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zette, up to January 1, 1884, together with a brief synopsis sentials of a very tedious subject. The revision and of the law points decided, arranged alphabetically. By adaptation has been well done. W.P. Preble, Jr. Second edition. Little, Brown & Co., Boston, 1884. Pp. 707.

COURT OF APPEALS DECISIONS. The title page sufficiently explains the scope of the book, which is divided into four parts: (1) Table of TAE following decisions were handed down FriCases, (2) Synopsis of Law Points, (3) List of inventions

day, Oct. 31, 1884: involved in cases digested, and (4) Tables of Cases Judgment affirmed with costs-Union Trust Comarranged under defendants named. We see no good pany of New York, appellant, v. Augustus S. Whiton, reason for separating a table of cases, and think it pre- respondent; William Howe, appellant, v. Boston and ferable that parts 1 and 4 should be combined. Too | Albany Railroad Company, respondent; Lowell Talmuch praise cannot be accorded the publisher's bott, as trustee, etc., appellant, v. George W. Adams work.

and another, executors, etc., respondents; Jobn Mar

tin, respondent, v. New York Central and Hudson Moon's DIGEST OF FEES.

River Railroad Company, appellant; Charles Stebbins, A Digest of Fees of Town and County Oficers of the State of appellant, v. Albert P. Bennett, impleaded, responde

New York. Rewritten and adapted to the new Codes. By ents; John R. Van Buskirk, respondent, v. Andrew Clinton A. Moon. Fifth edition, Williamson & Higbe, Coyne and another, appellants; Stephen 0. Barnum Rochester, N. Y., 1884.

and another, respondents, v. Merchants' Fire InsurThe above presents in compact form what fees. ac- ance Company, appellant; Mutual Life Insurance cording to law, officers ars entitled to for their services. Company, respondent, v. Anson B. Hoyt, impleaded, As matter of experience, though, the figures in the etc., appellant; People ex rel. Albert Brisbane and book are no guide at all. The book should be in the others, respoudents, v. John Zoll and others, asseshands of every officer and every lawyer in the State. sors, etc., appellants; Louisa C. Smith, appellant, 5.

James Mooney, respondent. — Judgment reversed, BUMP'S PATENTS, TRADE-MARKS, ETC.

new trial granted, costs to abide the event-Stephen The Law of Patents, Trade-Marks, Labels and copyrights: D. Pringle, respondent, v. Charles D. Leverich, im

consisting of the sections of the Revised Statutes of the pleaded, appellant; Henry L. Nagle, respondent, v. United States, with notes under each section, referring to

Robert McFeeters and another, appellant.-Order of the decisions of the courts and the commissioner of pat- General Term affirmed, and judgment absolute renents, together with the rules of the patent office, relating

dered for defendant with costs-Hubbard Kalsey, to patents, trade-marks and labels, with a selection of appellant, v. Smith Lyon, respondeut.-Order af forms; also a table of cases cited and a table of patents firmed and judgment absolute ordered for the respond. construed. Second edition. By Orlando F. Bump. Bal- ent with costs-James Bigler, appellant, v. National timore: Cushings & Bailey, 1884. Pp. ccxviii, 667.

Bank of New York, respondent.Order affirmed This must be a very useful manual and digest to Syracuse, Chenango and New York Railroad Com

with costs-Jabob Crouse, in his own behalf, F. The those interested in these subjects. It seems very well divided and arranged. It is well printed.

pany, respondents; George N. Crouse and another, appellants; David Cromwell, treasurer, etc., respond

ent, v. John Henry Hull et al., appellants; David Carll, LOWELL'S TRANSFER OF STOCK.

respondent, v. Whiston Oakay and another, appelThe Transfer of Stock in Private Corporations. By Abbottlants; Moses May, respondent, v. Nelson Morris, ap

Lawrence Lowell and Francis C. Lowell. Boston: Little, pellant. The order of the county judge and the Brown & Co., 1884. Pp. xx, 297.

judgment of the General Term, so far as they direct It is quite suprising that the cases ou this subordi- the judgment of the Court of Sessions to be carried nate topic should be so numerous as the table of cases, into effect reversed; so far as they direct the prisoner of twelve pages, indicates. The manual would seem to be remanded to the custody of the sheriff, affirmed, justified by this fact alone, and it seems to be an intel- and the prisoner remanded to the sheriff of Otsego ligent production, partaking more of the character-county, in order that the Court of Sessions may deal istics of a treatise than of a mere digest.

with him according to law--People ex rel. Henry De

vol, appellant, v. John Kelly, sheriff, eto, respondent. SETON ON DECREES.

