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to the gage.

(96 Wash. 57)

east, W. M., in Yakima county, Wash., to BOERINGA v. PERRY. (No. 13715.) secure the payment to appellant of a promis(Supreme Court of Washington. April 30,

sory note for the sum of $1,500, with interest 1917.)

at the rate of 10 per cent. per annum ac1. FIXTURES O 27(1)–PRESERVING PERSONAL

cording to the terms and conditions of a CIIARACTER-FORM OF AGREEMENT.

promissory note dated July 1, 1912, signed An agreement that chattels affixed to realty by the mortgagor, due one year after date. shall retain a personal character may generally | At the time of the execution of the note and be either in writing or parol.

mortgage on July 1, 1912, Sewell was in pos(Ed. Note.-For other cases, see Fixtures, Cent. Dig. $ 5.]

session under a desert land entry of the land 2. FIXTURES 27(1)–PRESERVING PERSONAL

described, and the money was borrowed for CITARACTER BY AGREEMENT.

the purpose of buying the pipe, pumphouse The right to preserve personal character of and motor, and installing the same to irrifixtures by agreement is limited to chattels at

gate the land. The pumphouse and motor tached to realty in such a manner that they may be detached without destroying or material

were not situated on the desert land claim. ly injuring either chattel or realty.

Sewell paid none of the principal or in(Ed. Note. For other cases, see Fixtures, terest of the debt, and on July 3, 1912, imCent. Dig. $ 5.)

mediately after the maturity of the note and 3. FIXTURES 35(2)—BETWEEN MORTGAGOR mortgage, respondent Perry began'a contest AND MORTGAGEE OF CHATTELS.

of the entry against Sewell, which was proseThe giving of a chattel mortgage on fixtures is sufficient evidence of intention that they shall

cuted in the federal Land Office. Sewell retain their personal character.

made default in the contest. Perry was giv[Ed. Note.--For other cases, see Fixtures, en the preference right of entry, and thereCent. Dig. $$ 73, 74.)

upon entered the same as a desert land en4. CHATTEL MORTGAGES 150(1)-FILING try. This action was begun on April 12, 1915. NOTICE TO THIRD PERSONS.

Perry was made a party to the action as Hiling of chattel mortgage under Rem. Code 1915. § 3662. making such filing "full and suffi. claiming some right, title, or interest in and cient notice to all the world of the existence and to the mortgaged property, alleged to be subconditions thereof,” imports as much as actuals ordinate and subject to the claim or interest notice of all its conditions, including the agree

of appellant and his lien under the mortment that the property, though affixed to the realty, shall be personal, and a subsequent purchaser of the land cannot claim as an innocent It appears from the evidence that Sewell purchaser.

abandoned the premises and did not removė. [Ed. Note.-For other cases, see Chattel Mort

the pipe during his term. He had the right gages, Cent. Dig. 88 246-248, 252.)

of possession of the land in question under 5. PUBLIC LANDS Om 136-DESERT LAND EN

N his desert land entry at the time the alleged TRY – FIXTURES-CHATTEL MORTGAGE-SUBSEQUENT ENTRYMAN.

chattel mortgage was executed, but forfeited Where an entryman on desert land installed his right of entry and never claimed the pipe. an irrigation pipe line, and give a chattel mort It appears also that the pipe was joined togage thereon, the mortgage being duly filed, the

I gether in one continuous line and placed in mortgagee could foreclose against defendant, who had obtained possession of.the land and improve the soil on the land in question, the most of ments in a contest of the mortgagor's entry, it being completely buried, but a small part defendant not being an innocent purchaser, and l of it being left uncovered. the mortgage showing the parties' intent to treat such fixtures as personalty.

