Abraham Clark Freeman John Proffatt.

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

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Governor's proclamation as evidence of flight.

Cited in Woold ridge v. State, 49 Fla. 137, 38 So. 3, holding proclamation of
governor offering reward for forger admissible on question of flight from justice.
Venue of crime.

Cited in State v. Bowen, 16 Kan. 475, holding information for murder sufficient
which charges giving of fatal blow in county where prosecution had regardless of
place of death; State v. Fields, 51 La. Ann. 1239, 26 So. 99, holding courts in
district when fatal blow given have jurisdiction over prosecution for murder
though death occurred elsewhere.

Cited in reference note in 32 A. S. R. 841, on jurisdiction of criminal offense as
dependent on place where committed.

Cited in note in 44 A. S. R. 80, on place where crime is committed.
Questions of fact as matters for jury.

Cited in State v. Thornton, 49 La. Ann. 1007, 22 So. 315, holding question where
forgery actually occurred, if in disputation, one of fact for jury; State v. Kline,
J 09 La. 603, 33 So. 618, holding place of commission of larceny matter of fact
to be passed upon by jury upon evidence and under judge's charge; State v. Sulli-
van, 49 La. Ann. 197, 62 A. S. R. 644, 21 So. 688, holding questions of fact con-
nected with embezzlement outside knowledge of appellate court.
Effect of county divisions on jurisdiction.

Cited in note in 58 A. D. 693, on effect of county divisions on jurisdiction.

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58 AM. DEC. 682, NORTHERN BANK v. SQUIRES, 8 LA. ANN. 318.

State regulation of domestic commerce.

Cited in Master & Wardens v. The Martha J. Ward, 14 La. Ann. 287, holding
that state may regulate domestic commerce in regard to which Congress has not
deemed it expedient to make any regulations.
Cessio bonorum as bar to further action.

Cited in Spear v. Peabody, 10 La. Ann. 145, holding contract not discharged by
cessio bonorum under laws of country where contract not made or to be performed ;
Scott v. Bogart, 14 La. Ann. 258 (dissenting opinion), as to accepted cessio
bonorum in Louisiana being bar to suit on judgment rendered in another state.

Distinguished in August v. Brown, McGloin (La.) 261, holding cessio bonorum
under insolvent laws of Louisiana not a bar to suit by nonresident creditors in
state courts.
Arrest and imprisonment under insolvency laws.

Cited in Mayewski v. His Creditors, 40 La. Ann. 94, 4 So. 9, sustaining right to>
arrest and confine debtor in pursuance of provisions of insolvent law.
Bill of exchange as foreign or inland.

Cited in reference note in 85 A. D. 634, on when bill of exchange foreign and
when inland.

58 AM. DEC. 680, MYERS v. MYERS, 8 IiA. ANN. 360.
When crime is committed and punishable within state.

Cited in reference note in 65 A. D. 457, as to when crime is deemed to be com-
mitted and punishable within state.
What constitutes seizure or possession by sheriff.

Cited in Watkins v. Cawthon, 33 La. Ann. 1194, holding that sherifTs return
and keeper's receipt taken together establish actual seizure and taking possession ;
Wolf v. Taylor, 68 Tex. 660, 5 S. W. 855, holding sheriff not required to have
actual manual possession of attached property, but may entrust it to servant or
Right of action by foreign receiver or administrator.

Cited in McAlpin v. Jones, 10 La. Ann. 552, holding that foreign receiver may
reclaim property fraudulently or feloniously removed from jurisdiction of state
where appointed; Crawford v. Graves, 15 La. Ann. 243, holding thai foreign
administrator, duly qualified, may sue for property brought into this state be-
longing to succession which he administers.
When attachment lies against nonresident.

Cited in Gilbert v. Hollinger, 14 La. Ann. 445, holding that attachment will
not be maintained against nonresident after false allegation of citizenship in
Federal court proceeding which has been dismissed.
Extraterritorial jurisdiction of courts.

Cited in reference notes in 65 A. D. 457, on effect on county divisions on
mode of acquiring jurisdiction over nonresidents; 32 A. S. R. 841, on jurisdic-
tion of criminal offense as dependent on place where committed; 34 A. S. It.
252, on refusal to take jurisdiction of suit affecting land in other state.

