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AN INDIAN SUMMER PROBLEM. Editor of the Albany Law Journal:

Reading the answers of your correspondents to "Midsummer's" problem, suggests to me to present to them and you the following:

appears to be incomplete. There is no such alternative in England. In English criminal procedure the jury consists of 12 men, who must be unanimous in their verdict of guilty or not guilty; when not being able to agree, after hours of wrangling together, they are dismissed, thereby occasioning a new trial. In Scotland the thing is conducted more in accordance with human nature. The jury is composed of 15 men, who, if not unanimous, may decide by a majority, such as 8 to 7, or possibly 14 to 1; by which means a juror with twisted notions, resolved on being singular, as often happens, is unable to thwart the ends of justice. The decision by a majority is accepted without demur. In the trial of civil cases, a latitude is also allowed. The jury consists, as in England, of 12 men; but if they NEW YORK COURT OF APPEALS DECISIONS. have been in consultation for three hours a majority of nine is sufficient for a verdict. If after nine hours

A being the owner of three lots, X, Y and Z, executes a mortgage upon them all, which is duly recorded. He then alienates them as follows: 1st lot X to B; 2d lot Y to C; 3d lot Z to B. B theu alienates his two lots as follows: 1st lot Z to D; 2d lot X to E. Upon foreclosure of the mortgage, in what order should the lots be sold? D. M. W.

CAMBRIDGE, N. Y., Oct. 4, 1880.

THE following decisions were handed down Tuesday, there be not a majority of nine, the jury may be dis

Oct. 12, 1880:

Judgment affirmed with costs-Atlantic State Bank, in Brooklyn v. Savery and ors., impleaded; Argotsinger v. Vines; The People ex rel. Larrabee v. Mulholland, police justice, etc. Judgment reversed and new trial granted, costs to abide event - The Trustees of Forrestville Baptist Society v. Farnham and ors.; Winegar v. Fowler. -Judgment affirmed, and case remanded for the proper sentence to the court of sessions of the county of Albany The People v. Cronin. Order affirmed with costs- In re Churchill, to vacate, etc.; Tompkins v. Greene; Phinney v. Orth; Schell (Rodman) v. Devlin and ors., executors; Ammerman v. Peck; Ammerman v. Moore; In re Attorney-General v. The Guardian Mutual Life Insurance Company.- Orders of General and Special Terms reversed with costs, and motion granted, costs to be paid out of the fund-The People v. The National Trust Company of New York. Order of General Term reversed and judgment on report of referee affirmed with costs - Humlin v. Sears.

NOTES.

missed. These Scotch arrangements seem to be in all respects more rational than the practice prevalent in England and Ireland. No one ever heard of a miscarriage of justice, civil or criminal, in Scotland, owing to decisions by a majority. The accurate and impartial method of summoning Scotch jurors, special and common, in itself merits commendation.

Apropos of Judge Hammond's learned decision and note, in United States v. Coppersmith, ante, 250, we call attention to the following extract from the Westminster Review, Vol. XX, p. 72, A. D. 1838; 1 Am. Jur. 253: "The favorite classification of offenses is into felonies and misdemeanors; though these epithets give no more idea of the nature of the offenses, to which they are applied, than if two Chinese words were used in their stead. A very vague idea of the quantum of punishment, which may be awarded to the offender, is the full extent of the information conveyed by them; for some misdemeanors are punished as severely as many felonies, always excepting that iniquitous ad

MR.
R. JOHN D. PARSONS, JR., of this city, has injunct to the punishment of all felonies, the forfeiture

press, to be issued in the course of three weeks, a volume of National Bank Cases, edited by Irving Browne, editor of this JOURNAL, on the same plan as Mr. Thompson's volume of like cases. The forthcoming volume will contain all the cases to date since the former volume, and also a copy of the National Banking Act, with sectional references to the cases in the two volumes. In our note last week of the com

plaints of the Chicago Legal News, on Judge Harker's decision prohibiting a woman from serving as master in Chancery, we distinctly wrote the name of the editor as "Mrs." Bradwell, but the compositor or proof-reader, wiser in his generation than the editor, carefully corrected it to "Mr." We hasten to apologize before the News annihilates us.

