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receiving it. But how did this man turn out in bis Editor of the Albany Law Journal :

future experience in tbis matter? Why two years at

terward he was accidentally elected to the General I have wondered that in favor of gowns no one has Court, and he received a pass, and used it through two suggested the simple and obvious argument of fitness.

sessions, and when asked why he did so, his reply was, “G. S. P. S." and others obstinately continue to be re

It is the custom." minded of monarchical forms, priests, etc., but why

E. S. WHITTEMORE. does not a soldier's uniform yet more painfully remind

SANDWICH, Mass., 1884. them of a military despotism ?

There was a time in our history when policemen, firemen, brakemen, coachmen and others could not be

FARNSWORTH V. Wood. induced to wear uniforms. Whenever men of a particular class adopt a distinctive dress, would “G. S. P.

Editor of the Albany Law Journal: S." hold that this was a step backward ?

Your coutributor “ J. S. W.,” in the number of your The gown gets its fitness from a suggestion of com- journal of this date, in his article upon “ Receivers of plete bodily repose, a natural accompaniment of the Corporations; Right to Sue Stockholders for Unpaid calmest deliberation.

Subscriptions,” refers to the case of Farnsworth v. These reflections are offered merely for the consola- Wood, 91 N, Y. 313, as seemingly overruling the cases tion of "G. S. P. S.,” for surely the custom does not which have held that the right to collect unpaid subsuffer from any argument advanced in this letter. scriptions of stockholders to corporations passes to a

R. W. G. WELLING. receiver thereof. In this he is in error. The cases are

not antagonistic.

In Farnsworth v. Wood the action was brought RAILROAD PASSES TO MEMBERS OF THE LEGISLA

against the stockholders because of a violation of sec

tion 10 of the General Manufacturing dot by reason of Editor of the Albany Law Journal:

the capital stock not having been duly paid in in cash,

and a certificate of such payment duly made and reIn many States of the Union, as soon as the senators and representatives to their several legislatures re

corded, as provided for in that and the following sec

tion. ceive their certificates of election, the heads of the nu

By section 24 of such act creditors could not commerous and powerful railroad corporations prepare for each and all of them either annual passes or passes

mence an action to enforce the personal liability pro

vided for in section 10, among others, unless the debt which continue during the session of the Legislature.

were of the kind mentioned in section 24, nor unless a Now ought such a state of things be allowed to exist ?

suit had been commenced against the company within What are such passes issued for? Can it be to secure just and impartial laws?

a year, etc.

The action of Farnsworth v. Wood was not brought to Suppose any man had a case in court, just about to be tried before a jury of twelve men, and he boldly or

collect unpaid subscriptions, but on the contrary, was

an action of a totally different nature, brought against otherwise approached these jurors and presented each

the stockholders, because the provisions of the tenth a dollar without any explanation, would not such a

section had not been complied with; and the receiver proceediug be a sufficient warrant, in tbe presiding judge, to set aside a verdict rendered in such a case ?

brought the action as representing the creditors of the Would it uot be tacitly buying such jury?

company, not for the purpose of recovering unpaid Now not

subscriptions of stockholders to the capital stock, but members of the Legislature,

to recover from stockholders the amount of the debts who rarely or never receive passes when they are

due the several creditors of the corporations who had not members, have all the appearance of being bought complied with the conditions of section 24, up to an or bribed by receiving such favors, for during the session should a piece of legislation come up affecting

amount equal to the amount of the capital stock held such or such a railroad, would it not be reasonably ex.

by the stockholders respectively. A careful perusal of

the Farnsworth case will show that there is no overpected that such members would, from the natural in. ruling of past cases as to actions to recover unpaid firmity of human nature, lean toward favoring such subscriptions by a receiver, nor is there any inconsist and such corporation ?

ency in the Farnsworth case with the cases upon that It is often asked: Does anybody expect that a man

subject. will forfeit his reputation for a pass ou & railroad ?

Yours, But why then give him a pass ? and why receive it? It

A. B. is given for some object. Now what is that object? Is

ALBANY, May 10, 1884, it a mere compliment to the man who is lucky enough to be elected? What does the president of the “Universal Central Railroad " care about the election of Editor of the Albany Law Journal : Jefferson Batkius, of Cranberry Centre ?

