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tice Sharkey in Turney v. State, 8 Smedes & M. 120; The reporter's work on this series, which is now so Gunter v. Watson, 4 Jones (La.), · 455. Because the well known in the profession, has always been and error may have prejudiced the plaintiff in error, it is continues to be admirably done; indeed some engaged fatal to the conviction. Sup. Ct. Wis., May 15, 1884. in the same work might study them as models. He Klock v. State. Opinion by Lyon, J. (19 N. W. Rep. makes a head-note, and does not make it a mere reit543.)

eration of the words of the opinion, with the aid of the scissors. The present volume is well printed and has

a good index. We note the case of Johnson v. Van INSURANCE LAW.

Epps, p. 201, holding that the beneficiary in a life pol

icy where the insured retains the control thereof may FIRE-DESCRIPTION OF PREMISES—WARRANTIES AND be changed with the consent of the insurer. The court REPRESENTATIONS-MATERIALITY--CONDITIONS WORK- discusses the cases at length. In St. Louis, etc., R. Co. ING FORFEITURE-WAIVER.-(1) Where in ap applica- v. Hill, p. 579, the court discusses the question of distion for insurance whereby the assured agrees that the crimination by carriers regarding freight. application is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property, so far as the same are known to him, and are material to the risk,

COURT OF APPEALS DECISIONS. it is immaterial whether the statements are regarded as warranty, or merely as representations of the truth of the statement, because the applicaut only assumes

following decisions were handed down Tuesresponsibility for their truth so far as the facts are day, Oct. 14, 1884: kuown to him and material to his risk. Houghton v. Order of General Term affirmed-People v. William Manufacturer's Ins.Co., 8 Met.114. The application and Couraly.- Motion to put on preferred calendar the policies are to be read together, and it is a famil- granted without costs--People ex rel. Alfred Lawrence, iar role in the interpretation of conditions which work respondent, v. Elias Mann aud another, appellants; a forfeiture that they are not to be extended by con.

George Mark and another, appellants, v. State of New struction, and being inserted for the benefit of the insurer, they are to be literally construed in favor of the York, respondent.--Motion to put cause on preferred assured. No effect can be given to the covenant on

calender granted, with costs—People, respondents, v. the part of the applicant at the end of the application, Western Union Telegraph Company, appellants; Peounless it is construed as restricting his undertaking ple v. Gold and Stock Telegraph Company. -Motion and holding him accountable for the accuracy of his for this court to request Supreme Court to returu restatements so far only as the facts stated are material mittitur denied, without costs-Charles Wager and to the risk. If every statement and the truth of every others, respondents, v. Eliza H. Wager, appellant. — answer were to be treated as material, there would be

Motion for re-argument denied, without costs-John nothing upon which the restriction could operate. In this application the assured represented by his answer

D. McLean, respondent, v. Andrew McLean, appelto the eighteenth question that there was no planing- lant. —Motion to dismiss appeal denied with $10 machine upon the premises, but the premises to which cost.8---John A. Hurron, respondent, v. William G. the question and answer refer are the insured prem- Oppenheim, appellant. ises, not the adjuncts or adjoining premises. Northwestern Ins. Co. v. Germania Ins. Co., 40 Wis. 446; Carlin v. Western Assurance Co., 57 Md. 515. There was therefore no misrepresentation. (2) When a ques

NOTES tion is not answered it is not to be inferred that there was nothing which required an answer, and in such

The American Law Register for September contains case, if the answer is not responsive or satisfactory, the insurer waives a full answer. Higgins v. Phoenix Ins.

a leading article on Railway Insurance by Adelbert Co., 74 N. Y. 6; Carson v. Jersey City Ing. Co., 43 N.J.

