text: Dictionary of National Biography, 1885-1900/Locke, Matthew


text:
Page:Folklore1919.djvu/324

has recently contributed to the Verslagen en Mededeelingen der Koninklijke Akademie van Wetenschappen, ''Afd. Letterkunde, 5e Reeks, Diet iv., a valuable note (in English) on the Sign of the Spread Hand or "Five-finger token" (Pancangidika'') in Pali Literature. This sign seems to have originated in gesture, and though few races are so dependent on that mode of expression as not to be able to converse without it, like the Bubis of West Africa who cannot talk in the dark, as among them "language depends so much on gesture," few races exist who use nothing but the tongue to communicate ideas. Gesture, elaborately conventionalised, plays a great part in Indian iconography.

And such conventions must be of great antiquity, as is gesture itself. In a curious passage of the Jātakas the Great Being meets the lady Amarā and thought, "Whether she be wed or not I do not know: I will ask her by hand gesture, and if she be wise she will understand." So standing afar off he clenched his fist. She understood that he was asking whether she had a husband, and spread out her hand—to signify that she was married. It would appear then that the original meaning of the open hand was freedom or liberty. But in Persia the clenched hand denotes, besides austerity or violence, close-fistedness, just as the spread hand signifies open handedness.

The spread hand, however, may express a very different sentiment in modern India, where gesture is still much used. Thus, in the Western Punjab, at least in two districts of it, some of the gestures are peculiar, although, as in Europe a nod of the head means "yes," or "come," and a shake "denial." A backward nod means inquiry, a click with a toss of the head means "no," jerking the fingers means "I do not know";

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

title: Page:Folklore1919.djvu/324


text:
Page:The Celtic Review volume 4.djvu/356

Rh in such nouns and in the parts ending in dh of verbs. In Perthshire the gh sound is confined to subjunctives of verbs, and even then alternates with another pronunciation to be noticed.

This sound is heard in Argyll in a few instances in which the written language has mh, as in caitheamh, wearing, càramh, mending, etc., creideamh, belief, and dèanamh, doing, in Kintyre and Islay, and càramh, dèanamh, and iomramh, rowing, in North Argyll. All those, except iomramh, have dh, but pronounced g, as we shall see in Arran. Càramh follows the analogy of the other words as dèanamh, ‘dèanu,’ in Perth, and is pronounced ‘càru,’ but in West Ross and Sutherland it is ‘càra,’ unlike either words in ‑adh, or words in ‑amh in its last syllable.

The ordinal numerals are sometimes spelt with dh in lieu of mh, as ceithreadh, fourth, coigeadh, fifth, by Arran and Argyll writers, but the pronunciation of the syllable in question differs in Arran and in Kintyre, and probably elsewhere, from those with either dh or mh.

The sound of unaspirated g is given to medial and final dh in some instances in Arran, especially at the south end of the island, as in cràdhach, painful, diadhaidh, fiadhaich, iodhal, idol, fiadh, deer, fiodh, wood, gèadh, goose, ruadh, red, fionnadh, hair, reothadh, frost, altachadh, grace. In words of one syllable, and in the terminations of verbs, g for dh is the rule there. As already indicated, this g for dh takes the place here of mh in the words caitheamh, dèanamh, etc. Some of the parts of the verb gràdhaich, love, are pronounced (with à sounded è throughout) gràgai’, will love, ghràgaicheag, would love, gràgachag, loving, ghràgachag, was loved, and so on.

G is heard as frequently as gh for dh in subjunctives of verbs in Perth. Thus abrag and abragh are said equally often for abradh, would say; so with chuireadh, would set, etc. In infinitives in ‑adh the whole syllable, when not wanting altogether, is pronounced ao short in that county; a’ reubadh, rending, is a’ reubao, or a’ reub. In West Ross in


text: 1911 Encyclopædia Britannica/Dunbar, George


text: Triangles of Life, and other stories/Letters to Jack Cornstalk


text: Triangles of Life, and other stories/A Long Way to Cork


text: Triangles of Life, and other stories/The Ridiculous Family


text: Triangles of Life, and other stories/His Mistake


text: Triangles of Life, and other stories/A Child in the Dark, and a Foreign Father


text: Triangles of Life, and other stories/A Romance of Three Huts


text: Triangles of Life, and other stories/Drifting Apart


text: Triangles of Life, and other stories/James and Maggie


text: Triangles of Life, and other stories/The Hairy Man


text: Triangles of Life, and other stories/The Strangers' Friend


text: Triangles of Life, and other stories/Mateship


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


text: 1911 Encyclopædia Britannica/Diaspore

title: 1911 Encyclopædia Britannica/Diaspore


text:
On the Divinity and Humanity of Christ

Disputation On the Divinity and Humanity of Christ February 27, 1540

Theological Disputation
1. This is the catholic faith, that we confess one Lord Jesus Christ, true God and man.

2. From this truth of the double substance and the unity of the person follows the communication of attributes [communicatio idiomatum], as it is called.

3. So that those things which pertain to man are rightly said of God, and, on the other hand, those things which pertain to God are said of man.

4. It is true to say:  This man created the world, and this God suffered, died, was buried, etc.

5. But these are not correct in the abstract (as it is said) of human nature [in abstractis humanae naturae].

6. For it cannot be said,  Christ is thirsty, a servant, dead; therefore he is thirst, servitude, death.

7. Wherefore this [statement] too is condemned:  Christ is humanity, even though it is said:  Christ is divinity.

8. Even though man and humanity are otherwise synonyms, as are God and divinity.

9. In the divine predicates or attributes there is not a difference of this kind between the concrete and the abstract.

10. Even though both the scriptures and many fathers do not distinguish between the concrete and the abstract in many predicates of human nature.

11. The Symbol [the _Te Deum_ ] proclaims, "When thou tookest man upon thee to deliver him" [Tu ad liberandum suscepturus hominem], and Augustine often does the same.

12. Although the normal way of speaking (as it seems) would be:  "When thou tookest humanity, or human nature upon thee to deliver it."

13. Thus some are not afraid to say:  Christ is a creature, since a errantly it is said that Christ was created.

14. And John 1 says:  "The Word was made flesh," when in our judgment it would have been better said, "The Word was incarnate," or "made fleshly."

15. It is rightly taught, that in this matter the manner of speaking preserved in the scriptures and in the orthodox fathers should prevail.

16. Or rather, many things are allowed even to the fathers who are agreed to be orthodox, which we should not imitate.

17. Wherefore in this matter we should beware of etymology, analogy, [logical] consequence, and examples.

18. Just as in grammar certain heteroclite nouns and irregular verbs are not subject to etymology, analogy, or example.

19. And generally, in every sort of subject and art, practice often dictates against the rule.

20. Nonetheless it is certain that with regard to Christ [in Christo] all words receive a new signification, though the thing signified is the same [in eadem re significata].

21. For "creature" in the old usage of language [veteris linguae usu] and in other subjects signifies a thing separated from divinity by infinite degrees [infinitis modis].

22. In the new use of language it signifies a thing inseparably joined with divinity in the same person in an ineffable way [ineffabilibus modis].

23. Thus it must be that the words man, humanity, suffered, etc., and everything that is said of Christ, are new words.

24. Not that it signifies a new or different thing, but that it signifies in a new and different way [nove et aliter], unless you want to call this too a new thing.

25. Schwenkfeld and his frog-and-mouse warriors [batarchomyomachis] foolishly scoff [when we say] that Christ according to his humanity is called a creature.

26. A man without learning [or] training, and moreover without common sense, does not know how to distinguish between words with more than one meaning [vocabula aequivoca].

27. For those who say that Christ is a creature according to the old use of language, that is, by himself [separatam], were never Christians.

28. But rather everyone vehemently denies that Christ is a creature in this way, which the Arians taught.

29. It is clear, therefore, that Schwenkfeld is barking into an empty darkness [in vacuum chaos] against his own dreams of the creature in Christ.

30. And forgetting himself, the man concedes that God was made flesh, though he has not yet dared to deny that flesh is a creature.

31. But Eutyches dwells hidden in such heretics, ready someday to deny that the Word was made flesh.

32. They make a show of conceding that the Word was made flesh, ready someday to deny it, when the theater is darkened, after it is denied that there is a creature in Christ.

33. In these ineffable matters, therefore, this [rule] must be kept, that we interpret the teachings of the fathers (as is necessary) in a suitable way [commode].

34. It is wicked, when you know that the sense of someone's teaching is Christian [pium] and sound, to make up an error out of words ineptly spoken.

35. For there were never any fathers or doctors who never spoke in an improper way, if you want to scoff at their teachings.

36. [Coelius] Sedulius, the very Christian poet, writes:  "The blessed author of the world / Put on a lowly servant's form" [Beatus auctor seculi servile corpus induit], and so through the entire church.

37. Although nothing more heretical could be said than that human nature is the clothing of divinity.

38. For clothing and a body do not constitute one person, as God and man constitute one person.

39. And yet Sedulius' thought was very Christian [piissime], as his other hymns abundantly prove.

40. For the same reason that common saying would be heretical:  The whole Trinity worked the incarnation of the Son, as two girls dress a third, while she at the same time dresses herself.

41. Thus certain scholastics, who think that the union [habitudinem] of divinity and humanity is like the union [unioni] of form with matter, could not be defended.

42. Others on the other hand [who think that] the union [habitudinem] is similar to [the union of] matter to form, speak much more ineptly, if they are strictly judged.

43. Nor could that [image] be maintained, in which the divinity is compared to fire and the humanity to iron, even though it is a very beautiful image.

44. Nor could that [image] be tolerated which Athanasius puts forward:  "As the reasonable soul and flesh is one man, so God and man is one Christ."

