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.the promise and theory that evidence will be introduced
making it material ; if such evidence is not introduced
it la the duty of the court upon request to exclude such
testimony from the consideration of the Jury. — Martin
V. WUHame, 8. 0. Kan., Nov. 10, 1888; 19 Pac. Rep. 551.

167. Praotiob— Trial— Instructions. The instruc-

•tions given should be applicable to the Issues and facts
{presented by the evidence.— WeeUm H. I, Co. v. Throp,
49. O. Kan., Nov. 10, 1888; 19 Pac. Rep. 681.

168. PRAOTIOB— Trial— Reception of Evidence. In

an action against a railroad for causing the death of A,
after plaintiff has shown that A's death was not caused
l>y his own negligence, and the defendant has confined
itself to proving that it was not negligent, the plaintiff
can introduce evidence to rebut defendant's evidence
as to its negligence.— CefUrof R,R,fB. Co. v, Naeh, 8. 0.
^a., Oct. 17, 1888; 7 8. E. Rep. 808.

160. Prohibition- Writ of— Remedy at Law. ^That

a district court has overruled an objection to its Juris -
•diction and is about to adjudicate the cause on its mer-
its, will not authorize a writ of prohibition. — People v.
JHttrict Court, 8. 0. Oolo., Oct. 81, 1888; 19 Pac. Rep. 641.

170. PRIKOIPAL AND AGENT — Notice to Agent. A

company which employes an agent to sell machinery,
stipulating that the notes taken in payment shall be
made payable to the company and guaranteed by the
agent, is chargeable in an action against the maker
with the agent's knowledge in taking a note to it,
:though not given in payment of a msichlne.— Johnston H,
Co, V, MiUer, 8. 0. Mich., Nov. 1, 1888; 40 N. W. Rep. 429.

171. POBLio Lands- Inclosing — Indictment. '■ An

indictment for unlawfully inclosing a portion of the
public lands must show that the defendant is not within
any of the exceptions permitting such inciosure. —
Umiied Staiea v. Felderward, U. 8. O. O. (Oreg.), Oct. 29,

1888; 86 Fed. Rep. 490.

172. Railroads- Contracts — Regulating Rates.

Its charter gave a railroad the exclusive right of trans-
portation of persons and property over its road, pro-
tdded that the charge of transportation or conveyance

should not exceed certain rates: J7«ki, that the com-
pany was subject to subsequent legislation establishing
a commission to regulate tariffs.— OeorgialE, f B, Co, 9.
SmUh, U. 8. 8. O., Oct. 29, 1888; 9 8. 0. Rep. 47.

178. Railroads- Crossing- Negligence. A party

approaching a railroad crossing is not bound to look
and listen for the approach of a train, when the train
has Just passed, while the deceased was in a few rods of
the crossing and was driving upon a trot, and such train
has passed out of his sight in such manner as to induce
the belief that it would not immediately return. —
Vunatne v, Chicago, etc, R, B,, 8. 0. Wis., Nov. 8, 1888; 40
N. W. Rep. 894.

174. Railroads— Leases — Liabilities. A railroad

company cannot lease its road to another so as to
absolve Itself from its duties to the public. — Eatt Line
<f B, B, B, V. Lee, 8. C. Tex., Oct. 23, 1888; 9 8. W. Rep. 606.

176. RBOBIVBRB — Actlon by Stockholders — Jurlsdio- "*

tion. Where stockholders of a corporation sue

former directors for losses to the corporation caused
by their acts, and the 8tate court which appointed a
receiver for the corporation refuses leave to make him
a party defendant, the Jurisdiction of the federal court
faUs.— PoW«r V, SaMn, V, 8. C. 0. (Minn.), Oct. 27, 1888; 86
Fed. Rep. 476.

176. RBUQions 800IXTT — Real Estate — Trust.

When real estate is purchased by an unincorporated
church organization and occupied and improved by it,
and the deed Is made to one person for the benefit of
the organiEatlon, a trust is created, which may be en-
forced, although not in writing, though such person is
a bishop of the denomination of which the church is a
a part. — Fink v. Uwucheid, 8. C. Kan., Nov. 10, 1888; 19
Pac. Rep. 623.

