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to); 98 C. 409, 411, 33 P. 325, 326 (referred to); 117 C. 140, 155,
48 P. 1025 (referred to); 139 C. 362, 367, 73 P. 182 (referred to).

§3451. CERTAIN TKAXSFERS NOT AFFECTED. The

provisions of this title do not prevent a person residing in
another state or country from making there, in good faith,
and without intent to evade the laws of this state, a transfer
of property situated within it; but such person cannot make
a general assignment of property situated in this state for
the satisfaction of all his creditors, except as in this title
provided; nor do the provisions of this title affect the power
of a person, although insolvent, and whether residing within
or without this state, to transfer property in this state, in
good faith to a particular creditor, or creditors, or to some
other person or persons in trust for such particular creditor
or creditors for the purpose of paying or securing the whole
or part of a debt owing to such creditor or creditors, whether
in his or their own right or otherwise.

HiHtory: Enacted March 21, 1872; amended March S. 188J.
Stats, and Amdts. 1889, p. 82; amended by Code Commission.
Act March 16. 1901, Stats, and Amdts. 1900-1, p. 422. held uncon-
stitutional, see history, § 4 ante, amendment re-enacted March
21, 1905, Stats, and Amdts. 1905. p. 622.

1689



§§3452,3453 CIVIL CODE. [Div.IV,Pt.II.

See Kerr's Cyc. C. C. for 6 pars, annotation.

83 C. 303, 309, 23 P. 350, 352; 98 C. 409, 411, 33 P. 325, 326 (re-
ferred to); 126 C. 43, 50, 77 A. S. 141, 58 P. 320, 46 L. 832 (con-
strued); 139 C. 362, 366, 73 P. 182, 183 (referred to); 3 C. A. 294,
298, 85 P. 134 (cited).

As to assignment made in another state, effect of on resident
attaching creditors, see 78 A. D. 596.

As to effect of assignment under foreign bankruptcy laws, see
55 A.^D. 132-140.

As to extraterritorial effect of assignment, see 97 A. D. 355,
678, 98 A. D. 594-597.

As to foreign bankruptcy, assignment under, effect of, see 7
A. D. 591, 8 A. D. 597; 17 A. D. 769; 20 A. D. 963.

As to foreign creditor not permitted to attack assignment, see
55 A. R. 136.

As to transfer of property out of state by assignment for
benefit of creditors, see 23 L. 33.

As to validity of assignment for benefit of creditors in an-
other state, see 78 A. D. 594; 97 A. D. 355, 678.



§3452. WHAT DEBTS MAT BE SECURED. An assign-
ment for the benefit of creditors may provide for any sub-
sisting liability of the assignor which he might lawfully pay,
whether absolute or contingent.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 6 pars, annotation.

98 C. 409, 411, 33 P. 325, 326 (referred to); 128 C. 103, 107, 60
P. 675; 139 C. 362, 367, 73 P. 182 (referred to); 3 C. A. 358, 363,
85 P. 169 (transfer to ex-director of insolvent corporation not
coming within this section).

As to preferences among creditors, lawful and unlawful, see
34 A. S. 856, 857, 94 A. S. 230.

As to void assignment for prohibited preferences, see 58 A. S.
87, 88.



§3453. WHAT PREFERENCES MAT BE GIVEN (re-
pealed).

Hi.story: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 267.

98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73
P. 182 (referred to); 3 C. A. 294, 298, 85 P. 134 (cited).

1690



Tit III ] VOID ASSIGNMENT. §§ 3454-3457

§3454. PREFERENCE MUST BE ABSOLUTE (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 267.

98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73
P. 182 (referred to).

§3455. CERTAIN RIGHTS NOT AFFECTED B¥ PREF-
ERENCES IN ASSIGNMENT (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 267.

98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73
P. 182 (referred to).

§3456. JOINT AND SEPARATE DEBTS (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Anidts. 1S73-4, p. 267.

