Gambar halaman

the breach. But this principal cannot ap- Hanford, 113 U. S. 187, 12 Sup. Ct. 437, ply to a case where the alleged stranger 36 L. Ed. 118, cited and quoted in the opinhas, by previous valid contract with the ion, and other cases cited there in the same original principal debtor, and based upon a connection, to which may be added the folvaluable consideration, viz., the proceeds of lowing, to the same effect: Herd v. Tuohy, the note in question, agreed to assume and 133 Cal. 55, 65 Pac. 139; Wyatt v. Dufrene, pay the debt. These 15 makers were, in 106 Ill. App. 214; Stove Works v. Caswell, 48 fact, the sureties or accommodation makers Kan. 689, 29 Pac. 1072; Franklin Savings as to the guaranty company, and were en- Bank v. Cochrane, 182 Mass. 586, 66 N. E. titled to the resulting legal rights and equi- 200, 61 L. R. A. 760; Pratt v. Conway, 148 ties arising out of that relationship, and Mo. 291, 49 S. W. 1028, 71 Am. St. Rep. when Mrs. Wertheimer knew, or had notice, 602; Regan v. Williams, 185 Mo. 620, 81 S. of such relationship she was bound to do W. 959, 105 Am. St. Rep. 600; Miller v. nothing to endanger or destroy any of such Kennedy, 12 S. D. 178, 81 V. W. 006; Iowa rights, and from that time the guaranty Loan & Trust Co. v. Schnose (S. D. decided company as to her was no longer a stranger April 4, 1905) 103 N. W. 22; Merriam v. in respect to such debt. It was legally bound Miles, 54 Neb. 566, 74 N. W. 861, 69 Am. by contract to the makers of the note to pay St. Rep. 731; Travers v. Dorr, 60 Minn. 173, it in the first instance, and as between them 62 N. W. 269; George v. Andrews, 60 Md. and itself it was the duty of the company to 26, 45 Am. Rep. 706. either pay it, or in some manner protect the For these reasons the motion should be makers from legal process to collect the note. disallowed. The company sought to perform this duty by contracting with Mrs. Wertheimer through

(49 Or. 603) Selling, and when doing so was not acting

MULTNOMAH COUNTY V. FALING. as a volunteer or a stranger to the legal relation existing between Mrs. Wertheimer

(Supreme Court of Oregon. July 23, 1907.) and defendants.

PAUPERS-LIABILITY TO SUPPORT RELATIVE. In Arnold v. Green, 116 N. Y. 506, 23 N.

B. & C. Comp. $ 2054, provides that every

poor person who shall be unable to earn a liveE. 1, it is said that the terms "stranger" and

lihood by reason of bodily infirmity shall be "volunteer," as used with reference to the supported by the father, brothers, etc., and that subject of "Subrogation," mean one who in every person failing to give such support, when

directed by the county court, shall forfeit such no event resulting from the existing state of

sum monthly as the court shall find sufficient, affairs can become liable for the debt, and

to be recovered for the use of such poor perwhose property is not charged for the pay- son. Held, that there is no liability under the ment thereof, and cannot be sold theretor.

statute until an order has been made by the

county court. The payment by one who is liable to be com

[Ed. Note.-For cases in point, see Cent. Dig. pelled to make it or lose his property will vol. 38, Paupers, $ 152.) not be regarded as made by a stranger. When the person paying has an interest to

Appeal from Circuit Court, Multnomah protect, he is not a stranger. Suppiger v.

County; Arthur L. Frazer, Judge. Garrels, 20 Ill. App. 625; Bennett v. Chand

Action by

by the county of Multnomah ler, 199 Ill. 97, 64 Y. E. 1052; Mavity v.

