The Papers of John B. Minor, 1845-1893

Gentlemen of the School of Law, The profession, upon the study of which you are about to enter, exerts... so decided an influence upon Society, as justly, to attract the attentive regard of the philosophic spectator, not less than that preferences of the ambitions aspirant.

In all countries where freedom, or even the forms, prevail, the lawyer is a charactter of weight and importance in the body politic. His functions intend ed, not merely to the administration of private justice, but indirectly embraces, also , the care and protection of the civil rights of the community. The body of lawyers in England, and in the States of this Confederacy, constitute an important barrier as against the encroachments of power, [row crossed out] and firmly and systematically maintains the ancient land-marks of Constitution-- al liberty. They alone, as a class, are accostumed to reason of the principles of rational freedom tempered by those indispensable restraints upon which depend the peace and good order of society; and they best comprehend what is sufficient to control the vicious propensities of mankind, and what is wanton, useless, and odious invasion of there rights. Hence it is that lawyers in America and England have generally been the most astute to perceive and by no means the last to resist the aggressions of power Rendered averse, by professional training, to the inccise of arbitrary authority, and by habit inured to respect and support a government of laws, they have been safe guides amid the pitiless storms of

The forlorn and despised wretch finds in his advocate, for the occasion, an unyielding friend, whom no blandishment can seduce, nor threats terrify. However timid and sensitive his nature, the exigenicies in the profession, the influence of his bretheren, and public opinion, all demand unwavering ferventness, and the has long since acknowledged, by their involuntary confidence, that in general the equisition is fulfilled. The man from whose lips are often heard bold and moving denunciations of oppression, strong and manly reasonings upon mutual rights, and eloquent appeals to the softer emotions of the heart cannot but be the depository of popular grievancies, and the championof popular priviliges.

The whole professional training of lawyers, & the whole tenor of their professional career, tend to make them be viewed by the people as the peculiar guardians of their rights. The distinctions of social right doing, - between what society may, must, or must not do, are the subjects of their daily investigation, and they are engaged incessantly in maintaining these distinctions by public argument. It is not strange, therefore that they soonest snuff the tainted breeze of tyranny, and most clearly discern the remote tendencies of illegal power.

The great merit of the very distinguished {gentlemen crossed out} persons who have preceded me in the occupancy of the chair of law, in this University fills me with apprehensions of which I have never been more sensible, than at the moment I began to discharge its duties.

{crossed out text: Apologies, however, are vain and promises useless } But, as I cannot occupy your time with vain apologies, or useless promises I proceed at once to the subject which has called us together.

mussent

John B. Minor Esqr

University of Va. Charlottsville Va.

D. Appleton & Co [Recd?] Augt 16, 1848

[Lardner's Railroad Statistics][check mark] Herschell's Prelim. discourse on study of Nat. Phil. Moreley's illustrat'ns of Mechanics. Powell on Mortgages Phillips on Evidence Hildreth's U States _ Harpers.(4th vol 1789 to 1821.) Ld. Holland's for. reminises. _ Harpers _ Abbott on Shipping _ Last Edn [check mark] Donatis Civil Law Religions (Robt Carter & Bros, 285 Broadway NY, Publishing/ Anderson's annals of Eng. Bible Ser Bible Enp[?]ister |.50 c Blunt's undersigned coincidences in writings of old & new testaments|1.25 Brown's Bible & Gypsies in Spain|.75 Brown's Concordance, 2v [?]|.20 Bunyon's Jerusalem dinner Saved|.50 [Bunyon's] Greatness of the Soul.50 Cecil's works, 3 vol 12 mo|3. Chalmer's Silent works 4 v 8[?]|6. [Chalmer's] Astronomical discourses|.60 Cowper's life & works (Grimshaw), 1v.8[?]|3. Davies' Sermons 3v8[?]|2. Ford's Decapolis|.25 Fry's Scripture reader's guide|.30 Hamilton's Life in earnest|30 [Hamilton's] Mount of Olives|each .30 [Hamilton's] Harp in the Willows|[each .30] [Hamilton's] Thankfulness|[each .30] [Hamilton's] Life of Richon Hall|[each .30] Hill (George)_ Lectures in Divinity|2. Horne's introduction, 1v. 8[?] sharp|4. [Horne's] 2v _ Sil[?? Styl?]|3. [] Christians|.30 Religions (contd) Jay's morning exercises - 23 mo|.75 [Jay's} Evening Do|.75 Mackay _ The Uyckliffiter; or Sugd in the 15 centy|.75 Martyn's (Henry) life|.60 More (Hannah) _ Book of private devotions.50 Missions origin & History of - By [Choules] & Smith __ 2[?]to|3.50 Newton's (Rev John) works, 2v 8[?}|3. [Newton's} Life|.30 Richmond's demutic Portraiture by Biskersteth|.75 Richmond's Annals of the poor.4[?] Scott's force of truth|.20 Setest Christian Authors; comprising Doddridge, Wilburforce, Adams, Haly= Linton, A Kempis T., with introd essays by Dr Chalmers, Bishop Wilson & others _2v 8[?]| Whateley's Kingdom of Christ [???] of Romanism|.75 Civil Law. Hoppins, Comment. all Inst. Justinianens|$2.50 Heinrics Antiq Romanal|2.45 [Heinrics] Elementa Juris Civilis|1.5 [Heinrics] Complete works, 6 vols (?)|14. Hubenes Praelectis ad Inst, 3 vols|1.75 [Hubenes Praelectis] ad Digestan Voet Comm. ad Pandectas 5.60 Vinnius Comm in Justs|1.17 Vinnius Selectae Juris Quests|1.48 Daniel Smith's letter of 20. Jan 1852.

