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the usual manner. Any other rule would leave reason thereof, although still inviting him to the public at the merry of the railroad com- use them, and although be has been injured panies. They, knowing the traveler or shipwben doing so in a prudent and usual manner. per, in this day of wonderful advance and im- Public safety, and the proper management of provement, is compelled to use their roads, or this now almost universal mode of travel and forego travel or the sbipment of bis property, sbipment, forbid the adoption of a different.

ould by their agenis inform bim the defec- rule from the one we have indicated. tive condition of their appliances for travel, and Judgment reverscd, and the cause remanded then be exempt from liability for his injury by for a new trial consistent with this opinion.


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PITTSBURGH CARBON CO., Limited, shipments, and that the bills were made payAppt.,

able to Hawks as trustee.

That subsequently, and before the com. Frank C. McMILLIN, Receiver of the United mencement of this suit, the trust represented Carbon Companies, Respt.

by Hawks was ordered to be wound up and

McMillin was appointed receiver therefor, and (....N. Y.....)

that McMillin was entitled to receive the money

wbich bad been deposited by the Brush Elec1. A party to an illegal trust combina- tric Light Company. tion, who, in pursuance of the agreement, has Further facts appear in the opinioa. furnished goods in the name of the trustee, cad- Mr. C. S. Crosser, for appellant: not claim the proceeds as against a receiver of The original vice of an unlawful purpose the trust assets, although he withdrew from the tainted every part of the trust contract, includ.

combination before the receiver was appointed. , ing the assignment of the claim against the 2. The rule against granting relief to a Brush Electric Light Company. Such claim party to an illegal contract does not apply to pre never in any legal sense became an asset of the vent a receiver from recovering the fruits of the

trust or trustees, transaction for the benefit of bonest creditors.

Bishop, Cont. 469, 471, 473; 3 Am. & Eng. (January 14, 1890.)

Encyclop. Law, 872; 9 Am. & Eng. Encyclop.

Law, 880: Thorne v. Travellers Ins. 06.80 Pa. 15; General Term of the Supreme Court, Fifth v. king, 44 N. Y. 87; Arnot v. Pitíston Carl Department, aflirming a judgment of the Erie Co. 68 N.Y. 558; Stanton v. Allen, 5 Denio, 434. Special Term in favor of defendant in an action There can be no estoppel against asserting to determine the ownership of a fund which the invalidity of the trust contract. bad been paid into court by the original defend. Greenbood, Pub. Pol. Rule 126; Wheeler v. ant in the suit. Affirmed.

Wheeler, 5 Laps. 355; Langan y. Sankry, 55 The action was originally brought against the Iowa, 52; Snyder v. Willey, 33 Mich. 483; Stevens Brush Electric Light Company, of Buffalo, to v. Wood, 127 Mass. 123; 2 Kent, Com. 466; recover the contract price of certain electric Bredin's App. 92 Pa. 241. light carbops wbich were alleged to have been The receiver represents the trust combinasold and delivered by plaintiff to that company. tion, with no better title to this claim than that

The company appeared and represented that of a voluntary assignee. His title is derived a claim was made upon it for the same debt by solely from the trust combination, with all preone Frank C. McMillin, that it admitted the vious equities and iniquities still attached debt to be due and offered to pay the same into thereto. court, and moved that McMillin be substituted Rev. Stat. pt. 3, chap. 8, art. 3, $ 68; Curtis as defendant in the suit. The court granted v. Leavitt, 15 N. Y. 9; Cutting v. Damarel, this motion and McMillin was substiiuted as 88 N. Y. 410; Honegger v. Wettstein, 94 N.Y. defendant and appeared and made defense. 252; Williams v. Babcock, 25 Barb. 109; Mc

