text:
Gilmer v. Higley/Opinion of the Court

This was an action in the territorial court of Montana, in which a judgment was rendered in favor of defendant in error against the plaintiffs in error for an injury received by the upsetting of a stage coach used by the latter as common carriers of passengers. The plaintiff below founds his action on this contract of carriage, and the negligent manner in which it was performed. He 'alleges that on the day and year last aforesaid, at the said Boulder City, the said defendants received the said plaintiff as a passenger upon their coach, to be carried thence to said town of Helena.' The answer of defendants to this part of the declaration or petition is that 'they deny that the said Higley was received as a passenger on their coach, as in said complaint alleged, but say that from the city of Jefferson to the said town of Helena, the said plaintiff was wrongfully and unlawfully thereon, and contrary to the request and demand of these defendants, by their agent, who then and there having been refused, upon his request therefor, the fare of said Higley on said coach, did not consent or agree to his becoming a passenger of defendants thereon, but forbade him so to continue thereon, and did not consent thereto.' It will thus be seen that the issue was fairly raised whether the plaintiff was a trespasser in forcing himself into or on the stage of the defendant without paying his fare, or whether he was there under a contract of passenger carriage, either express or implied.

The following bill of exceptions was taken on the trial, and the ruling of the court thereon is assigned for error:

'Be it remembered that on the trial of this cause plaintiff,     being a witness upon the stand, upon his examination in      chief, testified that he had taken passage as a passenger      from Boulder City to Helena; that the driver received him as      such; and that after the accident had happened, and while he      was sick in the hospital, that the defendant O. J. Salisbury      said that he had ordered his drivers to receive him without      paying fare until he got to Helena; and that he had      frequently traveled over the road before without paying his      fare until he arrived in Helena,-was asked on      cross-examination:

'What was said to you at Jefferson City, the first station on     the road, by the agent in reference to your fare? 'Did he not demand it of you?

'Did you not refuse to pay it?

'Did he not demand you to get out or pay your fare?

'Did you not refuse to do either?

'Did you not tell him that he could not put you out?

'To each question as propounded at the time plaintiff     objected, and the court then and there sustained said      objection to each of said questions when so separately      propounded, and did not permit said witness to answer. To     which rulings of the court defendants then and there duly      excepted, and this his bill of exceptions is signed and      sealed, and made a part of the record herein, this sixteenth      day of December, A. D. 1878.'

The pertinency of these questions to the issue we have just stated is so plain as to need no argument or illustration.

Jefferson City lies between Boulder City and Helena. The accident by which plaintiff was injured occurred between Jefferson City and Helena. If, getting in the stage at Boulder, plaintiff had not paid his fare, it was proper that the agent of the stage company at Jefferson should collect it. Certainly it was his duty to require the fare to be paid from Jefferson to Helena. Whether he had a right to ride free of charge was a question to be left to the jury, and, unless he proved it to their satisfaction, he was a trespasser if he refused to pay the fare to the agent. We are to presume that he would have answered the questions propounded to him, if required to answer them, so as to prove that he was told at Boulder that he must pay at Jefferson; that at Jefferson payment was demanded of him; that he refused to pay; that he was then requested to get out of the stage that he refused either to pay his fare or get out of the stage; and that he told the agent he could not put him out. It is idle to say, if these answers had been given, that he had a contract for passage unless he proved it affirmatively in some other way. But it is said that the questions were not legitimate cross-examination. We are of a different opinion. Plaintiff, offering himself as a witness to show that he was rightfully in the coach as a regular passenger under the usual conditions, told his story of how he got in at Boulder, that he was taken as a passenger by the driver, who received him as such, and that one of the defendants said he had ordered his drivers to receive him without fare. It seems very clear that to require him to state whether his fare was demanded of him by the regular agent of the company, and on his refusal to pay he was ordered to leave the coach and refused, was an examination in regard to the very thing about which he testified in chief. To permit a party to the suit to tell his own tale of a transaction like this, and to conceal what is important to the defendant in regard to the same occurrence, and at the same time, would be a gross perversion of justice, and would bring into discredit the policy of permitting parties to actions to testify in their own behalf. But it was said by the supreme court of Montana, on appeal, that since the record did not contain all the testimony, the court could not see that defendants were injured by the refusal to have the questions answered. We have not before heard of such a rule in a revisory court. The furthest any court has gone has been to hold that when such court can see affirmatively that the error worked no injury to the party appealing, it will be disregarded. This court, in Deery v. Cray, 5 Wall. 807, used this language: 'Wherever the application of this rule is sought, it must appear so clear as to be beyond doubt that the error did not and could not have prejudiced the party's rights.' There was here manifest error, as we look at the issue and the questions asked. So far from being able to see that it worked no injury to defendants, it seems probable that if the questions had been answered as we have supposed, if not conclusive of the issue made by defendants, they would have very strongly supported their answer.

The judgment of the supreme court of Montana is reversed, with direction to order a new trial.

title: Gilmer v. Higley/Opinion of the Court


text: Talk:Gilmer v. Higley/Opinion of the Court

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


text:
United States v. Carey Same

Asst. Atty. Gen. Maury, for plaintiff in error.

J. P. Bouse and ''Wm. Grant'', for defendants in error.

WAITE, C. J.

title: United States v. Carey Same


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/180

Rh ran unshot." To me it appeared as "d—dest" work to slaughter God’s cattle for sport. "They were made for us," say these self-approving preachers; "for our food, our recreation, or other uses not yet discovered." As truthfully we might say on behalf of a bear, when he deals successfully with an unfortunate hunter, "Men and other bipeds were made for bears, and thanks be to God for claws and teeth so long."

Let a Christian hunter go to the Lord’s woods and kill his well-kept beasts, or wild Indians, and it is well; but let an enterprising specimen of these proper, predestined victims go to houses and fields and kill the most worthless person of the vertical godlike killers,—oh! that is horribly unorthodox, and on the part of the Indians atrocious murder! Well, I have precious little sympathy for the selfish propriety of civilized man, and if a war of races should occur between the wild beasts and Lord Man, I would be tempted to sympathize with the bears.


text: Dictionary of National Biography, 1885-1900/Williams, John (1761-1818)


text: Talk:United States v. Carey Same

title: Talk:United States v. Carey Same


text:
United States v. Carey Same/Opinion of the Court

The judgment in each of these cases was rendered after a trial by jury on the seventeenth of March, 1880, during the November term, 1879, although it was not signed until May 20, 1880. On the nineteenth of May, 1880, which was at the April term of that year, the district judge who presided at the trial signed a bill of exceptions, which sets forth that on the trial the United States offered in evidence a document, which was annexed, and purported to be a copy of an assessment made by the commissioner of internal revenue for May, 1875, to the introduction of which the defendants objected, and that the objection was sustained. The bill of exceptions the proceeds as follows: 'To which ruling of the court plaintiff excepts, and tenders this his bill of exceptions, which is accordingly signed this nineteenth day of May, 1880.' The rule is well established and of long standing that an exception, to be of any avail, must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed or otherwise. Phelps v. Mayer, 15 How. 160; U.S. v. Breitling, 20 How. 254; French v. Edwards, 13 Wall. 516; Stanton v. Embrey, 93 U.S. 555; Hunnicutt v. Peyton, 102 U.S. 354. This clearly is not such a case. There is nothing whatever to indicate that any exception was taken to the rejection of the evidence complained of until the next term after the trial was over and the judgment rendered, though not signed. Even the liberal extension of the rule granted in Simpson v. Dall, 3 Wall. 460, is not enough to reach this defect. The language here implies an exception only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent term of the court.

It follows that the errors assigned are not such as we can consider, and the judgments are consequently affirmed.


text: Talk:United States v. Carey Same/Opinion of the Court


text:
Jenness v. Citizens' National Bank of Rome

Harrison Geer and W. B. Williams, for plaintiff in error.

H. M. Duffield, for defendant in error.

WAITE, C. J.


text: Talk:Jenness v. Citizens' National Bank of Rome


text:
Jenness v. Citizens' National Bank of Rome/Opinion of the Court

The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record that of this amount $2,669.03 was not disputed below. The defense related alone to the difference between these two amounts, which is less than $5,000. The dispute here is only in reference to the amount contested below. Such being the case, we have no jurisdiction. The case of Gray v. Blancard, 97 U.S. 564; Tintsman v. ''Nat. Bank, 100 U.S. 6; and Hilton v. Dickinson'', 108 U.S. --, [S.C.. 2 SUP. CT. REP. 424,] are conclusive to this effect. Dismissed.


text: Talk:Jenness v. Citizens' National Bank of Rome/Opinion of the Court


text: Hoff v. County of Jasper State

title: Hoff v. County of Jasper State


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/181

CTOBER 23. To-day I reached the sea. While I was yet many miles back in the palmy woods, I caught the scent of the salt sea breeze which, although I had so many years lived far from sea breezes, suddenly conjured up Dunbar, its rocky coast, winds and waves; and my whole childhood, that seemed to have utterly vanished in the New World, was now restored amid the Florida woods by that one breath from the sea. Forgotten were the palms and magnolias and the thousand flowers that enclosed me. I could see only dulse and tangle, long-winged gulls, the Bass Rock in the Firth of Forth, and the old castle, schools, churches, and long country rambles in search of birds nests. I do not wonder that the weary camels coming from the scorching African deserts should be able to scent the Nile.


text: Talk:Hoff v. County of Jasper State

title: Talk:Hoff v. County of Jasper State


text:
Hoff v. County of Jasper State/Opinion of the Court

The facts in this case are, in all respects, the same as those in Anthony v. County of Jasper, 101 U.S. 693, except that here it is expressly found that the subscription of the township which was voted had actually been made by the county court, and accepted by the railroad company before the act providing for the registration of bonds was approved, while there the acceptance of the subscription before the approval of the act did not appear, unless by implication. The vote of the township was taken on the fifth of March, 1872; the order of the county court for the subscription entered on the twenty-eighth of March, and on the same day the subscription was actually made and accepted. The registration act was approved March 30th.