Hamilton, and the following cases: Queen v. Price L. 300; Com. v. Hide & Leather Ins. C., 112 Mass. 136. (Eng.), on cremation as a nuisance, with note by Mar. (3) Conditions that work a forfeiture are not to be ex- shall D. Ewell; Ort v. Fowler (Kans.), on negligent tended by construction. Being put into the policy signing of a promissory note, with note by Henry for the benefit of the insurer, they will be construed Wade gers; Davis v. Duncan (U. S. Ciro.), on liabilmost liberally for the assured. (4) The materiality of ity of receiver for torts of employees, with note by the representation is a question of fact. The test is

Charles L. Billings; Railroad Co. v. Gallagher (Ohio), the probable effect of the representation upon the judgment of the insurer. Cir. Ct., N. D. N. Y., March

on liability of master to one summoned by his servant 4, 1884. Mulville v. Adams. Opinion by Wallace, J. to assist bim, with note by John F. Kelly.- "Life" (19 Fed. Rep.)

wants to kuow if a blind man can maintain an action

on a draft at sight. - -The late Mr. Beavan, the most NEW BOOKS AND NEW EDITIONS.

voluminous reporter of his day, was a generous son of

the Middle Temple. A silver snuff-box presented by 14TH BRADWELL.

him has for years lain on the polished oak of the senior Reports of the Decisions of the Appellate Courts of the State bar mess, and is during term duly sneezed over night

of Illinois. By James B. Bradwell, vol. xiv. Containing after night by barristers who never take snuff out of all the remaining opinions of the first district up to, and hall. One of the items of his will is a bequest of “my including a portion of those filed on the 20th day of

gold répoussé snuff-box” to the benchers,“ over which May, 1884, and all the remaining opinions of the second

they will in the future have an opportunity of blessing and third districts, up to June 19, 1881, and all the remaining opinions of the fourth district, up to the 15th day

one another."-London Law Journal. (Referring to of July, 1884. Chicago, Chicago Legal News Company, the classio custom of saying “God bless you!" when. 1884. pp. 723.

ever any one sneezes.)

The Albany Law Journal.







boy of sixty or seventy years ago, I think, I remember that we had a bin, or sheep-bin, as

called it, built within the general enclosure for the ALBANY, OCTOBER 25, 1884. flock, in which we put sheep about to lamb, sheep

that had just lambed, with the little tender lambs CURRENT TOPICS.

themselves, for the purpose of giving them better

care and attention than the general flock required. UR reminiscences of Judge Folger have awak

Am I right? I do not think I have heard the word

for fifty years, used in that way, but your letter ened considerable interest among our readers. One of them early discovered that the judge was

calls it up from the shadowy past, and I more than

half think that was the sense in which the poet wrong in attributing the poem, “The Auld Ash

used it. I am confirmed in this opinion, that it Tree,” to Motherwell, and we are indebted to another for information of the authorship and a copy

is put in the mouth of “de black and thin" negro,

who makes the nice distinction between the divine of the poem. The poem was written by Thomas

'massa' who watches the 'sheepfol’-vin,' where his Davidson, a young Scotch clergyman of a good lambs, and the weak and the old of his flock are deal of promise, who died about 1870. The poem specially cared for, and the ‘hirelin' shepa'd' who has a sad significance when read in the light of only cares to bring the fat and the thrifty ones Judge Folger's last letter to us. It is as follows:

into the fold.” We ourselves suggested to the THE AULD ASH TREE. judge, at the time of his letter, that “

bin" must There grows an ash by my bour door,

mcan a pen or enclosure, but the conjecture of our And a' its boughs are buskit-braw

correspondent last quoted gives a deeper meaning In fairest weeds o' simmer green, And birds sit singing on them a'.

to the expression. We are sure our readers will But cease your sangs, yo blithesome birds,

thank us for dropping into literature sufficiently to An'o' your liltin' let me be;

put before them two such exquisite poems.
Ye bring deid simmers frae their graves

To weary me, to weary me!
There grows an ash by my bour door,

The judges have several bad habits which ought
And a' its boughs are clad in snaw ;
The ice drap hangs at ilka twig

to be corrected, and we are sure they will be glad And sad the nor' wind soughs thro' a'.

to have them pointed out by a disinterested party. Oh, cease thy mane, thou norlan' wind

In some States, especially the western, there is a
And o' thy wailin' let me be ;
Thou brings deid winters frae their

tendency to cite too many authorities. We have To weary me, to weary me!

repeatedly found of late from twenty to thirty citaOh, I wad fain forget them a';

tions on a single page. This is “damnable iteraReme mbered guid but deepens ill

tion.” If it is essential to refer to the authorities As gleids o' licht far seen by nicht

of all the States on a vexed question, it certainly is Mak' the near mirk but mirker still. Then silent be, thou dear auld tree

not necessary to cite the whole line in each State; О'a' thy voices let me be ;

the latest or the earliest, or both, would answer They bring deid years frae their graves

every purpose. The judges ought not to degenerTo weary me, to weary me!

