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RROR to Common Pleas, No. 1, of Allegheny county. The opinion states the case.

MERCUR, J. This action was brought against the plaintiff in error to recover for the loss of some government bonds. Its general business is indicated by its name. It took two classes of risks. In one class it became the absolute guarantor of the safety of the deposit. In the other its liability was qualified and restricted. The present case arose under the latter class. The defendant in error rented a safe in the burglar-proof vault of the company, subject, inter alia, to its following rules and regulations:

"Whenever a party rents a safe, and deposits therein at pleasure, contents not being made known to the company, its liability is limited: (1) To the keeping of a constant and adequate guard and watch over and upon the burglar-proof safe. (2) To the prevention of access by any renter to the safe of any other renter. (3) To the protection of safes and contents from any dishonesty on the part of any of the company's employees."

He renewed the lease annually several times and paid the required rent. The safe is closed by an iron door, to which a lock is attached. The valuables are placed in a tin box made to fit into the safe like a drawer. In this box and safe he placed several thousand dollars in government bonds, and had the exclusive possession of the keys to the safe. As the interest fell due on the bonds, he took them out, cut the coupons therefrom, and replaced them in the safe and locked it again. Finally, on taking out the envelope containing the bonds, for the same purpose, he discovered that four bonds, two of $1,000 each, and two of $500 each, had disappeared therefrom. The jury have found that he put them in the safe and did not remove them therefrom. There was no evidence that the vault or the safe had been broken, nor that the lock had been tampered with. These facts being unquestioned, and the bonds having been taken from the safe, it necessarily follows that it had been opened with a key suited to the lock. In order to get access to the safe a person would be obliged to step into the vault. If he entered during business hours, one key would enable him to procure the bonds. If at other hours, it would require two keys to reach them from the office. The fact that the bonds were taken under these circumstances, was certainly some evidence that the company had not kept "a constant and adequate guard and watch over and upon the safe," as by its agreement it was bound to do. It further agreed to prevent the access of any other renter to the safe of the defendant in error, and to protect his safe and its contents from any dishonesty of the company's employees. If any third persons were given access to the vault, under circumstances that would have enabled them to unlock the safe and remove the bonds, and they had so done, although a contingency not provided for in the agreement, yet it cannot be pretended that it would not be evidence of a want of ordinary care. So, if the bonds were purloined by either renter or employee, it was certainly evidence to go to the jury of an omission, on the part of the company, to exercise that ordinary care and vigilance which men ordinarily exercise, and ought to exercise, under such circumstances, in the protection of their own property. The vault and the safe were in the possession, and under the protection, of the company. The manner in which the bonds were most probably taken shifted the burden of proof. It threw upon the company the

necessity of making some explanation to rebut its prima facie negligence. The case is not like Finucane v. Small, 1 Esp. 315, in which there was no express agreement as to the care to be exercised. Nor is it like Farnham v. Camden & Amboy R. R. Co., 5 P. F. Smith, 53, where it was held that proof merely of loss was not sufficient to put the bailee on his defense. The evidence, in the present case, of the defendant in error did not stop with merely showing the loss. It showed the bonds had been abstracted by some one entering the vault and opening the safe by means of a key. The presumption of want of ordinary care was thereby created. All the evidence calculated to rebut that presumption was fairly left to the jury by the learned judge.

The other assignments have no merit, and were not urged in the argument.

Judgment affirmed.




Change of residence: what does not amount to: intention.- A, being unmarried, sold his farm in West Virginia and came to Pennsylvania, bringing his personal property with him, and made his home with his brother-in-law, but paid no taxes in either State after he sold his land, and died in Pennsylvania. It was contended that he had not changed his residence and that his estate was not liable for the collateral inheritance tax of this State. 1 Bouv. Law Dic. 489, defines domicile to be "that place in which a person has fixed his habitation without any present intention of removing therefrom. Held, that a mere intention to remove permanently without an actual removal works no change of domicile; nor does a mere removal from the State, without an intention to reside elsewhere. But when a person sells all his land, gives up all his business in the State in which he lived, takes his movable property with him and establishes his home in another State, such acts prima facie, prove a change of domicile. Hindman's Appeal.


1. Unsigned conditions printed on back of policy when part of the contract.-Where a policy of fire insurance, among other provisions and express conditions, provided that the loss should be “payable in sixty days after the notice, proof, and adjustment thereof, in couformity to the conditions annexed to this policy," and certain unsigned provisions, entitled Conditions of Insurance," were printed on the back of the policy, such indorsed and unsigned conditions are part of the contract between the insurer and insured. Kensington Nat. Bank v. Yerkes.

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2. Interpretation of clause providing that policy should become void upon creation of an incumbrance on the premises: confession of judgment, effect of, etc.—One of the conditions printed upon the back of such a policy provided that "should there at any time, during the life of the policy, an incumbrance fall or be executed upon the property insured sufficient to reduce the real interest of the insured on the same to a sum only equal to or below the amount insured. . . . then the policy shall become void;" the insured confessed a judgment greater in amount than the value of the

property. Held, that the policy was thereby avoided, even though no execution ever issued upon such judgment. An incumbrance "falls" upon a property when a judgment is entered. Ib. (W. Not. Cas.)


Parol promise to answer for the debt of another, when not within the statute: promise to pay out of funds transferred by the debtor for the purpose.-Where one makes a parol promise to pay the debt of another, out of funds transferred to the promisor for the purpose, such promise is not within the statute of frauds. The creditor to be benefited, though not present at the time of the promise, becomes the owner of the fund thus impressed with a trust for him, and as such can sue for it. Justice v. Tallman (W. Not. Cas.)



Property in wild: embezzlement: master and servant. A gamekeeper, not authorized to take or kill rabbits for his own use, took and killed some wild rabbits upon his master's land, and converted them dishonestly to his own use by selling them. The taking, killing, removing, and selling, were parts of one continuous action. Held, that a conviction of such gamekeeper for embezzlement of the rabbits could not be sustained. The Queen v. Read, L. R., 3 Q. B. D. 131.


Interest of plaintiff at time of loss: vendor in possession: intended demolition of premises under compulsory power. The plaintiff insured his premises in the defendants' office by a policy which provided that their capital should be liable to pay to the assured "any loss or damage by fire to the buildings not exceeding 16001. The premises were afterward required by the Metropolitan Board of Works under their compulsory powers, in order that they might be pulled down for the improvement of a street, and the amount of purchase-money payable to the plaintiff was assessed by arbitration, according to the Land Clauses Act. After the board had accepted the plaintiff's title, but before he had executed a conveyance, the premises were destroyed by fire. Held, that the defendants were liable to pay the plaintiff 1500l., the full value of the buildings at the time of the fire, and not merely the damage done to the buildings considered as old materials, for the dealings between the board and the plaintiff did not affect the defendants' contract. Collingridge v. The Royal Exchange Assurance Corporation, L. R., 3Q. B. D. 173.


Nullity of: consanguinity: marriage illegal by the law of domicile.- The petitioner and respondent, Portuguese subjects domiciled in Portugal, and first cousins to each other, came to reside in England in 1858, and in 1866 they went through a form of marriage before the registrar of the district of the city of London. In 1873 they returned to Portugal, and their domicile throughout continued to be Portuguese. By the law of Portugal a marriage between first cousins is illegal, as being incestuous, but may be celebrated under a Papal dispensation. Held (reversing the decision of the court below), that the parties being by the law of the country of their domicile under a personal disabil

ity to contract marriage, their marriage ought to be declared null and void. (Simonin v. Mallac, 2 Sw. & Tr. 67; 29 L. J. [P. M. & A.] 971, distinguished.) Sottomayor v. De Barros, L. R., 3 P. D. (C. A.) 1.


False representation: of personal property: contagious disease, animals affected with: sale in market: implied representation that animals not suffering from disease: conditions of sale: contagious diseases (animals) act, 1869 (32 and 33 Vict., c. 70, s. 57): vendor and purchaser.-The defendant sent for sale to a public market pigs which he knew to be infected with a contagious disease; they were exposed for sale subject to a condition that no warranty would be given and no compensation would be made in respect of any fault. No verbal representation was made by or on behalf of the defendant as to the condition of the pigs. The plaintiff having bought the pigs, put them with other pigs, which became infected; some of the pigs bought from the defendant and also some of those with which they were put died of the contagious disease. The plaintiff having sued to recover damages for the loss which he had sustained. Held (reversing the judgment of the Queen's Bench Division), that, although the defendant might have been guilty of an offense against the contagious diseases (animals) act, 1869, he was not liable to plaintiff, for that his conduct in exposing the pigs for sale in the market did not amount to a representation that they were free from disease. Ward v. Hobbs, L. R., 3 Q. B. D. (C. A.) 150.


Underlease: waiver of objection to title: constructive notice of provisions in original lease: qualified covenant not to assign or underlet without consent: clause of reentry not applicable to negative covenants: usual corenant: covenant not to mow meadow land more than once a year: clause of re-entry in case of bankruptcy, composition with creditors, or execution issued against lessee: merger: reversion.- Where a parol contract is made for the grant of an underlease subject to a question of title, possession taken with the knowledge and consent of the grantor is not of itself a waiver of an objection to title by the grantee, but it is only evidence of the acceptance of the title, which may be rebutted by other circumstances. Upon an agreement to grant an underlease the grantee has constructive notice of the provisions of the original lease only when he has a fair opportunity of ascertaining what they were. Where a lease provides that the lessee shall not assign or underlet without the consent in writing of the lessor, which, however, is not to be withheld from any assignment or underlease to a respectable and responsible person, it is unnecessary to the validity of an assignment or underlease to a person of that character that the consent of the lessor should be first obtained. Semble, that a power of re-entry, upon the lessee willfully failing or neglecting to perform any covenant, does not apply to a breach of a negative covenant. In a lease of a farm a covenant not to mow meadow land more than once a year is not an unusual covenant, so as to excuse an intended assignee from accepting the title. But a power of re-entry in a lease, if the lessee and his assigns become bankrupt, or make a composition with creditors, or if execution should issue against either of them, is unusual, and an intended assignee is not bound to accept an assignment of a lease containing such a covenant. Where a lessor,

being himself a tenant for years, grants to his sublessee the residue of his interest from the termination of the existing sub-lease, the grant operates as an inter esse termini, and the existing sub-lease does not merge; and a right of re-entry contained in the original lease would still exist and enable the lessor to reenter for breach of covenant. Semble, where two pieces of land are demised by one lease containing a power of re-entry over both, and afterward the reversion in one of them is assigned to the lessee, the right of re-entry remains intact over the piece of land of which the reversion remains vested in the lessor. Hyde v. Warden, L. R., 3 Ex. D. (C. A.) 72.


Petition for: what it should state. A petitioner for a discharge in bankruptcy should clearly state from what debts he desires to be discharged. Where, in involuntary proceedings against one who is a member of a partnership, the bankrupt files his petition for a discharge, giving no schedule of firm debts and assets, nor praying for a discharge from firm liabilities, the discharge granted upon such petition will only relieve him from his individual indebtedness. Sup. Jud. Ct. Me. Corey v. Perry, 17 Nat. Bankr. Reg. 147.

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What constitutes: knowledge: notice.-A person, being a merchant or trader, is insolvent when unable to pay his debts as they mature in the ordinary course of business. The word "knowledge" in section 34, as amended, of the Bankrupt Act, means actual knowledge, as contra-distinguished from constructive knowledge. A person having notice of such a state of facts in regard to the financial affairs of the bankrupt as in law constitute insolvency, either as that term denotes when applied to a merchant or trader, or when used in its general and popular sense, must be presumed to have actual knowledge, upon receiving any payment, assignment or conveyance from the bankrupt, that the U. S. Dist. same is a fraud upon the Bankrupt Act. Ct. Iowa. In re Hauck, 17 Nat. Bankr. Reg. 158.


1. Rights of creditors of bankrupt determined by bankrupt, not by State law.-Where an adjudication has been had and an assignee under the State law has surrendered the estate in his hands, the rights of creditors are to be determined by the court under the provisions of the Bankrupt Law, and not under those of the State Law. U. S. Dist. Ct., N. D. Ohio. In re Bousfield & Poole Mfg. Co., 17 Nat. Bankr. Reg. 153.

2. Parties: when assignee not necessary party.-Where leave has been granted to a creditor, pursuant to the provisions of section 5106, to proceed in a cause which was then pending, a judgment obtained therein is valid, although the assignee is not made a party. Ib.

3. Interest.-Interest upon the claim accruing, after the commencement of the proceedings, is allowable. Ib.

4. Priority of United States as creditors.-Where the United States has recovered a judgment in such an action, such judgment, including the damages, costs and interest, is entitled to priority, and no proof of the claim need be made. Ib.


To secure future advances: when valid: mistake: foreclosure.-A mortgage executed by a bankrupt prior to

the commencement of the proceedings in bankruptcy, to secure a present indebtedness and also future advances of goods to be made by the mortgagee, is a valid security for such indebtedness and the amount of advances actually made. A mistake in the description of the premises in such mortgage may be corrected as against the assignee of the mortgagor subsequently appointed. Where the mortgagee has proved his debt as a secured claim in the proceedings, an action to foreclose the mortgage should be brought in the Bankrupt Court by leave of the court first obtained. U. S. Dist. Ct. Wis. Schulz v. Bolting, 17 Nat. Bankr. Reg. 167.


By assignee of bankrupt's property.--The assignee may redeem property of the bankrupt, which has been sold on execution to the judgment creditor, without paying the unsatisfied balance of the judgment, or taking the property subject to the lien of such judgment. U. S. Dist. Ct. Cal. Lloyd v. Hoo Lue, 17 Nat. Bankr. Reg. 170.


Congress may control telegraphs: State law giving exclusive right to maintain telegraphs invalid.-Under the power given to Congress to regulate commerce among the several States, control may be exercised over telegraphs, and laws of States, in conflict with congressional legislation on the subject, are invalid. Accordingly, a law of Florida, giving an exclusive right to a company to maintain a telegraph line in a portion of that State, held inoperative against a company entitled to the privileges of the act of Congress of July 24, 1866. in relation to telegraphs. Decree of Circuit Court of Florida affirmed. Pensacola Telegraph Co., appellant, v. Western Union Telegraph Co. Opinion by Waite, C. J.


When county bonds invalid in hands of bona fide holder.- By a statute of Missouri, it was enacted, that whenever twenty-five persons, tax payers and residents of a municipal township, should set forth their desire to subscribe to the capital stock of a railroad company proposing to build a road into or near said town, it should be the duty of the County Court to order an election to determine if such subscription should be made; and if it should appear that twothirds of the qualified voters voting at such election were in favor of such subscription, it should be the duty of the County Court to make such subscription in behalf of the township, according to the terms and conditions thereof, and to issue bonds in the name of the county. On the 5th of May, 1870, the County Court of Bates county, having received a proper petition, ordered that an election be held in a township to determine whether the town should subscribe $90,000 for the stock of the C. R. R. Co., to be paid in county bonds, and the agent was directed to make such subscription on the books of the company, and report to the court what he had done. The agent applied to the company, but it had no books, and for other reasons he did not make the subscription, and reported to the court that "the bonds of said township are not subscribed," which report was formally approved. Afterward the County Court made another order, stating that the subscription had been made to the C. rail

road; that a consolidation had been made between that road and another, resulting in the G. Railroad Co.; that $90,000 in bonds of the county be issued in payment of such subscription; and that B, an agent to receive and dispose of the bonds, be authorized to subscribe for the stock of the G. Co. The stock was subscribed for, in accordance with this order, and the bonds issued Held, that the subscription to the stock of the G. Co. was not valid, and the bonds issued therefor were invalid, even in the hands of bona fide holders for value. Judgment of Circuit Court, W. D. Missouri, reversed. County of Bates, plaintiff in error, v. Winters. Opinion by Hunt, J. Clifford, Swayne and Strong, JJ., dissented.


Right to, cannot be obtained' by intruder upon lands of another.-No right of pre-emption can be established by a settlement and improvement on public lands where the claimant has obtained possession by breaking into the inclosure of one who has already settled upon, improved, and inclosed the same land. Such an intrusion, though made under pretense of preempting the land, is but a naked, unlawful trespass, and cannot initiate a right of pre-emption. Judgment of Supreme Court of California reversed. Atherton v. Fowler. Opinion by Miller, J. Waite, C. J., and Clifford, J., dissented upon a question of fact in the




Agent of trustee cannot bind trust estate.- Plaintiff, who did certain work for a trust estate, testified that he made the contract to do the work with one O. who was acting in the matter as the agent of the trustee. The trustee claimed that he did not employ plaintiff, but that he employed O. to do the work. Held, that while the trustee might, if he had no funds in his hands to pay for work done on the estate, and the work was necessary for its preservation, make such work a charge on the estate, yet his agent would have no authority to do so and could only charge him personally on his contract, and that plaintiff could not hold the trust estate for work done by him under a contract with the agent, but only the trustee personally. Judgment below affirmed. New v. Nicoll. Opinion by Earl, J.

[Decided March 19, 1878.]


Contract for storage at fixed rate: termination of contract: notice to remove or pay higher rate: implied contract.- Defendants had stored in plaintiff's warehouse a quantity of Brazil wood at an agreed price for storage of 12% cents a ton per month, the contract being terminable at the end of any month by either party. Plaintiff gave defendants notice to remove the Brazil wood by the end of a certain month, stating that if not removed by that time the price for storage thereafter would be $2 per ton per month. Defendants declined to remove the Brazil wood, claiming that the contract for storage was to last until it should be sold, and it remained in plaintiff's warehouse for some months after the time its removal was demanded. The market rate of storage at the time for the article was 12 cents a ton a month. Held, that a contract to pay $2 per ton for storage could not be implied from the acts of defendants, and they were liable only

for the market rate. Judgment below affirmed. Hazelton v. Weld. Opinion by Andrews, J. [Decided March 26, 1878.]


1. Murder in the second degree: what facts will justify conviction for.- Defendant was on trial for murder by shooting deceased with a pistol. It was shown that the pistol was used, and the evidence tended to show that it was used intentionally, and in such close proximity to a vital part of deceased that it would scarcely fail of a fatal result and there was doubt whether defendant was at the time in any peril, or, if so, whether he attempted to escape. Held, that the submission to the jury of the question whether defendant was guilty of murder in the second degree was not error. Judgment below affirmed. Blake, plaintiff in error, v. People. Opinion by Folger, J.

2. Evidence: responsive answer.-A witness for the people was asked, on cross-examination, if he would swear that the deceased was not at the time choking prisoner? He answered, "I would not swear it, but don't think he was." Held, that it was not error to refuse to strike out the words, "but don't think he was," on motion of defendant. Ib.

3. Evidence: testifying not positively, but to best of belief.-Testimony of witnesses who would not state positively, but said what they stated was "to the best of my knowledge; " "I believe it was, etc." Held, not objectionable on that ground. Ib.

4. Evidence: questioning accused as to motive of acts. - The district attorney put questions to the prisoner on cross-examination calling for the motives which influenced him in certain actions. Held, not objectionable. Ib.

[Decided March 19, 1878.]


Powers conferred on common council cannot be delegated by it to agent.-By the charter of the city of Binghamton it is provided that improvements to sidewalks shall be made at the expense of the premises in front of which they are required, and that the common council shall order the work to be done within a specified time, of which notice shall be given to the owner of the premises interested, and that "if any work shall not be done within the time limited therefor the common council shall, by contract or otherwise, cause it to be done and assess the expense thereof upon said premises or upon the owner thereof." The common council passed a general resolution directing the superintendent of streets, when the owner neglected to do the work by the time limited, "to cause the same to be done." Held, that the power conferred upon the common council involved an exercise of discretion and could not be delegated by it to the street superintendent, and that the ordinance in question was invalid. Judgment below reversed. Birdsall v. Clark. Opinion by Church, C. J. [Decided March 19, 1878.]


Assignment of claim which has been sued on: assignee takes cum onere: costs.-Where a party brought action and a demurrer was interposed to the complaint and sustained, and instead of amending his complaint he transferred the cause of action to plaintiff who brought suit thereon in her own name: Held, that an order of

the Supreme Court requiring plaintiff to pay the costs accrued in the former action was proper and could be enforced. When plaintiff took the claim against defendants she took it cum onere and was liable to the same extent as the former owner. Order below affirmed. Barton v. Speis. Opinion per Curiam. [Decided March 19, 1878.]


Defense to consideration: condition precedent.Where promissory notes were given in pursuance of a stipulation to discontinue a suit, and an agreement to deliver releases, and such agreement and stipulation formed in part the consideration for the notes, but the suits were not to be discontinued until the notes should have been paid, and the releases if delivered before were not to become operative and binding until that time: Held, that the discontinuance of the suits and the delivery of the leases were not conditions precedent to but were independent of the notes, and the failure to do these acts would not furnish a defense to the notes. Judgment below affirmed. Bruce v. Carter. Opinion by Rapallo, J. [Decided February 22, 1878.]


[Decided April 2, 1878.]


Work done for trust estate on credit of trustee.-Where a party has done work for the benefit of a trust estate, upon the personal responsibility of the trustee, he can get no lien upon the estate by the mere promise of the trustee to pay him out of the estate. Motion for reargument denied. New v. Nicoll. Opinion per Cu



THE UNIVERSITY OF EDINBURGH, March 27th, 1878. To the Editor of the Albany Law Journal:

SIR- May I venture, through your widely circulated columns, to call the attention of American Jurists to three very remarkable articles on the organization of the union of European States (Die Organisation des europaishen Staatenvereins) which Dr. Bluntschli, the celebrated Professor of International Law, at Heidelberg, has recently contributed to the "Gegenwart."*

In the first of these essays Dr. Bluntschli has explained the scheme which Sully ascribed to Henry IV and to Queen Elizabeth, with great clearness, and with a more enlightened and cordial appreciation than has commonly been bestowed upon it, and concludes with a few somewhat disparaging remarks on the proposals of the Abbé de St. Pierre and Rousseau. In the second he has done me the honor to criticise a paper on the same subject, which I published in the Revue de Droit International + under the title of Le Probléme final du Droit International. The third he has devoted to his own views, and to the plan for their realization, which has occurred to himself. The interest which at any time would attach to the discussion of such a theme by the distinguished President of the Institute of International Law is en

* Nos. 6, 8 and 9: 9th February, 23d February, and 2nd March, 1878.


hanced, not only by present circumstances, but by a hint of much significance which he throws out, almost incidentally, as it would seem, towards the conclusion of the third article. "I know not," he says, "when another earnest effort to solve this problem may be expected in the actual life of the world. But I am confident that, at no distant date, one if not more (lin oder linige) great European statesmen will undertake it. The work is a far lighter one than the founding of the German Empire." Those who know the relation in which Dr. Bluntschli stands to the German Empire and to the great Chancellor will have no difficulty in ascribing their due value to these words, and they will probably be of opinion that a problem which is thus spoken of is not very far beyond the boundaries of the narrow region over which even diplomatic vision extends.


In the general views for which I contended, I am gratified to find that Dr. Bluntschli is altogether with He admits: 1st. The impossibility of conferring on international law the character of a positive system, otherwise than by the action of factors analogous to what, in municipal law, we call legislation, jurisdiction and execution. 2nd. That the realization of these factors, within the sphere of the relations of separate States, is not permanently shut out by any facts or laws inherent in their character. 3rd. That the failure of all previous schemes of international organization can be satisfactorily explained by their aiming at two impossible objects: (a) the establishment of an international organism which should be immutable; and (b) the political equalization of recognized states. As the basis of his scheme Dr. Bluntschli frankly accepts the de facto principle which lies at the root of the doctrine of recognition; and in thus breaking with the revolutionary schemes of his predecessors, I am sure he is eminently right. 4th. Dr. Bluntschli farther admits the necessity of conforming to modern conceptions of liberty by recognizing the public opinion of the several states directly by means of representatives chosen by or from the various municipal legislatures. So far, I believe, then, I have the concurrence of my eminent colleague, and it goes pretty nearly all the length that I care for. The scheme which I suggested in the Révue, I intended as an illustration of these principles, rather than as a suggestion for their realization. I am, consequently, not much moved by the allegation that I have dreamt the English constitution, or rather, as he says, the constitution of the United States, whereas he prefers to dream the German Bund. It is very possible that neither of them may offer a model which admits of imitation in international relations, and the former has surely as good a municipal history as the latter to recommend it. But on the practical branch of the subject I am far from wishing to dogmatize. That I shall gladly leave in the hands of "one or more great European statesmen," and shall only be too well pleased if, to any extent, however finsignificant, I may have contributed to bring it under their notice. This object will be far better effected should Dr. Bluntschli's views elicit the criticism of such men as Wm. Beach Lawrence, and President Woolsey, and it is as an appeal to them and to the other eminent international Jurists, of whom it is your good fortune to have so many, rather than to the public or even to the profession, in the first instance, that I now write. Your obedient servant, J. LORIMER.

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