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adultery, and the glaring and abominable crime of possible, with all their ability, that they should not, polygamy, we should have more sympathy with to some extent, lose touch of the people, and get them. But there has always been a class of the out of harmony with the times. But let this be alclergy who act upon the principle of the policeman | tered. Let men sit in the House of Lords because who thwacks the unoffending small boy for the dis- some one thinks them fit to sit there; let them be order of the adult whom he overlooks. Copies of sent there by some system of choice, some mode of the pamphlet may be obtained on application to election - I do not say necessarily directly from Mr. Gale.

the people, but speaking roughly and offhand, and

I pray you remember, after dinner, by some such In responding at the Cutlers' Feast to a toast to system as is so succesful in the American Senate, the House of Lords, Lord Coleridge said, among

and I will venture to say that the English House of other things: “I have not disguised — why should I

Lords would not be only the most ancient, the most disguise ? — that I am of opinion, with thirteen years' venerable, the most illustrious body, but one of the experience of its working, and of the renewed flow most powerful and most popular legislative assemof things that goes on all around us, that it cannot

blies which the world has ever seen." But do be expected that the Ilouse of Lords, any more than

abolish the House as a law court, in which regard any other institution in this country, should be

it is of no credit to itself and no use to anybody saved for ever from change and reconstruction. But

else. I will be equally frank, and I would say that I do hope that it will be dealt with in the way of change of two hundred and fifty dollars for the best essay

The New York State Bar Association offer a prize and reconstruction, and not by way of abolition. In every free country, I believe I am sure in most

on “The Laws of Divorce in the United States, init is found necessary, or it is believed to be neces

cluding the conflict of laws of the several States, sary, to have a second chamber in the legislative and the advisability of national legislation.” The machinery of the State, and I am certain that in the subject is of extreme importance, and of ever presEnglish House of Lords there is the most admirable ent and continually increasing interest. It should material for the reconstruction of the chamber. The

call out some good thought and suggestions. ParEnglish IIouse of Lords never didl want, and it dues

ticulars can be obtained from Mr. L. B. Proctor, not now want, grand, commanding ability. A de-Capitol, Albany. The essays must be sent to Mr. bate in which to go no further than four names

George L. Stedman, chairman of the committee, at - a debate in which the Duke of Argyll, Lord Sal

Albany, by December 15th. isbury and Lord Selborne, and the Bishop of Peterborough mingled, is a thing, let me tell you, worth a man's while to go many miles to listen to; and

If Ben Perley Poore's reminiscences are all as inwe find that still to great men of all sorts, to great

accurate as those about Webster's personal appearcontractors, to great brewers, to great bankers, to

ance, they cannot be trustworthy. He says Webster

was not a tall or a large man. He certainly was great men of commerce, to great soldiers and sail

five feet ten inches in height, had a grand chest, ors, and may, I say, excluding myself, great law

and weighed one hundred and eighty pounds or yers, not only to men who are remarkable for nothing but the number of acres and the quality of

more - "a cathedral of a man,” as Sidney Smith

said of him. stock or consols they may own, the position of a seat in the IIouse of Lords is still an object of ambition; and I would undertake to say, speaking

NOTES OF CASES. with all reverence in presence of some of the foremost men in the House of Commons, that a man N Collins v. South Boston Railroad Co., Massachumight now take up fifty men out of the House of setts Supreme Court, July 3, 1886, the court Lords who, man for man, would be the equals in gives a very intelligent summary of the doctrine ability, with perhaps one enormous exception that respecting contributory negligence in infants. They will occur to every one, on whichever side of poli- say: “It was said in Lynch v. Smith, 104 Mass. 52; tics he may sit, absolute equals of any fifty men in S. C., 6 Am. Rep. 188, that it does not necessarily the House of Commons. It is not in eloquence, it follow, because a parent negligently suffers a child is not in learning and ability, it is not in knowl- of tender age to cross a street, that therefore the edge, it is not in high character and noble ambition, child cannot recover. If the child, without being nay, it is not in a certain sense in currency with able to exercise any judgment in regard to the mataffairs that the House of Lords is deficient. The ter, yet does no act which prudence would forbid, House of Lords has lost its weight in the country, and omits no act that prudence would dictate, there if it has lost it, from other causes, because, unfor- has been no negligence which was directly contunately, a vast majority of the peers never come tributory to the injury.' But if the child does act near the House of Lords at all, and never take any in a manner which would be careless in a prudent part in its business; because those who do take part person of mature years and ordinary intelligence, come there because they choose to come, and are and the carelessness contributes to the injury, what responsible to no one but themselves, and it is im- is the test by which the conduct of the child is to

