Abraham Clark Freeman John Proffatt.

The American decisions: cases of general value and authority ..., Volume 58 online

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ferrer of promissory note without indorsement warrants its genuineness.
Recovery by bona flde purchase of negotiable instrument.

Cited in reference note in 39 A. S. R. 305, on amount of recovery by bona
fide purchaser of negotiable instrument.

58 AM. DEC. 481, COLLIER v. VASON, 12 GA. 440.
Sufficiency of description in execution or levy.

Cited in Sheffield v. Key, 14 Ga. 528, holding levy upon stock of cattle "as
they now run marks and brand not known, but known as Sheffield stock" in-
sufficient; Belk v. Estes, 82 Ga. 238, 8 S. E. 867, holding levy sufficient where
property described by lot and district number of certain county lying south
of certain road; Roberts v. Hinson, 77 Ga. 589, 2 S. E. 752, holding levy suf-
ficient where property described by lot number in specified district; Long-
worthy v. Featherston, 65 Ga. 165, holding description of house and lot as
occupied by certain man and formerly owned by another sufficient to admit
fl. fa. so endorsed in evidence; Boiling v. Vandiver, 01 Ala. 375, 8 So. 290, hold-
ing levy of execution on "one hundred bales of cotton, more or less," too in-
definite and uncertain; Brown v. Moughon, 70 Ga. 756, holding description of
property in execution and levy by lot numbers alone insufficient.

Cited in note in 75 A. D. 705, on description of property in notice of sale.
Question for jury as to sufficiency of description.

Cited in Patterson v. Evans, 91 Ga. 799, 18 S. E. 31, holding sufficiency of
description for jury where mortgaged premises are described as "two hundred
ninety acres more or less" in specified district of certain county; Oatis v. Brown,

59 Ga. 711, holding sufficiency of description of premises in levy as the "Oatis
place" question for jury.

58 AM. DEC. 484, PETERSON v. ORR, 12 GA. 404.
When equity will restrain trespass.

Cited' in Graham v. Dahlonega Gold Min. Co. 71 Ga. 296, holding that equity
will grant relief if trespass be destructive of the very nature and substance of
the estate; Jones v. Oemler, 110 Ga. 202, 35 S. E. 375, holding that injunction
may issue to restrain insolvent persons from committing depredations on private
oyster beds, though criminally punishable.

Cited in reference note in 68 A. D. 117, on injunction against trespass.

Cited in notes in 11 A. D. 506, on injunction for trespass where injury not
irreparable; 99 A. S. R. 750, on injunction against injuring, harvesting, and
removing crops.

Equity acquired by purchase of land.

Cited in Scroggins v. Hoadley, 56 Ga. 165, holding that vendee with knowl-
edge that his vendor had not paid for premises acquires no equity therein.

Cited in reference notes in 85 A. D. 367, on title and rights of vendee in pos-
session of public lauds having paid purchase price; 2 A. S. R. 192, on title and
rights of yendee in possession.

Distinguished in Allen v. Holding, 29 Ga. 485, holding bond for titles with
purchase money paid not good against subsequent grantee for value without
notice who duly records conveyance.



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Perfect equity as equivalent of legal title.

Cited in Howell v. Ellsberry, 79 Ga. 476, 5 S. E. 96, holding doctrine of
perfect equity as equivalent of legal title restricted to relation of vendor and
purchaser; Dudley v. Bradsliaw, 29 Ga. 17, holding perfect equity good title at
law sufficient to support or defeat ejectment; Grace v. Means, 129 Ga, 638,
59 S. E. 811, holding that vendee in possession after payment of purchase price
has perfect equity equivalent to legal title and may successfully defend in eject-
ment as against vendor or others claiming under him.
Equitable relief in cases involving conveyance of land.

Cited in reference note in 54 A. D. 393, on equitable relief in cases involving
conveyances of land.

58 AM. DEC. 485, CLARK v. GARTER, 12 GA. 500.

Newly discovered evidence or surprise as ground for new trial.

Cited in Young v. State, 56 Ga. 403, holding newly discovered evidence not
favored as ground for new trial ; Dill v. State, 106 Ga. 683, 32 S. E. 660, hold-
ing applications for new trials on ground of newly discovered evidence not
favored and received with caution.

