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CORRESPONDENCE.

LEGAL NOTICES IN SUNDAY NEWSPAPERS.

Editor of the Albany Law Journal:

In reply to the question of "M," of Cleveland, whether a constructive service of legal process by publication in a Sunday newspaper is good, I send the following cases: If a publication of a notice is, by statute, required to be made for any number of days less than a week, a publication on Sunday as one of such days is invalid (Scammon v. Chicago, 40 Ill. 146; Sewall v. St. Paul, 20 Minn. 511; see Excelsior Ins. Co. case, 16 Abb. Pr. 8; State v. Wheeler, 64 Me. 532); but if the number of days be more than a week, neither its publication on the intervening Sundays (Taylor v. Palmer, 31 Cal. 240; Miles v. McDermott, id. 271; Carpenter v. St. Paul, 23 Minn. 232), although Sunday may be the

first day of such publication (Cleland v. Tavernier, 11

id. 194), or the last (Savings Society v. Thompson, 32 Cal. 347), nor its omission on such intervening Sundays (Kellogg v. Carrico, 47 Mo. 157) will avoid its legality; nor will there arise any presumption of law that such notice was published on Sunday (Jenks v. Chicago, 48 Ill. 296), so, a thirty days' notice of sale was held to be good, although one of the three notices was posted on the inside of a post-office door, such office being open only for two hours on Sunday (Graham v. Fitts, 53 Miss. 307; see Osgood v. Blake, 1 Fost. 550).

A contract for a Sunday advertisement is void. Smith v. Wilcox, 19 Barb. 581; 25 id. 341; 24 N. Y. 353; Sheffield v. Balmer, 52 Mo. 474. Whether there can be a waiver of such irregularity in process - Morgan v. Johnson, 1 H. Black. 628; Taylor v. Phillips, 3 East, 155; Vanderpoel v. Wright, 1 Cow. 209; Wright v. Jeffrey, 5 id. 15; Gould v. Spencer, 5 Paige, 541; Pierce v. Rehfuss, 35 Mich. 53; Rheem v. Carlisle Bank, 76 Peun. St. 132.

A mistake in dating process, etc., on Sunday may be amended. Boyd v. Vanderkemp, 1 Barb. Ch. 273; York v. Ackerman, Penning, *900. See, also, Cotton v. Huey, 4 Ala. 56; Marshall v. Russell, 44 N. H. 509; Haines v. McCormick. 5 Ark. 663.

TRENTON, N. J., Oct. 30, 1880.

Editor of the Albany Law Journal:

J. H. S.

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of New York; James v. Cowing; Sprague v. Hosmer; The Philadelphia and Reading Coal and Iron Company v. Hotchkiss.—Order affirmed, and judgment absolute for respondents on stipulation, with costs - - Brush v. Barrett; Mason v. Ludington; Dean v. De Wolf; judgment absolute for plaintiff on submission, with Hewer v. Dannenhoffer.-Judgment reversed and costs Faulkner v. Hart.- Judgment of General Term reversed, and that of Special Term affirmed, with costs Ritch v. Smith.- - Order affirmed, with costs— Monroe v. The Tradesmen's Fire Insurance Company. -Appeal dismissed, with costs-Elwood v. Roof; People ex rel. Waldman v. Police Commissioners of New York.

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NOTES.

THE HE November number of the American Law Review contains leading articles by William A. Maury on Validity of Statutes authorizing the accused to testify, and by Ernest Howard Crosby on Imputed Contributory Negligence of Third Persons. Mr. Crosby lays down three rules; first, contributory negligence of third persons does not constitute a defense unless such negligence is to be imputed to the plaintiff; second, the contributory negligence of a third person, who was guilty thereof as the agent of the plaintiff, must be imputed to the plaintiff; third, a plaintiff, who derives his cause of action from an injury done to a third person, is chargeable with the contributory negligence of such person. In the October number of the Southern Law Journal and Reporter is a leading article by Frank Fuller on Eloquence of the Bar, and a sketch, by J. M. Whitehead, of Benjamin F. Porter, deceased, once reporter and afterward judge of the Alabama Supreme Court. Also an excellent sketch of the late Judge Manning. The second volume of the Federal Reporter, by the West Publishing Co. of St. Paul, contains causes decided from May to July, 1880, covering 1,000 pages. It is a well-executed and very valuable publication, and little short of indispensable to every well-provided lawyer.