98 C. 409, 411, 33 P. 325, 326 (referred to); 139 C. 362, 367, 73
P. 182 (referred to).

§3457. ASSIGNMENT, ^VHEN VOID. An assignment for
the benefit of creditors is void against any creditor of the
assignor not assenting thereto, in the following cases:

1. If it give a preference of one debt or class of debts over
another.

2. If it tend to coerce any creditor to release or compro-
mise his demand.

3. If it provide for the payment of any claim known to the
assignor to be false or fraudulent; or for the payment of
more upon any claim than is known to be justly due from
the assignor.

4. If it reserve any interest in the assigned property, or
in any part thereof, to the assignor, or for his benefit, before
all his existing debts are paid.

5. If it confer upon the assignee any power which, if
exercised, might prevent or delay the immediate conversion
of the assigned property to the purposes of the trust.

6. If it exempt him from liability for neglect of duty or
misconduct.

1691



§ 3458 CIVIL CODE. [Div.IV.Pt.II.

History: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 267-8.

See Kerr's Cyc. C. C. for 18 pars, annotation.

85 C. 134, 135, 24 P. 721, 722 (referred to); 87 C. 453, 456, 457,
25 P. 675, 676 (referred to); 98 C. 409, 411, 33 P. 325, 326 (re-
ferred to); 108 C. 81, 85, 87, 41 P. 29 (cited); 113 C. 429, 431, 45
P. 703, 131 C. 625, 627, 63 P. 1008 (referred to); 139 C. 362, 367,
73 P.-lSf (referred to).

-As to when an assignment for the benefit of creditors is
deemed fraudulent, and effect of the fraud on the assignment,
see 58 A. S. 74-101.

Assignments exacting releases, validity of, see 16 A. D. 340-
342.

Tliat a debtor may prefer creditors, see Kerr's Cyc. C. C. § 3432
and note.

Tliat preferential transfers by special partnersliips are void,
see Kerr's Cyc. C. C. § 2496 and note.



§3458. THE INSTKmiENT OF ASSIGNMEXT. An as-
signment for the benefit of creditors must be in writing, sub-
scribed by the assignor, or by his agent thereto authorized
in writing, and the transfer by the sheriff must also be in
writing, subscribed by the sheriff in his official capacity.
Both such assignment and such transfer must be acknowl-
edged, or proved and certified, in the mode prescribed by
the chapter on recording transfers of real property, and be
recorded as required by sections thirty-four hundred and
sixty-three and thirty-four hundred and sixty-four; but
recording in one county constitutes a compliance with the
following section.

History: Enacted March 21, 1872; amended March 7, 1889,
Stats, and Amdts. 1889, p. 82.

See Kerr's Cyc. C. C. for 7 pars, annotation.

98 C. 409, 411, 33 P. 325, 326 (referred to as it stood before
amendment); 104 C. 395, 399, 38 P. 53 (cited); 139 C. 362, 367, 73
P. 182 (referred to); 144 C. 511, 515, 78 P. 30 (cited).

As to constructive notice, see Kerr's Cyc. C. C. §§ 1213 et seq.
and notes.

As to subsequent purchasers, rights of, etc., see Kerr's Cyc.
C. C. § 1170 and note.

1692



Tit.III.] ASSIGNEE'S TITLE. §§ 3459-3461

§3459. COMPLIANCE WITH PROVISIONS OF LAST
SECTION NECESSAEY TO VALIDITY OF ASSIGNMENT.

Unless the provisions of the last section are complied with,
an assignment for the benefit of creditors is void against
every creditor of the assignor not assenting thereto.

History: Enacted March 21, 1872.

See Kerr's Cj'c. C. C. for 4 pars, annotation.

98 C. 409, 411. 33 P. 325, 326 (referred to as it stood before
amendment); 139 C. 362, 367, 73 P. 182 (referred to); 144 C. 511,
515, 78 P. 30.

As to provisions relating- to recording transfers of real prop-
erty, see Kerr's Cyc. C. C. §§ 1213-1217 and notes.

As to recording of assignment for benefit of creditors, see 51
A. D. 594.

§3460. ASSIGNEE TAKES, SUBJECT TO BIGHTS OF
THIED PAETIES. An assignee for the benefit of creditors
is not to be regarded as a purchaser for value, and has no
greater rights than his assignor had, in respect to things
in action transferred by the assignment.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 17 pars, annotation.