-Appeal dismissed with costs-Cyrus H. Wilbur Forms of Decrees, Judgments and Orders, with Practical

and another, respondents, v. Asa T. Soule, appellant; Notes. By the late Hon. Sir H. W. Seton, some time one

Leo Neuman v. Third Arenue Railroad Company; of the judges of the Supreme Court of Calcutta. First

The Orden Germania, appellant, v. Charles E. Deven. American from the fourth English edition. By Franklin

der, respondent; James Gilbert, respondent, v. Third Fiske Heard. Boston: Little, Brown & Co., 1884. Pp.

Avenue Railroad Company; Alfred L. Simmonson and

another v. William Elmer, impleaded, respondent.-This is a reprint of a standard English work, of great

Motion to postpone argument granted upon condition learning and exactness, judiciously adapted to Ameri- that appellant perfect security on appeal within cau equity jurisprudence.

twenty days, as required by order; otherwise denied-
William H. Hillis, appellant, v. Peekskill Savings

Bank, respondent.

Court adjourned till November 24.
History of a Suit in Equity, from its commencement to its
final termination. By Charles Barton, of Middle Temple.

NOTES. New edition, adapted to modern practice in the United States, with numerous equity forms, by Henry H. Inger- Only two new law journals this week. The Boston soll. And an appendix containing the rules of practice Daily Record gives the calendars, and abstracts of the for the courts of equity of the United States, and a digest current decisions of the Supreme Court. The Georgia of the acts of Congress relating to equity, revised to date, Law Journal, the first number of which is at hand, is 8 and the ordinances of Lord Bacon. Cincinnati: Robert weekly, and has sixteen pages of reading matter

, of Clarke & Co., 1884. Pp. XV, 245.

the same size and form as this journal. It promises This is an excellent little manual, especially for stu- well, and the opening number is attractive and valuadents. It states very concisely and neatly all the es


xvi, 862.

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The Albany Law Journal.

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This is what we said before. As to the recital of facts in the head-note, or the impregnating the

head-note with the facts, let us illustrate by a few ALBANY, NOVEMBER 15, 1884. examples selected at random from the forthcoming

volume of American Reports. First, let us take a CURRENT TOPICS.

few, stating the facts: "A father signed a release

of a note and mortgage executed by his daughter, YOMMENTING on some recent suggestions in put it with them in his safe, and it remained there

till his death. Shortly after signing the release he this journal on head-notes and indexes, the

made his will, giving the daughter a much larger Virginia Law Journal observes: “We venture to

amount. Held, that the release did not take effect dissent from a part of this. We think that gener

for want of delivery." "A testator gave all his ally speaking the less the head-notes has to do with

real and personal estate to his wife, her heirs and the facts of the case the better. This is just the thing, as we have always thought, which renders assigns forever, 'having full confidence in my said so many of the head-notes of Grattan's Reports, for wife, and hereby request that at her death she will

divide equally between my sons and daughters all example, absolutely useless, and which requires a

the proceeds of my said property, real and personal, careful reading of the case to ascertain what it hereby bequeathed. Held, that the widow took a really decides. There are cases of course where it

life estate, with the remainder in trust for the chilis necessary to state the facts, and then they ought dren.” “The plaintiff, in the employ of a railway to be stated, as our contemporary says, with the

company, went under a car standing alone on a regreatest conciseness consistent with clearness. But

pair track, by order of his foreman, to repair it, here is the great difficulty; the faculty of conden

and was there injured by the starting of the car by sation is one of the rarest, and most of those report

an advancing train. The track was usually proers who deal much with facts in their head-notes

tected. There was no proof of any precautions to present a tedious and circumstantial recital of complicated transactions between A., B. and C. which protect it on this occasion. Held, that a non-suit is often quite unintelligible. Every decision pro- iff: "We are authorized to offer Michigan fine salt

was improper.” ". The defendant wrote the plaintceeds upon some principle of law, often a very old

in full car load lots of eighty to ninety-five bbls., one, applied to the facts of the particular case. In

delivered in your city at eighty-five cents per

bble' many cases the bare statement of the principle it

The plaintiff telegraphed: Your letter of yesterself is a sufficient head-note, and it is no valid ob

day received and noted. You may ship me 2,000 jection that it is a legal truism. The province of a

bbls. of Michigan fine salt as offered in your letter.' head-note is to state what was decided, no more

