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(40 Sup.Ct.)

Ct. 408, 571, 50 L. Ed. 913; Washington v., tained upon a consideration of the situation Oregon, 211 U. S. 127, 29 Sup. Ct. 47, 53 L. Ed. 118; Id., 214 U. S. 205, 29 Sup. Ct. 631, 53 L. Ed. 969; Arkansas v. Tennessee, 246 U. S. 158, 38 Sup. Ct. 301, 62 L. Ed. 638, L. R. A. 1918D, 258.

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"When a navigable river constitutes the boundary between two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each state in the navigation of the river admits of no other line. The preservation by each of its equal right in the naviga-| tion of the stream is the subject of paramount interest. * Thus the jurisdiction of each state extends to the thread of the stream, that is, to the 'mid-channel,' and, if there be several channels, to the middle of the principal one, or, rather, the one usually followed." Iowa v. Illinois, supra, 147 U. S. 7, 13, 13 Sup. Ct. 241, 243, 37 L. Ed. 55.

"As to boundary lakes and landlocked seas, where there is no necessary track of navigation, the line of demarcation is drawn in the middle, and this is true of narrow straits separating the lands of two different states." Louisiana v. Mississippi, supra, 202 U. S. 50, 26 Sup. Ct. 421, 50 L. Ed. 913.

existing in 1846 and accurately disclosed by the Meade Chart. That when traced on this chart the boundary runs midway between | Rice's Point and Connor's Point, and through the middle of Lower St. Louis Bay to and with the deep channel leading into Upper St. Louis Bay, and to a point therein immediately south of the southern extremity of Grassy Point; thence westward along the most direct course, through water not less than 8 feet deep, eastward of Fisherman's Island and as indicated by the red trace “A, B, C,” on Minnesota's Exhibit No. 1, approximately one mile, to the deep channel and immediately west of the bar therein; thence with such channel north and west of Big Island up stream to the falls.

Within 30 days counsel may present a proper decree for carrying this opinion into effect. The costs will be equally divided between the states.

It seems appropriate to repeat the suggestion, made in Washington v. Oregon, supra, 214 U. S. 217, 218, 29 Sup. Ct. 631, 53 L. Ed. 969, that the parties endeavor with consent of Congress to adjust their boundaries.

Mr. Justice BRANDEIS concurs in the result.

(252 U. S. 308)

PANAMA R. CO. v. TOPPIN. (Argued and Submitted Jan. 16, 1920. Decided March 15, 1920.)

No. 147.

[4] The doctrine of Thalweg, a modification of the more ancient principle, which required equal division of territory, was adopted in order to preserve to each state equality of right in the beneficial use of the stream as a means of communication. Accordingly, the middle of the principal channel of navigation is commonly accepted as the boundary. Equality in the beneficial use often would be defeated, rather than promoted, by fixing the boundary on a given line merely because it connects points of greatest depth. 1. MASTER AND SERVANT 307 — CRIMINAL Deepest water and the principal navigable channel are not necessarily the same. The rule has direct reference to actual or probable use in the ordinary course, and common experience shows that vessels do not follow a narrow crooked channel, close to shore, however deep, when they can proceed on a safer and more direct one with sufficient water.

As we view the whole record, the claim of Wisconsin cannot prevail, unless the doctrine of Thalweg requires us to say that the main channel is the deepest one. So to apply it here would defeat its fundamental purpose. The ruling depth in the waters below Upper Bay was 8 feet, and practically this limited navigation to vessels of no greater draft. For these there was abundant ter near the middle line. Under such circum

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ACT CAUSING INJURIES ACTIONABLE. Under the law of the republic of Panama (Ordinance No. 87 of 1896, arts. 488 and 489, Law No. 62 of 1887, art. 5, and Civ. Code, from liability in damages for injuries resulting art. 2341), a railroad company is not relieved from the negligence of an employé merely because the negligent act is also punishable as a crime.

