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the rights of the plaintiffs, and should col-, The court sustained the demurrers and dislect the amount thereof from the state road missed the bill, but ordered the costs of the commission and the county commissioners of proceedings to be paid by the receiver out Caroline and Talbot counties.

of the fund in dispute. From this order the The relief prayed for was:

plaintiffs have appealed. (1) That a receiver may be appointed to take [1] "It is an established rule of equity that, charge of the said fund now in the hands of the when a corporation becomes insolvent, it is said state roads commission and the said O. E. Weller, as chairman thereof, and the said coun

so far civilly dead that its property may be ty commissioners of Talbot county and the administered as a trust fund for the benefit said county commissioners of Caroline county, of its stockholders and creditors (Graham v. and such other property as the said York Bridge La Crosse & M. R. R. Co., 102 U. S. 148, 167, Company may have in the state of Maryland, and to preserve or dispose of the same under 26 L. Ed. 106)—not simply of stockholders and the direction of this court.

creditors residing in a particular state, but (2) That the said state roads commission and all stockholders and creditors of whatever the said O. E. Weller, as chairman thereof, and state they may be citizens. In Wabash St. the said county commissioners of Talbot county and the said county commissioners of Car- L. & P. R. R. Co. v. Ham, 114 U. S. 587, 594, oline county may be required to bring into this 5 Sup. Ct. 1081, 29 L. Ed. 235, it was said that court, to be deposited to the credit of this the property of a corporation was a trust cause, the aforesaid fund now due on said con- fund for the payment of its debts, in the tract.

(3) That the said York Bridge Company and sense that when the corporation was lawfulits foreign receiver may by injunction be re- ly dissolved, and all its business wound up, strained and enjoined from collecting the said or when it was insolvent, all its creditors fund or any part thereof from the said state roads commission, the said 0. E. Weller, as

were entitled in equity to have their debts chairman thereof,' the said county commission- paid out of the corporate property before any ers of Talbot county and the said county com- distribution thereof among the stockholders. missioners of Caroline county.

When the general debts and assets (4) That the said state roads commission and 0. E. Weller, as chairman thereof, the said of a private corporation, lawfully doing busicounty commissioners of Talbot county and the ness in a state, are in course of administrasaid county commissioners of Caroline county tion by the courts of such state, creditors may by injunction be restrained and enjoined who are citizens of other states are entitled,

the of part thereof, until the further orders of this under the Constitution of the United States, court.

to stand on the same plane with creditors of (5) That your orators' claim to the said fund like class who are citizens of such state, and may be adjudicated by this honorable court in cannot be denied equality of right simply these proceedings.

(6) That the said the Title Guaranty and because they do not reside in that state, but Surety Company may be required to pay the are citizens residing in other states of the claim of your orators, and in turn be subrogat. | Union.” Blake v. McClung et al., 172 U. S. ed to the rights of the plaintiffs to the fund 239, 19 Sup. Ct. 165, 43 L. Ed. 432. in question.

(7) That your orators may have such other [2] The Title Guaranty & Surety Company and further relief as the nature of their case is not liable for the payment of the plaintiffs' may require.

claim for the reason that it assumed no such Redmond C. Stewart, the receiver of the liability under the terms of the bond. AlYork Bridge Company, filed a petition in though such a liability was asserted by the which he stated that by an order of court bill, it was not pressed in argument, or inpassed in the case pending in circuit court No. sisted upon in the brief, and it must be con2 of Baltimore city, entitled "York National ceded that under the terms of the bond, which Bank v. York Bridge Co.,” he had been au- we have transcribed, that company is under thorized to take proceedings in this cause, no obligation to pay the plaintiffs' claim. looking to the establishment of his claims as It is said in 4 Elliott on Contracts, $ 3633, receiver against the fund involved in this that: controversy, and prayed to be made a party "The contractor may assign different parts defendant, and an order of court was passed of the work to subcontractors and others, unadmitting him as a party defendant as less prohibited by the agreement, but he is

responsible for those he employs, since a conprayed.