Cited in reference notes in 60 A. D. 216; 65 A. D. 131, — on newly discovered
evidence as ground for new trial; 60 A. D. 216; 63 A. D. 138; 78 A. D. 518, —
on surprise as ground for new trial.
Impeachment of verdict by jurors.

Cited in reference notes in 61 A. D. 499, on receiving affidavits of jurors to
impeach verdict; 63 A. D. 80, on affidavits of jurors to impeach verdict.

Cited in note in 5 L.R.A. 524, on right of jurors to impeach their verdict.

58 AM. DEC. 488, TUCKER v. HARRIS, 13 GA. 1.
Precedence between conflicting deeds or titles.

Cited in Roe v. Maund, 48 Ga. 461, holding oldest deed has precedence over
subsequent one when neither registered within twelve weeks of execution though
junior deed he recorded first; Maddox v. Arthur, 122 Ga. 671, 50 S..E. 668,
holding title of purchaser without notice at judicial sale superior to that of
prior purchaser at tax sale who has failed to file deed; McCandless v. Inland
Acid Co. 108 Ga. 618, 34 S. E. 142, holding deed from sheriff duly recorded en-
titled to priority over prior unrecorded deed from execution defendant if pur-
chaser without notice thereof; Voorhis v. Westervelt, 43 N. J. Eq. 642, 3 A.
S. R. 315, 12 Atl. 533, holding title of bona fide purchaser without notice at
judicial sale against heir free from lien of unrecorded mortgage executed by
ancestor; Culbreath v. Martin, 129 Ga. 280, 58 S. E. 832, holding title acquired
by bona fide purchaser for value from executor, without notice, superior to that
of donee under deed of gift; Henderson v. Armstrong, 128 Ga. 804, 58 S. E.
624, holding deed from testator superior to one from general devisees though
latter taken by vendee for value without notice and first recorded.

Distinguished in Webb v. Doe, 33 Ga. 565, holding act giving preference to
certain deeds inapplicable where unrecorded deed comes in competition with
duly recorded junior deed executed by first feoffer's heir.
Retrospective operation of statutes.

Cited in Connecticut Mut. L. Ins. Co. v. Talbot, 113 Ind. 373, 3 A. S. R. 655,
14 N. E. 586, holding that act of 1877 providing for assignment of any mort-



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gage of record applies to mortgages then of record and theretofore equitably
assigned as well as subsequent ones; Myers v. Wheelock, 60 Kan. 747, 57 Pac.
056, sustaining validity of act providing for assignment of existing mortgages
within six months.

Cited in reference note in 65 A. D. 547, as to when retrospective construction
will be given to statute.
Presumption as to Jurisdiction and regularity of proceedings.

Cited in Wood v. Crawford, 18 Ga. 526; Perkins v. Attaway, 14 Ga. 27,—
holding every presumption in favor of jurisdiction of court of ordinary over
decedent's estates; Davie v. McDaniel, 47 Ga. 195, holding regularity of pro-
ceedings presumed where Court of Ordinary has passed order in reference to
matter over which it has jurisdiction; Echols v. Almon, 77 Ga. 330, 1 S. E. 269,
holding Court of Ordinary constitutional court and its judgments presumed
correct where jurisdiction shown, unless contrary appears; Brown v. Redwyne,
16 Ga. 67, holding recitals in judgment of Court of Ordinary concerning mat-
ters over which it has jurisdiction presumed true until falsity proved; Torrent
v. Suiter, 67 Ga. 32, holding judgment of court of record presumed to have
been rendered upon sufficient proof; Willits v. Walter, 32 Or. 411, 52 Pac. 24,
holding that no presumptions will be indulged in favor of jurisdiction of court
of inferior or limited power; Hamilton v. Morel and, 15 Ga. 343, holding that
execution emanating from Justices' Court need not show on face all proceedings
necessary to confer jurisdiction; Bewley v. Graves, 17 Or. 274, 20 Pac. 322,
holding that when jurisdiction is shown courts of limited jurisdiction have
same intendment in favor of proceedings that courts of general jurisdiction
have.