Upon the additional fact found in this case it is insisted

(1) that if the registration act was applicable to the bonds now in question, it impaired the obligation of the contract of subscrption, and is therefore, so far as such application is concerned, in contravention of article 1, § 10, cl. 1, of the constitution of the United States; and

(2) that it was retrospective in its operation, and therefore in contravention of article 1, § 28, of the constitution of Missouri, which is 'that no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed.' It is also insisted that the fourth section of the act is in contravention of the constitution of Missouri, because it delegates the exercise of judicial power to an executive officer of the state.

The first two objections may be considered together, and, to our minds, they are disposed of by the paragraph in the opinion in Anthony v. County of Jasper, which is as follows, (page 699:)

'It matters not that when the bonds were voted the     registration law was not in force. Before they were issued it     had gone into effect. It did not change in any way the     contract with the railroad company. The company was just as     much entitled to its bonds when it complied with the      conditions under which they were voted after the law, as it      could have been before. All the legislature attempted to do     was to provide what should be a good bond when issued. There was nothing changed but the form     of the execution.'

That is clearly the true construction of the fourth section of the act. The contract of subscription undoubtedly gave the company the right to valid negotiable bonds executed in due form of law. This section simply provides that before any bond thereafter issued shall be deemed to have been completely executed, it must have upon it the requisite certificate of the auditor of state. When so certified, if otherwise in proper form, it may be issued as a duly-executed negotiable public security. The provision that the certificate of the auditor 'shall be prima facie evidence only of the facts therein stated,' does not of itself open the bonds to attack in the hands of a bona fide holder. Before this law a bond in due form, issued under a power conferred by the legislature, could not be impeached in the hands of a bona fide holder for fraud or irregularities in the execution of the power by those charged with that duty. The law does not interfere with this; it simply says that the certificate which the auditor is to give shall not prevent such an impeachment; that is to say, shall not operate as an estoppel. The certificate, so far from casting suspicion on the bond, gives additional credit, for it shows that an officer of the state specially charged with the duty has examined and certified officially 'that all the conditions of the law have been complied with,' 'and also that the conditions of the contract under which they [the bonds] were ordered to be issued have also been complied with.' Such a bond certainly can have no less credit in the market than it would have without the official certificate. Neither, in our opinion, does the fact that one more officer must examine and certify the bond before it can be issued, place such an additional burden on the parties to the subscription as to impair the obligation of their contract. It is in reality no more than providing that two officers shall sign a municipal bond instead of one before the body politic shall be bound by an instrument to be put on the market and sold as commercial paper. We cannot believe, if, when the subscription was made, a bond, if signed by the presiding justice of the county court alone, would have been sufficient, it would be contended that the obligation of the contract of subscription was impaired by a law passed afterwards that required the signature of the clerk of the court to the bond as well as that of the presiding justice. In the view we take of the case, the requirement of the signature and certificate of the auditor of state is nothing more in legal effect than that. By the contract of subscription the township agreed to take stock and pay for it in valid negotiable bonds, and the company agreed to take the bonds and give the stock. All the new law has done is to provide what shall be a valid negotiable bond of the township, and this by providing additional guaranties against fraudulent and irregular issues. Of such a provision honest parties cannot complain, for it is always to be presumed that a public officer will do whenever called on what the law requires of him.

As to the objection that the duties of the auditor, in respect to his inquiries under the fourth section, are judicial rather then executive, it is sufficient to say that every executive officer, when called on to act in his official capacity, must inquire and determine whether, on the facts, the law requires him to do one thing or another. The due execution of these bonds was an executive act, and the auditor of state was made by law one of the executive officers whose duty it was to take part in their execution. The inquiries he is required to make do not differ in their character from those the presiding justice of the county court should have made when he affixed his signature. The certificate of the auditor being according to the statute prima facie evidence only of the facts stated, amounts to nothing more than that in his opinion the circumstances are such that the bonds may properly go out as commercial paper of the kind they appear on their face to be. It binds no one. It simply states the opinion of this executive officer on the questions he was called on to consider in his official capacity. It makes the bond complete in the form of its execution, and in law does nothing more.

We are of opinion that this case is in no respect distinguishable from Anthony v. County of Jasper, and upon that authority the judgment is affirmed.


text: Talk:Hoff v. County of Jasper State/Opinion of the Court


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Page:A Thousand-Mile Walk To The Gulf.djvu/182

Rh How imperishable are all the impressions that ever vibrate one’s life! We cannot forget anything. Memories may escape the action of will, may sleep a long time, but when stirred by the right influence, though that influence be light as a shadow, they flash into full stature and life with everything in place. For nineteen years my vision was bounded by forests, but to-day, emerging from a multitude of tropical plants, I beheld the Gulf of Mexico stretching away unbounded, except by the sky. What dreams and speculative matter for thought arose as I stood on the strand, gazing out on the burnished, treeless plain!

But now at the seaside I was in difficulty. I had reached a point that I could not ford, and Cedar Keys had an empty harbor. Would I proceed down the peninsula to Tampa and Key West, where I would be sure to find a vessel for Cuba, or would I wait here, like Crusoe, and pray for a ship. Full of these thoughts, I stepped into a little store which had a considerable trade in quinine and alligator and


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Page:A Thousand-Mile Walk To The Gulf.djvu/183

Rh rattlesnake skins, and inquired about shipping, means of travel, etc.

The proprietor informed me that one of several sawmills near the village was running, and that a schooner chartered to carry a load of lumber to Galveston, Texas, was expected at the mills for a load. This mill was situated on a tongue of land a few miles along the coast from Cedar Keys, and I determined to see Mr. Hodgson, the owner, to find out particulars about the expected schooner, the time she would take to load, whether I would be likely to obtain passage on her, etc.

Found Mr. Hodgson at his mill. Stated my case, and was kindly furnished the desired information. I determined to wait the two weeks likely to elapse before she sailed, and go on her to the flowery plains of Texas, from any of whose ports, I fancied, I could easily find passage to the West Indies. I agreed to work for Mr. Hodgson in the mill until I sailed, as I had but little money. He invited me to his spacious house, which occupied a shell hillock and


text:
Author:Sarah Austin

Works

 * Two Letters on Girls' Schools, and on the Training of Working Women

Translations

 * The Story Without an End Friedrich Wilhelm Carové. Frank C. Papé, ill. New York: Duffield and Co. 1913
 * Fragments from German Prose Writers (1841}
 * The Passage by Ludwig Uhland

title: Author:Sarah Austin


text:
Page:Dictionary of National Biography volume 23.djvu/269

member of parliament for St. Albans, the seat formerly held by Sir Samuel Grimston, and again in 1713 and 1715. On the death of his elder brother Sir Harbottle Luckyn in 1710, the Luckyn baronetcy devolved on him, and on 29 May 1719 he was created a peer of Ireland, with the titles Baron Dunboyne and Viscount Grimston. Grimston is best known by a play which he published in 1705, 'The Lawyer's Fortune, or Love in a Hollow Tree.' This composition, in which occurs the line, 'Let's here repose our wearied limbs till wearied more they be,' was deservedly ridiculed. Swift introduced the author in his verses 'On Poetry, a Rhapsody,' and Pope in his lines on Gorhambury (Sat. ii. 176) calls him 'booby Lord.' Grimston himself, after publishing two editions of the play, one anonymously, withdrew the book from circulation. It was, however, reprinted at Rotterdam in 1728, and again in London in 1736. The story goes that the Duchess of Marlborough, when using her influence to oppose Grimston at an election for St. Albans, was responsible for this last edition, which she distributed broadcast among the electors. The author's name was not printed, but the edition was embellished by a dedication to 'The Right Sensible, the Lord Flame,' a frontispiece showing an ass wearing a coronet, and a head-piece depicting an elephant on a tight-rope. Forty-five years afterwards Johnson related the story to Lord Charlemont. The truth of the anecdote is very doubtful. The Duchess of Marlborough certainly quarrelled with Grimston over the election of 1734, but there was no vacancy at St. Albans in 1736. There is no doubt that the edition of that year was due to somebody's malice. 'Walpole, Baker, Whincop, Nichols, and others, who have wished to set off Grimston's parliamentary and domestic virtues against his literary folly, have urged in his defence that the play was written when he was only thirteen years old, and that its publication was probably due to his parents' vanity. They give as the date of his birth 1692, but he was certainly born in 1683. Grimston died 15 Oct. 1756, aged 73. He married Jane, daughter of James Cooke, citizen of London, and by her, who died 12 March 1765, he was the father of nineteen children. He was succeeded in the title and estates by his second son, James (1711-1773). His grandson, James Walter (1775-1845), was created first Earl of Verulam 24 Nov. 1815.

