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Rh deem advisable to grant. This brought about the revolution of 1843; again it was a question of principles which actuated this revolution. The Constitution enacted in the same year did away with the Presidency for life, limiting the term to four years, and the Council of Secretaries of State was instituted. The right of introducing laws was conferred on both the Executive and the Legislative authorities. Trial by jury was introduced for all criminal cases. Municipal authority was at the same time increased to such an extent as to subject the military to the civil power. This last reform was an untimely one and in part provoked the disturbances which for four years agitated Haiti. A clash resulted before long between the two forces, and from 1843 to 1847 Haiti underwent a period of transition complicated by the uprising of the peasants, who demanded the betterment of their condition. The insecurity which reigned created a strong reaction against the ideas of liberty, and the military party gained the advantage in the struggle. Faustin Soulouque became Emperor in 1849. The country, weary of the four years of turmoil which it had just gone through, accepted for a while the despotism of its ruler, but resumed the struggle for liberty as soon as it had regained strength. The Empire was overthrown in January, 1859; and the Republic which Geffrard reestablished has been since that time the form of government of the country. This was another revolution in which two opposite principles fought for supremacy the one over the other, and it resulted in the reforms adopted in 1843 being asserted. There are people who may contend that the reestablishment of the Republic should have put an end to revolutions. So it might if no fresh causes had crept up to disturb the harmony of things; as it was, there were two principal causes which provoked new disturbances, namely, Presidency for life and the conflicting opinions of the military and civil parties. Geffrard had made the mistake of accepting the Presidency for life, which the people were bent on abolishing; after eight years of successful administration he was compelled to


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336 resign. The Constitution of 1867 once more abolished Presidency for life, limiting the term to four years. But the new President, Salnave, ill advised and ill inspired, had the unhappy idea of inducing the army to invest him with Presidency for life. Thereupon the struggle began anew; the people took up arms, decided to teach their rulers a lesson that they would long remember. Salnave was defeated, sentenced to death by a court martial, and shot on the 15th of January, 1870. His tragic fate served to confirm the principle of a limited term of Presidency, Presidency for life being forever abolished. The struggle was a long and costly one; but the wish of the nation was realized and their hard-won reform, introduced for the second time in 1843, was at last definitely secured. Presidency for a limited term is unquestionably a move in favor of a liberal and progressive Republic. Since 1879 the term of the Presidency has been extended to seven years. This septennial duration gives to the country the peace and the tranquillity of which it is so greatly in need. Salomon remained in office during his full term, and would have retired peaceably had he not sought to be reelected. Hyppolite died one year previous to the expiration of his term of office, whilst Simon-Sam remained President for the stipulated time, and General Nord Alexis, who was elected in 1902, has been in authority for four years (1906), during which time the country has enjoyed great tranquillity. At the time of Presidential elections there is great excitement among the people, who sometimes unfortunately resort to violence; but these regrettable disturbances are very often far from having the importance with which they are credited abroad, quiet being restored as soon as the election is over; for the general tendency of the people is to accept and support the President-elect; which is unquestionably a good omen as regards future tranquillity. It has not yet been possible to do away with all the causes liable to bring about disturbances, such as the

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Rh continual struggle for supremacy between the civil and the military parties. The experience acquired in the past will help to facilitate this transition; meanwhile, the Haitians have secured many important points, viz., first, the definite triumph of the principle of equality over favoritism by adopting a form of government in which public offices are accessible to all; second, the curtailing of the power of the President by limiting his term of office and by the check on his executive duties of a Council of Ministers accountable to Congress; third, the division of the right of introducing laws between the President and Congress; fourth, the establishment of the annual enactment of the Budget; fifth, the adoption of trial by jury for all criminal cases and all violations of the law committed through the press; sixth, the organization of a Court of Accounts for the control of public expenses; seventh, rendering effective the personal responsibility of officeholders; and securing greater freedom for all citizens in the towns as well as in the country. The acquisition of these rights, although costing in some cases the sacrifice of many lives, is nevertheless a cause of self-congratulation. Civil wars in general are not to be approved of; but not all of those which have taken place in Haiti have been barren of good results, having in many instances promoted the cause of liberty. Enlightened by the experience of the past, the Executive Power will become less and less unyielding and will cease to oppose uncompromisingly the just reforms desired by the people; it will thus become easier for them to forge and to work out their destiny without further violence and bloodshed. A nation which has been through so many crises and has voluntarily endured so many hardships in order to improve its political regime cannot be considered degenerate and retrogressive. Like the countries of the Old World, Haiti will achieve the conquest of its ideal by the steadfastness of its faith in personal effort and the consciousness of its dignity and its duty toward the race whose rehabilitation it has willingly undertaken to secure.


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320 suffrage. Even at the time of Queen Victoria's accession to the throne (1837-1901) there was great discontent among the people. "Wages were low, work scarce, and bread dear. In the cities thousands of half-fed creatures lived in squalid cellars; in the country the same class occupied wretched hovels hardly better than cellars. … A very large proportion of the children of the poorer classes were growing up in a state of barbarism. They knew practically little more of books or schools than the young Hottentots of South Africa." As to public offices, those were considered up to 1870 as the booty of the party which was successful in an election; and the motto of some politicians was, "Every man for himself and the National Treasury for us all." These scandalous proceedings ceased when positions in the civil service were to be obtained solely by competitive examinations. In spite of her unquestionable wealth and her powerful position in the world England has still to solve a very delicate problem—the agricultural question, which is giving some concern. Thousands of acres of fertile soil are no longer under cultivation and the laborers thus left without employment are congregating more and more in the towns. The consequences of the agricultural crisis were also felt in the British colonies of the West Indies; they have lost much of their former


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Rh find employment; as a result of this state of things public meetings were held, but were considered seditious and dispersed by force. Freedom of speech, liberty of the press, and the rights of persons to assemble in a body were restricted. These measures resulted in the conspiracy known as "Cato Street plot," the leaders of which were either executed or banished. Nevertheless, these agitations did not prevent the United Kingdom of Great Britain and Ireland from carrying out very great reforms. Religious toleration was established and the creed of a man was no longer a bar to public office; henceforth Dissenters were eligible to all municipal or corporate offices, and Catholics were no longer excluded from sitting in Parliament (1829). And in order to force the House of Lords to abolish the rotten boroughs the people, during the reign of William IV (1830-1837), resorted to riots. At Nottingham the mob burnt and pillaged the castle of the Duke of Newcastle, who was known to be one of the leading opponents of the reform. The Reform bill which gave to the country over half a million more voters was ultimately passed in 1832. Up to that time the election of a member of Parliament very often occasioned great disturbances; the small towns found themselves infested with "drunken ruffians" who assaulted their opponents, going so far as to confine prominent citizens, setting them at liberty only after the elections were over. Peaceful men were in this way so intimidated that in many instances they abstained from voting. The Reform bill, however, did not grant the right of voting to the peasants; a certain class only of these were admitted to the franchise in 1884, owing to the energy of a laborer, Joseph Arch. Voting by secret ballot was adopted only in 1872. It was not until the year 1888 that persons of all denominations were eligible to become members of Parliament.

