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page 604 of 104 Pac. (42 L. R. A. [N. S.] managed for the Graces for a number of 601, 613):

"Neither is criminal intent involved under this statute, as we have shown in defining a conversion. Such a conversion, when committed in violation of the terms of this statute (section 1807), constitutes the offense, and no other intent need be shown."

[10, 11] Therefore the charge in the respect noted was favorable to the defendant. Hence it was proper for the state to show that this defendant had had ample opportunity to deliver, return, or account for the money, and in this connection it may be said that an unsuccessful attempt on the part of the Graces to collect the money from either of the defendants, or upon the Mahon notes, or to obtain surety therefor, would not exculpate this defendant. The trial court charged the jury as follows:

"If you find that William Grace or Marion Anne Grace loaned this money to this defendant, or to this defendant and E. C. Herlow, or to the Chapin-Herlow Mortgage & Trust Company, then this defendant must be acquitted. For, if this transaction was a loan then there is no criminal liability. Or if you entertain a reasonable doubt as to whether this transaction was a loan, then this defendant must be acquitted, upon the principle that the defendant is entitled to the benefit of every reasonable doubt. But if William Grace or Marion Anne Grace intrusted this money to this defendant, or to this defendant and another, for the special purpose that the money be loaned upon first mortgage securities for the benefit of the owner, then there was imposed upon the persons to whom it was so intrusted the duty to loan such money upon first mortgage securities for the benefit of the owner, or, failing to so loan it, to return it to the owner; and if the person or persons to whom the money is so intrusted fails to use or apply such money according to the nature of their trust, and then fails to return it to the owner, but on the contrary, either intentionally convert it to their own use, or else intentionally divert it to some other purpose in violation of the trust, then such person is guilty of larceny by bailee."

years. At that time they informed Mr. and Mrs. Grace that they were working into the mortgage business, and that they had some first real estate mortgages bearing 8 per cent. interest. It appears that Mr. William Grace had for several years been afflicted with locomotor ataxia, and was unable to transact much business and unable to be a witness at the trial. On this account Mrs. Grace looked after a considerable portion of their business. We quote from the testimony of Mrs. Grace:

"A few weeks before the bonds became due house and were saying that if any one had any Mr. Chapin and Mr. Herlow came out to the money to invest, now was the time to invest it in first real estate mortgages of 7 and 8 per cent.; that they had some if any one had money to invest. And I said: 'Well, our bonds become due soon; could you invest in first mortgages at 8 per cent. for us?' And they said: 'Yes'; they could. And we were to let them know when the bank notified us that the bonds were due, and they would come out and take Mr. Grace to the bank and get the money.'

It seems that the Graces had some money invested in improvement bonds which were at the bank. Mrs. Grace further states: That in about three weeks after the first conversation related, she called up Chapin and Herlow over the phone and informed them that their bonds were due. That defendant Herlow came out to the house in a car to take Mr. Grace to the bank to get the money, and that she did not feel easy about Mr. Herlow getting it, and she phoned Mr. Chapin that Mr. Herlow was there, and asked him if it was all right for him to have the money, and Mr. Chapin said: "Yes; it is all right for Mr. Herlow to get the money." That thereupon Mr. Grace was assisted to the automobile and taken to the bank for the purpose of obtaining the money upon a certificate of deposit of the United States National Bank for $3,580, $3,500 of which it was understood that Chapin and Herlow would invest in real estate mortgages. Eighty dollars of this amount was sent to the Graces a short time afterwards. It appears that Mr. Grace indorsed the certificate of deposit. In about a week or 10 days from the date the money was received Messrs. Chapin and Herlow came to the residence of the Graces and delivered four promissory notes, three of which, aggregating $4,000, were signed by H. C. Mahon, and one note signed by Chapin-Herlow Mortgage & Trust Company for $3,500. In answer to the question, "What did they tell you about those papers they gave you?" Mrs. Grace answered: "I did not read the notes there. I just looked at them and I noticed that H. C. Mahon's notes were for $4,000, and it was $3,500 that we had let them have, and On the 10th of October, 1912, the defend- I asked what the extra $500 was for, and ant, in company with E. C. Herlow, went to they said that was extra security, and their the home of William and Marion Anne note. They told us that that exGrace for the purpose of checking over some tra $500 was security, and their note was business affairs which the defendants had security; but I don't remember anything else