[Lodge's Peerage of Ireland, v. 188; Collins's Peerage, ed. Brydges, viii. 221; Walpole's Royal and Noble Authors, ed. Park, v. 263; Baker's Biog. Dram. ii. 302; Whincop's Compleat List of English Dramatic Poets; Swift's Works, ed. 1803, xi. 297 n.; Boswell's Johnson, ed. Birkbeck Hill, iv. 80; Cussans's Hertfordshire, Hundred of Cashio, iii. 248; Members of Parliament; see Notes and Queries, 5th ser. vii. 27, 93, 155, 301.]  GRINDAL, EDMUND (1519?–1583), archbishop of Canterbury, was the son of William Grindal, a well-to-do farmer who lived at Hensingham, in the parish of St. Bees, Cumberland, a district which Grindal himself described as 'the ignorantest part in religion, and most oppressed of covetous landlords of anyone part of this realm' (Remains, p. 257). He went at an early age to Cambridge, where he entered first at Magdalene College, and then removed to Christ's College where he was scholar in 1536-7, and afterwards to Pembroke Hall, where he took his B.A. degree in 1538, and in the same year was elected fellow. He took the degree of M.A. in 1541, was ordained deacon in 1544, and was proctor of the university for 1548-1549, in which year he was appointed Lady Margaret's preacher. In the year of his proctorship commissioners were appointed by Edward VI to hold a visitation at Cambridge. At the head of the commission was Nicholas Ridley, bishop of Rochester, who had formerly been master of Pembroke Hall, and probably it was owing to his influence that Grindal was selected on 24 June 1549 to argue on the protestant side in one of a series of disputations in which the commissioners used the old scholastic system as a means to advance the cause of the reformed theology (, Acts and Monuments, ed. 1846, vi. 322-7). After this Ridley frequently employed him in similar disputations elsewhere, and especially in some which were held at the houses of Sir William Cecil and Sir Richard Morysin (Corpus Christi College, Cambridge, MSS. cii. 12). When Ridley became bishop of London he chose Grindal as one of his chaplains, and in August 1551 collated him to the precentorship of St. Paul's. In the following December he was made one of the royal chaplains, in June 1552 received license to preach within the province of Canterbury, and in July was installed as a prebendary of Westminster. In the following October the articles of religion were submitted to him as one of the royal chaplains before they were introduced into convocation. It was rumoured that he was to be made a bishop, but Edward VI's death prevented his appointment, and on Mary's accession Grindal found it wise to leave England, abandoning all his preferments. He settled at Strasburg, where he attended the lectures of Peter Martyr. Thence he passed on to Wasselheim, Speier, and Frankfort, where he strove to allay the disputes which had arisen among the English


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Page:A Thousand-Mile Walk To The Gulf.djvu/184

Rh a fine view of the Gulf and many gems of palmy islets, called "keys," that fringe the shore like huge bouquets—not too big, however, for the spacious waters. Mr. Hodgson’s family welcomed me with that open, unconstrained cordiality which is characteristic of the better class of Southern people.

At the sawmill a new cover had been put on the main driving pulley, which, made of rough plank, had to be turned off and smoothed. He asked me if I was able to do this job and I told him that I could. Fixing a rest and making a tool out of an old file, I directed the engineer to start the engine and run slow. After turning down the pulley and getting it true, I put a keen edge on a common carpenter’s plane, quickly finished the job, and was assigned a bunk in one of the employees lodging-houses.

The next day I felt a strange dullness and headache while I was botanizing along the coast. Thinking that a bath in the salt water might refresh me, I plunged in and swam a little distance, but this seemed only to make me feel


text:
Page:A Thousand-Mile Walk To The Gulf.djvu/185

Rh worse. I felt anxious for something sour, and walked back to the village to buy lemons.

Thus and here my long walk was interrupted. I thought that a few days sail would land me among the famous flower-beds of Texas. But the expected ship came and went while I was helpless with fever. The very day after reaching the sea I began to be weighed down by inexorable leaden numbness, which I resisted and tried to shake off for three days, by bathing in the Gulf, by dragging myself about among the palms, plants, and strange shells of the shore, and by doing a little mill work. I did not fear any serious illness, for I never was sick before, and was unwilling to pay attention to my feelings.

But yet heavier and more remorselessly pressed the growing fever, rapidly gaining on my strength. On the third day after my arrival I could not take any nourishment, but craved acid. Cedar Keys was only a mile or two distant, and I managed to walk there to buy lemons. On returning, about the middle of the


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Page:A Thousand-Mile Walk To The Gulf.djvu/186

Rh afternoon, the fever broke on me like a storm, and before I had staggered halfway to the mill I fell down unconscious on the narrow trail among dwarf palmettos.

When I awoke from the hot fever sleep, the stars were shining, and I was at a loss to know which end of the trail to take, but fortunately, as it afterwards proved, I guessed right. Subsequently, as I fell again and again after walking only a hundred yards or so, I was careful to lie with my head in the direction in which I thought the mill was. I rose, staggered, and fell, I know not how many times, in delirious bewilderment, gasping and throbbing with only moments of consciousness. Thus passed the hours till after midnight, when I reached the mill lodging-house.

The watchman on his rounds found me lying on a heap of sawdust at the foot of the stairs. I asked him to assist me up the steps to bed, but he thought my difficulty was only intoxication and refused to help me. The mill hands, especially on Saturday nights, often returned


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Page:A Thousand-Mile Walk To The Gulf.djvu/187

Rh from the village drunk. This was the cause of the watchman's refusal. Feeling that I must get to bed, I made out to reach it on hands and knees, tumbled in after a desperate struggle, and immediately became oblivious to everything.

I awoke at a strange hour on a strange day to hear Mr. Hodgson ask a watcher beside me whether I had yet spoken, and when he replied that I had not, he said: "Well, you must keep on pouring in quinine. That's all we can do." How long I lay unconscious I never found out, but it must have been many days. Some time or other I was moved on a horse from the mill quarters to Mr. Hodgson’s house, where I was nursed about three months with unfailing kindness, and to the skill and care of Mr. and Mrs. Hodgson I doubtless owe my life. Through quinine and calomel—in sorry abundance—with other milder medicines, my malarial fever became typhoid. I had night sweats, and my legs became like posts of the temper and consistency of clay on account of dropsy. So on until January, a weary time.


text: Dictionary of National Biography, 1885-1900/Grimston, William Luckyn


text: Author:Edward Joseph Dent

title: Author:Edward Joseph Dent


text:
Page:The Dictionary of Australasian Biography.djvu/455

 1832, when he left the colony to render an account of his stewardship to the Home Government. This he most have done satisfactorily, as he was knighted, and two years later was again appointee! Governor of the settlement, which had been administered during his absence by Captains Irwin and Daniel. On his return, in August 1834, experience enabled him to repair past errors; and so energetic was his administration that he not only prevented the projected abandonment of the colony, but put it in a fair way of future success. Sir James finally resigned the Governorship in Dec. 1838, and, resuming the naval profession, was a Junior Lord of the Admiralty for a short time in 1852, and Commander-in-Chief of the Chinese squadron during the Russian war. He died on April 22nd, 1865.

Stock, Hon. William Frederick, M.P., Attorney-General, South Australia, was born in England, and went to South Australia with his parents in 1850. He was educated at St. Peter's College, Adelaide, and in England. He was admitted to the South Australian Bar in June 1871, and was Mayor of Glenelg in 1878 and 1879. He has represented the Sturt in the Legislative Assembly since 1887. In June 1892, on the accession to power of the Holder Ministry, he was appointed Attorney-General.

Stone, His Honour Edward Albert, Puisne Judge, Western Australia, is the son of the late George Frederick Stone, Attorney-General of Western Australia. He was appointed clerk to the Attorney-General (W.A.) in 1860, and was called to the Colonial Bar in 1865, being for some time a partner with Hon. (q.v.). He was clerk to the Legislative Council 1870 to 1874, and a nominee member thereof from 1880 to 1882. He was acting Attorney-General in 1879, and was appointed Crown Solicitor in 1882, and Puisne Judge in 1884. Mr. Stone was Acting Chief Justice in 1880, 1881, 1887, and 1889 to 1890.

Stops, Frederick, J. P., was appointed clerk to the Solicitor-General of Tasmania in Nov. 1855; clerk to the Attorney-General in 1860; and secretary to the Law Department in Jan. 1884. He is author of an edition of "The Statutes of Tasmania, alphabetically arranged, with Notes" (Hobart, 1883-90, 5 vols.).

Stout, Hon. Sir Robert, K.C.M.G., son of Thomas Stout, was born in Terniche, Shetland Isles, in 1844, and was educated at the parish school, where he became a pupil teacher. In 1863 he emigrated to New Zealand, where he pursued his occupation as a schoolmaster in Dunedin. In 1867 he studied law, and passed as a barrister and solicitor in 1871. In the following year he entered the Provincial Council of Otago, and in 1873 was Provincial Solicitor. In 1875 Mr. Stout was elected to the House of Representatives for Cavenham, and became Attorney-General in Sir 's administration in March 1878, taking also the portfolio of Lands and Immigration in July. Sir George Grey went out of office in Oct. 1879. giving place to Mr. (afterwards Sir John) Hall. In the previous June Mr. Stout had resigned both his office and his seat in the House of Representatives. He did not enter Parliament again till 1884, when he was elected M.H.R. for Dunedin, and joined with Sir in forming the Stout-Vogel Ministry, in which he was Premier and Attorney-General and Minister of Education. Upon the defeat of this Government in Oct. 1887, Sir Robert Stout, who had lost his seat in Parliament, decided to abstain from political contests, though he has devoted himself to social and politico-social questions. He was created K.C.M.G. in 1886, and is a Fellow of the New Zealand University. Sir Robert is credited with being in a large degree responsible for the policy of the administration. In religion Sir Robert Stout is an Agnostic, and may be regarded as the leader of the Freethought party in New Zealand.

