text:
Ex Parte Boyd/Opinion of the Court

It is made to appear, by this application, that a judgment was recovered in the Circuit Court for the Southern District of New York, in favor of the United States against Robert Boyd, the petitioner, and Francis O'Rourke, on which execution was issued and returned unsatisfied, except in the sum of $200, leaving due thereon $8,128.92. It was thereupon ordered by the court, on motion of the plaintiff's attorney, that the matter be referred to Joseph M. Deuel, Esq., a commissioner of the court, 'to examine the said Robert Boyd and Francis O'Rourke, and take answers on oath concerning their property, and to reduce such answers and examination to writing, and also to examine on oath, concerning such property, such witnesses as may be offered by the respective parties, and reduce such examination to writing, and report such answers and examination, and all his proceedings under and by virtue of this order, to this c ourt with all convenient speed, and the said Deuel is hereby appointed a referee in this action for the purpose aforesaid. And it is further ordered that the said Robert Boyd and Francis O'Rourke do appear before the said referee at his office in the Post Office building, New York City, on the 22d of May, 1879, at eleven o'clock A. M., to answer before said referee concerning their property as aforesaid; and for that purpose to appear before the referee from time to time as he shall direct and appoint.'

The petitioner moved the court to vacate this order, for illegality, which motion was denied. Being required to submit to the examination, he refused to take an oath to testify under said order, whereupon, on motion of the attorney for the United States, the Circuit Court ordered that he be attached and committed to the custody of the marshal, as punishment for a contempt of the court in so refusing to be sworn. From that imprisonment the petitioner seeks to be discharged, and to that end prays for a writ of habeas corpus.

The grounds on which the right to this relief is founded are set forth in his petition, as follows:--

'Your petitioner is informed and believes that proceedings supplementary to execution, wherein your petitioner is restrained of his liberty, are not, by the laws of the State of New York, a remedy in common-law causes to reach the property of the judgment debtor allowed in actions at law in the courts of the United States by sect. 916 of the Revised Statutes of the United States; but, on the contrary, that these proceedings are, by the laws of the State of New York, prescribed as part of a code to abolish common-law causes, as such, and to amalgamate and indiscriminate common-law causes and suits in equity, and to confer upon the courts of that State, indifferently, in the same action powers in actions at law and in equity. Your petitioner is informed and believes that the application of this provision of that code to the courts of the United States is not authorized by any act of Congress, and is in conflict with the provisions of Article III., sect. 2, of the Constitution of the United States, which preserves and establishes the distinction between relief at law and in equity. Your petitioner, therefore, avers and charges that the said Circuit Court was and is wholly without jurisdiction in the premises, and that, therefore, all its proceedings therein are null and void.'

The material portions of the present statutes of New York referred to, and which were in force at the time of the adoption of the Revised Statutes of the United States, are as follows:--

'PROCEEDINGS SUPPLEMENTARY TO EXECUTION.

'SECT. 292. (1.) When an execution against property of the     judgment debtor, or of any one of the several debtors in the      same judgment, issued to the sheriff of the county where he      resides or has a place of business,. . . is returned     unsatisfied in whole or in part, the judgment creditor, at      any time after such return made, is entitled to an order from      a judge of the court. . . requiring such judgment debtor to     appear and answer concerning his property, before such judge      at a time and place specified in the order, within the county      to which the execution was issued. . ..

'(3.) On an examination under this section, either party may     examine witnesses in his behalf, and the judgment debtor may      be examined in the same manner as a witness.

* *  *  *  *

'(5.) No person shall, on examination pursuant to this     chapter, be excused from answering any question on the ground      that his examination will tend to convict him of the      commission of a fraud; but his answer shall not be used as      evidence against him in any criminal proceeding or      prosecution. Nor shall he be excused from answering any     question on the ground that he has, before the examination,      executed any conveyance, assignment, or transfer of his      property for any purpose; but his answer shall not be used as      evidence against him in any criminal proceeding or      prosecution.

'SECT. 295. Witnesses may be required to appear, and testify     in any proceedings under this chapter, in the same manner as      upon the trial of an issue.

'SECT. 296. The party or witness may be required to attend     before the judge, or before a referee appointed by the court      or judge; if before a referee, the examination shall be taken      by the referee, and certified to the judge. All examinations     and answers before a judge or referee, under this chapter,      shall be on oath.

'SECT. 297. The judge may order any property of the judgment debtor, not exempt from execution in the hands either of     himself or any other person, or due to the judgment debtor,      to be applied towards the satisfaction of the judgment.

* *  *  *  *

'SECT. 298. The judge may also, by order, appoint a receiver     of the property of the judgment debtor, in the same manner,      and with the like authority, as if the appointment was made      by the court, according to sect. 244 * . But before the     appointment of such receiver the judge shall ascertain, if      practicable, by the oath of the party or otherwise, whether      any other supplementary proceedings are pending against the      judgment debtor, and if such proceedings are so pending, the      plaintiff therein shall have notice to appear before him and      shall likewise have notice of all subsequent proceedings in      relation to said receivership. No more than one receiver of     the property of a judgment debtor shall be appointed. The     judge may also, by order, forbid a transfer, or other      disposition of the property of the judgment debtor, not      exempt from execution, and any interference therewith. Whenever the judge shall grant an order for the appointment     of a receiver of the property of the judgment debtor, the      same shall be filed in the office of the clerk of the court      of the county where the judgment-roll in the action. . . is     filed; and the said clerk shall record the order in a book to      be kept. . . . A certified copy of said order shall be     delivered to the receiver named therein, and he shall be      vested with the property and effects of the judgment debtor      from the time of the filing and recording of the order as      aforesaid. The receiver of the judgment debtor shall be     subject to the direction and control of the court in which      the judgment was obtained, upon which the proceedings are      founded. . . . But before he shall be vested with any real     property of such judgment debtor a certified copy of said      order shall also be filed and recorded in the office of the      clerk of the county in which any real estate of such judgment      debtor, sought to be affected by such order, is situated, and      also in the office of the clerk of the county in which such      judgment debtor resides.

'SECT. 299. If it appear that a person, or corporation,     alleged to have property of a judgment debtor, or indebted to      him, claims an interest in the property adverse to him or      denies the debt, such interest or debt shall be recoverable      only in an action against such person or corporation by the      receiver, but the judge may, by order, forbid a transfer, or      other disposition of such property or interest, till a      sufficient opportunity be given to the receiver to commence      the action, and to prosecute the same to judgment and      execution; but such order may be modified or dissolved by the judge      granting the same, at any time, on such security as he shall      direct.

