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account for and pay over moneys received by them, as such commissioners, on the sale of certain railroad stock of the town. The court below found, that defendants, as commissioners of the town sold and delivered the stock, nominally at par, but actually received for it $34,000; $30,000 as the par value of the stock, and $2,000 each as an inducement to the sale. They accounted to the board of town auditors for only $30,000 of the money, and each of them converted and appropriated to his own use the sum of $2,000, thus received on account of the stock. That during the year 1870, plaintiff was supervisor of the town, and that in 1871, one Bissell was elected his successor and duly qualified, and that no order had been made substituting said Bissell as supervisor in this action. The court held as conclusions of law, that defendants were trustees of the stock for the benefit of the town and it was entitled to all that defendants received; and that plaintiff was entitled to recover the amount retained with interest. Held, no error; and that under the act to extend the time for the completion of the A. & S. R. R. Co. (§ 8 ch. 747, laws of 1867), the action was properly brought by plaintiff in his own name as supervisor, and no order of substitution of his succession was necessary. Griggs, supr., etc., v. Griggs et al., comrs. Opinion by Rapallo, J.


Action by mother of seduced daughter.- This was an action brought to recover damages for the seduction by defendant of plaintiff's daughter, who, at the time of the seduction, was eighteen years old, and in the employ of defendant's father, under an agreement made between plaintiff and the employer by which the wages were to be paid to the daughter, her father was dead. The daughter became pregnant and returned to plaintiff's house, who cared and provided for her during her confinement. Held, that plaintiff could maintain an action against defendant for the injury. (Allen and Folger, JJ., dissenting.)

Also held, that under the provisions of the statute making a mother liable for the support of an indigent child (1 R. S. 614, § 1.), such an action is maintainable aside from the ground of loss of service, where, prior to the seduction, the daughter was able to earn her own support, but in consequence thereof become unable so to do, and the burden of providing and caring for her is thrown upon the mother, as in such case the wrongful act of the defendant results in a direct pecuniary injury to the plaintiff. (Allen and Folger, JJ., dissenting.)

A mother after the death of the father is entitled to the custody and control and the services of her children during their minority. (Allen and Folger, JJ. dissenting.) Furman v. Van Size. Opinions by Grover and Allen, JJ.


Legal remedy. This action was brought to enforce the specific performance of certain covenants, contained in a lease, to repair damages caused by fire. Plaintiffs held the lease as assignors. The complaint set forth plaintiffs' rights under the agreement, and the failure of defendant to perform. Upon the trial evidence was given showing the value of plaintiffs' interest in case of prompt repairs. The trial court found the facts not to be such as to authorize the granting of the relief demanded, and gave judgment that the lease should be canceled, and that plaintiffs should recover the value of their interest upon the basis of the repairs

having been made in a reasonable time. Held, that when the court below found that plaintiffs were not entitled to the equitable relief demanded the case as an action in equity terminated; that it was immaterial to adjudge the lease canceled as this was a necessary result of plaintiffs' recovery of their damages; but that, as under § 167 of the Code, plaintiffs could unite legal and equitable causes of action arising out of the same transaction, and, although, while the complaint set forth the agreeement to repair and the neglect to perform, still it failed to state other facts essential to the plaintiffs' right to recover damages, and so the complaint might have been properly regarded as setting out an equitable cause of action only, and upon failing to establish it, it might have been properly dismissed, yet, as the court had power to allow the pleadings to be so amended that a legal remedy might be had, and as the statute of limitations might bar another action, it was proper to give plaintiffs an opportunity to obtain a legal remedy in this action by appropriate amendments, giving defendant a right of trial by jury. The judgment, therefore, should be reversed, and a new trial granted. Peck et al. v. Allison. Opinion by Grover, J.


