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A selection of leading cases in equity, with notes (Volume 1) online

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far exceeded the sum he had ori-
ginally covenanted to lay out, and



also signing a memorandum wliicli
the lessor drew up, whereby he
agreed to pay an entire rent of 80Z.
a year for the consolidated pro-
perty. It was held by Sir James
Wigram, V.-C, that the extension
of the house into the meadow, by
the plaintiff, with the concurrence
of his landlord, was evidence of,
and was a sufficient consideration
for, a contract to demise the mea-
dow ; that the act of building part
of the house upon the meadow, if
it was evidence of any right, was
evidence of a right which affected
the entire tenement, and that it
could not be restricted so as to affect
only the part of the meadow actu-
ally built upon ; that the extension
of the house, j)art of the demised
premises, into the meadow and
the increase and consolidation of
the rents, were evidence that the
meadow was to be held for the same
term as the demised premises; and
that the doctrine with regard to the
mutuality of contracts had no ap-
j)lication to such a case. " The
first point," obseiTed his Honor,
" suggested rather than pressed,
was, that, the plaintiff being in pos-
session of the meadow as tenant
from year to year, the exjDenditure
upon the property did not miequi-
vocall}' show that it had proceeded
upon some antecedent contract with
the landlord. Undoubtedly, it is,
in general, necessary that an act of
part performance, which is to take
a case out of the Statute of Frauds,
should unequivocally demonstrate
the existence of some contract to

which it must be referred : Mor-
phett v. Jones, 1 Swanst. 172. But
if the act of extending the house,
in which the tenant had an interest
for a term of years, into the meadow,
with the landlord's consent, be not
evidence of a contract between
them, I know not what act on the
part of a tenant in possession of
property could possibly be so con-
sidered. Circumstances much less
stringent have been deemed suffi-
cient (1 Sugd. V. & P. p. 20, 10th
ed.) ; and if the case of Miindi/ v.
Jollife (5 My. & Cr. 167), in which
Lord Cottenham differed from the
Vice-Chancellor of England, may
be considered as correctly illus-
trating the rule of this Court as to
the acts of part performance which
will take a case out of the statute,
the alterations of the garden-fence
and making the plantation in the
meadow, would be sufficient. In
that case, the expenditure by the
tenant was in di'aining the land,
and the Court decreed Mr. JoUiffe
to grant him a lease upon the pro-
mise of which it was said the ex-
I)ense of draining had been in-

" It was next said, that the jus-
tice of the case would be satisfied
by giving to the plaintiff so much
of the meadow as the house stands
upon, which the defendant offered
to do. To the suggestion, that
justice would be satisfied by doing
this, I cannot accede ; for some
additional portion of the meadow
would be essential to the enjoy-
ment of the house. The rules of



this Court, however, will not per-
mit me so to consider the case. If
the acts done by the plaintiff are
to be considered acts of part per-
formance, taking the case out of
the operation of the statute, the
rules of the Court entitle him to
prove the entii-e agreement which
the acts relied upon were intended
partly to perform. The act of
building part of the house upon
the meadow was an act affecting
the whole tenement— namel}^ the
meadow — and not that part of it
only upon which the house stands.
The case of Muncly v. Jolliffe, will
apply also to this part of the pre-
sent case." See, also, JIoicc v.
Hall, 4 I. E. Eq. 242.

And the result is the same where
the outlay in part performance of
an agreement witli the tenant is
made by his sub-lessee with the
assent and approval of the land-
lord : Will'tavis v. Evans, 19 L.
K. Eq. 547 ; and see Ih. 557,
comments on Frame v. Dairsoii,
14 Ves. 386.

In Parker v. Smith (1 Coll.
608), the landlord of a coal set,
having four tenants in partnership
together holding under a "lease,
several years of which were unex-
pired, entered into a parol agree-
ment with aU four upon the sur-
render of the old lease to grant a
new one to two of the partners — the
plaintiffs,— upon the terms that the
partnership should be dissolved,
and that the plaintiffs should re-
lease the two retiring partners from
all liability. The dissolution and

release so agreed upon took place,
by which the plaintiffs took upon
themselves the liability which had
before been shared by the four.
Sir J. L. K. Bruce, V.-C, decreed
specific perforaiance of the agree-
ment. " It is," said his Honor,
" part of the entii'e agreement that
the dissolution and release shall
take place. They do take place.
It is impossible to treat these acts
otherwise than as acts of part per-
fonnance, taking the case out of
the Statute of Frauds."

