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emption from taxation is a personal privilege of the very corporation specifically referred to, and ceases with it, unless the express and clear intention of the law requires the exemption to pass as a continuing franchise to a successor. Oliver v. Memphis, etc., 30 Ark. 128. The franchise of becoming and being a corporation, in its nature, is incommunicable by the act of the parties, and incapable of passing by assignment. "The franchise to be a corporation," said Hoar, J., in Com. v. Smith, 10 Allen, 448-455, “clearly cannot be transferred by any corporate body of its own will. Such a franchise is not, in its own nature, transmissible." In Hall v. Sullivan R. Co., 21 L. R. 138; 2 Red. Am. R. Cas. 621, 1 Brunner Col. Cas. 613, Mr. Justice Curtis said: "The franchise to be a corporation is therefore not a subject of sale and transfer, unless the law, by some positive provision, has made it so, and pointed out the modes in which such sale and transfer may be effected." See also State v. Sherman, 22 Ohio St. 411-428. Railroad Co. v. Georgia, 98 U. S. 359. Memphis, etc., v. Berry. Opinion by Matthews, J. [Decided Dec. 22, 1884.]

FRAUD-PARTY GUILTY OF, NOT ENTITLED TO RELIEF.-The keeping of his mother's railroad bonds by a son under suspicious circumstances, which warrant the inference of fraudulent intent on the part of both and the father, will defeat the efforts of the wife to regain by action such bonds from a third party with whom they have been hypothecated by a brother of the husband who occupies an office with him and the son. Matthews v. Warner. Opinion by Miller, J. [Decided Dec. 22, 1884.]



(1) Where property to which the United States asserts no title is taken by their officers or agents, pursuant to au act of Congress, as private property, for the public use, the government is under au implied obligation to make just compensation to the owner. (2) Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the owner's claim for compensation is one arising out of implied contract, within the meaning of the statute defining the jurisdiction of the Court of Claims, although there have been no formal proceedings for the condemnation of the property to public use. (3) The owner may waive any objection he might be entitled to make, based upon the want of such formal proceedings, and electing to regard the action of the governmeut as a taking under its sovereign right of eminent domain, may demand just compensation for the property. Kohl v. United States, 91 U. S. 374; Langford v. U. S., 101 id. 341, distinguished. United States v. Great Falls Manufacturing Company. Opinion by Harlan, J.

[Decided Dec. 22, 1884.]


! EVIDENCE-LETTERS-EPILEPTIC FITS ACCOUNTING FOR CONTRADICTORY STATEMENTS.-(1) On the trial of J. G. on a charge of larceny, the State offered in evidence a letter purporting to have been written by the accused. As a foundation for its introduction, the State proved that it had been received by the person to whom it was addressed, from M. K., who was proven to be engaged to the accused; and then called M. K. as a witness, and asked her the question, "who wrote that letter?" to which she replied, “J. G., I told you that before." The witness being then asked ou cross-examination whether she knew the letter was

in G.'s hand-writing, replied, "It looks like G.'s hand

writing, but I would not swear to his hand-writing unless I saw him write." The cross-examination was not pressed further, but upon the said answer of the witness the prisoner objected to the admissibility of the letter. Held, that the letter was admissible in evidence. (2) The prisoner offered to prove by his mother, and other witnesses, that for about three years prior to the alleged offense, and since he had been in jail, he had been subject to fits, which he proffered to show were epileptic, and that they had weakened his mind, and which would tend to account for contradictory statements made by him about the possession of the money when he was arrested; but upon objection the court below rejected the evidence, unless the prisoner would assure the court that he would follow it up by proof to show that such fits rendered him irresponsible for his acts. This assurance the prisoner declined to give, and the proffered evidence was consequently rejected. On appeal it was held that the evidence was properly rejected, being well caloulated to mislead the jury. Maryland Ct. of Appeals, Apr., 1884. Gross v. State. Opinion by Alvey, C. J. (62 Md.) [(1) See 28 Eng. Rep. 633.]