The following is relate of Mr. Charles Austin, the eminent English parliamentary lawyer, recently deceased: Mr. Charles Austin was the younger brother of Mr. John Austin, whose work on the province of jurisprudence has, since his death, obtained a degree of fame and influence which it never acquired in its author's lifetime. The two brothers had (as brothers usually have) much in common and many points of strong contrast. They were two of the very ablest men of the age in which they lived. The elder brother's book shows sufficiently the character of his intellect, and upon the few persons who knew him well his conversation made an even deeper impression than his book. In gravity, force and accuracy of thought he equalled, if he did not exceed, the writers with whom it is natural to compare him, such as James and John Mill. The whole tone of his mind, his moral sympathies, and his religious feelings, were infinitely graver, deeper, and more manly than theirs. He was, however, languid, low-spirited, and constitutionally indolent, and the results of his thought and labor are in consequence not great, and are instructive to comparatively few. He led the simplest and quietest of lives in a small cottage at Weybridge. "I ought to have been a schoolman. In these days no life would suit me so well as that of a German professor," was his account of himself to an old friend.

Mr. Charles Austin had probably as powerful a mind as his brother, and as much aptitude for abstract speculation; but he was of a totally different temperament. Accounts of his militant radicalism and his brilliancy in discussion are to be found in the autobiography of Mr. John Mill and in Mr. Greville's memoirs. He was one of the eager band of reformers who, when George IV. was king, thought that they had discovered the great secret by which every thing might be set right, and who declared war against all existing institutions, in a mild constitutional fashion. The war was never a very bitter one, and as time went on most of the soldiers took service in the camp which they were to have attacked. Charles Austin in particular might be described as the Demas of Benthamism, who forsook it, "having loved this present world." A somewhat

cynical critic, who, however, was neither unfriendly nor quite unsympathising, observed upon him and his brother: "They were both very clever fellows. Charles was much the cleverest. John served God, and Charles served the devil and made much the best bargain of the two." "Serving the devil" was a more picturesque than exact manner of describing the fact that Charles Austin got into practice at the parliamentary bar when that singular profession was in its palmiest condition, and that his marvellous gifts as an advocate gave him a position there the like of which was never attained by any other man in any branch of the profession. His income in the year 1847 - the great railway year—was something fabulous, nor do we venture to state the sums which we have heard mentioned. His reputation was so great that he received many briefs merely in order to prevent his appearance on the other side, and this no doubt is the origin of the story (mythical or not) of his being met riding in Hyde Park on one of the busiest days in the session. "What in the world are you doing here, Austin?" "I am doing equal justice to all my clients." What Bentham in heaven can have thought of his distinguished disciple it is difficult to imagine. Probably he reflected that as such fees were going it was as well that they should go to a Benthamite.

In 1848, and in the forty-ninth year of his age, Mr. Austin retired from practice, having bought the estate in Suffolk where he died. He was in the full vigor of his life and in the very prime of his powers. He had a well-deserved reputation as the most successful advocate of his age with the doubtful exception of Follett. He was a man of most brilliant talents of all kinds, and of varied accomplishments, and from the day of his retirement to the day of his death, being twenty-six working years, his most important avocation, as far as the public knowns, was presiding at the quarter sessions for East Suffolk.



Rape: evidence.- On the trial of an indictment for rape, the State called the prosecuting witness, who testified to the commission of the alleged crime, and afterward called another witness, who testified in corroboration of the prosecutrix, that soon after the offense was alleged to have been committed, the prosecutrix made complaint thereof in his presence. Held, that it was error to exclude, on the cross-examination of the last-named witness, testimony tending to show that, between the time the offense was alleged to have been committed and the time such complaint was made, the prosecutrix had been informed that the act of sexual intercourse, constituting the alleged crime, had been witnessed by other persons. McFarland v. Ohio, 24 Ohio St. 329.


1. Construction of contract.- A and B entered into a contract by which A "leased, demised and, to farm, let" to B a farm for three years, and B agreed to furnish all the labor necessary for its cultivation; each party to furnish half of all the necessary stock and tools, and two tons of plaster annually; "the net proceeds, income and increase of the farm" to be annually divided equally between them. Held, that the contract was neither strictly a lease, nor a hiring of labor, but was of a mixed nature, and that the products of the farm were the joint property of the parties. Somers v. Joyce. 10 Conn. 592.

2. Partnership.- And held, that the joint accounts between the parties were to be settled as partnership accounts are settled and the property treated like partnership property. Ib.


