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defendant appeals. Reversed, with instruc-jing for any other relief. (5) That the complaint tions.
on its face fails to show that the plaintiff,
Thomas Connor, is insane and under guardianRichard M. Milburn, Atty. Gen., and Hor. ship, when in truth and in fact he was, on the ace M. Kean, Leslie R. Naftzger, Omer s. 25th day of March, 1914, declared a person of Jackson, Michael A. Sweeney, and Wilbur T. for him in the probate court of Marion county,
unsound mind, and a guardian was appointed Gruber, Asst. Attys. Gen., for appellant. Ind. (6) That the complaint herein on its face Keller & Hartman, of Indianapolis, for ap- fails to show that the plaintiff, Thomas Connor, pellee,
is sane and a fit person to be at large, and that his being set at large would not be danger
ous to the community. (7) That this court ERWIN, J. On March 10, 1915, appellee cannot, upon habeas corpus, inquire into the
legality of the judgment, or process, by which was committed to the Central Hospital for the plaintiff herein, Thomas Connor, is held in Insane, of which appellant was the superin- custody. (8) That this court, upon a writ of tendent. On April 12, 1915, appellee, through into the constitutionality of the law question
habeas corpus, has no jurisdiction to inquire his attorneys iled in the superior court of ed by the plaintiff herein. (9) That the comMarion county a petition for a writ of ha- plaint is defective in this, to wit: That while beas corpus, which petition was verified by it alleges that the plaintiff was physically able one Patrick J. Connor. The petition, omit- to be present at the insanity proceedings held
against him, it does not allege that his presence ting formal parts, is in these words, to wit: would not have injured him physically, or men
"This petitioner would respectfully represent tally. (10) That the complaint herein is deand show that he was, on the both day of fective in this, to wit: That it does not show March, 1915, unlawfully arrested and commit- upon its face that the commitment issued on ted to the Central Indiana Hospital for In- the 10th day of March, 1915, was void. Said sane, and that he is now unlawfully restrained complaint alleges that it is void, but the proper of his liberty and imprisoned at the Central showing is not made." Indiana Hospital for Insane in Indianapolis,
 This was the proper proceeding to test in said county and state, by George F. Éden. barter, superintendent of said hospital, upon a the sufficiency of the petition. McGlennan v. pretended charge of insanity, and by authority Margowski, 90 Ind. 150; Milligan v. State, of a certain commitment issued on the 10th 97 Ind. 355; Willis v. Bayles, 105 Ind. 363, day of March, 1915, and which commitment is 5 N. E. 8. void for the following reasons: That it was not issued by a court or authority after a due hear
On April 22, 1915, the court overruled aping, as is provided by law. That said imprison- pellant's motion to quash the writ, to which ment is illegal in this: That your petitioner ruling appellant duly excepted. On April was not served with notice, and, although physically able, was not present or permitted to offer 24, 1915, appellant filed his return to the. a defense to any insanity proceedings against writ, showing that the wife of appellee had him, therefore he has been deprived of his lib- filed before a justice of the peace of Marion erty without due process of law. That the stat county a petition to have appellee adjudged ute authorizing his commitment is invalid in this: That it is not so framed as to compel a insane, and that proceedings were regularly hearing before judgment, and does not guarantee had under section 3691 et seq., Burns 1914, to the person charged an opportunity to be providing for admission of patients to the heard in defense; therefore it is in conflict insane hospitals of the state. To this return with those provisions of the state and federal Constitutions which forbid that any person be appellee filed exceptions, which, omitting the deprived of his life, liberty, or property without formal parts, were as follows, to wit: due process of law. Wherefore the petitioner asks that a writ of babeas corpus be granted, said George F. Edenbarter, superintendent Cen
"Thomas Connor excepts to the return of the and that he may be discharged from such unlaw- tral Indiana Hospital for Insane, herein, for ful restraint and imprisonment."
