USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 4
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This cause was heard upon the Bill & Answer Hopkins for the Pl't insisted
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That the Debt tho' extinguished at Law is Assets in Equity and cited 8. E 4. fo 3. Nichols ag't Chamberlayne. Nel. 44 S. C. 3. Ch. Rep. Tlud & Rumsey Yel. Phillips ag't Phillips - 1 Ch. Ca. 292. S. C. Finch 410 Wankford ag't Wankford 1 Salk. 299. - Dorchester ag't Webb 1.Cro: 372.
Sr. J. R. for the Deft. , The testor's intent was to discharge the Debt by making I. F. Executor as may be Inferr'd from his discourse with I. F. mentioned in his Answer That collateral proof is admitted in Equity to explain a testor's intention and cited Lady Granville ag't Dutchess of Beaufort 2 Vern 648 & Id. 593. 736.
This rule was also insisted on He that will have Equity must do Equity That the Deft. had a great deal of Equity against the testor upon the several Matters disclosed and sworn in his Answer particularly that about his Wife's portion and the Land.
The Bill was dismist
Note it seemed to be agreed by Sr. J. R. that the Debt was Assets which is certainly a clear point And the Courts Opinion as I took it turn'd upon the Matters disclosed in the Deft.'s Answer.
Vide Sir J. Randolph's Argument Def. No. 42.
NICHOLAS & HIS WIFE ag't BURWELL'S Extors In Chanc'y.
2. Hop. 89. [Note by W. G.] (Hop. 18. Rand. 101. In Myers's Copy.)
Burwell by his Will devises to the Child his wife was Enseint
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with if a Son £2000. if a Daughter £1000. when such Child arrived at the Age of twenty one After the Testor's death his relict was delivered of a daughter who dyed before twenty one And this Bill was brought by the Plt. and his wife (the testor's relict), for her part of the £1000 devised to the posthumous daughter.
The Defts. Demurred because it appeared by the Complain- ant's own Shewing the daughter dyed before twenty one and so the legacy never vested -
Randolph for the Defts.
There is a difference where money is devised to one at such an [34] age or when they come to such an age and where to be paid at such age. In the first place if the Legatee dyes it is a lapsed legacie but in the other case it shall go to the Executor or Admin- istrator That the reason of this distinction is rather from a complyance with the Civil Law and the determination of the Spiritual Court that there may be an uniformity in Judgment, than from any real difference in the nature of the thing. That as there was no Spiritual Court here the distinction should be exploded And that the legacy lapsed in both Cases Cited Swinb. 310. 313, Wentworth Cloberry's Case 2 Vern 343. 2 Ch. Ca. 155. s. c. 2 Ch. Rep. 155, Godb. 182. Smell con Dee 2 Salk. 415. Lord Pawlet's Case 2 Ch. rep- 165. S. C. 2 Vern. 366. Cave & Cave 2 Vern. 508, Yeats & Fettiplace Id. 416, Smith & Smith Id. 92. Carter v Blesto Id. 617. Onslow & South Eq. Ca. Abr. 295. 296. Vide plus ibidem
But if this be not a lapsed legacie it is not paiable till the child would have been twenty one And cited 2 Vern 283 Papworth ag't Moore Eq. Ca. Abr. 299. 2 Vern. 199
Hopkins for the Complts.
Insisted that the distinction between a legacie given at such an age and to be paid at such an age was exploded there being no real difference and the intention of the testor was the same in both cases and that the intention ought to govern He said the legacie vested in both Cases and should go to the Extor - Cited Sanders con Erle 2 ch. rep. 8'o 188. Luke ag't Aldern 2 Vern. 31. & 2 Vern. 199.
And sayed the Cases of Yates & Fettiplace Lord Pawlets & Smith & Smith would not affect this Case because there the Charge was upon land and it was to ease the heir As to the
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Objection that the Suit was brought too soon because the daughter would not have been twenty one if alive He cited Lady Lodges case 1 Leon. 277. 278. & Sanders [(4) Note by W. G.] con Erle Supra.