1. Will: effect on proceeds.-A testator had insured the life of his wife for his own benefit, with a provision that if he died before her the insurance money should be paid to their children. He died before her, leaving no children, and by his will gave her "all the residue of his estate, both real and personal, in whatever it might consist or wherever situated, to be hers without restraint and absolutely." Held (1), that upon the death of the wife the insurance money became payable to his executor, as assets of his estate; (2), that the testator's interest in the policy passed to the wife in her life time by the residuary clause of the will, and, after her death, to her representatives. Keller v. Gaylor, 40 Coun. 343.

2. The fact that after the testator's death a posthumous child might be born who would be entitled to the insurance money, and that thus no certain interest could vest in his executor until that contingency was passed, did not prevent the will operating upon the interest. The testator had at his death a vested interest subject to be divested by the birth of a child. Ib.

3. Had the testator died intestate the policy would have passed to the administrator as assets; and as a general rule whatever would thus pass is devisable. Ib.


1. Regulations.-Considering it is a question of law, this court regards as eminently proper and reasonable a regulation of the defendants company by which one car on each passenger train is set apart, primarily, for the use of women, and men traveling with them. Bass v. Railway Co. (Sup. Ct.), Wis., 1874.

2. Ladies' car.-There was evidence tending to show that plaintiff, being a passenger on defendant's train, to which a ladies' car was attached, was, with other male passengers, left by the officers of the train without a seat, there being no unoccupied seats except in the ladies' car (and in the smoking car, where he was not bound to remain); and that he and the others stood for some time in the ordinary passenger cars, without attention from the officers of the train. Held, that upon these facts, in the absence of any special excuse for the neglect, the officers were guilty of a breach of duty to such passengers. Ib.

There was evidence that plaintiff then went to the ladies' car for a seat; that he found the door at first locked; but that, on its being unlocked by a brakeman, he entered, or attempted to enter, the car. The evidence is conflicting as to whether he entered the car peaceably, and without being forbidden, or was forbidden, and attempted to enter forcibly. In either case he was forcibly driven upon the platform while the train was crossing a river, where a fall from the platform would probably have proved fatal. Held (1), that if plaintiff entered the car peaceably, such entrance not being either barred or forbidden by the officers, this must be regarded under all the circumstances, as equivalent to a license to him to enter; (2), that if the plaintiff was thus rightfully in the ladies' car, no officer of the train could rightfully remove him by force, at least without offering him a seat elsewhere; (3), that in any event the brakeman could not be justified in violently throwing plaintiff on the platform, under the circumstances of special danger above

stated; (4), tha if plaintiff's entran e to the ladies' car was barred or forbidden, he had no right to enter, or attempt an entrance by force. Ib.


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1. Contract of sale. — A contract of sale of growing timber is a sale of an interest in the land; and upon a subsequent conveyance of the fee from the vendor to the vendee, such interest is merged, and the contract extinguished. Young v. Lego, Sup. Ct., Wis. 1874.

2. Same.-A. conveyed land to B., the consideration named in the deed being $700. In payment of the consideration of such conveyance, B. gave A. a contract to convey to the latter other land, the consideration named in such contract being $700; and, in case of his failure to convey, he covenanted to pay $700 as a penalty." B. having failed to convey, A. brings this action for his damages. Held (1), that in the absence of the clause in B.'s contract relating to a penalty, A. would be clearly entitled to recover the actual consideration for which his land was sold; and (2), that in this case B.'s covenant to pay $700 “as a penalty" does not have the effect to limit A.'s right to recover the actual consideration paid by him for B.'s contract to convey. Yeuner v. Hammond, Sup. Ct., Wis. 1874.


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Construction of contract. — By a written contract H. agreed to let, and S. to hire, a carriage and horses belonging to H. for eight months, at a rent of $12 per week payable weekly; the property to be owned by S. at the end of the term if the rent should be paid according to the contract; and on default of any payment H. to have the right to take immediate possession and to retain the payments already made. After S. had made several payments and a final default of payment, the property was attached by one of his creditors. In replevin brought by H. in which it was found that it was in fact intended by the parties to the contract that the title should not pass to S. until full payment, it was Held (1), that the contract did not constitute a sale, but was an executory agreement for a future sale upon the performance of the conditions stated in it; (2), that H. had a right to the possession of the property upon default made by S., without previous demand upon him. Hughes v. Kelly, 40 Conn. 148.