the following reasons: (1) That said return Upon the filing of said petition the judge does not show a sufficient cause for the detenof said court ordered a writ to issue, return- tion of the petitioner, as it does not show that able the following day. On April 13, 1915, That said return does not show that petitioner
he was committed on a valid judgment. (2) appellant appeared by the Attorney General, has been committed to the Central Indiana Hosand moved to quash the writ, thereby ques- pital for Insane as a dangerously insane person, tioning the sufficiency of the petition, which as is provided by sections 7879, 7880, and sec
tion 7881 of Burns' Revised Statute of 1914, motion to quash, omitting formal parts, is in which provides that when an affidavit is filed the words following to wit:
that any person is insane and dangerous to the “Comes now the defendant herein by Richard community if suffered to remain at large, the M. Milburn, the duly elected, legally qualified, justice shall require a trial by jury of six and now acting Attorney General of the staté reputable householders or freeholders of the of Indiana, and moves the court to quash the
county." writ herein for the following reasons, to wit: These exceptions were overruled. On mo(1) That the complaint herein upon its face shows that it is not made, signed, and verified tion of appellee, over the objections of appelby the plaintiff. (2) That the complaint shows lant, the court directed a jury to be called to upon its face that it was not made, signed, and whoin the issues thus formed were submitted, verified by some person in said plaintiff's be- and a verdict returned finding appellee sane. half. (3) That, a person declared insane, and under guardianship, cannot, in person or by his On return of the verdict the court adopted next friend, institute an action to inquire into it as bis finding, and entered a judgment, disthe proceedings declaring him insane. (4) That charging appellee from custody of appellant. persons committed as insane may apply to the proper authorities for a writ of habeas corpus
 The first question presented by the asto determine the question of their sanity, but signment of errors is as to the sufficiency of they are not given the right to bring a proceed the complaint to state a cause of action.
It is provided by section 3729, Burns 1914, decide that question, for the reason that no that any person committed as insane may particular act is questioned by the petition apply for a writ of habeas corpus for the pur- filed by appellee in this cause. pose of deciding his sanity. If the petition Appellee's petition being insufficient, either in question was for that purpose, it is clear to try the question of sanity under section ly insufficient for the reason that it is no- 3729, or to test the constitutionality of any where averred, nor are any facts averred law, it must follow that the court erred in from which the inference can be drawn that overruling appellant's motion to quash the appellee was sane at the time of his commit- writ. ment, or at the time of the filing of his pe It is therefore ordered that the judgment tition for the writ, a matter that should be be reversed, with instruction to the court pleaded to present that issue. If the action below to grant a new trial and to sustain was brought for the purpose of testing the appellant's motion to quash the writ. constitutionality of the act or acts under which appellee was committed, then the
(185 Ind. 616) petition is equally defective for the reason
INDIANA MFG. CO. V. SWIFT. the petition fails to aver under what law or
(No. 22744.) section or sections of the statute appellee was committed, nor with what section or (Supreme Court of Indiana. Nov. 28, 1916.) sections or article of the Constitution of the 1. PATENTS m183-ASSIGNMENT_VALIDITY. United States, or the state of Indiana, the choate right in an invention before issuance of
It is not essential to convey title to an inlaw conflicts. It nowhere alleges the sec- letters patent that an assignment be recorded tion of the law pertaining to the control of or be in proper form for recording, since as bethe insane, which is in conflict with the Con- tween the parties and against every one except stitution of the state or United States. One a subsequent purchaser without notice an un
recorded assignment is sufficient. who alleges the unconstitutionality of a stat
[Ed. Note.-For other cases, see Patents, Cent. ute must point out the particular provision Dig. $8 259–262; Dec. Dig. 183.) of the particular Constitution violated. 2. PATENTS Omw183-ASSIGNMENT-VALIDITY. Levy v. State, 161 Ind. 251, 256, 68 N. E. 172; Where at the time of an assignment the inDavis v. State, 71 Tenn. (3 Lea) 376.
ventor had perfected his invention so far as It is not enough for the pleader to charge pencil on the patent sheets, his assignment was
the drawings were concerned, and had them in that a law is unconstitutional, but it is es- sufficient to convey the inchoate title in the sential to the pleading that the particular invention, and subsequent issuance of letters law which is claimed to be invalid should patent served by operation of law to vest in
the assignee the equitable title to such letters. at least be identified by giving the act, the
[Ed. Note.-For other_cases, see Patents, title of the law, or the section of the stat. Cent. Dig. 88 259–262; Dec. Dig. Om183.) ute which is claimed to be invalid. Rose v. 3. PATENTS em 183-ASSIGNMENT-VALIDITY. State, 171 Ind. 662, 666, 87 N. E. 103, 17 Ann. If an assignment of an invention is properly Cas. 228.
recorded in the patent office and contains a re
quest that the letters issue to the assignee rathWe have in this state several different sec
er than to the inventor, it conveys to the astions of the statute dealing with the subject signee the legal title to the patent, even though of the insane, either one of which might be the patent be issued in the name of the asreferred to by appellee, but none of which
signor. are mentioned. Sections 3691 to 3703, Burns Cent. Dig. 88 259-262; Dec. Dig. Om 183.]
