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of money then stated, or for other greater or less relief of the same general character as that demanded, nor under the seventh subdivision is a demurrer permissible when judgment is lawfully demanded in the alternative. Specific directions are given as to the method of stating the objections to the complaint, and a new provision is added, that, if demurrer is made under two or more of the subdivisions and sustained only in part, judgment must be for the defendant, but without costs.

The change which has been made in the sixth ground of demurrer will do away with much of the looseness in pleading now so prevalent, in that the plaintiff will be required to base his demand for judgment on the facts set forth in the complaint. In their note to the section the commissioners say: "The proposed amend.. ment to subdivision six is intended to remove a grievance which has become a serious one, whereby the ignorance or carelessness of the plaintiff's attorney is allowed to embarrass and sometimes to prejudice the defendant. It is surely not too much to require an attorney to determine and state correctly the kind of relief to which he deems his client entitled, especially as it determines the mode of trial, and he has the privilege of amending, after a demurrer, in that particular as well as any other. As the section now stands, it seems to preclude a demurrer, where the plaintiff states a cause of action entitling him to relief in damages, and asks a judgment in replevin, or a decree for a specific performance; and we venture to say that it is impossible for any lawyer to state with certainty, what the remedy is in such a case."

The new seventh subdivision is in accordance with their amendment of a previous section of the revision, requiring the causes of action united in a complaint to be consistent with each other, and the judgment demanded thereon such that issues of fact arising upon the allegation of the complaint will not require different modes of trial.

There is a further provision allowing the plaintiff to demur to a counterclaim, upon which the defendant demands an affirmative judgment, and if the court decides that the matter of the counterclaim is sufficient to defeat the cause of action, but not to entitle the defendant to an affirmative judgment, the demurrer must be sustained. This is avowedly to put an end to the vexatious habit of needlessly demanding affirmative relief in an answer, especially relief of an equitable character.

The new remedy, by exception, for all violations of the formal rules of pleading, not reached by - demurrer, is contained in sections 534, 535 and 536. These sections provide a system which is briefly as follows: "If any pleading contains irrelevant, impertinent or scandalous matter, or denials or allegations which are so indefinite or uncertain that the precise meaning or application thereof is not apparent; or if the form or contents of such pleading fails in any respect, for which another remedy is not expressly

provided, to comply with any requirement of this act, or of the rules established by the convention of judges provided for in this act," the opposite party may except thereto within ten days, specifying the grounds of his objection. The party whose pleading is excepted to has thereafter ten days wherein to elect either to amend his pleading or to test it before the court, on a five days' notice. Should he fail to make his election within the ten days, the excepting attorney may notice the exception for hearing. Upon the hearing, the court may direct the pleading, or any portion thereof excepted to, to be stricken out, upon such terms and with such privileges of amendment as are just, costs to be allowed to either party in the discretion of the court, except where scandalous matter is stricken out, in which case the attorney pleading it is to pay. The exception is not to operate as a stay of proceedings, so that it cannot be made use of to secure delay.

We have now given the leading features of those provisions, by means of which the commissioners hope to bring about a more careful and systematic method of pleading, and we cannot doubt that their efforts in this behalf will meet the hearty approval of every thoughtful practitioner. It is quite possible that even their plan might be improved upon, but we confess that it seems to us far-reaching and effective, and more likely than any thing else, except it be an entire revolution of our system of pleading, to accomplish the object sought.

CURRENT TOPICS.

Prof. Ordronaux, who ought to be an authority, pronounces, in the Zion Herald, the plea of "moral insanity," as a defense to crime, a gross delusion born in the bosom of casuistry and nursed in the cradle of ignorance." And while he does not especially blame the lawyers for making use of this strangely begotten and cradled plea, he denounces the courts for having acquiesced in it, to the extent of charging juries that it was an acceptable defense. "It is noteworthy," he remarks, "that those cases of moral insanity, figuring in the annals of our jurisprudence as precedents, have almost invariably occurred in courts whose judges were notoriously inferior to the counsel practicing before them, and who, consequently, were overpowered by them, and afraid to cross swords in the field of dialectics or legal criticism." The learned Doctor would probably not deny, in the present state of medical psychology, that there is such a thing as "moral insanity," and that it may, in very rare cases, be the moving cause in the commission of crimes, but it is equally true, that what is most often called "moral insanity" or "moral mania," is nothing more than innate depravity or "cussedness." In years past, no form of insanity but the most violent and pronounced was admitted to be a defense. This was one extreme, and when we remember that

the plea of somnambulism cleared a Tyrrill, and of momentary insanity, acquitted a Cole, we can but believe that we have swung to the other extreme, and that it will not be long before we shall reach that mean where the really irresponsible shall not be punished, and scoundrels shall not go unwhipped of justice.