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be tried, in determining whether it has exercised the court would hold, as matter of law, that a girl due care? Courts have held that up to a certain of that age was guilty of contributory negligence. age, not very accurately defined, it must be conclu- See O'Connor v. Boston & Lowell R. Co., 135 Mass. sively presumed that a child has not sufficient in- 352. In Messenger v. Dennie, 137 id. 197; S. C., 141 id. telligence and discretion to exercise due care under 335, the plaintiff was cight years and nine months the circumstances, and in the place in which he is old, and the court held that there was no evidence found, and that it is negligence on the part of the of due care on his part, and that he could not repersons who have charge of him to permit him to cover, saying that 'lis injury was the natural congo there unattended. If such a child has not acted sequence of his careless act.'

* * It would as reasonable care would dictate, judged by the or- seem that if chillren unreasonably, intelligently and dinary standards for adult persons, and this has intentionally run into danger they shall take the contributed to the injury, and if the persons having risks, and that children, as well as adults, should the charge of such child have negligently permitted use the prudence and discretion which persons of him to go there alone, both these facts constitute their years ordinarily have, and that they cannot be negligence, which will prevent him from maintain- permitted with impunity to indulge in conduct ing an action. There is also an age within which which they know, or ought to know, to be careless, courts have held that one child is conclusively pre because children are often reckless and mischievsumed not to have sufficient intelligence and discre- See McGary v. Loomis, 63 N. Y. 104; S. C., tion to take charge of another who is younger, and 20 Am. Rep. 510; note, 512; Plumley v. Brige, 124 that it is negligence on the part of the parents or Mass. 57; S. C., 26 Am. Rep. 615; Rockford, etc., R. guardians of such children to permit them to go Co. v. Delaney, 82 III. 198; S. C., 25 Am. Rep. 308. together to places of danger, and if they do, and the children do not use reasonable care, and this

In Mc Cormick v. Township of Washington, Pennhas contributed to the injury, they cannot recover. Beyond these ages courts have left it to the jury to sylvania Supreme Court, March 8, 1886, the holding

seems to us unreasonable. This was an action for determine whether the parents or guardians were

damages, brought by the owner of a steam threshing negligent ir. permitting a child to go alone to a

machine against a township, the allegation being place of danger, or in permitting him to go there that the township had not kept in proper condition in charge of another child, and if it is found that

one of its bridges, the result of which was that they were negligent then it has been left to the jury whilst being transported over it the threshing mato determine whether the child or children reasona

cline and the lorses pulling it were, because of the bly exercised that degree of care of which they were

bridge giving aw:ly, precipitated into the stream capable, and has been said that it is only neces

beneath. The verdict was for defendant. The sary for them “to exercise such capacity as they court said: “A township is not required to assume had.' The care which an adult person is bound to

that its bridyes will be used in an unusual and exexercise is said to be the care which a person of or

traordinary manner either is regards great speed or dinary intelligence and prudence must exercise, and the passing of a very large and unusual weight. As it is determined by the amount of intelligence it does not anticipate any such use it is not rewhich he actually possesses, unless he is non compos quired to so build as to protect against injury rementis, and as the law, as far as is practicable, en

sulting from such reckless conduct. Its liability deavors to establish general rules of conduct, it is

stops with constructing and maintaining its bridges probable that the more accurate statement of the

so as to protect against injury by a reasonable, law for children is the one usually made, namely,

proper and probable use thereof in view of the surthat a child is to be held to the exercise of that de- rounding circumstances, such as the extent, kind gree of care which may reasonably be expected of and nature of the travel and business on the road, children of his age, or which children of his

of which it forms a part.” It does not seem undinarily exercise. The court, with more or less hesi- reasonable to assume that a bridge is strong enough tation in what it deems plain cases, according to

to support a steam threshing machine moving about common experience, has declared that the acts or