against X. J. Faling. From a judgment overStover. 68 Neb. 602, 94 N. W. 834. If, dur

ruling a demurrer to the complaint, defending the period of leniency granted in the ex

ant appeals. Reversed and remanded, with tension agreement, defendants had tendered

directions to sustain the demurrer. payment or the note, and it was accepted, Thos. N. Strong, for appellant. Ernest and then they had sued the guaranty com- Brand, Jr., for respondent. pany upon its contract of indemnity with them, it, no doubt, could successfully plead BEAN, C. J. This is an action brought by in abatement its extension agreement with the county

county court of Multnomah county the payee; but, if defendants had been sued against Xarifa J. Faling to compel her to by Mrs. Wertheimer upon this note prior pay to the county $30 per month for the supto the expiration of the time given in the ex- port of her brother, Cornelius W. Barrett, an tension agreement, they not only could have alleged poor person, and comes here on appeal successfully pleaded the agreement as a de- from a judgment rendered in favor of plainfense, but they would have been bound to do tiff, after overruling a demurrer to the comso to preserve their right of immediate in- plaint. demnity as against the guaranty company. Section 2654, B. & C. Comp., provides that: Not to do so would be in effect confessing "Every poor person, who shall be unable to judgment upon a demand, the maturity of

livelihood in consequence of bodily inwhich had been extended for a valuable con- firmity,

shall be supported by the sideration paid by one in privity with the father, mother, children, brothers, or sisters defendants.

of such poor person, if they or either of them No distinction whatever has been suggest- be of sufficient ability; and every person who ed by counsel for plaintiff, and we think shall fail or refuse to support his or her none can be found, between the case at bar father, mother, child, sister or brother, when and the case of Union Life Insurance Co. v. directed by the county court, .

shall forfeit and pay to the county, for the use of ļ required by Laws 1903, p. 280, $ 59, it was the poor of their county, the sum of thirty proper to allow an amendment during the trial dollars per month, or such other sums as the

making that allegation, since the amendment

did not change the cause of action, and it did court shall find sufficient, to be recovered in

not appear that defendant had been misled. the name of the county court for the use of [Ed. Note.-For cases in point, see Cent. Dig. the poor as aforesaid before any justice of

vol. 39, Pleading, 88 676-683.] the peace or any court having jurisdiction." 2. SAME-EFFECT OF OBJECTION TO TESTIMONY There is no averment in the complaint that UNDER ORIGINAL COMPLAINT. the defendant has been directed by the county

The fact that under the original complaint

objection was made to the admission of testicourt to support her brother, and that she has

mony as to plaintiff's lack of knowledge of the failed or refused to comply therewith, and defect in the bridge did not deprive the court of this is an essential prerequisite to the mainte- power to allow the amendment. nance of the action. At common law there is [El. Yote.-For cases in point, see Cent. Dig.

vol. 39, Pleading, $$ 653-675.] no legal liability resting on one relative to support another, however strong the moral duty


COURT-AMENDMENT OF P’LEADINGS. may be. The duty of providing such support

The ruling of the trial court on a motion is purely statutory, and the procedure pro- to amend the complaint will not be disturbed vided for its enforcement is exclusive.

Bel- on appeal, except for manifest abuse of discre

tion. knap v. Whitmire, 43 Or. 75, 72 Pac. 589. Under this statute the county court has no

[El. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, $$ 382.–3833.] cause of action against a delinquent relative

4. HIGIIWAYS except upon his failure to perform the duty


PUBLIC IMPROVEMENT. imposed upon him by statute "when directed

If a highway has been traveled, used, imby the county court." The provision is that proved, and worked by the public as a county every person who shall refuse to support his

road for a period of 10 years or more, it is a

legal county road. or her parents, children, brother, or sister,

[F.. Note-For cases in point, see Cent. Dig. "when directed by the county court,” shall vol. 25, Highways, 88 1-10.) forfeit and pay to the county for the use of

5. BRIDGES-ACTIONS FOR INJURIES-ADMISthe poor the sum of $30 per month, or such SIBILITY OF EVIDENCE-AUTHORITY TO Conother sum as the court shall find sufficient, STRUCT AND REPAIR. "to be recovered in the name of the county

In an action for personal injuries sustained

because of a defective bridge, testimony to show court" before a court having jurisdiction. To

that the road and bridge had been kept in refix a liability in favor of the county court pair by the road supervisor under the direcand against the delinquent relative, it is nec- tion of the county court is admissible without essary therefore that an order be made by the

showing an order of the court authorizing or

directing him to keep them in repair, or that court directing him to discharge the duty

no record of such authority had been made, imposed upon him, and that such direction since, under Laws 1903, p. 282, § 68, the road has been ignored. Faling v. Multnomah Co., supervisor is an officer of the county appoint46 Or. 400, 80 Pac. 1009. This is the plain

ed by the court, and it is his duty under Laws

1903, p. 271, § 28, to keep the public roads in reading of the statute, and the necessary and

repair. orderly procedure to fix liability upon a de 6. BRIDGES--USE FOR TRAVEL-CONTRIBUTORY linquent relative and a complaint by a county