Books wanted Dec 1849 Pepys' Diary Burnets Mems [Quaker's?] Jefferson Coke's Reports Adams' Constitutions Lerke's works [Bingham's Pol Phil.] Hawkins abridgt. C[?] Lit. Amast. Papers

Nov. 24, 1833. Benefit of lieu to assigned of part of debt. Case started by Mr JW. Hutcheson of Anderson The case is this. Bass sold Phillips a tract of land for $2300, for which he took two notes, on for $1300, ^ due [Jan.?] 1833, & the other for $1000, due [Jan.?] 1836, with a mortage on the land to secure the payments.

One [Bomdon?] became the assignee from Bass of the $1500 note, & subsequently the note for $1000 was assigned to one [Ineen?], who avened showed that at the time he traded for, Bass showed him the mortgage by which it was secured, as an indicement to his to doing.

The questions are

1. [Another?] assigneer of the notes entitled to the benefit of the mortgage lieu, as of course? 2. ^ If so, are they entitled in the order of priority of assignment, ^ or pro [rata?], or in the order of the time of payment?

1. A to the first question, no draft I [rappered] or law be entertained, that the debt in the principal thing, & the mortgage a mere incident thereto, which therefore passes always to the assignee of the debt, at least if there is no [otipulation?] to the contrary. 1 dern. Dig. 33.5 - 6.533, 34; [lnatchmiyo] v Rigland 1 Runo. 466; ^ Schofield v Cox Senah 533; Ragsdale v Hagg [qluab?]. 427; Dryden v [Fril?] 3 Mylne & Craig 670; Whittemore v [Knibb?] 4 Foster (NH). 484 {14 K.I Dig 444. Mortgage. 181}; Center v PLM BK 22 743. [Thid?] 186]; Phillips v BK of Levistowne 18 Penn. [(Harris)?], 394 , [13 M.S Dig. 496 Mortgage 238]; Miller v Hoyles [6 ked.?] eg. 269; [10 [UW?] Dig. 43, Assignment 27]; Keyes v Wood 21 Vernt (6 Washb.) 3.31 [10 K.S. Dig. 330, Mortgages. 103]; Bur-

dett v Clay 8 [Billonr.?] 287 [9 U.I. Dig. 338, Mortgages. 152]; Dick v Mawry 9 [Sm. I Maisk?] (Mi) 448 [8 U.I. Dig. 281. Mortgages 192]; Servis v [Starke?] 10 [Sm Tm. 120?] [Uid. 193]; Henderson v HerRegney v Lovejoy 13 W.H. 247 [7 U.i. Dig. 371. Mortg. 115-116]; Mile v [Gray?] Monr. 417 [ 5 U.I. Dig. 42] rod 10 [SM Tm. 631?] [Uid. 196]; Mortge. 261]; Fitzsimmon appeal 4 Barr. 248; ^ Crosby v Brownson 2 Day (Con) Fox v Foster [Do 119 [7 US Dig 50 Assign. 32-3]?]; 425, [2 US. Dig. 344, Mortgage, 1149]; Johnson v Hart 3 John. 322,? Laurence v Knapp 1 [Roof?] (Cont) 248; Terry v Wood 6 [Sm tm?] 1399 Blair v Bass 4 Blackf. 539; [Ineer?] v Hart 1 Johns. 580, [2 U.S. 345, Mortgage, 1153]; Patterson v Hull 9 [Corv.?] 747, [2 U.S. Dig. 345, Mortgs. 1158]; Stevenson v Blank, Santess (N Jersey) 338, [Id 346, Morts. 1184]; Betz v Heebner 1 Penn. 280 [Uid 1189]; Emanned v Hunt 2 Ala. 190 [ Id 347, Mort. 1194]; Laberge v Chauvin 2 Mis. 179 [ Uid. 1209];