the country for the use of farmers. conduct of an adult, under the circumstances, constituted, as matter of law, contributory negligence, and the question arises whether the court can make In Parker v. Remington, Rhode Island Supreme the same declaration concerning the acts or conduct Court, April 3, 1886, it was held that the acknowlof a child of tender age, who yet is so old that they edgment of a debt made to a stranger, and not cannot say, as matter of law, that he has not suffi- meant to be communicated to the creditor, will not cient discretion to be permitted to act on his own remove the bar of the statute of limitations. The judgment. We think it has been, in effect, decided court said: “ The older cases, both English and that the same general principles govern courts in American, hold that an acknowledgment of a debt either case, although the degrees of care required to a stranger is as effectual to remove the bar of the are different. See Mattey v. Whittier Machine Co., statute as one made to the creditor, but the latter 140 Mass. 337. The plaintiff was six years and seven cases, both English and American, strongly mainmonths old at the time of the accident, and the tain that an acknowledgment to a mere stranger is opinion implies that there might be cases in which I inessectual to remove the bar, unless it was intended

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to be communicated to the creditor, the reason be- source the means are derived. If the actual avails ing that otherwise no privity is established between of the husband's labor were sufficient to have enthe parties in respect to the new promise. Wood abled him to provide suitable maintenance for the Lim., § 79, p. 193, note; 1 Smith Lead. Cas. 726; wife, and he wantonly and cruelly neglected or reBloomfield v. Bloomfield, 7 Bradw. 261; Parker v. fused to appropriate it for such purpose, it would Schuford, 76 N. C. 219; Backman v. Roller, 9 Baxt. constitute a cause of divorce within the meaning of 490; S. C., 40 Am. Rep. 97; Edwards v. Crilley, 4 the statute.” H. & N. 377; Fuller v. Redman, 26 Beav. 614. We DWELLING-HOUSE.— In State v. Clark, Missouri have no reported decision upon this point in this Supreme Court, June 21, 1886, it was held that an State. We think the latter cases rest upon the under-ground cellar, used for storing ice and beer, better reason.” Contra, Stewart v. Garrett, ante, 279. having no internal door of communication with the See note, 40 Am. Rep. 160.

living-rooms in the upper stories of the same building, and not under the control and dominion of any

occupant of the building, is not a “dwellingCOMMON WORDS AND PHRASES.

house," within the statute of larceny. The court

said: “An eminent text-writer -1 Whart. Crim. ECUNIARY ABILITY.-In Farnsworth v. Farns- Law (8th ed.), $$ 781-783, 787 — treating of bur

worth, Rhode Island Supreme Court, August glary (a somewhat kindred crime) says that 'the 2, 1886, the court said: “The fifth clause of sec- breaking and entering; to constitute a burglary, tion 2362, Revised Laws, relating to causes for must be ordinarily into the dwelling-house of anwhich divorces may be granted, provides that a other; that is to say, the house in which the occudivorce may be decreed: 'On petition of the wife pier and his family usually reside, or in other words, when the husband, being of sufficient pecuniary awell and lie in.' 'As'an introduction to the cases ability to provide suitable maintenance for her, hereafter to be given in detail, it may be now without cause, grossly or wantonly and crueily re- stated, generally, that no matter to what use an fused or neglected so to do.' The only question out-building may be put, it is burglary to break presented and discussed by counsel in this case is and enter it if it is appurtenant or auxiliary to the what constitutes ' pecuniary ability' in the sense dwelling-house, and is within such convenient disin which the words are used in the clause of the tance from the same as to make passing and restatute above quoted. To entitle the wife to a de passing an ordinary household occurrence. cree of divorce under this clause of the statute it The question is, is it probable that the building is is essential that the husband should be shown to be under the immediate personal care of its owner? possessed of sufficient money or other available If so, in view of the peril to life consequent upon a property to provide a suitable maintenance for her, nocturnal attack on it, the offense is one against according to their rank and station in society, and family peace and safety, as well as against property, that the husband, without cause, has grossly or and consequently rises to burglary.' • A dwellingwantonly and cruelly refused or neglected to ap- house is deemed any permanent building in which propriate it for her maintenance. The pecuniary a party may dwell and live, and as such burglary ability mentioned in the statute clearly has refer- may be committed in it. A set of chambers in an ence to the possession by the husband of means in inn of court or college is deemed a distinct dwelproperty to provide the necessary maintenance for ling-house for this purpose. So, even a lost over a the wife, and not to his capacity for acquiring such stable, used for the abode of a coachman, which he means by his own labor. It is not necessary that rents for his own use and that of his family, is a the husband's means should consist alone of lands place which may be burglariously broken.' Anand cattle, or some property in concrete shape, other other distinguished writer — Bish. St. Crimes (20 than money. It may consist of money wages, which ed.), § 242 — says that 'the word 'dwelling-house,' the husband receives for his own labor, or money the meaning of which is fully explained further on, derived from any source, as well as land and cattle, includes, in the law of burglary, and generally in or any other property in concrete form. No refusal the law, a structure for business uses, whereof any or neglect of the husband to make provision for the internally connected room is occupied for sleeping support of the wife is a cause of divorce under this and abode.' The same author, in section 277, says clause of the statute, unless he had available prop- that 'the words 'dwelling-house' and 'mansioncrty which he could have appropriated for that pur- house' are identical in legal writings, but ‘house? pose, and of such an amount as the county court, is not quite the same.