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W. J. CULVER.

Coleridge, L. C. J..

1873

59

Cotton, L. J.

1877

59

Denman, J..

1872

Field, J....

1875

1877

1871

1873

Hannen, J

1868

Hawkins, J.

1876

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Judgment affirmed with costs-Hart v. Taylor Solinger v. Earle; Foose v. Whitmore; Wilson v. Lawrence; Hooley v. Gieve; Roe v. Barker; Ormes v. Dauchy; People ex rel. New York Elevated Railroad Company v. Commissioners of Taxes of New York; The Lacustrine Fertilizer Company v. The Lake Guano and Shell Fertilizer Company; Hunt v. Purdy; Frieberg v. Branigan, People ex rel. Westray v. The Mayor of New York; Lowenstein v. Flauraud; Pierson v. Morch; Van Beil v. Prescott.- Judgment reversed and new trial granted, costs to abide event - Pardee v. Treat; Pakalinskey v. The New York Central and Hudson River Railroad Company; Hatch v. The Mayor, etc.,

Jessel, M. R.. Lindley, J. Lopes, J.. Lush, J..

Malins, V. C..

Manisty, J.

Phillimore, Sir R.

Pollock, B..

Stephen, J.

Bowen, J.

45

From this list it will be seen that there are eight judges who have attained seventy years and upwards, and eight whose age exceeds sixty.

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SON

ALBANY, NOVEMBER 20, 1880.

CURRENT TOPICS.

OME one has kindly sent us a recent number of the Daily Memphis Avalanche. We opened the sheet with some trepidation, for the reputation of the newspaper in this part of our country had made us apprehensive of some concealed Greek fire, dynamite, or other explosive or inflammatory substance. To our surprise we found the Avalanche a very calm and dignified journal, uttering political sentiments which might well have emanated from the New York Tribune. It also brought us an item of legal news which argues that at least in some parts and in some courts of the South, colored folks have rights which white people respect. Jane Brown, a colored woman, bought a ticket entitling her to a first-class passage from Corinth to Memphis, on the Memphis and Charleston railroad. She took her seat in the ladies' car; the conductor ordered her to go forward into a smoking and emigrant car; she refused to go, and thereupon she was ejected with great violence. She brought suit for damages in the Federal Circuit Court, and a jury of white men awarded her $3,000. The defense was first, that the plaintiff was an unchaste person; second, that under the law of Tennessee a carrier may refuse to carry any person at pleasure. It was conceded that on the occasion in question her conduct was proper, and that the railroad company had no regulation making discrimination on account of color.

The statute in question abrogated "the rule of the common law giving a right of action to any person excluded from any hotel, or public means of transportation, or place of amusement." It also enacted that "no keeper of any hotel or public house, or carrier of passengers for hire, shall be bound to entertain, carry, or admit, any person whom he shall, for any reason whatever, choose not to entertain, carry, or admit, to his house, hotel, carriage or means of transportation, or place of amusement; nor shall any right exist in favor of any such person so refused admission; but the right of such keepers of hotels, carriers of passengers and keepers of places of amusement to control the access and admission or exclusion of persons to or from their public houses, means of transportation and places of amusement, shall be as perfect and complete as that of any private house, carriage, or private theater, or place of amusement for his family." Judge Hammond charged the jury that this act of the Legislature, so far as it abrogated the common-law right of action for wrongful exclusion from railroad cars on roads running between two or more States, was unconstitutional, because it was a regulation of commerce between the States, which the Legislature had no right to make, the exclusive right to make it being by the Constitution of the United States in VOL. 22.- No. 21.

