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United States v. Price (50 U.S. 83)/Dissent Woodbury

Mr. Justice WOODBURY.

The leading question in this case is, whether, after the recovery of a joint judgment on a joint and several bond, and the death of one of the obligors happening, who was a surety, a court of equity will sustain a remedy against his property in the lands of his executor.

The safety of the government, having such numerous sureties on official bonds, depends so much on their liability in all proper cases, that the technical discharge of them objections not reaching the merits is a great and growing evil. The public, too, in the individual dealings of many on the strength of the security furnished by others than the principal debtor, have a deep interest in preventing their discharge without a full satisfaction of the debt.

I must be excused, then, for stating some of the reasons and authorities why it is not in my power to concur in the judgment just pronounced, discharging the executor of the surety to the government, without making any payment whatever of the debt. It is conceded by me, that, in case of a debt entirely joint, if one of the obligors die, it is a rule in a court of law, that 'his executor is totally discharged, and the survivor or survivors only chargeable.' 2 Howard, 78; 2 Sumner, 368; Bac. Abr., Obligations, D. 3; Erwin v. Dundas, 4 Howard, 78; 2 Wharton, 361, in Kennedy v. Carpenter, and cases cited there; 2 Harr. & Gill, 313; Rogers v. Danvers, 1 Mod. 165; 1 Freeman, 127. This, however, is the rule at law, and is not, in all cases, the same in equity. Even at law, the objection is purely technical, and arises only on account of the want of a remedy there against the estate of the deceased, and not because the debt itself has been satisfied; and so strong is the justice of still enforcing it at law without a resort to equity, that the statutes of many States have expressly made provision for collecting a debt against the estate of all joint debtors when it has never yet been paid by either. See United States v. Cushman, 2 Sumner, 312, and 2 Gill & Johns. 316. But in time, without any statute, courts of chancery gave relief in this class of joint contracts by allowing a remedy in certain instances; and though this was at first refused (2 Brown, Ch. 276), and was granted at last with some hesitancy, it has become the ordinary practice to allow it, when the original indebtedness or liability, though now in form joint, was on any account, or in any just view, general no less than joint.

Indeed, without relying on this distinction, the Lord Chancellor in Primrose v. Bromley, 1 Atkyns, 90, states a case where he decreed such relief, to a certain extent, on a joint bond against the estate of the deceased. He observes,-'There was a case which I determined in this court, where there were two persons jointly bound in a bond, one of the obligors died; and to be sure, at law, it might have been put in suit against the survivor, but as I thought it extremely hard, I decreed the representative of the co-obligor should be charged pari passu with the surviving obligor in the payment of the bond.'

But it seems uniform to grant such relief by a new remedy in chancery against the estate of the deceased, whenever, as here, the original contract was several as well as joint. Towers v. Moor, 2 Vern. 99; 1 Peters, 16, and cases post; Rogers v. Danvers, 1 Mod. 165; Burr. 1190; Williams on Executors, 809, 811; 1 Freeman, 127. I doubt whether a single case to the contrary exists in either the American or the English books.

One ground of relief, where the original contract was several no less than joint, is the admission in the undertaking, that each signer and his estate should be separately liable for the whole to the obligee, so far as regards him, and hence raising in equity a liability to do this separately by his property after death, because the difficulty in any remedy to enforce it at law is merely technical, and the equity or conscience in paying an unsatisfied promise and debt stands still unimpaired. See further cases. United States v. Cushman, 2 Sumner, 427; 1 Merivale, 563; Sumner v. Powell, 2 Merivale, 30; Devaynes v. Noble, 2 Russ. & Mylne, 506. The chief difficulty in this class of cases is to settle whether the contract was several as well as joint. It is the language of the contract, when several, which is the most decisive test as to its severalty. Sir Wm. Grant says, 'When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived.' 2 Meriv. 36. A similar reliance on the words used being joint only, and not several, appears in Harrison v. Field, 2 Wash. 141.

The court observes, too, in Sumner v. Powell, 1 Turner & Russell, 425, 'There can be no doubt in the world, that, if this covenant had been a joint and several covenant, it would have done, and therefore any evil which might otherwise arise out of the case may be avoided by the addition of a single word.' In Towers v. Moor, 2 Vernon, 99, it is said, 'Where two are jointly bound. and one dies, you must sue the survivor, and cannot maintain an action against the executor or administrator of him that is dead; but if bound jointly and severally, it is otherwise.'

So in Lechmere v. Fletcher, 1 Crompton & Meeson, 629, there had been a contract wholly joint, and a judgment on it jointly; but one of the promisors made also a several agreement to pay the amount, not as a substitute, but as an additional undertaking; and a remedy in equity against the representative of this last promisor was sustained on that separate agreement.

But without pursuing this point further, it is placed beyond doubt, by the numerous cases hereafter cited, that courts of equity will give relief, though the contract produced is on its face joint, if it be proved that it was originally agreed to be joint and several, and by mistake or ignorance was written joint alone. It becomes necessary, then, to consider next the only pretence urged for taking this case out of the general rule, namely, that a joint judgment had been subsequently recovered here against all the obligors, and that the deceased was a surety.

1st. It has been much pressed here that the remedy in this case is now at law only on the joint judgment, and hence should not be enforced severally in equity. But it is conceded that the original liability was joint and several; and it is laid down in some books, that a several action at law could probably have been sustained here on the original demand, after the joint judgment.

It has been adjudged by this court, that on a joint and several promissory note an action and judgment against the signers severally are no bar to a joint action against them. Sheehy v. Mandeville, 6 Cranch, 253; 6 Coke, 44; 13 Mass. 148. And though a joint suit on a joint and several promise is a bar to another joint action on it, (Higgens's case, 6 Coke, 45; Gilman v. Rives, 10 Pet. 298,) it is thought by Judge Story, after much deliberation and research, to be no bar to a several suit and judgment afterwards on the original joint and several promise. U. States v. Cushman, 2 Sumner, 312, semb., and 427; 1 Story's Eq. Jur. § 164 and note, and $676; 7 Serg. & Rawle, 355; Lechmere v. Fletcher, 1 Crompt. & Mees. 623. Sed cited contra, 13 Serg. & Rawle, 288; 2 Watts, 204; 7 Serg. & Rawle, 354; 2 Serg. & Rawle, 280; 9 Watts & Serg. 88; U. States v. Thompson, 1 Gilpin, 622; 1 Peters, 16; 2 Wash. 136.

On an examination of the opposing cases which have been cited, it will be seen that the weight of authority is against the technical merger or bar set up here by the joint judgment.

The case cited from Gilpin against this is one at law; and the point in controversy was merely the validity of a release to one co-obligor, after a judgment against another, to discharge the latter also.

The case of Williams et al. v. McFall, 2 Serg. & R. 280-282, is only sustaining a judgment separately against one co-obligor, who confessed it.

The case in 1 Peters, 16, merely held one obligee to abide by the selection he had made of one kind of security over another, given by a single obligor.

The case in 2 Washington, 136, was one of a joint contract originally, no less than afterwards.

