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Ayres v. Carver/Opinion of the Court

This is an appeal from a decree of the district court of the United States for the northern district of Mississippi.

A bill was filed by Hiram Carver, of the State of Alabama, against Joseph W. Matthews, of Mississippi, and some two hundred others, part of them residents of this State, part of Tennessee, but most of them without any residence mentioned, setting forth the treaty made with the Chickasaw tribe of Indians, at Pontotoc Creek, in 1832, confirmed in 1833, by which said tribe ceded to the government all their lands east of the Mississippi River; and also a treaty with the same tribe, 24th May, 1834, confirmed 1st July, the same year, modifying the provisions of the first one; which treaties provided for certain reservations of land to be granted in fee to the heads of Indian families; and for the survey and sale of the residue, as in the case of other public lands, with this difference: that the lands remaming undisposed of at public sale, should be liable to private entry, at one dollar and twenty-five cents per acre for the first year thereafter; at one dollar the second; at fifty cents the third; at twenty-five cents the fourth, and thereafter at twelve and a half cents per acre.

The bill further states, that down to January, 1843, there remained subject to private entry, at twelve and a half cents per acre, several tracts of land particularly set forth in a schedule annexed; and that on that day the complainant offered to purchase, at the land-office, all the lands described in the aforesaid schedule, at the price of twelve and a half cents per acre; and, for this purpose, made an application to A. J. Edmondson, the register of said land-office, but that the said register illegally refused to permit him to make the said purchase; that he also tendered to J. F. Wray, the receiver, the amount of the purchasemoney for the tracts he had thus applied to enter, but that he refused to receive the money or issue the proper certificates.

The complainant further states, that since his application, as above set forth, the register and receiver have permitted the defendants to enter and purchase the several tracts, in sections and subdivisions, and at the times mentioned in the schedule above referred to; and charging that the said defendants had notice of the rights and equities of the complainant at the time. $The complainant then prays to make all the defendants, before enumerated, parties to the bill, and as they are very numerous, that the court will designate a small portion of them to represent the whole body, and upon whom personal service of the subpoena shall be made. And further, that the several entries and purchases made by the defendants be set aside; and that the complainant be permitted to enter and purchase the several tracts at the price of twelve and a half cents per acre, or that the defendants be decreed to convey the same to the complainant, and to deliver up the possession.

It appears from the record, the court, on the application of the complainant, ordered that the cause should proceed against seven of the defendants, James Brown, Jacob Thompson, John P. Jones, William H. Duke, John D. Bradford, Thomas N. Niles, and Eli Ayres, and upon whom process was afterwards served, and who appeared in said cause.

Separate answers were put in by these defendants, setting forth the entry and purchase at private sale from the register and receiver of the several portions of the tract claimed by each of them, and also patents for the same from the government. To which answers replications were filed.

It further appears from the record, that at this stage of the proceedings, Thomas N. Niles and Eli Ayres, two of the defendants, filed a cross-bill against the complainant, Carver, and all of their numerous co-defendants, setting forth the substance of the original bill, and then charging that they had obtained a title to the several tracts in controversy, or to portions of them, long prior to the title claimed by their co-defendants, setting forth also particularly the source of title. They pray that this cross-bill may be heard at the same time with the original bill of Carver, and that any claim he may set up to the several tracts of land claimed by them in the cross-bill, may be set aside and annulled; also, that the other defendants to the cross-bill be required to produce their patents to any and all of the lands claimed by them, that they may be cancelled, and that possession be delivered to the complainants.

It further appears from the record, that afterwards the complainants moved the court that the five co-defendants, who had appeared in the original bill, and the complainant in that bill, be made defendants to represent the other defendants mentioned, as they are so numerous as to render it inconvenient to make all of them parties to the suit; which motion was granted.

These defendants were afterwards personally served with process, or appeared in the cause, and demurred to the cross-bill; which demurrer was sustained by the court, and the bill dismissed. The case is now before us on an appeal from this decree.

It will have been seen from the brief reference to the original bill in this case, that Carver, the complainant, sought to establish an equitable title to large tracts of the public lands, which had been laid off in townships, ranges, and sections, situate in the State of Mississippi; having offered to comply, as he alleges, with the law providing for the entry and purchase at private sale, of the several tracts, but was prevented from making the entries and from obtaining the necessary certificates, by the illegal and unwarranted acts of the register and receiver at the land-office. The bill is filed against the defendants, who had subsequently entered and paid for the land, obtained the necessary certificates, and upon which patents have since been issued.

The defendants are alleged to be very numerous, and for this reason the court below dispensed with the necessity of making all of them parties; and directed that their interests should be represented by some seven of them, on whom process was directed to be served.

Without intending to express any definitive opinion in this matter, we must say that it is difficult to see any interest or estate in common among these several defendants, that would authorize the rights of the absent parties to be represented in the litigation by those upon whom process has been served, and who have appeared to defend the suit. Their title to the land claimed by the complainant is separate and independent, without any thing in common, it would seem, that could have the effect to make a decree against one binding upon the others, or even require them to join in the defence. Smith et al. v. Swormstedt et al. 16 How. 288. We do not intend, however, to pursue this branch of the case.

As it respects the cross-bill, it may be proper to observe that the matters sought to be brought into the controversy between the complainants in that, and their co-defendants, do not seem to have any connection with the matters in controversy with the complainant in the original bill. Nor is it perceived that he has any interest or concern in that controversy. These two complainants in the cross-bill set up a title to the lands is dispute, which, they insist, is paramount to that of their co-defendants, and seek to obtain a decree to that effect, and to have the possession delivered to them. This is a litigation exclusively between these parties, and with which the complainant in the original bill should not be embarrassed, or the record incumbered. The same matter has been set up in their answer to the original bill, against the equitable title claimed by the complainant, presenting the only issue in which he is interested, and upon which the questions between them can be heard and determined.

A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defence to the original bill, or to obtain full and complete relief to all parties, as to the matters charged in the original bill.

It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it.

It is said by Lord Hardwicke, that both the original and cross-bill constitute but one suit, so intimately are they connected together. Field v. Schieffelin, 7 J. Ch. R. 252.

The office of a cross-bill has been very fully discussed at this term, by Mr. Justice Curtis, in the case of Victoire Shields et al. v. Barrow; and I need not, therefore, pursue it, but refer only to that opinion for the true doctrine on the subject.

It is manifest, from this brief reference to the doctrine, that any decision or decree in the proceedings upon the cross-bill is not a final decree in the suit, and, therefore, not the subject of an appeal to this court, under the 22d section of the judiciary act. The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal brings up all the proceedings for re examination, when the party aggrieved by any determination in respect to the cross-bill has the opportunity to review it, as in the case of any other interlocutory proceeding in the cause.

For these reasons, the appeal in this case must be dismissed, for want of jurisdiction, and the case remanded to the court below.

Mr. Justice CATRON concurred in the judgment, but dissented from the reasoning.

Mr. Justice CATRON.

In this instance, the bill and cross-bill are but one suit, and ought regularly to have been heard at the same time; and if an appeal was prosecuted from the decree to this court, by any party who supposed himself to be aggrieved, the whole suit would necessarily be brought up.

Here the cross-bill was heard and dismissed, pending the original suit of which it was part. The decree pronounced was partial; and as no appeal lies from any but a final decree, and this decree not being final, the consequence is, that this court has no jurisdiction to examine the merits presented and insisted on in the argument. All that we can properly do is to dismiss the appeal, because it brought up nothing. Now, as to the matters discussed in the opinion just delivered, founded on a copy of the proceedings had below, and filed in this court, I can only say that I have no opinion in regard to them, never having even road the record further than to ascertain that this court had no jurisdiction in the supposed case presented to us. I therefore concur in the judgment that the case shall be dismissed, for want of jurisdiction, without going further.

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

title: Ayres v. Carver/Opinion of the Court


text: Talk:Ayres v. Carver/Opinion of the Court

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Page:Dictionary of National Biography volume 58.djvu/36

Underhill was certainly the first Sanco in Ravenscroft's ‘Wrangling Lovers’ and Old Jollyman in D'Urfey's ‘Madame Fickle.’ During 1677 he appears to have been confined in the Poultry Compter (apparently for debt, at the suit of William Allen). His liberty was demanded in April by Sir Allen Apsley, on the ground that he was one of the Duke of York's menial servants; but the gaolers hesitated to comply with the request until the case was put before the House of Lords (Hist. MSS. Comm. 9th Rep. App. ii. 94). The same year saw him as the original Blunt in Mrs. Behn's ‘Rover.’ In 1678 he was the first Ajax in Bankes's ‘Destruction of Troy,’ Sir Noble Clumsey in Otway's ‘Friendship in Fashion,’ Pimpo in D'Urfey's ‘Squire Oldsapp,’ Fabio in ‘Counterfeits’ (attributed to Leanard), and Phæax in Shadwell's ‘Timon of Athens.’ In 1679 he was Thersites in Dryden's alteration of ‘Troilus and Cressida,’ and Tickletext in Mrs. Behn's ‘Feigned Courtezans.’ In Otway's ‘History and Fall of Caius Marius,’ taken from ‘Romeo and Juliet,’ he was in 1680 the first Sulpitius (Mercutio). Mrs. Barry, in the epilogue to this, speaks of those who come here wrapt in cloaks, Only for love of Underhill and Nurse Nokes. In the same year Underhill's name stands to Amble, a trifling part in D'Urfey's ‘Virtuous Wife.’ Genest thinks it should be Brainworm. Underhill was also the first Circumstantio in Maidwell's ‘Loving Enemies.’ In the second part of Mrs. Behn's ‘Rover,’ 1681, as in the first part, he was the original Blunt. He was also Gomez in the first production of Dryden's ‘Spanish Friar.’ In D'Urfey's ‘Royalist’ in 1682 he was Copyhold; in Mrs. Behn's ‘False Count’ Guzman, and in Ravenscroft's ‘London Cuckolds’ Wiseacre.

