Arthurs and Brothers, and by them indorsed to Arthurs, Nicholson, and Co. The bill was payable twelve months after date, and was for the sum of $2,540.65. At maturity, the bill was presented for payment, and, payment being refused, was protested. Hart alleged that when the bill was accepted, it was with the understanding that the builders would remedy certain defects in the sugar-mill and engine, and that the holders of the bill knew of this arrangement.

In May, 1849, the plaintiffs in error, the holders of the bill, brought suit, by way of petition, according to the Louisiana practice, in the circuit court of the United States.

The cause was tried by the court without the intervention of a jury.

The following bill of exceptions states the point of evidence upon which the case came up to this court.

Be it remembered, that, on the trial of this cause, the defendant offered to prove, by the testimony of Francis Armstrong, that Mr. Arthur, Mr. Nicholson, and witness, went to the levee, on board the steamboat Luna, to see Captain Hart, in reference to the second payment; that he (Captain Hart) complained that the machinery had not worked well, that it was not then running; that he complained, that, from the bad working of the sugar-mill and engine, he had lost juice, and he required us to deduct the interest then due; that Messrs. Arthur and Nicholson suggested that Captain Hart should accept a bill of exchange for the balance then due, after deducting the interest; that it was understood that the sugar-mill and engine were to be put in first-rate order, and that Captain Hart then agreed to accept a bill; to the introduction of said evidence, or of any conversation, or of any agreement and understanding of the parties, previous to and at the time of accepting the bill sued upon, the plaintiff objected, for the reason that such evidence, or conversation, or agreement, or understanding, would tend to convert an absolute into a conditional acceptance; that it would either vary and contradict the written agreement entered into by the parties; and plaintiffs also objected to the competency of the witness, Francis Armstrong, to testify in this case, for the reason that he was one of the drawers of the bill of exchange sued upon. All of which objections were overruled by the court; to which ruling plaintiffs excepted, and tendered this their bill of exceptions, which is filed and signed by the court.

THEO. H. McCALEB, [SEAL,] U.S. Judge.

Judgment was rendered for the plaintiffs for the sum of $1,743,50 with interest.

The plaintiffs, thinking that the judgment ought to have been for the whole amount of the bill, brought the case up to this court.

It was argued by Mr. Wylie, for the plaintiffs in error, and by Mr. Lawrence, for the defendants.

Mr. Wylie, for plaintiffs in error.

There are two principal points which present themselves upon the record in this case.

First, whether the court below ought not to have entered a judgment in favor of plaintiffs, for the whole sum expressed upon the face of the bill, with interest, &c.

And second, whether this court, under its decisions, will reverse the judgment of the court below in this case, if erroneous in law.

First question. That the decision of the court was erroneous on this point would seem to be clear. In Townsend v. Sumrall, 2 Pet. 170-183, it was held by this court, that 'if the holder of a bill of exchange, at the time of taking the bill, knew that the drawee had not funds in his hands belonging to the drawer, and took the bill on the promise of the drawee to accept it, expecting to receive funds from the drawer; the promise of the drawee to accept the bill constitutes a valid contract between the parties, notwithstanding the failure of the drawer to place funds in his hands. The acceptance of the drawee of a bill binds him, although it is known to the holder that he had no funds in his hands. It is sufficient that the holder trusts to such acceptance.' And in Grant and Casy v. Elliott, 7 Wend. 227, it was held, 'in an action by the payee against the acceptor, it is no defence that the bill was accepted without consideration, and that fact known to the payee.' See also United States v. Bank of Metropolis, 15 Pet. 377; 7 Johns. Rep. 361; 7 Smedes and Marsh, 244; Byles on Bills, 150; 2 Wheat. 385; Civil Code, 2256; D'Aquir v. Barbour, 4 La Annual R. 441; Henderson v. Stone, 1 N. S. 641.

Second point. This case having been submitted to and tried by the court without a jury, a question arises, whether, under the recent decisions of this court, the erroneous judgment of the court below can be corrected. Weems v. George et al., 13 How. 190-197; Bond v. Brown, 12 How. 254.