Held, not a binding contract." These seem to us and no less. But when the facts must be stated we believe that our contemporary has struck upon the sufficiently to state the facts, and to be superior to

any mere statement of the legal conclusions propvery best method, which will be und practicable in most cases, viz. : to impregnate the statement of erly derivable from the facts. the legal conclusion with the leading facts. In re

Now we will take a few, merely suggesting or gard to indices we do not at all agree with the ALBANY LAW JOURNAL and the Chicago Legal Adviser impregnated with the facts, the facts being too nu'that merely reproducing the statements of the syl

merous and complicated to justify a detailed recital,

or there being nothing to be gained by setting labi is generally a vicious system.' On the contrary

forth the facts: “Tenants in common of land, ownwe think that where the head-notes are even tolerably good it is a very good system, since in such case

ing personal property in severalty, may make a the examination of the index is generally all that joint will disposing of all their property severably,

which will take effect on the death of all." "An is necessary to ascertain whether the case is such as is needed. The object of an index is to point out

insurance company is chargeable with the mistake where that which

of its soliciting agent in filling up an application." needed may be found; if it can be so constructed as to show also whether that

“A contract for future delivery of merchandise, in which is pointed to is actually what is wanted, having an option as to the precise time, the buyer

warehouse receipts, within a limited time, the seller then so much the better. In an index made with reference to the subjects only one may be referred

to put up margins, and the measure of damages for

breach to be the difference between the contract to a dozen or more cases without getting any satisfaction at the end of his search. What the profes- price and the contract price on the chamber

of sion needs most in this busy age are time and labor

commerce when the contract is made, is

not void saving arrangements of all kinds.”

a gambling contract if it is made to appear that the seller intended an ac

tual delivery.” “A newspaper publication of the The Journal has not precisely comprehended us. suicide of a man, falsely charging in effect that it We think the best form of index is the reproduc- was induced by the extravagance and exactions of tion of the head-notes, where the head-notes are his wife, and by her fraudulent conduct in taking constructed properly, but that the mere reproduc- wages for her son which he had not earned, is lition of the common head-notes is a bad system. bellous, per se." "A city is liable in damages for

VOL. 30-No. 20.

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the seizure and sale of property by its officers to mode of citation of the very recent and current repay a void assessment for a street opening.” These ports. Now is the time to make the reform. It is seem to us sufficiently to indicate the facts. And exasperating to be referred to "1 Out.," or "* 27 an index made up of such head-notes as these is the P. F. S.,” or “47 Sick." best kind of index, for as the Journal suggests, it frequently saves turning to the case.

The Central is equally astray in its understanding

of our objection against reporting rape cases in deThe American Law Record, published at Cincin- | tail. It says: “Another thing that our contemnati, confirms our idea of lawyers' incomes, saying porary does not like is the publication of nasty' in regard to a statement that it was a poor lawyer cases. We know of no reason why these cases, who could not earn $5,000 a year: “Now, the Cin- | if they decide à point of law, should not be cinnati bar compares favorably with any in the furnished to the profession with all the fullness re. country, and the number of active practitioners quisite to make the force of the decisions clear as of must be in the neighborhood of four hundred, and those upon any question. The fact that they have yet of that number those who earn $5,000 per an- arisen is evidence of the likelihood of their continu. num will not comprise ten per cent, if indeed iting to arise. We hardly think that the profession will five per cent of the whole. The conclusion has become so delicate 'all of a sudden' that its therefore would be that the remaining number, say mental equilibrium has been disturbed by this mat360 or 370, were incompetent to practice. Nothing ter., Doubtless, our contemporary has had a vision, could be so wide of the truth. Two classes of men and an early crop of female lawyers may have been succeed at the bar. First, those of acknowledged foretold, and this delicate matter suggested. But ability and learning in the law, and secondly, those long discussions are objected to. It seems to forwho possess the facuity of securing business through get that the passive policy' and 'volenti non fit ininfluences of different character. The latter class juria' decisions of our own and only 'Sherwood, J.,' have tact and skill enough to obtain clients, though are very short, and that in their brevity lies their their ability as lawyers may be very commonplace. wit. We are glad that our brother has been sudSome notable examples exist in our midst, and it is denly struck with the idea that judicial moral tastes not necessary to more than suggest the fact to have should be elevated. The intimation that these senit recognized and admitted. The best legal minds sational cases are too well relished by the judges will are failures frequently — looking at the profession have some effect, if it is justified.” We have never from its mercenary or money-getting standpoint objected to the publication of decisions of points of while some notable cases can be seen of financial law in such cases. What we object to is the publi. success on the part of lawyers of second and third- cation of filthy details of the modus operandi, in rate capacity or ability, and whose opinion upon such cases. The decision in the latest Missouri case any nice legal question would be taken only at a is not on a point of law, but a different interpretavery heavv discount."