On the union of the two companies Underhill came out on 4 Dec. 1682 at the Theatre Royal as Curate Eustace in the production of Dryden's ‘Duke of Guise.’ On 6 Feb. 1685, while ‘Sir Courtly Nice’ was being rehearsed, Underhill had to inform the author, Crowne, of the death of Charles II, by whose command the comedy had been written. When, however, the play was produced shortly afterwards, he achieved a great success as Hothead (cf. GENEST, i. 439). At the Theatre Royal he remained thirteen years, playing the following parts, all original: in 1684 Daredevil in Otway's ‘Atheist,’ Turbulent in the ‘Factious Citizen;’ in 1685, Hothead in ‘Sir Courtly Nice;’ in 1686, Don Diego in D'Urfey's ‘Banditti;’ in 1687, Dr. Baliardo in Mrs. Behn's ‘Emperor of the Moon;’ in 1688, Lolpoop in Shadwell's ‘Squire of Alsatia,’ a soldier in Mountfort's ‘Injured Lovers;’ in 1689, Old Ranter in Crowne's ‘English Friar,’ Oldwit in Shadwell's ‘Bury Fair;’ in 1690, Bernardo in Shadwell's ‘Amorous Bigot,’ Mufti in Dryden's ‘Don Sebastian,’ Guzman in Mountfort's ‘Successful Strangers,’ Timerous in Mrs. Behn's posthumous ‘Widow Ranter;’ in 1691, Sassafras in Mountfort's ‘Greenwich Park,’ Sir Rowland Rakehell in D'Urfey's ‘Love for Money;’ in 1692, Hiarbas in Crowne's ‘Regulus,’ Captain Dryrub in Southerne's ‘Maid's Last Prayer;’ in 1693, Setter in Congreve's ‘Old Bachelor,’ Stockjob in D'Urfey's ‘Richmond Heiress,’ Sir Maurice Meanwell in Wright's ‘Female Vertuosoes’ (sic), Lopez in Dryden's ‘Love Triumphant;’ in 1694, Sancho in the second part of D'Urfey's ‘Don Quixote’ (Doggett was Sancho in the first part), Sampson in Southerne's ‘Fatal Marriage,’ Sir Barnaby Buffler in Ravenscroft's ‘Canterbury Guests.’ He also played a Plebeian in ‘Julius Cæsar;’ the Cook in ‘Rollo, Duke of Normandy;’ and, if J. P. Collier may be trusted, Smug in the ‘Merry Devil of Edmonton.’

At the theatre in Little Lincoln's Inn Fields he was in 1695 the original Sir Sampson Legend in Congreve's ‘Love for Love’ (a part in which, according to Cibber, he was unrivalled); in 1696 Sir Topewell Clownish in Motteux's ‘Love's a Jest,’ Sir Thomas Testie in Doggett's ‘Country Wake,’ Sir Toby Cusifle in Granville's ‘She Gallants,’ Alderman Whim in Dilke's ‘Lover's Luck;’ in 1697 Bevis in Dilke's ‘City Lady,’ the Doctor in Ravenscroft's ‘Anatomist, or the Sham Doctor,’ Sir Blunder Bosse in D'Urfey's ‘Intrigues at Versailles,’ Flywife in Mrs. Pix's ‘Innocent Mistress’; and played Cacafogo in a revival of ‘Rule a Wife and have a Wife.’ The next year saw him as the original Sir Wealthy Plainder in Dilke's ‘Pretenders;’ and in 1700 Sir Wilfull Witwoud in Congreve's ‘Way of the World.’ In 1702 followed Merryman in Betterton's ‘Amorous Widow.’ His name now appeared less frequently. On 8 Feb. 1704 ‘Œdipus’ and ‘Rover’ were played for his benefit, and he played at court Timothy in a revival of ‘Sir Solomon.’ ‘The Virtuoso’ was played for his benefit on 31 March 1705, the last night of playing that season at Lincoln's Inn Fields.

On 5 Dec. 1706 he played at the Haymarket Sir Joslin Jolley in a revival of ‘She would if she could,’ a part in which in the following month he was replaced by Bullock; and on 20 Jan. 1707 he repeated Blunt in the ‘Rover.’ The ‘Mourning


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Hays v. Pacific Mail Steam-Ship Company

THIS case was brought up, by writ of error, from the district court of the United States for the northern district of California.

The case is stated in the opinion of the court.

It was argued by Mr. Brent and Mr. May, for the plaintiff in error, and by Mr. Davidge and Mr. Vinton, for the defendants.

Mr. Justice NELSON delivered the opinion of the court.

title: Hays v. Pacific Mail Steam-Ship Company


text: Talk:Hays v. Pacific Mail Steam-Ship Company


text:
Hays v. Pacific Mail Steam-Ship Company/Opinion of the Court

This is a writ of error to the district court for the northern district of California.

The suit was brought in the district court, by the company, to recover back a sum of money which they were compelled to pay to the defendant, as taxes assessed in the State of California, upon twelve steam-ships belonging to them, which were temporarily within the jurisdiction of the State.

The complaint sets forth, that the plaintiffs are an incorporated company by the laws of New York; that all the stockholders are residents and citizens of that State; that the principal office for transacting the business of the company is located in the city of New York, but, for the better transaction of their business, they have agencies in the city of Panama, New Grenada, and in the city of San Francisco, California; that they have, also, a naval dock and ship-yard at the port of Benicia, of that State, for furnishing and repairing their steamers; that, on the arrival at the port of San Francisco, they remain no longer than is necessary to land their passengers, mails, and freight, usually done in a day; they then proceed to Benicia, and remain for repairs and refitting until the commencement of the next voyage, usually some ten or twelve days; that the business in which they are engaged is in the transportation of passengers, merchandise, treasure, and the United States mails, between the city of New York and the city of San Francisco, by way of Panama, and between San Francisco and different ports in the Territory of Oregon; that the company are sole owners of the several vessels, and no portion of the interest is owned by citizens of the State of California; that the vessels are all ocean steam-ships, employed exclusively in navigating the waters of the ocean; that all of them are duly registered at the custom-house in New York, where the owners reside; that taxes have been assessed upon all the capital of the plaintiffs represented by the steamers in the State of New York, under the laws of that State, ever since they have been employed in the navigation, down to the present time; that the said steam-ships have been assessed in the State of California and county of San Francisco, for the year beginning 1st July, 1851, and ending 30th June, 1852, claiming the assessment as annually due, under an act of the legislature of the State; that the taxes assessed amount to $11,962.50, and were paid under protest, after one of the vessels was advertised for sale by the defendant, in order to prevent a sale of it.

To this complaint the defendant demurred, and the court below gave judgment for the plaintiffs.

By the 3d section of the act of congress of 31st December, 1792, it is provided that every ship or vessel, except as thereafter provided, shall be registered by the collector of the district, in which shall be comprehended the port to which the ship or vessel shall belong at the time of her registry, and which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, nearest to the place where the husband, or acting and managing owner usually resides; and the name of the ship, and of the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters of not less than three inches in length; and if any ship or vessel of the United States shall be found without having her name, and the name of the port to which she belongs, painted in the manner mentioned, the owner or owners shall forfeit fifty dollars.

And by the act of 29th July, 1850, (9 Stats. at Large, 440,) it is provided that no bill of sale, mortgage, or conveyance of any vessel shall be valid against any person other than the grantor, &c., and persons having actual notice, unless such bill of sale, mortgage, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.

These provisions, and others that might be referred to, very clearly indicate that the domicile of a vessel that requires to be registered, if we may so speak, or home port, is the port at which she is registered, and which must be the nearest to the place where the owner or owners reside. In this case, therefore, the home port of the vessels of the plaintiffs was the port of New York, where they were duly registered, and where all the individual owners are resident, and where is also the principal place of business of the company; and where, it is admitted, the capital invested is subject to State, county, and other local taxes.

These ships are engaged in the transportation of passengers, merchandise, &c., between the city of New York and San Francisco, by the way of Panama, and between San Francisco and different ports in the territory of Oregon. They are thus engaged in the business and commerce of the country, upon the highway of nations, touching at such ports and places as these great interests demand, and which hold out to the owners sufficient inducements by the profits realized or expected to be realized. And so far as respects the ports and harbors within the United States, they are entered and cargoes discharged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belongs the regulation of commerce with foreign nations and between the States.

Now, it is quite apparent that if the State of California possessed the authority to impose the tax in question, any other State in the Union, into the ports of which the vessels entered in the prosecution of their trade and business, might also impose a like tax. It may be that the course of trade or other circumstances might not occasion as great a delay in other ports on the Pacific as at the port of San Francisco. But this is a matter accidental, depending upon the amount of business to be transacted at the particular port, the nature of it, necessary repairs, &c., which in no respect can affect the question as to the situs of the property, in view of the right of taxation by the State.

Besides, whether the vessel, leaving her home port for trade and commerce, visits, in the course of her voyage or business, several ports, or confines her operations in the carrying trade to one, are questions that will depend upon the profitable returns of the business, and will furnish no more evidence that she has become a part of the personal property within the State, and liable to taxation at one port than at the others. She is within the jurisdiction of all or any one of them temporarily, and for a purpose wholly excluding the idea of permanently abiding in ths State, or changing her home port. Our merchant vessels are not unfrequently absent for years, in the foreign carrying trade, seeking cargo, carrying and unlading it from port to port, during all the time absent; but they neither lose their national character nor their home port, as inscribed upon their stern.