In Weems v. George et al., Mr. Justice Grier, in delivering the opinion of the court, says: 'When the case is submitted to the judge to find the facts without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment of the law.'

Although this principle, thus stated, goes much beyond the doctrine laid down in Bond v. Brown, and is, indeed, considerably modified by the subsequent context of the opinion of Mr. Justice Grier itself, yet we must take it to be the law for the present case.

title: Arthurs v. Hart


text: Talk:Arthurs v. Hart

title: Talk:Arthurs v. Hart


text:
Arthurs v. Hart/Opinion of the Court

But the meaning of the court could not have been, that, in such a case, where there was no jury, no judgment of the court, however given and however erroneous, could be reviewed by this tribunal. If there be a simple issue of law between the parties, and the court below should make an erroneous decision, this court would undoubtedly reverse it. It is, therefore, only where fact and law are both referred for the decision of the court below, that such decision is conclusive upon the parties as to the matter of fact in question. So far, then, as the admissibility and competency of the witness in this case, were questions raised by the bill of exceptions, the plaintiffs must be content to submit to the law as settled in Weems v. George.

They, therefore, do not rely upon the bill of exceptions to the admission of Francis Armstrong as a witness, but contend that, upon the face of the pleadings and the whole record, the judgment of the court below was erroneous, and may be reversed by this court. In Field v. The United States, 9 Pet. 202, as cited by Justice Grier, in Weems v. George, Marshall, C. J., in delivering the opinion of the court, says: 'As the case was not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the district court improperly admitted the evidence, the only effect would be that this court would reject that evidence, and proceed to decide the cause as if it were not on the record. It would not, however, of itself, constitute any ground for the reversal of the judgment. If the record, therefore, is found to disclose other grounds than an exception to the admission of evidence, for the reversal of the judgment below, this court may reverse a judgment even in a cause submitted to the court below, under the Louisiana practice. The court will look into the whole record.' In Garland v. Davis, 4 How. 131, it was decided, 'this court can notice a material and incurable defect in the pleadings and verdict, as they are represented in the pleadings to have existed in the court below, although such defect is not noticed in the bill of exceptions, nor suggested by the counsel in argument here.

The defendant's answer in this case was materially and incurably defective on its face. Let it be presumed, therefore, that the evidence objected to in the bill of exceptions was strong enough to sustain all and every allegation stated in the answer, still, the plaintiffs were entitled to a verdict for the whole amount of their bill of exchange; for, admitting that the proof did sustain the allegatins of the answer, the defence was utterly unsound in law.

Although the bill of exceptions to the evidence in this case may not, for the reasons already stated, be available to the plaintiffs to the full extent of a bill of exceptions to a cause tried with a jury, according to the common law practice; yet, being part of the record, it discloses the fact that the question as to the sufficiency of the defendant's answer, as a defence in this suit, was fully argued, and after argument, decided in the court below. The plaintiffs contend that this decision was erroneous.

Mr. Lawrence, for the defendant in error, maintained:--

1. That the judge having determined both the facts and the law, this writ of error cannot be sustained upon the ground that improper testimony has been admitted. There was other testimony in the case, and upon that alone the judgment of the court may have been founded. Field v. United States, 9 Pet. 202; United States v. King, 7 How. 833; Weems v. George, 13 How. 195, 196.

2. The testimony was admissible for the purpose of showing downright fraud on the part of the plaintiffs in error, in procuring the acceptance. Bayley on Bills, 528; Ledger v. Ewen, Peake, 216.

3. The evidence was admissible for the purpose of showing the consideration of which the bill was accepted, in order to prove a failure of consideration. Coupy's Heirs v. Dufau, 13 Martin, 90; Le Blanc v. Sanglier, 12 Martin, 402; Russel v. Hall, 20 Martin, 558; 13 Johns. 54; 2 Stark. 166, 204.

4. The evidence was admissible under the plea in reconvention. This is a Louisiana contract. The bill was drawn, indorsed, and accepted in Louisiana. Both the lex loci contractus and the lex fori are to be regarded in any action upon it.

