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THE.collowing decisions were handed down Tuesday,


HE Editor of the Albany Law Journal:

Dec. 6, 1887: Will you allow me to refer in your columus to a

Judgment reversed, uew trial granted, costs to abide well-worn subject, the delay in the hearing of cases

eveut-People, ex rel. Edwin A. Nash, surrogate, reby the Court of Appeals? The present calendar was

spondent, v. James Faulkner, Jr., executor, et al., made up last May, and I hear that there is no likeli appellants; Robert Young, respondent, v. New York, hood of a new one before next October. Thus an un

Lake Erie and Western Railway Company, appel

lant. Judgment affirmed with costs John F. preferred case which was appealed to the Court of Appeals last June, cannot possibly be heard before the

Hirsch, respondent, v. City of Buffalo, appellant; latter part of 1889, if then. Roughly speaking, it is

Louis Windmuller et al., respondents, v. Thomas J. correct to say, that an unpreferred case has to wait Pope et al., appellants; Julia C. Chapin, respondent, about two and a half years for a hearing in the Court firmed-People, respondent, v. Charles F. Myers, ap

v. Hopkins H. Meloon, appellant.-Judgment afof Appeals. As to preferred cases, though the delay is less it is far too great. It is not necessary to say that pellant. — Appeals dismissed with costs-Josephine this is a bad condition of affairs. The difficulty lies in

Decatur, executrix, appellant, v. John E. Goodrich, devising a remedy.

respondent; George W. Wingate, respondent, v. LipCertainly a remedy is necessary. The Court of Ap- soy Gas Burner Company, respondent; E. P. Gleason peals makes every inch of ground possible under exist Manufacturing Company, appellant; In re Jane A. ing conditions. It hears an enormous number of cases

Porter, a luuatio; Johu Brady, respondent, v. Mayor, every year, and decides them promptly, yet with all

etc., of New York, appellants; Bernard Brady, renecessary care and deliberation. It maintains the spondent, v. Same. — Order affirmed with one bill of high reputation which the highest Court of the Empire Salie Fraukel v. Same; Yette Thalheimer v. Same;

costs-Ignatz Thalheimer v. Ferdinand Hays et al.; State should have. But the judges are worked far too hard. The bar acquits them of any blame for the state

Susselia Hays v. Same. -Motion for reargument deof the business in their court.

nied with costs-People, etc., v. Knickerbocker Life Various remedies have been proposed, and I have

Insurance Company. -Motion to put cause on the picked out of them what I deem the best, I submit

calendar as preferred granted without costs-William my conclusions without discussion or elaboration,

A. Wheelock, respondent, v. Michael Noonan, appeland mainly to keep the subject in a state of agitation: lant. —- Motion to review and affirmance denied withOnly in that way can we hope to divert our legislators Code of Civil Procedure, with $10 costs-Harriet Bal

out prejudice to application under section 1278 of the from irrelevant local and political matters to matters of really great concern affecting the public welfare.

lou, respondent, v. Charlotte Ballou et al., appellants. (1) Appeals from orders to the Court of Appeals the cause may be put upon any day calendar submit.

-Petition to put cause on calendar. Ordered, that should be disallowed, excepting orders which put au end to an action or grant or refuse new trials, and Limited, appellants, v. Philo Remington et al., re

ted-New York State Monitor Milk-Pan Company, final orders in special proceedings. This would leave spondents. —Motion to dismiss granted with costs-the General Term the final court ou questions of prac Ignatz Oestereicher, appellant, v. Thomas A. Raistice. And so it should be. A court composed of three or four experienced judges is surely competent to

beck, respondent; William F. Parks, appellant, v.

Margaret A. Murray, impleaded, respondent. - Mofinally regulate all questions of practice. This wouid relieve the Court of Appeals from the waste of much

tion to open default granted on payment of $20 costs time in hearing such appeals.