'SECT. 300. The judge may, in his discretion, order a     reference to a referee agreed upon by the parties, or      appointed by him, to report the evidence or the facts, and      may, in his discretion, appoint such referee in the first      order, or at any time.

'SECT. 302. (1.) If any person, party or witness, disobey an     order of the judge or referee, duly served, such person,      party or witness, may be punished by the judge as for a      contempt. (2.) And in all cases of commitment under this     chapter. . . the person committed may, in case of inability     to perform the act required or to endure the imprisonment, be      discharged from imprisonment, by the court or judge      committing him, or the court in which the judgment was      rendered, on such terms as may be just.'

Section 16 of the Revised Statutes, which repeats, in this respect, the provisions of sect. 6 of the act of June 1, 1872, c. 255, 'to further the administration of justice,' is as follows: 'The party recovering a judgment in any common-law cause, in any Circuit or District Court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such Circuit or District Court, and such courts may from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise.'

This provision of the Revised Statutes merely embodies and extends the principle contained in the fourteenth section of the act of Sept. 24, 1789, c. 20 (1 Stat. 81), which, with the subsequent legislation of Congress in furtherance of it, has been repeatedly the subject of consideration in this court. Palmer v. Allen, 7 Cranch, 550; Wayman v. Southard, 10 Wheat. 1; Bank of the United States v. Halstead, 10 id. 51; Boyle v. Zacharie, 6 Pet. 648; Beers v. Hughton, 9 id. 329; Ross v. Duval, 13 id. 45; United States v. Knight, 14 id. 301; Duncan v. Darst, 1 How. 301; McCracken v. Hayward, 2 id. 608; Homer v. Brown, 16 id. 354.

It is the settled doctrine of this court, as established and explained by these authorities, that the power of Congress, under the Constitution, as well as that of the courts of the United States, acting under its authority, extends to the adoption of the laws of the several States, not only as to the nature and form of writs of execution for the enforcement of judgments, but also as to all proceedings thereupon. As in Beers v. Haughton (supra), where it was held to include proceedings on the part of the judgment debtor, for his exoneration under insolvent laws of the State from imprisonment under a ca. sa., and the consequent discharge from liability of the special bail.

It is contended, however, on behalf of the present petitioner, that the proceedings under which he has been committed to the custody of the marshal and restrained of his liberty, in their origin and nature are of equitable jurisdiction exclusively, as distinguished from proceedings at common law, which, by the prohibitions of the Constitution of the United States, Congress cannot lawfully authorize the courts of the United States to administer except by bill in chancery.

The jurisdiction of the courts of chancery in New York, exercised prior to the adoption of its present code, which authorized a discovery of assets from a judgment debtor in aid of an execution, was statutory. It was conferred and defined by sects. 38 and 39 of tit. 2, art. 2, 2 Rev. Stats. of New York, 173-174. It was therein provided that 'whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action belonging to the defendant, and of any property, money, or thing in action due to him or held in trust for him; and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery and to prevent such transfer, payment, or delivery, and to decree satisfaction of the sum remaining due on such judgment out of any personal property, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not.'

It is said in argument, by Mr. B. F. Butler, in Mitchell v. Bunch (2 Paige (N. Y.), 606), that these provisions of the Revised Statutes were passed in affirmance of the doctrine of Hadden v. Spader, 20 Johns. (N. Y.) 554. That case, however, did not go upon any idea that a bill in equity would lie against a judgment debtor for a general discovery of assets, but merely upon the ground of a jurisdiction to discover and apply equitable assets specifically described; the question being, as it was put by Woodworth, J., 'whether a debtor who has placed his funds in the hands of a trustee, where they cannot be reached by an execution at law, can put his creditor at defiance and enjoy the benefit of these funds, which ought to be appropriated to the payment of his debts.'

This case was preceded by the decisions of Chancellor Kent in Hendricks v. Robinson, 2 Johns. (N. Y.) Ch. 283; Brinkerhoff v. Brown, 4 id. 671; and McDermutt v. Strong, id. 687.

In Hendricks v. Robinson (supra), the Chancellor said: 'I have no doubt that this court can and ought to lend its aid, whenever that aid becomes requisite to enforce a judgment at law, by compelling a discovery and account, either as against the debtor or as against any third person who may have possessed himself of the debtor's property and placed it beyond the reach of an execution at law. The preliminary step which seems to be required is, that the judgment creditor should have made an experiment at law, and bound the property, by actually suing out execution;' citing Angell v. Draper, 1 Vern. 399; Lord Nottingham, cited in 1 P. W. 445; Stileman v. Ashdown, 2 Atk. 477; Shirley v. Watts, 3 id. 200.

In Brinkerhoff v. Brown (supra), he said that it was the settled rule in chancery that the plaintiffs must show that they have taken out execution at law and pursued it to every available extent against the property before they can resort to that court for relief; that the presumption is that the court which renders judgment is competent to enforce it; that, 'if he seeks aid as to real estate, he must show a judgment creating a lien upon such eatate; if he seeks aid in respect to personal estate, he must show an execution giving him a legal preference or lien upon the chattels.' The opinion cites the case of Taylor v. Hill (1 Eq. Cas. Abr. 132, pl. 15), before Lord King in 1705, where the bill having been filed before execution for discovery of particular specified effects of the judgment debtor in the hands of a third person, a demurrer was allowed; but the Chancellor said it would not lie against the debtor himself, nor against a third person, to have a general discovery. And in McDermutt v. Strong (supra), the Chancellor said: 'I regard the law to be clearly settled, that before a judgment creditor can come here for aid against the goods and chattels of his debtor, or against any equitable interest which he may have therein, he must first take out execution, and cause it to be levied or returned, so as to show thereby that his remedy at law fails, and that he has also acquired by that act of diligence a legal preference to the debtor's interest.'

It is quite apparent from this review of the decisions upon the point in New York, prior to the adoption of the provisions of the Revised Statutes of that State on the subject, that the latter gave a much more extensive remedy than was supposed to exist by virtue of the customary jurisdiction of the Chancery Court, particularly in requiring, when sought, from a judgment debtor, a general discovery of assets, legal and equitable, for the purpose of enabling the judgment creditor to apply them to the payment of his judgment.