It must, however, be borne in
mind, " that part performance, to
take a case out of the SUitute of
I'rauds, always supposes a com-
pleted agi'eement. There can be
no part performance where there
is no completed agi'eement m ex-
istence. It must be obligatory,
and what is done must be under
the terms of the agreement, and
by force of the agreement." Per
Lord BroiKjham in LaiJ}! Thynnc
v. Earl of Ghngall, 2 H. L. Cas.
158; In re Thomas Ryan, 3 I. l\.
Eq. 238.

The terms, moreover, of the
contract must be certain and un-
ambiguous : Clinan v. Cooke, 1 S.
it L. 22 ; Boanlman v. Mostyn,
6 Ves. 467, 470 ; Symondson v.
Tireed, Prec. Ch. 374 ; Foster v.
Hale, 3 Ves. 712, 713 ; Savage v.
Carroll, 1 Ball .t B. 265, 551 ;
S. C, 2 Ball .t B. 451 ; Tooke v.
Medlieott, 1 Ball it B. 404 ; Lind-
say V. Linch, 2 S. \- L. 1 ; Rey-
nolds V. Warinji, 1 Vou. 346; Price
y.Asshetvn, 1 Y. .t C. Exch. C. 441.



Where, however, the evidence of
the parties as to the terms of the
contractis in some respects contra-
dictory, specific performance will
be decreed, if the Court, by di-
recting inquiries, can collect what
were the terms about which the
parties differ. Thus, in Mortimer
V. Orchard, 2 Ves. jun. 243, where
the plaintiff had built a house, his
witness proved an agreement dif-
ferent fi-om that set up by the bill,
and tlic answers stated an agree-
ment different from both. Lord
Loughborough, C, said, that in
strictness, the bill ought to be
dismissed, but, on account of the
expenditure, decreed specific per-
formance, according to the agree-
ment admitted by the answers.

So, likewise, " in a case that
came from Malton, in York-
shire, possession having been
deliyered in pursuance of a
parol agreement, and a dispute
arising upon the terms of the
agreement. Lord Thurlow thought
proper to send it to the Master,
upon the ground of the posses-
sion being delivered, to inquii'e
what the agreement was. The
difficulty there, was in ascertain-
ing that. The Master decided as
well as he could ; and then the
cause came before Lord Rosslyn,
upon fui'ther directions, who cer-
tainl}' seemed to think Lord Thur-
loiv had gone a great way, and
either drove them to a compromise,
or refused to go on with the decree
upon the principle on which it was
made. — Per Lord£'Wo«, in Board-

man V. Mostyn, 6 Ves. 470, in
which case his Lordship also ob-
served, "that if it was res Integra,
the soundest rule would be, that, if
the party leaves it uncertain, the
agreement is not taken out of the
statute sufficiently to admit of its
being enforced." See, also, Miindij
v. JolUffe, 5 My. k Cr. 177, in
wliich case Lord Cottcnham says,
" Courts of equity exercise their
jurisdiction in decreeing specific
l^erformance of verbal agreements,
where there has been part per-
fonnance, for the piu^pose of pre-
venting the great injustice which
would arise from permitting a
party to escape from the engage-
ments he has entered into, upon
the ground of the Statute of
Frauds, after the other party to
the contract has, upon the faith
of such engagement, expended his
mone}^ or otherwise acted, in exe-
cution of the agreement. Under
such cii'cumstances, the Court will
struggle to prevent such injustice
from being effected ; and with that
object it has at the hearing, when
the plaintiff has failed to establish
the precise terms of the agreement,
endeavoured to collect, if it can,
what the terms of it really were."
(See, also. Laird v. The Birkenhead
Railway Company, Johns. 500 ;
Wilson V. The West Hartlepool
Railway Company, 34 Beav. 187 ;
S. G.,2 De G. Jo. & Sm. 475 ;
Oxford V. Provand, 2 L. R. P. C.
135, 148; Baumann v. James, 8
L. R. Ch. App. 508.)

