Gambar halaman

D. Wisconsin, reversed. Pound et al., plaintiffs in error, v. Turck et al. Opinion by Miller, J.

CONTRACTS. 1. Statute requiring contracts to be in writing: contract under, void if not in uriting.-The provision of the act of Congress of June 2, 1862, entitled " An act to prevent and punish fraud on the part of officers intrusted with the making of contracts for the government,"' requiring every contract by or on behalf of the secretary of war, secretary of the navy, or secretary of the interior, or officers under them, to be made in writing, etc., is mandatory, and a parol contract is not binding. Judgment of Court of Claims affirmed. Clark, appellant, v. United States. Opinion by Bradley, J.

2. Performance by one party of parol contract raises an implied contract to pay quantum meruit. — But a parol contract, for the hire of a vessel by the United States, performed on the part of the owner of the vessel, will entitle the owner to recover for the value the use of the vessel as upon an implied contract for a quantum meruit. Ib.

3. Bailee for hire, when not liable for loss of property bailed.- If, however, the vessel is lost, and the government officers were exercising ordinary diligence in its care, the loss falls upon the owner. A bailee for hire is ouly responsible for ordinary diligence and liable for ordinary negligence, in the care of the property bailed. This is not only the common law, but the general law on the subject. (Jones on Bailm. 88; Story on Bailm. 398, 399; Domat, Lois Civiles, lib. I, tit. IV, § 3, par. 3, 4; Bell's Com. 481, 483, 7th ed.) Ib.

arise. The title to the alley was not involved, and the east line of the conveyed lot would not be further west than the middle of lot 169, as described in the deed Judgment below affirmed. Lawrence v. Palmer. Opin ion by Folger, J. [Decided December 11, 1877.]

EVIDENCE. Testimony as to an impression admissible. — The testimony of a witness was that he had “an impression to that effect." Held, not inadmissible on the ground that it was an impression. A witness may testify to impressions. (Snell v. Moses, 1 Johns. 96, sed vide, Cutter v. Carpenter, 1 Cow. 81.) Judgment below affirmed. Carrington v. Ward. Opinion by Folger, J.

2. Cross-examination : how far within the discretion of the court. - The extent and range of a cross-examination is very much within the discretion of the court. It must be some question pointing to a material matter, which, if rejected, makes ground of error. Ib. [Decided December 4, 1877.)

MARRIED WOMEN. Promise by, to repay money: advancement to procure separate estate. — A promise of a married woman to repay money advanced to her is valid when it is advanced as a part of a transaction, the purpose and end of which is to create for her a separate estate. Plaintiff, upon the promise of a married woman that he should be repaid in an event not unlikely to happen, assigned to her a bond and mortgage, which became a part of the purchase-money of a farm, of which she received the deed and which became her separate estate. Held, that upon the happening of the event, which made her promise operative, her separate estate would be liable for the performance thereof. (Westervelt v. Ackley, 62 N. Y. 505. Fricking v. Rolland, 53 id. 525.) Judgment below affirmed. Hurrington v. Robertson. Opinion by Folger, J. [Decided November 27, 1877.]



BANK CHECK. Not an equitable assignment of the fund drawn on : check in payment of insurance policy. - An insurance company gave petitioner a check upon a banking institution where it had funds sufficient to dieet the check, in settlement of a policy upon the life of petitioner's husband. Before the check was presented to the institution on which it was drawn a receiver of the company was appointed, who withdrew the funds from the banking institution. Held, that the check did not operate as an equitable assignment of the fund upon which it was drawn pro tanto, and that petitioner was only entitled to the rights of a general creditor. (Haines v. Clark, 3 N. Y. 119; Lunt v. Bank of N. America, 49 Barb. 221.) Judgment below reversed. Attorney-General v. Continental Life Insurance Co. In re Petition of Merrill. Opinion by Church, C. J. [Decided November 27, 1877.)

A mortgage given to secure the payment of a specific sum on demand, a part of which is owing and due, which is intended as a continuing security to cover the present and continuing indebtedness of the mortgagor to the mortgagee, is valid between the parties thereto, and when free from fraud as to creditors also. (Robinson v. Williams, 22 N. Y. 380; Fassett v. Smith, 23 id. 252; Miller v. Lockwood, 32 id. 293; McKinsler v. Babcock, 26 id. 378.) Judgment below affirmed. Brown v. Kiefer. Opinion by Earl, J. [Decided December 17, 1877.]