98 C. 409, 411, 33 P. 325, 326 (referred to); 128 C. 103, 106, 60
P. 675 (referred to); 139 C. 362, 367, 73 P. 182 (referred to).

As to assignee not a purchaser for value, see 72 A. D. 483.

As to assignee's right to sue elsewhere, see 55 A. R. 130, 138-
140.

As to attachment of property in hands of assignee for cred-
itors, see 26 L. 593.

As to preferences between creditors, see Kerr's Cyc. C. C.
§§ 3432, 3433, 3451 and notes.

As to right of assignee of creditors to compromise claims in
general, see 23 L. 578.

§3461. INVENTOBY BEQUIBED. Within twenty days
after an assignment is made for the benefit of creditors, the
assignor must make and file, in the manner prescribed by
section thirty-four hundred and sixty-three, a full and true
inventory, showing:

1. All the creditors of the assignor;

1693



§ 3461 CIVIL CODE. [Div.IV.Pt.II.

2. The place of residence of each creditor, if known to the
assignor; or if not known, that fact must be stated;

3. The sum owing to each creditor and the nature of each
debt or liability, whether arising on written security, account,
or otherwise;

4. The true consideration of the liability in each case, and
the place where it arose;

5. Every existing judgment, mortgage, or other security
for the payment of any debt or liability of the assignor;

6. All property of the assignor at the date of the assign-
ment, which is exempt by law from execution; and,

7. All of the assignor's property at the date of the assign-
ment, both real and personal, of every kind, not so exempt,
and the encumbrances existing thereon, and all vouchers
and securities relating thereto, and the value of such prop-
erty according to the best knowledge of the assignor.

History; Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 10 pars, annotation.

78 C. 263, 267, 20 P. 561 (construed and applied); 80 C. 542,
543, 22 P. 219 (construed and applied with other sections); 82
C. 607, 610, 23 P. 116, 117 (construed and applied); 85 C. 134,
135, 136, 24 P. 722 (construed and applied); 87 C. 453, 460, 25
P. 675, 677 (construed and applied); 31 P. 568, 569 (cited); 98
C. 409, 411, 412, 33 P. 325, 326 (referred to with other sections);
37 P. 224 (referred to); 108 C. 81, 86, 87, 41 P. 29 (applied with
other sections); 139 C. 362, 367, 73 P. 182 (referred to with
other sections).

As to assignment by partnership, see 10 L. 521.

As to creditors availing themselves of assets without prefer-
ence, see Kerr's Cyc. C. C. § 3449 and note par. 7.

As to perjury for making false oath to inventory of creditors,
see Kerr's Cyc. Pen. C. § 123 and note.

As to property which passes by deed of assignment, see 2 A.
S. 26.

As to recitals of assignment, see 13 L. 693.

As to reservation of property, invalidating assignment, see
2 A. S. 24.

As to reservations rendering assignment void, see 15 A. D. 556;
23 A. D. 71; 26 A. D. 247, 586; 74 A. D. 773.

As to surplus after payment of assenting creditors' claims,
reservation of, see 58 A. S. 78, 79.

As to what property ■ does not pass by assignment, see 3 L.
822.

1694



Tit.III.] INVENTORY, VERIFICATION. § 3462

§3462. VERIFICATION OF IjNYEMORY. An affidavit
must be made by every assignor executing an assignment
for the benefit of creditors, to be annexed to and filed with
the inventory mentioned in the last section, to the effect that
the same is in all respects just and true according to the
best of such assignor's knowledge and belief. If the assignor
neglects or refuses to make and file such inventory and
affidavit within said twenty days, the assignment shall not,
for that reason, be affected in any way, but in that event
the assignee or assignees elected by the creditors shall
within twenty days thereafter make and file in the office of
the county recorder where the assignment is first recorded,
a verified inventory of all assets received by them;

[Citation by court to apjieur, etc.] and such assignee or
assignees may at any time, or from time to time, after
the transfer to them by the sheriff, by petition to the supe-
rior court of the county [,] or city and county [.] where the
assignment is first recorded, cause the assignor, by order
or citation [,] to appear before said court, or a commissioner
or referee to be appointed by it, at a time and place within
the county, or city and county, to be designated in the order
or citation, to be examined touching the matters mentioned
in section three thousand four hundred and sixty-one, and
any other matters relative to the assignment, and to have
with him all books of account, vouchers, and papers relating
to the assigned property; and such court may by its order
require the surrender to such assignee or assignees of such
books, vouchers, and papers, to be by them retained until
their trust is fully completed and performed.