In Mitchell v. Bunch (supra), Chancellor Walworth seemed to regard the jurisdiction of chancery, independent of the statute, as equally extensive, and refers to the case of Edgell v. Haywood and Dawe (3 Atk. 352), decided by Lord Chancellor Hardwicke in 1746, as a direct authority in support of the bill in the case before him, and as a decision which had never been questioned; but the case before Lord Hardwicke was not that of a bill for general discovery, but for a discovery in respect to assets alleged to be in the hands of the co-defendant as executor, applicable to the payment of a legacy which belonged to the judgment debtor under a will, and which the complainant was entitled to have appropriated to the payment of his judgment, by virtue of the provisions of the act of 10 Geo. II. c. 26, for the relief of insolvent debtors, under which the debtor's person had been discharged, as an insolvent, from liability to be taken in execution. The right to the remedy in equity in that case was put distinctly upon the ground that the method by which the judgment creditor might have reached the property of his debtor, by proceeding at law against his person, having been taken away by the statute, the choses in action were equitable assets which a Court of Chancery would appropriate to the benefit of his creditors.

Mr. Hare, in his Treatise on Discovery (c. 5, sect. 3, p. 84, ed. 1876), states that 'there are some early cases which appear opposed to the rule which has been stated in the preceding sections, that a discovery will only be given to be used as evidence at a trial,' but adds that 'the cases which are cited in support of a jurisdiction of this nature seem to be chiefly bills for relief raising a different and substantive equity.' He refers, however, to Mountford v. Taylor (6 Ves. Jr. 788) as a case where Lord Eldon seems to have acted upon the doctrine of a general right of the creditor to a discovery, in order to make his judgment available, in consequence of the admission of its correctness by counsel. That was the case of a bill by judgment creditors, who had sued out elegits for a discovery of freehold estates, charging that the defendant, upon his election as a member of Parliament, previously to the judgment, gave in his qualification, and that, if the estates composing it were conveyed away since, it was without consideration. The Lord Chancellor remarked on the hearing that he was not quite clear that such a bill must not allege that, at a given time, the defendant was seized of given lands (not simply suggesting, as a fishing bill, that at some time or other he had some land); and that he conveyed those lands away fraudulently to put them out of the reach of this creditor. After wards he overruled the demurrer, saying: 'But the bill charges that the defendant delivered in a schedule of the particulars of his estates, whereby he made out his qualification, and that he has conveyed them wihtout consideration, as evidence that he has lands liable to execution, as they may be unquestionably. Upon that I think he must answer.' It thus appears that the proceeding in aid of execution, in its present form in New York, as well as that in which it was administered under the Revised Statutes by the Court of Chancery, was a statutory process, and did not form any part of that jurisdiction in equity which, as vested in the courts of the United States by the Constitution, is assumed to be inalienable. And the remaining question, therefore, becomes, not so much whether Congress may, by appropriate legislation, transmute an equitable into a legal procedure, as, whether it can in any wise change the rules of pleading and procedure as to courts, either of law or equity, in force in England at the time of the adoption of the Constitution, or whether, by the adoption of that instrument, all progress in the modes of enforcing rights, both at law and in equity, was arrested and their forms forever fixed. To state the question is to answer it.

The conclusion will be not less clear, however, if we concede that the proceeding in question belongs historically, as to its form, to the administration of chancery courts. If we regard its nature, it will be pere ived that it is, so far as it relates merely to the discovery of the debtor's assets, a collateral and auxiliary remedy. If the discovery results in ascertaining the existence of property, subject to levy under execution, then the remedy at law is perfectly restored. Or if, by alwful power over the person of the debtor, he may be compelled by a court of law to apply his property to the payment of his creditor's claim, the satisfaction is complete. If, on the other hand, other parties with adverse claims are revealed, or obstacles to the pursuit of the legal rights of the judgment creditor are brought to light, or the interests to be subjected are not cognizable at law, or the equities require to be marshalled, it may be that relief can only then be had in a court of equity, where all parties can be made to appear, all conflicting claims adjudicated, and the complete remedy moulded to fit the circumstances of the case.

But here we have nothing to do with any question but that of discovery. The only relief sought is, knowledge of property belonging to the debtor, applicable, either at law or in equity, to the payment of the creditor's judgment. What shall be done, after that knowledge has been acquired, is to be determined upon the circumstances as they may then appear, and cannot now be considered. For the proceeding for discovery is distinct and entirely separable from the subsequent relief, if any shall then be sought.

Now, it is of the essence of the jurisdiction of courts of equity, in bills of discovery merely, that it is in aid of the legal right; and it is a fundamental rule, prescribed for the exercise of that jurisdiction, in the words of Story (Eq. Jur., sect. 1495), that 'courts of equity will not entertain a bill for discovery to assist a suit in another court, if the latter is, of itself, competent to grant the same relief; for in such a case the proper exercise of the jurisdiction should be left to the functionaries of the court where the suit is depending.' It follows, then, that although at one time courts of equity would entertain bills of discovery, in aid of executions at law, because courts of law were not armed with adequate powers to execute their own process, yet the moment those powers were sufficiently enlarged, by competent authority, to accomplish the same beneficial result, the jurisdiction in equity, if it did not cease as unwarranted, would, at least, become inoperative and obsolete. A bill in equity to compel disclosures from a plaintiff or a defendant, of matters of fact peculiarly within his knowledge, essential to the maintenance of the legal rights of either in a pending suit at law, would scarcely be resorted to, unless under special circumstances, now, when parties are competent witnesses, and can be compelled to answer, under oath, all relevant interrogatories properly exhibited; nor to compel the production of books, deeds, or other documents, important as instruments of evidence, when the court of law, in which the suit is pending, is authorized by summary proceedings to enforce the same right.

But even conceding that such enlargements of the powers of courts of law do not deprive courts of equity of jurisdiction theretofore exercised, no one has ever supposed that they were illegitimate intrusions upon the exclusive domain of equity, or produced any confusion of boundaries between the two systems. No one has ever questioned the authority of Congress to make parties to a suit competent witnesses, or to confer upon courts of law power to compel the production of books and papers, because discovery was an ancient head of equitable jurisdiction. It is the very office of the principle of equity to supply defects in the law, and it is not to be regarded as anomalous that the technical law should, in the course of its necessary development, incorporate into its own organization, improvements in procedure, first introduced as equitable remedies. It is this very capacity of parallel growth that constitutes and perpetuates the harmonious coexistence of the two departments of our jurisprudence. Its history furnishes many examples and illustrations of this tendency and of its results.