In Vermont & Maine, especially in the latter, their doctrine has not met with perfect acceptance, apparently on the ground, vainly urged in Dryden v Frost, & Mybre + Craig 678, namely that a mortgage of land is an interest in real property, which cannot be assigned by parol. In that case the chancellor ([Lo Lottenham?]) got over the objection by the analogy of the vendor's lieu, - equivitable mortgages by deposit of title deeds [t. h 673?]. Here in Vermont it has been held that if all the notes secured by a mortgage are assigned, the mortgage passes with them, but if partially assigned, whether the whole mortgage, or a proportionate part, or any interect therein is assigned, depends on the actual agreement of the parties. Landgon v Keith 9 Vermt 299. [2 U.S. Dig. 344, Mntg. 1145]. And in Maine it has been repeatedly decided that the transfer of the note does ^ not itself operate a legal transfer ^(ie a transfer organizable in a court of law) of the mortgage whereby it is secured. Dwinel v Perly, 32 Maine (2 Redington) 197), [12 U.S. Dig. 441, Mntg. 158]; Waner v Homestead 33 Maine (3 Red.) 197, [13 U.S. Dig. 496, Mntg. 235]; Smith v Keller 27 Maine (14 Shepley) 237, [9 U.S. Dig. 338. Mntg. 143.]

2. As to the second question; - there is a considerable conflict of authenticity. The better opinion seems to [see?] to the that the first assignee has preference, because by assignment the assigned priority over the assigner , who remained the holder of the other bond, and this priority ^ his subsequent assignment of the latter bond could not take away. The attorneys in [Ragland I Rund. 466?]; ^ Taylor v Spindle 2 [Grah?] 71; 1 [Lum?]. Dig 336.533; 1 [Juck.?], Nelson v Brown 15 [Ala?]. 507, [13 U.S. Dig. 53, Assignment 32]; Keyes v Wood 21 [Vermt?]

down a contrary doctrine, which however, is support to [the ownsend?]. 1 [Stir. Eq?]. 5476, 2 D 1233.A.

There are several cases, however, which hold that no such priority on the assignor attaches to the note first assigned, such that as the assignment impart no responsibility nor undertaking for the payment of the debt by the debter, it does not bind the assignor to relinquish his own right in favor of the assignee, or entitle the latter to anything more than an apportionment of the securities held in common for it, & another debt not passed by the assignment. It follows, therefore, that a subsequent assignee of the latter obligation, according to these cases, will stand in the same position with the assignor, and be entitled to share in the benefit of all securities originally given on account of both debts. Belding v [Manly?] 21 [Vermt (6 Washb. 1550,?] [10 U.I. Dig. 330, Mortg. 105]; Henderson v Herrod 10 [Sm Tm 631?] [8 U.I. Dig. 281, Mortg. 196]; Hevenson v Black, [Santive?] (NJI 338, [2 U.S. Dig. 346, Mortg. 1184]; Betz v Hebner I Penn. 280, [Id. Mortge. 1190]; Durley v Hays 17 [Str.?] 400 {[@ White + Tadeis L.O 447]?] Mohleis appeal 5 Barr 418 [Uid]. Mohleis appeal is suppilied by Memi Hare + Wallace (notes to White + T. L.C, [Whi supra?]), to have gone far to settle the law, in form of appointment.

There are again, some cases ^ or at least one case, in which ^ it is held that the notes are charged on the fund according to the order of time in which they become due. State Bk v Tweedy S Blackf. 447, [10 US. Dig. 331. Mntg. 112].

In the case under consideration, therefore I am of opinion that the benefit of the mortgage lien passed with the notes to the assignee, thereof, [illegible?] in the order of the assignment, to that Bomden, the ^1st assignee is entitled to priority of satisfaction.