45. For all deny that Christ is "composed" [of two natures] though they affirm that he is "constituted."

46. But none have spoken more awkwardly [insulsius] than the Nominalists [Moderni], as they are called, who of all men wish to seem to speak most subtly and properly.

47. These say that the human nature was sustained or "supposited" by the divine nature, or by a divine supposite.

48. This is said monstrously and nearly forces God as it were to carry or bear the humanity.

49. But all of them think [sapiunt] in a correct and catholic way, so that they are to be pardoned their inept way of speaking.

50. For they wished to utter something ineffable, and then every image limps and never (as they say) runs on all four feet.

51. If [anyone] is not pleased by this or does not understand it, that Christ according as he is a man is a creature [Christus secundum quod homo est creatura], the grammarian consoles him.

52. Let him who has learned to discuss the same matter in various ways be commanded to speak as simply as possible.

53. As the Ethiopian is white according to [secundum] his teeth, the grammarian could speak otherwise thus:  The Ethiopian is white with respect to his teeth [albus dentibus], or "white of tooth" [alborum dentium].

54. But if this is unpleasing, let him say:  The Ethiopian has white teeth, or the teeth in the Ethiopian are white, or, most simply, the Ethiopian's teeth are white.

55. Since in all these forms of speech the author wishes to signify the same thing, it is useless to seek an argument over words.

56. Thus since these forms of speech--Christ according as he is a man [secundum quod homo], or according to his humanity [secundum humanitatem], or with respect to his humanity [humanitate], or by his humanity [per humanitatem], or in his humanity [in humanitate]—mean nothing else than that he has a creature or has assumed a human creature, or, what is simplest, the humanity of Christ is a creature, the false logicians [pravilogicales] are to be condemned, who give different meanings to different grammatical forms of expression of the same matter.

57. Therefore heresy lies in meaning [sensu], and not in words, as St. Jerome rightly said when he was provoked by his calumniators.

58. Otherwise Moses would be the greatest of heretics, for he recounts the Decalogue itself in different forms in Exodus 20 and Deuteronomy 5.

59. On the other hand, anyone with a wicked meaning, even if he shall speak aptly and brandish the Scripture itself, is not to be tolerated.

60. For Christ did not permit the demons to speak when they testified that he was the Son of God, as if they were transfiguring themselves into angels of light.

61. Such is the simplicity and the goodness of the Holy Spirit, that his agents [homines sui], when they speak falsely according to grammar, speak the truth according to the sense.

62. Such is the craftiness and the wickedness of Satan, that his agents [homines sui], while they speak truly according to grammar, that is, as to the words, speak lies according to theology, that is, according to the sense.

63. Here it may be said:  If you are lying, even in what you say truly, you lie; on the other hand, if you are speaking the truth, even in what you say falsely, you speak the truth.

64. This is what it means to be a heretic:  one who understands the Scriptures otherwise than the Holy Spirit demands.

The Disputation
Disputation of the Reverend Father Herr Doctor Martin Luther concerning the divinity and humanity of Christ. In the year 1540, the 28th day of February.

Preface
The reason for this disputation is this, that I desired you should be supplied and fortified against the future snares of the devil, for a certain man has put forth a mockery against the Church. I am not so much troubled that an unlearned, unskilled, and altogether ignorant man seeks praise and a name for himself, as that the men of Lower Germany are troubled by his inept, foolish, ignorant, unlearned, and ridiculous mocking. May you preserve this article in its simplicity, that in Christ there is a divine and a human nature, and these two natures in one person, so that they are joined together like no other thing, and yet so that the humanity is not divinity, nor the divinity humanity, because that distinction in no way hinders but rather confirms the union! That article of faith shall remain, that Christ is true God and true man, and thus you shall be safe from all heretics, and even from Schwenkfeld, who says that Christ is [not] a creature, and that others teach falsely, though he does not name those who teach wrongly. This is the malice of the devil:  he implicates us as well as the papists, but he names no one. If he were to say such things to me, I would answer: You are lying, [when you imply that] we say that Christ is not the Lord God. For our writings cry out in answer [to your charge]. That wicked man perceives that he cannot survive if he comes into the light, therefore he works secretly among women under secret names [tectis nominibus]. But I am not troubled that he thus seeks to make a name for himself and works secretly, but more by the fact that better theologians are not moved by these frivolous calumnies to say to him: "You, wicked man, are a liar!  We do not say that Christ is merely a creature, but that he is God and man in one person.  The natures are joined personally in the unity of the person.  There are not two sons, not two judges, not two persons, not two Jesuses, but because of the undivided union [unitam coniunctionem] and the unity of the two natures there is a communication of attributes, so that, what is attributed to one nature is attributed to the other as well, because they are one person." If these [articles] are held fast, Arius falls along with all heretics, but Schwenkfeld works secretly like the tooth of the serpent, who bites secretly so that he cannot be accused. Therefore we are now holding this disputation so that you may learn the substance and manner of speaking [res et phrases] of Scripture and the Fathers. It is an incomprehensible thing, such as not even the angels can grasp and comprehend, that two natures should be united in one person. Therefore, so that we may grasp this in some small measure, God has given us patterns of speech [formulas loquendi]: that Christ is God and man in one person, and there are not two persons, but two natures are united in one person, so that what is done by the human nature is said also to be done by the divine nature, and vice versa. Thus the Son of God died and was buried in the dust like everyone else, and the son of Mary ascended into heaven, is seated at the right hand of the Father, etc. We are content with these models [formulis].

Finally, we must observe the manner of speaking [phrases] of the holy Fathers. But if they have sometimes spoken ineptly [incommode], it is to be rightly interpreted, not abused, as the papists do, who, having twisted the words of the Fathers, abuse and allege them in defense of their idolatries, purgatory, and good works, whereas [the Fathers] thought correctly concerning these things, as many of their sayings testify with clearer and more apt expression. St. Augustine indeed teaches much concerning good works in many places and praises both good works and those who perform them. But in his Commentary on the Psalms, he says, "Have mercy on me; that is, 'I shall be troubled, but not troubled greatly, for I have trusted in the Lord.'"  Here he pleads none of those good works before God. And again in another place he says, "Woe to man, however praiseworthy he may be, etc." Such is the sinful and sacrilegious man who twists the correct sayings of the Fathers. But we learn to agree with the sayings of the Fathers; or if we cannot agree with them, we forgive them, for no man can be so wise that he does not sometimes stumble and fall, especially in speaking, where it is easy to slip. Schwenkfeld does not see this, and so when he hears the Fathers say that Christ according to his humanity is a creature, at once he seizes on the saying and twists it and abuses it for his own purposes. Even if the Fathers say that Christ according to his humanity is a creature, this could in any event be tolerated; but Schwenkfeld wickedly twists it: "Therefore Christ is simply a creature." Why, wicked man, do you not add that Christ according to his divinity is the Creator? Therefore he was created! But he does not add this, because he says, "I can let my conscience be deluded in this way. Therefore I have omitted it"--that is, I have done wickedly! He employs a fallacy of composition and division. This is the hidden tooth of the serpent and the true sacrifice of the devil among the papists as well. For they too work secretly, twist the words of the Fathers, and omit those things which seem to weaken their own cause, as Schwenkfeld also does. Before the learned he deals deceitfully and seeks glory, but among his own he says: "Oh, what wickedness of the papists, what blasphemies of the Lutherans!  They say that Christ is a creature, even though he was not created." This is [sheer] wickedness rather than force or power [of argument]. He should have added, that we say that Christ is a creature according to his humanity, and the creator according to his divinity.

Schwenkfeld is to be refuted thus: Humanity is a creature. Therefore Christ is a man and a creature. And then he says that the redeemer of the human race cannot be a creature, sit at the right hand of the Father, etc., be the seed of Abraham; but the consequence is to be denied.

I.
Argument: A human person is one thing, a divine person another. But in Christ there are both divinity and humanity. Therefore there are two persons in Christ.

Response: This is the fallacy of composition and division. In the major premise you divide the human nature and the divine; in the minor premise you join them. This is a philosophical solution; but we are speaking theologically. I deny the consequence, for this reason, that in Christ the humanity and the divinity constitute one person. But these two natures are distinct in theology, with respect, that is, to the natures, but not with respect to [secundum] the person. For then they are undivided [indistinctae], but two distinct natures, yet belonging to an undivided person [indistinctae personae]. There are not two distinct persons, but what is distinct is undivided [sed sunt distinctae indistinctae], that is, there are distinct natures, but an undivided person.

II.
Argument: Christ was not a man before the creation of the world. Therefore it is not rightly said that the man Christ created the world. Or thus: When the world was created, Christ did not create it as a man [tamquam homo]. Therefore it is not rightly said that a man created the world.

Response: There is the communication of attributes; and moreover [this is] a philosophical argument. This stands: The natures are distinct, but after that communication, there is a union, that is, there is one person, not two persons. But that person is God and man, one and the same person, who was before the creation of the world; even though he was not man born of the Virgin Mary before the world, nonetheless he was the Son of God, who is now man. Thus, for example, when I see a king in purple and crowned on his throne, I say, "This king was born of a woman, naked and without a crown." How can this be, and yet he sits on a great throne crowned and clothed in purple? But these things he put on after he was made king, and yet nonetheless he is one and the same person; and so too here in Christ God and man are joined in one person and must not be distinguished. But it is true that Christ created the world before he was made man, and yet such a strict unity exists that it is impossible to say different things [of the divinity and the humanity]. Therefore whatever I say of Christ as man, I also say rightly of God, that he suffered, was crucified.

Objection: But God cannot be crucified or suffer.