The distinction between a vessel in her home port and when lying at a foreign one, or in the port of another State, is familiar in the admiralty law, and she is subjected, in many cases, to the application of a different set of principles. 7 Pet. 324; 4 Wheat. 438.

We are satisfied that the State of California had no jurisdiction over these vessels for the purpose of taxation; they were not, properly, abiding within its limits, so as to become incorporated with the other personal property of the State; they were there but temporarily, engaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid.

An objection is taken to the recovery against the collector, on the ground, mainly, that the assessment under the law of California, by the assessors, was a judicial act, and that the party should have pursued his remedy to set it aside according to the provisions of that law.

We do not think so. The assessment was not a judicial, but a ministerial act, and as the assessors exceeded their powers in making it, the officer is not protected.

The payment of the tax was not voluntary, but compulsory, to prevent the sale of one of the ships.

Our conclusion is, that the judgment of the court below is right, and should be affirmed.

Mr. Justice DANIEL dissented, and Mr. Justice CAMPBELL concurred in the judgment of the court, upon the ground stated in his opinion.

Mr. Justice DANIEL.

I dissent from the decision of the court in this case, it being my opinion that neither the circuit court nor this court could take jurisdiction over the parties to this suit; and that, therefore, this cause should be remanded to the district court, with directions to dismiss it for want of jurisdiction.

Mr. Justice CAMPBELL.

I concur in the judgment. But I concur only in consequence of the facts stated in the declaration, and which are admitted by the demurrer. The material fact is, that the vessels were in transitu, having no silus in California, nor permanent connections with its internal commerce.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of California, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said district court in this cause be and the same is hereby affirmed, with costs, and interest until paid, at the same rate per annum that similar judgments bear in the courts of the State of California.


text: Talk:Hays v. Pacific Mail Steam-Ship Company/Opinion of the Court


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Christy v. Alford

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

The case is stated in the opinion of the court.

It was submitted upon printed arguments, by Mr. Crittenden, Mr. Hughes, and Mr. Lawrence, for the plaintiff in error, and by Mr. Hill and Mr. Henderson, for the defendant.

Mr. Justice CURTIS delivered the opinion of the court.

title: Christy v. Alford


text: Talk:Christy v. Alford

title: Talk:Christy v. Alford


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Christy v. Alford/Opinion of the Court

This case comes before us by a writ of error to the district court for the district of Texas. It was an action of trespass, to try the title to a tract of land. On the trial, the defendant relied on the 15th section of the statute of limitations, passed in 1841, by the congress of the then Republic of Texas, which is in the following words: 'Every suit to be instituted to recover real estate, as against him, her, or them, in possession, under title or color of title, shall be instituted within three years next after cause of action shall have accrued, and not afterwards, saving,' &c.

In reference to this defence the district judge instructed the jury, that a possession under the said 15th section might be in two or more, holding in privity, one under another; and if the possession of both so holding will make out the term prescribed by said section, and he sued has title or color of title, then the bar will be effectual.

The plaintiff excepted to this instruction, and the jury found a verdict for the defendant.

Several objections to this instruction have been relied on in this court. The first is, that a holding by two persons, for the space of three years, one claiming and holding in privity with the other, does not satisfy the statute; that the person who is sued must himself have held for the space of three years. The argument is, that the period of three years begins to run when 'cause of action shall have accrued;' that the statute does not say when a cause of action, or the first cause of action accrued, but, when cause of action accrued; that cause of action accrues against each tenant, in succession, when he enters, whether he come into the land in privity with the preceding occupant or not; for each is a trespasser by an unlawful entry; that the statute refers, not to the cause of action which first accrues to the plaintiff by reason of an unlawful entry, but to the cause of action which accrues to him by reason of the entry of the particular person sued. It is conceded that this construction of the statute is not in conformity with the put upon the 21 Jac. I. ch. 16, and its re enactments in this country; but it is insisted that the particular terms of the statute in question call for a different interpretation, bacause the bar therein provided for is confined to certain cases therein enumerated, and is not applicable to all cases of adverse holding for the space of three years.

It must be admitted that the bar afforded by the 15th section of the statute is confined to the particular cases therein described; but the question is, whether that description excludes cases where there has been an adverse holding for three years, by different persons holding in privity with each other; and we are of opinion that such cases are included in the 15th section. We think both the language of the law and its subject-matter, as well as the analogous cases respecting the interpretation of similar statutes, call for this construction. The plaintiff would read the law as if it had said, 'within three years next after cause of action shall have accrued' against the person sued. But these words are not in the law, nor would the court be justified in interpolating them. It is true, the only cases enumerated in the law are suits against persons in possession under title or color of title. But the definitions of the terms, title and color of title, which immediately follow, are: 'By the term title, as used in this section, is meant a regular chain of transfer from and under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him, her, or them, in possession, without being regular, as if one or more of the memorials, or muniments, be not registered or not duly registered,' &c. It is quite plain, therefore, that when this section speaks of a suit against one in possession under title or color of title, it is not confined to cases in which the defendant was the first to enter under that title. If he be in a regular chain of transfer from and under the sovereignty of the soil, or in a consecutive chain of such transfer, though informal in its instruments, he is a defendant within the descriptive words of this section; and it is wholly immaterial whether he was the first taker from the sovereign of the soil or not.

The words, 'as against him, her, or them in possession, under title of color of title,' restrict the benefit of this bar to those persons who hold under such a title; the words, 'shall be instituted within three years next after cause of action shall have accrued, and not afterwards,' prescribe the length of time during which cause of action must have existed, by reason of an adverse holding under such a title. And as, by the very terms of the act, the person setting up this bar must be in a chain of transfer from the sovereignty of the soil down to himself, it necessarily follows that the defendant setting up the bar must be in privity with his predecessors in the title, and that he cannot rely on the title or possession of any one under whom he does not claim. There is nothing in the act to restrict the party sued from relying on the possession of any predecessor in that title under the sovereignty of the soil, which has come to himself, and the purpose of the act requires that he should be allowed to do so. That purpose was to give repose to such titles by three years' adverse possession. But if the construction contended for by the plaintiff in error were adopted, three years' possession under that title, by one person, would not quiet that title. If a descent were cast, or an alienation took place, after three years had elapsed, a right of action would accrue against the heir or purchaser who should enter, and that action would not be barred because the defendant had not himself held possession for three years.

This would be an extraordinary anomaly. At the common law a descent cast tolled the right of entry, because the heir came in by operation of law; and a discontinuance was worked by the alienation of a tenant in tail, so that the alienee could not be entered on by the heir in tail. These rules of the common law were changed, in part, by the 32 Hen. VIII. ch. 33, and have been wholly abrogated in most of the United States; but that the title of the heir or alienee should be worse than that of the ancestor or grantor, and that an action, wholly barred against the latter, should be revived and be in force upon an entry by the former, under a title already protected by the act, would indeed be strange. We see nothing in the language or objects of the law, and certainly there is nothing in the decisions under analogous laws, calling for this interpretation.

Though we do not know that the supreme court of Texas has had occasion to decide the precise question here presented, that learned court has repeately expressed views of this section of the act of 1841, in accordance with those we have above given. In Wheeler v. Moody, 9 Texas R. 377, that court, in considering a defence set up under the 15th section of this act, say: 'The possession need not be continued by the same person; but, when held by different persons, it must be shown that a privity existed between them.' So, in Horton v. Crawford, 10 Texas R. 390, speaking of the time when the cause of action accrues, within the meaning of this section, they say: 'When does the cause of action accrue? Unquestionably, at the instant of possession taken under the circumstances specified in the statute; namely, under title or color of title, according to the definition of those terms given in the law itself.' See, also, ''Portis et UX. v. Hill's Administrator,'' 3 Texas R. 273.

We understand, therefore, that our views of this statute are in accordance with those of the supreme court of Texas, so far as that learned court has had occasion to express any opinion on the subject; and we hold, in the terms laid down by them in the case of Wheeler v. Moody, that, under the 15th section of the act of 1841, the possession need not be continued by the same person, and that, consequently, the instruction of the district court, in this particular, was correct.

But it is further objected, that the instruction given did not require that the first holder should have been in under title or color of title, but only that the person sued should have title or color of title; and that this instruction would allow the benefit of this bar to one having title, and a possession of less than three years, if he claimed in privity with another who had previously possessed without title. But the instruction must be taken with reference to the admitted facts upon which it was given. Those facts were: 'It was proved by the admissions of the parties by their attorneys, that L. P. Alford and the defendant, by a union of the several possessions, had, next before the commencement of the plaintiff's action, peaceable, adverse, and uninterrupted possession, for more than three years, claiming under color of title, of six hundred and forty acres of land, by virtue of said Alford's head-right certificate, duly recommended, duly surveyed, and returned to the general land-office, and within the boundary of both of the one-league surveys of plaintiff, described and mentioned in the second and third count of his petition.'

There was no room to argue, nor could the jury find that any part of the three years' possession was held without color of title, for the contrary is expressly admitted. In reference to the particular facts of this case, the instruction was not erroneous in the particular complained of.

It is also urged that, in addition to what was said by the court, the jury should have been told that the defendant, having no title or color of title such as that prescribed by the statute, could not have the benefit of the bar, by virtue of the title or color of title of Alford, under whom he claimed; for the reason that, claiming a bar under the statute, he had to show the circumstances prescribed by it; and the title prescribed having to be a transfer down to him in possession, the requirement was not complied with by showing a title in him under whom he calimed; and the consequence is, that the defendant, instead of proving himself within the rule required, shows himself out of it, and not entitled to the bar.