The latter is of on hearing the evidence, deemed sufficient to have meaning somewhat larger than the others, though cnabled him to properly support his wife.

the difference is not quite definable.

As It is not enough to show that the husband had already seen, the meanings of these terms may vary health and capacity io acquire ample means for with the subject, and their connections with other such support by his own labor. It must be dis

words; but in general, they are stable in the crimitinctly shown that he actually had the requisite nal law. For example, in statutes against larceny amount of money or other property during the pe- from the dwelling-house the term 'dwelling-house riod complained of for furnishing proper mainte-has the same significance as in burglary. In seco nance for the wife. It is not material from what I tion 278 the same author uses this language: 'A

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*dwelling-house' is the apartment, building or largely one of mere form. Hence not merely in cluster of buildings, in which a man with his fam- common speech, but also in statutes, the one or the ily resides. To explain: one need not so construct other term is often used without strict regard to his habitation that all its rooms will be under one the technical distinction between the two. Thus roof; therefore the word 'dwelling-house' em- the term 'recognizance' is commonly applied to all braces the entire congregation of buildings, main forms of security for the appearance of the accused and auxiliary, used for abode.' In section 280 this in criminal proceedings, whether in the form of a writer says that if one part of a building is used common-law recognizance or of a common bond. for abode it gives the character of dwelling-house So in the case of appeals from Probate Court to the to every other part to which there is an internal District Court. In those taken under chapter 49 of communication, even though, according to the au- the statutes the appellant is required to file a 'rethorities, generally occupied by another person for cognizance,' while in those taken under chapter 53 an entirely different purpose.

If there is he is required to give a 'bond.' Again, the term no internal communication, the parts are to be con- .bond' is not unfrequently used as a general term, sidered as though they were distinct buildings.' including 'recognizance,' which is but one kind of The same author, in section 283, uses the further bond. Thus Blackstone speaks of a recognizance language: 'In reason, whether a man's abode con- as in most respects like another bond.'” sists of a cluster of separate buildings, or of sepa- WANTON.— In State v. Brigman, 99 N. C. 889, rate rooms under one roof, the result is the same; the court said: “The sole question then is whether and it is that the abode — the dwelling-house — ex- the shooting and killing the cow under the circumtends only to buildings and rooms used either stances detailed, and for the purpose mentioned, is directly for habitation or as auxiliary thereto, with * wanton and willful’ within the contemplation of this single exception: that where the walls of the the statute, and more especially, was it wanton?' dwelling inclosed other premises connected by an To be criminal the act must possess both qualities. internal communication with the rooms lived in, It was certainly willful, for it was the development such premises, if not the abode of another person, of a preconceived purpose, not an impulse of anger, are, though occupied by another, parts of the dwel- excited by unexpectedly seeing a repetition of the ling-house with which they connect,'

