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transaction are partners in the popular sense of KENTUCKY COURT OF APPEALS. the word, and considering the obvious intendment of the statute, it should apply in case of a

ROBINSON v. DUVALL, &c. surviving witness in the popular as well as the technical sense. Therefore Guie was a compe

SEPTEMBER 18, 1880. tent. witness to prove what occurred between 1. A life policy as between the assured and the insurer himself and the defendants.

is strictly and only a contract, and is subject to the gen

eral rules which govern in the interpretation of other It was clearly_competent for the plaintiff to

contracts, but with respect to the beneficiaries it is held to call Wells and Doan.' Any party in any civil

be a testamentary provision rather than a contract.

2. The share of one of the beneficiaries upon his death, action may compel any adverse party to testify

will pass to the surviving beneficiaries and their heirs, in his behalf in the same manner and subject and does not result to the assured, where the policy is to the sanc rules as other witnesses. Act March

renewed by the payment of the annual premiuin, and no

coutrary intention appears. 27, 1865, P. L. 38. This statute is not affected

3. " A policy of insurance on the life of any person exby the act of 1869. Wells and Doan were not

pressed to be for the use of any married woman, whether called to prove the liability of any deceased procured by herself, her husband, or any other person, member of the lodge, and no objection was made

shall inure to her separate use and benefit and that of

her children, independently of her husband or his crediton that ground. It was immaterial to the plaint

ors, or the person effecting the same or his creditors." iff in this trial whether the deceased members Section 30, Act of March 12th, 1870. were liable. He has a right to prove everything 4. The assured had no right to assign the benefit of the he can by the adverse party which will estab

policy, in this case, where the policy was for the benefit

of his wife and children, so as to defeat the heir at law of lish his case. The adverse party is called one of the beneficiaries who died before the assured. against his interest, and the statute places him

COFER, C. J. in a different position from a party proposing to April 1, 1872, B. F. Crowfoot insured his life testify in his own behalf.

in the Connecticut Mutual Life Insuranc ComThe act of March 22, 1861, (P. L. 186), pro- pany for the sum of $5,000, payable to his wife vides that in no case on any joint obligation and children or their representatives. At the shall a plea be entertained on the part of any

date of the policy the insured had three children, heir or personal representative that one of the all minors and unmarried. In a few days therejoint debtors has deceased since the commence- after his wife died. He continued to pay the incat of the action, but the same shall be pro- annual premiums, as they fell due, until April ceeded in against the estate of said decedent as 7, 1878, when he died, having survived all his though the suit had been commenced against children, two of whom died in infancy and unthe decedent alone. Literally and strictly upon married, and one, having married, left an only the death of a party to the record, jointly sued child, the appellee W. T. Duvall, and her huswith others, the further progress of the action band surviving her. against his estate is the same as if he had been Before his death, and after the death of all his sued separately. A liberal construction of the children, the insured assigned and delivered the statute permits the plaintiff to bring in the ex- policy to his niece, the appellant, Hattie E. ecutor or administrator, and proceed against him Robinson, intending it as a gift to her. and the survivor at the same time to judgment. The executor of the insured, the guardian of Dingman 0. Amsink, 27 P. F. S. 114. But it the infant grandson, W. T. Duvall, and Hattie does not follow that he is compelled to do this, E. Robinson all claiming the proceeds of the or that the representatives of the decedent may policy, the insurance company brought its peticome in and have trial with the survivors tion of interpleader and paid the money into against the plaintiff's consent; much less can court, and the court having adjudged it to W. T. the survivors claim delay till the representatives Duvall

, Robinson alone has appealed. be substituted. There was no error in directing Her counsel argues, in effect, that upon the the jury to be sworn as to the survivors.

delivery of the policy Mrs. Crowfoot and the

three children of the insured became invested It is difficult to conceive of a meritorious de

each with a one-fourth interest in it, and that fense by those who actually got the money, some

upon the death of Mrs. Crowfoot her interest of whom signed the certificate and others actu

passed to her husband under the statute of dis ally participated in the giving of it. They have

tributions, and that at the death of the unmara legal right to refuse payment until judgment ried daughters their interest passed to their be recovered according to law. But they cannot

father in the same way, and at the death of complain if the plaintiff fails to include every one in the action who is liable, or fails to discover

