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of the lessor. (2) While it is not competent to contest a deed by parol evidence when it bas once taken effect by delivery, it is always competent by such evidence to show that the deed, though in the hands of the grantee, has never been delivered. For this purpose the original verbal agreement may be shown, as that a written guaranty for the payment of rent was to be procured and indorsed on a lease before it should take effect, and that it was placed in the lessee's hands merely to enable him to get such indorsement. Jordan v. Davis. Opinion by Sheldon, C. J.


A HINT TO QUEEN'S COUNSEL. Air: The Song of the Foster Brother in Olivette."

When the junior sits in trepidation

With the case on the list for the day,
The leader, to uphold his reputation,

Gets the clerk to call him away.
Then is the time for disappearing;

Pick up your skirts, and off you go:
But when the time comes on for hearing
Bob up serenely from below.

REED ON THE STATUTE OF FRAUDS. A Treatise on the Law of the Statute of Frauds and of other

like enactments in force in the United States of America and the British Empire. By Henry Reed, of the Philadel. phia bar. In three volumes. Vol. 1. Philadelphia: Kay & Bro. 1884. The first volume of Mr. Reed's work is in advance by a few weeks of the second and third, which will complete it, and a review of the work will be deferred until the entire subject can be discussed. The handling of the matter in this volume is very satisfactory, and the structure of the book and the development of the topics are clear and convenient. It promises very well for the completed work. The analysis is as minute as that of a first-class digest, while the exhibit of the law is satisfactory, because, making proper allow ance for quotations, it is uniformly in the words of one very able and clear writer, and the result of an appropriation by him, as it were, of each case and a reproduction of it in his own statement of the pertinent facts and of the points decided. This is a higher order of work than the usual modern digest, which owes its life to the scissors. The labor must have been enormous, and the work is so well done that the grouping of cases under the statute and the propositions deducible from them, will not probably be again attempted. The value of the undertaking, its significance, and the place which it takes in the legal literature of the country will be considered later.

But if matters turn out badly,

Or the evidence isn't quite clear, And you begin to recognize sadly

That the case is looking queer, Then is the time for disappearing,

Pick up your skirts and off you go; But when the jury round is veering

Bob up serenely from below.


And when deserted thus by you,

The junior turns the current round And shows the evidence is true,

And that the points of law are sound, Then is the time for re-appearing ;

Pick up your skirts and back you go ; Since the sky above is clearing,

Bob up serenely from below.

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Or if you hear, while off you stray,

The other side are bound to lose,
Rush back quickly, and for judgment pray.

But if the court should that refuse,
Then is the time for disappearing ;

Pick up your skirts, and off you go ; And if you see your client nearing, Say – "I always told you so."

-Pump Court.


A CORRECTION. Editor of the Albany Law Journal:

In your note to MerchantsBank v. Schulenberg, on page 22 of the current volume, you have mistaken the conclusion reached by the court. You doubtless fell into the error by relying upon the head-note to that case as reported in North-western Reporter, vol. 19, p. 471.

In that case, in the court below, the plaintiff was allowed to discontinue notwithstanding the objection of the defendant who had given notice of a set-oft and claimed a balance.

In the Supreme Court the judgment of the court below was affirmed under the statute, the court being equally divided.

Yours truly,

John E. MOORE. GRAND RAPIDS, Mich., July 25, 1884.

ONNECTICUT lawyers are now obliged to stand

while cross-examining witnesses. This is an arti. fice to keep the side judges from going to sleep.-Cen. tral Law Journal.-In State v. Thomas, 78 Mo. 327, a murder case, the court said: “We make no comment on the unseemly exhibition of rivalry exhibited during the trial of the cause by physicians who were summoned as witnesses, in the hope that it may not occur again. When doctors disagree' they should select some other arena-some other time and place than a court house where a human being is being tried for his life or liberty - for such exhibitions as were witnessed during the trial of this case. We will not be understood as denying to attorneys the assistance which physicians, skilled in their profession, may give in the investigation of wounds in cases of homicide; but certainly such assistance can be secured without bringing the witnesses forward as contestants rather than witnesses." We wonder what the court would have said if it had permitted itself to make a comment?. -The House of Lords, which characterized our Civil Code as “ voluminous" (3 L. N. 369), does not err on the side of brevity in its judicial decisions. The ALBANY LAW JOURNAL says: “ The only time when we contemplate the capabilities of dynamite with any approval is when we are condemned to read the long, rambling, slipshod, tautological, cumulative opinions of three or four law lords, which are supposed to set the law for Great Britain." The reproach is not undeserved, and might be avoided if their lordships would take the trouble to reduce their opinions to writing, either before or after delivery, as the opinions of a high court of appeal should be.---Canada Legal News. —After all, Mr. Benjamin died poor. His personal estate was sworn at only £60,000. Perhaps he had a house and lot somewhere.