Jesse W. Powers, respondent, v. Morris Silbersteen, (2) The limitation of $500 should be raised to $1,000,

appellant. -Motion to amend remittitur. Ordered,

that the remittitur be amended by making the award reserving of course, to the General Term the power to

of costs in favor of the individual defendants to read. allow an appeal to the Court of Appeals in cases iuvolving less than $1,000, when doubtful or exceptional thereto the clause, “and without prejudice to any ap

costs in all courts against the plaintiff,'' and adding questions of law are involved. A litigant with less than $1,000 at stake should be satisfied with the decis plication to the Supreme Court in their behalf for an

additional allowance, or of any application in bebalf ion of a court cousisting of three or four judges, when

of the defendant Chase for any relief." Ordered furthose judges see no reason in the nature of the case for allowing an appeal. We can trust to the judges made in behalf of the plaintiff

, be denied-Harriet

ther, that the application to amend the remittitur, exercising their power of allowing an appeal with

Vilas et al., admx., etc., v. John B. Page et al. discretion and consideration.

(3) The chief judge should be given the power to call up judges of the Supreme Court to aid the Court of

NOTES. Appeals whenever necessary. At all times there should be a majority of the regular judges of the Court of Appeals sitting in the court. This course would in- While a oertain Judge Greeue was trying a civil case, crease the working force of the court, and prevent the Mr. X., the attorney for the defendant, bad occasion collisions and differences in prestige, incident to two to quote from Browne (a legal authority), but profinal courts. If two or three Supreme Court judges nounced the final e in that name. “ Mr. X.," said the were present in the court, they would relieve the same

judge, “ I believe that uame is pronounced Brown, number of Court of Appeals judges from attendance

not Brown-e. Now my name is also spelled with a

final on the court, and it could be so arranged that more

e, but it is pronounced as one syllable is it not?" time could be given to the hearing of cases and a larger

“Your honor," said Mr. X., “that depends entirely force devoted to the writing of opinions.

upon how you decide this case. I believe it these measures were adopted the Court

It is gratifying to learn that a wife may have a of Appeals would keep abreast of its work.

divorce for cruel treatment, although she herself " has Yours very truly,

not always been truly lady-like in her behavior, and JOHN G. MILBURN.

was at times herself, in anger, guilty of profanity." (See Current Topics. -ED.]

Berryman v. Berryman, 59 Mich. 608.

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eminent lawyers at the south whose learning and The Albany Law Journal. experience would add strength to the bench. We

have heretofore suggested two or three of them. It

is quite proper that the appointee should come ALBANY, DECEMBER 17, 1887.

from the south, but the senate should look to it

sharply that he knows the law, from study and exCURRENT TOPICS.

perience, to an extent that distinguishes him, and

especially that he knows what treason is. T is to be hoped that the Senate will not confirm

the nomination of Mr. Lamar to the Supreme The prohibitionists have a decided triumph in Court. Various reasons have been assigned for his the decision of the Supreme Court of the United unfitness for the post, some based on his former States that prohibition is constitutional. But that hostility to the government, some on his intemper- court did not decide that it is practicable or politic, ate and unwise utterances, and some on his personal and if it had so decided it would not have made it characteristics. We suppose there are plenty of

The decision simply is that society may supmen in the country, and in the south, who did not press the use of property for a purpose deleterious actively endeavor to overthrow our government by to it. The tobacconists are also triumphing in Mr. services in the field and in councils, who could have Blaine's late dictum that the tax ought to be taken been selected without resorting to a violent seces

off tobacco Of course we have nothing to say sionist, unrepentant, although reconstructed." about mere matters of tariff, but when Mr. Blaine By process of “reconstruction ” Mr. Lamar has says that tobacco is no longer a luxury but has bebeen admitted to Congress and cabinet. Against come a necessary, we think he is ridiculous. It this we have nothing to say. These are political may be so in a presidential but not in a legal view. He offices in which it is eminently fit that the south might say as much for alcohol or opium. The should be represented. But the Supreme Court courts have decided that it is not a necessary for bench is not a political place. It is the one place infants. Bryant v. Richardson, L. R., 3 Exch. 93. in our scheme of government supposed to be de- In that case counsel argued: “Wine has been held void of political feeling, bias and aspiration. It to be a necessary, and why not cigars? Smoking is the final safe-guard of our nation in the time of is now a general habit in all ranks of life, and more the greatest strain upon our institutions, a barrier particularly in the army.” But Martin, B., said: against encroachment and revolution. To put upon “I do not think that any one can doubt that cigars this bench a secessionist, who is not even repentant, and tobacco are articles of luxury and not of utiland who cannot see that he did wrong, is a dan- ity." We do not use the filthy weed ourself, but we gerous stretch of leniency and a violent shock to have no objections to other men's impoverishing the patriotic feeling of the loyal people.

Mr. their land or poisoning themselves with it. But we Lamar says Davis was no traitor, and of course

do protest against any encouragement to the young thinks the same of himself. If that is his way of to use it. It is a loathsome spectacle to see a young arguing, he is an unsafe man to judge of what is man nervously wriggling and unhappy if he is treason, and an unsafe man to be intrusted with the obliged to go without a cigarette for an hour. sacred duty imposed on him by this office. A Su- Even seasoned smokers advise against the habit, preme Court justice ought to know what constitutes and are unwilling that their sons should acquire it. treason, becanse he may be called on to pass on the Prose is inadequate to express our emotions on this case of anarchists at some time. There must be topic, and so in the Albany Journal we dropped in plenty of loyal men, even of the south, at least men poetry as follows on whose swords and voices were not raised to destroy

THE NICOTINE HABIT. the government, from whom a satisfactory selection

At evening of a frosty day might be inade. We hope not to be deemed pre

An urchin crossed my homeward way,

Scarce bigger than a babe in arms, judiced, vindictive or illiberal, when we say that it

Subject of mother's fond alarms; is unwise and unsafe to put any original seces

His trousers short, but over wide, sionist on the Supreme Court bench. But there is

Flapped in the wind from side to side;

No coat had he; a ragged shirt, another, and an all-sufficient reason against Mr.

A cherub face besmeared with dirt, Lamar. He is not an eminent lawyer. He never

And marked by pugilistic scratch; was distinguished as a lawyer. He never was

An old straw hat did hardly thatch

His hair of tow, while on the ground heard of as a lawyer except where he lived. For

Ten other toes did wriggle round thirty years or more he has, we understand, been

Convulsed with cold; his blue lips quivered, practically unfamiliar with the courts. The most

His bare legs like the aspen shivered;

He blew upon one chubby fist, partial friend of Mr. Lamar would not claim that

While in his eyes there stood a mist he is a learned lawyer. He is a professional poli

Of tears suppressed; his weary voice tician. His habits of thought and life are far from

Announced to citizens a choice

Of some newspapers which he pressed judicial. An estimable gentleman, a scholar of

Convulsively to his thin-clad breast; considerable cultivation, no doubt, but no lawyer,

His other fist could scarce conceal as we use the phrase in connection with the essen

Something he fain would not reveal

Beseechingly he looked at me tial requirements of this post. There are certainly

As I approached; in sympathy,
Vol. 36 — No. 25.

Between a nickel and a dime

the 'glorious uncertainty' of the law, the deI doubted for a moment's time, When he my hesitation solved,

lays and slothfulness of legal proceedings, and the And all my charity dissolved,

costliness of litigation. With us the second is the As my stunned ears these words did catch:

great cause of the undeniable decrease in litigation. "Mister, I say, gimme a match!”

The uncertainty which deters suitors is, in fact, the

certainty that they will not see the end of the matThe portrait of Henry Smith, painted by Mr. Twit- ter for years at least. The cure for the whole thing is in chell of this city, and just added to the collection the hands of the lawyers, and it is a reproach to them of the Court of Appeals, is a most meritorious work, that it has not been remedied long ago. It is perhaps one of the three or four very best in the collection.unprofitable to inquire why it has not been done, The painter had the advantage of a noble subject, but we believe the two chief reasons illustrate the and he has made not only a speaking but an elo- two characteristics of the profession -- its conservaquent likeness - eloquent with wit, logic and good tism and its selfish indolence. This is hardly a pophumor. The great advocate shines in every line. ular thing to say of the profession, but it is never

theless true. It cannot be denied that the majority

of lawyers in almost every community follow the It would not be surprising if Mr. Proctor found some member of the Pinkney family in his hair for profession merely for the bread that it furnishes toreviving that anecdote of Webster's compelling quarrel with them for this may lay one open to the

day or the money it promises for to-morrow. To Pinkney to apologize. We told it once, 16 ALB.

charge of quixotism in these practical days; but to LAW JOUR. 457, and repeated it 17 id. 24, and met

say the least, they cannot be expected to know or care with a rebuke, id. 115, and published a long pro

much about the law as a science, either in the past test by Bishop Pinkney, 20 id. 87, and an explana

or the future. It ought to be remembered that the tion of the probable origin of the tale, id. 260, and the Bishop's last words, id. 300. The story prob- ment for the enforcement of rights and the punish

desire to make the law a perfectly efficient instruably was exaggerated, perhaps by Daniel in his convivial moments, perhaps by fame — " crescit eundo.” litigation, and thereby benefit the lawyers. The

ment of wrongs is not merely a desire to increase The story of Pinkney's apology to Emmet has probably also received some ornament and coloring interest the community has at stake in having the

benefit to the lawyers is not to be compared to the by narrators, for Ticknor, who heard the apology, laws executed with promptness and certainty.” The says in his “Life and Letters," that it was “a cold and inefficient apology.” But se non è vero, è ben

Tribune also recently published a terrific attack

on the lawyers on account of their exorbitant trovato.

charges. We have for many years urged that the

law should be made surer, swifter and cheaper. There seems to be a fatality about the wills of the most distinguished lawyers. In a very recent case

There is unquestionably a general decrease in law in our Court of Appeals, Finch, J., observed: " • One

business, and we believe it is fairly due to the would hardly have expected that the will of so

causes above alleged. Worst of all is the popular eminent and able a lawyer as the late Charles O'Conor conviction that the lawyers are opposed to any would come before us for construction, and present change or reform. Many, perhaps most lawyers


content themselves with the reflection that the a question quite debatable, and involving some difficulty. He made his will, about which as it stood

present state of things will probably last as long as

As to costs, at the date of its execution there was no ambiguity, they do, and after that they care not. and which had the clearness and precision we were

many of them, especially in the large cities, are incertain to anticipate. But fifteen months later, and dustriously engaged in trying to kill the goose and about two weeks before his death, he made and

get all the golden eggs at once. It is amazing to executed a codicil which creates a serious difficulty,

observe the elasticity of conscience of many highly and if drawn by him or at his verbal dictation, may

“respectable” and influential practitioners in rehave some explanation in his failing health. By gard to fees. Lawyers are probably just about as the terms of the will he released in its sixth clause

greedy as men in trade and commerce, and manucertain of his debtors, conveying his purpose

facturers—no worse, but they ought to be better in the following language: “I hereby release all

but they are not so much restrained by competiclaims or demands which I may have at my death

tion. There are unquestionably some lawyers who against any person or persons named in this will.'»

are conscientiously opposed to codification, but it is But the testator added a codicil, and a dispute

our belief that nine-tenths of the opposers are arose as to whether that was included in the phrase swayed by no higher motives than selfishness

, lazi"in this will.” The court held that in the circum

ness, jealousy, ignorance and constitutional obstistances it was not included.

nacy. We venture to say that nine-tenths of them ha never read the Code — even Mr. Carter had

at last accounts read only forty sections - and that The Virginia Law Journal has a paragraph on

half of them have never even seen it or want to see “The Decrease of Law Business," commenting on

it. The profession will have an awakening some an article from the Maryland Lar Record as follows: day. It will be a long time in coming, we admit, “ The causes, as assigned by our contemporary, are but these slow mills grind small.


N Podigo v. Grimes, Indiana Supreme Court, Nov.

3, 1887, it was held that a college student may be both a voter and a student; and if he in good faith elects to make the place his home, to the exclusion of all other places, he may acquire a legal residence, although he máy intend to remove from such place at some fixed time, or at some indefinite period in the future. Elliott, J., said: “Taking the view of the testimony most favorable to the appellant, the utmost that can be said of it is that the voters entered the State university at Bloomington without at the time of entering having formed a definite intention of making that place their residence, but that they did subsequently determine that it should be their residence. This gave them the right to vote, because there is no evidence that this was not their intention, formed and acted upon in good faith. We think it clear that if they had gone to Bloomington with the intention of remaining simply as students, and there was no change of intention, they would not have acquired a residence. Granby v. Amherst, 7 Mass. 1; Fry's Election case, 71 Penn. St. 302; S. C., 10 Am. Rep. 698; Dale v. Irwin, 78 Ill. 170; Vanderpoel v. O'Hanlon, 53 Iowa, 246. Where however the intention formed to make the college town the place of residence, and that place is selected as the domicile, then the person who does this in good faith becomes a qualified voter. In Vanderpoel v. O'Hanlon, supra, the court said, speaking of a student: 'It would probably be admitted if when he went to Iowa City, or at any time thereafter, his intention was to make that place his home and residence when he ceased to attend the university, that such place was, and became his place of residence, in such a sense that he would have become a legal voter in Johnson county.' Judge McCrary says: “It will be found from an examination of these authorities, and from a full consideration of the subject, that the question whether a student at college is a bona fide resident of the place where the college is located must in each case depend upon the facts. He may be a resident, and he may not be. Whether he is or not depends upon the answers which may be given to a variety of questions, such as the following: Is he of age? Is he emancipated from his parent's control? Does he regard the place where the college is situated as his home, or has he a home elsewhere, to which he expects to go, and at which he expects to reside?' The case of Sanders v. Getchell, 76 Me. 158; S. C., 49 Am. Rep. 606, is a strong one, for there the Constitution of the State provided that 'the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situate,' yet it was held that a student might acquire a residence. In the course of the opinion it was said: 'It is clear enough that residing in a place merely as a student does not confer the franchise. Still, a student may obtain a voting residence, if other conditions exist sufficient

to create it. Bodily residence in a place, coupled with an intention to make such a place a home, will create a domicile or residence.' It can, we conceive, make no difference that the person is a student, if he has in good faith elected to make the place where the college is located his residence, since there is no imaginable reason why a person may not be both a student at a college and a resident of the place where the college is situated. If he is at the place merely as a student, then he is not a resident; but if he has selected that place as his abode, he acquires a residence which entitles him to vote if he possesses the other qualifications. It is said by appellant's counsel that 'to effect a change of domicile, there must be intention and an act united. The act of residence, and the intention of remaining.' In support of this proposition, counsel cite McCrary Elect. 39, 40; Cooley Const. Law, 604; 2 Kent Com., 431; Astley v. Capron, 89 Ind. 167; Culbertson v. Board, 52 id. 361; McCollem v. White, 23 id. 43; Maddox v. State, 32 id. 111. The counsel's statement doubtless is an accurate one; but here the intention and the act, as the trial court found, did unite, and we think this finding is fully sustained by the testimony before the court. It is not necessary however that there should be an intention to remain permanently at the chosen domicile; it is enough if it is for the time the home of the voter to the exclusion of other places. Judge Cooley says: “A person's residence is the place of his domicile, or the place where his residence is fixed, without any present intention of removing therefrom.' Cooley Const. Lim. (5th ed.) 754. Judge Story makes substantially the same statement of the rule. Confl. Law, $ 43. In the case of Cessna v. Myers, reported and strongly approved by Judge McCrary, it was said: 'A man may acquire a domicile if he is personally present in a place and elect that as his home, even if he never design to remain there always, but design, at the end of some short time, to remove and acquire another. A clergyman of the Methodist church, who is settled for two years, may surely make his home for two years with his flock, although he means at the end of that period to remove and gain another.', McCrary Elect., p. 496, § 38. This principle was applied to the case of a student of Apdover college, in Putnam V. Johnson, 10 Mass. 488, where it was said: 'A residence at a college or other seminary for the purpose of instruction would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father's control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be his expectation to remain there forever.' In this instance, the citizens, having taken up a residence in Bloomington, and having no other home, were entitled to vote there, although they may not have intended to remain there always. It is frequently said in the books that a man must have a home somewhere, and it is agreed that this home is