NEGLIGENCE. court, which fails to allege a compliance with

Where a county constructs or maintains

a bridge for use by the public, a traveler may the statute, necessarily does not state a cause

assume, in the absence of information to the of action.

contrary, that he may safely travel over any For these reasons the judgment of the court portion of the bridge and in doing so he is below must be reversed, and the case remand

not guilty of contributory negligence. ed, with directions to sustain the demurrer to

[Ed. Note. For cases in point, see Cent. Dig.

vol. 8, Bridges, 88 91, 94.] the complaint, and for such further proceed

7. TRIAL-INSTRUCTIONS-SUFFICIENCY AS A ings as may be proper not inconsistent with

WHOLE. this opinion.

Where an instruction as a whole clearly states the law as to the measure of damages for

personal injury, and the jury could not be mis(50 Or. 30)

led thereby, it will not be held insufficient on RIDINGS V. MARION COUNTY.

account of the wording of a portion thereof.

[Ed. Note.-For cases in point, see Cent. Dig. (Supreme Court of Oregon. July 23, 1907.)


Appeal from Circuit Court, Marion CounUnder B. & C. Comp. § 102, providing that

ty; Thomas A. McBride, Judge. the court may, in furtherance of justice and up- Action by H. P. Ridings against Marion on proper terms, at any time before the cause

county. From a judgment for plaintiff, deis submitted, allow any pleading to be amended by correcting a mistake in any respect, or,

fendant appeals. Affirmed. when the amendment does not substantially

C. L. McNary, for appellant. C. D. Latourchange the cause of action or defense, by conforming the pleading to the facts proved, where

ette and Geo. G. Bingham, for respondent. the complaint in an action for injuries sustained because of a defective bridge alleged that

BEAN. C. J. This is an action to recover: plaintiff had not been informed of its defective condition, but did not allege that plaintiff was damages for an injury received by plaintiff, without knowledge of the defect or danger, as while traveling on a county road leading

from Woodburn to Monitor in defendant, ing to the facts proved. Section 102, B. & county, in consequence of a defect in a C. Comp. Toe power thus conferred upon bridge over Pudding river on such road. trial courts has always been and should be After alleging that the road upon which he liberally exercised in furtherance of justice, was traveling at the time of his injury was for as said by Mr. Chief Justice Strahan, a legal county road, and that the bridge in Baldock v. Atwood, 21 Or. 73, 26 Pac. thereon was and had been, for a long time 1058: "Nothing is ever gained by turning prior to the accident, out of repair and in a party out of court or compelling him to a dangerous and defective condition, and take a nonsuit on account of some defect known to the county authorities to be so, in his pleading not discovered perhaps until plaintiff avers that, “while he was lawfully the progress of the case, when an amendtraveling upon said highway and not hav- ment could supply the defect and the action ing been warned of the defects in said legal or suit be brought to an early determinacounty road, or in said bridge, or of the tion.” The allowance of such an amendment dangerous condition of the same, the horse rests in the discretion of the trial court, and upon which plaintiff was riding stepped its ruling will not be disturbed on appeal through a hole in said bridge, and plain. except in case of manifest abuse of such tiff by reason thereof was thrown violently discretion. This rule has been so often anto the flooring of said bridge” and severely nounced and applied by this court that it and permanently injured in his right arm. is unnecessary to cite authorities in its The answer denies all the material allega- support. The fact that objection was made tions of the complaint. Upon the issues to the admission of the testimony did not thus joined, the cause was tried before the deprive the court of the power to allow the court and a jury, resulting in a verdict in amendment. Wild v. 0. S. L. Ry. Co., 21 favor of plaintiff. From the judgment en- Or, 159, 27 Pac. 954; Kosbland v. Fire Astered therein defendant appeals, assigning sociation, 31 Or. 362, 49 Pac. 865; Farmers' error in the admission of testimony and in Bank V. Saling, 33 Or. 394, 54 Pac. 190; the giving of instructions. The several as- York v. Nash, 42 Or. 321, 71 Pac. 59. The signments of error will be considered in the case of Mendenhall v. Harrisburg Water Co., order in which they were presented.