Cited in notes in 62 A. D. 246, on actions in state courts against vessels;
67 A. D. 95, on power of court to compel party to exercise his control over
property or persons situated in another state; 76 A. D. 665, 666, on jurisdiction
of foreigners and their property.

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Extraterritorial effect of penal statute.

Cited in reference note in 32 A. S. R. 841, on extraterritorial effect of penal
Validity of levy effected by unlawful or fraudulent means.

Cited in reference note in 93 A. D. 466, on validity of levy affected by unlaw-
ful or fraudulent means.

58 AM. DEC. 605, STATE v. THURSTIN, 35 ME. 205.
Sufficiency of indictment or information.

Cited in State v. Eggleston, 45 Or. 346, 77 Pac. 738, holding information for
adutery sufficient when defendant charged with offense on certain day being
then and there a married man, though words "then and there" not reported be-
fore phrase "the husband of A"; State v. Kelly, 41 Or. 20, 68 Pac. 1, holding
information for assault with intent to kill sufficient when charging defendant
with assault on certain day being "then and there" armed with a dangerous
weapon; State v. Plummer, 50 Me. 217, holding indictment for perjury defective
where it does not appear with certainty that tribunal which administered oath
had jurisdiction of matter; State v. Fenlason, 79 Me. 117, 8 Atl. 459, holding
indictment for perjury insufficient when failing to set forth with precision some
particular day when offense committed: State v. Day, 74 Me. 220, holding in-
dictment for illegal voting bad when failing to designate day on which offense

Cited in reference notes in 61 A. D. 552, on necessity of indictment to allege
every material fact going to constitute offense charged; 65 A. D. 505, on neces-
sity that indictment state facts constituting offense; 66 A. D. 353, on necessity
that indictment state time with certainty; 71 A. D. 381, on taking nothing by
intendment in criminal pleading; 69 A. D. 354; 91 A. D. 397, — on necessity that
time and place be added to every material fact in indictment; 65 A. S. R. 251.
on sufficiency of information.

Distinguished in State v. Hutchinson, 36 Me. 261, holding indictment for
adultery sufficient if defendant alleged to be married man though status of
woman not fully shown.

58 AM. DEC. 607, MARSHALL v. MITCHELL, $5 ME. 221.
What amounts to waiver of demand and notice.

Cited in Torbert v. Montague, 38 Colo. 325, 87 Pac. 1145, holding presentment
for payment and notice of dishonor waived where indorsees acts and declara-
tions have induced holder to neglect these precautions.

Cited in reference notes in 63 A. D. 142, on indorsees promise to pay as waiver
of demand and notice: 74 A. D. 432, on what constitutes waiver of demand and
notice by indorser of bill or note; 63 A. D. 142; 77 A. D. 332; 82 A. D. 179, —
on waiver by indorser of demand and notice by taking security.

Cited in notes in 1 A. D. 99, on what will excuse demand and notice of non-
payment; 11 A. D. 67, on waiving notice by taking security.

Denied in Coghlan v. Dinsmore, 9 Bosw. 453, holding indorsees promise of pay-
ment given to maker not waiver of demand and notice by holder ignorant there-

Effect of waiver of demand and notice.

Cited in Pugh v. McCormick, 14 Wall. 361, 20 L. ed. 789, holding satis-

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factory proof of waiver equivalent to compliance with requirement for demand
and notice of protest.

58 AM. DEC. 699, WOODWARD v. ABORN, 35 ME. 271.
Liability for negligent Injury.

Cited in Knapp v. Sioux City & P. R. Co. 65 Iowa, 91, 54 A. R. 1, 21 N. W.
198, holding railroad company liable for injury to engineer resulting from
reversing lever to protect himself from its negligence; Hebert v. Lake Charles
Ice, Light & Waterworks Co. Ill La. 522, 100 A. S. R. 505, 64 L.R.A. 101, 35
Sc. 731, holding electric light company liable for death of person from contact
with telephone wire which had fallen over uninsulated light wire; Wells v.
Northeastern Teleph. Co. 101 Me. 371, 64 Atl. 648, holding telephone company
liable for fire resulting from lightning striking guy wire improperly attached to
barn; Stone v. Roscommon Lumber Co. 59 Mich. 24, 26 N. W. 216, holding
party liable for destruction of value of land by erection of dam, though annual
freshets slightly impede growth of hay thereon; Slyfield v. Penfold, 13 C. C. A.
512, 31 U. S. App. 317, 06 Fed. 362, holding owners of tug liable for injury to
another caused by its wrongful obstruction, though the elements and other
circumstances contributed.

