Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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896 INDEX.

MUNICIPAL CORPORATION ^Om^nuAf.
denoe ooald not hare aDtidpated, the town is not liable. WUmn ▼. Tmm
of Oranb^ (Conn.), 51.

•• town ram.] A town canying on a farm for the support of its poor it

liable for an injarj inflicted on a dtiien bv a ram owned hj the town and
kept on the farm for the propagation of eheep, bat negligentlj aoffered
to ran at large. MouUon v. Scarborough (Me.), 806.

9. — « forfiioe-water.] If a municipal corporation, in filling up a street,
unnecessarily and negligently turns water which formerly flowed thiongh
the gutters, upon the adjoining lots, it is liable to the lot-owners for the
injury. Smith v. City Council of Alexandria (Qratt.), 788.

10. Ordinanco against dramming for ph3ndoians.] A dty ordinance pnr
hibited *' drumming" or soliciting patronage for hotels, boarding-honaes,
bath-houses, physicians, quacks, and vendors of nostrums. HM, void ae
to competent physicians ; and so, U $eem$, as to hotels, boarding-houses,
and iMkth-houses. Tliomas v. City of Hot springs (Ark.), 24

11. Power to regulate and Ucense — tascation.] Authority in a monidpsl
corporation to regulate and license the business of peddling does not war-
rant a tax upon such business, espedally when it discrimlnatae sgainsc
non-residents. MUhlenbrinek v. Commiitionert (Vroom), 518i

Ses Offickb, 600.

MURDER.
See Criminal Law. 178.

NATIONAL BANK.

1. Responsibility lor speoial deposit] A National bank is liable for a special

deposit, received by its teller on behalf of the bank, in accordance with
its usage, for gratuitous safe-keeping, and lost through its gross negli-
gence. Pattison v. Syrcieuse National Bank (N. Y.), 582.

2. Taxation — license.] A city has no power to exact a license fee from a

National bank. City of Carthage v. Firet National Bank of Garthagt
(Mo.), 494.

3. Usory, effeot ol^ on contract.] A guaranty of negotiable paper discounted

by a National bank is not rendered void by the fact that the bank do-
manded and received usurious interest upon the notes. Laaear v. Ifa-
tionaX Union Bank of Baltimore (Md.), 855.

4. Remedy for.] No one can recover usurious interest paid to a National bank

but the party who paid it, and it cannot be set oft or recoaped by another
party to the paper. Id,

6. Power to purchase notes.] National banks have no power to pwckase
negotiable paper except from surplus capital. Id,

See Specific Pbrformamcb, 675.



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INDEX. 897

NECESSARIES.
See Marriage, 86.

NEGLIGENCE.

L Malpraotiott.] The measure of skill which a physician is boand to exer-
cise is not affected by his ref asal of the proffer of assistance from other
physicians. Potter v. Witmer (Penn.). 668.

A, Contributory na^^igenoe,] If a patient contributes to present sufferings
and permanent injury, attributed to malpractice of a physician, by disre-
gard of his instructions, either personally or by those in charge of the
patient, there can be no recovery in damages. Id,

8. railrcMMl crossing -* <* lesve.'^ The plaintiffs intestote was engaged

in peddling kindling wood, with a horse and wagon, in a city street,
near a railroad crossing. The rails were laid without any planking
or filling. While the intestate was very near the team soliciting a
customer, an approaching train frightened the horse, and it ran
partly across the track, but owing to the absence of planking or filling,
the wheels of the wagon were prevented from crossing. The in-
testate instantly started in pursuit on the horse's running, and caught
the horse on the track, and while there endeavoring to get it off the track,
he was struck by the train and killed. The horse had not been tied, and
the intestate was not holding him. There was a city ordinance forbid,
ding any man to leave his horse in the street unless securely tied. The
train was running at a rate forbidden by a city ordinance. Held, that a
verdict in favor of the plaintiff should be sustained. Wasmer v. Delaware,
Lackawanna and Weeieni RaUroad Company (N. Y.), 608.