History: Enactod Marcli 21, 1872; amended March 7. 1SS9.
Stats, and Amdts. 1889, p. 82-3.

See Kcrr'.s Cyc. C. C. for 3 pnrs. annotation.

80 C. 542, 543, 22 P. 219 (construed and applied witli ntlior
sections); 82 C. 607, 610, 23 P. 116, 117 (construed and applied);
87 C. 453, 455, 459, 460, 25 P. 675. 677 (construed and applie.l);
31 P. 568, 569 (cited); 98 C. 409, 411, 33 P. 325. 326 (referred to
with other sections); 108 C. 81, 86. 87. 41 P. 29 (applied with
other sections); 139 C. 362, 367. 73 P. 182 (referred to with other
sections).

1695



§§ 3463, 3464 CIVIL CODE. [Div.IV,Pt.II.

As to false inventory, when constitutes perjury, see Kerr's
Cyc. C. C. § 3461 and note pars. 6, 7.

As to sufficiency of schedule and affidavit, see 3 L. 139; 12 L.
809.

§ 3468. RECORDING ASSIGNMENT AND FILING INVEN-

TORY. An assignment for the benefit of creditors must be
recorded, and the inventory required by section thirty-four
hundred and sixty-one filed with the county recorder of the
county in which the assignor resided at the date of the
assignment; or, if he did not then reside in this state, with
the recorder of the county in which his principal place of
business was then situated; or, if he had not then a resi-
dence or place of business in this state, with the recorder
of the county in which the principal part of the assigned
property was then situated.

History: Enacted March 21, 1872.

80 C. 542, 543, 22 P. 219 (construed and applied with other
sections); 87 C. 453, 460, 25 P. 675, 677 (affidavit seems to be
essential to validity of assignment); 98 C. 409, 411, 33 P. 325,
326 (referred to with other sections as they stood before
amendment); 35 P. 646, 647, reversed on hearing in banc, 104
C. 395, 38 P. 53 (construed and applied); 104 C. 395, 399, 38 P.
53 (construed and applied); 108 C. 81, 86, 87, 41 P. 29 (applied
with other sections); 139 C. 362, 367, 73 P. 182 (referred to with
other sections).

§ 3464. SAME. MORE THAN ONE ASSIGNOR RECORD-

ING ASSIGNMENT. If an assignment for the benefit of cred-
itors is executed by more than one assignor, it may be re-
corded, and a copy of the inventory required by section thirty-
four hundred and sixty-one may be filed with the recorder
of the county in which any of the assignors resided at its
date, or in which any of them, not then residing in this state,
had then a place of business.

History: Enacted March 21, 1872.

80 C. 542, 543, 22 P. 219 (construed and applied with other
sections); 98 C. 409, 411, 412, 33 P. 325 (referred to with other
sections); (C. Jan. 26, 1894), 35 P. 646, 647, reversed on hearing
in banc, 104 C. 395, 399, 38 P. 53 (construed and applied); 108 C.

1696



Tit.III.] VOID ASSIGNMENT. §§ 3465, 3466

81, 86, 87, 41 P. 29 (applied with other sections); 139 C. 362, 367,
73 P. 182 (referred to with other sections).

As to object of recording and purposes of this and preceding
section, see Kerr's Cyc. C. C. § 3458 and note pars. 2, 3.



§3465. ASSIGNME^'T, WHEN VOID. An assignment for
the benefit of creditors is void against creditors of the as-
signor and against purchasers and encumbrancers in good
faith[,] and for value[,] unless it is recorded as provided
in this title, and unless either the inventory required by sec-
tion three thousand four hundred and sixty-one, or the
inventory required of the assignee or assignees by section
three thousand four hundred and sixty-two[,] is filed in the .
manner provided in this title and within the time designated.

