Imágenes de páginas

covenant not to assign is not broken by an involun require that the premises be put and left in better tary alienation by operation of law, 44 or by deposit repair than they were at the date of the covenant.48 of the lease as security for money received, because A covenant to deliver up in good repair sometimes this is not a parting with the lessee's interest.45 includes a stipulation to surrender all improvements

$ 10. Same- Same- Cocenant to deliver in good re- made upon the premises by the lessee during the pair. -As a general thing a lease contains a cove- term; in such case every addition, alteration, annant on the part of the lessee to deliver up the nexation, or erection made by the lessee during the premises at the end of the term, in as good repair term, to render the premises more available, comand condition as they are in at the date of the lease, fortable, profitable, or useful will be included. 49 natural wear and tear and damage by the elements In covenants to repair there is generally an excepexcepted. Under such a covenant the lessee will tion made as to damages by the elements or acts not be bound to put up new buildings in the place of Providence;” but such exceptions extend only of those which have been destroyed by fire, and the to damages to which human agency does not in any like, unless there is a special covenant to repair and way contribute.50 rebuild. Thus it is said by the Supreme Court of $ 11. Same Same - Covenant against waste. Mississippi in the case of Levy v. Dyess, 46 that a There is an implied covenant in every lease that the covenant to “re-deliver or restore the property in lessee shall use the premises demised in a husbandthe same condition or plight," or other words of like manner and keep the buildings and other struclike import, does not bind the tenant to rebuild in tures in repair, and his failure to do so renders him case of casual consumption by fire; that such cove

liable to an action for waste;51 but there is no imnant amounts to an agreement simply to take ordi- plied covenant on the part of the lessee to make pary reasonable care of the property, according to other repairs upon the demised premises. If he its nature, and to surrender possession at the ex

undertakes to make repairs, however, by implied piration of the term.Such a covenant does not covenant he is bound to do so in a workmanlike

manner.52 Where the lessee has entered into an in any manner not inconsistent with the terms of unqualified covenant to repair, he will be required the lease. Crommelin v. Thiess, 31 Ala. 412; S.C., to do so whatever may have caused the damage ;53 70 Am. Dec. 499. Compare McBurney v. McIntyre, but where there is no such covenant and the tenant 38 Ga. 261,

uses the premises devised in a good husband-like 44 Smith v. Putnam, 20 Mass. 221; Jackson, ex d manner, he will not be liable to repair damages Schuyler, v. Corliss, 7 Johns. 531; Doe, d. Mitchin- done either by the elements or by strangers without son, v. Carter, 8 Durnf. & E. 57; S. C., 4 Rev. Rep. his fault.54 But the lessor is entitled to an injunc586; Croft v. Lumley, 6 H. L. Cas. 672; S. C., 27 L. J. Q. B. 321.

48 West v. Hart, 7 J. J. Marsh. 258. It is said in 45 Doe, ex d. Pitt, v. Hogg, 4 Dow. & Ry. 226; the case of Thorndike v. Burrage (111 Mass. 531), S. C., 16 Eng. C. L. 196.

that the leaving of a cart-load of ashes, brickbats Levy v.

Dyess, 51 Miss. 501; 8. C., 3 Cent. L. J. and rubbish by a tenant on quitting the demised 221.

premises is not a breach of his agreement to peaceTo repair and deliver up” has been said to ably yield up the premises in good, tenantable rebind the lessee to rebuild in case of loss by fire dur- pair. ing the term. (Nave v. Berry, 22 Ala. 382.) “To

49 French v. Mayor, 16 How. Pr. 220. deliver up” simply imposes an obligation against

50 Polack v. Pioche, 35 Cal. 416; S. C., 95 Am. holding over. (Nave v. Berry, 22 Ala. 382.) “ To Dec. 115. surrender in good condition” renders the tenant 61 Nave v. Berry, 22 Ala. 382; Thorndike v. Burliable for waste, through resulting from accident, rage, 111 Mass. 531, 532. occurring without his fault. (Parrott v. Barney, 2 52 Estep v. Estep, 22 Ind. 114; Gill v. Middleton, Abb. 197.) “To keep the premises in a good state 105 Mass. 477, 478; S. C., 7 Am. Rep. 548; Leavitt of repair” obligates the lessee to restore buildings v. Fletcher, 92 Mass. 121; Elliott v. Aiken, 45 N. H. destroyed by fire. (David v. Ryan, 47 Iowa, 642.) | 30, 36; Doupe v. Genin, 45 N. Y. 119; S. C., 6 Am. “To repair

