Imágenes de páginas

A married woman who prosecutes an action for di- place on Tuesday, August 28, at 11 A. M., and the sesvorce is placed in a peculiarly unfortunate position sions will continue till September 1. The members of after the court have adjudged that she is entitled to the conference will be received by the Burgomaster of the relief demanded, but before judgment absolute Antwerp and a reception committee of prominent has been entered. The London Law Times says: The Belgians, including MM. Th. Engls, Ed. Van Pezborgh, decision of the Court of Appeal in Norman v. Villars, Fred. Delvaux, G. Berdolt, and Th. Callaert. The on the 21st June, ought to have the effect of calling following subjects will be discussed at the conference: the attention of the legislature to a very serious de The obligation of treaties; the doctrine of continufect in the law. The plaintiff, Mrs. Norman, had been ous voyage as applied to the trade of neutrals; repetitioner in a suit for dissolution of marriage, and forms in international law, from the point of view of had obtained a decree nisi, which was afterward made | neutrals and in the interests of peace; collision at absoluto. After the decree nisi, but before it was sea; the extradition of criminals; intercourse between made absolute, the defendant wrongfully seized goods Christian and non-Christian peoples; bills of exwhich had been purchased by the plaintiff out of change; general average; foreign judgments; patent money which she had received partly under a decree law; copyright; interuational tribunals. The assofor alimony, partly from her friends, and partly under ciation now embraces members from more than her marriage settlement. The plaintiff sued for the twenty countries, including Great Britain, France, wrongful seizure, but was met by a plea that at the Germany, Austria, Russia, Turkey, Spain, Italy, Dentime of the trespass she was a married woman, and on mark, Belgium, Norway and Sweden and the United that plea the defendant was successful in the Court of States. Appeal, the court holding that notwithstanding the

The Superintendent of the Insurance Department decree nisi, the plaintiff was a married woman, and

in this State is disposed to enforce strictly the provissubject to all the disabilities of a married woman

ions of Laws 1877, chapter 241, entitled “ An act to until the decree was made absolute, and therefore she

prevent the making and publication of false or deceptcould not maintain an action for the wrong done to

ive statements in relation to the business of fire inher. No doubt this decision is fully warranted by the

surance." In a circular issued August 6, he says: present state of the law, and indeed it is difficult to

First. All signs in use at the date of this circular see why the court below decided otherwise, for unless

letter representing amounts not entirely available for there is some enactment which either expressly pro

the payment of fire losses must be removed. Second. vides that a married woman after a decree nisi for

All signs, cards, blotters, letter sheets, envelopes, polidissolution of marriage may sue as a feme sole, or has

cies, certificates of renewal, advertisements, publio the effect of changing her status, so as to make her a

announcements, etc., etc., purporting to set forth in feme sole from the date of the decree nisi, she remains

any manner the financial condition of a company and a married woman, and no such provision appears to

issued or circulated after this date, must contain at exist. But it would probably be beyond the power of

least three items, viz. : Assets available for fire losses, the most ingenious intellect to find a single reason

$— ; capital stock paid in, $— ; net surplus (on founded on justice, or even on policy, for the law as it

the basis of total assets, minus total liabilities includnow stands. After a decree nisi has been pronounced

ing capital), $- Provided that companies may the woman is deprived of all the advantages of mar

state in a single item, restricted to policies and certifiried life, and it is hard that she should still remain

cates of renewal, the amount of capital at present ausubject to its disabilities. It is not likely in a case of

thorized by their charters. The items given above to this kind that the husband will be willing to join in

correspond with the last verified statement filed with the action for the wife's protection, and even if, as

the department. Third. Signs issued and placed in was suggested by the Lord Chancellor in giving judg

use after date must be changed when the statements ment, the wife should obtain an order from a court of equity to allow her to use the husband's name, this is

filed hereafter show less or more liabilities, or both, a poor substitute for a direct remedy by action in her