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Much of the work of legislatures is worse than useless. It is, therefore, a question whether it is not better to do away with legislatures entirely, or only allow them to sit once in a great while. But we cannot do without these adjuncts of government, these law-makers, and law-modifiers, and law-repealers, especially since it is quite certain that codification is the desideratum, and law-reform the necessity of the age, neither of which can be secured without legislative action. The State of Vermont has been trying legislative infrequency, and has now a legislature which holds biennial sessions. Our neighboring State has not, however, tried legislative paucity, for it now has, or may have, over two hundred and forty members in one house the lower house. This new legislature is now in session, and, judging from some of the measures it has already attempted, it is a fearless, radical and reformative body. Among the first bills introduced is one proposing to abolish capital punishment, substituting therefor imprisonment for life, and taking away from the governor the pardoning power in such cases, unless on recommendation of the legislature. If this bill should pass in its present form, a prisoner convicted of what is called a capital offense, and deserving pardon, might have to wait two years or so before the legislature could get a chance to sit and recommend his pardon. But there is no certainty that the new biennial legislature will pass this proposed measure.

and entirely needless inconvenience." He did not state, in terms, what remedy he proposed, but promised to endeavor to have passed the jury bill introduced at the last session, and which, he said, “will contain the whole law of juries, and will introduce certainly very large, and, I hope, very useful alterations into one of the most important of our institutions." He advocated the fusion of law and equity, and said that "to have two sets of courts existing side by side, one main function of one set being to prevent the injustice which would result from the judgments of the other set, is in idea barbaric, and in practice highly inconvenient."

The most important subject, however, to which the attorney-general gave his attention was the codification of the English laws, in favor of which he expressed himself warmly and strongly. "That we might have had it (a code) at this moment," he said, "I am fully convinced, if we had spent upon the code the money, the time, and the labor that have been comparatively thrown away in feeble and inefficient attempts to make a digest of English law." He recognized fully the fact that "a code, if it is to be made at all, must be made by the first lawyers in the country, men of power and authority sufficient, not merely to digest the law, but, if need be, to make it." He gives his plan, as follows: "Take three men, and, if you choose, four, of the very highest position; give them, if they have not it already, the rank of privy counselors, and the salary of judges; make their services in the preparation of a code count as judicial, and give them, if not otherwise entitled to it, at the expiration of their labors, the pension of a judge." While the difficulties in the way of preparing a code are undoubtedly greater in England than in this country, they are by no means insurmountable, and will be easily overcome if the plan of Sir John be adopted, and a small commission of the very best men be appointed to the task and compensated sufficiently to allow them to devote their entire energies to the work.

Sir John Coleridge, attorney-general of England, recently delivered an address before the Social Science Congress, which has received nearly as much attention at the hands of the English newspapers as the Geneva Awards. His subject was law reform, and his method of treating it such as to call out any The western States, though progressive and liberal amount of adverse criticism from those satisfied with in many things, have never displayed any great the present order of things; but Sir John must be amount of those desirable qualities in regard to the used to that sort of thing, since he himself says, in compensation of their judges and law reporters, and his opening remarks, that "candid and philosophical especially are the reporters, where their compensation criticism" has drawn his portrait thus: "A lethargic is paid by the State, an ill-starred and illy-requited amateur, knowing nothing about law, and, if possible, class. We have received a tract containing a correcaring less, altogether wanting in breadth of view spondence between Mr. Hovey K. Clarke, the late very and manliness of mind, perfectly satisfied with every excellent State reporter of Michigan, and the govthing as it exists, the indolent but inveterate foe of It has been found possible, heretofore, in that all improvement." Not a flattering picture, surely, State, to include the decisions of a year in one voland one which the critics may, after reading his ume, but, for a year or two past, the business of the speech, take occasion to modify. Sir John touched court has increased to such an extent as to require first and briefly on the evils of the present jury sys- two, or sometimes even three, volumes a year. In tem, declaring that the "present law works very badly 1871 an act was passed providing for the appointand occasions a large amount of unjust, oppressivement of a reporter, fixing his salary at $1,500 a year,

ernor.