(Ed. Note. For other cases, see Patents, 1914, make provision for the admission of
4. PATENTS mw183-ASSIGNMENT-VALIDITY. patients to insane hospitals. Section 3706
Where before issuance of letters pateint an provides for the issuing of a warrant by the inventor assigned his rights, but the assignment clerk of the circuit court, directing the ap- was refused recordation in the patent office and prehension and commitment of patients. patent issued in the name of the inventor, who
made no claim to it, and offered to convey by a Section 3705 provides that no idiots shall be valid assignment to the assignee, such assignee admitted. Sections 3713 to 3718 provide could not defeat action on his notes given for proceedings for care of insane convicts, while such assignment, in the absence of showing resection 3721 provides for the transfer of an
fusal of the inventor to convey good title to
him. insane patient from one hospital to another, (Ed. Note.-For other cases, see Patents, Cent. and that under certain conditions the costs Dig. 88 259–262; Dec. Dig. Ow183.) of such transfer shall be paid by the patient so transferred. Sections 3101 to 3111 make
Appeal from Circuit Court, Marion County; provision for the restraint, care, and control Charles Remster, Judge. of the dangerous insane.
Action . by Rodney B. Swift against the  The Attorney General in the eighth Indiana Manufacturing Company. Judgment
Afspecification of his motion to quash the writ for plaintiff, and defendant appeals. and in his brief challenges the right of appel
firmed. lee to question the constitutionality of the Harold Taylor and Miller, Shirley, Miller law under which he, appellee, was committed. & Thompson, all of Indianapolis, for appelWhile it may be doubted whether appellee lant. Addison C. Harris, of Indianapolis, has that right, we are not called upon to for appellee.
SPENCER, J. Appellee has recovered a y control of appellant. The specifications, judgment against appellant in the sum of drawings, claims, and application contemplat$8,046, which represents the amount of prin-ed by the agreement of the parties were duly cipal and accrued interest to the date of prepared and filed by appellee, as attorney judgment on three promissory notes unpaid for the inventor, in the United States Patent and past due, which were executed by appel- Office on September 12, 1903, under serial No. lant on March 25, 1903. The questions pre 172,858, and a patent was allowed thereon sented by this appeal from said judgment by the Commissioner of Patents on October 3, will best appear from a consideration, in 1904. It then developed that the assignment substance, of the facts found specially by the of May 25, 1903, had not been forwarded by trial court as a basis for its decision.
appellant to the Patent Office, and appellee, A few days prior to the execution of the on paying the final patent fee, directed that notes in suit the president of appellant com- the letters patent be issued in the name of pany entered into an oral agreement with the inventor, which was done on February appellee, who is a patent attorney, whereby 21, 1905, under patent No. 783,025. Appellee the latter undertook to cause to be prepared thereafter advised appellant of the issuance certain drawings, claims, and specifications of the letters patent, but was informed that for an invention then being perfected, but on the assignment in question had been lost, which no patent had issued, for the handling whereupon he procured the execution, on or pneumatically of shredded fodder, about June 5, 1905, of a patent deed from straw, and the like in connection with the use Culver to appellant. This deed was properly of harvesting machinery; also to procure an mailed by appellee to the office of appellant, application for letters patent thereon by the but appears not to have been received by the inventor and the issuance of a patent by the latter. In the summer of 1907 appellant regovernment of the United States, and to quested appellee to procure the execution of procure to be executed by the inventor an another patent deed from Culver, but before assignment of such invention and patent to the same could be procured the assignment appellant. In consideration of such services of May 25, 1903, was found in the office of the company executed a series of promissory appellant company and mailed to the patent notes in the aggregate amount of $25,000, office for record. It was there refused and all of which notes, except the three now in returned on the ground that it falled propersuit, were paid at maturity. Pursuant to ly to identify the patent in question with the this agreement, and on May 25, 1903, appellee application and invention, and on the further procured the execution by said inventor of ground that it did not transfer any interest the following instrument in writing: in said patent to appellant. Subsequently
appellee procured the execution of a new "Assignment.