than is exhibited by statements now on file." own name, and in certain cases might cause hardship | At the Social Science Congress, to be held at Aberto the husband. Unless she can get such an order as deen, Scotland, in September, the following special suggested, she is practically an outlaw. The present questions are appointed for discussion: International law is evidently the result of an oversight. Under the Law Section 1. Whether the jurisdiction of a nation. first divorce act (20 & 21 Vict., c. 85, 8. 31), the effect of civil and criminal, over the seas adjoining its terria decree was at once to dissolve the marriage, but tory, ought to be general or limited, and if limited, to when it was provided by 23 & 24 Vict., c. 144, s. 7, that what extent. 2. Whether a prior bankruptcy in one every decree for a divorce should be a decree nisi in country ought not to carry the right to movables all the first instance, to be afterward made absolute, over the world, as against a subsequently declared nothing was said as to the status or rights of the bankruptcy in another country. Municipal Law Secwoman during the intermediate period. Surely it tion. 1. Whether further legislation is not desirable would be easy for the legislature to provide a remedy, to prevent or remedy the frauds committed by proas has been done in the case of a woman who has ob moters of companies. 2. Whether, and to what extained a protection order or a decree for a judicial tent, it is expedient and practicable to alter or control separation.

by legislative enactment, contract between landlord

and tenant. Repression of Crime Section. 1. Is it A recent cable dispatch says that the preparations

desirable to form an intermediate industrial school for

the preparatory training of boys for service in the for the annual conference of the Association for the

army, as recommended by the committee of the War Reform and Codification of the Law of Nations, to be Office, November, 1866 ? 2. What is the best kind of held at Antwerp, August 28, are actively going for

labor for prisons and reformatory schools: (a) In re

lation to the prisoner; (b) In relation to the labor marward. The conference will hold its sittings at the ket? 3. Can any better measures be devised for the Hôtel de Ville. The inaugural meeting will take 1 prevention and punishment of infanticide?

The Albany Law Journal.

ALL communications intended for publication in the | In our notice last week of the unrepealed sections LAW JOURNAL should be addressed to the editor, and the of the old code, there was an omission in our list of name of the writer should be given, though not necessarily for publication.

such sections caused by an error of the types. In Communications on business matters should be ad addition to those given, sections 428 to 468 includressed to the publishers.

sive, should be named. The unrepealed sections are then as follows, all sections mentioned being included: sections 1 to 8, 30 (subd. 2, 10 and 11),

52 to 71, 111, 112, 118, 132, 136, 166, 167, 206 to ALBANY, AUGUST 18, 1877.

217, 224, 243, 244, 256 (in part), 261, 277, 284, 292

to 309, 311 to 322, 351 to 371, 375 to 381, 427 to CURRENT TOPICS.

469, 471 to 473. SELECT committee of the House of Commons n charged with the investigation of the condition

The strikes, with their resulting mobs, having of the law regulating the obligation of masters for in caused a great destruction of private property, the juries happening to their servants in the course of ser interesting question now arises, who is to settle the vice, have made a report, setting forth what the com

bills ? Judge Dillon, in his treatise on Municipal mittee understands to be the existing law, and sug

Corporations, $ 760, says: “Public or municipal gesting that no alteration therein be made. The

corporations are under no common-law liability to committee gives as a reason for its suggestion the re

pay for the property of individuals destroyed by marks of the court in Farwell v. Boston and Worcester

mobs or riotous assemblages, but in such case the R. R. Co., 4 Metc. 49, that • where several persons are

legislature may constitutionally give a remedy." employed in the conduct of one common enterprise

This enunciation of the law is sustained by numeror undertaking, and the safety of each depends ous decisions. See Western College v. Cleveland, 12 much upon the care and skill with which each other

Ohio St. 375; Prather v. Lexington, 13 B. Monr. 559; shall perform his appropriate duty, each is an ob Ward v. Louisville, 16 id. 184; Cheany v. Hooser, 9 server of the conduct of the other, can give notice id. 330; In re Pennsylvania Hall, 5 Penn. St. 204; of any misconduct, incapacity or neglect of duty,