tion of facts by the court from that made by the

jury. The jury said the woman was unwilling, In commenting on our criticism of the judges for “Sherwood, J., said she was willing. Every lawyer citing the reports by the reporters' names rather than knows the legal doctrine well enough, and no lawby the number of the State series, the Central Laro yer needs to have it illustrated in page upon page of Journal remarks : “But in its criticism it does filthy testimony. There is no benefit in reporting not spare those judges who persist in referring to pure fact cases, be the facts ever so unobjectionable; the Massachusetts reports of Pickering, Cushing, and to report such cases as those alluded to is an Metcalf, Gray and Allen, by the names of those re- outrage against decency. We are glad that "our porters instead of by the number of the reports, own and only Sherwood, J.,” who seems to be reckoning from the beginning of reporting the de- peculiarly prone to these recitals, belongs sto Misscisions of the Supreme Court of the State. We ouri and not to New York. We are glad that our are at a loss to know whence those writers who per- own reports are not loaded with such gratuitous sist in making trouble for investigators, derived filth as that of the case in 53 Missouri. We hope their authority to refer to any report as '68 Mass.' our sincerely respected contemporary will think The law does not require it; very few, if any of the more deeply about the immorality in question, and libraries have them so numbered, and the lawyers on this point, at least, acquit us of any charge of of the State, and consequently the judges, have“ levity.” rever adopted the new system. There ought to be some understanding before writers assume authority Professor Wayland made some interesting observa. to make a departure, and oblige men in haste to tions on the pardoning power, at a meeting of the make it a mathematica, problem as to where they National Prison Association, at Saratoga, in Separe likely to find a given report.” The Centrai tember last. He advocates the establishment of a does not exactly understand us.

We expressly con- board of pardons in every State. He asks with a ceded that the old reporters must probably continue good deal of force: “As a bearing on a petition to be cited by the reporters' names. The practice for pardon often involves a re-hearing of the case or bas beccme inveterate. What we object to is this the determination of the value of evidence purporting to be new and material, is it not obvious that not such as would usually and naturally arise solely the tribunal which is to pass upon the question from a breach of a contract of the defendant to should have a judicial element ? As the plea of in- carry the package safely to its destination, no sanity is frequently raised, is it not expedient that the were they, within the reasonable contemplation o tribunal should contain an expert in mental disease? both parties to this contract, as likely to arise fron As men convicted of aggravated crimes are some- such a breach. The fact that the plans had ? times possessed of very considerable political influ- special value to the plaintiff, and could not be pur ence, by reason of the votes which they or their chased, does not touch the question of including ir friends can control, is it not in the highest degree the damages the injury to the plaintiff occasioned important that the tribunal should be superior to by reason of other contracts which he had made all partisan considerations?" He disapproves the and of work which he had undertaken in expecta granting of pardons on account of the incurable ill-tion of having the plans for use immediately, oi health of the prisoner, or the poverty of his family, after the usual delay involved in sending the plans or the apparent excessive severity of the sentence. to Boston, and in having them traced and returned He would demand the unaminous agreement of the to him. Damages for such injury are not given pardoning tribunal. And he well sums up the unless the circumstances are such as to show that theory of punishment as follows : “First. The ob- the defendant ought fairly to be 'held to have asject of imprisonment for crime is to protect society sumed a liability therefor when he made the conby confining and reforming the criminal. Second. tract. We think that Hadley v. Baxendale, 9 Exch. Thorough moral reformation in a prison where 341, which has been cited with approval by this there is no systematic, individual treatment, is more court, governs this case. Green v. Boston and Lowoften superficial than genuine. Third. Society has ell R., 128 Mass. 221; S. C., 35 Am. Rep. 370, on a right to insist on adequate protection from con- which the plaintiff relies, was an action to recover victed criminals. Fourth. The presumption of in- for the value of an oil painting, the portrait of the nocence does not survive a verdict of guilty. Fifth. plaintiff's father. The opinion attempts to lay The deterre element of punishment resides mainly down a rule for determining the value of such a in its certainty."

