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(215 Mass. 83)

GUARINO v. RUSSO.

(Supreme Judicial Court of Massachusetts.
Suffolk. May 24, 1913.)

ACTION (§ 36*)-CHANGE OF CHARACTER OR
FORM AMENDMENT STATUTES — CON-

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STRUCTION.

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before and its value after the street changes. | is whether the Legislature permits such Consideration of the benefits conferred is as amendments. R. L. c. 189, § 1, provides that essential an element in ascertaining compen- "all personal actions, except actions of tort sation as consideration of the injury caused. for malicious prosecution, for slander or libel Both must be taken into account and weighed or for assault and battery and actions for the one against the other before the right re- replevin, may be commenced by the trustee sult can be reached. It follows that it was process." This language is an unequivocal a part of the petitioner's case in chief to prohibition against the commencement of an offer her evidence touching the benefits accru- action for malicious prosecution by trustee ing as well as the injury suffered. Having process. It has been the continuous statute failed to proffer such evidence before resting, of the commonwealth touching actions of this it was discretionary with the trial judge sort since St. 1794, c. 65, § 1. See Rev. St. whether she should be permitted to introduce c. 109, §§ 1, 17; Gen. St. c. 142, §§ 1, 75; Pub. it for the first time in reply to the defense. St. c. 183, § 1; R. L. c. 173, § 48, which auExceptions overruled. thorizes the allowance of any "amendment in matter of form or substance which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or which may enable the defendant to make a legal defense," must be interpreted in the light of this express inhibition. Within its field the statute permitting amendments is given a broad and liberal interpretation; but it cannot override other equally clear statutes. The commencement of an action means prima facie the date of the writ. Gardner v. Webber, 17 Pick. 407, 412. Subsequent amendments adding new counts are allowable to enable the plaintiff to sustain the cause of action for which he intended to bring his writ, and the allowance of an amendment by the trial judge conclusively establishes the existence of that initial intent. R. L. c. 173, § 121; Tracey v. Boston & Northern St. Ry. Co., 204 Mass. 13, 90 N. E. 416. Therefore the situation is that the plaintiff commenced his action. by trustee process, then intending to include within its scope an action for malicious prosecution, although the count setting out this ground was added later. The explicit prohibition of the statute against commencement by trustee process of actions for malicious prosecution goes to the validity of the action and to the jurisdiction of the court. It cannot be cured by amendment. Hall v. Hall, 200 Mass. 194, 86 N. E. 363. It is not necessary to review the numerous cases where this court has given a liberal construction to the statute allowing amendments. Such is its settled policy in interpreting and applying remedial statutes. But when the Legislature has seen fit expressly to prohibit the commencement of any action by a specified process, it is not reasonably possible to circumvent that plain mandate by the allowance of an amendment, which would transform the action into one of the prohibited kind. See Church v. Philips, 157 Mass. 566, 32 N. E. 911. The exceptions must be sustained unless the plaintiff within 15 days from the date of the rescript is permitted to amend his declaration by striking out the fifth count of his declaration and files a remittitur of the amount awarded as damages on that count. So ordered.

Rev. Laws, c. 189, § 1, provides that all personal actions, except actions for malicious prosecution, etc., may be commenced by trustee process, while chapter 173, § 48, authorizes the allowance of any amendment which will enable the plaintiff to sustain the action for the cause for which it was intended to be brought, and section 121 provides that the adding of new counts is allowable to enable the plaintiff to sustain the cause of action for which he intended to bring his suit, and that the allowance of an amendment by the trial judge conclusively establishes the existence of that initial intent. Held that, as the statute prohibiting the commencement of action for malicious prosecution by trustee process has been a continuous one since 1794, those provisions relating to amendments must be construed with reference to it, and therefore, where an action is commenced by trustee process, no amendment setting up a cause of action for malicious prosecution can be allowed, for, while the remedial statutes allowing amendments are to be given liberal construction, they cannot be construed so as to violate the express provisions of other statutes. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 295-310; Dec. Dig. § 36.*]

Exceptions from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Guiseppi Guarino against Michele Russo. There was a verdict for plaintiff, and defendant excepted. Exceptions sustained, unless plaintiff file a remittitur.