The Albany Law Journal.



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New York, the question of whose adoption is still pending, many most essential definitions have

been omitted, and of many important rights and ALBANY, AUGUST 9, 1884.

duties only very brief and meagre statements have

been given, less full and complete than would reaCURRENT TOPICS.

sonably be expected in one of the every-man-his

own-lawyer manuals that are occasionally issued T was hardly necessary for Judge Drummond to

for the ensnarement of the lay public. The points TE write to us to deny those ridiculous

on which any question is likely to arise which a dotes” of him published by the St. Paul Pioneer lawyer of ordinary learning could not answer offPress. That is to say, it was not necessary so far

hand, and for which he would need the help of a as concerns the legal profession. Perhaps how- code, at least such as belong to the now unwritten ever it is well enough so far as concerns the pub- law, are usually passed over without notice. A few lic, for the public are extremely credulous, and always examples will suffice. Section 1578 reads: 'An snap eagerly at any thing peculiarly absurd and in

individual may maintain an action for a public credible concerning the bar and the bench. Judge

nuisance if it is specially injurious to himself, but Drummond denies that he ever spoke to Mr. Car

not otherwise.' That is all that there is on that penter the words attributed to him, although he point. But under this elementary principle very admits that he may have rebuked him, “decor

difficult questions have arisen as to what constiously as became a court," for improper remarks

stutes special damage to an individual. Many of about a brother lawyer. He admits that he may

these doubtless have been questions of curial fact have criticised exorbitant charges of counsel, but

which could not be discussed in a code; but surely he denies that he “ever used the language reported,

out of the cloud of decisions on this point some or any thing like it, in substance or effect.” Judge rules truly of law could have been extracted — for Drummond thinks that there is an “if” in our

instance, upon the more limited inquiry how far the comments on the fool-reporter's anecdotes.

Cer- | being actually hindered from using a bighway by tainly we did not intend to convey the idea that

an obstruction in it, and being obliged to take a we believed such stuff and nonsense. After all,

circuitous route, or to submit to delay and extra Judge Drummond has reason to congratulate him trouble, constitutes special damage — which, inself that he is not running for the presidency, for

serted in the code, would have made it at least octhen he could not keep up with the lies and folly casionally worth referring to for light upon the deof the newspapers, if he should try ever so hard.

cision of a doubtful question in practice. As it is, upon any really difficult point the courts would still

be obliged, notwithstanding the so-called code, to A cablegram from Sir Travers Twiss announces resort for information to the old source in the old that the executive council of the association for the way.” (Then follow sections 553–556 on fraud, and reform and codification of the Law of Nations has sections 624-626, 1623.) Now what is there in all adjourned until next year the conference of the the sections above quoted that would be likely to association, which had been appointed to be held give any information about any matter as to which at Hamburg, Germany, on the 19th to 23d of any lawyer who knew enough to get admitted to August.

the bar would be likely to be in doubt? Or what is

there that would often be of service as a practical Professor H. T. Terry, of the University of guide to a layman trying the hazardous plan of getTokio, Japan, has in press, and soon to be pub- ting along in a difficult matter without professional lished by Messrs. T. & J. W. Johnson & Co., of advice? Of course a code must contain statements Philadelphia, a work entitled “Some Leading Prin- of the elementary principles of law; these will ciples of Anglo-American Law, expounded with a form the basis of its more minute provisions, and view to its arrangement and codification.” We will be of prime importance in relation to its arhave read with a good deal of interest some advance rangement. But what is the use of taking the pages. It is evident that the author is philosophi- , trouble to make a code that contains almost nothcal and deeply learned, but of the practical value ing else? A little volume containing a clear and of his work we cannot form any definite idea from systematic statement of such principles would be these pages. To some of his “suggestions about useful to students, and sometimes to the profession codification we should take exception. He says: and the courts. But why call it a code? It had “Now, without doubt, shortness and simplicity are better in fact remain unenacted, since in that convery desirable qualities in a code; the attainment of dition it would be just as serviceable, and would be them would be one of the prime ends which a compe- free from the inconveniences of an authoritative tent body of codifiers would keep before themselves. code, whose ipsissima verba could be made the But they can be bought too dearly; nor can they in a ground of innumerable quibbles. If every line of good code be as fully realized as many people sup- the statute of frauds has cost a subsidy to construe, pose. A code can, it is true, be made short and how much would the sections above quoted, which simple to any desired extent.

