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But it has never been held that an unstamped instru- Mr. Emerton, differing from most English lawyers, ment is per se valid. On the contrary, the decisions adheres to the most liberal rules of construction, but are all the other way, and on two grounds, first, the he disputes the idea that Euglish jurisprudence, in stamp laws were intended as revenue laws, and to ren- this respect and others, owes little to the Romans, and der the contract invalid or inadmissible in evidence, it he cites a few well-known iustances to the contrary: must appear by affirmative proof that the omission to Quod tamen quam longe a vero abhorreat, ex iis judistamp it was not the fraudulent intent to evade the cari potest quæ in foro nostro quotidie versantur: ei. law; and secondly, upon application to the proper of- demus enim (ut omittam alia) legatorum fere jus omne, ficer the stamp may be affixed upon the payment of donationum tum mortis causa, tum propter nuptias, necthe penalty, or without payment if the omission to non magna ex parte id quod de Societatibus hodie tenetur, stamp it was by reason of accident, mistake or inad- ex Romanorum scriptis apertissime venisse.” (p. 17.) vertence, etc. 14 United States Statutes at Large, ch. The author next traces the history of interpretation 184, $ 158; Campbell v. Wilcox, 10 Wail. 420; Black v. in England, and accounts for the divergence of the Eng. Woodrow and Richardson, 39 Md. 195. Sup. Ct. Mary- lish and the Roman rules. This part of his treatise is land. October, 1883. Laird v. State. Opinion by likely to prove both useful and lasting, as any rational Robinson, J. (61 Md. 310.)

account of English interpretation is preferable to the chaos of results stated by the practical treatise writers. We know how the prevailing philosophy affected Ro man law, and it is most interesting to perceive critical

attention directed to the influence of the realist school NEW BOOKS AND NEW EDITIONS.

of logic or the Tudor period of English law.

Mr. Emerton's illustrations from the Pandects are a DE CONJECTURIS ULTIMARUM VOLUNTATUM.

leading feature of his essay. The Romans never bare Dissertatio pro gradu doctoris in jure civili. A Wolseley P.

been surpassed in the application of principles to com. Emerton. Oxonii, MDCCCLXXXIV.

plex states of fact. In no other respect did they at

tain such perfection, or are they so worthy of our earThis treatise, bearing the same title as Mantica's

nest imitation. This truth, now universally conceded, “De conjecturis ultimarum voluntatum," has been

is at the root of the classical revival in England. Mr. sent to us by the publisher. It was composed in the

Emerton's treatise, as well as Dr. Walker's recently Latin tongue, in deference to a request of the proper

published selections from the Digest, already familiar University authority of Oxford, as a test of the au

to us, may assist in awakening a like interest in this thor's fitness for the degree of D. C. L. To our read

country, where Roman law is too much neglected. ers the treatise promises a two-fold interest: it bears

Certainly when we reflect that hundreds of years ago upon an obscure branch of testamentary law, and it

lawyers of great practical skill and profound scholarevinces the scholarship which is now expected of can

ship solved many of the juridical problems we are now didates for the bigher ranks of English university

engaged in, it seems curious that we should deliberhonors.

ately overlook their solutions. This induces us to say The interpretation and construction of testamentary with Mr. Emerton: “Sed meos amicos, dispositions are arrived at through certain rigid can

in quibus est studium, in Latium mitto, id est ad ons, peculiar to a particular jurisprudence. This

Romanos ire jubeo, ut ea a fontibus potius hauriant writer's endeavor has been to collate and compare the

quam rivulos consectentur." doctrines of the Roman and English systems of inter- Of the style of Mr. Emerton's paper it would be unpretation, and particularly those portions which re

becoming in us to speak; he is so heavily weighted by late to conjectures or presumptions of law. The main

the vehicle of his expression. His words are always dispute of the schools relates to the basis of interpre- happily chosen, and if his construction is not that with tation: Sball this be the literal meaning of the words, or the intention of the testator?li qui scriptum de

which most of us are the more familiar, it is doubtless fendunt his locis plerumque omnibus, majore autem

because Americans usually end their familiarity with parte semper usi sunt. Primum loco communi nihil eos the Latin tongue where the post-classical period be. qui judicent nisi id quod scriptum sit spectare oportere ; ging. The moderns nearly always avoid the ablative et hoc eo magis si legitimum scriptum proferetur, id est absolute construction, preferring other modifiers of aut testamentum ipsum aut ex testamento aliquid. In

the predicate, and they rarely use the oratio obliqua, a hoc ita commorari solent quasi nihil præterea descendum

legitimate mode of transferring other people's sensit, et quasi contradici nihil possit. Postea facti aut intentionis cum ipso scripto; quid

tences without quotation marks. One fault. peculiar scriptum sit, quid factum, quid juratus judex; quem lo.