Trial by jury, that much-honored palladium of civil rights, differs materially in the two countries. A Scottish criminal trial is a model of fairness and deliberation. The accused is in good time served with a very precise indictment, along with a list of the witnesses to be used in evidence against him. At the trial the jurors are chosen by ballot, and each is furnished with a printed copy of the indictment, with paper, pen and ink to write notes of evidence as it proceeds. The trial begins by the clerk of the court reading the indictment, by which means the exact nature of the accusation is openly and clearly defined, and there is no need for a lengthened prefatory harangue by counsel for the prosecution. The indictment being read the evidence is at once proceeded with. Any one can compare this precision with what occurs, and is occasionally complained of, in England. A Scottish jury may give a verdict of guilty, not guilty, or not proven, this last alternative being adopted when the evidence

of goods and lands. Should an ignorant man wish to know something more of the meaning of these terms, he may learn that a starving child who steals a pennyloaf is guilty of a felony, while a man who forges the mark of the Goldsmith's Hall on plate to any amount is only guilty of a misdemeanor. The man who administers an unlawful oath is guilty of felony, but the man who falsely swears away the life of another is only guilty of a misdemeanor. An apprentice, who appropriates a shilling to his own use received on his master's account, commits a felony, while the man who maliciously destroys the dam of a mill-pond is only guilty of a misdemeanor. So much for classification and consistency."

From the same volume of the Jurist, p. 254, we extract the following form of the advocate's oath prescribed by law, adopted by the representative council of Geneva, June 20, 1834: "I swear before God, to be faithful to the Republic and Canton of Geneva; never to swerve from the respect due to the tribunals and to the authorities; not to advise or maintain any cause which does not appear to me to be just or equitable, unless in the defense of an accused; not to employ knowingly, in order to maintain the causes which shall be confided to me, any means contrary to the truth, and not to attempt to deceive the judges by any artifice, or by any false exposition of facts or of law; to abstain from all offensive personality, and not to advance any fact against the honor and the reputation of the parties, unless it be indispensable to the cause, with which I shall be charged; not to encourage the commencement or the carrying on of any process, from any motive of passion or of interest; and not to refuse from any personal considerations, the cause of the feeble, the stranger, or the oppressed."

The Albany Law Journal.

WE

ALBANY, OCTOBER 23, 1880.

CURRENT TOPICS.

Friars, whose privilege of sanctuary is pernicious to the best interests of society," it seems to us he sacrifices fact to a clever expression. Mr. Thompson complains of the unfitness of a jury, through inexperience and ignorance, to pass on particular states of facts. Well, where will he get his Admirable Crichton of a judge who is any better fitted? The one as well as the other must be instructed by expert testimony for the occasion. We dissent from Mr. Thompson's view that a judge is much better qualified to weigh evidence than a jury. His very "expertness" disqualifies him. Let us ask Mr. Thompson why, if judges are so much fitter to pass on questions of fact than juries, it is deemed necessary in so many communities to prohibit the judges by legislative enactment from expressing their opinion on the facts to the jury? The truth is that

E have noted two recent utterances from the west, one in reference to the bench, the other to the jury: Mr. Gantt, in the current number of the Southern Law Review, in an article entitled "Judicial Nominations,' ,, says some things to which we heartily assent. His belief that judicial nominations, if left to the bar, would without exception be good, coincides with our own. "The bar naturally and necessarily desires to see the best of its number advanced to the place of honor." "Not only is the bar the most competent to judge of qualifica-judges and referees are very poor arbiters of fact, and tions for the judgeship, but it is more directly and vitally interested than any class of the community in the selection for the bench of him who possesses them in the fullest measure." We would like to see judicial nominations always made by the bar. But we do not agree with Mr. Gantt that "the practice of electing judges by popular vote is essentially vicious." We think it is theoretically right that the citizen should elect his judge as well as his lawmaker or his governor. We do not know why the principal should directly appoint his own legislative and executive officers, and in the selection of judges be compelled to express his choice only through an agent of his own selection. And in practice we believe that elected judges have generally been fitter than appointed judges. Such certainly is the history of our State. Undoubtedly we shall have Cardoza and Barnard cited against us, but we reply that the same influences which produced their election would probably have produced their. appointment, and when they were elected they were unexceptionable men. Certainly abler men have rarely sat on the bench in New York city. Mr. Gantt's idea springs from a distrust of the people which we believe to be unfounded.