BOUNDARIES. Must be got at by calls of deed.- The boundaries of land conveyed must be got at by the calls of the deed, where they are definite and distinct, and no extrinsic facts or parol evidence of intent can in such case be resorted to to control or vary the description. (Waugh v. Waugh, 28 N. Y. 94; Drew v. Swift, 46 id. 204.) Accordingly, where a lot conveyed is described by a reference to a number on a village map as the west half of lot No. 169, “bounded on the north by lot No. 171, south by Middle street, east by lot No. 170, and west by an alley," there is no need of hesitation in determining its exact locality, and the question whether the grantor had a title to the alley free from the publio easement which he could convey would not

AMERICAN CRIMINAL REPORTS, VOL. 1. American Criminal Reports. A series designed to contain

the latest and most important criminal cases determined in the Federal and State courts in the United States, as well as selected cases important to American lawyers, from the English, Irish, Scotch and Canadian Law Reports, with notes and references. By John G. Hawley, late Prosecuting Attorney at Detroit, Vol. 1.

Chicago: Callaghan & Company, 1878. 'HE need of collections of decisions upon particular

branches of the law like the one before us is felt by every member of the profession. It is as much as a lawyer, in ordinary practice, is able to do to purchase the reports of his own State and those of the Federal



courts; and, even to do this, is becoming burdensome. kind, and cannot be asserted to have originated in any The business of many of the profession is special, and age or among any people. The book before us is an eases relating to his own specialty are all that are able argument in favor of the theory of those who beof importance to one so engaged. And even those lieve in the Hebraeic origin of our jurisprudence. who undertake to do a general business soon find that The history of the various distinguishing principles of the cases which are brought to them, so to speak, the English law is carefully examined and traced back run in a certain groove of the law only; now to corresponding rules in the Jewish law, or to some and then an exceptional one being outside and regulation in the government of the Christian church. involving questions that not daily brought According to the view of the author all the existing up. A very large number of practitioners devote law of Europe is derived from two sources, the Mosaic their attention to criminal practice as a specialty. code, and such ideas as were embodied in the religion The criminal law is largely statutory; the statutes of known as the worship of ancestors. From the latter England and our own States being very similar, source sprang the laws of Solon and the twelve tables and not always clear. Cases wherein the meaning of the Romans, and it contributed toward making up of statutes is construed, wherein the competency the code of Justinian. From the Mosaic code sprang and sufficiency of evidence is considered, and wherein the law of Christianity. This law furnished the most the points of procedure common everywhere are of the material out of which the old Anglican customs passed upon and explained, appear in erery volume were formed, some things in these customs, howof State, Federal and English reports. These cases are, ever, being directly derived from the Mosaic code. compared with the whole number of reported decisions, These customs furnish the basis of the common law, few, but scattered throughout a vast number of vol- which was largely re-enforced by the Canon law, a code umes, and a collection of them for a practicing attorney, made up chiefly from the law of Christianity, but full of business, must be of great value; even, as is not deriving much from that of Justinian. The author usually the case, though the original volumes wherein maintains his views with great strength and ingenuity, they are found are accessible to him. But we need not and what he has written is worthy the perusal of offer reasons why such volumes as this one are useful.

every one who takes an interest in such discussions. Their presence in every law library in the land shows that the profession appreciate them. The present volume appears to give only those cases appearing in late

CORRESPONDENCE. numbers of the various reports, though there is nothing, except in the cases themselves, to indicate how

MR. HUN'S ANNOTATED RULES. wide a range the volume covers. The selection of

To the Editor of the Albany Law Journal: cases seems to be well made; but the arrangement, which is designed to be according to the subject-mat

SIR: My attention has been called to a criticism in

THE ALBANY LAW JOURNAL of January 19, of an ter, is faulty. A few of the titles will explain our mean

edition of the rules prepared and annotated by mying. The subjects are arranged alphabetically and a

self. few of them come in order, thus—"Homicide;" "House

The article points out four alleged errors in a volume of Ill Fame;" "Incest;” “Insanity;" “ Larceny;" (all the cases relating to burglary being arranged under

of 242 pages, as follows, viz. :

