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Corcoran v. Chesapeake and Ohio Canal Company/Opinion of the Court

The Chesapeake and Ohio Canal Company, from the date of its organization in 1824-25, issued several series of bonds, secured by as many mortgages on its property. The largest of these mortgages was the earliest, and was given to the State of Maryland for several millions of dollars; another was made to the State of Virginia; both of which States contributed largely, by the use of their credit, to the construction of this important work. In the last stages of the struggle to extend the canal to Cumberland, where it reached the coal-beds, which alone have made it of any value, the company issued another series of bonds to the amount of $1,700,000, for the payment of which it pledged, by way of mortgage, the revenues and tolls of the canal, after deducting the necessary costs of running the canal and its repairs, and perhaps some other defined outlays.

In this mortgage, Corcoran, the complainant and appellant in the present suit, was one of several trustees for the benefit of the bondholders. He also became, and according to the statements of the present bill is now, a larger holder of these bonds, or of the coupons for interest on them.

The purpose of this bill, which was filed by him on behalf of himself and all others in like condition as holders of this class of bonds, is to enforce the payment of the coupons of interest due and unpaid for many years past.

The defendants to the bill are the Chesapeake and Ohio Canal Company, the State of Maryland, and the remaining trustees of the mortgage bonds on which the suit is founded. They have all answered, except the State of Maryland.

The answer of the trustees is unimportant. The canal company admit the indebtedness and the failure to pay, but deny that, under the reservations of the mortgage of the tolls and revenues in plaintiff's mortgage, there is now or has been in their hands any part of the said revenues which they could lawfully appropriate to the payment of said coupons, except so far as they have already done so. After several amendments of the pleadings and stipulations as to facts, the issue was finally narrowed to two questions; namely, the jurisdiction of the Supreme Court of the District, and the right of the holders of the interest coupons to exact out of the net revenues of the company payment of interest on those coupons from the respective dates when they fell due.

The first of these questions is raised by the proposition of the defendants, the canal company, that the State of Maryland is a necessary party to this suit; and, as she has not voluntarily appeared, and cannot be made amenable to any process to compel an appearance, the bill must be dismissed on that ground.

In the view which this court takes of the other question, and as the court has jurisdiction as to the canal company, it is unnecessary to consider or decide this one.

In reference to the question of interest upon the interest coupons, the canal company, in its answer to complainant's bill, alleges that, in a suit brought by the State of Virginia in the Circuit Court of Baltimore City, to which suit the present complainant and his co-trustees, the State of Maryland, the canal company and others, representing all the various classes of bondhl ders, were parties, 'the issue raised in this case, that the coupons upon said preferred bonds are entitled to bear interest from their maturity, which is to be allowed payment out of the revenues of this respondent in preference to the claims of the State of Maryland, was distinctly presented, was argued, amongst others, by the solicitors of complainant in this case, and was decided by the court in opposition to the claims of said complainant as then asserted and as reiterated in the bill in this case.' The record of that suit, including the opinion of the Court of Appeals and the brief of the counsel of the present appellant, are made exhibits.

The bill of the State of Virginia distinctly claims interest upon the coupons which she held, standing in the same relation as those of the appellant here. The right to that interest as a preference to the debt of the State of Maryland is denied by the answers of the canal company and of the State of Maryland. Corcoran and his co-trustees submit all those matters to the decision of the court. It was, therefore, properly in issue. Indeed, the whole subject of priority of lien as to the revenues and tolls of the canal was before the court, and was the very matter to be decided, and necessarily included the question whether the State of Maryland in the statute by which she waived her prior lien, so far as the revenues of the company were concerned, in favor of the class of bonds and coupons held by the State of Virginia, and those represented by Corcoran, as trustee, included interest upon interest, or only principal and current interest.

The opinion of the Court of Appeals of Maryland, found in the record as an exhibit, and reported in 32 Md. 501, while conceding the general rule, that where the annual or semiannual interest on a bond is represented by a distinct coupon, capable of separation and removal from the main instrument, it bears interest from its maturity, if unpaid; holds that, under the special statute of Maryland authorizing the pledge by the canal company of its revenues for the payment of these preferred bonds and interest, and waiving her own existing priority of claim on those revenues, simple interest only was meant, and that as to the lien on those revenues and tolls, the interest on the coupons was not included in the lien.

The opinion, undoubtedly, decides the very point in controversy here.

It is said, however, that this is only an opinion, and that unless a judgment or decree is produced there can be no estoppel; and the principle asserted is undoubtedly correct. But, in a stipulation signed by the parties to the present suit, it is agreed 'that a decree has been passed by the Circuit Court of Baltimore City making distribution of the net revenues of said canal company, and ordering their payment from time to time as the same accrue, in conformity with the said opinion.'

The opinion of the court, then, by virtue of that decree, has become, by the well-settled principles of jurisprudence, the law of the case as to the parties who are bound by that decree.

In avoidance of the application of this doctrine to the present case several objections are urged, some of which are answered sufficiently by the foregoing statement of the record of that suit. We will notice one or two others.

It is said that Corcoran and his co-trustees, the canal company, and the State of Maryland, were all defendants to that suit, and that as between them no issue was raised by the pleadings on this question, and no adversary proceedings were had.

The answer is, that in chancery suits, where parties are often made defendants because they will not join as plaintiffs, who are yet necessary parties, it has long been settled that adverse interests as between co-defendants may be passed upon and decided, and if the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court and passed upon by its decree. It is to be observed, also, that the very object of h at suit was to determine the order of distribution of the net revenue of the canal company, and that the Corcoran trustees were made defendants for no other purpose than that they might be bound by that decree. And, lastly, as the decree did undoubtedly dispose of that question, its conclusiveness cannot now be assailed collaterally on a question of pleading, when it is clear that the issue was fairly made and was argued by Corcoran's counsel, as is shown by the third head of their brief, made a part of this record by stipulation.

It is also argued that in that suit Corcoran was only a party in his representative capacity of trustee, and he here sues in his individual character as owner of the bonds and coupons, and in this latter capacity is not bound by that decree.

But why is he not bound? It was his duty as trustee to represent and protect the holders of these bonds; and for that reason he was made a party, and he faithfully discharged that duty. It would be a new and very dangerous doctrine in the equity practice to hold that the cestui que trust is not bound by the decree against his trustee in the very matter of the trust for which he was appointed. If Corcoran owned any of these bonds and coupons then, he is bound, because he was representing himself. If he has brought them since, he is bound as privy to the person who was represented. Kerrison, Assignee, v. Stewart et al., 93 U.S. 155, and the authorities there collected.

It seems to us very clear that the question we are now called on to decide has been already decided by a court of competent jurisdiction, which had before it the parties to the present suit; that it was decided on an issue properly raised, to which issue both complainant and defendant here were parties, and in which the appellant here was actually heard by his own counsel; and that it therefore falls within the statutory rule of law which makes such a decision final and conclusive between the parties, and that none of the exceptions to that rule exists in this case.

Decree affirmed.

MR. JUSTICE CLIFFORD dissented.


text: Talk:Corcoran v. Chesapeake and Ohio Canal Company/Opinion of the Court

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Tate v. Norton

APPEAL from the Circuit Court of the United States for the Eastern District of Arkansas.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. W. M. Rose and Mr. A. H. Garland for the appellants, and by Mr. Albert Pike and Mr. Robert W. Johnson for the appellees.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Tate v. Norton


text: Talk:Tate v. Norton

title: Talk:Tate v. Norton


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Tate v. Norton/Opinion of the Court

A brief statement of the facts of this case is necessary to render intelligible the conclusions at which we have arrived. Joseph W. Clay, of the State and county of Arkansas, died intestate in May, 1853. He left a widow, Sarah G. Clay, since deceased, and three minor children,-Joseph W. Clay, also since deceased; Mary S.C.lay, since married to Thomas G. Tate; and Caroline Clay, since married to Raynor W. Whitfield. The four parties last named are the appellants.

Thomas Fletcher, the brother of the widow, was appointed by the Probate Court of the proper county administrator of the estate, and qualified as such in July, 1853. Immediately after qualifying he took possession of all the property which belonged to the intestate at the time of his death. It consisted of lands, stock, farming utensils, slaves, and a small amount of money. The value of the lands at that time does not appear. The appraisers estimated the other property at $129,445.54. The slaves were an important item. They were inventoried at $113,400, leaving the balance of other assets $16,045.54. The indebtedness of the estate represented by the claims presented and allowed by the administrator amounted to $103,436.62. According to the law of Arkansas, the widow was entitled to the possession and use for life of one-third of the lands and of one-third of the slaves, irrespective of the claims of creditors. She was also invested with the absolute ownership of one-third of the persona property.

The condition of the estate as regards the means of meeting its liabilities is thus clearly presented. It requires no argument to show that forced sales by the administrator to pay the debts would have involved disaster, if not ruin, to the family of the deceased. Such is the teaching of all experience. The intestate had been largely engaged in raising cotton. The administrator put himself, as it were, in the place of the deceased. Every thing was carried on and conducted as before his death. Payments were made to the widow from time to time, the children were supported and educated, the taxes were paid, crops were raised, the cotton was sold, and the debts were discharged as fast as the circumstances permitted.