In the are only a little better drawn than the statute of preparation of the draft civil code for the State of frauds, cost? How much the whole civil code?

VOL. 30 -- No. 6.

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IN :

However, the courts would probably simply disre- excited Messrs. Carter, Dwight, Miller and others gard the code in practice as an actual source of in- in opposition. But no "indifference." formation, seek the law where they now seek it in the reports — and then, coming back with the results of their investigations to the nominal

NOTES OF CASES. ground of the code, declare the rules thus obtained to be the true meaning of the code. The State of 'N Dunning v. Heller, Pennsylvania Supreme Court, California has adopted a civil code very similar to the draft code prepared for New York, and I am of a note by the maker, who was also the payee, of informed, founded upon the latter, which has now the nature of the consideration, and of his own been in force for some years. But in looking over property and financial ability, does not prevent bis the reports of such decisions in that State since signature to such certificate from having the force the code went into operation as I have been able to of an indorsement, so as to make the note negotiaget access to, I cannot find that the courts depend ble, and transfer the title to a bona fide holder for much upon it in really doubtful questions. They value. The court said: “We now think the words go on much as before, citing decisions, even from over the indorsement amount to a contract. They other States, and basing their judgment upon them. contain a statement as to the indorser's pecuniary On the whole then, I can hardly share in the sur- responsibility, and the consideration of the note. prise which has found expression in the press at It was unnecessary, and perhaps foolish, for the the indifference with which the bar of New York maker to put all this over his signature as indorser. look upon the attempts now and then made to in- But he has done it, and as it does not vary his conduce the Legislature of that State to enact the tract as maker and indorser, we are unable to say draft civil code. Whatever may be its merits as a as a matter of law, that the note was not indorsed convenient reduction of the statute law on certain as required by the commercial law. Nor was the subjects, and as a means of clearing away an- learned judge strictly accurate in saying that the tiquated rubbish from the law — matters which do signature cannot have a two-fold force. The innot concern us here, however important in them- dorser may waive a protest over his indorsement selves as a codification of the existing unwritten which manifestly gives a two-fold character to his law it has almost no value, and this mainly because signature, and affects the rights of the parties. It absolutely necessary details, the very matters that was held in Ege v. Kille, 2 Watts, 222, that an inmake a good code so much to be desired, are sacri- dorsement on a negotiable note of a receipt on acficed to an illusory brevity."

count of a quantity of iron, 'the net proceeds of which were to be credited on the within, and

which were afterward credited on it by indorseThe amount of all this argument is that a code should be a digest. This it certainly should not be. ment, did not destroy its negotiable character.'

The usual form of indorsement is by writing the When the author asks what is the use of enacting

name of the indorser across the back of the note. such simple principles, we reply, because they are the law, and are nowhere written in the form of stat- writing 18 sufficient which shows an intent to pass

Where the note is payable to order, any order in utes. When he speaks of the cost of interpretation, it does not seem to occur to him that the cost would Chaworth,' was held to be a suficient indorsement.

a title, thus: 'I give this note to A., George certainly not be diminished by an attempt at detail

. Chaworth v. Beach, 21 Vesey, 555. And where the When he speaks of the reference to reports in con

indorsement is in the form of a guaranty it has struing the code, we reply that this is exactly the

been held sufficient. Partridge v. Davis, 20 Vt. 499; proper office of decisions — they ought not to be the enunciation of the law, but rather the explica- Me. 9; Childs v. Davidson, 38 m. 438; Watson v.