Church corporation.— Where a cle gyman, engaged to conduct the services at the dedication of a church, was requested by an informal meeting of trustees, pastor and class leaders, to solicit subscriptions, during the dedication service, for paying off the indebtedness of the church, but was not appointed agent to receive such subscriptions by a vote either of the plaintiff corporation or of the trustees. Held, that he had no authority for the corporation, to accept a subscription, and could not bind a subscriber. M. E. Church v. Sherman. Sup. Ct., Wis., 1874.

The most ancient university in existence, the University of Bologna, was originally a law university, and law so predominated that students for the departments of Art and Medicine had to be admitted in the

law department. After the full development of Bolonga, two out of the four departments were law departments, Law students came thither from all parts of Europe, sometimes, it is said, to the number of 20,000.


Service of summons. - No. 129. Manger v. Shirley. Appeal from the circuit court for the eastern district of Tennessee. This was a proceeding to set aside a sale of the appellee's property made in his absence from Tennessee during the war, upon the ground that the cause of action, which matured in a judgment against Shirley by publication of service, was fraudulently asserted and had no shadow of foundation. The court below sustained the plea and vacated the entire proceedings, and that decree is affirmed here. Mr. Justice Swayne delivered the opinion.


1. Attachment lien. - No. 125. Valliant, assignee, v. Childress. Appeal from the circuit court of the United States for the district of Tennessee. Mr. Justice Hunt delivered the opinion, holding that where an attachment had been delivered on a bankrupt's land ten months before the commencement of bankrupt proceedings, and had afterward been conducted to judgment and sale of the land without interference by the assignee, the judgment and sale conferred on the purchaser a good title, notwithstanding the proceedings in bankruptcy. Affirmed.

2. Landlord and tenant: distraint for rent. - No. 130. Longstreth, assignee in bankruptcy, v. Pennoch, et al. Error to the circuit court for the eastern district of Pennsylvania. In this case the defendants in error claimed for one year's rent out of the proceeds of a sale in bankruptcy, under the law of the State, they being entitled to distrain before the assignee took possession. The court below sustained the claim, and the judgment is here affirmed as being within the equity of the State law. Mr. Justice Swayne delivered the opinion.


Division of damages.- No. 131. Smith et al., v. Steamer Sea Gull, and a cross appeal. Appeal from the circuit court for Maryland. This was a case of collission between the schooner Sarah Watson, which was lost, owned by Smith and others, and the Sea Gull, in which the court below divided the damages, finding the parties equally to blame for the accident. This court find the Sea Gull responsible for the accident, and re-verse the decree, with directions to enter a decree for the libellants for the whole value of the schooner. Mr. Justice Clifford delivered the opinion.


Stockholder: repeal of law. -No. 486. Ochiltree v. The Iowa Construction Company. Appeal from the Supreme Court of Missouri. Mr. Justice Davis delivered the opinion, holding that under the law of Missouri which held a stockholder of a corporation liable to the amount of his stock, and which law was afterward repealed, a person who subscribed for and takes stock after the repeal in a corporation organized before the repeals is not liable under the former, and such repeal does not impair the obligation of the contract of the stockholder subscribed after the repeal. Affirmed.


Water rights in public lands.- No. 126. Error to the Supreme Court of Montana Territory. In this case the question was whether a right to running waters on the public lands of the United States, for purposes of irrigation, can be acquired by prior appropriation as

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Valuation: imports.- No. 549. Arthur, collector, v. Richard & 1serin. Appeal from the circuit court of the United States for the northern district of New York. Mr. Justice Bradley delivered the opinion, holding that in determining the price at which imported goods are to be determined for assessing custom duties, the value of the foreign coin shall, under the act of 1873, be determined by the amount of pure gold which should be in such coin by the law of the country where the purchase is made, and the coin is issued and established, as it relates to the amount of pure gold in the American dollar. Reversed.

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Husband and wife.- No. 133. Schooley v. Rew. Appeal from the circuit court of the United States for the northern district of New York.-Mr. Justice Clifford delivered the opinion, holding: First, that the Internal Revenue tax on successions was not a direct tax, and was unconstitutional; second, that where the wife had an interest in real estate which she devised to her husband, he was liable to the tax, though in a partition made afterward this property went to other persons than the husband, who received the equivalent of his interest in other personal property. Affirmed.