patent deed from Culver to appellant and "Whereas, I, John M. Culver, of 356 Dearborn tendered the same to the latter during the street, Chicago, Illinois, have invented certain trial of this cause, but it was refused. Neinew and useful improvements in wind stackers, ther of the parties hereto nor the inventor adopted for use on threshers, fodder shredders, and for other purposes, application for patent has ever asserted any ownership of or any on which is now in process of preparation; interest in said patent or said invention, ex
“And whereas, the Indiana Manufacturing Company, a corporation of West Virginia, wită cept as above set out, and appellant has nevits place of business at Indianapolis, in the er acquired any title thereto, except through state of Indiana, is desirous of acquiring the the instruments heretofore mentioned. The entire right, title, and interest therein:
trial court has concluded, however, that ap"Now, therefore, be it known that for one dollar and other good and valuable considera- pellant has thus acquired the equitable title tion, the receipt of which is hereby acknowledg- to the invention in question; that said ed, I have sold, and by these presents do bere equitable title furnished some consideration by' sell and convey, to the said the Indiana Man for the execution of the notes in suit; that ufacturing Company, its assigns and legal representatives, all my right, title, and interest in said notes were given for a valuable considand to the said invention and the letters patent eration; and that there has not been a failto be obtained therefor, to have and to hold for the full term of which patent may be obtained ure of consideration for the same. un the said invention, together with the right The principal inquiry in this case is to deto obtain foreign patents; and I hereby agree termine the legal effect of the assignment of to execute all papers necessary for the obtaining May 25, 1903. The rule is well settled that of patents in this and foreign countries.
The Commissioner of Patents is authorized an inventor has an inchoate right in his inand hereby requested to issue any patents that vention which he may sell and assign either may be obtained on said invention to the said before or after he makes application for a the Indiana Manufacturing Company.
"In witness whereof I hereunto set my hand patent. 1 Rogers on Patents, 189; Gayler and seal this 25th day of March, 1903.
v. Wilder, 10 How. 477, 13 L. Ed. 504; Cook “[Signed] John M. Culver.”
V. Sterling Elec. Co. (C. C.) 118 Fed. 45, 46. This instrument was duly acknowledged  As pointed out in the case last cited, before a notary and mailed by appellee on the sale of this inchoate right before letters the day of its execution to the office of appel- patent are granted is governed by the genlant at Indianapolis, where it was received eral principles of law which relate to bargains in due course, and has since remained in the and sales. It is not essential that to convey
such title an assignment thereof must be re (sion on the assignment, and there is nothing corded, or be in proper form for recording; in the court's findings of fact to indicate that for, as between the parties and as against the assignor has ever refused to execute a every one except a subsequent purchaser proper deed to the letters patent which were without notice, an unrecorded assignment is issued in his name. Conceding that appellant sufficient. 1 Rogers on Patents, 189; De La- was under no obligation to maintain a suit Vergne Mach. Co. v. Featherstone, 147 U. S. for specic performance of this agreement on 209, 228, 13 Sup. Ct. 283, 37 L. Ed. 138. the part of the inventor (Jeffries v. Lamb,
 Appellant contends, however, that a 73 Ind. 202–207), it is equally true that bemental conception of an improvement on an fore the defense of failure of consideration existing machine, unreduced to practice and could be established in this action it must at unexpressed in any physical form or de- least appear that Culver has refused to exscriptive specification, does not constitute an ecute essential papers which he was bound to invention (Lamson v. Martin, 159 Mass. 557, execute under the contract procured through 566, 35 N. E 78), and that, although one may the efforts of appellee. This agreement clear. enter into a valid agreement to sell an inven. ly contemplates that such papers should be tion not yet developed by him, he cannot executed at the option of appellant, and unmake a valid sale thereof (Regan Vapor En- til there has been a refusal to convey to it gine Co. v. Pacific Gas Engine Co., 49 Fed. the legal title to the patent in question there 68, 70, 1 C. C. A. 169, and authorities cited). can be no failure of consideration for the
We need not here question appellant's notes in suit. The burden rested on appelstatement of the rules relied on, but will lant to show such a refusal, and this it did note only that their application to this case not do. Without determining, then, whether presupposes that the improvements referred the conveyance of the equitable title in the to in the assignment in question existed only invention to appellant is in itself sufficient in the mind of the inventor and were intangi- to sustain a recovery in this action, or whethble in form. The trial court has not so er the deed of June 5, 1905, operated in law found, on an issue tendered by appellant's to convey the legal title to the patent, it is pleadings, and on reference to the evidence certain that, under the facts and crcumit appears that when Culver executed the as- stances of the case, appellant has not estabsignment of May 25, 1903, he had perfected lished its defense of failure of consideration. his invention so far as the drawings were This conclusion serves to dispose of such concerned, and had them in pencil on the other questions as are presented by the appatent sheets at that time. The assignment, peal and not waived by appellant's failure then, was sufficient to convey to appellant to discuss the same in its argument. the inchoate title in the invention, and the Judgment affirmed. subsequent issuance of letters patent thereon served, by operation of law, to vest also in appellant the equitable title to such letters.