The court found as facts, inter alia, that Harg v. Donelly, 27 Barb. 100; Bell v. Shibley, prior to March 1, 1887, plaintiff had a contract 33 Barb. 610; Van Wagoner v. Paterson Gaswith the Brush Electric Light Company for light Co. 23 N. J. L. 283; Symes v. Hughes, L. supplying to it certain electric light carbons R. 9 Eq. 475; Greenhood, Pub. Pol. Rules 2, from iime to time; that on or about March 1, 10, 42; High, Receivers, § 699; Beich, Pie. 1887, plaintiff made a contract with Edward C. ceivers, S$ 699-706; Story, Eq. Jur. $ 831. Ilawks relating to the conduct and manage- The respondent's position is not strengthened ment of its business, and relating to the per- by urging the claims of the creditors of the formance by bim of its existing contracts; that trust, and by relying on their real, or supposed, during the period in which the carbons for innocence. which this suit was brought were shipped to the 1. The burden was on these creditors of asBrush Electric Light Company plaintiff was certaining the nature of the trust, and the operating its works in accordance with the con- limits of the trustees' authority. tract made with Hawks, who sent bills for all Swan v. Produce Bank, 24 Hun, 277.

NOTE.-Conspiracy; trust combinations in trade, A. 254, 30 S. C. 412; Leslie v. Lorillard, 1 L. R. A. 456 Illegality of. See note to People v. North River 110 N. Y. 519; Anderson v. Jett, 6 L. R. A. 390, 11 Ky. Sugar Ref. Co. 2 L. R. A. 33; Carroll v. Giles, 4 L. R. Law Rep. 570.

See also 42 L. R. A. 85.


42 2. The trust agreement did not by its terms courts have refused to allow the parties to decreate any copartnership relationship. The feat such rights by going back to the unlawful creditors dealt directly with, and extended agreement, even as between themselves. credit to the trustees as principals.

See Keene v, Kent, 7 N. Y. S. R. 229; Brooks Smith v. Anderson, L. R. 15 Ch. Div. 247; v. Martin, 69 U. S. 2 Wall. 70 (17 L. ed. 732); Cary v. Gregory, 6 Jones & S. 127; Austin v. Marsh v. Russell, 66 N. Y. 288; Wann v. Kelly, Munro, 47 Ñ. Y. 360; New v. Nicoll, 73 N. Y. 5 Fed. Rep. 584; W. U. Teleg. Co. v. Union Pac. 130; Storrs v. Flint, 14 Jones & S. 498.

R. Co. 3 Fed. Rep. 423; New York Cent. Trust The appellant's right to recover this fund Co. v. Ohio Cent. R. Co, 23 Fed. Rep. 306. antedates the trust contract and is clear of all its taint. The respondent, to succeed, must Andrews, J., delivered the opinion of the plant bimself squarely upon the trust contract court: and secure the aid of the court to enforce the The finding that the contract of March 1, same. This is beside the purpose of equity. 1887, between the plaintiff and Edward C.

Keene v. Kent, 4 N. Y. S. R. 431; Bishop, Hawks, as trustee for the plaintiff and other Cont. $ 469; Pom. Eq. Jur. SS 401, 940; Whar: carbon companies, was made for unlawful purton, Cont. ed. 1882, § 349; Steers v. Lashley, 6 poses, and was illegal, was not excepted to, and T. R. 61; Sykes v. Bendon, L. R. 11 Ch. Div. is to be taken an incontrovertible fact on this 170; Armstrong v. Toler, 24 U. S. 11 Wheat. appeal. The ground of illegality is not ex259 (6 L. ed. 468); Thomson v. Thomson, 7 Ves. pressly stated, but it is clearly to be inferred Jr. 470; Snell v. Duight, 120 Mass. 9; Dunham from the other findings and the opinion of the v. Prestry, 120 Mass. 285; Morris Run Coal trial court that the contract was held to be Co. 7. Barclay Coal Co. 68 Pa. 173.

illegal for the reason that it was entered into in Mr. Ansley Wilcox, for respondent: furtherance of an unlawful combination be

Appellant cannot set up the illegality of its tween the plaintiff and other carbon compaown contract as against the receiver, who rep- nies in restraint of trade. The scheme of the resents not only itself and the otber parties to parties to the combination was to vest in a the contract, but bona fide creditors, who had common trustee the management and control dealt with the trust or combination and bad of the business of manufacturing and selling given credit to it in the ordinary course of carbons for electric lighting theretofore carbusiness. The receiver represents primarily ried on separately by the companies forming the creditors of tbe insolvent. For this reason the combination. To this end the several he is allowed to disafirm the illegal acts of the companies were to lease to the trustee their re insolvent and recover its assets wherever cred- spective factories, and to operate them under itors might do so; and in general he unites in the direction of the trustee, who was to desig. himself all the rights of creditors and of the nate the kind of goods to be manufactured, tix parties interested in the insolvent estate. the prices at which and the persons to whom