painting when the plaintiff had no other portrait of his father, and which, so far as appears, had no

market value; but the opinion does not discuss any NOTES OF CASES.

question of damages not involved in determining

the value of the portrait to the plaintiff. The IN 'N Mather v. American Express Co., Massachusetts plaintiff in that case made no claim for damages oc

Supreme Court, Nov., 1884, it was held that in casioned by a loss of the profitable use of the an action against a common carrier for loss of an portrait.”' architect's plans, nothing can be awarded for delay in constructing the house. The court, by Field, J., In Dietrich v. Inhabitants of Northampton, Massasaid: “It is not denied that the defendant is liable chusetts Supreme Court, Oct., 1884, a woman four in damages for the reasonable cost of the new or five months advanced in pregnancy fell by reaplans, and for other expenses, if there were any son of a defect in a highway and miscarried. The reasonably incurred in procuring new ones; but it child lived ten or fifteen minutes. Held that the is denied that the defendant is liable in damages mother could not maintain an action of damages for the delay in constructing the house occasioned | under the statute for its death. The court, by by the loss of the plans. It is assumed that the Holmes, J., said: “The plaintiff founds his arguplans had no market value, and were only useful to ment mainly on a statement by Lord Coke, which the plaintiff. The rule of damages, then, is their seems to have been accepted as law in England, to value to the plaintiff. As new plans could not be the effect that if a woman is quick with child, and bought in the market ready made, some time must takes a potion, or if a man beats her, and the child necessarily be required in making them, and the is born alive, and dies of the potion or battery, this plaintiff contends that the value of the plans for is murder. 3 Inst. 50; 1 Hawk. P. C. 31, § 16; 1 immediate use, or for use at the time he would Bl. Com. 129, 130; 4 id. 198; Beak v. Beak, 1 P. have received them from Boston if the defendant Wms. 244; Burdet v. Hopegood, id. 486; Rex v. had duly performed its contract, is their value to Senior, 1 Mood. C. C. 346; Rex v. West, 2 C. & K. him, and that their value is made up of the costs 784; 2 Cox C. C. 500. We shall not consider how of procuring the new plans, and the damages occa- far Lord Coke's authority should be followed in sioned by the delay. Whatever he calls it, it is this Commonweath if the matter were left to the damages for the delay in constructing the house, common law, beyond observing that it was opcaused by the loss of the original plans, that he posed to the case in 3 Ass pl. 2; S. C., Y. B., 1 seeks to recover.

It does not appear that the de- Ed. III, 23 Pl. 18, which seems not to have been fendant had notice of the contents of the package doubted by Fitzherbert or Brooke, and which was at the time it was delivered for transportation, or afterward cited as law by Lord Hale. Fitz. Abr. any notice or knowledge that the plaintiff needed Indictment, pl. 4; Corone, pl. 146; Bro. Abr. Corthe plans for the construction of a house which he one, pl. 68; 1 Hale P. C. 433. For even if Lord had begun. The damages caused by the delay are Coke's statement was the law of this Common