4. Ruinous buildings — traveUer on street — trespasser.] A foot passenger
on a city street sat for a moment on the door-sill of a house fronting on
the street, to tie his shoe, and there was injured by a brick falling from
the dilapidated wall of the house, upon his head, which was within the
street lines. Held, that the owner of the house was liable. Murray v.
McShane (yL&.\ 367.

ft. Street crossing — flagman — efvidence.] In an action against a railway
company for an injury by collision at a street crossing in a city, it being
proved that the whistle was not sounded nor the bell rung, evidence is
competent to show an ordinance prohibiting such signals. Pennsylvania
Company v. ffensU (Ind.), 188.

d. Oity ordinance.] An ordinance requiring a railway company to keep a
watchman at a street crossing, the omission so to do is not negligent un-
less it is the proximate cause of an injury. Id.

See Carrier, 675 ; Damages, 454, 662 ; Ferrt, 501 ; Master and Servant,
243. 320, 336, 352, 404, 459, 535, 575 ; Municipal Corporation, 51, 166, 238,
308, 788; Negotiable Instrument, 162; Nuisance, 508; Trespass,
788.

Vol. XXX VI — 118



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INDEX.

NEGOTIABLE INSTRUMENT.
1. Aoottptanoe — tetograin.] A telegram in the wordi, "71m majdnw an ■»•
for $700/' is not an acceptance, but it is an authority to draw at siglity mad
impli«Mi a promise to accept and pay. FraMkUn Bank of Baltimore ▼.
Lynch (Md.),d75.

fl. Aooommodation noU — tramte*— liability.] The maker of a renewal
accommodation note is liable thereon to a third person who has advanced
money on the original, which was given without restriction of use, and
surrenders it for the second. Dunn v. Weston (Me.), 810.

3. transfer altar matnrity.] The maker of an accommodation note, lent

without restriction, is liable to a third person who acquires it for value
after maturity. Flnt National Bank of Salem v. Grant (Me.), 884

4L Mm/onmrn for omission to give notica of protest.] Davey, holder of a note
indorsed by Jones, sent it to a liank for collection. The bank's notary
misdirected the notices of protest to ** Darcy ;" the plaintiff did not receive
them, and the indorser was consequently not notified. Held^ that the
defendant was nqt liable. Datey v. Jonee (Vroom), 505.

i. Fraud — negligent signing.] If one unable to read or write English, signa
a negotiable promissory note in English, without consideration, upon the
fraudulent representation that it is a contract of a different character, but
without having the paper read to him, he is liable thereon to an innocent
holder. Fisfitr v. Von Behren (Ind.), 102.

tf. Qiiaranty — indorsement — statute of frands.]. A. made his sealed note,
payable twelve months after date to the order of B. Nine months there-
after C, the mother of A., indorsed the note in blank. B. sued G. as upon
a guaranty, and s^ the trial wrote above the indorsement a guaranty,
expressing as the consideration of the guaranty, the loan to A., and the
original promise of A. that C. should guarantee the note, and forbear to
bring suit on the note for two years or more. The plaintiff also offered parol
evidence to prove the facts recited in the guaranty thus overwritten. Bdd,
that the defendant could not be held either as original maker or indonwr,
nor as guarantor. CHiUbertwn v. Stnith (Md.), 384.

7. Indorser after maturity, how held.] To hold one who indorses a nego-

tiable note after maturity, payment must be demanded of all the makers
within a reasonable time thereafter, and immediate notice of non-pay-
ment given to him. Grnul v. Strutzel (Iowa), 250.

8. Note payable on demand — protest and notice.] A demand note most be

protested and notice given within a reasonable time to hold an indorser,
and the fact that the indorsement was for accommodation, and that the
note bears interest makes no difference. A delay of four years held un*
reasonable. Thielman v. Oueble (La. Ann.), 267.

9. Notice of protest — usage of bank.] Where a note is payable at a banlt

whose usage it is to give notice of protest to indorsers residing in the plaos
where the bank is located, through the post-office, such notice will Und
such indorsers. Carolina National Batik v. WaUaee (8. C), 694.