Wm. R. Buckminster and John E. Crowley, both of Boston, for plaintiff. John Lowell and Kenneth Howes, both of Boston, for defendant.

RUGG, C. J. The decisive question presented in this case is whether an action of tort begun by trustee process can be amended by striking out the portions of the writ which make it trustee process, so as to enable it to be maintained for malicious prosecution. The determination involves a construction of statutes. There is no inherent or constitutional reason why such amendments cannot be allowed. The only inquiry

(180 Ind. 296)

chine, and who was incompetent to do such

SIMPLEX RY. APPLIANCE CO. v. KAM- work; that defendant was negligent in the

ERADT. (No. 21,907.)1

(Supreme Court of Indiana. June 20, 1913.) 1. MASTER AND SERVANT (§ 265*)-Burden of PROOF INCOMPETENCY OF FELLOW SERV

ANT.

In an action for injuries because of the master's negligent employment of an incompetent fellow servant, but not alleging negligence in his retention, plaintiff had the burden of proving that his injury was the proximate result of the unfitness of such fellow servant, and that in employing him the master knew, or with ordinary care should have known, of such unfitness.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. $265.*]

2. MASTER AND SERVANT (§ 170*)-MASTER'S LIABILITY INCOMPETENCY OF FELLOW SERVANT.

A master must use due care in engaging servants who are reasonably competent for the duties assigned them; the rule requiring the exercise of ordinary care, such as men of reasonable prudence observe, and the question of competency depending upon the servant's physical, moral, and mental qualifications for the task assigned, and, if the employment be for the operation of an intricate machine, also of his skill and experience with reference to such or similar machinery.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*] 3. MASTER AND SERVANT (§ 168*)-MASTER'S INCOMPETENCY OF FELLOW

LIABILITY
SERVANT.

employment of such incompetent operator.

In the bed of this machine was a plunger. driven upwards by steam power against the spring inserted, so as to crush the same together against a stationary top, and thus tested its strength and elasticity. The plunger was operated by pulling a lever, and this work was done by Barman. When injured, the appellee was placing a spring on the plunger, and before he had removed his hand from the spring the operator released the plunger, which drove the spring, with appellee's hand on it, against the top of the machine, and thereby cut off some of appellee's fingers. In the proper operation of the machine, the operator should wait until the employé inserting the spring should have removed his hand therefrom, before moving the lever which released the plunger. This accident happened because the operator, Barman, pulled the lever too soon.

There was a trial by jury, verdict for appellee, with answers to interrogatories. Appellant's motion for judgment on the answers to interrogatories was overruled; also its motion for a new trial.

Appellant claims that it was entitled to judgment on said answers, but we cannot say that they are such as to overthrow the general verdict.

Where a servant operated a simple springUnder the reasons assigned in the motion testing machine by pulling and returning a lever, understood its operation when employed, for a new trial, it is contended here that the and had not been guilty of any careless act be- evidence is insufficient to sustain the verdict. fore the accident, and where his lack of mental One of the claims is that appellee was, when qualifications did not affect his competency to operate it, that requiring little skill, his inat-injured, not in the line of his employment. tention in pulling the lever too soon sending We regard the contrary as established by up a plunger and injuring the hand of plainti, the evidence. who was holding a spring, the master was guilty of no negligence causing the plaintiff's injuries; the short experience of such servant not being material.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 334, 335, 337-340, 349; Dec. Dig. § 168.*]

Appeal from Superior Court, Lake County; T. M. C. Hembroff, Special Judge.

Action by Frank Kameradt against the Simplex Railway Appliance Company. Judgment for plaintiff, and defendant appeals. Transferred from Appellate Court under Burns' Ann. St. 1908, § 1405. Reversed, and new trial granted.