Laws 1858, chap. 314; Rules 78, 79, General they should be sold, purchase all materials and Rules of Practice; Alty-Gen. ¥. Guardian Mut. supplies, collect the bills and pay out of the L. Ins. Co. 77 N. Y. 272; Talmage v. Pell, 7 N. common fund the cost of produciion, and diY. 328; Farmers & M. Bank v. Jenks, 7 Met. vide the net proceeds and profits of the busi. 592; Honegger v. Wettstein, 15 Jones & S. 125, ness between the several parties to the com94 N. Y. 252; Alexander v. Relfe, 74 Mo. 516; bipation in a ratio fixed by the contracts of the Osgood v. Laytin, 3 Keyes, 521; Osgood v. 0g- respective companies with the trustee. den, 4 Keyes, 70; Litchfield Bank v. Church, 29 The plaintiff, when the contract of March 1, Coon. 150.

1887, was made, had an outstanding contract The plaintiff cannot take advantage of the to furnish carbons to the Brush Electric Light illegality of its own acts to defeat the rights of Company from time to time, and in its concreditors, whether in suit brought directly by tract with the trustee the plaintiff assigned to them, or by a receiver as their representative. him all existing contracts, and the trustee as

Broom, Legal Max. pp. 279, 288. See Litch- sumed their performance. field Bank v. Church, supra.

The sum in controversy in this action has Members of a partnership cannot set up, as been paid into court by the Brush Electric against a creditor who bad dealt with the part- Light Company, being the purchase price of persbip in good faith, the fact that the partner- carbons manufactured and delivered to that sbip was formed for an illegal purpose, in order Company in April, May and June, 1887. to defeat their own liability for a just debt. These carbons were manufactured at the plain

See 1 Lindley, Partn. Eng. ed. 201, 205; Met-tifl’s factory, but were billed in the name of calfe, Cont. 116; Adams v. Creditors, 14 La. the trustee, and delivered in performance of 461; Kinsman v. Parkhurst, 59 U. 8. 18 How. the contract between the plaintiff and the 293 (15 L. ed. 387).

Brush Electric Light Company, which the trusTreating the contract as an agency, the prin- tee had assumed. cipal could not set up the illegality of such a In or about July, 1887, the plaintiff refused contract as against an innocent creditor who to continue any longer in the combination. had contracted with the agent in good faith, so Thereupon an action was commenced in the as to defeat its liability for a just debt. Court of Common Pleas for Cuyahoga County,

See Murray v. Vand rbilt, 39 Barb. 140; in the State of Ohio, the headquarters of the Wharton, Ag. ss 474, 542, also SS 25, 26, 249, combination, by some of the members of the 250, 320.

combination, against the plaintiff and other In cases of unlawful agreements, where they members thereof, to dissolve and wind up its have been executed, and new rights bave affairs, and the proceedings resulted in the apsprung up which do not necessarily involve the pointment of the present defendant as receiver enforcement of the unlawful agreement itself, I of the property and assets of the trusteeship,

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with power, among other things, to take postbough there was no adverse claimant. Seo
session thereof, to collect the assets and pay De Witt v. Brisbune, 16 N. Y. 508; Johnson v.
and adjust claims arising out of the business. Bush, 3 Barb. Ch. 207; Talmage v. Pell, 7 N.
No question is made on this appeal as to the Y. 328.
jurisdiction of the Obio Court to entertain the But as between the plaintiff and the receiver
proceeding and make the order appointing of the trust combination, the latter is, we think,
ibe receiver, and it is found that the receiver clearly entitled to the fund. It is claimed that
duly qualified and entered upon the discharge no action could bave been maintained by the
of his duties. It is also found that at the time trustee representing the trust combination,
of the appointment of the receiver the trust against the Brush Electric Light Company, to
was insolvent, and that all the assets of the recover the purchase price of the carbons, for
trust business, includirg the claim against the the reason that the illegality of the combination
Brush Electric Light Company, are insufficient would have constituted a good defense. As-
to pay its creditors.