177. Rbmoval of Causbs- Local Prejudice. Act

Congress 1887, relative to the renewal of causes for local
prejudice, repeals by implication the act of 1867 on the
same subject. 8uch application must be made to the
federal court and be supported by sufficient proof to
satisfy the court of the truth of such allegations. —
Southworthv,Beid,V,S.C. C. (Wis.), 1888; 36 Fed. Rep.

178. 8ALB— Rescission— Latent Defect. One who

purchases by sample a chattel intended for a particular
purpose, known to the seller, may even after accept-
ance rescind the sale on discovering a latent defect. —
Mudtonv, Booe, 8. C. Mich., Nov. 1, 1888; 40 N. W. Rep. 467.

179. SBAMBN—Dlscharge— Fishing Vessel. ^A master

and crew wrongfully discharged by the owner of a fish-
ing vessel from employment under a contract for the
entire season, wages to be in the ratio of the quantity
of fish caught, may recover damages, baaed upon the
amount they would have received as wages on the
catch of the whole season, less the amount paid them,
and any wages earned during the season after their
discharge.- F«e v. Orient F, Co., U. 8. D. C. (N. Y.), 8ept.
24, 1888; 36 Fed. Rep. 609.

180. 8BAMAN— Discharge— Waiver. Where a sea-
man has been wrongfully discharged, and on the same
day the master offers to take him back and carry him
on the return voyage, a refusal to accept such offer is a
waiver of all damages which might be recovered for
the wrongful discharge.— Dory v. The Caroline Muter, U.
8. D. C. (Ala.), Oct. 16, 1888; 36 Fed. Rep. 507.

181. Shipping— Charter Party — Performance. Un-
der the evidence in this case the shippers were held to
have compiled with their guarantee in a reasonable
time, and were not liable for damages. — CuUi/ord v,
Vinet, U. 8. 8. C, Oct. 29, 1888; 9 8. C. Rep. 60.

182. Shbrifi*- Receiptor— Liability. Where a sheriff

delivers property, which he has attached, to a bailee,
taking a receipt therefor from him, such bailee will not
be permitted to question the Judgment obtalued in the
action, in which the property was so attached.— ^oleomd
V. Nelson L. Co., 8. C. Minn., Nov. 9, 18S8; 40 N. W. Rep.

183. Spboutio Pbrformanob— Contracts — Certainty

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No. »

A oontraot, whereby a vendee ot land agrees to

lay out a town, and reconvey a block to the vendor,
Including the land on which hia hoose stands, of the
avemge stse of the other blocks, not to exceed a certain
nnmber of feet square, is too indeOnite to be enforced,
and the continuance of the vendor In possession is not
such part performance as cures the defect. — BoUembeek
V. J*Hor, 8. O. Dak., Oct. 1, 1888; 40 N. W. Bep. 847.

184. 8PBCurio Perfohmanob— Purchase of LAnd.

An agreement by the vendee of land in another State to
give his note for the purchase price, and secure it by
mortgage on the land, may be enforced in equity. —
Bick$ V. 'iurc*, 8. 0. Mich., Nov. 1, 18»; 40 N. W. Eep. 889.

185. 8TATUTK8 — Amendment. An act, amending

another act, which provides that section 17 of said act
is hereby amended so as to read as follows, then setting
out the whole section as amended, does not violate the
constitution of Missouri.— J/orHfon v, 8t. LauU, etc. R, B.,
8. O. Mo., Nov. 12, 1888; 9 8. W. Bep. 626.

186. Statutes— Bx Post Facto— Bribery. Penal Code

N. Y. S 72, Increasing the penalty for bribery, is void as
to such oflehses committed in New York city before it
took effect, but valid as to such offenses arising after
Apt 11 1, 183S.~Jachue v. People, U. 8. 8. C, Nov. 12, 1888; 9
8. O. Bep. 70.

187. STATOTBS-Titles— Public Buildings. Act Mich.

1883, aa aiueuded in 1885, requiring contractors on public
bulldiugs to give bond to pay their laborers, is cunsti-
tutioually enacted as to title.— /><ttffMier «. Kemnadp, 8. 0.
Mich., Nov. 1. 18b8; 40 N. W. Bep. 488.