L. L. Bomberger, of Hammond, and Ralph F. Potter, of Chicago, Ill., for appellant. D. J. Moran, of Hammond, for appellee.

Appellant maintains there is an entire absence of evidence to show the failure of any duty on its part in relation to the employment of the operator, Barman.

[1] The burden was on appellee to prove (1) that his injury was the proximate result of the unfitness of Barman to discharge the duties assigned him, and (2) that, in employing Barman, appellant knew, or in the exercise of ordinary care and prudence should have known, of such unfitness. The complaint makes no charge of negligence because of the retention of Barman in its employ.

[2] The law requires of the master that he shall use due care in engaging the services of those who are reasonably fit and competent for the performance of the re

MORRIS, J. Action by appellee against spective duties assigned them. Labatt, Masappellant for personal injuries.

ter and Servant (2d Ed.) § 1079. The rule requires the exercise of ordinary care, such as men of reasonable, ordinary prudence observe.

It is alleged in the complaint that appellant was engaged in manufacturing car springs, and tested its products by means of a machine called a spring tester; that appellee's hand was injured in the machine because of the negligence of a fellow servant, named Barman, who was operating the ma*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The question of the competency of the servant includes a consideration of his physical, moral, and mental qualifications for the task assigned, and, if the employment be for

the operation of a machine, especially of an intricate nature, also of his skill and experience with reference to such or similar machinery.

[3] There is no evidence here whatever of any physical or moral defect in Barman. Originally he had been employed on farms and in cement construction work. About three months before the accident he was employed by appellant as a laborer in its factory. His duty, at first, was to wheel car springs to and from the testing machine. For a period of at least six weeks before the accident he was engaged in sticking springs in the testing machine in controversy, while the latter was operated by one Barget. On March 23d Barget resigned his position, and on March 25th following Barinan was assigned to operate the machine. No outside investigation was made of Barman's fitness for his new duty. Appellant relied wholly on the results of its observation and knowledge of him while in its employ. On March 25th Barman operated the machine alone, sticking in the springs with one hand and operating the lever with the other. At that time appellee had been employed for about three weeks in wheeling springs to and from the machine. On the afternoon of March 26th appellee commenced sticking springs in the machine, and continued such work until he was injured on the afternoon of March 27th.

The operation of the machine consisted merely in pulling and returning the lever and inserting and removing springs. Both appellee and Barman fully understood its operation. There is no evidence that Barman was guilty of any careless act before the accident. He knew how to operate the machine when employed. The jury expressly found this fact by their answers to interrogatories, and there is no evidence that would have warranted any other finding.

It is true that the accident happened only two or three days after Barman had been assigned to his new duties, but under the facts disclosed the short experience of Barman was not material. Ohio, etc., R. Co. v. Dunn, 138 Ind. 18, 36 N. E. 702, 37 N. E. 546; Texas, etc., R. Co. v. Berry, 67 Tex. 238, 5 S. W. 817. The accident did not result from lack of experience, for Barman well knew how the machine was operated. There was no evidence that warranted the jury in finding that any neglect on appellant's part caused, or helped to cause, appellee's injury.

Judgment reversed, with instructions to grant appellant's motion for a new trial.

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1. CRIMINAL LAW (§ 970*)-MOTION IN ARREST-REQUISITES OF INDICTMENT.

same test by motion in arrest of judgment as it While an indictment is not subject to the is by a motion to quash, yet by the express terms of Burns' Ann. St. 1908, § 2159, cl. 2, as against a motion in arrest an indictment must state facts sufficient to constitute a public offense.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.*]

2. INDICTMENT AND INFORMATION (§ 202*)DEFECTS AIDER BY VERDICT MOTION TO QUASH-MOTION IN ARREST.

A fact material to constitute an offense, if stated in defective manner or form, on motion to quash, may render the indictment insufficient, while such defect on motion in arrest would be cured by verdict.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 640-650; Dec. Dig. § 202.*]

3. CRIMINAL LAW (§ 970*)-MOTION IN ARREST-TECHNICAL DEFECTS.

Where an indictment is first assailed by motion in arrest of judgment, mere technical defects or errors must be disregarded, as provided by Burns' Ann. St. 1908, § 2221.

Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § [Ed. Note. For other cases, see Criminal 970.*1

4. CRIMINAL LAW (§ 970*)-MOTION IN ARREST-OBTAINING MONEY BY FALSE PRE- FALSIFICATION

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TENSES INDICTMENT
PRETENSE.

OF

Where an indictment for conspiracy to obtain money by false pretenses alleged that defendants falsely pretended, etc., but did not ly defective as against a motion in arrest of charge that the pretense was false, it was fataljudgment.

It is claimed by appellee that the jury was warranted in finding that Barman was not a person of ordinary intelligence. It may be that in some respects this claim finds some support in the evidence. His knowledge of arithmetic was below that of the average man, but there is no evidence that his lack of mental qualifications in any way affected his competency to operate the machine in controversy. Very little skill was required in the simple operation of this tester, and the injury did not result from unskillfulness, but from lack of watchfulness-inattention. Harvey v. New York, C. & H. R. R. Co., 88 N. Y. 481; Baltimore Elevator Co. v. Appeal from Circuit Court, Sullivan CounNeal, 65 Md. 438, 5 Atl. 338; Couch v. Wat-ty; William R. Nesbit, Special Judge. son Coal Co., 46 Iowa, 17; Hatt v. Nay, 144 Mass. 186, 10 N. E. 807; McIntosh v. Jones, 36 Mont. 467, 93 Pac. 557, 14 L. R. A. (N. S.) 933; Walkowski v. Penokee & G. C. Mines, 115 Mich. 629, 73 N. W. 895, 41 L. R. A. 33, and notes.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.*]

Samuel W. Woodsmall was convicted of conspiracy to obtain money by false pretenses, and he appeals. Reversed, with instructions.

Charles D. Hunt and Gilbert W. Gambill, both of Sullivan, for appellant. Thomas M.

Honan, Atty. Gen., and Thomas H. Branaman, Deputy Atty. Gen., for the State.

MORRIS, J. Appellant, with others, was indicted for conspiracy to commit the crime of obtaining money by false pretense, as defined by sections 2588 and 2647, Burns 1908. On a plea of not guilty, he was tried by a jury, and convicted. He filed a motion in arrest of judgment, in which he averred that the facts stated in the indictment do not constitute a public offense. Section 2159, cl. 2, Burns 1908.

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the said Luella Mills, to the injury of the said Luella Mills, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the state of Indiana." Appellant contends that the indictment is fatally defective because it fails to negative the alleged pretense.