to most modern writers of Latin, is observable in Mr. cum multis modis variare gaudent. Şi aliud sensisse Emerton, the conversion of well-known English, or testator aliud scripsisse dicutur. "Non oportere de ejus other European names, into university Latin. Why voluntate nos argumentari, qui ne id facere possemus not William Blackstone instead of “Gulielmum de indicium nobis reliquerit sude voluntatus; multa incom

Nigro Lapide," and Lord Mansfield instead of "De moda consequi, si instituatur ut a spripto recedatur nam

Agrohominis Comite," on the 18th page of this et eos qui aliquid scribant non existamaturos id quod scripserint ratum futurum; et eos qui judicent, certum,

treatise ? But this is a matter of taste, purely. We quod sequantur, nihil habituros si semel a scripto rece- do not pretend to a criticism of Mr. Emerton's Latindere consueverint.' (p. 11.)

ity. His learned treatise is worthy of both emulation Those who favor a liberal construction maintain, ou and praise. the other hand, that the testators themselves expected

Now that he has published this outline, it is evident their intention to triumph over their words. It may

that Mr. Emerton's preparation is adequate to a fuller be confessed, without detracting from the merits of

exposition of the subject, and we venture to hope that his general position, that Mr. Emerton's reasons for the more liberal course are not placed on the strongest

his next literary effort will be in such a direction, but foundations. They should have been stated with more in the vulgar tongue, so much more familiar to us all, fullness and precision to have been equal to his better and so much better adapted to a more accurate treatstyle of reasoning.

ment of the English phase of the subjeot.



we ex

The Albany Law Journal.




From a recent number of “Pump Court tract the following from a summary of and remarks upon an address by Sheriff Wilson, of the Aberdeen

Chamber of Commerce, on a code of criminal law : ALBANY, SEPTEMBER 27, 1884. “In spite of the venerable fiction, nobody actually

knows the law ; and notwithstanding our buoyant

readiness to worry along somehow, under the dim CURRENT TOPICS.

impression that the law is incomprehensible and

probably in antithesis to justice, it does UR readers will bear us witness, that we have passing strange that the foremost commercial nation

not said any thing in a long time about “con- of the world should not yet be provided with a tingent fees.” Judge Henry, of Missouri, in a re- simple, complete and authoritative statement of its cent address has alluded to the subject, it seems, commercial law, intelligible to every trader in the but the address has not come to our notice. The country.

The various objections to a ComCentral Law Journal remarks: “A noticeable feat- mercial Code, like so many more lions in the way, ure of Judge Henry's address to which we made re- require only to be faced with decision in order to cent allusion was his criticism of the practice of be overcome. Where is the good of sneering at taking cases for contingent fees. A great deal of foreign codes when the people that use them the criticism of judges is, the judge says, due to proudly point to greately facilitated business and this habit. The attorneys are by force of such stip- greatly diminished litigation ? It is hardly worth ulations substantially parties to the suit. More, he while to answer the argument, that under our preshas the double interest of the party and attorney, ent laws, English commerce has attained proportions and smarting under his defeat, only gets the satis- vastly greater than the commerce of any other faction for his labor derived from stalwart Anglo-nation ; for surely this greatness has been reached Saxon denunciation of the court, to whose rulings in the very teeth of the confusion of our laws, and he attributes his lose.' • It were far better,' says the not through the beneficent aid of that confusion. judge, for the bar and their clients and the courts, It is a wholly imaginary objection that codification if the attorneys would adopt and inflexibly adhere cramps the law and prevents the introduction of to the rule of charging a reasonable, fixed compen necessary amendments. If any one is inclined to sation for their services, and let the clients take all dispute that the laws of Great Britain are in a conthe chances of the litigation. If this were the in- dition eminently requiring codification, let him variable practice, many cases which now find their consider the endless voluminousness of statutes and way to appellate courts, would never be commenced decisions, with all their obscurities and contradicin the lower courts, or would end there. And these tions, the difficulty that even the professional jurist are the cases in which attorneys most frequently experiences in reaching a clear idea of the whole unreasonably complain of the decisions of the ap- law on any particular subject, and the frequent and pellate courts.' These observations of the learned tedious litigations in our courts over the first prinjudge will bear careful consideration. There can be ciples of commercial law. “If you take any ordinno doubt that the practice alluded to has many more