188. Taxation— Personal Tax— Sale of Bealty. The

Colorado Uw, authorising the sale of lands for taxes on
personality, is not contrary to public policy nor to the
constitution.- XoHmer Co, v. National 8, Bank, 8. 0. Colo.,
Out. 26, 1888; 19 PaC Hep. 687.

189. Taxation- Betrospective Law. A sale under

Michigan law of 1885, for taxes of previous years is void,
nor can the act of 1887 validate such sales previously
made. — BaU 9. Perry, 8. C. Mich., Nov. 1, 1888; 40 N. W.
Bep. 8-24.

190. Taxation— Sale— Statutes. ^A sale made under

the Michigan tax law of 1886, for delinquent taxes as-
8e;«sed under the law of 1882, is void. — McNaughton 9.
Martin, 8. 0. Mich., Nov. 1, 1888; 40 N. W. Bep. 826.

191. TELBORAMS—Deiay-Damages— Party. In an

action against a telegraph company for failing to de-
liver a message sent to plaintiff's family physician,
calling him to attend plaintiffs wife in her confinement,
injury to the wife's feelings is an element of actual
damages. The husband is a proper party to bring the
suit for such injuries to his wife, and s<>e is not a neces
•ary party.— WetUm U, T. Co. v. Cooper, 8. C. Tex., Oct.
28, 1888; 9 8. W. Bep. 698.

193. ToWAQB— Negligence— Hoisting Sale on Tow.

A schooner, lashed on the side of the tug, hoisted her
foresail which ob- cured the view of the pilot of the tug.
Subsequently the schooner struck on a reef: Beid, that
the schooner and the tug were both in fault, and the
damages should be divided. — The W, A, Levering, U. 8.
D. C. (N. Y.), Oct. 22, 1888; 86 Fed. Bep. 611.

193. TOWNS— Special Legislation. The provision

In the act, allowing towns to exercise the powers con-
ferred on villages, making it applicable to towns con-
taining villages of a certain population, is not uncon-
stitutional.— Lamd L. f L. Co, v. Brown, 8. 0. Wls.f Nov.
8, 1888; 40 N. W. Bep. 482.

194. Tradb-ilabk — Infringement. A marked his

plug tobacco with a tin star. B maked his tobacco,
which differed in size and weight, with a round piece of
gilded paper, and there were other differences. There
was no evidence of actual deception : Btid, that B did
not infringe A's trade-mark. — Liggett ^ M. T, Co, 9.
Fkum', U. 8. 8. C, Nov. 6, 1888; 98. 0. Bep. 60.

196. TBB8PA88— Cutting Timber — Personal Bepresen-

tatlons. In an action against the administrator of

one who had cut and removed logs from plaintiff's
land, only the value of such logs on the stump can be

recovered, under Wlsoon^ln law. - Cottor 9, Phtmtr, 8. C
Wis., Nov. 8, 1888 ; 40 N. W. Bep. 879.

196. TBB8PA88— CnttlDg Tlmbei^-Tax-dced. A tax-
title claimant, who never acquired the actual posses-
sion of land cannot recover the penalty of Bev. St. Wis.
(4268, where defendant, the former owner, had na
notice when he took the timber, of the recording of the
tax deed. — FtemSmg v. Sherry, 8. C. WU., Nov. 8, 1888; 40
N. W. Bep. 376.« 8W o^"

197. TRB8PA8S-*InJury— Gaming Materials. Defend-

uit fastened a wire to piaintlfTs housa to secure a tele-
graph pole, which caused a part of the wall to fall, and
a heavy rain flooded his carpets and gaming tables and
Implements: Beld, there being no proof that at that
time the property was being used for illegal purposes
that the plaintiff was entitled to his damages.— <7u//, etc.
B,B,v. Johnson, 8. C. Tex., Oct. 80, 1888; 9 8. W. Bep. 60l»

196. Trovbr and CONVBBSION— Certificates of Deposit
-Damages. In an action for the conversion of cer-
tificates of deposit, evidence is admissible, that at the
time of the alleged conversion payment had been de-
manded and refused, tending to show their deprecia-
tion in value. — Firet N, Baink v, Dickeon, 8. C. Dak., Oct.
1,1888; 40 N.W. Bep. 851.

199. Usury- National Bank— Jurisdiction. A suit,

under United States law against a national bank for
knowingly taking usury, may be brought in a State
court. — Schuyler N. Btmk v, BoUong, 8. C. Neb., Nov. 81,.
1888; 40 N.W. Bep. 418.