The case of Reed v. Garvin's Executors, 7 Serg. & R. 354, held, to be sure, that one joint judgment was a bar to another at law against the executors of one of the obligors deceased. Yet, at the same time, it maintained that a remedy existed against the real property, if not the personal, of the deceased, and at law, in Pennsylvania, wherever it existed in England in chancery (pp. 356, 357, 365). Duncan, J., at this last page, says, what strongly applies here, though after a joint judgment on the bond against all the obligors,-'That in some way the defendants, the executors of the deceased obligor, should be reached, or the lands of the testator, which are assets in his hands,' and charged with the payment of judgment debts, 'we all agree, though we differ in the mode.'

The case of Downey v. The Farmers and Mechanics' Bank, 13 Serg. & R. 288, is the only case cited which holds that after an action at law against two co-obligors, though judgment be obtained only against one, another suit separately will not lie against the other. But this was deemed by the court as illiberal and technical in principle, and applied only to another proceeding at law against one.

There is another case-Ex parte Rowlandson, 3 P. Wms. 406 which has not been cited, but holds, as a collateral point or illustration, that a suit against all obligors instituted on a joint and several contract at law may, while pending, be pleaded in abatement to a several suit on the same contract, and vice vers. No decided case of this kind is cited, however, and this is not in all respects in point.

Nor is it in point that a joint judgment against two, apparently on a promise wholly joint, is a bar to a subsequent action at law against one of them, without averring the death or discharge of the other, (see Gilman v. Rives, 10 Pet. 298,) because the present promise was not joint alone.

In no instance in this class of cases has it ever been held necessary, in order to sustain this proceeding in equity, that a judgment on the original indebtedness should be severally recovered first. See post. 1 Meriv. 539. Or that, if joint, it should be still open to a several remedy at law.

Thus stands this point on the precedents. It will be apparent, therefore, that when this is a mere technical objection as to a remedy, and not any defence against the debt as still due, and is a very doubtful one at law on the present facts, it ought not to prevail a moment in a court of equity.

It is not to be overlooked that our present inquiries are not at law, but wholly in equity, and are to be governed by equitable, and not strict legal or technical considerations. If, then, the joint judgment had been more clearly a technical merger of the joint and several debt here, and no several action would afterwards lie at law on the note, would it not be just and right on principle to grant this separate aid in chancery? So strong is this principle, we have already seen, that sometimes it is provided by express legislation that at law a suit may still be prosecuted against the surviving debtor and the executor of the deceased debtor together on a joint obligation, or, if existing in a judgment, be enforced against the property of either. (See Sumner, and Harris & Gill, before cited.) The justice of such a remedy, the debt against both being conceded still to exist unpaid, seems to be so apparent, as to commend its sanction and success in a court of equity without the aid of any statutory provision. 1 Story's Eq. Jur. § 164.

One reason why the assets in the hands of the executor are charged in any of these cases is, that he is a trustee for all which can equitably be charged on them. 2 Williams on Executors, 1584. But was not the estate of the deceased charged equitably with a joint judgment against him on a joint and several promise, as fully as by that promise without any judgment?

One prominent reason assigned against this relief here, under all the circumstances of the case, has been, that, by the joint judgment, there has been a release or quasi release of each obligor. But this cannot mean a release of the debt, or the joint judgment itself could not be enforced at all in any way, nor against either. So far from the debt itself being released, it is fixed and proved by a solemn record. Notwithstanding, too, the subsequent death of one, the debt still stands. He has never paid it, and his property, in every conscientious view, should also stand as liable as ever to discharge it, the obstacle at law reaching merely the remedy.

The obligation on the estate to pay in foro conscientice being strong as ever, the moral duty on the representative of the deceased is still imperative, and is more to be weighed and enforced in chancery than elsewhere, that being the tribunal peculiarly designed to relieve against much of the strictness and technicality prevailing elsewhere.

It has been urged, further, that, if the liability is enforced here in chancery, it will be without any equity existing between the obligors. But that is not the question; it is, whether there was not an equity between the obligors and the obligee,-one growing out of an absolute promise, an ample consideration both implied and hereafter shown, and in this case a judgment recovered. An executor is charged sometimes where a judgment has been recovered against the deceased, when he would not be if there had been no such judgment, as the cause of action at times does not survive. Whiteacres v. Onsley, Dyer, 322, a; 2 Williams on Executors, 1366.

Again, it is urged that, the joint judgment being a merger of the joint and several contract, and a several remedy at law afterwards not allowed, there is no ground in equity, because none at law exists to charge the several estate of one deceased. But this proves too much. The principle in all these cases is not to discharge on in equity, if not liable to a suit severally at law, but almost the reverse; because in all cases, except where the contract on its face and in terms was several, no several suit at law can be maintained. But still a proceeding is frequently sustained in equity, and the circumstance of there being no relief at law is one reason for rather than against it. Thus is it with a partnership debt, a common joint debt on a joint loan and bond, and a joint contract or bond not reformed, but which should have been written several. In none of these could a several suit at law lie when the co-obligor died, and yet in all a court of chancery will relieve. Those in each class have been or will hereafter be explained, and need not be repeated.

Again, on equitable grounds, it seems obvious that after a joint judgment against joint and several obligors, which binds still the person and property of either as much as if the judgment had been several, the property of each should continue liable as much as if the contract had been never sued, or had been sued severally. And a fortiori should this be the case in equity, where judgments form a lien on the property of all the respondents, and a joint judgment, as here, bound the estate of the deceased co-obligor. I am not aware of any case like this, even if it had been entirely joint in form, that equity would not pursue such a lien against all.

Again, supposing that a several action would not lie here on the bond against one co-obligor after a joint judgment, though the promise was joint and several, rather than joint or several, or joint alone, it is far from decisive against this application in equity. There the court often looks to the circumstance whether the original contract of indebtedness was joint alone, or joint and several, and if the latter will aid a recovery.

So paramount is this test, that where the written contract reads joint only, equity will on request reform it, if it was originally agreed to be several, and by mistake or fraud was not so written; and after reforming it, chancery will enforce it against the estate of one co-obligor deceased, as it was supposed to stand originally. 1 Story's Eq. Jur. § 164.

Other cases seem to imply that an original indebtedness, though the bond be only joint, and no evidence offered of an agreement that it should be several also, will be regarded as several, and enforced accordingly, if it was for an ordinary loan, where all are partners or where all were benefited. See post; 1 Story's Eq. Jur. §§ 162, 676; 2 Russ. 196; 2 Meriv. 36.

A fortiori will relief, then, be proper, if it was, as here, originally written several, or even if it was agreed to be so. 2 Ves. sen. 101, 106; Ex parte Symonds, 1 Cox, Ch. 200. Indeed, the justice of this has seemed so strong, that some legislatures, as in Maryland, have gone so far as expressly to enact that the same remedies shall be sustained on joint bonds against estates of one deceased, as on those joint and several. See Act of 1811, ch. 161, in 2 Gill & Johns. 316; 7 Harr. & Johns. 466.

That I am right as to the practice in equity to look to the original contract, and not merely the face of the present debt, may be seem in the cases of partners and of ordinary joint contracts, where it is allowed to be proved that originally, in their essence, though not in form, they were several no less than joint, and after that to grant relief. See the illustration in Hunt v. Rousmaniere's Adm., 1 Peters, 16, and cases hereafter cited.

