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the majority may be, has the right to secede 2. INJUNCTION (8 37*), DECREE - TRIAL OF and take the church property with it to the

TITLE AT LAW. new affiliation, so long as there remains a trial of an issue of title which was determined

Where a suit for injunction involved the faction which abides by the doctrines, prin- both by a verdict and finding in favor of comciples, and rules of the church government plainant, he will not be granted a final decree which the united body professed when the as against an application by defendant to have

the issue of title tried at law.. land was acquired. True Reformed Dutch Church of Paramus v. Iserman, 64 N. J. Cent. Dig. & 85; Dec. Dig. 8 37.*]

[Ed. Note. For other cases, see Injunction, Law, 506, 45 Atl. 771. The question of law on this point was decided in the case of Suit by one Blanchard against one Neill. Schilstra y. Van Den Heuvel (opinion filed On application of complainant for final deJuly 12, 1913, and not yet officially reported), cree and of defendant for leave to try a quesaffirmed March term, 1914, in the Court of tion of title at law. Complainant's applicaErrors and Appeals on this point, 90 Atl. tion denied, and defendant's petition granted. 1056. It was there said:

William A. Lord, of Orange, for complain“The rules of law relating to freedom of accant. E. L. Davis, of Orange, for defendant. tion by independent churches and congregations are different from those rules which apply to congregations which are affiliated with and are EMERY, V. C. [1] So far as I have exsubordinate to higher judicatories. Independent amined the authorities cited by complainant churches may do what they please with their property, provided legal action is taken to that on the right of a party to bring writ of erend; but when a religious society becomes af- ror on a judgment in his own favor, they are filiated with other religious societies, and they all cases where the judgment rendered, eial advantage higher judicatories to which

they ther for the plaintiff (appellant) on his claim subject themselves, then the individual society or the defendant (appellant) on his set-off, and or worshipping unit holds its property and tem- the judgment was less than the amount apporalities under an obligation to continue the pellant claimed he was entitled to. In such affiliation until it can be broken by mutual consent; and if secession is attempted by a fac- cases the appellant is clearly “aggrieved” by tion, however large or however small, such fac- the judgment in his favor. Parker v. Newtion' will not be allowed to carry the church land, 1 Hill (N. Y.) 87 (1841); Ingalls v. Lord, property with it, certainly not so long as there is a loyal body which is recognized by the su- 1 Cow. (N. Y.) 240 (1823); Johnson v. Jobb, perior judicatory” (citing American Primitive 3 Burr. (1772). Society v. Pilling, 24 N. J. Law, 653; True Reformed Church v. Iserman, 64 N. J. Law, 506, 2 L. Ed. 229 (1804), the verdict and judgment

In Capron v. Van Noorden, 2 Cranch, 126, 45 Atl. 771; Pulis v. Iserman, 71 N. J. Law, 408, 58 Atl. 554; 24 A. & E. Ency. of Law, was in favor of the defendant in error, not in 354).

favor of the plaintiff in error. I have therefore arrived at the conclusion [2] The right to a review by writ of error that the original corporation was allied and in the suit of the ruling of the trial judge affiliated with the Presbyterian denomina- against the defendant on the question of title tion as a matter of fact, and that the mem- is so doubtful that I do not think he should bers understood and believed that they were be required to pursue this remedy. But, if so connected, and that as a matter of law he does not do so, he must abide by the efit was not competent for the seceding mem- fect of this verdict and judgment as res adbers of the congregation to appropriate to judicata upon the matter of title, if it should themselves the church property described in be held to have this effect, and I have no the two deeds hereinabove mentioned, and right to require complainant to abandon this that the deeds should be declared to be null benefit of his suit, if he be entitled to it. Deand void and the property restored to its fendant should, however, in my judgment, be former owner, the Magyar Evangelical Re allowed to bring an action to settle the disformed Church of New Brunswick, N. J. puted question of title, in such manner as

I will advise a decree in accordance with he may be advised, and this permission is these views.

given in order that an opportunity may be

afforded to him of carrying the disputed (83 N. J. Eq. 446)

question of title to an appellate court, if, BLANCHARD V. NEILL,

notwithstanding the judgment, he still has (Court of Chancery of New Jersey. July 30, that right. I do not consider that a perma1914.)