It annoying trespasses. But more is required to conis quite clear therefore that the ice-house, beer-cel- stitute the indictable offense. The act must not lar or basement was not, in the language of the only be of purpose, but it must also be wanton, text-writers, under the immediate personal control What does this qualifying adjective mean when apof any of the dwellers above, and that being so, plied to the killing? Wantonness is defined by there was nothing to make passing and repassing Bouvier to be 'a licentious act of one man toward from said ice-house to the building above, in the the person of another, without regard to his rights,' language of the text-writers, an ordinary bousehold and licentiousness to be “the doing what one pleases, occurrence on the part of the dwellers above; and without regard to the rights of others.' In Welch if that be so the peril to life consequent upon a

v. Durand, 36 Conn. 182; Butler, J., speaking for nocturnal attack upon it, much less an attack in the court, says, “wantonness is action without rea broad daylight, apprehended by the text-writers gard to the rights of others. Mr. Justice Willes and adjudged cases, does not exist in the case at declares that 'wantonly means not having a reasonbar, and if so, there is nothing in the facts of the able cause.' Clark v. Maggins, 103 E. C. L. 543. case, or the policy of the law, to make the offense

In Cobb v.

Bennett, 75 Penn, St. 326, when the ac in question, in the language of the books, one tion was for an injury done to a fishing net in the against family peace and safety, as well as against waters of the Delaware, in use by the plaintiff, property; or in other words, to convert a case of Chief Justice Agnew uses this language: 'It is simple . petit larceny' into one of 'grand larceny,' wantonness when a mariner, warned of the net, seewithin the purview of section 1309, supra." ing the lights marking its position, and requested

BOND.— In Re Brown, Minnesota Supreme Court, to avoid it, yet indifferent to the interests of the June 25, 1886, the court said: “A recognizance,' fisherman, keeps on his course, when a reasonable says Blackstone, 'is in most respects like another pursuit of his voyage would not be prejudiced by bond, the difference being chiefly this: that the avoiding the net. Wantonness is reckless sport bond is the creation of a fresh debt or obligation willfully unrestrained action, running immoderately de novo ; the recognizance is an acknowledgment of into excess. If a man will do an injury, when he a former debt upon the record. This being either may reasonably avoid doing so without inconvenicertified to or taken by the officers of some court, ence to himself, can he be said to be blameless?' is witnessed only by the record of that court, and This is, in our opinion, a fair exposition of the sense not by the party's seal.” 2 Bl. Com. 341. For- in which the word is used in the statute. The ille merly a recognizance was allowed a priority, in point gal act is wanton when it is needless for any rightof payment, over a common obligation, and bound ful

purpose e — without adequate legal provocation the lands of the cognizer from the time of enroll- and manifests a reckless indifference to the interment or record. But in this state the difference ests and rights of others.” between a recognizance and a common bond is now DRAINAGE, SEWERAGE. — In Wetmore v, Fiske,

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Rhode Island Supreme Court, July, 1886, the court

FOREIGN ADMINISTRATORS AND EXECUTORS. said: “While there has been no judicial construc

II. tion of the words • drainage' and 'sewerage,' and in many cases they may be and are synonymous,

PHE chancellor said: “An executor or administrayet, as they are used nowadays, they suggest to the

tor of a creditor dying in another State, and be

coming lawfully possessed, as part of his assets, of a mind a difference. Formerly the word 'sewer' was

bond given and secured by a mortgage upon lauds in used for 'a fresh-water trench, compassed in on the State, is competent, as I should apprehend, to reboth sides with a bank; a small current or little ceive payment and give an acquittance without first river.' Callis, Sew. 80. So the statute of 25 Henry resorting to the Court of Probate here. Cau they not VIII, ch. 5, 'concerning commissions of sewers,'

give a voluntary discharge of a mortgage without was to remedy damage from the flowing surges

clothing themselves with the office of an executor or

administrator under the judicial authority of this and course of the sea in and upon marsh grounds,'

State? And is not the policy of the law sufficiently also land waters and springs upon meadows, and answered when our courts refuse to lend their assistother water-courses, More recently, however, and ance to any authority not derived from our own laws probably from the appropriation of the word in acts

touching the administration and distribution of asand ordinances to the common conduits for liquid sets? If the parties can transact their own business

according to their own agreement without asking the filth, it is usually associated with such a use. Thus

aid of our courts, why may they not lawfully do it? Webster defines sewer' a drain or passage to con