at the place where he is bodily present with the Court to set aside the probated will, whereupon an intention of making it his domicile, although he issue of devisavit vel non was made up, and in this may have in view a change of residence at some issue the contestant was the plaintiff. Whereas now future time. Cooley Cont. 754; McCrary Elect., the heir, desiring to contest, takes his appeal from $ 39. The intention to remain is as Judge McCrary the order of the probate court admitting the instrusays, “entirely consistent with a purpose to remove ment to probate, and becomes the defendant in the at some future indefinite time. It can hardly be pro eding. But the burden of proof of insanity, doubted that a man living in Evansville is a resident and the presumption of soundness of mind, are not of that city, although he may intend to remove to changed.” Indianapolis either at a fixed time or at an indefinite period in the future. So if a man should take a In International & G. N. R. Co. v. Cock, Texas business position at Bloomington, intending to Supreme Court, Oct. 28, 1887, an action for personal remain as long as the business required, he would injuries suffered by plaintiff by being tbrown from acquire a residence at that place, even though his a hand-car of defendant, the evidence showed that purpose may be to return at some future time to the plaintiff was riding in the hand-car as a passenger place of his former residence. Of course a removal by invitation of defendant's train-master and diswithout any intention of making the place a domi- patcher, who had charge of all freight and passencile would not secure a residence, no matter how ger trains, but it was disputed whether hand-cars long the person intended to remain; but if the and their crews were under his control or that of the intention was to make the place the domicile, a legal general road-master. The court instructed the jury residence would be acquired.”

that “according to the undisputed evidence, the plaintiff was on defendant's car, either at the invita

tion or with the consent of the servants authorized by In McCulloch v. Campbell, Arkansas Supreme the general train-master of the defendant company," Court, Oct. 15, 1887, an action contesting the pro- that he was lawfully on the car, and that defendbate of a will, the defendant offered evidence to ant would be liable for any injury he sustained by rebut evidence of testamentary incapacity, and it reason of the negligence of its servants. Held, that was excluded by the court, on the ground that the it should have been left to the jury to say whether onus was on the defendant to show such capacity, the train-master had any authority to give the deand that the evidence should have been offered in fendant's consent for plaintiff to ride on the car. chief. Held, error; that the burden was on the con- The court said: “It did not appear that appellant testant to establish a want of testamentary capacity. or its servants had ever before this time carried pasThe court said: “There is some confusion in the

sengers over the road on hand-cars. It was in evireported cases on the adjustment of the burden of dence that there were rules prohibiting appellant's proof of insanity in will contests. But we think

servants from carrying any one on hand-cars except the weight of authority, both in England and this track men; such cars being designed for carrying country, establishes the rule that the production of such persons with necessary tools and material for a paper writing purporting to be the will of a dekeeping up and repairing the track. But it did ceased person, which is rational on its face, and not appear that the public had been advised of this which is proved to have been executed and wit- rule of the company.

The servants of apnessed in accordance with the statute, makes a pellant, who gave appellee permission to ride on the prima facie case, and devolves upon the contestants car, are not shown to have had the power to abrothe onus of showing the testator's incompetency. gate or suspend rules promulgated by the proper This rule rests upon the presumption that all men authority for the operation of the road, and the are sane until the contrary is proved. 1 Williams court below could not assume that said servants in Ex’rs (6th Am. ed.) 24 et seq.; 1 Redf. Wills, ch. so doing were acting in the apparent scope of their 3, § 4; Schouler Wills, $$ 173, 174; 18 Cent. Law anthority. But if the facts proven had been suffiJ. 282, where the American cases are collected with cient to justify the belief that appellant's agents some care by Mr. Elisha Greenhood. To this rule had the authority to furnish transportation to faciliwe have given in our adhesion. Rogers v. Diamond, tate holding the inquest, it might have been sub13 Ark. 479; McDaniel v. Crosby, 19 id. 533; Tobin mitted to the jury to say whether such agents V. Jenkins, 29 id. 151; Jenkins v. Tobin, 31 id. 309. were acting in apparent scope of their authorIt is true our statute of wills requires a testator to ity in furnishing the hand-car in question. The be of sound mind. Mansf. Dig., $$ 6490, 6491. But decision in the case of Prince v. Railway Co., the same thing is required in order that a person 64 Tex. 144, although growing out of the same may be held responsible for a crime. Id. S$ 1495, facts that exist in the present case, was upon de1497, 1499. Yet upon the trial of an indictment murrer to plaintiff's petition, in which it was the State never goes into evidence of the pris- alleged that Prince was on the hand-car by the inoner's sanity until he has given evidence of his vitation and consent of an agent of defendant, who insanity. It is also true that since the rule was first had authority to give defendant's consent thereto, announced by this court, the procedure in will con- and has no application to the question under distests has been changed. By the practice then in cussion.

Some courts have held that perforce, the contestant filed his petition in the Circuit sons taking passage on trains not designed or used



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