The trial court found, among other things, (Ed. Note.-For other cases, see Public Lands,

that Sewell procured the pipe and installed Cent. Dig. $$ 364-366.]

it upon the land in construction of an irri

gation system which was of a permanent naDepartment 2. Appeal from Superior

ture, and further found that all the pipe line Court, Yakima County; Thomas E. Grady,

situated upon the premises is appurtenant to Judge.

the fee of the premises and fixtures thereon. Action by George Boeringa against John

Upon these findings he concluded that the pipe M. Perry. Judgment for defendant, and

line on the land mortgaged to appellant was plaintiff appeals. Reversed in part, with di

part and parcel of the realty and free from the rections.

lien of the plaintiff as set up in his complaint, W. A. Funk, of Sunnyside, for appellant. I and that the foreclosure proceedings should Lynch & Chesterley, of North Yakima, for not include any pipe or pipe lines upon the respondent.

described premises. The question to be de

termined is whether the pipe mortgaged to HOLCOMB, J. Appellant brought action appellant became real estate or remained a to foreclose a chattel mortgage given by de- personal chattel under the chattel mortgage fendant, Thomas S. Sewell, to plaintiff, upon and subject to the lien thereof. a certain pumphouse and motor and all pipe It is contended by respondent that, inasand all improvements of every kind and na- much as the pipe was embedded in the soil ture, excepting one pump, located on the and became a part of the permanent system southeast quarter of the northwest quarter of irrigation attached to the soil, it is thereof section 30, township 10 north, range 22 fore a fixture and real estate, and cannot be

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

subject to a chattel mortgage. This condi- tain their character as personalty notwithstandtion is important only to determine whether ing their annexation.

But when chator not property which may be considered real tels are of such a character as to retain their

identity and distinctive characteristics after anor personal property is one or the other ac-nexation, and do not thereby become an essen. cording to the acts of the parties, in the ab- tial part of the building, so that the removal of sence of an agreement relating thereto.

the chattels will not materially injure the build[1] Generally speaking, an agreement that value of the chattels, a mutual agreement in re

ing, nor destroy or unnecessarily impair the chattels affixed to realty shall retain a per- spect to the manner in which the chattels shall sonal character may be either in writing or be regarded after annexation will have the efparol. Broaddus v. Smith, 121 Ala. 335, 26 fect to preserve the personal character of the South. 34, 77 Am. St. Rep. 61; Tyson v. Post, property between the parties to the agreement." 108 N. Y. 217, 15 N. E. 316, 2 Am. St. Rep. It has been held in many cases that, if 409; Western, etc., Railroad v. Deal, 90 N. C. competent parties make an express agree 110.

ment that fixtures shall retain their charac[2] In general it may be said that almost ter as chattels, there can be no doubt that anything affixed to realty may by agreement the agreement is binding as between the par. be treated as personalty. Thus it has been ties thereto. Badger v. Batavia Paper Mfg. held that houses and other buildings, ma- Co., 70 Ill. 302; Kaestner v. Day, 65 Ill. chinery, 'railroad tracks, nursery stock, and App. 623. indeed practically everything which before [3] And where one purchases an article annexation was personal property may still to be annexed to the freehold which, from retain their chattel character by an agree- its character, may, after annexation, be ment to that effect. But the right to pre either realty or personalty according to the serve the personal character of fixtures by intention of the parties, the giving of a chattel agreement is limited to chattels which are mortgage thereon to the seller is sufficient attached to the realty in such a manner that evidence of an intention that the fixture shall they may be detached without being destroy- retain its character as personalty. Edwards, ed or materially injured or without destroy- etc., Lumber Co. v. Rank, 57 Neb. 323, 77 ing or materially injuring the realty to which N. W. 765, 73 Am. St. Rep. 514; Arlington, they are attached. Henkle v. Dillon, 15 Or. etc., Elevator Co. v. Yates, 57 Neb. 286, 77 610, 17 Pac. 148; Ford v. Cobb, 20 N. Y. 344; N. W. 677. Eaves V. Estes, 10 Kan. 314, 15 Am. Rep.

An agreement that the fixture shall retain 345; Western Union Tel. Co. v. Burlington, its personal character is said to be implied etc., Ry. Co. (C. C.) 11 Fed. 1; Sword v. Low, from the mere giving of a chattel mortgage. 122 11. 487, 13 N. E. 826; German Savings Sowden v. Craig, 26 Iowa, 156, 96 Am. Dec. & Loan Society v. Weber, 16 Wash. 95, 47 125; Campbell v. Roddy, 44 N. J. Eq. 244, Pac. 224, 38 L. R. A. 267.