In 1855, the legislature passed a law whereby the probate courts were empowered to authorize administrators to do as the administrator in this case did, provided that the time limited for the settlement of estates, which was three years, should not be extended. The administrator here claims that he received such authority pursuant to this act. This fact does not appear. But it does appear that he made five full settlements with the Probate Court,-the first one in 1855 and the last in 1870. The accounts are in the record. They exhibit all his receipts and disbursements, and fully the manner in which he was discharging the duties of the trust. It does not appear that exception was taken by or in behalf of those concerned, nor that the Probate Court interposed any check or objection. The administrator made no charge for compensation, and was allowed none. By the year 1858 he had paid nearly all the debts. Before the late civil war began he had paid them all but the debt upon which this suit is founded.

The commencement of the war was the beginning of the troubles of the trust. The State was a battle-field. Troops on both sides were there. The slaves were sent to Texas for safety. The mules and other live-stock were swept away by the advancing and receding tides of the conflict. The lands hardly paid the expenses of cultivating them. Finally the slaves as property were stricken out of existence. This involved a loss to the estate, according to the original inventory, of more than $113,000 of the assets. The administrator became wholly unable to pay this debt. The answer avers, that, but for the war, he could, by the year 1863, have extinguished this demand also, and have then handed over to the heirs a large and unincumbered estate for distribution among them. The record shows that this was not an over-sanguine calculation. The calamity was unforeseen, and one for which the administrator was not responsible. The claim sought to be collected by this proceeding was an account due from the intestate to Sweeney, Greene, & Co. They became insolvent, and assigned it to Hewitt, Norton, & Co. They also became insolvent, and assigned it to the creditors for whose benefit this suit was instituted. The object of the bill is to subject the lands of the intestate to the payment of the debt. It is alleged that all the other assets have been exhausted.

It appears in this connection, that, after the claim was assigned to Hewitt & Co., they became the factors of the administrator for the sale of the cotton which he should raise, and furnished him with money and supplies to carry on the business in which he was engaged for the benefit of the estate. It was agreed that the accounts of the parties should be settled annually, and that the balances found due upon such settlements to the administrator should be applied as credits upon the assigned indebtedness. This was done, until the dealings of the parties were put an end to by the war. For several years thereafter the administrator rented out the lands. Whether leased out or cultivated, they yielded but little. There being no prospect of the voluntary payment of the original debt, the complainants filed their bill, is before stated, to enforce its liquidation.

The appellants filed an answer and a cross-bill. They set up, amongst other things, h at the accounts of the dealings between the complainants and the administrator contained overcharges in behalf of the former; that the proper credits had not been given on the original debt; that the conduct of the administrator in the management of the estate was unwarranted and illegal; that he was guilty of a devastavit; and that the entire proceeds of the cotton transmitted by the administrator to the complainants should have been applied by the latter in satisfaction of the original debt of the estate. The accounts and the original demand were referred to a master. He revised the accounts, allowed further credits, and ascertained the amount still due. Both parties excepted. The exceptions were overruled. The court adopted the finding of the master as to the amount due upon the demand in question, decreed that it should be paid within the time specified, and that in the event of default the lands described in the bill should be sold as directed, and the proceeds applied as prayed by the complainants.

The appellants thereupon removed the case to this court for review.

Our further remarks will respond to the several objections without naming them specifically, taken here to the decree below.

The power of courts of equity in this class of cases is ample. Their flexible jurisdiction is always applied as the substantial interests of right and justice may require. Hook v. Payne, 7 Wall. 425; Yates v. Hambly, 3 Atk. 363; s. p. 2 id. 263; Thompson v. Brown, 4 Johns. (N. Y.) Ch. 631.

The conduct of the administrator in the present case, though without the sanction of strict law, did not involve a violation of duty for which a court of equity will hold him responsible, nor the commission of a devastavit.

In Thompson v. Brown, supra, the intestate had been a member of a trading firm. The administrator permitted his capital to remain in the concern. He also put in other capital belonging to the estate. The survivors failed, and became insolvent. It was sought to make the administrator liable for both the capital which he left in and that which he put in. In an able and learned examination of the subject by Chancellor Kent, he was held bound for the latter, but not for the former. In his opinion, the Chancellor remarked: 'It is said that a court of equity will sometimes appoint a person to carry on a trade for an infant partner. Montague on Partnership, 187, and Sayer v. Bennet, there cited. And Lord Mansfield, in the case of Barker v. Parker, 1 T. R. 295, observed, that he remembered many instances of trade being carried on under the direction of a court of equity.' See also Wedderburne v. Wedderburne, 22 Beav. 84, and Ryves v. Coleman, 3 Atk. 439. In Thompson v. Brown, the Chancellor quoted with approbation the language of Lord Hardwicke, in Knight v. The Earl of Plymouth, 3 Atk. 480, Dickens, 120, as follows: 'If there was no mala fides, nothing wilful in the conduct of the trustee, the court will always favor him. For a trust is necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety. It is an act of great kindness in any one to accept of it. To add hazard or risk to that trouble, and to subject a trustee to losses which he could not foresee would be a manifest hardship, and would be deterring every one from accepting so necessary an office.' The same rule was applied by this court in Markey et al. v. Langley et al., 92 U.S. 142.

A clearer case for the application of this principle can hardly occur than is presented by the one before us. Throughout the record there is not the slightest imputation, nor apparent ground for any imputation, against the administrator. Even a want of care, diligence, or good judgment is not alleged. His management was eminently successful, until the war occurred. That could neither be foreseen nor averted. It fell with crushing weight upon him. His plan for the redemt ion of the estate was at once broken up. The means of prosecuting it further were finally lost. In the wreck, nothing was left but the lands, and they without the means of turning them to any account. To hold him responsible for these consequences would be alike contrary to the distates of reason and justice, and to the settled law of equity. Remonstrance or objection from any quarter, until after the institution of this suit, is nowhere disclosed. In the light of this record, nothing that he did can be lawfully challenged.

According to the laws of Arkansas, there can be no devastavit which will sustain an action until an order to pay creditors has been made by the Probate Court, and violated by the administrator. Oatlaw v. Yell, 5 Ark. 473; Gordon v. The State, 11 id. 12; Baker v. The State, 21 id. 405; Brinkley v. Willis, 22 id. 6. Here no such order is shown. De non apparentibus et de non existentibus eadem est ratio. In that State, a claim allowed by the administrator, and allowed and classified by the Probate Court, has the dignity and effect of a judgment. Gould's Dig., c. 4, sect. 115; Cossit v. Biscoe, 12 Ark. 95; McMorrin v. Overholt, 14 id. 244. Such was the status of the claim here in question.

No discrimination is made by the law of that State between real and personal property as assets. Both are in the hands of the administrator, under his control, and liable to be subjected to the payment of debts. Neither can be sold, unless the will of the testator or an order of the Probate Court so direct. Dig. Stat. of Ark., 1848, sect. 62, c. 4; id., p. 122, sect. 96, c. 4.

The accounts of an administrator settled by the Probate Court cannot be collaterally attacked or questioned. They are conclusive, until impeached for fraud or mistake in a direct proceeding in equity, instituted for that purpose. Dig., sect. 111, c. 4; Clarke v. Shelton, 16 Ark. 480; Dooley v. Dooley, 14 id. 124.

Henry Paige acquired the entire interest in the estate of Joseph W. Clay, Jr., deceased, in his lifetime, by proceedings in bankruptcy. Paige made himself a party to the suit by obtaining leave to file an answer. The answer does not appear in the record; but that does not render the entry of his appearance the less effectual.

The debt was sufficiently proved as against the heirs, as well as against the administrator. The action of the Probate Court gave it the effect of a judgment as to both. The amount due upon it was found by the master. The correctness of that finding was not questioned here by the counsel for the appellants.

The exhaustion of all the assets except the lands is clearly shown by the record. The account of the administrator, as settled by the Probate Court, cover this ground. In the state of the record they are conclusive. There is also proof of the original amount of the debts and assets, of the amount of the former which had been paid, and of the loss of assets by the manumission of the slaves. In this view, also, it is clear there could have been no personal assets in the hands of the administrator.

The validity of the administrator's dealings with the complainants has been already sufficiently considered.

The administrator was a trustee for the creditors, as well as for the heirs and distributees. Payne v. Hook, supra; Baker v. Grimes, 21 Ark. 405; Brinkley v. Willis, 22 id. 6. The administration of the estate was in progress. There had been no order by the Probate Court that the debts should be paid and a final settlement made. The administrator had done nothing in hostility to the claim. On the contrary, besides allowing it, he had made payments upon it from time to time. The Statute of Limitations can have no application.