and requiring him to issue a volume as often as he shall have decisions of the court sufficient to constitute a volume of six hundred pages. Under this arrangement the reporter was required to do twice or thrice the labor that he before did, and for the same salary. The governor presented the matter to the legislature, but that body seemed to think this was no more than fair, and determined to let the law rest as it was. We all know that it needs a competent lawyer for a reporter, and to pay him for the labor of preparing two volumes a year, at the rate proposed in Michigan, is, in plain language, niggardli

ness.

"Every newspaper its own lawyer," may do very well, but to have every newspaper the lawyer for its readers might lead to some confusion. In a short article printed in the Albany Evening Journal, entitled "Laws for the Million," we find these, among other, curious "legal" (?) propositions: "A note dated on Sunday is void;" "Contracts made on Sunday cannot be enforced." It is tolerably surprising that a journal which assumes to point out the errors in a decision of a supreme court judge should have given currency to such erroneous "laws for the million."

Some time since we noticed that the supreme court of Rhode Island had been called upon to decide the question of ownership in dead bodies before burial. This subject, it will be remembered, received an exhaustive and satisfactory treatment by the New England court. But now from across the water there comes the report that a French tribunal has been engaged in deciding questions of property in parts of a living body. Our transatlantic judicatory has been very much perplexed to know whether false teeth are personal property or not. Considering the complexity and elaborateness of the "make-up" of many fashionable people and the number of accessories to the beauty and symmetry of the human frame, which our civilization has brought out, the possible occurrence of vast numbers of such questions for judicial consideration is quite an appalling prospect.

NOTES OF CASES.

In McClure v. Phil., Wil. & Balt. R. R. Co., 34 Md. 532, the court of appeals of Maryland decided a question not altogether new, but one of wide application, viz.: whether a person who has purchased a through ticket, taken his place in a railway train and entered upon his journey, may leave the train at a way station on the route, and afterward enter another train and proceed to his original point of destination without procuring another ticket, or paying his fare from such way station. The court held that he could not. This doctrine is supported by Cheney v. B. & M. R. R. Co., 11 Metc. 121; Barker v. Coffin, 31 Barb. 556; Shedd v. Troy, etc., R. R. Co., 40 Vt. 88.

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McClure v. Phil., Wil. & Balt. R. R. Co., supra, also decides another point of great interest to travelers, viz. that a passenger who refuses to pay his fare may be put off the train, and, at common law, the conductor is not bound to put him off at some station. Where there is a statute regulating the matter common-law rule is, of course, subordinate thereto. "No damages can be recovered for putting a defaulting passenger off at an inconvenient place, unless by some provision of statute. A carrier is not required, by the common law, to put out a trespasser at one place rather than another." Great Western R. R. Co. v. Miller, 19 Mich. 305. In Canada the statute only allows defaulting passengers to be put off at a station or near a dwelling-house. In Illinois, according to statute, he may be put off "at any usual stopping place," and this statutory phrase has been construed to mean that it is unlawful to put a passenger off, for non-payment of fare, at any other place than a regular station. Chicago, etc., R. R. Co. v. Peacock, 48 Ill. 253.

PROVINCE OF COURT AND OF JURY.