The same distrust of the people is disclosed in Mr. Thompson's dedication to his excellent little book, "Charging the Jury." Although the author is a contingent judge- we hope to be elected and although his book is dedicated to an excellent judge, we hardly think there is any necessity or excuse for his somewhat studied attack upon the jury system, and his expressed preference for a one-man jury, especially as he admits that there is no probability of any radical change of system. Mr. Thompson complains of the uniform verdicts against corporations. In our opinion they are quite right. If it were not for the jury, great corporations, like railroads and insurance companies, would oppress the community by their recklessness and unconscientiousness. The jury are an indispensable counteracting influence like the different metal in a chronometer. When Mr. Thompson says the province of the jury "is in many cases a judicial White VOL. 22.- No. 17.

that juries are right nineteen times out of twenty, and we believe, even ninety-nine times out of a hundred. Such is judicial experience and testimony. Do not the best judges shrink from passing on disputed facts? Is there a judge on the bench who would prefer to submit his right of person and property in a case of conflicting testimony to a judge rather than a jury? We never heard of one, and we believe if we could poll the bench we should hear an almost unanimous voice in favor of the theory of the jury system. In truth, Mr. Gantt's and Mr. Thompson's present utterances are simply those forms of speech in which intelligent men are prone to indulge about the time when they are temporarily tired of a republic, fear that men are not fit to rule themselves, and yearn for a strong government.

A correspondent, in commenting on our remarks on the comparative number of reversals in the New York and in the Illinois Supreme Court, calls our attention to the fact that the law under which Bradwell's Reports are issued requires that no opinions should be published except in cases of reversal. We were aware of this fact, and our point was that the reversals in our Supreme Court in three years would not fill six volumes. We agree with our correspondent that the limitation of the reports to reversals is inexpedient. Our correspondent has ascertained that judging from one district "fully two-thirds of the cases are affirmed." Our recollection of statistics is that in our court at least threequarters are affirmed.

Two rather novel points as to the rights of authors in their literary productions have been recently ruled, one in England, the other in this country. Miss Genevieve Ward, it seems, has bought from Messrs. Merrivale and Grove the privilege of acting for a term of years a play called "Forget me not." Miss Ward has seen fit, in putting the play upon the stage, to omit a single character. Messrs. Merrivale and Grove sued to restrain her from making this omission, and Lord Coleridge has denied the application. The London News asks: "If the manager of a theatre has a right to alter a play which

he has purchased the privilege to represent for a term of years, why might not a publisher be allowed to improve, according to his notions of improvement, the novels, the poems, and the scientific treatises bought by him?" This is indeed a curious point. The probability is that the play is the better for the omission, and that the author would be glad, after an experience of the restoration, to consent to abide the manager's discretion. It is said that Anna Dickinson is about to bring a similar suit to restrain Fanny Davenport from making changes in her play, "An American Girl," which the latter is acting.

The other point is as to the copyright of Irving's nieces in his works. We have commented on this case before. See 21 Alb. L. J. 162. It will be remembered that the copyright having expired, a firm prepared to issue a volume of selections from this author's writings, entitled "Irving's Works." The Misses Irving and their publishers, George P. Putnam's Sons, sought a permanent injunction, claiming that after the expiration of his copyright, an author has, or his heirs have, a common-law right to control the publication of his works. They also claim a trade-mark right to the title "Irving's Works." The suit has just been decided in favor of the defendants. Beach, J., said: "I consider it settled by authoritative adjudications that an author has no common-law right of property in literary works, after publication, id est, by printing and sale; and even had it existed, the right was taken away by the act of Congress relating to copyright. Palmer v. De Witt, 2 Sweeny, 547; S. C., 47 N. Y., 532, 539; Dudley v. Mayhew, 3 N. Y. 912; Millar v. Taylor, 4 Burr. 2303. The defendants' use of the title 'Irving's Works' does not interfere with any legal

