Imagens das páginas

In the last case cited this court said of
the effect of the decision in the Bolin Case
as to a wrong of this nature (one alleged
to have been characterized by wantonness
and wilfulness): "There is really no ele-
ment of inadvertence, which is a necessary
element of negligence, and hence the term
'gross negligence', as applicable to this
class of wrongs, is inaccurate. The constitutes gross negligence." The latter sug-
clusion is that when this kind of a wrong gests necessarily intent, either actual or
is charged, as in the present case, though it constructive, to cause injury, or "conduct
be called 'gross negligence,' it does not evincing a total disregard for the safety
logically include ordinary negligence any of persons or property."
more than a charge of ordinary negligence
includes intentional wrong."

ficient degree of intent at least to be incon- N. W. 808, it was said that "no degree of
sistent with inadvertence."
mere carelessness or inadvertence consti-
tutes gross negligence or wilful miscon-
duct." And in Watermolen v. Fox River
Electric R. & Power Co. 110 Wis. 153, 85
N. W. 663, that "it is obvious that no de-
gree of mere carelessness or inadvertence,
however remote from the care customarily
used, either by the ordinary careful man,
or by the exceptionally careless one, con-

The doctrine above indicated is not sup-
ported by authorities universally, though

In Decker v. McSorley, 116 Wis. 643, 93 the want of harmony will be generally

defendant's railroad, and the defendant, by its servants, so carelessly, negligently, and im properly ran, conducted, and directed the lo comotive and train of the defendant as that the locomotive struck the plaintiff's horse with great force and violence, and killed it. The court held that proof of gross negligence would support this allegation, as it was a matter of common practice to allow plaintiff, who has simply averred negligence, and there is proof of contributory negligence on his part, to prove gross negligence in the defendant, and recover under such declaration.

In an action on the case against a railroad company for killing animals of the plaintiff, where a count in the declaration alleged that the animals were killed by the mere negligence and carelessness of the agents and servants of the defendants in operating their engines and cars on their railroad, it was held that gross negligence might be proved, as it was not necessary to aver it, but only to aver that the act was negligently and carelessly performed; and when the right of recovery depends upon the degree, as for wilful or gross negligence, it is a matter of proof, and not of pleading. Chicago, B. & Q. R. Co. v. Carter, 20 Ill. 390; Approved and Followed in Chi cago, B. & Q. R. Co. v. Mehlsack, 44 Ill. App. 124.

In Pennsylvania Co. v. Krick, 47 Ind. 368. it was insisted by the defendant that, as the complaint only charged ordinary negligence. evidence could not be given under it of gross negligence, and that a verdict founded or found on such evidence was wrong; but the court held that this was not so; that a charge of negligence by the plaintiff against the defen ant was broad enough to admit proof of any and all degrees of negligence, if any such degrees of negligence in law existed; that, while negligence should be charged in the complaint. it was the province of the evidence to show in what it consisted.

In Ft. Wayne v. De Witt, 47 Ind. 396, the court, in holding that the complaint, although containing the affirmative allegation that the injury resulted without the fault of the plain tiff, did not state facts showing the negligence of the defendant, and that the existence of such negligence must be averred, said: "But it is not necessary to set out the facts con stituting such negligence. It is sufficient, when the act complained of is properly stated,

to aver generally that such act was negligently
done; and, under this general averment, proof
of any and every degree of negligence is ad-
missible." Ohio & M. R. Co. v. Selby, 47 Ind.
471, 17 Am. Rep. 719, to the same effect.

In an action against a railroad company
the complaint. after alleging a contract to
'carry the mails, by which contract the rail-
road company agreed with the government to
carry a mail agent, and that the plaintiff, be-
ing a mail agent, became and was a passenger
in the defendant's cars, then stated a bodily
injury received by plaintiff, by the running
of the car containing the plaintiff off the track
and breaking it, through defectiveness of ma-
chinery, want of care, skill, etc. A demurrer
to the complaint was overruled, and such rul-
ing affirmed by the general term of the su-
preme court, and, in affirming that judgment,
the court of appeals said: "Degrees of negli
gence are matters of proof, and not of aver-
ment. The allegations of negligence in this
complaint are sufficient, whether the defend-
ant is liable for ordinary, or only for gross,
negligence." Nolton v. Western R. Corp. 15
N. Y. 444, 69 Am. Dec. 628.

