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title and avail himself of covenants in a previous deed,
except those that were with the land.— Aorry v. OtMd,
8. O. lU., Nov. 16, 1888; 18 N. E. Rep. 759.

100. MOBTOAOS— Foreclosure— Remainder. On fore-
closing a mortgage made by the tenant for life, but
purporting to convey the fee, and given by order of
court to raise money with which to improve the land,
certain contingent remaindermen were made parties,
the complaint alleging that their interest in the land
was iDferior to the mortgage, and a decree was ren-
dered against them by default: Held, that this barred
their interest, and gave the purchaser at foreclosure
sale a good title, though such remaindermen were not
parties to the proceeding in which the mortgage was
directed to be given.— Ooebel v, Iffla, N. Y. Ot. App.i Nov.
87, 1888; 18 N. E. Rep. 649.

162. Municipal CORPOBATION8— Public Improvements.

Under the law of New York, where a contract was

let for street improvement to the one supposed at the
time to be the lowest bidder, but it afterwards appear-
ing, owing to mistake in estimates, that he was the
highest bidder: Held, there being no fraud or collusion,
the contract was valid.— iM^^tr v. ifayor, etc., N. Y.Ot.
App., Nov. 27, 1888; 18 N. E. Rep. 628.

168. Municipal Oorpobatiohs— Public Improvements
—Assessments. ^In assessments for benefits in ex-
tending an avenue in the city of Passaic, the report and
assessment of commissioners, having been returned to
them by the common council, and another amended
report and assessment being made, there is no au-
thority in the charter for a second return to the com-
missloners.- 5to<e «. Ma/nor ^ ete.» S. 0. N. J., Nov. 20, 1888;
16 AU. Rep. 62.

164. MUNICIPAL OOBFORATIONS — Taxation — Natural
Gas Oompanies. Act Penn., March 7, 1846, authoris-
ing the city of Pittsburg to levy **upon all goods, wares
and merchandise, and upon all articles of trade and
commerce sold in said city, an annual tax not exceed-
ing five mills," does not authorize the levy of a tax on
the gross receipts of a natural gas company doing busi-
ness in that city.— ^p|>eai of (My o/ Pittsburg , 8. 0. Penn.,
Nov. 6, 1888; 16 AU. Rep. 92.

166. Mutual Bbnepit AssociATiON-Assessment— Es-
toppel. Where charter provided for notice by post-
ing, and the company adopts habit of sending wiitten
notice by mall of assessments due, and where it failed
to send such notice, and delinquent, as soon as in-
formed, tendered payment, the company is estopped
from claiming forfeiture.— Gunt/ter v. New Orlean$,€t€,
Aasn,, 8. O. La., Nov. 19, 1888; 5 South. Rep. 65.

166. Mutual Benefit Association— Insurance— Ben-
eficiary. Where the rules of a mutual benefit asso-
ciation allowed the surrender of certificate and issue of
a new one, a member may at any time change his bene-
HcXAry,— Appeal of Beattp, 8. 0. Penn., Oct. 22, 1888; 16
Atl. Rep. 861.

167. National Banks— Liability of Directors. £reW,

that directors of a national bank were not liable for acts
of the cashier in violation of the banking law done
without their participation or knowledge where the di-
rectors were selected by the principal owner of the
stock as advisors. It being understood that they were
unused to the banking baslness and the cashier had
considerable experience therein.— Clews v. Bardon, U. 8.
O. 0. (Wis.), Nov. 22, 1888; 86 Fed. Rep. 617.

168. NBOLIOBNCE— Oanal. Where the State, for the

purpose of draining a canal, constructs a sewer along a
city street In place of a city sewer, without condemning
the land, and allows the property owners to conntHSt
with such sewer the drains formerly fiowing Into the

city sewer, the State assumes the same obligation that
a city does In regard to its sewers, and Is responsible
for damage to such property owners caused by water
backing Into their sellers from the sewer.— BoUov v. State,
N. Y. Ct. App., Nov. 27, 1862; 18 N. E. Rep. 627.

169. Nboligbncb — Master and Servant. In an

aetlon by a servant against his master for personal in-
juries caused by a defective hammer furnished by the
latter, an allegation that defendant negligently fur-
nished plalntifi the hammer is a sufllcient averment
that defendant knew, or might by the exercise of ordi-
nary care have known, of the hammer's condition. —
Johnston V, Mo. Pac, Ry. Co., 8. O. Mo., Nov. 26, 1888; 9 8.
W. Rep. 790.

