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cree of divorce only, and is not within the
jurisdiction of a court of equitv. Nicely
V. Nicely, 3 Head (Tenn.), '184, 186.
But it is added in this ca.se: "Such seems
to be the general doctrine of the English
cases, though the cases upon this subject
do not altogether agree." It was further
said in that case: "But in some of the
American courts a more reasonable doc-
trine has prevailed ; and the jurisdiction
of a couit of equity in such cases has



PART III.]



MARRIED WOMEN.



199



incidental purposes, no possession or enjoyment of property sep-
arate and apart from their husbands. They deny to married



been n)aiataiiie(.l upon general principles,
and especially upon the utter inadequacy
of the remed)' at law." The court ex-
pressed their intention, had it been neces-
sary to have done so, to have followed the
holding in those cases ; but they decided
that in Tennessee this power wa^ expressly
conferred on courts of equity by stat-
ute, — Act of 1835, eh. 26, §§ 18 and 19 ;
Nicely v. Nicely, 3 Head, 184.

Although the English cases are gener-
ally to the effect as stated in Nicely v.
Nicely, 3 Head, 184, there are cases in
England where the court, having control
of funds to which the husband was en-
titled, has laid hold of such funds, and
compelled the husband to make suitable
provision for the support of the wife out
of such funds, and in other cases has
granted alimony where such a state of
affairs does not seem to have existed. See
Lash brook v. Tyler, 1 Ch. R. 24; Ashton
V. Ashton, Ibid. 87; Russell v. Bod-
will, Ibid. 99; Whorwood v. Whor-
wood. Ibid. 118; Nichols v. Danvers,
2 Vern, 761; Oxenden v. Oxenden, Ibid.
493 ; Angler v. Angler, Gilb. Ch. 152 ;
Williams v. Callow, 2 Vern. 752 ; Wat-
kyns V. Watkyns, 2 Atk. 96 ; Bullock v.
Menzies, 4 Ves. 798; Guth v. Guth, 3 Bro.
C. C. 614; Wright v. Morley, 11 Ves. 20;
Duncan v. Duncan, 19 Ves. 394.

In a very old case (a. D. 1706), Oxen-
den V. Oxenden, Gilb. Ch. 1 ; 2 Vern. 493,
it was objected that the court had no juris-
diction in the case of alimony; but counsel
said, to which the Lord Keeper agreed,
" that this was as proper, if not a properer.
Place than the Spiritual Court ; For the
Spiritual Court has only a consequential
Jurisdiction for Alimony, always subse-
quent to a Separation, unless pro misis tfc
expensis, and a present Subsistence ; but
this Court has an original Jurisdiction, or
at least a concurrent Jurisdiction with
the Spiritual Court, as in the Cases of
Legacies, Probates, &c. But the Lord
Keeper said this Court could neither sep-
arate a Mcnsa <& Thoro, nor a Vinculo;
these being matters merely spiritual."
But in Angiei' v. Angier, Gilb. Ch. 153,
it was said, that "tho' this Court could
not decree Jlimony, yet it might decree
Execution of Articles according to the
Parties' own Agreement; and several Pre-
cedents had been in this Court to that
Purpose, as Sir James Oxenden and his
Lady, and a ca.se of Cutting and Cutting,
and several other Cases. My Lord Chan-
cellor was of the Same Opinion, and .said,
to decree an Execution of Performance of
these Articles, was not to invade the Juris-



diction of the Spiritual Court." And in
Whorwood v. Whorwood, 1 Ch. R. 118,
the judges certified in Mich. Term, 1662,
that decrees for alimony made in the Court
of Chancery " in the late times" were con-
finned by the act for confiimation of judi-
cial proceedings. And tliis is explained
by Loi'd Loughborough, in Legard v. John-
son, 3 Ves. 359, thus: "Soon after the
civil war there had been a decree by the
Lonis Commissioners. There being no
Ecclesiastical Court, the jurisdiction, some
way or other, got there." The case, how-
ever, of Oxenden v. Oxenden, Gilb. Ch. 1,
referred to above, was long subsequent to
this. But there is no doubt that for a
long period back no such jurisdiction has
been exercised in the English courts. See
Ball V. Montgomery, 2 Ves. 191 ; Legard
V. Johnson, 3 Ves. 352; Mildmay i;. Mild-
maj', 1 Vern. 53 ; Hincks v. Nelthorpe,
Ibid., 204 ; Head o. Head, 3 Atk. 547 ;
Duncan v. Duncan, 19 Ves. 394. In Head
V. Head, 3 Atk. 547, 550, Lord Hard-
wicke said: " I do not find that this court
ever made a decree to compel a husband
to pay a separate maintenance to his wife
unless upon an agreement between them,
and even upon this unwillingly."