ing — viz., starvation from every thing but cold water, for a period of one, two, or any number of days under forty. The thing can be put in force instantly and everywhere, and then behold the result! The present continually increasing expense of prisons to the community would be cut down to generally three days, in place of three years; while the hitherto too well-fed vagabonds would be returned to society in a purer state of physical constitution, and with a lively presentiment, enforced by Nature herself, that they must work honestly in future if they would eat." On this the London Law Times remarks: "The only weak point in the system appears to be the absence of any thing corresponding to hard labor in aggravated crimes, and this might be supplied by a judicial direction to the gaoler to hold at the keyhole of the cell door, during certain specified hours, a savoury dish, the odor of which will pervade the cell. The nature of the dish should be varied in proportion to the seriousness of the crime and the tastes of the criminal. Offenders of the deepest dye should starve amid the fumes of roast goose, and Scottish criminals should suffer in the midst of an atmosphere of haggis." Carrying out this idea, an odor of apple pie should tantalize the Yankee, the Southerner should be made to smell of hog and hominy, while the native of the western plains should snuff the scent of buffalo or "grizzly" steak. Would not this be an effective treatment for tramps? We should not like to live in a country controlled by Carlyle, Ruskin and Professor Piazzi Pyramid Smyth.

right of the plaintiffs. It is true they have applied N
it for many years to the author's revised, corrected,
and complete writings. But the defendants' use
does not mislead the public, because the application
is to the author's productions, although not revised
or corrected, and in some instances incomplete.
Nevertheless, what the defendants print and sell are
in truth the works of Washington Irving as they
originally appeared. They made no effort to induce
the public to think their publication to be that of
the plaintiffs. This designation could not be the
exclusive property of the plaintiffs unless it marked
a published work which they had the exclusive
right to print as against the defendants. This right
they do not possess, and any one lawfully printing
the writings of Irving may designate them 'Irving's
Works.' The name seems merely descriptive of an
article of trade, of its qualities, its ingredients, and
characteristics."

NOTES OF CASES.

'N Dicks v. Brooks, 43 L. T. (N. S.) 71, the English printed Berlin woolwork pattern is not a piratical Court of Appeal, it was held that a chromocopy of an engraving from the same design. The picture in question was Millais' famous "Huguenot." The court said, per James, L. J.: "No doubt the art of the engraver is often of the very highest character of art, as in the print before me. It is difficult to conceive any thing of much higher skill or art than that which has by a wonderful combination of lines and touches reproduced the very texture and softness of the hair, the very texture and softness of the dress, and the wonderful look of love and admiration in the eyes of the young lady looking up at her lover—it is difficult to conceive, as I skill was the thing I believe, and am satisfied, which say, any art or skill greater than that. was intended to be protected by the acts of Parliament, and what we have to consider is whether the other thing which is before us is a copy of the enProfessor Piazzi Smyth, the celebrated astronomer, graver's work. Now, as to this woolwork pattern, and discoverer of the true inwardness of the Great I am satisfied upon the evidence that its production Pyramid, has invented a method of criminal pun- must have been aided by the man who produced it ishment, combining efficiency with economy, which having before him a copy or a photograph of Mr. will commend itself to statesmen. He says: "Dr. Brooks' print in some shape or other, because the Tanner's mode of fasting furnishes us with the design is reproduced, the attitude is the same, and identical arm which the law has so long been in in some things in which the print differs from the want of, prompt, salubrious, and mentally improv-picture, there appears to be a resemblance between

That art or

for his own amusement to etch, draw, or make a water-color, he would still be within the very strict meaning of the language, because he would have made a copy or copies of the print which is protected." "Now I think in the case of Gambart v. Ball, 8 L. T. (N. S.) 426, the object of those acts was very well pointed out as being of a two-fold character, first, the protection of the reputation of the engraver, and secondly, his protection against any invasion of his commercial property in the print. It seems to me idle to suggest that in this case the reputation of the engraver from whose hands that beautiful engraving proceeded, will suffer from the publication of a print intended for the purpose of ladies or others working in Berlin wool from it. It would be idle to suggest that his reputation could suffer, and as far as regards his commercial property, it appears to me to be almost as absurd to imagine that the commercial position of the owner of a print should suffer by the sale or the publication of this article. Now I would not desire to say that a representation of this print in chromo-lithography, executed with that high skill and art with which works of art are now executed in chromo-litho