Mrs. Duvall, during the life of her father, her

interest lapsed as if it had been a legacy, and in proof against every one included. In the nature of the case it is difficult for the plaintiff to de this way, the insured became the owner of the

entire policy and could invest the appellant with termine in advance the precise individuals who

a good title. are liable, though he be sure of some of them, and the court below has not been and will not

A life policy, as between the assured and the likely be slow to allow necessary amendments

insurer, is strictly and only a contract for the authorized by the statutes.

payment of money upon the happening of a

contingency, uncertain only as to the time when Judgment reversed and venire de novo awarded. it will occur, and is subject to the general rules which govern in the interpretation of other the person for whose benefit it was made shall contracts. But when considered with respect to be entitled thereto against the creditors and the the rights of those who claim to be beneficiaries, representatives of the person effecting the same." especially when they are the natural objects of At the time the policy was last renewed bethe affection and bounty of the person procuring fore her death, Mrs. Duvall was the only survivand paying for the insurance, should be regarded ing child of the insured, and as she was the only in the light of a testamentary provision rather living person answering the description of benethan of a contract.

ficiaries as contained in the policy, as the other The object of all interpretation of acts or words beneficiaries had died without issue, it is to be is to arrive at the intentions of the person whose taken to have been renewed for her sole benefit. acts or words are to be interpreted, and the na- When it was last renewed she was dead, and ture of the transaction and the relation of the there was no person living answering the departies are frequently important, and sometimes scription except her surviving child, who, in controling factors in the problem.

our opinion, is her representative within the In taking the policy the insured was not pro- meaning of that word as used in the policy. viding for himself, but for his wife and children In Insurance Company v. Palmer, 42 Conn., after his death, and it would be unreasonable to 50, the policy was payable to the wife if she sursuppose that he intended, in case one of these vived her husband, if not, to their children. objects of his affection should die during his life, The husband survived the wife, and one of the that the interest of the one so dying should pass children died, during the life of the father, leavto himself and at his death to his personal repre-ing issue. It was held that the issue took the sentative. It would be more consistent with interest to which his father would have been his evident design in insuring his life for the entitled if he had survived the insured. benefit of all his family, wife and children alike, This is a much stronger case for the issue of to suppose that his intention was that, in case the deceased child than that. one or more should die before himself, without There the policy, in the contingency that had leaving children, the share to which those dying happened, was payable to the children, here it would have been entitled, had they survived is payable to the children or "their representahim, should go to the survivors. He dedicated tives.” This expression shows that the possithe whole to his family, share 'and share alike, bility of the death of some or all of the children and as the family was reduced by death and he during the life of the insured was not overlooked, came to renew the policy by paying the annual and that such an event was intended to be propremiums, it can scarcely be doubted that he did vided for. so in order to provide for those who still survived, And when we consider the nature and design and this evident intention ought not to be de- of life insurance and the relation of the parties, feated unless there are insurmountable legal we think the policy should be construed as if it obstacles in the way of effectuating it.

were payable to such of the children as should So far as any interest the wife of the insured survive the insured and the surviving issue of had in the policy is concerned, the rights of the such as might die during his life. parties are regulated by statute in harmony We are therefore of the opinion that the inwith the view just expressed.

sured had no interest in the policy, and that the “A policy of insurance on the life of any, per assignment made by him to the appellant gave son, expressed to be for the use of any married her no right to any part of its proceeds, and the woman, whether procured by herself, her hus- judgment is affirmed. band, or any other person, shall inure to her separate use and benefit and that of her children,

COMMISSIONERS OF APPEALS—TEXAS. independently of her husband or his creditors, or the person effecting the same or his creditors.'

MECHANIC'S LIEN—WHEN THE WIFE'S SEPARATE Section 30, Act 12th, March, 1870; 1 Acts '71.

PROPERTY AND THE HOMESTEAD SUBJECT When Mrs. Crowfoot died, her interest in the

TO PLEADING. policy inured, under this statute, to the benefit of her children.