There is certainly nothing in the nature of an examination of a judgment debtor, upon the question as to his title to and possession of property applicable to the payment of a judgment against him, and of the fact and particulars of any disposition he may have made of it, which would render it inappropriate, as a proceeding at law, under the orders of the court, where the record of the judgment remains, and from which the execution issues. Such examinations are familiar features of every system of insolvent and bankrupt laws, the administration of which belongs to special tribunals, and forms no necessary part of the jurisdiction in equity. It is a mere matter of procedure, not involving the substance of any equitable right, and may be located, by legislative authority, to meet the requirements of judicial convenience. Whatever logical or historical distinctions separate the jurisdictions of equity and law, and with whatever effect those distinctions may be supposed to be recognized in the Constitution, we are not of opinion that the proceeding in question partakes so exclusively of the nature of either that it may not be authorized, indifferently, as an instrument of justice in the hands of courts of whatever description.

Petition denied.

title: Ex Parte Boyd/Opinion of the Court


text: Talk:Ex Parte Boyd/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Ex Parte Boyd/Opinion of the Court


text:
Corbin v. County of Black Hawk

APPEAL from the Circuit Court of the United States for the District of Iowa.

The case is stated in the opinion of the court.

Mr. James D. Campbell for the appellant.

Mr. Galusha Parsons for the appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

title: Corbin v. County of Black Hawk


text:
Page:Observations on Man 1834.djvu/81

 It may happen, indeed, in both cases, that A may raise a particular miniature, as b, preferably to any of the rest, from its being more associated with B, from the novelty of the impression of B, from a tendency in the medullary substance to favour b, &c. and in like manner, that b may raise c or d preferably to the rest. However, all this will be over-ruled, at last, by the recurrency of the associations; so that any one of the sensations will excite the ideas of the rest at the same instant, i.e. associate them together.

Case 3. Let A, B, C, D, &c. represent successive impressions, it follows from the tenth and eleventh propositions, that A will raise b, c, d, &c. B raise c, d, &c. And though the ideas do not, in this case, rise precisely at the same instant, yet they come nearer together than the sensations themselves did in their original impression; so that these ideas are associated almost synchronically at last, and successively from the first. The ideas come nearer to one another than the sensations, on account of their diminutive nature, by which all that appertains to them is contracted. And this seems to be as agreeable to observation as to theory.

Case 4. All compound impressions A + B + C + D, &c. after sufficient repetition leave compound miniatures a + b + c + d, &c. which recur every now and then from slight causes, as well such as depend on association, as some which are different from it. Now, in these recurrences of compound miniatures, the parts are farther associated, and approach perpetually nearer to each other, agreeably to what was just now observed; i.e. the association becomes perpetually more close and intimate.

Case 5. When the ideas a, b, c, d, &c. have been sufficiently associated in any one or more of the foregoing ways, if we suppose any single idea of these, a for instance, to be raised by the tendency of the medullary substance that way, by the association of A with a foreign sensation or idea X or x, &c. this idea a, thus raised, will frequently bring in all the rest, b, c, d, &c. and so associate all of them together still farther.

And upon the whole, it may appear to the reader, that the simple ideas of sensation must run into clusters and combinations, by association; and that each of these will, at last, coalesce into one complex idea, by the approach and commixture of the several compounding parts.

It appears also from observation, that many of our intellectual ideas, such as those that belong to the heads of beauty, honour, moral qualities, &c. are, in fact, thus composed of parts, which, by degrees, coalesce into one complex idea.

And as this coalescence of simple ideas into complex ones is thus evinced, both by the foregoing theory, and by observation, so it may be illustrated, and farther confirmed, by the similar coalescence of letters into syllables and words, in which association is likewise a chief instrument. I shall mention some of the

title: Page:Observations on Man 1834.djvu/81


text: Talk:Corbin v. County of Black Hawk

title: Talk:Corbin v. County of Black Hawk


text:
Corbin v. County of Black Hawk/Opinion of the Court

This case comes into this court on an appeal by the plaintiff below from a decree dismissing the amended and substituted bill of complaint, on demurrers thereto for want of jurisdiction. The defendants are the county of Blackhawk, in the State of Iowa, the auditor and the treasurer of that county, and thirty other individuals. The original bill was filed in November, 1874. The citizenship of the plaintiff, as a citizen of New York, and of all the defendants, as citizens of Iowa, is properly alleged. The bill avers that, in 1857, one John Kerr, as school commissioner of the county, being thereunto duly authorized by the laws of Iowa, made eleven several contracts in writing in respect to the sale of land,-four with one person, and one with each of seven other persons. A copy of one of the contracts is made part of the bill, each being averred to be in like words and figures, except the name of the purchaser, the description of the land, and the amounts of money mentioned. It is in these words:--

'SCHOOL-FUND COMMISSIONER'S OFFICE,

'BLACK HAWK COUNTY, July 10, 1857.

'Contract made and entered into between John Kerr, as     school-fund commissioner for the county of Black Hawk, Iowa,      and Abraham Carey, of the county of Black Hawk and State of      Iowa, to wit:--

'The said John Kerr, school-fund commissioner, as authorized     by law, has bargained and sold, and by these presents does      bargain and sell, to the said Abraham Carey the      following-described tract or parcel of land, being a portion      of section numbered sixteen (or lands in lieu thereof),      granted to the State for the use of schools by an act of      Congress entitled 'An Act supplemental to the act for the      admission of the States of Iowa and Florida into the Union,'      approved March 3, 1845, to wit: Lot No. 10, being the west      (1/2) half of the southeast (1/4) quarter section sixteen      (16), township eighty-nine (89) north, of range fourteen (14)      west, containing eighty acres.

'The price agreed upon is nine and 5/100 dollars per acre,     amounting to the sum of seven hundred and twenty-four      dollars, the one-fourth part of which, to wit, one hundred      and eighty-one dollars, has been paid in cash to the said      school-fund commissioner, and the balance, to wit, five      hundred and forty-three dollars, secured by a promissory note      bearing even date herewith and payable on or before ten years      from date, bearing interest at the rate of ten per centum per      annum, payable annually, on the first day of January, at the      office of the said school-fund commissioner, in Black Hawk      County.