14 Atl. 279, 6 Am. St. Rep. 889; Ford v. In the last-cited case this court held, in Cobb, 20 N. Y. 344; Tibbetts v. Horne, 65 N. conformity with the great weight of author- H. 242, 23 Atl. 145, 15 L. R. A. 56, 23 Am.. ity, that:

St. Rep. 31; Tifft v. Horton, 53 N. Y. 377, "Whether füxtures attached to real estate 13 Am. Rep. 537; Eaves v. Estes, 10 Kan. should be regarded as personalty or realty is 314, 15 Am. Rep. 345; Sword v. Low, 122 Ill. largely governed by the intention of the con- 487, 13 N. E. 826; Binkley v. Forkner, 117 tracting parties, even so far as the rights of a Ind. 176, 19 N. E. 753, 3 L. R. A. 33; Warformer mortgagee are concerned, subject to the limitation that the fixtures, which, but for the ner v. Kenning, 25 Minn. 173; Burrill v. Wilstipulation, would be regarded as realty, can be cox Lumber Co., 65 Mich. 571, 32 N. W. 824; removed only when such removal can be elected Henkle v. Dillon, 15 Or. 610, 17 Pac. 148; without injury to the real estate.” Syllabus.

Andrews v. Chandler, 27 ni. App. 103; MilAnd in the course of the opinion language ler v. Griffin, 102 Ala. 610, 15 South. 238. from the case of Ford v. Cobb, 20 N. Y. 344, It is therefore well settled as between was quoted with approval, as follows:

Sewell and appellant that the status of the “But it is otherwise with things which, being pipe mortgaged to appellant was fixed as a originally personal in their nature, are attached to the realty in such a manner that they may be

chattel. detached without being destroyed or materially

The difficulty is in determining the effect injured, and without the destruction of or ma- of this agreement as to third parties; for it terial injury to the things real with which they is also well settled that, while parties themare connected, though their connection with the land or other real estate in such that, in the selves may make almost any agreement they absence of an agreement or of any special rela- wish as to the personal character of fixtures, tion between the parties in interest, they would yet such an agreement does not in most cases be a part of the real estate.”

affect the rights of third persons who are Of course, as was observed in Binkley v. not parties to the agreement. To what extent Forkner, 117 Ind. 176, 181, 19 N. E. 753, 755 third parties are bound is a question depend(3 L. R. A. 33):

ing upon the nature of the agreement and the If, in the course of constructing a relation of the parties. The statement made house, brick should be placed in the walls, and in some cases that an agreement cannot joists and beams in their proper places, the brick- change the character of the property so far maker and sawyer would not be permitted to despoil the house by asserting an agreement with as third parties are concerned is true only the owner that the brick and beams were to re- I to a limited extent. Kaestner 9. Day, 65

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III. App. 623. If the rights of innocent third by the former entryman and possessor of the parties will not be prejudiced, fixtures may desert land entry to be chattel property, and retain their chattel character. Edwards, etc., not a part of the real estate. Lumber Co. v. Rank, 57 Neb. 323, 77 N. W. Notwithstanding the fact that he made 765, 73 Am. St. Rep. 514.

what is called three years' proof under which [4] In cases where the rights of claimants he proved the methods by which he had atof fixtures depend upon notice to adverse tempted to reclaim the land and included in claimants, there is a considerable variety of his improvements the pipe purchased, that opinion as to the effect of recording alone, must be taken and understood to have been as importing notice, much depending, of subject to the lien which he had theretofore course, upon the language of statutes in- voluntarily given for the money which he had volved. 19 Cyc. 1054. As to such notice borrowed with which to purchase the same. our statute relating to the filing or record-It was therefore not fraudulent for him to ing of chattel mortgages provided, in section make such proof in attempting to obtain title 3662, Rem. Code, that every such mortgage to the land. filed and indexed in pursuance of this act Equity and good conscience demand that "shall be held and considered to be full and appellant's mortgage be enforced according sufficient notice to all the world, of the to its terms. It may be said in opposition existence and conditions thereof." The effect thereto that any attempt to remove the pipe of this provision is that the due filing of a from the land will constitute a trespass chattel mortgage, as was the case here, im- against the possession of the respondent, and ports as much as actual and positive notice also that it is impossible to remove the same of the mortgage and of all its conditions to without injury to the freehold. As to the all persons dealing with the chattel there first proposition, the possession by the reafter.