2. ACTION

62-RULE UNDER COLOMBIAN JUDICIAL CODE AS TO POSTPONING CIVIL ACTION UNTIL CONCLUSION OF CRIMINAL ACTION NOT APPLICABLE.

The rule of practice under the Judicial Code of Colombia that a civil action cannot be prosecuted until the conclusion of a criminal action, arising out of the same act, has no application to an action against a railroad comwa-pany for injuries sustained in Panama from the negligence of the engineer, though the engineer would be punishable criminally, as the same person is not liable both civilly and criminally. 3. MASTER AND SERVANT 304-MASTER EX

stances Minnesota would be deprived of equality of right both in navigation and to the surface, if the boundary line were drawn near its shore.

A decree will be entered, declaring and adjudging as follows: That the boundary line between the two states must be ascer

ERCISING CARE IN SELECTING SERVANT NOT
RELIEVED FROM LIABILITY FOR HIS NEGLI-
GENCE.

Under the law of the republic of Panama (Col. Civ. Code, § 2347, and Law 62 of 1887,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ing there will be presumed to have continued

art. 5), a railroad company is not relieved of
liability for an injury caused by the negligence in force.
of its engineer because it exercised care in se-
lecting him.

[1, 2] First. The company contends that the jury should have been instructed that un

4. DAMAGES 32-DAMAGES FOR PHYSICAL der the law of Panama the company was not

PAIN RECOVERABLE IN ACTION FOR PERSON-
AL INJURIES.

In an action against a railroad company for personal injuries sustained in the republic of Panama, damages for physical pain were recoverable whether the law of Panama or that of

the Canal Zone, where the action was brought, was applicable.

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

Action by Joseph T. Toppin against the Panama Railroad Company. A judgment for plaintiff was affirmed by the Circuit Court of Appeals for the Fifth Circuit (250 Fed. 989), and defendant brings error. Affirmed. *309

*Messrs. Frank Feuille and Walter F. Van Dame, both of Ancon, C. Z., for plaintiff in

error.

Messrs. Wm. C. MacIntyre, of Cristobal, C. Z., and Felix E. Porter, of Ancon, C. Z., for defendant in error.

liable if the accident resulted from a criminal act of its employés; there being evidence that it was due to running the locomotive at a rate of speed prohibited under penalty by the Police Code of Panama. That Code, known as Ordinance No. 87 of the year 1896, provides (articles 488, 489):

"When a tramway crosses a town, as well as when it passes by a gate or viaduct, it shall not travel at a greater speed than that of a wagon drawn by horses at a moderate trot; in case of an infraction the conductor or the administrator of the company subsidiarily shall pay a fine of 10 to 100 pesos, without prejudice to the responsibility, civil or penal, to which he may be subject by reason of the damage fault or tort. shall be applied to railroads when they enter cities or towns."

"This article *

The Panama Law No. 62 of 1887 had provided in article 5:

"Railroad companies are responsible for the

Mr. Justice BRANDEIS delivered the opin- wrongs and injuries which are caused to per

ion of the Court.

Toppin was struck by a locomotive of the Panama Railroad Company while riding a horse in the city of Colon. He sued the company for damages in the District Court of the Canal Zone, alleging negligence, and recovered a verdict. The judgment entered thereon was affirmed by the Circuit Court of Appeals for the Fifth Circuit (250 Fed. 989, 163 C. C. A. 239), and the case is here on writ of error.

sons and properties by reason of the service of said railroads and which are imputable to want of care, neglect or violation of the respective police regulations which shall be issued by the government as soon as the law is promulgated."

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obliged to repair it, *without prejudice to the principal penalty which the law imposes for the fault or offense committed."