ary legal treatise say Benjamin on Sales — there unpleasant consequences than those mentioned by are single lines in it which must have cost hundreds the judge.

It encourages dishonest litigation, and of pounds to settle. According to foreign experioften is an incentive to unprofessional conduct. It ence, the great bulk of such litigation has been unmakes counsel desperate, oftentimes, and we all necessary. No doubt the cost of a code would be know the moral feelings of one in desperate straits. something, but it would be inconsiderable compared Still with all the disadvantages which may accrue to with the amount we spend on avoidable litigation, the public from the practice, there is one thing in and it would fall upon the nation at large, and not its favor which has never been disproved, i. e., that upon the individuals who are unfortunate enough it greatly assists the poor man in obtaining justice to be the victims of a legal ambiguity.' To such against wealthy, oppressive corporations, who would as argue that a Commercial Code for the United otherwise, by force of their bullying course, and Kingdom is impracticable owing to the radical difpossession of what the victims of their dereliction ferences between Scotch and English commercial of duty have not, oblige them to seek no redress, or law, Sheriff Wilson points out that this is a comcontent themselves with a small proportion of their plete misapprehension, and that the commercial law dues. Such a gain is so desirable that it may well of England and of Scotland are, in fact, substantibe considered whether it does not overbalance the ally the same; and he points also to the vastly disadvantages of the practice.” We have on former greater differences that existed in the various provoccasions suggested that the best and simplest inces now united under the different continental road out of the difficulty is to have laws enacted codes. That the mass of our law is too extensive giving a lien for reasonable counsel fees as well as for codification is a very unsafe objection; indeed, attorney fees. This would amply protect counsel, as Sheriff Wilson considers, the fact that our law and at the same time do away with the practice of is well developed in detail, is rather an encouragerobbing clients under the pretext of asserting their ment for us to go on with its codification than the rights against powerful corporations.

It supplies the strongest reason why we VOL. 30 – No. 13.






culties of a great project

** the bogtys of ignorance Inchitate conserve hoom.ngage in a Boxing" match is

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require codification.'
Such a wholly com-

petent and mature address as this (which we have
merely summarized) shows strikingly how the diffi-

N . Burnham, 56 Vermont, 445, it is held and laziness and insular prejudice are dissipated not a defense to an indictment for a breach of the at the touch of real knowledge and the advance of

peace, and that evidence is inadmissible to prove courageous resolution.”

that such matches are common and harmless. The court said: “We have to consider this case as presented by the exceptions. It is true, as contended

by the respondent's counsel, that sparring or boxA correspondent writes us: “One object I had in ing with gloves manufactured for that purpose, as writing was to say how interested I have been in conducted and engaged in ordinary athletic sports, the perusal of some “Odds and Ends” and “a