It is a peculiar excellence in chancery, on many occasions, that it goes behind writings, and even sealed instruments and judgments, to ascertain how the original transaction stood, and what were its true obligations, in order to enforce them. The joint judgment here did not create the original liability to pay, and hence equity can as properly go back of it to see what the original liability was, and if several no less than joint; as it goes back of a joint bond when 'it was not the bond which first created the liability to pay.' 2 Williams on Executors, 1370.

However, then, it may be at law as to the several liability of a joint and several contractor, after a joint judgment has been recovered, it seems that the principle and precedents in equity do not rest on that, but hold the estate of one after his death responsible, if the original obligation was several as well as joint. Here the promise and duties were at first not only several, and have never been satisfied, and, except technically at law in respect to the remedy, have never been extinguished; but to the original equities have been superadded a lien on his estate, by the joint judgment recovered before his death, and which it is equitable to have enforced after his death, on this no less than several other occasions.

There are two classes of cases which go to sustain further this view, where the contract is on its face joint, and not in form several as well as joint, and is not proved to have been originally agreed to be written several as well as joint; and yet where relief can be had, looking to the original severalty of the transaction, rather than to the mere technical law on it as now standing. One is where the obligors acted as partners in business, and there, though the promise is in form only joint, a court of equity will charge the estate of the deceased partner in a bill against the executor or administrator. 1 Story's Eq. Jur. §§ 676, 163; Thomas's case, 3 Ves. 399; 1 Meriv. 539; Devaynes v. Noble, 2 Russ. & Mylne, 495, 506; Bishop v. Church, 2 Ves. sen. 101, 371. This is also said to proceed on general principles of equity rather than on the lex mercatoria. 1 Meriv. 539, 562; 2 Younge & Col. 562. It goes back for a test to the original consideration and relation of the parties. So fully, however, even there, is the relief granted on the ground or theory of a several obligation or duty originally, though not so expressed in the writing, that the Master of the Rolls declares, in Henderson v. Wilkinson (1 Mylne & Keen, 588),-'All the authorities establish, that, in the consideration of a court of equity, a partnership debt is several as well as joint.'

The other class is, that in a joint loan or other transaction, if the obligation taken be in terms joint only, and not agreed in the writing or otherwise to be several, equity will still enforce it in many cases against the estate of either alone. 2 Meriv. 37; Thompson v. Jackson, 2 Younge & Col. 553; Cowell v. Sikes, 2 Russ. 196; Ex parte Kendall, 17 Ves. 525, note; Waters v. Riley, 2 Har. & Gill, 310-313; 6 Serg. & R. 266; Primrose v. Bromley, 1 Atk. 89; Kennedy v. Carpenter, 2 Whart. 364, 365; 1 Mylne & Keen, 582; Simpson v. Vaughan, 2 Atk. 32; Bishop v. Church, 2 Ves. sen. 101. Here, also, the idea of a several obligation originally is still looked to, and is sought outside of or behind the joint instrument, by examining the transaction as it took place at first.

Some rest the remedy here on the presumped receipt originally by each of a part of the loan or benefit; and others or the legal presumption, not the proved fact, that the contract itself was by mistake originally not written several as well as joint, and thus reforming it and deciding on it as if reformed and made several. See cases before cited, and Hunt v. Rousmaniere's Adm., 1 Peters, 16. And others put it on the probable legal intent, that all should be severally held responsible. 6 Serg. & Rawle, 261; 9 Ves. 118. And this intent is the presumption in all mercantile transactions,-more obviously from usage there,-but is not confined to them. 1 Russ. 191; 2 Younge & Col. 562; Rawstone v. Parr, 3 Russ. 427; Ex parte Kendall, 17 Ves. 528, note. So strong is this equity regarded against the estate of one deceased, in either of these classes, that chancery will allow it to be pursued without a resort first to the survivor. Wilkinson v. Henderson, 1 Mylne & Keen, 588; Sleech's case, 1 Meriv. 539, and 3 Meriv. 593.

The reliance just referred to, on legal presumptions and probable intents originally, in order to find an original severalty in the case to help furnish or justify a remedy in equity, discloses another and the last ground I shall consider in favor of such a remedy here. It is this.

If such presumptions will be made in point of law, as to the intent, and an error in the writing, so as to raise a several engagement originally, to charge the estate of one deceased, the reason for them here is much stronger, as here the original contract was expressed on its face to be several. We are not compelled to resort to mere constructions and inferences to show it to be several. And if equity will in these cases overcome the technical objection at law which prevents a proceeding there against the estate of one deceased obligor, when the contract is on its face joint, so may it equally well overcome the technical objection at law, when the judgment is on its face joint.

Indeed, as before suggested, the equities in favor of this redress in all cases of joint contracts, and independent of statutory provision, are nearly as strong as in those joint and several,-and quite as strong in case of joint judgments, as these last generally constitute an actual lien on the estate of each obligor.

2d. No ground remains for claiming an exemption of the estate of Archer from this liability in equity, unless it be that he was a surety in the bond. But if a surety promise severally as well as jointly, he seems as liable in equity on account of that written and express promise as a principal would be. And it is on that several promise he is here chargeable in the first instance.

If it was necessary to show some original consideration, in connection with the surety in such matters, the signers of a joint and several bond are as to the obligee usually to be regarded as all principals. 2 Sumner, 427; 6 Johns. Ch. 309; Boddam's case, 9 Ves. 465; 1 Story's Eq. Jur. § 496.

It has been adjudged by this court, that the consideration to charge the principal is good to charge the surety. Thus, in The United States v. Linn et al., 15 Peters, 290, it is said,-'If Linn received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the sureties. There was no necessity for any consideration passing directly between the plaintiffs and the sureties. It was one entire and original transaction, and the consideration which supported the contract of Linn supported that of his sureties.' (p. 314.)

Beside this, unless the obligee injures them by a new stipulation for further delay with the principal, which is not attempted to be proved here, and when here the delay benefited the surety alone, the principal being insolvent, then it will be seen that other good reasons usually exist for him to consider them as principals, and as promising for a good and valuable consideration to pay the sum named in the bond, and thus to raise a strong equity against them. Such a consideration, when they are liable by a sealed instrument, is in law always presumed or implied. 6 Johns. Ch. 302; 1 Vernon, 427; 1 Ves. sen. 514; 15 Peters, 291.

It is the usage, also, for sureties to be previously indemnified by a pledge of actual property of some kind, or to receive in money in advance two or more per cent. for their guarantee. It is to be recollected, also, that here the imported goods were, in consequence of their promise, allowed to be sold in this country by the owner with no other payment of duties, and thus a most important pecuniary benefit conferred on their friend for their promise as sureties.

One of Lord Bacon's proposed improvements in chancery was to treat sureties as justice and the law required, and their own conduct warranted; they, being anxious to obtain favors for friends or themselves by their promises, should therefore be made equally anxious to fulfil those promises. See 6 Johns. Ch. 309, a like view. The surety is also often the most responsible signer, and without whom the credit would not generally have been given.