EVIDENCE-DYING DECLARATIONS.—(1) To be admissible in evidence, dying declarations must relate to the identification of the prisoner or the deceased, or to the act of killing or to the circumstances attending the act and forming part of the res gestæ. Hence where the declaration was: "I believed he (defendant) was going after his pistol when he went into the house*** I had seen him at the house with a pistol before," held, that this ought to have been excluded. State v. Draper, 65 Mo. 335; Collins v. Com., 12 Bush, 271; State v. Wood, 53 Vt. 560; Whart. Crim. Ev., § 278; 1 Greenl. Ev. (14th ed.) 210, note; id., § 159. (2) Dying declarations are in the nature secondary evidence, and are so regarded in the law. It is therefore error to instruct a jury to give them the same weight they would if the declarant had testified before them. State v. McCanon, 51 Mo. 160; Walker v. State, 37 Tex. 365; Lambeth v. State, 23 Miss. 358; Whart. Crim. Ev., § 276; Roscoe Crim. Ev. 36; 1 Greenl. Ev., § 162; disapproving; id. 157; and State v. Green, 13 Mo. 382. State v. Vansant. Opinion by Hough, C. J. (80 Mo.)


MURDER EVIDENCE PREVIOUS ASSAULTS.the trial of a husband for the murder of his wife by acts of personal violence, evidence of previous ill treatment of or assaults upon his wife by the accused, is admissible to show the state of feeling between them. In State v. Watkins, 9 Coun. 47, the public prosecutor,on the trial of an indictment for the murder of defendant's wife, in the absence of direct evidence of the alleged murder, offered, with other presumptive evidence, testimony to prove that for some months before and down to the time of the alleged murder an adulterous intercourse subsisted between the defendant and Mrs. B. It was held that such testimony was admissible. Chief Justice Hosmer, in the opinion, says: "It is a prominent fact in the case that the deceased was the wife of the prisoner. The presumption thence arising, that she was not killed by her husband, or that it was not of malice aforethought, was powerful. The relation of husband and wife clearly implies a strong partiality on the part of the husband toward his wife, and the most ardent desire to protect her and to render her happy. As a man will consult his own preservation and pursue his own interest, so as a general truth, he will equally regard the protection and interest of his wife." Page 52. There are other authorities which sustain the admission of such testimony for the purpose of showing the state of feeling on the part of the defendant toward the deceased. People v. Bemis, 16

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N. W. Rep. 794; State v. Moelchen, 53 Iowa, 310; S. C., 5 N. W. Rep. 186; People v. Williams, 3 Park. Crim. R. 84; McCann v. People, id. 272; State v. Green, 35 Conn. 203; Sayres v. Com. 88 Penn. St. 291. It is true in these cases the question of motive or intent was material, and so it is here, for under the information the defendant might have been convicted of murder in the second degree if the proof had warranted it. "Considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind would a motive be trifling and insignificant which might prompt to the commission of a great crime." People v. Hendrickson, 9 How. Pr. 165; Benedict v. State, 14 Wis. 424. The case of Albricht v. State, 6 id. 74, is referred to on this point by defeudant's counsel, and requires a word of comment. That was an indictment for manslaughter in the third degree, it being alleged that the killing was in the heat of passion, without a design to effect death. It was held in that case to be error to admit evidence of facts tending to prove other assaults upon the deceased for the purpose of raising the inference that the defendant was guilty of the offense charged. But had the indictment been for murder in the second degree, as in the present case, then it is intimated in the opinion that evidence of bad treatment of the boy by the defendant would have been proper as bearing upon the question of malice or intent. Sup. Ct. Wis., Nov. 6, 1884. Boyle v. State. Opinion by Cole, C. J. (21 N. W. Rep. 289.) [See 64 Ind. 473.]



Editor of the Albany Law Journal:

In Camp v. Buxton, N. Y. Sup. Ct., Gen. Term, First Dept., decided Jan. 9, 1885, reported in vol. 20, p. 479, N. Y. Week. Dig., March 20, 1885, an assignee named in a general assignment for the benefit of creditors took possession of the assigned property, notwithstanding certain defects in the notarial certificates of acknowledgment. Subsequently, and after the death of the assignor, certificates in due form were made and signed by the notary, and the assignment was again recorded.

It was claimed in behalf of respondent, that "the defects in the certificates of acknowledgment could not be cured after the death of the assignor, and that the assignment could not be recorded, and being neither acknowledged nor recorded, it was absolutely void."