Cited in reference notes in 61 A. D. 443, on necessity of affirmatively show-
ing jurisdiction of inferior courts; 62 A. D. 791, on presumption of jurisdiction
in judgments of sister states.
Jurisdiction over decedent's and infant's estates.

Cited in Lydick v. Chaney, 64 Neb. 288, 89 N. W. 81, holding county court one
of general jurisdiction as to probate matters; Wood v. Crawford, 18 Ga. 526;
Perkins v. Ottaway, 14 Ga. 27, — holding court of ordinary one of general juris-
diction so far as testate and intestate estates are concerned ; Davie v. McDaniel 47
Ga. 105, holding courts of ordinary courts of original, exclusive and general juris-
diction of sale and disposition of decedent's realty and distribution of estates;
Wyatt v. Rambo, 29 Ala. 510, 68 A. D. 89, holding orphans' court one of special
or limited jurisdiction as to its authority to order sale of decedent's personalty;
Richards v. East Tennessee, V. & G. R. Co. 106 Ga. 614, 45 L.R.A. 712, 33 S.
E. 193 (dissenting opinion), on jurisdiction of court of ordinary to order sale
of infants' legal estates.

Cited in reference note in 68 A. D. 100, on requisites of probate jurisdiction
to order sale of real estate.
Conclusiveness of judgments and orders.

Cited in Parish v. Parish, 32 Ga. 653, holding that judgment of divorce, void
for want of jurisdiction of defendant, may be collaterally impeached; Bradwell
v. Spencer, 16 Ga. 578, holding judgment of court having jurisdiction of cause
and parties binding on parties until set aside, though there are irregularities
in previous proceedings, such as may be waived; Davie v. McDaniel, 47 Ga. 195,
holding that order of court of ordinary authorizing administrator to sell de-
cedent's lands cannot be collaterally attacked and set aside; Peterman v.



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Watkins, 19 Ga. 153, holding that title acquired under order of court of ordi-
nary cannot be collaterally attached; Davis v. Howard, 56 Ga. 430 (dissenting
opinion), on right to collaterally attack judgment of ordinary.

Cited in reference notes in 65 A. D. 341, on conclusiveness of decisions and
orders of probate courts within their jurisdiction; 65 A. D. 185; 67 A. D. 740, —
on collateral questioning of judgment of probate court; 63 A. D. 83; 68 A. D.
101,— on impeaching judgments of probate courts; 72 A. D. 121, on when judg-
ment of probate court ordering distribution may be collaterally attacked.

Cited in note in 65 A. D. 122, as to when and against whom allowance of
claim against decedent's estate is conclusive; 23 A. S. R. 113, on collateral at-
tacks upon judgments.
Rights of innocent purchaser at guardians' or administrators' sales.

Cited in Cuyler v. Wayne, 64 Ga. 78, holding grant of letters of guardian-
ship without bond not void as to bona fide purchaser from guardian without
notice that bond was not given; Soye v. McCal lister, 18 Tex. 80, 67 A. D. 689,
sustaining validity of title of purchaser at administrator's sale, though record
silent as to whether administrator's term had been continued thereto; Patter-
son v. Lemon, 50 Ga. 231, holding administrator's sale under proper and legal
authority not void but voidable, except as to innocent purchaser for failure to
comply with law as to mode thereof; Price v. Winter, 15 Fla. 66, holding that
purchaser at judicial sale of decedent's lands need look no farther than to
court's jurisdiction of parties and subject matter.
County court as one of record.

Cited in Weaver v. Webb, 3 Ga. App. 726, 60 S. E. 367, as to whether county



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•on admissibility as part of res gestae of declarations of party at time of act and
■explanatory tnereof; 94 A. D. 677, on admissibility of parol evidence of negotia-
tions leading to written contract; 10 A. S. R. 306, as to when declarations are
part of the res gestae.

Cited in notes in 95 A. D. 68, on admissibility of declarations to show state
of mind, as part of res gestse; 95 A. D. 70, on admissibility of declarations to
show motive and purpose of act, as part of res gestae.
Undue Influence affecting validity of will.

Cited in reference note in 64 A. D. 189, on what constitutes undue influence
invalidating will.

