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11 Wend. 85 ; Jones v. Phoenix Bank,
4 Seld. 228 ; Kitchen v. Lee, 11 Paige,
107. See, as to his mere acknowledgment,
Bennett v. Calkins, 52 Conn. 1, not
amounting to a promise. In Owen v.
Long, 112 Mass. 40S, an infant's ratifica-
tion of his signing a promissory note as
surety was held binding.
2 L. R. 9 Ch. App. 414.



PART I.] SALES WITH INFANTS. 131

infant. The liquidators, on discovering the infancy, substituted
the name of the plaintiff for his, as a contributory to the com-
pany. The plaintiff then filed a bill against E., charging that he
was the real purchaser of the shares, and that the plaintiff was
not aware of that fact when he entered into the compromise with
the infant, and claiming to be indemnified by E. against all loss
in respect of the transaction. Malins, V. C, held that the plain-
tiff was entitled to be indemnified, and that he was not precluded
from maintaining the suit by the compromise with the infant.
His decision was, however, reversed on appeal, the question of
infancy having had nothing to do with the compromised suit;
and the infant having sued by his next friend, there was neither
concealment of truth nor suggestion of what was false relating to
the compromise matter ; the action having been simply brought
for a rescission of the contract, and whether the beneficial owner
was the father or the son was wholly irrelevant. The plaintiff's
bill was dismissed.

In October, 1865, C. purchased shares in a company, and had
them transferred to B. as a trustee for him, and B.'s name was
put on the register. In March, 1866, the company was ordered
to be wound up. At the time of the transfer B. was an infant,
and he did not come of age till September, 1867. In December,
1867, B.'s name was settled on the list of contributories ; and in
January, 1868, a call was made, notice of which was sent to B.
On receipt of the notice, B. repudiated the shares, and the official
liquidator took out a summons to remove his name from the list,
but, afterwards, abandoned the summons. In April, 1871, B., at
the request of the official liquidator, wrote a letter authorizing
hira, in consideration of his not proceeding against B. under the
call, to use B.'s name in taking proceedings against C, the real
owner of the shares. Afterwards B. took out a summons to have
his name removed from the list of contributories ; it was held,
affirming the decision of Lord Romilly, M. R., that the letter of
April, 1871, did not operate as a retraction of B.'s repudiation of
the shares ; and that his name must be removed from the list
of contributories.^

1 In re Contract Corporation, Baker's son v. Carpenter, 11 Johns. 539 ; Jackson

Case, L. R. 7 Ch. Ap. 115. As to acts of v. Burcliin, 14 Johns. 124 ; Hoyle v. Stone,

reinuliation by an infant, see Cork & Ban- 2 Dev. & B. L. 320 ; Cresinger v. Welch,

don Kv. Co. V. Cazenove, 10 Q. B. 935 ; 15 Ohio, 156 ; McGau ?;. Marshall, 7

Dublin & Wicklow Ry. Co. v. Black, 8 Ex. Humph. 121 ; White v. Flora, 2 Overt.

181 ; Mitchell's Case, L. R. 9 Ef]. 363 ; (Tenn.) 426 ; Heath v. West, 26 N. H.

Ebbett's Case, L. R. 5 Ch. 302; Holmes 191 ; Shipman v. Haton, 17 Conn. 481 ;

V. BlojT^', 8 Taunt. 35 ; Tucker v. More- Walker v. Ellis, 12 111. 470 ; Moore v.

land, 10 Pet. 58 ; Pitcher v. Lycock, 7 Ind. Abcrnathy, 7 Blackf. 442 ; Carrv. Clough,

398; Peterson v. Laik, 24 Mo. 541 ; Jack- 26 N. H. 280 ; Grace v. Hale, 2 Humph.