obligates the lessee to rebuild in case of the destruction by fire or other casualty. Rep. 47; Post v. Vetter, 2 E. D. Smith, 148 ; Sheets

v. Selden, 74 U. S. 423; bk. 19 (L. ed.), 166; Gott (Levy v. Dyess, 51 Miss. 501; S. C., 3 Cent. L. J. 221.) “To uphold and repair" imposes loss by fire

v. Gaudy, 22 Eng. L. & Eq. 173. or other casualty upon the tenant. (Levy v. Dyess,

53 Gibson v. Eller, 13 Ind. 124, 128; Leavitt v. 51 Miss. 501; S. C., 3 Cent. L. J. 221.)

To keep

Fletcher, 92 Mass. 121; Phillips v. Stevens, 16 id. up all repairs” has reference only to doing ordinary 228; Abby v. Billups, 35 Miss. 618; Walton v. repairs, and does not bind the lessee to insure Waterhouse, 2 Saund. 422. against natural wear and decay. (Polack v. Pioche, 5+ Gibson v. Eller, 13 Ind. 124, 128; Leavitt v. 35 Cal. 416; S. C., 95 Am. Dec. 115.

Fletcher, 92 Mass. 121; Wells v. Castles, 69 id. 323;


term. 56

tion to restrain the lessee from committing any kind made, 6 particularly where the assigoment is made by of waste. 55

an instrument under seal ;69 but before such assignee § 12. Same-On part of assignee and sub-lessee. — will be liable to the lessor for the rent reserved he Unless restrained by the terms of the lease a lessee must, by virtue of the assignment, have either actual may sub-lease the whole or any portion of the prem- possession or an immediate right to the possession of ises, or assign the whole or any portion of the the premises.63 The purchaser at an execution sale

In the case of a sub-lease there is no privity of a lessee's interest in a lease is liable for the rent of estate between the the lessor and the sub-lessee, reserved to the lessor the same as one taking an asconsequently there is no liability on the part of the signment of the term from the lessee, and this sub-lessee to pay to the lessor the rent reserved in whether he had possession or not.54 Such assignee the lease; his only liability is to the lessee, who in or purchaser of the term of a lease may discharge turn is responsible to the lessor. 57 But where there himself from all liability thereunder by assigning to is a right on the part of the lessor to re-enter on the a stranger, even though such stranger be a beggar, part of the lessor for non-payment of rent, a sub- a married woman, a prisoner, or a person leaving lessee may pay his rent to the original lessor, in the State, where the assignment is executed before order to protect his possession.58 But where there his actual departure; and this is true even though is an assignment of a portion or the whole of a term, made for the express purpose of avoiding the rea certain privity of estate subsists between the sponsibility." original lessor and the assignee, and the latter is The fact that a sub-lessee is not liable to the lessor liable on and for the covenants of the lease, which for breach of covenants and rent, and that an asrun with the land pro tanto.58 This liability of the signee is, renders the distinction between a subassignee of the lessee to pay to the lessor the rent leasing and an assignment an important one. The reserved during the time the term remains vested essential distinction between an assignment and a in him, does not depend upon actual entry and pos- sub-leasing is simply this: If a lessee, by any insession, he being held liable before entry strument whatever, whether reserving conditions

or not, parts with his entire interest he has made a Elliott v. Aiken, 45 N. H. 30, 36; Warner v. complete assignment; if he has transferred his enHitchins, 5 Barb. 666; Post v. Vetter, 2 E. D. tire interest in a part of the premises he has made Smith, 148.

56 Steward v. Winters, 4 Sandf. 587. See Maddox 52 Mo. 319, 322; Smith v. Brinker, 17 id. 148; S. v. White, 4 Md. 79; S. C., 59 Am. Dec. 67, 70; C., 57 Am. Dec. 265; Damainville v. Mann, 32 N. Douglass v. Wiggins, 1 John. Ch. 435; Barrett v. Y. 197; S. C., 88 Am. Dec. 324; Van Schaick v. Blagrave, 5 Ves. 555.