'Now, if the said Abraham Carey, his heirs, executors, or     administrators, shall pay or cause to be paid the interest on      said note as the same falls due, together with the principal,      within the time specified, then he will be entitled to      receive from the governor of the State of Iowa a patent for      the land herein described. In case of failure to make any of     the payments aforesaid punctually as stipulated, all previous      payments shall be considered forfeited, and the land subject      to be sold by the school-fund commissioner, or the payment of      the money enforced according to law, at the option of said      commissioner.

'In testimony whereof the parties have hereunto set their     hands and seals the day and year first above written.

'(Signed) JOHN KERR, [L. S.]

'School-Fund Commissioner of Black Hawk County.

'ABRAHAM CAREY.

'In presence of—

'D. J. COLEMAN.'

The bill alleges that the cash payment specified in each contract was made; that the promissory note specified in each contract was made and delivered; that a record of each sale was duly made, as provided by law; that each of the several persons to whom the lands were sold 'made divers payments of money,' which were credited upon their several notes by the proper officers of the county, but the plaintiff cannot set forth particularly the dates and amounts of the payments; that the notes and the amounts due thereon are held by the county as valid claims against their makers; that by the said premises the several purchasers became the owners of the several tracts of land; that the legal title to the lands remained vested in the county; that on the payment of the balance of said moneys the county was bound to cause the lands to be conveyed to the several purchasers, or their assigns; that afterwards the several purchasers, for money considerations, respectively made and delivered to the plaintiff certain 'conveyances,' a copy of one of which is made part of the bill, each of the others being averred to be in like substance and effect, except the name of the grantor and the description of the lands conveyed; that the 'conveyances' were duly filed in the office of the auditor of the county; and that thereby the plaintiff became the owner of the several contracts and the several tracts of land. Such copy is in these words:--

'Know all men by these presents, that I, Wm. H. McClure, in     consideration of the sum of one hundred dollars in hand paid      to me by Austin Corbin, of Kings County, State of New York,      the receipt whereof is hereby acknowledged, do hereby sell      and convey to the said Austin Corbin all the interest in the      following-described land, viz.: Lots numbers (3) three,      eleven (11), and twelve (12) being the north half of the      northeast quarter, and the east half of the southeast quarter      of section sixteen (16), township eighty-nine (89) north, of range number fourteen (14) west of the fifth      principal meridian, in Black Hawk County, Iowa, which was      conveyed to me by contract, now on file in the office of the      county auditor of Black Hawk County, Iowa, made by and      between John Kerr, school-fund commissioner of said county,      and Wm. H. McClure, for the conveyance of said lands, and I     hereby sell and assign to said Corbin all my rights under      said contract, covenanting with him that I have not sold,      assigned, or transferred the same to any person or persons.

'In witness whereof I have hereunto set my hand this first     day of July, 1871.

'WM. H. MCCLURE.

'In presence of—

'DAN'L W. FOOTE.'

Indorsed on back as follows:--

'This assignment filed in my office this first day of July,     A. D. 1871.

'D. W. FOOTE, Auditor.'

The bill further alleges the willingness of the plaintiff to pay to the county the amount remaining unpaid on the notes, being the balance of the purchase-money of the several tracts of land; that in January, 1872, he offered to pay it to the auditor of the county; that in October, 1874, he tendered to the auditor and to the treasurer $16,197.69, as and for the payment of the balance remaining unpaid on the purchase-money of the several tracts of land, and all interest thereon; that said sum was more than sufficient to pay the balance; that said officers failed to accept the money so tendered, and refused to state whether they accepted or refused to accept it; that he then and there became entitled to demand the issue of certificates of the payment of the moneys provided to be paid in said several contracts, and then and there did demand the issue of the same, which was refused; that he brings into court for the use of the defendants the amount so tendered, to wit, $16,197.69, for the purpose of completing and perfecting the said tender, and to enable the defendants to accept the same, if they elect so to do, at any time; that, in case said moneys should be found insufficient in amount for said purposes, he offers to pay and bring into court such further sum as may be found to be necessary; that the said several contracts are valid and subsisting; that the county has never undertaken to rescind them, or given notice of an intention to do so, or commenced suit to enforce payment of the purchase-money, or to foreclose the equities of the plaintiff or of his grantors; that no forfeiture of the contracts could lawfully be made by said county; that the defendants other than the county and its said two officers severally claim to have some title to or interest in the lands, or some part thereof; that pursuant to said last-mentioned sales, patents have been issued for the lands, or some of them, to the defendants, or some of them, by the governor of the State of Iowa, but the plaintiff cannot more particularly state the facts in respect to the issue of the patents; that the plaintiff is the lawful owner of the several tracts of land; and that the issue of said patents has vested the legal title to said premises in the patentees therein named. The prayer of the bill is that the subsequent sales of the several tracts of land, and the patents, and all conveyances of the lands by the patentees, be decreed to be void and of no effect as against the estate of the plaintiff; that his title to said premises be forever quieted as against the defendants claiming any interest in the lands; that each of them be enjoined from setting up any interest in said premises under the sales and the patents issued thereunder; that the said patentees, and their several grantees, be decreed to hold the legal title to said lands, as the trustees of and for the plaintiff; and that they be compelled to convey the same to the plaintiff upon such terms as to the court may seem just and equitable. Three separate demurrers were filed to the amended bill, one by the county of Black Hawk, one by its auditor and its treasurer, and one by the remaining defendants. In each of the demurrers one of the causes of demurrer assigned is, that it does not appear upon the bill that the Circuit Court has jurisdiction of the alleged causes of action or of the parties, or that the plaintiff's several assignors could have maintained actions in the Circuit Court against the demurring defendants upon the said several contracts. The court states in its decree that it had heard argument upon the question of jurisdiction, and upon no other, and that it dismissed the amended bill upon the ground that it had no jurisdiction of the cause.