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INDEX. S99

KEQOTIABLE INSTRUMBKT— OmtintMcf.
10. Maktr l> < nonnia f • Kt o uto r of Indonan.] Where an indoraer diet before
maturity of the note, and the maker becomee his executor, notice of pro-
test to him is requisite to bind the estate. Id.

IL Oral gnamity.] An oral promise that a note is good and will be paid when
due, made by the owner on a transfer of the note for value, la valid. MUk$
V. Bieh (N. T.), 615.

5m CSRTnnOATB OF Dbpobit, 468.

NOLLE PROSBQUI.
8e» Cbixtnal Law, 764.

NOTEa
A]locntion,97.

Anhnali ^ injury by — teienter, 752 .
Aasigmnent for benefit of oraditora ~ right of assignee to set aside aaslgnor^t

fraudulent transfers, 569.
Attorney and client — attorney's responsibility for agent*s embenlement of

client's funds, 766.

con&dential communications, 681.

Bankruptcy — promise to revive debt discharged by, 107.
Oarrier — liability for injury to news-boy on train, 675.

contract for carriage of goods — connecting carriers, 76L

Ckmatitutfonal law — towns, how composed, 844.
Oontraot — public policy — location of railway station, ZiL

entire performance prevented by accident, 486.

Oriminal law ~ trial — presence of officer in Jury room, 441.

bar — ncOe prosequi, 755.

rape — consent, 860.

Damages — menul suffering disconnected from physical Injury, M6,

consequential, 382.

measure of — property taken by mistake, 770.

I>nress, 70.

Basement — way by necessity — when not implied on severmaeeof esMe^dlft

Bvidenoe — bigamy, 22.

opinion of value, 487.

breach of promise of marriage — defendant's peeanluy y*nifWi?m, 4I0L

criminal — insanity — burden of proof, 467.

—» declarations of grantor, 749.
— - ^— of servant, 828.



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900 INDEX.

JHOTES-^ Continued.
Bvid«DO« — declaration of repatatlon of anlioenfled dram-chop. IML
Bxomptioii— " head of a family/* 249.
Porry — n^ligenoe, 501
Fixtmros — hasband and wife, 449.
Bomestaad— removal of family, 728.

Ii^junotion — will not issue to restrain cnmlnal proeecations, 29.
Insmranoo — extension by agent of time for payment of premiam* 88dL
-^ waiver of proof d of death, 024.
Ifaniage — deserted wife's contract for necessaries, 754.
MartT and servant — coarse of employment, 408.

negligence — dangeroos explosive, 542.

Mnnlnipal oorporatlon — ordinance — taxation — license* 838.
National bank — power to purchase negotiable paper, 800.

responsibility for special deposit, 503.

Negligence — signing paper without reading, 165.

leaving horse without tying, 612.

malpractice — contributory negligence, 670.

personal injury — liability of adviser, 788.

Negotiable instroment — transfer of accommodation note after rnKtut^fttB.

authority to draw, 880.

Noisanoe — keeping powder, 658.

Parent and child — step-father and step-child, 256.

Rape. See Criminal Law.

Specific performance of contract for sale of stock, 674.

Surety — discharge of, by usury, 871 .

Timber — windfall — interest of tenant for life in, 865.

Usury. See Sdrbtt.

Water — surface, diversion of, 490.

Will — capacity — spiritualism, 426.

WindfiOL See Timber.

NOTICE OP PROTEST.
Bee Nbootiable Instrumbntb, 694

NUISANCE.

1. Burial gronnd.] A burial ground near dwellings is not a nnlwuiet ptf m

Monk V. Packard (Me.), 315.

2. Keeping gunpowder — 'wdien a nidsanoe.] The keeping of giinpoirdar

upon private premises may be a nuisance when in case of explos&OBit



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INDEX. 901

NUISANCE — Continued.
would b« liable to iDJure the persona or property of thoee residing in the
neighborhood, although it shoald be carefully stored or kept. Hesg v.
Xie»(N.Y.),654.
d. Powder magaaine — legislatiTe authority.] A railway company, having
legislative authority to construct a tunnel, contracted with defendant to
du the work. Defendant collected a magazine of explosives for the blast-
ing. These materials exploded, injuring the plaintifPs property, ffeld,
that defendant was liable without proof of negligence in the care of the
materials. yfeAndretos y, Collerd (V room), SOS,

OFFICE AND OFFICER.

