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Page:Blackwood's Magazine volume 002.djvu/20

12 made there in his own favourite studies; what place he occupied, or supposed he occupied, among his numerous contemporaries of talent; how much he was inspired by the genius of the place; how far he "pierced the caves of old Philosophy," or sounded the depths of the Physical Sciences. All this unfortunately is omitted, and he hurries on to details often trifling and uninfluential, sometimes low, vile, and vulgar, and, what is worse, occasionally inconsistent with any feeling of personal dignity and self-respect.

After leaving College, instead of betaking himself to some respectable calling, Mr Coleridge, with his characteristic modesty, determined to set on foot a periodical work called "The Watchman," that through it "all might know the truth." The price of this very useful article was "fourpence." Off he set on a tour to the north to procure subscribers, "preaching in most of the great towns as a hireless Volunteer, in a blue coat and white waistcoat, that not a rag of the Woman of Babylon might be seen on me." In preaching, his object was to shew that our Saviour was the real son of Joseph, and that the Crucifixion was a matter of small importance. Mr Coleridge is now a most zealous member of the Church of England devoutly believes every iota in the thirty-nine articles, and that the Christian Religion is only to be found in its purity in the homilies and liturgy of that Church. Yet, on looking back to his Unitarian zeal, he exclaims,

This is delectable. What does he mean by saying that life seemed cheap? What danger could there be in the performance of his exploits, except that of being committed as a Vagrant? What indeed could rank appear to a person thus voluntarily degraded? Or who would expect vanity to be conscious of its own loathsomeness? During this tour he seems to have been constantly exposed to the insults of the vile and the vulgar, and to have associated with persons whose company must have been most odious to a Gentleman. Greasy Tallow-chandlers, and pursey Woollen-drapers, and grim-featured dealers in Hard-ware, were his associates at Manchester, Derby, Nottingham, and Sheffield; and among them the light of truth was to be shed from its cloudy tabernacle in Mr Coleridge's Pericranium. At the house of a "Brummagem Patriot" he appears to have got dead drunk with strong ale and tobacco, and in that pitiable condition he was exposed to his disciples, lying upon a sofa, "with my face like a wall that is white-washing, deathy pale, and with the cold drops of perspiration running down it from my forehead." Some one having said, lamentable condition, "Sir! I am far from convinced that a Christian is permitted to read either newspapers, or any other works of merely political and temporary interest." This witticism quite enchanted his enlightened auditors, and they prolonged their festivities to an "early hour next morning." Having returned to London with a thousand subscribers on his list, the "Watchman" appeared in all his glory; but, alas! not on the day fixed for the first burst of his effulgence; which foolish delay incensed many of his subscribers. The Watchman, on his second appearance, spoke blasphemously, and made indecent applications of Scriptural language; then, instead of abusing Government and Aristocrats, as Mr Coleridge had pledged himself to his constituents to