tract does not exist between a subcontractor The state roads commission filed its answer employed by the general contractor and the to the bill in which it denied:

owner of the building, and the responsibility "That the Title Guaranty & Surety Company of the owner is only to the general contractor. is entitled to collect the amount of the indebt. Thus a provision in a contract for the conedness of the York Bridge Company to the com- struction of a railroad, permitting the railplainant from these defendants, or that the road company to apply any money due or to complainant is entitled to an injunction restrain become due under the contract to the paying these defendants from paying over said bal- ment of liens for labor and materials furnished ance of $5,516.66, or any part thereof, to the the contractor, does not impose any obligation York Bridge Company, or its receiver,' or that on the railroad company to pay liens, since the complainant is entitled to have a' receiver the provision was wholly for the benefit of the appointed for said sum of money, or any part

railroad company." thereof."

What the York Bridge Company in fact The Title Guaranty & Surety Company and did was to sublet a portion of the work covRedmond C. Stewart, the receiver of the York ered by the contract to the plaintiffs, alBridge Company, filed demurrers to the bill. I though, by the express provision of the con

tract quoted above, it was prohibited from Nor do we find anything in the cases of doing so, without the written order of the Bellamy V. Davey (1891) 3 Ch. 540, and county commissioners approved by the engi- Hurley v. Atchison, etc., Ry., 213 U. S. 126, neer, and this order and approval does not 29 Sup. Ct. 466, 53 L. Ed. 729, in conflict with appear to have been given. It was likewise the conclusion we have reached. Those cases prohibited from assigning any money payable presented a dissimilar state of facts and were under the contract. The plaintiffs must be governed by different principles. treated as mere subcontractors.

The order appealed from will be affirmed. . [3] They are simply creditors of the York Order affirmed; the costs in this suit to be Bridge Company, and not of the defendants, paid by the receiver of the York Bridge Comwho are debtors to that company, and to pany out of the fund. whose receiver the fund is now payable. Under the facts of the case, the doctrine of subrogation has no application. That doctrine

(83 N. J. Eq. 470) is never applied, when by so doing it will work an injury upon other persons by de

MAYOR AND COMMON COUNCIL OF stroying their legal or equitable rights. In

NEWARK V. NATIONAL SILK Milholland & Wilcox, Trustees, v. Tiffany, 64

DYEING CO. et al.

(No. 38171.) Md. 460, 2 Atl. 834, the court says: It may be applied on equitable principles (Court of Chancery of New Jersey. Aug. 21,

1914.) in behalf of one, who at the instance and request of the debtor pays a lien or incumbrance INJUNCTION ($ 26*)—GROUNDS OF RELIEF. which he was under no legal obligation to pay, An injunction could not be granted to enprovided it does not interfere with intervening join separate suits at law, brought by millownrights and incumbrances. It will not, of course, ers, whose factories adjoin the Passaic river, be applied as against superior or equal equi- for damages for the wrongful abstraction of ties.

water from the river by a water company, which

suits had no connection with each other, since The plaintiffs have no more claim upon the to do so would violate a fundamental equity funds than other persons who may have sup- rule that distinct and independent causes of plied labor and material on the erection of action may not be united in one bill. the Dover Bridge. To sustain the plaintiffs'

[Ed. Note.-For other cases, see Injunction, claim under the circumstances would be to Cent. Dig. && 24–49, 54–61; Dec. Dig. § 26.*) establish a precedent that might involve the

Suit by the Mayor and Common Council of public authorities in litigation and result Newark against the National Silk Dyeing in the expenditure of public money and the Company and others, to enjoin certain suits consumption of public time in any case in at law. Denied. which there was a dispute between the sub Herbert Boggs, of Newark, for complaincontractor and the general contractor. Al- ant. W. I. Lewis, of Paterson, for National though the facts are not precisely similar, Silk Dyeing Co. et al. Gilbert Collins, of the principles announced in Lombard Gov. Jersey City, for East Jersey Water Co. Co. v. Mayor and City Council of Baltimore, 121 Md. 303, 88 Atl. 140, should be applied to

STEVENS, V. C. This is an application to this case.

The plaintiffs occupy the same enjoin 12 suits at law, brought by millownsituation as other subcontractor creditors of ers, whose factories adjoin the Passaic river, the insolvent company, and must share rate for damages for the wrongful abstraction of ably with them in the distribution of the as water by Newark, Jersey City, and the East sets of the company.

Jersey Water Company. The application The cases of Ex parte Golding, Davis & must be denied, for the reasons given by me Co., 13 Ch. Div. 628, and Kemp v. Falk, 7 in the case of Newark v. Chestnut Hill Land App. Cas. 573, cited by the appellants, dealt Co., 77 N. J. Eq. 23, 75 Atl. 644. with the right of stoppage in transitu, and It is said that the case on hand is disestablished the right of an unpaid vendor to tinguishable from the case cited in that there the surplus proceeds of the sale of his own it did not appear that a multiplicity of suits goods after the rights of the subpurchaser would be prevented by the mere transfer of had been performed. In the first case cited jurisdiction, while here it does, for the obthere had been an absolute sale of the goods ject here is to consolidate 12 suits into one. by the original purchaser, but the purchase But, if this court sustained the contention, it money had not been paid. "Can the vendor," would violate one of the fundamental rules said Cotton, L. J., “make effectual his right of equity pleading, viz., that distinct and inof stoppage in transitu without defeating in dependent causes of action must not be unitany way the interest of the subpurchaser? ed in one bill. The suits by the National In my opinion he can. He can say: I claim Silk Dyeing Company against Newark have the right to retain my vendor's lien. I will no connection with those against Jersey City not defeat the right of the subpurchaser, but or the East Jersey Water Company. The what I claim is to defeat the right of the suits by the different companies against those purchaser from me; that is, to intercept the corporations have no connection with each purchase money which he will get, so far as other. Simmons V. Paterson, 60 N. J. Eq. is necessary to pay me."

385, 45 Atl. 995, 48 L R. A. 717, 83 Am. St.

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

Rep. 642, was quite different. There several , did not restrict the power of a wife, under paracomplainants, suffering from a common nui- graph 5, to make contracts, express or implied, sance, joined in one bill. The effect of this with reference to the improvement of real prop

erty which would be enforced in equity, thougb nuisance upon lands, known as riparian, was not created by conveyance or other instrument. the subject dealt with by the Court of Errors. [Ed. Note. For other cases, see Husband and Here it would seem that the injury or prin- Wife, Cent. Dig. 88 575-581; Dec. Dig. $ 150.*] cipal injury complained of is the injury to 4. HUSBAND AND WIFE ($ 202*)–OWNERSHIP the various businesses of the plaintiffs. OF PROPERTY-RESTRICTIONS-ENFORCEMENT

AGAINST WIFE. There the complainants were affected by the

Where a husband and wife, owning a tract same act. Here the plaintiffs are affected by of land by the entirety, laid it out in building the perfectly distinct acts of Newark, Jersey lots according to a general plan, imposing limiCity, and the water company.

tations on the use of the land as building lots It is true that the aggregate damage re- of first-class one-family residences on the tract,

and restrictions intended to secure the erection sulting from the separate acts of the three and the husband sold complainant a lot, with wrongdoers may be variously estimated by reference to the plan, which showed that certain different juries, if the cases be tried sepa- other lots were abutting and subject to such rately, but the possibility of different find restrictions, the wife after the death of her

husband, and becoming a feme sole, was liaings on the same state of facts is not a ble to complainant for the performance of the ground of equity jurisdiction. Besides, there limitations and restrictions with reference to is nothing to indicate that, if the verdicts the adjoining property as an implied covenant, should be the result of differing or conflict- though all of the restrictions and limitations

were not specified in complainant's deed. ing estimates of total damage, Newark would

[Ed. Note. For other cases, see Husband and be the one to suffer. If consolidation of the Wife, Cent. Dig. $$ 737, 945; Dec. Dig. $ 202.*] suits for the purpose of trial be, to a greater

Action by Emma L. Schickhaus against or lesser extent, desirable, I know of no Margaret J. Sanford. On motion to strike reason why the Supreme Court should not out bill for want of equity. Denied. be asked to consolidate. I cannot overlook the fact that the Su

W. C. Headley, of Newark, for the motion. preme Court, in the suits brought by the Ernest F. Keer, of Newark, opposed. Weidman Dyeing Company, has formulated a rule which it has applied to this very class

EMERY, V. C. The facts set out in the of cases, thus declaring that it deems itself bill substantially show that one Sanford and competent properly, to deal with them. his wife, being the owners by the entirety of

a large tract of land in Newark, laid out the

same for sale in building lots according to (83 N. J. Eq. 454)

a general and uniform plan relating to the SCHICKHAUS V. SANFORD. (No. 33–478.) limitations made upon the use of said lands (Court of Chancery of New Jersey. Aug. 21, as building lots, and with restrictions, in1914.)

tended to secure the erection of first-class one1. HUSBAND AND WIFE (8 193*)—MARRIED family residences on the tract. The bill also WOMEN-RIGHT TO CONTRACT–STATUTES. shows specially, as to the lot which was pur

3 Comp. St. 1910, p. 3226, § 5, declaring chased by the complainant's predecessor in that contracts of a married woman shall be enforceable in equity as if she were sole, is quali- title, that according to the general plan as fied by section 14, declaring that a married declared by the owners, appearing by the woman may not execute any conveyance of her map adopted by the owners, complainant's real property or any instrument incumbering lot was to be a lot 50 feet by about 100 feet the same without her husband's joinder.

[Ed. Note. For other cases, see Husband and in depth, located on Sanford avenue, one of Wife, Cent. Dig. $8 716-718, 940; Dec. Dig. 8 the three streets laid out through the tract, 193.*]

and abutted on two lots fronting on Clinton 2. COVENANTS (820*) IMPLIED RESTRIC-avenue, each about 50 feet in width and 175 TIONS.

feet in depth. According to the general plan Restrictions, in a general plan adopted by the owner to sell lots, may in equity be im as alleged in the bill, these two lots were to posed on the lands beyond the express restric- be sold together as a lot fronting 100 feet tions contained in the deeds to the purchaser, on Clinton avenue and 175 feet deep. Comon the theory of implied covenant.

plainant's lot was purchased, relying on the [Ed. Note.-For other cases, see Covenants, existence of this map and plan, making the Cent. Dig. § 19; Dec. Dig. § 20.*]

adjoining lots abutting lots, and upon the 3. HUSBAND AND WIFE (S_150*)—MARRIED special representation by the owners that

WOMEN CONTRACTS ENFORCEMENT IN
EQUITY.

these lots on Clinton avenue were to be sold 3 Comp. St. 1910, p. 3226, § 5, declares as abutting lots, and, as thus shown on the that contracts of a married woman shall be en- map then produced, for the purpose of inforceable in equity as though she were sole, ducing complainant's purchase of the adjoinand section 14 provides that a married woman may not execute any conveyance or incum- ing lot, the price of which, as then agreed on, brance on her real property without her hus- was increased by reason of this adjacency band's joinder. Heid, that paragraph 14 re- to the abutting lots. But the deed for comlated only to the character of conveyances and instruments by which a married woman's real plainant's lot, which is also set out in the property might be conveyed or incumbered, and bill, while it referred to the lot as being No.

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

22 on the map, did not contain any express joined in by her while she was a married worestriction or covenant, on the part of the man and while holding an estate in entirety grantors, that the adjoining lots should be with her husband; and that, in the absence sold as abutting lots, as shown on the map. of any deed or conveyance imposing the equiIt did, however, contain express restrictions table burden or restrictions on her remaining as to the character and use of the building lands, she is not, as the owner of the entire to be erected by complainant upon the lot estate after her husband's death, bound by conveyed, its distance from the curb line, its such plan made during the coverture and durcost, and also contained a covenant on being the continuance of the estate by the enhalf of the husband (in which the wife did tirety. not join) that no stable should be erected or [1] The Married Women's Act (Compiled placed on the lands lying south of and ad- Stats. p. 3226, § 5), makes the contracts of a joining the lots conveyed (being the abutting married woman enforceable in equity as if lots) within 40 feet of the dwelling house to she were a feme sole, but the subsequent secbe erected on the premises conveyed. The tion of the same act (Id. p. 3237, § 14) qualiwife herself made no express covenant by fies the effect of this section by providing the deed in relation to the adjoining lots. that it shall not enable a married woman to

Complainant's predecessor in title, as her execute any conveyance of her real estate or bill states, refused to accept this deed, be- any instrument incumbering the same, withcause she desired further and more explicit out her husband's joining therein, as heretoassurances that the building plan or scheme fore. would be carried on in respect to the lot con The husband, in the deed conveying comveyed being an abutting lot, and thereupon plainant's lot, entered into an express coveMr. Sanford wrote the following letter: nant restricting the character and use of the

“In regard to the sale of lot 22 on map of adjoining lots, but in this covenant the wife my property (being complainant's lot) in an- did not join, nor did the covenant entered swer to your request of me to my intentions in into by the husband expressly restrict the regard to my other property lying between the lot conveyed by me to you and Clinton avenue sale as an adjoining lot, or the erection of (the abutting lots), state that my intention is to any building other than a stable within 40 sell all my property under restrictions, and feet of the dwelling house to be erected on the lots lying between your lot and Clinton the purchaser's lot. The husband did, howavenue, in two lots or plots only, and if a stable be allowed on either of said lots that the ever, by his letter set out in the bill, impliedsame be placed on the dividing or central line ly, if not expressly, agree that the lots in of the lots and at least 40 feet from any dwell- question should be abutting lots, and procuring house erected by you."

ed the sale and the acceptance of the deed for This letter was not signed by Mrs. Sanford, the purpose of erecting a dwelling house, on who has survived her husband, and is now the faith of this assurance. It is not claimthe sole owner of the unsold portions of the led that the wife's estate after her husband's tract.

Since her husband's death, she has, death is bound by this letter as a contract as the bill alleges, repudiated any obligation on her part, and, under the decisions, it to observe the assurances of the letter in could not be incumbered by the husband's reference to the method of sale of the lots, sole agreement. Washburn v. Burns, 34 N. and has (among other acts) offered the rear J. Law, 18; Servis v. Dorn, 76 N. J. Eq. 241, portion of the lots abutting on complainant's 76 Atl. 246 (Walker, V. C., 1909); 2 Kent's lot for sale as a single lot fronting on the Comm. 133. It is claimed, however, that she same street with complainant, and as an ad- is bound in equity to observe these restricjoining lot. If this change should be carried tions by reason of the general building plan out and a dwelling be erected adjoining com- imposed and adopted by both of them in conplainant's lot, it would deprive complainant nection with the map referred to in the deed, of certain advantages of light, air, and access which showed the lots as abutting lots and which she claims the right to enjoy as the the representations relative thereto at the owner of a residence on abutting lots. The time of the purchase. bill is filed to establish and enforce the re [2] Restrictions under general plan striction claimed to have been imposed by the adopted by the owner for the purpose of owners on the sale of these Clinton avenue selling lots may in equity be imposed upon lots by the general building plan, as declared lands of the owner, extending beyond the and announced by the husband and made in express restrictions contained in the deeds to connection with the sale by reference to the a purchaser, and on the doctrine of implied map, and to require these adjoining lots to covenants. Lennig v. Ocean City Association, be sold as abutting lots.

41 N. J. Eq. 606, 608, 7 Atl. 491, 56 Am. Rep. A motion to strike out the bill for what of 16 (Errs. & App.); Herold v. Columbia Inequity is made, and the reason mainly relied vestment Co., 72 N. J. Eq. 857, 860, 67 Atl. on at the argument is that no contract or 607, 14 L. R. A. (N. S.) 1067, 129 Am. St. agreement, in reference to the sale of the Rep. 718, 16 Ann. Cas. 580 (Errs. & App. lots as abutting lots, enforceable against 1907); Tallmadge v. East River Bank, 26 N. Mrs. Sanford, appears in the bill. It is Y. 105 (1862). claimed that the alleged building plan set out In this case (heard as on demurrer) the in the bill appears to have been made or imposition of the restriction on the sale of

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the corner lots by the general plan, in con-, which would have been binding on her as a nection with the map, and the special rep- feme sole, and which may be enforced withresentations at the time of the sale must be out requiring any conveyance or other instrutaken as admitted. But as it sufficiently ment. appears by the bill that these restrictions The motion to strike out must be denied, on the adjoining lots, now solely owned by and the bill should be answered. the defendant, were not imposed by a conveyance or instrument in which her husband joined, and which was acknowledged by the

(83 N. J. Eq. 472)

HARRIS et al. v. PEARSALL: wife as a deed, the question is whether the wife's contracts, representations, or acts of (Court of Chancery of New Jersey. Aug. 31,

1914.) other kinds imposing such restrictions are not within the exception of the fourteenth 1. MORTGAGES (8 318*)-RELEASE-COVENANTS

-ENFORCEMENT. section.

Where a mortgage provided that any per[3] In my judgment they are not, for the son acquiring 2,500 square feet of land coverreason that this provision of the fourteenth ed might at any time tender the money and have section was, I think, one which related only the benefit of the clause for release of such porto the character of conveyances and instru-covenant on the part of the mortgagee to re

tion, such provision constituted a continuing ments which were intended to be the means Jease to any purchaser of 2,500 square feet or employed for conveying or incumbering the more the amount so purchased on tendering the legal or equitable title of a married woman in proportionate part of the mortgage debt. the lands, and to prescribe the formalities Cent. Dig. Så 956-961; Dec. Dig. 3 318.*)

[Ed. Note. For other_cases, see Mortgages, for such conveyance or instrument, if made. It was not intended, in my judgment, to re

2. SPECIFIC PERFORMANCE ($ 134*)-Costs.

Where suit was instituted to compel specifstrict the power of the wife, under the fifth ic performance of a mortgagee's covenant to section, to enter into such obligations and release parts of the property on tender of a contracts, express or implied, as would be proportionate amount of the mortgage debt, the enforced by a court of equity, independent of formance and not a bill to redeem, and defend

bill would be regarded as a suit for specific pertheir being created by a conveyance or other ant having answered denying complainant's instrument.

right to a release, and been cast, costs would [4] Had the defendant, as a feme sole, im- not be awarded to either party. posed the plan and entered into the restric- formance, Cent. Dig. & 441; Dec. Dig. § 134.*)

[Ed. Note. For other cases, see Specific Pertions alleged in the bill, there would be no question of the right of a court of equity

Bill by Walter J. Harris and another to enforce the restrictions by injunction, in- against Leigh M. Pearsall, for specific perdependent of any conveyance or other instru- formance. Decree for complainants. ment creating them, and in my judgment the T. A. Spraggins, of Jersey City, for comconstructing of the two sections together, as plainants. Lloyd Thompson, of Westfield, applied to the facts in the present case, is for defendant. that the wife's contracts or obligations, which relate to lands which she owns or in STEVENSON, V. C. (orally). I shall diswhich she has an interest, are enforceable in pose of this case without regard to technicaliequity to the same extent as if she were a ties. There are a number of technical quesfeme sole, with the qualification that if, as tions which arise in the case. We have two against a feme sole, the creation or enforce-parties suing as complainants, whose interment of such contracts requires a conveyance ests are entirely distinct. No objection has or other instrument, then, in the case of a been made to the bill on the ground of mulmarried woman, this conveyance or instru- tifariousness or misjoinder, and this is the ment must be executed with her husband as sort of a case which very conveniently can neretofore, otherwise it cannot be created or be brought in that way, although an accurate enforced. But where a feme sole in equity, analysis of the case would disclose two sepwithout a conveyance or other instrument, arate causes of action, which do not corelate. would be required by injunction to specifi- There is no difficulty in making a decree cally perform a contract, and this perform- which covers the cases of both of these parance does not require the execution of a ties complainant as to their respective lots. conveyance or other instrument, then a mar [1] I shall construe the bill, not as a bill ried woman in similar circumstances may be to quiet title, but as a bill to redeem, or as required to perform the contract. This con- a bill to compel the specific performance of struction prevents any decree for specific per- the covenant contained in the mortgage, and formance of a contract for conveyances of my conclusion is that this clause in the mortland by a married woman in which the hus- gage is not limited at all to any period, is band did not join, as was held by V. C. Ste permanently attached to the mortgage, and vens in Corby v. Drew, 55 N. J. Eq. 387, 391, follows it as long as the mortgage exists, 36 Atl. 827 (1897), but does not prevent the and that any person who acquires 2,500 enforcement by this court by injunction of square feet of land covered by that mortgage restrictions as to her lands under a building may at any time before the mortgage comes plan, made by her as a married woman, I due, or afterwards, come forward and tender

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

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