suming this predicate, it is then asserted that
The plaintiff stands in the attitude of a party the receiver stands in the same position, and
to an illegal contract, claiming a fund which, his title is subject to the same infirmity, as that
if the contract was valid, would clearly be of the combination which he represents. With-
long to the trust combination, and not to the out considering the assumption upon which
plaintiff as one of its members. The plaintiff this proposition is based, it is a sufficient an.
has no standing to claim the fund in opposition swer to the proposition asserted that the re-
to the clear import of the trust agreement, un ceiver unites in himself, not only the right of
less its repudiation of the contract in July, the trust combination, but the right of cred-
1887, made the plaintiff the vendor of the car. itors, and that he may assert a claim as repre-
bons delivered to the Brusb Electric Light Com- senting creditors which he might be unable to
pany during the time the plaintiff remained a assert as a representative of ihe combination
pariy to the combination. The carbons, it is merely. The general rule is well established
true, were delivered in performance of the that a receiver takes the title of the corporation
plaintiff's agreement made before the combina- or individual whose receiver be is, and that any
tion was formed. But the trustee assumed per defense which would have been good against
formance by contract with the plaintiff, and the former may be asserted against the latter.
the Brush Electric Light Company accepted But there is a well-recognized exception which
performance by him. To permit the plaintiff permits a receiver of an insolvent individual or
to treat the debt as a debt owing to it, and not corporation, in the interest of creditors, to dis-
to the trustee, would be permitting the plain- atfirm dealings of the debtor in fraud of their
tiff to escape from the operation of the rule rights. Gillet v. Moody, 3 N. Y. 479; Porter v.
which denies relief to a party to an illegal trans. Williams, 9 N. Y. 142; Curtis v. Leavitt, 15 N.
action. The plaintiff had a right to repudiate Y. 9, 108.
the contract of March 1, 1887. Its stipulations Assuming that the trustee could not have re-
could not bave been enforced against the plain- covered of the Brush Electric Light Company
tiff. The plaintiff, notwithstanding the con- for the reasons suggested, it would be a very
tract, could have sold its carbons to the Brush strange application of the doctrine that no right
Electric Light Company on its own account, of action can spring from an illegal transaction
and received pay for them. But it did not do so. wbich should deny to innocent creditors of the

The agreement of March 1, 1887, was carried combination, or to the receiver who represents out in part. The carbons were manufactured them, the right to bave the debt collecied and by and for the trustee representing the com- applied in satisfaction of their claim. The bination, and were delivered to the purchaser just rule of the common law, that the courts as the property of the trust, by the consent of will not lend their aid to enforce illegal transthe plaintiff, and the purchaser became the actions at the instance of a party to the illegal. debtor of the trust and not of the plaintiff. ity, would be misapplied if permitted to be The repudiation of the trust agreement by the used to prevent the recovery and application plaintiff after this transaction did not purge its of the fruits of the transaction for the payment previous participation in the illegal scheme. of honest creditors. If the Brush Company had not voluntarily We think the judgment is right, and it should paid the fund into court, it would be a grave therefore be affirmed. question whether the plaintiff could have en- All concur. forced a recovery against that company, al- |


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ates no liep on cloth-printing machines which are
sold as complete without shells, under Rev., p.
669, $ 5, or Supp. Rev., p. 456, $ 3, giving a lien for
work done upon "fixed machinery" or "fixtures

for manufacturing purposes."
2. A lien on “fixed machinery” or “fir.
tures for manufacturing purposes" will not be
extended in case of doubt to machinery of such a
character that a common-law lien may be had
upon it

February 6, 1890.)


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ERRORyto the Circuit Court for Passaic The two printing machines are admitted to

County to review a judgment in favor of be "fixed machinery," within the intendment plaintiffs in an action to enforce an alleged of the Statute. It is obvious that the simple mechanics' liep, Rerersed.