Upham v. Prince, 12 Mass. 14; Myrick v. Hasey, 23 tion — not the stutute, but the commentary. No code can ever wholly dispense with them. At the McLaran, 19 Wend. 557. This is exactly contrary

to Pickering v. Cording, 78 Ind. 306. same time it must be borne in mind that judges will long continue unnecessarily to cite decisions from force of habit, and to show their learning, In Peck v. Herrington, 109 Ill. 611, it was held until they get tired of it. A proper code is a mere that the owner of land upon which there is a pond in frame work or skeleton, like the Ten Command which is collected only the surface water from rains ments. The commandments do not undertake to and melting snow, when good husbandry so requires, define theft, murder, perjury, etc., but we never may drain the same by an artificial drain conheard it alleged that they were superfluous. If structed upon his own land, whereby its water is Professor Terry should ask where to look for de-thrown into the same outlet or natural drain it was tails, we should say in statutes or decisions. He accustomed to take before when the pond was full, will allow us to say that he is quite mistaken in as- notwithstanding the flow of the water over a servient suming that the bar of New York look upon the tract of land may thereby be increased. The court proposed code with “indifference.” It has warmly said: “We now come to the main question in the interested many eminent men in its favor, while at Had Peck the right to drain the water from the same time we must admit that it has terribly the ponds, and discharge the same on his own land

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in the channel which carried the surface water ion that he had the right to tile-drain the ponds, from his land to that owned by Herrington? It and carry off the water in the natural channel, almay be regarded as a well-settled principle of law though the flow of water would thereby be inthat where two farms adjoin, and one lies lower creased. This view of the subject we believe to be than the other, the lower farm will be subject to reasonable, and well sustained by authority. Marthe natural flow of water from the one which lies tin v. Riddle, 26 Penn. St. 415; Kauffman v. Griesein a more elevated position, or as declared by Wash- mer, id. 407; Miller v. Loubach, 47 id. 154; Broadburn on Easements and Servitudes, page 353: “It bent v. Ramsbotham, 11 Exch. 602; Rawstron v. Taymay be stated as a general principle that by the lor, id. 396; Frazier v. Brown, 12 Ohio St. 294. It civil law, where the situation of two adjoining may be true that the owner of a tract of land would fields is such that the water falling, or collected by have no right to drain a lake or large body of water melting snow and the like, upon one, naturally de- upon the land of an adjoining owner, and thus destroy scends upon the other, it must be suffered by the it; but such is not this case. These small ponds renlower one to be discharged upon his land, if de- dered much of the land of Peck unfit for cultivasired by the owner of the upper field.' The owner tion, and good husbandry required that they should of the upper field in such a case has a natural ease- be drained, and so long as the water was disment, as it is called, to have the water that falls

charged in the regular channel leading from the upon his own land flow off the same upon the land of Peck to that of Herrington, he has no legal field below, which is charged with a corresponding ground of complaint. The natural flow of the surservitude in the nature of dominant and servient face water was not changed by the drainage. It tenements. Id. 355. It may also be regarded as a may have been increased, but such increase of well settled rule that the owner of the upper field water was a burden which the location of the two cannot construct drains or ditches so as to create tracts of land demanded should be borne by the Dew channels for water in the lower field, but he owner of the lower tract of land. As was said in may make such drains for agricultural purposes on Kauffman v. Griesemer, supra : ‘Because water is his own land as may be required by good husbandry, descendible by nature, the owner of a dominant or although by so doing the flow of water may be in- superior heritage has an easement in the servient creased in a regular, well-defined channel, which or inferior tenement for the discharge of all waters carries the water from the upper to the lower field. which by nature rise in, or flow or fall upon, the But it is said that the owner of the dominant heri- superior.'” Dickey, J., dissented. See Hughson tage cannot drain natural ponds of water from his V. Anderson, 68 Ala. 280; S. C., 44 Am. Rep. 147. own land upon the land of his neighbor below him. The ponds which Peck proposed to drain were

THE PRESUMPTION OF PAYMENT.-II. merely the collection of surface water from rain and melting snow which fell upon the land. Sup