Stow, Augustine, J.P., son of the Rev. (q.v.), was a member of the Assembly for West Torrens from 1863 to 1864, and for Flinders from 1866 to 1868. In March of the following year he was elected to the Legislative Council, and retained his seat till Sept. 1871, when he resigned. Mr. Stow was Chief Secretary in Mr. ' Ministry for a few days in May 1870. In 1877 he entered the Government service, and in April 1884 was appointed Registrar of Probates, and Chief Clerk in the Supreme Court. He is also Commissioner of Inland Revenue without salary. 439


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 new vigor to all kinds of share market business. There are over a hundred members in the Ballarat Stock Exchange, and the press of business there lately has given them two sittings daily of over an hour's duration each for the most part, whereas in times of duller enterprise half that time has served for the transaction of business. Some surprise was caused a few days ago by an announcement in a Melbourne paper that Mr. Thomas Stoddart, of the Ballarat Exchange, had paid £800 for a seat in the Melbourne Exchange, but enquiry proved that the statement was true, and that the purchase was probably a highly beneficial one for the purchaser. Mr. Stoddart's theory is, that the Melbourne Exchange is to be the great exchange of the Australian colonies, and that it may some day, not far off, rival the San Francisco Exchange, where he saw a seat sold for 40,000 dollars. He paid £600 to Mr. Melhado for the Melbourne seat, and £200 as an entrance fee, but since then the Melbourne Exchange has decided to limit its roll to 100 members, and to charge £1000 each for the 25 new seats to make up the hundred, the capital thus accumulating to be used in the erection of a new exchange building worthy of the times and the metropolis. This is mentioned as an illustration of the magnitude of the sharebroking and sharedealing interests, and because they are indications of the large amount of attention and capital devoted to the exploration of our gold mines. The Ballarat Exchange bears a prominent part in the general sum of mining business, and though, as we write, the local "boom" is not so high in its swing as it was a week or two ago, the impetus given by it to local enterprise is bound to be productive of good, in the greater life imparted to an industry with whose fortunes the prosperity of this city and district must, for generations to come, be intimately connected.

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 said, of course, of all mines, even gold-producing ones, so great is the uncertainty of mining. But, after all, that is only a relative term. Actual discoveries, and the probabilities based on the known, do make future successes in many cases reasonably certain, although their actual measure is not ascertainable before hand. Of the mines on the eastern belt of lodes, the Monte Christo, Temperance, most of the Black Hill series, Sulieman Pasha, Britannia United, Last Chance, Llanberris, Speedwell, North Woah Hawp, Woah Hawp Canton, Woah Hawp Hong Kong, Prince Regent, Pearse's, and several unnamed co-operative ventures have reached gold. Of the public companies on that belt, the Sulieman Pasha, Llanberris, and North Woah Hawp are paying dividends, and others are approaching, through what miners call dead work, to that happy condition. Large dividends have been secured by co-operative parties, but they do not disclose actual results. On the western belt of lodes, the Band and Albion Consols, Star of the East, Band and Barton, Koh-i-noor, Serjeant's, Band of Hope, and Sir Henry Loch have been or are producing mines, and the first two are large producers and pay dividends. All of them, indeed, save the Loch, have paid dividends, and all may fairly be expected to do so again. All mines have their barren stages of dead work, as well after as before reaching gold, and the more or less near future will probably see at least a score of dividend-paying mines added to the present list of fortunate ventures.

The current mining revival is not local merely. There is a "boom" over the whole colony, and in all kinds of stock, the aggregate appreciation in which has been estimated by a writer in the Melbourne Argus at some ten millions sterling, including stocks in the silver mines of South Australia. As has been remarked, this greater interest in mining matters is largely due to the reduction of bank interest on deposits from six to four per cent, for yearly, and to three and two per cent, for half-yearly and quarterly terms, thus throwing heavy sums upon the stock and share market for investment. Imported capital, in the shape of public loans and private investments, has also swelled the amount of available money, and its relative cheapness gives

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 the year 1869 was brought to light. This was a lump of pure gold weighing 617oz., and it was found at a spot about 50 feet distant from the place where the "Lady Brassey" was discovered. When it was brought into Ballarat next day by Manager Robert Bryant and his men, and exhibited in Stoddart and Binnie's window at the Corner, the excitement was a moving reminder of the "good old days." Hundreds of sight-seers flocked to the Corner, and thus the ordinary hundreds of stock dealers were swollen for the time by the rush of as many hundreds more. Next day the nugget was sent to Melbourne, was exhibited at Government House, and there it was named the "Lady Loch," in honor of His Excellency's wife. Miss Cornwell had sailed some days before for London on a financial mission there, and it is understood at the "Lady Loch" nugget will be forwarded intact to London to serve as an illustration of the value of the mining grounds of the Ballarat gold field. The Midas claim is an area of close on 1000 acres; the company has never made a call, has won over 7300oz. of gold, and has two shafts and two well-appointed steam plants, on which £9670 has been spent up to date.

It will be easily imagined that the splendid fortunes of the Midas Company have given heart to the swarm of ventures around, as the Dowling Forest No. 1, Midas Consols, Midas Extended, Midas East, Midas North, Midas South, Midas King, Midas No. 1, Midas Revival, Midas Mount Cavern, and Madame Midas, and if but half of the mines turn out to be profitable, a great new alluvial field will be added to the wealth of the district and of the colony. On the Creswick side of the Divide the mines of Kingston and Smeaton and their vicinities occupy a high place in public estimation, and at the time of this writing the market is enlivened by the news of heavy gold from the famous Madame Berry mine's No. 2 shaft, where the first washings have just taken place. It is hardly necessary to state that all the mines shown on Mr. Allan's map are not actually now producing gold. Some are only in the initial stage of operations, and, whether on old ground or new, their future is all unknown. In a sense, as much may be

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 ties. — Introduction of Machinery. — Luck in Digging. — Mining Agree- ments and Litigation. — The Egerton Case. — The Clunes Riot. — The Browns Leases. — Pleasant Creek Jumps. — Stink Pots. — Private Property Leases and Law. — Foreign Capital. — Sebastopol Drainage. — Prospecting Board. — Koh-i-Noor, Band and Albion Consols, Llanberris, and Black Hill Quartz Companies. — The Kingston Alluvial Field. — Gold Returns and Mining Statistics. — Pre-eminence of the Ballarat District. — West- garth on the Purity of Ballarat Gold. — Assays of Ballarat Nuggets. — Table of Nugget Dates, Weights, and Localities. — Sebastopol Plateau Revival. — Increasing Proportion of Quartz Gold. — The Future to be Chiefly Quartz Mining.— The Comer.— A Great Transition. 193—238 CHAPTER VIII. THE TOWN OF BALLARAT. Area and Population of Ballarat. — Great Mining Collapse. — Municipal Statistics of Ballarat West, Ballarat East, and Sebastopol. — Water Supply. — Lake Wendouree. — Yacht and Rowing Clubs. — Hospital. — Benevolent Asylum. — Orphan Asylum. — Female Refuge. — Ladies' Bene- volent Society. — Roman Catholic and Anglican Dioceses. — Churches. — State and Church Schools — School of Mines. — Museum — Observatory. —Public Art Gallery.— The Stoddart Gift.— The Russell Thompson Be- quest. — The Burns Statue. — Other Statues Projected. — Typography. — Photography. — Lithography. — Public Libraries. — Mechanics' Institute. — Academy of Music. —Eisteddfod. — Cambrian Society. — Musical Societies. — Agricultural and Horticultural Societies. — Iron Foundries. — Implement Factories. — Woollen Mills. — Coachbuilding. — FJour Mills. — Bone Mills. — Breweries. — Distilleries. — Cordial Factories. — Bacon Fac- tories. — Tanneries. — Boot Factories. — Juvenile Industrial Exhibition. — Fire Brigades. — Volunteers and Militia. — Gas Company. — Banks. — Re- creation Reserves. — Cricket and Football Clubs. — Hunt, Race, Coursing, and Gun Clubs. — Roller Skating Rinks. — Acclimatisation, Caledonian, and Hibernian Societies. — Reformatory. — Hope Lodge. — Railways. — Tramways. —Public Offices. — Public Halls. — Gaol and Court House. — Camp. — Last of the Military. — Explorers' Monument. — Queen's Jubilee and Old Pioneers. — Electric Telegraph and Telephone. — Rainfall and Temperature. — Henry Sutton. — Local Journalism. — Royal and Other Visitors. — Reminiscences. — Past and Present Contrasts. ... 239 — 328 Appendix A ... ... ... ... ... ... 329 — 336

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CHAPTER I.

BALLARAT BEFORE THE GOLD DISCOVERV. ir U111.— FoundiiD; of Uuninyont,-.~A Wide Diocese. - Appmninre ot Ballaiit.-The Lv-es.— AhorigiDHl Nsines.-The Squatters. -Pi-emonitloTis of the Gold Discovery.

B A L L A R A T is one of the wonders of this century. Young in years its mutations have been many and rapid, and its marvellous progress has given to it n seeming antiquity beyond its urban years. Our task is to trace I outline of the rise and pi-ogress of this , golden city. This task takes us back to SyjJI days that seem, in the swift inarch of colonial events, to belong already to a remote antiquity, While the sailor- King William IV. was but newly buried, and Queen Victoria was still an uncix)wned maiden; while only a few rude liuts, sprinkled about the still uncleared slopes and gullies, failed to scare away the native animals that haunted the bush where the City of Mel- bourne now stands; while the pleasant borders of the Bay of Corio, where Geelong is to-day, were not graced by a single house, but only bore on their silent slopes a few scatt«red tents, a small band of settlers started from the Corio shore to explore the un- known country to the north-west. This was in the month of August, 1837. The party comprised Mr. Thomas Livingstone LearuiontI); Mr, D'Arcy, a surveyor; Dr. Thompson, late of Geelong; Mr. David Fisher, then maiutger of the Derwent

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 Hume, Fergus, the well-known writer, is a native of New Zealand, where his father is part proprietor of a private lunatic asylum near Dunedin. He was bred up to the law, and was articled in the office of Sir Robert Stout, the well-known New Zealand statesman. His first story of any length, and that by which his name is best known, was "The Mysteries of a Hansom Cab," which was first published in Melbourne, where it created a sensation. Mr. Trischler, who had been connected with the publishing house in that city, conceived the idea of reissuing it in London, and bought the rights from the author, bringing the book out in England in 1888, where its circulation was something phenomenal. Subsequently the work was dramatised. Mr. Hume came to reside in London soon after the reissue there of "The Mysteries of a Hansom Cab." In 1889 he produced "Madame Midas," and has written three books each year since. In 1889 he also published "The Piccadilly Puzzle"; in 1890 "The Gentleman who Vanished," "The Man with a Secret," and "Miss Mephistopheles"; in 1891 "A Creature of the Night," "Monsieur Judas: a Paradox," "Whom God hath joined," and "The Year of Miracle." In 1892 Mr. Hume produced "The Island of Fantasy," in three volumes.