27 Or. 38, 39 Pac. 399, when rightfully un1. Plaintiff, as a witness, testified that derstood, is not to the contrary. It was so after dark on the evening of October 30, explained in Farmers' Bank v. Saling, supra. 1904, as he was traveling over the bridge 2. No evidence was admitted on the trial in question going towards Woodburn, he niet to show that the highway in question had a buggy and team, and in turning out to been regularly laid out and established by allow them to pass his horse stepped in a

the public authorities, but plaintiff was perhole in the briuge, and he was thrown vio- mitted to give evidence tending to show that lently to the floor thereof and severely in- it had been used and traveled by the public jured. He was thereupon asked by his coun- as a highway for more than 10 years prior sel whether he had any previous knowledge to the time of plaintiff's injury, and that it of the existence of the hole in the bridge. had been recognized as such by the county To this question an objection was interposed authorities. The court instructed the jury and sustained, because a want of such knowl. that if the road had been traveled, used, imedge was not alleged in the complaint, but proved, and worked by the public as a counsimply that plaintiff had not been warned ty road for a period of 10 years and more of the defect. Plaintiff then moved for per- prior to the accident, it was, for the purpose mission to amend his complaint by inserting of this action, a legal county road. There the words “and without knowledge." The was no error in the admission of this testimotion was allowed, and this ruling is as- mony, or in so instructing the jury. In this signed as error. The omission of an aver- state a highway may be established by adment in the complaint that plaintiff was verse user, and, "where the length of time without knowledge of the defect in the high- | of such use by the public has been greater way was no doubt due to the fact that the than the period prescribed by the statute of pleader had forgotten that section 4781, B. limitations for the recovery of real property, & C. Comp., giving a right of action to one that will be regarded as sufficient evidence injured while lawfully traveling on a coun- of the existence of a highway independently ty road, had been amended or changed by of any supposed dedication." Douglas Counthe act of 1903 (Laws 1903, p. 280, $ 59). | ty Road Co. V. Abraham, 5 Or. 318. To the But as the amendment did not change the same effect, Bayard v. Standard Oil Co., 38 cause of action, and it does not appear that Or. 438, 63 Pac. 614. the defendant was in any way misled to 3. Objection was made to the admission its prejudice thereby, it was properly al- of testimony that the road and bridge in lowed. The statute authorizes the court to question for more than 10 years had been allow a pleading to be amended at any time kept in repair by the road supervisor under before the cause is submitted by correcting the direction of the county court without a mistake therein, or when the amendment showing an order of the court authorizing does not substantially change the cause of or directing him to do so or that no record action or defense by conforming the plead- of such authority had been made. But we think the evidence was competent. The road | incapacitated, you will fix that in the meassupervisor is an officer of the county ap- ure of damages.” The objection is that the pointed by the court (Laws 10v3, p. 282, $ 68), language excepted to is unintelligible, and and it is his duty to open or cause to be it cannot be determined therefrom whether opened all county roads in his district and the court intended to confine the recovery of keep the same in good repair. For that pur- damages to the physical suffering of the pose he is authorized to purchase, with any | plaintiff, or whether it intended to allow the available funds on his hands, timber, plank, jury to include damages for his mental sufor other necessary material. Laws 1903, p. fering. But it is only a part of the instruc271, § 28. In so acting he is the agent or tions on the measure of damages. The rerepresentative of the county (McCalla v. Mult- mainder of the charge on that subject is as nomah Co., 3 Or. 424), and it is not neces- follows: "There is no exact measure for sary to show a formal order of the court au- bodily pain and suffering in these matters. thorizing or instructing him as to when or You cannot say so much pain is worth so how he shall perform his duty, or that no many dollars, and such another amount of such order was entered of record. If a high- pain is worth so much more. You cannot way is opened and kept in repair by the estimate it with the accuracy that you could proper county authorities, it is evidence tend- sum up an account. But it is left, to a very ing to show that it is a county road, and it great extent, to the sound discretion of the is not incumbent on one who is injured by jury, under the law. There is nothing to be the negligence of such authorities to show given here on account of sympathy you may that the work was authorized by some formal feel for this man. Whenever you begin to order of the countr authorities that it was consider a verdict on the ground of sympadone by or under their direction.