Where two paragraphs in a petition in an action for an injury caused by the alleged fault of the defendant relate to the same occurrence and injury, and it is expressly so alleged, and the only difference between them is that the facts are set out more in detail in the one than in the other, and gross negligence is alleged in one and not alleged in the other, the plaintiff should be required to elect which of the paragraphs he will prosecute, as the evidence required to support one would support the other; and the allegation of negligence is sufficient to entitle the plaintiff to recover in an action like this for any degree of culpable negligence that may be established by the evidence. Muldraugh's Hill, C. & C. Turnp. Co. v. Maupin, 79 Ky. 101.

Where a petition in an action against a railroad company for an injury to the plaintiff stated that the action of the conductor in charge of the train, and that of the defendant in regard to operating it. were negligent and careless, and the defendant was guilty of negligence; and that the injury to the plaintiff occurred by reason of the negligence and want of reasonable care on the part of the defendant, and without any fault of the plaintiff,it was held not to be an action under the


found to grow out of the fact that the doctrine of comparative negligence prevails in some jurisdictions and not in others. Authorities on both sides of the question are cited in Wilson v. Chippewa Valley Electric R. Co. 120 Wis. 636, 66 L. R. A. 912, 98 N. W. 536. The idea that gross négligence is inconsistent with ordinary negligence seems to be the logical result of such a distinction between the two species of wrongs as to render it impossible for the element of inadvertence to be common to both. It were better if the term "gross negligence," as suggesting inadvertence, had never been used in speaking of a wrong having the element of intent, actual or constructive, to injure. The supreme court of Indiana, in treating this subject in Louisville, N. A.

statute for a killing by wilful neglect, as, if it were, it would have been necessary, inas much as the statute' creates and defines the injury, to allege that the negligence was wilful; but it was only an action at common law for negligence. That in such case the degree, whether wilful, gross, or ordinary, need not be stated, as it is a matter of proof, and not of averment. Louisville & N. R. Co. v. Mitchell, 87 Ky. 327, 8 S. W. 706, Citing Nolton v. Western R. Corp. 15 N. Y. 444, 69 Am. Dec. 623 Muldraugh's Hill, C. & C. Turnp. Co. v. Maupin, 79 Ky. 101,-supra.

In Louisville & N. R. Co. v. Rains, 15 Ky. L. Rep. 423, 23 S. W. 505, the court said that it had held, and that such was the law, that, under the general allegation of negligence in common-law actions for injuries, you may establish the degree of proof; and it is not necessary to allege this degree, whether gross or ordinary, in order to make a cause of action, the averment of negligence being sufficient.

In an action against an express company for an injury inflicted upon the plaintiff by the servants of the company by driving over him a loaded express wagon, the court, after say ing that it was well settled that a master is responsible in punitive damages for the wilful act or gross negligence of his servant engaged in his business, whether he did or did not know the servant to be incompetent or disqualified for the service in which he was engaged, said further, in answer to the posi tion assumed by counsel for the defendant that the plaintiff could not recover punitive damages because not claimed in the declaration, that the position was not maintainable. as the plaintiff demanded damages for the negli gent act of the defendant, under which it was competent to show the character of the negligence, and the extent of the injury inflicted. Southern Exp. Co. v. Brown, 67 Miss. 260, 19 Am. St. Rep. 306, 7 So. 318. 8 So. 425.

& C. R. Co. v. Bryan, 107 Ind. 51, 53, 7 N. E. 807, 808, used this language: "To constitute a wilful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of. It involves conduct which is quasi criminal. The words 'wilful' and 'negligent,' used in conjunction, have not always been employed with strict regard for accuracy of expression. To say that an injury resulted from the negligent and wilful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions. It is to affirm in one breath that an act was done through in

In an action against a railroad company for injury sustained by the plaintiff, it was held that where the complaint, although stating the occurrence with somewhat unnecessary particularity, and imputing negligence in one respect in which it might be said it could not be sus tained, also contained a general allegation that the occurrence happened and the injuries of the plaintiff were received by him through the neg ligence and want of care of the defendants, and not through any want of care, neglect, or de

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fault on his part,-this is a sufficient allega-. tion to include any negligence, and other allegations which are mere surplusage will not have the effect of excluding the facts from the consideration of the court or jury. Edgerton v. New York & H. R. Co. 35 Barb. 389.