Hume, Walter Cunningham, J. P., entered the Queensland Civil Service as a second-class surveyor in the Lands Department in June 1864. In the following year the office was abolished, but in May 1868 he was reinstated; and was appointed Mineral Land Commissioner at the Stanthorpe Tin Mines in 1872; District Surveyor and Land Commissioner at the Darling Downs in 1875; and Under-Secretary for Public Lands and Chief Commissioner of Crown Lands in March 1885.

Humffray, Hon. John Basson, first Minister of Mines in Victoria, was an early settler in the great gold mining district of Ballarat, in Victoria, and took a prominent part in the agitation for the repeal of the obnoxious gold miners' licences, which culminated in 1854 in the conflict between the miners and the military at the Eureka stockade. Mr. Humffray personally was, however, always in favour of constitutional methods as opposed to physical force. In 1856 he was returned to the first Legislative Assembly of Victoria as member for North Grant. In Nov. 1860 he was appointed Commissioner for Mines in the Government, and was thus the first Ministerial head of the Mining Department of Victoria. He resigned with his colleagues in Nov. 1861, and did not again take a prominent part in political life. He resided at Ballarat, where he died on March 31st, 1890.

Hunt, Robert, C.M.G., was appointed Deputy Master of the Mint in Sydney in Jan. 1878, and was created C.M.G. in 1888. He is the son of Henry Leigh Hunt and Ellen (Simpson) his wife, and was born in London on June 30th, 1830. In 1853 he was appointed first clerk of the Bullion Office, Sydney Mint, and arrived in New South Wales in 1854. Mr. Hunt was transferred to Melbourne in 1870, where he remained until he received his present appointment. He married at St. Leonards, N.S.W., on Nov. 25th, 1860, Miss Mary Paul.

Hutchinson, Right Rev. Monsignor John, O.S.A., Bishop of Maximinopolis, and Vicar-Apostolic of Cooktown, Qd., was consecrated in St. Mary's Cathedral, Sydney, on August 28th, 1887.

Hutton, Captain Frederick Wollaston, Professor of Biology, Canterbury College, N.Z., son of the Rev. H. F. Hutton, was born on Nov. 16th, 1836, at Gate Burton, Gainsborough, Lincolnshire, and educated at 8outhwell and the Royal Naval Academy, Gosport. Failing to get an appointment in the navy, he entered the merchant service in 1851, but afterwards studied civil engineering. In 1855 he entered the 23rd Royal Welsh Fusiliers, and went out to the Crimea. In the army he served also in China, in India through the Mutiny, at Malta, and in Ireland. He was gazetted captain on Dec 18th, 1862, but in Nov. 1865 sold out and emigrated to New Zealand. Here he was appointed by the Provincial Government of Auckland to report upon certain gold and coalfields. Subsequently he reported upon the defences of the various harbours in New Zealand. Captain Hutton was successively Assistant Geologist to the Geological Survey, teacher of Natural Science in Wellington College, and in 1873 Provincial Geologist of Otago. In Feb. 1877 he was made Professor of Natural Science in the University of Otago, and in Oct. 1879 became Professor 243


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Rh As soon as I was able to get out of bed, I crept away to the edge of the wood, and sat day after day beneath a moss-draped live-oak, watching birds feeding on the shore when the tide was out. Later, as I gathered some strength, I sailed in a little skiff from one key to another. Nearly all the shrubs and trees here are evergreen, and a few of the smaller plants are in flower all winter. The principal trees on this Cedar Key are the juniper, long-leafed pine, and live-oak. All of the latter, living and dead, are heavily draped with tillandsia, like those of Bonaventure. The leaf is oval, about two inches long, three fourths of an inch wide, glossy and dark green above, pale beneath. The trunk is usually much divided, and is extremely unwedgeable. The specimen on the opposite page is growing in the dooryard of Mr. Hodgson’s house. It is a grand old king, whose crown gleamed in the bright sky long ere the Spanish shipbuilders felled a single tree of this noble species.


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Rh The live-oaks of these keys divide empire with the long-leafed pine and palmetto, but in many places on the mainland there are large tracts exclusively occupied by them. Like the Bonaventure oaks they have the upper side of their main spreading branches thickly planted with ferns, grasses, small saw palmettos, etc. There is also a dwarf oak here, which forms dense thickets. The oaks of this key are not, like those of the Wisconsin openings, growing on grassy slopes, but stand, sunk to the shoulders, in flowering magnolias, heathworts, etc.

During my long sojourn here as a convalescent I used to lie on my back for whole days beneath the ample arms of these great trees, listening to the winds and the birds. There is an extensive shallow on the coast, close by, which the receding tide exposes daily. This is the feeding-ground of thousands of waders of all sizes, plumage, and language, and they make a lively picture and noise when they gather at the great family board to eat their daily bread, so bountifully provided for them.


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Rh Their leisure in time of high tide they spend in various ways and places. Some go in large flocks to reedy margins about the islands and wade and stand about quarrelling or making sport, occasionally finding a stray mouthful to eat. Some stand on the mangroves of the solitary shore, now and then plunging into the water after a fish. Some go long journeys inland, up creeks and inlets. A few lonely old herons of solemn look and wing retire to favorite oaks. It was my delight to watch those old white sages of immaculate feather as they stood erect drowsing away the dull hours between tides, curtained by long skeins of tillandsia. White-bearded hermits gazing dreamily from dark caves could not appear more solemn or more becomingly shrouded from the rest of their fellow beings.

One of the characteristic plants of these keys is the Spanish bayonet, a species of yucca, about eight or ten feet in height, and with a trunk three or four inches in diameter when full grown. It belongs to the lily family and


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Rh develops palmlike from terminal buds. The stout leaves are very rigid, sharp-pointed and bayonet-like. By one of these leaves a man might be as seriously stabbed as by an army bayonet, and woe to the luckless wanderer who dares to urge his way through these armed gardens after dark. Vegetable cats of many species will rob him of his clothes and claw his flesh, while dwarf palmettos will saw his bones, and the bayonets will glide to his joints and marrow without the smallest consideration for Lord Man.

The climate of these precious islets is simply warm summer and warmer summer, corresponding in time with winter and summer in the North. The weather goes smoothly over the points of union betwixt the twin summers. Few of the storms are very loud or variable. The average temperature during the day, in December, was about sixty-five degrees in the shade, but on one day a little damp snow fell.

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Rh feet above mean tide-water. It is surrounded by scores of other keys, many of them looking like a clump of palms, arranged like a tasteful bouquet, and placed in the sea to be kept fresh. Others have quite a sprinkling of oaks and junipers, beautifully united with vines. Still others consist of shells, with a few grasses and mangroves, circled with a rim of rushes. Those which have sedgy margins furnish a favorite retreat for countless waders and divers, especially for the pelicans that frequently whiten the shore like a ring of foam.

It is delightful to observe the assembling of these feathered people from the woods and reedy isles; herons white as wave-tops, or blue as the sky, winnowing the warm air on wide quiet wing; pelicans coming with baskets to fill, and the multitude of smaller sailors of the air, swift as swallows, gracefully taking their places at Nature’s family table for their daily bread. Happy birds!

The mockingbird is graceful in form and a fine singer, plainly dressed, rather familiar in


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Susquehanna Boom Company v. West Branch Boom Company

W. A. Wallace, for plaintiffs in error.

S. D. Ball, for defendant in error.

WAITE, C. J.


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Susquehanna Boom Company v. West Branch Boom Company/Opinion of the Court

The Susquehanna Boom Company was incorporated by the general assembly of Pennsylvania on the twenty-sixth of March, 1846, and as early as 1849 erected under its charter a boom in the west branch of the Susquehanna river, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not purport to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. On the twenty-sixth of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the west branch at Lock Haven, about 25 miles above Williamsport. Under its charter this company was not allowed to extend its boom more than half way across the river, but it could 'erect such piers, side branches, or sheer-booms as might be necessary. With this authority a sheer-boom was constructed in the north half of the stream. This suit was begun in a state court of Pennsylvania to enjoin the West Branch Company from maintaining § ch a sheer-boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The supreme court of the state, on appeal, decided that it could put in and maintain such a sheer-boom, and adjudged accordingly. To reverse that judgment this writ of error was brought. The West Branch Company now moves to dismiss the writ because no federal question is involved. It is clear to our minds that we have no jurisdiction. The constitution protects state corporations in such contracts with the state as their charters imply. The Susquehanna Company, whose rights are involved, was given full authority to erect and maintain its boom at Williamsport. That undoubtedly implied the right to use the river as others used it for bringing logs to the boom. The West Branch Company was also authorized to construct its boom in the south half of the river at Lock Haven. Whether it could under its chapter put a sheer-boom in the north half, seems to have been a question with the Susquehanna Company, and this suit was brought to have that question settled. That is clearly all there was in the case up to the time of the final decision in the supreme court, whose judgment we are now called on to review. There is nowhere, either in the pleadings, the evidence, or the suggestions of counsel, prior to the judgment, so far as we have been able to discover, even an intimation that the Susquehanna Company claimed any contract right under its charter to exclude the West Branch Company from such use as that company was making of the north half of the stream. The only controversy, apparently, was about the right of the West Branch Company, under its charter, to such use at all. 'Certainly,' as was said in Brown v. Colorado, 106 U.S. 97, [S.C.. 1 SUP. CT. REP. 175,] 'if the judgment of the courts of the states are to be reviewed here on such,' that is to say, federal, 'questions, it should only be when it appears unmistakably that the court either knew, or ought to have known, that such a question was involved in the decision to be made.' The fact that on a petition for rehearing it was suggested that if the charter of the West Branch Company was so construed as to give it the right to maintain its sheer-boom in the north half of the stream, that charter would impair the obligation of the contract of the state with the Susquehanna Company, is unimportant here, because our jurisdiction extends only to a review of the judgment as it stands in the record. We act on the case as made to the court below when the judgment was rendered, and cannot incorporate into the record any new matter which appears for the first time after the judgment on a petition for rehearing. Such a petition is no part of the record on which the judgment rests.