[12] At the close of the case counsel for defendant requested the court to instruct the jury to bring in a verdict of not guilty. The record discloses that the evidence in the case tended to show that in February, 1912, defendant W. H. Chapin and his codefendant, E. C. Herlow, organized what was known as the Chapin-Herlow Mortgage & Trust Company, a corporation of the capital stock of $250,000, with W. H. Chapin as president and E. C. Herlow as secretary; that prior to that time they had conducted business under the name of Chamarlow Company with the same officers, and before that as the Chaplow Company and as Chapin & Herlow, partners. The business of the partnership and the different prior companies merged into the Chapin-Herlow Mortgage & Trust Company, which for some time prior to the trial had been in the hands of trustees.

not a true memorandum or writing indicating the agreement or understanding between the parties, but was a mere subterfuge or attempt on the part of the defendants to pave the way for an excuse for converting the money to their own use, and not loaning the same as it was proposed, in intrusting the same to their care. The whole transaction of the defendant Chapin with the Graces was fully explained by the testimony. By the instructions the questions of fact were fairly submitted to the jury, and the defendant had a fair trial.

they said." To the question, "Did you know | jury found that the note of the Mortgage & where the mortgages were?" she answered: Trust Company delivered to the Graces was "Well, no. They kept some of the papers at their office at that time and some of the bills, and we had some of them; and I don't know that we asked them where the papers It was an understood thing that they were in their office." Mrs. Grace testified that the defendants never asked or tried to borrow the money; that she thought when they got the four notes that it was a mortgage, and that the $3,500 note of ChapinHerlow Mortgage & Trust Company was a receipt therefor; that Chapin and Herlow that Chapin and Ierlow were to look after everything relating to the matter. It appears that the Graces had been acquainted with Mr. Chapin for about 20 years, and that a portion of the time had lived in the same house, and that they had perfect confidence in his integrity.

Mr. R. R. Duniway, an attorney, testified in effect that defendant Chapin admitted that this $3,500 had been received by them for the purpose of loaning it on first real estate mortgages, and that he did not know why it had not been done. It appears that no part thereof was loaned upon mortgages.

Defendant's version of the first conversation is as follows:

"After we had finished our conversation about the statement and the papers were all folded up and handed over to Mrs. Grace, we started to leave, and there was a sort of general conversation about one thing and another, and I think I made the remark that we were working into the mortgage business. She says, 'What can you get on mortgages?' I says: 'It depends upon where the property is located. Six or 7 or 8 per cent.; 7 per cent. in Laurelhurst, Irvington, and that district, and 8 per cent. farther on out.' And she says, 'We may have some money later on, and may want you to handle it for us' something like that. 'All right, we will be very glad to do anything we can for you, Mrs. Grace.'

It appears that there was no further understanding or agreement made concerning

this money.

Mrs. Grace asserts that it was an understood thing that it was to be loaned on first real estate mortgages. It also appears that an attempt was made on the behalf of the Graces to collect the money from the defendants, and that judgment was obtained upon the Mahon notes, but that the same could not be collected. Section 1956, L. O. L., provides in part:

"If any bailee, with or without hire, * shall fail, neglect, or refuse to deliver, keep, or account for, according to the nature of his trust. any money or property of another delivered or intrusted to his care, control, or use, and which may be subject of larceny such bailee, upon conviction thereof, shall be deemed guilty of larceny and punished accordingly."

It is contended upon behalf of defendant Chapin that the $3.500 was loaned to the Chapin-Herlow Mortgage & Trust Company,

We have examined other alleged errors, but find no reversible error in the record. The judgment of the lower court must therefore be affirmed; and it is so ordered.

MCRRIDE, C. J., and EAKIN and McNARY, JJ., concur.

(76 Or. 151)

PROCTOR v. JEFFERY et al.

(Supreme Court of Oregon. Dec. 29, 1914.) 1. APPEAL AND ERROR (§§ 395, 430, 627*)PROCEEDINGS-LACK OF JURISDICTION-DIS

MISSAL.