Fauvia v. Nero Orleans, 20 La. Ann. 410; Baltimore and leave the service if the common employer will | v. Poultney, 25 Ma. 107; Martin v. Mayor of Brooknot take such precautions and employ such agents lyn, 1 Hill, 545; Underhill v. Manchester, 45 N. H. as the safety of the whole party may require. By | 214; Buttrick v. Lowell, 1 Allen, 172; Darlington v. these means the safety of each will be much more Mayor, 31 N. Y. 164. But statutes were made at an effectually secured than it could be done by a early period of English history, recognizing the prinresort to the common employer for an indemnity inciple that the local government ought to respond to case of loss of life by the negligence of each other." an injured party for his loss occurring through the The result reached by the committee seems to be inefficiency of the means adopted by such governgenerally approved, but the London Lar Journal ment to preserve the peace. The statute of Winton complains because it went to America for its reasons, or Winchester, about the year 1285, provided a when, according to the Journal, it might have found remedy against the hundred, county, etc., in which them at home in the cases of Priestly v. Forler, 3 a robbery should take place, for the damages caused M. & W. 1. and Morgan v. Vale of Neath Ry. Co., 85 | thereby, to be recovered by the party robbed in an L. J. Rep. Q. B. 23. The Laro Journal, in the same | action against any one or more of the inhabitants. connection, intimates that the law in Farwell y. This statute was re-enacted (28 Edw. III, ch. 2) and Boston and Worcester R. R. Co. has had something | an amendment was made (27 Eliz., ch. 13, § 2). The to do with causing the recent railroad strikes here, famous Riot Act (1 Geo. I, chap. 5) was passed a remark which indicates the feeling underlying the by Parliament in consequence of the tumults attendcriticisms made upon the report of the committee. ant upon the accession of that king to the throne. The committee recommend, in conclusion, that an This gave a right of action against any two inhabitact of Parliament be passed, stating in clear and ants of a hundred, city or town for damages done precise terms what the law now is, the grounds of to buildings by any persons riotously assembled. such recommendation being that, at present, the This was amended by statute 8 Geo, II, chap. 16, whole matter is left to the common law, which is a and the entire previous legislation was consolidated sealed letter to the great majority of the public, and rendered efficient by a statute passed in 1827. and, secondly, that the law has been gradually de- In this country statutes exist of similar tenor with veloped by the ingenuity of the judges to an extent those in force in England. In New York (Laws which they themselves hardly contemplated, and 1855, chap. 428), it is provided that the city or county the working classes believe that their rights have in which the property destroyed is, shall be liable to thus been withdrawn from them without their | an action by the loser; and in Pennsylvania the act knowledge, and without the power of protest or de- of May 31, 1841, 87, gives a like remedy. Acts of fense.

Ta similar nature have been passed in Louisiana, VOL. 16.- No. 7.

Maryland, Kansas and other States. See, upon the ever could occur to any of the strikers would be, subject of the general obligation of the government that they were by their acts guilty of a contempt of to secure protection to the property of individuals, court. This, however, was the case in several inwhich is the foundation of legislation of this char- stances, where the railroads interfered with were acter, Locke on Civil Government, ch. 9, $ 131, ch. being operated by receivers, and the only rioters 7, $ 87; Sidney on Government, ch. 1, § 10, ch. 2, thus far punished are those who have been com§ 1; Calhoun on Gov't Works, vol. 1, p. 52; Talbot mitted for contempt. v. Jasen, 13 Dal. 133; Brougham Polit. Philosophy, vol. 1, p. 39; Lieber on Civ. Liberty, 83.

Judge Krekel, of the United States District Court

'for the Western District of Missouri, rendered a deOur State governments, or most of them, have a cision of interest, on the 13th inst., in habeas corpus peculiar sensitiveness about being sued even in their proceedings in behalf of one Joyce, who has been own courts, it being believed that for a State to be for the past two years in prison for conspiracy prosecuted for claims against it, as an ordinary | to defraud the revenue. The prisoner was senindividual, would somehow or another detract some-tenced for successive terms upon separate counts of thing from its dignity or its independence. Yet in the same indictment, and has served the first term. the transaction of its business it is necessary for the The court held that when the prisoner was senState to make contracts or take the property of tenced for one term, the power of the court was individuals, and in either case there is a possibility | exhausted, and the subsequent cumulative sentence that a dispute between the State and the interested was therefore illegal and void; and as the prisoner individual may arise and an adjudication be neces had served out the first sentence, an order was ensary. This fact is recognized by legislative bodies, tered for his discharge. The decision follows that and to provide for the disposal of contested matters | of the Court of Appeals in the famous case of People special boards are usually created which hold trials, ex rel. Tweed v. Liscomb, 60 N. Y. 559; 19 Am. Rep. and determine the rights of the parties. These 211. In the case at bar the United States District boards are governed only by such rules as the stat Attorney has taken an appeal to the Circuit Court, utes impose and they themselves make. In reference and from there it will in time go to the Supreme to pleadings, proceedings and the admission of evi- | Court, where the matter will be finally settled. dence, the bodies mentioned are the final judges, and in case of error or partiality the party wronged