By the law of Louisiana, the defendant may plead in reconvention any damages, even unliquidated damages, if they are necessarily connected with the same transaction. Here, the bill was accepted in payment of the mill and engine; and the damages arose from the defects in this very mill and engine. Code of Practice, 374-377; Body v. Warfield, 6 N. S. 671; Orleans Navigation Co. v. Bingay, Ib. 688; 2 N. S. 73, 122; 6 N. S. 145.

Mr. Justice NELSON delivered the opinion of the court.

This is a writ of error to the circuit court of the United States for the eastern district of Louisiana. The plaintiffs seek to recover the amount of a bill of exchange, drawn by the firm of Nicholson and Armstrong, upon the defendant, for $2,540.65, and accepted by him, in favor of James Arthurs and Brothers, dated March 1, 1848, and payable twelve months from date, and indorsed by the payees to the plaintiffs. The bill of exchange is set forth in the petition, according to the practice in the State of Louisiana, with a prayer that the defendant be condemned to pay the amount due.

The defendant, in his answer, denies the allegations in the petition; and also sets up, that the bill was accepted for the balance of the price of a sugar-mill constructed by the drawers, for his plantation in West Baton Rouge; that the mill was badly constructed, and defective both in the workmanship and materials, and had failed in its operation to do the work intended; that on making known the defects to the drawers, they promised to send competent workmen, before the next ensuing season for grinding sugar, to make the necessary repairs, and put the mill in complete working order, at their own expense; that, confiding in this promise, the defendant accepted, unconditionally, the bill in question. The answer also sets forth, that the drawers had failed to send hands to repair the mill, as agreed, whereby the defendant has suffered damages to the amount of $1,835.65, which sum he demands in reconvention, and asks judgment against the plaintiffs.

The defendant further sets forth, that the payees and indorsees had notice of the defects in the mill, and of the undertaking of the drawers at the time of the acceptance, before the negotiation or transfer of the same.

The cause was tried without a jury; and, on the trial, the defendant admitted the signatures to the bill; and also gave evidence, which was admitted but excepted to, of the facts set up in the answer.

The court gave judgment for the plaintiffs, for $1,743.50. The case is now before us on a writ of error, brought by the plaintiffs, claiming that they were entitled to judgment for the full amount of the bill.

Two preliminary objections have been taken by the counsel for the defendant in error: 1. That, inasmuch as other evidence was given on the trial in the court below than that which has been brought on the record, or is found in the bill of exceptions, for aught that appears, the judgment may have been founded upon that evidence; and, 2. That the cause having been tried without a jury, and the judge having determined the case upon both the facts and the law, error will not lie for the admission of improper testimony.

It was decided in Phillips v. Preston, 5 How. 278, in the case of a writ of error to the circuit court of the United States in Louisiana, and where the trial by jury had been waived, that the State practice regulating appeals for reviewing the decisions of the inferior courts, which required the return of all the evidence to the appellate court, did not apply; and that only so much of it need be returned, and, indeed, no more should be returned, than was necessary to present the legal questions decided by the court, and which were sought to be reviewed. Evidence bearing exclusively upon questions of fact involved in the case, only incumber the record and embarrass the hearing in this court, as these questions are not the subject of review on error. The mere fact, therefore, that other evidence was given on the trial besides that which is found in the bill of exceptions, furnishes no objection to an examination of the questions of law presented by it.

If that evidence bore upon these questions, and might influence our decision upon them, the defendant in error should have brought it upon the record, or incorporated it in the bill of exceptions. His neglect to do so implies that it could properly have no such effect, if returned.

As to the other objection. It was held, in Field and others v. The United States, 9 Pet. 182, and recognized in several subsequent cases, that in a cause where the trial by jury had been waived, the objection to the admission of evidence was not properly the subject of a bill of exceptions; and the reason given is, that if the evidence was improperly admitted this court would reject it, and proceed to decide the cause as if it were not in the record. This, perhaps, is unobjectionable; it certainly is so, as far as the evidence improperly admitted bears upon a question of fact in the cause; for, when rejected, if there is still any proper evidence tending to support the judgment of the court below, the decision cannot be reviewed on a writ of error. The error, in this aspect, would be unimportant, because not the subject of an exception, the question involved being one of fact.