History: Enacted March 21, 1872; amended February 25,
1878, Code Amdts. 1877-8, p. 90; March 7, 1889, Stats, and Amdts.
1889, p. 83.

See Kerr's Cyc. C. C. for 3 pars, annotation.

80 C. 542, 543, 22 P. 219 (construed and applied with other sec-
tions) ; 85 C. 134, 135, 24 P. 722 (construed and applied); 87 C.
453, 460, 25 P. 675, 677 (affidavit seems to be essential to validity
of assignment); 98 C. 409, 411, 412, 33 P. 325, 326 (referred to as
it stood before amendment); (C. Jan. 26, 1894), 35 P. 646. 647.
651. reversed on hearing in banc. 104 C. 395. 38 P. 53 (construed
and applied); 108 C. 81. SG. 87. 41 P. 29 (applied with other
sections); 139 C. 362. 367, 73 P. 182 (referred to with otlier sec-
tions).

§3466. ASSI(i>3It\T OK KE.VL PROPERTY. Where an
assignment for the benefit of creditors embraces real prop-
erty, it is subject to the provisions of article four of the
chapter on recording transfers, as well as to those of this
title.

IliNtory: Enacted Marcli 21, 1S72.

See Kerr's Cyc. C. C. for 7 pars, annotation.

80 C. 542, 543, 22 P. 219 (construed and applied with other sec-
tions); 98 C. 409. 411, 412. 33 P. 325. 326 (referred to as It stood
before amendment): 104 C. 395, 398. 38 P. 53 (construed and ap-
plied); 108 C. 81. 86. 87. 41 P. 29 (applied with other sections);
139 C. 362, 367. 73 P. 182 (referred to with other sections).
Kerr's C. C— 54 1697



§§3467,3468 CIVIL CODE. [Div.IV,Pt.II.

§3467. BOND OF ASSIGNEES. No bond shall be given
by the sheriff, but he shall be liable on his official bond for
the care and custody of the property while in his possession.
Within forty days after date of the transfer by the sheriff,
the assignee must enter into a bond to the people of this
state in such amount as may be fixed by a judge of the supe-
rior court of the county, or city and county, in which an
inventory in accordance with the provisions of this title is
filed, with sufficient sureties to be approved by such judge
and conditioned for the faithful discharge of the trust and
the due accounting for all moneys received by the assignee,
which bond must be filed in the same office with the inven-
tory; and any assignee failing to comply with tlie provisions
of tliis section may be removed by the above-named superior
court on petition of the assignor or any creditor, and his
successor appointed by such court.

History: Enacted March 21, 1872; amended February 15,
1883, Stats, and Amdts. 1883, p. 2; March 7, 1889, Stats, and
Amdts. 1889, p. 83.

See Kerr's Cyc. C. C. for 7 pars, annotation.

80 C. 542, 543, 22 P. 219 (construed and applied with other
sections); 31 P. 568, 569 (cited — necessity of bond); 98 C. 409,
410, 411, 414, 33 P. 325, 326, 327 (referred to with other sections);
35 P. 646, 647 (referred to); 104 C. 395, 398, 38 P. 53 (referred
to); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections);
139 C. 362, 367, 73 P. 182 (referred to with other sections).

As to bond of assignee in general, see 7 L. 403; 11 L. 852.

§.3468. CONDITIONS OF DISPOSAL AND CONVERSION.

Until a verified inventory has been made and filed, either by
the assignor or assignee, as required by the provisions of
this title, and the assignee has given the bond required by
the last section, such assignee has no authority to dispose
of the property of the estate, or any part of it (except in
the case of perishable property, which in his discretion he
may dispose of at any time, and receive the proceeds of sale
thereof) ; nor has he power to convert the property, or the
proceeds of any sale of perishable property, to the purposes
of the trust.

1698



Tit.III.] PUBLICATION BY ASSIGNEE. § 3468

[Publication by assignee.] Within ten days after the filing
of his bond, the assignee must commence the publication
(and such publication shall continue at least once a week
for four weeks), in some newspaper published in the county,
or city and county, where the inventory is filed, of a notice
to creditors of the assignor, stating the fact and date of the
assignment, and requiring all persons having claims against
the assignor to exhibit them, with the necessary vouchers,
and verified by the oath of the creditor, to the assignee, at
his place of residence or business, to be specified in the
notice; and he shall also, within ten days after the first pub-
lication of said notice, mail a copy of such notice to each,
creditor whose name is given in the instrument of assignment,
at the address therein given. After such notice is given, a
copy thereof, with affidavit of due publication and mailing,
must be filed with the county recorder with whom the inven-
tory has been filed, which affidavit shall be prima facie evi-
dence of the facts stated therein.

[Dividends.] At any time, or from time to time, after the
expiration of thirty days from the first publication of said
notice (provided, the same shall also have been «iailed as in
this section provided), the assignee may, in his discretion,
declare and pay dividends to the creditors whose claims have
been presented and allowed. No dividend already declared
shall be disturbed by reason of claims being subsequently
presented and allowed; but the creditor presenting such
claims shall be entitled to a dividend equal to the per cent
already declared and paid, before any further dividend is
made; provided, however, that there be assets sufficient for
that purpose; and provided, that the failure to present such
claim shall not have resulted from his own neglect, and he
shall attach to such claim a statement, under oath, showing
fully why the same was not before presented.

When a creditor lias a iiiorttiatre or pledse of real or per-
sonal property of the debtor, or a lien thereon, for securing
the payment of a debt owing to him from the debtor, and
shall not have conveyed, released, or delivered up such

1699



§ 3469 CIVIL CODE. [Div.IV,Pt.II.

security to the sheriff, as provided for by section three thou-
sand four hundred and forty-nine of this code, he shall be
admitted as a creditor only for the balance of the debt after
deducting the value of such mortgage, pledge, or lien, to be
ascertained by agreement between him and the assignee, or
by a sale thereof, to be made in such manner as the superior
court of the county in which the assignment is made shall
direct; or the creditor may release or convey his claim to
the assignee upon such property, and be admitted to prove
his whole debt.

[Right of redemptiou.] If the value of the property ex-
ceeds the sum for which it is so held as security, the assignee
may release to the creditor the debtor's right of redemption
thereon on receiving such excess; or he may sell the prop-
erty, subject to the claim of the creditor thereon; and in
either case the assignee and creditor, respectively, shall exe-
cute all deeds and writings necessary or proper to consum-
mate the transaction. If the property is not sold or leased,
and delivered up, the creditor shall not be allowed to prove
any part of his debt.

History: Enacted March 21, 1872; amended March 7, 1889,
Stats, and Amdts. 1889, p. 83; March 26, 1895, Stats, and Amdts.
1895, pp. 84, 85.

80 C. 542, 543, 22 P. 219 (construed and applied with other
sections); 98 C. 409, 412, 33 P. 325, 326 (referred to with other
sections); 108 C. 81, 86, 87, 41 P. 29 (applied with other sections);
139 C. 362, 367, 73 P. 182 (referred to with other sections); 144
C. 511, 517, 78 P. 30 (construed and applied with other code
sections).



§3469. ACCOUNTING OF ASSIGNEE. After six months
from the date of an assignment for the benefit of creditors,
the assignee may be required, on the petition of any creditor,
to account before the superior court of the county where
the accompanying inventory was filed in the manner pre-
scribed by the insolvent laws of this state.

History: Enacted March 21, 1872; amended February 15,
1883, Stats, and Amdts. 1883, p. 3.

1700



Tit.IIT.] EXEMPT PROPERTY — PAY. §§ 3470-3472

See Kerr's Cyc. C. C. for 7 pars, annotation.

98 C. 409, 412, 33 P. 325, 326 (referred to with other sections);
108 C. 81, 86, 87, 41 P. 29 (applied with other sections); 139 C.
362, 367, 73 P. 182 (referred to with other sections).

§3470. PROPERTY EXEMPT. Property exempt from



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