nent injunction settling the title, on the basis 1. APPEAL AND ERROR ($ 151*) — RIGHT TO of the judge's ruling, should be granted withWRIT—"PARTY AGGRIEVED.'

out giving this opportunity, if defendant deA complainant who has received less than sires it. The action, however, should . be the relief demanded, or a defendant who has not been accorded the full amount of his set-off or brought and prosecuted without delay. counterclaim, is aggrieved by the judgment, and An order will be advised directing that the may sue out a writ of error to review the cause stand over until September 15, 1914, same, though it is in his favor.

and that, if within 30 days the defendant [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 147–952; 'Dec. Dig. § 151.* commence an action at law against the com

For other definitions see Words and Phrases, plainant to settle defendant's disputed title vol. 3, pp. 273-278, vol. 8, pp. 7569, 7570.] and prosecute said action, then the defend

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

see

ant have a right to apply that the cause stand HOWELL, V. C. The bill in this case is over to await the determination of said ac-filed to recover the amount of loss under two tion, and, upon failure to bring the said ac- fire insurance policies issued by the defendtion within said time and prosecute the same, ant. The first policy was issued to Andrew that complainant have leave at said time to Dickey on August 27, 1906, and expired on apply for final decree in this cause.

August 27, 1909; it ran in the name of DickOrder may be presented for settling on Ju-ey, but there was attached a mortgagee clause ly 31st, unless agreed on.

in favor of Andrew Crosson, mortgagee. On May 7, 1907, Dickey conveyed the land to the

complainant. The complainant says that on PLOCKZEK v. ST. PAUL FIRE & MARINE June 12, 1907, he saw Mr. Pierce, one of the INS. CO.

agents of the defendant company, and noti(Court of Chancery of New Jersey. July 24,

fied him that the property covered by the pol. 1911.)

icy just mentioned had been conveyed to 1. Action (8 46*)-JOINDER-LAW AND EQ- him; he says that he remembers the first 1 UITY.

time he saw Mr. Pierce was when he started The purchaser of property covered by an to fix up the building, and when he had fininsurance policy, providing that it should be ished that work he went to Pierce & Watvoid, unless otherwise agreed, if any change in the interest, title, or possession of the prop- son's office and there saw Mr. Pierce and told erty took place, procured additional insurance, him he wanted some more insurance on his and after a loss, brought suit to reform the property; that Mr. Pierce looked in a book first policy by making it payable to him, in- and found that the current policy was in Mr. stead of his grantor, and also asked a recovery on the second policy. Held, that the cause of Dickey's name, and then and there he made action on the second policy was separate and application for $300 more insurance. distinct from that on the first policy and could icy for that amount was issued to the com

A pol- . be enforced only in the common-law courts. [Ed. Note. For other cases,

Action. plainant on October 25, 1907. That fact, takCent. Dig. $8 449, 451-468; Dec. Dig. $ 46.*í en in connection with the testimony of the 2. REFORMATION OF INSTRUMENTS (8 16*),complainant, leads me to believe that the GROUNDS OF REFORMATION.

first time he ever saw Mr. Pierce about the An instrument in writing can be reformed policies was about the date of the issuing of only where there has been a mutual mistake, or the junior policy. This policy ran to the a mistake on the part of one party and fraud on the part of the other.

complainant with the mortgagee clause in fa[Ed. Note.-For other cases, see Reformation vor of Crosson. The complainant never saw of Instruments, Cent. Dig. § 68; Dec. Dig. $ and never had in his possession either of the 16.*]

policies. The evidence shows that the older 3. INSURANCE (8 143*)_REFORMATION OF POL- policy was in the possession of Pierce & WatICY-CHANGE OF BENEFICIARY.

