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from the chaff of evidence, and as true as steel in their findings based thereon; if they failed in either direction it was in sometimes being a trifle too logical, not allowing sweet pity to have its fair influence.' That they were as true as steel in findings based on the wheat of evidence sifted out with❘ their eyes and noses we may accept, but that they did not allow sweet pity to have its fair influence we venture to think is a calumny of Lelia J. Robin-| son." We can believe Miss Robinson's statement. Women are really much more pitiless in the long run than men. For example, how few women are in favor of not hanging Mrs. Druse!

In five recent cases decided by the Court of Appeal, reversing the court of first instance, the House of Lords have affirmed two and reversed three of the holdings of the Court of Appeal. It must be admitted that the Court of Appeal is sometimes wrong, and the House of Lords is sometimes right, but whether the latter is right or wrong it is always tedious.

In filling the two vacancies on the bench of the Supreme Court, Governor Hill has made a good selection and has very cleverly outflanked the politicians. Of course it would hardly be worth while for the governor to appoint any man, however well qualified and deserving, who is so unpopular with the party managers that he could not secure a nomination next fall. Such an appointment would be but an empty compliment, and indeed a positive injury to the appointee's business interests. These considerations doubtless precluded the governor from making one of the appointments from this city. But Judge Mayham of Schobarie and Mr. Samuel Edwards of Hudson are gentlemen against whose appointment nothing can be said. The former, at present county judge, is about 61 years' old, the latter about 48; both are of irreproachable character, of personal dignity and weight, of large professional experience, and of quite sufficient legal learning. There can be no present objection to the residence of the former, as he will hold chambers and special terms in this city as has been usual, but if he expects to be judge permanently he must move into town. We need a judge here every hour. The residence of Mr. Edwards will accommodate the southern portion of the district. The appointments were petitioned for by the entire bar of their respective residences, and by many others of the district. We regard the appointments as in every way commendable.

Since the Massachusetts case where the brakeman threw his "wash" from the train and hit a man who sued the railroad for damages in consequence, we have found no similar case so amusing as Wiltse v. State Board Bridge Co., Michigan Supreme Court, Nov. 17, 1886. A toll-gate keeper at a bridge, one Mrs. Dunn, engaged in "cleaning house," set a lounge out with a "tidy" on it. The

wind fluttered the " 'tidy," which frightened the plaintiff's horse and caused it to shy, injuring the plaintiff who sued the bridge company for damages, and had a verdict for $800. The court held that Mrs. Dunn's act was not in the course of her employment, and also that it was not negligent, and set aside the verdict. There are some folks who will sue for anything. We can afford a smile too at Bingham v. Bernard, in the same court, where "A caution to the jury in course of the charge, not to lose their heads and return a verdict for a lady (the plaintiff) on general principles, was held not erroneous. Very sound advice and generally needed.

IN

NOTES OF CASES.

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[N Roche v. Ware, Supreme Court of California, Dec. 6, 1886, it was held, that the statute, providing that "parties to an action against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter of fact occurring before the death of such deceased person," cannot be witnesses, does not prevent a party from testifying in such an action, to prove his account-books as preliminary to their introduction in evidence; and it not appearing that he was not within the jurisdiction of the court, books proven by the testimony of the party's wife are inadmissible. The court said: "In the English courts tradesmen's books were not formerly legal evidence in favor of the party making them. It would seem that the practice of allowing a party's books of account as evidence came into use in New York and New Jersey with the Dutch colonists, and into the eastern States with the English colonists from Holland, who settled in New England. Beach v. Mills, 5 Conn. 496; Conklin v. Stamler, 8 Abb. Pr. 395; Introduction to 1 E. D. Smith. It would seem, also, that by the Dutch law the cogency as evidence of the books might be strengthened by the testimony of the party. Yet in Vosburgh v. Thayer, 12 Johns. 461, it would appear to have been assumed that the party could not testify with respect to his own books. The Supreme Court of New York there held that books of account ought not to be admitted unless a foundation is first laid for their admission by proving that the party had no clerk; that some of the articles charged have been delivered; that the books produced are the accountbooks of the party; and that he keeps just and honest accounts; and this by those who have dealt or settled with him.' And the court added: "Under these restrictions, from the necessity of the case, and the consideration that the party debited is shown to have reposed confidence in by dealing with and being intrusted by the other party they are evidence for the consideration of the jury.' In subsequent New York cases it was held that a party's books of accounts were inadmissible unless he proved, not only that he kept just and honest accounts by those who had settled with him by his