170. Nboligbncb— Ohild— Due Oare. Held, under

the facts of the case, that there was no want of due
care on the part of the mother of the child, Injured by
the horse of defendant improperly In the highway. —
Marsland v. Murray, 8. J. O. Mass., Nov. 28, 1888; 18 N. B.
Rep. 680.

171. NEotiOBNCB— Injuries. Facts reviewed with

reference to liability of railroad company in case of
injury to child crossing tracks, the negligence of the
company not being the immediate cause of injury. —
Barkley v. Mo. Poo. B. R. Co., 8. 0. Mo., Nov. 26, 1888; 9 8.
W. Rep. 798.

172. NBOLIQBNOB— Evidence— Injuries. Facts re-
viewed upon the question of contributory negligence
on the part of plaintiff where crossing a railroad track
being told to do so by the company's flagman, but
where he might have escaped had it not been for a de-
fective foot board in his wagon. — Melntosh v, Chicago,
etc. Co., U. 8. 0. O. (Minn.), Nov. 14, 1888; 86 Fed. Rep. 661.

178. NBOLIGBNCB— Evidence— Verdict. ^In an action

for negligence, where the evidence on the material
Issues is confiictlng, the court will not set aside a ver-
dict, though it would have been entirely satisfied If the
result had been the Other way. — Hardy v. Minneapolis,
etc. Co., U. 8. 0. 0. (Minn.), Nov. 14, 1888; 36 Fed. Rep. 667.

174. NBOLIGBNCB — Injury. '- To recover damages

received It Is necessar|r for plaintiff to prove that the
accident was caused by the negligence of the railroad
company, and that the plaintlfi was not guilty of any
negligence.— i^eiitmon v. Morgan*Sy etc. Co., 8. 0. La., Nov.
19, 1888; 6 South. Rep. 76.

176. NBOLIGBNCB- Injuries — Ohild. As to what

constitutes evidence of contributory negligence on the
part of a child of tender years.— /7ufiim«2ev. Alegheny, etc.
Co., 8. O. Penn., Nov. 6, 1888; 16 Atl. Rep. 78.

176. NBOLIGBNCB— Injuries— Due Oare. Facts stated

showing negligence on part of defendant and due care
on part of plaintiff In case of injuries to a child in
charge of its mother, and run over by street railroad.—
Chicago City Street Ry. Co. v. Robins, 8. 0. 111., Nov. 16,
1888;18N.E. Rep. 772.

177. NBOLIGBNCB— Master and Servant. Plaintiff,

,an employee of a railroad company which had leased
the tracks of another railroad company of which de-
fendant was manager, was injured by a defective fog:
Held, that knowing the conditions of the tracks he had
assumed the risks of the employment, as against de-
fendant, as fully as If he had gone on the tracks under
a contract with him. — Wood v. Loocke, 8. J. 0. Mass.,
Nov. 27, 1888; 18 N. B. Elep. 678.

178. Neglioencb— Ordinary Oare— Injury. Degree

of care and diligence ordinarily exacted from persons
crossing railroad tracks. In order to leave or board
railroad train halted for that purpose. — Weeks v. New
Orleans, etc. Co., S. O. La., May 25, 1888; 6 South. Rep. 82.

179. NEGLIOENCB- Trespasser. Rules stated as to

negligence and care -where trespasser on a railroad
track was Injured by an engine moving faster than or-
dinance per^nitted. — Blanchard v. Lake Shore M. S. Ry.
Co., 8. O. 111., Nov. 18, 1888; 18 N. E. Rep. 800.

180. Nbootiablb Note— Accommodation Paper.

F procured for his accommodation the execution to
him of a note by defendant, which he took to plaintiff,
and on the representation that it was regular business

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Voh. 28



paper, whloli he could not get indorsed without an ad-
ditional indoi^er, obtained plaintilTs indowement after
his own, and had it diaoonnted. Upon its protest for
non-payment, plaintiff, as indorser, paid and obtained
possession of it: Held, that in the absence of any evi-
dence that plaintiff assumed the liability of a guaran-
tor, or was jointly liable with defendant, he was entitled
to reooyer from defendant as an indorser for value. —
BeMuurt v, SchaU, Md. Ot. App., Nov. 22, 1888; 16 Atl. Rep.