It thus took the English people nineteen centuries of constant struggles and untiring efforts to acquire true electoral freedom; and they do not yet enjoy universal


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318 with Great Britain the sons of Erin tried to free themselves from the English domination. In 1803 Robert Emmet took up arms, but was defeated and put to death. In 1811 the English peasants, brought to despair by the competition of steam machinery in modern industry, resorted to violence under the leadership of Ludd; they broke into factories, destroying the machinery and burning down buildings. This riot was suppressed and numbers of the rioters were executed. It was only during the reign of George III that the press acquired the right of reporting Parliamentary debates, whereas under the Stuarts and the Tudors it would have been highly dangerous for members of Parliament to make public their criticism of the government. At the beginning of the nineteenth century the condition of England could still admit of vast improvement; punishments were of an excessive and barbarous nature, men of birth flocked to the prisons to look on at the flogging of wretched women; even children were hanged for petty larceny. And not only were the jails dens of misery and disease, but also schools of iniquity and crime. After centuries of existence there was little safety in the capital of Great Britain. The streets of London were dark and dangerous by night and highway robberies were of frequent occurrence; the streets began to be properly lighted only toward the close of the reign of George IV. "In the country the great mass of the people were nearly as ignorant as they were in the darkest part of the Middle Ages. Hardly a peasant over 40 years of age could be found who could read a verse in the Bible, and not one in ten could write his name." When George IV ascended the throne (1820-1830) the condition of the people was still very bad; such was the scarcity of food that they were on the verge of famine; and a great majority could not


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Rh still. George I (1714-1727) had to defend his crown against the son of James II. The adherents of the Pretender were defeated and many men sold as slaves in the West Indies, the leaders being either hanged or beheaded. Party feeling caused by too frequent elections was instrumental in provoking a revolt; consequently, to do away with this cause of unrest the duration of Parliament was extended from three to seven years. And in order to maintain his authority the Prime Minister, Robert Walpole, resorted to corruption, bribing the voters and conferring titles and distinctions. His theory was "that every man has his price," and that an appeal to the pocket was both quicker and surer than an appeal to principle. However, he established the form of government still in force, viz., the administration of the affairs of the state by a Cabinet whose members are chosen by the Prime Minister. The military success of George II (1727-1760) did not prevent the continuation of political unrest. Charles Edward, a grandson of James II, laid claim to the crown, and fought for it almost a year. He was ultimately defeated at Culloden and made his escape to France. George III (1760-1820) was also compelled to shed blood in order to maintain his authority. Whilst England was waging war against her rebellious colonies in America Lord George Gordon stirred up the people at home to rebellion. "London was once more at the mercy of a furious mob, which set fire to Catholic chapels, pillaged many dwellings, and committed every species of outrage (1780)." One's life was in constant danger from the rioters; those especially who did not wear the blue cockade of the Protestants ran the greatest risk of being killed. The rebellion of Ireland in 1798 was put down with great severity; blood flowed on all sides and horrible atrocities were committed daily. Even after the union


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316 its authority without the effusion of blood. Before long James II landed in Ireland, but was defeated and fled once more to France (1690). As a sequel of this civil strife Roman Catholics were hunted like wild beasts and thousands of the Irish were compelled to leave their country. In Scotland also the struggle was fierce and desperate. Terrible measures followed upon William's victory. At Glencoe the clan of the Macdonalds was entirely exterminated. The reign of Queen Anne (1702-1714) was disturbed by party strife. Superstition was rampant. Anne herself sincerely believed that she could cure the sick by touching them. An official announcement actually appeared in the London Gazette, "Stating that on certain days the Queen would 'touch' people to cure them of 'King's evil' or scrofula." After eighteen centuries of self-government there was no efficient police force in London; it was dangerous to go about at night in the streets, which were miserably lighted and heaped with filth, and infested with ruffians. Neither was there any safety along the highways; and even in the daytime it was imprudent to travel without an armed escort. The roads were in a fearful condition; and so great was the expense of transportation that farmers often let their produce rot on the ground rather than attempt to get it to the nearest market-town. The poor man's parish was virtually his prison, and if he left it to seek work elsewhere he was certain to be sent back to the place where he was legally settled. Hanging was the common punishment for most offenses. Men and women were frequently whipped along the streets. Fastened to the pillory ordinary offenders were publicly exposed to the insults and outrages of the populace. Notwithstanding the change of dynasty when the House of Hanover came into power, civil wars


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126 sixteen grammar schools founded during this period were exclusively for boys. Besides these, were the new schools of Winchester and Eton, which take such a leading part in the educational world of to-day. Both were established for the supply of educated clergy—Winchester with a warden and some seventy scholars "to study grammar and to live together to the honour and glory of God and our Lady,"

Not only was all education—public and private—under ecclesiastical control, but to the Church was due the elaborate pilgrimages, which were such a characteristic feature of these times. True, the movement had lost much of the simple enthusiasm and artless faith of former days, and too often resembled a party of holiday-makers, merely journeying together for company and protection. A love of wayfaring, gossip, and good company, together with the merry incidents of the road, attracted many under the guise of pilgrims to undertake the journey to the famous English shrines of St Thomas Becket at Canterbury or Our Lady of Walsingham, To cross the rough Channel and tramp the long distance across France to the tombs of SS. Peter and Paul, one of the severest penitential disciplines


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Rh enjoined by the Church, was a pilgrimage undertaken only by the most sincere, for the journey took three months, and the discomforts of the way were great.

Sometimes on horseback, sometimes on foot, journeyed the medieval pilgrim. Twenty miles a day was the ordinary rate of progression, but much time was spent in the taverns by the way, and in changing horses at roadside inns. For Canterbury they started from the famous Tabard Inn in Southwark, paying twelvepence to Rochester and another twelvepence for a horse to Canterbury. Chaucer, in his well-known "Canterbury Tales" gives us the whole atmosphere of the fourteenth century pilgrimage with graphic candour. We see the "verray perfight gentil knight" in cassock and coat of mail, with his curly-headed squire beside him, fresh as the May morning, and behind them the brown-faced yeoman in his coat and hood of green, with the good bow in his hand. A group of ecclesiastics light up for us the medieval Church—the brawny, hunt-loving monk, whose bridle jingles as loud and clear as the chapel-bell; the wanton friar, first among the beggars and harpers of the country side; the poor parson, threadbare, learned and devout; the summoner, with his fiery


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128 face; the pardoner, with his wallet "bret-full of pardons, come from Rome all hot"; the lively prioress with her courtly French lisp, her soft, little red mouth, and "Amor vincit omnia" graven on her brooch. Learning is there in the portly person of the doctor of physic, rich with the profits of the pestilence; the busy serjeant-of-law, "that ever seemed busier than he was"; the hollow-cheeked clerk of Oxford, with his love of books, and short, sharp sentences that disguise a latent tenderness which breaks out at last in the story of Griseldis. Around them crowd types of English industry: the merchant; the franklin, in whose house "it snowed of meat and drink"; the sailor fresh from frays in the Channel; the buxom wife of Bath; the broad-shouldered miller; the haberdasher, carpenter, weaver, dyer, tapestry-maker, each in the livery of his craft; and last, the honest ploughman, who would dyke and delve for the poor without hire.

All these types we can picture as they journeyed over the rough and almost impassable roads of medieval England. For the roads and bridges were indeed of the most hopeless description; moreover, they were infested with beggars of every kind, robbers and banditti lay in wait


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 which remained for a long time without influence on the growth of opinion, and mention only his doctrine of the growth of thickness of the stem. The stem is originally the prolongation of all the leaf-stalks united together. As many bundles of vessels are formed in the developed stem as there are leaves springing from the vegetative axis; each leaf has a single vascular bundle belonging to it in the stem, in modern phraseology an inner leaf-trace. The union of these bundles from the different leaves forms the rind of the stem; but if the leaves are very numerous, their descending bundles form a closed cylinder, and if the stem is perennial, the fresh production of leaves every year produces new zones of wood of this kind every year, which are the yearly rings. This view of Wolff's on the growth of the stem in thickness bears an unmistakable resemblance to the theory afterwards suggested by Du Petit-Thouars, according to which the roots which descend from the buds are supposed to effect the thickening of the stem.