The assignment by Sweeney, Greene, & Co. to the complainants is admitted by the answers of Tate and wife, and by that of the administrator. The evidence on the subject was not objected to in the court below, and, therefore, cannot be objected o here. The assignment could have been well made by parol. Ford v. Stewart, 19 Johns. (N. Y.) 344. The point was not made before the master, when he found the amount due, nor, so far as appears otherwise, in the court below. The report was excepted to by the appellants, but not upon any ground affecting this subject.

The assignment was made in New Orleans, and appears to have been according to the law of Louisiana. Morgan's Code, sect. 2233; Griffin v. Cowan, 15 La. Ann. 488; Scott v. McDougall, 14 id. 310; Dennison v. Duplissis, 12 La. 9.

It rested in the discretion of the court to order the sale of the whole or of a part of the lands. It is not shown that the sale of less than the whole will yield a sum sufficient to meet the requirements of the decree. Error is never to be presumed: it must be made clearly to appear. The execution of the decree will be under the control of the court below; and care will doubtless be taken that no wrong in this respect is done to the appellants.

Decree affirmed.

title: Tate v. Norton/Opinion of the Court


text: Talk:Tate v. Norton/Opinion of the Court


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Collins v. Gilbert

ERROR to the Circuit Court of the United States for the Western District of Pennsylvania.

This suit was brought by Gilbert & Gay against Thomas Collins upon his acceptance of a certain draft for $8,000, drawn by P. F. Collins & Co., to their own order, and by them indorsed in blank.

The firm of P. F. Collins & Co. consisted of P. F. Collins and John M. Moorhead, who were, as sub-contractors, engaged in grading seven miles of the Connecticut Western Railroad, then in process of construction. The contractor with the railroad company was one Barnes, who was to pay them monthly for work done, less fifteen per cent, retained to secure the proper completion of their contract with him; but they were unable to proceed with the work unless he advanced the retained percentage. He agreed to do so, if they would give him as security for their execution of the contract, to be held by him for that purpose, an acceptance of Thomas Collins to the amount of $8,000.

The draft accepted by him was accordingly given to Barnes, for whom it was discounted by the plaintiffs. The jury found for the plaintiffs; and judgment having been rendered upon the verdict, the case was brought here.

The errors assigned are grounded upon the exclusion by the court below of certain evidence offered by Collins, a statement of which is given in the opinion of the court.

Argued by Mr. Richard T. Merrick for the plaintiff in error, and by Mr. Hill Burgwin for the defendants in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Collins v. Gilbert


text: Talk:Collins v. Gilbert

title: Talk:Collins v. Gilbert


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The Worlds Redemption/5

Chapter V

The Covenants of Promise - Continued

In the words of the Apostle Paul, as found in his letter to the Ephesians, we have the term, "covenants of promise" - plural. While there is but one great covenant involving the world's redemption, as there is but one gospel, on account of this having been made in various forms in various times, it is spoken of in the plural. We have already seen that the covenant was initiated with Adam, made known to Noah, and still more fully brought to light to Abraham. Now in the covenant with David, it assumes a more complete form with respect to its aspect as a kingdom. The kingdom of Israel had become a fact, and was called the kingdom of God. Being a type of the everlasting kingdom of God, the time had come when by it those to whom the oracles of God were committed would be better qualified to understand the meaning of the gospel of the kingdom of God as embodied in the covenants of promise, so that the covenant with David deals especially with a kingdom. Following are some of the testimonies setting forth this aspect of the covenants of promise:

II Sam. 7:12-16 - And when thy days be fulfilled, and thou shalt sleep with thy fathers, I will set up thy seed after thee, which shall proceed out of thy bowels, and I will establish his kingdom. He shall build an house for my name; and I will establish the throne of his kingdom for ever. I will be his father, and he shall be my son. If he commit iniquity, I will chasten him with the rod of men, and with the stripes of the children of men: But my mercy shall not depart away from him, as I took it from Saul, whom I put away before thee. And thine house and thy kingdom shall be established for ever.

II Sam. 23:1-5 - Now these be the last words of David. David the son of Jesse said, and the man who was raised up on high, the anointed of the God of Jacob, and the sweet psalmist of Israel said, The spirit of the Lord spake by me, and his word was in my tongue. The God of Israel said, the Rock of Israel spake to me. He that ruleth over men must be just, ruling in the fear of God. And he shall be as the light of the morning when the sun riseth, even a morning without clouds; as the tender grass springing out of the earth by clear shining after rain. Although my house be not so with God yet he hath made with me an everlasting covenant, ordered in all things, and sure; for this is all my salvation and all my desire, although he make it not to grow.

Psa 89:4, 19-29, 34-37 - Thy seed will I establish for ever, and build up thy throne to all generations. Then thou spaketh in vision to thy Holy One, and saidst, I have laid help upon one that is mighty; I have exalted one chosen out of the people. I have found David my servant: with my holy oil have I anointed him: with whom my hand shall be established: mine arm also shall strengthen him. The enemy shall not exact upon him: nor the son of wickedness afflict him. And I will beat down his foes before his face, and plague them that hate him. But my faithfulness and my mercy shall be with him: and in my name shall his horn be exalted. I will set his hand also in the sea, and his right hand in the rivers. He shall cry unto me, Thou art my Father, my God, and the rock of my salvation. Also I will make him my firstborn, higher than the kings of the earth. My mercy will I keep for him for evermore, and my covenant shall stand fast with him. His seed also will I make to endure for ever, and his throne as the days of heaven. My covenant will I not break, nor alter the thing that is gone out of my lips. Once have I sworn by my holiness that I will not lie unto David. His seed shall endure for ever, and his throne as the sun before me. It shall be established for ever as the moon, and as a faithful witness in heaven.

Psa. 110 - The Lord said unto my Lord, Sit thou at my right hand, until I make thine enemies thy footstool. The Lord shall send the rod of thy strength out of Zion: rule thou in the midst of thine enemies. Thy people shall be willing in the day of thy power, in the beauties of holiness from the womb of the morning: thou hast the dew of thy youth. The Lord hath sworn, and will not repent. Thou art a priest for ever after the order of Melchizedek. The Lord at thy right hand shall strike through kings in the day of his wrath. He shall judge among the heathen, he shall fill the places with the dead bodies: he shall wound the heads over many countries. He shall drink of the brook in the way: therefore shall he lift up the head.

Psa. 132:11-18 - The Lord hath sworn in truth unto David: he will not turn from it: Of the fruit of thy body will I set upon thy throne. If thy children will keep my covenant and my testimony that I shall teach them, their children shall also sit upon thy throne for evermore. For the Lord hath chosen Zion: he hath desired it for his habitation. This is my rest for ever: here will I dwell: for I have desired it. I will abundantly bless her provision: I will satisfy her poor with bread. I will also clothe her priests with salvation: and her saints shall shout aloud for joy. There will I make the horn of David to bud: I have ordained a lamp for mine anointed. His enemies will I clothe with shame: but upon himself shall his crown flourish.

Isa. 9:6, 7 - For unto us a child is born, unto us a son is given: and the government shall be upon his shoulder: and his name shall be called Wonderful, Counsellor, The Mighty God, The everlasting Father, The Prince of Peace. Of the increase of his government and peace there shall be no end upon the throne of David and upon his kingdom, to order it, and to establish it with judgment and with justice from henceforth even for ever. The zeal of the Lord of hosts will perform this.

Isa. 16:5 - And in mercy shall the throne be established: and he shall sit upon it in truth in the tabernacle of David, judging, and seeking judgment and hasting righteousness.

Isa. 55:1, 3 - Ho, every one that thirsteth, come ye to the waters, and he that hath no money: come ye, buy and eat: yea, come, buy wine and milk without money and without price. * * * Incline your ear, and come unto me: hear, and your soul shall live: and I will make an everlasting covenant with you, even the sure mercies of David.

Jer. 23:5, 6 - Behold, the days come, saith the Lord, that I will raise unto David a righteous Branch and a King shall reign and prosper, and shall execute judgment and justice in the earth. In his days Judah shall be saved, and Israel shall dwell safely: and this is his name whereby he shall be called The Lord Our Righteousness.

Luke 1:30-33 - And the angel said unto her, Fear not, Mary: for thou hast found favor with God. And, behold, thou shalt conceive in thy womb, and bring forth a son, and shalt call his name Jesus. He shall be great, and shall be called the Son of the Highest: and the Lord God shall give unto him the throne of his father David: and he shall reign over the house of Jacob for ever: and of his kingdom there shall be no end.

Acts 2:29-35 - Men and brethren, let me freely speak unto you of the patriarch David, that he is both dead and buried, and his sepulchre is with us unto this day. Therefore being a prophet, and knowing that God had sworn with an oath to him, that of the fruit of his loins, according to the flesh, he would raise up Christ to sit on his throne: he seeing this before spake of the resurrection of Christ, that his soul was not left in hell, neither his flesh did see corruption. This Jesus hath God raised up, whereof we all are witnesses. Therefore being by the right hand of God exalted and having received of the Father the promise of the Holy Spirit, he hath shed forth this, which ye now see and hear. For David is not ascended into the heavens: but he saith himself, The Lord said unto my Lord, Sit thou on my right hand until I make thy foes my footstool.