Cited in notes in 50 A. R. 571, on negligence as proximate cause of injury:
36 A. S. R. 819, as to whether measure of liability differs in regard to unlawful
and negligent acts; 36 A. S. R. 822, on liability for injuries inflicted as deter-
mined by operations of normal physical laws; 18 E. R. C. 726, on duty to use
property so as not to injure others.
Right of riparian owner to purity of stream.

Cited in note in 10 E. R. C. 243, on right of riparian owner to purity of
Proximate and remote cause.

Cited in note in 42 A. R. 391, on proximate and remote cause.

58 AM. DEC. 700, MOOERS v. ALLEN, 35 ME. 276.
Submission to arbitration as discontinuance of suit.

Cited in Crooker v. Buck, 41 Me. 355, holding that common law submission
of controversy to referee operates as discontinuance of pending suit; Bates v.
Ward, 49 Me. 87, holding that submission of claim to commissioners of insolvency,
operates as discontinuance of suit pending therefor.

Cited in reference note in 66 A. D. 96, on effect of submission of pending
suit to arbitration.

Distinguished in Lary v. Goodnow, 48 N. H. 170; Hearne v. Brown, 67 Me.
156, — holding mere submission to arbitration not a discontinuance of pending
suit, where cause to be retained on docket until judgment entered on award;
Columbus, H. Valley & T. R. Co. v. Burke, 54 Ohio St. 98, 32 L.R.A. 329, 43
N. E. 282, holding submission to arbitration not a discontinuance where agree-
ment therefor recites that it should not impair obligor's liability.

58 AM. DEC. 702, SHAW v. BERRY, 35 ME. 270.

Rights and liabilities of co-administrators and co-executors.

Cited in Gilmore v. H. W. Baker Co. 12 Wash. 468, 41 Pac. 124, holding notice
to quit signed by one of several executors sufficient in law; Grant v. Carver, 75

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Me. 524, holding adjustment of claim by one of two administrators binding upon
estate; Gilman v. Healy, 55 Me. 120, holding that one of several executors may
give valid discharge of claims; Dyer v. Walls, 8$ Me. 143, 24 Atl. 801, holding
that creditor may sue executors who have qualified or a majority of them.

Cited in reference note in 82 A. S. R. 825, on authority of one of several
joint executors or administrators.
Release by one executor.

Cited in note in 14 A. D. 158, on release by one executor.
Common-law powers of executors.

Cited in notes in 78 A. S. R. 171, on common-law powers of executors; 45
A. 8. R. 665, on duty of creditors to prevent executor or administrator from re-
moving property out of state.
Release of witness's interest to qualify him to testify.

Cited in reference notes in 61 A. D. 229, on release of interest of witness to
qualify him to testify; 77 A. D. 295, on effect upon witness's competency of
release of his interest.

58 AM. DEC. 704, GILES v. VIGOREUX, 35 ME. 300.
Liability of owners and masters of vessels.

Cited in Holden v. French, 68 Me. 241, holding master of fishing vessel sailing
her on shares and in possession and control, liable for seamen's wages; Somes
v. White, 65 Me. 542, 20 A. R. 718, holding owners of vessel not liable for in-
jury caused by collision while in possession and control of master sailing her
on shares.

Cited in reference note in 56 A. S. R. 395, on liability for seamen's wages.

Cited in notes in 37 L.R.A. 59, on whose servants, crew of chartered vessel
are; 70 L.R.A. 381, on what contracts will support maritime lien on chartered
vessel for services of seamen.
When master is owner pro hac vice.

Cited in reference note in 99 A. D. 790, on when master is owner pro hac
Reason for and effect of registry of vessel.