The first point taken by the appellees is, that the appeal ought to be dismissed for want of jurisdiction in this court, on the ground that the matter in dispute does not exceed the sum or value of $5,000, exclusive of costs. The view urged is that the interest of each of the appellees who is alleged to have an interest in some of the lands in question is several; that each several interest is not shown to exceed the value of $5,000; and that the county of Black Hawk ad its officers are not necessary or more than formal parties to the suit. But the allegations of the bill, which must be taken as true, for the purposes of this case, are, that although, under the contracts, the patents for the lands are to be issued by the governor of the State, the notes and the amounts due thereon are held by the county, the money is to be paid to the county, and the tender was made to the officers of the county who are defendants. The matter in dispute between the appellant and the county is the sum of $16,197.69, which he tendered to its officers, and which they did not accept. Under the contracts the purchaser is entitled to receive a patent from the governor only on paying the notes, which are alleged to be held by the county. To obtain the relief asked for in the bill the plaintiff must first pay that sum to the county in discharge of the notes. His title cannot be quieted as prayed for, as against the adverse claimants of the lands, until his contract obligations to the county are fulfilled. Therefore, the county and its said officers are real parties to the suit, and the matter in dispute as to them is the sum so tendered.

Although the amended bill in the record was filed in July, 1878, the counsel for the respective parties have stipulated in this court, in open court, that the suit in the Circuit Court was originally begun in November, 1874. The question of the jurisdiction of the Circuit Court is, therefore, to be determined under that clause of sect. 629 of the Revised Statutes which provides that 'no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' There can be no doubt that the original contracts in this case are choses in action, in respect to the rights acquired thereunder by the parties thereby contracting to purchase the lands. It is equally clear that by the instruments executed to the plaintiff by such purchasers, selling and conveying to him their several interests in the several tracts of land, and assigning to him all their rights under said several contracts, he became the assignee of the contracts, as choses in action, in respect to the rights of the assignors thereunder, including their rights of action thereon which are sought to be enforced in this suit. The only question for consideration is, whether the suit is one to recover the contents of the contracts.

The appellant contends that the suit is not one to recover the contents of a chose in action; that it is not even founded upon the contracts; and that it is only a suit to determine the validity, force, and effect of certain transactions which occurred subsequently to the making of the contracts, whereby certain rights adverse to those existing under the contracts are claimed to have arisen. It is urged that the appellant does not prosecute the suit in his character of assignee, but prosecutes it because a cause of action has accrued to him through the act of the county officers in refusing to accept the tender, and through the assertion by the other individual defendants of an adverse title to the lands. But we cannot take this view of the case. The suit is really one for the specific performance of the contracts, to enforce them, to realize the fruits of the rights secured by them to the purchasers, and to reinstate the plaintiff in the position which he is entitled to occupy under the contracts as assignee thereof, notwithstanding any acts done by the county or its officers in impairment of the rights acquired by the contracts. Such a suit must be regarded as one to recover the contents of the contracts. The contents of a contract, as a chose in action, in the sense of sect. 629, are the rights created by it in favor of a party in whose behalf stipulations are made in it which he has a right to enforce in a suit founded on the contract; and a u it to enforce such stipulations is a suit to recover such contents. The promise to pay money, contained in a promissory note, is all that there is of the note. A suit to enforce the payment of the money is a suit to recover the contents of the note, because there is nothing contained in the note but the promise. The promise to receive the money stipulated in these contracts to be paid by the purchasers, as a foundation for their right to receive patents, is, so far as this suit is concerned, the essence of the contracts; and a suit to compel the acceptance of that money is a suit to enforce such promise, and, therefore, is a suit to recover the contents of the contracts. This principle was settled in the early case of Sere v. Pitot (6 Cranch, 332), under sect. 11 of the act of Sept. 29, 1789, c. 20, which is re-enacted in sect. 629 of the Revised Statutes. There the plaintiffs were the general assignees of the effects of an insolvent debtor, by operation of law. It was contended that the statute applied only to a voluntary assignment of a particular chose in action, and that the word 'contents' did not apply to accounts or unliquidated claims, but was confined to transferable paper. But the court held that the statute intended to except suits in virtue of equitable assignments, as well as suits in virtue of legal assignments, and to exclude from the Federal courts the assignee of all the open accounts of a merchant, as well as the same person when the assignee of a particular note. The court say: 'The term 'other chose in action' is broad enough to comprehend either case, and the word 'contents' is too ambiguous in its import to restrain that general term. The 'contents' of a note are the sum it shows to be due, and the same may, without much violence to language, be said of an account.' Following out this principle, the obligation or the promise contained in a contract is its contents, when a suit is brought to enforce such obligation; and it does no violence to language to say that the suit is one to recover such contents.

In Deshler v. Dodge (16 How. 622, 631), it is said by the court, that the statute in question applies to cases 'in which the suit is brought to recover the contents or to enforce the contract contained in the instrument assigned;' and that where the suit is brought to enforce the contract contained in the chose in action, the assignee is disabled, unless the suit might have been brought in the court if no assignment had been made. Again, in Bushnell v. Kennedy (9 Wall. 387), it is suggested by the court that the restriction applies to rights of action founded on contracts which contain without themselves some promise or duty to be performed, and that such contracts may be properly said to have contents.

The amended bill in this case contains no averment showing that the suit could have been maintained by the assignors of the contracts if no assignments had been made; and it is well settled that this is necessary. Turner v. Bank of North America, 4 Dall. 8; Mollan v. Torrance, 9 Wheat. 537; Bank of United States v. Moss, 6 How. 31; Bradley v. Rhines' Admrs., 8 Wall. 393.

We are, therefore, of opinion that the Circuit Court had no jurisdiction of this suit. Its decree will be affirmed, with the modification that the dismissal of the bill is without prejudice to the right of the plaintiff to bring any suit he may be advised, in the proper court; and it is

So ordered.


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 most remarkable particulars, relating to this coalescence of simple ideas into complex ones, in the following corollaries.

. I. If the number of simple ideas which compose the complex one be very great, it may happen, that the complex idea shall not appear to bear any relation to these its compounding parts, nor to the external senses upon which the original sensations, which gave birth to the compounding ideas, were impressed. The reason of this is, that each single idea is overpowered by the sum of all the rest, as soon as they are all intimately united together. Thus in very compound medicines the several tastes and flavours of the separate ingredients are lost and overpowered by the complex one of the whole mass: so that this has a taste and flavour of its own, which appears to be simple and original, and like that of a natural body. Thus also, white is vulgarly thought to be the simplest and most uncompounded of all colours, while yet it really arises from a certain proportion of the seven primary colours, with their several shades or degrees. And to resume the illustration above-mentioned, taken from language, it does not at all appear to persons ignorant of the arts of reading and writing, that the great variety of complex words of languages can be analysed up to a few simple sounds.