But if after all the evidence



that can be got, any mateiial
terms of the agreement are doubt-
ful, the Court can make no de-
cree (Clinan v. Cooke, 1 S. & L.
22; Lord Ormond v. Anderson,
2 Ba. & B. 237; Wieeler v.
D'Esterre, 2 Dow, 359 ; Blore v.
Sutton, 3 Mer. 237; Monro v.
Taylor, 8 Hare, 51 ; 3 Mac. Sc G.
713 ; Tatham v. Piatt, 9 Hare,
660; Stuart v. The London and
North Western Railicay Company,

1 De G. Mac. & G. 721 ; Taylor
V. Portington, 7 De G. Mac. & G.
388). But it is not necessary to
prove terms of the agi'eement
which are immaterial, as, for in-
stance, to prove a stipulation b}' an
intended lessee to pay taxes and
make necessary repairs to which,
in the absence of such stipulation,
he would have been liable (Gregory
V. Mighell, 18 Yes. 328), or to do
certain acts which ha^'e already
been done : Mundy v. JolUffc, 5
My. & Co. 167, 176.

Companies and corporations are
bound equally with iudividu-ds by
acts of part performance : Ullson
V. The West Hartlepool Railnay
Company, 10 Jur. N. S. 1064 ; 11
Jur. N. S. 124, 13 W. E. (M. II.)
4 ; lb. (L. J.) 361 ; 34 Beav. 187 ;

2 De G. Jo. & Sm. 475 ; Steer en's
Hospital V. Dyas, 15 Ir. Ch. Bep.

An agreement by a corporation
to let land upon lease, although
not mider their seal, will be en-
forced against the corporation,
Avhere there have been acts of part
performance on the part of the in-

tended lessee : Crookx. Corporation
of Seaford, 6 L. B. Ch. App. 551.

Sales by auction of land {Blag-
den V. Bradhear, 12 Ves. 472),
except where made under a de-
cree {Attorney-General v. Day, 1
Ves. 218), and in bankruptcy {Ex
parte Ciitts, 3 Deac. 267) are
within the Statute of Frauds (29
Car. 2, c. 3). A puixhaser, there-
fore, at an ordinary auction is not
bound, unless there is some agree-
ment in writing.

"Where, however, a purchaser
of land at an auction takes pos-
session of a lot knocked down to
him, and cuts down crops, which
he coidd only do in the character
of purchaser, it will be held to be
a part performance of the verbal
contract entered into when he bid
for the lot in the auction room,
and specific performance wiU be
decreed against him {Bnckmaster
V. Harrop, 13 Ves. 474); but where
a person has pui'chased two or
more lots sold sejiaratelv at a sale
by auction, acts of part perfonn-
ance with regard to one lot will
not make good an agreement with
regard to the other lots. Ih.

It has been said in a recent
case, that the doctrine of part
performance of a parol agi'eemeiit
is not to be extended by the
•Court, and that it is inapplicable
to the case where a trustee has a
power to lease, at the request, in
n-riting, of a married woman,
which has not been made. Sec
Ph.llips V. Edwards, 33 Beav. 440.

This, however, is a mere die-



turn, as there was no act of part
performance in tlie case.

It has been laid down, however,
as a general rule that a parol agree-
ment to sell or grant a lease en-
tered into by a tenant for life with
a leasing power, coupled with a
part performance b}' the piu'chaser
or lessee during the life of the
tenant for life, will not bmd the
remainderman, unless he ac-
quiesced in the part performance
and was aware of the agi-eement
{Blore V. Sutton, 3 Mer. 237;
Morgan v. Milman, 3 De G. M. &
G. 24, 33 ; Lo2ve v. Stcift, 2 Ball.
& B. 529 ; O'Fay v. Burke, 8 I.
Cli. R. 225), or unless, after the
death of the tenant for life, the
remainderman lies b}^ and allows
the pm'chaser or lessee to expend
money in improving the estate
(Stiles V. Cou-per, 3 Atk. 692) ; and
the law upon this subject is not
affected by the Leases and Sales
of Settled Estates Act (19 & 20
Vict. c. 120), nor b}^ the Landed
Property (Ireland) Improvement
Act, 1860 (23 & 24 Vict. c. 153) :
Hope V. Lord Cloncurry, 8 I. E.
Eq. 555.