The motion to dismiss is granted.


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 A COMPARATIVE EXHIBIT

OF THE


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Holland v. Chambers

No brief filed for plaintiff in error.

''Jas. O. Broadhead'', for defendant in error.

WAITE, C. J.

title: Holland v. Chambers


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Holland v. Chambers/Opinion of the Court

This is a writ of error brought under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) to review an order of the circuit court remanding a cause which had been removed from a state court. The facts are as follows: The suit was begun in the state court on the nineteenth of July, 1879, by Chambers, as plaintiff, against C. M. Swope and Joseph B. Holland, defendants, to recover damages for writing and publishing an alleged libel. An answer was filed by Holland on the sixth of October, 1879, and an amended answer on January 24, 1880. A reply was filed February 5th. At the April term, 1880, a trial was had, which resulted in a verdict and judgment for $20,000 in favor of Chambers. This judgment was afterwards set aside by the court and a new trial granted. On the twentieth of January, 1882, Holland petitioned for the removal of the suit as against him to the circuit court of the United States for the eastern district of Missouri. The petition set forth that Holland was a citizen of Illinois, and both Swope and Chambers citizens of Missouri; 'that said suit is one in which there can be a final determination of the controversy, so far as it concerns your petitioner, without the presence of the said defendant Swope as a party in said cause; and that your petitioner desires to remove said suit as against your petitioner, and so far as concerns him, into the circuit court, * *  * in pursuance of the act of congress in that behalf provided, to-wit, the Revised Statutes of the United States, section 639, subdivision second.' Upon these facts the order of the circuit court remanding the cause was clearly right. The second subdivision of section 639 was repealed by the act of March 3, 1875, c. 137. That was settled in Hyde v. Ruble, 104 U.S. 407, and King v. Cornell, 106 U.S. 395; [S.C.. 1 SUP. CT. REP. 312.]

Under the act of 1875 the petition for removal must be filed in the state court before or at the term at which the cause could be first tried. This suit could not only have been tried, but it actually was tried once, nearly two years before the petition to remove. Such being the case, it is needless to inquire whether there might have been a removal under that act if an application had been made in time and in proper form.

The order remanding the cause is affirmed.


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Rh habits, frequently coming like robins to door-sills for crumbs—a noble fellow, beloved by everybody. Wild geese are abundant in winter, associated with brant, some species of which I have never seen in the North. Also great flocks of robins, mourning doves, bluebirds, and the delightful brown thrashers. A large number of the smaller birds are fine singers. Crows, too, are here, some of them cawing with a foreign accent. The common bob-white quail I observed as far south as middle Georgia.

Lime Key, sketched on the opposite page, is a fair specimen of the Florida keys on this part of the coast. A fragment of cactus, Opuntia, sketched on another page, is from the above-named key, and is abundant there. The fruit, an inch in length, is gathered, and made into a sauce, of which some people are fond. This species forms thorny, impenetrable thickets. One joint that I measured was fifteen inches long.

The mainland of Florida is less salubrious


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Rh than the islands, but no portion of this coast, nor of the flat border which sweeps from Maryland to Texas, is quite free from malaria. All the inhabitants of this region, whether black or white, are liable to be prostrated by the ever-present fever and ague, to say nothing of the plagues of cholera and yellow fever that come and go suddenly like storms, prostrating the population and cutting gaps in it like hurricanes in woods.

The world, we are told, was made especially for man—a presumption not supported by all the facts. A numerous class of men are painfully astonished whenever they find anything, living or dead, in all God's universe, which they cannot eat or render in some way what they call useful to themselves. They have precise dogmatic insight of the intentions of the Creator, and it is hardly possible to be guilty of irreverence in speaking of their God any more than of heathen idols. He is regarded as a civilized, law-abiding gentleman in favor either of a republican form of government or of a


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Rh limited monarchy; believes in the literature and language of England; is a warm supporter of the English constitution and Sunday schools and missionary societies; and is as purely a manufactured article as any puppet of a half-penny theater.

With such views of the Creator it is, of course, not surprising that erroneous views should be entertained of the creation. To such properly trimmed people, the sheep, for example, is an easy problem—food and clothing "for us," eating grass and daisies white by divine appointment for this predestined purpose, on perceiving the demand for wool that would be occasioned by the eating of the apple in the Garden of Eden.

In the same pleasant plan, whales are store houses of oil for us, to help out the stars in lighting our dark ways until the discovery of the Pennsylvania oil wells. Among plants, hemp, to say nothing of the cereals, is a case of evident destination for ships rigging, wrapping packages, and hanging the wicked. Cotton is


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Rh plain case of clothing. Iron was made for hammers and ploughs, and lead for bullets; all intended for us. And so of other small handfuls of insignificant things.

But if we should ask these profound expositors of God’s intentions, How about those man-eating animals—lions, tigers, alligators—which smack their lips over raw man? Or about those myriads of noxious insects that destroy labor and drink his blood? Doubtless man was intended for food and drink for all these? Oh, no! Not at all! These are unresolvable difficulties connected with Eden’s apple and the Devil. Why does water drown its lord? Why do so many minerals poison him? Why are so many plants and fishes deadly enemies? Why is the lord of creation subjected to the same laws of life as his subjects? Oh, all these things are satanic, or in some way connected with the first garden.

Now, it never seems to occur to these farseeing teachers that Nature’s object in making animals and plants might possibly be first of


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Boyd and exertions' soon carried it to a great 'pitch of celebrity.' He was 'zealously attached to Mr. Pitt, and enjoyed his confidence for many years' (advertisement to 2nd edition of Letter to Pitt). He was employed in contracting to the amount of over thirty millions for large government loans, and for some time was very prosperous. He was also M.P. for Shaftesbury (1796-1802), which at the period of his election was a pocket borough of his partner [q. v.], who was returned along with him (, History of County of Dorset, iii. 19, 20, Westminster, 1868). After a few years the firm got into difficulties. It had at one time seemed likely that the property seized at Paris would be restored, but the revolution of 4 Sept. 1797 caused the overthrow of the government which had taken the preliminary steps towards this restitution, and the final confiscation of the property followed. In expectation of a different issue, Boyd, Benfield, & Co. had entered into various arrangements which soon resulted in disaster. They obtained private help, and even assistance from government, but in 1799 the affairs of the company were put into liquidation, and Boyd found himself ruined. He visited France in the brief interval of peace (March 1802-May 1803), was one of the detained, and was not released till the fall of Napoleon in 1814. On his return to England he was able to recover something of his former prosperity, and sat as M.P. for the borough of Lymington from April 1823 to 1830. Scott met him in April 1828, and gives an account, apparently not quite accurate, of his remarkable self-sacrifice on behalf of his creditors ('s Life of Scott, ch. lxxvi.) He died at Plaistow Lodge, Kent, on 16 Sept. 1837. Boyd wrote several pamphlets on financial subjects, which were not without weight in themselves, and to which the author's position gave additional force. They were:
 * 1) 'Letter to the Right Honourable William Pitt on the Influence of the Stoppage of Issues in Specie at the Bank of England on the Prices of Provisions and other Commodities' (London, 1801, 2nd ed. 1811). This was called forth by a pamphlet on the effects of the suspension of cash payments in 1797, and was intended to prove 'that the increase of banknotes is the principal cause of the great rise in the price of commodities and every species of exchangeable value' (p. 7). These conclusions were attacked by Sir Francis Baring in his 'Observations' (1801) and a number of other writers (a list of some of these is given in general index to Monthly Review, London, 1818, i. 610).
 * 2) 'Reflections on the Financial System of Great Britain, and particularly on the Sinking Fund' (1815, 2nd ed. 1828). This was written in captivity in France in 1812. It enlarges on the benefits of a sinking fund as a means of clearing off national debt, and explains various schemes for its application.
 * 3) 'Observations on Lord Grenville's Essay on the Sinking Fund' (London, 1828), pursues the same line of argument, and is a reply to the treatise of that nobleman published the same year.

 BOYD, WILLIAM, fourth (1704–1746), belonged to a family which derives its descent from Simon, third son of Alan, lord high chancellor of Scotland, and brother of Walter, the first high steward of Scotland. Simon's grandson Robert was awarded a grant of lands in Cunninghame by Alexander III, as a reward for his bravery at the battle of Largs, 1263. From the earliest times the family was noted for its antagonism to the English, and it is recorded of Sir Robert Boyd that he was a staunch partisan of Sir William Wallace, and subsequently of Bruce, from whom he received a grant of the lands of Kilmarnock, Bondington, and Hertschaw (, Life of Bruce).

William, ninth lord Boyd, descendant of, first lord Boyd [q. v.], was created first earl of Kilmarnock by Charles II, by patent bearing date 7 Aug. 1661.

