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I am not a prophet, nor the son of a prophet, but I Judgment affirmed, with costs—Samuel Tolles, re. think I can foretell the result of a Civil Code. Scores spondent, v. W. Stanard Wood and others, appellants. of years and millions of money will be spent in the -Order affirmed, with costs--People ex rel. Mary N. endeavor to ascertain and fix the rules of law so that Townshend, respondent, v. Artemas S. Cady, appelthey shall be as definite aud certain as they are now. lant; People ex rel. German-American Loan & Trust Then some new codifier, with the same laudable desire

Co., appellants, v. Samuel Richards, respondent; In to hand his name down to posterity which actuales re Petition of John Kenuedy to vacation, etc.- ApMr. Field, will obtain the permission of the Legisla- peal dismissed on the ground that the order is not ture to unsettle the settled law, so that it can be set- final, with costs—In re Sanderson Bros., Steel Com. tled over again. And the judicial construction of pary; J. J. Parkhurst and another, respondents, v. these Codes will be contained in hundreds of volumes Lucius Gleason and others, appellants.- -To file uew of new reports, which you may perhaps edit, and undertaking. Ordered that the appellant within ten which the profession will certainly have to buy. And days file and serve a new undertaking on the appeal in the “ ordinary business man wont understand the

the form and manner reguired by the Code, and that law as well as he does now, and will pay more money in default thereof the appeal be dismissed - James to be told. And this is what you call “making the law

Mahon, Jr., respondent, v. John Noon, appellaut.simple and cheap!”

To advance cause on calendar. Motion to advance de.
Yours sorrowfully,


nied. Motion to intervene granted so as to allow at-
torneys in the second suit to submit points on the ar-

gument of this appeal-John G. Smith, appellant, v. ANSWERS TO "AN INTERESTING INQUIRY." Thomas Boyd and others, respondents.-To recall Editor of the Albany Law Journal :

remittitur for correction; denied, without costs-EdThe correct legal method of computing time for the

ward J. Woolsey, appellant, v. John R. Morris and purpose of calculating interest is prescribed by Rev. another, respondents.—-For reargument. Denied on Stat. Pt. 2, ch. 4, tit. 3, SS 9, 10. See also Pt. 1, ch. 19, the ground that there was evidence to justify a finding tit. 1, S 3, 4.

of the fact that the first board of audit passed upon
the merits. Ten dollars costs in one case-

0—Teunis P.

Osterhoudt, etc., respondent, v. Thomas Hyland and Editor of the Albany Law Journal:

others, appellants; Same v. Cornelius Brackett and Interest is by the year, and the year is legally ascer- others; Same v. Owen Trodden and others; Same v. tained to be 365 days.

Butler and others; Same v. Murphy and another. If “Inquirer’s " language is to be taken strictly, his For reargument. Denied with costs-In re several ac"from" and "to" settle the question, and the com

countings of executors of William Tilden, deceased; putation on the first note is 144 days; but if the dates

Ezra Acer, appellant, v. Levi Hotchkiss, respondent; given are the dates of the notes, and March 19, 1885, their due date (the last day of grace), then the day of the

Thomas F. Baker and another, appellants, v. Lovi date is excluded, and the last day of grace is included

Hotchkiss, respondent.- -To place cause on calendar and the computation for the first note is 145 days. for day certain. Denied on the ground that this is an

The division of time into months affects the question appeal from an order, and can be put on the calendar of what day the note becomes due, but leaves the in

upon any motion day, without costs-In re guardianterest to be computed for the number of days the

ship of L. W. Valentine. money is used. The debtor who undertakes to pay in 80 many months takes notice that some mouths are shorter than others, but he is not obliged to pay interest for thirty days of a month which has only twenty-eight.



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The Legal Intelligencer pronounces "the cross-ex-

amination of Guiteau by John K. Porter, of New Editor of the Albany Law Journal:

York, the finest specimen of the art, in print, with With your consent I will occupy sufficient space to which we are familiar." We concur.