A family arrangement for the
division of land, although only
verbal, has been carried out where
there were acts of part perform-
ance by the parties interested,
holding and dealing with the land
in accordance with the terms of
the arrangement : Williams v.
WiUiams, 2 Dr. & Sm. 378; 2 L.
R. Ch. App. 294 ; Cood v. Good,
33 Beav. 314.

Although it is clear that where
a parol contract is made in con-
sideration of marriage, the subse-
quent marriage will not be an act
of part performance so as to take
the case out of the Statute of
Frauds, inasmuch as the statute
expressly provides that a contract
in consideration of marriage shall
not be binding unless it be in
writing (Dundas v. Dutens, 1 Yes.
Jun. 196 ; Lassence v. Tierney,
1 Mac. & G. 551 ; Warden v.
Jones, 23 Beav. 487, 2 De G. &
Jo. 76 ; Cooper v. Wormald, 7
W. R. (M. R) 402; Caton v.
Caton, 1 Law Rep. Ch. App.
137, affirmed 2 L. R. Ho. Lo.
127, reversing >S'. C. 13 W. R.
(V. C. S.) 801, 34 L. J. (Ch.)
564; M'Askie v. M'Cay, 2 I. R.
Eq. 447) ; nevertheless a parol
contract may be taken out of the
statute b}' acts of i:)art performance
independently of the marriage.
Thus, in Sur combe v. Pinniger, 3
De G. M. & G. 571, a father
previous to the marriage of his
daughter told her intended hus-
band that he meant to give cer-
tain leasehold property to them
on their marriage. After the mar-
riage he gave up possession of the
property to the husband, to whom
he directed the tenants to pay the
rents, and handed to the husband
the title deeds. The husband
also expended money upon the
propert}'. It was held by the
Lords Justices, that there had
been sufficient part performance
'of the parol contract to take the



case out of tlie Statute of Frauds.
" In this case," said Lord Justice
Turner, "there is a part perform-
ance by the delivering up of pos-
session to the husband — a fact
which has been alwa^^s held to
change the situations and rights
of the parties, and there has been
considerable expenditure by him
on the property. There is, there-
fore, here what was wanting in
Lassence v. Tierney, viz. acts of
part performance, besides the
marriage. The difficulty in these
cases is that the Statute of Frauds
presents an obstacle to suing upon
the agreement. But it has been
held, in many cases, that if there
be a written agreement after mar-
riage in pursuance of a parol
agreement before marriage, this
takes the case out of the statute,
so does also part performance."
See also Taylor v. Beech, 1 Ves.
297; Barkworthv. Younrj, 4 Drew.
1 ; Cooper v. Wormald, 27 Beav.
266 ; Ungley v. Unglcy, 4 Ch. D.

Although marriage is not a
part performance of a contract
within the Statute of Frauds,
nevertheless where a person mar-
ries upon the faith of representa-
tions or promises made to him
for the purpose of influencing his
conduct with reference to the
marriage, the person making such
representations or promises will be
compelled in equity to make them
good, not only at the instance of
the person to whom they were
made {Ilammersley v. De Bid, 12

C. & F. 45 ; S. C, nom. Dc Bid v.
Thompson, 3 Beav. 469 ; Payne v.
Mortimer, 1 Giff. 118 ; 4 De G.
& Jo. 447 ; Alt v. Alt, 4 Gift". 84 ;
and see Loffus v. Maw, 3 Gitf.
592 ; Coverdale v. Eastuood, 15
L. Ft. Eq. 121 ; Coles v. Pilking-
ton, 19 L. K. Eq. 174) ; but also
at the instance of the issue of the
man-iage {Walford v. Gray, 13 W.
B. (V. C. S.) 335; /^. (L. C.)
761). See also Skidmore v. Brad-
ford, 8 L. R. Eq. 134.

The representation or promise
must, however, be clear and abso-
lute {Randall v. Morgan, 12* Ves.
67 ; and see Maunsdl v. White, 1
Jo. ct L. 567 ; Loxley v. Heath, 27
Beav. 523; 1 De G. F. & Jo.
480 ; Kay v. Cook, 3 Sm. cl Gift'.
407 ; Jameson v. Stein, 21 Beav.
5) ; and where it is contained in a
lost document jiarol evidence is
admissible as to its contents :
Gikhrist v. Herbert, 26 L. T.
Bep. (N. S.) 381.