Congress. He charged the jury on the question of the plaintiff's character for chastity, that the same principles of law were to be applied to women as to men in determining whether the exclusion was lawful or not. That the social penalties of exclusion of unchaste women from hotels, theaters, and other public places could not be applied to common carriers; that they had a right to travel in the streets and on the public highways, and other people who travel must expect to meet them in such places; and as long as their conduct was unobjectionable while in such places, they could not be excluded. The carrier is bound to carry good, bad, and indifferent, and has nothing to do with the morals of his passengers, if their behavior be proper while travelling. Neither can the carrier use the character for chastity of his female passengers as a basis of classification, so that he may put all chaste women, or women who have the reputation of being chaste, into one car, and those known or reputed to be unchaste, in another car. Such a regulation would be contrary to public policy, and unreasonable. It would put every woman purchasing a railroad ticket on trial for her virtue before the conductor as her judge, and in case of mistake, would lead to breaches of the peace. It would practically exclude all sensible and sensitive women from travelling at all, no matter how virtuous, for fear they might be put into, or unconsciously occupy, the wrong car. So far as heard from, therefore, Jane Brown's body is marching on.

A correspondent asks us what we say as to the case of Reed v. N. Y. Cent. R. R. Co., 45 N. Y. 574, in view of our third conclusion in regard to declarations of injured parties, ante, 365. That conclusion was as follows: "Complaints and statements of the injured party as to his present physical condition, although subsequently to the occurrence and indeed after suit is brought for the injuries, are admissible, whether made to a physician or to one who is not an expert." In the case referred to, the syllabus states that it was held that "the evidence of the plaintiff, in his own behalf, that at the time this labor was being performed, he declared to a person casually present, and with whom he had no business relation, that he felt ill, was inadmissible, either to controvert the defendant's proof or to show statements of his own out of court consistent with his testimony." We say that this is not inconsistent with our conclusion: first, because it was the plaintiff's own testimony as to what he had said, and not the testimony of others as to what he had said; or as Judge Allen put it, it was "the unsworn statement of the plaintiff;" it was not the best evidence from his own mouth; "the plaintiff," said Judge Allen, "was a competent witness to prove the state of his health at the time," "and it was not necessary to resort to other and inferior evidence; and so long as his sworn statements were admissible, his unsworn declarations should not have been received." This certainly is as far as the decision could go, for it did not involve the proof of the declarations by the testimony of third persons. This, we think, serves to distin

guish the case. But, second, at all events the decision was not put on this ground by a majority of the court, for only three judges concurred in this view, namely, Allen, Grover and Rapallo, while Folger, J., was for reversal on another ground, in which Rapallo, J., also concurred; Church, C. J., and Peckham, J., dissented, and Andrews, J., did not vote. So the case is not of much authority on this point. Third, if Judge Allen meant to exclude proof by third persons, not expert, of the plaintiff's declarations, his theory that there is no necessity for such evidence because the plaintiff himself could testify as to his state of health, we think, is erroneous, and herein we agree with the dissenting judges.

As our Court of Appeals are about to take possession of their chamber in the new capitol, we are reminded that new accommodations for our lower courts are soon to be provided in the city hall, which is to take the place of the old edifice burned last winter. We know nothing of the plans of the new building, but we hope that every thing will not be sacrificed to exterior and interior display, but that we shall have rooms where people can see, breathe, and hear. It is of slight consequence that nobody can be heard in the assembly chamber of the new capitol, but hearing is of great consequence in a court room. Light and ventilation too are important matters. In recent architecture, while there is a decided revival of good taste, there is a tendency to sink the utilitarian in the esthetic, and to give us beautiful medieval caves where we should have simple rooms. Our profession demand a little consideration for themselves, as well as for the judges, jurors, suitors, and spectators, and must have natural light enough to see to read at mid-day, air that will not poison, and acoustic properties that will enable the occupants of the rooms to hear and be heard without painful effort. Let the money be spent on these points, rather than on carvings, paintings, tilings, and costly masses of materials.