-Mr. Edward ask what is meant by the frequent statements in the J. Phelps, who has been nominated minister to Great newspapers, during the recent difficulty in Central America, that American merchants placed their prop

Britain by the president of the United States, is known erty under the protection of their consul. To the best

to English lawyers as baving been in association with of my knowledge and belief, an American citizen who the late Mr. William A. Beach, counsel against the engages in trade in Guatemala, becomes for all civil

English company in the case of the Emma Mining Co. purposes stamped with the character of a citizen of

v. Parke, tried in New York in 1877. Mr. Beach, who Guatemala, and in case of war between Guatemala and any other State, his property would be liable to

died last June, was eminent for his powerful advocacy beizure. Am I not correct?

in jury cases, while Mr. Phelps' powers lie rather in Yours respectfully,

B. equity cases, and he is distinguished for his knowledge
ROCHESTER, N. Y., Apr. 14, 1885.

of law, his subtlety in argument, and the refinement
of his style of speaking. Mr. Phelps comes of a good
New England family, and has, socially, a reputation

for wit, besides other engaging qualities, so that his COURT OF APPEALS DECISIONS. arrival may be looked upon as another importation of

geniality flavored with sal Transatlanticum which his HE following decisions were handed down Tues- predecessors have made so popular in England.-Lon day, April 21, 1885:

don Law Journal.

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The Albany Law Journal.

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W nieatione in another column on the subject of truth of the emot represent the state when

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the suit is substantially against the State. Mr. Justice Bradley says: “The officers have no power but

what the State gives them. They act for and on ALBANY, MAY 2, 1885.

behalf of the State, and in no other way. To sue them therefore because they will not receive the

coupons in payment, is virtually to sue the State. CURRENT TOPICS.

The sole object is to coerce the State. To say other

wise is to talk only for effect, without regard to the E call especial attention to

truth of things.

It is said that the govimprisonment for debt. Mr. Titus' bill now pend

an unconstitutional act or passes an unconstitutional ing in our State Senate for the abolition of this law. While this may be averred when the governremedy has been passed four times by the Senate in

ment of a State attempts to force the State from its former sessions, and has uniformly failed in the lower

constitutional relations with the United States, and house for want of attention. The bill ought to

to produca a disruption of the fundamental bonds pass. We have more than once urged it, and never

of the national compact, and while in such a case it have heard a voice raised against it. There is no

may be admissible to say that the government of reason in morals or justice or policy why a man the State has exercised a usurped authority, this should be incarcerated because another man has

mode of speech is not admissible in ordinary cases chosen to trust him for a greater amount than he

of legislation and public administration. It also can pay. Especially unjust is the state of the law

tends to sedition by inculcating the doctrine that in which the debtor may be perpetually imprisoned, the government may be treated and resisted as a as is possible in this State, as Mr. Hayes points out.

usurpation whenever the citizen, in the exercise of Penal remedies for civil wrongs are unwise. Frauds

his private judgment, deems its acts to be unconstiand false pretenses may be punished criminally, but

tutional. But then it will be asked, has the citizen criminal remedies should never be used to compel

no redress against the unconstitutional acts or laws the mere collection of debts. This is recognized of a State? Certainly he has. Whenever his life, in respect to extradition. We earnestly hope that

liberty or property is threatened, assailed or invaded our Legislature will purge our statute book of this by unconstitutional acts, or by an attempt to exeabsurdity and injustice at once. We do not hesi

cute unconstitutional laws, he may defend himself in tate to declare our belief that the trusting creditor

every proper way — by habeas corpus, by defense to is generally as much to blame as the trusted debtor. prosecutions, by actions brought on his behalf, by inIf the creditor is unwilling or unable to invoke the junction and by mandamus.

But all these criminal remedy, let him take the consequences of

means of protection and redress against unconstihis own credulity or carelessness.

tutional operation and exaction are a very different

thing from the right to coerce a State into the fulThe United States Supreme Court have pro

fillment of its contracts. The one is an indefeasible nounced a very important decision in the Virginia right, a right which cannot be taken away; the tax-coupon cases. The decision was against the other is never a right, but may or may not be conState, and in favor of the bondholders on all mate- ceded by the State, and if conceded, may be conrial points. The court holds that all the legislation ceded on such terms as the State chooses to impose. of the State which attempts to evade the obligation

This is the first time, we believe, since the under which it rests to receive the coupons of its | Eleventh amendment was adopted, that any State bonds in payment of State taxes is unconstitutional has been coerced by judicial proceedings, at the and void, because it impairs the obligation of a suit of individuals, in the Federal courts. That that the taxpayer, having once made a

this is such a case seems one of the plainest propodue tender of coupons in payment of his taxes, is

sitions that can be uttered.