132 COMMENTARIES ON SALES. [BOOK II.

G., a shareholder in a limited company, transferred his shares
to A., an infant, more than a year before the company was wound
up. A. transferred to D., also an infant, who transferred to B.
three months before the winding up. The transfers were all re-
gistered. B., who was sui juris at the date of the transfer, after-
wards became bankrupt. It was claimed, that, under section 38
of the English Companies' Act, 1862, B. having become bankrupt,
G. was liable as a shareholder ; and the court so held, and that he
continued liable as a member till B.'s transfer was registered, and
must be placed on the list of contributories as a past shareholder.^

The question of the liability of an agent who purchased shares
of stock and furnished the name of one who was afterwards ascer-
tained to be an infant, was elaborately examined in Merry v.
Nickalls.2 The decision was on the basis that, having given the
name of an infant, who was not liable, he had, in fact, given no
name at all, and he was himself liable as principal ; and this,
although the time limited by the rules of the stock exchange for
objecting to a proposed transferee had expired without any such
objections having been made.*^

Infancy is a bar to an action by an owner against his super-
cargo for breach of instructions ; but not to an action of trover
for the goods. Still, however, infancy may be given in evidence

27. In Bingham v. Barley, 55 Tex. 281, Bryant v. Pottinger, 6 Bush (K.v. ), 473 ;

the court said : " We think the proper rule House v. Alexander, 105 Ind. 109 ; Dill v.

that must prevail, in harmony with the de- Bowen, 54 Ind. 204 ; Carpenter v. Carpen-

cisions and all circumstances in the conHict ter, 45 Ind. 142 ; Hayes v. Parker, 41 X. J.

of authority upon the subject of the rights Eq. 630 ; St. Louis, &c. Ry. v. Higgias,

and duties of the minor, who, after coming 44 Ark. 293; Still v. Keith, 143 Mass.

of age, would avoid his deed made during 224 ; McCarthy v. Henderson, 138 Mass.

his minority, is this : that he shall beheld 310 ; Page v. Morse, 128 Mass. 99 ; Ben-

to do so within a reasonable time ; that his nett v. Mcl^auchlin, 13 111. App. 349;

silence or acquiescence beyond such reas- Hall v. Buttertield, 59 N. H. 354 ; Bart-

onable time should conclude him from dis- lett v. Bailej', 59 N. H. 408 ; Brantley v.

affirming it, and that what is a reasonable Wolf, 60 Miss. 420.

time is such a period as in view of the at- ^ In re Contract Corporation, Gooch's

tending facts would rebut any presump- Case, L. R. 14 Ecj. 454.
tion of an intended disaffirmance. The '^ h.'R. 1 Ch. Ap. 733.

silence or non-claim of the minor for a ^ In this ease the decision of Bacon,

considerable length of time, though less V.C., who followed Rennie v. Moriis, L. R.

than the period of liuiitation, may as effec- 13 Eq. 203, holding contra, was reversed,

tually prove his affirmance or ratification and Rennie v. Morris was overruled. Max-

in connection with the circumstances of ted v. Paine, L. R. 4 Ex. 81, being ap-

the case, as his express acts or declarations proved. See an elaborate judgment on

to that effect." See further, as to infant's the same subject by Blackburn, J., iu

avoidance of his contracts, Hoyt v. Wil- Maxted v. Paine (2nd action), L. R. 6 Ex.

kinson, 57 Vt. 404 ; Price v. Furman, 27 132. See further on the question, Gri.ssell

Vt. 268 ; Person v. Chase, 37 Vt. 648 ; v. Bristowe, L. R. 4 C. P. 36 ; Coles v.

Abell V. Warren, 42 Vt. 720 ; Willis v. Bristowe, L. R. 4 Ch. 3 ; Cruse v. Paine,

Twambly, 13 Mass. 204 ; Betts v. Carroll, lb. 441 ; Allen v. Graves, L. R. 5 Q. B.

6 Mo. App. 518 ; Heath v. West, 28 N. H. 478 ; Bowring v. Shepherd, L. R. 6 Q. B."

108 ; Cogley v. Cushman, 16 Minn. 402 ; 309 ; Paine v. Hutchinson, L. R. 3 Ch.

Skinner v. Maxwell, 66 N. C. 45 ; Kitchen 388 ; Sheppard v. Murphy, Ir. L. K. 1 Eq.

V. Lee, 11 Paige, Ch. 108 ; Kerr v. Bell, 44 590.
Mo. 120 ; Towle v. Dresser, 73 Me. 252 ;



PART I.]



SALES WITH INFANTS.



133



in an action 6f trover upon the plea of not guilty ; not as a bar,
but to show the nature of the act which is claimed to be a con-
version. An infant is liable in trover, although the goods were
delivered to him under a contract.^



1 Vasse V. Smith, 6 Cranch, 226.
lu Bac. Ab. tit. Infancij, it is laid
down, " If an infant without any contract
wilfully takes away the goods of another,
trover lies against him. Also, it is said,
that if he takes the goods under pretence
that he is of full age trover lies, because it
is a wilful and fraudulent trespass."

