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such scope to realize the spontaneous energy of one's such work is indispensable to the practitioner under a soul? In what other does one plunge so deep in the Code, and we know of none better than this. It is stream of life-80 share its passions, its battles, its de- conveniently arranged, and generally we find the forms spair, its triumphs-both as witness and actor? very good. It is well printed, and is not padded.

But that is not all. What a subjeot is this in which we are united! This abstraction called the Law, wherein as in a magio mirror we see reflected, not only

BISHOP'S DIRECTIONS AND FORMS. our own lives, but the lives of all men that have been. Practical Directions and Forms for the grand jury room, When I think on this majestic theme my eyes dazzle. trial court and court of appeal in criminal cases, with full If we are to speak of the law as our mistress, we who citations from the reports and other books, and a general are here know that she is a mistress only to be wooed index to the author's series of criminal law works. By with sustained and lonely passion--only to be won by Joel Prentiss Bishop. Boston: Little, Brown & Co., straining all the faculties by which man is likest to a 1885. god. Those who, having begun the suit, turn away un- Although Mr. Bishop has a mean opinion of law-jourcharmed, do so either because they have not been

nal book notices, we shall not be deterred from giving vouchsafed the sight of her divine figure, or because

an honest opinion about his books. This seems to us, they have not the heart for so great a struggle. To the

from a cursory examination, to be like all his other lover of the law, how small a thing seem the novelist's

works, perfect in its way. We can say no more, and tales of the loves and fates of Daphnis and Chloe. How

can honestly say no less. The general index to his pale a phantom even the Circe of poetry transforming works on criminal law is extremely valuable. The mankind with intoxicating dreams of fiery aether and

book is beautifully printed. the foam of summer seas and glowing greensward, and the white arms of women! For him no less a history will suffice than that of the moral life of his race.

LAWSON'S PRESUMPTIVE EVIDENCE, For him every text that he deciphers, every doubt that

The Law of Presumptive Evidence, including presumptions he resolves adds a new feature to the uufolding pano- both of law and of fact, and the burden of proof, both in rama of man's destiny upon this earth. Nor will his

civil and criminal cases, reduced to rules. By John D. task be done until, by the furthest stretch of human Lawson. San Francisco: A. L. Bancroft & Co., 1885. imagination, he has seen as with his eyes the birth and growth of society, and by the furthest stretch of rea

The readers of this journal will form a good opinion son he has understood the philosophy of its being.

of this excellent treatise from the large portions of it When I think thus of the law, I see a princess mightier originally published in these columns. It is written than she who once wrought at Bayeux, eternally weav

on the true plan of codification, and it is most admiraing into her web dim figures of the ever-lengthening bly executed. It is hoped that the author will follow past-figures too dim to be noticed by the idle, too

it up in the same way, and his later contributions to symbolio to be interpreted except by her pupils, but to

this journal give promise that he will. Mr. Lawson the discerning eye disclosing every painful step and

now stands at the head of the younger law writers,and every world-shaking contest by which mankind has

this work will confirm his position. worked and fough: its way from savage isolation to organic social life. But we who are here know the law even better in

NOTES. another aspect. We see her daily, not as anthropologists, not as students and philosophers, but as actors in a drama of which she is the providence and over

E have always been aware that it is sinful to smile ruling power. When I think of the law as we know in church; our mothers have told us that; the her in the court-house and the market, she seems to punishment we always thought was being handed over me a woman sitting by the wayside, beneath whose over- to the tender mercies of that august official, the beashadowing hood every man shall see the countenance dle. It seems however when we attain years of disof his deserts or needs. The timid and overborne gain cretion the punishment for smiling in church is a fino heart from her protecting smile. Fair combatants, of 58. A well-known merchaut ventured the other day manfully standing to their rights, see her keeping the while in church to remark to a friend that "the chorlists with the stern and discriminating eye of even jus- isters looked well in tbeir night shirts,” referring to tice. The wretch who has defied her most sacred com- their surplices. The remark caused a smile; the smile mands, and has thought to creep through ways where cost 58., being held to be “brawling.” The smile was she was not, finds that his path ends with her, and be- really uncalled for; there was nothing funny in the holds beneath her hvod the inexorable face of death. remark; but was not the punishment also uncalled