If, upon the rejection of the evidence, no testimony would remain necessary to support the judgment of the court, then the mistake would be one of law, and the proper subject of a writ of error.

The case of the refusal of proper evidence on the trial is subject to very different considerations from those applicable to the improper admission of it. The exclusion of the evidence might change the legal features of the cause, and lead to a determination of it upon principles wholly inapplicable, in case the evidence had been admitted; nor can we assume that the testimony offered and rejected would have been proved, if it had not been excluded, and revise the judgment of the court upon that assumption; because the offer of evidence to prove a fact, and the ability to make the proof, are very different matters. If the court, instead of rejecting, had allowed the evidence, the party might have failed in the proof, and the case in the result remain the same as before the improper exclusion.

We think, therefore, that the improper rejection of testimony on the trial before the judge, where the jury has been dispensed with, should constitute the subject of review on the writ of error, as in the case of a trial before the jury.

There is one qualification applicable to this peculiar mode of trial, that should be noticed. If the testimony rejected is but cumulative, and relates exclusively to a question of fact involved in the case, the rejection may be immaterial, as the decision of that question upon the evidence already in, by the judge, may be regarded as well-warranted.

This principle is sometimes applied in cases of writs of error, where the trial below has been before a jury, if it be seen that the admission of the testimony could not have properly influenced the jury to a different conclusion on the question of fact. The cases will be found collected in Cowen and Hill's notes, vol. 4, pp. 775, 776 (3d ed.); see, also, 1 Duer, (Sup. Court R.,) pp. 431-434. It must be admitted that the courts which have adopted this principle apply it with great caution where the trial has been had before a jury, and require a clear case to be made out that the rejection has worked no prejudice to the party. Other courts have denied its application altogether, and refused to look into the record to see whether the evidence might or might not have influenced the jury.

In cases where the trial by jury has been waived, and the facts as well as the law submitted to the judgment of the court, a more liberal application may be safely indulged; though, if the determination of the question of fact be against the party offering the evidence, we do not perceive why the rejection should not be regarded as error reviewable on a bill of exceptions.

A more difficult question arises in these cases, where the facts as well as the law are submitted to the court, in reviewing on exceptions the correctness of the ruling of the law involved in rendering the judgment.

In trials before a jury, these come up on the instructions prayed for, or by exceptions to the charge. The questions of law are thus separated from the questions of fact,-the former to be determined by the court, the latter by the jury. But, where both questions are submitted to the court, and both determined at the same time, and by the same tribunal, the separation is more difficult. The principles of law applicable to the case are so dependent upon the facts, and the finding of these in the case supposed exclusively within the province of the judge, who is substituted for the jury, it would seem, as a general proposition, nearly impracticable for the appellate court to ascertain from the case the principles of law that had governed the decision; especially in the absence of his opinion in the case.

But these principles must be ascertained, to enable the court to review them on a writ of error, as the bill of exceptions lies only upon some point arising either upon the admission or refusal of evidence, or is a matter of law arising from a fact found, or not denied, and which has been overruled by the court. 4 How. 297; 8 J. R. 495; 2 Caines's R. 168.

As an illustration of the difficulty, and to aid to aid us in the solution of it, we may refer to a late act in England, and the decision of the common bench under it. It is the act of 13 and 14 Victoria, c. 61, which conferred upon the county courts a limited jurisdiction in civil cases, and gave an appeal from their determination 'in a point of law, or upon the admission or rejection of evidence,' 'to any of the superior courts of common law at Westminster.'

It will be seen that an appeal is given here upon the same ground that a bill of exceptions was given by the statute of Edward I. c. 31. The parties were at liberty to waive a trial by jury, and submit the facts, as well as the law, to the judge of the county court. A case came up before the common bench, that had been thus submitted, involving a question upon the statute of limitations, and which presented the difficulty we are now considering.