The respective province of judge and jury has been the subject of so much doubt and contradiction that a clear and well-defined limitation thereof has become a great desideratum. In State v. Hodge, 50 N. H. 51C (the advanced sheets of which have been furnished us by the enterprising reporter, Mr. Shirley), the defendant was indicted for stealing a gold watch and chain, and the principal question was as to the presumption of guilt raised by the possession of the watch and chain. This particular point, and the general subject of the relative province of judge and jury as to matters of fact and law, were so elaborately and clearly discussed by Doe, J., who delivered the opinion of the court, that we make the following extracts:

Is it the duty of the court, or the duty of the jury, to determine whether, in view of the nature of the property, the possession is recent enough to raise the presumption? This duty has frequently been performed by the court. Courts governed by precedent can easily find precedent enough to put that duty upon them. But whenever a judge, in the discharge of that duty, undertakes to charge a jury, he practically demonstrates, and virtually admits, that there is no rule of law on the subject. He does not say to the jury, "There is a general rule of law, or a legal presumption, applicable to all kinds of property;" but he must say, in substance, "there is a general rule of law which finds guilt from the recent possession of stolen property; but whether the possession is recent or not depends upon the nature of the property. There is no rule of law which divides the infinite varieties of property into three hundred and sixty-five or any other number of kinds, and requires you or me to draw the presumption, from the possession of one kind one day after the theft, from the possession of another kind two days after, and so on to the end of the list; that allotment of time and variety is left to my judgment; and, in my judgment, the time and variety, in this case, are sufficient to raise the presumption; this presumption, found by me, is binding upon you." It is useless to call such a presumption a presumption of law. Call it what we may, it is a presumption of fact.

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2 Stark. Ev. 684; 3 Greenlf. Ev., §§ 31, 32; Burrill's Circ. Ev. 67, note b; 2 Bishop's Cr. Prac., §§ 697, 701; 1 Whart. Cr. L., § 729; 7 Monthly Law Mag. 56, 57; Engleman v. State, 2 Ind. 91, 97; Hall v. State, 8 id. 439, 442; Graves v. State, 12 Wis. 591, 593. It is a presumption established by no legal rule, ascertained by no legal test, defined by no legal terms, measured by no legal standard, bounded by no legal limits. It has none of the characteristics of law. Whether it be found by the judge or the jury, the judge and the jury must be equally unconscious of finding in it any semblance of a legal principle, however much good sense may appear in the result arrived at. Being a presumption of fact, it should, according to our practice, be drawn by the jury, and not by the court. There are many instances and illustrations of the general practice of the judge giving to the jury his opinion on the facts, and this general practice, probably, is the chief origin of the supposed legal presumption drawn from the possession of stolen property. When judges following the common practice of giving the jury their opinions of the facts and the weight of the evidence, had charged juries year after year, for a great length of time, that possession of stolen property was presumptive evidence of guilt, or raised a presumption of guilt, this form of judicial instruction finally came to be considered as the law of the land. Whether it was matter of fact or matter of law was practically immaterial, the influence of the court upon the jury being | then generally overwhelming in cases that touched no political prejudice or sympathy. Being constantly repeated by the court, it naturally acquired the position and strength of an established dogma. The uniform practice of the judge, giving the jury his opinion on any matter of fact on which he saw fit to aid them in that way, was unquestioned. McLanahan v. U. I. Co., 1 Pet. 182; Games v. Stiles, 14 id. 322, 327; Mitchell v. Harmony, 13 How. 131, 142, 148; State v. Bennet, 3 Brev. 514; S. C., 2 Const. Rep. 692; State v. Kinman, 7 Rich. 497, 501, 503, 504; Bell v. Reed, 4 Binn. 136, 137; Pierce v. State, 13 N. H. 559; King v. The Dean of St. Asaph, 21 St. Tr. 900, 923; Cooley's Const. Lim. 320; Sedgw. St. & Const. Law, 615, and authorities cited in State v. Pike, 49 N. H. 417, 436. "The practice of advising the jury as to the nature, bearing, tendency, and weight of the evidence, although it be a duty which from its very nature must be, in a great measure, discretionary on the part of the judge, is one which does not yield in importance to the more definite and ordinary one of directing them in matters of law." 1 Stark. Ev. 472.

In King v. Diggles, Wills' Circ. Ev. 53, an indictment for the murder of an aged man named Cass, and his wife, it appears that, after the homicide, the defendant gold a waistcoat proved to have belonged to Cass, in the pocket of which the purchaser found a pair of spectacles which were also proved to have belonged to Cass. Concerning the spectacles, Mr. Justice Bayley instructed the jury that "it was not very likely that the old man would have sold them." If, upon the strength of this precedent, the authorities had recognized the presumption that an old man would not sell his spectacles, it would have been as much a presumption of law as many other inferences of fact which have crept into the law through the English judicial practice of advising the jury as to the weight of the evidence.