[Note by W. G.] ( Vide Ch. Ca. Abr. 299-300 that the adm'r must wait till the legatee would be of age, but if a legacy is given to A. paiable at 21 and if he dies before then to B. he shall have the Legacy presently 2 .W'ms 478. Laundy vs W'ms.)
[Note by W. G.] (Not in Myers's copy.)
The Demurrer was allowed.
See Mod. Ch. Ca. 105. 106. Sayed to be a standing rule in Equity that where a portion or legacy is to be paid at a time to come out of lands if the Legatee dies before the day the legacy is sunk & gone. But it is otherwise if the legacy is to be paid out of personal Estate.
[ Vide Sir J. Randolph's Argument 1 Defts. No. 39
So where portions were charged on Lands, and if any of the Children died before twenty two or marriage to go to the Sur- vivors, One dies, that portion shall not be paid before it Would have become due, had the Child lived. Select cases in Chan. 15.
[Note by W. G.] (This not in Myers's copy.)
MICON ag't CORBIN. [35]
This was an Action of Account Render . Persons were ap- pointed by the Court to settle Accounts between the Parties Who having returned an Account stated Judgment was now prayed for the ballance found due to the Plt.
Randolph for the Deft. Opposed a Judgment and sayed the Judgment of Auditors in account was not final. That this was not like the Common Case where matters of Account are referr'd by assent. That the Auditors had mistook their Office and should have persued the method prescribed in the books in Actions in this nature i.e. Where there is any doubt or dispute to make up an issue and send it to the Court for Tryal And cited a precedent to that purpose.
The Court overruled the Objection It having been the Practice here to proceed in this manner and Judgment for the Plt.
[Note by W. G.] (See Rob. Virg. Pract. 76.)
STITH ag't SOANE & OTHERS.
This was an Information against the Justices of Charles City for not keeping a sufficient Prison. The Plt. offered in
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Evidence the record of a Judgment in an Action brought against him when Sherif for an Escape in which it was found by the Jury that the Prison was insufficient And allowed by all the Court except Grymes who thought it should be only admitted to prove the damages the Sherif had sustained but not the insuffi- ciency of the Prison --
THE KING ag't MOORE
[Note by W. G.] (Hop. 17 in Myers's Copy.) Jeff. Rep. 8. S. C.
An Information was brought against the Deft. upon the Act of 5 & 6 Geo. 2. laying a duty upon Slaves for not transmitting to the Collector of the duty's a List of the Slaves by him sold imported in the ship A.
The Deft. Offered as Witnesses the Master and Steward of the Ship to whom Mr. Attorney Objected as parties in interest hav- ing Slaves of their own aboard But the Court seemed to think it no Objection And sayed at the Bar if two are concerned in a trespass and one is Indicted the other may be a Witness for or against him And by Sr. J. R. If one is sued for any matter for which another is also chargeable that other person may be a Witness.
The Jury found a Special Verdict.
That the Act was passed 1 July 1732 about four in the After- noon [36] (5) and the Ship came toan Anchor off Back River the said 1 July about two leagues from the Shore Came into the Capes about twelve and came to Anchor ketween seven and eight and could have got up to York. if they had had a Pilot On the second of July the Ship got into the mouth of York on the third to York Town and enter'd the fifth.
2 Questions were made upon the Verdict 1st Whether the day of passing the Act was exclusive or inclusive 2d Whether this was an Importation. The words of the Act are " From and after the passing of this Act there shall be paid &c. for all Slaves imported or brought into this Colony and Dominion for sale &c." .As to the first for the King it was insisted there could be no fraction of a day And the Act being passed the 1 July that whole day must be included And Clayton's Case 5 rep. 1 was Cited.
Hopkins for Deft. agreed there was no fraction of a day but insisted the day of passing the Act was excluded and conse-
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quently this Importation was before the Act & Cited Clayton's Case supra and the Case in Dyer 5 Eliz. 218 there cited Which seemed to be in point.
Also cited Holt's Opinion in Rob't Howards Case 2 Salk. 625. & Lord Rocking- ham ag't Oxenden 2 Salk 578.