[1, 2] While an indictment is not subject to the same test by motion in arrest as it is by motion to quash, yet by the terms of section 2159, Burns, cl. 2, supra, it must on motion in arrest state facts sufficient to constitute a public offense. A material fact constituting The only question presented here is predi- the offense, if stated in defective manner or cated on the action of the trial court in over- form, may on motion to quash render the inruling this motion. So much of the indict- dictment insufficient, while such defect on ment as is pertinent to this controversy motion in arrest would be cured by verdict. reads as follows: "Samuel W. Woodsmall, Woodworth v. State (1896) 145 Ind. 276, 43 Emanuel Purcell, and Charles C. Riggs N. E. 933, and cases cited. A fact, fairly did * unite, combine, con- and rationally inferable from facts pleaded, spire, confederate, and agree to and with though stated argumentatively and indirecteach other for the object and purpose and ly, may be deemed as averred. Agar v. with the unlawful and felonious intent to State, 94 N. E. 819; Domestic Block Coal then and there feloniously, unlawfully, know- Co. v. De Armey, 100 N. E. 675. ingly, and falsely pretend to one, Luella Mills, with intent then and there and by such false pretense to cheat and defraud the .said Luella Mills for the purpose of obtaining from the said Luella Mills two hundred ($200.00) dollars in money, which money then and there belonged to the said Luella Mills; that the said defendants, Samuel W. Woodsmall, Emanuel Purcell, and Charles C. Riggs falsely and fraudulently represented to Luella Mills that there was a detective in the town of Shelburn, Sullivan county, Indiana, and that the said detective was going to arrest the said Luella Mills' son, James Little, and the said defendant, Charles C. Riggs, for the burning of the said James recognized and followed by this court. Funk Little's restaurant on the 15th day of January, 1912, and that the said defendants falsely and designedly further represented to the said Luella Mills, with the intent to defraud, that if she would pay two hundred ($200.00) dollars in money to the defendant Samuel W. Woodsmall, he would pay it to the detective and prevent the arrests and exposure, relying upon the said representations of the said defendants Samuel W. Woodsmall, Emanuel Purcel, and Charles C. Riggs, and their false pretense, as aforesaid, and believing the same to be true and being thereby deceived and having no means of ascertaining the contrary, did then and there and by reason of said reliance and belief upon the said day pay to the defendants Samuel W. Woodsmall, Emanuel Purcell, and Charles C. Riggs two hundred ($200.00) dollars in money, and the to well-recognized rules of criminal pleadsaid defendants Samuel W. Woodsmall, | ing. Emanuel Purcell, and Charles C. Riggs did then and there and thereby receive and obtain possession by means of their false pretense, as aforesaid, the said two hundred ($200.00) dollars in money, the property of

[3] This rule is, at least, applicable, when an indictment is first assailed by motion in arrest. Mere technical defects or errors in such event should be disregarded. Section 2221, Burns 1908. In Pattee v. State (1887) 109 Ind. 545, 10 N. E. 421, this court said in reversing a judgment, where the sufficiency of the indictment was not questioned by motion to quash or in arrest of judgment, but was challenged for the first time in this court: "It is indispensably essential to the validity of an information for obtaining | money by false pretense to aver that the pretenses upon which the money was obtained were false." This doctrine has since been

v. State (1898) 149 Ind. 338, 49 N. E. 266, and cases cited: Campbell v. State, 154 Ind. 309, 56 N. E. 665; Whitson v. State, 160 Ind. 510, 67 N. E. 265.

[4] Here there is no attempt by averment, direct or indirect, defective, uncertain, or otherwise, to charge that the pretenses on which the money was obtained were false; and, consequently we are dealing, not with a defective or uncertain averment that would be cured by verdict, but with the entire absence of any averment. While it is recited in the averment of the pretense that defendants "falsely" pretended, etc., the use of the word "falsely" in such connection was not intended by the pleader as an averment to negative the alleged pretense, and cannot be so construed here without doing violence

Judgment reversed, with instructions to sustain appellant's motion in arrest of judgment. The clerk will issue the proper notice for the return of appellant to the sheriff of Sullivan county.

(180 Ind. 289)

and sewers, and was enacted as section 122 MARION, B. & E. TRACTION CO. v. SIM- of the Towns and Cities Act of 1905 (Acts

MONS. (No. 21,937.)1 (Supreme Court of Indiana. June 18, 1913.) 1. STATUTES (§ 120*)-SUBJECTS AND TITLE OF ACTS-CONSTITUTIONAL PROVISIONS. Burns' Ann. St. 1908, § 8729, enacted as section 122 of the Towns and Cities Act of 1905 (Laws 1905, c. 129), under the title of "An act concerning municipal corporations," enacted for the general purpose of codifying the law as to the organization of towns and cities, and necessarily general in its title, and providing that the board of public works might build or change the levees and make assessments therefor, was germane to the general purpose expressed in the title of the act, so that it did not violate Const. art. 4, § 19, providing that every act shall embrace but one subject and the matters properly connected therewith, which subject shall be expressed in the title, since, where a title covers a general subject, matters germane thereto may be included in the act, although not sufficiently mentioned in the title, and since it is unnecessary that the details be set out in the title.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 168-172; Dec. Dig. § 120.*] 2. MUNICIPAL CORPORATIONS (§ 425*)-PUBLIC IMPROVEMENTS - LEVEES-"RIGHT OF WAY"-"PROPERTY."