The contests between Mirbel and his German antagonists at the beginning of the present century will bring us back again to the more important points in Wolff's theory of the cell. Contemporary botanists paid less attention to the 'Theoria Generationis' than they did to Hedwig's phytotomic views, not on the formation of cells, but on the structure of mature tissue. had given various figures and descriptions of phytotomic subjects in his 'Fundamentum Historiae Muscorum' (1782) and afterwards in his 'Theoria Generationis'


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Rh for the unwary, the forests were filled with outlaws, ready to slay the pilgrim and plunder the solitary merchant Fortunately, there were plenty of inns on all the main roads, though they must have been rough and uncomfortable.

"William," advises a traveller who has had a disturbed night at one of these wayside inns, "William, undress and wash your legs, and then dry them with a cloth, and rub them well for love of the fleas, that they may not leap on your legs, for there is a pack of them lying in the dust under the rushes. Hi! the fleas bite me so!"

Here, notwithstanding dirt and discomfort, wayfarers supped and slept, pursuing their journey at daybreak. In addition to the inns there were ale-houses by the road side, indicated by a long stake on which hung a garland or bush, giving rise to the proverb "Good wine needs no bush." Here was much drinking and merry-making, and though no spirits were as yet invented, the atmosphere and conviviality remind one of the modern public-house. "Many come here," says a woman writer of the times, "in order to drink, and they spend here, 'tis perfectly true, more than they have gained all day."

With such roads, it is small wonder that even


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 (1784); but he treats these topics at greater length in his treatise 'De fibrae vegetabilis et animalis ortu,' published in 1789, and known to the author of this work only imperfectly from quotations in later writers. Hedvvig's figures of histological objects appear to be better than those of any of his predecessors; they show that he used strong magnifying powers, and that his glass had a clear field of sight. His defect lay in preconceived opinions and hasty interpretation of what he observed. In order to refute Gleichen's view of the stomata in ferns, he demonstrated the existence of these organs in many phanerogams, and observed the opening of the slits, which he named 'spiracula.' On the epidermis which he had removed for the purpose of these observations he saw plainly the double contour lines bounding the epidermis-cells, and therefore the cell-walls, which are at right angles to the surface. These he took for a particular form of vessel, and called them 'vasa reducentia' or 'lymphatica,' and afterwards 'vasa exhalantia,' and he thought that he had found them again in the interior of parenchymatous tissue, evidently taking the places where three wall-surfaces meet for vessels; such vessels he also saw in the milk-cells of Asclepias, described in 1779 by the elder Moldenhawer, who seems himself to have regarded even the intercellular spaces in the pith of the rose as equivalent to these milk-cells. The word vessel even in the 18th century was used in such an indefinite manner, that the broad air-tubes of the wood and the finest fibres were called vessels. Hedwig's idea of the construction of spiral vessels was strange enough; he took the spiral band itself for the vessel, and supposed it to be hollow because it is coloured by absorption of coloured fluids; in those spiral vessels in which the turns of the spiral band are distant he saw, it is true, the delicate original membrane which lies between the turns, but he supposed that it lay inside the spiral band, which was wound round it on the outside. On the second plate of the first part of the 'Historia Muscorum' he even figures the network of ridges which the


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Rh Kings preferred making their journeys on horseback to using the cumbrous and awkward vehicles which constituted the carriages of these days. They were mounted on four wheels and drawn by several horses harnessed in a row, or two and two in teams, ridden by postilions with short, many-thonged whips and spurs. From the solid beams of wood which rested on the axles rose a framework like an archway, rounded in the manner of a painted and gilded tunnel. The inside was hung with tapestry, on the wooden seats were embroidered cushions, and the square windows were hung with silk curtains. Inside this cumbrous vehicle sat the unfortunate ladies, whose fate it was to move in state from one place to another. With groaning wheels, the heavy machine advanced by fits and starts, now descending into rotten hollows, now in peril of capsizing over some uneven surface, now sticking altogether in the deep mire, or splashing through some low-lying part of the road flooded by a neighbouring stream.

No wonder they mostly preferred riding on horseback to sitting in these cumbrous carriages for any long distance. The woman of the period loved the open air and was an undoubted addition


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 adjoining cells have left on the wall of the spiral vessel, but explains it as wrinkles caused by desiccation.

Hedwig was without doubt a very practised microscopist, and he constantly recommended the extremest care in the interpretation of all that the instrument reveals; but if an observer so careful and practised, who moreover was provided with a glass of tolerably strong magnifying power, fell into such gross mistakes, it cannot surprise us if others, as P. Schrank, Medicus, Brunn, and Senebier, accomplished still less. These highly unimportant achievements are all that mark the close of the 18th century.


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 1. DICTIONARIES.

A New English Dictionary on Historical Principles, founded mainly on the materials collected by the Philological Society. Imperial 4to. In Parts, price 12s. 6d. each.
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An Etymological Dictionary of the English Language, arranged on an Historical Basis. By W. W. Skeat, Litt.D. Second Edition. 4to. 2l. 4s.

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An Icelandic-English Dictionary, based on the MS. collections of the late Richard Cleasby. Enlarged and completed by G. Vigfússon, M.A. With an Introduction, and Life of Richard Cleasby, by G. Webbe Dasent, D.C.L. 4to. 3l. 7s.

A Greek-English Lexicon, by H. G. Liddell, D.D., and Robert Scott, D.D. Seventh Edition, Revised and Augmented throughout. 4to. 1l. 16s.

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Rh to the merry parties on horseback that wended their way ceaselessly along the bad roads either on pilgrimage or for purposes of merchandise. Indeed, the equality of the sexes is a characteristic feature of the Middle Ages. Men and women from the cradle to the grave shared life equally and naturally, neither was there any idea at this time of debarring them from taking their part in public affairs. Boys and girls were educated together, they had their games in common; together they hunted, together they went shooting. It was also an age of romance, of love-making and of great immorality, for the which both sexes were punished equally. Women took part in the pilgrimages; they took their place in the growing world of trade. They were members of the old social and religious gilds established for good fellowship during life, for due burial, prayers, and Masses after death, and the charitable assistance of needy survivors. Thus the Gild of Corpus Christi, Hull, was founded in the fourteenth century by eighteen men and twenty-five women, while the Gild of the Holy Cross, Stratford-on-Avon, had half its members men, and half women. The Trades Gilds also admitted


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who had fallen into debt, was imprisoned in the Fleet, and, being unable to pay the accustomed fees to the warder, was confined in a house where the small-pox was raging. There Castell perished of the disease. The sad incident directed Oglethorpe's attention to the horrors and brutalities of debtors' prisons. At the beginning of 1729 he brought the matter before parliament, and the result was the appointment of a committee, with Oglethorpe for its chairman. The investigations of the committee revealed infamous jobbery and more infamous cruelty on the part of the prison officials (see, England in the Eighteenth Century, i. 500 sq.; and art. Bambridge, Thomas (DNB00).

The insight which Oglethorpe thus obtained into pauperism and its consequences led him to the great work of his life. In all times colonisation has suggested itself as a remedy for the economical ills of old countries. In June 1732 Oglethorpe, with twenty associates, obtained a charter for settling the colony of Georgia in America, a tract lying between the rivers Savannah and Alatamaha, named in honour of George II, who gave Oglethorpe every encouragement. Almost simultaneously he published anonymously an essay setting forth the amount of distress extant, and unfolding his scheme of colonisation as a cure for it. It is true, as Bacon says in his 'Essay on Plantation,' that 'it is a shameful and unblessed thing to take the scum of people and wicked condemned men to be the people whom you plant.' Oglethorpe, however, was careful to introduce certain conditions which lessened, though they could not avert, the evils resulting from his choice of settlers. In the first place, he intended from the outset that they should be under his own personal supervision; and, whatever might be Oglethorpe's faults of character, he was born with the gift of ruling men. Moreover, there was to be some sort of discrimination exercised in the choice of settlers. Mere poverty was not to give a claim for a place in the colony; nor is there any reason to think that Oglethorpe ever expected wholly to escape the evils inherent in his experiment. The results are full of interest and instruction for the social reformer.