The court is reported as having held "that after the form of the acknowledgment was made to correspond with the fact and conform to the statute, the assignment became valid, and from the time of its record conferred upon the assiguee all power which such an instrument grants."

The language italicised is likely to mislead. In Juue Term, 1884, the Court of Appeals held that an assignment takes effect from the time of its delivery, and that all else required may be done afterward, and if any of the other requirements are omitted the assigument is not thereby rendered void. Warner v. Jaffray, 96 N. Y. 248, 252, 253.


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Cicero, in the De Senectute says, C. xi, * * * se nemini emancipata est, * meaning if it has been enslaved to nobody, but in Gaius, L. 1, f. 132, the opposite use is frequent," mancipat pater filium aliciis." On the third sale the son was emancipatus, or free from the patria potestas.


In your discussion regarding our English word enjoin" I do not notice that you sufficiently observe that the preposition which invariably follows this word is in reality an inflectional preposition; thus " enjoin to" is affirmative, but "enjoin from" is negative. This is common usage in all languages which are inflected by separate words instead of by terminations or by prefixes. I am not aware that this distinction suggested will meet the approval of the philologers who may say that in the affirmative phrase "enjoin to go," or to do," to is the mere infinitive sign, and not the preposition. But this is open to argument, and I insist upon the accuracy of my distinction.



NEW YORK, March 23, 1885.

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Studies in Civil Service of Appointment and Removal. By John W. Hoyt, LL. D., ex-governor of Wyoming. John W. Lovell & Co., New York. 1885.

This cheap edition is evidently intended for general circulation. There is no such bad feature of our political strife as the succession to public office whenever the dethronement of a great party takes place, and any discussion which illustrates this fact has a tendency to good. Civil service, indeed, may be well applied to our courts of judicature and to the executive of courts, the sheriff's bureau, and we have no doubt some day that it will be so applied. At present, the sheriff's office, especially in the city of New York, is as bad as bad can be. Bailiffs never have been a very high order of society, but there is no reason why the basement of the court-house should be such an Augean stable as it now is. A little civil service in our legal administration would be desirable, and we welcome any discussion upon the subject.


"Man's Birthright," or the Higher Law of Property. By Edward H. G. Clark. G. P. Putnam's Sons, New York and London. 1885.

This little volume, issued with a timid note prefaced by the publishers, to the effect that it may suggest a remedy to the frightful theories of Henry George, deserves more than a passing notice. But why the publishers think the volume remedial, when it is simply Henry George pushed to the furthest extreme of endurance, we cannot see. The author agrees with George that private property in land is false economy, but he goes further and thinks that all property should be so taxed that every fifty years it will come back to the people, its true owners. The key of the book is, that the taxing power-that worst function of government-should be made the medium of a lawful redistribution of property.

The style of the author in stating his theories is more forcible than elegant, although it is the literary style of a cultivated mind. We should not notice this

book did it not touch the great objective aim of all laws, private right, and by private right we mean property, a "burning question."

The theories in "Man's Birthright" are not new, nay, they are better treated by men like the Belgian economist Lavele whose thoughtful utterances derive slender support from these ultra-rhapsodies of their Americau allies. No doubt there is a growing feeling that the world has not solved all the laws of property, and that in some respect the Roman institution of Quiritarian, or as Laveleye calls it, private property has been pushed too far by the civilizations which have arisen on the ruins of the Latin Ceasars. What thinking man can deny that in those countries where no small land-holdings are possible, there is a crying evil to be speedily redressed? We agree that the Swiss Allmend, as Laveleye paints it, where there is an annual redistribution of agricultural land, is a picture of contentment hard to equal, and long before this book under review was written, its effect on the future of agricultural tenures was foreseen by more temperate men than the writer of "Man's Birthright." We confess that we should like to see larger holdings of common lands in this country, and a better preservation of the public domain in the far West., for these are important checks on the proletariat of a populous nation.