question now to be considered is whether the The facts sufficiently appear in the opinion. shells are parts of the printing machines. If Mr. Thomas M. Moore for plaintiff in they are parts of them, it is apparent that the

lien claimed must extend, not only to the maUr. Joseph Coult for defendants in error. chines, but also to the 500 shells which are

held for use by them. The test by which this McGill, Ch., delivered the opinion of the question should be determined is the inquiry court:

whether the shells are essential to the comThe defendants in error, under the 5th sec- pleteness of the machines for the purposes for tion of the Mechanic's Lien Act (Rev. 669), which the machines were designed. It bas claim a lien upon two cloth printing machines been held in several cases, which suggested tised in the soil, in buildings belonging to the this test, that rollers specially fitted for a maPassaic Bleachery, because of work done in chine designed for rolling iron are parts of it, engraving, upon copper shells, patterns to be because, without them, that machine cannot printed on cloth. These shells are cylinders perform its functions, and would not pass as wbich fit on mandrels or rollers constructed complete; and, as we that duplicate rollers with the printing machines. A protrusion fitted to such a machine are parts of it, because from the inside of the shell, called a "feather” their design is to render the machine more effi(of uniform size in all shells), fits a groove in cient. The plain purpose of the rolling-mill is the mandrel, and keeps it from slipping as the to reduce iron to shape. Without rollers, it mandrel revolves. The printing machines are cannot accomplish this purpose, and hence it is sold, in this country and in England, as com- not complete or salable without rollers. The plete without shells. Shell-making is a distinct office of the printing machine is not to itself industry. The manufacturers of the printing print, but to apply that which prints to that machines do not make them. In fitting a wbich is to be printed upon. When sold, it is shell, it is necessary that its internal diameter, considered as complete without shells, just as or bore, sball correspond with the diameter of the iron-rolling machine is complete without the mandrel of the machine by which it is used, the iron upon which it operates. It stands but in all otber respects the machine is adjust- upon the footing of the book-printing press, able, within limits, to the use of any shell. which is complete without types or stereotype Sizes of mandrels and bores of shells are regu. or electro-type plates which it applies to paper. lated by agreement between manufacturers, so I do not conceive that a workman who alters, that any size of either may be ordered by an or even constructs, one of 10,000 stereotype agreed designation, without special measuring plates used by a book publisher, could claim a or fitting. For instance, the mandrels of the lien upon the publisher's presses and his 10,000 machines of the Bleachery Company are of that plates as part of that press. It is evident that, size which requires the shells to be used by to avoid such an absurdity, the plate must be them to have what is called an “E bore." A regarded as a separate article, that the press is single pattern is engraved upon the external designed to use. I think it is plain that the surface of each shell, and hence a printer's shells were not parts of these printing masbells must be as numerous as the patterns he chines. pripts.

But, if the question whether the shells are to The Passaic Bleachery has 500 shells, and be regarded as parts of the printing machines only two printing machines. The defendants, be doubtful, it appears to me that the court's who are engravers in the City of Newark, have conclusion in this case may rest upon another engraved patterns upon 76 of these 500 shells. ground. The purpose of the Statute is to afThe shells upon which they are worked were ford mechanics a lien upon machinery of which delivered into their possession at their place of they cannot have such possession as would give business, and, after the work of engraving was them a liep by the common law. The statu. done, were returned to the bleachery. The tory lien is confined to "fixed machinery." defendants did not do any work upon the With this purpose of the Statute in view, it printing machines themselves, and did not do follows that, where machinery is of such a anything to the sbells which affected their me. character that the common-law lien may be chanical connection with those machines. The bad upon it, doubts should not be so resolved lien is claimed simply because of the engrav- as to hold the machinery to be also subject to iny. By the surrender of the possession of the lien under the Statute. In other words, in shells, after the engraving was completed, the such cases doubts should be resolved against lien which the common law gave upon them the statutory lien. was lost. The contention now is that, by the Here the defendants in error at one time had Statute, a lien can be had upon the printing a lien by the common law. Upon these grounds machines as for work done in the construction I think that the judgment below should be re. or alteration of "fixed machinery," or of “fix. versed. tures for manufacturing purposes.

Reversed unanimously. 669, S 5; Supp. Rev. p. 456, $ 3. 7 L, R. A.

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Rev. p.

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a contract.


which had been removed from such court to 0.

the federal court for trial for the alleged reaCharles TUTTY.

son that they presented federal questions,


The case is fully stated in the opinion.

Mr. W. Wallace Fraser, Solicitor-Gent Rose WARD.

eral, for the motion.

Mr. James Atkins, contra. (.... Fed. Rep.....)