However men feel about Mr. Hewitt's conduct, as a politician and a man of honor, in the Chinese letter case, there can hardly be any difference of opinion among the bar as to the rebuke administered to that gentleman by Judge Davis in his recent decision. It seems to us a very unnecessary and undignified, not to say improper, performance. If Mr. Hewitt was guilty of any crime, it was Judge Davis' duty to hold him for that crime. If he had not been guilty of any crime, Judge Davis had no duty in the premises, with respect to him. The people have not yet constituted Judge Davis their Cato, nor their model of deportment. He has as little right to promulgate his opinion on such points from the bench as we have to do so in this JOURNAL. This is not the first time, even in this case, that he has thought it important to the public to "put himself on the record," from the bench, on purely public or political affairs. We are glad to know that in this instance his conduct has not cost the victim any thing. We have as high a respect for

Judge Davis' virtues, talents, and public services as anybody, but this partisan exhibition on the bench is not greatly to his credit. If he wants to denounce Mr. Hewitt's conduct, let him hire Cooper Institute, or publish a pamphlet. This is his right, and he would have plenty of sympathizing hearers or readers. But the present is not the way to commend himself to men who love fair play and abhor judicial partisanship. It is entirely outside the much-abused judicial privilege of commenting on the conduct and demeanor of witnesses. The impropriety of this present utterance is emphasized by the fact that the judge committed an important error in stating the testimony upon which he arraigns Mr. Hewitt, and is forced to descend to an explanation in the newspapers. The public do not like this sort of conduct in a judge. The physical, moral, and political world will continue to revolve very well without the interference of judicial busybodies.

The meeting of the New York State Bar Association on Tuesday last was even more slenderly attended than usual, and the exercises, on the whole, were of less than ordinary interest. Even the supper in the evening did not attract the usual number. We have concluded that the lawyer is not a conventional animal. The principal matter of interest in the morning session was an elaborate report by Mr. Delafield, of New York, denouncing legislative discrimination in favor of our law schools, and seeking to put the Harvard, Yale, and Virginia law schools on the same footing in our State as our own. The former branch of his suggestions was adopted, the latter discarded. While we are by no means strenuous about having law school graduates admitted on motion, believing that the courts are quite at liberty to amuse themselves with their present farcical examinations, yet if there is an advantage in a law school education over that to be derived from mere reading in an office, it would seem fair to make some discrimination, in point of the term of study, in favor of the law schools. We regretted to hear Mr. Delafield read the sentence in the late Chief Judge Church's letter, to the effect that law school managers run the schools simply to make money. That declaration is a great injustice to such men as Judge Dwight and Judge Dillon, of Columbia, and the late Senator Harris and Amos Dean, and Judge Parker, formerly of the Albany Law School; and especially to the late Chief Judge's eminent_colleague, the late Judge Allen, who used to come down from the bench to deliver lectures before the Albany Law School.

The annual address, by Mr. George W. Biddle, of Philadelphia, was a vigorous, exhaustive, and admirably expressed essay on the proper office and limitations of Retrospective Legislation. Mr. Biddle produced an excellent impression upon our bar, by his learning, modesty, and amenity, and his address was listened to with great interest and profit. To his remarks, at the supper, in favor of a substantial life tenure for judges, we cannot give our adhesion,

for if we have a good judge we want to compliment him by a re-election, and if we have one who is not good, we do not want to suffer him for life.

The only essays read were one by Mr. Edward E. Sprague, of Flushing, on Law and Lawyers in Shakespeare, and one by Mr. Joshua Gaskill, of Lockport, on Exemption of Personal Property from Execution, both highly creditable productions.

Judge Andrews, of the Court of Appeals, spoke strongly at the dinner in favor of limiting appeals to that court, and against what he called a "double headed court." We have no dread of a "double headed court," if we can get seven other heads as good as those of the present judges. It might be difficult to find them, but we have faith that they might be found, and that if added, or rather subjoined, to the present court, they would not constitute a monster of dreadful mien. We shall give a fuller report of the meeting next week. It is important to say that while the attendance at these meetings is small, the membership of the association is increasing, and that the association is becoming a wealthy corporation.