Third Avenue R. Co., 8 Abb. Pr. 381; S. C., 30 66 See Den v. Post, 25 N. J. L. 285; Roberts v. Barb. 189; Tyler v. Heidorn, 46 Barb. 439, 452; Geis, 2 Daly, 535; Jackson ex d. Weldon v. Har-Van Rensselaer v. Smith, 27 id. 154; Childs v. Clark, rison, 17 Johns. 66, 70; Pike v. Eyre, 9 Barn. & C. 3 Barb. Ch. 52; S. C., 49 Am. Dec. 164; Jackson 909; S. C., 17 Eng. C. L. 401; King v. Aldborough v. Harsen, 7 Cow. 323; S. C., 17 Am. Dec. 517; 1 East, 597.

Jackson, ex d. Van Schaick, v. Davis, 5 Cow. 123; 57 See Dartmouth College v. Clough, '8 N. H. 22; S. C., 15 Am. Dec. 451; Journeay v. Brackley, 1 McFarlan v. Watson, 3 N. Y. 286; Jennings v. Hilt. 477; Bagley v. Freeman, id. 196; Wright v. Alexander, 1 Hilt. 154; Harvey v. McGraw, 44 Tex. Kelly, 4 Lans. 57, 60; Jackson, ex d. Williams, 412; Amsby v. Woodward, 9 Dowl. & R. 536. v. Miller, 6 Wend. 228; S. C., 21 Am. Dec. an assignment pro tanto. If he retains a reservation protection, but until completed further details can in himself, however small it may be, he has made a not be given. On December 8, Dr. Sims Woodsub-lease.66

58 He may do this even though there be no de- 316. mand, nor threat of legal proceedings. Peck v. 61 Babcock v. Scoville, 56 Ill. 461. See DamainIngersoll, 7 N. Y. 528.

ville v. Mann, 32 N. Y. 197; S. C., 88 Am. Dec. 69 Woodhull v. Rosenthal, 61 N. Y. 382, 391; 324. Davis v. Morris, 36 id. 569; Doe v. Bateman, 2 Barn, 62 See Sanders v. Partridge, 108 Mass. 556. & Ald. 168; Doe, d. Wyatt, v. Byron, 1 Man. Gr. 63 See Hannen v. Ewalt, 18 Penn. St. 9; Wicker& S. 623, 626; S. C., 50 Eng. C. L. 623, 626. sham v. Irwin, 14 id. 108; Thomas v. Connell, 5

60 There is some disagreement among the authori- id. 13. ties upon this point, but the better rule is thought 64 Smith v. Brinker, 17 Mo. 148; S. C., 57 Am. to be the one stated in the text. See Johnson v. Dec. 265. Sherman, 15 Cal. 287; S. C., 76 Am. Dec. 481; Bab- 65 Johnson v. Sherman, 15 Cal. 287; S. C., 76 cock v. Scoville, 56 Ill. 461; Simonds v. Turner, Am. Dec. 481. See Van Schaick v. Third Avenue 120 Mass. 329; Sanders v. Partridge, 108 id. 556; R. Co., 8 Abb. Pr. 381; S. C., 30 Barb. 189; Childs Wall v. Hinds, 70 id. 256; S. C., 64 Am. Dec. 64; v. Clark, 3 Barb. Ch. 52; S. C., 49 Am. Dec. Felch v. Taylor, 30 id. 133, 139; Willi v. Dryden, | 164.

head gave an interesting lecture at the College of


Physicians on the subject of the anti-toxic serum

treatment. The audience was informed how the ANTI-TOXIC SERUM A SUBJECT-MATTER mal usually used; but the manner in which the ulti

toxin was prepared, and that the horse was the aniFOR A PATENT.

mate product was obtained was left to imagination. The new treatment of diphtheria has been the Perhaps Dr. Sims Woodhead took it for granted

that what ought to be used is the blood serum, such occasion of such interest that it may be useful

as is served out by Dr. Roux. In Germany there to deal with the matter from a legal point of view.