Oglethorpe and the other trustees, who opened an office in Old Palace Yard, Westminster, received liberal private subscriptions and a grant of 10,000l. from parliament. The settlement was designed not only as a refuge for paupers, but also as a barrier for the British colonies against aggression by Spain on their southern frontier. On grounds of military expediency, rather than of social economy, negro slavery was wholly prohibited.

On 30 Oct. 1732 Oglethorpe embarked in the Anne galley at Deptford, and in November set sail with 120 settlers. For nine years the life of Oglethorpe and the history of the colony of Georgia are identical. He at once found a satisfactory site, on which was built the town of Savannah; and he established friendly relations with the natives, which remained unbroken during his whole sojourn in the colony. Fresh colonists, and of a more effective stamp, were added: some, German protestants, whose religion had banished them from Austria; others, Scottish highlanders. Settlements were thrown out westward, and an outpost formed at Frederica, on an island at the mouth of the Alatamaha, about sixty miles south of Savannah.

In 1734 Oglethorpe returned to England (bringing with him several Indian chiefs), and the effects of his absence at once illustrated the instability of a colony which rested solely on the energy and capacity of one man, and whose inhabitants had in them no element of thought, industry, or civic virtue. Oglethorpe was at times precipitate in his choice of subordinates, and unduly and obstinately confident in them when chosen. The storekeeper, a person of no small importance in a little community organised on almost communistic principles, was dishonest and tyrannical. In such a colony as Georgia malcontents were sure to be found. Two restrictions, the prohibition of rum and of negro slavery, were specially irksome. On his return to Georgia, Oglethorpe dismissed the offending storekeeper. But he and his co-trustees stood firm upon the other points, and the result was a continuous undercurrent of dissatisfaction and disloyalty.

That was not the only element of discord in the colony. Oglethorpe's impetuous and sympathetic temper led him to select for the spiritual staff of his colony John and Charles Wesley, heeding only their high moral excellence and the attractive side of their characters, and overlooking the absence of that tact, forbearance, and subordination which for this special task were to the full as needful. Charles Wesley went out in 1736 as Oglethorpe's private secretary. He had not been long in the colony before he displeased Oglethorpe. If we are to believe Wesley's own account, his employer treated him not only with harshness, but with pettyminded malevolence. But the solemnity of their parting, when, in the spring of 1736, Oglethorpe went forth against the Spaniards with a wholly uncertain prospect of return, seems to have touched the hearts of both,


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O'Grady Leonard McNally [q. v.] On his retirement from the bench in 1831, he was created Viscount Guillamore of Cahir Guillamore and Baron O'Grady of Rockbarton, co. Limerick, in the peerage of Ireland. He was a handsome man, of a fine presence, and over six feet in stature. He died in Dublin on 20 April 1840. In 1790 he married Katharine (d. 1853), second daughter of John Thomas Waller of Castletown, co. Limerick, by whom he had several children.

,  (1792-1848), eldest son of the above, born in 1792, was a lieutenant in the 7th hussars at Waterloo, and afterwards became lieutenant-colonel. On 17 June 1815 he had command of the troop of the 7th hussars on the high road from Genappe to Quatre Bras. The regiment was covering the British march from Quatre Bras to Waterloo, and Sir William Dörnberg left O'Grady outside the town, on the Quatre Bras road, to hold in check the advancing French cavalry while the main body of the regiment was proceeding in file across the narrow bridge of Genappe and up the steep street of the town. O'Grady advanced at the head of his troops as soon as the French appeared, and presented so bold a front that, after a time, they retired. When they were out of sight he crossed the bridge at the entrance of Genappe, and took his troop at a gallop through the town, rejoining Sir William Dörnberg, who had drawn up the main body of the regiment on the sloping road at the Waterloo end of Genappe. A severe cavalry combat ensued when the French lancers reached the top of the town, in which O'Grady's regiment made a gallant charge, with considerable loss. At Waterloo he was stationed on the ground above Hougoumont on the British left. 'The 7th,' he says in a letter to his father, 'had an opportunity of showing what they could do if they got fair play. We charged twelve or fourteen times, and once cut off a squadron of cuirassiers, every man of whom we killed on the spot except the two officers and one Marshal de Logis, whom I sent to the rear' (letter in possession of the Hon. Mrs. Norbury). Two letters of his to Captain William Siborne, describing the movements of his regiments on 17 and 18 June 1815, are printed in 'Waterloo Letters,' edited by Major-general H. T. Siborne (London, 1891, pp. 130-6). By his wife Gertrude Jane (d. 1871), daughter of the Hon. Berkeley Paget, he had issue Standish, third viscount (1832-1860); Paget Standish, fourth viscount (1838-1877); Hardress Standish, fifth and present viscount; and others. The second viscount died on 22 July 1848.

[O'Keefe's Life and Times of O'Connell, i. 183; Barrington's Personal Sketches; Smyth's Law Officers of Ireland, 1839, pp. 145,170; O'Flanagan's Munster Circuit, 1880, pp. 232-7; Foster's Peerage, p. 318; Wills's Irish Nation, iii. 692-3; O'Flanagan's Irish Bar, 1879, pp. 190-4.]

 OGSTON, FRANCIS (1803–1887), professor of medical jurisprudence at Aberdeen, born in Aberdeen in July 1803, was third son of Alexander Ogston, the founder of an extensive soap manufactory at Aberdeen. He was educated at the grammar school and at Marischal College, Aberdeen, completing his medical course at Edinburgh University, where he graduated M.D. in 1824. Subsequently he travelled and studied on the continent. Having settled at Aberdeen, he soon acquired a large practice. In 1827 he began to teach chemistry privately, and in 1839 he was appointed lecturer on medical jurisprudence at Marischal College. When the lectureship was converted into a professorial chair in 1857, Ogston became the first professor, teaching medical logic in addition to his special subject. In 1860, when Marischal College was united to King's College, to form the university of Aberdeen, under the Universities (Scotland) Act, 1858, Ogston's appointment was maintained, and he continued to occupy the chair of medical jurisprudence till his retirement in 1883. His lectures were published in London in 1878, under the title 'Lectures on Medical Jurisprudence,' and were accepted both in this country and in Germany as a standard work. From 1831 Ogston held the appointment of police-surgeon in Aberdeen, and he was also medical officer of health for the city from 1862 till 1881. He had frequently to give evidence on important cases in the justiciary courts, and the lucidity of his reports called forth the commendations of the judges. He was chosen dean of the faculty of medicine in Aberdeen, and was twice representative of the senatus at the university court. In 1883 he retired from the chair of medical jurisprudence. Two years afterwards the university conferred the honorary degree of LL.D. upon him. He died suddenly at Aberdeen on 25 Sept. 1887. Both of his sons followed the medical profession; the elder, Dr. Alexander Ogston, being professor of surgery at Aberdeen University, and the younger, Dr. Frank Ogston, holding an appointment as professor of public health and medical jurisprudence at the university of Otago, New Zealand. Besides the lectures referred to, Ogston contributed many papers to the British and continental medical journals.


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O'Halloran Physic amongst us,' appears to have influenced the founders of the Royal College of Surgeons in Ireland in 1784. On 7 Aug. 1786, two years after the date of the charter, he was elected an honorary member of the college, an unusual honour in those days.