spondent and present entryman is not as (5) Respondent cites authorities to the ef- yet a complete and permanent possession, fect that a subsequent purchaser for value but is only a possession dependent upon his is an innocent purchaser, and that fixtures reclamation of the land, and compliance attached to the soil are real estate and not with the laws relating to desert entries. In subject to a chattel mortgage seeking to hold any event his possession can only be proa lien thereon as a chattel. That is true tected under and by virtue of the state laws. where a subsequent purchaser for value These guarantee him the peaceable posseshas no notice either actual or constructive sion of the land in question as against tresor notice such as our statute provides which pass or unlawful intrusion. It is no unlawis equivalent to actual notice that the prop- ful intrusion for the state to enforce the erty in question has been agreed and deter- rights of a person having a superior and mined to be chattel property. The respond- prior right to chattel property remaining ent here is not an innocent purchaser for upon the land. value. He is merely a subsequent occu It is shown by the evidence that the pipe pant of the same real estate. He has, it is in question can be removed without permatrue, the right of possession, which cannot nent injury to the real estate. Such injury be questioned, of the real estate and of all as would occur would be temporary only, the real estate comprises. His right of pos- and that could be avoided by removing it at session of the real estate has been granted a time when the land is not being irrigated by the national government and is superior or during the fall and winter months. Notto the rights of all others as to the land withstanding the extreme character of this itself and its enjoyment. But the respondent case, we think appellant entitled to such a had notice by the filing of the chattel mort. decree. gage that the pipe embedded and installed The judgment of the lower court will be in the land was chattel property upon which reversed in so far as it decreed that appelthe appellant had a lien by his chattel mort-lant was not entitled to a judgment of foregage. The respondent has bought nothing. closure against the pipe described in the chatHe is not an innocent purchaser of anything. tel mortgage, and further providing for the While the former entryman and possessor of protection of the rights of the respondent the land under the desert land. entry was in in the matter by decreeing that the pipe possession he could contract with reference shall only be removed at a time when there to chattels, fixtures, and improvements there is no irrigation being done upon the premises on in all respects under the local law, and or during the months between November and his contracts would be enforced. He could March, inclusive, and that no growing tree have removed the pipe mortgaged or any shall be removed, despoiled, or injured upon other fixture which he placed upon the land the premises, or any permanent structure prior to his abandonment or his removal | thereon, and that the soil removed shall be from the land.

restored, in as good condition as before. Under the facts and circumstances shown we are impelled to the conclusion that the ELLIS, C. J., and MOUNT, FULLERTON, pipe mortgaged was by virtue thereof agreed and PARKER, JJ., concur,

165 Okl. 146)

erected near said building and a series of BALCH V. STATE ex rel. GRIGSBY, Co. dances conducted thereon by the defendants Atty. (No. 7917.)

for the purpose of drawing crowds into the (Supreme Court of Oklahoma. Jan. 30. 1917. place of business in order that intoxicating Rehearing Denied May 15, 1917.)

liquors and imitations thereof and substi

tutes therefor might be sold to the patrons (Syllabus by the Court.)

of the dance; that among the regular at1. JURY 14(12) – TRIAL BY – ACTION TO tendants at said dances were two women of ABATE NUISANCE.

unchaste and lewd character, known as Kate In an action by the state to abate a public nuisance, the defendant is not entitled to a

and Babe, who frequented the store belongjury trial.

ing to defendant Balch, being seen often in (Ed. Note.--For other cases, see Jury, Cent. the company of and in bed with men of quesDig. 78.]

tionable character; that the said Kate and 2. EVIDENCE 322(2) - GENERAL REPUTA Babe conducted themselves in a lewd and liTION.

centious manner in and about said building Evidence as to general reputation for lewd

and premises, and that men who frequented ness or chastity of persons who frequent a place charged to be a house of prostitution, and also

such resort, visiting with Kate and Babe, evidence of the general reputation of such house would curse and swear in loud and boisteras being a place of prostitution, held to be ad ous manner in the hearing of women and missible.

children; that people would congregate at [Ed. Note-For other cases, see Evidence, Cent. Dig. § 1204.]

said store and become drunk and imbibe in

toxicating liquors sold in said store; that 3. NUISANCE Om61–PUBLIC NUISANCE-PARTICULAR CASE.