Gentlemen, I shall say no more. This is not the for? It is only fair to mention that the decision was moment for disquisitious. But when, for the first

upset on appeal; so that we may still look amiable time, I was called to speak on such an occasion as this when in church without being fined for smiling.--Gibthe only thought that could come into my mind, the son's Law Notes. Some English magistrates decided only feeling that could fill my heart, the only words that a "crawfish " is not a fish, but the judges thought that could spring to my lips, were a hymn to her in

otherwise. --The following actually occurred in court whose name we are met here to-night-to our mistress,

a few days ago : After a long wrangle between judge the Law.

and counsel-Judge: “Well, Mr.

if you do not

know how to conduct yourself as a gentleman, I can't NEW BOOKS AND NEW EDITIONS.

teach you." Counsel: “That is so, my lord.—Law

Times. (This really occurred in the ark.--EDLA

Legal Subtlety.--At Hastings a respectably.dressed Extee's Pleadings, Practice and Forms. Adapted to actions man, in a hopeless state of intoxication, was found in and special proceedings under Codes of Civil Procedure,

a bath chair, drawn by a chairman, and was taken into By Morris M Estee Third edition, revised, enlarged custody. It appeared however that the accused was and rewritten by Carter P. Pomeroy. Three volumes. not removed from the bath chair until he got to the San Francisco: A. L. Bancroft & Co., 1885.

police station, and the bench holding that the prisoner This we believe is the most elaborate and complete had not been found drunk in the highway, dismissed work on this subject, and it is of good repute. Some the case.


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sitioner under that this li we find the final cot padded.

The Albany Law Journal.

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respond to the witty illustration of the Home Secretary. Far from expressing the slightest shame or

penitence for the views which he holds as to the ALBANY, MAY 30, 1885.

sacredness of property of all descriptions, Lord Bramwell actually seems to glory in them. The

session of the Court of Appeal was probably the CURRENT TOPICS.

earliest opportunity that was presented to him of YOMMON law is uncertain as to what consti- answering Sir William Harcourt's banter; but at all tutes larceny. The St. James Gazette says: “If events, he seized on the opportunity and turned it

to the best account.

Portia's statement a sovereign is given to a cabman by his fare, both parties believing it to be a shilling, and an hour

of the case would, Lord Bramwell tells us, have inlater the calman discovers the mistake and keeps

duced him to give the pound of flesh to the usurer, the sovereign, has he stolen it? The argument of except for one little flaw in her argument. The this question before the Court for Crown Cases

flesh had not been appropriated,' and could not, Reserved last week afforded excellent entertainment

therefore, be regarded as property to which Shylock to a professional audience. The difficulty is, that

had a good legal right until it had been cut from to take and carry away animo furandi' is an essen

Antonio's quivering body. Supposing Lord Bramtial part of the common-law definition of larceny,

well to have been sitting in banco with the Doge and that in this case the cabman did not form a

of Venice on the occasion of the famous trial, and felonious intention about the sovereign when he

the pound of flesh had been lying on a table, ready took it and carried it away, because he then believed

cut; in that case the decision of the English judge it to be a shilling. On behalf of the Crown it was

would have been in favor of the plaintiff's claim to argued that either he took it when he knew it was

the possession of the horrible piece of 'property.' a sovereign or the felonious intention which he

But then, as Lord Bramwell truly remarks, in order subsequently formed relates back to the time when to get the flesh, assault, and even murder, would he took it. Before the argument had gone far it

have had to be committed, and therefore the conwas apparent that the five judges who were hearing

tract was null and void from the beginning. * the case were not agreed, and while Lord Coleridge The moment Shylock had advanced toward his vichad no doubt that the sovereign was stolen, Mr.

tim, knife in hand, he would have been technically Justice Stephen was equally positive that it was not.

guilty of an assault with intent, and would have Mr. Justice Cave further complicated matters by

been obliged to appear at the police court of the throwing out a suggestion that the cabman might

period next morning to hear what the sitting magisperhaps have committed the statutory offense called trate thought of the offense." larceny by a bailee. In the result the Lord Chief Justice announced that the Bench was so seriously divided in opinion that there must be a further