* The bond was in Vermont and owned there, vey off water and filth underground.' For drain he and was assets to be distributed there under the proper gives 'a water-course; a sewer.' Kent speaks of jurisdiction of the courts, the land hero was held only the right of drain (vol. 3, p. 436) as a 'right to

by way of mortgage for the payment of the bond, and

was but an incident to the bond. If a creditor of H. convey water in pipes through or over the estate of

had sued out letters of administration in this State be another.' In Goldthwait v. East Bridgewater, 5 would have had nothing to administer. He could not Gray, 64, the court says: "The words Ditch' and have touched the mortgaged premises, for they be• drain' have no technical or exact meaning. They longed to the plaintiff; and he could not have enforced both may mean a hollow space in the ground, nat

the lien and collected the money due upon the bond, ural or artificial, where water is collected or passes

for that power was a right attached exclusively to the

lawful possessor of the bond, who was in this instance of.' So in Queen v. Godmanchester, 5 Best & S. 886,

the foreigu administrator, and who was responsible a distinction is made between a drain and a sewer, there, and not here, for the due and faithful adminisbut the distinction is based upon a statute. While tration of the assets." we cannot say, as a matter of legal definition, that

In Wilkins v. Ellett, when the case oame before the

Supreme Court the second time (108 U. S. 256), it ap'scwerage' may not, in some cases, be included in

peared that the debt was paid in the domicile of the * drainage,' yet when the simple term • drainage' is decedent, Tennessee. to an administrator who had used, as appurtenant to lands, the most obvious been appointed in Alabama, and yet the court held suggestion is a drainage of water; and when, in ad- the payment good as against an administrator subsedition, we find that a drain for water exists, and

quently appointed in Tennessee, although made by a

debtor of the State in which the decedent was domithat no suitable provision is made for sewage from

ciled at the time of his death, there being no adminishouses, which, if included, might result in a nui

tration in that State at that time, and no creditors, sance, we cannot think that an agreement for drain- legatees or next of kin therein. This decision upbolds age, which did not include house drainage in its a payment made by a debtor to a foreign ancillary adterms, could have been intended to cover it by nec- ministrator, though a domiciliary administrator is

subsequently appointed in the State in which the essary implication."

debtor lives, and makes the payment. IN TIIE VICINITY.-- Etymologically and by com

But in Klein v. French, 57 Miss. 662, the court made mon understanding, the phrase " in the vicinity a distinction between payment to domiciliary and means in the neighborhood, and neighborhood, as payment to ancillary representatives, holding that

while payment to the former is always good if there is applied to place, signifies nearness as opposed to

no representative at the time in the debtor's State, yet remoteness. Whether a place is in the vicinity or that payment to the latter is good only where the in the neighborhood of another place depends upon debtor lives in the same State. To same effect is no arbitrary rule of distance or topography. One

Hatchett v. Berney, 65 Ala. 40.

There are cases in which a foreign administrator or village may be said to be “in the vicinity” of an

executor can sue in his own name in another State. But other village without being joined or incorporated in all these cases it will be seen that he sues, not in his with it, and one house may be said to be near,

representative capacity. but individually. After hav

ing recovered a judgment in his own jurisdiction on a the vicinity” of, or in the neighborhood of another

claim in favor of the estate, he may sue on the judghouse, and not structurally adjoin it. Vicinity ad- ment in any other jurisdiction whatsoever, without mits of a more indefinite and wider Jatitude in place taking out letters there. Wilkin v. Ellett, 108 U. S. than proximity or contiguity, and as applied

256; Nichols v. Smith, 7 Hun; Talmage v. Chapel, 16

Mass. 69; Biddle v. Wilkins, 1 Pet. 688; Bright v. Curterritory, may embrace a more extended space than

rie, 5 Bandf. 437; Lawrence v. Lawrence, 3 Barb. Ch. that lying contiguous to the place in question, and 74; Rucks v. Taylor, 49 Miss. 552. as applied to towns and other territorial divisions, The reason for the rule is very clearly stated in Talmay embrace those not adjacent. Langley v. Barn

mage v. Chapel: "The debt was due to him

plaintiff and administrator, who had recovered the stead, 63 N. II. 246.

judgment in the State in which he was appointed) “he

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