cigarettes were sold to minors in violation A place where intoxicating liquors are sold of law; that the general reputation of such in violation of the law, where cigarettes are sold | place of business was that of a place where to minors, and where lewd and lascivious per

lewd men and women would resort for the sons congregate for the purpose of indulging in immorality, held to be a public nuisance.

purpose of unlawful cohabitation and sexual [Ed. Note. For other cases, see Nuisance,

intercourse; that said place was an unfit Cent, Dig. 88 142-151.)

| place for women and children to purchase 4. NUISANCE 82–ABATEMENT BY STATE groceries, or for other purposes; that the CIVIL ACTION.

same was an immoral resort and a public A public nuisance may be abated by a civil

nuisance, and the conduct of the said Kate action brought by the state on the relation of the county attorney of the county in which such pub

and Babe and others who frequented the lic nuisance exists.

store was outrageous to public morals and [Ed. Note. For other cases, see Nuisance, public decency. The plaintiff prayed for a Cent. Dig. § 195.)

temporary injunction restraining the defendCommissioners' Opinion, Division No. 1.

ants and all of them from opening or conError from District Court, Cleveland Coun

ducting said store or building, or permitting ty; F. B. Swank, Judge.

any one else to conduct same, and that same Action by the State of Oklahoma, on the

should be placed in the hands of the sheriff relation of J. D. Grigsby, County Attorney

of Cleveland county and closed until final of Cleveland County, Okl., against A. R.

hearing in the matter; that upon final hearBalch and others. Judgment for plaintiff,

plaintiff ing, the injunction be made perpetual, and and defendant A. R. Balch brings error.

for general and special relief. A hearing Modification ordered to be entered of record

was had in chambers before the county judge in the proceedings below, and in other re of Cleveland county, in the absence of the spects judgment affirmed.

district judge from said county, and upon W. J. Davidson, of Oklahoma City, for

the affidavits of numerous citizens residing

at said town of Moore and in the vicinity plaintiff in error. J. D. Grigsby, Co. Atty., Ben F. Williams, and John E. Luttrell, all

thereof; the county judge granted a tempo

rary injunction and order abating said nuiof Norman, for defendant in error.

sance and closing the store. Afterwards the STEWART, C. The parties hereafter will

defendants made application before the judge

of the district court in chambers asking for be designated as in the court below. The

a vacation of the temporary injunction. Aftcounty attorney of Cleveland county brought

er hearing on said application, the district an action in the name of the state of Okla

judge modified the temporary order before homa against A. R. Balch and others for the purpose of abating a public nuisance alleged

made to read as follows: to be maintained by the defendants in the "On consideration of said motion and being town of Moore, Cleveland county, Okl., the

fully advised in the premises, it is now ordered

by the court that the said temporary injunction petition averring that a building in which

be modified to the extent that the said defend. the said A. R. Balch conducted a grocery ant A. R. Balch is hereby permitted to open store was used by A. R. Balch for the pur- and conduct his said storeroom in what is known pose of selling intoxicating liquors; that in

in as the Courtney Building in said town of Moore,

in Cleveland county, Okl., and to make regular toxicating liquors were sold on said prop- and lawful sale of merchandise therein contained erty; and, further, that a platform was, until the 1st day of November, 1915, and it is

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the further order of this court upon the execu-, not entitled to a jury trial either as a matter tion of bond of said A. R. Balch in the sum of of constitutional or statutory right. Such $1,000, with sufficient surety to be approved by right was not recognized by the courts of the court clerk of Cleveland county, Okl., on the condition that during said time said defend-Oklahoma Territory, nor has the same been ant A. R. Balch either by himself or by his sanctioned by the courts of the state. The agents or servants shall not violate the prohibi- Supreme Court of the territory in Reaves v. tory liquor law or any other laws of the state of Oklahoma on or about said premises."