is not unlawful, nor a breach of the peace. It may Legal Romance,” in numbers of July 19, and Sep-be that such sports, properly conducted, are both tember 6, of your journal. I hope I may not be healthful and promotive of physical vigor and dedeemed hypercritical in remarking that your corre- velopment, and should be encouraged. But such spondent in the former seems to intimate that Sir pugilistic exercise may be abused and carried beJohn Kerslake is still living, “and may perhaps yond the limits of heathful and lawful exercise and be still seen at the Temple Church,” etc., whereas sport. It may be so conducted as to create a Sir John has been dead some two or three years. breach of the peace. It may even degenerate into Again, the writer of “ A Legal Romance,” etc., says a prize fight. Many of the circumstances detailed that Mr. Kennedy, who so gallantly won Mrs. in the exceptions, the agreement to engage in the Swinfen's case by indomitable pluch, perseverance match, giving notice, having seconds, & referee, and industry pitted against an array of legal talent rules, a ring, etc., are not inconsistent with lawful on the other side, supported by judicial leanings sport, nor yet with a breach of the peace. Neither and the class sympathy of county influences, was is the fact that slight injuries were inflicted upon disbarred and died of a broken heart, etc. That the contestants determinative of the character of Mr. K. died broken hearted and ruined is quite the engagement. * * The only question retrue, but that he was disbarred is incorrect. In served was whether the consent of the combatants deference to the expressed judicial opinion that he would prevent their acts from being a breach of the had been guilty of a breach of professional etiquette peace. Clearly, such consent would not necessarily in entering into a contract with his client for a con- give character to their acts and prevent their betingent fee, the Benchers of his Inn of Court coming a breach of the peace. The conduct – thought it right to mark their disapproval of such quarreling, challenging, assaulting, tumultuous and an act by discommoning or discommuning him for offensive carriage, etc., which the statute declares six months; i. e. forbidding him to dine in the Hall to be a breach of the peace is capable of being or to use the library of the Inn during that period, consented to by all the parties guilty of it. Conpublicity of such censure being posted on the screens sent therefore was not at all determinative of of such respective buildings. In one word — send- whether the respondent and Bloxham were guilty ing him to Coventry. This is however something of a breach of the peace by their acts and conduct far short of being disbarred, and I can person- on the occasion complained of. The court were ally testify that some six or seven years after

correct in instructing the jury that their consent to the infliction of this somewhat impotent and craven engage in such acts and conduct was not determinsentence Mr. Kennedy was still practicing at the ative of the quality of the same in regard to guilt bar, as I was about that period associated with him or innocence. Their acts and conduct might have as junior counsel in a case on the Oxford Circuit, all the elements of a breach of the peace notwithwhere he was specially retained for the occasion. standing such consent. Neither was the respondMr. Kennedy was one of the best Greek scholars in ent entitled to have admitted the offered evidence England — first of his year, I believe, in the Classi- to show that such matches were common and harmcal Tripos at Cambridge, and besides carrying off less amusements, innocent and proper exercises, other prizes, he was elected a "ellow of Trinity practiced in the universities and colleges in this College of that University, and never to my knowl-country. Such evidence was not at all determinaedge did any thing to 'disgrace' himself, as hinted

tive of, nor helpful in determining, the character by your correspondent, though I am well aware of and quality of the contest between the respondent the alleged 'unsavory statements' referred to,

and Bloxham, as conducted by them on the occawhich even though fairly attributed to him, savor sion complained of. Nor was there error in not rather of Mr. Kennedy's bad taste and the ebulli- giving the huge boxing gloves to the jury to examtions of irritation than of criminality or breach of ine. Probably if it had allowed the jury to make confidence. At all events I desire to rescue the such examination it would not have been error. memory of a deceased friend from the imputation Whether it would or would not order such examinawhich a disbarral implies."

tion was largely in the discretion of the County

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Court. The gloves furnished no criterion by which 63 N. Y. 522) when the referred to to judge of the character of the contest, nor of the were discussed, and although the court manner in which it was conducted.”

to have changed its rule in that case on a

question of evidence as to the custom of having a The question of the necessity of a flagman at a flagman, nevertheless it declared that it had been railway and highway crossing is considered in decided that it was not the duty of a railroad comCoyle v. Long Island Railroad Co., 33 Hun, 38. It

pany to keep a flagman at a crossing, and it was is held that the omission to station a flagman may not chargeable with negligence for the omission of be considered as a circumstance bearing on the any such supposed duty. The principle involved question of negligence, yet it is not conclusive. in this proposition is discussed elaborately. The The court cite Beisiegel v. New York Cent. R. Co., court said in the course of the discussion: ‘In a 40 N. Y. 9; Grippen v. Same, id. 46; Weber v. Same, given case the evidence of the absence of a flag58 id. 458; McGrath v. Same, 59 id. 468; 63 id. man is received, and the judge charges the jury 522; Houghkirk v. Pres't, etc., Delaware and Hudson that if they find that it was the duty of the deCanal Co., 92 id. 219. The court said: “In Beisie- fendant, under the circumstances, to keep a flaggel v. New York Central Railroad Co., 40 N. Y. 9,

man at the crossing, the omission of that duty is in which the judge charged the jury substantially negligence, which may make the defendant liable. that it was a question for them to determine

Under such a charge that duty is made the central whether the crossing referred to in that case was in and controlling fact, and if the jury should find so populous a portion of the city that it was due to that the defendant had run its train with the greatthe public safety and common prudence that the est care in other respects, and that it was guilty of company should keep a flagman stationed at that

no other negligence, and yet should find that it had point, and if they determined that it was then an omitted that duty, they could find a verdict against omission to do so was negligence, the court de- the defendant.