But, upon the facts agreed, this position is not tenable. It was agreed that the defendant's possession was under color of title, by virtue of Alford's head-right certificate; and the instruction given by the court required the jury to find that the defendant claimed in privity with Alford; and this privity is also admitted, for he could be in under color of Alford's head-right only by force of a consecutive chain of transfer through Alford from the sovereignty of the soil.

He was, therefore, not setting up color of title in another, but in himself. It is true, the record does not show how this privity was created, nor that the defendant was in a consecutive chain of transfer. But the necessity for this proof was done away by the admission of the plaintiff, that the defendant was in possession under color of title; for, as has just been observed, this was equivalent to an admission that he was in under such a chain of transfer from the sovereignty of the soil.

It has also been urged, that the 14th section of this statute allows an entry within ten years next after the right accrues. We are spared the necessity of discussing this question at large, because it has been distinctly decided by the supreme court of Texas, in Horton v. Crawford, 10 Texas R. 382; and we concur entirely in the correctness of the reasoning by which it is there shown that the 14th section of the act has no effect upon the bar created by the 15th section.

The other matters assigned for error related exclusively to the plaintiff's title. But as the bar under the 15th section of the statute of limitations was complete and effectual upon the conceded facts, there can be no error in the judgment in favor of the defendant, even if the court ruled erroneously in respect to the title of the plaintiff; and we have not considered these alleged errors, and give no opinion thereon.

The judgment of the district court is affirmed, with costs.

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

title: Christy v. Alford/Opinion of the Court


text: Talk:Christy v. Alford/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Leigh, James Mathews


text:
Dennistoun v. Stewart (58 U.S. 606)

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

The case is stated in the opinion of the court.

It was argued by Mr. Phillips, for the plaintiffs in error, no counsel appearing for the defendant.

Mr. Justice GRIER delivered the opinion of the court.

title: Dennistoun v. Stewart (58 U.S. 606)


text: Talk:Dennistoun v. Stewart (58 U.S. 606)


text:
Dennistoun v. Stewart (58 U.S. 606)/Opinion of the Court

The plaintiffs declared against the defendant, as drawer of a bill of exchange, by the name and style of James Reid and Co., of which the following is a copy:--

'No. ___. 4,417 14s. 11d. st'g.

Mobile, Sept. 9, 1850.

'Sixty days after sight of this first of exchange, (second and third unpaid,) pay to the order of ourselves, in London, forty-four hundred and seventeen pounds, 14s. 11d. st'g, value received, and charge the same to account of 1,058 bales cottom per 'Windsor Castle.'

'Your obedient servants,

'Pr. pro JAMES REID AND CO.,

'WM. MOULT, JR.

'To HY. GORE BOOTH, ESQ., Liverpool.

'Acceptance across the face of the bill.

'Seventh October, 1850. Accepted for two thousand five hundred and seventy-one pounds eighteen shillings and seven pence, being balance unaccepted for acpt. 1,058 bf. cotton, pr. Windsor Castle, payable at Glyn and Co.

'Pr. pro HENRY GORE BOOTH,

'AND. E. BYRNE.

'Due 9 Decem.

'Indorsed:

'Pay Messrs. A. Dennistoun and Co., or order,

'Pr. pro JAMES REID AND CO.,

'WM. MOULT, JR.'

After reading this bill, with its indorsements, the plaintiff offered in evidence a regular protest; indorsed on a copy of a bill agreeing in every particular with the above, except that for 'And. E. Byrne' was written 'Chas. Byrne.'

The defendant objected to the reading of the protest in evidence, because it did not describe the bill of exchange produced by the plaintiffs, but a different bill. The court sustained this objection, and excluded the protest from the jury, which is the subject of the first bill of exceptions.

A protest is necessary by the custom of merchants in case of a foreign bill, in order to charge the drawer. It is defined to be in form 'a solemn declaration written by the notary under a fair copy of the bill, stating that the payment or acceptance has been demanded and refused, the reason, if any, assigned, and that the bill is, therefore, protested.'

A copy of the bill, it is said, should be prefixed to all protests, with the indorsements transcribed verbatim. 1 Pardess. 444; Chitty on Bills, 458.

However stringent the law concerning mercantile paper, with regard to protest, demand, and notice, may appear, it is nevertheless founded on reason and the necessities of trade. It exacts nothing harsh, unjust, or unreasonable. A protest, though necessary, need only be noted on the day on which payment was refused. It may be drawn and completed at any time before the commencement of the suit, or even before the trial, and consequently may be amended according to the truth, if any mistake has been made.

The copy of the bill is connected with the instrument certifying the formal demand by the public officer, as the easiest and best mode of identifying it with the original. Mercantile paper is generally brief, and without the verbiage which extends and enlarges more formal legal instruments. Hence, it is much easier to give a literal copy of such bills, than to attempt to identify them by any abbreviation or description. The amount, the date, the parties, and the conditions of the bill, form the substance of every such instrument. Slight mistakes, or variances of letters, or even words, when the substance is retained, cannot and ought not to vitiate the protest. A lsot bill may be protested, when the notary has been furnished with a sufficient description, as to date, amount, parties, &c., to identify it.

In indictments for forgery, it is not sufficient to state the 'substance and effect' of the instrument; it must be laid according to the 'tenor,' or exact letter; but the law merchant demands no such stringency of construction. The sharp criticism indulged when the life of a prisoner is in jeopardy cannot be allowed for the purpose of eluding the payment of just debts.

It is unnecessary that a copy of the protest should be included in the notice to the drawer and indorsers. The object of notice is to inform the party to whom it is sent that payment has been refused by the maker, and that he is held liable. Hence such a description of the note as will give sufficient information to identify it, is all that is necessary. What was said by Mr. Justice Story, in delivering the opinion of this court, in Mills v. The Bank of the United States, with regard to variances and mistakes in notices, will equally apply to protests: 'It cannot be for a moment maintained that every variance, however immaterial, is fatal. It must be such a variance as conveys no sufficient knowledge to the party of the particular note which has been dishonored. If it does not mislead him, if it conveys to him the real fact, without any doubt, the variance cannot be material, either to guard his rights or avoid his responsibility.'

In the case before us, the protest had an accurate copy of every material fact which could identify the bill-the date, the place where drawn, the amount, the merchandise on which it was drawn, the ship by which it was sent, the balance on the cotton for which it was accepted, the names of drawers, acceptor, indorsers; in fine, every thing necessary to identify the bill. The only variance is a mistake in copying or deciphering the abbreviations and flourishes with which the christian name of the acceptor's agent is enveloped. The abbreviation of 'And.' has been mistaken for Chas., and the middle letter E. omitted. The omission of the middle letter would not vitiate a declaration or indictment. Nor could the mistake mislead any person as to the identity of the instrument described.

We are of opinion, therefore, that the objection made to this protest, 'that it does not describe the bill of exchange produced, but a different bill,' is not true in fact, and should have been overruled by the court.

The renders it unnecessary for us to notice the offer of testimony to prove the identity, which was also overruled by the court.

The judgment of the circuit court is reversed, and venire de novo awarded.

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 Alabama, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to award a venire facias de novo.


text: Talk:Dennistoun v. Stewart (58 U.S. 606)/Opinion of the Court


text:
Griffin v. Reynolds

THIS case was brought up by writ of error from the district court of the United States for the northern district of Mississippi.

The case is stated in the opinion of the court.

It was argued by Mr. Reverdy Johnson, Jr., and Mr. Reverdy Johnson, with whom was Mr. Adams, for the plaintiffs in error, and by Mr. Lawrence, for the defendant in error.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Griffin v. Reynolds


text: Talk:Griffin v. Reynolds

title: Talk:Griffin v. Reynolds


text:
Griffin v. Reynolds/Opinion of the Court

The defendant recovered a judgment in the district court, for damages sustained by the breach of a covenant of warranty of title to land in Alabama, contained in a conveyance of the plaintiffs to him.

To establish the existence of an outstanding paramount title at the date of the conveyance, the defendant relied upon a judgment and execution in a suit in ejectment, commenced in Alabama, for the land, a few days after the date of the deed, to which the plaintiff (Griffin) was a defendant, and which resulted in a judgment against him, that was followed by a writ of possession, which is returned 'executed.' It appears, from the evidence, that the defendant was called by the plaintiff in the ejectment suit as a witness, though it is not clear to what fact in issue. Objection was made that the record of the suit could not be used under these circumstances. The district court admitted the record, but referred it to the jury to determine whether his testimony was material, and, if so, to disregard the evidence.

This ruling is assigned as error. There are authorities to the point that a record of a verdict and judgment cannot be used in favor of one who has contributed, by his evidence, to their recovery, (18 John. 351; 4 Day, 431; 2 Hill and Cow. notes 5;) and one of the reasons assigned for confining the use of judgments to the parties and privies to them is, that a stranger may have produced them by his testimony. But the court is of opinion that this exception to the general rule, defining the parties by whom the evidence may be used, would introduce an inconvenient collateral inquiry, and that no practical evil will result from maintaining the general rule unimpaired; and that it is important that the rules of evidence should be broad and well defined.

The record in the present suit should have been admitted, without any reservation. Blakemore v. Glamorganshire Canal Co. 2 C. M. and R. 133.

There was some doubt upon the trial whether the issue of the defendant could be sustained by this evidence, and therefore he attempted to prove the existence of a paramount title in the lessors of the plaintiff in the ejectment suit. For this purpose he proved that the land had belonged to one Oliver, who, in 1838, conveyed it to trustees, to secure certain liabilities described in the deed, and that under this deed the property had been recovered; that the plaintiff's title came from Oliver, by sheriff's deeds, dated in 1841, and was inferior to that of the trustees. To prove the deed of trust, he introduced a copy from the records of the probate court in Alabama, where it had been recorded, but gave no evidence to account for the original.