In this country the courts in some of
the States have assumed such jurisdiction
in chancery, while others have refused to
exercise it. In some of the cases where
such jurisdiction has been assumed, it has
been claimed on the ground of avoiding
circuity of action. Equity, however,
never obtains a special jurisdiction on
that ground. ' Another ground taken is
that inasn\uch as the system of spiritual
courts as in England was not adopted in
this country, chancery, in this country,
possesses all the powers of the spii'itual
courts in England. To this it might be
replied that even in the si)iritual courts
alimony was never granted, except either
pendente lite on an a])plication for a di-
vorce, or as incidental to a divorce on
that being granted ; whereas, in this coun-
try, where the equity courts claim the
right of granting the wife a separate main-
tenance, it is not as an incident to a di-
vorce, but on an inde)iendent application.
It seems clear that there is no well-de-
cided case in England in which a separate
maintenance was granted to a wife out of
her husband's estate, either by the eccle-
siastical or equity courts, on a simple ap-
jilication for such separate maintenance,
as has been repeatedly done in tliis coun-
try. In Duncan v. Duncan, 19 Ves. 394,
397, Sir Wm. Grant says, quoting Lord
Loughborough : " It is contrary to the es-



200



COMMENTARTES ON SALES.



[book II.



women both the power to contract and the power to enjoy.
Courts of equity, on the other hand, have, through the medium of



tablished doctrine, that a maiTied woman
should be a plaintiff in a suit in this
court for separate raaintenauce ; taking it
now to be the established law, that no
court, not even the ecc-lesiastical court,
has an}' original jurisdiction to give a wife
a separate maintenance. It is always as
incidental to some otlier matter that she
becomes entitled to a separate provision ;
as if she applies in this court for a sappli-
cavit for security of the peace against her
husband, and it is necessary she should
live apart. As incidental to that, the
chancellor will allow her separate mainte-
nance : so in the ecclesiastical court, if it
is necessary for a divorce a mensa, et thoro
jirropter scevitiam." See Ball v. Mont-
gomery, 2 Ves. 191, 195, per Lord
Loughborough.

In this country, in Massachusetts, an
application was made for alimony, in con-
nection with an application for a suppli-
cavit, and was refused. Adams v. Adams,
100 Mass. 365. The court held that it
never was the direct object of the writ of
supplicavit to give alimony, and that an
attempt to use tlie process for the direct
purpose of obtaining alimony to enable
the wife to have a permanent separate
maintenance was an abuse of the writ.
And see Codd v. Codd, 2 Johns. Ch. 141,
per Chancellor Kent. But in Prather v.
Prather, 4 Desaus. (S. C.) 33, a separate
maintenance was decreed on an apjdication
for that writ. In Georgia it has lieen held
that jurisdiction over divorce and alimony
has been given by statute to the common-
law-courts, and that, therefore, they suc-
ceed" to the powers which were e.xercised
in England over such matters by the eccle-
siastical courts, and that the courts of
chancery have no jurisdiction to grant ali-
mony, either permanent or pendente lite.
McGee v. McGee, 10 Ga. 478. It has
also been held in North Carolina, that as
no statutory provision has been made for
it, the courts in that State have no power
to grant alimony pendente lite. Wilson v.
Wilson, 2 Uev. & B. (L.) 377. In Texas,
too, an application for separate mainte-
nance has been refused where the wife was
not seeking for a divorce. Trevino v.
Trevino, 63 Tex. 650. And see a very
valuable dissenting opinion, w'ith which
we entirelv concur, by Sprague, J., in
Gallaud v. Gallaud, 38 Cal. 265, 272,
with which Sanderson, J., concurred.
And see a most elaborate judgment on the
subject, by Parker, C. J., in 9 N. H. 309,
317, where the question is very ably dis-
cussed by that profound lawyer, and
where it was held that the court of chan-