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Ūtfæreldes Lēoþ

Hƿæt! Ƿe feor and neah        ȝefriȝen habað ofer middanȝeard        Moyses domas, ƿræclico ƿordriht,        ƿera cneorissum,-- in uprodor        eadiȝra ȝehƿam 5   æfter bealusiðe         bote lifes, lifiȝendra ȝehƿam        lanȝsumne ræd,-- hæleðum secȝan. Ȝehyre se ðe ƿille! þone on ƿestenne        ƿeroda drihten, soðfæst cyninȝ,        mid his sylfes miht 10   ȝeƿyrðode,         and him ƿundra fela, ece alƿalda,        in æht forȝeaf. He ƿæs leof ȝode,        leoda aldor, horsc and hreðerȝleaƿ,        herȝes ƿisa, freom folctoȝa. Faraones cyn, 15   ȝodes andsacan,         ȝyrdƿite band, þær him ȝesealde        siȝora ƿaldend, modȝum maȝoræsƿan,        his maȝa feorh, onƿist eðles,        Abrahames sunum. Heah ƿæs þæt handlean        and him hold frea, 20   ȝesealde ƿæpna ȝeƿeald         ƿið ƿraðra ȝryre, ofercom mid þy campe        cneomaȝa fela, feonda folcriht. ða ƿæs forma sið þæt hine ƿeroda ȝod        ƿordum næȝde, þær he him ȝesæȝde        soðƿundra fela, 25   hu þas ƿoruld ƿorhte         ƿitiȝ drihten, eorðan ymbhƿyrft        and uprodor, ȝesette siȝerice,        and his sylfes naman, ðone yldo bearn        ær ne cuðon, frod fædera cyn,        þeah hie fela ƿiston. 30   Hæfde he þa ȝesƿiðed         soðum cræftum and ȝeƿurðodne        ƿerodes aldor, Faraones feond,        on forðƿeȝas. þa ƿæs inȝere        ealdum ƿitum deaðe ȝedrenced        drihtfolca mæst; 35   hordƿearda hryre         heaf ƿæs ȝeniƿad, sƿæfon seledreamas,        since berofene. Hæfde mansceaðan        æt middere niht frecne ȝefylled,        frumbearna fela, abrocene burhƿeardas. Bana ƿide scrað, 40   lað leodhata,         land drysmyde deadra hræƿum,        duȝoð forð ȝeƿat, ƿop ƿæs ƿide,        ƿorulddreama lyt. Ƿæron hleahtorsmiðum        handa belocene, alyfed laðsið        leode ȝretan; 45   folc ferende,         feond ƿæs bereafod, herȝas on helle. Heofunȝ þider becom, druron deofolȝyld. Dæȝ ƿæs mære ofer middanȝeard        þa seo menȝeo for. Sƿa þæs fæsten dreah        fela missera, 50   ealdƿeriȝe,         Eȝypta folc, þæs þe hie ƿideferð        ƿyrnan þohton Moyses maȝum,        ȝif hie metod lete, on lanȝne lust        leofes siðes. Fyrd ƿæs ȝefysed,        from se ðe lædde, 55   modiȝ maȝoræsƿa,         mæȝburh heora. Oferfor he mid þy folce        fæstena ƿorn, land and leodƿeard        laðra manna, enȝe anpaðas,        uncuð ȝelad, oðþæt hie on Ȝuðmyrce        ȝearƿe bæron, 60   (ƿæron land heora         lyfthelme beþeaht), mearchofu morheald. Moyses ofer þa, fela meorinȝa,        fyrde ȝelædde. Heht þa ymb tƿa niht        tirfæste hæleð, siððan hie feondum        oðfaren hæfdon, 65   ymbƿiciȝean         ƿerodes bearhtme mid ælfere        æthanes byriȝ, mæȝnes mæste        mearclandum on. Nearƿe ȝenyddon        on norðƿeȝas, ƿiston him be suðan        Siȝelƿara land, 70   forbærned burhhleoðu,         brune leode, hatum heofoncolum. þær haliȝ ȝod ƿið færbryne        folc ȝescylde, bælce oferbrædde        byrnendne heofon, halȝan nette        hatƿendne lyft. 75   Hæfde ƿederƿolcen         ƿidum fæðmum eorðan and uprodor        efne ȝedæled, lædde leodƿerod,        liȝfyr adranc, hate heofontorht. Hæleð ƿafedon, drihta ȝedrymost. Dæȝsceades hleo 80   ƿand ofer ƿolcnum;         hæfde ƿitiȝ ȝod sunnan siðfæt        seȝle ofertolden, sƿa þa mæstrapas        men ne cuðon, ne ða seȝlrode        ȝeseon meahton, eorðbuende        ealle cræfte, 85   hu afæstnod ƿæs         feldhusa mæst, siððan he mid ƿuldre        ȝeƿeorðode þeodenholde. þa ƿæs þridda ƿic folce to frofre. Fyrd eall ȝeseah hu þær hlifedon        haliȝe seȝlas, 90   lyftƿundor leoht;         leode onȝeton, duȝoð Israhela,        þæt þær drihten cƿom ƿeroda drihten,        ƿicsteal metan. Him beforan foran        fyr and ƿolcen in beorhtrodor,        beamas tƿeȝen, 95   þara æȝhƿæðer         efnȝedælde heahþeȝnunȝa        haliȝes ȝastes, deormodra sið        daȝum and nihtum. þa ic on morȝen ȝefræȝn        modes rofan hebban herebyman        hludan stefnum, 100   ƿuldres ƿoman. Ƿerod eall aras, modiȝra mæȝen,        sƿa him Moyses bebead, mære maȝoræsƿa,        metodes folce, fus fyrdȝetrum. Forð ȝesaƿon lifes latþeoƿ        lifƿeȝ metan; 105   sƿeȝl siðe ƿeold,         sæmen æfter foron flodƿeȝe. Folc ƿæs on salum, hlud herȝes cyrm. Heofonbeacen astah æfena ȝehƿam,        oðer ƿundor, syllic æfter sunnan        setlrade beheold, 110   ofer leodƿerum         liȝe scinan, byrnende beam. Blace stodon ofer sceotendum        scire leoman; scinon scyldhreoðan,        sceado sƿiðredon, neoƿle nihtscuƿan        neah ne mihton 115   heolstor ahydan;         heofoncandel barn. Niƿe nihtƿeard        nyde sceolde ƿician ofer ƿeredum,        þy læs him ƿestenȝryre, har hæðbroȝa,        holmeȝum ƿederum on ferclamme        ferhð ȝetƿæfde. 120   Hæfde foreȝenȝa         fyrene loccas, blace beamas;        belleȝsan hƿeop in þam hereþreate,        hatan liȝe, þæt he on ƿestenne        ƿerod forbærnde, nymðe hie modhƿate        Moyses hyrde. 125   Scean scir ƿerod,         scyldas lixton, ȝesaƿon randƿiȝan        rihte stræte, seȝn ofer sƿeoton,        oðþæt sæfæsten landes æt ende        leodmæȝne forstod, fus on forðƿeȝ. Fyrdƿic aras; 130   ƿyrpton hie ƿeriȝe,         ƿiste ȝenæȝdon modiȝe meteþeȝnas,        hyra mæȝen beton. Bræddon æfter beorȝum,        siððan byme sanȝ, flotan feldhusum. þa ƿæs feorðe ƿic, randƿiȝena ræst,        be þan readan sæ. 135   ðær on fyrd hyra         færspell becƿom, oht inlende. Eȝsan stodan, ƿælȝryre ƿeroda;        ƿræcmon ȝebad laðne lastƿeard,        se ðe him lanȝe ær eðelleasum        onnied ȝescraf, 140   ƿean ƿitum fæst. Ƿære ne ȝymdon, ðeah þe se yldra cyninȝ        ær ȝe... þa ƿearð yrfeƿeard        inȝefolca, manna æfter maðmum,        þæt he sƿa miceles ȝeðah. Ealles þæs forȝeton        siððan ȝrame ƿurdon 145   Eȝypta cyn         ymbe antƿiȝ; ða heo his mæȝƿinum        morðor fremedon, ƿroht berenedon,        ƿære fræton. Ƿæron heaðoƿylmas        heortan ȝetenȝe, mihtmod ƿera;        manum treoƿum 150   ƿoldon hie þæt feorhlean         facne ȝyldan, þætte hie þæt dæȝƿeorc        dreore ȝebohte, Moyses leode,        þær him mihtiȝ ȝod on ðam spildsiðe        spede forȝefe. þa him eorla mod        ortryƿe ƿearð 155   siððan hie ȝesaƿon         of suðƿeȝum fyrd Faraonis        forð onȝanȝan, oferholt ƿeȝan,        eored lixan, (ȝaras trymedon,        ȝuð hƿearfode,    blicon bordhreoðan,         byman sunȝon), 160   þufas þunian,         þeod mearc tredan, on hƿæl Hreopon herefuȝolas,        hilde ȝrædiȝe, deaƿiȝfeðere        ofer drihtneum, ƿonn ƿælceaseȝa. Ƿulfas sunȝon 165   atol æfenleoð         ætes on ƿenan, carleasan deor,        cƿyldrof beodan on laðra last        leodmæȝnes fyl. Hreopon mearcƿeardas        middum nihtum, fleah fæȝe ȝast,        folc ƿæs ȝehæȝed. 170   Hƿilum of þam ƿerode         ƿlance þeȝnas mæton milpaðas        meara boȝum. Him þær seȝncyninȝ        ƿið þone seȝn foran, manna þenȝel,        mearcþreate rad; ȝuðƿeard ȝumena        ȝrimhelm ȝespeon, 175   cyninȝ cinberȝe,         (cumbol lixton), ƿiȝes on ƿenum,        ƿælhlencan sceoc, het his hereciste        healdan ȝeorne fæst fyrdȝetrum. Freond onseȝon laðum eaȝan        landmanna cyme. 180   Ymb hine ƿæȝon         ƿiȝend unforhte, hare heoroƿulfas        hilde ȝretton, þurstiȝe þræcƿiȝes,        þeodenholde. Hæfde him alesen        leoda duȝeðe tireadiȝra        tƿa þusendo, 185   þæt ƿæron cyninȝas         and cneoƿmaȝas, on þæt eade riht,        æðelum deore. Forðon anra ȝehƿilc        ut alædde ƿæpnedcynnes,        ƿiȝan æȝhƿilcne þara þe he on ðam fyrste        findan mihte. 190   Ƿæron inȝemen         ealle ætȝædere, cyninȝas on corðre. Cuð oft ȝebad horn on heape        to hƿæs hæȝstealdmen, ȝuðþreat ȝumena,        ȝearƿe bæron. Sƿa þær eorp ƿerod,        ecan læddon, 195   lað æfter laðum,         leodmæȝnes ƿorn, þusendmælum;        þider ƿæron fuse. Hæfdon hie ȝemynted        to þam mæȝenheapum to þam ærdæȝe        Israhela cynn billum abreotan        on hyra broðorȝyld. 200   Forþon ƿæs in ƿicum         ƿop up ahafen, atol æfenleoð,        eȝesan stodon, ƿeredon ƿælnet,        þa se ƿoma cƿom. Fluȝon frecne spel,        feond ƿæs anmod, ƿerud ƿæs ƿiȝblac,        oðþæt ƿlance forsceaf 205   mihtiȝ enȝel,         se ða meniȝeo beheold, þæt þær ȝelaðe mid him        lenȝ ne mihton ȝeseon tosomne;        sið ƿæs ȝedæled. Hæfde nydfara        nihtlanȝne fyrst, þeah ðe him on healfa ȝehƿam        hettend seomedon, 210   mæȝen oððe merestream;         nahton maran hƿyrft. Ƿæron orƿenan        eðelrihtes, sæton æfter beorȝum        in blacum reafum, ƿean on ƿenum;        ƿæccende bad eall seo sibȝedriht        somod ætȝædere 215   maran mæȝenes,         oð Moyses bebead eorlas on uhttid        ærnum bemum folc somniȝean,        frecan arisan, habban heora hlencan,        hycȝan on ellen, beran beorht searo,        beacnum ciȝean 220   sƿeot sande near. Snelle ȝemundon ƿeardas ƿiȝleoð,        ƿerod ƿæs ȝefysed, brudon ofer burȝum,        (byman ȝehyrdon), flotan feldhusum,        fyrd ƿæs on ofste. Siððan hie ȝetealdon        ƿið þam teonhete 225   on þam forðherȝe         feðan tƿelfe moderofra;        mæȝen ƿæs onhrered. Ƿæs on anra ȝehƿam        æðelan cynnes alesen under lindum        leoda duȝuðe on folcȝetæl        fiftiȝ cista; 230   hæfde cista ȝehƿilc         cuðes ƿerodes ȝarberendra,        ȝuðfremmendra, X hund ȝeteled,        tireadiȝra. þæt ƿæs ƿiȝlic ƿerod;        ƿace ne ȝretton in þæt rincȝetæl        ræsƿan herȝes, 235   þa þe for ȝeoȝuðe         ȝyt ne mihton under bordhreoðan        breostnet ƿera ƿið flane feond        folmum ƿeriȝean, ne him bealubenne        ȝebiden hæfdon ofer linde læriȝ,        licƿunde sƿor, 240   ȝylppleȝan ȝares. Ȝamele ne moston, hare heaðorincas,        hilde onþeon, ȝif him modheapum        mæȝen sƿiðrade, ac hie be ƿæstmum        on ƿiȝ curon, hu in leodscipe        læstan ƿolde 245   mod mid aran,         eac þan mæȝnes cræft, ȝarbeames fenȝ. þa ƿæs handrofra        here ætȝædere, fus forðƿeȝas. Fana up ȝerad, beama beorhtost;        bidon ealle þa ȝen 250   hƿonne siðboda         sæstreamum neah leoht ofer lindum        lyftedoras bræc. Ahleop þa for hæleðum        hildecalla, bald beohata,        bord up ahof, heht þa folctoȝan        fyrde ȝestillan, 255   þenden modiȝes meðel         moniȝe ȝehyrdon. Ƿolde reordiȝean        rices hyrde ofer hereciste        halȝan stefne, ƿerodes ƿisa        ƿurðmyndum spræc: "Ne beoð ȝe þy forhtran,        þeah þe Faraon brohte 260    sƿeordƿiȝendra         side herȝas,    eorla unrim!         Him eallum ƿile    mihtiȝ drihten         þurh mine hand    to dæȝe þissum         dædlean ȝyfan,    þæt hie lifiȝende         lenȝ ne moton 265    æȝnian mid yrmðum         Israhela cyn.    Ne ƿillað eoƿ andrædan         deade feðan,    fæȝe ferhðlocan,         fyrst is æt ende    lænes lifes.         Eoƿ is lar ȝodes    abroden of breostum.         Ic on beteran ræd, 270    þæt ȝe ȝeƿurðien         ƿuldres aldor,    and eoƿ liffrean         lissa bidde,    siȝora ȝesynto,         þær ȝe siðien.    þis is se ecea         Abrahames ȝod,    frumsceafta frea,         se ðas fyrd ƿereð, 275    modiȝ and mæȝenrof,         mid þære miclan hand." Hof ða for herȝum        hlude stefne lifiȝendra leod,        þa he to leodum spræc: "Hƿæt, ȝe nu eaȝum to        on lociað,    folca leofost,         færƿundra sum, 280    hu ic sylfa sloh         and þeos sƿiðre hand    ȝrene tacne         ȝarsecȝes deop.    Yð up færeð,         ofstum ƿyrceð    ƿæter ƿealfæsten.         Ƿeȝas syndon dryȝe,    hasƿe herestræta,         holm ȝerymed, 285    ealde staðolas,         þa ic ær ne ȝefræȝn    ofer middanȝeard         men ȝeferan,    faȝe feldas,         þa forð heonon    in ece tid         yðe þeahton,    sælde sæȝrundas.         Suðƿind fornam 290    bæðƿeȝes blæst,         brim is areafod,    sand sæcir spaƿ.         Ic ƿat soð ȝere    þæt eoƿ mihtiȝ ȝod         miltse ȝecyðde,    eorlas ærȝlade.         Ofest is selost    þæt ȝe of feonda         fæðme ƿeorðen, 295    nu se aȝend         up arærde    reade streamas         in randȝebeorh.    Syndon þa foreƿeallas         fæȝre ȝestepte,    ƿrætlicu ƿæȝfaru,         oð ƿolcna hrof." æfter þam ƿordum        ƿerod eall aras, 300   modiȝra mæȝen. Mere stille bad. Hofon herecyste        hƿite linde, seȝnas on sande. Sæƿeall astah, uplanȝ ȝestod        ƿið Israhelum andæȝne fyrst. Ƿæs seo eorla ȝedriht 305   anes modes, fæstum fæðmum        freoðoƿære heold. Nalles hiȝe ȝehyrdon        haliȝes lare, siððan leofes leoþ        læste near sƿeȝ sƿiðrode        and sances bland. 310   þa þæt feorðe cyn         fyrmest eode, ƿod on ƿæȝstream,        ƿiȝan on heape, ofer ȝrenne ȝrund,        Iudisc feða on orette        on uncuð ȝelad for his mæȝƿinum. Sƿa him mihtiȝ ȝod 315   þæs dæȝƿeorces         deop lean forȝeald, siððan him ȝesælde        siȝorƿorca hreð, þæt he ealdordom        aȝan sceolde ofer cynericu,        cneoƿmaȝa blæd. Hæfdon him to seȝne,        þa hie on sund stiȝon, 320   ofer bordhreoðan         beacen aræred in þam ȝarheape,        ȝyldenne leon, drihtfolca mæst,        deora cenost. Be þam hereƿisan        hynðo ne ƿoldon be him lifiȝendum        lanȝe þolian, 325   þonne hie to ȝuðe         ȝarƿudu rærdon ðeoda æniȝre. þracu ƿæs on ore, heard handpleȝa,        hæȝsteald modiȝe ƿæpna ƿælslihtes,        ƿiȝend unforhte, bilsƿaðu blodiȝe,        beadumæȝnes ræs, 330   ȝrimhelma ȝeȝrind,         þær Iudas for. æfter þære fyrde        flota modȝade, Rubenes sunu. Randas bæron sæƿicinȝas        ofer sealtne mersc, manna menio;        micel anȝetrum 335   eode unforht. He his ealdordom synnum asƿefede,        þæt he siðor for on leofes last. Him on leodsceare frumbearnes riht        freobroðor oðþah, ead and æðelo;        he ƿæs ȝearu sƿa þeah. 340   þær forð æfter him         folca þryðum sunu Simeones        sƿeotum comon; þridde þeodmæȝen        (þufas ƿundon    ofer ȝarfare)         ȝuðcyste onþranȝ deaƿiȝ sceaftum. Dæȝƿoma becƿom 345   ofer ȝarsecȝe,         ȝodes beacna sum, morȝen mæretorht;        mæȝen forð ȝeƿat. þa þær folcmæȝen        for æfter oðrum, isernherȝum. An ƿisode mæȝenþrymmum mæst,        þy he mære ƿearð, 350   on forðƿeȝas         folc æfter ƿolcnum, cynn æfter cynne. Cuðe æȝhƿilc mæȝburȝa riht,        sƿa him Moises bead, eorla æðelo. Him ƿæs an fæder, leof leodfruma,        landriht ȝeþah, 355   frod on ferhðe,         freomaȝum leof. Cende cneoƿsibbe        cenra manna heahfædera sum,        haliȝe þeode, Israela cyn,        onriht ȝodes, sƿa þæt orþancum        ealde reccað 360   þa þe mæȝburȝe         mæst ȝefrunon, frumcyn feora,        fæderæðelo ȝehƿæs. Niƿe flodas        Noe oferlað, þrymfæst þeoden,        mid his þrim sunum, þone deopestan        drencefloda 365   þara ðe ȝeƿurde         on ƿoruldrice. Hæfde him on hreðre        haliȝe treoƿa; forþon he ȝelædde        ofer laȝustreamas maðmhorda mæst,        mine ȝefræȝe. On feorhȝebeorh        foldan hæfde 370   eallum eorðcynne         ece lafe, frumcneoƿ ȝehƿæs,        fæder and moder tuddorteondra,        ȝeteled rime mismicelra        þonne men cunnon, snottor sæleoda. Eac þon sæda ȝehƿilc 375   on bearm scipes         beornas feredon, þara þe under        heofonum hæleð bryttiȝað. Sƿa þæt ƿise men        ƿordum secȝað þæt from Noe        niȝoða ƿære fæder Abrahames        on folctale. 380   þæt is se Abraham         se him enȝla ȝod naman niƿan asceop;        eac þon neah and feor haliȝe heapas        in ȝehyld bebead, ƿerþeoda ȝeƿeald;        he on ƿræce lifde. Siððan he ȝelædde        leofost feora 385   haliȝes hæsum;         heahlond stiȝon sibȝemaȝas,        on Seone beorh. Ƿære hie þær fundon,        ƿuldor ȝesaƿon, haliȝe heahtreoƿe,        sƿa hæleð ȝefrunon. þær eft se snottra        sunu Dauides, 390   ƿuldorfæst cyninȝ,         ƿitȝan larum ȝetimbrede        tempel ȝode, alh haliȝne,        eorðcyninȝa se ƿisesta        on ƿoruldrice, heahst and haliȝost,        hæleðum ȝefræȝost, 395   mæst and mærost,         þara þe manna bearn, fira æfter foldan,        folmum ȝeƿorhte. To þam meðelstede        maȝan ȝelædde Abraham Isaac. Adfyr onbran; fyrst ferhðbana        no þy fæȝenra ƿæs. 400   Ƿolde þone lastƿeard         liȝe ȝesyllan, in bælblyse        beorna selost, his sƿæsne sunu        to siȝetibre, anȝan ofer eorðan        yrfelafe, feores frofre,        ða he sƿa forð ȝebad, 405   leodum to lafe,         lanȝsumne hiht. He þæt ȝecyðde,        þa he þone cniht ȝenam fæste mid folmum,        folccuð ȝeteaȝ ealde lafe,        (ecȝ ȝrymetode), þæt he him lifdaȝas        leofran ne ƿisse 410   þonne he hyrde         heofoncyninȝe. Up aræmde        Abraham þa; se eorl ƿolde slean        eaferan sinne unƿeaxenne,        ecȝum reodan maȝan mid mece,        ȝif hine metod lete. 415   Ne ƿolde him beorht fæder         bearn ætniman, haliȝ tiber,        ac mid handa befenȝ. þa him styran cƿom        stefn of heofonum, ƿuldres hleoðor,        ƿord æfter spræc: "Ne sleh þu, Abraham,        þin aȝen bearn, 420    sunu mid sƿeorde!         Soð is ȝecyðed,    nu þin cunnode         cyninȝ alƿihta,    þæt þu ƿið ƿaldend         ƿære heolde,    fæste treoƿe,         seo þe freoðo sceal    in lifdaȝum         lenȝest ƿeorðan, 425    aƿa to aldre         unsƿiciendo.    Hu þearf mannes sunu         maran treoƿe?    Ne behƿylfan mæȝ         heofon and eorðe    his ƿuldres ƿord,         ƿiddra and siddra    þonne befæðman mæȝe         foldan sceattas, 430    eorðan ymbhƿyrft         and uprodor,    ȝarsecȝes ȝin         and þeos ȝeomre lyft.    He að sƿereð,         enȝla þeoden,    ƿyrda ƿaldend         and ƿereda ȝod,    soðfæst siȝora,         þurh his sylfes lif, 435    þæt þines cynnes         and cneoƿmaȝa,    randƿiȝȝendra,         rim ne cunnon,    yldo ofer eorðan,         ealle cræfte    to ȝesecȝenne         soðum ƿordum,    nymðe hƿylc þæs snottor         in sefan ƿeorðe 440   þæt he ana mæȝe         ealle ȝeriman stanas on eorðan,        steorran on heofonum, sæbeorȝa sand,        sealte yða; ac hie ȝesittað        be sæm tƿeonum oð Eȝipte        incaðeode 445   land Cananea,         leode þine, freobearn fæder,        folca selost."    Folc ƿæs afæred,         flodeȝsa becƿom    ȝastas ȝeomre,         ȝeofon deaðe hƿeop.    Ƿæron beorhhliðu         blode bestemed, 450    holm heolfre spaƿ,         hream ƿæs on yðum,    ƿæter ƿæpna ful,         ƿælmist astah.    Ƿæron Eȝypte         eft oncyrde,    fluȝon forhtiȝende,         fær onȝeton,    ƿoldon herebleaðe         hamas findan, 455    ȝylp ƿearð ȝnornra.         Him onȝen ȝenap    atol yða ȝeƿealc,         ne ðær æniȝ becƿom    herȝes to hame,         ac behindan beleac    ƿyrd mid ƿæȝe.         þær ær ƿeȝas laȝon,    mere modȝode,         mæȝen ƿæs adrenced. 460    Streamas stodon,         storm up ȝeƿat    heah to heofonum,         hereƿopa mæst.    Laðe cyrmdon,         (lyft up ȝesƿearc),    fæȝum stæfnum,         flod blod ȝeƿod.    Randbyriȝ ƿæron rofene,         rodor sƿipode 465    meredeaða mæst,         modiȝe sƿulton, cyninȝas on corðre,        cyre sƿiðrode sæs æt ende. Ƿiȝbord scinon heah ofer hæleðum,        holmƿeall astah, merestream modiȝ. Mæȝen ƿæs on cƿealme 470   fæste ȝefeterod,         forðȝanȝes ƿeȝ searƿum æsæled,        sand basnodon, ƿitodre fyrde,        hƿonne ƿaðema stream, sincalda sæ,        sealtum yðum æflastum ȝeƿuna        ece staðulas, 475   nacud nydboda,         neosan come, fah feðeȝast,        se ðe feondum ȝeneop. Ƿæs seo hæƿene lyft        heolfre ȝeblanden, brim berstende        blodeȝesan hƿeop, sæmanna sið,        oðþæt soð metod 480   þurh Moyses hand         modȝe rymde, ƿide ƿæðde,        ƿælfæðmum sƿeop. Flod famȝode,        fæȝe crunȝon, laȝu land ȝefeol,        lyft ƿæs onhrered, ƿicon ƿeallfæsten,        ƿæȝas burston, 485   multon meretorras,         þa se mihtiȝa sloh mid haliȝe hand,        heofonrices ƿeard, on ƿerbeamas. Ƿlance ðeode ne mihton forhabban        helpendra pað, merestreames mod,        ac he maneȝum ȝesceod 490   ȝyllende ȝryre. Ȝarsecȝ ƿedde, up ateah, on sleap. Eȝesan stodon, ƿeollon ƿælbenna. Ƿitrod ȝefeol heah of heofonum        handƿeorc ȝodes, famiȝbosma        flodƿearde sloh, 495   unhleoƿan ƿæȝ,         alde mece, þæt ðy deaðdrepe        drihte sƿæfon, synfullra sƿeot. Saƿlum lunnon fæste befarene,        flodblac here, siððan hie on buȝon        brun yppinȝe, 500   modeƿæȝa mæst. Mæȝen eall ȝedreas ða ȝedrencte ƿæron        duȝoð Eȝypta, Faraon mid his folcum. He onfond hraðe, siððan ȝrund ȝestah        ȝodes andsaca, þæt ƿæs mihtiȝra        mereflodes ƿeard; 505   ƿolde heorufæðmum         hilde ȝesceadan, yrre and eȝesfull. Eȝyptum ƿearð þæs dæȝƿeorces        deop lean ȝesceod, forðam þæs heriȝes        ham eft ne com ealles unȝrundes        æniȝ to lafe, 510   þætte sið heora         secȝan moste, bodiȝean æfter burȝum        bealospella mæst, hordƿearda hryre,        hæleða cƿenum, ac þa mæȝenþreatas        meredeað ȝesƿealh, spelbodan eac. Se ðe sped ahte, 515   aȝeat ȝylp ƿera. Hie ƿið ȝod ƿunnon! þanon Israhelum        ece rædas on merehƿearfe        Moyses sæȝde, heahþunȝen ƿer,        haliȝe spræce, deop ærende. Dæȝƿord nemnað 520   sƿa ȝyt ƿerðeode,         on ȝeƿritum findað doma ȝehƿilcne,        þara ðe him drihten bebead on þam siðfate        soðum ƿordum, ȝif onlucan ƿile        lifes ƿealhstod, beorht in breostum,        banhuses ƿeard, 525   ȝinfæsten ȝod         ȝastes cæȝon. Run bið ȝerecenod,        ræd forð ȝæð, hafað ƿislicu        ƿord on fæðme, ƿile meaȝollice        modum tæcan þæt ƿe ȝesne ne syn        ȝodes þeodscipes, 530   metodes miltsa. He us ma onlyhð, nu us boceras        beteran secȝað lenȝran lifƿynna. þis is læne dream, ƿommum aƿyrȝed,        ƿreccum alyfed, earmra anbid. Eðellease 535   þysne ȝystsele         ȝihðum healdað, murnað on mode,        manhus ƿiton fæst under foldan,        þær bið fyr and ƿyrm, open ece scræf. Yfela ȝehƿylces sƿa nu reȝnþeofas        rice dælað, 540   yldo oððe ærdeað. Eftƿyrd cymð, mæȝenþrymma mæst        ofer middanȝeard, dæȝ dædum fah. Drihten sylfa on þam meðelstede        maneȝum demeð, þonne he soðfæstra        saƿla lædeð, 545   eadiȝe ȝastas,         on uprodor, þær is leoht and lif,        eac þon lissa blæd; duȝoð on dreame        drihten heriȝað, ƿeroda ƿuldorcyninȝ,        to ƿidan feore. Sƿa reordode        ræda ȝemyndiȝ 550   manna mildost,         mihtum sƿiðed, hludan stefne;        here stille bad ƿitodes ƿillan,        ƿundor onȝeton, modiȝes muðhæl;        he to mæneȝum spræc: "Micel is þeos meniȝeo,        mæȝenƿisa trum, 555    fullesta mæst,         se ðas fare lædeð;    hafað us on Cananea         cyn ȝelyfed    burh and beaȝas,         brade rice;    ƿile nu ȝelæstan         þæt he lanȝe ȝehet    mid aðsƿare,         enȝla drihten, 560    in fyrndaȝum         fæderyncynne,    ȝif ȝe ȝehealdað         haliȝe lare,    þæt ȝe feonda ȝehƿone         forð oferȝanȝað,    ȝesittað siȝerice         be sæm tƿeonum,    beorselas beorna.         Bið eoƿer blæd micel!" 565   æfter þam ƿordum         ƿerod ƿæs on salum, sunȝon siȝebyman,        (seȝnas stodon), on fæȝerne sƿeȝ;        folc ƿæs on lande, hæfde ƿuldres beam        ƿerud ȝelæded, haliȝe heapas,        on hild ȝodes. 570   Life ȝefeȝon         þa hie oðlæded hæfdon feorh of feonda dome,        þeah ðe hie hit frecne ȝeneðdon, ƿeras under ƿætera hrofas. Ȝesaƿon hie þær ƿeallas standan, ealle him brimu blodiȝe þuhton,        þurh þa heora beadosearo ƿæȝon. Hreðdon hildespelle,        siððan hie þam herȝe ƿiðforon; 575   hofon hereþreatas         hlude stefne, for þam dædƿeorce        drihten heredon, ƿeras ƿuldres sanȝ;        ƿif on oðrum, folcsƿeota mæst,        fyrdleoð ȝolan aclum stefnum,        eallƿundra fela. 580   þa ƿæs eðfynde         Afrisc meoƿle on ȝeofones staðe        ȝolde ȝeƿeorðod. Handa hofon        halsƿurðunȝe, bliðe ƿæron,        bote ȝesaƿon, heddon herereafes,        hæft ƿæs onsæled. 585   Onȝunnon sælafe         seȝnum dælan on yðlafe,        ealde madmas, reaf and randas. Heo on riht sceodon ȝold and ȝodƿeb,        Iosepes ȝestreon, ƿera ƿuldorȝesteald. Ƿeriȝend laȝon 590   on deaðstede,         drihtfolca mæst.

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title: Ūtfæreldes Lēoþ


text: Category:Committees of the United States Senate


text: Category:Committees of the United States House of Representatives


text:
Musson v. Lake/Dissent Woodbury

Mr. Justice WOODBURY.

I regret being compelled to dissent from a portion of the opinion of the majority of the court which has just been pronounced. This I should be content to do without explanation, if the grounds for it did not a pear to be misunderstood. I do not question that a note should be present usually when payment is demanded (Freeman v. Boynton, 7 Mass. R. 483; 17 Mass. R. 449; 3 Metcalf, 495); and that a written protest is the proper evidence to show a presentment or demand in the case of a foreign bill of exchange (8 Wheat. 333; Burke v. McKay, 2 Howard, 71). But, in my view, a protest like this was competent evidence to be submitted to the jury, in order that they might infer from it that the note was presented when the demand was made. That was the point presented by the division of opinion between the judges in the court below. One held it was competent evidence from which to make such an inference, and the other, it was not, and we are merely to decide which was right.

The question of due presentment and demand is a mixed one of law and fact, and not one of mere law, unless all the facts are first conceded or agreed (United States v. J. Barker, 1 Paine's C. C. R. 156). This is in analogy to the rule about notice (1 Peters, 583). In all cases where it is possible for the jury on any reasonable hypothesis to infer a proper presentment from the protest offered, it is safer that the writing should not be withdrawn from them, but go in, and the court instruct the jury on the whole evidence what the law was on such facts as they might be satisfied of. Chancellor Kent (3 Comm. 107) thinks it very difficult, in these mixed questions of law and fact about commercial paper, to do justice by any other course. In this case the jury might or might not be satisfied of the fact of the bill being present when the demand was made. But why not let them pass on that fact? It is manifest that no evil or danger would result from leaving the matter to them, under due instructions from the court, provided there be no legal obstacle to such a course.

Is there, then, any such obstacle?

It is conceded, on both sides, that the protest is competent evidence, and contains enough from which the jury could infer a demand of payment. That is the most material part of the notary's duty. It is not only so described in some elementary treatises, but the duty of having the note present, or of calling with it at the hours of business alone, are not described separately; but are involved or implied in the general duty of making a demand. Thus Dane, in his Abridgment, Bills of Exchange (art. 11, § 1), says, 'In making a protest, three things are to be done,-the noting, demanding, and drawing up the protest.' 'The material part is the making of the demand.' So the word demand is at times used as synonimous with the word presentment by Bailey. 16 Louisiana Rep. 311.

But the protest in this case states not only a demand, but that payment of the bill was refused, and that he had it in possession, so as to make a copy 'of the original draft' on the back of the protest, or, to use his own words, 'whereof a true copy is on the reverse hereof written,' and also 'demanded payment of said draft,' and was answered, 'that the same could not be paid.'

Under these expressions, it could hardly be deemed unfair, or any stretch of probability, to infer that the bill was present at the demand, and the more especially as the notary knew it was his duty to have it present, and does not state that any objection was made, or refusal to pay, on account of its absence, as he should have stated, if such was the truth. My views do not differ from those of a majority of this court concerning the importance of having the principles as to commercial law, and especially commercial instruments, uniform, and as little fluctuating as possible; and hence as to them I would make no innovation here. But our difference is rather on a question of evidence. Thus, had the testimony offered been submitted to the jury, and they had inferred from it a due presentment of the note, it would not change any commercial principle as to the necessity of presentment, but merely establish the fact of presentment here on evidence deemed by the jury to render that fact probable. And if juries should be disposed to find such a fact on slight testimony, it would do no injury to commercial paper, or commercial principles, or substantial justice between parties, but merely indicate an increased liberality as to forms, where substance has been regarded; that is, where the vital point in the transaction is beyond controversy, namely, that payment has clearly been demanded and not made. Such a course would accord, also, in spirit, with that was laid down by this court in 1 Peters, 583, that rules as to commercial paper ought to be formed and construed so as to be reasonable and founded in general convenience and with a view to clog as little as possible, consistently with the safety of parties, the circulation of paper of this description.

There is nothing in the nature of protests and presentments which on principle requires any increased strictness in the proof of them, but, on the contrary, much to justify every reasonable presumption in their favor. Any holder would be anxious to get his money at once of the drawee, and not neglect to have the note with him so as to give it up on payment and prevent delay. So would he wish to be paid and excused entirely from making protest, rather than resort to that and notice, and suffer the delay of recovering it of a drawer or indorser.

Both of these considerations strengthen the inference that he and his agent would present the note, or have it with them, when demanding payment, and render it reasonable, after slight proof of presentment, to leave it to the opposite party to rebut that inference, so natural, by stronger proof that the note was not present, if the facts would warrant such proof.

Another consideration against requiring great or greator rigidity in the evidence of a presentment and form of protest is the fact, that a protest is of less materiality than notice.

As an illustration, that the notice is deemed more material than the protest, 'omitting to allege in the declaration a protest of a bill is only form, not to be taken advantage of on a general demurrer.' 1 Dane's Abr., Bills of Exchange, ch. 20, art. 11, § 9; Lill. Ent. 55; 3 Johns. R. 202; Salomons v. Staveley, Doug. 684, in note to Rushton v. Aspinall.

But, omitting to state a demand or notice is bad after verdict. Doug. 684.

Dane, in his Abridgment (vol. 1, p. 395, ch. 20, art. 10, § 1), says,-'Notice is very material. Protests are mere matter of form.' Yet notice may be very loose, and it answers in all cases, if it disclose merely the fact of demand, and a reliance on the person notified for payment. Shed v. Brett, 1 Pick. 401; Miller v. Bank of United States, 11 Wheat. 431; Gilbert v. Dennis, 3 Metc. 495; 2 Johns. Ch. R. 337; 12 Mass. R. 6; 4 Wash. C. C. Rep. 464.

'The notice, however, should inform the party to whom it is addressed, either in express terms or by necessary implication, or, at all events, by reasonable intendment, what the bill or note is, that it has become due, that it has been duly presented to the drawer or maker, and that payment has been refused.' Chitty on Bills (9th Lond. & 10th Amer. edit.), 469.

But it has again and again been held, that the notice need not state a presentment in express terms, and that it will be implied from stating a demand and non-payment, and a looking to the indorser. 9 Peters, 33; 3 Kent's Comm. 108; 10 Mass. R. 1; 4 Mason, 336; 1 Johns. Cas. 107. So, 'Your note has been returned dishonored,' is enough from which to intend all. See various other illustrations, 6 Adolph. & Ellis, 499; 5 Dowl. 771; 2 Chit. R. 364; 2 Mees. & Welsb. 109.

It may be a letter,-merely to that effect,-and need not be a copy of the protest. 1 Chit. (2d Eng. & 1st Amer. edit.), 363, 364, 498, 499; 3 Camp. R. 334; 2 Starkie, 232; Goodwin v. Harley, 4 Adolph. & Ellis, 520, 870; 4 Eq. R. 48. See 8 Mass. R. 386. And it has been adjudged, that the notice need not state, in express terms, that the note was present, or if present was exhibited, if it only contained matter from which, by reasonable intendment, this can be inferred. Chitty on Bills (last edit.) 469; 2 Peters, 254; 9 Peters, 33.

It not being necessary, then, to inform the indorser of the presentment of the note itself, in so many words, there seems to be no use in having the fact stated at length in the protest, if enough appear to render the fact probable.

It would be difficult to find a reason, in the absence of positive law, why the form of the protest should not be dealt by as liberally as that of notice; and if, like the other, it disclose a demand, allow the jury to infer from that, as in the case of notice, that the note was present. Indeed, a protest is not required to be in writing at all except in case of foreign bills, drawn on persons abroad. 1 Chitty on Bills, 643; Rogers v. Stevens, 2 D. & E. 713; 2 Starkie on Ev. 232; 6 Wheat. 572; 8 Wheat. 333; 3 Wend. 173; 2 Peters, 179; 1 Cranch, 205. And then it doubtless originated in a rule merely allowing it to be done to save the expense and trouble of bringing a witness from abroad to prove the fact, rather than making it imperative.

Instead of a written protest being better evidence than a witness of the presentment and demand in case of inland bills or promissory notes, or even foreign bills drawn on persons here, it is inferior evidence to witnesses for proving presentment and demand, and is usually inadmissible, except by special statutes. 1 Chitty on Bills, 405; 3 Pick. 415; 6 Wheat. 572; 5 Johns. R. 375; 4 Wash. C. C. Rep. 148; 4 Camp. R. 129; 2 Howard's U.S. Rep. 71; 8 Wheat. 146.

Some seem to suppose that there is danger in allowing an informal written protest to go to the jury as evidence to be weighed in proving that the note was present. But there can be no more in that than in allowing an informal notice to go to the jury. The jury must be satisfied, in both cases, and should so be instructed, that all has been done which the law in both requires. If there be any defence in either case, that all proper has not been done, it can probably be shown by counter evidence in one as well as the other. Why should it not be? and why is not that an ample security against being improperly charged? For the protest is not a written contract between the parties, or a sealed instrument not open to be contradicted by parol evidence. But it is a mere certificate of a notary, a subordinate officer, admitted for convenience as prim a facie evidence of certain facts, and allowed to that extent in order to save the expense of witnesses and delays, but ought to be always open to be impaired or disproved by the other party in interest, who has never been heard before him, and of course cannot reasonably be concluded for ever by his acts. The notary is not required to swear to them, when they are admissible as evidence, as he would be to a deposition, because of his official obligations and standing. But the character and construction that properly belong to his certificate as evidence seem to be like those of a deposition; and if it states, in so many words, that the note was presented, or states what justifies such an inference, there appears to be no good reason why the contrary may not be proved, if such was the fact, and the indorser be thus protected against statements or inferences not well founded. And the absurdity of the contrary course is still more apparent as to protests, when one made by any respectable merchant, and attested by two witnesses, in the absence of a notary, has the same validity as his. Chitty on Bills, 303; Story on Bills, § 276.

In Nicholls v. Webb, 8 Wheat. 336, counter testimony was held to be admissible against the minutes of a notary offered to prove demand and notice.

So is it admissible, that the notary mistook the place, and did not demand the bill at the place of business for the drawee. Insurance Company v. Shamburgh, 2 Martin's R. (N. S.) 513.

In Vandewall v. Tyrrell, Mood. & Malk. 87, counter evidence was offered, and avoided the protest, because the clerk of the notary, and not the notary himself, as stated in the protest, made the demand. See Chitty on Bills, 495, note.

This point thus being established on both principle and precedent, all the danger or difficulty as to the merits of the case, by admitting a protest like this, is obviated. But it is further urged against it, that presentment is averred in the declaration, and therefore must be proved. This we admit. Chitty on Bills, 643-647. And so is notice averred in the declaration and notice of a presentment, and so that must be proved. 1 Chit. 633; Doug. 654, 680. All we urge here is to let them be proved by similar general statements, from which the similar inferences may be drawn in one case as the other, that the note was present at the time of the demand, unless the contrary is shown,-as it may be, if true.

Again, it is said that the forms of protest generally state, that the bill was present or exhibited. This is true. 1 Chitty, 395, 396 (1st Amer. edit.); Story on Bills of Exchange, § 276, note.

But we are aware of no case deciding that this fact must be stated, in so many words, in the protest itself, though we admit that the jury must be satisfied that the fact existed. Minutes in the book of a messenger deceased have been held to be proof to be submitted to a jury as evidence of due demand and notice. Welsh v. Barrett, 15 Mass. R. 380. Yet there does not appear to have been a presentment stated, eo nomine, or that there was any but inferential evidence that he had the note with him. See, also, North Bank v. Abbott, 13 Pick. 469. And it is not a little remarkable, that the only statute in England (9 and 10 Will. 3) which prescribes the form of a protest, and which is in relation to inland bills of five pounds and upwards, in order to recover damages and interest, the form does not state in so many words that the bill was present or was exhibited, but merely 'at the usual place of abode of the said A. have demanded payment of the bill,' &c. Chitty on Bills, 465 (9th ed.). In such cases, precisely that, and that alone, must be done which is contended for here, namely, leave it to the jury to infer the presence of the bill from its payment being demanded, and any other facts stated, unless the contrary is shown. Look at another analogy. It is necessary that the exhibit of the note and the demand be made in the legal hours of business. Chitty on Bills, 349, 354; Ruben v. Bennet, 2 Taunt. 388; 2 Camp. 537; Parker v. Gordon, 7 East, 385; 1 Maul. & Selw. 20. But, as in respect to the presence of the note, no case holds that this must appear by so many words in the protest. And it is not stated, in the common forms, that the demand was made in the usual hours of business. 1 Chitty on Bills, 396. On the contrary, the jury are allowed or instructed that they may infer, from the statement of the demand and non-payment, that they were made within the proper hours. And if it was not, the other party would doubtless be allowed to disprove it by counter evidence.

How can such a case, then, be distinguished in principle from this?-except that there is much less in the usual form of protest from which to infer that the bill was presented in legal hours, than there is in this protest from which to infer that the bill was present when the demand was made. I am the more inclined, also, to the opinion, that this protest is competent evidence, because, under a special law in Louisiana, passed March 13th, 1827, such protests have been adjudged sufficient. Their law uses the word 'demand' when describing what the protest shall contain, and such a protest is there allowed to go to the jury as evidence from which in infer that the note was present. Nott's Executor v. Beard, 16 Louisiana R. 308.

The bill now in dispute was on its face payable in Louisiana; and hence the principles of commercial law require that the protest be made at the time and in the manner prescribed by that State. Story on Bills of Exchange, § 176; 1 Chitty on Bills, 193, 506; Story's Conflict of Laws, § 360.

But whether the statute of Louisiana prescribing what protest shall be sufficient ought to be considered as affecting any thing beyond the evidence of protest in its own courts, is not very clear on principle. (See cases, Story on Bills, § 172.)

Hence, in forming an opinion, I have placed it mainly on general considerations, though in the construction of a Louisiana statute, which clearly affected the contract, and not the evidence; and where the judgment of its court clearly rested on the statute alone, about which some doubt exists, it ought unquestionably to control us in respect to contracts made or to be fulfilled there, even if a departure from the general principles of commercial law. I wish, also, to avert some serious consequences that I apprehend may result from the decision of the majority of the court in several of the States of the Union.

Bills of exchange drawn in one State on persons in another must be considered, under the previous decisions of this court, as foreign bills. Townsley v. Sumrall, 2 Peters, 179, 586, 688; Lonsdale v. Brown, 4 Wash. C. C. R. 87, 153; 1 Hill, 44; 12 Pick. 283; 15 Wend. 527; 5 Johns. 375; Dickins v. Beal, 10 Peters, 579. Demand of payment, then, cannot be proved in suits upon them out of the State where presented, unless by a written protest, according to the cases before cited.

Whenever the protest, then, in such case, does not state in detail a presentment or presence of the bill, though stating a demand, refusal, and no objection, the protest must, as in this decision, be ruled out as incompetent evidence; and the same decision virtually implies, that no other evidence except the written protest is admissible to show that fact, or indeed any fact which may be omitted by accident or otherwise in the written protest, and that no inference can be admitted to be drawn from the protest as to presentment, when only a demand, refusal, and no objection are stated, as here. These consequences, with others before named, I would avoid, by making the protest competent evidence, and when it showed a demand, refusal, and no objection explicitly, as here, would leave it to the jury, from that and the other circumstances, to say whether they were or were not satisfied that the note was present.

In this way it is easy to reconcile full action of the jury on the facts with that of the court on the law, and this, too, without any innovation or change in the rule as to commercial paper, or any violation of adjudged cases, but rather in conformity to them and to several strong analogies.

This court have in other cases gone still farther, and held it proper even to expand or enlarge the rules of evidence in certain exigencies. In Nicholls v. Webb, 8 Wheat. 332, the principle laid down by Lord Ellenborough, in Pritt v. Fairclough, 3 Camp. R. 305, as to the rules of evidence, was adopted, namely, 'That they must expand according to the exigencies of society.' And in the Bank of Columbia v. Lawrence, 1 Peters, 583, speaking of a rule as to diligence, Thompson, J., says,-'For the sake of general convenience it has been found necessary to enlarge this rule.'

But all I ask here is to go as far as the existing rules of evidence seem to justify, and let reasonable inferences and presumptions be made by the jury from all that is stated in the protest, and thus decide whether the note was not probably present when the demand was made.

title: Musson v. Lake/Dissent Woodbury


text:
Harris v. Robinson/Dissent McLean

Mr. Justice McLEAN.

I dissent from the opinion of the court in this case with regret.

The Circuit Court instructed the jury, 'that if they believed that the notary made the inquiries stated in his deposition, and sent notice to the defendant, as therein stated, he being ignorant of his place of residence, that the notice was sufficient to charge the defendant; and that under the circumstances of the case, as proved, it was not necessary to make inquiry of the holder of the note as to the residence of the indorser.'

The note was given by John P. Burks & Co. to Matth. Burks, for sixteen hundred dollars, in eight months from its date, payable and negotiable at the Planters' Bank of the State of Tennessee, at Nashville. It was indorsed by Matth. Burks, Beniamin D. Harris, the defendant below, and also by J. Robinson, the plaintiff. The note does not appear to have been negotiated at the bank. A. Kingsley, the notary, made a demand of payment at the bank when the note become due, but it does not appear who delivered it to him. Notices of non-payment were directed by the notary to Matth. Burks and Benjamin D. Harris, the two first indorsers, to Madison county, Alabama.

He did not know where these indorsers resided, but Hobson, the cashier of the bank, to whom he applied for information as to their place of residence, informed him that they lived in the above county and State. Similar information was communicated to him by Joseph Estell, but neither of these individuals knew the postoffices nearest to the respective indorsers.

Bradley, a witness, stated, that, previous to the maturity of the note, Robinson directed to him, at Huntsville, Madison county, Alabama, notices to all the parties to the note, requesting him to hand them to Harris and the other parties, stating the time when it would become due. And that witness directed the notices to the respective post-offices of the parties. To Harris, he directed the notice to the post-office at 'Cross Roads,' Madison county, Alabama.

On this state of facts, the court instructed the jury, 'that the notary was not bound to inquire of the holder as to the residence of the indorsers.'

The notary did not act for himself, but as agent of the holder; and it was proved that Robinson, who appears to have been the holder, resided in the same town with the notary, and knew the proper direction for the notices. Now the holder is bound to give the notice himself, or through his agent; and can he evade the law by employing an agent who is ignorant of the residence of the indorser, which is known to himself. He knows where the indorser resides; is he not then bound to direct the notice as the law requires? It is a new principle in the law of agency, that the knowledge of the principal shall not affect him, provided he can employ an agent who has no knowledge on the subject. The holder is bound to communicate to the notary all the knowledge he has, so that the notice may be properly directed. And if this be not done, and the notice is improperly directed, the holder loses his recourse against the indorser. This seems to me to be clear of all doubt.

In the case of Preston v. Daysson et al., 7 Louisiana Rep. 7, it was held, 'that the holder of a bill or note ought not to avail himself of the ignorance of the notary as to the residence of the indorsers in giving them notice of protest; if he knows, he must disclose their residence, or it seems that his neglect will discharge the indorsers.' And this is the case now before the court.

There was no proof that the notary knew where Robinson, the plaintiff below, resided; but it is proved that he lived in the same town, his name being on the note, and from the fact that the notary gave no notice to him, as indorser, it is clear that he knew he was the holder. In Hill v. Varrell, 3 Greenl. 233, it was held, 'that where the residence of the drawer of a bill is unknown to the holder, he ought to inquire of the other parties to the bill if their residence is known to him.' And in Hartford Bank v. Stedman, 3 Conn, Rep. 489, 'where the holder, who was ignorant of the indorser's residence, sent the notice to A., who was acquainted with it, requesting him to add to the direction the indorser's place of residence, it was held sufficient.'

'If the holder of a bill uses reasonable diligence to discover the residence of an indorser, notice given as soon as this is discovered is sufficient.' Preston v. Daysson et al., 7 Louisiana Rep. 7. In Beveridge v. Burgis, 3 Camp. 262, Lord Ellenborough said,-'Ignorance of the indorser's residence may excuse the want of due notice, but the party must show that he has used reasonable diligence to find it out. Has he done so here? How should it be expected that the requisite information should be obtained where the bill was payable? Inquiries might have been made of the other persons whose names appeared upon the bill,' &c. In Bateman v. Joseph, 12 East, 433, 'in an action by an indorsee against the payees and first indorser of a bill, it appeared the plaintiff received notice of its dishonor on the 30th of September, in time to give notice to the defendant on that day; he gave no notice, however, until the 4th of October; to excuse which, his clerk proved that the plaintiff did not know the defendant's residence until that day. Lord Ellenborough left it to the jury, whether the plaintiff had used due diligence to find the defendant's residence.'

In Story on Promissory Notes, 370, note 1, it is laid down, 'That merely inquiring at the house where a bill is payable is not due diligence for finding out an indorser. Inquiry should be made of some of the other parties to the bill or note, and of persons of the same name.' And again, in page 368, note,-'To excuse the not giving regular notice of the dishonor of a bill to an indorser, it is not enough to show that the holder, being ignorant of his residence, made inquiries upon the subject at the place where the bill was payable; he should have inquired of every other party to the bill.'

There is no pretence that the bank was the holder of this bill. For the evidence showed that the notary did inquire of the cashier of the bank where the indorsers resided. But the court charged, that, under the circumstances, it was not necessary for the notary 'to make inquiry of the holder of the note as to the residence of the indorser'; the court, therefore, referred to Robinson as the holder, and not to the bank. This charge is wholly inconsistent with the supposition that the note was discounted by the bank, for then it would have been the holder, and the proper inquiry, as to the residence of the indorsers, was made of it. The note bears no marks of its having been discounted. That Robinson was the holder appears from the notice he gave to the parties when the note would become due, from the fact that he was not notified as an indorser, and also that he commenced suit as the holder, after the dishonor of the note.

The turning point in the case is, whether the holder, in failing to give the proper direction to the notices by this agent, the notary, is not answerable for the knowledge he possessed of the residences of the indorsers, which he failed to communicate to the notary. I care not whether or not Robinson knew the post-offices of the indorsers. He had communicated with them through Bradley, the witness, and if the notices had been thus sent, the law required nothing more.

It will be observed, that the cases cited show the duty of the holder as to giving notice. And it is believed no case has been reported, except the one cited from Louisiana Reports, where it has been supposed that a principal having knowledge of the residence of the indorsers could excuse himself from giving notice to them by a want of such knowledge in his agent. That the notary knew Robinson was the holder is conclusively shown, as before remarked, by not treating him as an indorser. His name was upon the note as an in dorser, and he must have understood the purpose for which the indorsement by him was made.

All the authorities say the holder is bound to use reasonable diligence to ascertain the residence of the indorser; and when he attains that knowledge, is he not governed by it? And if so, is he not equally bound to communicate it to his agent whom he may employ to give the notice? A denial of this principle will overthrow the doctrine of notice, as established for more than half a century.

I think the judgment should be reversed, and the cause remanded for a venire de novo, in the Circuit Court.

Mr. Justice McKINLEY dissented also.

title: Harris v. Robinson/Dissent McLean


text:
Smyth v. Strader/Concurrence Catron

Mr. Justice CATRON.