181. New Trial — Vacation. An extraordinary

motion for a new trial, if made in vacation, without a

. previous order granted in term, derives all its efficacy
and standing from what is subsequently done respect-
ing it in term-time.— BUUock v. Waggoner, 8. O. Ga., Nov.
21, 1888; 8 8. £. Bep. 48.

182. NuiSAKOB— Bailroad Company— Damages. In

an action against a railroad company for damages to
an adjacent land owner caused by noise and smoke
arising from the unlawful management of defendant's
road, evidence as to the difference between the value
of the property with and without the railroad is irrele-
vant. — Thompeon v, Penneylvania R. B. Co., 8. O. N. J.,
Nov. 20, 1888; 16 Atl. Rep. 883.

188. PABTinoM— Mortgage. One who has sold his

interest in lands, taking a mortgage for the purchase
money, which also he has assigned, cannot maintain a
bill for partition and sale of the lands, under Code Md.
' art. 16, § 99 (Code 1878, art. 66, $18), authorizing partition
at the suit of a joint-tenant, tenant in common, par-
cener, or concurrent owner.— i?aiinof» v. Comegye, Md. Ct,
App., Nov. 28, 1888; 10 AU. Rep. 127.

184. PASTinoN — Laches. One who claims land

under partition proceedings in the court of ordinary,
and who, knowing how the land has been divided, fails
to object at the time to the return of the appraisers
appointed to make division, cannot, after the lapse of 14
years, object to the return, and have a new division
made, on the ground that she received less than her
share.— XevereM v. Stephenton, 8 . C. Qa., Dec. 8, 1888; 8 8.
^ B. Rep. 72.

186. Pabtnbbship. Where partners borrow money

for partnership purposes upon their joint and several
note, with the wife of one partner as indorser, she, hav-
ing paid the note, is entitled to recover the amount from
a deceased partner's estate as a separate debt. — /n re
Gray'9 EtUUe, N. Y. Ct. App., Nov. 27, 1888; 18 N. £. Rep.

186. PAKTNBB8H1P — Dissolution — Evidence. A

partnership formed for manufacture of a patent plow,
to continue during the life of the patent: Held, a disso-
lution of the Arm under the facts of the case. —Richard-
eon V. Gregory, 8. 0. Ul., Nov. 15, 1888; 18 N. £. Rep. 777.

187. Pabtnbbship— Settlement— Mistake. Where

partnership settlement is made a mere production of a
check six years thereafter, tending to show error in the
settlement, was not sufBcient to overthrow the formal
settlement. — Appeal of Vomer, 8. 0. Penn., Nov. 5, 1888;
16 Atl. Rep. 96.

188. PABTNBBSUiP-Reoeiver— Attachment. Where

upon suit between partners for a dissolution, the part-
nership property comes into the hands of a receiver^
before one claiming a special lien levies his attachment
upon it, and such claimant desires to vacate the order
appointing the receiver, he must proceed by filing a
petition setting forth the facts upon which he relies to
obtain a vacation of the appointment. — Jaoobeon v,
LandoU, 8. C. WU., Dec. 4, 1888; 40 N. W. Rep. 686.

189. PATBNT8— Infringements. Question of In-
fringement of a patent machine for attaching heel-
plates to rubbers.— ^uftnin^ton v, Hartford, etc, Co,, U. 8.
C. C. (Conn.), Nov. 12, 1888; 36 Fed. Rep. 689.

190. Patbhts- Infringement— Preliminary Injunction.

^ The validity of letters patent, not having been

adjudicated or recognized by the public, a preliminary
Injunction to restrain their infringement will not be
granted in a suit in which the patentable novelty of the
invention Is fairly contested.— Ujpfon v. Wayland, U. S. C.
O. (N, T.), Nov. 8, 1888; 86 Fed. Rep. 691.