cery had no jurisdiction to grant alimony,
which term, says the learned chief justice,
"as generally used in the English books,
means a portion or sum allotted to the
wife for her maintenance, from year to
year, either during a matrimonial suit or
upon a divorce. 1 Bl. Com. 441 ; Cooke
V. Cooke, 2 Phill. Ec. 40 ; Street v.
Street, 2 Addam.s' Ec. 1; Hamerton v.
Hamerton, 1 Hagg. Ec. 23 ; De Blaquiere
V. De Blaquiere, 3 Hagg. 322. And it
has been held that it shall be sued for in
the spiritual courts, and not in chancery.
2 Shower, 290. It may be allotted pen-
dente lite." The case referred to from
Shower was decided after the restoration
(34 & 35 Car. 2), Anonymous Case, 269,
where it was held that " the chancery will
allow of demurrer to such bills tor ali-
mony." And see 2 Com. Dig., Chancery
(2 U). The law has been, in effect, so
decided, also, in Indiana. Fischli v.
Fischli, 1 Blackf. 360 ; Chapman v. Chap-
man, 13 Ind. 396. And in Mississippi.
Lawson v. Shotwell, 27 Miss. 630,633. (But
see Porter y. Porter, 41 Miss. 116; Garland
V, Garland, 50 Miss. 694 ; Dewees v. Dew-
ees, 55 Miss. 315 ; Verner v. Verner, 62
Miss. 260, under the Mississippi statutes.)
Ami in llissouri. Doyle v. Doyle, 26 Mo.
545, 549. In Michigan. Peltier v. Peltier,
Harring. Ch. 19, 29. And in New Jer-
sey. Yule V. Yule, 10 N. J. Eq. 138, 145;
independent of their statute. Corv v.
Cory, 11 N. J. Eq. 400. See, also, Perry
V. Perry, 2 Paige, 501 ; Mi.x i-. Mix, 1
Johns. Ch. 108; Lewis v. Lewis, 3 Jolms.
Ch. 519 ; Shannon v. Shannon, 68 Mass.
285 ; Harrington v. Harrington, 10 Vt.
505 ; Wilson v. Wilson, 2 Dev. & B. 377 ;
Helms V. Franciscus, 2 Blaml, 565; Crane
V. Meginnis, 1 Gill & J. 46.3, 474 ; Drum-
ock V. Drumock, 3 M<i. Ch. 140, 142,
et seq. We think the weight of reason
and authority is with this hoMing ; but as
the question is one degree farther removed
from the law of Sales than where a third
party has advanced money to the wife for
the express purpose of purchasing neces-
saries, we do not here pursue the (piestion
further, except to cite some of tlie Ameri-
can authorities in which the opposite, and
what we think is the incorrect iloctrine
on the subject, has been hehi. See Gal-
laud V. Gallaud, 38 Cal. 265 ; Butier v.
Butler, 4 Litt. (Ky. ) 202; Wiiitcomb v.
Whitcomb, 46 Iowa, 437 ; Graves v.
Graves, 36 Iowa, 310 ; Farber v. Farber,
64 Iowa, 362, under thv Iowa st^itute.
(But see O'Hagan r. O'Hasan, 4 Iowa,
516, 517; McMullen v. Mc.Mullen, 412,
414, contra).: Nicely v. Nicely, 3 Head



PART III.]



MARRIED WOMEN.



201



trusts, created for married women rights and interests in prop-
erty, both real and personal, separate from and independent of
their husbands. To the extent of the rights and interests thus
created, whetlier absolute or limited, a married woman has in
courts of equity power to alienate, to contract, and to enjoy. In
fact, she is considered in a court of equity as a feme sole in re-
spect of property thus settled or secured to her separate estate.
It is from this position of married women, and from the rights
and powers incident to it, that the claims of creditors against
separate estates of married women have arisen.^

The cases are very numerous which have established that the
bonds, bills of exchange, and promissory notes of married women
are payable out of their separate estate.^

The separate property of a married woman is also bound for
her general engagements, if it appears that such engagements
were made with reference to and upon the faith or credit of that
estate, and whether it was or not is a question to be judged of by
the court upon all the circumstances of the case.^



(Tenn.), 184, 186; Purcell v. Purcell, 4
Hen. k M. 507, 509 ; Almond v. Almond,
4 Rand. 662 ; Daniels v. Daniels, 9 Cul.
133, 147, et seq. ; Glover v. Glover, 16 Ala.
440 ; Hinds v. Hinds. 22 Cent. Law ,J.
308 ; Platner v. Platner, 66 Iowa, 378 ;
Finn v. Finn, 62 Iowa, 482 ; Paterson v.
Paterson, 1 Halst. Ch. 389 ; Thompson v.
Thompson, 10 Rich Eq. 416.

As far as these cases are decided on the
ground that equity has an original juris-
diction over the question of alimony or a
separate allowance to married women, in-
dependent of any other subject connected
with it (and these cases are nearly all de-
cided on that ground), we think they are
wrongly decided. While it is, of course,
unquestionable that such powers may be
granted to commissioners, or be legalized
Ijy act of parliament, as well as conferred
upon courts of chancery or any other
courts by statute; yet we think these cases
do not sustain the ]iosition that such pow-
ers pertain to chancery, as that court and
its princijiles were derived by this country
from England. Some of the cases purport
to be decided on the maxim, Uln jus ihi
remediurn (" There is no wrong without a
remedy"), but a similar application of
that principle to the case of an infant
would, with almost et^ual consistency, ad-
mit of a minor fding a bill against his
father for sej)arate maintenance. We
think the maxim more ai)plicable to such
cases is, (Ixuiinum absque injuria.

For American cases where a remedy
has lieen given in accordance with the
English chanceiy decisions, see Glen v.



Fisher, 6 Johns. Ch. 33 ; Cape v. Adams,
1 Des. 567 ; Tattnell v. Fenwick, 1 Des.
143; Tucker v. Andrews, 13 Me. 134;
Heath v. Heath, 2 Hill Ch. 104 ; Rees v.
Waters, 9 Watts, 90 ; Perryclear v. Ja-
cobs, 9 Watts, 509 ; Myers v. Myers, 1
Bai. Eq. 24 ; Helms v. Franciscus, 2
Bland, 545 ; Tevis v. Richardson, 7 Mour.
(Ky. ) 660 ; Van Epps v. Van Deusen, 4
Paige, 64 ; Howard v. Moffat, 2 Johns.
Ch. 206. And see, further, as to relief
under statutes, Nuetzel v. Nuetzel, 13 111.
App. 542 ; Pell v. Walsh, 130 Mass. 163 ;
The State v. Witham, 130 Mass. 473 ;
Han-is v. Harris, 101 Ind. 498 ; Peek v.
Marling's Adm'r, 22 W. Va. 708 ; Yohe
V. Barnet, 1 Binn. 358.

1 Johnson v. Gallagher, 3 De G. F. & J.
494, 509, per Turner, L. J., approved in
Picardy. Hine, L. R. 5 Ch. Ap. 274, 276,
277, 'per Hatherley, L. C, and Giffard,
L. J. ; by the judicial committee of the
Privy Council, in the London Chartered
Bank of Australia v. Lampiere, L. R. 4
P. C. 572, 594 ; and in Pike v. Fitzgib-
bon, 14 Ch. Div. 8:57, 841, byMalins, L. C.

2 Noiton V. Turvill, 2 P. Wms. 144;
Stanford v. ilarshall, 2 Atk. 68 ; Peacock
V. Monk, 2 Ves. Sen. 190 ; Hulme v.
Tenant, 1 Bro. C. C. 15 ; Dillon v.
Grace, 2 Sch. & Lef. 456; Heatlcy v.
Thomas, 15 Ves. 596 ; Bulljiin v. Clarke,
17 Ves. 365 ; Fi.-ld v. Sowle, 4 Russ. 112 ;
Stuart V. Lord Kirkwall, 3 Madd. 387.

^ The leading case on tliis question is
Hulme V. Tenant, 1 Bro. C. C. 15, in
which it was distinctly laid down by Lord
Rosslyn that the separate estates of mar-



202



COMMENTARIES ON SALES.



[book II.