In Shumacher v. St. Louis & S. F. R. Co. 39 Fed. 174, which was an action brought against a railroad company by an employee thereof to recover for an injury sustained while in the employ of the company, the complaint charged that the injury was occasioned by the negligent act of the defendant, and it was held that, under such a complaint, any degree of negligence might be proved, and a recovery had therefor; that, when the injury is charged to have been occasioned by reason of the negligent act, the defendant must take notice that the plaintiff can rely upon his right to prove negligence in any degree.

In an action against a railroad company the court said that, as a matter of evidence, proof that the misconduct of the defendant was such as to evince an utter disregard of consequences, so as to imply a willingness to inflict the injury complained of, may tend to establish wilfulness on the part of the defendant; but, to authorize a recovery on such evidence, there must be suitable allegations in the complaint to which it is applicable. Pennsylvania Co. v. Sinclair, 62 Ind. 301, 30 Am. Rep. 185.

For an injury wilfully inflicted a recovery may be had, though the person injured did not use ordinary care to avoid the injury; but evidence of negligence of the defendant causing the injury, so gross as to imply a disregard of consequences, or a willingness to inflict the injury, cannot be treated as evidence authorizing a recovery by the plaintiff, who did not use ordinary care to avoid the injury, where the allegations of his pleading do not amount to a charge that his injury was purposely or wilfully caused by the defendant. Proof of recklessness or gross negligence on the part of the defendant, upon such an issue, cannot avail more against the defendant than would any satisfactory proof of the defendant's want of ordinary care. Pennsylvania Co. v. Smith, 98 Ind. 42.

Where the first count of a declaration alleged that the defendant carelessly, wrongfully, and unlawfully drove a team of horses attached to a vehicle over plaintiff with great force and violence, whereby he was knocked

degree as to become wilfulness. The doctrine of comparative negligence does not obtain recognition in this state and when wilfulness is the essential element in the act or conduct of the party charged with the wrong, the case ceases to be one of negligence. Wilfulness and negligence are the opposites of each other; In Cleveland, C. C. & St. L. R. Co. v. the former signifying the presence of intenMiller, 149 Ind. 490-501, 49 N. E. 445, tion, and the latter its absence." To the 449, that court said: "The two terms ['neg- same effect are Parker v. Pennsylvania Co. ligence' and 'wilfulness'] are incompatible. | 134 Ind. 673, 23 L. R. A. 552, 34 N. E. 504; Negligence arises from inattention, thought- Highland Ave. & Belt R. Co. v. Winn, 93 lessness, or heedlessness, while wilfulness Ala. 306, 9 So. 509; Louisville & N R. Co. cannot exist without purpose or design. v. Johnston, 79 Ala. 436; Levin v. MemNo purpose or design can be said to exist phis & C. R. Co. 109 Ala. 332, 19 So. 395; where the injurious act results from neg- Wabash R. Co. v. Speer, 156 Ill. 244, 40 N. ligence, and negligence cannot be of such a E. 835; Ruter v. Foy, 46 Iowa, 132; Mat

attention, thoughtlessly, heedlessly, and at the same time purposely and by design. . . It is only necessary to say that the distinction between cases falling within the one class or the other is clear and well defined, and cases in neither class are aided by importing into them attributes pertaining to the other."

upon the ground and grievously hurt, the defendant cannot be called upon to come into court and meet a charge of wilful, wanton, or reckless negligence; and a charge that, if the plaintiff neglected to use ordinary care, and was injured by the defendant, he could not recover, even though the jury should find from the evidence that the defendant was also neg ligent, unless they should find from the evidence that the defendant saw the plaintiff in or approaching a place of danger, and knew. or had good reason to believe, that he was not aware of danger, and saw him in such a posi tion of danger in time to prevent, by using ordinary care, the injury to him, and did not make use of care for that purpose,-was outside of the issues made by the pleadings. Den man v. Johnston, 85 Mich. 387, 48 N. W. 565.