Maule, J., who delivered the opinion of the court, in endeavoring to overcome it, observed: 'It may be, that, if, upon the case stated by the parties or by the judge, it appears to the court of appeal, that the decision which has been come to can be sustained by a particular view of the facts, which does not render it necessary to arrive at the conclusion that he has erroneously decided the point of law before him, this court may have no power to review the judgment; yet, that where it is manifest from the facts stated, that in order to arrive at the conclusion he has arrived at, the judge must have decided a matter of law in a certain way, that will be a determination in point of law, with respect to which an appeal will lie. So, that, supposing there be a judgment which can be sustained, consistently with the law, by any view that can be taken of the facts stated, such a judgment probably cannot be reversed; yet, still, where the judge states the facts which were before him, and these facts will sustain his judgment upon one view of the law only, and that an incorrect one, this court may have jurisdiction to entertain the appeal.'

This view is directly applicable to the case of a bill of exceptions, where the jury has been dispensed with, and the judge substituted in its place, to pass upon the facts as well as the law, and furnishes the rule by which the point of law may be ascertained that was decided in rendering the judgments intended to be reviewed.

In order, however, to disembarrass the proceedings, as far as practicable, in this peculiar mode of the trial of a common law case, and to enable the appellate court to re examine the point or points of law involved, the counsel, after the close of the evidence, should present the propositions of law which, it is claimed, should govern the decision; and the court should state the rulings thereon, or in coming to its determination. And, in the return to the writ of error, so much of the evidence, and no more, should be incorporated in the bill of exceptions, as was deemed necessary to present the points of law determined against the party bringing the writ. No technical exception need be stated, except in the case of the rejection or admission of evidence. As the rulings in the final determination do not take place upon the trial, or need not, the exception would be impracticable.

We have stated more at large the proper practice in bringing up for review cases of this peculiar character, than was necessary to the disposition of the one before us, as they are frequently occurring, and the practice governing them not very well settled.

As it respects the case in hand, we have already shown that the state practice of Louisiana, in appeals, does not apply to the case of writs of error from this court to the circuit courts; and, hence, the circumstance that other evidence had been given and was before the court, than what appeared in the bill of exceptions, furnished no objection to the re examination of the point of law there presented; and that if the other evidence was deemed material, it should have been brought upon the record by the defendant in error. We must assume, therefore, that the bill of exceptions contains all the testimony deemed material to raise the point of law involved.

That shows the admission of the proof of a state of facts, as a special defence to the bill of exchange, which had been set up, and the only one set up, in the answer, namely, that the bill had been accepted for the balance of the price of a sugar-mill constructed and sold to the defendant by the drawers; that the mill was badly constructed, and defective in workmanship and materials; that, at the time of the acceptance, the drawers promised at some future day to make the necessary repairs; that they had failed to make them, by which the defendant had suffered damage to the amount of $1,835.60, which he claimed in abatement of the face of the acceptance, and that the plaintiffs had notice of these facts before the transfer of the paper to them.

The court below reduced the recovery to $1,743.50, which must have been on the ground of this special defence, as no other appears in the record.

Now, we agree, that if this suit had been between the original parties, the defence would have been unobjectionable. 9 How. 213; Code of Practice, 374-377; 6 N. S. 671; Ib. 688. But, the plaintiffs are bon a fide holders of the paper, for value, and, therefore, not subject to this defence, or to any abatement of the face of the bill, arising out of the transaction between the original parties.

It is true, the plaintiffs knew, at the time they took the paper, that it was given as part of the price for the sugar-mill, and that the mill had been defectively constructed; but, they also knew, that the defendant, upon the promise of the builders to make the necessary repairs, had agreed to accept the bill unconditionally, and had accepted it accordingly. They knew, therefore, that he looked to this undertaking for indemnity, and not to any conditional liability upon the acceptance.

The transaction, therefore, which is brought home to the plaintiffs, lays no foundation, in law or equity, to impeach the paper in their hands.

The ruling of the court below, in this respect, was consequently erroneous, and the judgment must be reversed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern 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, for further proceedings to be had therein, in conformity to law and justice, and the opinion of this court.

title: Arthurs v. Hart/Opinion of the Court


text: Talk:Arthurs v. Hart/Opinion of the Court


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Udall v. Steam-Ship Ohio

THIS was an appeal from the circuit court of the United States for the southern district of New York.

It was a libel filed in the district court, for furnishing articles for the steam-ship Ohio.