Cited in reference note in 62 A. D. 320, on reason for and effect of registry
of vessel.

58 AM. DEC. 706, NEWBIT v. STATUCK, 35 ME. 315.
What will support plea of justification of slander.

Cited in Williams v. Gunnels, 66 Ga. 521, holding that to support plea of
justification for slander for words imputing crime same degree of evidence re-
quired as necessary to convict plaintiff of offense alleged; Ellis v. Buzzell, 60
Me. 209, 11 A. R. 204, holding that in action for slander for charging adultery
preponderance of testimony will support plea of justification.

Cited in reference note in 92 A. D. 410, on proof required of defendant plead-
ing justification in action for slander in charging perjury.

Cited in note in 91 A. S. R. 308, on degree or amount of proof of justification
for slander or libel required in civil cases.
Presumption as to damages in slander action.

Cited in Miles v. Harrington, 8 Kan. 425, holding that in action for slander
Am. Dec. Vol. VIII.— 50.

upon words actionable per se damages are presumed without proof of actual


Evidence in prosecution for perjury.

Cited in reference note in 11 A. S. R. 182, on evidence necessary to con-
viction of perjury.

Cited in note in 85 A. D. 499, on evidence in perjury.
Allowance of damages in slander and libel.

Cited in notes in 72 A. D. 428, on rules as to allowance of damages in slander
and libel; 72 A. D. 431, on actual loss and injury as element of damages in slan-
der or libel.

58 AM. DEC. 708, PALMER v. FOGG, 35 ME. 868.
Notary's certificate as evidence of official character.

Cited in Sargent v. Collins, 3 Nev. 200 (dissenting opinion), on sufficiency of
notary's certificate as evidence of his official character.
Parol evidence to control written instrument.

Cited in reference notes in 67 A. D. 80, on admissibility of prior oral negotia-
tions to control written contract; 68 A. D. 382, on admissibility of parol evi-
dence to control unambiguous instrument; 86 A. D. 760, on admissibility of
parol evidence to add to terms of written contract; 98 A. D. 441, on admissi-
bility of evidence of prior parol negotiations to vary terms of written contract.

Cited in note in 56 A. S. R. 668, on proof and practice as to variation of writ-
ing by subsequent parol agreement.

58 AM. DEC. 712, MACHIAS HOTEL CO. v. COYLE, 85 ME. 405.
Promise for benefit of third person.

Cited in note in 39 A. S. R. 533, on promise for benefit of third person.
Action on contract made for another's benefit.

Cited in reference notes in 77 A. D. 172, on right of third person to sue on con-
tract made for his benefit; 92 A. D. 349, on right of party for whose benefit
promise is made to maintain action thereon.

Cited in notes in 55 A. S. R. 917, on suits by undisclosed principals on con-
tracts made with agents; 25 L.R.A. 258, on doctrine of consideration as applied to
third person's right to sue on contract made for his benefit; 1 E. R. C. 700, on
right of action on contract made for benefit of third person.
Actions upon subscriptions.

Cited in reference notes in 79 A. D. 438, on binding effect of stock subscriptions,,
and actions thereon; 59 A. D. 714; 60 A. D. 313; 79 A. D. 510, — on actions upon
' subscriptions; 82 A. D. 121, on right of action for money subscribed.
Liability on stock subscriptions.

Cited in Carr v. Bartlett, 72 Me. 120, holding subscriber to stock in voluntary-
association liable thereon, where work done in reliance thereon, though associates
subsequently incorporate.
— Necessity for mutuality and compliance with agreement.

Cited in Wheeler v. Floral Mill & Min. Co. 9 Nev. 254, holding that in action tc*
recover subscriptions mutuality between parties must appear and compliance with

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— Where corporation differs from prospectus.

Cited in Marysville Electric Light & P. Co. v. Johnson, 109 Cal. 192, 50 A. S. R-
34, 41 Pac. 1016, holding subscriber to stock in lighting corporation not liable
on subscription where corporation formed includes additional function of furnish-
ing power; Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. 877, holding
subscriber not liable where corporation subsequently formed differed from that
represented in prospectus under which he subscribed.