He devoted much time to literary and antiquarian researches, and was acquainted with the Irish language. His first work in this department was 'Insula Sacra,' printed in 1770, with a view to the preservation of the ancient Irish annals. In 1774 he published his 'Ierne Defended,' a plea for the validity and authenticity of ancient Irish history. A literary society in Limerick was chiefly supported by his labours, and was dissolved at his death. His 'General History of Ireland from the earliest Accounts to the Close of the 12th Century' engrossed his chief attention during the latter period of his life, and was published in 1774.

He died at Limerick on 11 Aug. 1807, in his 80th year, and was buried in Killeely churchyard. He married in 1752 Mary O'Casey, by whom he had three sons and one daughter. One son, Sir Joseph O'Halloran, is noticed separately.

A portrait appears in the Dublin 'Journal of Medical Science,' November 1873.

 O'HALLORAN, THOMAS SHULDHAM (1797–1870), major and commissioner of police in South Australia, was the second son of Major-general Sir Joseph O'Halloran, G.C.B., by his wife Frances, daughter of Colonel Nicholas Bayly, M.P., and niece of Henry, first earl of Uxbridge. He was born at Berhampore in the East Indies on 25 Oct. 1797; was a cadet at the Royal Military College, Marlow, in 1808; and was appointed ensign in the royal West Middlesex militia in 1809. In 1812 the college and students were removed from Marlow to Sandhurst. In 1813 he was gazetted ensign in the 17th foot, and joined his regiment in 1814. With it he served during the whole of the Nepaul war in the years 1814, 1815, and 1816. On 28 June 1817 he received his lieutenancy, and served during the Deccan war in 1817 and 1818. In 1822 he exchanged from the 17th to the 44th regiment, which he joined at Calcutta in 1823. In 1824 he was ordered with the left wing of the 44th to Chittagong, where he arrived early in June, and was appointed paymaster, quartermaster, and interpreter. On 30 Oct. he was made brigade-major to Brigadier-general Dunkin, C.B., who commanded the Sylhet division of the army during the Burmese war, and served on his staff until Dunkin's death in November 1825. He received a medal for war service in India for Nepaul and Ava. On 27 April 1827 he purchased his company in the 99th regiment, and exchanged into the 56th regiment in 1828. In 1829 he exchanged into the 6th regiment, and joined his father as aide-de-camp at Saugor, Central India. From June 1830 to January 1831 he served as deputy assistant-quartermaster-general at Saugor. He retired on half-pay in October 1834. In 1837 he was placed on full pay as captain in the 97th regiment, and in that year was sent, in command of two companies of his regiment and a troop of the 4th dragoon guards, to quell the riots in Yorkshire. In 1838 he retired from the army on the sale of his commission.

He sailed for South Australia in the Rajasthan, and, landing at Glenelg on 21 Nov. 1838, settled with his family at O'Halloran Hill, near Adelaide, South Australia. On 2 Feb. 1839 he was nominated a justice of the peace; on 26 Feb. 1840 was gazetted major-commandant of the South Australia militia, and on 8 June as commissioner of police. In 1840 when the Maria was wrecked at Lacepede Bay, and the crew were murdered by natives, O'Halloran was sent to investigate the matter, with the result that two of the natives were hanged, and no organised attack was ever made again by natives on Europeans in that part of the colony. On 17 Aug. of the same year he was sent in command of an expedition against the Milmenura (or Big Murray) aborigines. On 21 April 1841 he commanded an expedition against those known as the River Murray and Rufus natives. On 7 Nov. he was in command of an expedition to Port Lincoln against the Battara natives. On 12 April 1843 he resigned his appointment as commissioner of police. He maintained the force in a high state of efficiency, and, though a rigid disciplinarian, was much liked and respected by the officers and men. On 15 June 1843 he was nominated senior non-official member of the nominee council, and continued in that position for eight years, when the first instalment of representative government was granted. He contested the Sturt district in 1851, and Noarlunga in 1855, but without success, owing to his advocacy of state aid to religion. In 1854 he was


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text:
Barings v. Dabney

ERROR to the Supreme Court of South Carolina; the case being thus:

In 1812, the legislature of South Carolina, by a legislative act, created a bank by the name of the Bank of the State of South Carolina. The capital was to consist of various stocks, bonds, and securities specified, then belonging to the State; the same being in fact all the stocks, bonds, and securities which the State owned. The bank thus belonged to the State. The president and directors were to be elected by the legislature, and were made a corporation and body politic. The faith of the State was pledged for the support of the bank, for the supply of any deficiency in the funds specially pledged, and for making good all losses arising from such deficiency. The usual powers were conferred upon the corporation; to purchase, hold, and transfer property of all kinds; to sue and be sued; to adopt its own rules and by-laws; to issue notes, and to make loans by way of discount, secured by mortgage; and to do all acts which might appertain to its functions as a bank.

In December, 1821, by another legislative act, the future profits of the bank were pledged and set apart for the payment of a certain 6 per cent. stock, which the State had previously issued.

In 1838, the city of Charleston suffered from an extensive fire, and the legislature passed, in that same year, an act entitled 'An act for rebuilding the city of Charleston.'

By the first section of this act the governor was directed and required, in the name of the State, to issue bonds or other contracts not exceeding $2,000,000, for the purpose of procuring a loan on the credit of the State to rebuild the burnt portion of the said city; and the faith and funds of the State were pledged for the punctual payment of the bonds or contracts, with interest.

By the third section the money, when obtained in Charleston, was to be deposited in the bank, and become a part of its capital.

By the tenth, eleventh, and twelfth sections it was enacted as follows, to wit:

'SECTION 10. It shall be the duty of the president and directors of the Bank of the State of South Carolina to make proper provisions for the punctual payment of the interest of such loan, and also for the ultimate payment of the principal thereof.

'SECTION 11. It shall be the duty of the president and directors of the Bank of the State of South Carolina to cause to be opened in the books of said bank an account in which they shall debit themselves with the profits arising out of the additional capital created out of the two millions loan aforesaid, for the year ending October 1st, 1839, and with all the future profits of the said loan as the same shall hereafter be annually declared; which said fund, with its annual accumulations, shall be considered solemnly pledged and set apart for the payment of the interest on said loan and the final redemption thereof; and it shall be the duty of the president and directors of the said bank annually to report to both branches of the legislature the exact state of that fund.

'SECTION 12. When the profits of the said Bank of the State of South Carolina shall have paid the interest of certain stocks for which they have been heretofore pledged and set apart, the said profits shall also be considered solemnly pledged and set apart for the payment of the interest on the said loan and the final redemption thereof.'

Under this act a large amount of bonds, known as 'Fire Loan bonds,' were issued and negotiated, of which 109,000 payable in London, and due in 1868, were still outstanding in the hands of Baring Brothers & Co. These bonds, by an indorsement thereon, were guaranteed by the bank.

Certificates of State stock, known as 'Fire Loan stock,' were also issued under the act, payable at the State treasury, and not expressly guaranteed by the bank; of which $318,000 were still outstanding in the hands of a few persons in South Carolina.

Notwithstanding the directions of the eleventh section of the act of 1838, to keep a distinct account of the profits arising out of the additional capital created by the two millions loan, no such account was ever kept; and though the net profits of the bank were annually ascertained, the particular sources from which they arose could not be distinguished, so that at the close of the rebellion in 1865, during which the resources of the bank had been enormously drawn on by the State, the assets which remained were a product made up of capital increased by profits, and the sum diminished by losses till insolvency had supervened.