A purchaser of property covered by a fire son, the agents of the company, it having policy, providing that it should be void if any been intrusted to them by the mortgagee, change took place in the interest, title, or pos- and put away in their safe with the mortsession of the property, unless otherwise provided by agreement indorsed thereon or added

gage. Matters stood in this way until the thereto, who notified the insurer's agent of the premises were destroyed by fire; then proofs change in title, but failed to obtain its consent, of loss, which were apparently in proper could not have the policy reformed after a loss form, were submitted to the insurance comby making it payable to him instead of his grantor; the policy having apparently been in prop- pany, and nothing further appears to have er form at the time of its issue.

been done until the filing of the bill in this [Ed. Note. For other cases, see Insurance, case on March 22, 1910. The bill sets out Cent. Dig. $8 265-272; Dec. Dig. § 143.*] the two policies and the circumstances under 4. INSURANCE (8 328*)-FORFEITURE-CHANGE which they were issued, and the notice of OF TITLE OR INTEREST.

Where a purchaser of property covered by the transfer of the title of the property from a fire policy, providing that it should be void Dickey to the complainant, and prays that if any change took place in the interest, title, the older policy may be reformed so as to or possession of the property, unless otherwise be made payable to the complainant instead provided by agreement indorsed thereon or added thereto, informed the insurer's agent of the of to Dickey, and that a decree may be made change of title, but did not request the insurer directing the defendant. to pay the full to consent to the change, and the insurer nei- amount of both policies to the complainant. ther assented thereto nor waived the condition, there could be no recovery on the policy.

[1] I think it is quite apparent that the [Ed. Note. For other cases, see Insurance, complainant can have no decree in this court Cent. Dig. $$ 794-822, 825; Dec. Dig. $ 328.*) on the junior policy; that was properly is

sued to the owner of the property, and if the Suit by John Plockzek against the St. Paul company refused to pay, then the question as Fire & Marine Insurance Company. Decree to whether the claim of the owner was just for defendant.

or not could be, and indeed would have to be, Thomas Brown, of Perth Amboy, and Free- litigated in the courts of common law. The man Woodbridge, of New Brunswick, for cause of action on the junior policy is a sepcomplainant. John H. Patterson, of Jersey arate and distinct cause of action from the ('ity, for defendant.

one accruing on the older policy. There is no

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

doubt but that the common-law court would "I presume our firm had notice, but it didn't permit a recovery on both policies in one suit, come to me personally direct, because I am if they both stood on the same footing, but always very particular to see that a transfer there is likewise no doubt but that a separate

is made.” suit would be maintainable on each policy. I, ant was notified of the change of ownership,

I shall therefore assume that the defendtherefore, am constrained to say that the but that of itself would not be sufficient to complainant can have no relief in this court on the junior policy, and as to that cause of maintain the validity of the policy under its action the decree will have to be in favor of terms. By the terms of the policy the change the defendant.

of ownership invalidates the instrument, un[ 2-4] The suit on the older policy stands less a note of the change is indorsed on or in a somewhat different position. One of the appended to the policy. This is part of the prayers of the bill is that the policy may be contract, and is appealed to by the defendreformed by inserting the name of the com- ant, and must therefore enter into the judg.

The plainant in the place of that of Mr. Dickey ment to be pronounced by this court. as the person insured. It is a well-settled

It is a well-settled requirement has not been met. doctrine, which needs no citation of cases, ant upon the case of Milville Mutual Marine

Much reliance was placed by the complain. that the reformation of an instrument in writing can be accomplished in this court in & Fire Insurance Co. v. Mechanics & Workonly two cases: (1) Where there has been a ingmen's Building & Loan Association, 43 N. mutual mistake; and (2) where there has J. Law, 652. But there is a difference bebeen a mistake on the part of one of the par- that case the question was whether notice

tween this case and that in this regard ; in ties, with fraud on the part of the other. There is no evidence whatever before the of alienation was given to the company, and court which points in the direction of any led the condition of the policy in this respect.

whether the company assented to it or waiv. fraudulent action on the part of the defended the condition of the policy in this respect. ant or its agents; consequently if the com- of waiver of the conditions; neither do I find

As I have said before, I find no evidence plainant recovers, it must be on the ground of waiver of the conditions ; neither do I find of mutual mistake. The evidence, therefore, any assent of the defendant to the alienation must be searched to ascertain whether the of the property insured; neither do I find older policy was drawn or continued in the that there was any request made by the comform in which it now appears, by the mutual plainant to the defendant for its consent to

Mere notice of mistake of the parties. Originally the policy the transfer of the title. ran to the owner of the fee, and it was ap

transfer is not sufficient. The mere oral asparently in proper form at the time of its sent of the corporation would make a doubtissue. No question has arisen about its va

ful case, in the face of the requirement that lidity prior to the time of the transfer of the the consent shall appear in writing indorsed property to the complainant. The policy pro- upon or annexed to the policy, yet in a given vides as follows:

case the facts might warrant the conclusion "This entire policy, unless otherwise provided of a waiver of the provision. by agreement indorsed hereon or added hereto,

The decree on the older policy must also shall be void if *

any change other be in favor of the defendant. than by the death of an insured takes place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process

(83 N. J. Eq. 479) or judgment or voluntary act of the insured or CUMBERLAND TRUST CO. v. B. S. AYARS otherwise."

& SONS CO. This provision is a part of the contract, (Court of Chancery of New Jersey. July 22, and must be enforced, unless there is evidence

1914.) that its provisions have been waived by the 1. CORPORATIONS (8 406*) - OFFICERS - AUdefendant. I find no evidence of such waiv- THORITY OF MANAGER—TRUST AGREEMENT. er; therefore the clause thus quoted must

Where the entire business management of

a corporation had been intrusted to A. without stand as part of the contract evidenced by limitation, supervision, or restraint by the the policy. It is not claimed that there were board of directors, the corporation would be any negotiations between the complainant bound by a trust agreement executed by him, and the defendant at the time complainant executory in character, and operative alone on

the business to be transacted under it, by which purchased the property in question, or at any it was provided that the corporation would hold time thereafter, so that there were no con- in trust and separate, for settlement of the actract relations existing between the parties count of petitioner, all goods unsold and all at all. The case, therefore, turns upon the or other values received by the corporation for

currency, open accounts, notes, liens, mortgages, conversation that the complainant says he the goods. had with Mr. Pierce, the agent of the compa- [Ed. Note. For other cases, see Corporations, ny, in either June or October, 1907. The tes-Cent. Dig. 88 1611-1614; Dec. Dig. $ 406.*] timony is that at that time Mr. Pierce, the 2. CORPORATIONS (8 406*)–CONTRACTS-VAdefendant's agent, was notified of the trans

LIDITY—INSOLVENCY-RECEIVERS. mission of Dickey's interest to the complain-manager of a corporation agreeing to hold in

An agreement executed by the business ant. He himself says:

trust and separate, for settlement of the ac

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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count of petitioner, a creditor, all goods unsold, good faith. Even though it should be currency, open accounts, and other values re- thought to fall within the provisions of our ceived by the corporation for the goods, made statute touching conditional sales (2 Comp. in good faith, was valid and enforceable as against the corporation's receiver in insolvency. St. 1910, p. 1561), it would be void only as

[Ed. Note.- For other cases, see Corporations, to judgment creditors without notice and Cent. Dig. $$ 1611-1614; Dec. Dig. 8 406.*] subsequent purchasers and mortgagees with

Suit by the Cumberland Trust Company out notice (Smith v. Hotel Ritz Co., 74 N. against the B. S. Ayars & Sons Company. On J. Eq. 296, 77 Atl. 1135). The failure of the petition to direct receiver in insolvency to de- corporation to set apart cash received for liver certain assets to J. E. Tygert Company. goods sold (or to set apart the amount so

received through a credit being given by a Application granted.

creditor in a settlement), standing alone, D. O. Watkins, of Woodbury, for petition- would be fruitful of no consequences other er. James S. Ware, of Bridgeton, for re-than to render it impossible for the cestui spondent.

que trust to enforce the trust against the

goods so sold because of the right to sell and LEAMING, V. C. [1] 1. I am satisfied that collect having been bestowed upon the corthe authority of Arthur D. Ayars to execute poration or against proceeds of sales comthe contract in question in behalf of the cor mingled with other funds of the corporation poration represented by him has been suffi- because of inability to identify the proceeds ciently established.

of sale as a specific object of the trust. AşIn practical operation the entire business suming that either the terms of the conmanagement of the corporation appears to tract or the course of dealings of the parties have been intrusted to Mr. Ayars without justifies the conclusion that payments or limitation, supervision, or restraint on the settlements in the manner referred to were part of the board; an inference of authoriza- authorized by petitioner, there is yet nothing tion coextensive with the scope of that man- to be found in the mere right or privilege agement cannot be properly resisted. The to make such settlements to warrant the instrument in question may be said to be un conclusion that petitioner waived the right usual in character; but unlike a mortgage specifically defined in the contract to have (Howell v. Keene, 59 N. J. Eq. 634, 43 Atl. funds so received by the corporation set 1070), or a warrant for confession of judg- apart or kept separate as objects of the trust. ment (Stokes v. N. J. Pottery Co., 46 N. J. There can be little doubt that the trust proLaw, 237), or cognovit (Raub v. Blairstown visions of such an agreement spring from Creamery Ass'n, 56 N. J. Law, 262, 28 Atl. want of confidence in the pecuniary respon384), it in no way fastened a lien on the prop-sibility of the trustee, and to that extent erty of the corporation. It was a purely they may be said to contemplate and provide executory contract operative alone on the against the danger of future financial disbusiness to be transacted under it. The

aster; but, as the conventional relation of power of the president to execute it in the trustee and cestui que trust are lawful, the name of the corporation may be sustained rights arising from that relation must be prounder the principles defined in Murphy v. tected by this court as long as that relation Cane, 82 N. J. Law (53 Vr.) 557, 82 Atl. 854, in fact and in law continues, and I am unable Ann. Cas. 1913D, 643.

to conclude that the trust relation defined by [2] 2. It is undoubtedly true that if the the contract in question can be properly said real purpose of the contract was to make an to have been at any time terminated. effectual sale with no intent upon the part of I will advise an order pursuant to the the parties to give effect to the trust declar

prayer of the petition. ed, and the latter provision can be said to have been merely an empty form to be operative only in case of disaster, petitioner can

(83 N. J. Eq. 536) not now enforce the trust provisions of the contract according to its terms; and a like MAYOR AND COUNCIL OF TOWN OF

BOONTON V. UNITED WATER consequence may be visited upon a waiver

SUPPLY CO. of the trust provisions. In re Harrington (D. C.) 212 Fed. 542. But I am unable to (Court of Chancery of New Jersey. July 25, reach the conclusion that the contract was

1914.) not entered into in good faith or that its pro- 1. CONTRACTS ($ 10*)—WATERS AND WATER visions have been abrogated by waiver. COURSES (8 183*)–CONTRACT TO PURCHASE The stipulation contained in the agree

WATERWORKS-MUTUALITY-WATER COMPAment is that the corporation will hold in

NIES—BOOKS AND PAPERS-INSPECTION BY

TOWN. trust and separate for settlement of the ac

Where a contract by a water company to count of petitioner all goods unsold and all supply water to the inhabitants of a town procurrency, open accounts, notes, liens, mort- vided that the town might purchase the works gages, or other values received by the cor- and “at any and all times” might inspect the

books and vouchers of the company, the town poration for the goods. There can be no legal was entitled to exercise such right of inspection, obstacle to such an agreement if made in though it did not exercise its option to purchase

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes nor was it a valid objection that the inspection In other words, one party to this contract has privilege was not mutual.

a right which the other has not. The prin[Ed. Note.

For other cases, see Contracts, ciple of mutuality cannot apply under these Cent. Dig. $$_21-40; Dec. Dig. § 10;* Waters and Water Courses, Cent. Dig. ss .277, 278; circumstances. The opinion of Chief Justice Dec. Dig. § 183.*]

Gummere in Marvel v. Jonah, 90 Atl. 1004, 2. EQUITY (8. 48*)-REMEDY AT LAW-Con- which Mr. McCarter called to the court's at

TRACT RIGHTS_ENFORCEMENT-INSPECTION tention upon argument and which was filed
OF BOOKS AND PAPERS OF CORPORATION.
Where a water company's contract with a

on July 17th last, deals with this subject with town provided that the town at any and all great clarity and is very much in point. times should have the right to inspect the water See, also, Page v. Martin, 46 N. J. Eq. 585, 20 company's books and papers, the town was pot Atl. 46 (Errors and Appeals); Madison, etc., limited to mandamus to enforce such right, but Association v. Brittin, 60 N. J. Eq. 160, 46 properly sought such relief by suit in equity.

[Ed. Note.- For other cases, see Equity, Cent. Atl. 652; Philadelphia Ball Club v. Lajoie, Dig. $$ 156, 158; Dec. Dig. 8 48.*]

202 Pa. 210, 51 Atl. 973, 58 L. R. A. 227, 90 Suit by the Mayor and Council of Town of Am. St. Rep. 627. Boonton against the United Water Supply

[2] I have given consideration also to the Company. Decree for complainant.

argument made by counsel for defendant Frank H. Pierce and Charles E. Scribner, complainant in this issue; but I think that

that mandamus was the proper procedure for both of Boonton, and Robert H. McCarter, the action has been properly taken in the of Newark, for complainants. Elmer King, Court of Chancery, and that the remedy for of Morristown, for defendant.

the town is not as urged by counsel for the LEWIS, V. C. This is an application by the defendant. In the case of the State v. Elizatown of Boonton for an inspection of the bethtown Water Co., 89 Atl. 1039, which was books and vouchers of the United Water cited, it was the statute that gave the State Supply Company. This right is claimed Water Commission the right to inspect the under the terms of a contract made between books of the water company. Proceedings to complainant and Lewis Van Duyne and the enforce the said right in a court of competent Boonton Water Company. The defendant

jurisdiction were provided for by the statute. succeeded to the Boonton Water Company by The right in the case now before us arises purchasing all its property, including the out of the contract between the parties; in contract with the town, at a sale in foreclo- | the Elizabethtown Case, the right to examine sure proceedings.

arose purely out of a legal statutory duty [1] From my examination of the case I enforceable only in the Supreme Court by

mandamus. have reached the conclusion that the relief prayed for by the complainant should be

No hardship is suffered by the water comgranted. There is no doubt in my mind that, pany by an order for inspection as such order read in connection with the other provisions can be so framed as to prevent the inquisiof the contract, the words “at any and all tive but disinterested person or any competitimes,” which appears in paragraph 11, tor, if there be one, from coming to knowlmeans that the water company bound itself edge of the company's affairs. to give the inspection, even if the town did

In accordance with these views, an order not exercise its option to purchase. The

for inspection may be entered. privilege, it appears, was incorporated in the contract to give Boonton a chance to know

(83 N. J. Eq. 442) the true conditions before it should agree to CLIFT et al. v. SCHEUTZ et al. exercise its option. This is frequently done (Court of Chancery of New Jersey. July 23, where the public is concerned and is to be the

1914.) purchaser. And it is no doubt true that 1. MORTGAGES ( 244*)-ASSIGNMENTS-PRIwithout such right it would be difficult to get ORITY. the people at large to sanction the making of earlier in time of two assignments of the same

Unless affected by the recording acts, the a contract such as the one under considera- mortgage prevails. tion. There is, of course, consideration for [Ed. Note. For other cases, see Mortgages, the agreement to give this inspection as the Cent. Dig. $8 633-655; Dec. Dig. § 244.*] town has been using the water supplied by 2. MORTGAGES (

8244*)-ASSIGNMENTS-PRIthe water company and paying for the same ORITY-NOTICE.

Under Conveyance Act (P. L. 1898, p. under the agreement, ever since it was exe-690) $ 54, providing that instruments which cuted.

may be recorded under section 21 shall be void The suggestion made by counsel for the de- and of no effect against subsequent judgment fendant, that the relief should not be grant-creditors without notice, and against all subed because there is a want of mutuality if sequent bona fide purchasers and mortgagees,

not having notice thereof, whose deed or mortthis is done before the town exercises its gage shall have been first duly recorded, an option, cannot prevail in view of our deci- assignee of a mortgage, to whom the bond and sions, and further this contract by its terms mortgage were not delivered, and who over a gives this right of inspection to the town au- which the interest of the mortgagee was at

year before acted as attorney in a suit in thorities—a right not given to the company. I tached in the possession of the holder of a

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No: Series & Rep'r Indexes

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