Acts 15:16, 17 - After this I will return, and will build again the tabernacle of David, which is fallen down; and I will build again the ruins thereof, and I will set it up: that the residue of men might seek after the Lord, and all the Gentiles upon whom my name is called, saith the Lord, who doeth all these things.

Rev. 3:7 - And to the angel of the church in Philadelphia write: These things saith he that is holy, he that is true, he that hath the key of David, he that openeth, and no man shutteth: and shutteth and no man openeth.

Rev. 5:5 - And one of the elders saith unto me, Weep not: behold, the Lion of the tribe of Judah, the Root of David, hath prevailed to open the book, and to loose the seven seals thereof.

Rev 22:16 - I Jesus have sent mine angel to testify unto you these things in the churches. I am the root and the offspring of David, and the bright and morning star.

Here we have what we may call the Davidian covenant. It will be seen from these testimonies that this, like the Abrahamic covenant, leads down to Christ and pertains to the world's redemption. The kingdom of God, as it had existed under David and was now about to be transferred to Solomon, consisted of all the elements necessary to constitute a kingdom. It was not what is popularly known as a spiritual kingdom. It was real. It was on the earth, a literal constitution of things. It had territory, subjects, rulers, laws and a capital. It was complete so far as it was possible for there to be a complete kingdom in that evil age in which it existed. Now that a covenant was made with David concerning a future kingdom, the question is, Will it also be real, literal, having the same elements in its composition as that of the kingdom of Israel of the past? That this covenant was understood by David to refer to the future is clear from what he says in II Sam 7:19, "And this was yet a small thing in thy sight, O Lord God; but thou hast spoken also of thy servant’s house for a great while to come." Many people suppose that this covenant related to Solomon only. While Solomon, no doubt, was a type of Christ, this covenant reached beyond him. Its realization was not expected by David in the time of Solomon. It was "for a great while to come." What does it involve? In the tenth verse it is said, "Moreover I will appoint a place for my people Israel, and will plant them, that they may dwell in a place of their own, and move no more; neither shall the children of wickedness afflict them any more, as beforetime." Here we have the place in which Israel is to be planted when the covenant is fully realized; hence we may safely conclude that the kingdom will have literal territory. Next we find that He promised to David that His mercy shall not depart from him, the person who is the subject of the covenant, as it did from Saul, and his house, David's royal house, and kingdom should be established for ever in his hands; his throne should be established for ever (verses 15, 16). Hence we have here a royal house, a king, a territory, a kingdom; and as Israel's laws were heavenly, or laws from heaven, so we may conclude the laws of this kingdom will be heavenly.

IT WAS DAVID'S SALVATION

At the time that this covenant was made, the days of David's natural career were about ended. He could not hope to live much longer, and did not, and therefore to make such promises to him would seem like mockery unless they involved for him a future life. "Thine house and thy kingdom shall be established for ever before thee" (verse 16). What can the words "before thee" mean but in thy presence? As in the case of Abraham it is a matter personally to be realized. Therefore resurrection is here provided for though not expressed in so many words; it is clearly implied, David was to die, yet his house and his kingdom were to be established for ever in his presence. How could this be unless David were to be raised from the dead? for it was to be "for a great while to come."

This covenant is made the subject of David’s last words, which shows that he viewed it as a matter of the future: "Now these be the last words of David. David the son of Jesse said, and the man who was raised up on high, the anointed of the God of Jacob, and the sweet psalmist of Israel said, * * * He that ruleth over men must be just, ruling in the fear of God. And he shall be as the light of the morning when the sun riseth, even a morning without clouds; as the tender grass springing out of the earth by clear shining after rain. Although my house be not so with God; yet he hath made with me an everlasting covenant, ordered in all things, and sure: for this is all my salvation and all my desire, although he make it not to grow" (II Sam. 23:1-5). This covenant with David involved "all his salvation and all his desire," his only hope in the hour of death. It was the hope in which he lived and the hope in which he died. Like all other ancient worthies, he "died in faith, not having received the promises but seeing them afar off," or as he terms it, in a "great while to come."

That this refers to the kingdom of God in the hands of Christ there can be no question, for we have the words of the Apostle Peter who, by inspiration, declares that the covenant with David reached down to the days of Christ's glorious reign on the earth. Not only so, but he assures us that this was David's understanding of the matter, for he says, "Men and brethren, let me freely speak unto you of the patriarch David, that he is both dead and buried, and his sepulchre is with us unto this day. Therefore being a prophet, and knowing that God had sworn with an oath to him, that of the fruit of his loins, according to the flesh, he would raise up Christ to sit on his throne; he, seeing this before, spake of the resurrection of Christ, that his soul was not left in hell, neither his flesh did see corruption" (Acts 2: 29-31). David being a prophet, then, foresaw that Christ would be raised up to sit upon his throne. Hence we may safely conclude that the seed which was promised to David, who should establish his house and his kingdom for ever, is Christ and that David so understood it, and in this saw by faith, and died in the faith, that the fulfillment of the covenant through Christ would bring to him the realization of "all his salvation and all his desire."

It is impossible for any one having the least regard for the truth and consistency of the Bible to say that the promises of the covenant with David have been fulfilled, except so far as the mission of Christ in his first coming is embraced in the covenant. Without "rightly dividing the word of truth" in this case, as in that of the Abrahamic covenant, the Bible will be made to appear as a contradictory book, and advantage given the infidel. Let us look at the facts in the case. One of the promises is that God would "appoint a place for his people Israel, and plant them that they may dwell in a place of their own, and move no more" (II Sam. 7:10). Israel scattered in all the world to day is sufficient to show that this promise has not yet been fulfilled. If their immovable "planting" in the place appointed had become a fact, they would be there now, but they are not there, they are not in a "place of their own." In Lev 26:31,33 the present scattered condition of Israel is foretold in the following words, "And I will make your cities waste, and bring your sanctuaries unto desolation, and I will not smell the savour of your sweet odors. And I will bring the land into desolation: and your enemies which dwell therein shall be astonished at it. And I will scatter you among the heathen, and will draw out a sword after you: and your land shall be desolate, and your cities waste." In Deut. 28:49-50 Moses predicted the same scattering in the following words: "The Lord shall bring a nation against thee from afar, from the end of the earth, as swift as the eagle flieth: a nation whose tongue thou shalt not understand: a nation of fierce countenance, which shall not regard the person of the old, nor show favor to the young." In verses 64 and 65 he adds, "And the Lord shall scatter thee among all people, from the one end of the earth even unto the other: and there thou shalt serve other gods, which neither thou nor thy fathers have known, even wood and stone. And among these nations shalt thou find no ease, neither shall the sole of thy foot have rest: but the Lord shall give thee there a trembling heart, and failing of eyes, and sorrow of mind." Now with these prophecies on record, God promised David that He would appoint Israel a place of their own, and they shall never be moved: neither shall the children of wickedness afflict them any more, as beforetime. What shall we do with these apparently contradictory testimonies? We cannot mistake what they say. We know that the prophecy of Moses in regard to this scattering has been fulfilled since Christ was on the earth nineteen hundred years ago. He testified to the truth of what Moses wrote, for He said, "Moses wrote of me," and "if ye had believed Moses, ye would have believed me." Moses declared that Israel should be scattered, that their city should be besieged and that their land should go into desolation. Jesus confirms this by saying, "And when ye shall see Jerusalem compassed with armies, then know that the desolation thereof is nigh" (Luke 21: 20). And then He adds, speaking of Israel, "and they shall fall by the edge of the sword and shall be led away captive into all nations" (Luke 21: 24). And yet in the covenant with David promise is made that they shall cease to be scattered, and that they shall be planted in their land, and be no more moved, neither shall they be afflicted. Have we a contradictory Bible? There is only one way to escape the difficulty before us. When God spoke through Moses of scattering Israel He made no mistake. Neither had He forgotten what He had said to Moses when He promised David that Israel should be planted in the land never again to be scattered. Notwithstanding the fact that the Saviour predicted their scattering, and that they are scattered today, there is no difficulty if we accept the truth. The only solution which the truth will admit of is that the "planting" spoken of in the covenant with David is yet in the future. If this is in the future, then the promise concerning David’s seed, or his royal son who is to sit upon his throne, in whose hands David's house and kingdom will be established for ever in David's presence, is also in the future. And if all this centers in Christ, then you can see that the world's redemption is provided for in the covenant with David.