The main contentions of the company are here, as in Panama Railroad Co. v. Bosse, 249 U. S. 41, 39 Sup. Ct. 211, 63 L. Ed. 466, It would seem clear from a reading of these that the trial court erred in holding applica- provisions that the company would not be reble the rule of respondeat superior and the lieved from liability in damages for injuries rule permitting recovery for physical pain resulting from the negligence of its employé, suffered. The important difference in the merely because the negligent act was also two cases is this: There the accident occur- punishable as a crime. And the Colombian red in the Canal Zone; here in the republic authorities to which our attention has been of Panama. The company insists that the called tend to confirm this construction.1 Bosse Case is not controlling, because the There seems to have been a rule of practice questions affecting liability must here be de- under the Colombian Judicial Code (article termined by the law of that republic, the 1501)2 by which, if the civil action and the place where the accident occurred. Slater v. criminal action arising out of the same acts Mexican National Railroad Co., 194 U. S. are not brought at the same time, the civil 120, 24 Sup. Ct. 581, 48 L. Ed. 900; Cuba action cannot be prosecuted until the concluRailroad Co. v. Crosby, 222 U. S. 473, 32 Sup.sion of the criminal action with the condemCt. 132, 56 L. Ed. 274, 38 L. R. A. (N. S.) 40. nation of the delinquent. But such rule obThe law of Panama is pleaded by both par-viously can have no application here; among ties and evidence thereon was introduced by 1 Cecilia Jaramillo de Cancino v. The Railroad of both; but we are not limited to this evi- the North, Supreme Court of Justice of the Repubdence, as they agree that we may take judi- lic of Colombia, XIII Judicial Gazette, Nos. 652-653, cial notice of the law of Panama existing Feb- decided December 16, 1897. ruary 26, 1904, when the Canal Treaty was proclaimed, and that, in the absence of evidence to the contrary, the law then prevail-cided July 19, 1892.

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Supreme Court of Justice of the Republic of Colombia, III Judicial Gazette, No. 353, pp. 332-334, de

Ruperto Restrepo v. Sabana Railway Company.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

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other reasons because it refers to the case is not unlikely that such was the object of where the same person is liable both civilly article 5 of Law 62 of 1887. and criminally. Here it is the engineer who is liable criminally under the Police Code and the company against whom civil liability is being enforced.

[4] Third. The contention that the lower courts erred in allowing recovery for physical pain was made and overruled in Panama Railroad Co. v. Bosse, supra, 249 U. S. 47, 39 [3] Second. The company contends that by the law of Panama it cannot be held liable Sup. Ct. 211, 63 L. Ed. 466. As the decision for the injury caused by the negligence of its there rested upon article 2341 of the Civil engineer if it was careful in selecting him, Code of Panama, it is applicable whether the because the law of Panama does not recog-lex loci or the lex fori should be held connize liability without fault. This contention was made and rejected by the Supreme Court of Colombia in a case similar to the case at bar. There suit was brought against the empresario of a railway to recover for the loss of a house by fire due to the negligent

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trolling as to such damages. Exception was
also taken to the ruling that "if the plaintiff
has developed tuberculosis of the spine as a
result of the injuries received" the tubercu-
losis may be considered as an element of
damages. The instruction was given with
such explanations as to have been clearly un-
objectionable.
Affirmed.

(252 U. S. 286)

COLE et al. v. RALPH (two cases).

Nos. 172, 173.

operation of a locomotive. *The court rested the liability upon section 2347 of the Civil Code, declaring that all doubt as to the existence of the necessary dependency was removed by article 5 of Law 62 of 1887, which "without in any way mentioning the dependents, employés, or workmen of railway enterprises, makes their empresarios responsible (Argued Dec. 8, 1919. Decided March 15, 1920.) for the damages and injuries which they may cause to persons or to property by reason of the service of the said roads." The court continues: "And there is not in the record 1. CERTIORARI 69-SUPREME COURT MAY any proof whatever that any care or precaution, either on the part of the empresario or the engineer, had been taken to prevent the fire, the proof that the empresario on his part had exercised much care in the selection of his employés not being sufficient in the opinion of the court, because the diligence and care here treated of, is that which ought to have been exercised in order to prevent an injury that could have been easily foreseen." This case seems to overrule in effect the principal authority to which the plaintiff in error has referred us—in fact, it

3 Cancino v. The Railroad of the North, supra, note 1.

Article 2347: "Every person is responsible not only for his own actions for the purpose of making

good the damage, but for the act of those who may be under his care.