We have not under no obligation to pay such taxes in money, but thought it necessary or proper to make any remarks may rest securely upon his right to have the cou- on the moral aspects of the case.” We must say pons received when offered, and that a tax collector that it seems to us that the majority stand upon who attempts thereafter to forcibly collect such rather technical reasoning in holding that the suit taxes by levying upon the taxpayer's property is not is not against the State. We are glad as citizens to shielded by the legislation of the State, but makes see a State held to its contracts, but as lawyers we the attempt at his personal peril. The court holds find difficulty in construing this suit to be other furthermore, that a suit brought against a tax col- than one against the State. At all events, this dislector for seizure of a taxpayer's property, after due

sent is a very formidable one – it is an instance tender of coupons, is not a suit against the State,

where the tail seems almost strong enough to wag but is a suit against an individual trespasser acting the dog. without the legal authority of the State. The opinion was delivered by Mr. Justice Matthews. The The late Earl Cairns, who died on the 2d ultimo, chief justice and Justices Bradley, Miller and Gray was twice lord chancellor, a Tory in politics, an dissented -- Justice Bradley delivering the dissent- Irishman by birth, a lawyer of strong and grave taling opinion. The dissent was on the ground that ents, but not of brilliancy. Lord Coleridge said

Vol. 31 - No. 18.


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nature of the case are not aware of the great pub: IN 1886, *19


. 510, it was held that the pro

of him, in the House of Lords: “Lord Cairns had extent and accuracy of his reading, and the correcta mind powerful enough to throw light and order ness of his literary judgment. Lord Cairns, I dare into the most intricate and complicated facts, while say, was a man who did not readily give his heart. he could unweave the subtlest web of argument; He certainly seemed of a somewhat reserved manand yet he never wasted time or words, but grasped ner, but when he gave his heart at all he gave it more firmly than most men the subjects with which thoroughly. Twice it has come under my own obhe had to deal.” His lordship also gave the follow- servation that he had a serious difference with a ing reminiscences, some of which will be peculiarly man inferior to himself in every respect, and on interesting to Americans: “It chanced from cir- both those occasions it was Lord Cairns who first cumstances with which I need not trouble your lord- came forward with a frank admission of mistake, ships, that when I was chief justice of the Common and with an earnest desire to continue the friendPleas Lord Cairns ofteu consulted me as to judicial ship, which was not only touching and honorable, appointments which he had to fill, and which had but which showed that he was as good and as genbeen usually filled by members of the common law erous as he was great and commanding. As long bar, with whom in the nature of things he could as I live I shall be proud to think that I could call not have had much acquaintance. I do not suggest my friend the great man we have lost.” that he always took my advice. Lord Cairns was too great a man, he had too independent a mind, We acknowledge the courtesy of Mr. Albert not to rely in the last resort upon his own judg- Matthews in sending us two pamphlets against codiment. He used the judgment of other men as ma- fication — The Civil Code in California," by John terials to form his own. But this I may say, as Norton Pomeroy, and “The Definitions of Obligathose who knew him best must know, that he was tion, Property and Contract, in the Proposed Civil always guided by the severest integrity, and always Code," by J. Bleecker Miller. No man is more animated by a single-minded desire to do his duty open to conviction on this subject than ourself, but as he understood it. It might be said that by we would “like to see the man " who can convince those on both sides who disposed of judicial ap- us that we are wrong. pointments, politics have for many years been disregarded, but any one acquainted with public affairs must know that it is not an easy thing to re