It is a great mistake to take the investigations of Sir H. Maine and Laveleye as final. They are at best in the experimental stage of a new science, the science of comparative jurisprudence. Many of their theories must be ultimately modified by further research. Writers such as George and Clark welcome only that in the comparative jurists, which coincides with their conceptions of a state of nature, and they run riot in the deductive process. Will Mr. Clark show us any fact in the history of a civilized nation that points to the superiority of owning urban property in common? From the earliest times and even in primitive societies the facts point to the absolute ownership of the home and home lot in the burg or vil or town. With regard to the agricultural lands of any State we confess to some doubt as to whether certain parts of these lands should not be kept public and annually redistributed, as in the Swiss Allmend at the present day, and in this doubt we are in the company of the most illustrious thinkers of modern Europe. But to go farther than this and to concede that that which chiefly distinguishes modern civilization from barbarism, is a fundamental political error, seems to us as absurd as pronouncing the attraction of gravitation an


That our political society is vulgar and plutocratic we concede; that corporate and political jobbery are rampant, we know, but that the political millennium is to come with any such vagaries as those suggested' in melo-dramatic fashion by Mr. Clark we deny.

Better government, better political theories, better laws, less favoritism to the rich corporation are in store for this America of our's, but they will not come by revolution, nor by the subversion of propertyprivate property that which makes every one, the poorest as well the richest, monarch of his own.

We have long advocated reform, reforms in law, restrictions of the corporation nuisance, advancement in legal studies from the technical to the philosophical standard. We are in favor of our lawyers entering upon a new era and deplore as much as any one the narrow, superstitious view of property entertained by most leading men of our profession, but we still think that Mr. Clark goes too far in his notions, aud we propose to pin our faith to the more conservative views of such economists as Mill and de Laveleye, and not run riot with theories which contravene the ex

perience of over two thousand years of authentic history. Mr. Clark's book is not a strong book, though it is strongly written and shows adequately in small compass the theories of George and others of that ilk. It is very portentous, but at the end it cautions persons who think as the writer does from using explosives to enforce their theories, as if frightened at the awful possibilities of the power of the author's argument.

We should not be surprised if this book were widely read (because it contains elements of truth but of truth not stated with that dignity and philosophy of demeanor which is necessary to make a book a power for good, or a power for evil oftentimes.


The History of the Present Tariff from 1860 to 1883. By F. W. Taussig, Ph. D., instructor in Political Economy in Harvard University, etc. G. P. Putnam's Sons, New York and London. 1885.

Very different from 'Man's Birthright' is this little monograph, from the same publishers. It is a clear succinct history of the tariff of the United States, and as it arrays the facts which speak for themselves, the author has not seen fit to resort to needless argument.

Professor Lieber first made the meaning of "institutions" clear to the American reader. In his sense of the term, the tariff would be an organic institution, and of course susceptible of separate literary treatment. Dr. Taussig's history is an application of this view to a given case. It is a history of the tariff insti tution of this country. We have no hesitation in pronouncing it a valuable history, and one which every legislator and politician should know before he commits himself to a position from which there may be no consistent retreat. It is astounding that the ignorance of the science of government should be so wide-spread. The amount of accurate, adequate knowledge on any subject,relative to law or legislation is not large, and that which there is, can be widely diffused only by an array of facts and not by dogmatiz ing. For this reason Dr. Taussig's history is a valuable addition to our stock of economic knowledge.


Mr. Austin Abbott's Annual Digest of the reports and statutes of this State has become an indispensable aid to every lawyer. We can say of this, as we said of the last preceding annual, that it is as good as possible. It embraces 96th New York, and it digests nineteen volumes of reports. Published by George S. Diossy, New York.



HE following decisions were handed down Friday, March 27, 1885:

Judgment affirmed-People, respondents, v. Charles H. Rugg, appellant.-Judgment affirmed with costs -In re Accounting of Francis A. Mason and others; Lydia Miller, appellant, v. Thomas MoBlain, executor, etc., respondent; Catherine Lockwood, administratrix, respondent, v. N. Y., L. E. & W. R. R.—Appeal dismissed- Town of Cherry Creek v. Phillip Becker, impleaded.- -Order affirmed with costs-In re Accounting of C. A. Waldron, assignee, etc. The court adjourned to April 13th.

The Albany Law Journal.

ALBANY, APRIL 11, 1885.