At the date of the copy there was no law in Alabama which authorized the use of copies in place of and without accounting for the original; and in relation to deeds of trust, the registry acts of that State merely required their registration for the purpose of giving notice, but did not assign any value to the record as evidence in courts, nor has any statute of Mississippi enlarged the operation of the statute of Alabama in that State. Bradford v. Dawson, 2 Ala. 203; 5 Ib. 297; 13 Ib. 370. We think that this copy should not have been admitted.

The deed from the plaintiff to the defendant, in which the warranty is contained, is an original and absolute deed, duly acknowledged and recorded; and the act which authorizes the acknowledgment also provides that it shall be admitted as evidence in courts without further proof. Clay's Dig. 161, § 1; Robertson v. Kennedy, 1 Stew. 245.

We think that, under the decisions of this court, this deed was properly admitted. Owings v. Hull, 9 Pet. 607.

The court was requested by the plaintiffs 'to instruct the jury that this is an action for damages, and that the plaintiff can only recover the value of the part lost, if a part only was lost at the time of the eviction, in proportion to the amount he paid,' which charge was refused; and the jury was instructed 'that if the plaintiff had not lost all the land conveyed to him by the defendant, then the jury might allow him the average value of the part lost, in proportion to the price paid for the whole. The charge given by the court is erroneous. The measure of damages is the loss actually sustained by the eviction from the land for which the title has failed, and that damage would not usually be ascertained by taking the average value, though the recovery could not exceed the consideration paid, interest, and expenses of suit. The joinder of the wife with the husband, in this action, is also assigned for error. The statutes of Alabama authorize the wife to bar her claim to dower by such a conveyance as this, but do not enlarge her power to enter into personal engagements or to incur responsibilities for the title. George v. Gooldsby, 23 Ala. 327; Hughes v. Williamson, 21 Ib. 296.

There is a misjoinder of parties. But this objection is taken here, for the first time; and the difficulty may be obviated by a nolle prosequi in the district court, which is allowable under the decisions of this court. Minor v. Bank of Alexandria, 1 Pet. 46; United States v. Leffler, 11 Ib. 86; Amis v. Smith, 16 Ib. 303.

Judgment reversed and cause remanded.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said district 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 district court, with directions to award a venire facias de novo.


text: Talk:Griffin v. Reynolds/Opinion of the Court


text:
Page:Dictionary of National Biography volume 58.djvu/37

 Bride’ was given for his benefit on 28 May. On 3 June 1709 a performance of ‘Hamlet’ was given at Drury Lane ‘for the benefit of Cave Underhill, the old comedian,’ who played once more the first Gravedigger. This character he repeated on 23 Feb. 1710. On 12 May he was, for his benefit, once more Trincalo in Dryden's ‘Tempest.’ This was his last performance at Drury Lane.

He was seen once, on 26 Aug. 1710, at Pinkethman's booth at Greenwich, where, for the benefit of Pinkethman, the part in the ‘Rover’ of Ned Blunt was acted ‘by the famous true comedian, Cave Underhill, to oblige Pinkethman's friends.’ This was Underhill's last appearance. His death is said to have taken place ‘soon after.’ He was in his late years a pensioner of the theatre. In his advertisement in the ‘Tatler’ he stated that he had acted under four reigns, was not now able to perform so often as heretofore, and had had losses to the value of near 2,500l. He was commonly called Trincalo Underhill; and his name was sometimes spelt Undril.

Under the date 30 May 1709 Steele in the ‘Tatler’ (No. 22), dating from Will's coffee-house, speaks to his friends ‘on behalf of honest Cave Underhill, who has been a comic for three generations: my father admired him extremely when he was a boy. There is certainly nature excellently represented in his manner of action, in which he ever avoided that general fault in players of doing too much.’ Cibber speaks of Underhill as being at the time he (Cibber) joined the company at the Theatre Royal one of the principal actors who ‘were all original masters in their different stile, not mere auricular imitators of one another, which commonly is the highest merit of the middle rank, but self-judges of nature from whose various lights they only took their true instruction’ (Apology, ed. Lowe, i. 99). In his ‘Brief Supplement’ Tony Aston disparages Underhill, saying that he knows Underhill was much cried up in his time, but he (Aston) is so stupid as not to know why. Underhill was, he says, ‘about fifty years of age the latter end of King William's reign, about six foot high, long and broad faced,’ and something inclined to corpulence. ‘His face very like the Homo Sylvestris or Champanza, for his nose was flattish and short, and his upper lip very long and thick, with a wide mouth and short chin, a churlish voice and awkward action’ (ib. ii. 308). Cibber praises Underhill for the very gifts for which he is censured by Aston (i. 154). Cibber speaks of the want of proportion in his features, which, ‘when soberly composed, with an unwandering eye hanging over them, threw him into the most lumpish, moping mortal that ever made beholders merry.’ Davies says that he was a jolly and droll companion, a tavern-haunter, dividing his time between Bacchus and Venus, a martyr to gout, acting till he was past eighty, and he adds (following Tom Brown) that he possessed an admirable vein of pleasantry, and told stories with a bewitching smile. In Brown's ‘Letters from the Dead to the Living’ is a scurrilous epistle from ‘Tony’ Lee or Leigh to Cave Underhill, and the reply. On this correspondence the charges of drunkenness and immorality against Underhill seem to rest.

An anonymous comedy, ‘Win her and take her, or Old Fools will be Meddling,’ 4to, 1691, acted at the Theatre Royal the same year, was dedicated by Underhill to Lord Danby. It is supposed to have been given to Underhill by the anonymous author, who wrote the part of Dullhead expressly for him.

A portrait by Robert Bing, engraved by John Faber, jun., of Underhill as Obadiah in the ‘Committee,’ published in 1712, and reproduced in Cibber's ‘Apology,’ does not bear out Aston's unflattering description of him as an anthropoid ape. The original of this is in the Mathews collection in the Garrick Club.

[Merchant Taylors' Reg. i. 169; Masson's Milton, vi. 351; Cibber's Apology, ed. Lowe; Genest's Account of the English Stage; Biographia Dramatica; Davies's Dramatic Miscellanies; Tom Brown's Works, ed. 1707; British Essayists, ed. Chalmers; Doran's Annals of the English Stage, ed. Lowe; Betterton's English Stage; Dibdin's English Stage; Smith's Cat.; Notes and Queries, 7th ser. x. 206, 276.]  UNDERHILL, EDWARD (fl. 1539–1561), the ‘hot-gospeller,’ came ‘of a worshipful house in Worcestershire,’ and was born probably about 1515 (Collectanea Top. et Gen. vi. 382). His grandfather, John Underhill, originally of Wolverhampton, acquired in 1509 a lease of Eatington, Warwickshire, and left two sons, Edward and Thomas. Edward inherited Eatington, and was father of Thomas Underhill (1518?–1603), a leading protestant, to commemorate whose memory an annual sermon was founded in St. Mary's Church, Warwick; a poetical epitaph on his son Anthony, who predeceased him on 16 July 1587, is said, on flimsy evidence, to have been composed by Shakespeare (, Warwickshire Worthies, pp. 767–9). John Underhill's younger son, Thomas, possibly the Thomas Underhill who,


text:
Jodson v. Corcoran

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The case is stated in the opinion of the court.

It was argued by Mr. Lawrence and Mr. Coxe, for the plaintiff in error, and by Mr. Bradley and Mr. Carlisle, for the defendant.

Mr. Justice CATRON delivered the opinion of the court.

title: Jodson v. Corcoran


text: Talk:Jodson v. Corcoran

title: Talk:Jodson v. Corcoran


text:
Jodson v. Corcoran/Opinion of the Court

Judson brought this suit in equity, to recover $6,000 from William W. Corcoran, in whose favor a decree had been made for about $15,000, by the board of commissioners acting according to the 15th article of our treaty with Mixico of 1848.

Corcoran claimed, as assignee, under Bradford B. Williams and Joseph H. Lord, who were owners of the cargo of the ship Henry Thompson, and which was unlawfully seized and confiscated by the authorities of Mexico.

The claim having been presented to the mixed commission under the convention between the United States and Mexico, of April, 1839, the American members of that board made a report in favor of the claim; but the Mexican commissioners not concurring in the opinion of their colleagues, the case was referred to the umpire, and was returned by him without a decision. It therefore constituted one of that class of cases embraced in the 5th article of the unratified convention of the 20th November, 1843, and which is referred to and incorporated into the 15th article of the treaty of peace of Guadaloupe Hidalgo; and having been modified in some of its provisions, the ratifications were exchanged on 30th May, 1848.

On the 3d March, 1849, an act of congress was passed to carry some of the provisions of this treaty into effect. Among other things, it provided for the establishment of a board of commissioners, 'whose duty it shall be to receive and examine all claims of citizens of the United States upon the Republic of Mexico, which are provided for by the treaty, and to decide thereon according to the provisions of the treaty.'

On the 11th of June, 1845, Bradford B. Williams assigned one half of his interest in the claim in dispute to E. H. Warner. August 15, 1845, Warner assigned the same interest to William B. Hart. October 15, 1846, Williams assigned to Hart the residue of his interest. October 3, 1846, Joseph H. Lord assigned to Hart all his interest in the claim. June 18, 1847, Hart assigned the whole claim to William W. Corcoran.

'By these several assignments, (says the late board,) the whole became vested in the said William W. Corcoran, and the award was therefore made in his favor.'

On the first day of January, 1845, Bradford B. Williams had assigned to William Judson, the complainant, an interest of $6,000, of the amount of the auspended claim pronounced valid by our commissioners, in 1842, with interest from the date of the assignment.