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books, but also that the party charged had dealt with him, and that some of the articles charged were actually tendered or delivered. Morrill v. Whitehead, 4 E. D. Smith, 239; Conklin v. Stamler, 2 Hilt. 432; S. C., 8 Abb. Pr. 395. The practice of all the other States, so far as we are informed, where books of account are admitted in evidence, is to authorize, at least, the preliminary proof to be made by the party himself. In a note to section 118 of the first volume of Greenleaf's Evidence it is said (many cases being cited to sustain the statement): The rules of the several States with regard to the admission of this evidence are not perfectly uniform; but in what is about to be stated it is believed they concur. * * * If the books appear to be free from fraudulent practices, * * the party himself is then required to make oath in open court that they are the books in which the accounts of his ordinary business transactions are usually kept, and that the goods therein charged were actually sold and delivered to, and the services actually performed for the defendant.' He should also swear that the entries were made at or about the time of the transactions, and are original entries thereof.' It may be conceded that if able to do so the party may prove by other witnesses the matters which he is allowed to testify to himself. But if the party who kept the books, being in a position to give testimony, does not offer himself as a witness to those matters, he must at least prove by others those things which he would be required to prove by his own testimony. It was said generally by Daly, C. J., and Brady, J., in the New York Common Pleas, that since the Code provisions allowing parties to testify, the books of account of a party are no longer evidence on his behalf; that the admissibility of such books, on certain preliminary proofs, had been put on the ground of necessity arising from the former incompetency of a claimant to be a witness on his own behalf; and that the reason of the rule was destroyed by the legislation authorizing the examination of the parties. Conklin v. Stamler, 8 Abb. Pr. 400. But it would seem there to be admitted, not only that the books might be referred to to refresh the memory of the witness, but that the entries themselves might be evidence, if the witness could testify that the transaction was correctly recorded when the entry was made, although he might not be able to recollect the fact.' The evident purpose of the provisions of the Code is to render competent (with certain exceptions) persons incompetent at the common law, as parties to the record and those directly interested in the event of the action. The parties under certain circumstances excepted from the general rule established by the Code continue incompetent in the same manner and to the same extent that all parties were formerly incompetent. But before the Code, the party offering his books, although incompetent to be a witness with respect to the issues submitted to the jury, was competent to give testimony addressed to the court, going to establish the facts which rendered the books admis

sible. This was determined in Landis v. Turner, 14 Cal. 573. There Field, C. J., said: 'The defendants objected to the examination of the plaintiff on the ground of his incompetency as a party to the suit, and to the introduction of the book of entries on the ground that it was not sufficiently proved. Neither of these objections was well taken. The evidence of the plaintiff was upon an incidental and preliminary matter, and the rule which excludes the testimony of parties has no application. That rule has reference to the matters in issue, and not to incidental matters auxiliary to the trial of the cause upon which the testimony is addressed solely to the court. Bagley v. Eaton, 10 Cal. 146. The book of entries constituted the evidence in the case bearing upon the issue. The testimony of the party only laid the foundation for the introduction of that evidence. The referee occupied the double character of judge and jury, and the admissibility of the book was to be decided by him, in the first instance, in his character as judge; and to enable him to determine the question, the testimony was properly received. The credit and weight given to the entries were entirely distinct from the preliminary matter. There are, it is true, numerous decisions against the reception of the party's testimony in cases like the present, but the clear weight of authority is the other way. His testimony is taken in nearly every State of the Union. When this case was argued, we supposed the rule was otherwise, recalling at the time the decisions of the New York courts on the subject. A somewhat extended examination since has satisfied us that the prevailing and the better rule in the United States differs from that of New York. The testimony of the party must often be the only means of establishing the fact that the book contains the original entries, that the party kept no other books, and that he had no clerk; and as it is subject to the scrutiny of a cross-examination, it must afford protection against the perpetration of fraud by false entries.'"

