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 Scots parliament down to 1548, and in 1548 was sent to England with David Panter [q. v.] to convey the ratification of Scotland's inclusion in a treaty of Campe between France and England (Act of Scots Parl. ii. 451, &c.; Fœdera, xv. 93). May 1547 he was again accredited to England, this time by Mary of Guise herself (, Calendar, i. 63). More than a year later he was with the army besieging the English in Haddington, and about the beginning of July received a wound in the head from which he seems to have died (ib. i. 90).

 OTTHEN, D'OTTHEN, or D'OTHON, HIPPOCRATES (d. 1611), physician, was descended of a noble family of Otthens in Alsace, but was educated and became doctor of medicine at the university of Montpellier, France. He came to England in the train of his futher, the emperor’s physician, who had been summoned by Queen Elizabeth. Pressed into the service of the Earl of Leicester, ‘who desired him to pertain unto him,' he continued in the latter's service for many years, both at home and in the Low Countries. He was admitted a licentiate of the Royal College of Physicians on 4 July 1589, being described as ‘vir doctus et practicator bonus.' On the death of Leicester he entered the service of the Earl of Essex, and, by Elizabeth's command, attended him in the wars of France and the expedition to Cadiz. After his return to England he was ordered by Elizabeth to attend Mountjoy in Ireland. He subsequently accompanied, in the same capacity of phyaician, the Earl of Hertford, the English ambassador to the Archduke of Austria. The rest of his life was spent in private practice. On 12 June 1609 he was incorporated M.D. at Oxford. He died on 3 Nov. 1611, and was buried in the church of St. Clement Danes, London, where a monument, with inscription, was erected to his memory on the south aide of the chancel (see, Survey of London, iv. 113). Otthen married Dorothy, a daughter of Roger Drew of Densworth in Sussex, esquire. After his death she married Sir Stephen Thomhurst of Kent, and died on 12 June 1620, aged 55. She was buried in Canterbury Cathedral, where a monument was erected to her memory.

 OTTLEY, WILLIAM YOUNG (1771–1836), writer on art and amateur artist, born near Thatcham, Berkshire, on 6 Aug. 1771, was the son of an officer in the guards. He became a pupil of George Cuit or Cuitt the elder [q. v.], and studied in the Royal Academy schools. In 1791 he went to Italy, and stayed there ten years, studying art and collecting pictures, drawings, and engravings. On his return he became a leading authority on matters of taste, and assisted collectors in the purchase of works of art and the formation of picture galleries. His own fine collection of drawings by old Italian masters he sold to Sir Thomas Lawrence [q. v.] for 8,000l. It formed the principal part of the magnificent collection of that artist, the dispersion of which, at his death, was a cause for national regret. But Ottley is chiefly known as a writer on art, and by the series of finely illustrated works which he published. He began in 1805 with the first part of ‘The Italian School of Design,’ a series of etchings by himself, after drawings by the old masters. The second part was published in 1813 and the third in 1823, when the whole work was issued in one volume. In 1816 he published an ‘Inquiry into the Origin and Early History of Engraving on Copper and Wood,’ which was followed by four folio volumes of engravings of ‘The Stafford Gallery.’ In 1826 came ‘A Series of Plates after the Early Florentine Artists.’ Two volumes followed in 1826–8 of facsimiles, by himself, of prints and etchings by masters of the Italian and other schools. In 1831 he published ‘Notices of Engravers and their Works;’ the commencement of a dictionary of artists, which he decided not to continue; and in 1863, after his death, appeared ‘An Inquiry into the Invention of Printing,’ which may be regarded as a companion to his work on the origin of engraving. Besides these works, he published in 1801 a catalogue of Italian pictures, which he had acquired during his stay in Italy from the Colonna, Borghese, and Corsini Palaces; ‘A Descriptive Catalogue of the Pictures in the National Gallery,’ 1826; and ‘Observations on a MS. in the British Museum,’ a controversy concerning Cicero's translation of an astronomical poem by Aratus.

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 . His contribution was a spirited but unfinished drawing of ‘The Battle of the Angels;’ and in the same year he was appointed keeper of prints in the British Museum, a post he retained till his death on 26 May 1836. Some vigorous pencil and tinted drawings, dated 1804, show mastery of drawing and imagination. Similar drawings are in the British Museum.

Although Ottley's writings did not reach a very high standard, and are now superseded, they were of much service in spreading knowledge and stimulating inquiry, and have furnished material for later writers. In the British Museum are catalogues of two sales of his pictures, in 1811 and 1837.

 OTWAY, CÆSAR (1780–1842), miscellaneous writer, son of Loftus Otway, was born in 1780 in co. Tipperary of an English family long settled there. He matriculated at Trinity College, Dublin, on 6 Dec. 1796, being then sixteen years of age, graduated B.A. in 1801, and, after being ordained, was given the curacy of a country parish, where he remained seventeen years. His second appointment was to the assistant-chaplaincy of Leeson Street Magdalen Chapel, Dublin, where he became one of the leading preachers. In conjunction with Joseph Henderson Singer [q. v.], he started, in 1825, the ‘Christian Examiner,' the first Irish religious magazine associated with the established church. It was in this periodical that William Carleton, encouraged by Otway, begun his literary career. Otway was an enthusiastic antiquary and an admirer of Irish scenery, and he co-operated with George Petrie [q. v.] in the first volume of the ‘Dublin Penny Journal.’ in which he wrote under the pseudonym of ‘Terence O'Toole.’ He was also a contributor to the ‘Dublin University Magazine.’ Ill-health prevented him from realising his design of writing a history of Ireland, and of editing the works of Sir James Ware. He died in Dublin on 16 March 1842.

His works are: 1. ‘A Letter the Roman Catholic Priests of Ireland’ (signed ‘C. O.'), 8vo, 1814. 2. 'A Lecture on Miracles...with Appendices' 8vo, 1823. 3. ‘Sketches in Ireland,' anon. 8vo, 1827, 4. ‘A Tour in Connaught,' anon. 8vo, 1839. 5. ‘Sketches in Erris and Tyrawly,' anon. 8vo, 1841. 6. ‘The Intellectuality of Domestic Animals,' a lecture, 16mo, 1817.

 OTWAY, ROBERT WALLER (1770–1846), admiral, seoond son of Cooks Otway of Castle Otway, co. Tipperary, by Elizabeth, daughter of Samuel Waller of Lisbrian, Tipperary, was born on 26 April 1770. He entered the navy in April 784 on board the Elizabeth, guardship at Portsmouth, with Captain Robert Kingamill. In September 1785 he joined the Phaeton in the Mediterranean. The Phaeton was paid off in August 1786, and in November Otway joined the Trusty, going to the Mediterranean with the broad pennant of Commodore Cosby. On the return of the Trusty in February 1789, he was entered on board the Blonde, going to the West Indies, where, and on the coast of Africa, in different ships, he remained till promoted to the rank of lieutenant. on 8 Aug. 1793. In December he was appointed to the Impregnable of 98 guns, bearing the flag of rear-admiral Benjamin Caldwell [q.v.], and in her was present in the battle of l June 1794. On this occasion the Impregnable foretopsail-yard was badly injured, and Otway, accompanied by a midshipman, going aloft, succeeded in securing it so that the ship remained under control-a timely service, for which Caldwell publicly thanked him on the quarter-deck. Shortly afterwards, when, on his appointment as commander-in-chief in the West Indies, he shifted his flag to the Majestic, he took Otway with him as first lieutenant, and in the following January promoted him to the command of the Thorn sloop.

In her, in April, Otway captured La Belle Creole, a large schooner fitted out from Guadeloupe by Victor Hugues, in order to co-operate with the disaffected inhabitants of Saint-Pierre, Martinique, in burning the town and massacring the royalists, who, in acknowledgment of the service thus unwittingly rendered them, presented Otway with a sword valued at two hundred guineas. In May he captured the Courier National, a sloop of greatly superior force (cf. i. 321). He afterwards rendered important assistance against the insurgents in St. Vincent and Grenada, and on 30 Oct. 1795 was posted by Sir John Laforey [q.v.], the new commander-in-chief, to the 32-gun frigate Mermaid (see, iv. 5 n.) In her, and afterwards in the Ceres of 32 guns and the Trent of 36, Otway, continuing in the West Indies for the next five years, had a singularly adventurous and successful career. He had an important share in the capture of Grenada in 1796; he cut out or destroyed several la privateers; and in July 1796, having information that the frigate Her-

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and the marches, though his patent is dated 16 April 1553. In 1557 he purchased of the crown the manor of Rishangles, Suffolk, subject to the life estate of Robert Chichester. He is said to have frequently warned his superiors of the 'ill condition' of Calais. When it was taken by the Duke of Guise on 7 Jan. 1557-8 he was made a prisoner and sent to the Bastille in Paris. He lost a good estate which he had purchased about Calais, and his ransom was set high. On 2 July 1558 he, Thomas, lord Wentworth, and others were indicted in London for high treason for a private agreement with the king of the French to surrender Calais. In October 1559 he was still a prisoner in the Bastille. He was lodged in the top of the building, but, procuring a file and a rope, changed his clothes with his servant, and escaped. He cut his beard with a pair of scissors supplied by his servant, managed to pass for a Scot, and got to England about the middle of November. He surrendered himself to the indictment against him, and was confined, first in Sir John Mason's house, and afterwards in the Tower of London. On 28 Nov. a special commission was issued for his trial. He was arraigned at the Guildhall, London, on 1 Dec. The jury acquitted him, and he was forthwith discharged (Cal. State Papers, For. Ser. 1559, 1560, pp. 56, 137, 156). In July 1560 Grimston was appointed muster-master of the army of the north, and by 6 Aug. following had taken up his quarters at Berwick. Many interesting letters from him describing the bad state of the garrison are extant. The queen desired to recall him at Michaelmas, but he stayed on until the middle of November (ib. 1560-1, 1561-2, pp. 30, 74). To the parliament which assembled on 11 Jan. 1562-3 he was returned for Ipswich.

On 25 June 1565 he was a second time appointed to some charge at Berwick, and he was at that town on 13 Sept. following. He was again returned for Ipswich to the parliaments which met on 2 April 1571 and on 8 May 1572. As a justice of the peace Grimston showed himself a relentless persecutor of the Roman catholics (ib. Dom. Ser. 1591-1594 p. 178, 1595-7 pp. 239, 241 ; Addenda, 1566-79, p. 527). He was also sent abroad to report evidence of popish plots. In December 1582 he was at Paris and Orleans. In 1587 he appears to have been taken as secretary to Sir Edward Stafford, the English ambassador at the court of France, on the recommendation of Walsingham. In December of that year he sent to Walsingham copies of certain papists' letters directed to a cousin of his at Paris. He was very angry with Sir Edward Stafford for not allowing him to present the originals in person. One letter apparently referred to the intrigues of the priest Gilbert Gifford [q. v.], who was forthwith lodged, at the instance of Stafford, in the prison of the Bishop of Paris. Grimston concludes his letter by stating his intention of shortly visiting Geneva, 'where I shall remain to do you service' (ib. Dom., Addenda, 1580-1625, pp. 81, 198, 223-38). He died on 17 March 1599. He is sometimes, but incorrectly, stated to have been ninety-eight years of age.

On his brass within the altar rails at Rishangles he is described as 'Edward Grimeston, the Father of Risangles, Esquier.' There is a half-length portrait of Grimston, by Holbein, at Gorhambury. He was twice married. His son, Edward Grimston, by his first wife, M.P. for Eye in 1588, married Joan, daughter of Thomas Risby of Lavenham, Suffolk, and grand-daughter of John Harbottle of Crossfield, and died in 1610. He was grand-father of Sir Harbottle Grimston [q. v.]

[Cooper's Athenæ Cantabr. ii. 280-1 .]

 GRIMSTON or GRYMESTON, ELIZABETH (d. 1603), poetess, was the daughter of Martin Bernye of Gunton, Norfolk, and married Christopher, the youngest son of Thomas Grimston of Grimston, Yorkshire. Her married life appears to have been rendered miserable by the cruelty of her mother, whereby she became a chronic invalid. Reduced, as she described it, to the condition of 'a dead woman among the living,' she 'resolved to break the barren soil of her fruitless brain,' and devoted herself to the compilation of a moral guide-book for the benefit of her son Bernye Grymeston, the only survivor of her nine children. She died in 1603 before the publication of her work, which appeared under the title of 'Miscelanea : Meditations : Memoratives,' by Elizabeth Grymeston, London, 1604, 4to. The book is divided into fourteen so-called chapters, most of which are brief essays on religious topics. The eleventh chapter is headed 'Morning Meditation, with sixteen sobs of a sorrowful spirit, which she used for a mentall prayer, as also an addition of sixteen staves taken out of "Peter's Complaint" (Southwell's), which she usually played on the winde instrument,' and the twelfth is 'a Madrigall made by Bernye Grymestone upon the conceit of his mother's play to the former ditties.' The thirteenth chapter consists of 'Odes in imitation of the seven pœnitentiall psalms in seven severall kindes of verse.' The 'Memoratives' are a number of moral maxims, which, if not original, are at least pointed and well chosen. The dedication, addressed to the author's son, is a quaint


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piece of composition, containing good advice for moral guidance and on the choice of a wife; it is reprinted in W. C. Hazlitt's 'Prefaces, Dedications, and Epistles,' 1874. Two later and undated editions of the 'Miscelanea' were published, enlarged by the addition of six other short essays.

[Dedication to Miscelanea; Corser's Collect. Anglo-Poetica, vii. 100; Brydges's Cens. Lit. vi. 161; Parkin's Hist. of Norfolk, viii. 305; Catalogue of Huth Library.]   GRIMSTON, HARBOTTLE (1603–1685), judge and speaker of the House of Commons, was second son of Sir Harbottle Grimston, a puritan gentleman of old family and moderate estate in Essex (created a baronet in 1612), by Elizabeth, daughter of Ralph Coppinger. Sir Harbottle the elder, who was grandson of Edward Grimston [q. v.], represented his county in parliament in 1625-6 and 1627-8, and was imprisoned in 1627 for refusing to contribute to the forced loan of that year. He sat for Harwich in the Long parliament, and died on 19 Feb. 1647-8. The son was born on 27 Jan. 1602-3 at Bradfield Hall, near Manningtree, Essex, and was educated at Emmanuel College, Cambridge, where he appears as a 'pensioner' in 1619. He subsequently entered Lincoln's Inn, and was called to the bar, but on the death of his elder brother abandoned the idea of practising. He changed his mind, however, in consequence of Sir George Croke, to whose daughter Mary he had become attached, refusing his consent to their union unless he would devote himself to his profession. The marriage took place on 16 April 1629 at St. Dunstan's-in-the-West. Grimston was returned to parliament at a by-election in 1628 as member for Harwich, and succeeded Coke as recorder of that town in 1634 (, Harwich, p. 222). In August 1638 he was elected recorder of Colchester, which borough he represented in the first parliament of 1640, and also in the Long parliament (, Essex, i. 464-5;, Own Time, fol. i. 381; Lists of Members of Parliament (Official Return of); Commons' Journal, v. 500; Hist. MSS. Comm. 4th Rep. App. p. 417; Rep. on Gawdy MSS. (1884-5), p. 125; Col. Top. et Gen. v. 218 ; Cal. State Papers, Dom. 1639, p. 57).

In the first parliament of 1640 he opened the debate on grievances (16 April) in a speech of rather verbose and ponderous but not unimpressive oratory. In the Long parliament Grimston spoke in support of Lord Digby's motion for a select committee to frame 'a remonstrance on the deplorable estate of the kingdom' for presentation to the king, and was himself chosen a member of the committee appointed for the purpose (9 Nov.) He was also a member of the committee for preparing resolutions to be submitted to the House of Lords on the subject of the 'new canons' recently framed by convocation,which had been voted (16 Dec.) contrary to the fundamental laws of the realm. The committee was directed to inquire into the part played by Archbishop Laud in connection with the canons. Their report was followed (18 Dec.) by a motion for the impeachment of the archbishop, in support of which Grimston spoke with great vehemence, denouncing Laud, with much variety of metaphor, as 'the sty of all pestilential filth that hath infested the state and government of this commonwealth,' as 'a viper' which should no longer be permitted to 'distil his poison' into the 'sacred ears' of the king. Grimston also sat on a committee appointed on 12 Jan. 1640-1 to examine into the legality of warrants of commitment signed only by officers of state.

The debate on episcopacy of 1 Feb. 1640-1 gave occasion to a curious piece of fencing between Grimston and Selden. On 3 May Grimston signed the 'protestation and vow' 'to defend the protestant religion, the power and privileges of parliament, and the rights and liberties of the subject.' He was also one of the committee which sat at Guildhall and Grocers' Hall after the attempt to arrest the five members in the House of Commons in January 1641-2. Grimston made an elaborate speech on the occasion, which was published in pamphlet form, and will be found in Cobbett's 'Parliamentary History ,'ii. 1020, and 'Somers Tracts,' iv. 342. After the militia ordinance (by which the command of the forces was transferred from the crown to the parliament) he accepted (June) the office of deputy-lieutenant of Essex, but only on the assurance that it was not intended to make war upon the king. In spite, however, of his aversion to strong measures,he took on 22 Aug. the decided step of committing the royalist Sir John Lucas and his lady to prison as traitors, and he does not seem to have resigned office on the outbreak of hostilities. From that date, however, he kept much in the background, being an extremely moderate man. According to Burnet, who was intimate with him for many years, 'when the Long parliament engaged into the league with Scotland he would not swear the covenant,' and 'discontinued sitting in the house till it was laid aside.' His name, however, appears in Rushworth's list of those who took the covenant on 22 Sept. 1643. Probably he did take it, but kept away from the house to escape the necessity of acting up to it (Own Time, fol. Rh


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Author:Thomas Francis Dale

Works

 * The Game of Polo (1897)
 * The History of the Belvoir Hunt (1899)
 * Polo: Past and Present (1905)

title: Author:Thomas Francis Dale


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i. 381 ; ''Hist. Coll''. iv. 480). In May 1647 he was placed on the standing committee for appeals from the visitors of the university of Oxford, and also was appointed one of the commissioners for the disbanding of the army. In June 1648 his house, Bradfield Hall, was occupied in his absence by a party of troops belonging to the army of the Earl of Warwick, who plundered it, and turned out his wife (, ''Hist. Coll''. iii. 1128, 1349, 1354, 1356, iv. 34-7, 122, 142-3, 187, 241, 244; Comm.Journ.ii.52,v.500; ''Hist.MSS. Comm''. 6th Rep. App. p. 306b, 7th Rep. App. p. 596b ;, ''Coll. Affairs of State'', i. 319, 321, 691; ''Parl. Hist''. ii. 656, 680; Somers Tracts, iv. 363;, State Trials, iv. 317-18; Cal State Papers, Dom. 1640-1, pp. 450-1 ;, Rebellion, i. 235,524;, Mem. pp.59,62, 249,312,314).

Burnet (fol. i. 45) tells a strange story, which he says he had from Grimston a few weeks before his death, to the effect that in 1647 or 1648 Grimston charged Cromwell in the House of Commons with designing to coerce the parliament, and that Cromwell fell down on his knees and made a solemn prayer to God attesting his innocence, afterwards in a long speech 'justifying both himself and the rest of the officers, except a few that seemed inclined to return back to Egypt,' and that thus 'he wearied out the house, and wrought so much on his party that what the witnesses had said was so little believed that had it been moved Grimston thought that both he and they would have been sent to the Tower,' and that accordingly the matter was allowed to drop. This story is not corroborated by any independent evidence. Grimston presided over the committee appointed to investigate the escape of the king from Hampton Court in November 1647, was one of the commissioners to whom the conduct of the negotiations with the king during his imprisonment in the Isle of Wight was entrusted in August 1648, and with Hollis appears to have taken a leading part in that matter. Burnet (ib. fol. i. 44) says that he besought the king on his knees to make up his mind with all possible despatch, lest all chance of accommodation should be destroyed by the independents gaining the ascendency. He was among the members of whom the house was purged by Colonel Pride on 6 Dec. 1648, and was thought of sufficient importance to be imprisoned. He was, however, released on 30 Jan. 1648-9, on giving an engagement not to do anything to the disservice of the parliament or army. Accordingly,after signing a remonstrance against the acts of the Rump, he retired into private life, resigning the recordership of Colchester (6 July 1649), and devoting his leisure to the education of his children, with whom he travelled on the continent for a time, and also to the onerous task of translating and editing reports of his father-in-law, Sir George Croke. In 1656, however, he was returned to parliament for Essex, though he was not permitted to take his seat, whereupon he and ninety-seven others who were in like case published a remonstrance and 'appeal unto God and all the good people of England' against their exclusion (, Mem. p. 653).

On the abdication of Richard Cromwell (April 1659) Grimston was placed by Monck on the committee for summoning a new parliament, to which the title of keepers of the liberties of England was given, and on the readmission of the secluded members in the following February he was elected into the council of state. He was chosen speaker of the House of Commons in the Convention parliament on 25 April 1660. In this capacity it fell to him to answer the king's letter of 14 April, to wait on him at Breda, and to deliver an address to him in the banquetting hall, Whitehall, on the 29th. His oratory on the latter occasion was fulsome and servile in the extreme. Charles repaid his compliment by visiting Grimston at his house in Lincoln's Inn Fields on 25 June. In the following October Grimston sat on the commission which tried the regicides, and in November he was appointed master of the rolls. Rumour, ill authenticated, but in itself not improbable, says that he paid Clarendon 8,000l. for the place. He held the office of speaker only during the Convention parliament, but continued to sit for Colchester until the dissolution of 1681. He was appointed chief steward of the borough of St. Albans by the charter granted to the town in 1664. He took as a rule but little part in the debates of the Pensionary parliament; but the so-called bill for preserving the protestant religion of 1677, which was in reality an attempt to relax the laws against papists, excited his vehement opposition. His last recorded speech was on the popular side on the debate on the rejection of the speaker by the king in March 1678-9. He died of apoplexy on 2 Jan. 1684-5, and is said to have been buried in the chancel of St. Michael's Church, St. Albans, where, however, there is no monument to him (, Mem. pp. 334, 700; Parl. Hist. iii. 1240, 1247, 1548, iv. 28, 56, 57, 862, 1096;, Autobiogr., Camd. Soc., pp. 114, 162; , Not. Parl. iii. 274; Lists of Members of Parliament (Official Return of) ; , Mem. p. 359; Comm.Journ. v. 357, viii. 1, 174; Hist. MSS. Comm. 1st Rep. App. p. 56, 5th Rep. App. p. 204, 7th Rep. App. p. 462; Cal. State Papers, Dom. 1659-


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 1660 p. 429, 1660-1 pp. 205, 354; Law Mag. xxxviii. 223;, State Trials, v. 986; , Rep. i. 283).

Burnet (for many years his chaplain at the Rolls) descants at some length on Grimston's charity and piety, his judicial impartiality, his bitterness against popery, and his tenderness to the protestant dissenters (Own Time, fol. i. 381). Sir Henry Chauncy, also a contemporary, ascribes to him 'a nimble fancy, a quick apprehension, memory, an eloquent tongue, and a sound judgment.' He was 'of free access, sociable in company, sincere to his friend, hospitable in his house, charitable to the poor, and an excellent master to his servants' (Hertfordshire, p. 465). A curious case affecting Grimston is reported by Siderfin. One Nathaniel Bacon thought himself aggrieved by one of Grimston's decrees, and attempted to procure his assassination by a bribe of 100l. He was indicted for this offence in 1664, and punished by a fine of one hundred marks, with three months' imprisonment, and bound over to be of good behaviour during life (, Rep. i. 230; Seventh Rep. of Dep.-Keeper of the Public Records, App. ii. 72).

By his wife, Mary, daughter of Sir George Croke [q. v.], Grimston had issue six sons and two daughters. This lady dying in his lifetime, he married Anne, daughter of Sir Nathaniel Bacon, a niece of Lord-chancellor Bacon, and relict of Sir Thomas Meautys, by whom he had issue one daughter only. Of his second wife Burnet says that 'she had all the high notions for the church and crown in which she had been bred, but was the humblest, the devoutest, and best tempered person I ever knew of that sort.' He adds that she made a practice of visiting the gaols and comforting the prisoners (Own Time, fol. i. 382). She had a life estate in the manor of Gorhambury, which Grimston made his principal seat, and of which he purchased the reversion. Only one son, Samuel [q. v.], survived him. His eldest daughter, Mary, married Sir Capel Luckyn, whose grandson, Sir William, was adopted by Sir Samuel Grimston as his heir, assumed the name of Grimston, and was raised to the peerage of Ireland as Viscount Grimston and Baron of Dunboyne in 1719 [see ]. His grandson, Sir James Bucknall, third Viscount Grimston, was created Baron Verulam of Gorhambury, Hertfordshire, on 6 July 1790, and his son, Sir James Walter, succeeded to the Scotch barony of Forrester in October 1808, was created Viscount Grimston and Earl of Verulam on 24 Nov. 1815

The first volume of Grimston's translation of Croke's reports, containing cases belonging to the reign of Charles I, was published, with a life of the author, in 1657, when the copyright was vested in Grimston by the House of Commons; a volume of cases decided in the reign of James I appeared in 1658, and the third part, covering the reign of Elizabeth, in 1661. A second edition of the whole appeared in 1669 in three volumes fol.; a third in 1683-5, also in three volumes fol.; the fourth and last, with marginal and other notes by Thomas Leach, in 1790-2, in four volumes royal 8vo. There is also a very inaccurate edition of early but uncertain date. The authentic reports are of high authority. Seven of Grimston's speeches in parliament, delivered in 1640-1-2, were published as separate pamphlets. Grimston was also author of Strena Christiana' (London, 1644,24mo), a religious work in Latin, which was reissued in 1645 and 1828, and appeared in English, Cambridge, 1644, 16mo, and with the Latin, London, 1872, 16mo.

A portrait of Grimston by Sir Peter Lely was presented to the National Portrait Gallery by the Earl of Verulam in 1873.

[Wood's Athenæ Oxon. (Bliss), iii. 27-8 (very inaccurate); Biog. Brit.; Croke's Hist. of the Croke Family, i. 606-13; Cussans's Hertfordshire, Hundred of Cashio, pp. 245, 247-8; Collins's Peerage (Brydges), viii. 218; Nicolas's Hist. Peerage (Courthope); Burke's Peerage; Foss's Lives of the Judges; Bridgman's Legal Bibliography.]

GRIMSTON, ROBERT (1816–1884), sportsman, fourth son of James Walter Grimston, first earl of Verulam, and his wife Charlotte, second daughter of the first Earl of Liverpool, was born at 42 Grosvenor Square, London, on 18 Sept, 1816. He was therefore a descendant of William Luckyn Grimston [q. v.] Grimston's early years were spent at Gorhambury, the family seat, and as a boy he was distinguished for his love of field sports. After some time spent at a preparatory school at Hatfield he went to Harrow in 1828. He was a youth of determined will, and among the anecdotes related of him is one to the effect that at the age of fifteen he hired a postchaise and pursued a burglar from Gorhambury to London, securing his arrest and transportation. While at Harrow 'he saved more fellows a licking than most boys in the school.' In 1834 Grimston was entered as a commoner at Christ Church, Oxford. Ruskin, who was a fellow-undergraduate, described him as 'a man of gentle birth and amiable manners, and of herculean strength, whose love of dogs and horses, and especially of boxing, was stupendous.' Cricket was one of his favourite pastimes. He was a bold rider, even to recklessness. He was an active member of the pugilistic club


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described in Whyte Melville's 'Digby Grand.' He was an adept, too, at swimming, and saved a drowning man at Oxford, afterwards swimming across the river to escape the applause of the bystanders.

Grimston proceeded B.A. in 1838, and the same year began the study of law in the chambers of A. R. Sidebottom, London, subsequently reading with Mr. Wood, a special pleader. He was called to the bar at Lincoln's Inn in 1843, and went the home circuit; but he was not adapted for the law, and practically gave up the profession in 1852, and devoted himself to the then novel enterprise of electric telegraphy. Grimston had many successes in the cricket field. He was one of the first members of I Zingari, and held the post of honorary treasurer. He was also a member of the M.C.C., and for some time president; he frequently played in matches at Lord's, and preserved his interest in the game till his death. In 1846 he assisted in the formation of a Surrey county eleven, which began playing in Kennington Oval, then a market garden. Grimston was an excellent judge of horses, and rode in steeplechases. He broke his leg on one occasion while hunting with Baron de Rothschild's hounds. He was removed on a gate, and the North- Western train being stopped by signal he was put into the guard's van, and by his own request taken to St. George's Hospital.

Grimston joined the board of the Electric Telegraph Company in 1852, and he also became connected with the International Telegraph Company, which laid the two cables between Lowestoft and Scheveningen, near the Hague. On the death of Robert Stephenson he became chairman of the latter company, and held that office until the Electric and International Company was transferred to the government under the acts of parliament 1868-70. About 1867 Grimston accepted a seat on the board of the Atlantic Telegraph Company, and when that company was amalgamated with the Anglo-American Telegraph Company he was transferred to the latter as a director, and took an active part in its management until his death. In 1868 he was appointed chairman of the Indo-European Telegraph Company, which opened up a telegraph route to India through Germany, Russia, and Persia, and through the Persian Gulf to Kurrachee, in connection with the lines of the Indo-European Government Telegraph administration. In these business relations he exhibited great shrewdness and application.

On 7 April 1884, while at Gorhambury, he was found dead in his chair. Grimston was a tory. He was averse to change of all kinds, and was tenacious of his opinions, but made full allowance for the conscientious dissent of others. He was a chivalrous friend, and was charitable towards the distressed. He severely condemned betting and gambling.

[Life of the Hon. Robert Grimston, by Frederick Gale, 1885.]   GRIMSTON, SAMUEL (1643–1700), politician, the second and only one of the six sons of Sir Harbottle Grimston [q. v.] who survived him, was born 7 Jan. 1643. His mother was Sir Harbottle's first wife, Mary, daughter of Sir George Croke [q. v.] He was elected member of parliament for St. Albans at a by-election in May 1668. He was not returned to the parliament of 1678, but was re-elected in 1679 and 1680. During the reign of James II he remained in private life, being, it is said, much disliked by the king, who expressly excepted him from pardon in the manifesto he issued when he contemplated landing in England (1692). Grimston succeeded to his father's baronetcy in 1683, and was returned a member of the convention of 22 Jan. 1689. From that time till May 1699 he sat continuously for his old borough. He married first Elizabeth, the eldest daughter of Heneage Finch, earl of Nottingham, by whom he was father of a daughter, Elizabeth (d. 1694), who became first wife of William Savile, second marquis of Halifax. Grimston's second wife was Lady Anne, sixth daughter of John Tufton, earl of Thanet. By her he had a son and daughter, but both died young, and on his death, which occurred in October 1700, the Grimston baronetcy became extinct. Grimston left the family estates, which he had increased by the purchase of the manor of Windridge from Henry Osbaston, to his great-nephew, William Luckyn [see ], second son of Sir William Luckyn of Messing Hall, Essex, who was son of Sir Capel Luckyn, by Mary, the eldest sister of Sir Samuel Grimston.

[Lodge's Baronetage of Ireland; Collins's Peerage, ed. Brydges, viii. 218; List of Members of Parliament; Cussans's Hertfordshire, Hundred of Cashio, iii. 255.]  GRIMSTON, WILLIAM LUCKYN, first (1683–1756), born in 1683, was the second son of Sir William Luckyn, by Mary, daughter of William Sherrington, and was adopted as heir by his great-uncle, Sir Samuel Grimston [q. v.] On Sir Samuel's death in 1700 William Luckyn succeeded to the Grimston estates, and assumed the surname. In 1710 he was returned as


text: Ballarat

title: Ballarat


text:
Author:Ormonde Maddock Dalton

Works

 * {in part)

as W. Compton Leith

 * Apologia Diffidentis (1908)
 * Sirenica (1913)
 * Domus Doloris (1919)

title: Author:Ormonde Maddock Dalton


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Page:A Thousand-Mile Walk To The Gulf.djvu/96

Rh was enriched with other interweaving species of vines and brightly colored flowers. This is the first truly southern stream I have met.

At night I reached the home of a young man with whom I had worked in Indiana, Mr. Prater. He was down here on a visit to his father and mother. This was a plain back woods family, living out of sight among knobby timbered hillocks not far from the river. The evening was passed in mixed conversation on southern and northern generalities.

September 24. Spent this day with Mr. Prater sailing on the Chattahoochee, feasting on grapes that had dropped from the overhanging vines. This remarkable species of wild grape has a stout stem, sometimes five or six inches in diameter, smooth bark and hard wood, quite unlike any other wild or cultivated grapevine that I have seen. The grapes are very large, some of them nearly an inch in diameter, globular and fine flavored. Usually there are but three or four berries in a cluster, and when mature they drop off instead of decaying on


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Rh the vine. Those which fall into the river are often found in large quantities in the eddies along the bank, where they are collected by men in boats and sometimes made into wine. I think another name for this grape is the, though called "muscadine" here.

Besides sailing on the river, we had a long walk among the plant bowers and tangles of the Chattahoochee bottom lands.

September 25. Bade good-bye to this friendly family. Mr. Prater accompanied me a short distance from the house and warned me over and over again to be on the outlook for rattle snakes. They are now leaving the damp low lands, he told me, so that the danger is much greater because they are on their travels. Thus warned, I set out for Savannah, but got lost in the vine-fenced hills and hollows of the river


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Cromwell v. County of Sac/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

Ten bonds, each for the sum of $1,000, were issued by the county for the purpose of erecting a court-house in the county seat of the county; and it appears that the bonds were made payable to bearer, one each succeeding year, till the whole were paid, with interest at the rate of ten per cent per annum. Four of the bonds are the subject of the present controversy, and the defence is the estoppel of a prior judgment in favor of the county in a suit brought to collect certain of the interest warrants annexed to the bonds.

Sufficient appears to show that the bonds were in due form, and that they contain the recital that they 'were issued by the county, in accordance with the vote of the legal voters thereof, at a special election holden on the day therein mentioned, pursuant to a proclamation made by the county judge, according to the statute of the State in such case made and provided.'

Annexed to the bonds were the coupons for the payment of the annual interest, and the plaintiff in the prior suit, being the holder of twenty-five of the coupons, instituted the suit to recover the amount, and he alleged in his declaration that he was the holder and owner of the same; that he received the coupons in good faith before their mat rity, and that he paid value for the same at the time of the transfer; that the bonds and coupons were issued by the county under and by virtue of a legal and competent authority, and that the same are valid and legal claims against the corporation.

Most of the allegations of the declaration were denied in the answer; but the defendants did not specifically deny that the plaintiff paid value for the coupons at the time he became the holder and owner.

Special findings of the facts were made by the court, from which it appears that the question whether a court-house should be built, and whether a tax sufficient to liquidate the expense should be levied, were duly submitted to the voters of the county; that the propositions were adopted at a special election held for the purpose; that the county judge made the contract for the erection of the court-house; and that he duly executed the ten bonds in question, and delivered the same to the contractor, in pursuance of the contract.

Proof of a satisfactory character was exhibited that the contract between the judge and the contractor was made in the county where the judge resided: but the court found that the bonds were signed, sealed, and delivered by the judge during his temporary absence in another county; and the findings show that the plaintiff became the owner and holder of the coupons before maturity and after the proceedings were correctly entered in the minute-book; nor is it found that the plaintiff had any notice whatever of the supposed irregularities.

Evidence of fraud in the inception of the contract is entirely wanting, except what may be inferred from the unexplained fact that the contractor gave one of the bonds, as a gratuity, to the county judge as soon as he delivered the same to the contractor. Beyond all doubt, the contractor proved to be unworthy, as he never performed his contract, or paid back the consideration.

Judgment was rendered for the defendants in the court below; and the majority of this court affirmed the judgment, holding that the evidence showed that the bonds were fraudulent in their inception, and that the plaintiff could not recover, inasmuch as he did not prove affirmatively that he paid value for the bonds.

Authorities are not necessary to show that the transferee of a negotiable instrument made payable to bearer, subsequent to its date, holds it clothed with the presumption that it was negotiated to him at the time of its execution, in the usual course of business and for value, and without notice of any equities between the prior parties to the instrument. Goodman v. Harvey, 4 A. & E. 870; Goodman v. Simonds, 20 How. 365; Noxon v. De Wolf, 10 Gray, 346; Ranger v. Cary, 1 Met. 373.

Coupons are written contracts for the payment of a definite sum of money on a given day, and, being drawn and executed in a given mode, for the very purpose that they may be separated from the bonds, it is held that they are negotiable, and that a suit may be maintained on them without the necessity of producing the bonds to which they were attached. Knox County v. Aspinwall, 21 How. 544; White v. Railroad, 21 id. 575; Aurora v. West, 7 Wall. 105; Murray v. Lardner, 2 id. 121.

Possession of the instrument is plenary evidence of title until other evidence is produced to control it, the holder being entitled to the same privileges and immunities as an indorsee of a bill of exchange or promissory note payable to bearer or indorsed in blank. He is not subject to any equities as between the promisor and original payee, nor to the set-off of any debt, legal or equitable, which the latter may owe to the former. Pettee v. Prout, 3 Gray, 503.

Title and possession are one and inseparable to clothe the instrument with the prima facie presumption that it was indorsed at the date of its execution, and that the holder paid value for it, and received it in good faith in the usual course of business, without notice of any prior equities. Evidence to show that he paid value for the instrument is unnecessary in the opening of his case; but the defendant may, if he can, give evidence that the consideration was illegal, that the instrument was fraudulent in its inception, or that it had been lost or stolen before it was negotiated to the plaintiff; and, if the defendant proves such a defence, it will follow that it must prevail, unless the plaintiff proves that he gave value for the instrument in the usual course of business, in which event he is still entitled to recover. Fitch v. Jones, 5 El. & Bl. 238; Smith v. Braine, 16 Q. B. 243; Hall v. Featherstone, 3 Hurls. & Nor. 287.

Applying that rule to the case as it was first presented, it would seem that the plaintiff should have prevailed, as it is clear that the defendant did not give any sufficient evidence to show that the consideration of the instruments was illegal, or that they were fraudulent in their inception, or that they had been lost or stolen before the plaintiff became the holder of the same, without notice of any prior equities.

Suffice it to remark, in this connection, that these views were urged against the former judgment; but they did not prevail, and the judgment was rendered for the defendant, which is unreversed and in full force. Suit is now brought upon the bonds to which those coupons were attached, and the sole question of any importance is whether the judgment in the former case is a bar to the present suit.

Nothing can be more certain in legal decision than the proposition that the title to the bonds and coupons are the same, as the coupons were annexed to the bonds when the bonds were executed and delivered to the original holder, in pursuance of the contract for building the court-house; and it is equally certain, that if it could be proved in defence that the consideration was illegal, or that the instruments were fraudulent in their inception, or that they had been lost or stolen before they were negotiated to the holder, the defence would apply to the bonds as well as the coupons.

Before proceeding to examine the legal question, it should be remarked that the former suit was prosecuted in the name of a different plaintiff; but the theory of the present defendants is that the present plaintiff was the real owner of the coupons in that action, and that the action was prosecuted for his sole use and benefit. Testimony to prove that theory was offered in the court below, and the majority of the court now hold that evidence to prove that proposition was properly admitted. Assume that to be so, and it follows that the parties, in legal contemplation, are the same; nor can it be denied that the cause of action, within the meaning of that requirement, as expounded and defined by decided cases of the highest authority, is the same as that in the former action, the rule being that the legal effect of the former judgment as a bar is not impaired, because the subject-matter of the second suit is different, provided the second suit involves the same title and depends upon the same question. Outram v. Morewood, 3 East, 346.

Holders of negotiable securities, as well as every other plaintiff litigant, are entitled to a full trial upon the merits of the cause of action; but if in such a trial judgment be rendered for the defendant, whether it be upon the verdict of a jury or upon a demurrer to a sufficient declaration, or to a material pleading involving the whole merits, the plaintiff can never after maintain against the same defendant or his privies any similar or concurrent action for the same cause, upon the same grounds as those disclosed in the first declaration, for the reason that the judgment, under such circumstances, determines the merits of the controversy, and a final judgment deciding the right must put an end to the dispute, else the litigation would be endless. Rex v. Kingston, 20 State Trials, 588; Kitchen v. Campbell, 2 W. Bl. 831; Clearwater v. Meredith, 1 Wall. 43; Ricardo v. Garcias 12 Cl. & Fin. 400.

Allegations of an essential character may be omitted in the first declaration and be supplied in the second, in which event the judgment on demurrer in the first suit is not a bar to the second, for the reason that the merits of the cause as disclosed in the second declaration were not heard and decided in the first action. Gilman v. Rives, 10 Pet. 298; Richardson v. Barton, 24 How. 188; Aurora City v. West, 7 Wall. 90.

Where the parties and the cause of action are the same, the prima facie presumption is that the questions presented for decision were the same, unless it appears that the merits of the controversy were not involved in the issue, the rule in such a case being that where every objection urged in the second suit was open to the party within the legitimate scope of the pleadings in the first suit, and that the whole defence might have been presented in that trial, the matter must be considered as having passed in rem judicatam, and the former judgment in such a case is conclusive between the parties. Outram v. Morewood, 3 East, 358; Greathead v. Broomley, 7 Term, 452.

Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward at the time. 2 Taylor, Evid. sect. 1513.

Other text-writers of high authority substantially concur in that view; as, for example, Mr. Greenleaf says that 'the rule should apply only to that which was directly in issue, and not to every thing which was incidentally brought into controversy during the trial;' and the reason given for that limitation is worthy of notice, which is, that the evidence must correspond with the allegations, and be confined to the point in issue; and he remarks that it is only to the material allegations of one party that the other can be called to answer, for to such alone can testimony be regularly adduced, and upon such an issue only is judgment to be rendered. Pursuant to those suggestions, he states his conclusion as follows: 'A record, therefore, is not held conclusive as to the truth of any allegations which were not material nor traversable, but as to things material and traversable it is conclusive and final.'

Unless the court, in rendering the former judgment, was called upon to determine the merits, the judgment is never a complete bar; and it is safe to add, that, if the trial went off on a technical defect, or because the debt was not yet due, or because the court had not jurisdiction, or because of a temporary disability of the plaintiff or the like, the judgment will be no bar to a future action. 1 Greenl. Evid. sect. 330.

Since the resolution in Ferrer's Case, 6 Coke, 7, the general principle has always been conceded, that, when one is barred in any action, real or personal, by judgment or demurrer, confession or verdict, he is barred as to that or a similar action of the like nature for the same thing for ever. Demurrer for want of equity in such a case is allowed in chancery, because the whole matter in controversy is open in the first suit.

Contrary to that rule, a party brought a second bill of complaint, and the Vice-Chancellor, in disposing of the case, expressed himself as follows:--

'Where a given matter becomes the subject of litigation in and of adjudication by a court of competent jurisdiction, the court requires the parties to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because the party has, from negligence, omitted part of his case.' And he added that the plea of res judicata applies, except in special cases, not on y to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Henderson v. Henderson, 3 Hare, Ch. 115; Bagot v. Williams, 3 B. & C. 241; Roberts v. Heine, 27 Ala. 678; Safford v. Clark, 2 Bing. 382; Miller v. Covert, 1 Wend. 487.

When a fact has been once determined in the course of a judicial proceeding, say the Supreme Court of Massachusetts, and final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done; and they proceed to say that the estoppel is not confined to the judgment, but extends to all facts involved in it, as necessary steps, or the groundwork upon which it must have been founded. Burlen v. Shannon, 99 Mass. 203; Queen v. Hartington, 4 El. & Bl. 794; Gilbert v. Thompson, 9 Cush. 349.

Extended explanations upon the subject of estoppel by a prior judgment were made by this court nearly twenty years ago, by a judge very competent to perform that duty. Steam Packet Company v. Sickles, 24 How. 342. Such a judgment, he said, in order that it may operate as an estoppel, must have been made by a court of competent jurisdiction upon the same subjectmatter between the same parties for the same purpose. He then proceeded to describe the cause of action in that case, which, as he stated, was a sum of money, being a part of the consideration or price for the use of a valuable machine for which the plaintiffs had a patent; that the sum demanded was the complement of a whole, of which the sum demanded in the declaration in the former suit is the other part. Both declarations contained similar special counts; and the court remarked, that a decision in the one suit on those counts in favor of the plaintiffs necessarily included and virtually determined the sufficiency of the declaration to sustain the title of the plaintiffs, and showed that the record was admissible in evidence.

Different views were entertained by the defendants, and they submitted the proposition that a judgment was not admissible in evidence as an estoppel, unless the record showed that the very point it is sought to estop was distinctly presented by an issue, and that it was expressly found by the jury; but the court remarked, that such a rule would be impracticable, as it would restrict the operation of res judicata within too narrow bounds, and the court decided that it was not necessary as between parties and privies that the record should show that matter of the estoppel was directly in issue, 'but only that the said matter in controversy might have been litigated, and that extrinsic evidence would be admitted to prove that the particular question was material and was in fact contested, and that it was referred to the decision of the jury.'

Attempt was made in that case to maintain the proposition that the judgment in the first suit could not be held to be an estoppel, unless it was shown by the record that the very point in controversy was distinctly presented by an issue, and that it was explicitly found by the jury; but the court held otherwise, and expressly overruled the proposition, although the defence of estoppel failed for other reasons.

Two notes, in another case, were given by the purchaser of a vessel to the vendor of the same, and payment of the first note being refused, the payee sued the maker; and the maker, at the trial, set up as a defence that the vessel was rotten and unseaworthy at the time of sale, and that those facts were known to the plaintiff. They went to trial, and the verdict and judgment were for the defendant. Subsequently the plaintiff sued the other note, and the defendant set up the ju gment in the other case as a bar to the suit; and the Supreme Court of New York sustained the defence, holding that the former judgment, whether pleaded as an estoppel or given in evidence under the general issue, was conclusive that the sale was fraudulent, and that the plaintiff could not recover in the second action. Gardner v. Buckbee, 3 Cow. 127.

Certain sums of money, in a later case, were paid by a surety on two bonds given by an importer, in which the plaintiff and defendant were sureties. They were jointly liable; but the plaintiff paid the whole amount, and brought suit against the other surety for contribution. Service was made; and the defendant appeared and set up the defence that he had been released, with the consent of the plaintiff, before the payment was made; and the court sustained the defence upon demurrer, and gave judgment for the defendant.

Moneys were also paid by the same surety to discharge the liability under the second bond. Contribution being refused, the plaintiff brought a second suit, and the defendant set up the former judgment as a bar; and the court sustained the defence, it appearing that both bonds were given at the same time upon the same consideration, and as part of one and the same transaction. Bouchard v. Dias, 3 Den. 243.

Neither of the second suits in the two preceding cases were for the same cause of action as the first, but the defence was sustained as in Outram v. Morewood, 3 East, 358, because the suit was founded upon the same title.

Cases of that kind are quite numerous, and they show to a demonstration that a judgment may be a bar if the same title is involved, even though the cause of action may be founded on a different instrument, or for a different trespass upon the same premises.

Conclusive support to that proposition is found in repeated decisions, of which the following are striking examples: Burt v. Sternburgh, 4 Cow. 563; Whittaker v. Jackson, 2 Hurlst.& Colt. 931; Strutt v. Bovingdon, 5 Esp. 59.

In order to make a judgment conclusive, it is not necessary, said Mr. Justice Bigelow, that the cause of action should be the same in the first suit as that in which the judgment is pleaded or given in evidence, but it is essential that the issue should be the same. The judgment is then coextensive with the issue on which it is founded, and is conclusive only so far as the same fact or title is again in dispute. Merriam v. Whittemore, 5 Gray, 317.

Decided cases in that State to the same effect are numerous, the highest court of the State holding that it is well settled that a judgment in a former suit between the same parties is a bar to a subsequent action only when the point or question in issue is the same in both; that the judgment is conclusive in relation to all matters in the suit which were put in issue, but has no effect upon questions not involved in the issue, and which were neither open to inquiry nor the subjects of litigation. Norton v. Huxley, 13 id. 290.

Damages were claimed by the plaintiff for the loss of his shop by fire communicated to it by the defendants' locomotive engine, and he recovered judgment for the injury. He subsequently brought a second suit, for the loss of his dwelling-house and shed by fire, it appearing that the house and shed took fire from the shop. Process being served, the defendants appeared and set up the former judgment as a bar. The court sustained the defence, holding that the plaintiff did not show any right to maintain another action merely by proving his omission to produce upon the trial all the evidence which was admissible in his behalf, and that having chosen to submit his case upon the evidence introduced, he was bound to abide by the verdict and judgment in the first suit. Trask v. Railroad, 2 Allen, 332.

Where a party took a bill of sale of property from the owner, and the same was subsequently attached by an officer at the suit of the creditors of the former owner, and the purchaser under the bill o sale having converted part of the property to his own use was sued by the officer, and the latter recovered judgment upon the ground that the bill of sale was fraudulent and void as to the creditors, it was held that the judgment was a bar to a subsequent suit of replevin commenced by the grantee in the bill of sale for the residue of the property in the hands of the officer. Doty v. Brown, 4 Comst. 75.

Beyond question, the bar is not defeated because the subjectmatter of the second suit is different from the first, if it be founded on the same title; and the Supreme Court of Pennsylvania have held, in accordance with that view, that a judgment in trespass upon a traverse of liberum tenementum estops the party against whom it has been rendered, and his privies, from afterward controverting the title to the same freehold in a subsequent action of trespass. Stevens v. Hughes, 31 Penn. St. 385; Hatch v. Garza, 22 Tex. 187; Clark v. Sammons, 12 Iowa, 370.

Tested by these several considerations, it is clear that a former judgment is a bar in all cases where the matters put in issue in the first suit were the same as the matters in issue in the second suit. Ricardo v. Garcias, 12 Cl. & Fin. 401; Beloit v. Morgan, 7 Wall. 623. 'It results from these authorities that an adjudication by a competent tribunal is conclusive, not only in the proceeding in which it is pronounced, but in every other where the right or title is the same, although the cause of action may be different.' 2 Smith, Lead. Cas. (7th Am. ed.) 788, 789; Bigelow on Estoppel (2d ed.), 45; Aurora City v. West, 7 Wall. 96; Outram v. Morewood, 3 East, 346; Gould v. Railroad Company, 91 U.S. 526.

Grant that, and still it is suggested that the plaintiff in the suit on the coupons did not introduce evidence to prove that he paid value for the bonds with the coupons; but the answer to that is, that he might have done so. He alleged in the declaration that he paid value, and consequently he might have given evidence to prove it, which shows that the question was directly involved in the issue between the parties.

Doubtless the plaintiff neglected to give evidence in that behalf, for the reason that he and his counsel were of the opinion that the evidence introduced by the defendants was not sufficient to repel the prima facie presumption, arising from his possession of the instruments, that he paid value for the transfer, and I am still of that opinion; but the remedy of the plaintiff, if surprised, was to except to the ruling, or to submit a motion for new trial.

Suggestions of that sort are now too late, nor are they sufficient to modify the effect of the judgment. When once finally rendered, the judgment must be considered conclusive, else litigation will be endless. Litigants sometimes prefer not to bring forward their whole case or defence, in order to enjoy the opportunity to bring up a reserve in case of defeat in the first contest; but a rule which would sanction that practice would be against public policy, as it would enable a party to protract the litigation as long as he could find means or credit to compel the attendance of witnesses and to secure the services of counsel.


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Johnson v. Harmon/Concurrence Clifford

MR. JUSTICE CLIFFORD concurred in the judgment of the court, and delivered the following opinion:--

Difficulty attends the effort to define, with clearness and precision, what degree of mental unsoundness in a grantor is sufficient, in contemplation of law, to render him incapable of giving a valid and effectual deed of conveyance. Confirmed insanity which deprives a person of mental capacity to distinguish between right and wrong, in respect to the act in question, renders the person irresponsible for such an act, though criminal, and disqualifies him to enter into a contract or to execute a valid instrument to convey real or personal estate.

Deeds made by such a person are at least voidable; but mere weakness of understanding is not of itself any objection to the validity of a contract, if the capacity remains to see things in their true relations, and to form correct conclusions in respect to the subject-matter of the contract.

Men of such understanding are held responsible for criminal acts, and they may make valid contracts; but when it appears that a contractor or grantor has not strength of mind and reason sufficient to understand the nature and consequences of his act in making a contract or in executing a deed, the instrument may be avoided, on the ground of the mental incapacity of the party to contract or to execute the conveyance.

Both minds must meet in such a transaction; and if one is so weak, unsound, and diseased that the party is incapable of understanding the nature and quality of the act to be performed, or its consequences, he is incompetent to assent to the terms a d conditions of the instrument, whether that state of his mind was produced by mental or physical disease, and whether it resulted from ordinary sickness, or from accident, or from debauchery, or from habitual and protracted intemperance. Dennett v. Dennett, 44 N. H. 535; 2 Kent, Com. (12th ed.) 45.

Enough appears to show that the complainant owned lot numbered twenty-six, described in the record, with the two dwelling-houses erected thereon; that on the 3d of February, 1871, he indorsed two notes of that date, each for the sum of three hundred dollars, payable one in five and the other in six months from date, with ten per cent interest, to the order of the first-named respondent; and that he, on the same day, executed and delivered to the other respondent a deed of conveyance of the houses and lot in trust to suffer and permit the complainant to occupy and enjoy the premises until some default made in the payment of those two promissory notes, with power in the trustee, in case of default of payment, to proceed, on the request of the payee of the notes, to sell the premises. Default of payment of the first note was made, and complainant alleges, in his original bill of complaint, that the trustee threatens to sell the premises. Subsequently he, by leave of court, filed an amended bill of complaint.

Reference will only be made to the amended bill, as the matters in controversy arose out of charges contained in that pleading, which are as follows: That when the complainant executed the deed of trust and the notes he was so intoxicated that he did not know what he was doing; that he did not know that he was making his property liable for the notes, or that he was incurring any obligation to pay the notes; that the trustee, on the 21st of September last, sold the property at public auction to the payee of the notes, and that he claims the property as his own, and has given the complainant notice to leave the premises.

Based upon these allegations, and others not necessary to be reproduced, the complainant prays as follows: 1. That the sale to the payee of the notes may be annulled and set aside. 2. That the trustee may be enjoined and restrained from making any conveyance of the premises to any person. 3. That if the trustee has made any conveyance of the same, that the conveyance may be annulled and set aside. 4. That the deed of trust may be decreed null and void. 5. That the payee of the notes may be enjoined and restrained from taking possession, or in any way interfering with the premises or with the complainant, or any tenant thereof, in the free use and enjoyment of the property; and for general relief.

Process was issued; and the first-named respondent appeared and filed a separate answer, which consists of a denial of every allegation of the bill of complaint, together with two affirmative averments: 1. That the complainant several times asked for extension of time for the payment of the notes. 2. That he, the respondent, saw no signs of intoxication in the complainant at the time the notes and deed of trust were executed, and that he never set up any such pretence before the first note was sued.

Proofs were taken, and it appears that the cause was submitted to the court upon the pleadings and evidence without argument. Before decision, the court directed that a feigned issue should be tried by a jury in the law court of the District, as follows, to wit: whether or not the complainant at the time the deed of trust and notes were executed was capable of executing a valid deed or contract.

Pending that proceeding, the complainant filed in the equity court a supplemental bill, in which he alleged that the jury empanelled to try the feigned issue failed to agree, and that the issue was still pending in the law court; that the payee of the notes brought suit against him before a justice of the peace to obtain possession of the premises; that he recovered judgment in the case, and that the present complainant appealed the same to the Supreme Court of the District that the appellee in that suit, notwithstanding the pendency of the feigned issue in the court of law, caused the appeal from the judgment rendered by the justice of the peace to the docketed and affirmed, without evidence or inquiry into the merits. Wherefore he prayed that the writ of possession might be annulled and set aside, and for an injunction.

Instead of that, the court first issued a summons commanding the respondents to appear and answer the allegations of the supplemental bill. Service being made, the first-named respondent appeared and filed an answer, in which he admits that the complainant did set up the defence of intoxication in the suit on the note; that he, the present respondent, did obtain judgment for possession; but he avers that the appeal was never perfected, and that the judgment of the justice of the peace was affirmed. Hearing was had; and the court awarded an injunction restraining the respondent from interfering with the property, but requiring the complainant to give bond to pay rent, in case the final decree should be in favor of the respondent.

Those matters being adjusted, the parties went to trial upon the feigned issue in the court of law, and the jury found that the complainant at the time he signed the deed of trust and notes was not capable of executing a valid deed or contract. Exceptions were filed by the respondent as in a common-law action, in which is given what purports to be the testimony introduced in the trial of the issue.

Evidence was offered by the plaintiff tending to prove that at and after the time of the making of the deed and notes, he, the plaintiff, was in the habit of using intoxicating liquors to excess; that he was more or less under such stimulants all the time; that at the date of the deed he had been drinking freely; and the bill of exceptions shows that several witnesses testified that they did not consider him fit to do business. Among others, the makers of the notes secured by the deed of trust were called, and they testified that they were present at the making of the deed and notes; that the complainant was very much intoxicated, so much so that they did not consider him fit to transact business or capable of executing a deed or contract. Testimony to the same effect was given by another witness who was also present when the deed and notes were executed.

Support to that theory, of a decided character, was also derived from the testimony of a physician, who testified that he saw the party almost daily about that time, and 'that he was not competent to contract at the time of making the deed,' in which statements he was confirmed by other witnesses called during the trial.

Opposing evidence was introduced by the defendant. In the first place, he called the trustee who prepared the deed and notes, and he testified that the parties, including the makers of the notes, came to his office to have the deed prepared; that he informed him that he must have the title-deed of the plaintiff to obtain the description of the premises; that the plaintiff and the payee of the notes left his office for that purpose, and returned with the title-deed; that he prepared the trust-deed, read it over to the plaintiff, and explained it to him; that he expressed himself satisfied with it, and signed it. He also called the magistrate who took the acknowledgment of the grantor; and both of these witnesses testified that they thought that the grantor was sober. Witnesses were also examined by the defendant, whose testimony tended to prove that the plaintiff said nothing of the deed being invalid because of his intoxication before the property was sold, and that he signed a paper six weeks afterwards, agreeing to the assignment of the lease for which the notes secured by the deed of trust were given.

Three exceptions were taken by the defendant to rulings of the presiding justice in refusing to instruct the jury as requested, as follows: 1. That, to set aside a deed or contract on account of drunkenness, it is not sufficient that the party is under undue excitement from liquor. It must rise to that degree which may be called excessive drunkenness, where the party is utterly deprived of his reason and understanding. 2. That the jury must find for the defendants, unless they believe that the plaintiff was in such a state of intoxication as not to know what he was doing when he signed the deed in controversy. 3. That, if the jury believe from the evidence that the plaintiff knew that he was signing a deed of trust upon his property, they must find for the defendant.

By the record, it appears that the judge held that if the word 'utterly' in the first prayer as here reported was intended to express an entire loss of reason in all respects, it was not good law; but if it meant that the defendant must be incapable of understanding the terms and conditions of the deed of trust, in order to avoid it, then it was good law; and, so modified, the instruction was given to the jury. That the other two requests were granted subject to the following modification: that it was not sufficient to make the deed a valid one for the plaintiff to know that he was signing a deed of trust on his property; but he must have been in such a condition of mind as to be able to know and understand the terms and condition of the deed. That it is not necessary, in order to render the deed of the plaintiff invalid, that, at the time of its execution and acknowledgment, he was entirely demented by intoxicating drink; but his act will be rendered invalid if he was in such a condition of mind that he could not comprehend what were the terms and condition of the instrument.

Subsequently the parties were heard on the exceptions in the equity court, and the exceptions were overruled. Neither party moving for a rehearing or a new trial, the cause came up for consideration in the Supreme Court of the District, and the court affirmed the decree of the Chancellor, overruling the exceptions of the defendant to the rulings of the justice presiding at the trial before the jury.

All interlocutory matters having been disposed of, the cause came on to be heard upon the original bill, the amended and supplemental bills, the answers of the respondent, the verdict of the jury, the decree in general term overruling the exceptions to the ruling of the justice in the trial of the feigned issue; and, upon consideration thereof, it is ordered, adjudged, and decreed that the deed of trust and the indorsements of the complainant on the notes are hereby vacated, annulled, and set aside, and for the other relief, as more fully set forth in the interlocutory decree exhibited in the record, which was in all things affirmed by the final decree of the Supreme Court of the District, from which the respondent appealed to this court.

Erroneous rulings of the judge presiding in the trial of feigned issues are the proper subject of a motion for new trial before the Chancellor who formed the issues and sent them to the law court for trial, but they do not of themselves constitute a ground of appeal to this court. Appeals here can only be sustained where the decree is final, and such an appeal brings up the whole case. Where exceptions are taken on the trial of an issue out of chancery, and made part of the record, the certificate to the verdict by the court of law is a certificate to the whole record, and the exceptions, though not expressly certified, become a part of the chancery record. 2 Dan. Ch. Pr. (4th Am. ed.) 1120; Watkins v. Carlton, 10 Leigh, 560.

Issues of the kind are directed to be had at law, to inform the conscience of the Chancellor as to doubtful facts in controversy. Harding v. Handy, 11 Wheat. 125; Goodyear v. Rubber Company, 2 Cliff. 351.

Power to grant a new trial of the issues is unquestionably vested in the Chancellor; but, in determining that matter, the practice is to consider the whole of the evidence given at or before the trial and what has since become known to the court; and the rule is, that if the court is satisfied that full and omplete justice has been done between the parties, the motion for new trial will be denied. 2 Dan. Ch. Pr. 1121; Patterson v. Ackerson, 1 Edw. Ch. 102.

Applications for new trial in an issue sent out of chancery must be made to the court of chancery, after the proceedings are certified back from the court of law. 1 Barb. Ch. Pr. (2d ed.) 456; Van Alst v. Hunter, 5 Johns. Ch. 153; Birdsall v. Patterson, 51 N. Y. 43.

Such an issue is directed, as before remarked, to inform the conscience of the Chancery Court, and the application for new trial must be made to the Chancellor; nor will the Chancellor grant a new trial for every error of the judge presiding at the trial of the issues, if, on the whole facts, he is satisfied that the result is correct. Apthorp v. Comstock, 2 Paige, 486-488; Silsby v. Foote, 20 How. 385; Clayton v. Garrington, 33 Barb. 145.

Instructions given in the trial of such an issue are not the proper subject of appeal to this court, the rule being that this court can only examine the final decrees of the equity court. Brockett v. Brockett, 3 How. 691; McLaughlan v. Bank, 7 id. 227.

Suppose that is so, still it is insisted by the appellant that the evidence reported in the record is sufficient to show that the final decree of the court below is erroneous.

Imbecility of mind is not of itself sufficient to set aside a contract, when there is not an essential privation of the reasoning faculties or an incapacity of understanding and acting with discretion in the ordinary affairs of life. Weakness of understanding may be a material circumstance in every case where the charge is that one of the contracting parties has taken undue advantage of the other, or has een guilty of unfair practice or imposition. Formerly, it was considered that intoxication was no excuse for the non-fulfilment of a pecuniary liability, and that it constituted no sufficient plea in avoidance of a contract; but it is now settled, says Chancellor Kent, according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is at least void. 2 Kent, Com. (12th ed.) 451.

Much consideration was given to that question in the case of Barret v. Burton, 2 Aik. (Vt.) 167, and it was there decided that an obligation executed by a man deprived of the exercise of his understanding, by intoxication, was voidable by himself, though the intoxication was voluntary and not procured by the circumvention of the other party. Young v. Stevens, 48 N. H. 136.

Other courts and text-writers of the highest authority adopt that view, and support the proposition without qualification, except where the contract was for necessaries, or where the intoxicated party keeps the goods and uses the same as his own property after he becomes sober. It appears to have been at one time considered, says Chitty, that an agreement was not void even in equity, although it was entered into by the party charged thereon while he was in a state of absolute intoxication, unless such intoxication had been occasioned by the contrivance of the other party, or some positive fraud had been practised; but it would seem, says the author, that, on principle, such a degree of intoxication as entirely deprives a party of the use of his reason must avoid an engagement entered into by him while in that state, even although it was produced by his own folly, and although no actual fraud was intended or practised; giving the same reason for the conclusion given at a much earlier period, that 'such a person had no agreeing mind,' which of itself is sufficient to show that the intoxicated man cannot be held bound to the alleged contract. Chitty on Contr. (10th ed.) 137; Pitt v. Smith, 3 Camp. 33; Fenton v. Holloway, 1 Stark. 126.

Beyond doubt, these authorities support the proposition advanced; and the same wri er adds, that it is now settled that where a party, when he enters into a contract, is in such a state of intoxication as not to know what he is doing, and particularly when it appears that this was known to the other party, his contract is at least voidable. Matthews v. Baxter, Law Rep. 8 Exch. 132; Molton v. Camroux, 2 Exch. 501.

When intoxication goes so far as absolutely to destroy the reason, it is evident that it renders the person in that state incapable of contracting so long as it continues, since it renders him incapable of giving consent. 1 Poth. on Obl., by Evans, p. 29.

Modern text-writers treat of contracts with intoxicated persons under a distinct head; and Addison says, that a party who makes a contract in such a state of intoxication as not to know what he is doing, cannot be compelled to perform the contract by the other party who knew him to be in that state, and that a man who takes an obligation from another so circumstanced is guilty of actual fraud. Examples are given which support the proposition; but the author holds that a contract made by a man in a state of intoxication is voidable only and not void, and therefore the intoxicated man may, if he pleases, when he becomes sober, ratify it, and that it will then be binding. Addison on Contr. (3d Am. ed.) 285.

Courts of justice in repeated instances have decided in the same way. Reference will be made to a few such cases, with the remark, that the number might be greatly increased.

Undoubtedly, said the Supreme Court of Pennsylvania, the total drunkenness of the maker of a note when he executed it, if known to the payee, rendered it void as to the latter; and they remark, that the old rule that a man should be held liable upon a contract made by him when in a state of intoxication, on the ground that he should not be allowed to stultify himself, has been long since exploded, and that it is now settled, according to the dictate of good sense and common justice, that a contract made by a person so destitute of reason as not to know the consequences of his contract, though his incompetency be produced by intoxication, is void as between the parties. Bank v. McCoy, 69 Penn. St. 207.

Except where the contract is for necessaries, the Court of Exchequer held, that where the right of action is grounded upon a specific, distinct contract, requiring the assent of both parties, and one of them is incapable of assenting, as in consequence of intoxication, in such a case there can be no binding contract. Parke, B., said, where the party, when he entered into the contract, was in such a state of drunkenness as not to know what he is doing, and particularly when it appears that this was known to the other party, the contract is void altogether, and he cannot be compelled to perform it; adding, that a person who takes an obligation from another under such circumstances is guilty of actual fraud. Gore v. Gibson, 13 M. & W. 625.

In regard to drunkenness, says Greenleaf, it is now settled that incapacity from that cause is a valid defence to an action upon the contract made while under its influence, as well where it was voluntary and by the fault of the defendant as where it was caused by the fraud or procurement of the plaintiff. 2 Greenl. Evid. (12th ed.) sect. 374.

Whether the intoxication was so great as to suspend or destroy the power of intelligent assent, is a question of fact. Nor does it make any difference that the drunkenness was voluntary and wilful, for the legal theory is, that, without the capacity of giving a deliberate assent, no contract can be made. Story on Contr. (5th ed.) 86. But the author adds, that intoxication only renders the contract voidable, not void; so that the party intoxicated may, upon recovering his understanding, adopt it, when it will become obligatory. Reinskopf v. Rugge, 37 Ind. 207.