Response: This is true, when he was not yet man. From eternity he has not suffered; but when he was made man, he was passible. From eternity he was not man; but now being conceived by the Holy Ghost, that is, born of the Virgin, God and man are made one person, and the same things are truly said of God and man [sunt eadem praedicata Dei et hominis]. Here the personal union is accomplished. Here the humanity and divinity are joined [Da gehet’s ineinander humanitas et divinitas]. The union holds everything together [Die unitas, die helt’s]. I confess that there are two natures, but they cannot be separated. This is accomplished by the union [unitas], which is a greater and stronger union [coniunctio] than that of soul and body, because soul and body are separated, but never the immortal and divine nature and the mortal human nature [in Christ], but they are united in one person. That is to say, Christ, the impassible Son of God, God and man, was crucified under Pontius Pilate.

Objection: Again, what is immortal cannot become mortal. God is immortal. Therefore he cannot become mortal.

Response: In philosophy, this is true.

III.
Argument: God knows all things. Christ does not know all things. Therefore Christ is not God.

 * I prove the minor premise from Mark, where Christ says that he does not know the last day.

Response: The solution is that Christ there speaks after a human manner, as he also says:  "All things have been given to me by the Father." Often he speaks of himself as if simply of God, sometimes simply as of man. The Father does not will that the human nature should have to bear divine epithets [ut humana natura debeat gerere dicta divina], despite the union, and yet sometimes [Christ] speaks of himself as of God, when he says, "The Son of Man will be crucified." To be crucified is a property of the human nature, but because there are two natures united in one person, it is attributed to both natures. Again, "Whoever believes in the Son has eternal life." There he speaks of the divine nature. Or again, "They crucified the Lord of glory," where he speaks of the property of the humanity.

IV.
Argument: A word is not a person. Christ is the Word. Therefore Christ is not a person.
 * I prove the major premise, that a word and a person are different.

Response: This is a new expression, which was formerly unheard of in the world. Christ is not a mathematical or physical word, but a divine and uncreated word, which signifies a substance and a person, because the divine Word is the divinity. Christ is the divine Word. Therefore he is the divinity, that is, a substantial person [ipsa substantia et persona]. Philosophically, "word" means a sound or an utterance, but speaking theologically, "Word" signifies the Son of God. This, Aristotle would not admit, that "Word" signifies true God [plenum Deum].

V.
Argument: Christ beseeches the Father to hear him. Therefore he is not God.
 * I prove the consequence, for he who seeks to be heard, seeks the honor of one who is superior.

Response: This is done because of the property of the human nature.

Question: It is asked, whether this proposition is true: The Son of God, the creator of heaven and earth, the eternal Word, cries out from the Cross and is a man?

Response: This is true, because what the man cries, God also cries out, and to crucify the Lord of glory is impossible according to the divinity, but it is possible according to the humanity; but because of the unity of the person, this being crucified is attributed to the divinity as well.

V [b].
Argument: If Christ were true God, of the same essence with the Father, the Scripture would not teach that he received all things from the Father. But Scripture so says. Therefore he is not true God.

I respond to the minor premise: This [pertains to] his ministry and humanity. For in divinity he is equal in power with the Father.

VI.
Argument: Everything that is born begins to be, or, everything that is born has a beginning. Christ was born. Therefore he began to be. He is a creature, and is not from eternity.

Response: I concede this, with a distinction. In philosophy this is true, but not in theology. The Son is born eternal from eternity; this is something incomprehensible. [But] this belongs to theology. For the Holy Spirit has prescribed models for us; let us walk in that cloud.

VII.
Argument: When we must speak carefully, there is most need of grammar. In theology, we must speak carefully. Therefore the Holy Spirit has his own grammar.

Response: The Holy Spirit has his own grammar. Grammar is useful everywhere, but when the subject is greater than can be comprehended by the rules of grammar and philosophy, it must be left behind. In grammar, analogy works very well: Christ is created. Therefore Christ is a creature. But in theology, nothing is more useless. Wherefore our eloquence must be restrained, and we must remain content with the patterns prescribed by the Holy Spirit. We do not depart [from grammar] without necessity, for the subject is ineffable and incomprehensible. A creature, in the old use of language, is that which the creator has created and distinguished from himself, but this meaning has no place in Christ the creature. There the creator and the creature are one and the same. Because there is an ambiguity in the term and men hearing it immediately think of a creature separate from the creator, they therefore fear to use it, but it may be sparingly used as a new term, as once Augustine spoke, moved by the greatest joy: "Is this not a marvelous mystery?  He who is the Creator, wished to be a creature." This is to be forgiven the holy Father, who was moved by surpassing joy to speak thus. He speaks, however, of the unity, not of a separation, as the grammar implies, and yet, as I have said, this kind of speech is to be used sparingly, and our joy must be restrained, lest it give birth to errors. And the Fathers are to be forgiven, because they spoke thus because of surpassing joy, wondering that the Creator was a creature. It is not permissible to use such words among the weak, because they are easily offended, but among the learned and those firmly rooted in this article, it does not matter how you speak, and I am not harmed if you say: Christ is thirst, humanity, captivity, creature.

VIII.
Argument: Your fourteenth and eighteenth propositions are contradictory. Therefore they are not to be approved.

Response: Such contradictions do not take place between equivocal terms, but between terms of the same meaning. But "creature" has a double signification.

IX.
Argument: No creature ought to be worshipped [adoranda]. Christ ought to be worshipped. Therefore Christ is not a creature.

Response: Thus Schwenkfeld argues. This is indeed one of his absurdities, and he errs with respect to the communication of attributes. The humanity joined with the divinity is worshipped; the humanity of Christ is worshipped, and not falsely, for it is inseparable from the divinity and the addition of this posessive, "of Christ," answers the objection. Thus Christ speaks in John 14. Philip asks Christ to show him the Father, because with the eyes of the flesh he sees nothing but flesh, and Christ then responds: "Have I been with you so long, etc.?  He who sees me, sees the Father." Christ says that [Philip] sees the Father, when he sees [Christ], because he sees the humanity and the divinity united in one person. Therefore he says, "Do you not know, that the Father is in me and I in the Father?" Therefore it is said that he who touches the Son of God, touches the divine nature itself. The old theologians went to astounding lengths [mirabiliter se cruciarunt] in answering this question of whether the humanity is to be worshipped, and they established three ways [species] in which the humanity may be adored: Dulia, when Peter and Paul and all the other saints are adored; hyperdulia, when the Virgin Mary is adored, and here they included the humanity of Christ, and called [this worship] hyperdulia as well; and latria, when Christ is worshipped with regard to his divinity [cum relatione et divinitate]. Christ clearly dissolves [the distinction, for] whoever worships the humanity of Christ here no longer adores a creature (for this is what is meant by the union of natures), but the Creator himself, for the unity is what is fundamental [quia fundamentum est in unitate].

X.
Argument: Every man is corrupted by original sin and has concupiscence. Christ had neither concupiscence nor original sin. Therefore he is not a man.

Response: I make a distinction with regard to the major premise. Every man is corrupted by original sin, with the exception of Christ. Every man who is not a divine Person [personaliter Deus], as is Christ, has concupiscence, but the man Christ has none, because he is a divine Person, and in conception the flesh and blood of Mary were entirely purged, so that nothing of sin remained. Therefore Isaiah says rightly, "There was no guile found in his mouth"; otherwise, every seed except for Mary's was corrupted.

XI.
Argument: If Christ is a creature only according to his humanity, and is not called a creature simpliciter, then it follows that something remains which is not united in Christ by nature [manere quod non uniatur in Christo natura], and that there is in Christ something which is not divine.

Response: There is an equivocation in the term "simpliciter." It is impossible that Christ is merely a creature according to his humanity, for this destroys the divinity. This is Schwenkfeld's objection. Christ is not a creature simpliciter. Christians indeed say that Christ according to his humanity is a creature, but they immediately add that Christ according to his divinity is the Creator, etc. Therefore the human nature is not to be spoken of apart from the divinity. The humanity is not a person, but a nature.

XI [a].
Argument: No one can dispute that flesh is a creature. Christ was made flesh. Therefore he is a creature.

Response: With respect to his humanity [ad humanitatem] Christ was made flesh.

XI [b].
Argument: Whatever is subject to death, is not God. Christ was subjected to death. Therefore he is not God.

Response: Because of the communication of attributes, this thing which is proper to the human nature is shared [commune] with the divine.

XII.
Argument: "Man" and "humanity" have the same meaning. Therefore it is rightly said that Christ is humanity.

Response: This is not conceded, but rather that Christ is man, because this is a concrete term with personal signification, whereas an abstract signifies the mode of nature, or naturally, so that therefore it is false that Christ is human nature, that is, humanity, or that Christ is humanity. Aristotle says that abstract terms refer to nature, and concrete terms to a person.

XII [a].
Argument: Whatever belongs [inest] to something, can be predicated of it. Humanity belongs to Christ. Therefore Christ is humanity.

Response: To "belong" is to inhere to a subject. Whiteness inheres to John. Therefore John is whiteness. But this does not follow in the abstract. But I concede it in the concrete: Whiteness inheres to John, therefore he is white. Humanity belongs to Christ, therefore he is a man.

XIII.
Argument: Paul says:  Christ was made a curse. Therefore by the same principle it could be said: Christ was made humanity.

Response: Rather than analogy, we must follow the guidance of the Holy Spirit, and as he himself prescribes, so we must speak. That Christ was made a curse for us, there signifies something truly concrete, that is, Christ was made a sacrifice, a victim for us.

XIV.
Argument: The manner of speaking [idioma] used by Holy Scripture must be used by us rather than any other. Scripture never says: This man created the world; God suffered. Therefore we ought not to speak thus.