58 AM. DEC. 714, EARL v. ROWS, 35 ME. 414.
Rents, Issues and profits as realty.

Cited in Re Davis, 103 Wis. 455, 79 N. W. 761, holding rents, issues and profits
of real estate treated as real estate.

Cited in reference note in 36 A. S. R. 112, on devise of profits of land as devise
of the land itself.
Rents, profits and Income as equivalent terms.

Cited in People ex rel. Farnum v. San Francisco Sav. Union, 72 Cal. 199, 13
Pac. 498, holding rents and profits of an estate, the income or net income thereof,
equivalent expressions.
What constitutes absolute gift.

Cited in Sampson v. Randall, 72 Me. 109, holding gift of perpetual income of
real estate gift of the fee; Dascomb v. Marston, 80 Me. 223, 13 Atl. 888, holding
legacy of specified sum "the income only to be expended annually" an absolute
What constitutes grant of life estate.

Cited in Sampson v. Randall, 72 Me. 109, holding gift of income of realty for
life gift of life estate in land; Bryan v. Howland, 98 111. 625, holding grant for
use by grantee during life in manner deemed best for support of himself and:
children an equitable estate for life in lands described; Stone v. North, 41 Me.
265, holding devise of use and income of lands and personalty during life vesta,
estate, real and personal, during life; Hopkins v. Keazer, 89 Me. 347, 36 Atl. 615,
holding bequest of net income of certain property for one's lifetime a devise o£
land itself for such period; Farmers' Nat. Bank v. Moran, 30 Minn. 165, 14 N„
W. 805, holding devise of land to trustees in trust to permit another to use and
occupy same for life vests legal estate in such other for life.
Partition by probate court.

Cited in reference notes in 76 A. D. 638, on limitation on power of probate
court to decree partition of decedent's realty; 80 A. D. 649, on jurisdiction of
probate court to partition decedent's realty; 41 A. S. R. 140, on partition by
probate court.

Cited in note in 41 A. S. R. 142, as to time when application may be made for
partition of decedent's estate.

Distinguished in Buckley v. Superior Court, 102 Cal. 6, 41 A. S. R. 135, 36 Pac
360, holding petition for probate court without jurisdiction to entertain partition
of decedent's estate after decree of distribution.

58 AM. DEC. 718, HARMON v. SAMON FALLS MFG. CO. 35 ME. 447.
Validity of rule releasing master from negligence.

Cited in reference note in 21 A. S. R. 738, on contracts waiving master's lia-
bility for negligence,

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Distinguished in Georgia P. R. Co. v. Dooley, 86 0a. 294, 12 L.R.A. 342, 12
S. E. 923, holding servant not bound by rule releasing master from liability for
negligence unless he has expressly agreed thereto.
Acceptance of risk under notice in invoice.

Cited in Reinstein v. Watts, 84 Me. 139, 24 Atl. 719, holding bailee's reception
of merchandise under invoice declaring goods to be at bailee's risk against loss
until returned constitutes acceptance of such risk.
Recovery of compensation for part performance of contract.

Cited in reference notes in 65 A. D. 606, on apportionment of contracts; 74
A. D. 136, on servant's right to compensation in case of nonperformance of
special contract; 98 A. D. 567, on recovery for services rendered under incom-
pleted special contract.

Cited in note in 62 A. D. 55, on necessity to recovery of strictly performing
conditions precedent.
Measure of recovery for part performance of special contract.

Cited in reference note in 62 A. D. 478, on measure of recovery in case of
part performance of special building contract.
Excuse for quitting service by employee.

Cited in reference note in 69 A. D. 79, on sickness as excuse for quitting service
by employee.

58 AM. DEC. 727, STATE v. REED, 35 ME. 489.

Use of Arabic numerals and abbreviations in criminal complaints.

Cited in State v. McPherson, 114 Iowa, 492, 87 N. W. 421, holding indictment

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Discharge by one of two executors or administrators.

Cited in People ex rel. Eagle v. Keyser, 17 Abb. Pr. 214, holding that one of
two executors or administrators may receive payment and discharge obligation
taken to themselves jointly.
Iiien created by taxes.