Where lack of jurisdiction of an appeal is disclosed by the appellant's failure to give a proper notice of the appeal within the time limited to file a proper undertaking or to send up a transcript, the appeal must be dismissed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2058, 2064-2070, 2085, 2086, 2173, 2174. 2744-2749, 3126, 3127; Dec. Dig. §§ 395, 430, 627.*]

2. APPEAL AND Error (§ 753*)-PROCEEDINGS ASSIGNMENT OF ERROR-FAILURE TO INCLUDE EFFECT.

Where an abstract on appeal failed to contain assignment of errors, such assignment not being essential to transfer of the cause, its omission was not ground for dismissal, and appellant would be permitted to include it by amendment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3086-3089; Dec. Dig. § 753.*]

3. APPEAL AND ERROR (§ 549*)-SCOPE OF REVIEW-PLEADINGS.

they may contest the sufficiency of the comWhere an appeal is taken by defendants, plaint for want of facts without filing a bill of exceptions.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 2441-2451; Dec. Dig. 8 549.*]

En Banc. Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Mrs. J. H. Proctor against Robert R. Jeffery, as executor, and Nellie Mason, as executrix of the will of R. L. Jeffery, deceased. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal.

Denied.

that Mrs. Grace accepted the note of the corporation for that amount, and that the testimony does not show that defendant is C. J. Curtis, of Astoria, for appellants. guilty. The evidence tends to show and the G. C. Fulton, of Astoria, for respondent.

MOORE, J. This is a motion to dismiss MOORE, J. This is a motion to dismiss an appeal on the grounds that the abstract does not contain any assignments of error, and that the bill of exceptions is insufficient to authorize an investigation of any questions to be re-examined. The appellants' counsel, denying that the bill of exceptions is inadequate, moves for leave to file an amended abstract setting forth assignments of error.

[1, 2] When by the failure of a party to give within the limited time a proper notice of appeal, to file an undertaking therefor, or to send up a transcript thereon, a lack of jurisdiction is disclosed, the appeal must necessarily be dismissed. An assignment of errors in an abstract, though convenient to a speedy examination of the questions undertaken to be reviewed, is not now made by statute essential to a transfer of a cause to the Supreme Court. It has been the practice, when an assignment of errors was inadvertently omitted, to permit, on proper showing, a typewritten statement of the errors relied upon to be inserted in the abstract after it was filed.

[3] In the case at bar, the appellants being the defendants can, upon the filing of a mere transcript, challenge the sufficiency of the complaint to state facts adequate to constitute a cause of action, without filing a bill of exceptions.

The motion to dismiss the appeal should be denied and leave granted to file an amended abstract which has been tendered, and it is so ordered.

an appeal on the ground that the notice thereof was not served within 60 days from the time the judgment was rendered. It appears from the affidavits of plaintiff's counsel that the cause having been tried and submitted to the jury they returned a verdict herein for the defendant on December 5, 1913, at 5:25 p. m., and after the clerk's office had been closed for the day. The certificate of the clerk shows that the judgment was entered on the following day at 2:10 p. m. The notice of appeal was served and filed February 4, 1914. The statute prescribing the time of rendering and recording judgments as far as involved herein reads:

"If the trial be by jury, judgment shall be given by the court in conformity with the verdict which the verdict is returned." L. O. L. § 201. and so entered by the clerk within the day on In Casner v. Hoskins, 64 Or. 254, 281, 128 Pac. 841, 850, in referring to such enactment, it is said:

"This clause of the statute was probably designed to create a lien as soon as possible after a verdict is rendered, but whether the provision is mandatory or ministerial is not deemed to be important, for the term 'within the day' evidently means within 24 hours, otherwise a verdict returned just before midnight would be ineffectual unless a judgment could be entered that day. Such a rule would be a travesty on thereon before the close of the last moment of justice.'"

99

The notice was served within the time limited, and this being so the motion is de

nied.

STRICKER V. PORTLAND RY., LIGHT & (Supreme Court of Oregon.

POWER CO.