200. Vbndor and Ybndbb — Fraud — Damages.

Where one contracts to convey realty, knowing that he
hasno title and cannot perform his part, the damages
may be measured by the rule of compensation for the
injury suffered, and may include reimbursement for im-
provements put upon the estate.— ^rjcjfctoa v, Bennett, 8»
C. Minn., Nov. 7, 1888; 40 N. W. Bep. 167.

201. WAT8—Stakes— Trespass. A party, having a

right of way over the land of another, has a right to
drive stakes along the line thereof to define its limits,
if be does no unnecessary damage thereby. — Joyce «»
ConUn, 8. C. Wis., Nov. 8, 1888; 40 N. W. Bep. 212.

90S. Widow- Allowance — Widow's Allowance — Ap-
peal. The order of a probate court refusing to re-
view the former order relative to the widow's allowance
of a year's support Is a final adjudication, unless an ap-
peal is taken from such order.— Moore v, Moor^e Admr.,,
8. C. Ohio, Nov. 18, 1888; 18 N. B. Bep. 489.

206. Widow— Belease— Fraud— Mistake. Where a

widow releases to an executor, either by his fraud or
her mistake, all her interest in the estate for a consid-
eration less than half her interest in the personalty,,
such release will not preclude her from demanding her
full share of the property of the estate.— AppcU of Cmn-
ntnyham, 8. C. Penn., Oct. 22, 1888; 16 Alt. Bep. 868. ^ <sri(8

204. Will— ConstrUw«»un. A will, by which the tes-
tator devises his house and lot, and "all the rest and
residue" of his estate, to his wife, '*to have and to hold
for and during the term of her natural life," gives her
only a life estate, though testator died childless, and
the wife is spoken of elsewhere in the will as tbe resid-
uary legatee. — Mixter v. Woodcock, 8. J. C. Mass., Nov.
27, 1888 ; 18 N. B. Bep. 673.

206. Will— Construction— Curtesy. Where by the

terms of a will a life estate was given to tbe husband ol
the testatrix, and upon his death a certain portion was-
te be given to E. The husband survived B: Beld, that
husband of B took no estate by tbe curtesy.— Webeterv.
SUeworth, 8. J. C. Mass., Nov. 26, 1888; 18 N. B. Bep. 609.

206. Wills— Construction — Devisees. A devised

land to his five grandsons and to the survivor, and If
they died without heirs of their own bodies to their
sisters, and each should receive his part when he be-
came 26 years old: Beld, thtit the devise to the sistere
failed on the arrival of tbe grandsons at the age of 26-
and the division among them.— Fielde «. Whlt^^Uld, 6. 0.^
^. Oar., Nov. 18, 1868; 7 8. B. Bep. 780.

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Vol. 28.



207. WILL— Oonstmctloii— Fee -simple— SheUey'B Oase.
A devise of land to *'J amd to his heirs daring his nat-
ural life, and to him and to his heirs forever after his
•decease," vests J with the fee-simple under the ''rule
1n*.8helle3r's case. — Henderson v, WaUhom, S. 0. Penn.,
Oct. », 1888; 16 Atl. Bep. 898.

906. Will— Oonstmction— Uncertainty. Where a

testator devises land to a township which is both a
•civil and school township and directs the proceeds of
the land to be devoted to the sapi>ort of schools his in-
tention to devise to the school township is clear, and
the devise cannot be held void for uncertainty. — SMn-
ner v, MarrUon, 8. 0. Ind., Nov. U, 1888; 18 N. E. Bep. 629.

a09. Wills— Contract to Make— Part Performance.

Where by parol agreement a husband and wife bind
themselves to make a particular disposition of their
real estate by will, and such contract is fully performed
by the husband and benefits received and accepted by
the wife, equity will prevent the wife from violating her
part of the contract in fraud of parties ioterpsted.— Car-
mUchaelv, Carmichael, 8. 0. Mich., Oct. 26, 1888; 40 N. W.
Bep. 173.

210. Wills— Estate Devised — Charges. Though

the testator charged his wife with the raising and edu-
•cation of his children, yet the estate conveyed was held
to be a fee- simple. — Mowze v. Barber, 8. C. 8. Car., Oct.
^,18b8;7S. E. Bep. 817.