From January, 1845, to June, 1847, about two years and a half, Judson held his assignment without filing any notice of its existence at the Department of State, so that others might have notice of his interest, nor did he set up any pretension until the assignee, Corcoran, had prosecuted the claim to a final award, and was adjudged by the board of commissioners to be the legal owner of the amount awarded; and as legal owner Corcoran is sued.

In regard to the preliminary questions raised at the bar, it may be remarked that we have no doubt the district court had authority to hear and determine the equities of the parties, notwithstanding the judgment in Corcoran's favor by the board of commissioners. The question that an award like the present is not conclusive among adverse claimants, was settled in the case of Comegys v. Vasse, 1 Pet. 193, in 1828, and has not since been open.

And as respects the validity of assignments of claims like the one here presented, no question can be raised at this day, as such assignments have been recognized by the various boards of commissioners and the courts of justice for many years. The case of Comegys v. Vasse, also adjudged this point.

The contest here depends on the merits. Judson had the earliest assignment of part of the amount declared to be due to Williams, by the two United States commissioners, in 1842, to the extent of $6,000, and the claim assigned being a right depending on an equity against the government of Mexico, and assuming that both sets of assignments are alike fair, and originally stood on the same bon a fide footing, the rule of necessity is, that the assignor having parted with his interest by the first assignment, the second assignee could take nothing; and, as he represents his assignor, is bound by the equities imposed on the latter; 1 White and Tudor's Eq. Ca. 236; and hence has arisen the maxim in such cases, that he who is first in time is best in right. But this general rule has exceptions, and the case before us was obviously decided in the court below on an exception to the general rule.

Judson took his assignment in January, 1845, which he first produced in May, 1851, when this bill was filed. In the mean time Corcoran had got his assignment, and immediately gave written notice of it to the Department of State, and August 17, 1847, received an answer from the secretary, recognizing the fact of notice having been received, and that it was filed with the documents of the postponed claim of Williams and Lord, appertaining to the unfinished award.

Corcoran's assignment was fair, and accepted on his part without knowledge of Judson's; nor is the contrary alleged in the bill. And assuming Judson's to be fair also, and that no negligence could be imputed to him, then the case is one where an equity was successively assigned in a chose in action to two innocent persons, whose equities are equal, according to the moral rule governing a court of chancery. Here, Corcoran has drawn to his equity a legal title to the fund, which legal title Judson seeks to set aside, and asks an affirmative decree in his favor to that effect.

Now, nothing is better settled than that this cannot be done. The equities being equal, the law must prevail.

There are other objections to the case made by the appellant, growing out of negligence on his part in not presenting his assignment and claim of property to the State Department, so as to notify others of the fact. The assignment was held up and operated as a latent and lurking transaction, calculated to circumvent subsequent assignees, and such would be its effect on Corcoran, were priority accorded to it by our decree. It is certainly true, as a general rule, as above stated, that a purchaser of a chose in action, or of an equitable title, must abide by the case of the person from whom he buys, and will only be entitled to the remedies of the seller; and yet, there may be cases in which a purchaser, by sustaining the character of a bon a fide assignee, will be in a better situation than the person was of whom he bought; as, for instance, where the purchaser, who alone had made inquiry and given notice to the debtor, or to a trustee holding the fund, (as in this instance,) would be preferred over the prior purchaser, who neglected to give notice of his assignment, and warn others not to buy.

The cases of Dearle v. Hall, and Loveridge v. Cooper, 3 Russell's R. 1, 60, established the doctrine to the foregoing effect in England; they were followed in the case of Mangles v. Dixon, McNaughten and Gordon's R. 437. And the same principle of protecting subsequent bon a fide purchasers of choses in action, & c., against latent outstanding equities, of which they had no notice, was maintained in this court in the case of Bayley v. Greenleaf, 7 Wheat. 46. That was an outstanding vendor's lien, set up to defeat a deed made to trustees for the benefit of the vendees' creditors. The court held it to be a secret trust; and although to be preferred to any other subsequent equity unconnected with a legal advantage, or equitable advantage, which gives a superior claim to the legal title, still, it must be postponed to a subsequent equal equity connected with such advantage.

The rule was distinctly asserted by Chancellor Kent, in 1817, in Murray v. Lylburn, 2 Johns. C. C. 442, before the question was settled in England, and before this court discussed it, which was in 1822. And the same principle was applied by the court of appeals of Virginia, in the case of Moore v. Holcombe, 3 Leigh's R. 597, in 1832.

Secondly. There is no satisfactory evidence, as we apprehend, to establish the fact that a sufficient consideration was paid by Judson to Williams for the assignment on which the bill is founded, to authorize Judson to set it up, and thereby to postpone Corcoran, who paid a full price, as did those under whom he claims; yet, as these objections depend on facts peculiar to this cause, we deem it useless to critically investigate them, as the decree below dismissing the bill was clearly proper, on the first and merely legal ground.

It is ordered that the decree be affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.

title: Jodson v. Corcoran/Opinion of the Court


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Lewis v. Bell

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for Washington county.

The case is stated in the opinion of the court.

It was argued by Mr. Chilton and Mr. Lawrence, for the plaintiff in error, and by Mr. Bradley, for the defendant.

Mr. Justice GRIER delivered the opinion of the court.

title: Lewis v. Bell


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Lewis v. Bell/Opinion of the Court

The subject-matter in dispute in this case is a sum of money in the hands of the secretary of the treasury, which had been awarded to the appellant by the commissioner appointed under the act of congress to adjust claims under the treaty between the United States and Brazil. Stephen J. Lewis, deceased, is admitted to have been the original owner of the claim. He was owner of one fifth of the brig Caspian, which was illegally seized by the Brazilian squadron, in October, 1827, and condemned. Lewis was on board at the time, and was robbed of his baggage and money to the extent of some four thousand dollars. The whole amount awarded on these claims of Lewis, was $11,551.

Isaac Bell, senior, the father of the appellee, had an assignment of this claim from Lewis, by deed of assignment, dated November, 1828.

The claim was prosecuted to its final recovery in 1852, by Isaac Bell. But having in the meanwhile lost or mislaid his original deed of assignment, and not having sufficient legal proof of the copy, the commissioner awarded the money to the administratrix of Lewis.

Isaac Bell, senior, assigned his right to his son, Isaac Bell, junior, and he soon after assigned to his brother, the appellee, who instituted this proceeding in the circuit court of the District of Columbia, under the provisions of the act of congress of July 3, 1852.

After the institution of this suit, the original assignment was accidentally discovered, and has been satisfactorily proven. The court below awarded the money to the complainant below, and the administratrix of Lewis has taken this appeal.

The objections to the title of Edward R. Bell, as champertous, collusive, and fraudulent, and made for the purpose of using the father as a witness, are wholly unsustained by any evidence.

There is no principle in equity which prevents a creditor from assigning an interest in a debt, after institution of a suit therefor, as being within the statutes against champerty and maintenance; (see 2 Story's Eq. 1049, 1054;) nor will the want of a full money consideration, as between father and son, and brother and brother, subject the transaction to such imputation, without further proof. The father's testimony was not offered by the appellee in this case; we are not, therefore, bound to notice the question of its admissibility, or the policy of permitting assignments for the purpose of making the assignor a witness, on which so much of the argument of this case was expended.

It is contended, also, that the assignment of Lewis to Bell, senior, is not absolute, but a security only, of some debt which has been satisfied; and that it is voluntary, and imports a trust between the parties.

The deed of assignment, after a recital of the capture of the brig Caspian, and the claim preferred by the American minister at Brazil, on behalf of Lewis, for indemnity, proceeds as follows:--

'Now, know all men by these presents, that the said Stephen J. Lewis, for and in consideration of the sum of one dollar, lawful money of the United States, to him in hand paid by Isaac Bell, of the city of New York, merchant, the receipt whereof is hereby acknowledged, and also for divers other good considerations him thereunto moving, hath granted, bargained, and sold, assigned, transferred, and set over, and by these presents doth grant, bargain, and sell, assign, transfer, and set over, unto the said Isaac Bell, his executors, administrators, and assigns, all and singular, the said claim, and all the sum and sums of money that may be recovered or received, of and from the said Brazilian government, or of and from whomsoever it may concern, for or by reason of the said illegal capture, or which may arise from the proceeds of the said brig Caspian and cargo; to have and to hold the same and every part and parcel thereof, unto him, the said Isaac bell, his executors, administrators, and assigns, forever,' &c., &c.

This is an absolute assignment of the whole claim of Lewis against the Brazilian government. Besides the consideration of one dollar, it mentions 'divers other good considerations,' without specifying them particularly.

The bill alleges that the real consideration was a large indebtedness of Lewis to Bell, which was never paid, Lewis having died in 1844, insolvent. This is denied by the answer. But the evidence, as far as it affects the point, tends to establish the correctness of the allegations of the bill. After the assignment, Lewis does not appear to have interfered in the prosecution of this claim, up to the time of his death, in 1844, nor did his administratrix set up a claim till the money was recovered, in 1852.

In December, 1828, it appears that Bell transmitted this assignment to his agent in Buenos Ayres, in order to prosecute the claim, alleging that the 'assignment was made by Lewis, in consequence of advances made to him in the purchase of a brig and cargo.' In the same year, he wrote to the Hon. Henry Clay, inclosing the protest of Lewis, in order that our government might be led to urge the payment of his claim, and alleging as the reason of his interference, that Lewis was indebted to him in the sum of $15,000, and had failed, and had therefore made him the assignment now in question. In a letter from Bell to Mr. Cambreling, in 1830, urging his interference in behalf of the Lewis claim, Bell assigns as the reason for his request, that Lewis had become indebted to him, and had no other means of payment but through that claim; and to confirm the whole matter beyond dispute, the counsel of the respondent below (now appellant) read in evidence the testimony of Isaac Bell, senior, proving the assignment to have been made in consideration of large indebtedness by Lewis to Bell, and that Lewis was then insolvent, and continued so to the time of his death. By their own showing, therefore, there is ample consideration for the assignment, and not the least evidence of a secret trust.