A parol promise, moreover,
made prior to a marriage cannot
be enforced if the marriage did
not take place by reason of any
reliance on such promise, or if it
was not acted on as a reason and
consideration for the marriage :
{Ooldieiitt V. Tounsend, 28 Beav.
445 ; Jameson v. Stein, 21 Beav.
5) ; and a fortiori where it was
waived by the parties: Caton v.
Caton, 2 L. B. llo. Lo. li}7,

And where the representation
is merely of what a party intends
to do, without pledging liimself



to its performance, or where the
promise is of such a character
that the person making it refuses
to enter into a contract, giving
the ppxty to whom it is made to
understand that he must rely on
or trust to his honour, it has been
hehl, though with great conflict of
opinion, that the Court of Chan-
cery cannot enforce ihe perform-
ance of the representation or pro-
mise : Maiinsell v. Wldte, 1 Jo. &
L. 539; 4 Ho. Lo. Ca. 1039;
Jorden v. Money, 5 Ho. Lo. Ca.
185 ; S. C, nom. Money y. Jorden,
15 Beav. 372 ; 2 De G. Mac. &
G. 318. See the remarks on this
case in Loffm v. Maw, 3 GifF.
592, 604 ; Prole v. Soady, 2 Giff.
1 ; M'Askiew. M'Cay, 2 I. R. Eq.
447 ; Citizens' Bank of Louisiana
V. First National Bank of New
Orleans, 6 L. R. Ho. Lo. 352.

Althoiigh a written contract
cannot be varied by parol, a Court
of equity, when there have been
acts of part performance of the
parol variation, will decree a spe-
cific performance of the contract,
with the variation: Anon., 5 Yin.
Ab. 522, pi. 38.

A contract will be taken out of
the Statute of Frauds where the
provisions of the statute have not
been complied with, in consequence
of the fraud of the person against
whom a decree for specific per-
formance is sought : {Maxwell v.
Montacute,Vvec. Ch. 526; Walker
V. Walker, 2 Atk. 98 ; Joynes v.
Statham, 3 Atk. 389; Whitchurch
V. Bcvis, 2 Bro. C. C. 565 ; Lin-

coln V. Wright, 4 De G. & Jo. 16,
22 ; Booth v. Turle, 16 L. R. Eq.
182 ;) and, therefore, in the prin-
cipal case, even had there been no
acts of part performance of the
agreement, if, as was alleged, the
execution of the lease had been
prevented by indirect and unfair
means, there might have been suf-
ficient grounds for the Court to have
decreed a specific performance.

Lord North appears to have
tliought, although he never actu-
ally so decided, that, where it
was part of the agreement that it
should be put into writing, the
agreement would be taken out of
the Statute of Frauds. See Hollis
V. Whiteing or Edwards, 1 Vern.
151, 159 ; Leak v. Morrice, 2 Ch.
Ca. 135. But Lord Thurlow, in
Whitchurch v. Bevis, where this
doctrine was urged at the Bar,
said, ' ' I take that to be a single
case, and to have been overruled.
If you interpose the medium oj
fraud, by which the agreement is
prevented from being put into
writing, I agree to it ; otherwise,
I take Lord North's doctiine,
* that if it had been laid in the
bill that it was part of the agree-
ment that it should be put into
writmg, it would have done,' to be
a single decision, and contradicted,
though not expressl}', yet by the
current of opinions."

The principle that a statute
shall not be made an instrument
for covering a fraud has been
illustrated by cases in which
Courts of equity have not allowed



parties to profit where they have
fraudulently induced another party
either not to make or to refrain
from altering wills, the mode of
executing which was formerly re-
gulated by the 5th & 19th sections
of the Statute of Frauds (29 Car.
2, c. 3), and is now by the AVills
Act (1 Vict. c. 26).