In this case, my opinion is founded on considerations that differ so much from those proceeded on in the principal opinion, that I am under the necessity of stating my own views, or of dissenting, which I am not prepared to do.

In the first place, Stevenson had been one of the firm of Strader, Perrine, & Co. He made the note payable to himself, and signed the name of the firm to it. Being both a maker and the payee, the note was void on its face, or at least could have no legal effect; when negotiated, that is, when it was indorsed by Stevenson, and sold to Stinson & Campbell, it could only become a binding instrument in their hands on Strader, Perrine, & Co., as Stinson & Campbell could enforce payment. The time of negotiation, therefore, is the true date of the note.

It is in proof, that the firm of Strader, Perrine, & Co. was dissolved on the 23d of April, 1836, and that the usual advertisement was then made of the fact. This bound all persons who had not had previous dealings with the firm; nor is there any proof found in the record, showing that either Stinson & Campbell, or Smyth, the plaintiff, had had any such dealings. If the note was negotiated, therefore, to Stinson & Campbell, after the dissolution of the partnership, it was void, and does not bind Perrine, inasmuch as Stevenson had no power to bind him.

2. Perrine is proved to have withdrawn from the firm in December, 1835. But as no regular notice was given of this fact, it rests on him to bring home knowledge of it to the holder of the paper. If Stinson & Campbell had knowledge, when they took the note from Stevenson, then they could not have recovered from Perrine on it.

So again, if Stinson & Campbell took the note from Stevenson in discharge of the individual debt of the latter, they could not recover from Perrine, whether he was or was not a partner at the date of its negotiation. The proof of either of these events is imposed on the plaintiff. But having shown either of the two last circumstances, then the plaintiff is bound to prove 'under what circumstances, or for what value, he became the holder.' I need only refer to Chitty on Bills (9th ed.), 648, for the established rule. If the plaintiff fails to show, in such case, that he came by the note in the due course of trade, and before it fell due, then the defendant is entitled to a verdict.

3. In regard to the question of the competency of Strader's evidence, I have found much difficulty. The competency of Strader to depose, in the principal opinion, is held to be governed by the cases of United States Bank v. Dunn, 6 Pet. 51, and Bank of Metropolis v. Jones, 8 Pet. 12. In the one case, Carr, the first indorser, was introduced by the second indorser, Dunn, who was sued to make out a defence. In the second case, Jones, the indorser and defendant, introduces Mr. Blake, the maker of the note, to establish a defence; and, in each instance, this court held that the witness was incompetent to invalidate the negotiable paper to which he was a party; and the decision in Walton v. Shelley, 1 Term R. 296, was followed. Of this case, Mr. Chitty says (669),-'Though it was formerly held, that no party should be permitted to give testimony to invalidate an instrument he had signed, a contrary rule now prevails'; and refers to Bent v. Baker, 3 Term R. 36, and Jordaine v. Lashbrooke, 7 Term R. 601. 'The general rule is,' says Chitty, 'that it is no objection to the competency of a witness, that he is also a party to the same bill or note, unless he be directly interested in the event of the suit, and he be called in support of such interest; or unless the verdict, to obtain which his testimony is offered, would be admissible evidence in his favor in another suit.' This was the principle on which the cases of Bent v. Baker and Jordaine v. Lashbrooke proceeded. By the statute of 3 and 4 Will. IV., ch. 42, § 26, for the amendment of the law, the rule was enlarged, so as to let in parties to negotiable paper as witnesses for or against whom the verdict and judgment might be evidence, the statute providing that the record should not be evidence for or against them. And thus the law of evidence, in this regard, now stands in the courts of Great Britain. It is also settled, and had been, long before 1832, when the decision in the Bank of the United States v. Dunn was made, in a large majority of the States of this Union, in accordance with the principles laid down in Jordaine v. Lashbrooke, and Bent v. Baker; and the question now is for this court to determine how far the United States Circuit Courts, when acting in the States, shall enforce the doctrine laid down in Dunn's case, and which was very properly applied in that of Jones. The decision is,-'That no man who is a party to the note or bill shall, by his own evidence, invalidate it.' But suppose he is no party to it, and that his name has been put on it, or to it, by forgery, and he is called on by another to establish that the defendant's name was forged, as well as that of the witness, is he then competent? He gave no credit to the paper; and, if the evidence of all those who could prove the defence is cut off, by the mere name appearing, nothing more would be required to effectuate the fraud, than to put on the names of all persons who could prove the fraud. In such an instance, I feel sure the rule laid down by this court does not apply. Nor can I, satisfactorily to my own mind, distinguish the case put from one where a fraudulent note is made in the name of a firm, by one of the original partners, after the dissolution of the partnership, when he had no authority to use the name of those he attempts to bind. Indeed, it is difficult to say that Stevenson was not guilty of forgery, if he made the notes, and passed them off to Stinson & Campbell, after the dissolution of the partnership, in discharge of his own debt, and with the intention to defraud his former partners. In the cases that have heretofore come before this court, the witnesses proved in advance that they gave credit to the paper, by signing their names; and that they were, beyond dispute, parties to it, as well as the defendant.

The principle assumed in Walton v. Shelley is in violation of one of the most familiar and general principles of evidence known to courts of justice; that is to say, that any person of sufficient age and sanity can be a competent witness to depose in any cause where he is not directly interested in the event of the suit. To this rule there are exceptions, but they are almost uniformly favorable to the admission of the testimony, are of comparatively recent origin, founded on experience, and conducive to the due administration of justice in a high degree.

Again, the act of May 19, 1838, declares, that 'the forms and modes of proceeding in suits, in the courts of the United States (in States admitted into the Union since 1789), in those of common law, shall be the same in each of those States respectively as are now used in the highest court of original and general jurisdiction of the same.'

That the court below proceeded, in the admission of Strader as a witness, according to the modes of proceeding in the Circuit Courts of the State of Alabama, is not questioned. The method and manner of administering justice in the State courts is the mode referred to in the act of Congress, as I understand it; and I cannot resist the conclusion, that the modes prescribed by the act of Congress to the federal courts held in that State embrace the rules in regard to the competency of evidence; without evidence there can be no proceedings; rules for its admission are indispensable; these rules must be derived from some authority; from statutes they cannot be, and therefore Congress has said the State courts shall furnish them to the foreign tribunals administering, the laws there,-and this for the plain reason, that the measure of justice shall be the same in the foreign that it is in the domestic tribunals, and evidence is the measure of justice in great part.

There can be no objection to the competency of Strader because he was a party of record. The original writ issued against him and Perrine jointly; but Strader was not found, and a nolle prosequi was entered as to him, and Perrine was declared against alone.

I concur that the charge of the Circuit Court was erroneous in so far as it assumed that the instruments sued on were subject to the same equities in the hands of Smyth that they were when held by Stinson & Campbell. The courts of Alabama have construed the statutes of that State affecting negotiable paper, and held they did not apply to notes payable in bank; of which description are the ones sued on. The charge, therefore, violated the commercial rule, that the innocent indorsee takes the paper discharged of a previous infirmity.

title: Smyth v. Strader/Concurrence Catron


text:
Page:Flora Australiensis Volume 5.djvu/327

 peltata, the involucre of 4 or 5 bracts, the central female flowers sessile, the two lateral male ones on short pedicels articulate below the middle. Involucel of 2 distinct broad concave bracts enclosing the perianth-tube or ovary. Perianth-segments usually 8 in the males, 10 in the females, about 3 lines long, in 2 rows (one of the inner rows deficient in one flower examined). Stamens 4, the filaments slender, with 2 glands. Style slender, glabrous, with a broad crenate stigma. Involucel enclosing the fruit nearly 2 in. long, very broad, cordate at the base, much inflated, of an almost membranous texture when dry and reticulate, but drying black, divided nearly to the base into 2 valves. Fruit about 10-ribbed, with a very small terminal umbo. Seed as in H. peltata

 CIV. PROTEACEAE

Flowers hermaphrodite or rarely partially unisexual. Perianth regular or irregular, deciduous, consisting of 4 segments valvately united in the bud, the claws forming a tube cylindrical or dilated towards the base, the laminæ short, forming a globular ovoid or rarely elongated limb; the segments at length separating either from the base upwards or revolute from the laminæ downwards, leaving a portion of the tube entire or open on one side, the laminæ sometimes cohering long after the segments have separated lower down. Stamens 4, opposite the perianth-segments and usually inserted on them, either with the filaments wholly adnate leaving the anthers sessile at the base of the laminæ, or the filaments shortly free below the laminæ, or very rarely the stamens, entirely free from the perianth; anthers various, all perfect or rarely partially abortive, most frequently with 2 parallel cells adnate to a connectivum continuous with the filament. Hypogynous or perigynous glands or scales in many genera 4, alternating with the stamens, but in some genera variously united or reduced in number or wholly deficient. Ovary 1-celled, sessile or stipitate, more or less excentrical, with a single terminal undivided style, variously shaped at the end, with a small terminal oblique or lateral stigma. Ovules either solitary, or 2 collaterally attached or slightly superposed, or several imbricate in 2 contiguous rows, either pendulous and orthotropous, or more frequently laterally attached and more or less amphitropous, rarely erect and anatropous, the micropyle always inferior and frequently prominent from the incomplete development of the primine. Fruit either an indehiscent nut or drupe, or a more or less dehiscent coriaceous or woody follicle, very rarely a completely 2-valved capsule; either 1-celled and 1-seeded, or when 2 seeds are ripened in a drupe sometimes really 2-celled from the growth of the endocarp between as well as round the seeds, or when 2 or more seeds ripen in a follicle, apparently 2- or more-celled by the consolidation of the external coating of the 2 adjoining seeds into a membranous or woody plate detaching itself from the remainder of the seed. Seeds without albumen, the testa usually


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Page:Flora Australiensis Volume 5.djvu/328

 316 thin, rarely coriaceous or hard; embryo straight, with fleshy cotyledons and a short inferior radicle.—Shrubs or trees, rarely undershrubs or even perennial herbs. Leaves alternate or scattered, in a very few genera strictly, opposite or verticillate, but often crowded under the inflorescence so as to appear verticillate, usually coriaceous, often vertical with stomata on both sides, or in the same genera horizontal or narrow and terete, entire toothed or variously divided, without stipules. Flowers axillary or terminal, solitary or in racemes or spikes, often condensed into umbels heads or cones, each flower or pair of flowers subtended by a bract, very deciduous in some genera and perhaps sometimes really deficient, the pedicels always without bracteoles.


text:
Wilson v. Rousseau/Dissent McLean

Mr. Justice McLEAN.

As I dissent from the opinion of the court, in their answer to to the second question certified, I will state, in few words, the reasons of my dissent.

The question is, whether the extension of the patent, under the act of 1836, to William W. Woodworth, the administrator, inured to the benefit of the assignees of the first patent.

I had occasion to consider this question in the case of Brooks and Morris v. Bicknell and Jenkins, on my circuit, and on a deliberate examination of the eighteenth section of the above act, I came to the conclusion, that unless the assignment gave to the assignee the right in the extended or renewed patent, his interest expired with the limitation of the original patent.

The lamented Justice Story, without any interchange of opinion between us, about the same time, gave the same construction to the section. The late Mr. Justice Thompson, and several of the district judges of the United States, have construed the act in the same way.

The eleventh section of the act makes the patent assignable in law, either as to the whole interest or any undivided part thereof, by any instrument of writing, which is required to be recorded in the patent-office within three months from the date.

By the eighteenth section, the patentee may make application or the extension of his patent to the Commissioner, who is required to publish a notice of such application 'in one or more of the principal newspapers in the city of Washington, and in such other paper or papers as he may deem proper, published in the section of country most interested adversely to the extension of the patent.' 'And the Secretary of State, the Commissioner of the Patent-office, and the Solicitor of the Treasury shall constitute a board to hear and decide upon the evidence produced before them both for and against the extension, and shall sit for that purpose at the time and place designated in the published notice thereof. The patentee shall furnish to said board a statement in writing, under oath, of the ascertained value of the invention, and of his receipts and expenditures, sufficiently in detail to exhibit a true and faithful account of loss and profit in any manner accruing to him from and by reason of said invention. And if, upon a hearing of the matter, it shall appear to the full and entire satisfaction of the said board, having due regard to the public interest therein, that it is just and proper that the term of the patent should be extended by reason of the patentee, without neglect or fault on his part, having failed to obtain, from the use and sale of his invention, a reasonable remuneration for the time, ingenuity, and expense bestowed upon the same, and the introduction thereof into use, it shall be the duty of the Commissioner to renew and extend the patent,' &c.; 'and thereupon the said patent shall have the same effect in law as though it had been originally granted for the term of twenty-one years. And the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented, to the extent of their respective interest therein.'

This section embraces patents previously issued, and the construction now to be given to it operates on all cases of extensions under it, whether the assignments were made before or after the passage of the act.

The object of this section is so clearly expressed as not to admit of doubt. It was for the exclusive benefit of the patentee; for the extension can only be granted when it shall be made to appear that the patentee, 'without neglect or fault on his part, having failed to obtain, from the use and sale of his invention, a reasonable remuneration for his time, ingenuity, and expense,' &c. This, then, being the clear intent of Congress, expressed in this section, it must have a controlling influence in the construction of other parts of the section. A statute is construed by the same rule as a written contract. The intent of law-makers, and of the persons contracting, where that intent clearly appears, must be carried into effect. Where the statute or the contract is so repugnant in its language as not to show the intent, then no effect can be given to it. If the words used be susceptible of such a construction as not only to show the intent, but to enable the court to give effect to it, it is the duty of the court so to construe it.

Bacon, on the construction of statutes, says,-'The most natural and genuine way of construing a statute is to construe one part by another part of the same statute; for this best expresseth the meaning of the makers.' And,-'If any part of a statute be obscure, it is proper to consider the other parts; for the words and meaning of one part of a statute frequently lead to the sense of another.' 'A statute ought, upon the whole, to be so construed, that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'

That the patentee may have his patent extended, though the assignee held the entire interest in it, is undoubted. He has only to show that he has not been reimbursed, &c., within the meaning of the section, to establish his claim for an extension. And, in such a case, if the benefit of the extension go to the assignee, he having the entire interest in the patent, how is the patentee benefited? And yet the law was enacted exclusively for his benefit. Does not such a construction defeat the object of the law? And if it does, can it be maintained? Where the assignment of the patent has been for less than the whole, the same objection lies, though the object of the law is subverted only to the extent of the assignment.

The interest of the assignee, it is supposed, is protected by the provision, that 'the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented, to the extent of their respective interest therein.' There can be no doubt that the words, 'to the extent of their respective interest therein,' refer to their right to use the thing patented; and this, it is contended, is the benefit which results to the assignee from the renewal. That this would seem to be the import of these words, disconnected from other parts of the section, is admitted; but such a construction is wholly inadmissible, when the object of the section is considered.

The patent is extended for the benefit of the patentee. This is so obvious that no one will deny it. And the above construction gives the benefit to the assignee. Here is a direct repugnancy, and there is no escape from it; for the same repugnancy exists, though in a less degree, where a part of the patent only has been assigned. Under such circumstances, we must inquire whether this repugnancy may not be avoided by giving another and a different application to the provision, of which the words may be susceptible.

The benefit of the renewal is given to the assignees; but to what extent?-to the extent of their interest in the renewal. But it is said, that this cannot be the true construction, as it renders the provision inoperative. If, by the assignment, there was an express contract that the assignee should enjoy the same interest in the renewal or extension of a patent, this would secure such interest, without the provision.

To this it may be answered, that such an assignment of a thing not in esse would, at most, only be a contract to convey the legal right. But, under the eighteenth section, the assignment after the extension becomes a legal transfer. In addition to this, the right under the extension being legal, all purchasers would be affected with notice, where the assignment had been recorded in the patent-office. This view gives effect to the section, and harmonizes its provisions. The other construction makes the parts of the section repugnant, and nullifies the whole of it. Now, which is the more reasonable view? But, in addition to this, what conceivable motive could Congress have had to give a boon to the assignee? How is he injured by the extension?

Without the extension, the assignee would only have a right, in common with all others, to use the invention. This could be of no more value to him than the worth of his machinery; for competition equally open to all cannot be estimated of any value. Under the assignment, the assignee claims a monopoly. Now, did Congress intend to give him this boon? Why should he be an object of public munificence? He laid out his money in the purchase of the patent right, because he believed it would be profitable. And, in most cases, the assignee speculates upon the poverty of the inventer. Inventers are proverbially poor and dependent. The history of this patent illustrates strongly this fact. Half of the right was originally assigned to pay the expense and trouble of taking out the patent. Another part of the patent was assigned to compromise a pretended claim to a similar invention.

The hardship complained of by the assignee is more imaginary than real. If the patentee takes all the benefit of the extension, the assignee loses, it is said, the value of his machinery. This does not necessarily follow. For if the machinery has been judiciously selected, and put in operation at a proper place, it will sell for its value generally, if not always. If the invention be of great value, as is undoubtedly the case in this instance, the machinery will be wanted by any one who may wish to continue the business, under the extended patent. So that the loss in the sale of the machinery would not be greater than would have been suffered by a sale if the patent had not been extended.

This construction, then, inflicts little or no injury on the assignee, whilst the other construction, as has been shown, defeats the object of the statute. But this inconvenience or loss to the assignee is duly considered and weighed, under the statute, as the board, in granting the extension, must have a due regard to the public interest. Notice is to be given, as far as practicable, to all persons interested against the extension of the patent, who may appear before the board and oppose it. And it was stated in the argument, that the assignees of this patent did oppose the extension of it. Little did they suppose at the time that they were resisting a boon secured to them by the above section. Whatever loss, real or imaginary, the assignee may suffer from the extension of the patent, is a loss or inconvenience which results from the general advancement of the public good, and for which society does not, and indeed cannot, make compensation. The price of property is affected by general legislation. An embargo is laid, and ships, during its continuance, are valueless. The increase or diminution of the tariff affects beneficially or injuriously the value of machinery used in manufactures. The reduction of the price of the public lands affects the price of lands generally in the new States. An act authorizing a company or individual to construct a railroad renders useless turnpike roads in its neighbourhood, and the public houses established thereon; but for these injuries no compensation is made. Indeed, it is difficult to find any great public enterprise which does not, in a greater or less degree, affect injuriously private rights. But these must yield to the general welfare of society.

All enlightened governments reward the inventer. He is justly considered a public benefactor. Many of the most splendid productions of genius, in literature and in the arts, have been conceived and elaborated in a garret or hovel. Such results not only enrich a nation, but render it illustrious. And should not their authors be cherished and rewarded?

If the assignee under the eighteenth section take any thing, in my judgment he takes the whole extent of his interest,-the whole or nothing. And it appears to me the construction given by the court is, if possible, less warranted by the section, than to hold that the assignee takes under the extension the entire interest assigned.

The words, 'and the benefit of such renewal shall extend to assignees and grantees of the right to use the thing patented, to the extent of their respective interest therein,' cannot, it seems to me, by any known rule of construction, be held to give to the assignee or grantee the right to use the machine he may have had in operation at the time the extension took effect. The words, 'to use the thing patented,' are descriptive of the right assigned or granted, and refer to such right, not to the mere use of the machine. 'The extent of their respective interest therein' undoubtedly covers the whole interest, and cannot refer merely to the number of machines the individual may have in operation.

Mr. Justice WAYNE expressed his dissent from that part of the opinion of the court which, in answer to the second question, gave a right to an assignee to continue the use of the patented machine, and said he would probably file his reasons with the clerk.

title: Wilson v. Rousseau/Dissent McLean