As to the 2d. Insisted for the King that the Place where the Ship Anchored 1 July was not within any port & so no Importa- tion To which it was answered There are no ports laid out here as in England And that coming within the Capes with an Intent to come strait to Virginia is an Importation.
Judgm't for Deft.
[ Vide Hopkins Argument in Libro parvo. 84. 2 Hop.
[Note by W. G.] (This is not in Myers's copy.)
THE KING ag't PRYOR.
Indictment for an Assault It was moved by the Deft. that the Indictment might be dismissed because the deft. before the Bill found had given his note to the prosecutor for two pistoles in satisfaction of the Assault But the Court refused to dismiss it because there is a fine to the King.
MEGGS ag't BALES Appeal from Essex. [37]
This Case was upon a Special Verdict where it was found the Deft promised to pay the Debt of another but no consideration of the promise found
It was insisted for the Appellant (the Deft. in the Action) that this was Nudum pactum & void as well in law as in Equity & Justice - Since it was neither advantage to him that made the promise nor loss to him to whom it was made And the Plt. had still his remedy against the principal since he was not dis. charged.
The Cases cited for the Appellant were Dr. & Stud't 210. Mar. 203. Pop. 183. Cro. Jac. 207. 213. 438. 1 Vertr. 9. 27. 159 Cro. El. 19. 703. 1 Salk. 364.
1 Vent. 6. Ba. Abr. 30. 4.
But notwithstanding all those authorities expressly in point the Court Adjudged it a good Promise And County Courts Judgment Affirmed.
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These Authorities were not denied nor one book quoted against them. But the Argument was the common case of Mer- chants giving credit in their Stores and who every day trans- ferr'd one Man's debt to anothers account -
NB. There seems to me a great difference in the Cases Where credit is given in a Store the delivery of the goods is a good Consideration. And as to the Case of transferring debts there is also a good consideration if Credit is given to the principal for thereby he is discharged -
[W. G.] (6).
APRIL COURT MDCCXXXIV
THE KING ag't MCCLANAHAN
2 Hop. 117 [Note by W. G.] (Hop. 29. in Myers's Copy) Jeff. Rep. 9. S. C.
Debt for 3000 1bs. Tobacco on the Act 7'o Geo. 1. for refusing the office of Sherif.
The Case was the deft. was the first of the three recommended by the County Court A Blank Commission was sent up to the Clerk of the County Court under the Seal with directions from Mr. Robertson to offer the Commission to the deft. and if he refused to put in the name of the next person recommended. Deft. refused before the County Court and the Commission was filled up with the name of another And whether the deft. was liable to the penalty of the Act was the question. The words of the Act are "That every person hereafter Commissionated to be a Sherif and refusing Shall forfeit &c. In this Case the deft. never was commissionated his name was never in the Commission And so [38] he is not within the Act.
Judgment for Deft.
Note it was said the pratice of sending out blank Commissions under the Seal was of dangerons consequence and it was not safe for any man to fill them up.
LIGHTFOOT ag't LIGHTFOOT
[Notes by W. G.] (Hop. 30. Rand. in Myers's Copy.) 2 Hop. 121. 1 Vern. 234. Massenburg and Ash. 2 Vern. 38. Smith & Clever 2 Vern. 43. 195. Peacock & Spooner, 1 Sal. 225. Lamb & Archer. (S. C. Cited Jeff Rep. 46.)
Francis Lightfoot by his Will devises (among other things) as follows " I give all the remainder of my Estate real & per-
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" sonal to my son Francis & the heirs male of his body and if " he dye without such Issue or if there be any failure hereafter "in the male line Then I give the same to my brother P. Light- " foot & his heirs He or they paying to my daughter 2500£. " in full compensation for the same."