An infant is liable for his wilful
torts, and for damages for frauds com-
mitted by him ; but no fraudulent repre-
sentation made by an infant can give va-
lidity to any contract entered into by him
which would otherwise be voidable for his
infancy. The action must in all cases
arise solely upon the tort or wrong com-
mitted by him. Studwell v. Shapter, 54
N. Y. 249 ; Vasse v. Smith, 6 Cranch,
226 ; Eckerstein v. Frank, 1 Dalv, 334 ;
Heath v. Mahoney, 14 N. Y. Sup. Ct.
100 ; Eaton v. Hill, 50 N. H. 235. In
Fitts V. Hall, 9 N. H. 441, Parker, C. J.,
deduced from the authorities this princi-
ple : that if the tort or fraud of an infant
arises from a breach of contract, although
there may have been false representations
or concealment respecting the subject-mat-
ter of it, the infant cannot be charged for
this breach of his promise or contract by a
change of the form of action. But if the
tort is subsequent to the contract, and not
a mere breach of it, but a distinct, wilful,
and positive wrong of itself, then, al-
though it ma}' be connected with a con-
tract, the infant is liable. But if one
affirms himself of full age when he is an
infant, and thereby procures a contract to
be entered into, he is chargeable in dam-
ages for a fraudulent misrepresentation
whereby another has received damage.
Thus a representation that the defendant
is of full age is not part of the contract,
nor does it grow out of the contract, or in
any way result from it. It is not any part
of its terms, nor is it the consideration
upon which the contract is founded. No
contract is made about the infant's age.
The sale of goods is not a consideration for
this affirmation or representation. The
representation is not a foundation for an
action of assumpsit. The matter arises
purely ex delicto. The fraud is intended
to induce and does induce the other party
to make a contract, but that by no means
makes it part and parcel of the contract.
It is antecedent to the contract ; and if an
infant is liable for a positive wrong con-
nected with a contract, but arising after
the contract has been made, he may well



be answerable for one committed before
the contract was entered into, although it
may have led to the contract. See Homer
V. thwing, 3 Pick. 492; Mills v. Graham,
4 B. & P. i40 ; Bristow v. Eastman, 1 Esp.
172 ; Badger v. Phinney, 15 Mass. 359 ;
Livermore v. Herschell, 3 Pick, 33, 36 ;
Eaton V. Hill, 50 N. H. 235 ; Matthews v.
Cowan, 59 111. 341 ; Hayes v. Parker, 41
N. J. Eq. 630 ; Carpenter v. Carpenter, 45
Ind. 142; Rice v. Boyer, 108 Ind. 472;
Nolan V. Jones, 53 Iowa, 387 ; Lewis v.
Littlefield, 15 Me. 233 ; Walker v. Davis,
67 Mass. 506 ; Baxter v. Bush, 29 Vt. 465 ;
Green v. Sperry, 16 Vt. 392 ; Hughes v.
Gallans, 10 Phi'la. 618. In Rice v. Boyer,
108 Ind. 472, the court, in holding that
where an infant fraudulently and falsely
represents that he is of full age he is liable
in an action ex delicto for the injury result-
ing from his tort, say : ' ' This result does
not involve a violation of the principle
that an infant is not liable where the con-
sequence would be an indirect enforcement
of his contract, for the recovery is not upon
the contract, as that is treated as of no
effect ; nor is he made to ]iay the contract
price of the article purchased by him, as
lie is only held to answer for tlie actual
loss caused by his fraud. In holding him
responsible for the consequences of his
wrong an equitable conclusion is reached,
and one which strictly harmonizes with
the general doctrine that an infant is lia-
ble for his torts. Nor does our conclu-
sion invalidate the doctrine that an infant
has no power to deny his disability, for it
concedes this, but affirms that he must
answer for his positive fraud."