BLEVINS ET AL v. CAMERON AND MAYFIELD. When one of the children subsequently died without living issue, and the policy was again

May 12, 1881. renewed by the payment of the annual premium, 1. In order to subject the wife's separate property to there was, in a modified sense, a new contract mechanic's lien for improvements, contracted for by the

husband, it must be alleged and proven that the husband (Thompson v. Cundiff, 11 Bush, 573), which

was acting as her authorized agent at the time; and it inured to the benefit of the children then liv

will not be presumed that he was such agent because he ing; there being no issue of those who were was her husband. The averment of her knowledge of dead. So that at the death of Mrs. Duvall, such purchase and the purpose for which it was made,

does not supply, by implication, that essential ingredient the last survivor of the children of the insured, of her liability. she was the sole beneficiary.

II. In order to subject the homestead to mechanic's Section 32 of the statute, supra, provides that,

lien, it is necessary that the wife's consent to thus encum

ber the homestead, be evidenced in the mode prescribed “When a policy is effected by any person on his by law for the alienation of her separate property. own life, or on the life of another, expressed to Appeal from Grayson County. be for the benefit of ***** a third person, This suit was brought in June, 1874, by the appelleen the use and enjoyment, as well as to the care and manVerdict for the plaintiffs for the amount sued for with agement of her separate property, and both husband and interest, and finding the property subject to the plaintiffs' wife expected to occupy together the homestead for lien, the court rendered judgment accordingly, decreeing which the lumber was designed, and it is quite as consistsale to be made of the property in the usual form, with ent with reason, to suppose that the wife relied upon the order to issue execution for any unsatisfied balance of the husband to purchase the lumber upon the responsibility judgment against Wm. Blevins.

against the appellants, as husband and wife, on account to subject the property to their supposed lien, upon the for lumber sold and delivered by them to the husband, wife's knowledge and silence or acquiescence in the acts amounting to $294.42, for the purpose of constructing a of her husband in contracting for, and making iinprovedwelling house and out houses on two certain lots in ments upon her property, and not upon the allegation the town of Sherman, the title to wbich was in Mrs. that it was, in fact, property belonging to the commuBlevins, the wife. The plaintiffs alleged that it was not nity. known to them at the time they furnished the Considered, then, as her property, the question which lumber, that she owned the lots; that her title to them is first presented is, whether the facts, which are alleged, was not then recorded, and that the lumber was used in show a cause of action against the wife to subject her the construction of said houses with the knowledge of property to sale for the payment of the debt contracted the wife; that the lots before and until said houses were by the husband for lumber to improve it. It was held constructed, were vacant, and not worth more than one- directly, in Warren v. Smith, 44 Texas, 245, that the fifth part as much as they were afterwards, by reason of statute regulating marital rights, and prescribing in what the improvements so made upon them; that after the cases the wife's separate estate may be bound, will couhouses were constructed the defendants resided upon the trol the creation of mechanic's lien on her estate. Her lots as their homestead, and that they had no other home- estate cannot be made liable for improvements thereon stead in the county or in the State, so far as plaintiffs not authorized her. The rule is thoroughly estabknow or believe. The plaintiffs allege that they fixed lished by many decisions of our Supreme court, construing their lien upon said property within the time and in the the statute referred to, and the rights of the wife and her mode prescribed by law, setting forth the facts in respect liabilities under it, that to make the wife's separate propthereto.

erty liable for a debt it must be contracted by the wife The plaintiffs prayed to subject the houses and lots to herself, or by her authority. Warren v. Smith, supra; their lien and for general relief. The defendants filed a Magee v. White, 23 Tex. 180. The third section of that general demurrer, which does not appear to have been act, art. 4643 P. D., provides that the husband and wife relied upon as no action was taken upon it by the court, may be jointly sued for all debts contracted by the wife nor to have been called to the court's atttention. They for necessaries furnished herself or children, and for all also filed a general denial.