Cited in note in 31 A. S. R. 675, on necessity that undue influence affect will
in order to invalidate it.
Evidence of undue influence in procuring destruction of will.

Cited in note in 110 A. S. R. 454, on right to show use of undue influence
in procuring destruction of will.
Sufficiency of evidence of contents of lost or destroyed will.

Cited in note in 38 L.R.A. 448, 449, on sulliciency of evidence of contents of
lost or destroyed will by proof by copy.
Definition of res gestae.

Cited in note in 95 A. D. 52, defining "res gestae."

58 AM. DEC. 507, LOGAN v. MECHANICS' BANK, 13 GA. 201.
Consolidation or splitting of actions.

Cited in Tarpley v. Corputt, 65 Ga. 257, holding two actions on account
should be consolidated where defense same in each, or none filed, if court's
jurisdiction not ousted thereby; 'Gerding v. Anderson, 64 Ga. 304, holding that
consolidation will not be required where it will work harm to plaintiff or
oust court of jurisdiction.

Cited in reference notes in 96 A. D. Ill, on practice as to consolidating
•suits; 44 A. S. R. 875, on splitting of actions; 95 A. D. 583; 42 A. S. R. 306;
46 A. 8. R. 619; 55 A. S. R. 148, — on consolidation of actions.

58 AM. DEC. 513, BEALL v. BLAKE, 13 GA. 217.
Waiver of irregularities or defects in proceedings.

Cited in reference notes in 69 A. D. 384, on appearance as waiver of irregu-
larities in judicial proceedings; 74 A. D. 133, on waiver of defects in, or
want of service of process, by appearance; 4 A. S. R. 273, on waiver of mere
irregularity in judicial proceedings.
Setting aside judgment for irregularities in pleading.

Cited in Reid v. Hearn, 127 Ga. 117, 56 S. E. 129, holding that judgment
will not be set aside on ground of irregularity in pleading which could have
been amended; Blalock v. Tidwell, 56 Ga. 517, holding that judgment cannot be
aet r.side for clerical mistakes in process where defendant appeared and plead-
ed personally and later by executor, and no objection made until eighteen years
after first appearance and plea.
Effect of defective process upon proceedings.

Cited in Wynn v. Booker, 22 Ga. 359, holding defect of process incurable
and court bound to dismiss suit therefor; Little v. Ingram, 16 Ga. 194, hold-
ing process not issued in compliance with statutory requirements void and pro-



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ceedinga vitiated unless distinctly waived; Mitchell v. Long, 74 Ga. 94, to point
that want of process will render proceeding void.
Amendment of process or judgment nunc pro tunc.

Cited in Saffold v. Wade, 50 Ga. 174, holding that as between parties amend-
ments to judgment and fi. fa. made to establish conformity in record relate
back generally to original dates and effective therefrom.

Distinguished in Little v» Ingram, 16 Ga. 194, holding clerk's omission of
waiver of process from acknowledgment of service indorsed on petition may
be cured nunc pro tunc upon satisfactory proof.

58 AM. DEC. 517, HAWKINS v. STATE, 13 GA. 322.
Peremptory challenge by joint defendants.

Cited in Cjuce v. State, 59 Ga. 83 (dissenting opinion), on right to separate
peremptory challenge where defendant's tried jointly.
What is an affray.

Cited in Blackwell v. State, 119 Ga. 314, 46 S. E. 432, holding that profane
and violent language accompanied by drawing razor and other violent acts
constitutes an affray; State v. Warren, 18 Nev. 459, 5 Pac. 134 (dissenting
opinion), on what constitutes an affray.

Cited in reference notes in 69 A. D. 769, as to whether words can constitute
an affray; 70 A. D. 323, on what constitutes affray.
Who guilty as principals.

Cited in Roney v. State, 76 Ga. 731, holding party who has conspired with
another to take third person's life and who actually participated therein
guilty as principal; Jahnke v. State, 68 Neb. 154, 94 N. W. 158, holding party
present aiding, abetting, assisting or counseling commission of homicide guilty
in same degree as though he had fired fatal shot.