IN

NOTES OF CASES.

rare, and but few persons have been found willing to contemplate such a union." "The fact that marriages between persons so related are so commonly prohibited by legislation in those communities which are most advanced in moral and intellectual progress, must be deemed high evidence of the generally prevailing sentiment on the subject. Whether this sentiment finds its origin in the mandate of divine law, or a belief that such unions are a violation of the physical laws of nature, or in the conviction that to tolerate such alliances would impair the peace of families and lead to domestic licentiousness, its existence must be acknowledged and traced to some or all of these sources. The statutes of Henry VIII, prohibiting such marriages, are but a reaffirmation of the Levitical law. Regina v. Chadwick, 12 Eng. Jour. 174. While the Levitical law is not binding as a rule of municipal obedience, it has been judicially declared to be a moral prohibition, and as such, binding upon all mankind (Harrison v. Buswell, 2 Vent. 9), and is now incorporated into the statutes of England by the acts of 5 and 6 William IV, ch. 54. In Illinois it is held that such a marriage is prohibited by the laws of God,' within the meaning of a statute of that State. Bonham v. Badgley, 2 Gilm. 622. In Parker's Appeal, 44 Penn. St. 309-312, the court, while holding that such a marriage was not void under the laws of Pennsylvania, took occasion to say: 'We cannot refrain from stating that such connections are destructive of good morals, and should be frowned upon by the community.' Between what degrees of consanguinity the line is to be found, which determines what marriages are unobjectionable and what are not to be tolerated, it is not necessary to decide, but the better opinion would seem to be that marriages should not be sanctioned in any nearer degree than that of cousin-german. A marriage between uncle and niece, or nephew and aunt, would certainly shock the sentiment of any enlightened community, and this, in the absence of any other test of the propriety of decency of things, should be accepted as controlling. It can hardly be

N Campbell v. Crampton, United States Circuit Court, Northern District of New York, May, 1880, 2 Fed. Rep. 417, it was held by Wallace, D. J., that while under the laws of New York a marriage between nephew and aunt may not be voidable for consanguinity, an agreement to marry between parties so related, and living in a State where such marriage is incestuous, will not be tolerated, nor damages permitted to be recovered for the breach thereof, in the courts of New York. The marriage agreement was made in Alabama, where such marriages are by statute declared incestuous, and the intention of the parties was to reside there after marriage. The court first pronounce that the contract is to be construed by the place of perform-doubted that if the parties here had become husance, and that this, in the case of a promise of marriage, is the place where the parties intended to live in marriage, which in this case was Alabama. Citing Scudder v. Union Nat. Bank, 1 Otto, 406; Sottomeyer v. De Barros, 20 Alb. L. J. 450. The court examine the question whether such a marriage would be void or voidable in this State, and answer it in the negative. The court proceed: "Notwithstanding the extensive research of counsel, no case has been found which determines whether an agreement for a marriage between a nephew and aunt is obnoxious as contravening morality or public policy. Such marriages are expressly prohibited by the civil law, by the laws of England, and by the statutes of many of our own States." "It is not improbable that the question has not been presented to the courts of the States where there is no statutory prohibition, because such marriages are felt to be so unnatural and revolting that they have been very

band and wife, they would have been regarded as joined in an unnatural union, and as victims of a corrupt moral taste, to be pitied and avoided, if not as objects of detestation; and in this view the plaintiff may consider herself fortunate that she has been saved from such a future by the selfish and perfidious conduct of the defendant."

What constitutes a "riot" was defined in Lycoming Fire Insurance Co. v. Schwenk, Pennsylvania Supreme Court, June 14, 1880, 37 Leg. Int. 426. This was an action on a fire policy. A breaker at a coal mine was set on fire at night by a party of men, who fired several shots, drove the watchmen away and then burned down the breaker. Held, that this was a riot within the provisions of the policy of insurance. The court said: "We are decidedly of the opinion that in the foregoing testimony every element of riot is found, whether at common law or

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although having power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow-servant of the other op