An idea seems to have been entertained here, that chancery will do nothing to charge a surety which cannot be done at law, or when he is technically exonerated at law. But this is an error. It will often extend like relief against them as fully as against principals. Thus, passing by the cases, that a surety will still be made liable in equity though the bond is lost, as this may be done at law, (Skip v. Huey et al., 3 Atk. 93; 6 Johns. Ch. 307; 1 Ch. Cases, 77; Boddam's case, 9 Ves. 464; Equity Cases Abr. 93; 2 Wash. Rep. 140,) yet, in chancery, a contract will be reformed against a surety as well as a principal, where it is proved clearly that his name was by mistake omitted in the body of the instrument, though this will not be done at law. (Crosby v. Middleton, Prec. in Ch. 309.) So where, by mistake, the bond runs to a wrong person. (Wiser v. Blachly, 1 Johns. Ch. 607.) There are several cases, too, where in equity, but not at law, a bond only joint on its face will be reformed against a surety, and made several also, if it was proved to be originally agreed to be several. 1 Story's Equity, § 164, and cases there; see cases before cited, and 3 Russell, 424, 539; Weaver v. Shryock, 6 Serg. & R. 262-265. And to go to the full extent of the present case, it has been deliberately settled, that relief in equity to charge the estate of a deceased surety will be given as fully as against the principal, when the bond is on its face expressed to be joint and several. 6 Johns. Ch. 309; Rawstone v. Parr, 3 Russell, 427 and 539, semb.; Wiser v. Blachly, 4 Johns. Ch. 609; Prec. in Ch. 309; United States v. Cushman, 2 Sumner, 427.

In this class of cases, also, the relief is made to rest on the express form of the bond or contract being several as well as joint, and not on any joint benefit or partnership.

These last are distinct and different grounds to charge either principals or sureties, when contracts are on the face of them joint. See Pitman, Prin. and Sur. 91, note 1. So in Rawstone v. Parr, 3 Russell, 427, and 539, S.C.., it was held that, though the present contract appeared to be only joint, if it was agreed originally to be joint and several, as it was in truth here, a court of equity would aid a recovery against the executor even of a surety. Prec. in Ch. 309; 1 Story's Equity, § 164; 1 Johns. Ch. 609. Sed cited contra, Waters v. Riley, 2 Harris & Gill, 310; 6 Serg. & Rawle, 246, semb.; Kennedy v. Carpenter, 2 Wharton, 361. But, as already shown, these last were all cases of joint contracts, and not agreed to be several also; and cases where, likewise, no consideration was supposed to exist affecting the surety.

In 6 Serg. & Rawle, 266, the court admit that cases may exist where the estate of a co-surety may be charged, and one of them is where it was originally agreed the bond should be several (p. 264). We have already cited a number of others to that effect, and consider this an authority for our proposition.

The case of Harrison's Executors v. Field's Executors, 2 Wash. 136, is often cited against the position I have taken. But it was confessedly a joint bond, and there was no evidence of an original agreement to have it several (p. 138). And Judge Roane (p. 139) makes the same admission, that cases may exist where the estate of a co-surety is liable.

All the doctrines in Pitman on Principal and Surety, 90 and 91, supposed to differ from this position, are cases where the written contract is joint, and not joint and several.

Obscurity arises is some of the cases amidst these distinctions, from their subtilty and variety, and this tends to mislead unless cautious discrimination is made. This, and the collision between a few of the cases in the books, sometimes spring from the circumstance of not adverting to the ground, that all the signers are principals as to the obligee; and that sureties are as to him to be made liable, as if principals. See this error in Waters v. Riley, 2 Harris & Gill, 310. And from not discriminating between cases where the written obligation was only joint, and where it was both joint and several. 3 Russell, 541. So, from not observing that the surety is estopped as to the receipt of a consideration in a sealed instrument, and more especially, as here, after a judgment against him and the principal.

Another cause of some confusion and mistake in some of the cases is the treating of them as if still at law, and on strict legal principles, rather than in equity and on equitable grounds.

It is another source of error that several cases rest on more than one ground. Thus, in Primrose v. Bromley, 1 Atk. 90, the obligation was several as well as joint, and a benefit or consideration extending to the co-obligor deceased. So in Simpson v. Vaughan's Executors, 2 Atk. 33, the court first reformed the contract, being a mercantile loan, so as to regard it as several no less than joint, and a full consideration to the deceased was apparent.

Here one ground exists, which is sufficient alone, namely, a written obligation several as well as joint; though, were it necessary to show a consideration also, reaching the surety, enough to raise a legal and strong presumption of one is not difficult to be pointed out, as before done, and explained.

In conclusion it may be useful, as a test of the real equity of the principle adopted by the court in this case, to examine for a moment and discriminate what is its character or extent. It is this. An original obligation, joint and several, after the death of one obligor, who was a surety, may equitably be enforced against his estate, if not sued at all, but cannot be equitably enforced against it if sued jointly, and the liability of all rendered more certain, and a lien against the estates of all fixed by the judgment recovered.

Again, if an obligee sues each obligor separately, on a joint and several bond, before the death of either, it holds him entitled to relief against the estate of the deceased; but if he sues all together, he is not equitably to be relieved. In both cases, the original contract was the same in form and substance, the consideration the same, the liens the same; and as to the deceased, the same in amount after, as well as before, judgment; and in both cases the debt itself is still unpaid and still unreleased, and no remedy open at law against the estate. Yet it seems, in an equitable view,-in a court whose duty and business it is generally to adopt an enlarged, liberal, and just policy, and to aid against the strictness and technicalities of law,-one of these cases is to be deemed entitled to its beneficent interference, but the other is not.

Again, as a consequence of this doctrine, all joint obligors will of course hereafter be burdened with much increased cost, instead of being aided by any principle in their favor really settled by the court in this judgment. Because all the ameliorating principle settled here is, that, if each obligee is sued severally on a joint and several obligation, the obligor is entitled to the aid of a court of equity against the estate of one deceased; but if he brings only one action, and makes but one bill of cost against all of them, he behaves so as to be entitled to no equitable relief. Certainly this looks like a new attitude or version of what in a court of equity should be considered equitable; and it is likely to prove much more beneficial to the profession, than to the parties concerned or the public. Whatever technical differences as to remedies may be created at law by the forms of judgments, it will be difficult in equity, and applying equitable principles, as in the present case, to discriminate against the present case on the merits and on grounds of substantial justice.

The plaintiffs, therefore, seem to me entitled to recover, out of the estate of the deceased, the balance which is due.


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Page:Peter and Wendy.djvu/9

 J.M. BARRIE

F.D. BEDFORD

NEW YORK CHARLES SCRIBNER'S SONS 1912

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title: Page:Peter and Wendy.djvu/9


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Perrine v. Chesapeake and Delaware Canal Company/Dissent McLean

Mr. Justice McLEAN.

This, like all other and similar corporations, has its rights and privileges defined in its charter, and also the duties imposed upon it. The eleventh section provides, 'that the said canal and the works to be erected thereon in virtue of this act, when completed, shall for ever thereafter be esteemed and taken to be navigable as a public highway, free for the transportation of all goods, commodities, or produce whatsoever, on payment of the toll imposed by this act'; 'and no toll or tax for the use of the water of the said canal, and the works thereon erected, shall at any time hereafter be imposed by all or either of the said States.'