In Re Vaughan; Vaughan v. Thomas, Chancery Division, June 11, 1886, 55 L. T. Rep. (N. S.) 547, a testator bequeathed 5007. in trust to apply such part of the income thereof as might be necessary in keeping in repair a family vault, and the residue in keeping in repair his brother's tomb and the parish churchyard. Held, that the gifts to repair the family vault and brother's tomb were void, but that the gift to repair the churchyard was good as a charitable gift for a public object. North, J., said: "It seems to me that the repair of a parish churchyard is clearly for the benefit of the inhabitants of the parish. In the first place it was the duty of parishioners to keep their churchyard in repair. Then again a case was cited which shows that if a person whose duty it is to repair the churchyard does not repair it he is subject to indictment. It is clear that the repair of a church is beyond all question a charitable object. So too the repair of a parsonage. Attorney-General

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v. Bishop of Chester, 1 Bro. C. C. 444, is an authority for that. The repair of ornaments of a church has been held a charitable object in Hoare v. Osborne, L. R., 1 Eq. 585. There Kindersley, V. C., said: 'With respect to the monument in the church, there is no decision on the point how far a gift for perpetual repair, not of the fabric of the church, but of the ornaments in the church can be treated as a charity. In the absence of authority, I think I ought to hold such a gift to be a charity, and as such good.' * * * To put it shortly, I do not see any difference between a gift to keep in repair what is called 'God's house' and a gift to keep in repair the churchyard round it, which is often called 'God's acre.' Then it is said that keeping in repair the tombs in a churchyard is only the same thing as keeping in repair a tomb in the churchyard. I do not think so. A testator providing for the repair of a family tomb is only ministering to his own private feeling or pride, or it may be to a feeling of affection he has for his own relations, and it is not for the benefit of the parish at large that a particular tomb should be kept in repair. But in respect of the repair of the churchyard as a whole, it is for their benefit. That distinction was pointed out by Lord Romilly in the case of Rickard v. Robson, 7 L. T. Rep. (N. S.) 87; 31 Beav. 244, where he says: 'I have had to consider this point lately in a case respecting the promulgation of the doctrines of Joanna Southcote. In that case I thought the gift was intended to be for a public benefit, and that it was a charitable gift which could be supported; but on comparing it with the present I am satisfied that this does not come within the term 'charity,' and it is not within any of the words used in the preamble of the statute (43 Eliz., chap. 4). Lloyd v. Lloyd, 2 Sim. (N. S.) 255 and the other case of Thompson v. Shakespeare, 1 L. T. Rep. (N. S.) 398; Joh. 612, show that a gift merely for the purpose of keeping up a tomb or building which is of no public benefit, and only an individual advantage, is not a charitable use but a perpetuity. The cases run into very fine distinction, because if the gift is to keep up an institution for the benefit of the public, then it is clearly a charity. But that does not occur in this case, for here the gift is merely to keep up certain individuals' tombs.' It seems to me clear therefore that if the gift had been for keeping in repair the churchyard and nothing else it would have been good. But in the present case the gift of the residue of the income was in or toward the expense of repairing or keeping in repair the tomb erected to the memory of my late brother Thomas, and the repairing and keeping in repair the same parish churchyard;' and it is said to be one complete and entre gift, a part of which at any rate is bad, and that the amount of the bad part cannot be ascertained, and therefore the whole is bad. That proposition seems to me not in accordance with the authorities. There is no difficulty in ascertaining the respective amounts to be assigned to the several objects which is what ought to be done, if possible. * * I find no difficulty here

in saying that the gift of the residue is not void altogether; but that to the extent to which the gift is to repair the churchyard it is good; and I do not think there can be any difficulty in ascertaining what the expense of keeping in repair the brother's tomb would be. I need not fix the amount at the present moment, I can direct an inquiry as to that. To the extent of the capital representing the annual amount necessary to keep that tomb in repair, treating the capital as invested in Consols, the gift fails. The rest of the 5007. should be invested in the manner directed on trust to apply the income in repairing the parish churchyard." See Bates v. Bates, 134 Mass. 110; S. C., 45 Am. Rep. 305.