RULE III. A statute of limitations prohibits the action pose Peck, instead of tile-draining the ponds, had after the legal period; but the presumption of law arisfilled them up with dirt. This would have caused

ing from lapse of time may be rebutted.(1) (a) And the the water which before accumulated in the ponds term fixed by the statute of limitations cannot be shortto flow down the channel, indicated on the map by ened by lapse of time alone.(b) the red line, upon the land of Herrington. It will After twenty years the presumption of payment not be pretended that in such a case he would have arises unless there are circumstances to account for the violated any rule of law. As was said in Goodale delay; and if there are no such circumstances, it bev. Tuttie, 29 N. Y. 459: “In respect to the drainage not be submitted to the jury. “If there had been any

comes a presumption of law, and the question should of surface water there is no principle which will circumstances, any thing but the lapse of time, to prevent the owner of land from filling up the wet charge the jury on, that should have been left to the and marshy places to his own advantage, because jury; but where there was nove the presumption of his neighbor's land is so situated as to be incom

law on the fact is that the judgment was satisfied. moded by it. If it be true that the water which The court did no more, and if they had done less they

would have committed an error. On the twenty years would naturally accumulate in these ponds could unexplained there was nothing to leave to the jury; be cast upon Herrington's land by filling them up, they had vo belief to exercise on it; it is because there upon what principle can the owner of the dominant are no means of belief or disbelief the presumption of heritage be denied the right to do the same thing fact arises; the presumption holds the place of particuin another way? If the water which would natur- sumption of law is that the obligor in that long time

lar and undivided belief. It prevails because the preally accumulate in those ponds can be turned upon has lost his receipts and vouchers, or the witnesses Herrington's land by filling them up, we perceive who could prove the payment might be dead. The jury no reason why the water may not be drawn off by might not have believed; this court might not believe tile-draining, if good husbandry required it.

the fact of payment; but that specific belief is not These were small ponds, the largest one containing general presumption. The laying down any other rule

necessary. For wise purposes the law has raised the only three acres. Good husbandry did not, in our would be destroying all legal presumptions. The pojudgment, require Peck to keep this collection of sition of the court below is justified by the opinions of water standing on his farm, and gradually seeping all the judges in England in Grantwicke v. Sampson, 2 into his other land, and thus making it unfit for (1) Lyon v. Gudd, 5 Heisk. 175 (1871); Thorpe v. Corwin, 20 cultivation; but on the other hand, we are of opin- N. J. (L.) 31 (1844).




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Atk. 154, that 'the judges have bound it down as an presumption of payment by lapse of time.(4) For a irrevocable rule that if there be no demand for money like reason in the Pennsylvania case it is said: “While due on a bond for twenty years they will direct a jury on the one hand the party seeking to recover a demand to find it satisfied from the presumption arising from may introduce any circumstance, however slight, haylength of time.'”(2)

ing a tendency in the least degree to defeat the pre

sumption (of payment), so he who relies on it may ILLUSTRATIONS.

strengthen and support it by any fact which legally (A.)

and naturally has that effect. In the present case the A. in 1836 gives B. a bond payable in 1838. In 1860 heirs of a man are seeking indirectly to recover a claim B. brings suit on the bond. The presumption is that due more than thirty years before suit brought. To it is paid. But it appears that in 1841 A. stated to B. show tbat this man in his life-time and during the prothat he did not intend ever to pay the bond, as B. had gress of these thirty years was in needy circumstances taken so much from their father. This rebuts the pre- and pressed by his creditors in various suits for large sumption. A statute provides that no action shall be sums of money which ended in the recovery of judg. brought on a specialty debt after twenty years unless

ments and executions against him, was but calling in the debtor during or after that time has made a new

aid of the legal presumption, the strong natural inferpromise to pay the debt. The action against A. can- ence that one so harassed by his creditors and apparnot be maintained notwithstanding his acknowledg- ently in want of money for the payment of his debts, ment.(3)

would not have permitted his debtor to a large In case 1 it was said: “That presumption which the amount to escape for so long a time a demand of paylaw raises after a lapse of twenty years that a bond or

ment by suit.