LAWYER as President may be depended upon to select a cabinet of lawyers. President Cleveland has disappointed no one in this respect, unless it may be the lawyers who expected to be called on as his advisers, and were not. All his cabinet but one, we believe, are lawyers. Mr. Bayard was once district attorney for Delaware. Mr. Endicott was for nine years a judge of the Supreme Judicial Court of Massachusetts. Mr. Whitney was a very active lawyer, and has been corporation counsel for the city of New York. Mr. Vilas was one of the most eminent lawyers of Wisconsin graduate of our Albany Law School, by the way. Mr. Lamar was once professor of law in the University of Mississippi. Mr. Garland has long been recognized as one of the ablest lawyers in the nation. But when it comes to the question of making money, or taking care of money, the president very wisely concedes that lawyers are not the best counsellors, and so he puts the treasury into the hands of a layman — an Albanian, by the way, of which we are duly proud. It must be admitted that the president has put plenty of brains into his cabinet, and the lawyers need not yet despair of their influence in national affairs.

There is an "irrepressible conflict" between the pretense of " "stare decisis" and the actuality of judicial legislation. The opponents of codification in one breath tell us that our law is all settled by judicial decisions, and in the next that the greatest merit of the common law is that it may so easily be made to suit circumstances stretched or contracted, narrowed or widened - elephant-trunk fashion, made to launch a ship or pick up a pin. On this matter we call attention to the following from the London Law Times: "The following dictum of Mr. Justice Kay is deserving of more notice than it has so far received. In Re Chapple; Newton v. Chapman, 51 L. T. Rep. (N. S.) 748, his lordship is reported to have said: 'I always struggle against being bound by authority, unless the principle upon which the authority proceeds commends itself to my judgment.' If this simple plan of treating previous decisions is followed by other judges, the 'glorious uncertainty' of the law will rapidly become such that law in its modern sense will tend to disappear, and a system of what may be called decision in accordance with the judge's subjective view of natural equity will replace it. With all deference to the learned judge, we must protest against this theory that the authority of a decision depends on whether or no its principle approves itself to any particular judge who has to administer the law subsequently. If any unpaid VOL. 31- No. 15.

magistrate or county court judge had used similar phraseology, and the case with respect to which the remark had been made had come before the High Court, there would probably have been some expressions of disapproval from the court. Much of the law of England depends on cases, the principles of which could not possibly find approval at the present day. Still more is founded on facts of medieval life, and factors in medieval thought that have long ago disappeared. Is some bold follower of a new school of case-rejecting judges to alter the law of primogeniture, because the feudal system has now disappeared? Or are we to have the doctrines or 'a double possibility,' and the impossibility of the existence of 'a use upon a use' again doubted? Again we must say, as we have done before in commenting on a recent decision of Mr. Justice Kay's, we are not now quarrelling with his decision, which was on the construction of a will. You cannot always test a testator's expressed intention by considering how far his phraseology agrees with or differs from previous testators — 'you cannot construe one man's nonsense by another man's nonsense.' But these terribly unguarded dicta really require some observation."


A correspondent sends us the following scheme for the relief of our Court of Appeals: shall be a Court of Appeals composed of a chief judge and nine associates, who shall be chosen by the electors of the State, and shall hold their offices for the term of fourteen years from and including the 1st day of January next after their election. The judges being in office at the time of the adoption of this amendment shall continue until the expiration of their respective terms, death, removal or disqualification. Upon the adoption of this amendment the Court of Appeals shall be divided into two parts; the chief judge and four associate judges constituting part I, Part II being composed of five associate judges designated by the chief judge. The presiding judge of part II shall be the senior judge in respect of time of service among the associate judges. No less than four judges shall constitute a quorum in either part of the court, and a concurrence of three shall be nec

essary to a decision. The chief judge may order argument of any case to be heard and decided by all the judges of the court, in which case a concurrence of seven shall be necessary to a decision. The additional judges provided for by this amendment shall be chosen as at present provided." It seems to us that it would be much better to have more judges in each part—at less six or seven. The above might barely answer at present, but in a very few years it would prove inadequate, and it is best to provide ample means now for at least a generation.

Mr. Thomas has introduced a bill in our Senate for the republication of the Session Laws from 1777 to 1801 inclusive. We hope this will prevail. These laws have become exceedingly scarce. Mr. Moak,

who is the best possible authority, says there are not five complete sets in existence, and that he has vainly tried for twenty years to complete his own set. A few fires might destroy all there are. The design of the bill is to supply sets to all the legislative and judicial libraries of the State, and to furnish copies to any who may wish to purchase. Doubtless the sales would go far toward paying the expense. At all events the State ought to take immediate measures to perpetuate the records of its early laws.