Cited in reference notes in 100 A. D. 297, on criminal responsibility of per-
sons engaging in commission of unlawful act for consequences flowing from it;
11 A. S. R. 673, on who are principals in commission of crime.

Cited in notes in 13 L.R.A. 196, on aiders and abetters of crime as principals;
8 L.R.A. 297, on aiders and abettors of rape guilty as principals.
What constitutes aiding and abetting crime.

Cited in reference note in 98 A. D. 769, on what constitutes aiding and
abetting crime.
What constitutes one accessory to crime.

Cited in reference note in 94 A. D. 138, as to what constitutes one accessory
to crime.

58 AM. DEC. 518, WALLACE v. HOLLY, 13 GA. 380.
Injunction to stay execution of judgment.

Cited in Board of Education v. Franklin, 61 Ga. 303, holding that injunction
will not issue to stay execution of judgment of foreclosure where applicants
failed to defend foreclosure action.
Justification under process — By officers.

Cited in Haslett v. Rodgers, 107 Ga. 239, 33 S. E. 44, holding sheriff not
liable for levy of attachment upon goods described in petition under fraudulent
debtor act; Holton v. Taylor, 80 Ga. 508, 6 S. E. 15, holding levy of execution
upon personalty in hands of strangers trespass per se, where property not sub-



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ject thereto; Chipstead v. Porter, 63 Ga. 220, holding that constable has no
discretion but to execute possessory warrant duly issued against specific prop-
erty and not liable therefor in trover; Snell v. Mayo, 62 Ga. 743, holding that
sheriff cannot controvert plaintiff's title in reduction of liability for failure to
properly execute process in trover; Hayden v. Johnson, 59 Ga* 104, holding
execution issued in pursuance of special judgment absolute protection to sheriff
in making levy; Thompson v. State, 3 Ind. App. 371, 28 N. E. 996, holding sheriff
not liable for removal of goods of third parties in possession of specific prop-
erty sold on foreclosure, though not parties thereto.

Cited in reference notes in 61 A. D. 473, on protection of officer under process
which he is executing; 62 A. D. 332, on justification of officers by their
process; 64 A. D. 300, on liability of officer levying on voidable execution; 86
A. D. 291, on liability of officers executing process fair on its face but actually
void.

Cited in note in 61 A. D. 409, as to when process is justification for acts
done under it.

Distinguished in Jefferson v. Hartley, 81 Ga. 716, 9 S. E. 174, holding sheriff
liable for removal of person not mentioned in writ of possession or within .its
legal operation.

— By attorney and parties.

Cited in Boyd v. Merriam, 53 Ga. 561, holding plaintiff in fi. fa. liable as for
trespass where land sold and vendee put in possession under illegal and void
execution; Williams v. Inman, 1 Ga. App. 321, 57 S. E. 1009, holding attorney
who causes levy on goods in hands of and belonging to strangers to execution
and client both liable as trespassers.
Continuous liability of deputies' sureties.

Cited in reference note in 67 A. D. 226, on continuance of liability of deputy's
sureties.
When trespass maintainable.

Cited in reference note in 63 A. D. 53, on when trespass may be maintained.

58 AM. DEC. 523, SHEPHERD v. BURKII ALTER, 13 GA. 443.
Registry as notice.

Cited in Wilkinson v. King, 81 Ala. loO, 8 So. 189, holding registration
equivalent to notice to creditors and purchasers.

Cited in reference notes in 70 A. D. 196, on notice of deed by registry; 78
A. D. 336, on extent of registry as notice of tenor and effect of instrument;
80 A. D. 428, on registry of instrument as notice of tenor and effect only as
it appears of record; 96 A. D. 135, on registry of instrument as notice; 24 A.
S. R. 732, on effect of registration of mortgage as constructive notice; 87 A.
S. R. 446, on record of title as notice.

Cited in notes in 58 A. D. 528, on record of deed being only notice of what
appears on its face; 96 A. S. R. 403, on sufficiency of record to put searcher
on inquiry; 10 L.R.A. 375, on registry of mortgage.

— Effect of delay or failure to record.