Territory, 13 Okl. 396, 74 Pac. 951, passed The defendants afterwards filed answer, squarely on the question of the right of jury denying the allegations contained in plain trial in an action brought by the state to tiff's petition, except the allegation that the abate a public nuisance. In the syllabus to said defendant A. R. Balch was using said the opinion the court says: premises for the purpose of conducting a re- brought for an injunction to suppress and abate

“A trial by jury is not required in suits. tail grocery and general store.

a public nuisance." The cause came on for hearing at the regu

[2, 3] It is clear that the acts complained lar term of the court, and after the introduc-of in the petition, if true, in the instant case tion of testimony on the part of both the would constitute the place a public nuisance. plaintiff and defendants the court found for It is provided in section 4250, Revised Laws the plaintiff and against the defendant A. R. of 1910: Balch; the court making the following or

“A nuisance consists in unlawfully doing an der and decree:

act, or omitting to perform a duty, which act “Thereupon it was considered, ordered, ad- or omission either: judged, and decreed by the court that the tem "First. Annoys, injures or endangers the comporary injunction heretofore made herein be, fort; repose, health, or safety of others; or and the same hereby is, made permanent as

“Second. Offends decency. against said defendant A. R. Balch, and that the

And section 4251, Revised Laws of 1910, storeroom of said defendant A. R. Balch described in said petition be ordered closed by

reads as follows: the sberiff of Cleveland county, Okl., and plain "A public nuisance is one which affects at the tiff have judgment against defendant to pay all same time an entire community or neighborhood, costs of this action, taxed at $

or any considerable number of persons, although Motion for new trial having been duly ed upon the individuals may be unequal.”

the extent of the annoyance or damage inflictfiled, overruled, and exceptions saved, the defendant A. R. Balch appeals to this court.

In addition to the general law of the state The defendant urges in his brief the fol- on the subject, by specific enactment, our lowing assignments of error: (1) Error of statutes provide that a place where intoxithe trial court in denying the plaintiff in er

cating liquors are sold or kept for sale or ror a trial by jury. (2) Error of the trial barter, or where persons congregate for the court in overruling the demurrer of plaintiff purpose of drinking such liquors, is a public in error to the evidence introduced on be- nuisance. The county attorney of the county half of the state of Oklahoma, plaintiff be- in which a public nuisance exists has the low. (3) Error of the trial court in the ad- authority to bring a civil action to abate mission of evidence offered by defendant in

same by civil action in the name of the state. error and objected to by plaintiff in error.

The defendant contends that the court erred (4) Error of the trial court in the rejection in the admission of testimony as to the genof testimony offered by plaintiff in error. eral reputation of the women known as (5) Error of the trial court in rendering "Kate" and "Babe” as to lewdness and chasjudgment for defendant in error and against tity, and also in admitting testimony as to plaintiff in error. (6) Error of the trial the general reputation of the house in which court in rendition of final judgment made by the defendant's business was conducted as it by exceeding the jurisdiction of the dis- being a house of ill fame or one to which pertrict court in declaring the storeroom of the sons resorted for the purpose of prostitution. plaintiff in error a nuisance and ordering There is no longer any question in this state the same to be closed by the sheriff of Cleve- as to the admissibility of such testimony in land county.

cases of the character of the one at bar. [1] The objection of defendant to the refus. In Jones v. State, 10 Okl. Cr. 79, 133 Pac. al of the court to grant a trial by jury is not 1134, in the syllabus, it is said: tenable. It is settled law in this state that it is competent for the state to show the gen

"In a prosecution for keeping a bawdy house, the constitutional provision declaring that eral reputation of the house as being a house the right of trial by jury shall be and remain of ill fame, and that the house is resorted to by inviolate refers to the right of trial by jury people of both sexes who are reputed to be of as the same existed under the law of the ter-dence of the general reputation of the house and

lewd and lascivious character, and from eviritory of Oklahoma prior to the time of the of the inmates and persons who resort thereto as adoption of the Constitution. In re Byrd, being of lewd and lascivious character, the law 31 Okl. 549, 122 Pac. 516; In re Simmons, 4 will infer that such characters resort thereto for Okl. Cr. 662, 112 Pac. 951; State v. Cobb, 24 is a bawdyhouse. The state is not required to

lewd and immoral purposes, and that the house Okl. 662, 104 Pac. 361, 24 L. R. A. (N. S.) show specific acts of lewdness or prostitution 639; Parker v. Hamilton, 154 Pac. 65. in the house. It is sufficient if it be shown that The proceeding in the case at bar, being mission of acts of immorality, and that the

the house is commonly resorted to for the comequitable in its nature, the defendants were proprietor knows the fact, and either procures

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