Contracts of the kind are voidable only, not void, and therefore capable of being ratified when the party becomes sober. Molton v. Camroux, 2 Exch. 501; Matthews v. Baxter, Law Rep. 8 Exch. 132.

Apply these rules to the facts of the case as disclosed by the proofs, and it is clear that there is no error in the record.

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Author:William Bramwell Withers

Works

 * The History of Ballarat: From the First Pastoral Settlement to the Present Time (1887)
 * Eustace Hopkins
 * The Westons
 * Ballarat Chronicles and Pictures
 * Reminiscences of the '50's and '60's

title: Author:William Bramwell Withers


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HAD long been looking from the wild woods and gardens of the Northern States to those of the warm South, and at last, all drawbacks overcome, I set forth [from Indianapolis] on the first day of September, 1867, joyful and free, on a thousand-mile walk to the Gulf of Mexico. [The trip to Jeffersonville, on the banks of the Ohio, was made by rail.] Crossing the Ohio at Louisville [September 2], I steered through the big city by compass without speaking a word to any one. Beyond the city I found a road running southward, and after passing a scatterment of suburban cabins and cottages I reached the green woods and spread out my pocket map to rough-hew a plan for my journey.

My plan was simply to push on in a general


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 54 with arrows; only one escaped, the wind-swift wolf. Some devotees regarded Ioskeha as the teacher of agriculture and the giver of great harvests of maize. In 1635 Ioskeha was seen, all meagre and skeleton-like, tearing a man's leg with his teeth, a prophecy of famine. A more agreeable apparition of Ioskeha is reported by the Père Barthelemy Vimont. When an Iroquois was fishing, "a demon appeared to him in the shape of a tall and beautiful young man. 'Be not afraid,' said this spirit; 'I am the master of earth, whom you Hurons worship under the name of Ioskeha; the French give me the erroneous name of Jesus, but they know me not." Ioskeha then gave some directions for curing the small-pox. The Indian's story is, of course, coloured by what he knew of missionary teaching, but the incident should be compared with the "medicine-dream" of John Tanner.

The sky, conceived as a person, held a place rather in the religion than in the mythology of the Indians. He was approached with prayer and sacrifice, and "they implored the sky in all their necessities." "The sky hears us," they would say in taking an oath, and they appeased the wrath of the sky with a very peculiar semi-cannibal sacrifice.

What Ioskeha was to the Iroquois, Michabo or Manibozho was to the Algonkin tribes. There has been a good deal of mystification about Michabo, or Manibozho, or Messou, who was probably from the first a hare sans phrase, but who has been converted by philological processes into a personification of light or


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 Rh dawn. It has already been seen that the wild North Pacific peoples recognise in their hero and demiurge animals of various species; dogs, ravens, muskrats, and coyotes have been found in this lofty estimation, and the Utes believe in "Cin-au-av, the ancient of wolves." It would require some labour to derive all the ancient heroes and gods from misconceptions about the names of vast natural phenomena like light and dawn, and it is probable that Michabo or Manibozho, the Great Hare of the Algonkins, is only a successful apotheosised totem like the rest. His legend and his dominion are very widely spread. Dr. Brinton himself (p. 153) allows that the great hare is a totem. Perhaps our earliest authority about the mythical great hare in America is William Strachey's Travaile into Virginia.

Among other information as to the gods of the natives, Strachey quotes the remarks of a certain Indian: "We have five gods in all; our chief god appears often unto us in the likeness of a mighty great hare; the other four have no visible shape, but are indeed the four wynds." An Indian, after hearing from the English the Biblical account of the creation, explained that "our god, who takes upon him the shape of a hare, . . . at length devised and made divers men and women." He also drove away the cannibal Manitous. "That godlike hare made the water, and the fish, and a great deare." The other four gods, in envy, killed the hare's deer. This is curiously like the Bushman myth of Cagn, the mantis insect, and his favourite


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A Critical Dictionary of English Literature/Hartley, David, M.D.

Hartley, David, M.D., 1705-1757, a native of Armley, Yorkshire, was educated at Jesus College, Cambridge, of which he became Fellow. He settled as a physician first at Newark, afterwards at Bury-St.-Edmund’s, subsequently at London, and finally at Bath. He pub. some tracts upon Mrs. Stephens’s famous medicine for the stone,—of which he was a victim,—and some other professional treatises, but is best known by his Observations on Man, his Frame, his Duty, and his Expectations, Lon., 1749, 2 vols. 8vo. Repub. by his son, 1791, 4to, with Notes and Additions, from the German of H. A. Pistorius, Rector of Poseritz, in the Island of Rugen, and a sketch of the Life and Character of Dr. Hartley. Again, with additions, by Dr. Joseph Priestley, 1801, 3 vols. 8vo.

“This is the most valuable edition of this excellent work.”—.

In 1775, 8vo, appeared Hartley’s Theory of the Human Mind, on the Principle of the Association of Ideas; with Essays relating to the Subjects of it, by Joseph Priestley, LL.D. Again, 1790, 8vo. Hartley’s philosophical theory

“Regards the brain, the nerves, and the spinal marrow, as the direct instruments of sensation. External objects, he conceives, excite vibrations in these medullary cords, which vibrations, once communicated, are kept up by a certain elastic fluid called ether. After a sufficient repetition of these vibrations, the sensations leave behind them types and images of themselves. Frequent repetition excites association, and association in its turn imparts to any one idea the power of exciting all the related ideas,—a power which belongs likewise to the vibratiundes and their miniature images. Upon this principle and theory of association, he attempts to account for all the phenomena of the mental constitution of man.”

The hypothesis of vibrations, it is well known, has been completely overthrown by Haller’s demonstration that there can be no such thing as vibrations in the nervous system. Priestley endeavours to prove that Hartley was a materialist like himself; but Hartley “dreaded nothing so much” as this imputation, though certainly he is to be read with caution, and cannot be proposed as a sound guide in theology. As regards his obligations as a philosopher to Newton, Locke, Gay, and even to Aristotle, and how far he concurs with Hobbes, can be ascertained by an examination of the authorities referred to below. As an expositor of the “Law of Association”—we use the term Law not without scruple—Hartley is certainly entitled to some credit, and he has been fully paid. We quote some opinions respecting his philosophical speculations as displayed in the Observations on Man:

“Something was done in this field of knowledge by Descartes, very much by Mr. Locke, but most of all by Dr. Hartley, who has thrown more useful light upon the theory of the mind, than Newton did upon the theory of the natural world.”—: Remarks on Reid, Beattie, and Oswald, 1774.

“Johnson, one day, observing a friend of his packing up two volumes of Observations on Man, written by this good and great man, to take into the country, said, ‘Sir, you do right to take Dr. Hartley with you; Priestley said of him, that he had learned more from Hartley than from any book he had ever read, except the Bible.’”—Boswell's Life of Johnson.

“Hartley has investigated the principle of Association more deeply, explained it more accurately, and applied It more usefully, than even his great and venerable predecessor, Mr. Locke.”—: ''Serm. on Education'', 1774.

“The writer who has built most upon Hobbes, and may be reckoned, in a certain sense, the commentator, if he who fully explains and developes a system may deserve that name, was Hartley.”—''Hallam’s Lit. Hist. of Europe, q. v''.

“That there is great value to be attached to much which Hartley has drawn from the law of association, and that he has afforded an explanation of many phenomena, before very imperfectly understood, cannot be denied. The very ardour, however, with which he threw himself into his system, and the very closeness with which he analyzed the facts in the case, necessarily imparted a one-sidedness to his philosophy, and led to the neglect of some other facts equally important.”—''Morell’s Hist. of Mod. Philos''.

“It is the first attempt to join the study of intellectual man to that of physical man.”—''Cousin’s Hist. of Mod. Philos., O. W. Wight’s Trans''.

Cousin is a high authority,—but does he not forget philosophic caution when he styles Hartley’s the “first attempt”? We offer no counter-statement, but we think it exceedingly hazardous to pretend to designate “the first attempt” in any branch of human speculation. We have ventured to hint some doubts respecting the extraordinary merit which has been claimed for Hartley’s speculations; and, if we err here, we err with great examples:

“The capital fault of Hartley is that of a rash generalization, which may prove imperfect, and which is at least premature. All attempts to explain or instruct by this principle have hitherto been unavailing. Many of the most important processes of reasoning have not hitherto been accounted for by it.”—: ''2d Prelim. Dissert. to Encyc. Brit''.

“The intentions of both [Bonnet and Hartley] are allowed, by those who best knew them, to have been eminently pure and worthy; but it cannot be said of either, that his metaphysical writings have contributed much to the instruction or to the improvement of the public. On the contrary, they have been instrumental in spreading a set of speculative tenets very nearly allied to that sentimental and fantastical modification of Spinozism which for many years past has prevailed so much and produced such mischievous effects in some parts of Germany.”—: ''1st Prelim. Dissert. to Encyc. Brit''.

Bishop Watson reprinted in his Collection of Tracts one on the Truth of the Christian Religion, prefaced by the remark:

“This tract is printed from the second volume of Dr. Hartley’s Observations on Man; it is written with singular closeness of thought, and to be well understood must be read with great attention.”—.

Consult authorities cited above; and see also Life by his son, prefixed to his Observations on Man, ed. 1791, 4to; Reid’s Essays on the Intellectual Powers; Blakey’s Hist. of Mod. Philos.; Dr. E. Williams’s Christian Preacher, ed. 1843, p. 337; Watson’s Hist. of Halifax; Cunningham’s Biog. Hist. of England; Chalmers’s Biog. Dict.


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A Critical Dictionary of English Literature

 * Hartley, David, M.D.