The Testor's Son lived 2 or 3 years after his father dy'd young and without issue And now a Bill is brought by the daughter for the residue of the personal Estate devised to the son & for the profits of the real Estate from the death of the father to the death of the Son To which bill the deft. demurr'd And the great Question was whether the remainder to P. Lightfoot of the per- sonal Estate was good
Hopkins fr Deft. Such a remainder of a personal thing may well be it being upon a double contingencie either of the sons leaving no issue Male at his death Or if there should be after- wards any failure in the Male line The first contingencie being within the compass of a life the remainder on that Contingencie is good & that contingencie has happen'd. He agreed the remainder upon the second Contingencie was void And if the Son had left Issue at his death P. L. the remainder man could not have taken
Cited Pinbury v. Elkin. 2 Bern. 758. 766. [Other citations illegible.]
Randolph fr Deft. The old books are that a personal thing can't be limited but this Opinion exploded ever since the restora- tion And now a more liberal construction of Wills is allowed to support the testor's Intent Octob'r 1730 Edmonds vs Hughes Adjudged in this Court But if the remainder was not good the last words in the limitation to the deft. plainly shews the testor intended his daughter should have but 2500£.
Nelson 174 2 Vern. 245, 331. Finch Rep. 116 2 Vern. 86. 151. 2 Vern 347. 758, 776, 686. [Note by W. G.] (Not in Myers's Copy.)
Sayed the Plt. by contesting the Will would forfeit her legacie. Cited Hern v Hern. 2 Vern. 555. Id. 580.
For this point sec Powell v. Morgan, 2 Vern 90, 91. 2 Vern. 668 Webb. & Webb.
But this seems quite from the Purpose
Mr. Attorney for the Plt. This remainder is not good The [39] Son has an Estate tail by the Words of the Will and a
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chattle can't be intailed Whitmore & Craven 1 Vern. 326. 2 Ch. Ca. 167. Alice Loman's Case Poll. 37.
Demurrer allowed
See Fitzg. 314. a Case directly in Point adg'd con. And see the Cases there cited pro & con. See also Gilb. 105. Seale v. Seale.
BERRYMAN ag't BOOTH.
A writing purporting to be a Will was found among the Papers of the Plts. Father after his Death. It was signed by him and three Persons subscribed as Witnesses By this he gives all his Estate to his Wife Some time after the Date of this Writing he has a Son (the Plt.) born and then he declares he would make his Will and dyed soon after this Declaration The Wife soon after his Death proves this Writing as his Will in Common Form and obtains a Probate Two of the Witnesses to this Writing are dead and the third swears she does not remember signing it The Plt. now brings his Bill ag't the Deft. (who married the Testor's Wife) for divers Slaves that were the Plt's Father's and came to the Deft's hands by the marriage aforesaid The Bill suggests that the Plts. Father died intestate Or if the aforesaid Writing should be adjudged a Will the Birth of the Plt. afterwards was a Revokation of it.
Mr. Attorney for the Plt. There being no Proof to this Writing per testes - Or that it is the Testor's Hand Writing and one of the Witnesses declaring she does not remember signing it This could not be looked upon as a Will Especially if the Declaration after the Birth of a son be considered which strongly implys he had no Will at that Time or at least that he had an Intention to alter it And it is no Wonder the Wife proved it who gained so considerably by it.
That if this could be taken for a genuine Writing yet the Birth of a son afterwards is Such an Alteration in the Testor's Circumstances that a Revocation may well be pre- sumed Otherwise here is a Child sent a begging [40] and cited Lugg v Lugg 2 Salk. 529. and the Case of Shelton's Will in this Court where the Testor having several Children born after making his Will a Revocation was presumed and . adjudged accordingly
Hopkins f Deft. The validity of the Will cannot be con-
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tested here in this Suit but should be in the County Court where Probate was granted Or upon an Appeal in this Court 2 Vern. S. Moss v Archer. 2 Vern. 76. Nelson v Oldfield. But this a good Will and appears upon the Face of it to be genuine And Wills are seldom proved in any other Manner in England and If this be a Will the Birth of a Son afterwards does not revoke it By the Civil Law a Testament is annulled by the Birth of a Child Dom. Vol. 2. 40. But not by the Law of England Swinb. 2. p. 174.
Decree for the Plt.