But it is said the records of specialty has been paid is in its nature essentially dif

these judgments should not have been received, beferent from the bar interposed by the statute of lim- cause it appeared all of them had been satisfied. But itations to the recovery of a simple contract debt. The though this circumstance may have weakened the eflatter is a prohibition of the action, the former prima fect their introduction was intended to produce, it facie obliterates the debt. The bar is removed by certainly did not altogether destroy it."(5) nothing less than a new promise to pay or an acknowl

(B.) edgment consistent with such a promise. The pre

1. A mortgage given by A. to B. fell due in July, sumption is rebutted, or to speak more accurately,

1819. Proceedings to foreclose it were commenced in does not arise where there is affirmative proof beyond June, 1839. In a subsequent action to recover, possesthat furuished by the specialty itself, that the debt has

sion defendant asked that it should be submitted to not been paid, or where there are circumstances that

the jury whether from lapse of time payment should sufficiently account for the delay of the creditor. The

not be presumed to have been made before its fore. statutory bar is not removed without a new promise closure. A statute of the State provided that “after or its equivalent, because suit on the old contract is

the expiration of twenty years from the time the right prohibited, and the debtor can only be liable there

of action shall accrue upon any sealed instrument for fore on the contract expressly made by the new prom- the payment of money, such right shall be presumed ise or implied from an ackuowledgment of continued

to have been extinguished by payment.” Held, that indebtedness, the old debt being the consideration for

no presumption could arise from mere lapse of time the new engagement. This is the logic of the matter short of twenty years.(6) though it is true the pleadings have not beeu moulded

“We take it,” said the court in Grafton Bank v. Doe accordingly. We still declare on the old debt, and give(7), “to be well settled that courts are never at liberty the new promise in evidence; but notwithstanding this

to presume payment from mere lapse of time in any incongruity the liability which the law enforces arises period less than that which is fixed by the statute of out of the new contract.

* * The statute of limitations. To hold otherwise would virtually be a limitations is a bar whether the debt is paid or not.

repeal of the statute. No doubt lapse of time, conNot so where suit is brought ou a sealed instrument. nected with other circumstances, and evidence tending The fact of indebtedness is then in controversy, and to prove payment, may legitimately aid in establishthe legal presumption of payment from lapse of time is ing the fact.” But if besides the lapse of time there nothing more than transfer of the onus of proof are other circumstances showing that payment has from the debtor to the creditor. Within twenty years been made the jury may presume payment.(8) the law presumes that the debt has remained unpaid, avd throws the burden of proving payment upon the RULE IV. The presumption of payment may be redebtor. After twenty years the creditor is bound to butted under rule 3 by showing (at any time during the show by something else besides his bond that the debt period which creates the presumption) an acknowledg. has not been paid, because the presumption raises only ment of the debt by the debtor(a); or a payment of part a prima facie case against him. It must be borne in of it(b), or a known or notorious insolvency(c) or incamind that the presumption from lapse of time is not pacity(d) of the debtor; or by evidence of the relation(e), that there is no contract existing between the parties. situation(f) or intention(g) of the parties; or by other If it were, proof of a new contract might be necessary.

circumstances explanatory of the delay(h). It is only an inference that the debtor has done some

In Hillary v. Waller(9) the chancellor said: thing to discharge the debt, to wit, that he has made

as to a presumption of title. First as to a bond taken, payment. Hence it is rebutted by simple proof that

and no interest paid for twenty years; nay, within payment has not been made, and the facts being es

twenty years, as Lord Mansfield has said ; but upon tablished, whether they are sufficient to rebut it is a

twenty years the presumption is that it has been paid, question for the court an not for the jury. The pre

and the presumption will hold unless it can be resumption is one drawn by the law itself from a given state of facts, and whether it exists or not is neces

(4) Leiper v. Erwin, 5 Yerg. 17 (1833); Kilpatrick v. Brashsarily for the court."

aer, 10 Heisk. 372 (1873). The character of the creditor for strictness and close.

(5) Levers v. Van Buskirk, 4 Penn. St. 314 (1846). ness in the collection of his debts is relevant on the

(6) Ingraham v. Baldwin, 9 N. Y. 45 (1853).

(7) 19 Vt. 467 (1847). (2) Cope v. Humphreys, 14 S. & R. 21 (1825); Webb v. Dean, (8) Milledge v. Gardner, 33 Ga. 397 (1863); Mayor of Kingston 21 Penn, St. 31 (1853).

v. Horner, 1 Cowp. 102. (3) Reed v. Reed, 46 Penn, St. 239 (1863).

(9) 12 Ves. 267 (1806).

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