The decree of the circuit court is, therefore, affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.

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 in Paris. He practised for some years as a surgeon in Great Marlborough Street, London, and published in 1783 ‘A Treatise upon Ulcers of the Legs.’ In 1788 he published on the same subject ‘Surgical Tracts on Ulcers of the Legs.’ On 5 April 1784 he was admitted a licentiate in midwifery of the College of Physicians of London, and was the last survivor of that kind of practitioner. Thenceforward he practised as a man-midwife. He was attached to the British Lying-in Hospital, and attended the Princess of Wales at the birth of the Princess Charlotte on 7 Jan. 1796. He published in 1784 ‘A Treatise on the Diseases of Children,’ of which a fuller edition appeared in 1801, consisting of one volume on medical diseases, one on the surgery of childhood, and one on the general management of infants; a fifth edition appeared in 1805. The work was edited in 1835 in a ninth edition by Marshall Hall [q. v.], and a tenth in 1846 by Henry Davies [q. v.], and was translated into French by De Willebrune. It is based upon extensive clinical observation, was the best treatise on the subject which had appeared in English, and may still be consulted with advantage. Underwood died at Knightsbridge on 14 March 1820.

[Works; Munk's College of Physicians, ii. 336.]

UNTON or UMPTON, HENRY (1557?–1596), diplomatist and soldier, was second son of Sir Edward Unton or Umpton of Wadley, near Faringdon, Berkshire, by his wife Anne, eldest daughter of Edward Seymour, duke of Somerset, Edward VI's protector, and widow of John Dudley, commonly called Earl of Warwick, eldest son of the Duke of Northumberland. The marriage of his parents was solemnised on 29 April 1555 at Hatford in Berkshire, near the bridegroom's house at Wadley. The father, Sir Edward, belonged to a Berkshire family, which traced its pedigree to the time of Edward IV; he was knighted at Queen Elizabeth's coronation in January 1558–9, was sheriff of the county in 1567, and M.P. in 1572, and entertained Queen Elizabeth at his residence at Wadley in July 1574 (, Progresses, i. 391). He died on 16 Sept. 1583, and was buried in Faringdon church. An unpublished fragment of an itinerary of a journey made by Sir Edward in Italy in 1563–4 is in the British Museum (Sloane MS. 1813). His wife, who was always known as the Countess of Warwick, was in October 1582 declared of unsound mind. She survived till February 1587–8. The sermon preached at her burial at Faringdon church was printed (cf. Cal. State Papers, Dom. 1581–90, p. 74). The elder son, Edward, was M.P. for Berkshire in 1555 and 1586, and ‘was slain in the Portugall voyage’ in 1589.

Henry, born about 1557 at Wadley, was educated, like his elder brother Edward, at Oriel College, Oxford, where he supplicated for the degree of B.A. in October 1573. He was created M.A. on 14 July 1590. He became a student of the Middle Temple in 1575, and subsequently travelled in France and Italy. In 1584 he was elected M.P. for New Woodstock. On his return he was employed by Sir Christopher Hatton, lord chancellor, who commended him to the queen.

Unton, with his friend Sir William Hatton, nephew and heir of Sir Christopher Hatton, accompanied the Earl of Leicester's army to the Low Countries in 1585. On 22 Sept. 1586, he and Hatton were engaged in the affair at Zutphen, in which Sir Philip Sidney received his fatal wound. Leicester wrote six days later to Walsingham, that Unton and Hatton ‘a horseback or foote’ had shown a courage and eagerness for fight which none other in the army excelled (Leycester Correspondence, Camden Soc., pp. 416–417). Unton was knighted by Leicester on 29 Sept.

Unton made the acquaintance of the Earl of Essex in the Low Countries, and, apparently owing to the earl's influence with the queen, he was nominated in July 1591 to the office of ambassador to Henry IV of France. Henry was then engaged in his fierce struggle with the forces of the League, and Elizabeth had sent small armies to his aid. Essex was in command of one English detachment in Normandy, and Sir John Norris headed another in Brittany. Unton was directed to encourage Henry to hold out against his foes, but he was warned against committing the queen to a long continuance of her active support. On 11 Nov. 1591 Henry laid siege to Rouen, which was in the hands of the forces of the League. Unton accompanied him, and remained with Henry until he was forced to raise the siege in April. Personally Unton recommended himself to the French king, and they were soon on terms of intimacy. In January 1592 Unton was at Henry's side at the skirmish of Aumale, when the king was severely wounded. In the spring there reached Unton's ears the report that the young Duke of Guise had spoken of Queen Elizabeth ‘impudently, lightly, and overboldly.’ He thereupon sent a challenge to the duke, proposing to meet


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 him with whatever arms he should choose, on horseback or on foot. ‘Nor would I have you to think,’ he wrote, ‘any inequality of person between us, I being issued of as great a race and noble house every way as yourself. … If you consent not to meet me, I will hold you, and cause you to be generally held, for the errantest coward and most slanderous slave that lives in all France.’ Nothing came of the challenge, although Unton is said to have thrice repeated it (cf., Catalogue of Honour, 1610; , Worthies). In May 1592, after Henry had abandoned the siege of Rouen on the approach of the Duke of Parma and the French king's future looked desperate, Unton urged him to take the field in person in Brittany. There Henry IV's followers, despite the co-operation of an English army, had lately been worsted, but the situation appeared to Unton to be retrievable. Next month Unton was recalled at his own request, owing to failing health. He parted with Henry on the best of terms.

Unton continued to cultivate the favour of Essex, but his efforts to obtain official employment proved for many years vain. He re-entered the House of Commons in 1592–3 as M.P. for Berkshire, and there showed an independence which offended the queen. On 5 March 1592–3 he, with Francis Bacon, opposed the grant of a subsidy in the form in which the proposal was presented to the house (, Journal, pp. 487–90). Consequently when Unton next appeared at court the queen received him with ‘bitter speeches,’ and charged him with seeking a vain popularity (Cal. Hatfield MSS. iv. 68, where the date seems in error). Nevertheless in December 1595, through Essex's influence, Unton was sent a second time to France as ambassador. Essex gave him a paper of circuitous instructions whereby Unton might maintain the earl's private influence with Henry IV. The main object of Unton's mission was to keep alive the enmity between France and Spain and to dissuade Henry from making peace.

Unton was received by the king with enthusiasm, and had a long interview with him on 13 Feb. 1595–6 at Coucy-le-Château on the Flemish border, where the war with Spain was in progress. The king was in a frivolous mood, and mainly confined himself to expressing extravagant admiration for Queen Elizabeth's person (, United Netherlands, iii. 342). Finally he invited Unton to accompany him to the French camp outside the city of La Fère, on the upper Oise. The city was in the hands of the Spaniards, and Henry's forces were besieging it. Unton no sooner reached the camp before La Fère than he fell dangerously ill of what was suspected to be ‘a purple fever.’ Despite the risk of contagion, Henry paid him a visit, and for some weeks it was anticipated that he would recover, but, to the French king's grief, he died on 23 March. On 1 April following Henry IV sent the queen a letter of condolence on her ambassador's death, and expressed admiration of his virtues, of which, the king wrote, he had had frequent experience (, Memoirs of Elizabeth, i. 459). Unton's body was brought home to Wadley, and he was buried in Faringdon church on 8 July. A sumptuous monument was erected to his memory by his widow.

Unton showed some literary taste. In 1581 Charles Merbury acknowledged his aid in preparing his ‘Briefe Discourse of Royall Monarchie.’ To him was dedicated Robert Ashley's Latin translation (from the French) of Du Bartas's ‘L'Vranie Ov Mvse Celeste par G. de Saluste Seigneur du Bartas. Vrania sive Mvsa …’ (London, by John Wolfe, 1589, 4to; Brit. Mus.). Ashley noticed Unton's close friendship with Sir William Hatton. Matthew Gwinne [q. v.] went with him to France in the capacity of physician. In Unton's memory there was published at Oxford a voluminous collection of Latin verse (with two elegies by Professor Thomas Holland in Greek and Hebrew respectively) under the title: ‘Funebria nobilissimi ac præstantissimi Equitis, D. Henrici Vntoni, ad Gallos bis Legati Regii, ibiq: nuper Fato functi, charissimæ Memoriæ, ac Desiderio, à Musis Oxoniensibus apparata,’ Oxford, by Joseph Barnes, 1596. The volume was edited by Robert Wright, Unton's chaplain, afterwards bishop of Lichfield and Coventry, who inaccurately points out in the preface that a like honour had been paid previously to Sir Philip Sidney, and to none besides (Brit. Mus.).

Unton had no issue, and left an embarrassed estate. His debts are said to have amounted to 23,000l. His personal property was valued at about 5,000l. His nieces—the three daughters of his sister Anne, wife of Valentine Knightley, and his sister Cicely, wife of John Wentworth—claimed his lands, which were extensive and valuable, and in December 1596 called upon Lord Burghley, as master of the court of wards, to stay the sale of his estates in the interest of his creditors (Cal. State Papers, Dom., Addenda, 1580–1625). His widow seems to have enjoyed his Berkshire property for her life.