Speer, J., delivered the following opinion:

It appears from the motion to remand, as *1. By the settled policy of the State of well as from the petition for removal before

Georgia marriage relations between the court, that the defendant, Charles Tutty, white persons and persons of African descent are bas been for many years a citizen and resident forever prohibited, and by the Statutes of the of Liberty County, in this State. The grand

State such marriages are declared pull and void. jury of that county presented an indictment 2. These Statutes have been held to be in ac- against Tuity, charging him with the statutory cordance with the Constitution, by the supreme crime of fornication on the 1st day of April, appellate tribunal of the State.

1889, and at other times, with one Rose Ward, 8. The Statutes of the State also de- a woman of African descent, and formerly a clare that all marriages solemnized in another slave, also a citizen of the State of Georgia and State, by parties intending at the time to reside domiciled in the County of Liberty. in Georgia, shall have the same legal effect as if

It appears further that after the indictment golemnized in the latter State, and, further, that parties residing in Georgia cannot evade the pro

was found the said Tutly and the said Rose visions of its laws as to marriage by going into Ward, or Rose Tutty, as she calls herself, reanother State for the solemnization of the mar- paired to the District of Columbia and were riage ceremony.

married there in accordance with what are un4. The contract of marriage is not a derstood to be the laws of the United States for

contract” within the meaning of the provis- that District. ion in the Constitution of the United States pro

At the trial term of the Superior Court of hibiting States from impairing the obligation of Liberty County, to wit: on the 3d day of De

cember, 1889, and before the trial of the crim. 5. Marriage is more than a contract. inal indictments above mentioned, both of the

It is an institution which is the foundation of the parties indicted presented to the state court pe family and of society; the rights and qualifications iitions for the removal of the cases for trial into of the parties thereto depend upon the legislation this the circuit court of the United States for of the State as controlled, for the benefit of the this district. The petitions are practically iden

entire cominudity, by principles of public policy. tical. They recite the substance of the indict6. Where the statutory law is silent as to ment. They deny the fornication. They state

the effect of marriages between persons domiciled that the relations between the parties, which in a State and who leave it with the purpose of are described more in detail in the petition, "ex. solemnizing the marriage elsewhere, to evade such isted at a time when she (Rose Ward or Ruse laws, but intending to return and live therein, the j Tutty) was petitioner's lawful wife or under marriage may be upheld where the inhibition re- circumstauces in which be and she were and lates to form, ceremony or qualifications depend. ing on age or like condition.

are secured from lawful prosecution in the 7. When, however, the marriage is in- manner attempted in said case. That petitioner hibited by a positive policy of the state as af: had been duly married to said Rose in the Disfecting the morals and good order of society and trict of Columbia, and the acts which are leading to serious social evils, the marriage will charged to have been done, if done at all, were be held void.

and are under their lawful executed contract of 8.. Where the State has enacted legisla- marriage with each other in full accordance

tion declaratory of the effect of marriages, ex. with the requirements of the laws then in force traterritorially, of its citizens, who thus seek to in said District of Columbia. Petitioners furevade its positive policy and penal laws, the Stat- ther state that the prosecution against them is ute affords the rule of decision.

based upon a law of Georgia forever probibit9. Where Tutty, a white man, and ing the relation of marriage between white per

Ward, a negro woman, were indicted in the sons and persons of African descent. That state courts for fornication, and thereafter re- such law denies to the petitioners the right se. paired to the District of Columbia and were mar- cured to them by the Constitution and laws of ried, immediately returning to Georgia, and the United States, providing for equal civil thereupon attempted to remove into the United rights of themselves and all other citizens of States court the indictments pending against the United States, to protection against the laws them, the petition for removal was denied and the in a State impairing the obligation of contracts. indictments remanded to the court of the State.

The Ilonorable Robert Falligant, of the su

perior court, declined to entertain these mo. (February 4, 1890.)

tions, whereupon the defendants filed in this the state court causes

court a certified transcript of the record of the arising from indictments for fornication, proceedings of the superior court, and on the

first day of the term, the court baving been *Head notes by SPEER, J.

notified that the Solicitor-General of the East

ON motion to remand

See also 34 L. R. A. 773; 39 L. R. A. 539; 42 L. R. A. 343.

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