are two firms which supply the article to the hosThere is good ground for saying that the process pitals -- namely, Farbwerke vormals Meister & for obtaining this substance in its improved form is Brüning and also Chemische Fabrik nus Actien vorthe subject of protection under our patent law. The protection applied for relates to methods for by physicians, and the invention lies in the hands

mals E. Schering. So long as the discovery is made the production of the anti-toxic serum the isola

of eminent men of medical science, there would, of tion of the essential elements, its purification, and

course, be little probability of their discoveries beprobably concentration. The process of obtaining the anti-toxic serum seems to be: (1) Obtaining from the possible benefits to be derived from the

ing patented in England so as to exclude the public the micro-organism known as the diphtheria bacillus;

product. It will be found, however, that patents (2) obtaining the toxin of diphtheria; (3) injection

are being applied for by manufacturers, and sooner of the latter into, say, a horse; (4) after about three months a certain amount of blood is taken

or later the question of the validity of the patent

will come before the courts. In some European from the horse; (5) the serum is separated; (6) and

countries medicines and the like are not allowed to further treated. With reference to step No. 1 the latest papers from Germany rather point to some

be patented. Take, by way of example, France, doubt as to the particular bacillus which gives rise

where pharmaceutical compounds and medicines to diphtheria. Steps Nos. 2, 3 and 4 are explained of any kind cannot be patented. Rules of the same by Dr. Roose in the Fortnightly of December in the kind prevail in Sweden, Switzerland and other following words: “The method of preparing anti- countries, while in Germany and Austria neither toxin is as follows: The animals which are to fur

medicines nor foods can be patented. In the case nish the anti-toxic serum are rendered immune by of Germany and Austria they seem to allow frac

tional the subcutaneous injection of the toxin of diphtheria.

processes for obtaining either medicines or This toxin is formed when the virulent bacillus is

food stuffs. In Germany a patent may be sustained grown in broth; after three or four weeks the cul

where the subject matter is very fine by proving a ture is sufficiently rich in toxin to be used. The

new technical effect," and possibly this principle animals employed are horses in good health, pre

will be applied when the inventors are applying for viously shown to be free from glanders. The cul

a German patent for their present discoveries. In ture, filtered through a porcelain filter, yields a

England, however, there is no reservation in favour clear liquid with which the horse is inoculated by of the public of medicines and the like; in fact, injection under the skin. Gradually by repeated many substances used by the medical profession injections, extending over two or three months, the form the subject-matter of a valid patent. For exhorse is brought into a condition in which its serum ample, the preparation of salicylic acid from the possesses very high anti-toxic properties ” (p. 881). carbolate of soda, and, coming to more recent times, Steps Nos. 5 and 6 form the subject of provisional anti-pyrine, salol and many other preparations, not

only form the subject of patents, but the patentee's 66 Woodhull v. Rosenthal, 61 N. Y. 382, 391; Bed rights are respected. None of those patents have ford v. Terhune, 30 id. 453, 454, 457; S. C., 86 been discussed on the question of subject-matter; Am. Dec. 394. See Collins v. Hasbrouck, 56 N. Y. and perhaps the nearest case is the preparation of 157, 163; S. C., 15 Am. Rep. 407; Constantine v. lanolin, decided during the present year to be the Wake, 1 Sweeney, 239, 251; oyd v. Cozens, 2 subject of valid letters patent. The Statute of Ashm. 131, 138; Doe v. Bateman, 2 Barn. & Ald. Monopolies does not help us in the consideration of 168; Pluck v. Digges, 5 Bligh. (N. S.) 31, 65; this question. The words “Any manner of new Palmer v. Edwards, 1 Doug. 187; Langford v.

manufacture” have been held to include electrical Selmes, 3 Kay & J. 226, 229; Hicks v. Dowling, 1 and chemical inventions, whereas at the date of that Ld. Raym. 99; Parmenter v. Webber, 8 Taunt. 593; statute there was practically no such thing as an S. C., 4 Eng. C. L. 298.

electrical invention, and chemistry was practically

action, but is principally due to bacteriological TH Ehief justice of Ireland from 1886 till 1876, in

unknown in its industrial application. The present AN IRISH LORD CHIEF JUSTICE ON AN invention differs from all these, as the product is

IRISH CHIEF BARON. not so much the result of mechanical or chemical


. action. Where, however, a new product is obtained it is certain that a new process has been invented. an article written in 1830, and entitled “The Irish The serum is a complex body, and its composition Exchequer as it was in 1829,” gives the following is by no means simple. The extent of the new description of the Irish Lord Chief Baron O'Grady treatment is still under discussion, but there is no of that time, who was afterward created Viscount doubt that there are contained in the serum some act