NOTES OF CASES. sist the importunities of men who perhaps from the

N v. Wren, , , lic mischief that is done by incompetent persons acting in a judicial position. I may venture to say ceedings of a legislative committee, empowered to that Lord Cairns paid marked disregard to the im- collect and perpetuate evidence of a criminative portunity of such men, and would not appoint any character, which are merely preliminary, and conone wliom he did not believe to be fully compe- ducted ex parte and in secret, are not privileged. tent. In one case I suggested to him to fill a judi- The court said: “The public are not regarded as cial position one whose competence no one who having such an interest in proceedings embodying knew him would venture to deny, and he declined defamatory matter as will outweigh the necessity to appoint him. I may speak of the case now with for protecting the character of individuals, unless out risk of doing any harm. I suggested that the they are proceedings of a legislative or judicial late Mr. Benjamin should be appointed to the bench character. Cooley Const. Lim, 558; Townshend

a man whom I was anxious to have seen among Sland. and Libel, 411; Sanford v. Bennett, 24 N. Y. the judges of England, and who to my knowledge 20. This rule includes within itself proceedings of would have felt himself honored by being placed a quasi judicial character, i. e., before a body haramong them. But Lord Cairns refused to consider ing the power to hear and determine matters subhis claims, and he refused on grounds which I can-mitted to its jurisdiction by the voluntary consent not help admitting were at the time urgent and of its members. Cooley Const. Lim. 448, and note. forcible, and would by most men be held to be con- It is only on account of this judicial character that clusive. I am sure that in not appointing that emi- its proceedings are protected, and to give it such a nent person Lord Cairns acted against his own character it must have authority not only to hear, wishes, and on the purest and most patriotic mo- but to decide the matters coming before it, or to tives. There is one other matter to which I will redress grievances of which it takes cognizance. allude. I have seen it stated where in other re- Barrows v. Bell, 7 Gray, 301. But to be privileged spects ample justice was done him — that Lord the proceeding must have been not only judicial Cairns was cold and ungenial in manner, and that or legislative, but it must not have been prelimihe had very little or no sense of humor.

nary, ex parte, and secretly conducted. Flood not my experience. I do not pretend to the honor Libel, 244; Townshend Sland, and Libel, $ 231; of his intimacy, but I can say from what I knew of McCabe v. Cauldwell, 18 Abb. Pr. 377; McBee v. him, that I always found him most cheerful and Fulton, 47 Md. 403; 8. C., 28 Am. Rep. 465. amusing, and there were few men who had a keener There may be cases where a preliminary or ex parte sense of humor. His literary and classical acquire proceeding would be privileged, but as to this we ments I often had occasion to admire, as also the do not decide; but when to these two conditions i:

That was

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added the fact that the proceeding is conducted in well have been discharged and exercised by persons
secret, we know of no privilege in the law of libel not connected in any manner with the Legislature.
that will protect the publication. Ex parte pro- | The result of its labors was never one necessarily
ceedings have been held privileged where there to come to the knowledge of that body, nor to
was a right in the accused to appear and defend form part of its records in any manner whatever."
himself, If privileged, where this was not the case,
it was on the ground that they were open and
might be attended by the public, and that their In Osten v. Morris, Pennsylvania Common Pleas,
publication was therefore only an enlargement of April 17, 1885, 42 Leg. Int. 171, it was held that
the area to which a knowledge of the proceedings the maker and seller of a machine, chargeable with
would otherwise extend. But if merely prelimi- negligence in its construction, is not liable to a
nary, and at the same time ex parte and secret, no third person for an injury sustained in consequence
policy of the law can be subserved by their publi- thereof while it is being operated by the pur-
cation, which is not overborne by the damage chaser. The court said: “Where there is negli-
which may result to the reputation of individuals. gence in a maker of a machine, he not able to a
The accused may escape by reason of having pub- third person for an injury received whilst the ma-
licity given to the preliminary proceedings upon chine is being operated by a purchaser. The causal
which his prosecution is to be based. A person connection is broken. Whart. Neg., $ 438. Upon
may have his case prejudged, and himself so far the argument a number of cases were cited in sup-
found guilty in public opinion as to deprive him of port of this principle. We will refer to three of
a future, fair and impartial trial, without any op- them. Collis v. Selden, L. R., 3 C. P. 495, was
portunity of defending himself in the preliminary where a man who negligently hung a chandelier in
proceedings; or he may have his character traduced à public house was held not to be liable to a
without the slightest intimation that it will be the stranger upon whom it fell.

Justice Byles says: subject investigation or scus: It is true "This declaration charges negligence, carelessness that the same thing may happen in a public trial, and improper conduct. Negligence alone will not but what occurs there is open to the world, and do, unless some breach of duty is shown.' In Losee what the public are entitled to witness may in v. Clute, 51 N. Y. 494; S. C., 10 Am. Rep. 638, many instances be disclosed to it through other the defendant sold to a corporation a steam boiler channels. Even this however is not a universal rule, negligently made; it exploded and injured the propas there are cases where the defamatory matter may | erty of the plaintiff, for which he brought suit. It be spoken in privileged places when its publication was held that there was no right of action, on the at other places would constitute libel. Cooley ground that 'they owed him (plaintiff) no duty Const. Lim. 457 et seq; Townshend Sland. and whatever at the time of the explosion, either growLibel, $ 219, and notes. This is always the case ing out of the contract or imposed by law.' Spenwhere the proceeding in which it is uttered is of a cer v. Campbell, 9 W. & S. 34, was an action secret character. Flood Libel, 193, 194. We think against the owner and operator of a steam boiler to that the privilege of publishing defamatory matter recover for injuries caused by its explosion. The is confined strictly to proceedings of a judicial or plaintiff offered in evidence the deposition of its quasi judicial or legislative nature, and if prelimi- | maker, which was objected to by the defendant on nary and ex parte, they must at least be openly con- the ground that the contract for the boiler was ducted, and subject to the inspection of the public. made with him, and it was furnished by him, and This is as far as it is necessary for us to go in this that he, the maker, would therefore be liable to an case now in consideration. The joint committee action by the plaintiff Campbell. The evidence appointed by the Legislature of Texas, before whom was admitted under exception. Judge Gibson thus the defamatory words published by the appellant disposes of this exception: 'It is just as clear that were spoken, was not a body possessing judicial or the plaintiff in this suit could not maintain an ac quasi judicial powers. It determined nothing; ex- tion against either Boyle, the deponent, or Meixercised its judgment upon no question requiring sell, his quondam partner, with neither of whom judicial action; did not even procure evidence did he stand on any relation of privity. Boyle which could be recognized in a court of justice for therefore was disinterested.' In opposition to this any purpose whatever. It simply obtained the state principle there have been cited the cases of Godley ments of witnesses under oath, to be used not in a v. Hagerty, 8 Harris, 387; Godley v. Carson, 2 Casey, court of justice, but as a guide to attorneys repre- | 111; Elkins v. McKean, 29 P. F. Smith, 493; and senting the State in bringing offenders against her Deitel v. Hartford Boiler Ins. Co., C. P. No. 3, not criminal laws to justiee. Nor can its proceedings, reported. The first two cascs arose upon the same in strictness, be termed legislative. The commit- state of facts. The fall of a warehouse in the octee was appointed by the Legislature, and was com- cupation of a tenant, and in Hagerty's case an inposed of members of that body, but it was to do jury to the person, and in Carson's an injury to nothing in aid of legislation – it was not even to property. The law of these cases was severely report any thing for legislative action. The duties criticised by Judge Black in a dissenting opinion required of it, and the powers granted it, could as in Godley v. Carson, 2 Phil. 138. The court in the

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first case, and a majority in the second, held the 3. W. being on trial for a crime, A. is called as a landlord liable for injuries occasioned by its fall witness. A question is put to A., to which W. obwhilst in the possession of a tenant, and heavily jects to A.'s answering, on the ground that it may overloaded whilst out of his control. In Carson v. criminate A. The objection of W. is not releGodley, 2 Casey, 121, Judge Woodward says: 'We vant (5). go not one inch beyond the case before us. We In case 2 (6) it was said: “The only question say not that he would be liable if he had sold the raised upon this bill of exceptions is whether the building and parted with all control of it.' With defendant had a right to interpose the objection, such a disclaimer the case is not of much value to and require the judge to state the rule of law on this plaintiff. Elkins v. McKean was reversed upon the subject, independent of any objection taken by the ground, inter alia, that there was not sufficient the witness himself. Upon this point the law is evidence to justify'tbe submission of the fact of a very well settled that the privilege of declining to willful sale by the defendants of such an explosive answer questions propounded to a witness, on the and unfit oil for burning purposes, with such a will- ground that the answer will have a tendency to exful and malicious knowledge.' The defendants pose him to personal liability or to punishment on marked their oil as able to stand a fire test of 110 any criminal charge, is the privilege of the witness, degrees. Does this not authorize a sub-vendor to and not of the party against whom he is called to so warrant it on behalf of the maker, and if so, is testify." there not a contractual relation between the maker In case 3 it was said: “The witness could not be and the last vendee? From the following quota- required to deliver inculpatory evidence, and it tion it seems that Chief Justice Agnew had this in would present a very different question from that his mind: “The maxim, qui facit per alium, facit before us if her admissions made under these cirper se, applies when the article is thrown into the cumstances were resisted in a trial against herself. current of trade on the faith of the affirmation of But if she chose to testify against the defendant its manufucturer that it is a fit oil