The bank being thus, at the close of the war, insolvent, the General Assembly, on the 21st of December, 1865, passed an act, entitled 'An act to raise supplies for the year,' &c.; by the eleventh section of which it was enacted,

'That the president and directors of the Bank of the State of South Carolina be, and they are hereby authorized and required to close the branches and agencies of said bank, and that the principal bank at Charleston shall cease to be a bank of issue, but shall continue to act as a bank of deposit until further action of the legislature; and the said president and directors are hereby authorized and required to collect the assets and property of the bank, and hold the same especially appropriated,

'First. To the payment of the principal and interest of the bonds known as the Fire Loan bonds, payable in Europe.

'Second. To the payment of the principal and interest of the Fire Loan bonds, payable in the United States; and,

'Third. To the redemption of outstanding notes hitherto issued by said bank.'

In October, 1867, before the scheme provided in this act was carried out, Dabney, Morgan & Co., holding bills of the bank, filed the bill in this case in the Chancery Court of First Instance of the State for the Charleston District, on behalf of themselves and all other billholders of the bank, against the Baring Brothers & Co. (the holders of 109,000 Fire Loan bonds), and the persons in South Carolina holding the $318,000 of the Fire Loan stock.

Dabney, Morgan & Co. insisted that the Fire Loan bondholders and Fire Loan stockholders were not creditors of the bank, and that the act of 1865 was unconstitutional in that, by directing the property of the bank to be applied to the payment of the debts of the State, which were not debts of the bank, it impaired the obligation of contracts. The bill prayed that the bank might be restrained from carrying the act into effect, and that the complainants and other billholders might be decreed to be paid out of the property and assets of the bank.

The Barings, as Fire Loan bondholders, and the other defendants, as Fire Loan stockholders, answered, each relying largely for himself on the clauses already quoted of the act of 1838; appropriating the profits of the loan (after the payment of the interest on the earlier 6 per cent. stock which had confessedly long since been paid off) to the payment of the Fire Loan; and the argument of their counsel, in view of the fact that no separate account had been kept of the profits, being that a pledge of profits carried the capital from which the profits came; in the same way as the bequest of the interest of public funds, or of the dividends of stock, or a devise of the rents and profits of an estate, is a bequest of the funds or stock themselves, or a devise of the estate from which the rents and profits sprung.

The Barings especially (rather than the Fire Loan stockholders) relied on the act of 1865. They said in their answer:

'If it was apparent in 1865 that, from the force of circumstances, the State would be unable to meet its obligations at the maturity of the bonds in July, 1868, this was in itself good ground for legislative interference to confirm the appropriation of funds as originally pledged.

'Nor was the act of 1865 either unconstitutional, as impairing the obligation of contracts, or contrary to good faith, equity, or conscience.

'The bank had long suspended its payments, and, from the events of the war, was not in a condition to pay at once all its creditors. No bankrupt law existed at the time of the passage of the act. The legislature represented the sole stockholder. Its power and control over the bank was, at least, equal to that of the united stockholders of a private bank. The bank was but its servant. The legislative will was supreme. This paramount power, exercising for the corporation the ordinary privileges accorded, as defendants are advised, by the then existing law, undertook to prefer certain named creditors, while the whole of the assets were appropriated to the payment of debts, nothing being reserved to the corporation or stockholder controlling. The defendants submit that the preferences made were not only in conformity with the then existing law and with good faith, but in accordance with the strictest equity and most enlightened conscience. They aver that the act was a statutory assignment of assets for the benefit of creditors, and that the said assignment was executed by the highest power known to the corporation, and in form the most solemn.'

During the pendency of this suit the legislature of South Carolina, by an act passed September 15th, 1868, entitled 'An act to close the operations of the Bank of the State of South Carolina,' amongst other things repealed the eleventh section of the act of December 21st, 1865, above referred to.

On the 7th of May, 1870, the Court of First Instance, where the bill was filed, decreed that the Fire Loan bondholders and Fire Loan stockholders be first paid pari passu, out of the assets of the bank, and that any surplus be applied pro rata to the billholders, depositors, and other creditors, after adjusting the claims that arose during the war to the value thereof in United States currency. This decree disregarded the eleventh section of the act of 1865 altogether, as being unconstitutional, on two grounds: first, as disposing of property which the State did not own, and violating a solemn contract, on the faith of which the loan was taken; and secondly, as having no relation to the other matter of the act, and the subject of it not being expressed, as the constitution of South Carolina requires that each subject of an act should be, in its title. The contract which the court held to have been violated by this section, was the pledge of profits contained in the eleventh and twelfth sections of the act of 1838, authorizing the Fire Loan. The court held not only that the pledge of the profits was a pledge of the capital, but that the capital had all been drawn out by, and returned to, the State, and that the resulting fund now remaining consisted only of profits. The court further held that this pledge of profits related to both branches of the Fire Loan alike, and that the Fire Loan stock stood on an equal footing with the Fire Loan bonds, although the latter only had been guaranteed by the bank.

The Supreme Court of South Carolina, on appeal, reversed this decree, placing the Fire Loan bondholders on an equality with the other creditors, and holding that the Fire Loan stockholders were not creditors of the bank at all, and not entitled to any participation in the fund; and directed the assets to be distributed among all the creditors of the bank, in proportion to the amount of their claims, reducing those arising during the war to their value in National currency.

The grounds on which this decree was made were:

First, that the pledge of profits in the act of 1838 expressly related to profits as distinguished from the capital; that no separate account of such profits had ever been kept; and that the result was, in fact, a loss instead of profit, the small residue of assets yet subsisting being the joint result of capital, deposits, and moneys received from loans and discounts; and, therefore, that the pledge relied on by the Fire Loan bondholders and stockholders had nothing specific and distinct on which to attach; and that, in fact, nothing was in existence on which it could attach.

Secondly, that the Fire Loan bondholders were to be admitted as creditors only by virtue of the express guarantee of the bonds of the bank; and that the Fire Loan stockholders were to be excluded because the bank had never guaranteed said stock.

Thirdly, that no claim could be sustained by either under the eleventh section of the act of 1865, because that act did not amount to an assignment (which could only be made by the bank), but amounted only to a direction which was never carried into effect, which the State, as sole stockholder of the bank, could, at any time before its execution, revoke, and which, by the act of September, 1868, repealing the said section, it did revoke; and that if the act of 1865 had amounted to an assignment, it could not have been sustained as to the Fire Loan stockholders, because they were not even creditors of the bank.

This decree was brought here by a writ of error, under the second section of the act of the 5th of February, 1867. The interposition of this court was invoked on the ground that the eleventh section of the act of 1865 became a contract with the Fire Loan bondholders and Fire Loan stockholders, and that the validity of the said contract was impaired by the act of 1868, which repealed the said section, and which repealing act was sustained by the decree of the Supreme Court of South Carolina.

Messrs. I. W. Hayne and W. W. Boyce, for the plaintiffs in error; Mr. D. H. Chamberlain, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Barings v. Dabney


text: Talk:Barings v. Dabney

title: Talk:Barings v. Dabney


text:
Barings v. Dabney/Opinion of the Court

The first question for us to decide is whether the eleventh section of the act of 1865 did, as alleged, amount to, or did become, a contract with the appellants.

When that act was passed the bank was hopelessly insolvent. The section referred to was intended to prescribe the manner in which its assets were to be distributed and its affairs wound up. The State was the sole stockholder, and the bank, as a corporation, could not complain of any course of action which the legislature saw fit to adopt or prescribe. In relation to the State, it was alter et idem. In this respect its position was very different from that of private corporations. The action of the legislature could only be questioned by the creditors of the bank. As to the bank itself, the wishes of the legislature were commands. When, therefore, the legislature, by the eleventh section of the act of 1865, declared that 'the president and directors [of the bank] are hereby authorized and required to collect the assets and property of the bank, and hold the same specially appropriated, first, to the payment of the principal and interest of the bonds known as the Fire Loan bonds, payable in Europe; second, to the payment of the principal and interest of the Fire Loan bonds, payable in the United States; and third, to the redemption of outstanding notes hitherto issued by the bank,' this beclaration, if valid, was not only a direction, but a law. It was a law which the bank could not question; only creditors, whose interests were in conflict with it, could question it. As an enactment, it created ipso facto, a trust, and made the bank a trustee for the parties provided for by it. It was a trust on which the bondholders, when made acquainted with its terms, had a right to rely. They became, if they assented to it, cestuis que trust with vested rights. Being made for their benefit, it will be presumed that they did assent to it, if they expressed no dissent.