Thus, although a testator after
devising an estate to another, leave
a declaration of trust not executed
in the mode required by the statute,
the devisee will take beneficially,
and may plead the statute by
way of answer to the declaration
{Adlington v. Cann, 3 Atk. 151) :
nevertheless, where a person,
knowing that a testator in making
a disposition in his favoiu" intends
it to be applied for pmi)oses other
than for his own benefit, either
expressly promises or by silence
implies, that he will carry the tes-
tator's intentions into efi'ect, and
the property is left to him upon
the faith of that promise or un-
dertaking, it is in efi'ect a trust,
and in such case the Court will
not allow the devisee to set up
the Statute of Frauds (29 Car. 2,
c. 3), or, rather, the Statute of
AViUs (1 Vict. c. 2G), by which
the Statute of Frauds is now in
this respect superseded : Jones v.
Badlcij, 3 L. R. Ch. App. 364, per
Lord Cairns, L. C. ; and see Wall-
grave V. Tehhs, 2 K. & J. 313.

Thus, if a father devises an
estate to his youngest son, who
promises that if the estate be de-
vised to him he will pay 10,000/.

to the eldest son, the Court, upon
proceedings being taken by the
latter, would compel the former
to discover whether that passed
in parol ; and, if he acknowledged
it, even prapng the benefit of the
Statute, he would be a trustee to
the amount of 10,000/.; per Lord
Eldon in Stickland v. Aldr'idgc,
9 Ves. 519.

Upon the same principle, if the
o^^•ner of an estate sufiered it to
descend, being informed by the
heir that if it were pennitted to
descend, he would make a provision
for liis mother, wife, or other per-
son, there is no doubt the Court
would compel the heir to discover
whether he did make such promise,
and would hold him to be a trus-
tee to the extent of the pronsions
that he agi'eed to make: Stickland
V. Aldridge, 9 Ves. 519. See also
Jhinis V. JlorueU, Gilb. Eq. Kep.
11 ; Seilack v. Harris, 5 Vin. Ab.
521, pi. 31 ; M'Cormick v. Grogan,
4 L. R. Ho. Lo. 88.

It may, indeed, be laid down as
a general rule that where a testa-
tor devises or bequeatlis real or
personal property {Kingsnian v.
Kingsman, 2 Vem. 559 ; Oldam
V. TAchford, 2 Vern. 506; Tlnpni
V. Tln/ini, 1 Veru. 296), to one
who appears upon the face of
the will to take beneficially, but
who has agi'eed with the testator
that he will hold a part {Stickland
\. Aldridge, 9 Ves.519), or even the
whole {'riiifnn v. Thijnn, 1 Vern.
296), of the property so devised
or bequeathed to him upon a law-



fill trust in favour of some other
j)erson or persons, he will, to the
extent of his engagement, be held
a trustee for such person or per-
sons : licech v. Keiniigatc, Amb.
67 ; S. C. 1 Ves. 123 ; Devenish v.
Baincs, Prec. Cli. 3; Chamberlaine
V. CJuimherlaine, 2 Eq. Ca. Ab.
43; Nab v. Nab, 10 Mod. 404;
Strode v. Winchester, 1 Dick. 397 ;
Marriot v. Marriot, 1 Stra. G72 ;
Barrow v. Greenough, 3 Ves. 152 ;
Gray v. Gray, 11 Ir. Ch. Eep. 218 ;
Attorney-General v. Dillon, 13 Ir.
Ch. Rep. 127 ; Irvine v. Sullivan,
8 L. E. Eq. 673 ; Norris v. Fra-
zer, 15 L. R. Eq. 318; M'Cor-
mick V. Grogan, 4 L. R. Eq. 88.

In thus acting the Coui't does
not violate the spirit of the
statutes ; but for the same end,
namely the prevention of fraud, it
engrafts the trusts on the devise
by admitting evidence which the
statutes would in terms exclude,
in order to prevent a devisee from
applying property to a purpose
foreign to that for which he un-
dertook to hold it : Jones v. Bad-
ley, 3 L. R. Ch. App. 364.

In these cases it will be ob-
served that persons making a
promise to do something in itself
not illegal, for a tliird party, are
compelled to make good their
promise by means of the Com-t
holding them to be trustees to the
extent of the promise.

Where, however, persons to
whom property is devised upon a
secret trust or understanding to
compass what is illegal, as, for

instance, to hold realty or pro-
perty savouring of realty for the
purposes of a charity in evasion
of what is commonly called the
Mortmain Act (9 Geo. 2, c. 36),
there will be a resulting trust for
the heir at law, or next of kin,
according to the nature of the
property, who may compel the
devisee to disclose any promise
he may have made to hold the
realty or any part of it for the

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