By the ninth section, a great number of articles are specified, for which the company is authorized to charge certain rates of toll, 'and for every gross hundred weight of all other commodities or packages ten cents, and for all other commodities the same proportion, agreeable to the articles herein enumerated; and every boat or vessel, which has not commodities on board to pay the sum of four dollars, shall pay so much as, with the commodities on board, will yield that sum; and every empty boat or vessel four dollars, except an empty boat or vessel returning, whose load has already paid the tolls affixed, in which case she shall repass toll-free, provided such boat or vessel shall return within fourteen days after paying said tolls.'

And the tenth section declares, 'In case of refusal or neglect to pay the toll at the time of offering to pass a vessel through the canal, the collector shall have the right to refuse a passage.'

The defendant claims the right to run a line of packet-boats for passengers, to connect with steamboats at the termini of the canal; and the following questions are stated for our decision.

First, Is the canal company entitled to charge the compensation or toll mentioned in the proceedings, for passengers on board the complainant's boats passing through the canal?

Second, 'Has the complainant a right to navigate the canal for the transportation of passengers, with passenger boats, paying or offering to pay toll upon the boats as empty boats, or upon commodities on board, but without toll or compensation for passengers?' I think the first question must be considered in the negative, that the company have not the right to tax passengers one dollar each, or any other sum, for passing in a boat on the canal. They have no special authority to tax passengers in the act of incorporation, and, consequently, they cannot exercise any powers as a corporation except those which are given in the act.

I answer the second question also in the negative, that the complainant in the Circuit Court has 'no right to navigate the canal for the transportation of passengers, with passenger boats, paying toll as for empty boats.' The charter does not require this of the company, and the public can make no exactions upon the company, as accommodation, which the law does not impose upon them as a duty. The rights of the public and of the company must be determined by a construction of the charter.

What rights are reserved in the charter to the public? The eleventh section, above cited, declares the canal shall 'be taken to be navigable as a public highway, free for the transportation of all goods, commodities, or produce whatsoever, on payment of the tolls imposed.' The right of the public then is, to use the canal for the purposes stated, 'on paying the tolls imposed.' Does the right extend beyond this? It does not, in my judgment, if the section be construed by any known rule of construction.

This was the contract made with the company by the public. And is it not as binding on the one party as the other? The right on both sides is founded in contract. The company agreed to construct the work, and keep it in repair, on the conditions stated. Can these conditions be changed at the will of either party? If the public can make exactions beyond the charter, there is an end to chartered rights.

The right of transportation on this canal is given to the public, on the payment of toll, and without the payment of toll there is no such right. A boat returning empty, 'whose load has already paid the tolls,' is not charged. But an empty boat, under other circumstances, is charged four dollars. If it have commodities on board which pay less than four dollars, the boat shall be required to make up that sum. And here is the whole extent of the right of the company to exact toll, and of the right of the public to use the canal.

The conveyance of passengers was not provided for in the charter. The transportation of the commodities specified, and the passage of empty boats, were the only obligations, in this respect, imposed on the company. But a majority of my brethren have implied a right in the defendant to transport passengers without the payment of toll. The baggage of the passengers, if they have any, may be charged as commodities, but the owners of the baggage are as nothing; they are nonentities while on board the packet passenger boats on this canal; in fact, within the meaning of the charter, the boats are empty. This would seem to me to be rather a strained construction. I cannot persuade myself that the law-makers, when they authorized a tax of four dollars on an empty boat, intended to include a boat full of passengers.

We know that passenger boats afford a better profit than freight boats; and every one knows, from the more rapid movement of the former, they do more injury to the embankments of a canal than freight boats.

But it is asked in the argument, if a freight boat can be refused a passage if it have one passenger on board. Every boat must have hands on board of it to take care of the cargo and navigate the boat. And it is presumed that a strict inquiry is rarely, if ever, made, as to a single passenger on board. But I submit that this is no test of the principle involved. The right asserted is to run a line of packets exclusively for the accommodation of passengers. This will impose a duty, and a most onerous one, on the company, which, I think, is not within their charter.

If a canal-boat must be construed and taxed as empty, which is not laden with the commodities specified, I know not how deeply it may affect our internal navigation. All these questions are of great importance, and should not be influenced by presumed notions of policy. They are matters of right, as they may affect corporations, arising under contract.

Should the transportation of passengers be desirable to the company, they could, no doubt, by application to the legislative power, obtain a modification of their charter, in this respect, that shall be just to them and advantageous to the public. But as the present charter imposes no obligation on the company to transport passengers on the canal, and does not authorize them to charge a toll for such a service, this court have no power to require from them such a duty. It is not our province to make contracts, but to construe them. But this maxim, universally admitted, could give no security to chartered rights, if, by judicial construction, they may be made to include a service not expressed nor fairly implied.

It is well settled, that, where the law does not authorize toll, it cannot be charged. This is admitted and sustained by a majority of the court; and this necessarily, I think, exonerates the ¢company, where there is no express provision in the charter, from doing that for which they can receive no compensation. It is an inference as unsound in logic as it is in law, that the transportation of passengers, though not required by the charter, must be permitted by this company, without charge, as they have no power to tax them. And this, it seems, is the only duty required from the company without compensation.


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 PETER AND WENDY CHARLES SCRIBNER'S SONS

MARGARET OGILVY CHARLES SCRIBNER'S SONS

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Rh

hour before day, I waked my sons to assist me in removing the bees to the new abode I had prepared for them. I commenced by plastering up the entrance to their present dwelling with clay, leaving only room to admit the bowl of my pipe. This was necessary, because I had neither masks nor gloves, as the regular bee-takers have. I then began to smoke briskly, to stupify the bees. At first we heard a great buzzing in the hollow, like the sound of a distant storm: the murmur ceased by degrees, and a profound stillness succeeded, and I withdrew my pipe without a single bee appearing. Fritz and I then, with a chisel and small axe, made an opening about three feet square, below the bees' entrance. Before we detached this, I repeated the fumigation, lest the noise and the fresh air should awake the bees; but there was no fear of such a thing,—they were quite stupified. We removed the wood, and through this opening beheld, with wonder and admiration, the work of this insect nation. There was such a store of wax and honey, that we feared we should not have vessels to contain it. The interior of the tree was filled with the honeycombs; I cut them carefully, and placed them in the gourds the boys brought me. As soon as I had made a little space, I placed the upper comb, on which the bees were hangingin clusters, in the new hive, and put it on the plank prepared for it; I then descended with the rest of the honeycomb, and filled a cask with it, which I had previously washed


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146 in the stream; this we covered with sail-cloth and planks, lest the bees, attracted by the smell, should come to claim their own. We left out some comb for a treat at dinner, and my wife carefully put by the rest.

To prevent the bees returning to their old abode, we placed some burning tobacco in the hollow, the smell and fumes of which drove them from the tree, when they wished to enter; and, finally, they settled in the new hive, where the queen bee, doubtless, had fixed herself.

We now began our work; we emptied the cask of honey into a large boiler, except a little reserved for daily use; we added a little water, placed the boiler on a slow fire, and reduced it to a liquid mass; this was strained through a bag into the cask, and left standing all night to cool. The next morning the wax had risen to the top, and formed a hard and solid cake, which we easily removed; and beneath was the most pure and delicious honey. The barrel was then carefully closed, and placed in a cool place. We now proceeded to examine the interior of the tree. I took a long pole, and tried the height from the window I had made; and tied a stone to a string to sound the depth. To my surprise, the pole penetrated without resistance to the very branches where our dwelling was, and the stone went to the roots. It was entirely hollow, and I thought I could easily fix a winding staircase in this wide tunnel. It would seem, that this huge tree, like the willow of our country, is nourished through the bark, for it was flourishing in luxuriant beauty.