Where a married woman is living separate from her husband,
that is a strong reason for saying that she intended to bind tliat
property out of which alone she could pay that which she con-
tracted to pay. When she by entering into an agreement allows
the supposition to be made tliat she intends to perform the agree-
ment out of her property, she creates a debt which may be recov-
ered not by reaching her but by reaching her property .^



ried women are liable for their general
enga^eraeuts. This has beeu followed by
numerous cases. In Milnes v. Busk, 2
Ves. Jr. 488, Lord Loughborough said :
"As to all her debts and engagements,
with regard to that she sliall be answer-
able as a, feme sole would be to the extent
of that." See also Murray v. Barlee, 3
Myl. & K. 209: Owens v. Dickenson,
Cr. & Ph. 48 ; Burke v. Tuite, 19 Ir. E.
& L. R. 467 ; Vaughan v. Vamlerstegen,
2 Drew. 165, 289, 363, 408 ; Wright v.
Chard, 4 Drew, 673. But, as stated in
the text, to bind her separate estate, it
must appear that the engagement was
made with reference to and upon the faith
or credit of that estate. With reference
to this Lord Justice Turner, in Johnson v.
Gallagher, 3 De G. F. & J. 494, 514, while
saying, " Not only the bonds, bills, and
promissory notes of married women, but
also their general engagements, may affect
their separate estates, except as the statute
of frauds may interfere where the separate
property is real estate," adds, " To affect
the separate estate there must be some-
thing more than the mere obligation
which the law would create in the case
of a single woman. What that something
more may be must, I think, depi-nd in each
case upon the circumstances. What might
affect the separate estate in the case of a
married woman living separate from her
husljand might not, as I apprehend, affect
it in the case of a married woman living
with her husband. What might bind the
separate estate, if the credit be given to
the married woman, would not, as I con-
ceive, bind it if the credit be not so given.
The very term 'general engagement,' when
applied to a married woman, seems to im-
port something more than mere contract,
for neither in law nor in equity can a
married woman be bound by contract
merely ; Aylett v. Ashton, 1 Myl. & Cr.
105." And see Jones v. Harris, 9 Ves.
493 ; Aguilar v. Aguilar, 5 JIadd. 414 ;
G'.vatlev V. Noble, 3 Madd. 79 ; Stuart v.
Lord Kirkwall, 3 Madd. 387. And in
Tullett V. Armstrong, 4 Beav. 319, Lord
Langdale said : " It is perfectly clear that
when a woman has property settled to her
separate use, she may bind that property
without distinctly stating that she intends
to do so. She may enter into a bond,



bill, promissory note, or other obligation,
which, considering her state as a married
woman, could only be satisfied by means
of her separate estate ; and therefore the
inference is conclusive that there was au
intention, and a clear one, on her part
that her separate estate, which would be
the only means of satisfying the obligation
into which she entered, should be bound.
Again, I apprehend it to be clear that
where a married woman having separate
estate, but not knowing perfectly the
nature of her interest, executes an instru-
ment by which she plainly shows an inten-
tion to bind the interest which belongs to
her, then, though she may make a mis-
take as to the extent of the estate vested
in her, the law will say that such estate as
she may have shall be bound by her own
act. But in a case where she enters into
no bond, contract, covenant, or obligation,
and in no waj' contracts to do an\' act on
her part ; where the instrument which she
executes does not purport to bind or to
pass anything whatever that belongs to
iier ; and where it must consequently be
left to mere inference whether she intended
to affect her estate in any manner or way
whatever, the case is entirely different
either from the case where she executes a
bond, promissory note, or other instru-
ment, or where siie enters into a covenant
or obligation by which she, being a mar-
ried woman, can be considered as binding
her separate estate." And see pei- Lord
Eedesdale, in Dillon v. Grace, 2 Sch. &
Lef. 456, 463 ; Wright v. Englefield,
Ambl. 468 ; Heatley v. Thomas, 15 Ves.
596; Coppin v. Grav, 1 Y. & C. N. C. 205;
Bullpin V. Clarke, 'l7 Ves. 365 ; Field v.
Sowle. 4 Russ. 112 ; Murrav v. Barlee, 4
Sim. 82 ; 3 Myl. & K. 209 ; Owens v. Dick-
enson, ( r. & Ph. 48 ; Crosby v. Church, 3
Bea, 485.

1 Picard v. Hine, L. R. 5 Ch. Ap. 274,
277, per Lord Hatherley. In ^Irs. Mat-
thewman's Case, L. R. 3 Eq. 781, 787,
the law is thus clearly stated : " If a
married woman having sei)arate pro]>erty
enters into a pecuniary engagement,
whether by ordering goods or otherwise,
which, if she were a feme sole, would con-
stitute her a debtor, and, "in entering into
such engagement, she purports to contract,
not for her husband, but for herself, and



PART III.]