ate into digest makers or digest transcribers — for that is about all there is of this habit. What adds

to the annoyance is that in many instances the citaOther correspondents have conjectured the mean

tions are incorrect; it is bad enough to be superfluing of the word “bin ” in the poem of “De Massa

ous without being mistaken. ob de Sheepfol',” which puzzled Judge Folger. One writes us: “I may be wrong, and certainly would not fancy I could ever understand a word Another bad habit is citing reports by the name that Judge F. did not, but is not this word clearly of the reporter. We have spoken of this before. the old fashioned bin, of corn-bin and coal-bin? | It is of course unavoidable to refer to the early reThere is in this poem a repetition, as "sheepfol” porters in this way, but where the reports have beis a more correct expression than sheep-bin, though gun to be numbered as State series they should be the latter is not incorrect, and sheep fol' bin is sim- cited by the number of that series, as in Massachuply the expressive poetic repetition that yearned setts, New York, Ohio, etc. In Pennsylvania the after more rhythm.” Two others write to the same judges persist in the most annoying manner in citing effect. One says “ sheep bin" and "sheepfold bin” “P. F. Smith,” “Outerbridge,” etc., instead of the are common expressions in the south.

numbers of Pennsylvania State. At all events there should be some uniform system, and the sys

tem of citing by the number of the State series Another goes a little deeper into the subject, and seems to us by far the best. In Massachusetts and into the "sheepfol',” as follows: “You see the New York the reporters' names have long since poet uses the term “sheepfol' bin,' evidently mean- been sunk, as they ought to be, and we wish the ing an enclosure within an enclosure. The sheep- Pennsylvania judges would follow the example. fold is one thing, while the bin within it, or at- The most obvious advantage of the new plan is tached to it, is another thing. Now, as a farmer's that it avoids confusion.

Vol. 30 — No. 17.


The last bad habit to which we refer is the habit

Of codes he says:

“ Codes are undoubtedly useof reporting nasty cases in detail. We are sure ful for the purpose of settling disputed and doubtthis is generally the fault of the judges, and not of ful points, and giving to the citizens the ordinary the reporters, although the latter usually get the rules of law in a compact and intelligible form ; blame. The details of all sexual cases ought to be but they should not be allowed to usurp the prerosuppressed. There is a case of this sort in 48th gatives of justice itself, seated in man's bosom, by Georgia (covering more than one hundred pages) giving to the letter of the code the inexorable fixity that is a disgrace to the reported jurisprudence of of a statute, and thus reducing the exposition of the the State, and the same may be said of one in 53 law to a question of philology and verbal criticism, Missouri. We have been told by reporters that instead of a question of reason and justice. Used judges insisted on the reporting of such cases. If as a statement of principles and rules applicable to this goes on we shall be obliged to have expurgated cases clearly within their scope, and not as restraints editions of State reports for the chaste youth of our upon the judge in reference to other cases which are profession to study. The reports ought not to be not provided for, and which require a new applicaloaded with such filth.

tion of principles, i. e., the principles of right and

justice governing analogous cases, codes may not We have had great enjoyment in reading Mr. only be admissible, but may be of great service in Justice Bradley's recent address delivered before systematizing and perfecting the law. They should the law department of the University of Pennsyl- never be employed for the purpose of giving to the vania, as we always have in reading any thing from law a cast-iron fixity of form, and thereby repressthe pen of this most admirable of judicial writers. ing all progress and imposing a deleterious and Two or three extracts will serve to show its quality. smothering restraint upon society itself.” Of the influence of law he says: “At first view, when we walk about amongst our fellow men, we may not observe the omnipotent influence and controll. He pays the following tribute to one of the great ing effect of the law. Its power is so subtle and est lawyers whom our country has ever produced, all-pervading that everything seems to take place as

but one almost unknown to fame: “One of the the spontaneous result of existing conditions and greatest, if not the greatest, of forensic speakcircumstances. It is like gravitation in the natural ers,

