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servant is lawfully discharged for disobedience of reasonable orders, he is not entitled to recover.-Von Heyne v. Tompkins, Minn., 93 N. W. Rep. 901.

109. MASTER AND SERVANT-Fellow Servants.- A track walker on a railroad and the trainmen are in distinct and separate services, and, if he is injured by their negligence, he is not responsible therefor.- Louisville & N. R. Co. v. Davis, Ky., 71 S. W. Rep. 658.

110. MASTER AND SERVANT-Fellow Servants.- Engineers operating separate engines in the yard of a railroad company are fellow servants, within the meaning of the employers' liability act, Burns' Rev. St. 1901, § 7083, subd. 4, and not vice principals.-Pittsburg, C. C. & St. L. Ry. Co. v. Gipe, Ind., 65 N. E. Rep. 1034.

Elevators.

111. MASTER AND SERVANT Where the managers of a hotel operated an elevator therein, a permission to use such elevator by guests, if injury arises to employee, may justify an action against the proprie tors at his suit. - Lyons v. Dee, Minn., 98 N. W. Rep. 899. 112. MASTER AND SERVANT-Independent Contractor.Owner of a building held bound to exercise reasonable care to prevent a movement of the elevator under his control which knocked employee of independent contractor off a scaffold.-Appel v. Eaton & Prince Co., Mo., 71 S. W. Rep. 741.

113. MASTER AND SERVANT - Negligence. A superin tendent who had ordered an employee to place himself in a dangerous position under a wagon drawn by a span of mules held negligent in ordering the teamster to leave the mules.-Borden v. Falk Co., Mo., 71 S. W. Rep. 478.

114. MASTER AND SERVANT -Negligence of Mine Boss. -A mine boss being the representative of the owner in the matter of superintendence, held, that an employee therein does not assume the risk of his negligence in this respect.- Island Coal Co. v. Swaggerty, Ind., 65 N. E. Rep. 1026.

115. MONOPOLIES-Illegal Boycott.-Injunction held to lie to dissolve an illegal boycott agreement between a plumbers' association and dealers and manufacturers, and to restrain the enforcement thereof.-Walsh v. Association of Master Plumbers of St. Louis, Mo., 71 S. W. Rep. 455.

116. MONOPOLIES-Park Association.-Powers given by Laws 1883, ch. 278, to a residence park association, held not to give it exclusive privilege of dealing in merchandise and supplies within the limits of a park.-Thousand Island Park Assn. v. Tucker, N. Y., 65 N. E. Rep. 975.

117. MONOPOLIES-Trade Agreement. -An agreement between brewers not to sell to any one in debt for beer to either of the others until the debt was paid held in violation of Rev. St. 1899, § 8966, as a combination in restraint of trade, and a defense to an action to recover the price of beer sold by one of the parties thereto under section 8970.- Ferd Heim Brewing Co. v. Belinder, Mo., 71 S. W. Rep. 691.

118. MUNICIPAL CORPORATIONS — Officer's Salary. Where a city refuses to pay an officer the salary due him, he is entitled to interest only from the time demand therefor is made.-Stoddart v. City of New York, 80 N. Y. Supp. 344.

119. MUNICIPAL CORPORATIONS-Paving Street. After grading and paving a street, held that abutting owners were not liable to assessment for lateral extension of paving after 23 years.- Wreford v. City of Detroit, Mich., 93 N. W. Rep. 876.

120. MUNICIPAL CORPORATIONS-Public Improvements. -Contract entered into by city with lowest bidder, con taining substantial provisions, beneficial to him, not in cluded in the specifications, is void.-Diamond v. City of Mankato, Minn., 93 N. W. Rep. 911.

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123. NEGLIGENCE - Infant of Tender Years.-A child four years of age is too young to be chargeable with con tributory negligence.-Reliable Textile & Dye Works v. Mitchell, Ky., 71 S. W. Rep. 425.

124. NEGLIGENCE-Res Ipsa Loquitur.- The doctrine of res ipsa loquitur operates to raise a presumption of negligence against the defendant, but does not shift the burden of proof.-Adams v. Union Ry. Co., 80 N. Y. Supp. 264.

125. NEW TRIAL-Newly Discovered Evidence.-A new trial on ground of newly discovered evidence is properly denied, where it does not appear that such evidence would probably cause a different result to be reached on another trial. Morin v. Robarge, Mich., 93 N. W. Rep. 886.

126. NEW TRIAL-Sickness of Attorney.-Circumstances preventing party defendant from appearing, including sickness of attorney, held to make a case for a new trial, under Civ. Code Prac., § 518.-Bone v. Blankenbaker, Ky., 71 S. W. Rep. 638.

127. NEW TRIAL-Third Verdict. Where two verdicts for plaintiffs have been set aside, and a third jury find in their favor on conflicting evidence, an order refusing to set it aside will not be reversed.- Hyde v. Haak, Mich., 93 N. W. Rep. 876.

128. NOVATION- Partnership Debts. A transfer to a corporation of partnership assets subject to partnership debts held not a novation, without an assumption of the debts by the corporation and the assent of a creditor to such change.-Leggat v. Leggat, 80 N. Y. Supp. 227.

129. NUISANCE-Equity Jurisdiction.- Equity has concurrent jurisdiction with courts of law as to a nuisance. -Miller v Edison Electric Illuminating Co., 80 N. Y. Supp. 319.

130. PARTITION-City Property. It will be presumed that a house and lot in a city cannot be divided in partition without imparing its value.-Bell v. Smith, Ky., 71 S. W. Rep. 433.

131. PARTITION-Homestead. - So long as a surviving wife occupies the homestead, no partition thereof can be made among the children.-McAnulty v. Ellison, Tex., 71 S. W. Rep. 670.

132. PRINCIPAL AND AGENT - Warranty of Quality,Warrant of quality of goods sold by agent without authority held not to bind his principals.-Ellner v. Preistley, 80 N. Y. Supp. 371.

133. RAILROADS-Trespasser on Trains.-Where plaintiff was stealing a ride on a train, the railroad company owed him no duty except to refrain from wantonly or unnecessarily injuring him. Johnson v. New York Cent. & H. R. R. Co., N. Y., 65 N. E. Rep. 946.

134. REPLEVIN-Evidence.-In replevin, evidence held admissible to establish a debt from a mortgagor of the property to defendant mortgagee. Koelling v. August Gast Bank Note & Lithographing Co., Mo., 71 S. W. Rep. 728.

135. SALES - Counterclaim. - A buyer, who counterclaims for breach of warranty when sued for the price, is not entitled to recover the expense of an examination of the articles sold. Lifschitz v. McConnell, 80 N. Y. Supp. 253.

136. SALES - - Invoice. Where goods were sold with privilege of exchange for others "within 15 days from date of invoice," the date of invoice is the day the goods are shipped, though a prior date may be written on its face.-Merchants' Exch. Co. v. Wiesman, Mich., 93 N. W. Rep. 869.

137. SCHOOL AND SCHOOL DISTRICTS-Constitutiona Law.-Pub. St. ch. 93, § 14, Laws 1901. ch. 61, § 1, making

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141. STIPULATION — Matters Concluded. A stipulation by the defendant in an action at law to waive a jury and go to trial before the court is not a waiver of his right to insist that plaintiff has no right of action at law.-Goodyear Shoe Machinery Co. v. Dancel, U. S. C. C. of App., Second Circuit, 119 Fed. Rep. 692.

142. STREET RAILROADS — - Contributory Negligence. Failure of a pedestrian to look both ways before attempting to cross a street on which a double-track street railway was operated, held contributory negligence, which precluded a recovery for injuries sustained.-Trauber v. Third Avenue R. Co., 80 N. Y. Supp. 231.

143. STREET RAILROADS-Negligence.-Motorman, seeing person standing in place of danger, has no right to assume he will move away.-Stocks v. St. Louis Transit Co., Mo., 71 S. W. Rep. 730.

144. STREET RAILROADS- Ordinance. - An ordinance granting permission to construct a street railway, reserving power to change by resolution the location of tracks on the application of the railway company, is not void for such reservation.-Shepard v. City of East OrN. J., 53 Atl. Rep. 1047. ange,

145. SUBROGATION - Mortgage-A payment of a mortgage by a life tenant of land having also an interest in the remainder, held not presumed to be a gift to the other remaindermen.-Kinkead v. Ryan, N. J., 53 Atl. 1053.

146. SUBROGATION — Redemption. - Where defendant, on plaintiff's promise of rebursement,purchased land at a foreclosure in part of which plaintiff had no interest, she had the right of subrogation to the title acquired by defendant, though no right of redemption from the sale. Dayton v. Stahl, Mich., 93 N. W. Rep. 878.

147. TAXATION -Assessment.-Knowledge on the part of the owner of property that an alleged assessment thereon for taxes is void does not vitalize such void assessment.-Hughey v. Winbore, Fla., 33 So. Rep. 249.

148. TAXATION - Legacy - Where testator stood to a legatee in the acknowledged relationship of parent before her fifthteenth birthday, the tax on her legacy must be fixed at 1 per cent.-In re Lane's Estate, 80 N. Y. Supp.

381.

149. TAXATION-Succession Tax. - A state may tax the transfer by will of a non-resident of debts due the decedent by its citizens.-Blackstone v. Miller, U. S. S. C., 23 Sup. Ct. Rep. 277.

150. TAXATION-Taxable Capital. - Anticipated dividends, bills receivable, and coal supplies outside of state held not part of the taxable capital of a domestic rail. road corporation.-People v. Knight, N. Y., 65 N. E. Rep., 1102.

151. TAXATION -Tax sale. - A tax purchaser, not guilty of bad faith, should be subrogated to all the rights of the municipality in any tax paid by him in making the purchase or in its protection.-Leavitt v.Bartholomew, Neb., 93 N. W. Rep. 856.

152. TELEGRAPHS AND TELEPHONES-Failure to Deliver Message.-In an action for delay in delivery of a telegram, an instruction as to damages held error, in not limiting recovery to compensation for injury to feelings and mental anguish.-Western Union Tel. Co. v.Herning, Ky., 71 S. W. Rep. 642.

153. TRIAL-Facts Decided by Court - A decision by the court on the facts, after request by each party for a directed verdict in his favor, held to have the same effect as a verdict by the jury.-Leggat v. Leggat, 80 N. Y. Supp. 327.

154. TRIAL - - Inspection of Premises. Where, in an action for personal injuries, one of the jurors made a casual inspection of the premises, such fact did not as a matter of law require the grant of a new trial.-Lyons v. Dee, Minn., 93 N. W. Rep. 899.

155. TRIAL-Instructions.-The practice of presenting instructions to the court after the charge to the jury has been given cannot be sanctioned, and assignments of error based on the refusal to give such instructions will not be considered by the appellate court. - City of Chicago v. Le Moyne, U. S. C. C. of App., Seventh Circuit, 119 Fed. Rep. 662.

156. TRIAL-Instructions.-Personal reflection of judge in his charge held not cause for reversal, unless the jury, in view of the whole charge, were misled thereby.-Con. tinental Nat. Bank v. Tradesmeu's Nat. Bank, N. Y., 65 N. E. Rep. 1108.

157. TROVER AND CONVERSION - Trespasser.-Where a trespasser enters on the land of another, and removes therefrom earth and soil, an action for the conversion of the same will lie.-Radway v. Duffy, 80 N. Y. Supp. 334. 158. UNITED STATES-Fire in Mint.-The destruction of moneys in the custody of a superintendant of the mint by a fire occurring without his fault held no defense to a suit on his official bond. - Smythe v. United States, U. S. S. C., 23 Sup. Ct. Rep. 279. 159. VENDOR AND PURCHASER - Quit Claim Deed. — A purchaser of land relying on a quit claim deed executed as a substitute for a lost deed held protected, as an innocent purchaser, from the claim of the grantee in a prior unrecorded deed. — Waggoner v. Dodson, Tex., 71 S. W. Rep. 400.

160. WATERS AND WATER COURSES - Contract With Water Company. — Right of a water company to recover of a city reasonable rentals for hydrants according to contract held not affected by resolution of the city council that only $10 a year should be paid.—City of Valparaiso v. Valparaiso City Water Co., Ind., 65 N. E. Rep. 1063.

161. WATERS AND WATER COURSES-Percolating Water, -An action may be maintained by an injured party to restrain the owner of land from diverting percolating waters, which injures the spring of another party.— Stillwater Water Co. v. Farmer, Minn., 93 N. W. Rep. 907.

162. WITNESSES-Damages.-In an action for damages by grading the street, any resident who is acquainted with the lots and knows their value, is qualified to testify. Robinson v. City of St. Joseph, Mo., 71 S. W. Rep. 465.

163. WITNESSES - Dying Declaration. - A wife is competent to testify to her husband's dying declaration in a prosecution of his alleged murderer, notwithstanding Civ. Code, § 606.-Arnett v. Commonwealth, Ky., 71 S. W. Rep. 635.

Husband.

164. WITNESSES Where a mother delivered notes to her husband as trustee to collect and pay the proceeds to certain of her children, he was competent to testify, after her death, as to her statements when creating the gifts and establishing the trust.— Jarrel v. Crow, Tex., 71 S. W. Rep. 391.

165. WITNESSES-Husband and Wife.-A husband may prove his own agency for his wife, so as to make him a competent witness in her behalf in a suit against her.Orchard v. Collier, Mo., 71 S. W. Rep. 677.

Central Law Journal.

ST. LOUIS, MO., MAY 29, 1903.

ACTUAL PRESENCE OF ACCUSED WITHIN
THE DEMANDING STATE IN ORDER TO CON-
STITUTE HIM A FUGITIVE FROM JUSTICE.

A very important and much controverted point of law on the subject of the interstate extradition of fugitives from justice has just been passed upon by the United States Supreme Court. Hyatt v. New York, 23 Sup. Ct. Rep. 456. The question in this case was whether one who was not within the state when the crime of larceny or false pretenses was, if ever, committed, can be deemed a "fugitive from justice." The court held he could not.

named in the indictments, and when those facts are proved so that there is no dispute in regard to them, and there is no claim of any error in the dates named in the indictments, the facts so proved are sufficient to show that the person was not in the state when the crimes were, if ever, committed.

The exercise of jurisdiction by a state to make an act committed outside its borders a crime against the state is one thing, but to assert that the party committing such act comes under the federal statute, and is to be delivered up as a fugitive from the justice of that state, is quite a different proposition. The language of section 5278, Rev. Stat., provides, as we think, that the act shall have been committed by an individual who was at the time of its commission personally present within the state which demands his surrender. It is difficult to see how a person can be said to have fled from the state in which he is charged to have committed some act amounting to a crime against that state, when in fact he was not within the state at the time the act is said to have been committed."

*

In this case the accused had been arrested under a warrant issued by the governor of New York, upon the requisition of the governor of Tennessee. It was, by direct admission and stipulation, made certain that the accused was not in Tennessee at or between the several dates charged in an indictment for grand larceny and false pretenses, and that the demand for his removal to that state for trial was necessarily based upon the doctrine that a constructive presence of the accused, at the time of the alleged commission of the crime, was sufficient to authorize the demand for his surrender. That doctrine was expressly denied by Justice Peckham: "In the case before us," said the learned judge, "it is conceded that the relator was not in the state at the various times when it is alleged in the indictments the crimes were committed, nor until eight days after the time when the last one is alleged to have been committed. That the prosecution on the trial of such an indictment need not prove with exactness the commission of the crime at the very time alleged in the indict-justice" who does not change his domicile, or

ment is immaterial. The indictments in this case named certain dates as the times when the crimes were committed, and where in a proceeding like this there is no proof or offer of proof to show that the crimes were in truth committed on some other day than those named in the indictments, and that the dates named therein were erroneously stated, it is sufficient for the party charged to show that he was not in the state at the times

Thus is settled a question of much doubt and controversy. It has often been contended that the words "treason, felony or other crimes," spoken of in the constitution, included every offense forbidden and made punishable by the laws of the states where the offense is committed, and that, therefore, as an act committed outside its borders may, under certain circumstances, become a crime against other states, a person thus committing such an act comes within the meaning of the constitution, and should be surrendered upon demand of the governor of the state whose laws he is alleged to have violated. This contention the supreme court has emphatically denied, and we think justly. Certainly, a party cannot be said to "flee from

move from the spot where his alleged crime was committed. It is of course recognized that a man may stand in one state and violate the laws of another state, but in such a case the latter state has no remedy. To assert that a state can say that such and such acts committed by a nonresident, affecting in some way the interests of its citizens, constitutes a crime against that state, and, after indictment, seek by means of extradition to bring. such nonresident

within its jurisdiction for trial, would be an intolerable interference with the liberty of the citizens of other states.

One limitation on this decision must be emphasized. A prisoner sought to be extradited cannot by the mere plea and proof of an alibi defeat the requisition against the sworn statement of the demanding officer and possibly other evidence that he was within the state. A habeas corpus proceeding to test the validity of the requisition is no place to try the facts. alleged in the indictment, nor to establish the guilt or innocence of the accused on his plea of an alibi. This point is well sustained by a recent case decided by the Court of Appeals of the District of Columbia. Hayes v. Palmer, 31 Wash. Law Rep. 271. In this case the alleged fugitive lived in the city of Washington, but was charged with coming into the state of Maryland and gambling and then returning. The state of Maryland on habeas corpus made a prima facie case which the defendant attempted to overturn by his simple defense of an alibi. After carefully considering the case of Hyatt v. New York, supra, the court of appeals said: "In Hyatt v. New York, the right to demand extradition depended entirely upon the effect of the constructive presence of the accused in the state when the crime was committed, and it was distinctly stated that the facts showing that condition must be 'proved so that there is no dispute in regard to them.' When so proved, the accused must be discharged; when not, he must be remanded. Evidence, however strong, the practical effect of which is to set up nothing more than a defense of alibi, raises an issue that can only be tried by the court having the exclusive jurisdiction to convict or acquit of the crime. Any other rule would tend, in many cases, to defeat the salutary purpose of the constitutional provision and the law enacted to give it operation. For example, suppose the case of a party indicted for a secret murder that had been brought to light, long after its commission, by the discovery of the partly decomposed body, or the skeleton of the murdered person; the evidence being entirely circumstantial, and the date of the commission of the crime a matter of conjecture on the part of the grand jury. The accused, having been arrested in another state as a fugitive from justice, testifies that he was not in the demanding state on the day

alleged, but had been there shortly before, and frequently during the same summer, failing, however, to fix the latter dates at all. Would this evidence be sufficient to impose upon the demanding state the burden of introducing witnessess to prove the various circumstances from which it might reasonably be inferred that the murder had occurred shortly before the date alleged in the indictment? We think not."

With the limitation thus clearly set forth in the case of Hayes v. Palmer, we believe the rule announced in the case of Hyatt v. New York is founded on the soundest principles of constitutional and statutory construction, and will satisfactorily and conclusively settle one of the most vexed questions connected with that still very perplexing subject of constitutional law-the right of a state to demand the extradition of fugitives from justice and its proper enforcement.

NOTES OF IMPORTANT DECISIONS.

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TRIAL AND PROCEDURE ARGUMENTS OF COUNSEL. The Supreme Court of Iowa, speaking through Justice Weaver, in State v. Burns, 94 N. W. Rep. 239, comments as follows upon the limits to which counsel may go in argument: "It is his time honored privilege to

'Drown the stage in tears,

Make mad the guilty and appal the free. Confound the ignorant, and amaze, indeed, The very faculties of eyes and ears.' Stored away in the property room of the profession are moving pictures in infinite variety, from which every lawyer is expected to freely draw on all proper occasions. They give zest and point to the declamation, relieve the tediousness of the jurors' duties, and please the audience, but are not often effective in securing unjust verdicts. The sorrowing 'gray-haired parents, 'upon the one hand, and the broken-hearted 'victim of man's duplicity, upon the other, have adorned the climax and peroration of legal oratory from a time whence the memory of man runneth not to the contrary,' and for us at this late day to brand their use as misconduct would expose us to just censure for interference with ancient landmarks."

CORPORATIONS-LIABILITY OF CORPORATIONS ON AN EXECUTED CONTRACT NOT UNDER SEAL. -The judgment of the court of appeals in Lawford v. The Billericay Rural District Council, is one of the most important judicial decisions which have been delivered on the vexed question whether a corporation can be sued on an executed contract not made under seal. The general rule of the common law that a corporation can

only contract under seal was in early times relaxed with respect to small matters of frequent and ordinary occurrence; and the necessities of commerce afterwards brought about the further exception that a commercial company need not contract under seal as regards ordinary trading agreements connected with the business which it carries on. Whether there is also an exception in the case of certain executed contracts is a question on which the authorities are in hopeless conflict. In one series of cases, of which Clarke v. The Cuckfield Union, 21 Law J. Rep. Q. B. 349, is a good example, the rule is laid down that where such goods have been supplied to and accepted by a corporate body as must necessarily be supplied for the purposes for which the body exists, or where work has been done for such a body in connection with such purposes, payment cannot be resisted on the ground that the contract was not under seal. In another class of cases, such as Lamprell v. The Billericay Union, 18 Law J. Rep. Exch. 283, the courts decided that no action could be maintained under such circumstances on a quantum meruit. Most rightminded people will be gratified that the court of appeals upholds the decisions which affirm the rule that where a corporation has accepted the plaintiff's services or goods, there is an implied contract to pay for them. The decision, it must be noticed, only applies to cases which depend on the common law. Where a statute such as the Public Health Act requires that the contracts of a public body must be made under seal, the house of lords held in Young v. The Mayor, etc., of Leamington Spa, 52 Law J, Rep. Q. B. 713, L. R. 8 App. Cas. 517, that it cannot be sued on an executed contract of which it has had the full benefit.-Law Journal.

SHERIFFS AND CONSTABLES RIGHT OF SHERIFF TO RECOVER FEES OUT OF PROPERTY REMAINING IN HIS POSSESSION OVER TWENTYONE DAYS. - The decision of Wright, J., this week in Re English and Ayling is an interesting addition to the recent authorities on the right of a sheriff who has levied execution, and who has remained in possession for more than twenty-one days, to recover out of the goods possession fees beyond that period. Of course the duty of the sheriff, on receipt of the writ, is to seize and then to sell as soon as he conveniently can; but he is frequently requested to postpone a sale either by the execution creditor or the execution debtor, or both, and he may, in consequence, find himself in a position of considerable difficulty. If the request comes from the creditor alone, it is possible that he is bound to obey it, though this is not clear; but at any rate, he cannot recover against the debtor, or his trustee in bankruptcy, the increased fees thereby incurred. Re Finch, Ex parte Sheriff of Essex, 40 W. R. 175. Where, however, the debtor has joined in the request, the case would seem to be different. The sheriff is now acting with the consent of both parties,

and in Re Hurley (41 W. R. 653), Vaughan Williams, J., held that, upon the subsequent bankruptcy of the debtor, the full possession money was payable out of the goods. That decision was given upon section 11 of the Bankruptcy Act, 1890, under which the sheriff, in the event of his being served with notice of a receiving order before the execution is completed, is bound on request to deliver the goods and any mony already received to the official receiver, "but the costs of the execution shall be a first charge on the goods or money so delivered." Vaughan Williams, J., held that the phrase "costs of the execution" covered the full possession fees during postponement of sale at the joint request of creditor and debtor. The learned judge's attention, however, was apparently not called to the fact that under section 1 of the Bankruptcy Act, 1890, the holding of the goods by the sheriff for twenty-one days is an act of bankruptcy on the part of the debtor, and therefore the general creditors have an inchoate right in the goods. If no bankruptcy petition is presented within three months, then this act of bankruptcy is ineffectual, and, as was held by the court of appeal in Re Beeston, 47 W. R. 475 (1899), 1 Q. B. 626, it is no bar to the recovery of full possession fees, although bankruptcy occurs at a later date; but Lindley, L. J., pointed out that it might be different if a petition was presented within the three months. The title of the trustee in bankruptcy would then relate back to the act of bankruptcy committed by the sheriff's twenty-one days' possession, and the power of the debtor to consent to any further postponement of sale would be gone. In Re Hurley, the bankruptcy was within the three months, but this point was not taken. It has now been taken in Re English and Ayling, and has been held by Wright, J., to be good. The "costs of the execution" which the sheriff can recover out of the goods are such costs as he can justify; and these include possession money only for a reasonable time-some eight or ten daysand such further time as is authorized by a person competent to deal with the goods. The debtor can authorize possession up to twenty-one days, but whether he can authorize it beyond depends on the contingency of a bankruptcy petition being presented within three months. Obviously, therefore, the sheriff cannot safely postpone the sale beyond twenty-one days unless his fees are guaranteed by the execution creditor. -Solicitors Journal.

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