In England the rule at law has been held
that an infant cannot be made liable for a
fraudulent representation that he was of
full age, whereby the plaintiff was induced
to contract with him. Price v. Hewett, 8
Ex. 146; Liverpool Adelphi Loan Assoc.
V. Fairhurst, 9 Ex. 422 ; Johnson v. Pye,
1 Sid. 258 ; 1 Keb. 913. And see Jen-
nings V. Rundall, 8 T. R. 335 ; Burnard v.
Haggis, 14 C. B. n. s. 45 ; Wright v.
Leonard, 11 C. B. N. S. 258 ; Bartlett v.
Wells, 1 B. & S. 836 ; Dee Roo v. Foster,
12 C. B. N. s. 272. But in England, in
the courts of equity and bankruptcy, the
rule has been acted on, as it has generally
been in the courts of law in this country.
See Cory v. Gertchen, 2 Maild. 40 ; Wright
V. Snowe, 2 i)e G. & S. 321 ; Esron v.
Nicholas, 1 De G. & S. 118 ; Clarke v.
Cobley, 2 Cox, 173 ; Clark v. Bedford, 13



134



COMMENTARIES ON SALES.



[book II.



Infancy is no defence to an action for money obtained by the
infant by falsehood and fraud.^



Vin. Ab. 536 ; Vaughan v. Vaiiderstegen,

2 Drew, 165, 369 ; Overton v. Bannister, 3
Hare, 503 ; 4 Beav. 205 ; Drury v. Urury,
4 Bro. C. C. 506 ; Beckett v. Cordley, 1 Bro.
C. C. 352 ; Ex parte Watson, 16 Ves. 265 ;
Ex parte Bates, 2 Mont. D. & D. 337 ; Ex
parte The Unity Joint- Stock, &c. Assoc,

3 De G. & J. 63 ; Evroy v. Nicholson,

2 Eq. Cas. Ab. 489 ; Earl of Buckingham-
shire V. Drury, 2 Eden, 72.

In this country, in Hayes v, Parker, 41
N. J. Eq. 630, the court say : "It is, of
course, true that at law the execution of this
paper [a release] by the minor is voidable.
Nor would his assertion, made at the time
of his execution, that he was of age operate
to change his position in a court of law.
The fact that the infant had by his false
representations led the other contracting
party to negotiate and execute the con-
tract, and injuriously change his position
even, would in an action by the adult to
enforce it be no answer to the plea of in-
fancy. At law it is conclusively presumed
that a person within the age is unfitted
for business, and that every contract into
which he enters is to his disadvantage,
and that he is incapable of fraudulent
acts which will estop him from interpos-
ing the shield of infancy against its en-
forcement. In equity, however, this rigid
rule has its exceptions. Equity will re-
gard the circumstances surrounding the
transaction, the appearance of the minor,
his intelligence, the character of his repre-
sentations, the advantage he has gained
by his fraudulent representations, and the
disadvantage to which the person deceived
has been put by him, in determining
whether he should be permitted to invoke
successfully the plea of in fancy. " See, fur-
ther, School District v. Bragdon, 23 N. H.
507 ; Oliver v. McClellan, 21 Ala. 675 ;

1 Catts V. Phalen, 2 How. 376, 382 ;
Bullock V. Babcock, 3 Wend. 391 ; Hanks
V. Deal, 3 McCord, 257; Green v. Sperry,
16 Vt. 390 ; Lewis v. Littlelield, 15 Me.
233 ; Hartfield v. Roper, 21 Wend. 615,
620 ; Brown v. Maxwell, 6 Hill (N. Y.),
592, 594 ; Homer v. Thwing, 3 Pick.
492 ; School Dist. v. Bragdon, 3 Foster
(N. H.), 516 ; Walker v. Davis, 1 Gray,
506; Humphrey v. Douglass, 10 Vt. 71 ;
Bristow V. Eastman, 1 Esp. 172. And an
infant will not be permitted to take ad-
vantage of his privilege to effect a fraud ;
and, upon avoidance of the contract, he
will be compelled, upon equitable grounds,
to make restitution of the benefits obtained
under it. Ex parte Unity Banking Assoc,