It was not the practice to inform the jury that they were bound by the opinion of the judge in matters of

law, but not in matters of fact. The line between law and fact was not drawn as it is now being drawn in this State. The attention of the bar, court and jury was seldom called to the distinction. The attempt of the English judges, in the latter part of the last century, to establish the distinction in political prosecutions for libel was an exception to the general rule, and an unfortunate exception, for the court then claimed the presumption of unlawful intent to be a matter of law in cases in which it was a matter of fact, and juries were thereby invited to render verdicts in open defiance of the express directions of the court; and the distinction between law and fact was confounded worse than ever. Pierce v. State, 13 N. H. 562; Commonwealth v. Anthes, 5 Gray, 213, 214, 215, 218, 299, 300; State v. Croteau, 23 Vt. 36, 51, 57, 58; May's Const. Hist. Eng., ch. 9; 2 Kent's Com. 17, 20, 25. * * *

Under various influences adverse to a critical and rigid maintenance of the distinction between law and fact, not only was it the practice for the judge to give the jury his opinion on the facts, but it was recognized by all the authorities as a correct practice. When, for many ages, the court had constantly said to the jury, "There is such and such a presumption," without making any reference to, or thinking of, its character as a presumption of law or a presumption of fact, how could its true character be understood and preserved. It would have been wonderful if such a uniform and approved practice had not, in the course of time, practically buried or obliterated the dividing line between law and fact at very many points, and particularly through the region of presumptions, and produced great difficulties for those who should endeavor to make partition of what had so long been held in common, and undivided, thoroughly commingled and blended together. We are not left to conjecture whether such a practice would be likely to produce such a result. We know it has produced it. We are now contending with those difficulties. The law is burdened and obscured by a great mass of commen opinion, general understanding, practice, precedent and authority (including the presumption from possession of stolen property), that has passed for law, but is in truth not law, but fact, coming down to us largely by descent from the ancient custom of the judge giving the jury his opinion of the evidence. To clear the law of this incumbrance, revive elementary principles strictly legal in their nature, separate the province of the court from the province of the jury, and maintain the latter in its entirety, is a duty put upon us by the constitution, as interpreted in Pierce v. State, 13 N. H. 536, 543, 551, 554. * We have neither any right nor any inclination to be astute in inventing devious methods of infringing the trial by jury, intended to be established by the constitution. We are to take that trial, not in any narrow and literal sense, but in the broad and liberal sense set forth in Pierce v. State, and give it full force and effect, so that it shall be in reality a trial in which the jury, and not the court, shall be the judges of the facts involved in the issue. Article 90, of the constitution, adopted the body of the common law, such parts thereof only excepted as are repugnant to the constitution. We are not to employ that article against the full operation of the jury trial, by holding a plain matter of fact to be matter of law, on the ground that courts treated it as if it were a matter of law before the adoption of the constitution. On the subject of evidence, and presumption drawn from

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evidence, no such course can be taken, because, in the practice of the judge giving the jury his opinion of the evidence, the distinction between a presumption of law and a presumption of fact was lost. And even if the distinction had not been lost, the decision in Pierce v. State is conclusive. In that case, on the question whether the jury are the judges of the law in criminal cases, the common law, as universally understood and practiced in New Hampshire from the first jury trial ever held in the State down to 1842 (excepting the change of Judge Parker's opinion, stated by him in Pierce v. State, 13 N. H. 561) was held to be illegal and unconstitutional, and the new doctrine was announced that the jury are not the judges of the law in criminal cases. That doctrine was one of the most startling legal novelties ever introduced into this State, although the only wonder now is that there could ever have been any doubt of its soundness.