In an action against a railroad company the complaint simply charged negligence, and on appeal from a judgment of nonsuit at the trial the court held that the nonsuit was correct, as the evidence showed that the plain tiff was guilty of contributory negligence. The plaintiff then claimed that there was evidence in the case sufficient to show a case of wilful intent to injure, or that reckless or wanton disregard on the part of defendant's employees of the plaintiff's right and safety which is deemed equivalent to an intent to in jure, and might be called a constructive intent, and which has been inaccurately termed gross negligence; but the court said, with re gard to this claim, that it was sufficient to say that no such cause of action was stated. or attempted to be stated, in the complaint. which simply charged negligence; that if wil. ful misconduct was claimed, or a wanton and reckless act equivalent in law to wilful mis conduct, the cause of action was a different one from a cause of action founded upon negligence simply, and that the defendant was en titled to know what the cause of action was upon which the plaintiff relied. McClellan v. Chippewa Valley Electric R. Co. 110 Wis. 326, 85 N. W. 1018.

V. Under statute or ordinance.

A statute of Kentucky in its first two sections provides for the maintaining of actions for the destruction of the life of persons or stock through the negligence or carlessness of agents or servants of railroad companies.

The 3d section provides "that, if the life of any person or persons is lost or destroyed by the wilful neglect of another person or persons, company or companies, corporation or corporations, their agents or servants. then the personal representative of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover punitive damages for the loss or destruction of the life aforesaid." It will be noticed that the statute makes use of the term "wilful neglect" and, as has been seen, the courts of Indiana have invariably held that there can be no such thing, as the two words are of exactly opposite meaning. In Chiles v. Drake, 2 Met. (Ky.) 146, 74 Am. Dec. 406, in an action brought by the plaintiff against the defendant for shooting her husband, where the plaintiff alleged, in the first paragraph in her petition, that the defendant had unlawfully killed her husband by shooting him with a pistol, and in the second paragraph she alleged that the defendant, by means of his wilful neglect, shot and killed her husband, the court held at under the evidence the plaintiff could not recover on the first paragraph, and her right to maintain her action was thus restricted to the last. The court had charged the jury, at the instance of the defendant, that the plaintiff could not recover if the death was accidental, not premeditated, and not produced by wilful neglect, and this was held to be correct.

In an action based upon the 3d section of the same statute, the charge in the petition being wilful negligence. it is necessary to show this degree of negligence to recover and, where the evidence fails to show any, there is no reason why a nonsuit should not be ordered. Louisville & P. Canal Co. v. Murphy, 9 Bush, 522.

In Louisville. C. & L. R. Co. v. Case, 9 Bush, 728, the court said that in actions against railroad companies, which are embraced by the provisions of both the 1st and 3d sections of the act, an averment of wilful negligence, resulting in the death of a person not an employee of the company, authorizes a recovery under either section, in case the proof warrants a recovery at all. That, if wilful neg ligence be established, punitive damages may be awarded; if mere culpable negligence, then such damages as the person injured might have recovered if death had not ensued. That as

thews v. Warner, 29 Gratt. 570, 26 Am. Rep. 396; Denman v. Johnston, 85 Mich. 387, 48 N. W. 565; Menger v. Laur (State, Menger, Prosecutor, v. Lauer) 55 N. J. L. 205, 20 L. R. A. 61, 26 Atl. 180, and 7 Am. & Eng. Enc. Law, 2d ed. p. 443.

From the foregoing it will be seen that in charging liability, either springing from the want of ordinary care or an intentional wrong, causing personal injury to one. nothing is to be gained by a multiplicity of adjectives or adverbs. When it is stated that the wrongdoer failed to exercise ordinary care in a case grounded on ordinary negligence, or that he acted wilfully in a case based on gross negligence, so called, nothing in any circumstances can be added by otherwise characterizing the wrong, ex

to railroad companies or proprietors, unless it be an employee who is killed, the two sections should be treated as one; and, when it is averred in the petition that the person killed was not an employee, and that the neg ligence was wilful, the action should be tried as an action to recover damages for personal injuries not resulting in death, except that instead of the common-law rule, by which the measure of the recovery is to be determined, the jury should be governed by the standard prescribed by the statute. That the allegation of wilful negligence necessarily includes all inferior grades, and the jury must deter mine from the proof whether the recovery is to be had, if at all, under the 1st or 3d section of the act, and then assess the damages according to the measures of recovery fixed by the provisions of the act itself. The court said, further, that they did not express a different opinion in the Murphy Case, where, the action not being against a railroad com pany, the canal company could not be held responsible under the act unless the negligence was wilful.