(185 Ind. 623) 30 Cyc. 882, and authorities cited; Gayler v. PECK et al. v. HIBBEN et al. (No. 22978.) Wilder, supra; Harrison v. Morton, 83 Md.
(Supreme Court of Indiana. Nov. 28, 1916.) 477, 35 Atl. 99.  If an assignment of an invention is FRAUDULENT CONVEYANCES C 47 BULK
SALES LAW-COMPLIANCE. properly placed of record in the Patent Of.
Under Burns' Ann. St. 1914, 8 7471a, makfice, and contains a request that the lettersing void as against creditors a' bulk sale of a issue to the assignee rather than to the in- stock unless a full detailed inventory is made ventor, it will serve to convey to the former five days before sale and the purchaser demands
and receives from the seller a written list under the legal title to the patent, even though it oath of the creditors and gives them five days' be issued in the name of the assignor. U. S. notice before taking possession, a sale of a Stamping Co. v. Jewett (C. C.) 7 Fed. 869, stock of goods is void where the seller merely 877. Some authorities apply the same rule the purchaser demanded an inventory and list
stated orally that he had no creditors, although in the absence of a request that the letters of creditors, which by such section must be issue to the assignee. Railroad Co. v. Trim- under oath. ble, 77 U. S. (10 Wall.) 367, 379, 19 L. Ed. (Ed. Note.-For other cases, see_Fraudulent 948; Hildreth v. Auerbach (D. C.) 200 Fed. Conveyances, Cent. Dig. 8 34; Dec. Dig. 47.) 972; Wende v. Horine (C. C.) 191 Fed. 620.
Appeal from Circuit Court, Newton Coun.  In the case at bar, however, the as-ty; Charles W. Hanley, Judge. signment was held insufficient for record, and
Suit by Harold B. Hibben and others did not operate, in and of itself, to convey to against Alfred D. Peck and others. From an appellant the legal title to the patent when interlocutory order adjudging them receivers issued. Nevertheless the instrument obligat- of a stock of goods, defendants Peck and ed the inventor to execute, at appellant's re- Graves appeal. Affirmed. quest, such papers as were necessary to assist the latter in obtaining whatever patent T. B. Cunningham, of Kentland, and John rights it desired, in this or in foreign coun- A. Dunlap, of Rensselaer, for appellants. tries. No limitation is placed on this provi. Schuyler C. Dwyer, of Lowell, for appellees.
MORRIS, J. Appeal from an interlocutory tense. We hold otherwise. The order adjudging appellants receivers of a treats the provision of the statute requiring mercantile stock, under the provisions of the an inventory to be made by seller and purbulk sales act of 1909 (Acts 1909, p. 122; sec- chaser as a nullity, and proceeds on the theotions 7471a-7471c, Burns, 1914). Section 1 ry that a verbal statement of the seller that of the act makes void, as against creditors, a he had no creditors complied with the statubulk sale of a stock of merchandise, 'unless tory requirement that the statement be writthe seller and purchaser, at least five days ten and made under oath. Holding such an before the sale, shall make a full detailed in answer sufficient would amount to a practi. ventory, and unless the purchaser demand cal repeal of the statute, Courts are not and receive from the seller a written list, invested with such power. made under oath, of the sellers, creditors, and Judgment affirmed. also unless the purchaser give five days' notice to creditors before taking possession,
(185 Ind. 650) Section 3 of the act provides that a purchaser failing to comply with the above provisions PADDOCK, Mayor, v. STATE ex rel. FITZ
MAURICE et al. (No. 22995.) sball, on a creditor's application, become a receiver of the merchandise stock, and be held (Supreme Court of Indiana. Nov. 29, 1916.) accountable therefor to the creditors.