. II. One may hope, therefore, that, by pursuing and perfecting the doctrine of association, we may some time or other be enabled to analyse all that vast variety of complex ideas, which pass under the name of ideas of reflection, and intellectual ideas, into their simple compounding parts, i.e. into the simple ideas of sensation, of which they consist. This would be greatly analogous to the arts of writing, and resolving the colour of the sun’s light, or natural bodies, into their primary constituent ones. The complex ideas which I here speak of, are generally excited by words, or visible objects; but they are also connected with other external impressions, and depend upon them, as upon symbols. In whatever way we consider them, the trains of them which are presented to the mind seem to depend upon the then present state of the body, the external impressions, and the remaining influence of prior impressions and associations taken together.

. III. It would afford great light and clearness to the art of logic, thus to determine the precise nature and composition of the ideas affixed to those words which have complex ideas, in a proper sense, i.e. which excite any combinations of simple ideas united intimately by association; also to explain, upon this foundation, the proper use of those words, which have no ideas. For there are many words which are mere substitutes for other words, and many which are only auxiliaries. Now it cannot be said, that either of these have ideas, properly so called. And though it may seem an infinite and impossible task, thus to analyse the significations and uses of words, yet, I suppose, this would not

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text:
Post v. Supervisors Amoskeag Bank

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. Sanford B. Perry, Mr. David T. Littler, and Mr. George S. Eldredge for the plaintiffs in error.

Mr. T. Lyle Dickey and Mr. Philip Philips for the defendants in error.

MR. JUSTICE GRAY delivered the opinion of the court.

title: Post v. Supervisors Amoskeag Bank


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 be more difficult, with the present philological and philosophical helps to such a work, than the first making of dictionaries and grammars, in the infancy of philology. Perhaps it may not be amiss just to hint, in this place, that the four following classes comprise all the possible kinds into which words can be distinguished, agreeably to the plan here proposed:

1. Words which have ideas, but no definitions.

2. Words which have both ideas and definitions.

3. Words which have definitions, but no ideas.

4. Words which have neither ideas nor definitions.

It is quite manifest, that words seen or heard, can raise no ideas in the mind, or vibrations in the brain, distinct from their visible and audible impressions, except as far as they get new powers from associations, either incidental ones or arising from express design, as in definitions; and therefore, that all other ways of considering words, besides what is here suggested, are either false or imperfect.

. IV. As simple ideas run into complex ones by association, so complex ideas run into decomplex ones by the same. But here the varieties of the associations, which increase with the complexity, hinder particular ones from being so close and permanent, between the complex parts of decomplex ideas, as between the simple parts of complex ones: to which it is analogous, in languages, that the letters of words adhere closer together than the words of sentences, both in writing and speaking.

. V. The simple ideas of sensation are not all equally and uniformly concerned in forming complex and decomplex ideas; i.e. these do not result from all the possible combinations of twos, threes, fours, &c. of all the simple ideas; but, on the contrary, some simple ideas occur in the complex and decomplex ones much oftener than others; and the same holds of particular combinations by twos, threes, &c. and innumerable combinations never occur at all in real life, and, consequently, are never associated into complex or decomplex ideas. All which corresponds to what happens in real languages; some letters, and combinations of letters, occur much more frequently than others, and some combinations never occur at all.

. VI. As persons who speak the same language have, however, a different use and extent of words, so, though mankind, in all ages and nations, agree, in general, in their complex and decomplex ideas, yet there are many particular differences in them; and these differences are greater or less, according to the difference, or resemblance, in age, constitution, education, profession, country, age of the world, &c. i.e. in their impressions and associations.

. VII. When a variety of ideas are associated together, the visible idea, being more glaring and distinct than the rest, performs the office of a symbol to all the rest, suggests them,

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text: Talk:Post v. Supervisors Amoskeag Bank

title: Talk:Post v. Supervisors Amoskeag Bank


text:
Post v. Supervisors Amoskeag Bank/Opinion of the Court

These actions are brought upon municipal bonds, purporting to have been issued under an act of the General Assembly of Illinois of Feb. 18, 1857. The facts of the cases do not substantially differ from those which appeared when one of the cases was before this court at October Term, 1876, and the principles then affirmed must control the present decision. See Town of South Ottawa v. Perkins and Supervisors of Kendall County v. Post, 94 U.S. 260. Those principles may be summed up as follows:--

First, By the law of the State of Illinois, as often declared by the Supreme Court of that State, before as well as after the execution of the bonds in suit, the provisions of the Constitution of 1848, requiring each house of the legislature to keep and publish a journal of its proceedings, and, on the final passage of all bills, to take the vote by ayes and noes, and ordaining that no bill shall become a law without the concurrence of a majority of all the members elect of each house, are not merely directory; but if the journals, being produced or proved, fail to show that an act has been passed in the mode prescribed by the Constitution, the presumption of its validity, arising from the signatures of the presiding officers and of the executive, is overthrown, and the act is void.

Second, Whether a seeming act of the legislature is or is not a law is a judicial question to be determined by the court, and not a question of fact to be tried by a jury.

Third, The construction uniformly given to the Constitution of a State by its highest court is binding on the courts of the United States as a rule of decision.

Fourth, An act of the legislature of a State, which has been held by its highest court not to be a statute of the State, because never passed as its Constitution requires, cannot be held by the courts of the United States, upon the same evidence, to be a law of the State.

Fifth, That which is not a law can give no validity to bonds purporting to be issued under it, even in the hands of those who take them for value and in the belief that they have been lawfully issued.

It was accordingly held that the act of the General Assembly of Illinois of Feb. 18, 1857, under which the bonds in suit were issued, having been adjudged by the Supreme Court of that State in 1870 in the cases of Ryan v. Lynch (68 Ill. 160) and Miller v. Goodwin (70 id. 659), upon proof that the journals did not show it to have been enacted in conformity with the requirements of the Constitution, to have never become a law, and to have conferred no power, although referred to in later statutes as an existing law, those decisions must govern the action of the courts of the United States.

The weight of those decisions as authoritative expositions of the Constitution of the State is not affected by the fact that these plaintiffs were not parties to the suits in which they were delivered. Township of Elmwood v. Marcy, 92 U.S. 289; Township of East Oakland v. Skinner, 94 id. 255.