Under Burns' Ann. St. 1908, § 8729, authorizing the board of public works to make assessments against such land or property as is situated within the boundaries of the district affected by the proposed improvement and benefited thereby, the word "property" means real property, and includes an interurban "right of way," which term has a twofold significance, being sometimes used to mean the mere intangible right to cross, a right of crossing, a right of way, and often used to otherwise indicate that strip which a railroad appropriates to its own use, and upon which it builds its roadbed. [Ed. Note.-For other cases, see Municipal Corpornons, Cent. Dig. §§ 1031-1034; Dec. Dig. 425.*

For other definitions, see Words and Phrases, vol. 6, pp. 5693-5728; vol. 8, pp. 7768-7770; vol. 7, pp. 6230-6234; vol. 8, pp. 7790, 7791.] Appeal from Circuit Court, Grant County; H. J. Paulus, Judge.

Action by Oren J. Simmons against the Marion, Bluffton & Eastern Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Abram Simmons and Frank C. Dailey, both of Bluffton, for appellant. J. F. Charles, of Marion, for appellee.

SPENCER, C. J. Action by appellee to collect an assessment claimed to be due from appellant on account of the construction of a certain levee in Grant county, and to fore

close a lien.

1905, p. 219) under the title of "An act concerning municipal corporations." Article 4, § 19, of our state Constitution, provides that "every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title." But, if the title covers a general subject, matters germane to such subject may be included in the act, although not specifically mentioned in the title. Nor is it necessary that details be set out in such title. Knight & Jillson Co. v. Miller, 172 Ind. 27, 87 N. E. 823, 18 Ann. Cas. 1146; Swartz v. Board, etc., 158 Ind. 141, 63 N. E. 31; State v. Bailey, 157 Ind. 324, 61 N. E. 730, 59 L. R. A. 435; Maule Coal Co. v. Partenheimer, 155 Ind. 100, 55 N. E. 751, 57 N. E. 710; Pittsburgh, etc., R. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301.

It was the purpose of the act of 1905 to codify and re-enact the statute law of this state as it applied to the organization of towns and cities, and prescribed the powers and duties of their officers and boards. Its purpose was general, and of necessity its title was also general. The particular provisions of its many sections could not well be even suggested in more specific language, and in determining whether any given section is within the scope of the title used it is only necessary to decide whether the subject-matter of such section is germane to the purpose for which the act was passed. One of the prime functions of a municipality is to protect and preserve the lives and property of its inhabitants. To do this, it is often necessary to make provision against the inflow of water from streams in time of flood, to remove excess water from lands by means of drains, and to guard against the spread of disease by the construction of proper sanitary systems. The statute here in question authorizes such provisions, and its subject-matter is germane to the general purpose of the act of which it is a part. It is therefore not unconstitutional for any defect in the title of such act.

[2] Appellant's second proposition is that, if the statute is constitutional, it does not warrant a recovery against appellant in this action for the reason that no assessment against an interurban right of way is therein provided for.

The statute authorizes the board of public works to make assessments [1] The proceedings were had under section against such "lands or property" as are situ8729, Burns 1908, and appellant's first con- ated within the boundaries of the district tention is that this statute is void for the affected by the proposed improvement, and reason that the subject thereof is not ex- which will be benefited by such improvepressed in the title of the act of which it ment. Of course, there can be no doubt that is a part. The statute authorizes the board the word "property" as there used means real of public works of any city of the first, sec- property as distinguished from personal propond, third, or fourth class to make provision, erty. The question then is: Does an interunder certain conditions, for the construction urban right of way fall within the meaning or change of levees, water courses, drains, of the phrase "lands or property"?

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

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