2U. Will— Probate— Estoppel. ▲ widow is not es-
topped to elect to take under the law rather than under
her husband's will by causing the will to be probated
and becoming the executrix thereof. — /n re OivMs Bs-
UUy 8. C. Cal., Nov. 1, 1888; 19 Pao. Bep. 627.

212. WITNB88— Cross -examination. Befusal to al-
low defendant to cross-examine plaintiff, to show that
the note sued on is without consideration, it is not
•error, where the plaintiff has given no testimony on the
point in chief.— JN-ody v. Henry, 8. C. Cal., Nov. 2, 1888; 19
Pac. Bep. 629.

213. WITNB88— Fees. No fees can be taxed for the

previous attendance of a witness, regularly summoned,
who was not present on the day of the trial owing to
the sickness of his wife.— i>avi« v. IfiUt, 8. C. Tenn., Jan.
18,1888;9 8. W. Bep.691.

214. WITNESS— Impeachment— Declarations. Where

A witness has been interrogated relative to certain
^atements contradictory of his testimony, evidence of
such statements is admissibl*), though made after the
-occurrence which is the subject-matter of the suit. —

Wtieh V. Ahbatt, 8. C. Wis., Nov. 8, 1888; 40 N. W. Bep. 223.

215. WiTHBSs— Party— Cross-examination. A de-
fendant in a criminal case sworn as a witness on his
own behalf may on cross-examination be asked if he
has been convicted of crime.— 5fa<« v. CwtU, 8. C. Minn.,
Nov. 12, 1888; 40 N. W. Bep. 263.

216. Witness— Privilege. Where an employee tes-
tifies for the 8tate in the trial of his employer for selling
intoxicating liquors, witbout any promise, expressed
or implied, of immunity, he is not protected from pros-
ecution for the same offense.— Coi»iiioftu;eattA «. Plummer,
«, J. 0. Mass., Nov. 26, 1888 ; 18 N. E. Bep. 667.

217. Wmt— Process— Witness— Privilege. A party

who attends an application for an injunction in a case
in which he is interested is privileged as a witness from
the service of process while going tt> and returning from
the place of hearing. — Andrews v, Lembeck, 8. C. Ohio,
Oct. 16, 1888; 18 N. B. Bep. 483.

218. WRirs-Betum— Presumption. In the absence

of proof to the contrary, the presumption of diligence
•obtains in favor of an officer charged with the service
ot process, and his return of not found must bere-
jrarded as sufficient. — Uvmr v. 8taU, Tex. Ct. App., Oct.
10» 1888; 9 8. W. Bep. 662.

219. Writ— Secular Newspaper— Publication— Statute.
—^—Construction of Illinois statutes relative to notice
t>y publication of legal process in a secular newspaper.
PubtteaUon tn a Journal partly devoted to legral Infor-
mation and partly to general news : Held, to be suf-

ficient notice under the statute.— iZoUton p, Ltmder, 8. 0.
lU., Nov. 16, 1888; 18 N. E. Bep. 665.

220. Writs— Service— Bamsey County. The gen-
eral laws on the subject of service of summons took
effect in Bamsey county on repeal of section 2, ch. 186,
Sp. Laws 1877.— IfUter v. MUlm; 8. C. Minn., Nov. 12, 1888;
40N. W.Bep. 261.


[Oorre^^andeiUs are requested to drtmc up tkeir answers im
the form in which we print them, and not in the form of tetters
totheeditor. They are also mdmonished to nuUee their answers
as bri^as may 6e.— iPd.]

Query No. 1.

A mortgages to B, with power of sale, by deed of
warranty, either at public or private sale on default
made. A dies after default, B asslfcos mortgage to C,
who conveys to D with covenants of warranty boiia
fide, and for a valuable consideration. The heirs of A
file bill to redeem on the ground that it was a naked
power, unaccompanied with an interest. The power
is not recited in the deed from to D. Will the bill
lie? Is it not a power coupled with an interest, and
therefore, not necessary to be recited? The bill is
brought by a non-resident to make the other heirs de-
fendants. Motion to dismiss is made because plaint«
iff failed to give bond, but before it is acted on a sec-
ond heir, on his motion, is made a party plaintiff.
Cause is dismissed as to first party, and proceeds in
name of second heir. When this is done the seven
years' adverse possession has elapsed. Is the cause
barred by the statute of limitations? Was not this in
reality the bringing of a new suit, or did it refer back
to bringing of original suit, which was in apt time?