and he cannot object, because the evidence criminates can be safely used,

they cannot *

herself. It was

& privilege personal to herself determine how much of the responsibility is due to to testify or not. If she waived it, the prisoner others. But be this as it may, willfulness and mal-connot interpose it to shield himself from the damice were the grounds upon which the Supreme aging effect of her testimony." Court said the action might be sustained, notwith- A counsel has no right to argue the witness' objecstanding the several hands through which the oil | tion. In King v. Adly (7), a witness for the prosehad passed.” See Loop v. Litchfield, 42 N. Y. 351; cution, having objected to answering a question, S. C., 1 Am. Rep. 543.

because it might subject him to a prosecution, the attorney-general, who appeared for the defendant,

rose to support the objection. Lord Tenterden, RULES AS TO THE PRIVILEGES OF WIT-C. J., who presided, refused to allow this, but the NESSES.

counsel for the prosecution having argued that the VI.

witness was compellable to answer, he allows the

attorney-general to reply. But further on in the RULE. The objection, within the foregoing rules, is trial the chief justice said: “I think I am wrong personal to the witness, and cannot be availed of by an- in having allowed the attorney-general to argue the other (1) (a), nor can another than the witness complain point at all. It struck me at the time that having that his privilege has been improperly denied (2) (b). heard argument on one side I ought to hear it on But otherwise where it has been improperly allowed (C). the other also. But the privilege is that of the ILLUSTRATIONS.

counsel, not of the party, and I think therefore

that counsel have no right to interfere for the pur(A)

pose of excluding an examination, to which, as 1. An application is made that A. shall answer against their client, there is no objection.” certain interrogatories. B., as attorney for A., re

(B.) plies that he believes the questions will criminate A. This is no answer to the application (3).

1. In an action by A. against B., a witness called 2. A. is indicted for stealing. W., a witness

, is by A. is compelled (improperly) by the court to anasked by A. if he was not the thief. The pub- self of this as a ground of error in the admission

swer a criminating question. A. cannot avail himlic prosecutor objects that the answer may crimi

of evidence (8). nate W. The objection of the public prosecutor is not relevant (4).

In case 1 it was said: “The privilege belongs

exclusively to the witness, who may take advant(1) State v. Wentworth, 65 Me. 234 (1875); State v. Foster, 23 age of it or not, at his pleasure. The party to the N. H. 354 (1851); Janvren v. Scammon, 29 id. 290 (1854); Southard v. Rexford, 6 Cow. 258 (1826); Newcomb v State, 37 Miss. suit cannot object. He has no right to insist upon 383 (1859): East v. Chapman, i Mood. & Malk. 47 (1827); Thomas v. Newton, id. 48, note (1827).

(5) White v. State, 52 Miss. 225 (1876). (9) Stata v. Foster, 23 N. H. 354 (1851); Macarthy v. Bond, 9 (6) Com. v. Shaw, ante.

(7) 1 M. & Rob. 94 (1831). (3) Osborn v. London Dock Co., I0 Ex. 698 (1855).

(8) Cloyes v. Thayer, 3 Hill, 564 (1842); Clark v. Reese. 35 (4) Ward v. People, 6 Hill, 144 (1843); Com, v. Shaw, 4 Cush. Cal. 89 (1868); see Com. v. Kimball, 24 Pick. 366 (1837); criti594 (1849).

cized in Com. v. Shaw, 4 Cush. 594 (1849).

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La, 351 (1836).

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