Under such a charge as I clared that the charge was error, and a new trial have supposed, the jury is put in the place of the was granted. And in Grippen v. New York Central Legislature, and its decision as to the duty has the Railroad Company (same vol., p. 46), the court said: force of statute law, and hence such a charge has * The question to be submitted to the jury is not properly been condemned by the courts of this therefore whether in their judgment due care re- State.' 'In another case,' the court continued, quired the railroad company to keep a flagman at the evidence is received, and the jury is charged the station to give warning; not whether that was a that the defendant owed no duty to any one to suitable mode of giving notice of the approach of keep a flagman at the crossing, but that its sole a train; not what signal would be sufficient to give duty to travellers upon the highway was to run and such notice. But the question is whether, under manage its trains with proper care, so as not to inthe actual circumstances of the case, the company jure them in the exercise of their lawful rights, and exercised reasonable care and prudence in what that upon the question whether such care was exerthey did, and whether its neglect caused the injury cised, they must consider all the circumstances excomplained of. In Weber v. New York Central Rail- isting at the time and place of the accident, and road v. Company, 58 N. Y. 458, the court said:

among them the fact of the absence of a flagman “The judge had before distinctly instructed the at the crossing. In such a case a proper use is jury that there was no law making it the duty of made of the evidence, and the charge is liable to the defendant to have a flagman, and that it was no just criticism.' In the case of Houghkirk v. not negligence in it not to have one at this particu President, etc., Delaware and Hudson Canal Company, lar street crossing;' and further, “thus one of the- 92 N. Y. 219, the plaintiff requested the court to errors that led to a reversal of the judgment in leave it to the jury as a question of fact to say Beisiegel v. New York Central Railroad Company, whether, under the circumstances disclosed by the and Grippen v. The Same, was avoided. And in evidence, the defendant should have had a flagman McGrath v. New York Central and Hudson River

at the crossing. The court answered: 'I have done Railroad Company, 59 N. Y. 468, it was held that so.' The court then added: “I said I would not where a railroad company had been accustomed to charge, as matter of law, whether the company keep a flagman at a crossing, the fact of his absence was or was not bound to have a flagman there; it or withdrawal did not excuse a traveler from the was a question for the jury to say under the circharge of negligence in omitting the use of his cumstances;' and the defendant again excepted. senses. He had no right to interpret the absence The Court of Appeals said: “The charge in this as an assurance of safety. And it was declared

respect was substantially the same as that in Gripthat in an action to recover damages for injuries | pen v. New York Central, for which the judgment sustained by a traveler at a crossing, the receipt of was reversed. In both instances the jury were alevidence of such custom, and that the flagman was lowed to find that due care required the presence absent at the time of the accident, was error. of a flagman, and that the omission to station one

at the crossing was negligence on the part of the last cited (the McGrath case) | railroad company.' And the court further said: was again before the Court of Appeals (see | ‘The true rule and the proper distinctions were

- The



well stated in McGrath v. New York Central and actually eating his ear! Truly Rabelais was not Hudson River Railroad Company, 63 N. Y. 528. It without predecessors who writ their mocking tales was there said it would be error for a judge to in- in stone. struct a jury that it is the duty of a railroad com- But we pass through the barrier and enter the pany to keep a flagman at a crossing, or to submit main building. Our lady companions are ushered to a jury the question whether it ought to have to their separate seats at the side, and we bachekept a flagman there;' and the court said the rea- lors for the nonce must take our places in the midson was carefully pointed out; that a railroad com- dle pews, for the separation of the sexes still repany is not bound and owes no duty so to station a mains a custom of this church, handed down from flagman, and negligence cannot be predicated of the old monastic times. A chorister boy is busy the omission; that the fact may be proven as one of arranging music books. A distant strain of rehearthe circumstances under which the train was moved, sal reaches us from the outer buildings, and we and by which the degree of care requisite in its may therefore safely conclude that we have a quarhandling and running may be affected; so that the ter of an hour to spare before service commences. question never is whether there should have been a We notice the clean spring of the arches from the flagman, or one ought to have been stationed at darkly glistening, many columned pillars, the rich, the crossing, but whether, in the view of his pres- soft colors of the roof, the purple windows, the