NOTES OF CASES. has no redress. It would be better as we look at it. In the case of Hires v. Hurf, 10 Vroom (39 N. J. to have all disputes between the State and indi

1 Law), 4, one Heritage, who was the owner of viduals submitted to the arbitrament of the ordinary

about 500 bushels of corn in bulk, sold 200 bushels courts. There would be no more danger to the

of the same to defendant, who paid cash. The interests of the State in such a course than in the

corn sold, which was not hard, was, by the agreeones now in vogue, and private rights would be

ment of the parties, to remain in bulk and undismuch better protected. A requirement of security

tinguished from the remainder, until it was harfor costs as a condition precedent to prosecuting a

dened, and then it was to be weighed, measured claim against the State would cut off vexatious and

and delivered by the vendor to the vendee. The speculative litigation.

contract was verbal, and there was no bill of sale

or writing of any kind, and no statement as to The striking railroad employees, except in a few whose should be the risk, and no fact but payment instances, where outside parties took control of the to indicate a purpose to make an immediate and movement inaugurated by them, endeavored to so absolute sale of the corn. Thereafter plaintiff, as conduct their operations as not to commit any acts sheriff, levied upon the corn upon an execution which would render them amenable under the law against Heritage, after which Heritage delivered to any severe punishment. Thus, while freight 200 bushels of the same to defendant, and plaintiff trains were interfered with, great care was taken to brought this action to recover the same. The court avoid hindering trains carrying the United States decided that the title to the corn was in plaintiff, mail; and in several instances where the destruction holding that where there is a contract for the sale of railroad property was threatened by a mob, the of a certain quantity of goods in general, a smaller striking employees defended such property. And from a greater quantity in bulk, without a special as a rule the bands of rioters, although turbulent identification of them, or an appropriation of them and noisy, abstained from overt acts of a serious to the contract, it is an executory agreement, and character. The recent statute in this State in rela- the property does not pass until such appropriation tion to tampering with railroad property was un- is made, unless there is a clearly expressed intention known to them, and most of the public first learned to make the sale of the articles complete and absoof its existence through its publication in the proc- lute. See, as supporting the same rule, Scudder v. lamation of the Governor. But the last thing that I Worster, 11 Cush. 573, where 250 barrels of pork

but the courave their ne separation was stored in the

were sold, part of a larger lot, all of the same qual- not be given to prove an infamous crime against a ity, having the same marks, and all stored in the witness of which he has not been convicted, for the vendor's cellar, but no separation was made. The purpose of impeaching his credit, yet, where the purchasers gave their negotiable notes in payment, question as to whether the witness is guilty of such but the court held no title passed. Chapman v. crime becomes the legitimate subject of inquiry on Shepard, 39 Conn. 413; Campbell v. Mersey Docks, 14 the trial, his reputation for truth may be proved to C. B. (N. S.) 412; Aldridge v. Johnson, 7 E. & B. 885; rebut any imputation which the evidence of guilt Young v. Matthews, L. R., 2 C. P. 127; Martineau v. makes against his credit. Kitching, L. R., 7 Q. B. 436; Riddle v. Varnum, 20 Pick. 280; Keeler v. Goodwin, 111 Mass. 490. See,

| In Camp v. Hamma, 29 Ohio St. 467, defendant, however, as not in accordance with the principal

by fraudulent representations made by the payee of case, Whitehouse v. Frost, 11 East, 614; Kimberly v.

a negotiable promissory note, was induced to sign Patchin, 19 N. Y. 330; Russell v. Carrington, 42

such note.

In these id. 118; Cushing v. Reed, 14 Allen, 376.