1. B^ l baty — offer by oandidato.] An offer made by a candidate for a public

office, for the purpose of gaining votes, that if elected he will pay into the
public treasury all the fees of the office above a certain sum, invalidates
his election and disqualifies him for the office. Carrotfiers v. Russel,
(Iowa), 222.

2. Municipal ^corporation — pa3riiient of salary to da £ioto offioor.] An

action lies against a municipal corporation by an officer for his salary,
accruing after an adjudication that he is entitled to the office, of which
adjudication the disbursing officer is notified, although payment was
thereafter made to one in possession of the office and performing the
duties under claim of title, but not for salary accruing before such adjudi-
cation and notice. Mc Veany v. Mayor (N. Y.), 600.

3. Of polioe — right to force entry into private house.] A policeman has no

right to rouse up the family of a respectable citizen, after they have
retired for the night, and force an entry of the house, upon the mere
statement of some person to him that he has heard that a woman of bad
character is stopping at the house. Bailey v. Itagatz (Wis.), 862.

4. Title to — Judicial notice.] When there are two confiictlng legislatures,

each claiming of right to exercise legislative functions, it is for the courts
to determine which has the lawful authority, and on such inquiry the
courts are bound to take judicial notice of the acts of the executive
and legislative departments, of historical facts, and of matters of public
notoriety and current interest Prince v. JSkiUin (Me.), 325.

6. Oanvaasing board.] The decision of the governor and council as a can-
vassing board does not conclude the other branches of the goverment. Jd.

6, Scattering ▼otas.] A decision of such canvassing board, throwing out
6,311 votes because two were returned as *' scattering/* but which by an
amended return were shown to have been cast for William B. Skillings,
and which in any event could not have changed the result, is illegal and

▼old. id.

See Municipal Cokporatioh» 1.

OPINIONS.

See Evidence, 437.



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INDEX.
ORDINANCE.

Sm MUVTCIPAL CORPORATrOV, 24 ; NSBMOKNCB, 188.

PARENT AND CHILD.

SUp-ohild— rapport] When a step-father has ▼olanUrilj- aatomed the cave
and rapport oi his step^ild, he cannot recover for compensation there-
for. Smith V. Rogers (Kans ). 254.

PARTNERSHIP.

!• Disaolotion — notice to previous dealers.] A partnership indorsed the note
of third persons to the plaintiff for valae. At maturity the note was
renewed bj the check of third persons indorsed bj the partnership and
others. Pending the running of the note the partnership had been dis-
solved, and notice thereof had been published in the newspapers, bot
there was no proof that the plaintiff took or read them* and there wme no
proof of actual notice to him of the dissolution. Held, that he conid
recover against the partnership on the check. JRose v. Coffield (Md.). 389.

2. Participation in profits as compensation — notice.] A. and B., copartners,
agreed with their salesman C. to associate his name with the 6rm, and to
give him a percentage of the sales for his compensation, and that he
should not be liable for the debts. They advertised in a newspaper that
C. was to have an interest in the establishment. HeUl, that a creditor of
the firm could not recover against C. without proof that previously to
giving credit he knew of the publication, or that defendant held himself
out as partner, and that plaintiff trusted him as partner. FtnsM v. Brnttr-
M^d (MacArthur), 118.

PAYMENT.
See MiBTAKB, 882.

PERFORMANCB.
See Contract, 488.'

PLEDGE.
See Executor, 888.

POLICE.
Bight of officer 0^ to force entry into private honra.] See OmtaUL. 9BI

POWDER
Keeping —when nnisanoe.] See Nuisance, 654.

PRIVILEGED COMMUNICATIOBC.
See Attorney and Client, 637.



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INDEX. gas

PRESUMPTION.
8e$ CBiMiKAii Law, 298 ; Will, 978.

PROTEST,
to give nottoe oL] See Nbootiablb IviTBUiaBiiTy SOflL

iS^KBQOTIABLB InSTRUMBKT, 267.