Gauillamore. A person, says Mr. Whiteside, but ive principles which are useful for the treatment of indifferently skilled in the art of physiognomy diphtheria. It is, at the same time, certain that might from his countenance form a tolerably accuthe serum also contains matter which is detrimental rate judgment as to the temper and character of and liable to cause trouble to the patient. Any Chief Baron O'Grady. Cynicism, it may be fairly process, therefore, which enables the good part to concluded, forms the most prominent feature of bis be retained and the injurious part to be rejected character. He seems to have laid it down as a rule, constitutes subject-matter for letters patent. An- from which it would be criminal in the extreme to other important point of the invention •lies in the deviate, never to suffer the opportunity of saying a concentration reducing the serum to one-tenth of severe thing to escape, no matter how galling it its bulk. Assuming that the improved product may be to the feelings of the person against whom possessed but a small part of the qualities attributed it is aimed. This cruel propensity renders him no to it, there can be no doubt that letters patent great favorite with the junior bar, toward whom would be sustained. Supposing that valid letters | bis manner is not unfrequently discouraging and patent are eventually granted, there may be some repulsive. us, when a young barrister had recurious cases of infringment. The patent grants sumed his seat, after having zealously labored for the sole right to make, use, exercise and vend.” two hours to convince the court, Mr. Whiteside recThe person, therefore, who has been cured by in-ords that he heard the chief baron observe, in his fringing material is liable for the consequences of customary drawling and uncourteous style, “Well, infringement. This question of infringement may sir, all that may be very fine, but I confess I cannot bring into play a section of the Patent Act, 1883, understand it.” In this point of view he was no hitherto neglected. Section 22 provides for a com- respecter of persons, as the following anecdotes will pulsory license in the event of the patentee refusing sufficiently demonstrate. Mr. Crampton, an emito grant licenses on reasonable terms, and “if the nent King's counsel, who was afterward a judge, reasonable demands of the public cannot be sup- | having in a law argument cited Palgrave's case with plied.” This section of the act bas been very little confidence, and relied upon it with great emphasis, used, but the section has by no means been a dead the chief baron observed with his usual politeness : letter, as there are instances where foreign manufac

“Mr. Crampton, you have taken that case from turers have taken measures to create works in Eng

some abridgment. Palgrave was neither the plainland for the purpose of controlling the manufacture tiff nor the defendant, but the lawyer who conin their own hands, and of obviating the necessity ducted the cause, and who was remarkable for of granting licenses ụnder the section. - Law nothing but his ignorance, hence it was called PalJournal.

grave's case; and I dare say that, if ever this case should be cited hereafter as a precedent, it will be

known by the appellation of Crampton's case." A CARRIERS OF PASSENGERS

Where plaintiff, a traveling salesman, received us compen- deserves to be commemorated. Sir William Stamer,

scene which occurred with a different sort of person sation a certain salary, his railroad expenses, and a certain percentage of the amount of his sales, such corporation of Dublin, a magistrate and terror of all

a portly, consequential alderman of the venerated percentage is not “profits” in the sense of that evil-doers, when sitting as a foreman of a jury, inword as used in the decisions discussing the right to recover profits as such in actions for breach of terrupted the chief baron at a critical moment by contract; and, in an action for damages sustained

vehemently protesting he could no longer endure from having received personal injuries, plaintiff may

the intensity of the cold, and begging permission recover such percentage, and, in order to lay a foun

to wear his hat. His lordship, casting an affectedly dation for such recovery, may show the extent and sympathizing glance on the half-frozen baronet, amount of his ordinary business. (Rio Grande dryly replied, “Sir William, it is not usual for Western Ry. Co. v. Rubenstein (Colo.), 38 Pac. gentlemen to wear their hats in courts of justice, Rep. 76.)

but if a wig would answer I am sure the members



of the bar will kindly accommodate you with a Abstracts of Recent Decisions. good fit.” The alderman sat down confounded and abashed.