the expenses which may have been incurred by the wife The plaintiffs account was attached, as an exhibit, to for the benefit of her separate property. The conthe petition, and its correctness sworn to. They also in- tract by the wife, her consent given expressly or imtroduced, in evidence, their sworn and duly recorded pliedly, is necessary to maintain a suit against her with statement of the verbal contract between themselves and her husband, whether for necessaries or for the purpose Wm. Blevins, for the sale of the lumber which had been of benefitting her separate property. The husband, it is recorded in the proper office, in order to fix their statu- true, may be her agent to make contracts that will bind tory lien. This instrument recited, among other things, her separate estate, but it is not to be presumed that he “that the lumber was purchased and used for the purpose, is her agent, because he is her husband. The agency by said Blevins, of erecting and repairing a building situ- must be such, in fact, and not a thing to be presumed, ated in the town of Sherman," * upon the lots de- because of the relation of husband and wife. Magee v. scribed in the petition. The plaintiff also proved the facts White, 180. by one of their witnesses that the houses and lots, described There was no averment in the petition of such agency, in the petition, are the homestead of defendants “and or that it was her contract. The averment of her knowl. was their homestead at the time mentioned in the ac- edge of such purchase, and the purposes for which it was count, at which said lumber was furnished; that he (wit- made, do not supply, by implication, that essential inness) and his wife sold the lots mentioned in the peti- gredient of her liability. The husband was entitled to tion, to Mrs. Blevins."

of their community interest, as that she empowered him The defendants appealed to the Supreme Court and as- to contract for her, as her agent, to buy the lumber for sign eight grounds of error which, so far as they need be her, in order to improve the place on her separate responconsidered, in the proper disposition of this appeal, it sibility. may be stated, relate to the charge of the court, the re- Chief Justice Hemphill, in a suit to subject the propfusal to give instructions asked for by the defendants, erty of the wife to the payment of a debt alleged to have and the admission of certain evidence over their objec- been contracted by a married woman for necessaries, tions.

under that statute, used this clear and emphatic lanWALKER, J.

guage: “A fundameutal principle in relation to suits to Delivered the opinion of the court.

bind the separate estate of the wife's is this, that such The plaintiffs' petition admitted that the wife had the estate can not be held liable unless in cases clearly, title to the lots at the time of the transaction with her strictly and fully authorized by the statutes or the equihusband in relation to the sale of the lumber, nor does table principles of the laws of the land." McFadden v. the petition attempt to qualify the implication from that Crumpler, 20 Tex. 376. This rule was re-affirmed in admission, that sbe was the legal and equitable owner of Stansberry v. Nichols, 30 Tex. 149, where is said: “In the property. The averments in the pleadings of a party order to charge the separate estate of a married woman will be taken most strongly against him. Indeed, so far under the statute, the fact relied on must be explicitly from seeking to charge the property to be community averred and must be such, being true, as to exclude a property, notwithstanding the fact that the title was fair and substantial doubt of her liability, otherwise no held, as they allege, by her, the plaintiffs rest their right sufficient basis is laid for a judgment against her.” It is

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clear that there was neither averment nor proof of the dayit of plaintiff's agent well taken by the defendants. main and essential facts, either that the contract was The court did not err in admitting it in evidence; the that of the wife, or that the husband professed, in any grounds of objection urged in the brief of appellants' mode, to act as her agent in making the purchase of the counsel, in support of their second assignment of error, lumber, and, evidently, there was no suficient basis laid therefore, we consider untenable. in the petition on which to rest a decree against the wife, If the plaintiffs are entitled to a lien on the property, and to subject her separate estate to the debt sued on.

to satisfy their debt (the justness of which does not apStansberry v. Nichols, 30 Tex. 149.

pear to be doubted) the facts which show its existence It is not necessary to consider what may have been the should be presented on another trial, by appropriate alleplaintiffs' rights and remedies, if any they had, on gen- gations, in an amended petition. The views of the law, eral principles of equity, because the plaintiffs' case is applicable to the plaintiffs' case, as it was presented on presented upon the legal statutory right to enforce the the trial, under both the pleadings and the evidence, specific remedy under the law giving a lien to mechanics which were entertained by the judge who presided, and and material men. But if they had relied upon such re- which seem to have been held, also, by the plaintiffs' lief as a court of equity could afford them, the alle- counsel, may have influenced the latter, not to rely on or gations contained in their petition were equally insuth- present other facts, or to ask for other relief in some cient to support a decree against the wife. Stansberry I'. shape or other, consistent with the rights of the plaintiff Nichols, supra; Brown v. Ector, 19 Tex. 346; Haynes ". under the law. Therefore, although there is no error in Stovall, 23 Tex. 625.

the finding of the jury in favor of the plaintiffs for the But the evidence adduced by the plaintiffs on the trial,

amount of the debt and, notwithstanding their finding and none whatever, indeed, was introduced by the de- the property to be subject to the lien is erroneous, would fendants without contradicting the fact, that the lots in not preclude the Appellate Court from discarding such question were, in truth, the separate property of the wife, erroneous part of the verdict, and proceed to render such showed, besides, that the property was the homestead of judgment as should have been rendered in the court the defendants at the time of the lumber contract, and

below. We conclude, for the reason above given, that the recorded statement of the contract made by the the proper disposition of this appeal is to reverse the plaintiffs and read in evidence, indicate that there existed judgment and remand the cause to be tried again under a house or houses on the lots at that time.

further proceedings. Under such facts, treating the property as then being Report of Commissioners examined, opinion adopted the homestead of the defendants, there existed the same and judgment reversed. necessity for the wife to enter into the wontract whereby

Geo. F. MOORE, the property should be subjected to the lien of a material

Chief Justice. man who furnished material to make improvements on the homestead, 'as is necessary in the case of her separate

A COUNTRY Justice of the Peace in Kansas has gone property. Thus to affect her homestead rights it seems, back on the Supreme Court of the State, and declared too, that it would be necessary that her consent, thus to the liquor law unconstitutional. encumber the homestead must be evidenced in the mode

“Why, your Honor," exclaimed the prosecuting attor

ney, "the Supreme Court has affirmed its constitutionprescribed by the law for the alienation of her separate ality." property. Gaylord v. Loughridge, 50 Tex. 576; Campbell "Let 'em affirmed and be blanked,” responded the

learned court, “I know my business. v. Fields, 35 Tex. 754.

Thus it appears that neither, under the facts stated in the petition, nor those which were proved on the trial,

SUPREME COURT RECORD. were the plaintiffs entitled to a decree against Mrs. Blevins; there was no basis for a decree subjecting the

(New cases filed since our last report, up to Sept. 14, 1881. houses or lots to the payment of the debt, under either the case made by the pleadings or that which was devel

1163. Adam Orth adm'r v. The L. S. & M. S. Ry, Co. oped by the evidence.

Error to the District ourt of Fulton County. W. C. The charge of the court was predicated upon the as- Kelly and C. H. Scribner for plaintiff. sumption that whether the property was community es- 1164. Snringfield, Jackson & Pomeroy R. R. Co. o.

Ambrose Scott. Error to the District Court of Jackson tate, the wife's separate estate, or constituted the home

County. Irvine Dungan for plaintiff. stead, if the plaintiffs bad complied with the statute pre

1165. Evan Brock et al. v. Urban Hidy et al. executors. scribing the mode of fixing their lien, and without ser. Error to the District Court of Fayette County. M. J. vict upon Mrs. Blevins, of a copy of the bill of particulars Williams and Mills Gardner for plaintiffs; M. Barclay of the account provided for in the lien statute, that if the and Savage & Hidy for defendants. plaintiffs were otherwise entitled to recover for the debt,

1166. Homestead, Building and Loan Association et al.

v. Continental Life insurance Company et al. Error to they would also be entitled to have a lien upon the property

the District Court of Fayette County, M. J. Williams described in the petition, and the jury were so instructed. and M. Millard for plaintiffs; Maynard & Hadley and S.

Tbe defendants excepted to the charge in these respects, N, Yeoman for defendants. by asking instructions which presented counter proposi- 1167. Continental Life Insurance Co. v. Benjamin tions of law, wbich were refused. Neither the charge nor

Kaup. Error to the District Court of Seneca County.

Sayler & Sayler for plaintiff; George E. Seney for de the instructions need be more specifically stated. The

fendant. jury were, of course, misled in following the charge to a

1168. Samuel T. Billingsley v. The State of Ohio. Erwrong result, to the injury of the appellants.

ror to the Court of Common Pleas of Franklin County. The questions presented as to the admissibility of evi- E. L. Taylor, D. K. Watson and H. J. Booth for plaintiff;

George K. Nash for the State. dence, in view of the conclusion we have reached need

1169. Carrie E. Conkling et al. v. Francis L. Reahard. not be discussed. As the cause will be remanded for an

Error to the District Court of Clinton County: Slone & other trial, we will make the simple remark, that we do

Walker for plaintiffs; A. C. Diball and Mills & Van Pelt not consider the objection to the admissibility of the afti. for defendant.