(Supreme Court of Oregon. Dec. 29, 1914.) APPEAL AND ERROR (§ 425*)-NOTICE-TIME FOR SERVICE-"WITHIN THE DAY." In view of L. O. L. § 201, providing that judgment in conformity to the verdict shall be entered by the clerk "within the day" on which verdict is returned, the term "within the day" meaning within 24 hours, where verdict was returned December 5th at 5:25 p. m. and judgment entered December 6th at 2:10 p. m., a notice of appeal served and filed February 4th was within the 60 days from the entry of judgment.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2155-2161; Dec. Dig. 425.*1

In Banc. Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

(74 Or. 96)

WHITE V. MULTNOMAH COUNTY et al. Dec. 29, 1914.) COUNTIES (§ 182*)-SALE OF BONDS-PUBLICATION NEWSPAPER” — “LEADING NEWSPAPER."

Under Laws 1913, p. 706, § 17, requiring the publication of notice for two weeks before any sale of county bonds, in one newspaper in the county, and in one leading newspaper in Portland, and in one leading financial newspaper in New York City, a publication of notice in a weekly newspaper in the county and in a daily paper in Portland, and in a daily paper in New York once for two weeks before the time fixed for opening the bids and selling the bonds is sufficient, a "newspaper" being a publication in numbers, consisting commonly of single sheets, and published at short intervals, conveying intelligence of passing events, and a "leading newspaper" meaning a newspaper having a good circulation in the community

where it leads, so as to give publicity to mat

ters stated therein.

[Ed. Note.-For other cases, see Counties, Cent. Dig. § 285; Dec. Dig. § 182.*

Action by C. F. Stricker, administrator of the estate of Ed. Wechter, deceased, against the Portland Railway, Light & Power Com-es, First and Second Series, Newspaper.] pany. Judgment for defendant, and plaintiff appeals. On motion to dismiss appeal.

For other definitions, see Words and Phras

Denied.

W. A. Burke and J. C. Simmons, both of Portland, for appellant. Griffith, Leiter & Allen, of Portland, for respondent.

nomah County; J. P. Kavanaugh, Judge. In Banc. Appeal from Circuit Court, Mult

Suit by Walter F. White against Multnomah County and others. From a decree for defendants, plaintiff appeals. Affirmed, and suit dismissed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Lynn B. Coovert, of Portland, for appel- | bidders in accordance with the terms of said lant. Walter H. Evans, Dist. Atty., of Portland (Arthur A. Murphy, Deputy Dist. Atty., of Portland, on the brief), for respondents.

bid. The sole point in dispute is the sufficiency of the publication of the advertisement for proposals. Defendants demurred to the complaint on the ground that it did not state facts sufficient to authorize equitable intervention, and this demurrer was sustained, and, the plaintiff having declined further to plead, the suit was dismissed, from which decree appellant now appeals to this court.

Section 17 of chapter 349 of the Laws of 1913 prescribes the notice that was required to be given. It is as follows:

said bonds."

The bonding committee was required to advertise for two weeks before any sale of bonds in certain kinds of newspapers. The plaintiff's contention is set forth in his brief as follows:

RAMSEY, J. This is a suit by the plaintiff as a taxpayer of Multnomah county, against the defendants as the legally constituted, qualified, and acting board of county commissioners of said county, to enjoin the issuance of $250,000 worth of bonds proposed to be issued by the defendants as officers of Multnomah county, to aid in the construction of a certain interstate bridge and the approaches "No bonds authorized by this act shall be thereto, across the Columbia river, on a line sold for less than par or for anything but cash. All bids to purchase bonds must be sealed and from Portland, to Vancouver, Wash. These accompanied by certified check for five per cent. bonds constitute a part of an issue of $1,250,- of the amount of the bid and the bonding com000 in bonds, authorized to be issued for the mittee may reject any and all bids. Said compurpose indicated, by the people of Multno- mittee shall advertise in one newspaper in the mah county, Or., at an election held Novem- county, if there be one, and in one leading newspaper in Portland, Oregon, and in one leading ber 4, 1913, under the provisions of chapter financial newspaper in New York City for two 349 of the General Laws of Oregon for 1913. weeks before any sale of bonds, the fact of such The validity of said chapter 349 of the Gen- facts as will interest prospective purchasers; sale, inviting bids therefor and stating such eral Laws for 1913, and the election held for example, the date and place of sale, the thereunder, by which the issuance of $1,- terms of sale, the character of the bonds, the 250,000 in bonds was authorized, has al- amount, interest and denomination thereof, the fact that all bids must be accompanied by a cer: ready been before this court in the case of tified check for five per cent. of the amount of T. N. Stoppenback v. Multnomah County et the bid, that any and all bids may be rejected, al., decided July 14, 1914, and said act of the that the bonds may be sold only for cash, not Legislature was therein held to be constitu- other facts as may in the judgment of said combelow par, and to the highest bidder and such tional and the election thereunder was declar-mittee procure the most advantageous sale of ed to be valid. It is alleged in plaintiff's complaint and admitted by defendants' demurrer that the bonding committee, by a resolution passed at a meeting on October 15, 1914, directed the county clerk to invite proposals, by public advertisement in the manner provided by law, for the sale of $250,000 of bonds, and directed that the advertisement be published in the Evening Telegram of Portland, Or., a leading newspaper published daily, the Pacific Banker of Portland, Or., which is published weekly, and the Daily Bond Buyer of New York City, N. Y., a leading financial newspaper published daily in New York City, N. Y. It was further provided by said resolution that the bids be opened on November 9, 1914. Acting under said authority, the county clerk of Multnomah county caused to be published on the 24th day of October, the 31st day of October, and the 7th day of November, 1914, a notice of sale of said bonds, the form or sufficiency of which is not contested here. Pursuant to said notice and advertisement, 16 different proposals for said bonds were received and opened on November 9, 1914, among them being the joint proposal of Harris Trust & Savings Bank of Chicago, and Morris Brothers, of Portland, offering to purchase $250,000 of said bonds at the rate of 5 per cent. interest from July 1, 1914, for the price of $253,375, which said proposal was the highest and best bid received, and which was in compliance with the terms of the advertisement, and which was accepted. It is now proposed by

"By the terms of section 17, chapter 349, Laws of 1913, it is required that the bonding committee shall advertise for two weeks before any sale of bonds. It is the contention of appellant herein that the requirement that the notice 'shall' be advertised for two weeks' is mandatory upon the bonding committee, and is jurisdictional to the valid issuance of any bonds. Appellant does not contest the sufficiency of the publication of that notice inserted in the Pacific Banker of Portland, Or., because it appears that the notice was published in all issues of that paper between October 24, 1914, and November 7, 1914, both inclusive. But appellant earnestly contends that the defendants, having chosen two daily papers for the publication of law by inserting the notice in only one issue per their notice of sale, have not complied with the week therein. And this defect is vital to a valid publication."

The plaintiff admits that the publication of the notice in the Pacific Banker of Portland was proper, as it is a weekly paper and the notice was published in all issues of that paper during the two weeks period; but he insists that the publication of the notice in the Evening Telegram of Portland and the Daily Bond Buyer of New York were insufficient, because said papers are published daily, and said notice was published in each of them only three times. The plaintiff contends that the notice should have been published in every issue of said daily papers for

In Commonwealth v. Allen, 203 Mass. 529, 530, 89 N. E. 918, a statute was invoked that required a certain regulation to be advertised for at least two weeks in two or more newspapers published in Boston, and the Supreme Court of Massachusetts, commenting thereon, says inter alia:

supra, requires the notice to be published, lative assembly intended to effect. The plainfor a period of two weeks before the sale of tiff's contention is supported by decisions of the bonds. "Two weeks," within the meaning the Supreme Court of Nebraska. Union Paof this statute, comprises 14 successive days, cific R. Co. v. Montgomery, 49 Neb. 429, 68 and this statute requires the publication of N. W 619; Claypool v. Robb, 90 Neb. 193, the notice for that period of time. It does 133 N. W. 178; Smith v. Potter, 90 Neb. 298, not require it to be published for three weeks 133 N. W. 437. However, we are unable to or 21 days; but the publication for a longer assent to the rule adopted in Nebraska and period than that required by the statute does insisted upon by the plaintiff. not vitiate the publication. This statute does not require that either of the newspapers in which the notices are required to be published be a daily. It does not say how frequently the papers should be published; but as the notice is required to be published for a period of two weeks, it is evident that a publication at least once a week for that "The regulation in question was duly passed period of time was intended. Each of the and advertised in Boston newspapers as fol three papers mentioned in the statute is re- lows: In the Transcript and Globe from Dequired to be a newspaper and one of them cember 15, 1908, to December 29, 1908, inclusive, except on the two Sundays * * and is required to be a leading newspaper of the on Christmas in the Transcript; and in the city of Portland and another must be a lead-Herald from December 22, 1908, to January 4, ing financial newspaper in New York City. cember 27 and January 3. The Globe and Her1909, inclusive, except on the Sundays of DeIt is evident that it was not intended to re- ald issue Sunday editions, but the Transcript quire the publication of the notice in a daily does not, and the exceptions do not show whethnewspaper. A weekly paper is sufficient if er it was published on Christmas, 1908. point relied on by the defendant is that the regit possesses the other qualities required. ulation was not published as required by the statute. He contends that an advertisement for at least 14 consecutive days, including Sundays and holidays, will alone satisfy the terms of the statute. * But an examination of

In his Law Dictionary (2d Ed.) p. 816, Mr. Black defines a newspaper thus:

"According to the usage of the commercial world, a newspaper is defined to be a publication in numbers, consisting commonly of single sheets, and published at short and stated intervals, conveying intelligence of passing events." If the Legislature had intended that the notices required by said act to be published should be published daily or in a daily paper, it would have so stated in the act. The only requirement, except as to the characters and places of publication of the papers, is that the committee shall advertise "for two weeks before any sale of bonds."

The

the statutory phrase quoted from the section we are considering in the light of other statutes and the decisions of this court makes it clear that it is not susceptible of the construction urged by the defendant. In Bachelor v. Bachelor, 1 Mass. 256, an order of the notice to be published 'three weeks successively' was held to have been complied with if printed once a week in a newspaper issued semiweekly. St. 1863, c. 107, § 2, required a notice to be published for two weeks successively' in a newspaper in Springfield. A publication in a daily newspaper two days in each week was held to be a compliance with the statute. Brewer v. Springfield, 97 Mass. 152. Gen. Sts. c. 19, § 14, provided that rules as to carriages must be published at least one week in some newspaper.' Such rules adopted by the board of aldermen of Boston were held to be legal by publication once in several Boston papers. Commonwealth v. Matthews, 122 Mass. 60. The validity of tax sales under statutes requiring an advertisement for 'three weeks' * has never been quéstioned because made only once in each week. issue*** All that the present statute requires is such an advertisement in two weeks as may be reasonable notice to the people. It is conceivable that a publication in weekly newspapers or circulation and public regard might be a comonce a week in daily newspapers of sufficient pliance with the law. Clearly the advertisement here assailed was sufficient."

In 17 Ency. Pl. & Prac. p. 98, it is said: "It is generally held that where a notice is required to be published for a certain number of weeks, publication once a week for that number of successive weeks is sufficient."

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The point contended for by the plaintiff is that, inasmuch as the committee published said notice in two daily papers, it was incumbent on them to publish it in every issue of those papers for the period of two weeks. He admits that publication once a week for the period of two weeks would have been sufficient, if it had been done in weekly newspapers having the required qualifications, but he insists that, inasmuch as two of the papers selected by the committee were dailies, the notice should have been run in every issue of those papers during the two weeks period. We are unable to see any good reason for the plaintiff's contention. These two papers are adThese two papers are admitted to be leading newspapers in the cities in which they are published. A paper could not be "a leading newspaper" without having a good circulation in the community where it leads, and publication of a notice in such a paper would give publicity to the matters stated therein. That is what the legis

In Bachelor v. Bachelor, 1 Mass. 256, the statute relied on required a notice for the sale of real estate to be published in a newspaper "three weeks successively." The notice was published in a paper issued semiweekly, on June 30th, July 7th, and July 11th. It was published three times in a semiweekly paper, and it was contended that it had not been published three weeks successively; but the court held that the law had been substantially complied with.

In Brewer v. Springfield, 97 Mass. 152, the

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