Nor is it of any importance that the act of 1857 had been assumed to be an existing law in Dunnovan v. Green (57 Ill. 63), and in Force v. Batavia (61 id. 99); for in each of those cases the validity of the statute was not controverted, and by the established practice of that court no evidence of the contents of the journals could be considered on appeal, which had not been produced and made part of the case in the court below. Illinois Central Railroad Co. v. Wren, 43 Ill. 77; Bedard v. Hall, 44 id. 91; Grob v. Cushman, 45 id. 119. See also People v. Dewolf, 62 id. 253, 256; Binz v. Weber, 81 id. 288, 291.

The copies of the journals, certified by the secretary of state, and the printed journals, published in obedience to law, are both competent evidence of the proceedings in the legislature.

By virtue of the statute of Illinois of Feb. 12, 1849, the copies of the original daily journals kept by the clerks of the two hdouses, made by person contracted with or employed for the purpose as authorized and directed by that act (though not sworn public officers), in well-bound books furnished by the secretary of state, pursuant to the duty thereby imposed upon him, and afterwards deposited and kept in his office, are official records in his custody, copies of which certified by him are admissible upon settled rules of evidence, as well as by the decision of the Supreme Court of Illinois in Miller v. Goodwin, above cited; and neither the competency nor the effect of such copies is impaired by the loss or destruction of the daily journals or minutes.

The remark of the judge delivering the opinion in Illinois Central Railroad Co. v. Wren (43 Ill. 79), 'We are not aware of any law which makes the printed journal evidence of the contents of the original,' was but obiter dictum (for the case was decided upon the ground that no copy whatever of the journal had been made part of the case before the court), and is in conflict with the general current of decision in that court and in this. People v. Campbell, 8 id. 466; Prescott v. Trustees of Illinois & Michigan Canal, 19 id. 324; Happel v. Brethauer, 70 id. 166; Watkins v. Holman, 16 Pet. 25, 55, 56; Bryan v. Forsyth, 19 How. 334; Gregg v. Forsyth, 24 id. 179.

For these reasons, the act of Feb. 18, 1857, under which all the bonds in suit purport to have been issued, must be held to be of no force or effect, and the plaintiffs can maintain no action on the bonds. Upon the attempt made at the argument to support their validity in the first case under the statute of Nov. 6, 1849, and in the second case under the statute of March 6, 1867, it is enough to say that there is nothing in the record to show that either of those statutes was ever complied with by the defendant in issuing the bonds, or relied on by the plaintiff in purchasing them.

Judgments affirmed.


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 and connects them together. In this it somewhat resembles the first letter of a word, or first word of a sentence, which are often made use of to bring all the rest to mind.

. VIII. When objects and ideas, with their most common combinations, have been often presented to the mind, a train of them, of a considerable length, may, by once occurring, leave such a trace, as to recur in imagination, and in miniature, in nearly the same order and proportion as in this single occurrence. For, since each of the particular impressions and ideas is familiar, there will want little more for their recurrency, than a few connecting links; and even these may be, in some measure, supplied by former similar instances. These considerations, when duly unfolded, seem to me sufficient to explain the chief phænomena of memory; and it will be easily seen from them, that the memory of adults, and masters in any science, ought to be much more ready and certain than that of children and novices, as it is found to be in fact.

. IX. When the pleasure or pain attending any sensations and ideas is great, all the associations belonging to them are much accelerated and strengthened. For the violent vibrations excited in such cases, soon overrule the natural vibrations, and leave in the brain a strong tendency to themselves, from a few impressions. The associations will therefore be cemented sooner and stronger than in common cases; which is found agreeable to the fact.

. X. As many words have complex ideas annexed to them, so sentences, which are collections of words, have collections of complex ideas, i.e. have decomplex ideas. And it happens, in most cases, that the decomplex idea belonging to any sentence is not compounded merely of the complex ideas belonging to the words of it; but that there are also many variations, some oppositions, and numberless additions. Thus, propositions, in particular, excite, as soon as heard, assent or dissent; which assent and dissent consist chiefly of additional complex ideas, not included in the terms of the proposition. And it would be of the greatest use, both in the sciences and in common life, thoroughly to analyse the matter, to shew in what manner, and by what steps, i.e. by what impressions and associations, our assent and dissent, both in scientifical and moral subjects, is formed.

proposition is analogous to the ninth and eleventh, and may be deduced from the last, as they are from the eighth and

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text:
Harvey v. United States (105 U.S. 671)

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Enoch Totten for the appellants.

The Solicitor-General, with whom was Assistant Attorney-General Simons, for the United States.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

title: Harvey v. United States (105 U.S. 671)


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 tenth respectively. It is also an evidence and illustration of the second; shewing, not only that the state of the medullary substance is changed, according to the several natures of the ideas which are presented to the mind; but also shewing, in general, of what kind this change is, and in what manner it is effected.

these complex vibrations may consist of so many parts co-existent and successive, and these parts may so alter and exalt one another, as that the resulting agitations in the medullary substance may no longer be miniature vibrations, but vivid ones equal to those excited by objects impressed on the senses. This process may be farther favoured by a mixture of vivid real impressions among the ideas, by the irritability of the medullary substance, by a previous disposition to the vibrations to be excited, &c.

. I. When the complex miniature vibrations are thus exalted in degree, we are to conceive, that the corresponding complex ideas are proportionally exalted, and so pass into intellectual affections and passions. We are therefore to deduce the origin of the intellectual pleasures and pains, which are the objects of these affections and passions, from the source here laid open.

. II. Since the present proposition unfolds the nature of affections and will, in the same manner, and from the same principles, as the twelfth does that of ideas, intellect, memory, and fancy; it follows, that all these are of the same original and consideration, and differ only in degree, or some accidental circumstances. They are all deducible from the external impressions made upon the senses, the vestiges or ideas of these, and their mutual connexions by means of association, taken together and operating on one another.

. III. It follows also from this proposition, that the intellectual pleasures and pains may be greater, equal, or less, than the sensible ones, according as each person unites more or fewer, more vivid or more languid, miniature vibrations in the formation of his intellectual pleasures and pains, &c.

. IV. It is evident, that all the vibrations which belong to ideas, and intellectual affections, must reside in the brain, or even in the most internal parts of it, not in the spinal marrow or nerves. The brain is therefore the seat of the rational soul, i.e. of the soul, as far as it is influenced by reasons and moral motives, even though we should admit, that the spinal marrow and nerves, are, in part, the sensorium, or the seat of the sensitive soul; which is some argument, that this ought not to be

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text: Talk:Harvey v. United States (105 U.S. 671)