ISBELL & HIS WIFE ag't BUTLER & others
In this Case a Question was made whether a slave given by an Intestate in his Life time to a younger Child should be taken at the Value he was when given or the Value at Testor's Death Et per tol' Cur' at the Value when given Et recte ut Opinor tho' Rand. & Hopk. con.
S. C. Jeff. 10.
JENNINGS & HIS WIFE ag't WILLIS
There was a solemn Argument in this Case and County Court Judgment affirmed by 7. Judges against two Upon reading the Orders next Morning Sr. J. R. moved that the Court would hear another Argument and granted which note as being without Precedent.1
'Note. There is a Precedent where the Court ordered Judgment to be entered for the PIts. and the next Day ordered it should be stayed Cro. El. 93-4
In April 1735 A like Instance between Chew & Stevens.
[41]
OCTOBER COURT MDCCXXXIV
GRAVES V. KENNAN Appeal from Essex
In Detinue for a Chest of Medicines of the value of 40£. upon Non detinet pleaded the Jury found that the Deft. did detain the Chest that it was of the Value of six Pence and Damages 106. and Judgment for the Plt. below.
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Upon an Appeal Exception was taken to the Verdict that it was in certain finding that the Deft. did detain not that he doth detain and so not pursuant to the Issue Besides the Jury value the Chest only to six Pence yet give 10£. Damages which is unreasonable and absurd.
And for these reasons the Judgment was reversed and the Record remitted to the County Court for a new Trial
Exception was also taken to the Declaration that Detinue would not lie for a Chest of Medicines without setting forth the par- ticular medicines.
Randolph for the appellant sayed it would not be good in Trover and that Trover and Detinue were all one and cited Palm. 393. Stile 482. 1 Ven. 114. 2 Lev. 85. 3 Lev. 18. 1 Vent. 317. Sid. 445: Carth. 131.
Barradall f Appellee Trover and Detinue are not the same and greater Certainty is required in Detinue than Trover 2 Salk. 654. But this is certain enough in Detinue All the Certainty requisite is that it may be described to the Jury and known by the Sherif when he comes to make Delivery Co. Lit. 286. b. 2 Bulstr. 308. And that may very well be in this Case It would be almost impossible to describe every particular Medicine and the Plt. must have failed in his Proof if he had done so.
But if Trover and Detinue are all one then this Declaration is certainly good for Trover will lie of a Box full of Linnen of the Value of 20% Cro. Jac. 664. for a Library of Books 1 Ven. 114. for 290 pecies Argenti 1 Salk. 219. for 20 Ounces of Cloves and Mace without distinguishing how much of either 2 Sal. 654. for a Case of Spirits Far. 141. And besides the Cases above cited 2 Saund. 74. 1 Sid. 98. 2 Show. 315. Skin. 147. 3 Lev. 336. 1 Sid. 263. 1 Kcb. 807.
And per tot. Cur. præter Carter the Declaration is certain enough.
[42] A question was made if Lands granted before 1710. should be forfeited for want of Paiment of Quitrents within the Act of 1710. and that of 1713. And Adjudged that such Lands are not within those Acts.
But quære of this Judgm't for the Act of 1713. seems clearly to comprehend them vid. S. 9 & 10.
Besides there is this Inconvenience If the Patentee of Lands granted before the Act deserts the Land and removes out of
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the Colony the King can have no remedy for the Quitrent and yet can't grant the Land to another
Yet in April 1741. the same Point was adjudged that these old Grants were not within those Acts The Case was between Bourden & Hill and the Pet. suggested as well the want of Cultivation as the nonpaim't of the Quitrents. It was proved that there had been no Cultivation within 56 years (The Pat was granted in 1674.) but the Court sayed it ought to be proved there never was any Improvement, or they wo'd presume it at this Distance of Time w'ch seems a strange Opin. Especially in the Kings Case. The Pet. was dismissed.
APRIL COURT MDCCXXXV HUNT ag't HARRATSON'S Ex'ors
Judgment was confirmed in the Office ag't Harratson in his Life time and now upon a Scire facias ag't the Ex'ors a Writ of Inquiry was executed The Question was whether a Lawyer's Fee should be taxed in the Bill of Costs and ruled that it should.