MARRIED WOMEN.



203



But the general engagements of a married woman entitled to
separate estate can only be enforced against so much of the sepa-



on the credit of Lev separate estate, and it
was so intended by her, and so undeistood
by the person with whom she is contract-
ing, that constitutes an obligation for
whicli the person with whom she contracts
has the right to make her separate estate
liable ; and the question whether the obli-
gation was contracted in the manner I
have mentioned must depend upon the
facts and circumstances of each particular
case. It clearly is not necessary that the
contract should be in writing, because it
is now admitted that if a married woman
enters into a verbal contract expressly
making her separate estate liable, such
contract would bind it ; nor is it neces-
sary that there should be any express ref-
erence made to the fact of there being such
separate estate, for a bond or promissory
note given by a married woman, without
any mention of her separate estate, has long
been held sixfticient to make her separate
estate liable. If the circumstances are
such as to lead to the conclusion that she
was contracting not for her husband, but
for herself, in respect of her separate
estate, that separate estate will be liable
to satisfy the oliligation." Therefore, in
this case, where a married woman, having
separate estate, contracted to take shares
in her own name in a joint-stock company,
which was afterwards wound up, the
court, being of opinion that such contract
was entered into upon the credit of her
separate estate, and that the deed of settle-
ment did not exclude married women fi-om
being shareholders so as to bind their
separate estate, placed the mar-ried woman
on the list of coutributories in her own
right, so as to bind her sej)arate estate.
Mrs. Matthewman's Case, L. R. 3 Eq. 781.
But see Vaughan v. Vanderstegen, 2 Drew.
363, and Shattock v. Shattock, L. R. 2 Eq.
182, as to the distinction between jjvop-
erty which is settled as the separate estate
of a married woman, and property over
which she has merely a power of aitjjoint-
ment, which she has exercised, — two things
perfectly distinct from each other, but very
often confounded. These cases are, how-
ever, ilisa])proved, and dissented from in
The London Chartered Bank of Australia
V. Lempiiere, L. K. 4 V. C. 572, 594, 596,
where it is held that the property of a
married woman, settled by an antenuptial
settlement for her separate use for life,
with remainder as she should by deed or
will appoint, with remainder in failure of
apiiointment to her executors or adminis-
trators, is an absolute settlement for Injr
sole and se[)arate use, without restraint on
anticipation, and vests in equity the entire



corpus in her for all purposes. The dis-
tinction is made by Lord Justice Turner,
in Johnson v. Gallagher, 3 De G. F. & J.
494, 516, between the cases, where, 1st, the
power of appointment has been general,
by deed or writing or by will ; 2nd,
where it has been by will only and the
power has been exercised, but not for
creditors ; and 3rd, wliere there has
been a limitation in default of appoint-
ment, and the power has not been exer-
cised. In cases under the third class
there seems to be no reasonable doubt
that the debts and engagements of the
married woman cannot prevail against the
])arties entitleil in default of appointment.
Kail V. Punter, 5 Sin). 555. In cases
falling under the first class, the courts
have held the corpus of the property to
be subject to the debts and engagements
of the married woman : Allen v. Pap-
w'orth, 1 Ves. Sen. 163 ; Huhne v. Tenant,

1 Bro. C. C. 15 ; Heatley v. Thomas, 15
Yes. 596 ; so far at least, during the life
of the married woman, as to affect her
limited interest. Hulme v. Tenant, 1
Bro. C. C. 15 ; Field v. Sowle, 4 Russ.
112. As to the second class the author-
ities are not in harmonv, though we think
the weight of autliority is in favor of
holding that the creditors will take as
against the ap|)ointees. See Norton v.
Turrill, 2 P. Wms. 144; Sockett v. Wrav,
4 Bro. C. C. 483 ; Hughes v. Wells, '9
Hare, 749 ; Heatley v. Thomas, 15 Ves.
596 ; The London Chartered Bank of
Australia v. Lempriere, L. R. 4 P. C. 572,
condemning Vaughan v. Vanderstegen, 9
Hare, 479, and Shattock i;. Shattock, L. R.



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