this thing and the print before me. But then is that a copy of the engraver's work? It appears to me, without going into any etymological definition of the word 'copy,' but using the word copy in the ordinary sense of mankind as applied to the subjectmatter before us, and as used in the act of Parliament, the question is, Is it a piratical imitation of the engraver's meritorious work in the print? Now I am of opinion, as a matter of fact, that the thing is not a copy, nor a piratical imitation, nor a colorable imitation, nor a piratical reproduction of Brooks' engraving. The work itself was intended to be and appears at sight to be something intended for a totally different purpose, and not to be intended as a print in the ordinary sense of the word. It was intended to be printed, and was printed as a pattern for Berlin wool work, not put forward in any way fraudulently, or as a sham, but really in truth intended to be, and it looks upon the face of it to be that which it is said to be, a pattern for working in Berlin wool. Now I am of opinion that whatever may be the similarities between the one and the other, the attempt to produce, not the print but something which has some distant resemblance to the print, not by any thing in the nature of engrav-graphy, of a character fitted to be framed and hung ing work, or the introduction of the engraving lines, but by what I might call a mosaic of colored parallelograms, is not in any sense of the word a piratical imitation of the print. Nobody would ever take it to be the print; nobody would ever buy it instead of the print; nobody would ever suppose that it was, to use the language of the first act, a base copy of the print in any sense of the word. It is a work of a different class of art intended for a different purpose, and in my opinion, no more calculated to injure, in the sense in which protection is given by these acts of Parliament, the print quâ print, or the reputation of the engraver, or the commercial value of the property in the hands of the proprietor, than if the same group exactly were reproduced from the same engraving by waxwork at Madame Tussaud's, or in a plaster of Paris cast, or if taking or using this print as the design or model something were devised from it as like it as could be for the purpose of being printed upon a surface of porcelain or upon any other material of that kind. I cannot conceive myself that such a reproduction of the subject as that, whether it is worked in tapestry or Berlin wool, printed upon china, or reproduced in earthenware, or any other material of that kind, is within the meaning of the act of Parliament. What the act of Parliament intended to prevent was the piratical appropriation of the work of the engraver for the profit of some person minded to steal that work." Baggallay, L. J., said: "I also am of opinion that this Berlin wool pattern is not a copy of a print protected by the statutes." "Now it is perfectly clear that those words must receive some limitation, because if a lady was to paint upon a china plate and procure it to be baked, a copy of that print, or a copy reduced in size, or even of a portion of that or any other print, the acts could not be said to extend to such a case as that. So, in like manner, if a person were simply

up in a person's room or used as an ornament in that way, could not be treated as a copy of the print prohibited by the statute. I do not say that it would be so, but that it might be a matter of contest. Looking at the deviations even in the subjectmatter here you have no doubt a young man and a young woman standing up in the centre of the picture, but beyond that almost every detail is altered from beginning to end. Again, you have no work of art in this woolwork pattern. The woolwork eventually to be made might probably be a work of art, but you cannot call this a work of art. You might almost as well call a representation of the king and queen on a gingerbread stall at a fair a work of art. I cannot, therefore, at all understand in what way this thing can be looked upon as a copy within the intent and meaning of these acts of Parliament, and at present it is not necessary to go into any other part of the case." Bramwell, L. J., said: "What these statutes intended was to protect the artist in engraving, and that what the Legislature contemplated was that his work, as an engraver, should not be pirated by any thing which copied what he had done, and the author of which availed himself of what the engraver had done for the purpose of making a copy which would be a substitute for what he had done. What really was in the contemplation of the Legislature at that time was that there should not be another plate made another engraving-the engraver of which would have the benefit of what had been done by his predecessors." "There is a picture of which Mr. Brooks is not the owner, I mean the picture by Mr. Millais. It is conceded, as I understand, that anybody might have gone to that picture and made a fresh engraving of it upon a fresh plate, unless there had been some bargain which possibly might have precluded his having a right to do it if it was known to him, as to which I say nothing, because I know nothing. It is conceded

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a multo fortiori that the person who prepared this might have gone to the picture and taken from it the materials for producing that which is produced here before us." "But if that is so, if this Berlin wool pattern might with these trifling variations have been taken from the original picture without infringing the engraving, how can it be possible to say that the case is within the acts because the man who did it, instead of going to the picture (if he could have got access to it), thought it more convenient to take this engraving, or possibly a smaller one, or possibly the etching for any one of them would have served his purpose, because all he wanted was the outline and the scale in order to produce it with trifling variations, which do not identify it with this engraving, and are no piracy of the engraver's skill or art? How can it possibly be said that that is within the act? I really cannot think it is."