It is unnecessary to go into the learning of voluntary assignments for the benefit of creditors. It is clear law that such an assignment, if assented to by the creditors, or a considerable portion of them, becomes irrevocable; and in this country assent will be presumed if dissent is not expressed.

In this case, it is true, no actual assignment was made. But for the purpose of creating a trust it was not necessary. The act was a law of the State making the corporation a trustee. What special rights were thus created in favor of the cestuis que trust will be noticed hereafter.

The creation of this trust in favor of the bondholders, if valid, was a contract with them. Confiding in it, they would desist from further efforts to secure the payment of their claims by adverse proceedings. It would be unjust to them to abrogate it, and place them where they stood when the trust was created. The repeal of the section in question, therefore, did impair the validity of this contract, and, if the latter was valid, was a violation of the Constitution.

This conclusion, however, is based on the assumption that the law itself, namely, the eleventh section of the act of 1865, was a valid law. If it was not valid its repeal cannot be questioned. It is contended before us that it is invalid because it appropriates the assets of the bank to persons who are not creditors of the bank, but creditors of the State only. The objection taken, if valid in fact, is a good one. It was expressly decided in Curran v. The State of Arkansas, that if the capital of a State bank, like the one in question, be withdrawn by the State, either for the payment of its own debts or for deposit in the State treasury, it is a violation of the pledges by which the capital of the bank, though derived from State resources or State obligations, was set apart and appropriated as the basis of the independent credit of the bank; and that a law passed to effect such a withdrawal or misappropriation impaired the validity of the contracts held by the creditors of the bank.

That case had in it many features of the present one. The legislature of Arkansas, amongst other things, required the bonds of the State held by the Bank of Arkansas to be given up and cancelled; and authorized the bank officers to receive in payment of debts due the bank bonds of the State issued to raise capital stock for the bank, notwithstanding the bills of the bank might not have been taken up. 'We cannot attribute to this provision of the law,' says the court, 'any other meaning or effect than what is plainly apparent on its face. It authorizes and requires the assets of the bank to be appropriated to pay debts of the State; and we cannot conceive how this can be reconciled with the rights of creditors to those assets.' The bank in that case, as in this, was insolvent, and the court held that all its assets formed a trust fund for the payment of its creditors; and that a stockholder could not lawfully withdraw any part of this fund from appropriation to that object; and that a law passed for that purpose was unconstitutional. The majority of the court was clearly of opinion that a right on the part of the State to withdraw the funds of the bank for the uses of the State, or to pay the debts of the State, would render the bank itself obnoxious to the tenth section of the first article of the Constitution, which prohibits a State from emitting bills of credit, inasmuch as it would destroy the distinctive existence and independent credit of the bank, which independent credit is founded on the inviolability of the capital pledged for the payment of its debts.

Now, in this case, the assets of the Bank of the State of South Carolina, which still remained in 1865, were the resultant of all its capital and operations. We hold with the Supreme Court of the State that they were not profits, nor the subject of any previous pledge of profits to any specific class of debts. Any question, therefore, arising upon any such previous pledge may be laid out of the case. The only question is, whether the appropriation by the State legislature of these assets to the payment, first, of the Fire Loan bonds, and, secondly, of the Fire Loan stock, was valid and effectual.

As to the latter, we think the Supreme Court was clearly right. The Fire Loan stock was clearly not a debt of the bank, but a debt of the State alone; and the appropriation of the assets of the bank to its payment was directly within the case of Curran v. The State of Arkansas.

As to the Fire Loan bonds, there is more room for doubt. These bonds were the debts of the State, and not of the bank, it is true, but their payment was guaranteed by the bank; and it is strenuously insisted that this circumstance rendered them so far obligations of the bank that the latter might be justified in providing for their payment in preference to their other creditors. Had the bank done this, the question as thus presented would have fairly arisen. But the bank, as a distinct entity, never did make such an appropriation of its assets. The appropriation which was made was an appropriation by law; and that law was made by the State itself-the principal debtor. The case was the same, in principle, as the Arkansas case. The legislature of South Carolina, by law, appropriated the assets of the bank to pay the debts of the State. This it could not do without violating the pledges made to the creditors of the bank, even though the particular debts thus preferred were guaranteed by the bank. The Fire Loan bonds were not due by several years when this act of appropriation was attempted to be made. No claim had yet accrued thereon against the bank. So far as appears, there were not even any arrears of interest due. It did not then appear that the bank ever would be liable for the debt. It was the duty of the State to prevent such liability from ever arising. These special circumstances under which the law of 1865 was passed bring it still more clearly within the decision of Curran v. The State of Arkansas.

The decree of the Supreme Court of South Carolina must be

AFFIRMED.

title: Barings v. Dabney/Opinion of the Court


text: Talk:Barings v. Dabney/Opinion of the Court


text:
Hodges v. Vaughan

THIS was a motion made on behalf of the plaintiff in error for a certiorari upon suggestion of a diminution of a record coming on error from the Circuit Court for the Eastern District of Arkansas. The diminution alleged was that the clerk of the court below had not appended to the transcript his certificate that the transcript contained the whole record.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Hodges v. Vaughan


text: Talk:Hodges v. Vaughan

title: Talk:Hodges v. Vaughan


text:
Hodges v. Vaughan/Opinion of the Court

A motion for certiorari is founded upon a suggestion of diminution, and is designed to bring up some part of the record left back and not included in the transcript. When first presented, and without explanation, the court was inclined to grant the motion, but upon further consideration, we are all of the opinion that it must be denied, as the writ of certiorari is not a proper remedy for the alleged defect. Nothing is omitted from the transcript which is a part of the record in the court below. On the contrary, the only complaint is that the clerk has not appended to the transcript his certificate that it contains the full record. Such a defect, in a case of contumacy, might be remedied by a mandamus, but no application of that sort is made nor is it suggested that there are any grounds for such an application. Under the circumstances the motion for certiorari is denied, and leave is granted to the plaintiff in error to withdraw the transcript to enable him to apply to the clerk of the court below to append thereto the necessary certificate.

title: Hodges v. Vaughan/Opinion of the Court


text: Talk:Hodges v. Vaughan/Opinion of the Court


text:
Stowe v. United States

APPEAL from the Court of Claims, the case as found by that court being this:

In October, 1863, the quartermaster's department entered into a written contract with one Stowe, to deliver mixed grain at certain prices agreed on. The contract was fulfilled, and a balance found due upon it to Stowe. The government having neglected to pay a portion of this balance, Stowe, at the request of one White, executed a power of attorney-in blank as respected the name of the attorney-to get the balance yet claimed as due. The power authorized _____ for the principal, Stowe, to collect and receive any and all moneys due and coming due to him the said Stowe, 'and to make, execute, and deliver to any officer or person authorized by the government to pay said moneys a good and sufficient release, acquittal or receipt for the same, or any part that may be paid to my said attorney, and generally to do any and all things necessary in the premises.' This power in blank Stowe delivered to White. It was not executed before two witnesses, but was acknowledged before and witnessed by a notary public.