"Thus, the father, and failing him the mother, is responsible for the act of the minor children who live in the same house.

"Thus the tutor or guardian is responsible for the conduct of the pupil who lives under his protection and care.

Thus the husband is responsible for the conduct of his wife.

"Thus the directors of colleges and schools respond for the acts of students while they are un

der their care, and artisans and empresarios for the acts of their apprentices and dependents in like cases.

EITHER MAKE COMPLETE DECISION OR CON-
SIDER ONLY MATTERS DECIDED BY CIRCUIT
COURT OF APPEALS AND REMAND FOR DETER-
MINATION OF OTHER QUESTIONS.

On certiorari to review judgments of the Circuit Court of Appeals, reversing judgments of the District Court and ordering a new trial, the Supreme Court may either proceed to a considered by the Circuit Court of Appeals, and complete decision or deal only with the matter remand the cases to that court for any needed action on other questions.

2. PLEADING ←403(2)—OMISSION OF ALLEGA

TION FROM COMPLAINT CURED BY ALLEGA-
TION IN ANSWER.

In suits to determine adverse claims under conflicting mining locations, the failure of the complaints to allege with certainty that defendant was in possession was cured by an affirmative statement in the answer that he was in possession.

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"But this responsibility will cease if with the 4. MINES AND MINERALS 34-CONTRACT BY exercise of the authority and care which their respective characters prescribe for and confer on them they could not prevent the act."

See, also, Panama Railway Co. v. Bosse, 249 U. S. 41, 49, 39 Sup. Ct. 211, 63 L. Ed. 466.

Ramirez v. The Panama Railroad Company, Supreme Court of Justice of Colombia, 1 Gaceta Judicial, No. 22, p. 170 (June 10, 1887).

LOCATORS GIVING OTHER PERSONS INTEREST
IN OUTPUT GOOD, THOUGH NOT RECORDED.

Under Rev. Laws Nev. 1912, §§ 1038-1040,

a contract executed by locators of mining claims, giving other persons a right to a specified share in the output of the claim, was good between the parties, though not recorded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 40 SUP.CT.-21

5. MINES AND MINERALS 38(4) PERSON | 11. MINES AND MINERALS 29(1)— RIGHTS

HAVING INTEREST IN OUTPUT OF MINE WAS
ADMISSIBLE BUT NOT NECESSARY PARTY TO
ADVERSE CLAIM AND SUIT FOR DETERMINA-
TION.

A person having a right to a specified share
in the output of a mining claim under a con-
tract with the locators was not an essential
party to an adverse claim filed in the land of-
fice, or to a suit to determine the adverse claims,
but was an admissible party in view of Rev.
Laws Nev. 1912, §§ 4998, 5000.
6. HUSBAND AND WIFE
MINES AND MINERALS

ACQUIRED BY LOCATION BASED ON DISCOV-
ERY STATED; "PROPERTY.”

A mining location based upon discovery gives an exclusive right of possession and enjoyment, is property in the fullest sense, is subject to sale and other forms of disposal, and, so long as it is kept alive by performance of the required assessment work, prevents any adverse location.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Prop

249, 265, 270(5)—erty.]
38(4)-HUSBAND

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PROPER PARTY TO FILE ADVERSE CLAIM AND 12. MINES AND MINERALS 17(1) NATURE

SUIT FOR DETERMINATION, WHERE PROPERTY
WAS COMMUNITY PROPERTY.

Where a husband conveyed an interest in

OF LOCATION MUST CORRESPOND WITH NA-
TURE OF DISCOVERY AS LODE OR PLACER.