We began by cutting a doorway, on the side facing the sea, of the size of the door we had


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Rh brought from the captain’s cabin, with its frame-work, thus securing ourselves from invasion on that side. We then cleansed, and perfectly smoothed the cavity, fixing in the middle the trunk of a tree about ten feet high, to serve for the axis of the staircase. We had prepared, the evening before, a number of boards from the staves of a large barrel, to form our steps. By the aid of the chisel and mallet, we made deep notches in the inner part of our tree, and corresponding notches in the central pillar; I placed my steps in these notches, riveting them with large nails; I raised myself in this manner step after step, but always turning round the pillar, till we got to the top. We then fixed on the central pillar another trunk of the same height, prepared beforehand, and continued our winding steps. Four times we had to repeat this operation, and, iinally, we reached our branches, and terminated the staircase on the level of the floor of our apartment. I cleared the entrance by some strokes of my axe. To render it more solid, I filled up the spaces between the steps with planks, and fastened two strong cords from above, to each side of the staircase, to hold by. Towards diferent points, I made openings; in which were placed the windows taken from the cabin, which gave light to the interior, and favoured our observations outside.

The construction of this solid and convenient staircase occupied us during a month of patient industry; not that we laboured like slaves, for we had no one to constrain us; we had in this time completed several works of less importance; and many events had amused us amidst our toil.

A few days after we commenced, Flora


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148 six puppies; but the number being too large for our means of support, I commanded that only a male and female should be preserved, that the breed might be perpetuated; this was done, and the little jackal being placed with the remainder, Flora gave it the same privileges as her own offspring. Our goats also, about this time, gave us two kids; and our sheep some lambs. We saw this increase of our ilock with great satisfaction; and for fear these useful animals should take it into their heads to stray from us, as our ass had done, we tied round their necks some small bells we had found on the wreck, intended to propitiate the savages, and which would always put us on the track of the fugitives.

The education of the young buffalo was one of the employments that varied our labour as carpenters. Through the incision in his nostrils, I had passed a small stick, to the ends of which I attached a strap. This formed a kind of bit, after the fashion of those of the Hottentots; and by this I guided him as I chose; though not without much rebellion on his part. It was only after Fritz had broken it in for mounting, that we began to make it carry. It was certainly a remarkable instance of patience and perseverance surmounting difficulties, that we not only made it bear the wallets we usually placed on the ass, but Ernest, Jack, and even little Francis, took lessons in horsemanship, by riding him, and, henceforward, would have been able to ride the most spirited horse without fear; for it could not be worse than the buffalo they had assisted to subdue.

In the midst of this, Fritz did not neglect the training of his young eagle. The royal bird began


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Rh already to pounce very cleverly on the dead game his master brought, and placed before him; sometimes between the horns of the buffalo, sometimes on the back of the great bustard, or the flamingo; sometimes he put it on a board, or on the end of a pole, to accustom it to pounce, like the falcon, on other birds. He taught it to settle on his wrist at a call, or a whistle; but it was some time before he could trust it to fly, without a long string attached to its leg, for fear its wild nature should carry it from us for ever. Even the indolent Ernest was seized with the mania of instructing animals. He undertook the education of his little monkey, who gave him sufficient employment. It was amusing to see the quiet, slow, studious Ernest obliged to make leaps and gambols with his pupil to accomplish his instruction. He wished to accustom Master Knips to carry a pannier, and to climb the cocoa-nut trees with it on his back; Jack and he wove a small light pannier of rushes, and fixed it firmly on his back with three straps. This was intolerable to him at first; he ground his teeth, rolled on the ground, and leaped about in a frantic manner, trying in vain to release himself. They left the pannier on his back night and day, and only allowed him to eat what he had previously put into it. After a little time, he became so accustomed to it, that he rebelled if they wished to remove it, and threw into it everything they gave him to hold. He was very useful to us, but he obeyed only Ernest, who had very properly taught him equally to love and fear him.

Jack was not so successful with his jackal; for, though he gave him the name of "The Hunter,"


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150 yet, for the first six months, the carnivorous animal chased only for himself, and, if he brought anything to his master, it was only the skin of the animal he had just devoured; but I charged him not to despair, and he continued zealously his instructions.

During this time I had perfected my candle manufacture; by means of mixing the bees’ wax with that obtained from the candle-berry, and by using cane moulds, which Jack first suggested to me, I succeeded in giving my candles the roundness and polish of those of Europe. The wicks were for some time an obstacle. I did not wish to use the small quantity of calico we had left, but my wife happily proposed to me to substitute the pith of a species of elder, which answered my purpose completely.

I now turned myself to the preparation of the caoutchouc, of which we had found several trees. I encouraged the boys to try their ingenuity in making flasks and cups, by covering moulds of clay with the gum, as I had explained to them. For my part, I took a pair of old stockings, and filled them with sand for my mould, which I covered with a coating of mud, and left to dry in the sun. I cut out a pair of soles of buffalo leather, which I first hammered well, and then fastened with small tacks to the sole of the stocking, filling up the spaces left with the gum, so as to fix it completely. Then, with a brush of goat’s hair, I covered it with layer upon layer of the elastic gum, till I thought it sulliciently thick. It was easy after this to remove the sand, the stocking, and the hardened mud, to shake out the dust,


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Rh and I had a pair of water-proof boots, without seam, and fitting as well as if I had employed an English shoemaker. My boys were wild with joy, and all begged for a pair ; but I wished first to try their durability, compared with those of buffalo leather. I began to make a pair of boots for Fritz, using the skin drawn from the legs of the buffalo we had killed; but I had much more difficulty than with the caoutchouc. I used the gum to cover the seams, so that the water might not penetrate. They were certainly not elegant as a work of art, and the boys laughed at their brothers awkward movements in them; but their own productions, though useful vessels, were not models of perfection.

We then worked at our fountain, a great source of pleasure to my wife and to allof us. We raised, in the upper part of the river, a sort of dam, made with stakes and stones, from whence the water flowed into our channels of the sago-palm, laid down a gentle declivity nearly to our tent, and there it was received into the shell of the turtle, which we had raised on some stones of a convenient height, the hole which the harpoon had made serving to carry off the waste water through a cane that was fitted to it. On two crossed sticks were placed the gourds that served us for pails, and thus we had always the murmuring of the water near us, and a plentiful supply of it, always pure and clean, which the river, troubled by our water-fowl and the refuse of decayed leaves, could not always give us. The only inconvenience of these open channels was, that the water reached us warm and unrefreshing; but this I hoped to remedy in time, by using bamboo pipes buried in


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152 the earth. In the mean time, we were grateful for this new acquisition, and gave credit to Fritz, who had suggested the idea.

morning, as we were engaged in giving the last finish to our staircase, we were alarmed at hearing at a distance strange, sharp, prolonged sounds, like the roars of a wild beast, but mingled with an unaccountable hissing. Our dogs erected their ears, and prepared for deadly combat. I assembled my family; we then ascended our tree, closing the lower door, loaded our guns, and looked anxiously round, but nothing appeared. I armed my dogs with their porcupine coats of mail and collars, and left them below to take care of our animals.