The representations were, that the

instrument was a non-negotiable contract appointlatter cases either the rights of third persons inter

ing the defendant an agent for the sale of a corn vene, or there is an indication in the contract that

harvester, etc., and he did not at the time intend to the parties intended the title to pass.

sign a negotiable note. In an action on the note, the

jury found that plaintiff was a bona fide purchaser In Wetib y. State, 29 Ohio St. 351, defendant, who of the note before maturity for value, and that dewas being tried for forgery, called witnesses who fendant was not negligent in signing the note. The gave evidence tending to show that one Hill, court held, that plaintiff was entitled to recover, who had testified for the prosecution, had made cer saying, that a person possessing the ordinary facultain material statements and admissions about the ties and being able to read and write, who relies case at various times off the stand, which at the solely upon the representations of the other contrial he denied having made, and had sworn differ tracting party as to the character of the instrument, ently on a former trial from what he did on this | should be regarded as negligent as against an innotrial. The question was, whether this would be cent indorser before maturity and for value. This sufficient, there being no evidence tending to attack is in accord with all the recent authorities upon the general reputation of the witness for truth and this subject. See Frederick v. Clemens, 60 Mo. 313, veracity, to allow the prosecution to call witnesses where the rule as to these cases is thus stated: and give evidence to prove that the reputation of "Where one voluntarily signs a promissory note the witness was good. The court says that there supposing it to be an obligation of a different charhas been great contrariety of decision upon this acter, but has full means of information in the question, the practice in its own State not being premises, and neglects to avail himself thereof, uniform, but that, where the only impeachment of relying on the representations of another, he cannot the witness consists of conduct, or of statements set up such ignorance and mistake as a defense made at other times, inconsistent with his testimony, against an innocent holder for value before maturity. the better rule is, not to allow proof of his general If, however, his signature was procured without character or reputation for truth. This seems to be negligence on his part, and through artifice or the rule in a number of States: in Massachusetts, fraudulent representations, the rule is different, and Russell v. Coffin, 8 Pick. 143; Brown v. Mooers, 6 the jury should be left under appropriate instrucGray, 451; in New York, People v. Hulse, 3 Hill, tions to determine these facts.” The same general 309; People v. Gray, 7 N. Y. 378; in Pennsylvania, doctrine is maintained in the following cases, in Wirtz v. May, 21 Penn. St. 274; in Georgia, some of which judgment was rendered in favor of Stamper v. Griffin, 12 Ga. 450, and in several the innocent holder and in others against him. But other States. The contrary rule prevails in Ver in all the test of right was whether or not the mont, where such evidence is admitted. Paine v. defendant had been guilty of negligence in not Tilden, 20 Vt. 554. So also in Indiana, Harris v. ascertaining the true character of the paper he had State, 30 Ind. 131; in North Carolina, Isler v. Dewey, signed. Whitney v. Snyder, 2 Lans. 477; Gibbs v. 71 N. C. 14, and in one or two other States. The | Linaburry, 22 Mich. 479; 7 Am. Rep. 675; Walker court, in the principal case, however, allowed the | v. Egbert, 29 Wis. 227; 9 Am. Rep. 548; Abbott v. admission of the evidence, on the ground that the Rose, 62 Me. 194; Chapman v. Rose, 56 N. Y. 137; case attempted to be made against the witness by Chipman v. Tucker, 38 Wis. 43; Cline v. Guthrie, the defendant's evidence was, that the witness had 42 Ind. 227; Douglas8 v. Matting, 29 Iowa, 498; himself committed the crime with which defendant Briggs v. Erart, 51 Mo. 251; 11 Am. Rep. 445; was charged, and was endeavoring to exculpate Martin v. Smyle, 55 id. 577; Corby v. Weddle, 57 id. himself and convict defendant by false testimony, 452; Garrard v. Hadden, 67 Penn. St. 82; 5 Am. the court saying that while it is true, evidence can- | Rep. 412; Vance v. Lary, 5 Ala. 370.

Toron of Irasburgh, 47 Vt. 28, holding that where the SOME RECENT DECISIONS — 19TH AMERICAN.

statute forbids traveling on Sunday, except in cases THIS volume, which has been some time before the of necessity or charity, there must be an actual ex1 profession, merits a detailed notice. It is made istence of the excuse ; mere belief in it is not sufup of a selection from twenty-eight volumes of ficient. In this case it was left to the jury to say reports of the States of Kentucky, California, Con- whether the journey was necessary to keep fish necticut, Tennessee, Indiana, Kansas, Massachu from spoiling. In Wiley v. Bank of Brattleboro, 47 setts, Mississippi, Nebraska, New York, Texas, Ver Vt. 546, it was held that national banks are not mont and Wisconsin.

liable for special gratuitous deposits stolen from The two volumes of Mississippi reports contribute them. This case is approved and followed in but little. It seems, however, that “reconstruc Ocean Bank v. First Nat. Bank, 60 N. Y. 278. tion” is so far effected in that State that they have | The New York cases are quite important, and got to killing people down there in the regular old- although familiar to the lawyers of our State, yet fashioned way. In Barcus v. State, 49 Miss. 17, the a few notes may be useful to those of other States. evidence showed that Barcus shot at A with intent In Lowery v. Western Union Telegraph Co., 60 N. Y. to kill, but missed him and killed B. The indict- | 198, the defendants received a message for transment, charging the shooting of B with intent to kill, mission, asking the plaintiff for $500. By negliwas held not good. Barcus was "willin'," but made gence of defendants the figures were changed to an innocent mistake. He will have another trial, $5,000, which the plaintiff sent, and the receiver however. Perhaps if he had been accorded another absconded with it. Held, that defendant was not trial of the shooting he would have done better. liable, its negligence not being the proximate cause There is a good note to this case. About the case of the loss. In Cesar v. Karutz, 60 N. Y. 229, a of Turnipseed v. Hudson, 50 Miss. 429, there is landlord was held liable for leasing premises which nothing more remarkable than the plaintiff's name. he knew to be infected with small-pox, and failing The case involved the title to an office. The parties to notify the tenant of the fact, and from which the had agreed to abide the result of a primary election, plaintiff contracted the disease. The landlord's which, as well as the principal election, resulted in secretiveness cost him $1,500. In Hale v. Patton, the choice of Hudson, whereupon Turnipseed sur 60 N. Y. 233, a mortgage, specifying no place of rendered and Hudson took possession. Subse- payment, was conditioned to be due if any installquently, the law under which the election was held ment of interest remained due and unpaid for thirty was declared unconstitutional. It was thereupon

days; eight days after the interest fell due, the held that Turnipseed was not estopped, but might mortgagee, a single man residing with his mother, re-plant himself.

left the State and remained absent during the resiIn Texas, if one is accused of horse-stealing, it due of the thirty days; held, that the debtor was will not answer to try him with a "baker's dozen" not bound to follow him, or tender the interest at (Bullard v. State, 38 Tex. 504), and if murder is the house of the mother, in the absence of any the charge, it is all wrong to have nine on the jury notice that she was authorized to receive it, but that who do not understand English. Lyles v. State, 41 | his readiness and willingness to pay the interest in Tex. 172.

the State was effectual to save the forfeiture. In In Kentucky, in Graves v. Lebanon Nat. Bank, 10 Hartnett v. Wandell, 60 N. Y. 346, it was held, Bush, 23, defendants became sureties on the cash- where a testator had appointed his wife executrix, ier's official bond in consequence of the directors and requested “that such male friend as she may published statement of the affairs of the bank, desire shall be appointed with her as co-executor," by which they appeared well managed. The that this was a valid delegation of power to appoint cashier was, at the time, a defaulter, which the di- both at common law and under the statute directing rectors might have learned by slight care. Held, letters testamentary to be issued to the persons that defendants were not liable. Kentucky has a named in the will as executors. In Wheelan v. decent respect for the dead. Thus, in Louisville v. Lynch, 60 N. Y. 469, it was held that a price current Nevin, 10 Bush, 549, it is held that a cemetery will list published in a newspaper is not evidence per se not be sold to satisfy a lien for the improvement of of market value. It is difficult to see how it could an adjacent street.

be evidence to any extent, for it is only hearsay. The case of Rucker v. Donovan, 13 Kan. 251, has | The celebrated Tweed case, involving the question of a very elaborate note on the subject of stoppage in cumulative sentences, occupies thirty-four pages, transit. It seems that the usurer has progressed as and is a shining monument of the independence of far west as Kansas; for in Clark v. Spencer, 14 Kan. the judiciary over the bluster of counsel and the 398, it was held, that where the plea of usury had clamor of the people. The decision by the Combeen withdrawn in consideration of postponement, mission of Appeals, in Mitchell v. Reid, 61 N. Y. it could not be reinstated.

123, that the renewal of a lease taken by one partVermont leads off with a Sunday case, Johnson v. I ner in his own name during the partnership term,

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