Cited in Mutual Ben. L. Ins. Co. v. Siefken, 1 Neb. (Unof.) 860, 96 N. W.
603, holding tax lien superior to all others.

Cited in reference notes in 65 A. D. 452, on lien of taxes upon estate; 76 A.
D. 362, on tax lien.
Mortgagee's rights In case of Illegal taxation.

Cited in Stetson v. Day, 51 Me. 434, holding that notice of illegality of taxes
should be given to mortgagee, and he indemnified against loss in case payment
Duty of mortgagor to discharge taxes.

Cited in Stetson v. Day, 51 Me. 434, holding it the duty of mortgagor, and
those holding under him, to discharge taxes assessed while premises withheld
from mortgagee.

Mortgagee's right to add taxes to debt secured.

Cited in Southard v. Dorrington, 10 Neb. 119, 4 N. W. 935, holding that mort-
gagee may pay taxes to protect security and add same to mortgage debt; Skilton
v. Roberts, 129 Mass. 306, holding that party buying up tax title for protection
may add sum paid to mortgage and apply proceeds of sale thereunder to pay-
ment of both.

Distinguished in Richardson v. Campbell, 27 Neb. 644, 11 L.R.A. 189, 43 N.
W. 405, denying mortgagee's right to add amount of taxes paid to mortgage
debt, when not appearing necessary to protect security.
Amount payable to redeem.

Cited in reference note in 71 A. D. 715, on amount which must be paid to
Purchase by mortgagee at tax sale.

Cited in reference note in 59 A. S. R. 152, on purchase by mortgagee at tax
Right to strict foreclosure of mortgage.

Cited in note in 20 L.R.A. 374, in what states right to strict foreclosure of
mortgage is in force.

58 AM. DEC. 734, GAY v. WALKER, 36 ME. 54.
Reservations, exceptions and conditions in deed.

Cited in S. E. & H. L. Shepherd Co. v. Shibles, 100 Me. 314, 61 Atl. 700, hold-
ing clause in deed reserving right to take limerock from premises granted re-
garded as a reservation; State v. Wilson, 42 Me. 9, holding that reservation of
long used way to public use should be regarded as an exception; Pavkovich v.
Southern P. R. Co. 150 Cal. 39, 87 Pac. 1097, holding conveyance with condi-
tion that stone taken from land shall be for railroad purposes only qualifies
estate granted to that extent.

Cited in reference notes in 85 A. D. 452, on validity of reservation in deed
repugnant to estate granted; 18 A. S. R. 409, on reservations in deeds.

Cited in notes in 111 A. S. R. 776, on repugnancy between clauses in reserva-
tions, exceptions and conditions and granting clause in deed; 20 L.R.A. 632, on

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creation oi easement oy reservation; zv iajcua. do*, on reservation 01 awmeiii
in favor of stranger ; 22 L.R.A. 541, on express grant or reservation of easements
of light, air, and prospect.
When reservation deemed made to grantor.

Cited in Wall v. Wall, 126 N. C. 405, 35 S. E. 811, holding reservation will
be considered as made to grantor when valuable rights secured to him, though
others benefited thereby.
Covenants restricting or regulating use of land.

Cited in reference note in 71 A. D. 721, on covenants restricting or regulating
use of land.

Cited in note in 95 A. S. R. 219, on validity of restrictions on flow of light
and air.

58 AM. DEC. 736, McLELLAN v. COX, 36 ME. 95.
Relations inter se of part owners of vessels.

Cited in reference notes in 63 A. D. 214; 71 A. D. 572, — on part owners of
vessel as tenants in common.

Cited in notes in 88 A. D. 366, on relation of part owners of vessels to each
other; 90 A. S. R. 358, on relation inter se of part owners of vessels; 90 A. S.
R. 360-361, on partnership between part owners of vessel; 24 E. R. C. 224, on
part owners of vessel as partners.
Power of ship master to pledge owner's credit.

Cited in reference notes in 62 A. D. 320, on liability of vessel owner for sup-

Online LibraryAbraham Clark Freeman John ProffattThe American decisions: cases of general value and authority ..., Volume 58 → online text (page 114 of 116)