PUBLIC POLICr.
Sbs Coktract, 64, 206 ; Specific Pbrfobmanck, 671

RAILROAD COMPANY.
I. Power to leoa road — rasponiibUity for latseeHi negligence.] A railroad
company haa no implied power to lease its road, and if it doee so. is re-
sponsible to a private person for the negligent operation of the road bj the
lessees, resulting in injury to him. Abbott v, Johii^own, Glov&rnUle and
Kingnboro Earse Railroad Co. (N. Y.). 572.

2m Street — right to ezolodo others from railway.] A street railway corpo
ration may exclude competing vehicles from the habitual and continuous
use of its track. CUizens* Coach Company v. Camdsn Horse Railroad Co.
(N. J. Eq. [Stew.]), 542.

RAILROAD.
In str to t ^ rights of lot-ownars.] See Constitutional Law, 87t.

See Cabbisr, 60.

RAPK
Bm Criminal Law, 272, 856.

RECEIPT.
See Cabrieb, 757.

RECEIVER.
Foraign oorporatioB — leere to sue.] A suit against a receiver of a foreign
corporation for damages will not be sustained without leave of the court
which appointed the receiver. Barton v. Barbour (MacArthnr), 104.
See Bank, 157.

RELEASE.
Mat wrong-doors — oonpromise with one — bar.] Where several have
Jointly trespassed on real estate, the receipt of money from one will not
bar an action against the others, the amount received beiog less than the
damage, and it not being understood to be in full satisfaction. BUi$ t.
A«m(Wis.),880.

See Will, 716.



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904 INDEX.

RELIGIOUS SOCIETY.

mbm iriTM — •Konnion.] A Bociety incorporated for religloaa worabip hM
BO power to contract for a steamboat excaraion, to raise money for tlie
dmrcli purposee, and cannot recover for expenses or loss of anticipated
profits by reason of the defendant's breach of such contract. JJarrimaM^
▼• Fir9t Bryan BapHM, Church (Qa.), 117.

RES GEST^.
See EviDBMCB, 82S.

RESTRAINT OP TRADE.
Bee CoNSTiTDTiONAL Law, 47 : CJontract, 04.

REWARD.

Lton — offioer — duress.] The defendant, a detective officer, knowing tfaftt
M. had wrongful possession of plaintiff's watch, offered to recover it for
(50, which plaintiff agreed to pay. Meantime M. sent the watch by ex-
press to plaintiff. The defendant however arrested M., and thus com-
polled him to recall the watch before delivery. HM, that defendant had
no right to compensation, or lien on the watch therefor. Hoffman ▼.
Bartfieimeu (Ga.), 139.

SABBATH BREAKING.
See CORPORATiOH, 803.

SALE.

L Certificate of indebtedness of corporation — Implied warranty.] The

plaintiff in good faith purchased of defendant a non-negotiable certificate
of scrip dividend of a corporation. The certificate had been illegally
Issued, and so decreed by the Court of Chancery. Hdd, that plaiDtiff
could recover the purchase-money from defendant. WooS v. S^ieldou
(Vroom), 523.

2. Conditional — title as against creditors of pordiaser.] Where persoDsl

property is sold and delivered on credit on the agreement that title is nut
to pass until payment is complete, the purchaser has no interest subject
to execution of his creditors. Cole v. Berry (Vroom), 511.

3. Condition — decision of third person as to quality.] On an agreement for

the sale of meat, the purchaser agreed to aiscept such as had been in-
spected and pronounced fit by a certain person. Heid, that In the absence
of fraud he was bound by the dedsion of snch person. Nofringer
V. Ring (Mo.), 456.
4i ConstmotlTe delivery.] It was orally agreed between a farmer and his
laborer that the latter should accept certain hogs in payment for his
services. They were pointed out, but were to remain in the pasture with
other hogs, until an opportunity should be found for selling theoL EM,
a valid delivery as against the seller's creditors. WdmUr v. AndtT$im
(Mich.). 452.



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INDEX. 905

SCHOOLS.

Pow«r ci bCMurd to make rnlM.] A district school board has power to make
a rule soBpendiilg any papil absent, witboat satisfactory excuse, six half
days in foar oonsecative weeks. Eing v.Jtiferdan OUff School Board
(Ma), 499.

SEDUCTION.

BvideDoe — loss of servioe.] A woman, whose husband had been absent
and not heard from for more than seven years, brought an action for the
sedaction of her danghter, thirty-one years old, who had always lived with
her, assisted in household work, did errands, and from the time she was
fifteen years old worked in a neighboring factory, paying her wages to the
mother, who nsed them in the support of the family. HM, maintainable^.
Dandmm v. AbboU (Vt.), 767.

Svldraoe of pecmilary ability of defendant] 3ee BymBNOB^ 793.
J3e$ £yidbncb» 442

SET-OFF.
See Surety, 820.

SIDEWALK.
Bee MtTNiciPAL Corporation, 226.

SLANDER.
Bvidenoe ai repetitions — Justifioation.] In an action of slander, evidence
of repetitions after suit is admissible to show malice, but not as an inde-
pendent ground of damage. The same is true of an unproven justification.
Ward V. Dick (Conn.), 75.

SPECIFIC PERFORMANCE.

Oontract against pnblio policy.] Specific performance of a contract to sell
shares of a National bank will not be enforced where it i^pears that the
shares were designed to give control of the bank. Whether the contract
would be enforced if lawful, qtu»re, FolTs Appeal (Penn.), 671.

STATUTE.
Of another State — oonstmotion — comity.] An action was brought in New
York, to render a stockholder of an Iowa corporation individually liable
for a debt of the corporation on account of the failure to file the articles of
incorporation in the office of the secretary of State, as required by the
Iowa law in the case of all corporations except railroad companies. The
statute provided this remedy after execution should be returned unsatis-
fied against the corporation. The Iowa Supreme Court in a similar action
against another stockholder of the same corporation had held, by a divided
court, after the commencement of this action, that the filing was not
requisite because the corporation in question was a railroad company.
No payment had been obtained against the corporation. BM^ that ibig
action could not be maintained. Je^up v. Oamegie (N. T.), 648.
Vol. XXXYI— lU



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gOg INDEX.

8TATUTB OF FRAUDS.

Cipatracil Qofc to W MilUd ia a 7«u^] An oral aifraaiDaat hj an

that he will not leave the eerTice of hit employer for two yean, aor ia the
•mnoiar. dot without two weeke' notice, is within the Hatata of fiaoda.
Bemier ▼. Gaboi MamtfaOwring Oompany (Me.), 848.

BU NbGOTIABLB IN8TRUMKNT8, 884.

STATUTE OF LIMITATION.
8ee Limitation.

STREETS.
Bightf of traveller in.] See Nboliokncb, 867 .

See Municipal Corporation* 185, 166.

SUNDAY.
See Corporation, 808.

SURETY.

1. Dleoharge— ezteniion for definite period — vunuloni oooiideratioiL] Aa

agreement by the holder of an overdue note with the maker, to extend
the time of payment " for twenty or thirty days," in consideration of a
usurious premium paid in advance, without the knowledge or coneent of
the indorser, discbarges the indorser. HamiUon v. Prouty (Wis.)^ 866.

X On bond for laithfol performance— set-off of prinoipel'e olaim lor Mrfioea.J
A surety, in an action against him alone on a bond for faithful performanoe,
cannot offset or recoup a claim of the principal against the plaintiff for
services in the business in which the bond was given. BfMm&re cmd
Ohio Railroad Company v. BUner (W. Va.), 890.

SURFACE WATER.
See Water and Watbr-coursss, 380 ; Municipal Corporation. 786.

TAXATION.
Injunction to reetrain ooUeotion of tax.] An injuuetion will issue to restrain
the collection of a real tax. when the property proceeded against is not
that on which the tax is laid, and the party whose property is proceeded
against is not the one who owes the tax. Seeley v. Town of Wettiport
(Conn.). 70.
See Constitutional Law, 148; Municipal Corporation, 518; NAnoMAii
Bank, 494.

TELEGRAPH.
Aooeptanoe of draft by.] See Nbootiablb iNSTniinaarT, 87S.



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 99 of 123)