as well

as lawyers, that I ever knew, world, which, whilst it governs and controls every

was the late Mr. George Wood, of New York movement, and produces all the order of the Uni- – in his early days a leader of the bar of New verse, is itself unseen. It must be studied in its Jersey. His discourse to the court was always effects in order to understand its power. So with

grave, dignified and commanding ; his diction was law in civil society. It is over, under, in, and

chaste and pure, and his style was rich in correct around every action that takes place. Its silent legal phraseology; so that he seemed when speakreign is seen in the order preserved, the person and ing to be the personification of the law itself. He property protected, the sense of security manifested; made no gestures, and but few references to authorin the freedom of intercourse, in the cheerful per- | ities; he did not need authorities; you knew as he formance of labor, in the confidence with which spoke that what he said was the law. All was rebusiness is transacted, and trust is reposed by one duced to such plain and simple principles, and enman in another ; in the peaceful and contented pur- forced with such logical clearness of argument, in suit of trades and occupations, and the bestowal of the chastest, as well as the richest and most approservices; all goes on cheerfully and smoothfully, priate legal diction, that he compelled the closest working out and interworking the constant evolu- attention and carried conviction along with him to tion of human happiness because of the ever-ex

the end. I have often hung upon his lips with isting (though generally unrecognized), conscious chained attention, even when opposed to him in ness of the presence, the watchfulness, and the all- the case, and can truly say that I never enjoyed a sufficient protection of the law. In ordinary con- greater intellectual treat than in listening to his duct, conformity to its rules and requirements is arguments." pursued almost as a second nature; but in transactions requiring authentic evidence, greater knowl- Kentucky forever! This time it is ex-Chief Jusedge, perhaps professional skill, is required; and tice Hargis who has been distinguishing himself. . when questions of ambiguity, complexity and diffi- Our readers will have seen in the daily press the acculty arise, which the parties themselves cannot count of his gallant encounter with another lawyer amicably solve, then of course the skill of the law- at the bar, and how the grave ex-chief condescended yer, and perhaps the wisdom and authority of the to throw a pair of law books at his antagonist's judge, must be resorted to. But compared with the head. It is to be hoped that wounded honor is now millions of transactions which take place, these rip- satisfied, and that nobody will kill himself or any ples on the surface do not often occur. The body else. The only mistake the ex-chief made was mighty river of things generally moves on with an in not selecting heavier missiles of the like kind. A undisturbed current ; but only because it is kept in volume of Louisiana Annual in bulk or of West Vir. its banks and regulated in its course by the power ginia in quality must inevitably have done for his of law."

enemy if it had hit bim.

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source of discomfort to the immediate neighbor

hood, but because its probable and natural conse Anderson v. Doty, 33 Hun, 160, it was held that

quence is harmful to the social and moral welfare

of the public. It is a nuisance because it is a sounds, an action will not lie to enjoin the main-crime, and it can only cease to be a nuisance when taining of a bawdy house near the plaintiff's house, it is abated. I do not think that courts of equity by means whereof the selling and rental value of

are the proper tribunals in which to do this. The the latter is liable to be diminished. The court, usual and customary means, and those always hereRumsey, J., said: “There is no allegation of any tofore employed, are set in motion by the courts noise, or any physical discomfort or tangible injury which administer the criminal law, whose machinto the persons of the occupants of plaintiff's houses,

ery is sufficient to give to the community full relief or to the property, but the injury complained of is in a case of this kind, and at the same time to adentirely consequential in its nature, arising from minister such punishment as will prevent the rethe fact that decent people will avoid such places, currence of the evil. It is the duty of the plaintiff however quietly conducted, because of the inconve

to apply to those tribunals to which the law has riences which they apprehend may occur, although given the power not only to punish the guilty persuch apprehensions may never be realized. The

sons, but to abate the nuisance (Code Crim. Proc., defendant's counsel bases his motion upon the $ 953), and to execute its judgment to that effect. ground that a private action will not lie to restrain I cannot doubt that if the plaintiff, and all persons a public nuisance, unless the plaintiff suffers an in- aggrieved by the existence of such places would jury by it to his person or property different in resort to the criminal courts, the law would be character from that common to all citizens, and promptly and rigorously enforced. At all events that this particular injury must be some sensible the duty of dealing with offenses of the kind physical discomfort, or visible injury to property. charged against the defendant is confined to the The general rule is well settled that a private indi- criminal courts, and should not be assumed by nor vidual cannot restrain a public nuisance by his pri- imposed upon courts of equity.” Barker, J.,

disvate action unless he suffers damage different in sented. kind from that which the nuisance causes all other people. Coke, 56a; Stetson v. Faxon, 19 Pick. 147.