Response: The question is whether certain forms of speech [formae] of the Fathers are to be retained apart from Scripture. I answer, that it is permissible to use them, when they do not disagree with Holy Scripture in meaning. For error lies not in the will, but in the meaning. When there are words which produce error, they must be avoided; but if they give no occasion for error, it does not matter if you say "a man created the world," if only the meaning is sound.

XV.
Argument: Moses says, "The Lord your God is one God." Therefore Christ cannot be true God.

Response: What Moses says, that God is one, in no way contradicts us. For we too say that there is one God, and not many, but that unity of substance and essence has three distinct persons, as the nature[s] of Christ are united in one person. When therefore it is said that "the divinity died," then it is implied that the Father too and the Holy Spirit have died. But this is not true, for only one person of the divinity, the Son, is born, dies, and suffers, etc. Therefore the divine nature, when it is take for a person, was born, suffered, died, etc., and this is true. We must therefore make a distinction. If you understand by "divine nature" the whole divinity or the unity, then the assertion is false, because Christ alone is not the whole Trinity, but only one person of the Trinity. Therefore there is only one God. Here we preach, insofar as it is possible, that these three persons are one God and one essence. But we believe that these things are incomprehensible; if they could be comprehended, there would be no need to believe them.

XVI.
Argument: Whatever consists of soul and flesh is a creature. Christ consists of a soul and flesh. Therefore he is a creature.

 * I prove the major premise from the Athanasian Creed.

Response: Christ does not consist of a soul and flesh, but of humanity and divinity. He assumed human nature, which consists of soul and flesh, and in the Creed, man must be construed with rational soul.

XVII.
Argument: There is nothing accidental in God. To assume humanity is an accident. Therefore Christ is not God.

Response: In philosophy this is true; but in theology we have our own rules. When we portray the union so that the divinity in Christ is as it were a substance, but his humanity as it were an accidental quality, like whiteness or blackness, this is not said properly or aptly, but we speak thus so that it can be understood in some way. But that unity of the two natures in one person is the greatest possible, so that they are equally predicated, and communicate their properties to the person, as if he were solely God or solely man.

XVIII.
Argument: Only God is good. Christ does not wish to be called good. Therefore Christ is not God.

 * I prove the minor premise from Matthew 19: "Why do you call me good? No one is good, but. . .," etc.

Response: Christ speaks there according to the capacity of the man asking the question:  "You say that I am good, and yet you do not believe that I am God.  Therefore you do not rightly call me good." Or thus: Christ wished to speak according to his humanity.

XIX.
Argument: Propositions 15 and 16 are contradictory. Therefore they cannot be true.

Response: The Fathers sometimes erred [labantur] in judgment, and sometimes speak correctly. Therefore we must not change them everywhere. Thus Bernard sometimes spoke very ineptly and improperly, as if he were a heretic. But when a serious matter was at stake, and he was speaking with God, then [as if] he were Peter or Paul himself. therefore the Fathers are to be imitated where they have spoken and thought rightly, but where they have spoken or even thought improperly, they are to be tolerated and properly interpreted, as the papists do who force even [the Fathers] to come to their opinion.

XX.
Argument: The same thing cannot be predicated of God and man. Therefore, etc.

Response: This is a philosophical argument. There is no relation between the creature and the Creator, between the finite and the infinite. But we not only establish a relation, but a union of the finite and the infinite. Aristotle, if he had heard or read this, would never have been made a Christian, for he would not have conceded this proposition, that the same relation belongs to the finite and the infinite.

XXI.
Argument: If it is rightly said that Christ is thirsty and dead, it is also rightly said that he is thirst and death, for it is said in the Psalm itself: "I am a worm, and scorn, and despite," and not "I am scorned." Therefore by the same principle, it seems that it should be said that Christ is death and thirst.

Response: Analogy or etymology does not hold here. And as I have said, we must retain the patterns prescribed by the Holy Spirit, especially among the weak; among strong Christians, it does not matter how you speak, as before me, since I am not still being taught such things, being already acquainted with them. [But] among those who are to be taught, we must refrain. As long as the heart does not err, the tongue will not err; our stammering has been a roved by the Holy Spirit. But among those who are to be taught, we must speak modestly, properly, and aptly.

XXII.
Argument: If that which is worse is said of Christ, so too must that which is better be said. Death is better than sin. Therefore if Christ is called sin, he is even better called death.

Response: The analogy does not hold. Those who teach are given the task of teaching aptly, properly, and clearly, so that they may capture their hearers, who are otherwise offended. He who knew no sin was made sin, that is, captivity, damnation.

XXIII.
Argument: The Nicene Creed is undoubtedly [maxime] catholic. The opinion of Schwenkfeld agrees with the Nicene Creed. Therefore it is true.

 * I prove the minor premise, because it is said [in the Creed] that Christ is begotten, not made. But every creature is made.  Therefore Christ is not a creature.

Response: "Begotten" refers to the divinity, but Schwenkfeld confounds the two natures.

XXIV.
Argument: Paul says that Christ was found in condition [habitu] as a man. Therefore the humanity in Christ is an accident; that is, Christ is man accidentally, and not by virtue of substance.

Response: The Greek term is schema, that is, figure, form, or bearing, that is, "condition" signifies that he walked and lay down like any other man. Paul wishes to demonstrate that he was a true man, who suffered and spoke as a man. Propositions concerning the accidents of man and God in Christ are immodest [non sunt castae], therefore they are to be spoken of sparingly, and we must take our stand on the unity. This is so closely joined that in the whole nature of things no similar example can be given. The closest similarity is the nature of man. For as this consists of two distinct parts, that is, soul and flesh, thus the person of Christ consists of two natures united, although the soul is at last separated from the flesh when man dies.

XXV.
Argument: (M. Vitus Amerbach)  I ask the reason why Christ is man and not humanity.

Response: Because "man" includes the person, and "humanity" does not.

 * I now argue the point thus: Man is humanity; either they are synonyms or they are not.  If they are synonyms, the seventh proposition is false, whence the proposition that Christ is humanity is condemned, even though it is said that Christ is divinity.

[Again:] If it is not false, then the eighth proposition is invalid: "Though otherwise man and humanity are synonyms, like God and divinity."

Response: Synonyms are predicated interchangeably of the same substance, for such is the nature of synonyms. If they are synonyms, they must be predicated of the same subject. They are called synonyms because they signify the same thing simpliciter in all respects. Thus man and humanity are synonyms simpliciter in philosophy, but in theology they are not.

Against the solution: Synonyms are of the same nature and signification. Man and humanity are not of the same nature. Therefore they are not synonyms. You [vos] have said that humanity signifies only a form in matter, not joined with a subject. But man is a subject. Therefore they are different.

Response: In philosophy they are synonyms simpliciter, having the same signification, but not in theology, for here is one man to whom no one is similar. Here man in the concrete signifies human nature, because he is a person, but humanity does not signify a person. Therefore [these terms] differ in theology and philosophy. If it were said that the divine person assumed a man, that is, a human person, it would follow that there were two persons, but this is intolerable. Therefore it is rightly said that the Word assumed human nature.

[Again:] "Thou tookest man upon thee to deliver him."

Response: Man is taken in an abstract sense. "Man," when it is said of Christ, is a personal name, now that the person has assumed the person.

XXVI.
Argument: I ask whether a holy thing and holiness, or a good thing and goodness, are the same?

Response: There is a great difference between concrete terms and abstract ones, as between a white thing and whiteness, between substance and accident. These are not synonyms, for a accident can either be present or absent.

On the contrary: Both a good thing and goodness are accidents, as are a man and humanity.

Response: As far as accidents are concerned, they are not synonymous.

XXVII.

 * Against [propositions] 11 and 12:

"Thou tookest man upon thee to deliver him." But strictly speaking [proprie], God either assumed human nature or humanity or man. But strictly speaking he did not assume humanity or human nature. Therefore he assumed a man, because humanity is an abstract and signifies only a form, but human nature signifies matter, that is, flesh and soul. But God strictly speaking did not assume flesh and a soul, nor flesh alone or a soul alone, but a man, which is the general and most a ropriate term in this matter. Therefore I say that he assumed a whole man [integrum hominem], not simply humanity or a part thereof.

Response: When humanity is used, as above, as a philosophical term, it is the same as man, but in theology it does not signify a person, as "man" signifies a person, that is, a particular person, [if we were to say] that the Son of God assumed a man. If it were said that the divine person assumed a human nature, that is, a person, then there would be two persons, which we do not concede. For there are not two substances, etc.

 * "Thou tookest man upon thee to deliver him." Here everyone answers that man is here taken abstractly, that is, as "humanity," which is not subsistent, but assumed.  "Man," however, does not signify something assumed, but an existing person.  Therefore "man" has a different signification with regard to Christ.  Christ is a man, that is, the divine person which assumed human nature, for the person did not assume a person.  In philosophy there is no difference between man and the union of a soul and flesh, but in theology there is a great difference.  For in Christ, humanity signifies the assumed, not subsistent, human nature.  But "man" signifies a subsistent person.

XXVIII.
Argument: Just as it is rightly said that Christ is created, so too it is rightly said that Christ is a creature. "Creature" [creatura] does not signify an action, but a thing produced by a creator, but it is nevertheless an abstract term.

Response: We concede to the Fathers, after their fashion, that christ is called a creature; but because among the untrained "creature" always signifies something separated from the Creator, this is not well done. But when we call Christ a creature, we understand the divine person which assumed human nature. Nor is the creature in Christ the subject [suppositum], not even according to philosophy, but something assumed. Christ, being created, is not separated from God. Therefore he is not a creature in the old sense of the word.

XXIX.
Argument: Two contraries cannot exist in the same subject [duo disparata non possunt esse in eodem]. God and man are contraries. Therefore they cannot exist in the same subject.

Response: Christ was corruptible and mortal, because he died, but not according to his birth [secundum generationem]. Aristotle did not understand the corruption of human nature, wherefore he attributed our corruption to the elements, as in other created things. But the fall of Adam is the cause of death. For Adam was composed of the elements, [and yet] intended [conditus] for eternal life. If he had not fallen, there would have been a perpetual harmony of the elements and no corruption.

XXX.
Argument: Athanasius says:  Such as is the Father, such is the Son. Therefore Christ is not created.

Response: He speaks of the divinity of Christ, [but] the Word, which is God, became incarnate.

XXX [a].
Again: Contraries must be eliminated [contraria sunt e medio tollenda]. Your third and sixth propositions are clearly contrary. The third states that those things which pertain to man are rightly said of God, and those things which pertain to God, of man. The sixth, that it is not permissible to say that since Christ is thirsty, a slave, dead, therefore he is thirst, slavery, death. Therefore these propositions must be eliminated.

Response: In the third proposition we are speaking in the concrete, but in the sixth in the abstract.

Again: This is the catholic faith, that we confess one Lord Jesus Christ, true God and man. Therefore, neither God the Father nor the Holy Spirit, since "one" excludes both God the Father and the Holy Spirit.

Response: One God, and threefold [trinum] in Trinity, nor do we deny the Trinity. For there is one God, but three persons, nor yet are they separated from each other.

Again: The Word was made flesh. But flesh is a creature. Therefore the Word, that is, God, was made a creature.

Response: John says concerning Christ that he was made flesh, that is, that he assumed human nature, while otherwise he remained God.

Again: They think rightly who say that Christ is [not] a creature according to his humanity, as Schwenkfeld.

Response: They are all wrong who call Christ a creature _simpliciter_.

XXXI.
Argument: God is a spirit. Christ is not a spirit. Therefore, etc.

Response: In Christ there are two natures:  the divine, which is spirit, and the human, which has flesh and bones. Christ according to his humanity is a creature, and Christ according to his divinity is God, so closely joined together [coniunctissime etiam] that the two natures are one person.

XXXII.
Argument: He who makes something cannot be the same as the thing which he makes. Christ is the Creator. Therefore he cannot be a creature.

Response: We join the Creator and the creature in the unity of the person. The worthless Schwenkfeld [reproaches] us for teaching that Christ is only a creature. He wants to be holy when he stirs up that sect and says that Christ in glory is not a man. Therefore neither will he be God or worthy of worship. He means a pure creature apart from the divinity. He reproaches good men without naming them. None say, as you claim, that Christ is purely a creature, but a serpent is easily hidden.

XXXIII.
Argument: The divinity in Christ felt no pain. God is divinity. Therefore he did not feel pain on the Cross, and consequently he did not suffer.

Response: [Because of] the communication of attributes, those things which Christ suffered are attributed also to God, because they are one. Our adversaries want to divide the unity of the person, but we will [not] concede. We join or unite the distinct natures in one person.

XXXIII [a].
Argument: Whatever is subject to death, is not God. Christ was subjected to death. Therefore Christ is not God.

Response: [First,] there is the communication of attributes, and the argument is a philosophical one.

[Again:] Scripture does not say:  "This man created the world; God suffered." Therefore these expressions are not to be used.

Response: Error resides not in words, but in the sense; although Scripture does not put forward these words, it nevertheless has the same sense.

XXXIII [b].
Argument: No creature creates. Christ is a creature.

Response: [This is true] understanding creature in a philosophical way. But creature is said of Christ theologically. Christ is the Creator.

Again: Paul [writes] to the Galatians:  God sent his Son, born of a woman. Therefore God is a creature.

Response: The argument is true according to the humanity.

End [of the Disputation on the Divinity and Humanity of Christ]

title: On the Divinity and Humanity of Christ


text: 1911 Encyclopædia Britannica/Diastyle

title: 1911 Encyclopædia Britannica/Diastyle


text: Category:1540 works

title: Category:1540 works


text:
Habich v. Folger

ERROR to the Supreme Judicial Court of Massachusetts; the case being thus:The Revised Statutes of New York authorize the courts of the State, upon a corporation's mismanaging its affairs by doing certain things specified by the statutes, and plainly inconsistent with corporate duty, to declare it, on the petition of a corporator, dissolved, and to appoint receivers to take charge of and to distribute its assets.

In professed execution of the power thus given, the Supreme Court of New York did, on the 2d of February, 1866, declare that the Columbian Insurance Company, a corporation of the State, had mismanaged its affairs, and the court by its judgment declared the said corporation 'dissolved' accordingly. The court at the same time appointed two citizens of New York, George Osgood and Cyrus Curtis, receivers of its assets.

In this state of things one Folger, resident in Massachusetts, a creditor of the corporation, sued the corporation in one of the Superior Courts of Massachusetts, in the form of suit known in that State as 'trustee process;' a form apparently like that known in some other States as foreign attachment; a suit in which a writ issues against the defendant with a clause directing the sheriff to seize or attach his property, or whatever debts may be due to him, in the hands of persons named, and to summon them into court; these persons in Massachusetts being designated as 'trustees,' as elsewhere, sometimes, 'garnishees.' The trustees in the present suit were a certain Habich and others.

The record of that case showed the following facts, viz.: that the summons by which the suit was commenced was served on the insurance company in Massachusetts by levying on a chip as its property on the 18th of June, 1866 (a proceeding of form usual in the 'trustee process'); that on the first Tuesday of July the corporation entered its appearance by its attorneys, and filed an affidavit of merits; that on the 30th of July it filed an answer (signed by Joseph Nickerson as its attorney) denying that it was a corporation, and denying the material allegations of the complaint; that the trustees answered admitting a debt; that on the 3d of October, 1866, Osgood and Curtis (already mentioned as having been appointed by the court in New York, on its judgment of dissolution, receivers of the corporation) made an adverse claim, and filed a petition alleging that they were the receivers of the company, setting forth the manner of their appointment, alleging that all the credits, effects, and assets of the said company were vested in them, claiming the effects and credits in the hands of the said supposed 'trustees,' and praying to be admitted as parties to the action, this petition being signed by Edward Bangs as attorney; that on the 19th of October their prayer was granted, and that afterwards, in October, 1867, a case agreed on was presented to the court for its judgment, the trustee to be charged on his answer and the plaintiff to have judgment for the funds in the trustees' hands, if in the opinion of the court a judgment could be rendered against the corporation; but if the receivers now claiming had valid title to the funds as against the plaintiff, notwithstanding the admitted fact of a debt due him by the company, then judgment to be entered for the receivers or claimants.

There were thus before the court, the 'trustees,' the Columbian Insurance Company, by its attorney Bangs, and the receivers, by their attorney Nickerson; all, in short, who were in any manner interested as defendants in the transaction, or entitled to appear in the action.

At the January Term, 1869, the court ordered the following entry to be made, viz.:

'Trustees charged. Judgment for the plaintiff.

By the court:

G. C. WILDE, Clerk.'

At the following April Term a consent was filed by Mr. Bangs, attorney of the defendant, that the judgment be entered for the plaintiff for the sum of $3753, damages and costs, dated June 10th, 1869. On the 12th of June is made the following entry:

'Claimants withdraw.

E. BANGS, Attorney.

J. C. DODGE, Attorney for plaintiff.'

(Filed June 12, 1869.)

On the 14th of June a formal judgment for the amount was rendered for the plaintiff, reciting that the trustees were charged upon their answer and that the claimants withdrew.

Upon this judgment Folger issued a scire facias, calling on the trustees to show why he, Folger, should not have execution against them. Habich and the other defendants (not denying their debt) pleaded—

That the judgment recovered by the plaintiff against the insurance company was 'invalid,' for that before the day on which the judgment was alleged to have been recovered, to wit, &c., the company had been dissolved by a decree of the Supreme Court of the State of New York, a copy whereof, duly authenticated, the plea alleged that the defendant now exhibited.

That by the Constitution of the United States it is provided that full faith and credit shall be given in each State to the judicial proceedings of every other State, &c.

The Supreme Court of Massachusetts held, upon an examination of the proceedings in the Supreme Court of New York, and of the statutes on which they purported to proceed, that the judgment of the said Supreme Court, declaring the corporation dissolved, was in excess of the jurisdiction of the court and therefore entitled to no faith and credit in Massachusetts as a judicial proceeding; and accordingly gave judgment for the plaintiff, the original attaching creditor. From that judgment the case was brought here by Habich and the others, the debtor trustees.

The only record which, strictly speaking, was brought up here was the record of this suit on the scire facias; and the argument was chiefly on that; but reference having been made all along on both sides to the record of the suit in which the judgment on which the scire facias issued was rendered, a certified copy of the record of that original suit was handed to the court at the close of the argument, with the consent of both sides that it should be considered by it as part of the present case.

Mr. Dudley Field, for the plaintiff in error:

The only errors relied on are:

That the court erred in holding that the Columbian Insurance Company was not dissolved, and

That the company being dissolved, it had no right to enter judgment against it or the trustees.

The courts of Massachusetts had not the right to question the validity of the judgment of dissolution rendered by the Supreme Court of New York. That court had jurisdiction over the parties and the cause, and the record is, therefore, conclusive in Massachusetts.

In New York this judgment could not have been inquired into collaterally.

The Supreme Court of New York was authorized to declare the corporation dissolved.

[The learned counsel here went into an examination of the statutes of New York, and of the proceedings of the Supreme Court of that State dissolving the corporation, and contended that the dissolution was strictly according to the statute.]

If the corporation was dissolved no action could be maintained against it. A corporation dissolved is like to a person who is dead.

Mr. J. C. Dodge, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Habich v. Folger


text: Talk:Habich v. Folger

title: Talk:Habich v. Folger


text:
Habich v. Folger/Opinion of the Court

The record of the scire facias proceedings upon which the case was argued presents some questions requiring careful examination.

If we correctly apprehend the position of the case as stated in the record in the suit in which judgment was rendered,-and which was handed to the court at the close of the argument, with the consent of both sides that it should be considered by us, there can be no difficulty in this case in reaching a correct conclusion.

In his first point the plaintiff in error says: 'The only errors relied on are that the court erred in holding that the Columbian Insurance Company was not dissolved, and the company being dissolved, it had no right to enter judgment against it or the trustees.'

The indedtedness of the plaintiffs in error and their liability to pay the amount of their notes to the defendant in error, as adjudged by the Massachusetts court, are thus admitted. But it is insisted that in reaching its conclusion, and as a part of the process of reasoning by which it was reached, the Supreme Court of Massachusetts erroneously held that the judgment of the New York court that the insurance company was dissolved was without authority and was void.

If this be conceded, of what importance is it to the plaintiffs? How does it concern them whether the judgment dissolving the insurance company was erroneous or whether it was correct? All they have to do is to pay the amount of their notes. This it is conceded that they are bound to do, and this the copy of the record in which the judgment was rendered shows that the insurance company and its receivers consented that it be adjudged they should and must do. Payment under such circumstances is a complete protection to them against a claim for repayment by the receivers upon a suit brought in the New York courts equally as in the courts of Massachusetts.

The copy of the record referred to shows that the trustees (the present plaintiffs in error)-the Columbian Insurance Company, by its attorney, and the receivers, by their attorney, composing all who in any manner were interested in the transaction or entitled to appear in the action-were before the court; and that on the 14th of June a formal judgment for the amount is rendered for the plaintiff, reciting that the trustees are charged upon their answer, and that the claimants withdrew.

It is impossible to present the case of a judgment which would be more conclusive upon the corporation, and upon the receivers, than the case presented. They were parties in form and in fact. They contested the claim as far as contest was available, and when farther contest was unavailing the attorney for the receivers consented to the entry of the judgment, in terms withdrew their opposition, and a formal judgment was entered.

If the corporation was in existence, so that it could appear in a suit, it was concluded by the appearance of its attorney. If it was not in existence, the receivers, representing the corporation and its creditors, were bound by the appearance of their attorneys. In either event the result is the same.

This judgment is binding upon the corporation and the receivers, and in the case of a suit brought by either of them against the trustees, would be an indisputable bar to their right of recovery, and this in any State in the Union. The appearance by authorized attorneys was equivalent to a personal service of process upon those parties.

Without intimating for a moment that an error was made by the Supreme Court of Massachusetts, it is too plain for discussion that it is immaterial to the plaintiff whether there was error or not.

It is a point in which they are not concerned. They have but to pay their debt, adjudged to be due in a proceeding which protects them against all the world.

This being the only allegation of error, the judgment must be

AFFIRMED.

title: Habich v. Folger/Opinion of the Court


text: Talk:Habich v. Folger/Opinion of the Court


text: Page:The Celtic Review volume 3.djvu/8

title: Page:The Celtic Review volume 3.djvu/8


text:
Creighton v. Kerr

ERROR to the Supreme Court of the Territory of Colorado; the case being thus:

The statutes of Colorado relating to attachments enact:

'SECTION 54. Whenever a plaintiff in any civil action pending in any court of record in this Territory shall file in the office of the clerk of the court wherein such cause is pending, an affidavit showing that the defendant resides out of this Territory, it shall be the duty of the clerk to cause a notice to be published in some newspaper, published in the county in which such cause is pending, for four successive weeks prior to the next term of the court, which notice shall set forth and state the title to the court in which such action is pending, the nature of the action, and, if such action shall be brought to recover money, the amount claimed by the plaintiff, the names of the parties, and the time when, and the place where, the next term of court in which such action is pending will be held, and that if the defendants shall fail to appear at the term of court, and plead or demur, judgment shall be entered by default.

'SECTION 55. It shall be the duty of the plaintiff, in all cases in which such notice shall be published, in addition to such publication,. . . if upon diligent inquiry the place where the defendant may then be found can be ascertained, to send to such defendant, and to each of them, by mail, a true copy of such notice, properly addressed to such defendant, at the post-office nearest to the place where such defendant may be found, at least thirty days prior to the term of court mentioned in such notice.'

This statute being in force, Kerr and another, in May, 1870, sued Creighton in the District Court for Arapahoe County, in Colorado Territory, in attachment. They filed an affidavit, alleging Creighton's non-residence, and that he owed them $5563.

The sheriff returned that he had attached certain shares in the Colorado National Bank, belonging to Creighton, who was not found.

The plaintiffs then filed their declaration, claiming $8000.

No notice of these proceedings was published as required by the statutes.

Subsequently an entry was made in the court as follows:

'Now come the said plaintiffs, by Alfred Sayre, Esq., their attorney, and the said defendant, by Messrs. Charles and Elbert, his attorneys, also comes, and thereupon, on motion of said plaintiff's attorney, the said defendant was ruled to plead ten days from this date.'

On the 19th of October the following:

'And now on this day come Messrs. Charles and Elbert and withdraw their appearance as attorneys for the said defendant, without prejudice to the plaintiff.'

On the 27th of October a judgment was entered, reciting the appearance, its withdrawal 'by leave of the court and without prejudice to said plaintiffs;' and the defendant's failure to plead according to the rule. Damages were assessed by a jury at $12,244. A remittitur was entered for $4244, and judgment taken for $8000. The Supreme Court affirmed this judgment, and the defendant brought the case here.

Mr. J. M. Woolworth, for the plaintiff in error:

I. If we lay out of view the appearance which Charles and Elbert entered for Creighton, it is obvious that this judgment cannot be sustained for a moment, because—

1. No notice of the proceedings was published, nor mailed to the defendant, both of which things the statute render necessary. If neglected, a judgment may not be collaterally avoided, but on error it must be reversed.

2. The writ of attachment by which the suit was brought is for only $5563, and the affidavit on which the writ is issued alleged only that sum to be due. It was not competent for the court to render a judgment for more than was specified in the writ.

II. The fact that Mr. Creighton appeared generally in the action, does not affect the case.

Had the withdrawal of the appearance been general, and unqualified by the words 'without prejudice to the plaintiff,' the case would have stood as if no appearance had been entered. The words 'without prejudice,' do not retain to the plaintiff the advantage of the appearance. To give to them that effect would make of no effect the withdrawal. The utmost meaning that can be attributed to them is, that the progress of the cause, and all rights of the plaintiff not resting on the appearance, should remain unaffected by the withdrawal.

Mr. R. T. Merrick, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Creighton v. Kerr


text: Talk:Creighton v. Kerr

title: Talk:Creighton v. Kerr


text:
Creighton v. Kerr/Opinion of the Court

In the view we take of this case it is not necessary to examine the alleged irregularities in the conduct of the suit or the alleged defects in its commencement. Without intending, in fact, to decide those points, it may be assumed, as is argued by the plaintiff in error, that there was not that notice of the proceedings required by the laws of Colorado. It may be assumed also that in making a claim of damages for $5563 only in the writ of attachment, and in making a claim for $8000 in the declaration, an error was committed. It is insisted that in consequence of this claim in the writ the party would have been justified in assuming that no judgment for a larger amount would be taken against him; and that great injustice might have been done to him. We do not find that the respectable counsel claims that any injustice has actually been done.

But we are of the opinion that there has been no opportunity for the commission of injustice. We find the facts in this respect to be as follows:

After the execution of the writ of attachment the plaintiff filed his declaration claiming damages to the amount of $8000, giving the items of the claim. After this time, viz., on the 12th day of October, the defendant appeared in the suit by his counsel, Messrs. Charles and Elbert. The appearance was general, and, 'thereupon,' as the record says, on motion of the plaintiff's attorney, the defendant was ruled to plead in ten days.

Within the ten days, in which an order to plead had been entered, upon, or upon the faith of, or in consequence of their appearance, the attorneys came into court and withdrew their appearance as attorneys for the defendant, without 'prejudice to the plaintiff.' Leave to withdraw was granted upon this condition. Assuming the rule to plead to have been effectual, as it manifestly would have been had there been no withdrawal, and assuming that a failure to comply therewith placed the defendant in default, and entitled the plaintiff to a judgment by nil dicit, as would manifestly have been the case had there been no withdrawal, the plaintiff and the court held the action to be undefended, and a judgment was entered for the plaintiff, with damages to be assessed by a jury to be impanelled. The jury received evidence upon this subject, and under instructions from the court rendered a verdict for $12,244. The evidence is not returned in the record, as there was no occasion that it should be, and there is no presumption of law, or reason in fact, to suppose that the verdict was for a larger sum than was justly due to the plaintiff. For all in excess of $8000 a remission was made, and judgment was entered for that sum.

The leave to withdraw the appearance of the defendant's attorneys was given upon the condition that it should be 'without prejudice to the plaintiff.' This meant that the position of the plaintiff was not to be unfavorably affected by the act of withdrawal. All his rights were to remain as they then stood.

A general appearance waives all question of the service of process. It is equivalent to a personal service. The question of jurisdiction only is saved. If there was error in the commencement of this action by reason of a defective notice or otherwise, it was cured by the appearance.

This advantage, among others, was not to be impaired by the withdrawal of the appearance.