ITS PERPETUITY

Again, here we have God's oath to David that this seed which should be raised up to sit upon his throne should be David's "salvation and his desire:" that God's mercy should never depart from him as it did from Saul; that his house and his kingdom should be established for ever: his, David's seed, it is said, he will "make to endure for ever, and his throne as the days of heaven" (Psa. 89:29). My covenant will I not break," He adds, "nor alter the thing that is gone out of my lips. Once have I sworn by my holiness that I will not lie unto David. His seed shall endure for ever, and his throne as the sun before me" (verses 34-36). Let us compare with these promises what we read in Ezek 21:25-27: "And thou profane wicked prince of Israel, whose day is come, when iniquity shall have an end. Thus saith the Lord God: Remove the diadem, and take off the crown: this shall not be the same: exalt him that is low, and abase him that is high. I will overturn, overturn, overturn it: and it shall be no more until he come whose right it is: and I will give it him." Here is the overturn of David's throne, and again there is seemingly a contradiction, and it is contradictory if there is no future fulfillment of the covenant with David. Suppose we were to read verse 27 thus, "I will overturn, overturn, overturn it and it shall be no more." Then we would surely have contradiction, for we have just read in the eighty-ninth Psalm that his throne is to continue for ever, and here it is said that it is overturned in the days of Zedekiah and it shall be no more. But this, while it would be in strict accordance with popular theology, which finds no room for the re-establishment of David's throne and kingdom, would he perverting the testimony. We must read the entire verse in order to escape the contradiction, in order to save the Bible from contradiction, in order to vindicate the veracity of God. This verse reads when we read it all, "I will overturn, overturn, overturn it: and it shall be no more until He come whose right it is, and I will give it him." Who is this? Can we be as sure that the "him" here is Christ as we were that the "his" in the Abrahamic covenant was Christ? You will remember, dear reader, that the Apostle Paul assures us that the promise to Abraham, "Thy seed shall possess the gate of his enemies" refers to Christ, by saying, "He saith not, And to seeds as of many, but as of one, And to thy seed, which is Christ." We may be sure that the seed promised to David, the "he" who is to come, and whose right David's throne is, is the Christ. Christ is in the Davidian covenant as well as in the Abrahamic, and the world's redemption will also be thus seen to be involved in the covenant with David. Can we be sure that Christ is involved in this covenant? Is the seed here Christ? Let the law and the testimony settle the question. One passage we have given is Isa. 9: 6-7, where we have the words, "For unto us a child is born, unto us a son is given." No one will dispute the application of this to Christ. We know that this is Christ. And now what else is promised in this passage in relation to Christ? Mark the words, "and the government shall be upon his shoulder." What else? Mark the words again. "Of the increase of his government and peace there shall be no end." Has this anything to do with the covenant with David? Has this anything to do with the throne of David? Mark the words again, "of the increase of his government and peace there shall be no end, upon the throne of David and upon his kingdom, to order it and to establish it with judgment and with justice from henceforth even for ever, The zeal of the Lord of hosts will perform this." This ought to settle the question. But let us proceed further. Again let me remind you that we have read in Ezek. 21: 25-27 of the overthrow of David's throne, and that it would be no more, until he come whose right it is, "and I will give it him." Can we again connect this with Christ? Here is what angelic testimony declares as an answer, "And the angel said unto her, Fear not, Mary: for thou hast found favor with God. And, behold, thou shalt conceive in thy womb, and bring forth a son, and shalt call his name Jesus. He shall be great, and shall be called the Son of the Highest: and the Lord God shall give unto him the throne of his Father David: and he shall reign over the house of Jacob for ever: and of his kingdom there shall be no end." Connect with this the inquiry of the wise men, who came from the East to Jerusalem on the occasion of Christ's birth, asking, "Where is he that is born King of the Jews" (Matt. 2: 1, 2); and again the answer given to Herod's question, "And thou, Bethlehem, in the land of Juda, art not the least among the princes of Juda: for out of thee shall come a Governor, that shall rule my people Israel" (Matt. 2: 6), and now that Christ is the very heart of the covenant made with David is beyond question.

Yes but, some will say, while we are bound to admit that Christ is the subject of the covenant with David, we claim that the covenant was fulfilled at His first coming. Now, dear reader, ask yourself the question, Did the Lord God give Christ the throne of His Father David while He was here as a "man of sorrow and acquainted with grief?" He declared, "The foxes have holes, and the birds of the air have nests: but the Son of man hath not where to lay his head" (Luke 9: 58). "Did He then reign over the house of Jacob, as the angel declared to Mary He should? Is it not a fact that the Jews denied Him, and for doing so, He said they should be "led away captive among all nations." Hear the words which came from Him when He wept over the City of Jerusalem, "O Jerusalem, Jerusalem, which killest the prophets, and stonest them that are sent unto thee: how often would I have gathered thy children together, as a hen doth gather her brood under her wings and ye would not! Behold, your house is left unto you desolate: and verily I say unto you, Ye shall not see me, until the time come, when ye shall say, Blessed is he that cometh in the name of the Lord" (Luke 13: 34-35). In His second appearing we have the solution of the whole problem He did not fulfill the covenant with David at His first coming. The covenant requires the re-establishment of David's throne and kingdom, with Christ reigning over the house of Jacob. This did not take place. But after He had been rejected by the house of Israel, God said to Him, "Sit thou at my right hand, until I make thy foes thy footstool." Christ now is in heaven. Israel is scattered, and her land is in desolation: David's throne is in ruins: Jerusalem is trodden down by the Gentiles. When and by what means will the covenant with David be fulfilled? Remember the words are, "He shall build an house for my name and I will establish the throne of his kingdom for ever." Remember the words of the angel to Mary are, "And the Lord God shall give unto him the throne of his father David, and He shall reign over the house of Jacob for ever: and of His kingdom there shall be no end." We are compelled by the force of facts and truth to conclude that such promises never having been fulfilled, will find their fulfillment in the future. Not having been fulfilled at Christ's first coming, will they find their fulfillment at His second coming? Are we left to doubt or uncertainty in the case, or shall we find words of Inspiration that will assure us of the truth beyond the shadow of doubt? Listen to the words of Divine testimony, "And after they had held their peace James answered saying, Men and brethren hearken unto me: Simeon hath declared how God at the first did visit the Gentiles to take out of them a people for his name. And to this agree the words of the prophets: as it is written, After this I will return, and will build again the tabernacle of David, which is fallen down: and I will build again the ruins thereof, and I will set it up: that the residue of men might seek after the Lord, and all the Gentiles, upon whom my name is called, saith the Lord who doeth all these things" (Acts 15: 13-17). What was the first thing that James said was to be done? Visit the Gentiles, to take out of them a people for his name. When does this occur? The visiting of the Gentiles commenced after Christ's death and resurrection. We may safely say that it began when Peter went to the house of Cornelius in Caesarea. The work of taking out of the Gentiles still goes on through the instrumentality of the gospel. We know that we are now in the times of the Gentiles. When will Christ come and build the tabernacle of David? Let Him answer. "After this," that is, after visiting the Gentiles, "I will return and will build again the tabernacle of David, which is fallen down: and I will build again the ruins thereof, and I will set it up." The question is settled. There is no room for dispute. Ah! but says the one who spiritualizes God's words to suit popular creeds, you are too literal. You are looking for a literal kingdom with Christ as its personal ruler on the earth. Yes indeed we are. What else can we look for? When it was said of David's throne, "I will overturn, overturn, overturn it" was that literal? or was it a spiritual throne in the skies, in the heavens, or beyond the bounds of time and space? What was overturned to be no more till he come whose right it is"? That it was the throne, kingdom and dominion of David which was overthrown everybody knows. The same testimony that says "it shall be no more, until he come whose right it is," says also, "And I will give it him." Give what to him? a spiritual throne in heaven? We know nothing of David ever having a spiritual throne in heaven, and if there was one there, it surely was never "overturned." The throne that was overturned was the one that was to be given to him whose right it is. If David's throne and kingdom were real and literal, then it will be a literal throne and kingdom that will be given to Christ. Ah! some will say with a sneer, that reduces the thing to an absurdity. You are talking about the literal chair in which David sat. No, we are not talking about the literal chair, but we are talking about the power and dominion of David. We don't mean the literal chair in which Queen Victoria sits when we talk about the throne of England, but in using the term we, of course, mean a real kingdom, the kingdom of Great Britain, that has territory, a throne, subjects, laws and rulers; and we mean the very same when we speak of the throne and kingdom of David which had all and will again have all these elements. We mean the very same when we speak of giving it, the throne that was overturned, to him whose right it is. The angel declares to Mary, "He shall be great, and the Lord God shall give him the throne of his father David. He shall reign over the house of Jacob for ever and of his kingdom there shall be no end" these words are too clear to be spiritualized and made meaningless; for James adds, "After this I will return and will build again." Mark the word, "again," something that was built before, that had been overturned and needed building again. Surely the supposed spiritual throne of David in heaven was never overthrown and needed to be built again. The testimony continues still more clearly, " I will return and will build again the tabernacle of David, which is fallen down: and I will build again the ruins thereof." What folly it is to try to spiritualize this and make it mean anything but what it declares. Inspiration has anticipated and forestalled all these vain attempts at making the Word of God of none effect by tradition.