The third earl was an ardent supporter of the house of Hanover. Rae, in his 'History of the Rebellion,' says of him: 'It must not be forgot that the Earl of Kilmarnock appeared here at the head of above 500 of his own men well appointed … and that which added very much unto it was the early blossoms of the loyal principle and education of my Lord Boyd, who, though but eleven years of age, appeared in arms with the Earl his father.' This was in 1715, and the boy here mentioned succeeded his father as fourth earl of Kilmarnock in 1717. He was born in 1704, his mother being the Lady Euphane, eldest daughter of the eleventh Lord Ross. His character was generous, open, and affectionate, but he was pleasure-loving, vain, and inconstant. He was educated at Glasgow, and during the earlier part of his life he continued, in accordance with his father's principles, to support the house of Hanover; and we find that, on the death of George I, he sent an order calling on the authorities of Kilmarnock to hold 'the train bands in readiness for proclaiming the Prince of Wales.' It was not


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Rh all the happiness of each one of them, not the creation of all for the happiness of one. Why should man value himself as more than a small part of the one great unit of creation? And what creature of all that the Lord has taken the pains to make is not essential to the completeness of that unit—the cosmos? The universe would be incomplete without man; but it would also be incomplete without the smallest transmicroscopic creature that dwells beyond our conceitful eyes and knowledge.

From the dust of the earth, from the common elementary fund, the Creator has made Homo sapiens. From the same material he has made every other creature, however noxious and insignificant to us. They are earth-born companions and our fellow mortals. The fearfully good, the orthodox, of this laborious patchwork of modern civilization cry "Heresy" on every one whose sympathies reach a single hair’s breadth beyond the boundary epidermis of our own species. Not content with taking all of earth, they also claim the celestial


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 Boyd indeed until quite the close of the rebellion of '45 that he proved false to the opinions which this act shows him to have held. Various reasons are assigned for his defection ; by some it was attributed to the influence of his wife, Lady Anne Livingstone, who was a catholic, and whose father, fifth earl of Linlithgow, had been attainted for treason in 1715. Smollett, however, says : 'He engaged in the rebellion partly through the desperate situation of his fortune, and partly through resentment to the government on his being deprived of a pension which he had for some time enjoyed.' This opinion is supported by Horace Walpole, who mentions that the pension was obtained by his father (Sir Robert Walpole) and stopped by Lord Wilmington. In his confession to Mr. James Foster a dissenting minister who attended him from the time sentence of death was passed on him to the day of his execution the earl himself says : 'The true root of all was his careless and dissolute life, by which he had reduced himself to great and perplexing difficulties.' The persuasions of his, wife, who was captivated by the affability of the young Pretender, no doubt influenced him in deserting the Hanoverian cause ; but the hope of bettering his straitened fortunes by a change of dynasty must also be taken into account. His estates were much encumbered when he succeeded to them, and a long course of dissipation and extravagance had plunged him into such embarrassment that his wife writes to him : 'After plaguing the Stewart for a fortnight I have only succeeded in obtaining three shillings from him.'

When he finally joined the rebels he was received by Prince Charles with great marks of distinction and esteem, and was made by him a privy councillor, colonel of the guards, and subsequently general. He took a leading part in the battle of Falkirk, 17 Jan. 1746. At the battle of Culloden he was taken prisoner in consequence of a mistake he made in supposing a troop of English to be a body of Fitz-James's horse. In his speech at the trial he pleaded as an extenuating circumstance that his surrender was voluntary, but afterwards admitted the truth, and requested Mr. Foster to publish his confession. On 29 May he, together with the Earl of Cromarty and Lord Balmerino, was lodged in the Tower. They were subsequently tried before the House of Lords, and convicted of high treason, notwithstanding an eloquent speech from Lord Kilmarnock. The court was presided over by Lord Hardwicke as lord high steward, and his conduct on this occasion seems to have been strangely wanting in judicial impartiality. Walpole, in a letter to Sir Horace Mann commenting on this, says : 'To the prisoners he was peevish, and instead of keeping up to the humane dignity of the law of England, whose character it is to point out favour to the criminal, he crossed them and almost scoffed at any offer they made towards defence.' The sentence on Lord Cromarty was afterwards remitted, but no such grace was accorded to Lord Kilmarnock, principally on account of the erroneous belief held by the Duke of Cumberland that it was he who was responsible for the order that no quarter was to be given to the English at Culloden. On 18 Aug. 1746 he was executed on Tower Hill in company with Lord Balmerino. He is described as being 'tall and slender, with an extreme fine person,' and his behaviour at the execution was held to be a most just mixture between dignity and submission.' His lands were confiscated, but subsequently restored to his eldest son, and sold by him to the Earl of Glencairn. The title was merged in 1758 in that of Errol.

[Paterson's History of Ayr, 1847; M'Kay's History of Kilmarnock, 1864; Doran's London in the Jacobite Times, 1871 ; Moore's Compleat Account of the Lives of the two Rebel Lords, 1746; Ford's Life of William Boyd, Earl of Kilmarnock, 1746; Foster's Account of the Behaviour of William Boyd, Earl of Kilmarnock, 1746; Observations and Eemarks on the two Accounts lately published by J. Ford and J. Foster, 1746; Gent. Mag. xvi.; Scots Mag. viii. ; Howell's State Trials, xviii.]

BOYD, WILLIAM (d. 1772), Irish presbyterian minister, was ordained minister of Macosquin, co. Derry,by the Coleraine presbytery, on 31 Jan. 1710. He is memorable as the bearer of a commission to Colonel Samuel Suitte, governor of New England, embodying a proposal for an extensive emigration from co. Derry to that colony. The commission is dated 26 March 1718, is signed by nine presbyterian ministers and 208 members of their flocks, who declare their 'sincere and hearty inclination to transport ourselves to that very excellent and renowned Plantation, upon our obtaining from His Excellency suitable encouragement.' Witherow reprints the document, with the signatures in full, from Edward Lutwyche Parker's 'History of Londonderry, New Hampshire,' Boston, 1851. Boyd fulfilled his mission in 1718. How he was received is not known ; the intended emigration did not, however, take place. But in the same year, without awaiting the issue of Boyd's negotiation, James McGregor (minister of Aghadowey, co. Derry, from 1701 to 1718), who had not signed the document, emigrated to New Hampshire with some of his people, and there founded a town to which was given the name of Londonderry.


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 In the non-subscription controversy Boyd took a warm part. When the general synod of Ulster in 1721 permitted those of its members to subscribe the Westminster Confession who thought fit, Boyd was one of the signatories He was on the committee of six appointed in 1724 to draw up articles against Thomas Nevin, M.A. (minister of Downpatrick from 1711 to 1744; accused of impugning the deity of Christ), and probably drafted the document. Next year Boyd moved from Macosquin to a congregation nearer Londonderry, anciently known as Taughboyne, subsequently as Monreagh, where he was installed by Deny presbytery on 25 April 1725. The stipend promised was 50l. The congregation had been vacant since the removal of William Gray to Usher's Quay, Dublin, in 1721. In 1727 Gray, without ecclesiastical sanction, came back to Taughboyne and set up an opposition meeting in a disused corn-kiln at St. Johnston, within the bounds of his old congregation. Hence arose defections, recriminations, and the diminution of Boyd's stipend to 40l. The general synod elected him moderator at Dungannon in 1730. The sermon with which he concluded his term of office in the following year at Antrim proves his orthodoxy as a subscriber to the Westminster Confession, and perhaps also proves that the influence of a non-subscribing publication, above ten years old, was by no means spent. It is directed specially against a famous discourse by the non-subscribing minister of the town in which it was delivered, John Abernethy, M.A., whose 'Religious Obedience founded on Personal Persuasion' was preached at Belfast on 9 Dec. 1719, and printed in 1720 [see, 1680-1740]. Boyd decides that 'conscience is not the supreme lawgiver,' and that it has no judicial authority except in so far as it administers 'the law of God,' an expression which with him is synonymous with the interpretation of Scripture accepted by his church. In 1734 Boyd was an unsuccessful candidate for the clerkship of the general synod. His zeal for the faith was again shown in 1739, when he took the lead against Richard Aprichard, a probationer of the Armagh presbytery, who had scruples about some points of the Confession, and ultimately withdrew from the synod's jurisdiction. He was one of the ten divines appointed by the synod at Magherafelt on 16 June 1747 to draw up a 'Serious Warning' to be read from the pulpits against dangerous errors 'creeping into our bounds.' These errors were in reference to such doctrines as original sin, the 'satisfaction of Christ,' the Trinity, and the authority of Scripture. The synod, in spite of its 'Serious Warning,' would not entertain a proposal to forbid the growing practice of intercommunion with the non-subscribers. We hear nothing more of Boyd till his death, which occurred at an advanced age on 2 May 1772. He published only 'A Good Conscience a Necessary Qualification of a Gospel Minister. A Sermon (Heb. xiii. 18) preached at Antrim June 15th 1731, at a General Synod of the Protestants of the Presbyterian Persuasion in the North of Ireland,' Derry. 1731, 18mo.

BOYD, ZACHARY (1585?–1653), was a descendant of the family of Boyd of Penkill in Ayrshire. He was born about 1585, and was first educated at Kilmarnock, whence he went to Glasgow University in 1601. He also attended the university of St. Andrews from 1603 to 1607, and graduated there as M.A. Subsequently he went over to the protestant college of Saumur, in France, and was offered, but declined, the principalship of that college. He resided in France for sixteen years, and seems to have left it on account of the religious troubles. In 1623 he returned to Scotland, and was appointed minister of the Barony parish in Glasgow.

He died in 1653. The latter part of his life was spent in the management of his parish and of the affairs of the Glasgow University, in which he took a deep interest, and in literary pursuits. Only a part of his writings were printed; some still remain in manuscript in the possession of Glasgow University, to which he left them, along with a money bequest, which not only assisted in providing new buildings, but served to establish some bursaries. His bust, well known to many generations of students, stood in a niche of the quadrangle which was built with his bequest, until a few years ago the university deserted those buildings and moved to its present situation, where the bust is still preserved in the library. Boyd served the offices of dean of faculty, rector, and vice-chancellor in the university during several years. His printed prose works appeared between 1629 and 1650; the printed poetical works between 1640 and 1652. 'The Battell of the Soul in Death' (1629), dedicated to Charles I, and in French to Queen Henrietta Maria, while the second volume contains a dedicatory letter to Elizabeth, queen of Bohemia, on the death of her son Frederick, is a sort of prose manual for the sick. About 1640


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Rh as the only ones who possess the kind of souls for which that imponderable empire was planned.

This star, our own good earth, made many a successful journey around the heavens ere man was made, and whole kingdoms of creatures enjoyed existence and returned to dust ere man appeared to claim them. After human beings have also played their part in Creation’s plan, they too may disappear without any general burning or extraordinary commotion whatever.

Plants are credited with but dim and uncertain sensation, and minerals with positively none at all. But why may not even a mineral arrangement of matter be endowed with sensation of a kind that we in our blind exclusive perfection can have no manner of communication with?

But I have wandered from my object. I stated a page or two back that man claimed the earth was made for him, and I was going to say that venomous beasts, thorny plants,


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Rh and deadly diseases of certain parts of the earth prove that the whole world was not made for him. When an animal from a tropical climate is taken to high latitudes, it may perish of cold, and we say that such an animal was never intended for so severe a climate. But when man betakes himself to sickly parts of the tropics and perishes, he cannot see that he was never intended for such deadly climates. No, he will rather accuse the first mother of the cause of the difficulty, though she may never have seen a fever district; or will consider it a providential chastisement for some self-invented form of sin.

Furthermore, all uneatable and uncivilizable animals, and all plants which carry prickles, are deplorable evils which, according to closet researches of clergy, require the cleansing chemistry of universal planetary combustion. But more than aught else mankind requires burning, as being in great part wicked, and if that transmundane furnace can be so applied and regulated as to smelt and purify us into


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Rh with the rest of the terrestrial creation, then the tophetization of the erratic genus Homo were a consummation devoutly to be prayed for. But, glad to leave these ecclesiastical fires and blunders, I joyfully return to the immortal truth and immortal beauty of Nature.


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NE day in January I climbed to the housetop to get a view of another of the fine sunsets of this land of flowers. The landscape was a strip of clear Gulf water, a strip of sylvan coast, a tranquil company of shell and coral keys, and a gloriously colored sky without a threatening cloud. All the winds were hushed and the calm of the heavens was as profound as that of the palmy islands and their encircling waters. As I gazed from one to another of the palm-crowned keys, enclosed by the sunset-colored dome, my eyes chanced to rest upon the fluttering sails of a Yankee schooner that was threading the tortuous channel in the coral reef leading to the harbor of Cedar Keys. "There," thought I, "perhaps I may sail in that pretty white moth." She proved to be the schooner Island Belle.


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Rh One day soon after her arrival I went over the key to the harbor, for I was now strong enough to walk. Some of her crew were ashore after water. I waited until their casks were filled, and went with them to the vessel in their boat. Ascertained that she was ready to sail with her cargo of lumber for Cuba. I engaged passage on her for twenty-five dollars, and asked her sharp-visaged captain when he would sail. "Just as soon," said he, "as we get a north wind. We have had northers enough when we did not want them, and now we have this dying breath from the south."

Hurrying back to the house, I gathered my plants, took leave of my kind friends, and went aboard, and soon, as if to calm the captain’s complaints, Boreas came foaming loud and strong. The little craft was quickly trimmed and snugged, her inviting sails spread open, and away she dashed to her ocean home like an exulting war-horse to the battle. Islet after islet speedily grew dim and sank beneath the horizon. Deeper became the blue of the


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Rh water, and in a few hours all of Florida vanished.

This excursion on the sea, the first one after twenty years in the woods, was of course exceedingly interesting, and I was full of hope, glad to be once more on my journey to the South. Boreas increased in power and the Island Belle appeared to glory in her speed and managed her full-spread wings as gracefully as a sea-bird. In less than a day our norther increased in strength to the storm point. Deeper and wider became the valleys, and yet higher the hills of the round plain of water. The flying jib and gaff topsails were lowered and mainsails close-reefed, and our deck was white with broken wave-tops.

"You had better go below," said the captain. "The Gulf Stream, opposed by this wind, is raising a heavy sea and you will be sick. No landsman can stand this long." I replied that I hoped the storm would be as violent as his ship could bear, that I enjoyed the scenery of such a sea so much that it was impossible to be


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Rh sick, that I had long waited in the woods for just such a storm, and that, now that the precious thing had come, I would remain on deck and enjoy it. "Well," said he, "if you can stand this, you are the first landsman I ever saw that could."

I remained on deck, holding on by a rope to keep from being washed overboard, and watched the behavior of the Belle as she dared nobly on; but my attention was mostly directed among the glorious fields of foam-topped waves. The wind had a mysterious voice and carried nothing now of the songs of birds or of the rustling of palms and fragrant vines. Its burden was gathered from a stormy expanse of crested waves and briny tangles. I could see no striving in those magnificent wave-motions, no raging; all the storm was apparently inspired with nature’s beauty and harmony. Every wave was obedient and harmonious as the smoothest ripple of a forest lake, and after dark all the water was phosphorescent like silver fire, a glorious sight.


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Rh Our luminous storm was all too short for me. Cuba’s rock-waves loomed above the white waters early in the morning. The sailors, accustomed to detect the faintest land line, pointed out well-known guiding harbor-marks back of the Morro Castle long before I could see them through the flying spray. We sailed landward for several hours, the misty shore be coming gradually more earthlike. A flock of white-plumaged ships was departing from the Havana harbor, or, like us, seeking to enter it. No sooner had our little schooner flapped her sails in the lee of the Castle than she was boarded by a swarm of daintily dressed officials who were good-naturedly and good-gesturedly making all sorts of inquiries, while our busy captain, paying little attention to them, was giving orders to his crew.

The neck of the harbor is narrow and it is seldom possible to sail in to appointed anchorage without the aid of a steam tug. Our captain wished to save his money, but after much profitless tacking was compelled to take the


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Rh proffered aid of steam, when we soon reached our quiet mid-harbor quarters and dropped anchor among ships of every size from every sea.

I was still four or five hundred yards from land and could determine no plant in sight excepting the long arched leaf banners of the banana and the palm, which made a brave show on the Morro Hill. When we were approaching the land, I observed that in some places it was distinctly yellow, and I wondered while we were yet some miles distant whether the color belonged to the ground or to sheets of flowers. From our harbor home I could now see that the color was plant-gold. On one side of the harbor was a city of these yellow plants; on the other, a city of yellow stucco houses, narrowly and confusedly congregated.

"Do you want to go ashore?" said the captain to me. "Yes," I replied, "but I wish to go to the plant side of the harbor." "Oh, well," he said, "come with me now. There are some fine squares and gardens in the city, full of all


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American Bible Society v. Price

''Geo. P. Strong'', for appellants.

Gustavus Koerner, for appellee.

WAITE, C. J.

title: American Bible Society v. Price


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American Bible Society v. Price/Opinion of the Court

This is an appeal from an order remanding a cause which has been removed from a state court. The case is as follows: Isaac Foreman, a citizen of Illinois, died on the twenty-eighth of October, 1878, leaving a will by which, after devising certain property to his wife, Rebecca Foreman, for life, he appointed John J. Thomas, Frederick H. Pieper, and Theophilus Harrison, all citizens of Illinois, his executors. After directing his executors to convert all his property into money, he proceeded as follows:

'(4) After the payment of all my just debts, I give and     bequeath to my said executors the sum of two thousand dollars      ($2,000) in trust for the use and benefit of my daughter,      Mary Price, during her natural life. I desire my said     executors to safely loan on interest said sum of money, and      pay to my said daughter the interest or profits thereof      annually during her life, and after her death the proceeds or      interest thereof to be paid annually f r the maintenance and      education of her child or children, and such principal sum to      be paid to her child or children when he, she, or they become      of age. And should my said daughter die leaving no child or     children, or should all of them die before coming of age,      then the said sum of two thousand dollars shall be payable by      my said executors, two-thirds thereof to the American Bible      Society, and one-third thereof to the Missionary Society of      the Methodist Episcopal Church of the United States of      America.'

All the residue of the proceeds of his property were to be paid over to the two societies in the same proportions.

This suit was begun by Mary Price, a citizen of Illinois, the daughter, on the nineteenth of November, 1878, to set aside the will on the ground that the testator was of unsound mind when it was made. The widow, the executors, and the two societies were all made defendants. A joint answer was filed by all the defendants on the fourteenth of January, 1879. On the twenty-first of September, 1880, the widow filed a separate answer, in which she set forth her election to renounce the will, and take her dower and legal share of the estate of her husband. She therefore disclaimed all interest in the controversy. Thereupon the two societies filed a petition for the removal of the suit to the circuit court of the United States for the southern district of Illinois, under the third subdivision of section 639 of the Revised Statutes, on account of 'prejudice and local influence.' When the case got to the circuit court it was remanded on the ground that the executors were necessary defendants and citizens of the same state with the complainant. To reverse that order this appeal was taken. That a suit cannot be removed under the third subdivision of section 639, unless all the parties on one side of the controversy are citizens of different states from those on the other, was settled in the cases of the Sewing-machine Cos. 18 Wall. 587, and Vannevar v. Bryant, 21 Wall. 43; and that the executors were necessary parties we have no doubt. The sum of $2,000 was specifically bequeathed to them in trust for the complainant, Mrs. Price, during her life, and after her death for her children, or, in case of their death before coming of age, for the two societies. The interest of the children is left entirely to the protection of the executors, and is not represented either by the mother, who is complainant, or by the societies, who are defendants. If the children had united with the mother in contesting the will the case might have been different, but they have not done so, and their interests must be treated accordingly.

Without, therefore, deciding any of the other questions which have been argued, or might be suggested, the order remanding the case is affirmed.


text: Talk:American Bible Society v. Price/Opinion of the Court