The Association of the Bar of the City of New York have reported a "Plan for improving the Methods of Legislation of this State," by a committee consisting of Messsrs. Simon Sterne, James M. Varnum, Theron G. Strong and George H. Yeaman. We infer that the germs of this plan may be found in Mr. Sterne's excellent essay read before the American Bar Association last summer, and published in this journal. The committee say: "Your committee respectfully recommend a constitutional amendment creating a Commission of Revision to be appointed by the Governor for the period of his own term of office, which shall consider all public legislation except supply bills. This consideration shall relate to the constitutionality of a bill, its effect upon existing statutes, its relation to and its effect upon the common law, whether the object of the bill can be secured under existing statutes, whether the language of the bill is apt for the purpose intended, whether its provisions are consistent with each other and with existing law, and to point out whatever incongruities there may be either in language or in the provisions themselves. The useful operation of the scheme here suggested as to public legislation would involve a material modification of the present system of standing legislative committees, a system rendering the annual contest for the speakership both arduous and demoralizing. Bills be submitted to

after being scrutinized by the Commission of Revision, but it would not be a committee selected in advance by the friends or opponents of the measure, nor its composition known in advance. * * * For all special and local laws your committee respectfully recommend a constitutional amendment, which shall provide that no local or special bill which involves the exercise of the right of eminent domain or the power of taxation shall be passed by the Legislature unless such bill, and a petition setting forth the necessity therefor, shall have been filed in the office of the secretary of State at some fixed period in advance of the legislative | session, and its general purpose and effect advertised in such manner and for such time as the Legislature shall by a general law to govern its legislative procedure direct; and that the Legislature shall not consider a special or local bill not of this character unless the same shall have been filed in the office of the secretary of State and notice of such filing given as shall be directed by the Legis

lature by a general law governing its procedure, so as to afford an opportunity for scrutiny and examination before the bill comes before the Legislature, and to present objections thereto. The Legislature should by such a general law governing its procedure provide a mode of hearing of all private and local bills by special committees; and all local and special bills affecting city, town, township or county interests, and all bills creating corporations or amending corporate powers, or involving the exercise of the power of taxation, or of eminent domain, should be treated as bills requiring formal investigation. It is a well known fact that all the expenses of the legislative sessions of parliament are defrayed by the payment of the fees which promoters of private bills are required to pay into chancery upon filing and hearing of their measures. It might be well for the Legislature in a general law to make provision that the promoters of private and local bills should pay a specific sum of money to the comptroller of the State of New York, for the necessary expenses incident to the examination and hearing of such bills." We believe that something of this sort must be done. In connection with this we call attention to Mr. Hopkins' communica

tion in another column.

As a letter in our issue of April 4th last, signed "Relwof,” treats of a question now in actual litigation in which Mr. Robert L. Fowler appears, it may be possibly attributed to his interest in the question, which would be unjust to Mr. Fowler, who is not afraid to say what he has to say openly, and in his own fashion. Hereafter we must request our correspondents to use somewhat less misleading noms de plume than family names spelled backward.


N N Union National Bank v. Dersham, Pennsylvania Supreme Court, October, 1884, 15 Week. N. Cas. 540, A., a man of ordinary firmness, made a deposit in a bank, for which the cashier gave him a certificate of deposit, but neglected to append thereto the word "cashier" after his name. Subsequently, after the cashier had resigned his position in the bank, he added the word "cashier" to correct his former error. The certificate of deposit was then cashed by the bank. Afterward the bank called A.'s attention to the fact that the word "cashier" had been added to the certificate at a different time, and with different ink, accused him of making the alteration, said they would go to law and recover the amount paid him, and that they could prosecute him for forgery. A., then, to avoid litigation and to settle the dispute, gave the bank a note for seventy-five dollars, and paid it. Held, that he could not recover it. The court said: There is no evidence that the plaintiff is timid or feeble, or not possessed of ordinary firmness by reason of age or other cause. He did not believe they

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