The Vienna Juristische Blaetter contains a decision

maker, if when the note is negotiated the maker's name stands first on the back.

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Woodward v. Towne, p. 41.-An attorney in fact does not act in a fiduciary character" within the meaning of the Federal bankrupt act.

Connecticut River Railroad Co. v. County Commissioners, p. 50.—A statute authorizing the taking of lands for the use of a railroad owned by the State, and of other railroads, without providing for compensation to the owners except from the earnings of the State railroad, is unconstitutional.

Freeman's National Bank v. Savery, p. 78.- L., a member of the firms of S. & Sons and P. & Co., made his own notes, payable to the order of P. & Co., and without authority indorsed them in the name of S. & Co. D., another member of the firm of P. & Co., then indorsed the name of that firm as first indorsers. They were presented to plaintiff for discount, before maturity, one by a broker and the other by D., who was known to it to be a member of the firm of P. & Co., and discounted by the plaintiff. S. & Sons had no benefit from the notes. Held, in an action against S. & Sons, that the facts showed no conclusive notice of the invalidity of the indorsements.

Mullen v. Old Colony Railroad Co., p. 86.- If one fraudulently obtains from another his signature to a discharge of a cause of action, the latter may maintain the action without returning the money.

Bradlee v. Warren Five Cents Savings Bank, p. 107. The treasurer of a savings bank cannot bind it by his indorsement in its name, although it had directed the sale of its notes, and authorized him to "draw all necessary papers and discharge all obligations."

by the Austrian courts on the formalities necessary to the execution of a will. The evidence showed that John P. intended to make a written testimony | according to law. He procured a notary, N., to draw the same for him. The law requires that the testator shall subscribe the instrument; that he shall affirm the instrument to be his will before three | competent witnesses, and that the witnesses shall sign the paper as witnesses. It appeared that the notary had written the will at his office; that then he had called in three clients of his to act as witnesses; that the will was read in their presence and in that of the testator, and then subscribed by them; that they did not speak with John P., and he was silent during the transaction. The notary, the testator and the witnesses were the only persons present in the room. The will contained the following conclusion: "I have declared, before the testamentary witnesses called in, these provisions to be my last will, and subscribe the same before them." The Supreme Appellate Court decided that the willing, who has been compelled to pay damages for was not legally executed. They say: "The law does not indeed require that the affirmation shall be express and oral, in a certain formula, but it must be declared in a manner excluding any doubt of the witnesses, that the instrument contains the last will of the testator. The mere and silent presence of the latter at the reading of the instrument cannot be taken for such affirmation, the less so, as the witnesses do not state that they observed an utterance of the testator which would show in an unmistakable manner that he had heard what was read, had understood it, and would have it in force as his last will."

ONE HUNDRED AND TWENTY-SEVENTH
MASSACHUSETTS REPORTS.

THIS

Towne v. Fiske, p. 125.-A portable hot-air furnace and gas-fixtures in a house, although connected with the house in the usual manner, are not part of the realty.

Churchill v. Holt, p. 165.-An occupant of a build

injuries sustained by another by falling into a hatchway on the premises negligently left open and unguarded by a third person, may maintain an action against such third person for indemnity.

Donlan v. Provident Institution for Savings, p. 183. The by-laws of a savings bank provided that depositors should sign and conform to the by-laws; in case of loss or theft of the deposit-book, should give immediate notice to the bank; and that the bank would not be responsible for payment to a wrong person in absence of such notice. A. subscribed the by-laws by his mark, and was unable to read. Having died, his book was presented to the bank by one fraudulently personating him, and his deposit was paid by the bank. His executors had previously published the usual citation for proof of his will. The bank did not know of his inability to

HIS volume contains the following cases of gen-read, and had received no actual notice of the theft eral interest:

Dubois v. Mason, p. 37. - Where one indorses a note, payable to the order of the maker, before negotiation and before indorsement by the maker, his liability is that of indorser, and not of joint

of the book nor of his death. Held, that the bank was not liable in an action by the executor for the deposit.

Blagge v. Ilsley, p. 191.— An action for seduction of a daughter may be maintained upon proof that

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