The horrible howlings seemed to approach nearer to us; at length, Fritz, who was leaning forward to listen as attentively as he could, threw down his gun, and bursting into a loud laugh, cried out, "It is our fugitive, the ass, come back to us, and singing his song of joy on his return!" We listened, and were sure he was right, and could not but feel a little vexation at being put into such a fright by a donkey. Soon after, we had the pleasure of seeing him appear among the trees; and, what was still better, he was accompanied by another animal of his own species, but infinitely more beautiful. I knew it at once to be the onagra, or wild ass, a most important capture, if we could make it; though all naturalists have


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Rh declared it impossible to tame this elegant creature, yet I determined to make the attempt.

I went down with Fritz, exhorting his brothers to remain quiet, and I consulted with my privy counsellor on the means of taking our prize. I also prepared, as quickly as possible, a long cord with a noose, kept open by a slight stick, which would fall out as soon as the animal’s head entered, while any attempt to escape would only draw the noose closer; the end of this cord was tied to the root of a tree. I took then a piece of bamboo, about two feet long, and splitting it up, tied it firmly at one end, to form a pair of pincers for the nose of the animal. In the mean time, the two animals had approached nearer, our old Grizzle apparently doing the honours to his visitor, and both grazing very comfortably.

By degrees we advanced softly to them, concealed by the trees; Fritz carrying the lasso, and I the pincers. The onagra, as soon as he got sight of Fritz, who was before me, raised his head, and started back, evidently only in surprise, as it was probably the first man the creature had seen. Fritz remained still, and the animal resumed his browsing. Fritz went up to our old servant, and offered him a handful of oats mixed with salt; the ass came directly to eat its favourite treat; its companion followed, raised its head, snuffed the air, and came so near, that Fritz adroitly threw the noose over its head. The terrified animal attempted to fly, but that drew the cord so tight as almost to stop his respiration, and he lay down, his tongue hanging out. I hastened up and relaxed the cord, lest he should be strangled. I threw the halter of the ass round his neck, and


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154 placed the split cane over his nose, tying it firmly below with a string. I subdued this wild animal by the means that blacksmiths use the first time they shoe a horse. I then took off the noose, and tied the halter by two long cords to the roots of two separate trees, and left him to recover himself.

In the mean time, the rest of the family had collected to admire this noble animal, whose graceful and elegant form, so superior to that of the ass, raises it almost to the dignity of a horse. After a while it rose, and stamped furiously with its feet, trying to release itself; but the pain in its nose obliged it to lie down again. Then my eldest son and I, approaching gently, took the two cords, and led or dragged it between two roots very near to each other, to which we tied the cords so short, that it had little power to move, and could not escape. We took care our own donkey should not stray again, by tying his fore-feet loosely, and putting on him a new halter, and left him near the onagra.

I continued, with a patience I had never had in Europe, to use every means I could think of with our new guest, and at the end of a month he was so far subdued, that I ventured to begin his education. This was a long and difficult task. We placed some burdens on his back; but the obedience necessary before we could mount him, it seemed impossible to instil into him. At last, I recollected the method they use in America to tame the wild horses, and I resolved to try it. In spite of the bounds and kicks of the furious animal, I leaped on his back, and seizing one of his long ears between my teeth, I bit it till the


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Rh blood came. In a moment he reared himself almost erect on his hind-feet, remained for a while stiff and motionless, then came down on his fore-feet slowly, I still holding on his ear. At last I ventured to release him; he made some leaps, but soon subsided into a sort of trot, I having previously placed loose cords on his fore-legs. From that time we were his masters; my sons mounted him one after another, they gave him the name of Lightfoot, and never animal deserved his name better. As a precaution, we kept the cords on his legs for some time; and as he never would submit to the bit, we used a snaffle, by which we obtained power over his head, guiding him by a stick, with which we struck the right or left ear, as we wished him to go.

During this time, our poultry-yard was increased by three broods of chickens. We had at least forty of these little creatures chirping and pecking about, the pride of their good mistress's heart. Part of these were kept at home, to supply the table, and part she allowed to colonize in the woods, where we could find them when we wanted them. "These," she said, "are of more use than your monkeys, jackals, and eagles, who do nothing but eat, and would not be worth eating themselves, if we were in need." However, she allowed there was some use in the bufllilo, who carried burdens, and Lightfoot, who carried her sons so well. The fowls, which cost us little for food, would be always ready, she said, either to supply us with eggs or chickens, when the rainy season came on&mdashthe winter of this climate.

This reminded me that the approach of that dreary season permitted me no longer to defer a very


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156 necessary work for the protection of our animals. This was to construct, under the roots of the trees, covered houses for them. We began by making a kind of roof above the vaulted roots of our tree, We used bamboo canes for this purpose; the longer and stouter were used for the supports, like columns, the slighter ones bound together closely formed the roof. The intervals we filled up with moss and clay, and spread over the whole a coating of tar. The roof was so firm, that it formed a platform, which we surrounded with a railing; and thus we had a balcony, and a pleasant promenade. By the aid of some boards nailed to the roots, we made several divisions in the interior, each little enclosure being appropriated to some useful purpose; and thus, stables, poultry-houses, dairy, larder, hay-house, store-room, &c., besides our dining-room, were all united under one roof. This occupied us some time, as it was necessary to fill our store-room before the bad weather came; and our cart was constantly employed in bringing useful stores.

One evening, as we were bringing home a load of potatoes on our cart, drawn by the ass, the cow, and the buflalo, I saw the cart was not yet full; I therefore sent home the two younger boys with their mother, and went on with Fritz and Ernest to the oak wood, to collect a sack of sweet acorns—Fritz mounted on his onagra, Ernest followed by his monkey, and I carrying the bag. On arriving at the wood, we tied Lightfoot to a tree, and all three began to gather the dropped acorns, when we were startled by the cries of birds, and a loud flapping of wings, and we concluded that a brisk combat was going on between Master Knips


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Rh and the tenants of the thickets, from whence the noise came. Ernest went softly to see what was the matter, and we soon heard him calling out, "Be quick! a fine heath-fowl’s nest, full of eggs! Knips wants to suck them, and the mother is beating him."

Fritz ran up, and secured the two beautiful birds, who fluttered, and cried out furiously, and returned, followed by Ernest, carrying a large nest filled with eggs. The monkey had served us well on this occasion; for the nest was so hidden by a bush with long leaves, of which Ernest held his hand full, that, but for the instinct of the animal, we could never have discovered it. Ernest was overjoyed to carry the nest and eggs for his dear mamma, and the long, pointed leaves he intended for Francis, to serve as little toy-swords.