Under Rev. St. §§ 2320, 2329 (Comp. St. §

a mining claim to his wife, but the considera-4615, 4628), a placer discovery will not sustain tion was not paid out of her separate property, a lode location, nor a lode discovery a placer the conveyance was not intended as a gift, and location. she never listed the property as her separate property, it was community property of which the husband had the entire management and control and absolute power of disposition, under "Location" is the act or series of acts Rev. Laws Nev. 1912, §§ 2155-2160, and an whereby the boundaries of a claim are marked,

adverse claim and suit for the determination of adverse claims was properly filed by him.

7. MINES AND MINERALS 38(4)-PARTY SUCCEEDING ΤΟ INTEREST IN MINING CLAIM

PENDING SUIT PROPERLY MADE PARTY.

Where, pending a suit to determine adverse claims under conflicting mining locations, the interest of one of the plaintiffs was transferred by attachment proceedings, the transferees were entitled to the benefit of what he had done while he held title, and were properly substituted as plaintiffs.

8. MINES AND MINERALS 41-MISTAKE IN ADVERSE CLAIM AS TO NAME OF CLAIMANT IMMATERIAL WHERE NO ONE WAS MISLED.

That an adverse claim to a mining location filed in the land office stated the name of one

of the claimants as "Frank" instead of "John" by inadvertence was immaterial, where no one was misled or prejudiced.

OMISSION OF

13. MINES AND MINERALS 14(1)-NATURE OF "LOCATION" STATED.

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MAY PRECEDE DISCOVERY IF THERE ARE NO
INTERVENING RIGHTS.

While in practice, discovery usually precedes location of a mining claim, it is no objection, in the absence of an intervening right, that the usual order is reversed, and in such case the location becomes effective from the date of discovery.

9. INTERNAL REVENUE 34 REVENUE STAMPS DOES NOT RENDER DEEDS 16. MINES AND MINERALS 38(23)—IN SUIT

INADMISSIBLE AS EVIDENCE.

Under Act Oct. 22, 1914, c. 331, §§ 6, 11, 12, 13, 22, the omission of the required revenue stamps from deeds did not render the same inadmissible as evidence.

10. MINES AND MINERALS 27(1)-RULE AS TO LOCATION OF LAND IN POSSESSION OF ANOTHER, WHO HAS NOT MADE DISCOVERY,

STATED.

In advance of discovery, an explorer in actual occupation, and diligently searching for mineral, is treated as a licensee or tenant at will, and no right can be initiated or acquired from a forcible fraudulent or clandestine intrusion upon his possession, but if his occupancy be relaxed, or be merely incidental to something other than a diligent search for mineral, and another enters peaceably and not fraudulently or clandestinely, and makes a mineral discovery and location, the location is valid.

TO DETERMINE CONFLICTING CLAIMS COUBT
HELD NOT TO HAVE PLACED BURDEN ON DE-
FENDANTS.

In a suit to determine adverse claims under defendant's lode location and a later placer location under which plaintiffs claimed, where the court denied a motion to strike out plaintiffs' evidence as to defendant's failure to discover lodes, on the ground that the burden was on plaintiffs to show that the ground in dispute was open to location, and defendant's requested instructions recited that plaintiffs had introdue ed evidence tending to show that the ground contained no lodes, veins, or mineral-bearing rock in place, and the court charged that the burden was on plaintiffs to show that when they went on the claims the ground was open to location, and there were no valid subsisting locations, there was no basis for defendant's objection that the burden was placed on them of proving lode discoveries.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

17. MINES AND MINERALS 38(22)-IN SUIT 133), and plaintiffs bring certiorari. JudgOVER CONFLICTING CLAIMS, DIRECTION OF ments of the Circuit Court of Appeals reVERDICT PROPERLY DENIED. versed, and judgments of the District Court affirmed.

In suits to determine conflicting claims un der defendant's lode location, and plaintiffs' later placer location, where there were disputable questions of fact as to the presence or absence of lode discoveries, defendant's possession when the locators of plaintiffs' claims entered and made their discoveries, etc., and defendant's acquiescence in the acts of the placer locators, the direction of verdicts for defendant was properly denied.

18. MINES AND MINERALS 19(1) - PLACER LOCATORS DID NOT ADMIT VALIDITY OF PRIOR

See, also, 248 U. S. 553, 39 Sup. Ct. 8, 63 L. Ed. 418.

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*Messrs. George B. Thacher and William C. Prentiss, of Washington, D. C., for petition

ers.

C., and P. G. Ellis, of Salt Lake City, Utah, Messrs. Samuel Herrick, of Washington, D. for respondent.

Mr. Justice VAN DEVANTER delivered

LODE LOCATION BY POSTING RELOCATION NO- the opinion of the Court.

TICE BY MISTAKE.

Where parties making a placer discovery within the limits of an earlier lode location posted a notice that they had relocated the claim as a lode claim, but on the next day substituted another notice of location as a placer claim, and nothing was ever done or claimed under the first notice, and no one was misled by the mistake, the posting thereof was not an admission of the validity of the lode location.

19. MINES AND MINERALS 38(17)-RECITAL OF DISCOVERY IN RECORDED NOTICE OF LO

CATION NOT EVIDENCE OF DISCOVERY.

Under the general rule recognized and applied in Nevada, the recitals of discovery in

mere

-

These suits relate to conflicting mining lo cations in Nevada and are what are common

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office for the issue to him of a patent for the Ralph made application at the local land three lode claims, along with thirteen others not here in question, and in due time two adrecorded notices of location of lode claims are verse claims were filed in that proceeding, ex parte self-serving declarations, and one based upon the Guy Davis and covering not evidence of discovery. most of the ground within the Salt Lake No. 20. APPEAL AND ERROR 1058(1) — EXCLU-3, and the other based upon the Homestake SION OF EVIDENCE COULD NOT BE COMPLAIN- and covering a considerable portion of the ED OF WHERE COURT SUBSEQUENTLY CHANG- ground within the Midas and Evening Star. ED ITS RULING AND DEFENDANT TOOK NO These suits were brought in a state court in OBJECTION. support of the adverse claims, and Ralph, the sole defendant, caused them to be removed into the federal court, the parties being citizens of different states. Afterwards some of the original plaintiffs were eliminated and others brought in, but the citizenship re

Defendant could not complain of the court's refusal to permit him to show the contents of certain assay reports on cross-examination of a witness for plaintiffs, where the court subsequently recalled its ruling and announced another more favorable to defendant, the witness was then recalled, and some of the reports put in evidence, and defendant did not call for the others, or reserve any exception to the new ruling.

mained diverse as before.

The cases were tried together to the court and a jury, the latter returning general verdicts for the plaintiffs and special verdicts

21. MINES AND MINERALS 29(2)—STATUTE finding that when the placer locations were

DOES NOT DISPENSE WITH DISCOVERY AS ES

made no lode had been discovered within the

SENTIAL TO VALID LOCATION, THOUGH PERI-limits of any of the lode locations. Judg

OD OF LIMITATION HAS RUN.

ments for the plaintiffs were entered upon the Rev. St. § 2332 (Comp. St. § 4631), provid- verdicts and motions by the defendant for a ing that when applicants for a patent for a min-new trial were overruled. Upon writs of ering claim have held and worked the claim for the local period of limitation for mining claims, evidence of such possession and working shall establish the right to the patent in the absence of adverse claim, does not dispense with the necessity of a discovery though the period of limitations has run.

On Writs of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit. Two suits by George A. Cole and others against Joseph Ralph. A judgment for plaintiffs in each suit was reversed by the Circuit Court of Appeals (249 Fed. 81, 161 C. C. A.

ror the Circuit Court of Appeals reversed the judgments and ordered a new trial, one judge dissenting. Ralph v. Cole, 249 Fed. 81, 161 C. C. A. 133. The cases are here upon writs of certiorari which were granted because the ground upon which the Circuit Court of Appeals put its decision-the construction and application of some of the mineral land laws -was deemed of general interest in the regions where those laws are operative.

The defendant does not rely entirely upon the ground of decision advanced by the Cir

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cuit Court of Appeals, but urges at length

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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