Query No. 2.
Has a divorced wife a legal right to continue the use
of her late husband's name. Cite authorities. X.

Query No. 8.
H obtained a Judgment in May, 1872, against V, in
the Justice's court. On June 1, 1872, a transcript of
the Judgment was recorded In the county recorder's
office, and under the statute became a lien on all the
real estate owned by Y, which lien continues for two
years. In July, 1872, H commenced an action in the
district court against Y on the Justice's Judgment, and
in August, 1872, obuined another, or second Judg-
ment, which was docketed, and the lien thereof, under
the statutes, continues for two years. Execution was
Issued on the district court Judgment, the land sold
and sheriff's deed executed. AH this was done within
two years from June 1, 1872. But Y had, on June 15,
1872, duly executed a deed for the land to C, which
deed was then recorded. We have no statutory pro-
visions providing for the merger of the lien of the first
in the second Judgment, and no writ of scire facias.
Did the lien of the second Judgment relate bacic to the
1st of June, 1872, or was there any merger so as to give
it that effect? In short, which of the two grantees own
the land? Please give authorities. Lex.

Digitized by




No. 2


Reports op Cases Adjudged and Determined In the
Court of Chancery of the State of New York.
Book n[., Copiously Annotated by Robert Desty.
Rochester, New York: The Lawyer's Co-Oper-
ative Publishing Company, Law Publishers. 1888.

We do not consider it necessary to say much of this
volume of Reports, as the profession, and particularly
equity practitioners, will readily understand its great
yalue upon being informed that tt is substantially
volumes 3, 4, 5 and 6, of Paige's Chancery Reports,
supplemented by very able and profuse notes ap-
pended to each case, piepared by Robert Desty, Esq.,
whose ability in that direction is unquestioned.

Digest of Insurance Cases, Embracing the Decis-
ions of the Supreme and Circuit Courts of the
United States, of the Supreme and Appellate
Courts of the Various States and Foreign Countries
upon Disputed Points in Fire, Life, Marine, Acci-
dent and Assessment Insurance, and Affecting,
Fraternal and Benefit Orders, and Containing also
a Reference to Annotated Insurance Cases in Ed-
itorials in Law Journals, for the Year Ending
October 81, 1888, by John A. Finch, of the Indian-
apolis Bar. Indianapolis: The Rough Notes
Company, Publishers. 1888.

Beyond the statement of its title page, little can or
need be said, by way of review, of a digest, for to de-
termine its accuracy and scope, upon which its value
chiefly depends, more than cursory examination is
necessary. But it seems to us that a digest like this
would be of great value, not only to lawyers whose
practice is chiefly, or at all. In the line of insurance,
but also to those outside the profession whose busi-
ness and interest lies in that direction. As to its mat-
ter we can only say that It seems to be well and care-
fully prepared.


A London attorney recently tendered a bill in
which the last item was thus stated: **To dining with
you after the case was lost."

A Suggestion to our legislature in the way of a
new cause for divorce.-— "Boss," inquired a darkey
yesterday of a lawyer in the city court room, "kin I
git a divorce here?"

"I don't know," replied the lawyer. "Has your wife
been untrue to you?"

"Deed she has, boss."

"Well, what did she do?"

"Well, sah, me an' her married in February, an' in
less'n a month I was Jes bleeged to quit her."

"What was the matter?"

"She jes wouldn't s'port me, dat's w'ats de matter.
I wants a divorce."

A WARD statesman, whose testimony was needed in
an election fraud case, was put on the witness stand.
"Raise your right hand," said the court; "do you
solemnly swear to tell the truth, the whole truth, and

nothing but the truth, so " *'Hold up, judge,"

Interrupted the witness, "can't you mitigate that sen-
tence just a little? You know I've been in politice for
a good long while."

Visitor: "What is the matter with that man?"
Superintendent: "Softening of the brain, ^e be-

"He did not say he would give you 10

lieve; can't tell. He appears to be as wise as any one^
but his personal history shows that his memory is lia-

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