ISAIAH’S INVITATION TO THE SURE MERCIES OF DAVID

How often do we hear quoted the beautiful words of the Prophet Isaiah, "Ho, every one that thirsteth, come ye to the waters, and he that hath no money: come, buy and eat: yea, come, buy wine and milk without money and without price" (Isa. 55: 1). These are words to a thirsty perishing world. They are a call to fallen man, inviting him to partake of the blessings of salvation. Salvation is what is offered here. And now the question is, Does this stand related in any way to the covenant made with David? The words are frequently quoted without any regard to that which is offered in them and to which they invite lost men and women. What does God say He will do with those who respond to this beneficent call, this invitation to salvation? "Incline your ear," He says, "and come unto me. Hear and your soul shall live: and I will make an everlasting covenant with you." (Isa. 55: 3) Surely here is the place to settle the nature of this covenant. If it is that God invites us to a covenant providing for our flight to realms beyond the stars, we ought to find it here. If on the contrary it is an invitation to the covenant made with David, involving an inheritance in the earth, when David's throne and kingdom will be restored and given to His royal Son Christ, King David the second, then certainly we shall find in it the gospel which provides for the world's redemption. What is the invitation to? What are we called to? Mark the words carefully. Receive them as truth and reject everything that conflicts with them. Here they are, "and I will make an everlasting covenant with you, even the sure mercies of David." Now, dear reader, did you ever find any where in the Scriptures "sure mercies of David" providing for an inheritance in heaven, or a kingdom in the sky? David never was in heaven. How then could he have a kingdom there? David died in faith, not having received the promise, but seeing its fulfillment "in a great while to come" declares it to be his salvation. Has he gone to heaven? Has he gone any where except to the dust to await a glorious resurrection to the realization of these promises? "David, after he had served his own generation by the will of God, fell on sleep, and was laid unto his fathers, and saw corruption" (Acts 13: 36). "David is not ascended into the heavens, but he saith himself, The Lord said unto my Lord, Sit thou at my right hand, until I make thy foes thy footstool." Christ is gone to heaven, but not David. And when we reach the end of the time indicated by the word "until" "he shall send Jesus Christ, which before was preached unto you: whom the heaven must receive until the times of restitution of all things, which God hath spoken by the mouth of all his holy prophets since the world began" (Acts 3: 20-21).

If the invitation to come into covenant relationship with God, is to everyone that thirsteth, in which covenant are "the sure mercies of David," then the covenant and the gospel must be one and the same thing, because every invitation that is sent out to fallen man from God is for him to come to a belief and obedience of the gospel whereby he may obtain salvation. To invite men, then, to believe and obey the gospel is the same thing as to invite him to the everlasting covenant, in which are the sure mercies of David, and it is this covenant with David and with others that the Apostle Paul alludes to in addressing the Church of Ephesus, saying "Wherefore remember, that ye being in time past Gentiles in the flesh, * * * at that time ye were without Christ, being aliens from the commnonwealth of Israel, and strangers from the covenants of promise, having no hope and without God in the world" (Eph. 2:11, 12). To be a Gentile is to be an alien from the commonwealth of Israel, and a stranger from the covenants of promise. To be this is to be without hope and without God in the world. Was heaven ever spoken of as the commonwealth of Israel? Is the promise of an everlasting abode beyond the stars ever found in any of the covenants of promise? If not, why believe it? Why accept another gospel, when the apostle says to do so will bring a curse instead of a blessing? What can the words "commonwealth of Israel" mean? Commonwealth means a wealth to be enjoyed in common, and since it is the commonwealth of Israel, this must be a wealth to be enjoyed by Israel in common. Israel means he that hath prevailed and become a prince with God. Who pre-eminently is entitled to this name, Israel? Who has prevailed where all others of the Adamic race failed? Who by reason of overcoming has become a prince with God. That this is Christ there can be no question. He is therefore pre-eminently an Israelite, yes, the Israelite, in whom was found no guile and in whom centers the commonwealth of Israel because in him is the power to fulfill the covenants of promise, and give the promised wealth of salvation and everlasting inheritance to the Israel of God (Gal. 6: 16). In this, as we shall see further along, the commonwealth will be enjoyed by the Israel of God, first according to the spirit, and secondly the nation of Israel restored to the land of their fathers¾ the former, which constitute the one great body politic, of which Christ is the head, will be the rulers those who will have overcome, prevailed and become princes with God, kings of whom Christ is King; "King of kings, and Lord of lords," will be the rulers, while the twelve tribes of Israel restored to the land promised to Abraham will be the subjects to be "planted in a land of their own and never be moved; neither shall the children of wickedness any more afflict them as before time." Then the sure mercies of David will find their fulfillment. But what I wish to impress here is that the apostle says that while we were Gentiles, before we became part of the Israel of God, we were aliens from this commonwealth, strangers from the covenants of promise, having no hope and without God in the world. Therefore it is essential, it is a vital question, that we see to it that we come to believe in the commonwealth of Israel, in the covenants of promise, not in promises that were never made, but, like Abraham, in the very promises made, to believe which will be accounted to us for righteousness as it was in Abraham's case. Salvation is predicated upon this, and it is the same matter as is involved in the gospel of which our Saviour says, "He that believeth and is baptized shall be saved; but he that believeth not shall be condemned" (Mark 16: 16). The apostle shows us here that he that believeth in the commonwealth of Israel and the covenants of promise and is there upon baptized into Christ shall be saved; while he that believeth not in the commonwealth of Israel and in the covenants of promise can no more be saved than he who believeth not the gospel. Hence he adds, "But now in Christ Jesus ye who sometimes were afar off are made nigh by the blood of Christ" (Eph 2:13). When ye were afar off ye were aliens and strangers, hopeless and helpless, but now having believed the gospel, which involves the commonwealth of Israel and covenants of promise, and having been baptized into Christ, you are therefore not afar off, but made nigh by the blood of Christ. "Now therefore ye are no more strangers and foreigners, but fellow-citizens with the saints, and of the household of God; and are built upon the foundation of the apostles and prophets, Jesus Christ himself being the chief corner-stone; in whom all the building, fitly framed together, groweth unto an holy temple in the Lord: in whom ye also are builded together for an habitation of God through the Spirit" (verses 19-22). Of the covenant with David then we may say the same as we did of the covenant with Abraham. All the blessings through Christ are promised to David's seed, and to Abraham's seed, and therefore we must become adopted into the family of Abraham to become part of the "seed" to whom the promise is made. Christ is the mediator. "He is our peace, who hath made both one, and hath broken down the middle wall of partition between" the Jews and the Gentiles. Belief in the covenants of promise, or the gospel, and baptism into Christ inducts us into the only saving "name* * * given among men whereby we must be saved." Hence the apostle says, "As many of you as have been baptized into Christ have put on Christ" (Gal. 3: 27). And now in this relationship or condition expressed by the phrase "in Christ," "there is no difference" between Jew and Greek, that is to say, it makes no difference whether you are of Jewish descent according to the flesh, or Gentiles by nature. There is therefore no salvation out of Christ. There is no way into Christ but by believing the covenants of promise and being baptized, and when these are complied with we are Christ's. "And if ye be Christ's" says the apostle, "then are ye Abraham's seed and heirs according to the promise." That is, heirs of this Israelitish commonwealth, these covenants of promise made to Abraham and to David. We thus see that Christ is the pith and pivot of it all, the heart, the life of the whole matter. All these things were arranged on account of Him and for Him, and therefore He "is the root and the offspring of David." He was the Word of God in the beginning and that word, or logos, was the Father's purpose centered in Christ. That was the root of this great plan of salvation involved in the covenants of promise. When "the Word was made flesh," the logos, as it were, assumed personal form and Christ was personally the exemplification of God's great purpose to bring about the world's redemption. Hence He says, "I am the way, the truth and the life." He is called the Word of God. A word is a sign or symbol of thought. Christ was a sign or symbol, a manifestation of God's purpose in the earth. He was the kingdom of Israel in its germ form when here upon the earth. According to the flesh he was the offspring of David; viewing the word David as a representation of God's plan, He is the outcome, the offspring of that plan. Everything pertaining to the covenants of promise and the world's redemption centers in Him. He is the Alpha and Omega, the beginning and the end. He holds "the key of David," in that He holds the key that shall unlock the bars of the grave, which for the time being holds David in corruption. "I am He that liveth and was dead; and behold, I am alive for evermore, amen; and have the keys of hades and of death" (Rev. 1: 18). He has the "key of David; He openeth and no man shutteth; and shutteth and no man openeth" (Rev. 3:7). Not only will he use the keys to unlock the grave for David and all the ancient worthies who "died in the faith, not having received the promise," but the key of David will open the royal house of David, the kingdom of Israel, and again bring to the earth a Divine administration of affairs that will fulfill the Abrahamic covenant, blessing all families of the earth. Of Him David says, "He that ruleth over men shall be a just one that shall rule according to the righteous precepts of Jehovah"; and when David looked down the dark ages that would intervene, he pierced the future horizon of his hope, and exclaimed, "He shall be like the sun of an unclouded dawn," or as our translation has it, "a morning without clouds; as the tender grass springing out of the earth by clear shining after rain. Although my house be not so with God," that is, at the time that he spoke, "Yet he hath made with me an everlasting covenant, ordered in all things and sure," and with this hope he closed his eves to await the time contemplated in the words, "I shall be satisfied, when I awake with thy likeness." Then shall he with all those who are now in the sleep of death awaiting the realization of the faith in which they died, behold the uprising of the "Sun of righteousness," which shall arise with healing in his wings, and burst forth in all his splendor and beauty to "fill the earth with the glory of the Lord as the waters cover the sea."