DARBY ag't STRINGER. S. C. Jeff. 10.
Petition for Land granted in 1669. as lapsed for want of Seat- ing Upon slight Proof of a seating many years ago tho' no AAppearance of it now Adjudged that the Land was saved.
HARWOOD ag't GRICE. Supersedeas [43]
The County Court refused to let an Ex'or be a Witness to prove a Will.
Randolph sayed it was the most known Thing in the World that an Executor might be a Witness If he was a Legatee he must release his Legacy
And per curiam he is a good witness Vide Tryl. per Pais 309. And quære. In the Case of Hill ag't Hill April 1737. The like Point was held in a Trial on a feigned Issue directed out of Chancery to try whether Will or no Will.
WADDILL ag't CHAMBERLAYNE. 1 S. C. Jeff. 10.
The Plt. declares that the Deft. fraudulently and deceitfully Sold to him a Slave for a great Price 25£. knowing the said Slave
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at the Time and for a long Time before laboured under an incurable Disease not discovered by the Plt. and was of no value There is a Verdict for the Plt. and I have moved in arrestof Judgment that this action will not lie without a Warranty.
This is an Action upon the Case in Nature of Deceit and such Actions I agree will lie in some cases but not in this The Charge here is no more than selling a Thing of Small Value for a great Price and not discovering the Defects. And however inconsis- tent this may be with natural Justice It is tolerated by the universal Consent of Mankind where buying and selling is used The principal advantage in the way of Commerce is to sell dearer than you buy And as to the Quality or Goodness of a Commodity the Law has left it at large pretty much to the Conscience of the Seller who too often takes advantage of the Buyer's Ignorance. The Law has provided a Guard against those Impositions to those who are Prudent enough to make use of it that is a War- ranty from the Vendor of the Goodnes Value &c. But without such Warranty no Action will lie for any little Fraud Or Over- reaching in the Value or Goodness of the Thing sold But in such cases the Rule is Caveat emptor And if the Law was otherwise there would be no End to Actions but every Contract almost in buying and selling might produce one.
There is no Rule of Law perhaps more universally known than this It is in every one's mouth What Frauds are [44] practised every Day in the sale of Horses yet I never heard of an Action brought without a Warranty No man thinks himself obliged to discover the Defects of the Thing he sells and unless the Buyer is prudent enough to exact a Warranty I take it he is without Remedy.
I will not deny but there are some Instances where an Action will lie for Deceit in a Sale without express Warranty as where it is a Thing unlawful in itself as the selling of bad Victuals 9 H. 6. 53. b. 11. E. 4. 6. b. Kel. 91. Cro. Jac. 197. 470. but the Reason given in all these Cases is that it is prohibited by Law to sell bad Victuals which proves the Action would not lie but for that reason.
2 Ro. Rep. 5. 6.
So if I sell a Thing affirming it to be mine when it is anothers this affirmation amounts to a warranty if I am in Possession
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otherwise not 1 Salk. 210. Medina ag't Stoughton So are divers other Cases which prove there must be either an express Warranty or something that amounts to it in Construction of Law And it is evident from the Case of Medina &c. that if sell a Thing out of my Possession affirming it to be mine (tho' this is an apparent Fraud) no Action will lie for there Caveat emptor says the Book.
Cro. El. 44 Cro. Jac, 474. 1 Ro. Ab. 90. 3. Mod. 261. Show. 68.
There is a Case that I suppose will be quoted against me And if That is Law then this Action will lie but I humbly con- ceive it is not 9. H 6. 53. b. in 1 Ro. A. 90. If a man sells a Piece of Cloth knowing it not to be well fulled an Action of Deceit lies for this is a Warranty in Law says Rolle but the Book says no such Thing nor indeed is the Point adjudged in the case but cited to be adjudged in another Case. It is only a saying obiter of one of the Judges and can carry no great author- ity with it especially as it is not supported by any subsequent Resolutions but the whole Current of Authorities since is con- trary.
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