In Schwaniler v. Birge, 33 Hun, 186, an action of But this private injury must be physical, that is, it damages for the death of the plaintiff's intestate, must be offensive to the senses, or endanger health, employed in the defendant's factory, by reason of or render the use of property uncomfortable, or ac- the defendant's neglect to provide means of escape tually interfere with its use. Wood Nuis. 4; Catlin in case of fire, it was held that the questions of negv. Valentine, 9 Paige, 575; Brayton v. Fall River, ligence and contributory negligence were for the 113 Mass. 219-229; St. Helen's Smelting Co. v. Tipping, jury. The deceased was nineteen years old, and 11 H.L. Cas. 642. Mere liability to injury is not suffi. the particular negligence alleged consisted in not ciept. Blackwell v. Old Colony R. Co., 122 Mass. providing a ladder or staircase leading to a scuttle 1-3; Milarkey v. Foster, 25 Am. Rep. 531, and note; in the roof. The court, Smith, P. J., said: “It is Stetson v. Faxon, 31 Am. Dec. 123, and note, Nor contended by the respondents that the deceased is mere consequential injury, because plaintiff's entered the employment of the defendants with premises are rendered less desirable or less valua- | full knowledge of the condition of the building, ble, where no physical damage has been done to the and he must therefore be presumed to have taken property, or no personal discomfort sustained by the risks arising from such condition, and for that the occupants, a ground for private action. Lan- reason cannot recover. Doubtless the general rule sing v. Smith, 8 Cow. 146, 167; Ricket v. Metro. Ry. is that the employee the right of action when Co., 5 B. & S. 149. It may be quite difficult to lay he voluntarily and unnecessarily puts himself in a down any general rule. But I think it is safe to place of danger. Whart Neg., $ 215. So too it say, as is said by Wood, it is not enough that it has been held that if a servant accepts service with diminishes the value of surrounding property. It knowledge of the character and position of strucis not enough that it renders other property less tures from which employees might be liable to re salable, or that it prevents one from letting his ceive injuries, he cannot call upon the master to premises for as large a rent as before, or to as re- make alterations, or in case of injury hold him liasponsible or respectable tenants. Wood Nuis. 4; | ble. Gibson v. Erie R. Co., 63 N. Y. 449; Owen v. Big. Lead. Cas. on Torts, 467, et seq. In this case N. Y. C. R. Co., 1 Lans. 108. But those rules apthere are alleged no offensive sights or sounds from ply only to the natural and ordinary risks incident defendant's house, but the injury is caused because to the work in which the servant engages, and the the existence of the nuisance gives the neighbor- perils which in legal contemplation are presumed hood a bad name. I do not think this is sufficient to be adjusted in the stipulated compensation. The injury to plaintiff to enable him to maintain this fact that the intestate knew that there was no stairaction. But there are reasons of public policy and case or ladder leading to the scuttle was not, under propriety why in my judgment this action should the circumstances and as matter of law, conclusive not be maintained by the plaintiff. The house kept of want of due care on his part. As was said by by defendant is a nuisance, not because it is a Mr. Justice Byles, in Clarke v. Holmes, 7 Hurlst. &