191. Patbkts— Infringement— Depositions. Depo-
sitions taken for the applicant for a patent in interfer-
ence proceedings pending in the patent- office may,
upon a proper showing of inability to retake them, be
read upon the hearing of a bill by the successful appli-
cant to declare invalid a patent issued to the contest-
ant, though one of the defendants, assignee of part of
contestant's rights, received his assignment before the
interference proceedings were had, and was not a party
thereto.— (^tot(7 v. Barker, U. 8. 0. O. (Iowa), Nov. 18, 1888:
86 Fed. Rep. 692.

192. Paymbnt — Evidence. Where the decisive

question in an action to quiet title Is whether a note
given for the purchase of the land was intended as an
absolute payment, or as an evidence of debt, and the
evidence is conflicting, a finding that it was merely evi-
dence of debt will not be disturbed. — Frankieh v, SmUh,
8. C. Oal., Dec. 4, 1888; 19 Pac. Rep. 701.

198. PAYMBNT-Negotiable Securities. One F bor-
rowed from G money, givinflc a certificate for shares of
stock in a company worth about $8,000, as collateral se-
curity, it being agreed that if the note was not paid F
was to "transfer such certificate" in payment of the
note: Held, that the non-payment of the note at matu-
rity and the receipt by G of monthly dividends on the
stock did not effect such transfer of the certificate as to
cancel the note.— FuUerton v, MobUy, 8. O. Penn., Oct. 9,^
1888; 16 Atl. Rep. 866. «

194. Patmbnt— Taxes— Presumption. The unsup-
ported testimony of a person alleged to have paid taxes
for seven successive years under color of title is not
sufficient to establish such payment, where he bus no
positive recollection of the fact, but presumes they
were paid from the fact that his agent was instructed to
pay all taxes.- Parry v. Burton, 8. 0. Hi., Nov. 15, 1888; 18

196. PBNALAonONS— RepeaL Gen. St. Colo, ch.98,

S 16, provided that a railroad oompany should file with
the county clerk notice of a station, at which a book
should be kept for entering a description of animals
killed, under a penalty of double damages for any stock
killed. Act March 81, 1886, amended the statute, omit-
ting the soction requiring notice : Held, that the omitted
section was repealed. — Denver <f R. O. Ry. Co, v. Craw-
ford, 8. C. Col., Nov. 16, 1888; 19 Pac. Rep. 673.

196. Plbadinq— Damages. Breach of contract gives-

a right of action, whether special damages be alleged
or not, and, therefore, excluding from the declaration
all averments of special damages, will not warrant the
court in dismissing the action. — Kenny v. Collier, 8. C.
Ga., Nov. 1, 1888; 8 8. £. Rep. 68.

197. PLBADINO— Evasion— Partnership. The state-
ment, in an affidavit of defense, "that defendant com-
pany is not a general partnership, but a limited part-
nership," is evasive, as a denial of the allegation that
**at the time the indebtedness was contracted defend-
ants were doing business as a general partnership, and
had not then become a limited partnership association."
—Laferty v. Sheriff, 8. C. Penn., Nov. 5, 1888; 16 Atl. Rep.

198. Plbading— Evidence— Variance. Sufficiency

of evidence to sustain declaration against a city for
personal injuries. — City ofRoek Island v, Cuinely, 8. C.
IlL, Nov. 16, 1888; 18 N. E. Rep. 763.

199. Plbdob— Notice. As to what facts constitute

sufficient notice to put upon inquiry a pledgee of stock
certificates stolen by pledgor. — Appeal of Oiten, 8. O.
Penn., Nov. 6, 1888; 16 Atl. Rep. 75.

200. Plbdob— Prior Liens. The right of retention

of the thing pledged by the pledgee is not affected by
the session of his property by the debtor, and the fact
that the thing pledged Is subject to a lien of the pur-
chase money does not preclude another creditor from
acquiring possession ; in such case it takes the pledge
subject to prior Hens. — Haynes v. Their Creditort, S. 0.
La., May 26, 1888 ; 6 South. Rep. 68.

201. Pbactiob— Contempt— Mandamus. The judge .

of a district court at chambers cannot legally hear .and




No. 4

xletermine a proseoation in the nature of contempt for
an alleged violation of vhe writ of mandamut, — Jnre
Price, 8. 0. Kan., Nov. 10, 1888; 19 Pac, Rep. 75L

202. Public L\ni>8 — Swamp Lands — Parol ETidence.

Under the provisions of the act of congress of

"September 28» 1860, conferring swamp lands, and the
Michigan act of June 28, 1851, evidence in pais that a
parcel of land was at the date of the first named act of
the qaality tl^^rein described. Is incompetent after the
secretary of the Interior has discharged his duty there-
under. — Chandler v. Caulmei, eto, Co., U. S. 0. 0. (Mich.),
. Nov. 14. 1888; 86 Fed. Rep. 666.

204, QmsTiNO TiTUt— Evidence. A complaint to

•quiet title, alleging a fraudulent conveyance from hus-
band and wife, shows no cause of action where plaintifC
admits that no conveyance was made.— lYirwer v. White,
S. 0. Oal., Nov. 22, 1888; 19 Pac. Rep. 683.

^05. Railboad COMPAN1B8— Statute. The excep-
tion, by implication, to the statute imposing upon rail-
way companies the duty of fencing their tracks, by
which such places as are necessary and convenient for
the use of the public may be left open, cannot be ex-
tended to a siding used merely for the loading of ties,
wood, and piling purchased by the company, and for
the passing of trains, at a point where no depot is
mdintalned, no employee stationed, and where persons
desiring to take passage are obliged to flag the trains
themselves.— Hurtv, St, Paui,etc. Co,, 8. 0. Minn., Dec.
6, 1888; 40 N. W. Rep. 618.

206. Railboad Oompanibs— Contract— Notice.

written agreement by the grantor of the right of way to
a railroad company, to fence it on each side through
bis lands, will not affect the right of a subsequent pur-
chaser to require the company to fence Its road, under
the provisions of§§ 8824 and 8325, Rev. St., where the
purchase was made without actual or constructive
notice of the existence of such agreement.— /^fobtirgr, C
4 St. L. Ry. V. Bonoorth, S. O. Ohio, Nov. 18, 1^8; 18 N. £.
Rep. 638.

207. Railboad Companibs— Bonds— Mortgages. A

railroad company employed a construction company to
build some of its track, agreeing to issue bonds there-
for to a certain amount per mile of track, in Install-
ments, at sections of the work should be completed.
By a subsequent agreement the bonds were delivered
in advance of the building of the track, the construction
•company agreeing to take care of and pay all interest
accruing before the railway became in a condition for
trafHc, and the former agreed to reimburse the latter
for all interest paid, not properly chargeable to it, out
of the first earnings of the road: Held, that the con-
struction company was only bound to pay interest on
so many of the bonds as it received and used to which
it was not entitled under the construction contract. —
Foster v. Mansfield, etc, Co., U. 8. O. 0. (Ohio), Aug. 24,
1888; 86 Fed. Rep. 627.

208. Railboad Companibs— Injury to Stock — Statute.

Code Ala. 1876 §§ 1699, 1702, which renders a railroad

company liable for Injuiies to stock where such inju-
ries result from its failure to comply with the statutory
requirements or other negligence of the company do
not require such negligence to be the sole cause.— fr«<-
•em RaUioayv, Sistrunk, 8. C. Ala., Dec. 4, 1888; 5 South.
Rep. 79.

209. Railboad Companibs- Railroad Commissioners-
Powers. A power conferred by the legislature upon

a board of commissioners, required to be exercised
with reference to the affairs of certain corporations
will, not be extended by Implication; and the acts
which the board attempts to do under the power will
not be upheld, unless the authority to do them Is af-
firmatively shown to be included in it. — Board of BaU'
road Comrs. of Oregon v, Oregon, etc, Co,, 8. C. Oreg., Nov.
5, 1888; 19 Pac. Rep. 702.

210. RBCOBD8— Certificate— Stock -brand. The de-
scription of a horse-brand, followed by a certificate of
the clerk of the county court that it is a true copy of
the record of the brand, fchows, with reasonable cer-

tainty, that it was recorded in that county. — Thou^tson
V. State, Tex. Ct. App., Nov. 28, 1888; 9 8. W. Rep. 760.

211. Rbfebbb— Discretion of Court. Under Code

N. C. § 274, providing for relief against an order in case
of mistake, inadvertence, or surprise, a refusal to re-
open a report of a referee, and recommit the case,
where a party had knowledge that his counsel had
ceased to act for him, and employed no other, is within
the court's discretion, and is not error. — Smith v. Smith,
8. C. N. Car., Dec. 8, 1888; 8 8. E. Rep. 131.