In all this we are not asked to take visionary flights to worlds unknown, nor need we dream of the impossible task of reading our "title clear to mansions in the sky;" for fitting immortal souls for the sky is no part of the world's redemption. There is a grander and more noble work for the redeemed in the age to come than playing upon golden streets and reveling in idleness. There is a lost paradise to be regained, a thousand wrongs to be righted, a crooked world to be straightened, a lost world to be redeemed, the profaned name of Yahweh to be honored where it has been despised and rejected, a mocked and crucified King to be enthroned and glorified, and the sky is no place for these things to be done. They are needed where social vice is corrupting and eating out the very life of society; where a false and deceptive religious system is trafficking for worldly gain in the bodies and souls of men and women who are ignorant of God's Word and are carried away under high pressure of excitement and animal magnetism by the cunning tricks of experts; they are needed where famishing millions are slaves to tyrannical monopolies, and where the cruel heel of the oppressor is crushing into the earth its helpless victims: they are needed here, and nothing will effect these grand results but the King from heaven who will shortly appear in His mighty power and majestic glory to associate with himself all His worthy ones of the ages of the past in the great work of restitution of all things, when there shall be "glory to God in the highest, on earth peace and good will among men," and the world's redemption become a glorious fact.

title: The Worlds Redemption/5


text:
Collins v. Gilbert/Opinion of the Court

Transferees of a negotiable instrument, such as a bill of exchange or promissory note payable subsequent to its date, hold the instrument clothed with the presumption that it was negotiated for value in the usual course of business at the time of its execution, and without notice of any equities between the prior parties to the instrument.

Instruments of the kind are commercial paper in the strictest sense, and must ever be regarded as favored instruments as well on account of their negotiable quality as their universal convenience in mercantile affairs. They may be transferred by indorsement, or, when indorsed in blank or made payable to bearer, they are transferable by mere delivery. Goodman v. Harvey, 4 Ad. & E. 870; Goodman v. Simonds, 20 How. 365; Wheeler v. Guild, 20 Pick. (Mass.) 551; Noxon v. DeWolf, 10 Gray (Mass.), 346; Mager v. Badger, 34 M. Y. 249.

Possession of such an instrument payable to bearer, or indorsed in blank, is prima facie evidence that the holder is the proper owner and lawful possessor of the same; and nothing short of fraud, not even gorss negligence, if unattended with mala fides, is sufficient to overcome the effect of that evidence, or to invalidate the title of the holder supported by that presumption. Story on Bills (4th ed.), sect. 416; Byles on Bl ls (10th ed.), 119; Chitty on Bills (12th ed.), 257; Mills v. Barber, 1 Mee. & W. 425; Murray v. Lardner, 2 Wall. 110; Bank of Pittsburgh v. Neal et al., 22 How. 96.

Apply that rule in a suit in the name of the transferee against the maker, and it is clear that he has nothing to do in the opening of his case except to prove the signatures to the instrument, and introduce the same in evidence, as the instrument goes to the jury clothed with the presumption that the plaintiff became the holder of the same for value at its date, in the usual course of business, without notice of any thing to impeach his title. Bank v. Leighton, Law Rep. 2 Exch. 61; Pettee v. Prout, 3 Gray (Mass.), 503; Way v. Richardson, 3 id. 413.

Clothed as the instrument is with those presumptions, the plaintiff is not bound to introduce any evidence to show that he gave value for the same until the other party has clearly proved that the consideration of the instrument was illegal, or that it was fraudulent in its inception, or that it had been lost or stolen before it came to the possession of the holder. Uther v. Rich, 10 Ad. & E. 784; Bailey v. Bidwell, 13 Mee. & W. 73; Arbouin v. Anderson, 1 Ad. & E. N. S. 504; Bank v. Fagan, 7 Moore, P. C. 76; Fitch v. Jones, 5 El & Bl. 238; Smith v. Braine, 16 Ad. & E. N. S. 251; Hall v. Featherstone, 3 Hurls. & Nor. 286.

Sufficient appears to show that the drawers of the draft described in the declaration were sub-contractors to grade seven miles of a railroad referred to in the affidavit of defence, and that they were to be paid monthly for work done, subject to a certain deduction to be retained as a security for the completion of their contract. Moneys received from the monthly payments being insufficient for the purpose, they were unable to complete their undertaking without an advance from the principal contractor. What they wanted was an advance of $8,000; and it appears that the contractor was willing to make it, if they would give him the acceptance of the defendant in the same amount, as a security that they would perform their contract. Pursuant to that arrangement, they drew their draft upon the defendant in that amount, payable to the order of thier senior partner; and the record shows that the draft was accepted by the defendant, and was duly indorsed by the payee.

Beyond doubt, the draft was duly executed and delivered to the contractor as security for the performance of the contract of the drawers of the instrument. By its terms it was payable in ninety days from date; and it must be assumed, in the absence of proof to the contrary, that the plaintiffs became the holders of the same before maturity.

Payment being refused, the plaintiffs instituted the present suit to recover the amount. Process was served, and the defendant appeared and pleaded that he never accepted the draft, and that he never promised in manner and form as alleged in the declaration. Subsequently the parties went to trial, and the verdict and judgment were for the plaintiffs. Exceptions were filed by the defendant, and he sued out the present writ of error.

Six offers of proof were made by the defendant in the course of the trial, all of which were excluded by the court, subject to the exception of the defendant. Four of the rulings of the court in that regard are now assigned for error, and they present the only matters of controversy exhibited in the record. Rulings of the kind, not assigned for error, may be dismissed without remark; nor would the other two exceptions have required much examination, even if they had been assigned for error, as they involve substantially the same questions as those presented by the other rulings of the court.

1. Testimony having been introduced by the defendant that one of the plaintiffs was informed, before the draft came into their hands, that the contractor had agreed to advance money to enable the sub-contractors to pay their employes, they, the sub-contractors, giving the defendant an acceptance as security in lieu of retained percentage, the defendant proposed to ask the witness what was the arrangement between the sub-contractors and the contractor, by virtue of which the defendant's acceptance was obtained; to which the plaintiffs objected, and the court excluded the question.

2. Evidence having been given by the same witness that there was an arrangement between the sub-contractors and the contractor, to the effect that the latter would advance money to the former to pay their men, upon their giving to the contractor the defendant's acceptance, to be retained by him in lieu of the stipulated percentage, the defendant proposed to show by the same witness that the work was finished by the defendant, and that by the terms of the contract all of the percentage retained became due and payable when the contract was completed; which offer of proof was objected to by the plaintiffs, and was ruled out by the court.

3. Complete execution of the draft is not denied; but the theory of the defendant is, that the contractor took the same of the sub-contractors in lieu of retained percentage; and he proposed to show that the sub-contractors subsequently abandoned their contract, and that the defendant, at the suggestion of the contractor, finished the same, he agreeing that if the defendant would complete the work, he, the contractor, would return the acceptance; and that the defendant never got either the percentage or the acceptance: to which the plaintiffs objected, and the court excluded the testimony.

4. Finally, the defendant proposed to show that the contractor, when the acceptance was delivered to him, was indebted to the sub-contractors for retained percentage in excess of the amount of the acceptance; which was also objected to by the plaintiffs, and was excluded by the court.

Properly analyzed and construed, it is quite obvious that these several offers of proof present but a single question, and that they serve to illustrate very fully the different theories of law maintained by the respective parties in respect to such commercial instruments. Throughout the trial the plaintiffs contended that they were the bona fide holders for value of the acceptance, having received the same before maturity in the usual course of business, and that they held a good title to the instrument, unless the defendant could show that they had notice of such facts as were sufficient to impeach the title between the antecedent parties, or that the consideration of the instrument was illegal, or that it was fraudulent in its inception, or that it had been lost or stolen before it came to their possession. Swift v. Tyson, 16 Pet. 15.

Due delivery of the executed draft to the contractor indorsed in blank is admitted; but the theory of the defendant is that the contractor received it merely as security that the sub-contractors would perform their contract, and that the contractor caused it to be discounted without authority. Neither illegality of consideration nor fraud in the inception of the instrument is charged or pretended; nor is it alleged that the acceptance had been lost or stolen before the plaintiffs received it for discount. Instead of that, the theory of the defendant assumes that the contractor became the lawful holder of the acceptance indorsed in blank for the specified purpose, which is an implied admission that the acceptance was one of a class of commercial instruments which may be transferred by delivery.