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Nor. 937, 'a servant knowing the facts may be ut- less the letters were of literary value, says that terly ignorant of the risks.' It was held in Coombs these matters are “cognizable in a civil or criminal v. New Bedford Cordage Company, 102 Mass. 572, action at law.' Story Eq. Jur., $ 948a. In Brandthat the fact that very near where a workman is reth v. Lane, 8 Paige, 23, Chancellor Walworth revoluntarily employed in a manufactory, machinery fused to restrain the publication of a libellous work, not connected with his work is in motion, the dan- but left the plaintiff to his action at law. In Wool gerous nature of which is visible and constant, is sey v. Judd, 4 Duer, 379, it is held that a court of not conclusive that he has taken on himself the risk equity cannot prevent the publication of private of being injured by it, in modification of the im- letters merely on the ground that such publication plied contract of his employer to provide for him a is injurious to the interests of society. It must reasonably safe place in which to do his work; and stand on the ground that the writer has an excluif through inattention to the danger he meets with sive property remaining in him, and the right to an such an injury while doing his work, and sues his injunction does not depend upon the question employer therefor, the questions whether he met whether the letter possesses value as a literary comit with due care on his own part, and whether by position. But Chancellor Kent, 2 Com. 381, says: reason of the neglect of his employer to give him 'The publication of private letters ought to be resuitable notice of the danger, are for the jury.' strained when it would be a breach of confidence In this case the danger from which the injury to and trust, as letters of courtship, or when injurious the intestate resulted was not a natural and ordi- to the character or happiness of others.' In Hopkinson nary risk incident to the work in which he en- v. Lord Burghley, 2 L. R. 448, Lord Cairns says: “The gaged. His employment did not require him to be question in all these cases is, what was the purpose at all times on the fifth floor, but it took him into or object in the mind of the person sending the all parts of the building. Assuming that he was letter. The writer is supposed to intend that the in the fifth story when the fire broke out, the fact receiver can use the letter for any lawful purpose, that he was there at that time was, in a measure, and it has been held that publication is not such a accidental. Nor can it be presumed, as matter of lawful purpose.' It seems to me, that as the comlaw, that this lad, nineteen years old when he en- plaint avers, not only was an injury intended tered the employment of the defendants, took into to plaintiff by defendants, but that one was done consideration the risk of the fatal disaster that to the feelings, character and reputation of the afterward befell him, and that his compensation plaintiff by the wrongful and injurious publication was measured accordingly. We think that under of this letter; this injury is not one that is without the circumstances the question whether the intes- redress. Upon principle, and I think upon sufitate took the risk of the danger referred to was cient authority, to wit: Mr. Justice Story, Lord one of fact to be decided by the jury." We agree Cairns and Judge Cooley, the plaintiff ought to with the judge that “the question is not free from have the remedy for the wrong done him. Where doubt.” We do not see that the employer was there is a right there is a remedy.

As Lord Holt bound to provide any means of escape. This was has said: “It is a vain thing to imagine a right held in Jones v. Granite Mills, 126 Mass. 84; S. C., without a remedy, for want of right and want of 30 Am. Rep. 661, where the court said: “It is no remedy are reciprocal.' Ashley v. White, Ld. Raym. part of the contract of employment between master 938; 1 Smith Lead. Cas. 105. Here the plaintiffs and servant so to construct the building or place had been denied the right to vote for members of where the servants work that all can escape in case

Parliament. 'No such case' says Cooley, 'had of fire with safety, notwithstanding the panic and ever been adjudged, and there was no precedent confusion attending such a catastrophe. No case for the suit. But in the opinion of Lord Holt a has been cited where an employer has been held precedent was not important, the material question responsible for not providing such means of escape.” was, had they a right to vote? When the facts

were found in their favor the legal conclusion must In Waterhouse v. Spreckels, Hawaiian Supreme In the case before me the wrong has been done,

follow: 'Having a right, the remedy was of course.' Court, July, 1884, the action was for libel in publish the letter has been published; it cannot now be reing a private letter written by the plaintiff to a person strained by injunction. To sustain this demurrer other than the defendant, apologizing for a slander would be to hold that the defendants may continue and inclosing money to compromise a suit therefor,

to publish this letter from year to year, indefinitely, and authorzing the receiver to print and circulate in all parts of the world, wherever the defendants one hundred copies of the letter. Judd, C. J., cit.

may think it would damage the plaintiff. It wonld ing authorities, upholds the action, saying: “Un- be a reproach to justice to say that such conduct der these authorities the receiver of the letter in is remediless." See 2 ALB. LAW JOUR. 131. question would not be authorized to make publication of it to any extent greater than authorized by the writer. A fortiori third parties, as these de- COMMON WORDS AND PHRASES. fendants are, have no such authority. Even Judge Story, though finding that courts of equity would

TAMILY.- An old man and a young woman, pot not exercise the injunctive power of the court un- relatives, but living together like father and



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