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Unton Broad Hinton, Wiltshire. She married in December 1598 a second husband, George Shirley of Staunton Harold, Leicestershire, who was created a baronet in 1611, died on 27 April 1622, and was ancestor by a former wife of the earls Ferrers (, Letters, pp. 4, 33; cf. Cal. State Papers, Dom. 1595–7, p. 265). She entertained the king and queen at Wadley on 7 and 8 Sept. 1603 (, Progresses of James I, i. 257), and died in 1634.

Much of Unton's voluminous official correspondence during his first embassy to France (1591–2) is extant among the Cottonian manuscripts in the volume Caligula E. viii., some portions of which have been injured by fire. Others of Unton's papers of the same period are in the public record office, and there is an early transcript of a letter-book of his in the Bodleian Library (No. 3498). From these sources a collection of Unton's correspondence was edited by Joseph Stevenson in 1847 for the Roxburghe Club; 255 letters were included, dating between 24 July 1591 and 17 June 1592. Many of Unton's despatches during his second embassy to France (1595–6) are printed in Murdin's ‘Burghley Papers’ (pp. 701–34). Copies of others appear in Birch's manuscripts at the British Museum (Addit. MSS. 4114–7). A further collection of Unton's letters belonged to Sir Thomas Phillipps (cf. Gent. Mag. 1844, ii. 151). A few letters are at Hatfield.

A portrait of Unton was painted by Marcus Gheeraerts the younger [q. v.] (cf. Cat. National Portraits at South Kensington, First Exhibition, 1866, p. 41). Another portrait by an unknown artist belongs to the Duke of Norfolk. There is in the National Portrait Gallery a curious picture painted on a long panel by an unknown artist (5 feet 2½ inches by 2 feet 4 inches), which contains a portrait of Unton surrounded by representations of various scenes in his career. He is seated in the centre writing at a table, on which a cameo jewel shows the profile of the queen. In the top right-hand and left-hand corners appear respectively the sun and moon. On each side and above and below Unton's portrait are depicted the chamber of his birth, with a portrait of his mother; other rooms in the family residence at Wadley, in some of which a masque celebrating his marriage is portrayed as in progress; foreign cities which he visited, and the main incidents of his death and burial, including his monument in Faringdon church. Numerous shields display armorial bearings with minute accuracy. The picture, which was acquired by the National Portrait Gallery in 1884, was apparently painted for Unton's widow. At her death in 1634 she bequeathed it to her niece, Lady Unton Dering. It was sold by auction in London in 1743, and afterwards came into the possession of John Thane [q. v.], the printseller. Strutt engraved the scene of the masque at Unton's marriage in his ‘Manners and Customs of the English,’ 1776 (vol. iii. plate xi.), and the head of Sir Henry was engraved for the ‘Antiquarian Repertory’ in December 1779.

[Unton Inventories, edited for the Berkshire Ashmolean Society by John Gough Nichols (1841); Unton Correspondence (Roxburghe Club), 1847; Birch's Memoirs of Queen Elizabeth, vol. i.; Coningsby's Journal of the Siege of Rouen, in Camden Society's Miscellany (vol. i. 1847); Nichols's Progresses of Queen Elizabeth, ii. 86; Wood's Athenæ Oxon., ed. Bliss, i. 647; Shadwell's Registrum Orielense, i. 41; Foster's Alumni Oxon.; Cat. of National Portrait Gallery, 1897.]  UNWIN, MARY (1724–1796), the friend of Cowper, the daughter of William Cawthorne, a draper, of Ely, was born in that city in 1724. Hayley remembered her when comparatively young, a person of lively talents with a sweet serene countenance, and remarkably fond of reading. Cowper afterwards compared her manners to those of a duchess, and she certainly resembled many great ladies of her time by her addiction to snuff. Early in 1744 she married Morley Unwin (1703–1767), son of Thomas Unwin by his wife Martha, the daughter of a cloth manufacturer of Castle Hedingham, Essex. Thomas was a grandson of Thomas Unwin (1618–1689) of Castle Hedingham, and the family had then been established in Essex for several generations, so that the Flemish origin of the Unwins or Onwhynnes must be referred to a much earlier date than that suggested by Dr. Smiles (Huguenots in England). Morley Unwin graduated B.A. from Queens' College, Cambridge, in 1725. He was master of the free school at Huntingdon, and lecturer to the two churches in Huntingdon from 1729 until 1742, when he became rector of Grimston, near King's Lynn in Norfolk. There he resided apparently until 1748, when, upon his wife's request, he left the duty in the charge of a curate, and moved back to Huntingdon, where he occupied a ‘convenient house’ in the High Street, and prepared pupils for the university. He was also reappointed lecturer of St. Mary's, and is said to have caused much dissatisfaction by the irregular performance of the duty. In the autumn of 1765 William Cowper made the acquaintance of the Unwins' eldest son, William Cawthorne Unwin, and he was so pleased with


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 what he saw of the family that in October that year he became (as a paying boarder) a regular inmate of their house. Morley Unwin died on 2 July 1767, as the result of a fall from his horse, and was buried in the churchyard of St. Mary's, Huntingdon. Ten weeks later Cowper removed, with Mrs. Unwin and her daughter Susanna, to Olney, in order to be under the more direct influence of John Newton. The details of the home life which he shared with the Unwins at Olney are familiar to all readers of Cowper's ‘Correspondence.’

In July 1769 Mrs. Unwin's son, William Cawthorne Unwin (1745?–1786), who had been educated at Charterhouse school and at Christ's College, Cambridge (B.A. 1764, M.A. 1767), quitted Olney upon being instituted to the rectory of Stock, near Ramsden in Sussex. Like his father, he had attached himself to the evangelical party. His ‘spiritual and lively notions in religion’ had from their first meeting attracted Cowper, and from 1770 until his early death he became the poet's chief confidant and the recipient of many of the most delightful letters in the whole range of our literature. Conspicuous among them is that masterpiece of its kind, dated 31 Oct. 1779, in which Cowper accuses Johnson of plucking some of the most beautiful feathers from the wing of Milton's muse, and ‘trampling them under his great foot.’ After her son's departure and her daughter's engagement to Matthew Powley, vicar of Dewsbury, Mary Unwin seems at the close of 1772 to have become regularly engaged to Cowper (he being then forty-one and she forty-eight), but before the commencement of 1773 his mind had become once more grievously clouded, and the project of marriage was never to be realised. Upon his recovery she did all in her power to encourage him to write, and when he became an author he paid her the highest respect as an instinctive critic, and called her his lord chamberlain, whose approbation was his sufficient license for publication. The extraordinary ‘fracas’ which disturbed the quiet round of domesticity at Olney in April 1784 was almost certainly due to Cowper's perception of a latent jealousy of Lady Austen in the mind of his older friend. Fortunately Mrs. Unwin entertained no jealousy of Cowper's attached kinswoman, Lady Hesketh, with whom the poet resumed relations in 1785. Lady Hesketh in turn fully appreciated Mrs. Unwin's quiet fund of gaiety and the anxiety she had undergone (during Cowper's attacks of hypochondria) ‘for one whom she certainly loves as well as one human being can love another.’

Mrs. Unwin moved with Cowper, at Lady Hesketh's instance, from Olney to Weston in 1786. In 1793 her health was beginning to fail, and the poet inscribed to her the exquisite lines ‘To Mary,’ which Tennyson classed, with those ‘On Receipt of my Mother's Picture,’ as too pathetic for reading aloud. In 1795 they visited Norfolk together, and on 17 Dec. 1796 Mrs. Unwin died at East Dereham at the age of seventy-two. She was buried in St. Edmund's Chapel (now called the Cowper Chapel) in Dereham church, where a tablet was erected with an inscription by Hayley. Cowper was buried near the same spot four years later.

Mary Unwin's son, William Cawthorne, died at Winchester, aged 41, on 29 Nov. 1786, and was buried in the cathedral; he left a widow (her maiden name was Shuttleworth, and she died at Croydon in 1825, aged 75) and three young children. Unwin taught his children himself, and to him in his capacity of tutor Cowper inscribed his ‘Tirocinium,’ 6 Nov. 1784. Cowper also wrote a Latin epitaph for his friend, but this was rejected in favour of an English one. His portrait, painted by Gainsborough in 1764, was engraved by H. Robinson from a drawing by W. Harvey (Cowper, ed. Southey, ii. 228). Another son, Henry, became ‘an eminent stationer in Paternoster Row.’ The daughter, Susanna Powley, died in 1835, aged 89.

A portrait of Mary Unwin, by Arthur Devis [q. v.], painted in 1750, was engraved by Robinson from a drawing by W. Hayley (Cowper, ed. Southey, i. 219; cf. WRIGHT, Cowper, p. 139).

[Cowper's Works, ed. Southey, passim; Thomas Wright's Life of William Cowper, 1892; Goldwin Smith's Cowper; Cowper's Letters, ed. Benham, 1884, vol. xvi.; Gent. Mag. 1786 ii. 1094, 1116, 1787 i. 3, 1787 ii. 637, 1793 i. 217; Morant's Essex, ii. 361; Beaumont's Coggeshall (1890); Luard's Graduati Cantabrigienses; Boswell's Life of Johnson, ed. Hill; Thomson's Celebrated Friendships, 1861, i. 119–76; private information.]

UNWONA (d. 800?), bishop of Leicester, described by Pits as ‘Cambro-Britannus,’ succeeded Eadbert as sixth bishop of that see some time after 781. He was present at a legatine council in 787, and was one of the witan of Offa [q. v.], king of Mercia, whose charters he attests during the remainder of his reign. His name also appears in two charters of Ecgfrith, Offa's son, but their genuineness is not above dispute. Unwona's name, however, reappears under Kenulf in 798 and 799. Matthew Paris says he was skilled in many languages, and was employed