A motion was made by Mr. Cutting, and opposed by Mr. Bradley, with whom was Mr. Benedict, to dismiss the appeal, for the want of jurisdiction.

The points made were the same as those in the succeding case, and there was an affidavit of value made by Mr. Benedict. The affidavit also set forth 'that the rules of the district court required libels to be sworn to, so that it is necessary, in stating the amount claimed, to state the same as it actually and in truth exists at the time the libel is sworn to, and on such libels the court, in its final decree, gives such amount as the libellant shall be entitled to recover on his case, whether the same be more or less than the amount in the libel.'

The amount of the claim and the history of the case are stated in the opinion of the court.

Mr. Justice McLEAN delivered the opinion of the court.

title: Udall v. Steam-Ship Ohio


text: Talk:Udall v. Steam-Ship Ohio

title: Talk:Udall v. Steam-Ship Ohio


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Udall v. Steam-Ship Ohio/Opinion of the Court

This is an appeal from the circuit court of the United States for the southern district of New York, in admiralty.

The libel was filed in the district court, which stated that in the years 1847 and 1848, the steam-ship Ohio, then being in process of construction by Bishop and Simonson, the libellant furnished, at the city of New York, for the building of said vessel, a large quantity of materials, timber, and tree-nails. That said articles, at a fair price, amounted in the whole to the sum of $2,973.57, of which sum there is still due $2,159.28, less tree-nails, which not having been used were to be received back by the libellant, amounting to the sum of $468. That the balance of $1,691.28, the owners, or those in charge of said vessel, have refused to pay, &c.

The appeal states the claim to be, at the time of the trial in the circuit court, interest included, $2,164.86.

The libel was dismissed in the district court, and the case was appealed to the circuit court. In that court, the decree of the district court was affirmed, from which an appeal was taken to this court.

A motion is now made to dismiss the appeal, for want of jurisdiction.

It is stated by the counsel opposed to the motion, that it is the uniform practice in the southern district of New York, to establish, on the hearing, only the liability of the defendant, and to have the amount of the damages ascertained on a reference to a commissioner, as the proofs in the record are not the full proof, as to the amount of the damages.

It is not perceived how the practice in the circuit court can affect the question of jurisdiction. The decree of the district court, which dismissed the libel, having been affirmed by the circuit court, we must look to the claim of the appellant, in his libel, whether it exceeds the sum of two thousand dollars. The balance of the account claimed, only amounts to the sum of $1,691.86. But it is insisted that if the interest on this sum be computed, up to the time of trial in the circuit court, the sum would exceed the amount required to give jurisdiction.

Where the claim is founded on dollars and cents, whether it be a libel, a bill in chancery, or an action at law, the damages must appear, to give jurisdiction, on the face of the pleading on which the claim is made. No computation of interest will be made to give jurisdiction, unless it be specially claimed in the libel. If not intended to be included in the claim of damages, it should be specially stated. This would certainly be the case in an action at law, and no reason is perceived why the rule should be relaxed in a case of libel.

Under the 24th admiralty rule of this court, it is suggested, the libel may be amended at any time, as of course, on application to the court. And if this be necessary, the counsel now moves to amend the libel by inserting, 'together with the interest to the time of the final decree in this court, or any appellate court.'

It has not been the practice of this court to allow amendments, except by the consent of parties; though, in the case of Kennedy et al. v. Georgia State Bank, 8 How. 610, this court say, 'there is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments, &c. but the practice has been to remand the cause to the lower court for amendment.

If amendments be allowed, so as to give jurisdiction to this court, where there was no jurisdiction when the trial was had and the appeal taken, parties would be taken by surprise, and litigation would be encouraged. The plaintiff, under such circumstances, would never fail to sustain the jurisdiction of this court, on his appeal.

On the ground that the matter in dispute does not appear, on the face of the libel, to exceed two thousand dollars, the appeal is dismissed.

This cause came on to be heard, on the transcript of the record, from the circuit court of the United States for the southern district of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that this cause be and the same is hereby dismissed, for want of jurisdiction.


text: Talk:Udall v. Steam-Ship Ohio/Opinion of the Court