A personal appearance by the defendant, through his attorneys, converted into a personal suit that which was before a proceeding in rem. This result had been worked when the appearance was entered, and stood in full effect when the withdrawal was made. Any judgment that he could then obtain against the defendant was binding upon the defendant, indisputable and valid against him and his property wherever he or it could be found. To reconstruct this judgment and by means of a withdrawal of the appearance make it a judgment to be enforced upon certain shares of bank stock only, and liable to be re-examined as to that upon the personal application of the defendant, would produce an extremely unfavorable effect upon the plaintiff's position. It would be a 'prejudice' to him, and hence it cannot be permitted.

A rule to plead had been served upon the attorneys. This remained in force. At the expiration of the time to plead the action was undefended, and a right to an interlocutory judgment at once arose. To take away this right would be an injury to the plaintiff. Hence under the condition of no prejudice it remained good to him.

The appearance of the defendant may remain, although the attorneys, by whom it was entered, have withdrawn. Its effect cannot be annulled by such withdrawal. The appearance gives rights and benefits in the conduct of a suit, to destroy which by a withdrawal would work great injustice to the other party. Such was the case of Eldred v. Bank, where the defendant withdrew his plea, claiming that the withdrawal left the case as though it had never been filed, and that, never having been served with process, he was not liable to a personal judgment. The court say: 'We do not agree to this proposition. The filing of the plea was both an appearance and a defence. The withdrawal of the plea could not have the effect of withdrawing the appearance of the defendant, and requiring the plaintiff to take steps to bring him again within the jurisdiction of the court. . . . He was not by the withdrawal of the plea out of court.'

None of the cases cited contain anything in hostility to these views. As confirming them see Lawrence v. Yeatman, Rowley v. Berrian, Thompson v. Turner.

Second. We do not intend by the argument thus advanced to intimate that the result would have been different had the appearance been withdrawn unconditionally, as was the case in Eldred v. Bank.

The authorities upon this subject of a voluntary appearance are cited in the case of Habich v. Folger, recently decided in this court, and it is not necessary to do more than to refer to them as there collected.

In the present case there was not a simple withdrawal, but it was allowed upon the condition that it should be without prejudice to the position of the plaintiff. We decide the case upon the facts as they are presented, and nothing would be gained by attampting to go beyond them.

JUDGMENT AFFIRMED.

Mr. Justice BRADLEY did not sit during the argument, and took no part in this decision.

title: Creighton v. Kerr/Opinion of the Court


text: Talk:Creighton v. Kerr/Opinion of the Court


text:
McQuiddy v. Ware

APPEAL from the Circuit Court for the Eastern District of Missouri; the case being thus:

At the beginning of the late rebellion, which broke out in 1861, McQuiddy, a resident of Nodaway County, missouri, and owning a farm there, voluntarily entered the service of the Confederate States under General Sterling Price, and followed the fortunes of that officer and his army when they left Missouri. At this time there were two mortgages on different parts of his farm, or instruments of writing which the holders of them asserted to be mortgages. These were due, and the holders in May, 1862, and November, 1863, procured a decree of foreclosure of them. This proceeding was made in professed pursuance of a statute of Missouri, regulating the subject of the foreclosure of mortgages, and which authorizes an order of publication instead of an actual service when the mortgagee alleges and the court in which the foreclosure is applied for, or its clerk, is satisfied 'that the place of residence of the defendant is unknown.' The foreclosures, therefore, so far as the records of them showed, were made on constructive notices, and on allegations such as above stated.

McQuiddy also owed money, when he left Missouri, to a third creditor; this debt being by a note unsecured. This creditor proceeded to get his debt by a proceeding in attachment, and in professed pursuance of another statute of Missouri, which authorizes a writ in that sort of proceeding to issue whenever the plaintiff files his petition setting forth his cause of action, with an affidavit that he has good reason to believe, and does believe, that the defendant has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him. Such affidavit was made by the unsecured creditor, and under it, in November, 1863, judgment was got; a judgment, of course, like the other, on a constructive notice, so far at least as the record of the proceeding showed.

On these three different judgments all parts of his farm were sold; a sale of one part being in 1863, and of the others in 1864, in sales following at no great intervals the dates of the judgments.

By the Revised Statutes of Missouri a party against whom judgment has been rendered on constructive notice simply, may come in at any time within three years afterwards and file a petition for review.

In this state of things and of law, McQuiddy, in July, 1871, filed his bill in the court below, against the purchasers of the farm (one Ware, and others), and against their vendees, to set aside the sales and to have possession again of the property sold.

His bill attacked the jurisdiction of the court in all three cases alike.

He averred that the orders of publication were based on false statements, and that in one of the cases, proceeded in as in the case of a mortgage, the instrument proceeded on was not a mortgage, and that the proceeding was in truth a proceeding to enforce a lien on lands, instead of a suit to foreclose a mortgage, and required an affidavit of non-residence to authorize the giving of constructive notice; and that jurisdiction could not be acquired on affidavit of unknown residence, the sort of affidavit made in the case. He alleged further that his departure from the State was for a temporary purpose and with an intention of soon returning; that he left his wife at his domicile, and that copies of writs could have been served on her, and that he neither absconded nor absented himself from his usual place of abode in the sense of the statute, nor was his residence unknown; that all these facts were known to the parties in interest, including the respondents, who either purchased the property at the sales, or derived title from the person who did purchase.

By way of excuse for his want of diligence in his own affairs, he alleged that the state of feeling was such against him in Nodaway County, on account of the part he took in the rebellion, that he could not with any sort of safety return to the county, and that in 1863 he removed his family to Tennessee, where he had since continued to reside. He also alleged, in continuation of this excuse, that being absent from the State, though a resident of the county when the proceedings were instituted to deprive him of his rights, and no notice of the same having been given to any member of his family he had not a day in court given him, and was in ignorance of what was done until recently; and that as soon as practicable after ascertaining that the said illegal proceedings were had, he had taken steps to assert his rights.

The only charge of fraud in connection with the transactions disclosed in the bill related to the falsity of the affidavits on which the proceedings were based.

The complainant did not make any tender of money at all; but he prayed that an account might be taken of what was due on the instruments of debt; that an account might be taken also of the rents and profits received by the vendees of the persons who had bought at the judicial sale, and that he, the complainant, might be allowed to redeem on payment of any balance.

The defendants demurred, and the Circuit Court sustained the demurrer. A decree having gone accordingly, McQuiddy brought the case here for review.

Mr. W. H. Letcher, for the appellant, cited numerous statutes of the State of Missouri, and decisions of the Supereme Court of the State upon them, to show that the proceedings were not in proper form, and that upon the facts alleged and which, of course, the demurrer admitted, no jurisdiction existed, and that the sales of necessity were void.

Mr. G. P. Strony, contra, contended that the statutes applicable to the case case had been strictly pursued; and, moreover, that the case was void of equity.

Mr. Justice DAVIS delivered the opinion of the court.

title: McQuiddy v. Ware


text: Talk:McQuiddy v. Ware

title: Talk:McQuiddy v. Ware


text:
McQuiddy v. Ware/Opinion of the Court

In the view we take of this case we are not required to wade through the various statutes of Missouri, and the decisions of the courts of the State, in order to determine whether or not the proceedings in question are valid. The complainant is not, in our opinion, in a position to invoke the aid of a court of equity to decide that question. The bill presents the case of a man who chose to neglect his private interests for the purpose of devoting his time to the destruction of the government, complaining that his creditors enforced the collection of their debts on a wrong theory of his status, in consequence of entering the service of the enemy. There is no pretence that the debts were not meritorious, or that the judgments were entered for a larger amount than he owed. The real ground of complaint is that he was not an absent or absconding debtor, or a person whose residence was unknown, and was not, therefore, subject to the proceedings which were instituted against him. Whether this be so or not it is easy enough to see in the anomalous condition of affairs existing at the time in Missouri, that creditors might honestly suppose that an individual leaving his State to destroy the government under which his rights of property were acquired, did not intend to return to it, and proceed to collect their debts under that supposition. The inquiry is whether a party acting in this way has stated such a case as entitled him to equitable relief, because his creditors, who ought to have been provided for before he left, mistook the condition he occupied, and treated him as a person who had permanently abandoned his home.

There is no averment that he did not have actual notice of the proceedings against him in time to protect his rights. And it is fair to infer, in the absence of such an averment, that it could not be truthfully made. It is difficult to suppose, when he moved his family to Tennessee, that he did not communicate with friends in Missouri who were acquainted with the true state of his affairs.

Besides, if the proceedings against him were irregular, why did he not seek his remedy under the statutes of Missouri, which concede to the party against whom judgment has been rendered on constructive notice only, the right to come in at any time within three years and file his petition for review. If this had been done, and the State court had permitted the cases to be reopened for the reasons set forth in the bill, his remedy would have been complete, as the bill charges the purchasers at the sale with notice of all irregularities. It cannot be said that there was no opportunity of doing this, for the earliest judgment was in May, 1862, and both the others in November, 1863, and the war was substantially over in May, 1865. There is no averment of the want of thid opportunity, nor is the absence of it aided by the general allegation, without specification of time or circumstance, that he could not with safety return to Nodaway County on account of existing prejudices. This might be true, and yet the opening of the judgments obtained by an attorney, as his personal presence was not required for that purpose. It were easy enough before the three years expired to communicate with St. Louis by letter, or even to go there, and it is very certain that he could not have been under any apprehension while there of being disturbed in the assertion of his legal rights.

But if the proceedings, instead of being irregular and voidable, are null and void, as they are characterized in the bill, the remedy at law is complete, for there is in such a condition of things nothing in the way of the successful maintenance of an action of ejectment, which will result not only in the restoration of the lands, but also their rents and profits.