Amendment of pleadings.-No. 118. Tremain, et al., v. Hitchcock. No. 119. Hitchcock v. Tremain et al. Appeals from the circuit court of the United States for the southern district of New York. Mr. Justice Strong delivered the opinion, holding, that where a patent case had been decided and proceeded on the ground that an allegation was in the bill setting up a particular patent, when it did not, that after decree the court may permit an amendment of the bill to make it conform to what both parties supposed it was on the hearing, on the principles upon which profits were made and held, that all the expenses incident to the sale of an organ shall be considered and the firm proportion of the whole expenses in determining the profits arising from the sale of the part of the organ which is the subject of the patent. Affirmed.


1. Forfeiture. - No. 100. Schulenberg v. Harriman ; No. 101. Schow v. same. Appeal from the circuit court of the United States for the district of Minnesota. - Mr. Justice Field delivered the opinion, holding that the grant of lands by act of congress of June 3, 1856, to the State of Wisconsin in aid of road from Lake St. Croix to Lake Superior at Bayfield, was a grant of title in presento, by which the title passed to the State. Second, that the grant by the State to a railroad which had been forfeited for non-performance and resumed by the statutes of the State. Third, that in the absence of any act of congress or of the executive department or of the courts to enforce against the State the forfeiture of her title to the lands, the title was still in the State of Wisconsin, notwithstanding there was no part of the road built, and the act of congress which granted the land declared it should in such case revert to the United States. There must be some act of the United States asserting its intention to enforce the forfeiture before the title of the State is divested. Affirmed.

2. Taxation - No. 604. Hunnewell v. Cass County, et al. Appeal from the circuit court of the United States for the district of Nebraska.- Mr. Justice Miller delivered the opinion, holding that the tax as levied by the State and counties on the lands granted by congress to the Burleigh and Missouri River Railroad Company in Nebraska for the year 1872 would not be enjoined, on the ground that the United States had an interest in the lands which forbid their taxation by the State. Affirmed.


Preferred Stock.- No. 140. St John v. The Erie Railway Company. Appeal from the circuit court of the United States for the southern district of New York. Mr. Justice Swaine delivered the opinion, holding that the holders of preferred stock under the management of 1862 have no preference over bona fide creditors of the company who have become so since the arrangement, and have no right to insist on a dividend unless there is a surplus. Affirmed.


War of the Rebellion: pardon.-No. 175. Haycraft v. The United States. Appeal from the court of claims. Mr. Chief Justice Waite delivered the opinion, holding that suits in the court of claims for the proceeds of captured and abandoned property in the treasury, cannot be sustained unless brought within two years after the close of the war of the rebellion, and that the pardon of a disloyal man, granted in 1868, does not extend the time for bringing suit, though he could not sue within the two years on account of disloyalty. Affirmed.


Lands granted by congress: power of states.-No. 491, 492. Union Pacific R. R. Co. v. McShane. Appeals from the circuit court of the United States for the district of Iowa. Mr. Justice Miller delivered the opinion, holding that the State of Nebraska cannot levy taxes on the lands granted to the Railroad Company by congress, where no patent has been issued and the costs of surveying the lands remains unpaid; that when the patent has been issued the contingent right of pre-emption which the act of congress declares, if the lands are not sold within three years after the completion of the road, does not defeat the right of the State to tax the lands. Affirmed.


Reports of the Decisions of the Court of Appeals of the State of New York, not heretofore reported. Edited by Austin Abbott. Vol. IV. New York: Diossy & Company, 1874.

The present volume completes Mr. Abbott's series of unofficial Court of Appeals reports. This series contains all cases of value not reported in the "New York Reports." The utility of this series is unquestionable; and there was a legitimate demand for these volumes. The cases decided by the Court of Appeals, and not reported in the regular reports, were scattered through ten or eleven volumes of unofficial Court of Appeals reports, (viz. The Transcript Appeals and Keyes' Reports), and through numerous volumes of "Practice" Reports. Besides, some of the cases decided in the Court of Appeals had not been reported or published at all. Mr. Abbott has gathered up these cases and placed them in four neat volumes, only leaving out those cases that were deemed unworthy of reporting. The reporting in these volumes has been well done. The notes and references to subsequent decisions and legislation are of much value, and the series can be thoroughly recommended. It is reliable, meritorious and welcome.