3 De G. & J. 63 •, 27 L. J. B. 33 ; Nelson v.



Gindry v. Davis, 6 La. Ann. 91 ; Christian
V. Welch, 7 La. Ann. 533 ; Scott v. Watson,
46 Me. 362 ; Sikes v. Johnson, 16 Mass.
389 ; Wallace v. Morss, 5 Hill, 391 ; Conk-
lin V. Thompson, 29 Barb. 218 ; Ward v.
Vance, 1 N. & McC. 257 ; Humphrey v.
Douglass, 10 Vt. 71 ; West v. Moore, 14
Vt. 447 ; Hutching v. Engel, 17 Wis. 230.
The cases at law in this country seem to
us to be more consistent with sound prin-
ciple than the English. The latter rest
on the basis that, as virtually in all con-
tracts made by a minor, except for neces-
saries, there is in the very fact of his
undertaking to make a contract at all an
actual or constructive fraud ; to allow an
action to be brought against an infant for
the fraud would be, in efi'ect, to take away
all the protection with which he is clothed.
But the decisions of both countries are in
harmony that an infant cannot obtain a
cancellation of his contract and retain the
fruits of the contract. If he seek to annul
his contract he must as far as possible re-
store the other party to the status quo ;
and if in repudiatiug the contract he can-
not do this he cannot recover from the
other contracting party the consideration
which he himself has paid. So it would
seem more consistent with the principle
on which these decisions are based, that,
although an action will not lie against
him on contract, yet when through fraud
he has obtained the money or property of
the other contracting party, and pleads his
infancy as a defence, thereby repudiating
and disaffirming the contract, he should
be compelled by a restoration of the money
or property to remit the other party to the
status quo. The contract is voidable, and
if he elect to affirm it he can do so. But
if he disaffirm it there woulti seem to be
no sound reason why he should not, agree-

Stocker, 4 De G. & J. 458 ; 28 L. J. C. 760.
But, notwithstanding his fraud, an action
will not lie against him on the contract,
either to support the contract or for inju-
ries resulting from its breach. Johnson v.
Pye, 1 Lev. 169; 1 Keb. 913; Price v.
Hewett, 8 Ex. 146 ; Livei-pool Adelphi
Loan Assoc v. Fairhurst, 9 Ex. 422 ;
Wright V. Leonard, 11 C. B. N. s. 258 ;
Bartlett v. Wells, 1 B. & S. 836: De
Roo V. Foster, 12 C. B. N. s. 272;
Stikanan i-. Dawson, 1 De G. & Sm. 90.
And an infant is liable in assumpsit for
money stolen, and for the proceeds of sto-
len property when coliverted into money.
Shaw V. Coffin, 58 Me. 254. And see
Walker v. Davis, 1 Gray, 506.



PART I,]



SALES WITH INFANTS.



135



ably to the general trend of the decisions
iu tliis country, be made answerable for
his tort, and be compelled to make resti-
tution of the money or property of the
other contracting party, exactly as he
would have to do if he were himself taking
proceedings for the cancellation of his
contract. We think, decidedly, that the
American cases generally, and the English
decisions in equity and bankruptcy, are
more consistent with sound principle than
are the English decisions at law.

In the old case of Savage v. Foster, 13
Vin. Ab. 536, it was decided that it is not
necessary that femes coverts or infants be
active in promoting a purchase if it appear
that they were privy to it, and that it
could not be done without their knowl-
edge. There, A. had two daughters, B.
and C. A. was tenant for life of lands,
remainder to B., a. feme covert in tail. On
a treaty of marriage between J. S. and C,
J. S. insisted on £1000, which A. could
not give. B. and her husband encour-
aged the marriage, and solicited A. to con-
vey the entailed lands to J. S. and C,
which A. did. It w-as decreed after A.'s
death that B. should be bound by the con-
veyance, and levy a fine on penalty of pay-
ment of costs ; and a perpetual injunction
was granted to J. S. and C. for quiet pos-
session. In Drury V. Drury, 4 Bro. C. C.
506, note. Lord Mansfield, concurring with
Lord Hardwicke, denied that either by the
law of England or any other law eveiy con-
tract made by an infant was void ; that
contracts for necessaries, such as diet, edu-
cation, etc., were good, and the infant's
body is liable to be taken in execution for
them ; so of a sum advanced for taking an
infant out of jail : that infancy could
never authorize the committing a fraud,
as, if goods were delivered to an infant, and
he embezzled them, an action of trover
would lie against him ; as, if he took an
estate, and was to pay rent for it, he should
not defend himself against payment of the
rent, and yet hold the estate upon pretence
of his infancy ; and relied on a case of
Watts V. Hailswell, where the infant issue
in tail, being eighteen years old, had en-
gi'ossed the mortgage deed, and did not
discover his right to the mortgagee. Lord
Cowper held him bound, because being of