The Chief Justice of Ontario has given the lawyers

* fits." The Canadian Law Times says: “The argument before the full court that is the whole Queen's Bench Division; so that the frequenters of

speeches were excellent without exception, the the law courts will again be gratified by the most

chief justice of Ontario throwing his audience into impressive legal spectacle left to us in these prosaic

successive fits of laughter with his brilliant witti

days, that of twelve or fourteen judges all sitting
together to decide a question of criminal law.” It
would be bad indeed to have a statute exactly de-

The “Mid-ship mite” pats “the ruler of the fining larceny, for then suitors could not be treated

queen's navee” on the back — The Columbia Jurist

calls us its “esteemed contemporary.” This is too, to this " impressive legal spactacle."

too much.

Farge portino '

mus. It is dit is most ades e author Fun er contribatis?

will Mr. Lare ger law wita

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Lord Bramwell thinks the contract between Shy

Judge Elliott Anthony is publishing in the Chilock and Antonio was contra bonos mores and void.

cago Legal Adviser a remarkably interesting series

of articles on the “ Courts of England.”
In this he is not alone nor original. We have ad-
vocated that view for years.

The present comment
came about in this way, as we learn from the London Dr. Hammond, the

younger not the novelist Telegraph "The Home Secretary lately ventured has discovered that hanging, producing strangulato assert that Lord Bramwell entertained so vast a tion without breaking the neck, is a humane, not to reverence for all kinds of property that if he had say very pleasant mode of execution. It is the been called upon to decide the legal dispute in “The breaking of the neck that is barbarous, painful, and Merchant of Venice,' he would infallibly have de- not instantaneous. This -- at least, the part relatclared that Antonio's pound of flesh must be given ing to mere strangulation - he has demonstrated to his creditor. Lord Bramwell, with the frankness by experiments on his own person, by means of a which usually characterizes him, bas met Sir Wil- silken cord, a tourniquet and trustworthy friends liam Harcourt's little joke by an answer delivered

to relax the pressure.

Dr. Hammond has experifrom the judicial bench. In the course of an Appeal enced the most delightful sensations. His gifted Court case the learned judge took occasion to father ought to put them in his next novel. But this

VOL. 31 -- No. 22.

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dwell upon.

seems dangerous trifling -- something like jumping we guess that the "

trimmings” are cherry" off Brooklyn bridge -- and if the assistants should rather than "cheery." miscalculate or any thing should go wrong, the world would be deprived of an enterprising young physician. Beside, we fear that this will inspire others to

NOTES OF CASES, try the same experiments without the same precau

N Johnson v. Rogers, 35 Hun, 267, it was held that tions and experience, with fatal results. This would be bad for the bystanders surviving. All this nonsense ought to stop. Let us go on hanging after the old

The court said: “In other words can a husband fashion, and let us not be persuaded not to break

deed to his wife? The authorities are conflicting necks because strangulation is pleasanter.

and leave the question in doubt. In the case of Meeker v. Wright, 76 N. Y. 262, the argument of

Danforth J., would seem to support the deed, but The question of delays in the administration of his opinion was not concurred in by a majority of justice is to be reported upon, at the next meeting the court. In the case of Thompson v. Commissioners, of the American Bar Association, by a committee of ete., 79 N. Y. 54-63, the plaintiff at the time of which we believe Mr. David Dudley Field is chair

the execution of the mortgage was the owner in fee This topic, under the title of “The Tardiness

of one-third of the premises. She subsequently of Justice,” is discussed by our townsman, Judge received a deed from her husband of the other two. W. L. Learned, in the current number of the North

thirds. It was held that the defendants were not American Review. The writer alludes to many of

in a position to raise the question as to plaintiff's the well recognized causes of delay, and suggests right as guarantee of her husband; and Miller, J., some ameliorations, which we have not space to in concluding his opinion, says: “Under recent

The most striking point made by him legislation the husband has a right to convey to his is the following: “But under our system, following wife," citing the case of Meeker v. Wright, supra. the English, appellate courts seem at times to care In the case of Bertles v. Nunan, 92 N. Y. 152; S.C., more about making precedents than about deciding 44 Am. Rep. 361, Earl, J., in delivering the opinthe case in haud justly. This comes from the fact, ion of the court, says that the common-law disabilso often discussed, that our law is largely judge- ity of husband and wife, growing out of their unity made' law. Instead of being guided by the rules of person, to convey to each other still exists. Inof codes of law, or by a sound judgment as to the

asmuch as the determination of this question was merits of the case, appellate courts are constantly not necessarily involved in the case of Bertles v. searching for precedents in other cases, and are Nunan, we must regard the question as unsettled anxiously making a precedent out of the case in by the Court of Appeals and consequently open for hand. When a case is argued, the question is not consideration in this court, At common law neither whether justice was done in the court below; but it husband nor wife could convey to each other for may be whether some witness said something which the reason that in law they were regarded as one might be considered irrevelant perhaps no more person. It thus becomes a question as to how far important to the merits than whether he stood at the unity of person between husband and wife has right angles to the jury when he testified.” The been abrogated by the statutes upon that subject. article is intelligent and timely, and will enhance And in construing these statutes we must bear in the interest with which the report and discussion mind the rule that statutes changing the common on the subject at Saratoga are awaited.

law must be strictly construed, and that the common law must be held no further abrogated than

the clear import of the language of the statute abThe English journals do not treat our ex-digni- solutely requires." (See ante, 361). “It is now ar. taries with due reverence. Here is what the Lon-gued that because of the amendment of 1862 of don Law Times says of our late president: “The section 7, leaving out the words “except her husAmerican journals announce that Mr. Arthur, the band,' that discloses a legislative intent to abrogate late president of the United States, has ‘resumed the common-law rule of unity of person to the exhis law practice with his old firm,' and give inter

tent that a husband may now convey real estate esting details as to the furniture of his office, which directly to his wife. Such however does not appear is stated to be of 'mahogany, with cheery trim- to us to have been the purpose of the amendment. mings.' Litigants across the Atlantic may be con

If it was, why should the words have been retained gratulated on the opportunity thus afforded of ob

in section 8 of the act, and why is section 3 of the taining for six and eightpence (or the American act of 1849 left unchanged ? The reason is quite equivalent) the opinion of the late chief magistrate apparent; the section (§ 7 chapter 90 of 1860) proof one of the greatest States in the world, and the

vided that any married woman may while married taxing officers of the American courts will find

sue and be sued in all matters having relation to her peculiarly fascinating employment in cutting down property which may be her sole and separate propthe bills of costs of an ex-president.” We are sure erty, or which may hereafter come to her by descent, that the material of the office furniture of so good a devise, bequest, purchase, or the gift of any person cabinet-maker as Mr. Arthur is not irrelevant. But except her husband,' etc. Under this provision,

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while she could sue and be sued in reference to all cation, the defendants are entitled to know who
of the property which she acquired from other those persons are in order to be prepared to meet that
sources than her husband, she could not sue or be part of the case as far as they may be able to do so
sued in reference to property that she acquired from by proof upon the trial.”
him. If therefore the husband should, through
fraud or conversion, procure money or other prop-

In Beacannon v. Liebe, 11 Oreg. 443, it was held erty, and then give the same to his wife, the wife

that although two partnerships, composed, in part, would be protected in the retaining of the posses

of the same individuals, could not sue each other at sion of the property, for having received it from law, yet that a balance of account, due from one of her husband, she could not be sued therefor. No

such partnerships to the other, might be assigned, matter whether she was authorized to take and hold

and the assignee might maintain an action to recover property from her husband, the effect of the act

such balance unless it should appear that a general was to prevent her from being sued. It was to accounting was necessary between the two firms to remedy this defect that the act of 1862 was passed, ascertain such balance. The court said: “The in which the words 'except her husband' were

difficulty at law arises from the fact that all the properly left out of section 7, but still retained in partners must join and be joined in the action, and section 8. No other legislation appears to have

as no person can maintain an action against himself, affected the question. It consequently appears to

or against himself and another, it could not be susus that section 3 of the act of 1849 is still in full

tained. (Story's Eq. Juris., $ 679.) Equity howforce, unrepealed, and that the words therein con

ever treats the copartnership as a distinct existence, tained, other than her husband,' prevent her from

looks behind the form of the transactions to their taking title by grant of her husband. The case of

substance, and treats the different firms, for the Hunt v. Johnson, 44 N. Y. 27; S. C., 4 Am. Rep.

purpose of substantial justice, exactly as if they 631, is the most favorable decision to the plaintiff's

were composed of strangers, or were, in fact, corclaim to which our attention has been called. The

porate companies. Id. $ 680. In this case, the conclusious reached by Hunt, Commissioner, have assignment of the claim freed it entirely from the been questioned and criticised upon the ground objection that a person cannot maintain an action that the authorities upon which he relies do not

against himself. That feature in it has been resustain the position taken by him. (See 13 Alb.

moved by the assignment, and upon that point it L. J. 110.) But conceding the rule to be as he stands upon the same ground as the cases cited by states it, the wife is not here asking to have the appellant's counsel o f Moore v. Holland, 39 Me. deed to her, upon the nominal consideration of one

304; Thayer v. Buffum, 11 Met. 398, and Pitcher v. dollar, established by a court of equity, but her Barrows, 17 Pick. 361. And we see no reason why illegitimate son, a stranger to Abel Easterbrooks

such objection, where it is merely technical, cannot and liis daughter, and if a court of equity will not

be obviated in that way, where the assignment is interfere as between persons standing upon the same actual and real. The respondent's premise that the meritorious consideration, as between wife and assignee acquired no higher rights than those held child of the grantor, it will not in favor of a

by his assignors, is undoubtedly correct, but his stranger who has no claim upon the grantor for conclusion drawn therefrom is not supported by it. support and maintenance."

The question of right is not involved in the mat

ter; it is a question of disability. One firm could In New York Infant Asylum v. Roosevelt, 35 Hun, assign the claim, when owing to the peculiar cir501, it was held that in an action of libel, brought cumstances referred to, they could not maintain an by a charitable corporation, alleging loss of dona- action upon it in their own name; the assignment tions, a bill of items should be furnished giving the removed that disability. The case of Thayer v. names of the donors. The court said: “The rules Buffum, supra, is decisive of that point. See also prescribing what such a pleading as this complaint 18 N. Y. 74.” Hayden v. Whitmore, 74 Me. 230; should be require that this information shall be Hale v. Wilson, 112 Mass. 444. In Learned v. Ayres, given i the defendants. That was considered in 41 Mich. 677, it was held that the assignee could Hartley v. Herring, 8 T. R. 130, where it was held not bring suit. that the declaration should state the names of the customers whose patronage had been withdrawn In Claflin v. Smith, 15 Abb. N. C. 241, it was from the plaintiff by reason of a slanderous public held that an assignment for the benefit of creditors cation. This complaint has not complied with that under the laws of this state is not invalidated by rule, except as to the two persons, Fisher and reason of a clerical error in the certificate of Parke, whose names seem to have been given, so acknowledgment. In that case the officers certifar as they were known, and to remedy the defi- fied personal appearance, etc., of the party described ciency in this respect the orders requiring the names in and who executed “the same," instead of the of the persons referred to, to be given, were regu- “ within instrument.” Davis, P. J., said: “The act larly made If the plaintiff expects to be able to (Laws of 1877, ch. 466) looks only to the substance make proof of the fact, that persons have withheld of the thing, and is satisfied when the act appears charitable donations from it because of this publi- | in that respect to have been complied with, no form

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of certificate is therein prescribed, and conse

word is not defined in the Code, nor do we find any quently it need not be in any particular form. Ritter definition of it in the law lexicographies. In our v. Worth, 58 N. Y. 627; Sheldon v. Stryker, 42 Barb. opinion, as used in article 496 of the Penal Code, 284; West Point Iron Co. v. Reyment, 45 N. Y. 703. and as commonly understood in this country, it has It is the policy of the law to uphold a certificate a more comprehensive signification than that given when substance is found (Kelly v. Calhoun, 95 U. S. it by Mr. Webster. We understand a decrepit per710), and it should be the aim of courts in cases of son to mean one who is disabled, incapable or indefective certificates to preserve and not to destroy, competent, from either physical or mental weakand the court should be astute to find means to ness or defects, whether produced by age or other make official acts effectual. Morse v. Clayton, 21 causes, to such an extent as to render the individual Miss. 373; Wells v. Atkinson, 24 Minn. 161, and for comparatively helpless in a personal conflict with that