Wood's Mast. & Servt., § 438; also §§ 431, 436, 437. On the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant if they result from the omission of some duty of the master which he has confided to such inferior employee. Flike case, 53 N. Y. 549. The liability of the master depends upon the character of the act in the performance of which the injury arises, without regard to the rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. The converse of this necessarily follows. If the act is one which pertains only to the duty of an operative, the employee per

under an act of 1705. There was the unlawful assemblage of three or more persons, combined together to perpetrate an outrageous and violent crime. The commission of the crime was immedi-eratives. Albro v. Agawam Canal Co., 6 Cush. 75; ately preceded by numerous discharges of fire-arms. Two peaceable citizens, engaged in watching and protecting the premises — placed there for that purpose were compelled to flee therefrom in terror of their lives. The crime was arson, one of the most odious known to the criminal law. It was committed at a late hour of the night, when the great, majority of persons are in their beds and asleep, and least prepared to defend themselves or their property. It is an offense having a more natural and necessary tendency to put whole communities in fear and terror than almost any other. In this instance it was accompanied by the voices of men calling for wood and oil, with which to apply the fire, by the loud and appalling noise of exploding weapons of destruction, and the criminals them-forming it is a mere servant and the master, although selves were a band of men whose numbers could not be determined on account of the darkness of the night. For a court, in charging a jury, to speak of such an occurrence as any thing less than a riot of the most marked and distinct character, would be simply to mislead them. We think the learned judge of the court below, in his comments to the jury, dealt quite too leniently with the plain and undisputed facts of the case. He said to them that to prove a riot there must be a previous unlawful assemblage, accompanied with circumstances of force and violence, and 'that if the assembling of persons be not accompanied with such circumstances as these, it cannot be deemed a riot, however unlawful the acts which they actually committed.' From this the jury would naturally infer that unless the proof went back to the time when the men first met together, and established that such original meeting was attended with circumstances of actual force and violence, a case of riot could not be made out, no matter what acts of outrage and violence were subsequently perpetrated. Such is not the law as we understand it, and we consider it error to say or to intimate that it is, to a jury charged with the trial of such a case." The latter view is sustained by the authority of Chief Justice Holt, in 11 Mod. 116, and by U. S. v. Macfarland, 1 Cr. C. Ct. 140. It is not necessary that the act should be unlawful. State v. Brooks, 1 Hill (S. C.), 361; Kiphart v. State, 42 Ind. 273; nor that it should be done by the rioters themselves, if they assembled to do it. v. Territory, 1 Or. 163.

Newby

In Crispin v. Babbitt, New York Court of Appeals, Sept. 21, 1880, it was held as follows: The liability of a master to his servant for injuries sustained while in his employ, by the wrongful or negligent act of another employee of the same master, does not depend upon the doctrine of respondeat superior. The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory,

liable to strangers, is not liable to a fellow-servant
for its improper performance. The doctrine in
Mullan v. Phila. & South. Mail Steamship Co., 78
Penn. St. 25; S. C., 21 Am. Rep. 2, sustains this
proposition. Accordingly, where B. who repre-
sented the employer as financial agent or superin-
tendent, overseer, or manager, and stood in his
place, held, that he did so only in respect to these
duties, which the employer had confided to him; as
to other acts about the employer's place, he was a
mere employee. And where he turned on steam he
performed the act of a mere operative, and the em-
ployer would not be liable to a fellow-employee for
an injury caused by that act. In the opinion writ-
ten by Rapallo, J., Folger, C. J., and Andrews and
Miller, JJ., concurred, while Earl, Danforth, and
Finch, JJ., dissented. The Mullan case supports
this doctrine, but in Berea Stone Co. v. Kraft, 31
Ohio St. 237; S. C., 27 Am. Rep. 510, the contrary
was held. There a foreman temporarily assisted a
laborer in the master's employ in fastening a hook
to a stone, and owing to the foreman's negligence
the plaintiff sustained an injury. The master was
held liable. The court said: "Where the master,
or one placed by him in charge of men engaged in
his service, personally assists or interferes in the
labor being performed under his direction and con-
trol, and is, while performing such labor, or inter-
fering with its performance, guilty of negligence
resulting in an injury to one engaged in such ser-
vice, there is no sound principle of law that will
excuse or exonerate the master from liability.
mond v. Holland, 96 Eng. Com. Law, 102; Shearm.
& Redf. on Neg., § 89 et seq.; Wharton on Neg., §
205." "If the act done by him had been done un-
der his direction, as he did it by one of the em-
ployees of the company, its liability could not be
doubted, and for the reason that the negligent act,
although committed by the hand of another, was,
in law, the act of the foreman, and consequently the
act of the master. And it could be no less the act
of the master when performed by the foreman in
person."

Or

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