An act of Congress of February 26th, 1853, in force at the time of these transactions, enacted: 'That all transfers and assignments of any claim upon the United States,. . . and all powers of attorney. . . for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses.'

The government still declining to pay the balance, White filled the blank in the power with the name of two attorneys, one being Mr. Fuller, and instructed him to bring suit in the Court of Claims against the government. Mr. Fuller appearing as the attorney did accordingly file a petition in the name of Stowe, 'to the use and benefit of White,' and in it he represents that 'White furnished the grain delivered to the United States.' Stowe did not communicate with Mr. Fuller, the attorney of record, until after the suit was brought, nor did he authorize its institution, unless such authority was conferred by the power of attorney. Subsequently, with knowledge of the facts, he suffered the suit to proceed and co-operated with White in its prosecution. While the action was still pending, a settlement was effected between White and the government; and the money agreed on by the settlement to be paid, was paid to White. Stowe was not a party to this settlement, but he allowed it to proceed without objection or disclosure of any adverse interest. The suit was not formally discontinued, because the law officers of the government were not advised of the settlement.

Stowe afterwards, by leave of the court, filed an amended petition, in which he represented that he, Stowe, had furnished the grain; and that though he had given to White a power of attorney in blank, yet that the power was not intended to, and did not, confer any power or authority on White or any attorney to do more than prosecute the claim to settlement, and to receive any draft in the name of him, Stowe, for any amount that should be admitted as due. He now accordingly prayed payment to himself for the grain already paid for to White, in the way abovementioned.

The Court of Claims on hearing the case dismissed it on the ground of the conclusiveness of the settlement with White, and from this, its action, Stowe took this appeal.

Mr. Reverdy Johnson, for the appellant, argued that under the act of Congress of 1853 the power of attorney, not being attested by two witnesses, was 'absolutely null and void,' and that this being so, the right of Stowe to receive the sum was absolute, and could not be destroyed by the doings of the counsel who prosecuted the claim, and misrepresented (unintentionally it was conceded) the relation of White to the matter.

Mr. S. F. Phillips, Solicitor-General, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Stowe v. United States


text: Talk:Stowe v. United States

title: Talk:Stowe v. United States


text:
Stowe v. United States/Opinion of the Court

We think that the claim was rightly dismissed on the ground of the conclusiveness of the settlement with White. Stowe, by his own action, is estopped from disputing the validity of the settlement. If it be conceded that the power of attorney was not an effective instrument for any purpose, because not executed in conformity with law, the concession cannot operate to the advantage of Stowe, because he acted in such a way after the suit was brought as to preclude him from assuming the position he took in his amended petition. This action has induced the accounting officers of the government to treat White as the only party in interest, and if loss is suffered on this account, it should not be borne by the defendants. Stowe, in suffering the suit to proceed, and co-operating with White's attorney in its prosecution, cannot be heard to say that the statements contained in the petition are not true. It would be wrong to allow him to stand by and see the suit settled on the basis of the truth of those statements, and then to turn round and take a new position because the partial interest which he held in the claim was left unprotected by the settlement. If there be cause of complaint against any one for the failure to protect this interest, it is not against the defendants whose officers conducted and completed the negotiation, on the faith that White, as declared in the petition, was the real owner of the claim, and that the suit was prosecuted for his benefit. In assisting to carry on this suit, Stowe adopted the proceeding on which it was based, and in effect notified the defendants that they could safely settle the cause of action with the attorney of record. Besides, in taking charge of it after the settlement and asking leave to amend the petition, he recognized the authority of the counsel who instituted it; and it is very clear, that the amendment which he was permitted to file, could not affect rights acquired while the suit as originally framed was pending.

JUDGMENT AFFIRMED.


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


text:
Salomon v. United States

APPEAL from the Court of Claims; the case being thus:

A statute of June 2d, 1862, thus enacts:

'It shall be the duty of the Secretary of War, Secretary of the Navy, &c., to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed, to be reduced to writing, and signed by the contracting parties with their names at the end thereof.'This statute being in force, Salomon entered into a written contract, on the 28th of July, 1864, with the quartermaster's department, to deliver at Fort Fillmore, 12,000 bushels of corn, at such times and in such quantities, of not less than 1000 bushels per month, as the assistant quartermaster should direct, 9000 bushels before the 1st day of January, and the whole amount by the 1st day of May, 1865. The 9000 bushels were delivered and paid for before the 1st day of May, and about this there was no dispute. Some negotiations took place afterwards between Salomon and the quartermaster of that military department, concerning the delivery of the remainder, the finding in regard to which was not very clear. Salomon did, however, deliver the remainder of the corn at Fort Fillmore, October 15th, 1865, by depositing it in the military storehouse at that place. The chief quartermaster's clerk afterwards examined this corn, weighed some of the sacks, counted the remainder, and gave to Salomon a receipt for the amount, stating that it completed his contract. This clerk then and there accepted and took actual possession of the corn, and the chief quartermaster gave to Salomon the usual voucher for the sum due. The corn was sound when delivered, but was injured by reason of the defective and leaky condition of the storehouse at Fort Fillmore.

The government declining to pay the amount of the voucher, Salomon filed a petition in the court below for payment. The court decreed that he should be paid for a part of what he had finally delivered, and which the government used, but not for the residue, which had proved unserviceable and been lost by decay arising from the defective and leaky condition of the storehouse. Salomon took this appeal.

Mr. T. J. D. Fuller, for the appellant:

No complaint is made by the government of the nondelivery of the whole amount by the 1st of May, nor does it appear in any manner that the contract was closed, or treated as closed. For aught that appears, the United States received all they wished, up to the 1st of May. Certain it is that they accepted the residue when it was tendered; and if, through their fault, a part has been lost by bad storage the appellant should not suffer.

Mr. C. H. Hill, Assistant Attorney-General, contra:

The claimant cannot recover for the corn for which this suit is brought under the original contract, as that was ended by his failure to deliver the corn mentioned therein within the time specified.

If, therefore, there was any agreement by the quartermaster to buy the grain mentioned in the claimant's petition, it was an oral contract, and contrary to the act of 1862, requiring all such contracts to be in writing.

Reply: The contract, so far as the corn in question is concerned, was an entire one, and the acceptance and use of a part was an acceptance of the whole. There was no new contract. Parol evidence of the enlargement of the time of performance, in a written contract, is admissible in evidence. By implication, or necessary intendment, here was an extension of time for the delivery of the corn. The decree of the court below is in conflict with Lyon v. Bertram.

Mr. Justice MILLER delivered the opinion of the court.

title: Salomon v. United States


text: Talk:Salomon v. United States

title: Talk:Salomon v. United States


text:
Salomon v. United States/Opinion of the Court

Whether we regard the delivery made in October as made under a verbal extension of the time stipulated in the original contract, or consider it as a new transaction in which the government received and took possession of the corn, and used part of it and permitted the remainder to be injured in its hands, we think the claimant is equally entitled to be paid for it.

The act of 1862, requiring contracts for military supplies to be in writing, is not infringed by the proper officer having charge of such matter, accepting delivery of such supplies after the day stipulated, nor is a verbal agreement to extend the time of performance invalid.

And if this were not so, when the quartermaster in charge receives of a person corn for the government, gives a receipt and voucher for the amount and the price, and the government uses such part of it as it wants, and suffers the remainder to decay by exposure and neglect, there is an implied contract to pay the value of such corn, which value may, in the absence of other testimony, be presumed to be the price fixed in the voucher by the quartermaster.

JUDGMENT REVERSED, with directions to enter a judgment for claimant for the

AMOUNT OF THE SAID VOUCHER.


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


text: McCarthy v. Mann

title: McCarthy v. Mann


text: Talk:McCarthy v. Mann

title: Talk:McCarthy v. Mann