I. “On page 7 he gives in full chapter 322, Laws of this bead.) Oftentimes a case involves two or more

1874, which was expressly repealed by chapter 417, Laws subjects, and cannot be well arranged in this way.

of 1877, but he nowhere gives, so far as we observe, The true method in such a work is to arrange by states

section 191 of the Code of Civil Procedure, which takes and countries, leaving to the index the division into

the place of chapter 322." subjects. The head-notes to the cases reported are

Chapter 322 of 1874 is in substance, though not in concise and seem to be accurate, and the facts are

phraseology, the same as section 191 of the Code of Civil stated briefly, or not at all, when the opinion states them. The index is a fair one. In most respects the

Procedure; it is inserted in the book in a place by it

self and not among the rules, simply for the purpose of volume will be found excellent, and will, undoubtedly,

showing the application of some eighteen cases followfind its way into the libraries of all criminal prac

ing it, and decided under the phraseology of that titioners.

statute and not under section 191. The first sentence PLATT'S RELIGION AND JURISPRUDENCE.

following Rule 1 of the Court of Appeals, on page 11,

reads“ Code of Civil Procedure, $s 190-191. Jurisdiction The Influence of Religion in the development of Jurisprudence. By W. H. Platt, formerly of the Mobile Bar.

of the Court of Appeals,” thus, at the very beginning of San Francisco, 1877.

the rules of that court, calling attention to the new This is a work upon a subject which interests those statute defining its jurisdiction. Your critic could not giren to the study of jurisprudence as a branch of have "observed” the work very carefully. philosophical knowledge more than it does lawyers 2. “Of the eighteen statutes cited in force on page in active practice. To what extent the common law 29, all but two were repealed by the same act” (i.e., is indebted to that of Moses, or to the maxims for the chapter 417 of 1877). Immediately preceding these government of human conduct enunciated in the Old statutes, the insertion of which in my work you regard and New Testaments, for the principles which com- as an error, are printed in full all the sections (789 to pose it, will always be a matter of dispute. By some 795, both inclusive) of the new Code relating to that it will be claimed that the many points of agreement subject. It is impossible, therefore, for any one to be between the common law and the code of morals de- misled by the insertion of the statutes in question, duced from the Scriptures, conclusively show the while in the examination of the authorities following source of the law, while others will maintain that them, and other cases decided under them, but useful both the law and the Bible, where they agree, express in giving a construction to the provisions of the new principles of justice which are recognized by all man- Code, I thought it might be of great convenience to

have in one table references to all the previous statutes relating to that subject.

3. “The statutes as to law schools, given on page 39, were repealed by the same act, and were superseded by section 58 of the new Code, which Mr. Hun forgets to note.” This relates to paragraph No. 6, which reads as follows: “By section 58 of the Code of Civil Procedure, it is provided that” (here follows section 58 verbatim). At the end is the following in parenthesis : (“ see also Chap. 310 of 1855; 267 of 1859; 187 of 1860; 202 of 1860”).

The statutes prevailing before the new Code were simply put in parenthesis at the end of the new law, ($ 58) for the purpose of showing under what statutes the decisions following it had been made. It would appear to be difficult to “note" section 58 more emphatically than by setting it out in full.

4. “On page 57 he announces that the Supreme Court is authorized by the Revised Statutes (2 R. S. 199, SS 21 to 28) to compel the discovery of books, etc., and that these provisions were not repealed by section 388 of the Code, but he neglects to say that they were repealed expressly by chapter 417 of last year, and that their place is taken by sections 803 to 809 of the new Code."

The paragraph referred to purports to give the de. cision of the Court of Appeals in Rice v. Ehle, 55 N. Y. 518, and consequently states what that case decided. Just preceding it, and immediately following the rule under which this paragraph occurs, will be found sections 803 to 809 of the new Code, each being followed by a brief memorandum of its contents.

The criticism further contains the remark that “Mr. Hun has also omitted to notice a number of recent cases pertinent to the matter in band." This general statement, of course, I cannot show in this note to be untrue, but to show that I have not been entirely neglectful of recent cases, I wish to call your attention to only one page of my book (page 8), where you will find no less than three cases decided in the Court of Appeals, never published, I believe, in any way, two of which are to appear in 67 New York Reports.

I regret very greatly that your critic, after only a “casual reading,” should have undertaken to criticize my work, as he has done equal injustice to my book and the character of your paper.