thy, it is your duty to put your hands in your 4. It appears that the bridge in question, own pockets and contribute whatever amount which was about 16 feet wide, had been re- you feel sympathy ought, and not to take it planked or "half-soled” for about 10 feet in from the pockets of the citizens of Marion the center thereof a short time before the county. But whatever is fair compensation, accident to plaintiff. The defendant request- if you think he has shown the right to reed the court to instruct the jury that, as cover at all, whatever is fair and just complaintiff failed to show that the parties in pensation inside of $2,000, you should give charge of the buggy which he met on the Dim; on one hand not wanting to give him bridge refused to give him half the road, it any less than fair compensation, and on the must be presumed that they did so, and as other hand without any desire to shovel mona consequence that he was guilty of con- ey out on the ground of sympathy, but just tributory negligence in guiding his horse off what justice and fairness would compensate of the replanking and into the hole in the um for whatever injury he has sustained at bridge. But plaintiff had a right to assume, this place, if he has sustained any." When in the absence of knowledge to the contrary, taken as a whole, the instruction, we think, that the bridge was safe for travel its full clearly stated the law, and the jury could width, and could not be charged with con- not have been misled thereby. It confined tributory negligence in going off of the half- the recovery to compensation for the physical soled portion thereof, whether he was com- injury plaintiff sustained. pelled to do so or not. Where a county con

Judgment affirmed. structs or maintains a bridge for use by the public, a traveler has a right to assume, in

(32 Utah, 381) absence of information to the contrary, that STATE ex rel. PORTER V. RITCHIE, Judge. he may safely travel over any portion of such (Supreme Court of Utah. June 25, 1907. On bridge and he is not guilty of contributory

Rehearing, July 12, 1907.) negligence in doing so.

1. JUSTICES OF THE PEACE-PROCEDURE-NEW 5. The defense excepted to the following


Where the right to grant new trials is conlanguage in the court's charge to the jury: ferred upon justices of the peace, the same prin“In this case you cannot find for over $2,000 ciples govern the extent and exercise of the in damages, and the compensation you are jurisdiction as govern courts of record. to give is for whatever bodily injury you say

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 31, Justices of the Peace, $$ 369-371.) he has suffered, you find that he has suffered, if he has suffered any, or is unable to per


OF MOTION FOR NEW TRIAL. form any work as a mail contractor or any

Rev. St. 1898, $ 3744, provides that an apwork whatever, whatever lessened capacity | peal may be taken from the judgment of a jusfor work he has, if any. Your verdict should tice of the peace at any time within 30 days

after the rendition of judgment. Section 3712 be for such sum as in your judgment would

provides that a new trial may be granted by compensate bim for the injury and suffering the justice on motion made within 10 days afthe has sustained, if you find he is entitled er the entry of judgment. Const. art. 8, 89, to compensation at all. If you find he is en- grants appeals only from final judgments of the titled to compensation at all for his reduced

justice of the peace. Held, that the filing of a

motion for a new trial suspends the judgment, capacity for work and his disablement, if and an appeal cannot be taken until the overyou find he is disabled, or incapacitated for ruling of the motion.1 labor in any degree whatever you find he is 1 Watson v. Mayberry, 49 Pac. 479, 15 Utah, 2u5.

3. SAME-New TRIAL-TIME FOB DECISION ON that day the motion was heard by the justice Morion.

and overruled. On the 10th day of October, Under Rev. St. 1898, 8 3742, providing that a new trial may be granted by a justice of the 1906, Porter served the plaintiff in that acpeace on motion made within 10 days after

tion and filed with the justice a notice of apthe entry of judgment, no time is fixed within peal, and thereafter, on the 12th day of Ocwhich the motion must be decided.

tober, 1906, duly filed the necessary under1. STATUTES-REVISION-SETTING FORTH PRO

taking on appeal, as required by law, and VISIONS AS ALTERED-CONSTRUCTION. Where, in a revision of the statutes, the

appealed said cause to the district court of phraseology of a section is changed, the obvious Salt Lake county. The justice thereafter in effect of which is to give it a different meaning, due time transmitted the papers in said case the courts cannot give the old meaning to the

to the clerk of said district court, and the new section. [Ed. Note.--For cases in point, see Cent. Dig.

cause was duly docketed in said court and vol. 44, Statutes, $8 216, 312.]

the fees therefor paid as required by law. In

other words, the appeal was regular in all reOn Application for Rehearing.

spects, if taken in time. On January 31, 5. Costs'ON APPEAL-DISCRETION OF COURT -MANDAMUS.