The counterpart of People v. Knickerbocker Life Ins. Co., New York Court of Appeals, reported by us in abstract last week, may be found in Holman v. Continental Life Ins. Co., Connecticut Supreme Court of Errors, July 27, 1886. A "non-forfeitable ' life policy for a term of ten years for $1,000 was issued to plaintiff and contained a provision that the policy should lapse upon the non-payment of any annual premium and of interest annually in advance on any outstanding premium notes which might be given; but that after the payment of two annual premiums, in case of default the company would convert the policy into a paid-up one for as many tenth parts of the sum originally insured as there had been annual premiums paid when the default was made, provided application for such conversion was made within one year after the default. In an action to recover the amount due on the policy defendant answered that the plaintiff had paid two annual premiums, a part in cash and the remainder in premium notes which were outstanding; that he had made default in the payment of the next premium and applied to the company for a paid-up policy; that the company thereupon indorsed upon the policy that it was to pay $200, "subject to the terms and conditions expressed in the policy"; that thereafter plaintiff paid the interest on the outstanding premium notes annually in advance for two years, but no longer. Held (1) that the indorsement upon the policy was equivalent to a paid-up policy; (2) that the policy as thus indorsed was to be construed as forfeitable upon the non-payment of the interest on the outstanding premium notes. The court said: "The contract is not to be construed by its mere label, but by its written terms, and upon referring to these we see at once that the policy is non-forfeitable only to a very limited extent. No one has ever claimed that it extends beyond the payment of an annual premium and interest, and even in these respects it is non-forfeitable only at the option of the holder who must transmit the policy to the company and make application for its conversion into a paid-up policy within one year after default. But a glance at the policy will show that even after the conversion the insured can have no security against forfeiture except by observing the conditions. If without the

512; Alabama Gold Life Ins. Co. v. Thomas, 74 Ala. 578; Insurance Co. v. Robinson, 40 Ohio St. 270;

Y. 172; Patch v. Phænix Mut. Life Ins. Co., 44 Vt. 481; and disapproved of Cowles v. Continental Life Ins. Co., Sup. Ct. N. H., 12 East. Rep. 741; Bruce v. Same, Sup. Ct. Vt., 4 East. Rep. 452.

BY

SOME OLD LAWS OF NEW YORK.

Y an act of the Legislature of 1885, the secretary of state was directed to publish the Session Laws of New York from 1777 to 1801, with the original spelling and punctuation. The edition was limited to a thousand copies, and these were ordered to be distributed about to judges, libraries and county clerks throughout the State.

In pursuance of this legislation, the house of Weed, Parsons & Co., of Albany, have issued the first volume of these laws, embracing the years 1777 to 1784, inclusive. (Laws of the State of New York, 1777 to 1784, Inclusive. Weed, Parsons & Co., Albany, N. Y.) This compilation is of considerable interest, historical, political and economical.

The first session of the first Legislature began in September, 1777, but it was not until February, 1778, that any enactment was made which finds a place in the body of our statute law. The first was the act of accession to the articles of confederation between the States. The following is the lofty language of its pre

amble:

consent of the company he travels outside of the prescribed limits mentioned; if he engages in certain specified hazardous occupations; if he becomes | Attorney-General v. North Am. Life Ins. Co., 82 N. intemperate or is addicted to vice of any kind to the extent of permanent impairment of his health; if he is convicted of felony; if he dies by his own voluntary act or in consequence of a duel, or under the sentence of the law, the paid-up, non-forfeitable policy could not for a moment avail, but would thereby become null and void. Any argument therefore founded merely upon the use of the term 'non-forfeitable' is of little weight. We must as in all other cases construe the contract by the language used in it. In this case the question is confined to the language of the saving clause, which is the fourth. Does that save the insured from the consequences of a failure to pay interest the same as it does in the case of failure to pay future annual premiums? The third clause, which it is indispensable to consider in this connection, clearly specifies two distinct defaults, either of which will forfeit the policy; first, failure to pay the annual premiums when due and second, failure to pay interest in advance on outstanding premium notes. So far the meaning cannot be mistaken. Now how does the saving clause which follows affect the question? It only relieves the insured, after the payment of two or more annual premiums, from one of those defaults, 'the payment of any subsequent premium when due.' Not a word is said about the interest. The saving clause therefore is not co-extensive in its operation with the preceding forfeiture clause as it should be to justify the plaintiff's construction. It is not easy to conceive why the parties having clearly in mind the distinction between the two causes of forfeiture mentioned in the third clause should in the next, in terms, confine the relief to one only, if they intended to place both on the same ground. To accept the plaintiff's view would be for the court virtually to insert what the parties omitted. If it be suggested that the distinction between interest and premium note was unnecessary, the answer is twofold. In the first place the parties have made such a distinction and presumably had it in mind all through, and in the second place the distinction is well founded, for the interest contract is not a mere incident of the note, but distinct from it; it is payable in advance at the beginning of each year, without reference to the time when the notes become due. And herein is a distinction of some importance between the case at bar and some of Chapter 16 of the Laws of 1778 was the first election the cases from other jurisdictions where the pre- law. It is chiefly interesting for its provision that the mium note was payable at a future day with interest electors vote for their senators and assemblymen viva without separate contract as to the latter. In such voce, for governor and lieutenant-governor by ballot. The army of the revolution, then engaged in the long case the interest, being a mere incident of the note, and bitter struggle for our independence, was a concould not be separately recovered, and there would stant subject of legislation, as appears by this volume. be some reason for holding that if the note was to Its maintenance in men and supplies evidently pressed be paid only by deducting it from the policy upon hard upon the State. The commonest necessities were its final adjustment, the interest also must follow all it was undertaken to provide for, and it is apparent that these were almost wrung from the meagre posthe same course, for it must follow the note." The sessions of the people. Numerous are the acts for court cited Knickerbocker Life Ins. Co. v. Dietz, 52"procuring an immediate supply of flour, meal and Md. 16; Knickerbocker Ins. Co. v. Harlan, 56 Miss. wheat for the army," succeeding one another with

"Where the freedom, sovereignity and independence of the said states which with a magnanimity fortitude constancy and love for liberty hitherto unparaleled (sic) they have asserted and maintained against their cruel and unrelenting enemies the king and parliament of the realm of Great Britain will for their lasting and unshaken security in a great measure depend under God on a wise well concerted intimate and equal confederation of the said United States."

Among the earliest statutes was one to prevent the spread of small pox (ch. 36, 1778). Justices of the peace were authorized to appoint three houses in each

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town or manor as pest houses, and to issue their warrants against persons casually taken with the small pox, but it must be "one or more inhabitant of the neighborhood having had the small pox" to whom the warrant was issued, and who was obliged to execute it by lodging the victim in the pest house.

The following clause would do credit to Montreal: "Be it further enacted by the authority aforesaid That no physician, surgeon practitioner in physic, or other person shall inoculate any person or persons for the small pox in any place or places within this state."

If any medical man violated this law he was subject to a forfeit of twenty-five pounds. With one exception, this is the only sanitary law in the entire volume.

brief intervals of time, and disclosing many and various shifts and devices for obtaingng the food. By chapter 5 of the second section all flour, meal or wheat purchased by any one with the intent to be sold again, bartered or exported out of the State, was subject to seizure for the army, to be paid for at prices fixed by the law. A farmer who held over any wheat of the crop of the previous year (1777), or of any previous year, was liable to have it seized and sold, enough only being exempted to him for the support of his family. The law provided that barus, mills and houses might be broken into for the purpose of discovery. By chapter 18 of the same session it was forbidden to distil liquors from grain. The first law of the next session dealt with the same subject. The right of seizure was extended to peas, and in addition every inhabited was assessed by assessors a certain quantity of grain, which was required to be delivered within three weeks after notification from the commissary general at stations not farther distant than twelve miles. By chapter 34 of the same session the amount which it was permitted the "inhabitant" to retain for the needs of his family was fixed at one bushel per month per head or the like proportion of flour.

It is evident that the distress was not confined to the army, for this law contains a provision enabling any persons in want of these necessities to go before the proper supervisor, and upon proof on oath that it was intended to apply the grain to the wants of their families, permits were issued to them to purchase the grain confiscated from those who could get along without it. Five times its value was forfeited for the secretion of any such commodity. By the next act certificates received for confiscated grain were made receivable for taxes, and in the next year a law was passed providing for raising a general tax levied by act of Congress in wheat in specie.