Indeed, the article has so little of the spirit of fairness and just criticism, which is usually found in your notices of new books, that I am led to believe that it was prepared by some one interested in the volume of Rules published by Baker, Voorhis & Co., and, through inadvertence on your part, obtained a place in your Journal.

MARCUS T. HUN. ALBANY, January 22, 1878.

[Mr. Hun may dismiss his belief as to the origin of the notice of his performance, since it was writteu by the Editor of this Journal, who has no interest in "the volume of Rules published by Baker, Voorhis & Co.," nor in any other “ Volume of Rules” further than that they be what they pretend to be; nor need he be seriously apprehensive that the critic has done injustice to "the character” of this paper until he can furnish a better answer to the criticism than that contained in the foregoing communication. The specific criticism of Mr. Hun's performance was that he had printed repealed statutes without stating that they were repealed. This he admits, but heattempts to parry the

force of the charge by saying that he has either printed or called attention to the provisions of the Code of Civil Procedure on the same subject. This is simply an evasion of the charge. So far as appears in his pages the repealed statutes and the provisions of the Code of Civil Procedure are concurrent laws. The teudency of his book is to mislead the busy practitioner into the belief that repealed statutes are still in force.

Of the propriety of printing, especially at length, statutes which have no longer an existence, there can hardly be two opinions; nor, we venture to add, can there be two opinions of the judgment of an author who devotes a page to a repealed statute, and a line to the statute passed to fill its place.

We can assure Mr. Hun that when we had pointed out “four alleged errors in a volume of 242 pages” we stopped for lack of space to devote to him, and not from lack of errors to point out. We should not feel much hesitation in binding ourselves to point out forty errors if it were worth our while. We did not even attempt to point out all the errors on the pages to which we did refer, otherwise we should have called his attention to the fact that he devotes half of page 39 to a statute relating to rules for the admission of attorueys, which was expressly repealed by chapter 417, Laws 1877 (which fact he does not mention), and only a half line to the provisions of the new Code on the subject. Indeed, it is only our good nature that prevents our calling Mr. Hun's book what Mr. Amos called Blackstone's Commentaries, “a charnel house of dead law."

Mr. Hun says truly that he has, on page 8, cited three cases not yet published in the regular reports, but he has also omitted to cite two that were reported (Ryan v. Waule, 63 N. Y. 57, and Sprague v. Western Union Telegraph Co., 64 id. 658) which on examination he will find very pertinent to the matter of that page, and to have been decided under the repealed statute, which the cases on that page are supposed to illustrate.

We mention these omissions on this one page simply because Mr. Hun has himself pointed to that page as a specimen of his work. What we have pointed out may serve to show him that our assertiou that he has omitted to notice a number of recent cases pertineut to the inatter in hand is not, as he intimates, true.”—ED. A. L. J.)



NOTES. Mr. H. G. Wood, author of a treatise on “Nuiand on

Master and Servant," has in the press of Banks & Brothers a treatise on The Law of Fire Insurance. There would seem to be no dearth of books on this subject, but we can safely promise that Mr. Wood will make a book that no one interested in the subject will care to do without. The critical analysis to which he subjects the adjudications of the courts and the exhaustive research that he gives to every subject upon which he writes, make his books much better than the average treatise.

The lawyers of Columbia county have done what the lawyers of every county in the State should do, formed a Bar Association. The following officers were elected: President, Jou Gaul, Jr.; Vice Presideuts, J.C. Newkirk, H. W. McClellan; Recording Secretary, E. P. Magoun; Corresponding Secretary, Willard Peck; Treasurer, Cornelius Esselstyu; Executive Committee, R. E. Andrews, John ('adman, S. L. Magoun, Samuel Edwards, J. Rider Cady; Committee ou Admission, A. F. B. Chace, C. L. Béale, s. Ed. wards; W. Peck, C. M. Bell; Committee on Grier. ances, Francis Sylvester, J. C. Newkirk, Nelson F. Boucher, E. D. DeLamater, C. Hawver.

The Albany Law Journal.

ALL communications intended for publication in the On Wednesday the judiciary committees of both LAW JOURNAL should be addressed to the editor, and the

houses of the legislature reported in favor of the name of the writer should be given, though not necessarily for publication.

adoption of the supplemental nine chapters of the

Code of Civil Procedure substantially as they were Communications on business matters should be addressed to the publishers.

passed last winter. With such a prompt and emphatic indorsement, the fate of the new Code is put beyond question. Not only will there be no repeal, but the nine chapters will be passed and by

a majority sufficiently large, it is said, to carry them ALBANY, FEBRUARY 2, 1878.

over the veto of the Governor, should he withhold his

approval. These chapters are an essential part of the CURRENT TOPICS.

Revision, and the present Code is incomplete in many

respects without them. A large part of the comTHE

HE case of Hannibal & St. Joseph R. R. Co. v.
Husen, just decided by the Supreme Court of the plaints which are made in reference to the Code

arise from the fact that it does not cover all the subUnited States, and appearing in the abstract of recent decisions of that court in our present number,

jects which the practitioner expects to find there. determines another question upon the important

He has to look, not only in the new but in the old

Code also, to find out what he is to do, and he is thus subject of the limitation of State rights by the Federal Constitution. The court holds that a stat

led to condemn the Revision. With a complete and ute of Missouri which forbids the driving or con

harmonious system of procedure, embracing all the veying Texas, Mexican, or Indian cattle into the

statute law upon the subject and sufficiently compreState during a certain season of the year, is in con

hensive to cover every exigency, there would be little flict with the clause of the Constitution which gives just cause for complaint. This is what the Revisers Congress authority to " regulate commerce with for

intended to give the profession, and if what became eign nations, and among the several States and with

law only partially covered the field, the fault lay the Indian tribes." The object of the statute was

elsewhere than with them. That there should be to prevent the introduction of cattle disease, with

a strong feeling in favor of the re-enactment which cattle of the kinds mentioned were liable to

of the previous Code among those who have grown be infected, but the court hold that a State can

up with that Code is not surprising. But it proves not exercise its power to enact sanitary laws to such nothing, except that these members of the profession an extent as to work a practical assumption of the

are averse to giving up what they are familiar with powers conferred by the Constitution upon Con

for something which they have accustomed themgress.

selves to look upon as entirely new and different. The

branch of jurisprudence which comes nearest home, In the State legislature the following bills of in

not only to the members of the legal profession, but terest to the profession were introduced during the

to litigants in the courts, is that relating to practice. past week. To amend the law relating to interest

No excellence in a system of law in other respects by reducing the legal rate to six per cent; making

will compensate for defective and uncertain rules a threat to make public facts disadvantageous to

of procedure. Justice may be denied as effectively the reputation of another, for the purpose of extort- by a technical application of a rule of practice as by

an unconscionable decision on the merits. The ing money, a misdemeanor; providing for the revision and codification of the poor-laws; permitting aliens

members of the bar have a duty to the public to see to hold and convey title to real estate; providing

that the methods of litigation shall be as free from that judges in charging juries shall not review the difficulty as is consistent with its decorous conduct, evidence given on the trial, except so far as may be

and it will be for their own best interests to prop

erly perform that duty. necessary for a proper presentation of the law involved in the case; amending section 830 of the Code of Civil Procedure, relative to the testimony It is a well-established rule of the common law of husband and wife in certain cases; enabling that no civil action lies for an injury which results married women to enter into contracts with the in death, and that consequently the death of a husame effect as if they were single. The assembly ju- man being, though clearly involving pecuniary loss, diciary committee has agreed to report in favor of is not the ground of an action for damages. This the adoption of the constitutional amendment pro- rule receives an illustration in the case of Mobile Life viding for an additional justice of the Supreme Insurance Co. v. Brame, just decided by the Supreme Court in the Second Judicial District, and also of a Court of the United States, and reported on another bill enacting the nine chapters of the Code of Civil page. The court holds that a life insurance comProcedure which passed last year, but failed to re- pany has no right of action against one willfully ceive the executive approval.

causing the death of a person whose life it has in.


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sured, although in consequence of such death it has those of our Code in relation to civil actions. been compelled to pay the amount of the insur- The prospects of the passage of the bill are fair, as

The statute of the 9th and 10th Victoria the mercantile community, being tired of the techgiving a right of action to the representatives of nicality and delay of the system of practice now a deceased person, under certain circumstances, in force in Pennsylvania, are in its favor. which has been incorporated into the legislation of many of the States, does not apply to remote claim

NOTES OF CASES. ants such as the plaintiff in this action. The decision is one of great importance, particularly to in- IN the case of Lanning v. Christy, decided by the surance companies.