We set out on our return, placing the sack of acorns behind Fritz on Lightfoot; Ernest carried the two fowls, and I charged myself with the care of the eggs, which I covered up, as I found they were warm, and I hoped to get the mother to resume her brooding when we got to Falcon’s Nest. We were all delighted with the good news we should have to carry home, and Fritz, anxious to be first, struck his charger with a bunch of the pointed leaves he had taken from Ernest: this terrified the animal so much, that he took the bit 1n his teeth, and flew out of sight like an arrow. We followed, in some uneasiness, but found him safe. Master Lightfoot had stopped of himself when he reached his stable. My wife placed the valuable eggs under a sitting hen, the true mother refusing to fulfil her office. She was then put


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158 into the cage of the poor parrot, and hung in our dining-room, to accustom her to society. In a few days the eggs were hatched, and the poultry-yard had an increase of fifteen little strangers, who fed greedily on bruised acorns, and soon became as tame as any of our fowls, though I plucked the large feathers out of their wings when they were full-grown, lest their wild nature should tempt them to quit us.

had soon become tired of playing with the long leaves his brother had brought him, and they were thrown aside, Fritz happened to take some of the withered leaves up, which were soft and flexible as a ribbon, and he advised Francis to make whiplashes of them, to drive the goats and sheep with, for the little fellow was the shepherd. He was pleased with the idea, and began to split the leaves into strips, which Fritz platted together into very good whipleshes. I remarked, as they were working, how strong and pliant these strips seemed, and, examining them closely, I found they were composed of long libres, or filaments, which made me suspect it to be Phormium tenax, or New Zealand flax, a most important discovery to us, and which, when I communicated it to my wife, almost overwhelmed her with joy. "Bring me all the leaves you can without delay," cried she, "and I will make you stockings, shirts, coats, sewing-thread, cords—in fact, give me but flax and work-tools, and I can manage all." I could


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Holland HOLLAND, HEZEKIAH (fl. 1638–1661), puritan divine, was probably born in Ireland, as he styles himself ‘Anglo-Hibernus’ in his ‘Exposition,’ and is supposed to be the Ezekias Holland who graduated B.A. at Dublin in 1638. He became rector of Sutton Valence, Kent, in 1653 (, Kent, ii. 416), and as puritan minister there and by his writings exercised a considerable influence. The following is a list of his works: 1. ‘A Christian Looking-glass,’ 8vo, London, 1649. 2. ‘An Exposition, or a Short but full, plain, and perfect Epitome of the most choice Commentaries upon the Revelations of St. John,’ London, 1650, 4to. This was for the most part delivered by way of exposition in his parish church of Sutton Valence. 3. ‘Adam's Condition in Paradise discovered; also a Treatise of the Lawful Ministrie,’ &c., 1656, 4to. A portrait is prefixed to the ‘Exposition.’

 HOLLAND, HUGH (d. 1633), poet, a native of Denbigh, son of Robert Holland, was a queen's scholar at Westminster School, under Camden, was elected to Trinity College, Cambridge, in 1589, and became fellow there. On leaving Cambridge he went abroad, travelling as far as Jerusalem. It was insinuated that he was made a knight of the Sepulchre; he certainly embraced the Roman catholic faith, and suffered in some way at Rome for indulging in free expressions concerning Queen Elizabeth. On his return to England he expected to receive preferment; not getting it, ‘he grumbled out the rest of his life in visible discontentment’. Wood says that he spent some years at Oxford after his return. From the dedicatory address before his ‘Cypres Garland,’ 1625, we learn that he had been patronised by George Villiers, duke of Buckingham, who had introduced him to King James. In the course of that poem he alludes to his own troubles and bereavements, and the deaths of his mother, whose maiden name was ‘Payne,’ of ‘Ursula’, his wife, the widow of Robert Woodard of Burnham, Buckinghamshire, and of ‘Phil my daughter.’ Holland died in 1633, and was buried in Westminster Abbey (23 July). Aubrey states, on the authority of Sir John Penruddock, that he found a patroness in Lady Elizabeth Hatton, second wife of Sir Edward Coke.

Holland is chiefly remembered as the author of an indifferent sonnet prefixed to the first Shakespeare folio (1623). He was a member of the Mermaid Club, and may have been personally acquainted with Shakespeare. Edward Phillips (‘Theatrum Poetarum’) speaks of him as ‘a poetical writer thought worthy by some to be mentioned with Spenser, Sidney, and other the chief of English poets; with whom nevertheless he must needs be confessed inferior both in poetic fame and merit.’ Joseph Hunter pointed out that Phillips here refers to the exaggerated estimate of Holland entertained by John Lane (the friend of Milton and Phillips), set forth in ‘Triton's Triumph,’ a poem preserved in manuscript both in the British Museum and Cambridge University Library. Lane also commends Holland's critical ability.

In 1603 Holland published ‘Pancharis: the first Booke. Containing the Preparation of the Love between Owen Tudyr and the Queene, long since intended to her Maiden Majestie: and now dedicated to the Invincible James,’ 8vo (Bodleian); and in 1625 ‘A Cypres Garland. For the Sacred Forehead of our late Soveraigne King James,’ 4to, which he dedicated to the Duke of Buckingham. He contributed commendatory verses to Farnaby's ‘Canzonets,’ 1598; Ben Jonson's ‘Sejanus,’ 1605; Bolton's ‘Elements of Armory,’ 1610 (he was nominated a member of Bolton's projected Academ. Royal); Coryate's ‘The Odcombian Banquet,’ 1611; ‘Parthenia,’ 1611; Sir Thomas Hawkins's translation of selected odes of Horace, 1625; and Alabaster's ‘Roxana,’ 1632. In Lansdowne MS. 777 is preserved an epitaph on Henry, prince of Wales, and he has verses in Harleian MSS. 3910 and 6917. Letters to Sir Robert Cotton are in Cotton MS. Julius, C. iii. (15). In Raymond's ‘Itinerary. Containing a Voyage made through Italy,’ 1648, are some Latin verses by Holland on Sannazaro, and in Hacket's life of Archbishop Williams is an epitaph on Archbishop Mountaigne of York. Fuller states that Holland left in manuscript ‘Verses in Description of the Chief Cities of Europe,’ chronicles of Queen Elizabeth's reign, and a life of William Camden.

Care must be taken to distinguish Hugh Holland from Henry Holland (1583–1650?) [q. v.]

[Fuller's Worthies; Wood's Athenæ, ed. Bliss ii. 559–61; Corser's Collectanea; Hunter's Chorus Vatum (Addit. MS. 24488, ff. 256–9); Welch's Alumni Westmonasterienses, pp. 61–2.]  HOLLAND, JAMES (1800–1870), water-colour painter, was born at Burslem, 17 Oct. 1800, where his father and other members of his family were employed at the pottery works of William Davenport. He was himself employed at an early age in painting


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my preface to "Historical Sketches and Personal Recollections of Manchester from 1792 to 1832," I said: "When I disposed of my interest in the Manchester Times, and retired from its management, after twenty-three years' labour as a journalist, it was suggested to me that as, for a considerable part of my life, I had taken part in movements for important purposes, a biographical memoir would be well received. The suggestion was natural enough from those who, having read my newspaper from the time they left school until they were men, taking an active part in public business, regarded me as their political teacher. My reply was, that there was nothing in the events of my life that would interest any one beyond the narrow limits of a local "School;" but, on farther consideration, I thought that some account of the progress of liberal opinion in such a place as Manchester, and brief notices of the part, however humble, I had taken in its formation, would be not uninteresting and not uninstructive to its inhabitants, and those of the surrounding very


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