Your correspondent “J. S. W." has discovered a diThe plain fact is that they waut his vote should any lemma in which the Court of Appeals has placed him measure come up in the interest of the railroad, and by its decision of Farnsworth v. Wood, 91 N. Y. 313, that is all there is about it.

and “sincerely hopes all will concur in overruling In Massachusetts in vain have been the repeated at- Farnsworth v. Wood as soon as opportunity is offtempts to interpose a legislative interdict against such ered.” passes. When it is introduced it is either laid on the We submit that the dilemma is of his own, and not table, indefinitely postponed or referred to the next of the court's making. Farnsworth v. Wood does not General Court, but the members want their present decide that a receiver of a manufacturing corporation passes until they get home.

cannot maintain an action to recover from stockholders As an illustration of a fact we will refer to a caucus their unpaid subscriptions. in a town in Massachusetts. Some years ago a gentle- No such question was in the case. It simply decides man arose, and with a sanctimonious face moved that that the statutory liability of stockholders can be enour representative in the Legislature be instructed not forced by those creditors only who have claims which to accept a pass from a railroad, and accompanying his the statute makes enforceable against the stockholders, motion with a fair argument against the propriety of and that the right to enforce them never was the prop




written: - Mr. Bartlett, in the last edition of his The Following decisions were handed down Tues

erty of the corporation, and therefore never became the editors, on the West Coast Doctrine as to Riparvested in the receiver.

ian Rights, the merits of which need no recommenda

ALBERT SMITH. tion, the name of Johu N. Pomeroy carrying with it TROY, N. Y., May 10, 1884.

sufficient indorsement. The index contains double the number of pages of that of the Pacific, which of

necessity makes the contents more accessible. It is ETERNAL VIGILANCE.

well printed and bound in half sheep. Editor of the Albany Law Journal: To my statement in the JOURNAL of April 19 prox.,

PACIFIC REPORTER. that Victor Hugo is the author of the expression, Containing all the decisions of the Supreme Courts of Califor“Eternal vigilance is the price of liberty, and that the nia, Colorado, Kansas, Oregon, Nevada, Arizona, Idaho, expression may be found in his “ Les Miserables," you

Montana, Washington, Wyoming, Utah and New Mexico, reply that “the expression is a great deal older than

December 27, 1883-January 31, 1884, Vol. 1, Saint Paul, “Les Miserables." In the JOURNAL of May 10 inst. I

1884; West Publishing Co. Pp. 946. find that W. F. Warner, of Waverly, Tioga county, In this volume covering the short period of one N. Y., says that you are right in your conclusion that month, there are reported 513 cases, of which 242 are the author of said expression “is unknown.” Io his of the Kansas Supreme Court, which State is not inLes Miserables" Victor Hugo uses said expression

cluded in the West Coast Reporter. The price of subwithout quotation marks, and unless you or Mr. War-scription ($5) places the reports of 12 States for a year ner or some other person can tell us what author used at the command of every lawyer in the country. Even the expression prior to the production of “ Les Misera- the “ briefless barrister" would hardly miss, and he is bles," what right have you to ask the readers of your

a niggard indeed who finds fault with it. With valuable journal to withhold from that eminent

others we cannot see how the thing is done; but of Frenchman the credit of being the author of this justly that consideration the profession will think little and celebrated expression ?

care less. It is printed similarly to the Northwestern, Very truly yours,

and is well bound, but heaven's first law was forgotten

CYRUS A. PEAKE. when the lower title was arranged. YONKERS, N. Y., May 12, 1884. [We derive our "right" from prior use. We

COURT OF APPEALS DECISIONS. knew the expression before “ Les Miserables

HE “Familiar Quotations,” says the author is unknown.

day, May 9, The following communication also shows that the

Judgment affirmed with costs-Johnson v. Meeker;

Ellis v. Phonix National Bank; Burnap v. National expression is older than “ Les Miserables.”—ED.ALB.

Bank of Potsdam; Powers v. Benedict. -Orders of Law JOUR.]