Apart from all this, the maxim that he who seeks equity must do equity in the transaction in respect to which relief is sought, has not been observed by this complainant. While admitting his indebtedness, and that it has existed for ten years or more, he does not make a tender in court of what is justly due, although he is asking the court to set aside the proceedings by which this indebtedness was satisfied, on the ground of their absolute nullity. The willingness to pay what is found to be due on the adjustment of the accounts for rents and profits is not the sort of offer required of a person in the situation of this complainant.

Moreover, there has been an utter lack of personal diligence, which is required in such a case as this in order to bring into activity the powers of a court of equity. Equity always refuses to interfere where there has been gross laches in the prosecution of rights. There is no artificial rule on such a subject, but each case as it arises must be determined by its own particular circumstances. These proceedings were begun early in the war, and yet no move is made to disturb them until July, 1871, more than six years after hostilities ceased. Why this delay? The complainant says he was in ignorance of them until recently, and that as soon as he ascertained them he took steps to assert his rights. Such a general allegation will not suffice to provoke the interposition of a court of equity. It will not do to remain wilfully ignorant of a thing readily ascertainable. There has been free and uninterrupted communication between Tennessee and Missouri since the war closed, and the courts everywhere accessible for the prosecution of any cause of action. Besides, in the very nature of things, the complainant must have known soon after it occurred that an improved farm, once occupied by him, was in the possession of adverse claimants. This was notice sufficient to put him on inquiry, and this inquiry would have resulted in ascertaining all the facts stated in the bill. There is no reason given for the delay, nor any facts and circumstances on which any satisfactory excuse can be predicated.

Here, then, is the case of a party engaging in the rebellion without provision for his debts, to which there was no defence, asking a court of equity, after the lapse of many years without sufficient excuse for the delay, to interfere in his behalf because his creditors adopted the wrong methods for the enforcement of their claims against him. And this, too, without any specific charge of fraud, except in the matter of the affidavits on which the proceedings were founded.

Such a charge, under the dircumstances, is too weak and unsatisfactory to relieve the complainant from the consequences of his own folly.

In any aspect of the case we think the demurrer was properly sustained, and the decree of the circuit Court dismissing the bill is therefore

AFFIRMED.

title: McQuiddy v. Ware/Opinion of the Court


text: Talk:McQuiddy v. Ware/Opinion of the Court


text:
Humaston v. American Telegraph Company

APPEAL from the Circuit Court for the Southern District of New York; the case being thus:

Humaston having invented certain instruments for expediting the transmission and reception of messages by telegraph, and especially for perforating paper for the purpose of such messages, which inventions were patented, and having also, as he alleged, discovered a process by which paper could be chemically prepared, so as to be sensitive to the electric current, and by which its value would be greatly enhanced (a process which he kept secret), entered in April, 1861, along with one Lefferts, who had some interest in the matter with him, into an agreement, as follows, with the Amreican Telegraph Company, a company already established in the business of telegraphing:

'The American Telegraph Company agree to buy, and Humaston agrees to sell a full, perfect, and unincumbered title to all his inventions for all electric telegraph machines and processes, ad particularly the patented invention for perforating paper for the purpose of telegraphic messages, and the adaptation and manner of using such perforated paper in the transmission of such messages, including whatever is patented by Humaston in the transmission of messages by telegraph, and also including the secret process of preparing the chemical paper, with the right to procure letters-patent therefor.

'The said Humaston and Lefferts agree not to engage, derectly or indirectly, in telegraphing during the period of ten years, in competition with the American Telegraph Company, nor in any way aid, countenance, or encourage any telegraph line doing business in any of the States bordering upon the Atlantic Ocean or Gulf of Mexico, &c., so as to in any way injuriously affect the business or interests of the American Telegraph Company.

'The consideration to be paid by the company for the said inventions and patents, and agreement against competition, is one dollar, and at least 50 shares of the capital stock of the American Telegraph Company. Upon the execution and delivery by said Humaston of conveyances of the aforesaid inventions and patents, conveying a full, unincumbered, and perfect title to the whole thereof, the said American Telegraph Company are to issue to the said Humaston 100 shares of the stock of said company, and a further consideration of not exceeding 400 shares of the capital stock of said company is to be paid or issued to the said Humaston upon the following stipulations and conditions: Three distinterested referees or arbiters are to decide how much (if any) more is to be issued to the said Humaston after such arbiters shall be satisfied as to the capability and value of said patented inventions; the said referees or arbiters to be mutually selected.

'It being understood that the aforesaid maximum amount of stock consideration is stated under a claim by the said Humaston and Lefferts that his patented inventions will enable the said company to do by the Humaston system, and on one wire; five times as much business, regularly and accurately, as can be done now on one wire, in the same time, by any system now used by said company, it being also understood that compensation is not to be allowed to Humaston for what is now public, but only for what their patented improvements in telegraphy are worth more than any other of said systems.

'The arbiters or referees are also, in estimating the value of said patented inventions, to consider the comparative reliability, accuracy, rapidity, cost, and also the expense of working and using said inventions with those now in use. To enable the said Humaston and Lefferts to prove the capacity and value of the said inventions, full, fair, and sufficient trials are to be allowed to them, and made in such manner, and as often, and for such period of time, as the referees may determine, and the final decision is to be given before the expiration of one year from the date hereof. Each party are to have the right to suggest to the referees such experiments for the testing of such inventions as to them may seem proper. The referees to have full opportunity of investigating and deciding in the matter. It is also understood and agreed that the company are to have reasonable opportunity to examine into the validity and patentability of the patented inventions, and place any questions which may arise thereon before the referees for their decision. But the referees are hereby instructed that under the foregoing paragraph the company are to require only a reasonable amount of evidence as to the validity of the Humaston inventions, and further agreed that, should the referees decide that the invention is wholly invalid, and not patentable, then the company will surrender up and transfer to Humaston, by a good and sufficient assignment, the title to the said patents on the retransfer of 50 shares of stock of the company. Upon the award or decision of said referees, or a majority thereof, being made in writing and delivered to said company, said company are to pay or issue to said Humaston the additional amount, if any, of stock (not exceeding 400 shares), determined or stated in such award.'

Humaston made the requisite transfers, and the matter meant to be submitted was referred to the arbitrators. They accepted their office and entered upon the discharge of their duty, but the telegraph company withdrew its submission. Humaston now brought special assumpsit against the company, claiming not only the 100 shares of stock which he actually received in 1861 (and then worth $100 a share, or $10,000, and which in 1866 was worth $18,000), but claiming also the value of the other 400 shares. His position was that by the terms of the contract, he was entitled to the 400 shares unless the arbitrators named a smaller compensation, and that as the company had withdrawn its submission, and so prevented the arbitrators from naming any such smaller compensation, he was entitled to the whole 400 shares.

At the trial, the instruments invented by Humaston were submitted to the jury and explained, and experts, mechanics, and telegraphers examined upon them for several days.

After the plaintiff had established what was perhaps a prima facie case, his counsel, for the purpose of furnishing a rule for estimating his damages, offered to show that the market value of the stock of the American Telegraph Company on the 12th day of June, 1866, on which day the company had been consolidated with the Western Union Telegraph Company, was $150. The court excluded the evidence for the purpose for which it was offered, but admitted it as a fact which the jury might consider in estimating the value of the property sold. Subsequently the parties agreed that the market value of the stock of the company on the 1st day of April, 1861, was $100 per share, and made their agreement known to the court. Thereupon the court held that the evidence as to the value of the stock on the 12th of June, 1866, and at subsequent dates, which had been admitted, was immaterial; and under plaintiff's exception struck it out and excluded it.

Some of the defendant's evidence tended to show that the plaintiff's invention had no value and had never been used.

The court charged—

That the plaintiff was not entitled, as matter of law, to Recover of the defendants the value of the remaining 400 shares:

Also that the plaintiff did not, as matter of law, become entitled to the said 400 shares of stock by reason of the defendants' revocation of the powers of the referees or other breach of contract alleged, but that the plaintiff was entitled, in consequence of the revocation, to bring an action and to recover the excess (if any there was) which the value of what he sold, assigned, and transferred to the defendants (enhanced by the agreement of the plaintiff and Lefferts not to enter into competition with the defendants) had when sold and delivered, over the amount which he had already received (and that this he parties agreed was 100 shares, of the aggregate value of $10,000), with interest on such excess from the 13th of February, 1867; but if in their judgment there was no such excess, then that their verdict should be for the defendant.

To these instructions the counsel for the plaintiff excepted.

The jury found for the plaintiff, and assessed his damages at $7500.

The exclusion of the evidence and the charge of the court were the matters now assigned for error.

Messrs. Truman Smith and Cephas Brainard, for the plaintiff in error, argued the case much at length, and showed, as they conceived, that it was well established both in England and this country, that a stipulation in a contract for a reference of any matter of difference likely or certain to arise thereunder, might be connected with the principal undertaking in such a manner as to make it a condition, and that as such it might essentially qualify or affect the rights of one party, or the obligations of the other; that if it were a condition precedent and was not performed, the obligation would be null; and if it were a condition subsequent and not performed (which the counsel alleged was the case here), then that the condition became null and the obligation absolute. If the party bound by a condition precedent did not submit, or offer to submit, or having submitted, revoked, his right of action was gone; and if a party bound by a condition subsequent refused to submit, or having submitted, revoked, then the qualification of his liability was gone, and that liability became absolute.

The learned counsel referred to twenty-nine different cases, English and American, beginning with Vynior's Case, reported by Sir Edward Coke, which sustained, as they conceived, their views.

Messrs. J. R. Porter and G. P. Lowry, contra, citing Cowper v. Andrews, and the opinion of Hobart, C.J., therein; Brewer v. Hill, and other cases.

Mr. Justice DAVIS delivered the opinion of the court.

title: Humaston v. American Telegraph Company


text: Talk:Humaston v. American Telegraph Company