1. MANDAMUS 1-RIGHT TO WRIT-IMPERAppellees Hibben and Holweg, Afreed De ATIVE DUTY. Fries, and Foley & Co. (a corporation) fled
To warrant issuance of writ of mandamus, a complaint against appellants Peck and the relator must not only show a clear legal
right, but must show that there is no other Graves and appellee Vernon Cyphers, in adequate remedy, and that it is defendant's imwhich it is alleged that plaintiffs were credi-perative duty to do the act sought to be comtors of Cyphers when, on August 24, 1915, the pelled. latter sold his stock of merchandise, worth Cent. Dig. $$ 1-3; Dec. Dig. Owl; Action,
[Ed. Note.-For other cases, see Mandamus, $3,500, to Peck and Graves; that there was Cent. Dig. $ 115.) no inventory of the stock made previous to 2. MANDAMUS M92_RIGHT TO WBIT—IMPERthe transfer of possession; that there was no ATIVE DUTY. notice given the creditors of the intended
Where the city council, after ordering the sale; and that no list of creditors was made mayor to sign a paving ordinance, revoked the
resolution, the mayor had no authority, much by the seller. The complaint prays for an less duty, to sign the contract, and his signaorder adjudging the purchasers receivers of ture could not be compelled by mandamus. the stock and accountable therefor to the
(Ed. Note.-For other cases, see Mandamus, bona fide creditors of Cyphers. Appellants Cent Dig. š8 199, 204; Dec. Dig. 92.] Peck and Graves answered in a single para
Appeal from Circuit Court, Jay County; graph alleging that they did purchase and Jacob F. Denney, Judge. take possession of the stock on August 24, Mandamus by the State, on the relation of 1915; that five days before the purchase they John J. Fitzmaurice, against Charles A. Paddemanded of Cyphers that he make a full dock, Mayor of Portland. From judgment and detailed inventory of the stock, and at granting the writ, defendant appeals. Rethe same time demanded that he make a list versed, with instructions. of creditors, with addresses and amount due
Charles E. Sturgis and Robert W. Stine, each and certify to the same under oath; both of Bluffton, and Malcolm V. Skinner, that Cyphers represented to them that he had of Portland, for appellant. James R. Flemno creditors; that an August 24, 1915, Cy-ing and Frank B. Jaqua, both of Portland, phers executed a bill of sale for the stock, for appellee. to which was appended his affidavit, a copy of which instrument is set out. The a ffi
SPENCER, J. It appears from the special davit recites that the seller is the sole owner finding of facts in this case that on May 3, of the stock, and that there are no liens on it 1915, the common council of the city of Portor suit pending to affect the title, but con- land adopted a resolution, declaring that it tains no reference to creditors of Cyphers. was deemed necessary to grade and pave a The trial court sustained a demurrer to the part of Pleasant street in said city under answer, and this ruling presents the sole and pursuant to the provisions of section question for us to determine. There was no 8710 et seq., Burns 1914. Such other pro
The validity of the statute is not ceedings in the premises were thereafter had questioned. See Hirth-Krause Co. v. Cohen as resulted, on July 12, 1915, in the adoption (1912) 177 Ind. 1, 97 N. E. 1, Ann. Cas. 1914C, by the council of a further resolution, award708; Rich v. Callahan (1913) 179 Ind. 509, ing the contract for such improvement to the 101 N. E. 810; Beard v. Indianapolis Fancy relators herein, and directing appellant, as Grocery Co. (1913) 180 Ind. 536, 103 N. E. 404. the mayor of the city, to execute the conCounsel for appellees assert that the statute tract in its behalf. Two days later, at a should receive a liberal construction, and special session of the council, its vote on the that, so construed, the answer stated a de-resolution of July 12th was reconsidered,
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes