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BOOK NOTICES.

COOPER'S REPORTS, VOL. II.

Reports of cases argued in the Court of Chancery of the State of Tennessee, and decided by the Hon. William F. Cooper, Chancellor of the Seventh Chancery District of Nashville. Vol. II. St. Louis: G. I. Jones & Company, 1877.

THERE

are several advantages in the reporting of decisions by the judge who makes them, the most important one of which is, that the cases are presentedto the public in the way that they appeared to the court, the facts and the legal points having prominence in the argument or influencing the determination being made prominent in the report. Another advantage is that the opinions delivered are prepared with reference to their publication, and the reported cases are more systematically and harmoniously presented. The opinions in the volume before us are carefully written and as carefully reported. A number of interesting decisions are given among which we select the following: Ex parte O'Brien, p. 33. A widow having no children of her own, but caring for the children of a deceased sister, who live with her, is the head of a family under the homestead act. Love v. Allison, p. 111. An accommodation indorser may be released by abandonment of levy on realty of a prior indorser. Pugsley v. Freedmen's Savings and Trust Co., p. 130. The right of the defendants to remove a cause to the United States court under Laws 1789, § 12, etc., is gone, after one of the material defendants has taken the opinion of the State court, upon a question which goes to the merits of the litigation. Seasight v. Payne, p. 174. Where goods are sold and credit given to a corporation, an officer or stockholder cannot be held personally liable for the debts thus created upon a promise to pay or see them paid, unless such promise be in writing. Alley v. Myers, p. 206. A judgment

by confession before a justice on an open account for an amount over the magistrate's jurisdiction is void. Carter v. Montgomery, p. 216. If a gift be in consideration of wrong done, such as seduction or past illicit cohabitation, equity will not interfere to deprive the donee of the legal title. Williams v. Corson, p. 269. A husband and father, who has taken out a policy of insurance on his own life, payable to him, his executors, administrators, and assigns, may dispose of the same by will. Nichol v. Steger, p. 328. An infant cannot bind himself for necessaries, if like necessaries have been furnished him by his guardian with whom he was living. Stratton v. Perry, p. 638. A judgment is only a security of a higher nature for the same debt and does not extinguish the debt, and, therefore, a bankrupt, against whom a judgment has been recovered in the period between his application to be declared a bankrupt and his final discharge, may plead the discharge in bar of the judgment. Smith v. St. Louis Mut. Life Ins. Co., p. 656. To entitle any one or more of the defendants to remove a cause from this court to the United States court, under the act of March 3, 1875, all of the material defendants must have the necessary citizenship. Rains v. Hayes, p. 669. Money paid by the father as security of his son-in-law is not chargeable to the daughter as an advancement. Smith v. St. Louis Mut. Life Ins. Co., p. 727. An agreement by which one life insurance company transfers to another life insurance company all its assets, the other company undertaking to re-insure the risks of the first and to pay its debts, is ultra vires and void,

though the first company may be authorized by its charter to re-insure its risks. The index is good, but there is no table of cases cited. The book is well printed and bound.

COX ON COMMON LAW PRACTICE. Common Law Practice in Civil Actions. By Walter S. Cox of the Bar of Washington, D. C., and Instructor in Columbian University Law School. Washington, D. C.: W. H. & O. H. Morrison, 1877.

This volume appears to be a carefully prepared compilation of the rules regulating practice under the common law, and will be found useful to students and all others desiring to understand the principles which governed a system of procedure which is fast becoming obsolete. While codes or other statutory provisions have in most places superseded the ancient system of procedure, a knowledge of that system is essential to the complete understanding of what now exists, and a course of study which should omit the consideration of it would be decidedly defective. The present volume is particularly intended for the use of students, the author's experience as an instructor in a law school leading him to prepare it, there being no other book in existence fitted for the purpose for which it is designed. We think the volume will meet the want that existed and will prove acceptable to all who desire to study systematically practice under the common law.

REDFIELD ON THE LAW OF WILLS, VOL. III. The Law of Wills embracing the Probate of Wills and the Settlement of Estates; the Duties of Executors, Administrators and other testamentary trustees. By Isaac W. Redfield, LL. D. Vol. III. Third Edition. Greatly extended and improved. Boston: Little, Brown & Company, 1877.

This volume completes the third edition of this wellknown work. The labor of revising this edition was performed by its lamented author before his death, the only additions made by another haud being the citation of such important cases as were decided between the occurrence of that event and the printing of the volumes. The treatise is too well known to the profession to require any description or recommendation here. Many additions have been made to former editions both in respect to the text and the citation of authorities, and the work constitutes the latest and most complete treatise upon the subjects embraced therein.

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CORRESPONDENCE.

APPEALS TO THE COURT OF APPEALS. To the Editor of the Albany Law Journal: SIR In an article in the LAW JOURNAL of October 13th instant, after referring to the work done by the Court of Appeals, and to the provision not allowing an appeal to that court in actions where the amount involved is less than five hundred dollars, you have this paragraph: "If the limit could be increased to one thousand dollars, it is probable that the judges could at present dispose of all the business brought before them without overworking themselves as they are now doing."

Why not go further and say, if the limit could be increased to one hundred thousand dollars, the judges would have but little work to do. In short, why not abolish that court altogether? That the judges should be overworked is, of course, much to be regretted; nevertheless, are the rich to be there heard, to the ex

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[There must be some limitation upon appeals to the court of last resort. The suitor whose dispute is about five dollars may think he ought to have the highest courts of the State adjudicate his difficulty as much as the thousand dollar or even the fifty dollar litigant. But we have discovered that it is a matter of impossibility for the court to determine all claims and that some method of selection is inevitable. The most reasonable and most easily understood method is the one now chosen. If the limit of appeal should be increased to $1,000 instead there would be no more violation of abstract right than there is in the $500 limit now existing. Any talk about the court being a rich man's court is the merest cant. The only privilege the suitor of small means is deprived of by a limitation is the opportunity of wasting what little he has in litigation; for no case involving less than a thousand dollars is of itself worth a journey to the Court of Appeals. Cases involving important questions may now go there, for in such cases the court below will always allow an appeal. The poor man is benefited by the rule forbidding small cases to be kept in the courts by appeal.- ED. A. L. J.].

NOTES.

THE case of The People v. Lord, which has agitated

the politicians for some time past, was decided on the 26th ult. by the General Term of the Supreme Court of the Fourth Department, sitting at Rochester. The defendant, who was a member of assembly, was indicted for bribery under the provisions of Laws 1869, chapter 742. The offense was charged to have been committed in February, 1871, and the indictment was found in September, 1875. At the time the offense was committed the statute of limitations as to indictments was three years. In the interval between that time and the finding of the indictment, but within three years of the time, the time for finding an indictment was extended to five years. It was claimed on the part of the prisoner that the act could not be applied to an offense committed before its pas. sage. The court below held that it could be, but the General Term reversed the decision and directed the discharge of the defendant. Judge Mullen delivered the opinion. The judgment was concurred in by Judge Talcott, Judge Smith dissenting.

The most extensive bill of costs upon a small litigation we have recently met with comes from Australia. Plaintiff sued for breach of warranty on the sale of a cow. Defendant was in England at the time and had to take a journey to Australia to give evidence on the trial. He was successful, and was allowed as part of the bill of costs his expenses in going from England to Australia, amounting to £218, or more than $1,000.- The Court of Appeals in Virginia is engaged in hearing a litigation which has been in progress seventy years. It involves the title to the salt works at Saltville, which furnished the Southern

Confederacy with salt during the late war. The senior counsel for plaintiffs, Senator Johnson, has been connected with the case since 1847.

There were 326 acts passed at the last session of the English Parliament. Of these 33 related to the whole United Kingdom of Great Britain and Ireland, 14 related to England, 9 to Scotland, 7 to Ireland, 3 to England and Ireland, 1 to England and Scotland, and 2 to the colonies, making 69 in all. There were 40 public statutes, which, being of a local character, chiefly for confirming provisional orders of various departments of the government, are placed among the local acts, raising the number of that class of acts to 242 in the whole. There were 15 private acts.

An English newspaper thus describes the Old Bailey: "At length I hear one say, 'We'll go and see how they are getting on up stairs.' Now is my time, and I proffer a request for admission. The sergeant bids me follow him. I do so, and am in the Old Bailey. It is in the afternoon, and the audience seem to have refreshed themselves, and, in spite of the hardness of the benches, to be sleeping in a way very creditable to their consciences. I can't see the prisoner at all. A dozen unhappy men are seated on one side, with pens and paper before them; they are the jury. Around the table opposite the judges are the counsel. Behind them there are a few benches said to be for reporters; but I hope the seedy individuals seated on them are not to be reckoned as members of the Fourth Estate. If 80, I rather pity the Fourth Estate, which I have been told is the palladium of British liberty. A narrow passage divides them from the sleepy witnesses, who sit dozing as if they did not take the slighest interest in what was going on. I doubt not but that they are keeping their eyes shut to show how unprejudiced and impartial is their state of mind. As I stand in the little square space by the door, I fancy that I am the sole representative of the British public. Alas! I am soon undeceived. As I turn up my eyes to the ceiling, I see hanging over a gallery above me a row of as beery heads as I have seen for some time; and they are the public. I am only an intruder! my proper place is up with them, where, squeezed together, and sweltering in their own unwholesomeness this hot afternoon, they contemplate the way in which judges lay down the law, and clever barristers argue that black is white. I try another court. It is just the same scene of darkness and disagreeableness, and bad air and heat, where one can scarce see or hear; for, as the witness is placed at the angle between the jury and the judges, he is sure to speak in an undertone that is scarcely audible to the reporters. A little of this goes a long way, and I retreat into the lower waiting-rooms, where some are weeping and some are laughing-where some see their friends marched off to prison with Christain resignation, while others look as if they had lost all they cared for on earth. The crowd is a very motley one. They are a wonderful lot of seedy people, and if a clerical looking gentleman comes amongst them, or a man of respectable appearance, quite a sensation is created. They are young and old, rich and poor, good people and bad, rags and broadcloth-side by side. I hurry away-thinking that, on the whole, in all London every way-there is not a more disreputable, or more inconvenient, or a more unsanitary and unsavory place than the Old Bailey."

The Albany Law Journal.

ALBANY, NOVEMBER 10, 1877.

CURRENT TOPICS.

IT is stated that the young men who were admitted to the bar as attorneys in New York last week, but who wanted to become counselors also, have taken an appeal from the decision of the General Term refusing to admit them as counselors. The grounds of the appeal are stated to be: First, that the committee examining the appellants were appointed to "examine applicants for admission as attorneys and counselors of the Supreme Court;" second, that they had certified that the young men were entitled to pass as attorneys and counselors; and third, that the Court of Appeals had not power to prescribe the time for the order issued by it to take

the treasurer for their initiation fee and annual dues. The contribution asked from each individual is small, and will be repaid to him many fold in the advantage conferred by membership, to say nothing of the benefit accruing to the bar in general from the existence of the Association.

The Court of Oyer and Terminer of Allegheny county, Pennsylvania, and the governor of that Commonwealth, are in controversy in reference to the right of the grand jury of the county mentioned to compel the executive to testify as to certain official acts done by him, and connected with a matter that they are investigating. The governor, in answer to the subpœna requiring his attendance, denies "the right of a co-ordinate branch of the government to compel the attendance of the executive officers, or investigate the manner in which, in their discretion, they have performed their official duties." effect, but that the same must be regularly pub- his action in the matter by the decision of the SuThe governor has, however, elected to be guided in

lished. We can see no substantial reason for this appeal. If the young men making it should be successful (of which result there is very little probability), the only thing gained, to most of them at least, would be a right to assume a year or so earlier the title of counselor. The young lawyer during the first two years of his professional life, especially in large cities, has very rarely an opportunity to act as counselor. His business is mainly in the inferior courts, or if he happens to be engaged in a litigation in one of the Superior Courts, a trial is not reached during the time mentioned, or if it is, counsel will probably be employed whether the attorney is entitled to conduct it or not. Perhaps, however, the appellants desire to have the status of the obnoxious rules finally settled, and, therefore, take their appeal for the benefit of those who are to

come after them. Even this would hardly justify an appeal, for if the Court of Appeals should determine that it had omitted any act essential to give validity to its rules, it could by further action remedy the defect.

We trust the members of the profession will bear in mind the annual meeting of the New York State Bar Association, which will be held at the Assembly Chamber in this city on the 20th of this month, and will so arrange their business engagements as to be able to be present on that occasion. The committee of arrangements earnestly urge all members to be present, and to come prepared to nominate new members, and to consider the subjects which will naturally arise for discussion. It is stated that special addresses and theses may be expected, and that the post-graduate prize will be awarded. The committee will publish the order of exercises, when settled, in the ALBANY LAW JOURNAL. In this connection we would urge those members elect who have neglected to do so, to respond to the call of VOL. 16.- No. 19.

preme Court, to which an appeal has been taken, although he says, "an extreme regard for the dignity and independence of the executive might justify the assumption that the decision of the propriety of recognizing the authority of a co-ordinate branch

one.

lies entirely in the breast of the executive." Pending the decision of the Supreme Court, the governor declines to obey the subpoena. As we have before said, the position taken by the governor is the proper To say nothing of the impropriety of a local body thus examining into the official conduct of State officers, the rules of evidence make official transactions of the chief officers of the State privileged. Thus, communications between a provincial governor and his attorney-general in regard to the conduct of officers (Wyatt v. Gore, Holt's N. P. Cas. 299), or between such governor and a military officer under his authority (Cooke v. Maxwell, 2 Stark. 183), the report of a military commission of inquiry made to the commander-in-chief (Home v. Bentinek, 2 B. & B. 130), correspondence between the agent of the government and a secretary of State (Anderson v. Hamilton, 2 B. & B. 156; Mosbury v. Madison, 1 Cranch, 144), are confidential matters which the interests of the State will not permit to be disclosed. And it was held by Marshall, C. J., in 1 Burn's trial, 186, that the president of the United States, and the governors of the several States, are not bound to produce papers or disclose information communicated to them, when in their own judgment the disclosure would, on public considerations, be inexpedient. See, also, Gray v. Pentland, 2 S. & R. 23; Yoter v. Sanno, 6 Watts, 156.

In 1871 the legislature of Michigan passed an act requiring every negotiable instrument whose consideration was the transfer of an interest in a patent right, to have written or printed on its face

The

the words “given for patent rights,” and made it a misdemeanor to take or transfer such a note not so inscribed with knowledge of the facts. statute also made such a note subject in the hands of any holder to the same defenses as in the hands of the original holder. A like enactment was made by the legislature of this State last winter (Laws 1877, chap. 65). The Supreme Court of Michigan in the case of Cranson v. Smith, just decided, and appearing in our present issue, hold that the Michigan law is in violation of the provisions of the Federal Constitution, upon the ground that it interferes with the value and enjoyment of patent rights, which a State may not do, the subject of granting patents, and regulating the rights of patentees, being within the exclusive control of Congress. Whether the courts of this State will reach a like conclusion in case they should be called upon to adjudicate concerning the validity of our law, we do not presume to say, but the Michigan court sustains its holding by very satisfactory reasons. Statutes involving something like the same question have been passed upon by other courts, and the weight of authority seems to be in accord with the principle advanced in Cranson v. Smith. See Grover & Baker Sew. Mach. Co. v. Butler, 53 Ind. 454; 21 Am. Rep. 200, where a State law requiring foreign corporations to perform certain acts as a condition of doing business, was held not to apply to corporations manufacturing and selling patented articles; Helm v. First Nat. Bank of Huntington, 43 Ind. 167; Ex parte Robinson, 2 Bissell, 309; Hollida v. Hunt, 70 Ill. 109. In Patterson v. Commonwealth, 11 Bush, 311; 21 Am. Rep. 220, however, a statute forbidding the sale of illuminating oils not able to stand a prescribed test was held constitutional, as applied to patented oils. See, also, upon the same subject, Woolen v. Banker, 6 Am. Law Rec. 236; State v. Peck, 25 Ohio St. 26.

A large number of bills have during the week been introduced in Congress, most of them, however, relating to matters of no especial interest to the profession. A few, however, merit attention. One introduced in the House by Mr. Frye, of Maine, provides for the repeal of the bankrupt law, and the enactment in lieu thereof of a brief statute providing that any debtor in failing circumstances, who shall make a voluntary assignment of his estate, without preference, under the laws of the State where he resides, shall be discharged from liability for debts other than fiduciary ones, provided his estate is sufficient to pay a specified percentage upon his indebtedness. Another bill introduced by Mr. Oliver, of Iowa, provides for an amendment of the patent laws, so that a patent may be granted for a term of ten years, with an extension for five years, under the provisions of the law heretofore applica

ble to extensions.

The Institute of International Law, an account of the constitution and purposes of which appear at page 130 of our present volume, held its annual meeting at Zurich at the time appointed. The only subjects discussed at the meeting appear to be those having reference to maritime law during the time of war, a subject which at the present time possesses but a secondary interest to the profession in America.

The Incorporated Law Society of the United Kingdom held its annual meeting at Bristol on the 20th ult. The proceedings and discussions resembled those at meetings of bar associations in this country, and embraced many topics of general interest, such as admission to the bar, professional remuneration, bankruptcy law, etc. In respect to the latter subject, the drift of opinion seemed to be that such a law does more harm than good, which, we believe, is the general sentiment of the profession with us.

NOTES OF CASES.

Α

N the case of Jones v. Preston, 1 Tex. L. J. 66, decided by the Court of Appeals of Texas at its last term, the action was brought to recover from a carrier the value of a trunk and its contents, which he was transporting as baggage for a traveler. portion of the contents of the trunk consisted of these things: $100 in coin and $200 in currency, sixteen yards of dress silk, two dozen glasses, and half a bushel of canary seed; and a material question in the case was, should these articles be classed as personal baggage, so as to make the carrier liable for their loss. The court, after stating that merchandise is not to be included within the term baggage, says: "Such articles as are carried from place to place for sale, exchange, or barter, will come under the head of merchandise, while such articles as are being transported solely for the necessities, comfort and convenience of the traveler, and not for the purposes of sale, exchange, or barter, would be baggage in contemplation of law, restricted to the further fact that the articles were such as passengers, by the particular mode of conveyance, usually carry with them in traveling." The submission of the question to the jury whether the contents mentioned came under the head of merchandise or not, and whether the sum of money was too large to meet the reasonable requirements of the traveler during his journey, was held proper. See, upon this subject, Dexter v. Syracuse, etc., R. R. Co., 42 N. Y. 326; 1 Am. Rep. 527, where it is held that the right of a traveler to recover for lost baggage is not limited to such apparel, or other articles, as he expects to need or use by the way, but extends to such things as are ordinarily carried by travelers. Also, Toledo, Wabash, etc., R. R. Co. v. Hammond, 33 Ind. 379; 5 Am. Rep. 221, where an opera glass was held proper baggage, and American Contract

Co. v. Cross, 8 Bush (Ky.), 472; 8 Am. Rep. 871, where a gold watch was so held. A feather bed not intended for use on the voyage is not personal baggage of a female passenger by steamship from Ireland to America. Connolly v. Warren, 106 Mass. 146; 8 Am. Rep. 300. Neither are ivory handles, 283 dozen in number, baggage (G. N. Ry. Co. v. Shepherd, 8 Exch. 30); nor title deeds and money to pay expenses of a law suit (Phelps v. L. & W. R. Co., 19 C. B. [N. S.] 321); watches of the value of £1,895 (Belfast, etc., Ry. Co. v. Keys, 9 H. L. 556); household furniture, such as blankets, sheets and bedding. Macrow v. Great West. Ry. Co., L. R., 6 Q. B. 612. But a watch and jewelry, usually worn, is. McCormick v. H. R. R. R. Co., 4 E. D. Smith, 181. So are tools used by passenger in his trade (Davis v. C. & S. R. R. Co., 10 How. 330); guns for sporting purposes (Van Horn v. Kermit, 4 E. D. Smith, 453); money for traveling expenses, cloth for clothing, and the manuscript books of a scholar. Minter v. Pacific Railroad Co., 41 Mo. 503.

The question whether a thing not in esse, such as an unplanted crop, may be the subject of a chattel mortgage, has been fruitful of much discussion, and there has been considerable contrariety of decision, the tendency of late being to sustain mortgages given upon such property, at least to the extent of a single crop. The case of Dupree v. McClanahan, recently decided by the Court of Appeals of Texas, involves the question, and the conclusion is in accordance with the tendency mentioned. In Wyatt v. Watkins, 16 Alb. L. J. 205, the same result is

son v. Wilson, 37 Md. 1; 11 Am. Rep. 518, where a sale, for a valuable consideration, of all the property the vendor then had and might thereafter acquire, was held to convey only such property as the vendor then possessed. See, also, Moody v. Wright, 13 Metc. 17; Holroyd v. Marshall, 10 H. of L. 191; Brown v. Tanner, L. R., 3 Ch. 59; Pennock v. Coe, 23 How. 177; Galveston R. R. Co. v. Cowdy, 11 Wall. 489; Morrill v. Noyes, 56 Me. 458; Pierce v. Lang, 32 N. H. 484; Phelps v. Winslow, 18 B. Monr. 431; Arnoult v. Aimes, 16 La. Ann. 225; and cases cited in Wyatt v. Watkins, supra.

In the case of Barber v. The St. Louis Dispatch Co., 5 Cent. L. J. 360, recently decided by the St. Louis Court of Appeals, the action was for an alleged libel had brought a suit for divorce, wherein he accused in publishing a statement that plaintiff's husband plaintiff of having committed adultery with a person named, and with divers other persons, and of having given birth to an illegitimate child. The defense was that the publication was privileged, as being a fair report of a legal Plaintiff showed that the only legal proceeding. proceeding at the time in existence was plaint which had been filed in an action for divorce, wherein the alleged libelous matter was set forth. The court held that the contents of the complaint were not privileged under the general rule that where a court or public magistrate is sitting publicly, a fair account of the whole proceedings, uncolored by defamatory comment, or insinuation, is a privileged communication, whether the proceed

a com

reached. Parsons, in his work on Contracts, statesings are on a trial, or on a preliminary or ex parte as a general principle (pp. 522, 523): "The existence of the thing sold, or the subject-matter of the contract, is essential to the validity of the contract,” and "a mere contingent possibility, not coupled with an interest, is no subject of sale, as all the wool one shall ever have, or the sheep which a lessee has cov

enanted to leave at the end of an existing time." But if "rights are vested, or possibilities are distinctly connected with interest or property, they may be sold." And it is said in Benjamin on Sales, p. 53: "Things not yet in existence, which may be sold, are those which are said to have a potential existence, that is: things which are the natural product or expected increase of something already belonging to the vendor." In Jones v. Richardson, 10 Metc. 481, it is held that a mortgage upon goods which the mortgagor does not own at the time the mortgage is made, though he afterward acquire them, is void, the court saying that to be able to sell property, the vendor must have a vested right in it at the time of sale. See, to the same effect, Rice v. Stone, 1 Allen, 566; Head v. Goodwin, 37 Me. 181; Low v. Pew, 108 Mass. 347; 11 Am. Rep. 357, where a sale of fish, thereafter to be caught, was held to pass no title to the fish when caught. Wil

hearing. To come within the rule there must be a hearing of some kind. See Rex v. Wright, 8 Term, 298, where the reason of the rule that accounts of judicial proceedings are not libels, is stated to be because it is of great importance that the proceedings of courts of justice shall be known; that the

general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience to the person whose conduct may be the subject before the court. See, also, Curry v. Walter, 1 Esp. 453; Davison v. Duncan, 7 E. & B. 231; Ryalls v. Leader, L. R., 1 Exch. 299; Pierce v. Goodlake, 15 L. T. Rep. (N. S.) 676; Wason v. Walter, L. R., 4 Q. B. 93, where the decision is based upon the analogy between public proceedings in courts of justice and public debates in the houses of Parliament. It also appears from Hunter v. Sharp, 4 Fost. & F. 983, that a hearing and an inquiry in public is essential to bring the publication within the rules as to privilege. So also in Ackerman v. Jones, 37 N. Y. Super. 43, where the publication expressly described a public appearance, and the statement of a criminal charge before a magistrate. In no instance have the statements made in bill filed been held to come within the rule, and it would be decidedly unsafe to permit them to do so. See, also, Edsall v. Brooks, 17 Abb. Pr. 227; McCabe v. Cauldwell, 18 id. 377; Cosgrove v. Trade Aux. Co., 18 Ir. Rep. C. L. 349; Jones v. McGovern, 1 id. 681; Steele v. Brannon, L. R., 7 C. P. 268.

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