Suppose that is so, still it is insisted by the defendant that evidence is admissible in such a case to show that the first holder under such circumstances appropriated the acceptance to a use other than that for which it was delivered to him, and that proof of such a misappropriation is sufficient to impeach the title of a subsequent holder for value, even though it came into his possession before maturity in the usual course of business.

Where the supposed defect or infirmiy in the title of the instrument appears on its face at the time of the transfer, the question, whether the party who took it had notice or not, is, in general, a question of construction, and must be determined by the court as matter of law. Andrews v. Pond, 13 Pet. 65; Fowler v. Brantly, 14 id. 318; Brown v. Davis, 3 T. R. 86.

But it is a very different matter when it is proposed to impeach the title of a holder for value by proof of any facts and circumstances outside of the instrument itself. He is then to be affected, if at all, by what has occurred between other parties, and he may well claim exemption from any consequences flowing from their acts, unless it be first shown that he had knowledge of such facts and circumstances at the time the transfer was made. Nothing less than proof of that character can meet the exigencies of such a defence, if it be true that a party who acquires commercial paper for value in the usual course of business may, if it was acquired before maturity and without notice of any defect in the title, hold it free of all equities between the antecedent parties to the instrument.

Indorsees of negotiable bills of exchange and promissory notes enjoyed the benefit of that rule for ages before any attempt was made to annex any qualification to it, unless it appeared that the consideration was illegal, or that the instrument was fraudulent in its inception, or that it had been lost or stolen before it came to the possession of the holder. Hinton's Case, 2 Show. 247; Anonymous, 1 Salk. 126; Miller v. Race, 1 Burr. 462; Grant v. Vaughan, 3 id. 1516; Peacock v. Rhodes, 2 Doug. 633; Lawson v. Weston, 4 Esp. 56.

Attempt was subsequently made to qualify that right of a bona fide holder, and to establish the rule, that if the indorser of the instrument had no valid title to the same, and that such facts and circumstances were known to the indorsee at the time of the transfer as would have caused a person of ordinary prudence to suspect that the indorser had no right to transfer the instrument or to use the same for his own benefit, then the holder, as against the acceptor or maker, is not entitled to recover. Gill v. Cubitt, 3 B. & C. 466.

Though the modified rule was never satisfactory, yet it must be admitted that it was followed for a time in many jurisdictions. But it is unnecessary to discuss that topic, as the case referred to has been distinctly overruled in the tribunal where it was decided, and has not been considered an authority there for more than forty years. Goodman v. Harvey, 4 Ad. & E. 870.

Abundant authority for that proposition is found in the cases already cited, and Mr. Chitty says that the old rule of law, that the holder of bills of exchange, indorsed in blank and transferable by delivery, can give a title which he does not possess to a person taking the same bona fide for value, is again re-established in its fullest extent. Chitty on Bills (12th ed.), 257.

Speaking upon that subject, the Supreme Court of Massachusetts said that it was once held that the holder of a bill of exchange or promissory note fraudulently put in circulation must show that he had used due and reasonable caution in taking it; but the court proceeds to say that it has since been definitively adjudged that if he took the instrument in good faith he is entitled to recover on it, and that even gross negligence is not tantamount to fraud, though it may be given in evidence as tending to prove that charge, that the burden of proving good faith is all the burden which the law imposes on such a holder. Worcester Bank v. Dorchester Bank, 10 Cush. (Mass.) 491.

Conclusive support to that conclusion is found in the authorities which the court cite for that purpose, among which are the following: Goodman v. Harvey, 4 Ad. & E. 870; Arbouin v. Anderson, 1 Ad. & E. N. S. 504. We must hold, said Lord Denman, in the case last cited, that the owner of a bill of exchange is entite d to recover upon it if he has come by it honestly, and that that fact is implied prima facie by possession; that, to meet the inference so raised, fraud, felony, or some such matter, must be proved. Smith v. Sac County, 11 Wall. 146.

Instruments of the kind are intended for circulation, and Shaw, Ch. J., says that the law is so framed to give confidence and security to those who receive them, for valuable consideration, in the ordinary course of business, when payable to bearer or indorsed in blank, so as to be transferable by delivery; and he adds that, in general, a party taking such an instrument under such circumstances has only to look to the credit of the parties to it, and the regularity and genuineness of the signatures and indorsements. So that if such a bill or note be made without consideration, or be lost or stolen and afterwards be negotiated for a valuable consideration, in the usual course of business, to one who has no knowledge of those facts, his title is good, and he shall be entitled to receive the amount. Wheeler v. Guild, 20 Pick. (Miss.) 350.

Title and possession in such a case are, in general, considered one and inseparable, and it will be presumed that a party thus in possession of such an instrument holds it for value until the contrary appears, and the burden of proof is on the party impeaching his title. Collins v. Martin, 1 B. & P. 648; Bank v. Hoge, 35 N. Y. 68; Phelan v. Moss, 67 Penn. St. 63; Raphael v. Bank, 17 C. B. 171.

In order to defeat the rights of a bona fide holder for value of a promissory note, which it is claimed was procured by fraud, it must be shown, either directly or by circumstances, that he had notice of such infirmity.

Proof of such facts and circumstances as would have put a reasonable man upon inquiry in relation thereto are not sufficient to constitute a defence to a suit by the holder. Lake v. Reed, 29 Iowa, 359; Gage v. Sharp, 24 id. 15.

Adjudged cases to support those propositions are very numerous, and it is equally well settled that where a negotiable bill or note is given in evidence duly indorsed, the legal presumption is that such indorsement was made at the date of the instrument, or at least antecedently to its becoming due; and the rule is, that if the defendant would avail himself of any defence not open to him, unless the bill or note was negotiated after it was dishonored, it is incumbent on him to show that the indorsement was in fact made after the instrument was overdue. Ranger v. Cary, 1 Met. (Mass.) 373; Noxon v. De Wolf, 10 Gray (Mass.), 347.

Actual possession of a negotiable instrument, payable to bearer or indorsed in blank, is plenary evidence of title in the holder 'until other evidence is produced to control it;' but if to an action on the same 'the defendant pleads that it was illegal in its inception, and that the plaintiff took it without value, the illegality being proved, the onus is cast upon the plaintiff to prove that he gave value.' Smith v. Braine, 16 Ad. & E. N. S. 250; Bailey v. Bidwell, 13 Mee. & W. 73.

Proof of gross negligence is not sufficient to overcome the prima facie presumption of title arising from possession; but if it be alleged and proved that the instrument had its inception in illegality or fraud, a presumption arises from that proof that the plaintiff took it without value, or, in other words, it so far shifts the burden of proof, that, unless the plaintiff gives satisfactory evidence that he gave value for the same, the defence will prevail. Fitch v. Jones, 5 El. & Bl. 246; Harvey v. Towers, 6 Hurls. & Gord. 660.

Where there are circumstances, in the nature of fraud or illegality, which can properly be left to the jury, proof of those circumstances by the defendant will cast on the plaintiff the onus of showing that he gave value for the bill or note. Hall v. Featherstone, 3 id. 287; Mills v. Barber, 1 Mee. & W.4 32.

Negotiable instruments are expressed to be for value, and, if payable to bearer or indorsed in blank, they pass by delivery from hand to hand, clothed with that presumption; nor is that presumption overcome, where the suit is in the name of a subsequent holder, by proof that the indorsement was for the accommodation of the maker.

If it appears that the bill or note was obtained by fraud, or that it had been stolen before it came to the possession of the holder, then the presumption may arise that the holder did not pay full consideration for it, because in such a case it is probable that the person obtaining the instrument would pass it away for less than its full value. But where there is only the simple fact that it was an accommodation bill or note, then the inference is that the holder did give value for it, because that was the very object for which the instument was given. Percival v. Frampton, 2 Cromp., M. & R. 183; Seybel v. Bank, 54 N. Y. 291.

Decided cases, almost without number, support that proposition; but if the note or bill is founded in fraud, or was fraudulently obtained and put in circulation, the indorsee must prove that he paid value for it before he can recover the amount. Tucker v. Morrill, 1 Allen (Mass.), 528; Maither v. Maidstone, 1 C. B. N. S. 287; Sistermans v. Field, 9 Gray (Mass.), 337; Brush v. Scribner, 11 Conn. 390.

Tested by these several considerations, it is clear that there is no error in the record.

Judgment affirmed.

title: Collins v. Gilbert/Opinion of the Court


text: Talk:Collins v. Gilbert/Opinion of the Court


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Forbes v. Gracey

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

The case is stated in the opinion of the court.

Submitted on printed arguments by Mr. Hall McAllister for the appellant, and by Mr. W. E. F. Deal for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Forbes v. Gracey


text: Talk:Forbes v. Gracey

title: Talk:Forbes v. Gracey