1907, the plaintiff in said action served and The awarding of costs in certiorari and filed a motion to dismiss said appeal upon mandamus proceedings rests in the discretion the sole ground that it had not been taken of the court.2

within the time required by the laws of this [Ed. Note.--For cases in point, see Cent. Dig.

state relating to appeals from justices' courts. vol. 13, Costs, 88 20–25.)

Upon the hearing of said motion the respond6. SAME. Where the question presented in a man

ent in this proceeding, as judge of said disdamus proceeding in the appellate court, to com

trict court, sustained the same and dismissed pel the district court to reinstate an appeal said appeal, and, upon application to reinfrom a justice's court, dismissed as not taken state the same and to proceed to a hearing in time, was the jurisdiction of the district court to hear the appeal on the merits, costs

upon the merits, refused, and this application should not be awarded against the real party

is made to require him to do so. The quesin interest, who had moved in the district court tions presented for decision are: (1) Was to dismiss the appeal only as a suggestion that said appeal taken within the time required the court did not have jurisdiction, and who did not appear in the mandamus proceedings

by the laws of this state governing appeals against the judge of the district court, who op

from justice courts to the district courts? posed merely to settle the law.

And (2) was the motion for a new trial pass(Ed. Note.--For cases in point, see Cent, Dig. ed on within the time the law authorized the vol. 13, Costs, 88 20-25.)

justice to do so? Mandamus by the state, on the relation of The time within which an appeal must be Don Porter, against Morris L. Ritchie, as taken from judginents of justices of the peace judge of the district court, and another. Writ is stated in section 3744 to be "at any time granted.

within 30 days after the rendition of judgC. S. Price, for petitioner. McGurrin & ment." If this section stood alone, or if the Gustin, for defendant.

part above quoted is controlling in all cases,

regardless of any other provision in other FRICK, J. This is an original application

sections relating to the trial of and proceedto this court for a writ of mandatè against

ings before justices of the peace, then it necone of the judges of the district court of Salt

essarily follows that the appeal in this case, Lake county. The application is based upon

not having been taken within the time fixed substantially the following proceedings: On

by said section, was not taken in time, and December 7, 1905, one Mae Houghton, as

therefore cannot be sustained. In view, howplaintiff, filed her complaint in the justice

ever, of other sections relating to the subjectcourt in and for Salt Lake county against

matter, this conclusion does not necessarily Don Porter, praying judgment for $41.66.

follow. Section 3742 reads as follows: "A Porter appeared and filed a general denial as

new trial may be granted by the justice on a defense to the action. On January 8, 1906,

motion made within ten days after the entry the justice entered judgment, after a trial,

of judgment, for the following causes." Then against Porter, for the amount prayed for,

follow the causes for which a new trial may with costs. On January 17, 1906, and with

be granted by the justice. This section, in in the time allowed by section 3742, Rev.

another form, is first found in the Compiled St. 1898, and upon the grounds therein pro

Laws of 1876 as section 1802. The wording vided, Porter served the plaintiff, and filed

and punctuation, as there enacted, are as folwith the justice, a motion for a new trial,

lows: "A new trial may be granted by the supported by affidavit, as required by section

justice, on motion, within ten days after the 3743. This motion remained pending until

entry of judgment, for any of the following September 27, 1906, when the plaintiff in

causes." This wording and punctuation were said action caused a notice to be served on

carried into the Compiled Laws of 1888, said Porter notifying him that said motion

and constituted section 3655 of that compilafor a new trial would be heard by the jus

tion. In 1898, however, when the Revistice on the 1st day of October following. On

ed Statutes were adopted, the wording and -0. S. L. Ry. Co. v. District Court, 85 Pac. 360, punctuation were changed as they are now 30 Utah, 371.; Hoffman v. Lewis (Utah) 87 Pac. 167; Stato v. Morse (Utah) 87 Pac. 705.

in section 3742, above quoted. During all of

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