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SUPREME COURT OF OHIO.

JANUARY TERM, 1882.

Hon. John W. OKEY, Chief Justice; Hon. WILLIAM WHITE, Hon. W. W. JOHNSON, Hon. Geo. W. McILVAINE, Hon. NICHOLAS LONGWORTH, Judges.

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Tuesday, February 28, 1882.

5. A sale of the real estate by the heir with COVOnants of general warranty, before the commencement of proceedings to sell the same to pay debts, where the purchase money is applied to the payment of

preferred claims thereon, does not I hereby divest himselt of such an interest in the subject matter, so as to defeat his right to file such cross-petition, and to protect his vendees.

6. If the allegations of the cross-petition implicates the administrator, as well as the judgment creditors.in fraudulently obtaining such judgmnents, they are against the heir, united in interest as to the subject matter of the controversy.

7. On error by the heir to reverse a judgment dismisg. ing such cross-petition, service upon the administrator within the time fixed for the coinmencement of such proceedings, saves the action as to his co-defendants so united in interest, though not served within that time. Judgment reversed.

42. The State ex rel. v. Kiesewetter, Auditor of Frank lin County. Mandamus.

WHITE, J., Held:

1. Under Sec. 700 of the Revised Statutes, prior to its amendment March 18, 1881, patients, after their admission into the asyluins of the State for the insane, were clothed at the expense of the State. Since the amendment, the expense of furnishing such clotbing is, under Sec. 631, chargeable on the estates of the patients or on those who would be legally bound to furnish it, if they were not in the asyluin.

2. If the duty of supplying patients with clothing as required by Sec. 631, should not be performed, the remedy in such case of failure, is for the institution to furnish it under Sec. 632; and for the amount so furnished, it is to be re-imbursed as therein provided.

As to the clothing furnished by the State prior to the amendment of Sec. 700, the writ is refused; and as to that subsequently furnished a peremptory writis granted.

GENERAL DOCKET.
No. 38. Pomeroy v. Buckeye Salt Co. Error to the
District Court of Meiys County.

LONGWORTH, J.

1. The general rules of law which govern the rights and obligations of the owners of doniinant and servient estates, apply as well to subterranean rights of way as to those upon the surface.

2. The owner of coal lands, through which another has a right of way, by subterranean entry, to reach coal mines in an adjoining tract, may lawfully construct an entry crossing such right of way, provided; it be done without destroying or substantially interfering with the use thereof.

Judgment affirmed.

386. The State of Ohio on relation of Uriah Horsemain administrator v. The Commissioners of Fayette County. Mandamus.

MCILVAINE, J. Held :

1. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the two mile road improvement laws, authorize the commissionors of counties, for the purpose of raising money necessary to meet the expenses of road improvements, to issue the bonds of the county," and thereby create a debt of the county in its quasi corporate capacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof.

2. When from any cause, sufficient money be not realized from such local assessments to pay the debt so created, it is the duty of the commissioners to levy a tax therefor upon all the taxable property of the county.

3. A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the coinmissioners, for the purpose of uscertaining whether conditions precedent to their execution have been performed. Peremptory writ awarded.

66. Mary Sidener v. James E. Hawes, Adm'r, et al. Error to the District Court of Greene County. JOHNSON, J., Held:

1. The creditors of an estate are entitled to bave the same settled in due course of administration, and in case of a sale of real estate to pay debts, that it be made by order of a competent court. It is no bar to an action by an administrator to sell land to pay debts, that the heir has, without an order of court, sold the same at private sale and applied the proceeds in satisfaction of preferred claims.

2. An order of sale of real estate to pay debts, made by the court of common pleas on a petition which states facts sufficient to warrant such an order, will not be reversed for want of a journal entry showing that the facts stated in the petition were found to be true. In such a case the reviewing court will presume that the judgment was founded on proper proof.

3. It an heir, to wboin lands descend subject to the debts of his alicestor, sells the saine with covenants of general warranty at private sale, without adıninistration on his ancestor's estate, to a bona fide purchaser who applies the purchase money to discharge liens thereon oroated by the ancestor, and to the payment of preferred claiıns, quch purchaser is in equity entitled, in the distribution of the purchase money, to be subroguted to the rights and equities of the holders of ench claims.

4. In a proceeding to sell land to pay judgment creditors pending in the court of commou pleas, it is competent for the heir, who still retains an interest in the subject matter, by cross-petition to attack such judgments on the ground of fraud,

24. Pittsburgh, Cincinnati & St. Louis Railway Company v. George Henderson, Error to the District Court of Harrison County.

OKEY, C. J.

1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact, to be determined by the jury under proper instructions.

2. Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company as to the management of a particular train, which order was, unreasonable and the enforcement of the same was danger. ous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action,

Judgment affirnied.

24. Pittsburgh, Cincinnati and St. Louis Railway Co. v. Joseph Shuss. Error to the District Court of Harrison County. Judgment affirmed. There will be no further report.

73. Pittsburgh, Cincinnati and St. Louis Railway Co. v. Jobn McMillan. Error to the District Court or Harrison County. Judginent reversed. To be reported hereafter.

MOTION DOCKET.
No. 39. Van Hyning & Co. v William Jennings et al.
Motion to re-instate number 207 on the General Docket
of last term. Motion overruled.

40. Amos Ainsworth v. The State of Ohio. Motion for leave to file a petition in error to the Court of Common Pleas of Van Wert County. Motion granted.

41. Abram Sharp v. John Ball. Motion to extend the time for filing printed record in cause number 996 on the General Docket. Motion granted and time extended to October 1st next.

Ohio Law Journal.

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as include crimes malum in se; and these do not change with each new hypothesis in science, or with the latest variations of periodical litera

ture. And the plagiarism you assert was in the COLUMBUS, OHIO,

MARCH 9, 1882. statement of matter of law. But perhaps your

animus was directed against the law as an

nounced by the judge, in that it did not follow We present in full in this issue, the opinion of the

the precedent of the Washington leading case, in Supreme Court, in the celebrateil Jewett-Vanderbilt railroad litigation, which gives jelgñent of ouster

which a distinguished assassin coolly and safely

shot to death his unsuspecting victim, for alleged against the Vanderbilt party, and puts a stop to con

improper intimacy with his wife, and when arsolidation.

raigned, set up that intimacy as a defense, and THE HENRY HENRY COUNTY COUNTY COLE-HARMON

doubtless emotional insanity, to excuse his criine.

And he found a convenient jury, guided I preCASE.

sume by a judge whose charge in that case was EDITORY O110 Law JOURNAL:

unquestionably free from the charge of plagiar

ism from any law human or divine, to acquit In your careful regard that a just division of him of all wrong in what he had done. And credit should be given in judicial charges to ju- then the distinguished slayer of his fellow man, ries, to all sources from which the law is derived, took back his erring wife, good as new, to his you did not reflect in charging Judge Moore with bed and bosom. Judge Moore did not in this appropriation from Judge Davis' charge in the very similar Cole-Harmon case follow that pecuColeman case, that Judge Moore had not fur- liar modern precedent, though it has been urged nished his charge for publication, nor claimed in desperate cases ever since. He does not seem any originality in it, but merely fitness and ac- to appreciate that a man has such ownership in curacy of law in what directions he gave to the a worthless wife, (while as you not long since jury. And hence possibly he did not indicate indicated, divorce was not at all difficult), that by proper quotation marks the particular sen

he may continue to live with her, and at his tences he adopted or the authorities he cited. convenient leisure kill whoever he fancies that But without any personal knowledge I venture her worthlessness has tempted to adultery with to assert that when Judge Moore made his her. Certainly Judge Moore's charge states corcharge he had never seen or rearl that of Judge rectly the law of Ohio as declared by our SuDavis to which you refer, and did not quote it. preme Court, whether it coincides with that of He may have made use of Judge Burchard's Judge Davis or not, which I do not know. But charge in the note to Clark v. The State, 12 Ohio | from what you published of Judge Moore's Reports 483, 494-5, familiar to the profession, charge-if liable to your intimation of plagiarbut no one would on consideration predicate a ism from Davis, the latter judge is chargeable charge of plagiarism on that fact. And I take with following the language of older authority higher ground, that the whole range of the law than either, and most likely, the case of Clark v. is the common property of judges for the instruc- The State, already referred to. But neither is tion of juries, limited only in this, that the law chargeable with what is properly called plagiargiven shall be applicable to the facts of the case, ism. They only did what they had a right to and necessary to determine the issue joined be- do Besides the ruling of the highest court in tween the parties, and this without parade of au- New York, reversing Judge Davis' decision in thorities cited which would only be it pedantic the case you refer to, is not the law of Ohio, and show of learning, and useless to the jury.

it is to be hoped never will be. It denies to soWhat is called originality, which is a merit ciety needed protection against "cranks,” incomin the composition of a sonnet or an essay on ius- plete men, of abnormal minds, the most dangerthetics, is not such in delivering the law to a ous class of society, by excluding the preventive jury in a nisi prius trial, though correctness in example of punishment from reaching them, to the law delivered as applied to the facts is so. restrain from crime, as under that ruling they The principles of law cannot well be separated will be conscious that they are rarely likely to from the language of the authorities in which be found by sympathetic juries saně beyond a they are expressed, and while originality may be reasonable doubt when charged with murder, found in clearness of statement, and in the or- and ably defended. That class is by the New derly and logical arrangement of the subject mat- York rule emancipated from responsibility for ter of the charge given, to essay it in the state- grave crime, which is only to be made effectual ment of the principles of law is scarcely what a upon that portion of society, the clearly sane careful judge would ordinarily aim to do. Law and sensible class, those who have the least tendeals with fixed principles and for a century or dency to commit offenses against humanity. centuries these are couched in nearly identical The fact is, if we must travel east for our law on formulas of statement, except as it may be nec- this subject, I prefer the rulings in Massachuessarily applied to new conditions of life, indus- setts to those of New York, sustained as the fortries and pursuits, or is modified by statutes. It mer are by those of the English Courts. As to is based on expedient and practicable morals, at your criticisins, I presume Judge Moore is inleast in so much of its criminal system or codes different. I have no right to speak for him, and he is in no way responsible for my opinions or A careful comparison of these two sentences suggestions, and I have never converged with

will reveal the fact that the two judges have a him about the matter. He and the bar gener: singular identity of thought and expression. ally in this part of the State are conscious that

We find no fault with the law relating to he has fully and well discharged his duty.

J. M. homicide as laid down by Judge Moore, and do LIMA, O. February 26, 1882.

not claim that the seduction of a wife affords any Our plain spoken correspondent no doubt in- excuse or justification of the killing of the seducer tended to render to Judge Moore a friendly ser- by that wife's husband. Indeed we are not convice when he penned the foregoing in his de- vinced that any excuse or justification is required. fence. It will not be apparent to that gentle On the contrary we are not quite sure that it is man however, that his position has been ren- not the christian duty of any husband to kill the dered any more pleasant by the well meant en- man who deliberately seduces his wife from her deavor. The basis of the remarks and conclu- virtue and purity, just as we believe it to be the sions of “ J. M.” seem to lie in his belief, as he duty of mankind to destroy the animals in the admits, that we charged Judge Moore with pla- form of men who perpetrate rapes upon little giarism of the law, or of the principles of law only, girls or grown up girls either. as he gave them in his charge to the jury.

Judges may look with a degree of allowance We would be narrowminded indeed if we upon the seducer of other men's wives, and incould make such a ridiculous charge. We are fluence juries to convict the man who properly very well aware of the fact that no credit need takes their worthless lives; but the restraint thus be given where a legal principle is announced; imposed upon injured husbands will hardly give but we have always believed that where the ex- very much aid and comfort to professional act language of another is used in the discussion libertines and seducers. We however desire to of any question, whether in metaphysics, relig- be understood, that the avenger shall be certain ion or law, that custom as well as honesty de- of the purity of the victim, the crime of the semanded at least a recognition of the mind that ducer, and then of his own skill as a marksman. conceived and the skill that formulated the new These properly combined will leave no room for thought or expression.

cavil and no necessity for tears. Those who quote an aphorism so old even as “Thou shalt not steal" generally refer in some

ROAD IMPROVEMENTS-BONDS. way to the Author of that ancient inhibition, and those who give expression to their own

SUPREME COURT OF OHIO. thoughts in the language of another rarely fail to give the proper credit by reference at least.

OHIO EX REL. URIAH HORSEMAIN, ADM'RS But those who take not only the thoughts but

THE COMMISSIONERS OF FAYETTE COUNTY. the language also of another, in poesy or prose prediction or conclusion, history or logic, never (hardly ever) fail to give to that other the

February 28, 1882. proper credit. Therefore to show our correspon

1. The act of March 29, 1867, and the acts amendatory dent that we did refer to both thought and lan

and supplementary thereto, commonly called the two

mile road improvement laws, quthorize the commissionguage in speaking of the adaptation of Judge ers of counties, for the purpose of raising money necesDavis' charge, we quote a sentence from each. sary to meet the expenses of road improvements, to issue

the bonds of the county," and thereby create a debt of JUDGE DAVIS.

JUDGE MOORE.

the county in its quasi corporate capacity, notwithstandThe doctrine that a crim- The doctrine that a crim

ing they also require the commissioners to assess the inal act may be excused upon ipal act may be excused upon

cost and expense of the improvement upon the lands the notion of an irresistable the notion of an irresistable

benefited thereby and situate within two miles thereof. impulse to commit it, when impulsa to commit it, when

2. When from any CAUSE, suficient money bo not rethe offender has the ability the offender has the ability

alized from such local assessments to pay the debt so creto discover his legal and to discover his legal and

ated, it is the duty of the commissioners to levy a tax moral duty in respect to it moral duty in respect to it

therefor upon all the taxable property of the county. has no place in the law; and has no place in the law; and

3. A purchaser of such bonds, who has no actual there is no form of insanity there is no form of insanity

knowledge of any defect in their execution, is not bound known to the law as a shield known to the law as a shield

to look beyond the findings and record of the commisfor an act otherwise criminal, tor an act otherwise crimi.

sioners, for the purpose of ascertaining, wbether condi. in which the faculties are so nal, in which the faculties

tions procedent to their execution have been performed. disordered or doranged that are so disordered o'r deranged

Peremptory writ awarded. a man, although he perceives that a man, although he soos Mandamus. the moral quality of his acts the moral quality of his act as wrong, is unable to control as wrong, is unable to con

This proceeding is prosecuted to com pel the them and is urged by some trol them and is urged by

board of Commissioners of Fayette County to mysterious pressure to the some mysterious pressuro to levy a tax to pay a balance due upon certain sommission of the aot, the the commission of the act, consequences of which he an. the consequences of whichi

bonds issued by them and known as "The State ticipates and knows. lhe anticipates and knows. road bonds."

year 1870.

The class of bonds so known, amounting to Treasurer's office on the 1st day of March and $35,000, was issued by the commisioners to Grove September in each year on the surrender of each & Coffman, contractors, to pay for a certain road coupon hereto annexed-attested by the Auditor improvement, under the act of March 29, 1867

of said county, (64 Ohio L. 80), entitled "an act to authorize “This bond is issued in pursuance of and accounty commissioners to construct roads on the cording to an act of the General Assembly of the petition of a majority of the resident land-hold- State of Ohio, entitled, 'an act to authorize the ers along and adjacent to the line of said road, county commissioners to construct roads on petiand to repeal an act therein named” and the tion of a majority of the resident land-owners acts amendatory and supplemental thereto. along and adjacent to the line of said road, and

The commissioners to whom a petition for the repeal an act therein named,' passed March 29, road improvement had been duly presented, pro- 1867, and the acts amendatory and supplemenceeded regularly under the statute to construct tary to said act, passed March 31, 1868, and May the road, finding, among other things, that a 16, 1868, respectively. majority of the resident land-holders of the "In testimony whereof, the Commissioners of county whose lands were reported as benefited said County of Fayette, and as such commissionand ought to be assessed, had subscribed the pe- ers have hereunto set our hands and names, and tition, and issued bonds as aforesaid to the con- affixed the seal of said county, this 4th day of tractors, who completed the construction of the November, 1869. road in accordance with their contract in the

A. McCANDLESS, ALLEN HEGLER, ) Commissioners

Auditor of WM. CLARK, of said Fayette For the purpose of satisfying the bonds so is

Fayette County, 0. ENOS REEDER, County, Ohio. sued, the commissioners caused an assessment to

Registered Nov. 4, 1869." be made upon the lande benefited and situate The question of the power of the commissionwithin two miles of the road. The amount so ers to obligate the county, is, however, raised on assessed was sufficient to pay all the bonds; but the statutes to which reference is made in the certain of the land-holders whose lands were as- bond. The holder of the bond is notified by its sessed obtained a perpetual injunction against face, that the power assumed by the commissionthe enforcement of the assessment against their

ers is to be found in these statutes. Section 7 of lands, (see Hays v. Jones, 27 Ohio St. 218), so

the statutes provides, "that for the purpose of that, after applying the amount collected on the raising money necessary to meet the expenses of assessment, twenty-nine of the bonds, 50 issued, such improvement, the commissioners of the for $500 each, were left wholly unpaid and un- county are hereby authorized to issue the bonds of provided for.

the county, payable in instalments, or at intervals Nine of these last named bonds, before matur- not exceeding in all five years, bearing interest ity, had, in the usual course of business, been at the rate not to exceed seven per cent. per an: endorsed and transferred by Grove & Coffnan to num, payable semi-annually, which bonds shall relators' intestate, Uriah Horsemain.

not be sold for less than their par value.” From Upon this state of facts, it is submitted by the the language of the statute here quoted, perhaps defendant that they have no power to provide

no one would deny that the debt evidenced by for the payment of relators claim by a levy of

the authorized bond is the debt of the county in taxes either upon the taxable property of the its quasi corporate capacity-indeed, the lancounty, or of the road improvement district. guage is not susceptible of any other meaning, MCILVAINE, J.

but, inasmuch as the same section provides for If the defendants have power to provide for

an assessment upon the lands specially benefited the payment of relator's claim by taxation, their

and lying within two miles of the improvement duty to do so is not questioned. Nor is the power

to meet the payment of the interest and princiof the commissioners to provide, by taxation, for

pal of the bonds, it is contended, that no other the payment of the debts of the county, disputed.

mode or manner of taxation can be resorted to The principle contention, therefore, is, does the

for the purpose of paying the bonds. However claim of relators constitute a debt ci the county? | plausible this contention may be, we think it The form of the bond, if that alone were to be

cannot be maintained. That the legislature considered, would clearly indicate an obligation might have so provided, we don't deny, but if on the part of the county. The following is a

such was the intention, it should have been ex

pressed in very clear and unmistakable terms. copy:

Such terms were not used, nor is such inference "No. 131. STATE OF OHIO, $500.00.

clear. On the other hand, the liability of the County of Fayette.

county in its quasi corporate capacity is express “Be it known that the County of Fayette, in ed in apt and unmistakable words; and if for the State of Ohio, hereby acknowledges to owe uch liability a portion only of the taxable propGrove & Coffman, or bearer, the sum of five erty of the county can in, any event be taxed, hundred dollars, payable at the office of the such intent on the part of the legislature should Treasurer of said Fayette County, on the first day have been expressed in like apt and unmistakaof March, 1871, with interest at the rate of seven ble terms. per centum per annum, from the first day of Sėp- As between the county and the taxing distember, 1868, payable semi-annually at said int created by the statute, to wit: the territory within two miles of road improvement, it cannot tition for the improvement. That their intesbe doubted, that the intent of the statute was to tate purchased the bonds before maturity, for a impose the burden of the improvement upon the valuable consideration and without actual latter, but as to the creditor holding bonds issued knowledge of any defect in their execution is to meet the expenses of the improvement, the conceded. Of course, to the extent he was bound faith of the county to the extent of all its taxa- to inquire as to the regularity of their execution, ble property was pledged by the express author- he is chargeable with any information which ity given to the commissioners to issue therefor, reasonable diligence would have revealed. He "the bonds of the county." Whenever, therefore, was bound to know that the bonds were issued payment of the bonde cannot be provided for by under the authority of certain statutes. The local assessment under the statute, it is the duty face of the bond, gave him this information. It of the commissioners to make provision for their was certified in the bond that it was " issued in payment, as for the payment of other debts of pursuance of and according to " the statute; and the county, by a levy upon all the taxable prop- There are authorities which hold that an endorsee erty of the county.

may rely on such recital, without further inquiry Again, although the question is not raised by as to the regularity of the execution. State et al. the pleadings in this case, it is suggested, that, v. Robertson et al., 27 Ohio St. 96; Warren v. inasmuch as the power of the commissioners to Marcy, 97 U. S. 96. make iinprovements under the act of March 29, But conceding that such recital does not re1867, and its amendments depends on the fact lieve the purchaser of such bonds from further that the petition for the improvement be sub- inquiry as to the performance of conditions prescribed by a majority of the resident land-hold- cedent to their execution, an examination of the ers whose land was reported benefited thereby, records of the commissioners would have revealed which fact did not exist in the case before us, as the fact that every condition precedent had was adjudged in the case of Hays v. Jones, 27 been fully performed; and among others, that a Ohio St. 218, therefore the bonds in question majority of the resident land-holders whose lands were unauthorized and void. True, it was found were reported benefited by the improvement in that case that the jurisdictional fact named had subscribed the petition, and that the was wanting, and therefore it was adjudged that commissioners had 80 found the fact to be. the defendants, parties in that case, be forever True, under the decision of Hays v. Jones, this restrained from enforcing the collection of the finding was not conclusive in such a case, neverspecial assessment against the property of the theless it was a fact which it become the plaintiffs in that action. But the relators, or duty of the commissioners to pass upon, their intestate, though he purchased the bonds and having found it in favor of the induring the pendency of the action, were not par- information and issued bonds reciting, the ties to it or bound by its result.

fact, that every condition precedent had been The jurisdictional fact in question is thus performed, it appears to us, that an innocent stated in the answer of the defendants to its purchaser of the bonds, relying upon the im. proceeding :

provements thus acquired, should be protected “ During said proceedings, and before the final against such defense on the part of the county, order, a majority of the land-holders resident in which, in fact, has realized and enjoyed the full said Fayette county whose lands had been re- benefit of the proceeds. Commissioners v. As ported for assessment, as aforesaid, had signed penwall, 21 Howard, (U. S.) 53); Bissell o. Jeffersaid petition for said improvement.

sonville, 24 Ibid, 287; Warren v. Marcy, 97 U. 8. "That in the month of July, 1868, the said re- 96; State ex rel. v. Robertson, 27 Ohio St. 96; port of said viewers and surveyor came on to be State ex rel. v. Garrett, 7 Ohio st. 327; Shoeheard before the said Board of County Commis- maker v. Goshen Township, 14 Ohio St. 669. sioners, at which time a number of said petitioners Peremptory writ awarded. presented a remonstrance to said Board asking [This case will appear in 37 O. S.] that said improvement be not made, yet the said commissioners, decided that a majority of the land holders whose lands had been reported for

RAILROAD CONSOLIDATION. assessment had signed the petition, and then made the final order for said improvement on

SUPREME COURT OF OHIO. the day of July, A. D. 1868, and such fur

THE STATE 0. VANDERBILT. ther proceedings were had that the contract for making such improvement was awarded to Grove

March 7, 1882. and Coffman, to be paid for in the bonds of Fay; ette County, of which the said bonds mentioned

1. Two railroad companies owning lines of railroad

connected only by other railroads which such companin the plaintiffs' petition constituted a part, and les hold by lease, are not authorized to become consol. said improvement completed in the year 1870, idated into one corporation under Rev. Stats. 8379. according to the contract and specifications

2. The lines of tworallroad companies, which are in

their general features parallel and competing, cannot therefor."

bo connected for the carriage of freight and passengers The rights of the relators, as we conceive, do over both "continuously," within the meaning of Rov. not depend upon the fact whether or not a ma

Stats. 2 8379, and hence such companies cannot become

consolidated into one corporation under that section. jority of the land-holders had subscribed the pe- 3. A certificato made by the directors of consolidat.

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