Perhaps the most curious and remarkable specimens of legislation found in these laws are those regulating the prices of commodities, the wages of labor, etc. Nature's law of supply and demand is utterly ignored. The first was passed April 3, 1778, in pursuance of the adoption of a scale of prices by a convention of most of the States which was held on the recommendation of the General Congress of the United States. The purpose appears to have been to enable the commissaries of the armies to obtain supplies, and undoubtedly also to accomplish the devoting of any surplus to the necessities of the impoverished. This appears from the clause which declared that no person having any greater quantity of the enumerated articles than sufficed for the support of his family or himself, should refuse on demand to sell the surplus under penalty of a heavy fine. War evidently had its usual effect on prices, for the "fair valuation" of various kinds of labor, that of farmers, mechanics and others, was set at rates not exceeding seventy-five per cent advance on their prices in the same places the year before. The value of all the ordinary commodities of life was fixed absolutely by this law, and it also provided that no person whatsoever should "ask, demand have receive take offer give pay or allow" for articles of manufacture, labor, hire, provisions, wares or merchandize, or "for refreshment or other supplies for man horse or cattle at any inn" more than the prices 80 fixed by law under penalty of a forfeit of treble the price of every article for which more than the rated price of the law was so asked. It was provided that this law should continue in force unless sooner repealed "during the present war between the United States and Great Britain and no longer." With the exception of a period of suspension for about twenty days, this law remained in force until the 28th of October, 1778, during the next session, when it was repealed.

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not answered the statutory purposes for which it was intended by reason of the neglect or refusal of some of the other United States to pass similar laws it is enacted that said act be repealed,” etc.

It is not difficult to comprehend the inefficiency of such a law to regulate prices under any conditions, and especially its utter futility so long as bordering States had no similar enactments. It seems however to have been a pet scheme of Congress, for in 1780 the Legislature passed a similar law. The rise in the value of ali commodities since the beginning of the war, as well as the great depreciation of the current money, served to make the scale of prices fixed by this law almost fabulous-in general, "articles of domestic produce farming and common labor the wages of tradesmen and mechanics, water and land carriage not to exceed twenty fold of the price current through the various seasons of the year 1774." Accordingly the price of a bushel of wheat was fixed at $20; flour, $56 a hundred weight; Indian corn, $11 per bushel; pork, "well fatted," $89 per hundred weight; best stall-fed beef in the month of January, seven shillings per pound; good fresh butter, by small quantity, twenty shillings per pound; the best sort of men's shoes, made of neats leather, $25 per pair; tenpenny nails, thirty shillings per pound, and a good scythe or sickle, $30 each. The price of a two-horse wagon or two-ox cart, with a driver, was $30 per day; four-horse, $50. Wages of laborers, mechanics and manufacturers were twenty fold the prices of 1784. "Each meal of victuals" at an inn was twenty shillings. Values were enormous when it is considered that this law was intended as a check upon the natural operation of supply and demand. To withhold from market more than was necessary to the owner or his family was termed "a shameful practice," and a person guilty of it could be summoned before a justice of the peace, examined as to his possessions, and any surplus subjected to sale at the hands of the officers of the law.

By section 31 of chapter 64, Laws of 1780, “in consideration of the eminent services of Thomas Paine Esquire and as a testimony of the sense which the people of this state entertain of his distinguished merit," there was granted and released to the "said Thomas Paine all that certain farm or plantation situate in the township of New Rochelle, in the county of Westchester, formerly belonging to and usually called the farm of Captain Bailey, deceased, and afterward De Voe's lower farm, containing by estimation about three hundred acres of land and which became for. feited to, and is now vested in the people of this state by the conviction of Frederick Devoe." No better evidence than this of the high position famous "Tom" Paine once held in the regard of the people of the State could be adduced.

The enactments against the disloyal, and their conspiracies, are numerous. By chapter 2, Laws of 1778, a regular inquisitorial board was appointed, with power to apprehend, try and cause to be confined, or take bonds from any person suspected for disloyalty. Chapter 27 authorized "the person administering the government of the State," whenever he should deem it necessary for the public safety, to remove all dangerous and disaffected persons and families residing at or near posts and passes within the State of whom there was reason to believe that they communicated intelligence to the enemy, to be removed from their houses and farms by force, if necessary, to such other places as he should deem expedient. Charter 47 requires and strictly charges upon the commissioners of

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