purpose the courts may refer to the deed itself. one possessed of ordinary health and strength. We In Scharfenburg v. Bishop, 35 Iowa, 60, the word think that within the meaning of the word as used “appeared ” was omitted, and it was held obviously in the Code, a person may be decrepit without being a mere clerical error. In Davar v. Cardwell, 27 Ind. old; otherwise the use of the word in the Code 478, the form of the certificate was “acknowledged would be tautology. It certainly was intended by it" and it was held that “it” meant the deed. In the legislature that it should signify another state Pickett v. Doe, 5 Smedes & M. 470, the acknowledging or condition of the person than that of old age. officer inserted his own name instead of that of the Thus where the party assaulted was a man about grantor and this was held not to be fatal. In Sam- fifty years old, disabled by rheumatism to such an uels v. Shelton, 48 Mo. 444, the mistake was an extent that he was compelled to carry his arm in an omission to identify the deed and it was held to be unnatural position, and in such a manner as to renof no consequence, because it was obvious what was der it almost if not entirely useless to him in a intended. In Rigler v. Cloud, 14 Penn. St. 364, the personal difficulty, it was held, that whilst his court say: 'It is against the spirit and genius of condition might not come technically within the our government to extend nice, technical objections word meaning of the decrepit as defined by Mr. to the acts of magistrates and other functionaries of Webster, yet it might with propriety be said that the law who are called periodically from the mass of it fell in the measure of that word as used in comthe people to discharge such duties, without pre- mon acceptation. Bowden v. State, 2 Tex. Ct. vious legal learning or experience, and thereby dis- | App. 56.” turb estates long settled and purchased for full MOVABLE PROPERTY.- A growing and unripe value, and thus revest the estate in the hands of the crop is not “movable" or "personal property." original vendor by a legal quirk.' And see Warner | Hardeman v. State, 16 Tex. Ct. App. 1. The court v. Jeffray, 96 N. Y. 248.” See also 14 Abb. N. C, said: “We now recur to the question, is growing 452, note, 25 Alb. Law Jour. 16; 14 Eng. R. 500; cotton movable property, as alleged in the indictSmith v. Boyle, 67 How. Pr. 351; S, C., 18 Week. ment ? Movable' property is such as attends & Dig. 461.

man's person wherever he goes, in contradistinction

to things immovable, 2 Bouv. Law Dict. word COMMON WORDS AND PHRASES. Movables.' Thus money, jewelry, clothing, house

hold furniture, boats and carriages are said to DECR ECREPIT.— In a statute concerning assault and follow the person of the owner wherever he goes;

battery upon “decrepit persons,” those words they need not be enjoyed in any particular place; mean those who are disabled, incapable or incom- and hence they are movable. 1 Schoul, Pers. Prop. petent, from either physical or mental weakness or 25. Certainly a crop of cotton growing upon land defects, whether produced by age or other causes, cannot by any stretch of the rules of construction to such an extent as to render them comparatively be brought within this definition of movable prophelpless in personal conflicts with persons of ordi-erty. It is most clearly a thing immovable. It may nary health and strength. Hall v. State, 16 Tex. however become movable. Says the author last Ct. App. 6. The court said: “What meaning are quoted: ‘Fruits so long as they are hanging on the we to give to the word decrepit ? Words used in trees, the crops until they are gathered, and timber the Penal Code, except where specially defined by trees while they are standing, are things immovable

, law, are to be taken and construed in the sense in or real estate, because they are attached and apwhich they are understood in common language, pendent to the ground. But when the fruits or taking into consideration the context, and subject- crops are gathered, or the trees cut down, as they matter relative to which they are employed. Penal | then cease to be attached to the soil, they become Code, art. 10. Mr. Webster makes the word “de- movables. 1 Schoul. Pers. Prop. 123. We think it crepit' a dependent of old age; that is, according too plain to be controverted, or to require a further to his definition, before a person can be decrepit, investigation of authorities, that a crop of growing old age must have supervened upon such person. cotton is immovable property, and is not within the He defines the word thus: “ Broken down with age; I meaning of ‘movable property' as used in the article wasted or worn by the infirmities of old age; being of the Penal Code under which this conviction was in the last stage of decay; weakened by age.' This obtained.

There may be personal prop



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