CONTRACT BY WIFE- SEPARATE ESTATE.- Where There is, says Mr. Whiteside, a class of shabby a married man makes application for life insurance, lawyers in Dublin whose practice is exclusively con

and his wife, in the absence of the husband, agrees fined to the defense of criminals at Green street,

to take the policy on condition that it be made paythe Irish Old Bailey. These gentlemen are some

able to her, and gives her note in payment of the times clamorous and contumacious; the chief baron, first premium, ber separate estate is charged with however, had the happy knack of bringing them to

its payment. (Mitchell v. Richmond (Pa.), 30 Atl. a proper sense of their situation. One of these bar- | Rep. 486.) risters having, on the trial of a pick pocket, been

CORPORATION employed as counsel for the prosecution for lack of Where a receiver has been appointed for an inany other, assumed on this occasion an imperious / solvent corporation, and has taken possession of its air, and took special care to reiterate loudly and assets, and exercises its franchises, he is a necessary frequently for the information of his lordship that party to a petition by the State for an injunction to he was counsel for the Crown. The chief baron restrain the further exercise of any franchise or bore this patiently for a time, till at last, provoked transaction of any business of the company by him by his pertinacity, when the pompous little gentle because of non-payment of the State franchise tax. man, elated with the unwonted honor, again ex- (In re George Mather's Sons Co. [N. J.], 30 Atl. claimed he was counsel for the Crown, his lordship Rep. 321.) kindly remarked, “ Yes, sir, and I believe sometimes CRIMINAL LAW-BAIL-RECOGNIZANCE. - It is no for the half-crown, too.” When presiding in the defense to a recognizance that it was taken and town of Mullingar, in the criminal court, two cul- acknowledged before the clerk of the district court, prits were put on their trial for an atrocious burg- where this was done by order of the district judge, lary; a flaw being discovered in the indictment, an made at the request of the accused, and to secure acquittal was directed, when counsel for the defenses his speedy discharge. (Hunt v. United States, U. proud of his display of forensic skill, confidently S. C. C. of App., 63 Fed. Rep. 568.) demanded of his lord ship to discharge his injured

DECEIT—DAMAGES.- Where defendant sold plainclients from the dock. “Oh, thank you,” said the

tiff a stallion by means of false representations as to sagacious chief baron, “you will allow me, if you his breeding abilities, plaintiff, on recovering a verplease, to get half an hour's start of your clients dict in an action for damages, can recover the cost out of the town."

of keeping the stallion a reasonable time for the Mr. Whiteside gives some curious instances of purpose of testing him. (Peak v. Frost (Mass. ], 38 the brevity of Chief Baron O'Grady's charges to Pac. Rep. 518.) juries. On the trial of a criminal for stealing stock

DEED — CONSTRUCTION.– Where land is conveyed ings several witnesses deposed to his good char

to a trustee for the sole and separate use of a maracter, after which his lordship charged the jury in

ried woman, giving her full power to sell and conthis concise, or rather comic, strain: “Gentlemen of the jury, here is a most respectable young man,

vey the property, and it is provided that, in case

she dies without disposing of the property by deed with an excellent character, who has stolen twelve

or will, the trust shall cease and determine, and the pair of stockings, and you will find accordingly.” Upon the trial of an action for debt to which the property shall revert to and vest in her husband,

held that, on the death of the wife, the property defendant had pleaded as a set-off a promissory being undisposed of, an equitable fee-simple title to note of somewhat long standing and an old broken- the land vested in the husband. (Yore v. Yore (U. down gig which he had furnished the plaintiff, the S. C. C., Mo.), 63 Fed. Rep. 645.) following charge was spoken with infinite gravity by the learned chief baron: “Gentlemen of the EASEMENT-DRAINAGE. --A deed to part of a tract jury, this is an action for debt to which the defend- of land, reserving to the grantor, his heirs and asant has pleaded as a set-off two things—a promissory signs, the right to use a certain drain across the note, which has a long time to run, and a gig, premises, crentes an easement of drainage over the which bas but a short time to run. The case seems

land conveyed. (Jones v. Adams (Mass.), 38 N. E. clear. You may find for the plaintiff.”— Law Times. Rep. 437.)

EQUITY-JURISDICTION.— Equity will not take

jurisdiction of an action to recover a simple debt Rent accruing after an assignment is not a debt on the ground that a pretended payment thereof entitled to share in the assets of the assigned estate. was fraudulent. (Cary & Moen Co. v. Moen (Mass.), (In re Wiman's Estate (Penn.), 30 Atl. Rep. 389.) 38 N. E. Rep. 505.)

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