years of discretion he had acted dishon-
estly in not discovering his title. Clarke
V. Cobley, 2 Cox, 173, was decided on the
ground that an infant shall not take ad-
vantage of his own fraud, and was not to
be allowed to retain his wife's promissory
notes, which had been surrendered to him
on his giving his bond for them, on his
pleading infancy to a suit on the bond.
In Cory v. Gertcken, 2 Madd. 40, too, it
was held that a minor could not avail him-
self of his infancy as a defence against
fraud. The court there said : " Though in
general a payment to an infant may be
bad, yet if the infant practises a fraud he
is liable for the consequences. At law an
infant is liable in tort, and cannot plead
his infancy, as where [a very strong case]
an action of assumpsit was brought against
an infant for money embezzled by him."
Bristow V. Eastman, 1 Esp. 172. In
Wright V. Snowe, 2 De G. & S. 321, 324,
the court said : " It is too late to deny
that an infant may commit a fraud to the
prejudice of his civil rights ; but what
amounts to such a fraud is often a delicate
question." In the case at law, too, of Bris-
tow r. Eastman, 1 Esp. 172, where a minor
had been guilty of embezzlement, and an
action of assumpsit for money had and re-
ceived was brought against him, the action
was sustained; Lord Kenyon saying that he
was of opinion that infancy was no defence
to the action ; that infants were liable to
actions ex delicto, though not ex contractu ;
and though the present action was in form
an action of the latter description, yet it
was of the former in point of substance ;
that if the plaintifi's had brought an action
of trover for any part of the property
embezzled, or an action grounded on the
fraud, unquestionably infancy would have
been no defence ; and as the object of the
present action was precisely the same, his
opinion was that the same rule should ap-
ply, and that infancy was no bar to the
action. These principles clearly are more
in harmony with the doctrines established
by the cases at law in this country than
they are with some of the recent cases at
law in England, in which latter the plea
of infancy in actions ex delicto has been
held as available as in actions ex con-
tractu.



136



COMMENTARIES ON SALES.



[book II.



BOOK n.



PART II.



MENTAL DISABILITIES.



1. Insanity. According to some of the highest of the old com-
mon-law authorities,! no man could be allowed to stultify himself,
and avoid his acts, on the ground of his being non compos mentis?



1 Littleton, § 405 ; 1 Coke's Inst.,
247 6; Beverley's Case, 4 Rep. 123 a.

2 A great variety of tests or definitions
of insanity are furnislied in cases where
the issue of insanity or non-insanity has
been involved. Lord Brougham, in War-
ing V. AVaring, 6 Moo. P. C. at p. 354,
defines insanity to be "The belief of
things as realities which exist only in
the imagination of the patient." Sir John
Nicholl, in Dew v. Clark, reported by
Dr. Haggard at p. 7; s. c. 3 Addaius, 79;
says, it is "A belief of facts which no ra-
tional person would have believed." In
Smith V. Tebbitt, L. R. 1 P. & D. 398,
both of these are deemed unsatisfactory:
the first on the ground that sane people
often imagine things to exist which have
no existence in reality, both in the physi-
cal and moral world; and the second on
the ground of fixing the limit of a rational
man's belief. The definition by Dr. Wil-
lis, a man of great eminence, quoted in
Dew V. Clark (supra), "A pertinacious
adherence to some delusive idea, in oppo-
sition to plain evidence of its falsity,"
seems to offer surer ground ; but then the
evidence of the falsity is to be plain, and
in doubtful cases the want of such plain-
ness is the very difficulty that arises. To
draw the exact line, if there be one, which
defines the limits, may be impossible ; but
to affirm that some instances surpass it,
is not so. "No one," says Burke, "can
say when twilight begins or ends ; but
there is ample distinction between day
and night." In Smith v. Tebbitt, L. R.
1 P. & D. 398, the court concluded that
no tests, however elaborate, beyond the
common and ordinary method of judging
in such matters, would be competent to
bear the strain of individual cases in the



course of experience, in attempting to
assign limits within which extravagance
of thought is to be pronounced compatible
with sanity. In inquiring what that com-



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