212. Rbmoval of Causes. Where the petition for

removal is filed too late, an order of the State court
purporting to remove the cause to the Uni.ed States
circuit court is erroneous. — Lamblin v. Cox, 8. C. Kan.,
Nov. 7, 1888; 19 Pac. Rep. 709.

218. Rbmoval of Causbs — Procedure — Filing Bond.

•- Under the act of congress for the removal of

causes (March 3, 1867), a filing of the petition and bond
with the clerk of the State court is not sufllcient, as the
court itself has a right to pass upon them. — Shedd v.
Fuller, U. 8. C. C. (Ul.), Nov. 6, 1888 ; 86 Fed. Rep. 609.

214. RBPLBVIN—Bond— Evidence. As to what con-
stitutes efilcient proof in such a replevin bond, that the
goods mentioned therein were those taken. — KeUogg v,
Boyden, 8. C. 111., Nov. 16, 1888; 18 N. E. Rep. 770.

215. Resulting Tbust— Evidence— Improvements.

Evidence admissible to enforce an alleged resulting
XT\xBt,^Kelly v, KeUy, 8. C. 111., Nov. 15, 1888; 18 N. E. Rep.

216. Sale- Confirmation — Bona Fide Purchaser.

It is not necessary to make bona fide purchasers of
property parties to a meritorious working to vacate a
Judgment and set aside a sale under which the property
was irregularly sold. — Welch v. Marks, 8. C. Mlim., Deo.
6, 1888; 40 N. W. Rep. 611.

217. Sale— Brokers — Commissions. Contract of

sale, negotiated by brokers, is not fraudulent because
of an agreement by the seller's broker, unknown to the
seller to share his commissions with the purchaser's
\}ro\i%T,— Louisville N, A, ^ By. Co, v. Diamond State Iron
Co., 8. C. IlL, Nov. 16, 1888; 18 N. E. Rep. 786.

218. Sales— False Representations. ^Where a con-
tract for the sale and placing of machinery in a mill
specifies no time within which It is to be so placed, and
the work is to be done at the purchaser's expense, he
cannot for the purpose of setting off the extra expense
show that an agent of the seller represented that It
would take but four weeks and that it in fact took nine,
where it appeared that the representation was made
after the signing of the contract. — Marsh v, Nordybs v.
Mormon Co., 8. C. Penn., Oct. 29, 1888; 16 Atl. Rep. 876.

219. SoiBE Faoias— Presumption — Payment. In

scire facias on a Judgment it is proper to instruct that
finding the bond on which the Judgment was rendered
among the papers of the deceased obligor, raised a pre-
sumption that he obtained it by payment. — Pater v.
Nelson, S. C. Penn., Oct. 1, 1888; 15 Atl. Rep. 852.

220. SOHOOL Lands— Forfeiture. In order to forfeit

the rights and interest of the purchaser of school lands
on account of his default to pay annual Interest, or the
balance of the purchase money when the same becomes
due, the notice must be given and served in accordance
with the provisions of section 2, ch. 161, Sess. Laws, 1879.
—Hansen v. Wilson, 8. C. Kan., Nov. 10, 1888; 19 Pt.c. Rep.

221. SOHOOL- DiSTRiOTS— Annexation. Act Pa. April

18, 1876, authorlziug the court of quarter sessions to
annex the lands of persons resident In one township or
borough to another township or borough for school
purposes, does not authorize the annexation of land to
a township to which it is not adjacent.— /n re Heidler, 8.
8. C. Penn. Nov. 6, 1888; 16 Atl. Rep. 97.

222. SHIPPING— Carriage of Passengers — Statute.

Rev. St. U. 8. §§ 446* 4466, respecting the number of pas-
sengers that may lawfully be carried by a passengei
steamer, have no application to a ferry-boat, though
temporarily employed as an excursion boat. — Sohwerin

Digitized by


ToL. 28.



9. North Pae, C. S. Co,, U. S. D. 0. (Oal.), Oot. 23, 1888; 86
Fed. Bep. 710.

S28. 8HIPPWO— Oarrtage of Goods. Upon libel for

-damage alleging neglige ace and want of proper care in
stowing cargo, n recovery can be had for damage by

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