Ohio Law Journal.


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confirmation by political and partisan men and newspapers. This was to be expected as of

(olirse. COLUMBUS, OHIO, : : SEPT. 22, 1881.

The opposition, however, which exuded from IRVINGE BROWNE, of the ALBANY Law

JOURNAL, was made up of the most villainous NOTICE.

imbecility that ever entered into a contest of the kind. This self-adored

Fadladeen proAll persons are notified that W. W. Wick

claimed from the pinnacle of his superb vanity, ham is not now, and has not been for thirty that “Matthews did not have the proper Judicial days past, in any way connected with the mind which a Judge of the Supreme Court must Ohio Law Journal. We have permanently possess," and that “ being from Ohio he was not

fit for a Judge." severed all business relations with him.

This invitation to Judge Matthews is a mark LORD & BOWMAN.

of the high esteem in which he is justly held SEPTEMBER 22nd, 1881.

by the New York Bar, and such a rebuke to Browne as would overwhelm any man less

hedged about with a panoply of self-conceit. THE NATION'S SORROW, The days of mourning are upon this Nation to-day, The professional card of Messrs. Banning & brought about by the assassin's hand, which has laid low Davidson, of Cincinnati, will be found in our a Chief Magistrate, whose inany noble qualities had advertising columns this week, and henceforth. endeared him to all hearts, botin at home and abroad. These gentlemen have reduced the practice of After suffering untold pain and agony in bravely strug- the law to a science. Their business is so exgling to overcome the effects of the pistol wound re- tensive as to require the presence and labor of ceived on the morning of July 20 last, President James eight trained lawyers as assistants, each of A. Garfield was called from earth away at 10:35 on whom has his own special department at the Monday evening last. He died at Long Branch, sur- office and at the Courts. Whether or not this rounded by his wife, tho celebrated physicians and his thorough and systematic dis;o ition of business few faithful friends who had proved so devoted in his has given them their wide and inviable reputaLast days. The ways of Providence are wrapped in

tion as lawyers, we do not know; but the fact is inystery. In His wisdom He has seen fit to visit us with

that their practice is extensive and still rapidly great affliction and bring distress upon us; yet we bow

increasing Personally, Messrs. Banning, & in humble submission to His omnipotent will, and more

Davidson are as pleasant and agreeable as they fervently ask His aid and guidance in the future.

are successful professionally. President Arthur deserves, and we loubt not he will receive the confidence, support and encourageinent of

CONCEALED WEAPONS. Hvery loyal citizen of the country in his trying position.

The President's assassin, (uiteau, should be speedily In an article on the prevalence of crime in the United dealt with in strict accordanco with the law. All thoughts States, the Toronto Globe pays a sensible tribute to the of mob violence should be banished from every inind, manly American habit of carrying ruvolvers, as follows: for the law is fully adequate to dispose of his case, al- "Soine of the American papers are crying out for a tax

on revolvers. They propose to tax them, as they have though it can never bring back the dead or restore the done their shipping, oui of existence. This would be to peace and happiness wbich was our former lor.

make the revolver a luxury for the rich, and would, we fancy, make it more, rather than less popular in certain circles on that account. There is a more excellent way.

Let them settle it as a principle that the carrying of We unconditionally surrender the columns of

weapons of any kind is a relic of barbarism and un: the Law JOURNAL this week to the very in

worthy of citizens of a free and enlightened State. Let

the carrying of a deadly weapon be niade a crime against teresting address delivered by Judge Matthews, the State-accounted prima facie evidence of some evil before the New York State Bar Association, at

intent, and punished by fiue or inprisonment. Thus

alone can the brand of criminality be put upon the pracAlbany, on Tuesday, the 20th inst. We could tico, and the presence of a revolver in the pocket made

to appear, in the eyes of Young America, iu its true not find more valuable or instructive matter ligbt-as a sign of cowardice rather thau of the manly, for our paper, or anything more welcome to our fearless courage of conscious rectitude." readers. When Stanley Matthews' name was proposed

The Supreme Court Room of the State of Ohio, has

been thoroughly cleaned, re-painted, and re-carpeted, to fill the vacancy in the roster of Supreme and looks bright and inviting for the Court, which is Judges, there was more or less opposition to his expected to convene next woek.

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