Where an original petition averred that the negligence was under the 1st section of the statute mentioned, and thereafter the court allowed the plaintiff to amend its petition by claiming that the injury was caused by the wilful negligence of the defendant under the 3d section of the statute, it was held that the court below erred in granting such permission, as the amended petition set up no new cause of action; and as, under the original petition, the plaintiff was entitled to no more than compensation, it was improper to allow him either to aver or prove circumstances of ag gravation growing out of the conduct of the agents and employees of the railroad company after the fatal injuries had been inflicted. Jacobs v. Louisville & N. R. Co. 10 Bush, 263.

In an action instituted against a railroad company to recover damages under the provisions of §§ 1 and 3 of said statute, the plaintiff alleged that his intestate was killed by the defendant while pursuing its business as the proprietor of a railroad, and that the death was the direct result of the wilful neg ligence of its servants and agents. It appeared in evidence that, in addition to its corporate right to construct and operate a line of railway, the railroad company had a right to own real estate and mine coal and other minerals,

cept by way of emphasis, which of course is immaterial to the liability, or the measure thereof. In confusing the two species of wrong, as if one was of the same character as the other, only greater in degree, there is liability of rendering the pleading indefinite, and leading to a fatal variance between it and the proof, and also to an inconsistent verdict.

There was an objection here to any evidence under the complaint because of uncertainty of the nature above spoken of. The theory of appellant's counsel seems to have been then, and to be still, that the charge of inadvertent conduct and of wilfulness neutralized each other, rendering the complaint insufficient to state any cause of action. We think otherwise. In a case

and that the injury complained of was occasioned by a car loaded with coal becoming detached from its fastenings when on the incline, and but a few feet from the entrance to the mine, and running down the incline, being precipitated and running against the house of the plaintiff, and killing his wife and one of his children. Plaintiff brought the action as the administrator of the deceased child. The court, after approving what was decided in Louisville, C. & L. R. Co. v. Case, 9 Bush, 728, distinguished that case from this, and held that the 1st section of the statute does not apply to the facts of this case. That, while it was true that the defendant was the proprietor of a railroad, and it was also true that deceased was not in its employ at the time he was killed, the proof also shows that the work being carried on by the defendant at the time and place the accident or killing occurred was not in its nature or character incident to or part of the regular and usual business of the proprietor of a railroad. Claxton v. Lexington & B. S. R. Co. 13 Bush, 636.

In an abstract of the decision of Rountree v. Stephens, 8 Ky. L. Rep. 433, it is said that, in an action against a railroad company to enable either the widow, or the heir or the "ersonal representative, of a decedent to recover under § 3 of the statute, it is necessary that the petition should allege, and that the proof should show, that the loss was caused by the wilful neglect of the company.

In Forkner v. Kean, 17 Ky. L. Rep. 654, 32 S. W. 265, which was an action against the receiver of a railroad company, it was held that, although the averments in the petition amount to an issue of wilful negligence, yet this would not defeat a recovery for ordinary negligence.

The result of these Kentucky cases would seem to be that by the statute referred to, under account in a petition for wilful neglect, in an action against a railroad company, a recovery may be had upon proof either of such wilful neglect or ordinary negligence; but that, under such a count of a petition in an action against a person or corporation other than a railroad company, no recovery can be had, except upon proof of what the courts by force of the statute are compelled to designate "wilful neglect."