Cited in McKeen v. Sultenfuss, 61 Tex. 325, holding creditor who secures
judgment lien upon land without notice of existence of unrecorded deed en-
titled to protection of registry statutes; Massey v. Hubbard, 18 Fla. 688, hold-
ing that creditors and subsequent purchasers stand upon same footing in



respect to notice of prior unrecorded conveyance; Smith v. Jordan, 25 Ga. 687,
holding purchaser at execution sale on judgment obtained subsequent to mort-
gage, not recorded within required period, takes free from mortgage encumbrance,
notwithstanding notice given at sale.

— Effect of mistake in transcribing.

Cited in Todd v. Union Dime Sav. Inst. 118 N. Y. 337, 23 N. E. 299, holding
omission of seal from record renders deed inoperative as notice of conveyance
of legal title; Gilchrist v. Gough, 03 Ind. 570, 30 A. R. 250, holding record of
mortgage, which by mistake shows debt less than it actually was, notice only
to extent of sum expressed in record and interest; Sinclair v. Slawson, 44 Mich.
123, 38 A. R. 235, 6 N. W. 207, holding mortgage notice to all parties though
name of mortgagee omitted in recording where entry book supplied defect;
Pringle v. Dunn, 37 Wis. 449, 19 A. R. 772, holding registry not constructive
notice to subsequent mortgagees for value where by mistake in recording mort-
gage copy of attestation omitted; Barnard v. Campau, 29 Mich. 302, holding
that where mistake has been made in recording subsequent purchaser has right,
in absence of actual notice thereof, to rely on record as showing exact facts.

Cited in reference note in 78 A. D. 330, on irregularly recorded deed as notice.

Cited in notes in 30 A. D. 404, on effect of irregularities in recording deeds;
91 A. D. 108, on effect of defects in registration of conveyances.

Distinguished in Roberson v. Downing Co. 120 Ga. 833, 102 A. S. R. 128,
48 S. E. 429, 1 A. & E. Ann. Cas. 757, holding clerical error in one initial letter of
notary public before whom executed will not destroy character of registered
deed as constructive notice.

Disapproved in Mangold v. Barlow, 01 Miss. 593, 48 A. R. 84, holding that
deed must- prevail although mistake is made by clerk in recording it.

— Effect of illegal or unauthorized record.

Cited in Gardner v. Granniss, 57 Ga. 539, holding mere existence of record of
deed upon defective probate not sufficient to put person on inquiry unless in-
formed thereof; Andrews v. Mathews, 59 Ga. 400, holding purchaser at exe-
cution sale under judgment for antecedent perfected subsequent to mortgage
illegally recorded, debt, protected against mortgage though he and creditor had
actual notice thereof.

Cited in reference notes in 50 A. D. 407, on record of defectively acknowledged
deed as notice to subsequent purchasers and encumbrancers; 91 A. D. 441, on
registry of deed not proved or acknowledged as constructive notice to subsequent
purchaser; 18 A. S. R. 893, on registration of defective instruments.
Necessity of notifying husband's creditors of wife's equity.

Cited in Atkinson v. Beall, 33 Ga. 153, holding title of purchaser at sheriff's
sale under execution against husband free from lien of wife's equity unless
judgment creditor had notice thereof; Humphrey v. Copeland, 54 Ga. 543, hold-
ing that judgment creditor who perfected lien before notice of wife's equity in
debtor's property may purchase same at sheriff's sale freed therefrom though
notice meantime given; Wallace v. Campbell, 54 Tex. 87, holding title of judg-
ment creditor who purchased at execution sale on judgment against husband
perfect as against wife where deed to her did not show it to be her separate
property and he had no other notice thereof.
Right to new trial where verdict against evidence.

Cited in reference notes in 05 A. D. 430, as to when verdict will be set aside



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as contrary to evidence; 65 A. D. COO, on new trial where verdict is un-
mistakably contrary to evidence.
When instrument recorded under recording acts.

Cited in note in 12 L.R.A. 385, as to when instrument is deemed to be re-
corded under recording acts.
Record of deed as evidence.

Cited in reference note in 68 A. D. 262, on record of deed as evidence.
Unrecorded mortgage as lien.

Cited in reference note in 05 A. D. 480, on effect of unrecorded mortgage as
lien.

Unrecorded deed as passing title.



Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 58 → online text (page 109 of 116)