New Rules of the Courts, General and Special, 1875. New York: McDivitt, Campbell & Co.

This is the best and most complete edition of the rules of the courts of New York State, which has been published. The general rules of the Supreme Court govern all the courts of record, but there are also certain special rules which are made in the Supreme Court, First Department, and in the Superior Court, Common Pleas and Marine Court of the city of New York; and these are included in this collection. The annotations are brief, but the citations are very numerous, space being economized by leaving out the names of cases. The profession will find this collection of rules of great service.


The following decisions were handed down in the New York Court of Appeals on Tuesday, January 26, 1875:

Judgment affirmed with costs-Rosalie C. Barry v. William H. Buen. Judgment affirmed - Michael Mahony v. The People, etc.-Judgment reversed and judgment entered on verdict, affirmed with costsSarah S. Fitch v. The American Popular Life Ins. Co.

-Judgment modified by deducting $180.30 and interest from April 25, 1872, from the amount recovered, and, as modified, affirmed without costs as to either party in this court-Jane Patterson, ex'r, etc., v. William G. Patterson. Conviction affirmed, sentence reversed and case remanded to court below for the proper sentence to be pronounced-Charles Harris v. The People, etc.- Appeals dismissed with costs Wilbor, treasurer, etc., v. Donalds; in the matter of Richard B. Kelly, etc.; Fawcett v. Vary. Motions for re-argument denied with $10 costs-The Home Ins. Co. v. Watson; Renne v. The Astor Fire Ins. Co.; Jackson v. Andrews; Genet v. Davenport. Motion to transfer from the Preferred to the General Calendar at its proper place granted - The Excelsior Savings Bank v. Campbell; The Excelsior Savings Bank v. Campbell. Order affirmed and judgment absolute for respondent on stipulation with costs - Flower, guardian, etc. v. Lance, executor, etc.


At a term of the Court of Appeals for the State of New York, held at the capitol in the city of Albany, on the 22d day of January, A. D. 1875, the following order was issued:

"Ordered, That Rule 21 be amended by adding the following: "When any cause shall be regularly called for argument, and no other disposition shall be made thereof, the appeal shall be dismissed without costs, and an order shall be entered accordingly, which shall be absolute unless upon application made and good cause shown, upon notice to the opposite party within ten days, if the court is in session, and if not, on the first motion day of the next meeting, the court shall revoke said order and restore said appeal.” E. O. PERRIN,

Clerk Court of Appeals.


The Pall Mall Gazette argues in favor of the maintenance of the present distinction between barristers and attorneys in England. It is mainly the old argument, that we must have special classes of professional men for special purposes-some for the office and some for the courts-some for the business aspects of the profession and some for the legal. But the following suggestions strike the American reader as rather peculiar: "But apart from this generality, it is easy to show that the maintenance of the distinction is a matter of great importance to the public. It furnishes a strong security against abuses of legal knowledge and power which might be most serious evils. No person in the world occupies a position of more perfect independence than a barrister of high reputation. He is not, and by the nature of the case he cannot be, dependent on any one person or on any small number of persons. On the other hand, no person is subject to such severe professional sanctions. He is one of a small number of persons. He is well known to the courts before which and to the persons with and against whom he practises. Great prizes, both professional and political, are open to him: and a professional character above all reproach is absolutely indispensable to his attaining them. For all these and some other obvious reasons, no one is or well can be in a position to call upon him to do that which his sense of professional duty tells him not to do. This acts all through litigation. In important cases it is necessary to be represented by eminent counsel, and it is impossible to take steps which men in that position will not avow and be responsible for.

"Let us suppose that, instead of occupying the position which they actually hold, the legal members of the bar were the heads of firms, and derived their imcome, not from fees paid for specific services, but from charges made for the transaction of all that mass of business which a legal firm has to conduct. Is it not obvious that a man would do infinitely more for his client, and think infinitely less about his professional duties, if he knew that his client was not merely paying him through a third person, a specific fee for a specific piece of work, but was one of the main props of his firm, paying him, perhaps, thousands of pounds annually for every description of service, and giving him various collateral advantages? If great speculators, financial agents, or directors and chairmen of companies were able, not merely to obtain the assistance and advice of the ablest

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