of this kind, while it is true a charge of gross negligence will not warrant a recovery on the ground of ordinary negligence, even though accompanied by an allegation that plaintiff was in the exercise of ordi- It is considered that a charge that an nary care at the time of the occurrence act was negligently, carelessly, and wilfully complained of, it does not necessarily fol- done, or done negligently, carelessly, and in low that a charge including both elements disregard of consequences as to the perof wrongful conduct is meaningless. If sonal safety of others, though open to a very strict technical rules of pleading were motion to make more definite and certain applied it might be otherwise. Under the by removing the feature rendering it necproper rule, every reasonable intendment essary to determine by construction what is to be considered in favor of the pleading. character of wrong is relied upon, may and everything essential to the cause of ac- reasonably be said to charge gross neglition sought to be stated, reasonably infer- gence. Therefore the objection to evidence able from the language used, is to be under the complaint was properly overruldeemed as effectually pleaded as if expressed. However, since the objection directed ly alleged. Rev. Stat. 1898, § 2668; Morse attention to a probability that the pleader v. Gilman, 16 Wis. 505; Flanders v. McVic- may have intended to charge both ordinary kar, 7 Wis. 372; Horn v. Ludington, 28 negligence and gross negligence, to set Wis. 81; Merrill v. Merrill, 53 Wis. 522, forth two causes of action of a somewhat 10 N. W. 684; Miller v. Bayer, 94 Wis. inconsistent character, the court, in over123-126, 68 N. W. 869; South Bend Chilled ruling it, should have construed the Plow Co. v. George C. Cribb Co. 97 Wis. complaint, and shaped the trial accordingly. 230, 72 N. W. 749. Or as stated thus in In Wilson v. Chippewa Valley Electric R. some of the cases cited: "If the essential Co. 120 Wis. 636, 66 L. R. A. 912, 98 N. W.

See also Louisville & N. R. Co. v. Mitchell, 87 Ky. 327, 8 S. W. 706, supra, IV.

A statute of Massachusetts provided that "if, by reason of the negligence or carelessness of a corporation operating a street railway, or of the unfitness or gross negligence or carelessness of its servants or agents, while engaged in its business, the life of a passen ger, or of a person being in the exercise of due diligence and not a passenger or in the employment of such corporation, is lost, the corporation shall be liable in damages,


to be assessed with reference to the degree of culpability of said corporation, or of its servants or agents, and to be recovered in an action of tort.' In Galbraith v. West End Street R. Co. 165 Mass. 572, 43 N. E. 501, which was an action brought under the stat ute by the plaintiff, as administratrix of the estate of her husband, to recover damages for his death occasioned by injuries received by him while crossing the tracks of the defendant's railway, by the alleged gross negligence of the defendant's servants, the court instructed the jury that it was not easy to define the term "gross negligence," but, in a general way. they would have no difficulty in understanding what it meant; that it meant great carelessness, great negligence; and that they must find gross negligence on the part of the defendant's motorman, or else the action could not be maintained.

In an action to recover damages for the alleged death of the plaintiff's son, four and one half years of age, who was killed by the defendant's vicious horse while running at large in a public highway contrary to an ordinance of the city, which provided that no horse should be permitted to run at large in the city at any time, and that any person who should permit the same to run at large should be punished as therein prescribed, it was held that it was a case where the knowledge or intent of the defendant was in question, and

facts can be gathered from the pleading, or may reasonably be inferred from the allegations, it is good though such allegations be in form uncertain and incomplete."

that it was necessary for the plaintiff to show that the horse was at large with the knowledge and assent or permission of the owner, and that, therefore, the defendant could not properly be held liable under the ordinance for mere negligence. The complaint alleged that there was an ordinance of the city in force, prohibiting animals from running at large in the public streets, and also that the horse was vicious in his disposition, and known to be so by the defendant, and that the defendant negligently permitted the horse to run at large in the public streets, and that the death of the deceased was the result of such negligence. On a former appeal from a judgment for the plaintiff in the case (111 Wis. 91, 86 N. W. 554) it had been held that it was not only competent, but in fact necessary, for the plaintiff to show in some way that the horse was at large with the knowledge, assent, or permission of the owner. That it was a case where the knowledge or intent of the defendant was in question, or, perhaps, more accurately, where it was necessary to show that the act in question was not accidental. These statements of the court in the opinion delivered on the former appeal were quoted and approved by the court on the present appeal. Decker v. McSorley, 116 Wis. 643, 93 N. W. 808.

VI. Conclusion.

As stated in the beginning, the primary and chief difficulty in arriving at a correct conclusion as to the rights set forth in the title to the note is to ascertain just what meaning the ultimate courts of the several jurisdictions intend to convey by the use of the term "gross negligence." One can easily understand the distinction between a wilful injury and an injury occasioned by the negligence of the party causing it; but when the attempt is made, and so far, at least, as the particular juris

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