And since that doctrine has been inflexibly maintained nearly thirty years, and the decision of the law by the jury contrary to the instructions of the court, held, with the utmost strictness, to be an unconstitutional invasion of the province of the court, the court are not in a situation to display any ingenuity in invading the province of the jury, and infringing their constitutional right and duty to decide the facts and the constitutional right of parties to have the facts decided by the jury. If any special influence were needed to make a court vigilant and zealous in the highest degree, to abstain from encroaching upon the sphere of the jury, it exists here. Until 1842, juries had uniformly been instructed, in criminal cases, that they were the judges of the law. At the trial of State v. Corey, in Cheshire, October, 1830, Judge Parker, then of counsel for the defendant, told the jury: "They were by law constituted the judges of the law, as well as the fact in the case." The system inaugurated by him in 1842 was practically revolutionary, but, from that time to this, it has been held to be a fundamental theory of the constitution, an ancient principle of the common law, and the true construction of the great charter.

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Having discarded the old practice, as a test of the right and duty of the jury to decide the law, we are not at liberty to adhere to it as a test of the right and duty of the court to decide the fact. If the application of this doctrine, in its whole length and breadth, should clear the law of a great mass of fact which wrongfully incumbers it, the result would be not only an ideal vindication of constitutional principle, but also a practical improvement, tending to facilitate the study and administration of the law, and to make it a more intelligible and rational system of general rules a point of no small consequence in a society which undertakes to found its institutions upon populay intelligence. To whatever extent matter of fact involved in the issue is held to be matter of law, to that extent the constitutional system of trial by jury is destroyed, and when part is destroyed, the remainder is put in jeopardy. One precedent is held to justify another. Every matter of fact turned into law opens the way for a further annexation of the province of the jury to the province of the court and a gradual absorption. None the less dangerous is the process because it has been going on a long time, or because the authority of jurists, whose attention has not been called to its constitutional aspects, may be cited in support of an invasion of which they were not conscious, or because of

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The province of the jury is sometimes invaded by instructions requiring them to adopt, as absolute conclusions of law, those deductions which they are at liberty to draw from a particular state of facts if they regard them as reasonable; such as that a homicide must be presumed malicious, unless the defendant proves the contrary, which is a rule contradictory of the results of common observation; or that evidence of a previous good character in the defendant ought to be disregarded, unless the other proof presents a doubtful case, which would deprive an accused party of his chief protection in many cases of false accusation and conspiracies. Upon the presumption of malice in homicide, the reader is referred to the review of the trial of Prof. Webster, by Hon. Joel Parker, in the North American Review, No. 72, p. 178." Cooley's Const. Lim. 326, note.

An immense mass of authorities (Burrill's Circ. Ev. 48, 49; 1 Ben. and Heard L. C. C. 347-360; 2 id. 504-538; 1 id. 295–362, 2d ed.) was overthrown by the decision in State v. Bartlett, 43 N.H. 232, 233, 234, where the presumption of malice in homicide was held to be a presumption of fact, and a long step was taken toward the ratification of the doctrine of presumptions, and its establishment upon ground consistent with the constitutional trial by jury. In Pitkin v. Noyes, 48 N. H. 294, it was held that the question whether the labor and skill of a workman are understood by the parties to be of the essence of a parol contract so as to take it out of the operation of the statute of frauds in relation to the sale of goods, was a question of fact for the jury. These and other similar cases indicate the general drift. We are consciously moving against a great current of authority, toward a trial by jury, in which the jury shall be the judges of the fact as fully and completely as the court are the judges of the law. The decision in State v. Bartlett struck out of our, books a vast number of ancient and modern authorities, and submitted to the jury, as a question of fact, a subject which had long been studied as a question of law. If, by virtue of that precedent, the law should be still more simplified, and sound constitutional principle still further advanced, the profession would be relieved and justice promoted.

Whether the defendant, in this case, had any possession of the watch and chain, at any time, either when they were found or before; whether his possession, if any he had, was recent enough, or exclusive enough, or unexplained enough, to raise a presumption of guilt, were questions of fact for the jury.

COMMISSION OF APPEALS ABSTRACT.

ASSIGNEE-ACTION FOR DISTRIBUTION, Action by one of the creditors of an insolvent partnership, which had made an assignment of its property and effects for the benefit of its creditors, against the assignees, for an accounting and payment of their proportion out of the assets. It appeared that, prior to this action, another creditor brought an action in his own behalf and that of others who might come in and claim the benefits of it against the assignees, for an accounting and distribution of the trust fund. An order was made in that action, appointing a referee, to

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