or absence, the train was moved with pru- quiet, unobstrusive completeness of the whole dence or negligence. And the court said further : building, and we admit that the Honorable SocieThe jury must have gone to their deliberations ties of the Inner and Middle Temple have indeed with the final impression upon their minds that known how to build to God a church worthy of they were at liberty to find that the defendant their old and noble guild. We recall, too, the ought to have stationed a flagman at the crossing, many famous divines that have preached here, from and that omission constituted negligence upon the sad and serious Hooker, the stately periods of which a verdict could be founded. For this error whose “Ecclesiastical Polity” still delight the stuwe think there should be a new trial.' This case is dent of Elizabethan literature, down to the present the latest exposition of the law relative to the distinguished master, C. J. Vaughan, whose serstationing of flagmen in the management of rail- mons are a model of cultured power. roads." See Pittsburgh, Cincinnati and St. Louis Even this afternoon we notice in the congregaRy. Co. v. Yundt, 78 Ind. 373; S. C.,41 Am. Rep. 580; tion many a famous man. Yonder, pathetic in his Welsch v. Hannibal and St. Jo. R. Co., 72 Mo. 451; blindness, sits the beloved Sir John Karslake, and S. C., 37 Am. Rep. 440.

next to him is Sir Thomas Chambers, recorder of the city, whilst just behind them, also amongst the

Benchers of the Middle Temple, we espy the ruddy THE TEMPLE CHURCH.

countenance of the Prince of Wales. Over against

them, on the Inner Temple side, sits old Lord FTER a few years' absence from London it is Chelmsford, erst chancellor, close to his successor

hardly safe to assume the present existence of on the woolsack Cairns, and further on, Selborne, any old landmark, but we hope the much decorated who in his turn has ousted Cairns, is cheek by jowl barber's shop in Fleet street, just within Temple with the last of the chief barons, Sir Fitzroy Kelly. Bar, has escaped the fate of its better known neigh- The Temple congregation is probably the most bor, the old Bar itself, and still remains with its intellectual and distinguished in London, and it is bold inscription informing the passer-by that here no ordinary ordeal a preacher bere has before him. once stood the palace of Henry VIII. A second Now let us see what music we are to have, and Elia would find matter for an essay in such an in- whilst we are examining our anthem and church stance of the irony of history, but the mantle of books we do not fail to note the winged pegasus Elia, alas! has not fallen upon any successor, and stamped thereon, the emblem of the Inner Temple. our purpose is not to moralize, but to turn once We are just deep in the learned examination of more, as in the happy days of yore, down the arch- cathedral music, which precedes the chorals, when way under the shop, and descending the flight of the melodious thunder of the organ awakes our atsteps to enter the ancient and solemn portal of the tention. Nor must we omit to notice this famons Temple church. What an airy architecture have instrument, peculiar in having six black keys to we here! How original and striking the effect of each octave, to wit, a B minor distinct from the D the old octagon chapel — of which the first stone sharp, built by Smith, the father of English organ was laid by an eastern patriarch in the early crusad- building, in tempore Charles II. The construction ing days – opening into the younger but still thereof was a subject of competition between the ancient oblong, forming now the principal build- aforesaid Smith and the then equally renowned ing. Around us lie the crusaders themselves, with Renatus Harris. Both rivals erected an organ in legs crossed, and their great guards by their sides, the church, and the cognoscenti of the day were at a while over our heads the quaint gargoyles show loss to decide which to select, till ultimately the the exuberant wit of monastic fancy. How some choice was left to Chief Justice Jeffreys of bloody old fellow must have chuckled to himself when he Assize infamy, who pitched upon the one which, knocked off this poor sinner's head, with the devil greatly augmented and improved, now delights


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