Supreme Court Commission of Ohio at the Decem

ber, 1876, term, and to appear in 30 Ohio St. 115, it The Court of Appeals, on the 25th ult., in answer

is held that an action will not lie for statements conto several applications to it to modify the present

tained in an answer alleged to be libelous, if such rules and regulations relating to the admission of statements were honestly made without malice, and attorneys, made in behalf of students who were, at

if they were relevant, believed by the defendant to be the time of the adoption of the rules, in attendance true, and were made upon probable cause and under upon law schools in the State, as well as those advice of counsel. This is according to the rule as who have pursued their studies at law schools out of

stated in Townshend on Slander and Libel, $ 221, that the State, and also in behalf of gentlemen who have

" whatever one may allege in his pleading by way of been admitted to the bar in other States, and have,

defense to the charge brought against him, or by way without notice of any change in the rules affecting of counter-charge, counter-claim or set-off, can never the admission of attorneys in this State, removed give a right of action for slander or libel.” In Hill here, handed down an order declining to grant the

V. Miles, 9 N. H. 14, it is said: “An action for applications. The court says that after doliberation libel cannot be sustained for a proceeding before a it deems it inexpedient to modify or in any way

court having jurisdiction of the subject matter, if interfere with the rules. As the classes of appli

the process was instituted under a probable belief cants mentioned embrace all who can, with any

that the matter alleged was true, and with the inshow of justice, ask for a change in the rules for

tention of pursuing it according to the course of the their benefit, the action of the court indicates a

court, even if the matter turps out to be wholly

false. determination on its part to adhere to the position

It may well be questioned whether heretofore taken in respect to this subject.

an action for libel could be sustained, under such

circumstances, even if there was evidence of exThe bill introduced in the assembly by Mr. Peck press ill will.” Kidder v. Parkhurst, 3 Allen, 393; is designed to place married women in the same po

Watson v. Moore, 2 Cush. 133. See, also, 2 Addison sition in respect to their personal contracts that all

on Torts, 933, § 1; Perkins v. Mitchell, 31 Barb. 461; other individuals are. Its provisions are embraced Henderson v. Brownhead, 4 H. & N. 568; Hastings v. in a single section reading as follows:

Lusk, 22 Wend. 410. In Marsh v. Ellsuorth, 50 N. “A married woman may enter into any contract Y. 311, the court says: “The law is well settled with any person other than her husband in the that a counsel or party conducting judicial proceedsame manner and with the same effect as if she ings is privileged in respect to words or writings were sole."

used in the course of such proceedings, reflecting The legislature has for thirty years been endeav- injuriously upon others, when such words and writoring to bring the law relating to married women ings are material and pertinent to the questions ininto a satisfactory condition. But notwithstanding volved; and that, within such limit, the protection there are several quite elaborate statutes in exist

is complete, irrespective of the motive with which ence, the only thing accomplished has been to ena

they are used; but that such privilege does not ble the married woman to deal with her separate extend to matter having no materiality or pertiproperty or to carry on a separate business in her nency to such questions.” See further, Rex v. Salis

She is yet unable to make a contract bury, 1 Ld. Raym. 341; Dawling v. Wenman, 2 Show. binding on herself; to be enforceable it must in 446; S. C., 3 Mod, 108; Cox v. Smith, 1 Lev. 119; some way relate to a separate business or a separate Brown v. Mitchell

, Cro. Eliz. 500; Hoar v. Wood, 3 estate. We trust the bill of Mr. Peck, which is Metc. 193; Gosslin v. Cannon, Briggs v. Byrd, 2 Ired. simple and seems to meet the difficulty fairly and 377; Forbes V. Johnson, 11 B. Monr. 48. fully, may become a law.

A bill has been introduced into the legislature of In the case of the Appeal of Hartranft, recently Pennsylvania providing for a simple mode of pro- decided by the Supreme Court of Pennsylvania, the cedure in suits of a commercial nature and in cer- question arose whether the Governor of the State tain other suits where there is a default made. can be called before a grand jury to answer in The provisions of the bill are very similar to respect to the manner in which he has performed

own name.

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