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ealth the question would remain whether the an- to us which has not been dealt with. Taking all ogy could be relied on for determining the rule the foregoing considerations into account, and fur

civil liability. Some ancient books seem to have ther, that as the unborn child was a part of the lowed the mother an appeal for the loss of her mother at the time of the injury, any damage to it uild by a trespass upon her person. But no case, which was not too remote to be recovered for at all · far as we know, has ever decided that if the in- was recoverable by her, we think it clear that the nt survived it could maintain an action for injur-statute sued upon does not embrace the plaintiff's s received by it while in its mother's womb. Yet intestate within its meaning." at is the text of the principle relied on by the aintiff, who can hardly avoid contending that a Petty large field of litigation has been left unex

OLD CASES REVIVED. ored until the present moment. If it should be gued that an action could be maintained in the

THE KING'S TRIAL, .se supposed, and that on general principles an THE Commons having resolved that “the people jury transmitted from the actor to a person are, under God, the original of all just powrough his own organic substance, or through his ers," and deducing therefrom the inference that other, before he became a person, stands on the themselves, as the people's representatives, were me footing as an injury transmitted to an exist- supreme in the nation, and that their enactments g person through other intervening substances had the force of law without consent of king or itside him, the argument in this general form is peers, proceeded to apply their authority in the vt helped but hindered by the analogy drawn punishment of those guilty of the long troubles om Lord Coke's statement of the criminal law. which had culminated in the civil war. The head or apart from the question of remoteness, the ar- and front of the offenders was the king himself, ment would not be affected by the degree of ma- and with him they began. irity reached by the embryo at the moment of the On January 4, 1649, an ordinance was passed sion or wrongful act. Whereas Lord Coke's rule erecting a High Court of Justice for his trial. quires that the woman be quick with child, Whether this precedent was in the minds of the hich, as this court has decided, means more than framers of the Judicature Acts of our own time Gegnant, and requires that the child shall have we cannot say, but designedly or not, the old title ached some degree of quasi independent life at has been revived, and the High Court of Justice ne moment of the act. Commonwealth v. Parker, 9 is to-day the style of the English court of first et. 263; State v. Cooper, 2 Zabr. 52. If these gen- instance, al difficulties could be got over, and if we should Many names are to be found on the list of the ssume, irrespective of precedent, that a 135 commissioners who were constituted the king's ight owe a civil duty, and incur a conditional judges which have still a place in history. The Erospective liability in tort to one not yet in being, roll commences with Oliver Cromwell, first in place nd if we should assume also that causing an infant as well as fame. Next comes the sturdy Ireton,

be born prematurely stands on the same footing whilst Waller, Skippon, Pride and Ludlow, remind ; a wound or poison, we should then be confronted us of the recent battles from which they came, hot y the question raised by the defendant whether an with victory, to sit in judgment on their adversary. fant dying before it was able to live separated Amongst the men of the long robe we find Bradom its mother could be said to have become a shaw, Thorp and Nicholas, all serjeants at law, and erson recognized by the law as capable of having two names are there, which to our ears have oddly

locus standi in court, or of being represented incongruous associations, to wit, Richard Ingoldsby ere by an administrator. Marcellis v. z halheimer, and R. Tichborne. Not all the commissioners

Paige, 35; Harper v. Archer, 4 Sm. & M. 99. participated in the proceedings of the court, Fairnd this question would not be disposed of by cit- fax and Whitlocke being the most notable absenty those cases where equity has recognized the in- ees, but the majority were far from shrinking from nt provisionally while still alive en ventre, and responsibility. They knew their duty, and were erhaps not by showing that such an infant was

willing to perform it. ithin the protection of the criminal law. But we

Moreover, they were determined to carry out eed not go beyond the Massachusetts statute.

their task in the most public and solemn manner. ub. Stat., ch. 207, § 9. The section referred to Many were the meetings and committees, elaborate unishes unlawful attempts to procure miscarriage, were the preparations, but at length all was comcts which of course have the death of the child plete, and on January 20th the court assembled in or their immediate object, and while it greatly in- Westminster Hall. Careful precautions had been eases the severity of the punishment

the woman

taken against tumult and conspiracy. The vaults Ges in consequence of the attempt it makes no

under the Painted Chamber had been searched to orresponding distinction if the child dies, even af- provide against a possible gunpowder plot. Guards er leaving the womb. This statute seems to us to were mounted



leads of the roof. estroy the whole foundation of the argument All privy means of access to the Hall were blocked rawn from the criminal law, and no other occurs

up, including the “doors from the house called


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