General and Special Terms reversed and motion va

cating order of arrest granted, with cost of appeals to Editor of the Albany Law Journal :

General Term and to this court and $10 costs of the

motion-Morris v. Talcott.-Judgment reversed, new In Curran's speech upon “The right of election of trial granted, costs to abide the event-Cornell v. Corlord mayor of Dublin," delivered before the lord Jieu

nell.-Judgment of General Term and Oyer and tenant and privy council of Ireland in 1790 (Irishi Elo. Terminer reversed and new trial granted-People v. quence, 192), occurs this: "It is a common fate of the Casey.-Judgment affirmed without costs in this indolent to see their rights become a prey to the act- court-Haight v. Brisbin.- Ordered: That this ive. The condition upon which God had given liberty court take a recess from this date to Monday, the to man is eternal vigilance; whioh condition if he second day of June, 1884, then to meet at the Town break, servitude is at once the consequence of his crime | Hall in the village of Saratoga Springs and proceed and the punishment of his guilt.” I have never dis- with the call of the present calendar. covered “ Eterual vigilance is the price of Liberty" in any thing earlier. Has any of your readers ?

The speech is not in the American edition of Cur-
ran's speeches.

N. C. Moak.

Tex Ct. App. 240, said that by “sedentary life" ALBANY, N. Y., May 12, 1884.

he understood “one free and retired from excitement; one in the country on a sheep or stook ranch, where he

could hunt and fish and have proper diet and mediNEW BOOKS AND NEW EDITIONS.

cine." This seems a rather novel definition, but

some kinds of fishing are sedentary. —The conflict WEST COAST REPORTER.

between the opponents aud advocates of codification

continues to wage in New York with unflagging zeal. Issued in weekly parts, containing all the decisions as fast as

The latest contribution to the code controversy is the filed, of the following courts : United States Circuit and District Courts of California, Colorado, Nevada and Ore

“reply of Messrs. Field, Swayne, Arnoux, Yeaman, gon, and the Supreme Courts of Arizona, California, Col- Opdyke, Milburn, Frankenheimer and Foster to the orado, Idaho, Montana, Nevada, New Mexico, Oregon,

briefs which Messrs. Carter, Matthews, Hornblower, Utah, Washington, and Wyoming; also Legal Essays and

Adams and Dwight have submitted to the Judiciary Editorial Notes. Editors, John Norton Pomeroy, LL, D, Committee of the two Houses in opposition to the Carter P. Pomeroy. Vol. 1, January-February, 1884. A. Civil Code." The reply contains “specifio answers to L. Bancroft, San Francisco, 1884. Pp. 949.

specific objections " in detail of the opponents of the This volume contains 272 cases, one more than the code. The most interesting part of the pamphlet is Pacific, excluding Kansas. But of the 272 cases, 29 are the article on "Codification," taken from the ALBANY United States Circuit and District, making the vol- LAW JOURNAL and that entitled “Instances in which ume to that extent a Federal Reporter. It also con

the Civil Code has anticipated decisions of the Court tains a series of articles by Professor Pomeroy, one of of Appeals."- Cincinnati Law Bulletin.

A ,

The Albany

Albany Law Journal. .

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The outcome of the assault on Judge Reid in Kentucky has been most terribly tragical. The

case may be stated thus: “A ruffian we blush to ALBANY, MAY 24, 1884.

gay, a lawyer -- publicly assaults and beats a judge on account of a decision against him; a highstrung

wife nags the judge to sally out and kill his assailCURRENT TOPICS.

ant, and two-thirds of the community, barbarous as

Fejee islanders, loudly echo the demand; the vicUR Legislature have at last very cleverly got tim, being a gentleman, a law-abiding citizen and

of the Code for by putting a christian, for a while bravely bears up against the in commission, which contrary to naval usage, clamor, but finally stunned and stung into madness means laying it up for repairs. They have with al- is driven to take his own life. This is better than most absolute unanimity passed a bill for the ap- to murder his assailant, but there is one thing that pointment of a commission to revise it, and report would have been better yet, namely, to put about a as to what repairs it needs. The Code as at present thousand miles between himself and such a vixen proposed is the work of a commission to revise the of a wife and such a horde of barbarian and assassin laws, and if commissions to revise commissions are

neigbors, and go on living. If a man is in the to be the order of things there will be no end of midst of fire, and can get out, but will not, delay. To make sure of faithful and efficient ser- he must be a fool indeed. The blue-grass chivvice by the commission, the commissioners are to alry of Kentucky have dogged to death a man have no pay. A senator had the impudence to in- of whom they were not worthy, and no doubt they form us that the bill could not have been “got feel proud of it. There will be more swearing and through” it it had not been agreed that it was to whisky drinking and cleaning up of shot-guns than cost nothing. Why should lawyers be called on to

ever, and any number of high-toned generals, and work for the State for nothing ? Legislators colonels and majors will be anxious to take to wife scruple not to squander millions on the huge, ugly, such a spartan widow. Possibly they will elect the dark, gloomy, inconvenient and inadequate new judge-beater in place of his victim,

We recapitol, but when it comes to revising the laws of gard this tragedy the most disgraceful the people, this must not cost any thing -- the stigma that has been fixed any portion poor people will not submit to such extravagance. of our country in many a day, and we are We can tell that senator that he and others of his glad to see that the Kentucky Law Journal and way of thinking will be “got through” with, with-Reporter had the courage and manliness to write as out the appointment of revising commissions, if follows on this subject, even before the sad last act they do not mend their ways. But now that we have, in the drama; “But there seems the oddest dispoor are to have a commission, let us hope some law-sition in this community to leave the settlement of yers will be found rich enough and good-natured such affairs to the prowess of the individuals conenough and public spirited enough to give the cerned. Any appeal to the law for reparation is Code a thorough examination, and patiently to considered as a confession of weakness. It is true hear all who wish to attack or defend it, and to that the indignity to which Judge Reid has been bear up as well as they may under the same old subjected cannot be overestimated, but for this very thread bare arguments, from Mr. Carter with his reason the magnitude of the offense demands reparmarine adjuster, and Professor Dwight with his ation from the law, yet one will hear it said the nautilus, on the one hand, to Mr. Field with his outrage is too great a matter to be left to the law. calm persistency a generation old, and Mr. Frank. The sufferer must right himself. The law is not enheimer with his pitiless exposures of the uncer- strong enough. His own greater powers are called tainty of our laws on the other. Then perhaps we for. Could there be greater presumption, or a senmay have a report next winter, and then more

timent more characteristic of a barbarous people pamphlets from the same old opposers, who are as where law is weak and individuals strong ? The omnipresent as “old truepenny" under the stage, law should be stronger than any ten, than any one and are the cause of just about as much "swearing.” hundred men. But it is said this strength of the law Meantime, we advise the pamphleteers, and the com- is mere theory. We know in fact that law is weak, missioners that are to be, and the legislators who and the chances of escape for the culprit are many, are and who are not to be, to read, ponder, and and punishment, even if administered, is inadedigest the seventeenth section of the first article of quate. That is indeed true, but the only mode of the Constitution of this state, which commands strengthening the law is that all should look to it, that the whole body of the law of this state shall and rely on it - great and obscure, strong and be reduced into a written and systematic code. weak alike. When it shall become the last and

only refuge of all then it will develop the strength

it ought to possess. And as it becomes our only Speaking of pamphlets on the Code reminds us protection so it will become an adequate and suffithat there is one in preparation which will make cient one. This is the normal, healthy tendency of Mr. Carter sorry, and his pamphlet appear a sorry all civilized communities where the law is professperformance.

edly supreme. If public sentiment demands any VOL. 29 - No. 21.

thing clse of a man than that he should look to the terms on the injustice of putting the imprisonment law to redress his wrongs it is lawless and wrong. of the citizen within the discretion or caprice of two It rises above the law, and it is time some one physicians. Quoting the language of the Transacshould come forward to oppose it, and restore it to tions of the Social Science Association, of 1878, it that subjection to the law which is its proper place.

says: “What that on is has been publicly deTo whom can we look for such resistance so right-scribed already, and as the accuracy of the descripfully as to a judge ? There is no lack of physical tion has never been impugned, even by the most courage in this community, but there is a most thoroughgoing advocates of the present system, we shocking want of moral courage on this particular venture to transcribe it here: "Two medical men, question. All men condemn a resort to brute force, neither of whom need be, or ordinarily is, possessed yet none dare restrain himself from resorting to it. of any special acquaintance with the subject of All basely yield to a wrong-headed public sentiment mental phenomena, have separate interviews with instead of rising above, and bravely trying to guide the victim, whom they may, and often do, then it. Judge Reid has placed himself on this high meet for the first time in their lives; they come, or plane, and we hope to see him receive that support may come, to this interview carefully primed as to at the hands of the community which the idea he the delusions' to which the patient' is subject; represents, and his own past ability and worth, and their instructor must be a bungler indeed, or merit. Life is full of opportunities for the exhibi- the case a singularly hopeless one, if sufficient cantion of courage, where it will be both a noble and not be elicited from some peculiarity of temper or useful quality, displayed in the performance of manner to justify, or seem to justify the foregone duty in calmly facing the inevitable. Let it be re- conclusion desired. In accordance with this conserved for such an occasion."

clusion a certificate is then signed, which suffices to

warrant the forcible arrest of the victim, and his On the other hand, South Carolina is losing its removal to a house of detention (called a private chivalric spirit. The officers of justice persisted in asylum), from which his chances of liberation are in trying to arrest that gallant murderer, Cash, so

inverse proportion to the truth of the accusation long in hiding, and in spite of the protection of his

for such it is in effect - against him.' father, the old murderer and outlaw, because the

The remedy for all this is simple, practical and effiyoung man showed tight in a lion-hearted manner,

cient. The most atrocious criminal is not deprived they actually peppered him full of bullets, and de permanently of his liberty until his case has been prived a jury of admiring fellow-citizens of the investigated before, and decided upon by a jury of blessed privilege of acquitting him on the ground his countrymen, and if no one would think of inof insanity. There is only one thing more for them flicting permanent imprisonment without public to do to render them wholly and eternally infa

trial as the result of crime, however flagrant and mous, and that is, to arrest, and convict and hang notorious, with what consistency can we apply to the saintly old father. But seriously, we are glad misfortune a rule which we consider too harsh for to see South Carolina trying to abolish the Cash guilt ?” It is a favorite theory of some of the most system, and we recommend Kentucky to imitate the celebrated alienists that a large majority of the huexample.

man race — say three of every four -- are more or

less insane. This being so, one and a half, or so, “Eternal Vigilance” has at last had its reward. of every two physicians must be more or less inMr. Evariste Moïse, of New Orleans, informs us

sane, and it is rather cruel to invest them with the that “Eternal vigilance is the price of liberty” is power of incarcerating their fellow-madmen. from Tom Paine's “ Common Sense.” Mr. Benton C. Reede, of Wellsville, N. Y., also writes' us:

NOTES OF CASES. "A similar discussion in one of the public journals some years ago resulted in the conclusion that Thomas Paine first used the expression . Whether In Legerich v. Keddie

, 32 Hun, 141, it was held it appears in his writings of the time of the Ameri- representatives of a deceased person a right of accan Revolution, or in those of a later date during

tion for the negligent killing of such person, an the French Revolution I cannot say, not having

action therefor may be maintained against the pertime to examine. Yet the expression sonal representatives of the wrong-doer.

The may have been older than Paine."

court said: “The proposition on the part of the

defendant is that the action dies with the person Our readers will be greatly interested by a peru- causing the injuries. That this rule of law exists sal of Mr. Wilder's admirable paper on Trial of In- as to all other actions sounding in tort there can be sanity by Jury, ante, 386. The oppressions of the no doubt. See 3 R. S. (7th ed.), pp. 2394, 2395. Lunacy Laws have been the subject of recent com- With regard however to the statutes under which ment in England in the cases of Mrs. Wilder and this action was brought a different rule prevails. Mrs. Scott. The Solicitor's Journal has a powerful The Court of Appeals, in the case of Whitford v. appeal, in a recent issue, for awarding a jury trial Panama Railroad Co., 23 N. Y. 465, 480, declared in all cases of this kind, and comments in severe in reference to them that the action therein pro


vided appeals to no common-law right, and rests strain the success of the act by means of an injuncupon no common-law principle, and that it is cre- tion, and when that advantage is sought through ated by and derives all its vitality from the statute. the instrumentality of a legal action, to restrain its This has been substantially reasserted in the case prosecution, and subordinate the controversy to the of McDonald v. Mallory, 77 N. Y. 546, 550; S. C., control and determination of equitable principles. 33 Am. Rep. 664. These authorities seem to estab- This view was taken and enforced by a comprehenlish the proposition that the right of action under sive and able opinion of Lawrence, J., in Claffin v. the statutes mentioned is to be considered without Hamlin, 63 How. 284; and he also considered it in reference to the rules of the common law in rela- Reinach v. Meyer, 55 id. 283. In the Erie Railroad tion to actions of tort for injuries to the person. Company v. Ramsey, 45 N. Y. 637, the same subject But it is not necessary to pursue this inquiry fur- was before the Court of Appeals for its considerather, for the reason that in the case of Yertore v. tion, and it was determined that in a proper case, Wisuall, 16 How. Pr. 8, it was decided by the Gen- where equity required it should be done, an eral Term that such an action survived, and could injunction might regularly issue from one court to be maintained against the representative of the restrain proceedings carried on in another. It is wrong-doer, because it was for the enforcement of true the precise point presented by this appeal was a statutory right of property. The point seems to not then directly before the court, but the principle have been fully considered in that case, and to have on which its decision proceeded included a controbeen determined in favor of the right of action, as versy of the nature of the present one. The princialready stated. This case has not been overruled ple has been regarded and stated as elementary in by the Court of Appeals in any reported adjudica- its character that a court of equity should interfere, tion, and is regarded as controlling of the question, when sufficient equitable reasons are presented for and to be followed until it is reversed by the court doing so, to restrain the prosecution of an unconof last resort.” Daniels, J., dissented.

scionable action, although it may be pending in the

courts of another State or country. Story's Eq. In Dinsmore v. Neresheimer, 32 Hun, 204, the de-Jur., 899. This may be done without interfering fendant, a resident of this State, commenced an ac

with the proceedings themselves by controlling the tion against an express company in the Supreme conduct of the parties when they are subject to the Court of the District of Columbia, to recover the jurisdiction of the court so interposing for the prevalue of goods delivered for carriage upon a receipt vention of injustice.” Citing Carron Iron Co. v. limiting the carrier's liability to a specified sum.

Maclaren, 35 E. S. & Eq. 37; Dehon v. Foster, 4 The action was brought there to avoid the effect of Allen, 545; Bank of Bellor8 Falls v. Rutland, etc., the decisions of the courts of this State hold

R. Co., 28 Vt. 470. ing such provisions valid, and to get the advantage of the decisions of the District to the In Bransom's Adm'r v. Labrot, Kentucky Court of contrary. Held, that the prosecution of the action Appeals, March 13, 1884, appellee owning an unshould be enjoined. The court said: “The de- fenced lot opening on a public street, on which lot fendants by informing the company of the value of children had been accustomed for years to play, their packages, and paying a corresponding increase piled up thereon a number of heavy timbers so carefor the risk of their carriage delivering them, lessly that one of them fell on appellant's child and might have secured a complete right of indemnity killed him instantly. Held, appellees are liable for against the company for their loss. But they omit- willful negligence under the statute. The court ted to do that, and delivered one of the packages said: “It is held that a party is guilty of negligence without any valuation whatever, and the other at in leaving any thing in a place where he knows it the low valuation of $200. And to allow them to to be extremely probable that some other person avoid the restraint of the contracts upon this sub- will unjustifiably set it in motion to the injury of a ject, and hold the defendant liable for the full third person. 1 Add. Torts, 511. And said a value of the articles, in plain violation of their lan- learned judge: 'It appears to us that a man who guage, would be to perpetrate a successful fraud leaves in a public place along which persons, and upon the company, as the facts have been made to amongst them children, bave to pass, a dangerous appear, and it was to prevent the success of this at- machine, which may be fatal to any one who touches tempt that the injunction in this case was issued it, without any precaution against mischief, is not and continued by the court. In support of the ap- only guilty of negligence, but of negligence of a peal it has been urged that this injunction was im- very reprehensible character, and not the less so beproper, and that upon the facts as they have been cause the im prudent and unauthorized act of andisclosed the law does not sanction the issuing of other may be necessary to realize the mischief to an injunction by the courts of one State to restrain which the unlawful act or negligence of the defendthe prosecution of actions in another State, or in ant has given occasion.' 39 Q. B. Div. 339. Counthe District of Columbia. But it is the province sel for appellees refers us to the following rule, laid of a court of equity to prevent one party from tak- down in the case of Hargraves v. Deacon, 25 Mich. ing an unconscionable advantage of another, and 1: “The owner of private grounds is under no obliwhen that may be attempted, to interpose and re- gation to keep them in a safe condition for the

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