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Depot grounds — What are, within the meaning of fence laws.
— See 7 L. N. S. 203; also 3 W. & P. 2005.

Discrimination by, when reasonable and lawful, and when
not.— See 11 A. S. 647.

Distinction between street-railroads and commercial rail-
roads. — See 4 A. C. 449.

Dogs — Duty of railroad company with respect to on track. — ■
See 6 L. N. S. 911; also "Trespassers," this note.

Dominion of stations and grounds.- — See 8 L. 753.

Draining district — Taking railroad lands for. — See 2 L. N.
S. 227.

Duty — And liability toward one who goes upon its property
to pass around a train blocking the crossing. — See 5 L. N. S. 775.

Same — As to signals by locomotives approaching overhead
crossings. — See 1 L. N. S. 307.

Same — Of train-men on observing object on track, character
of which is unknown but which is a trespasser helpless. — See

2 L. N. S. 498.

Same — Of traveler on highways to use his senses of sight,
hearing, etc., to avoid dangers at crossings.— See 90 A. D. 780.

Same — Owed to one who, with company's permission, uses
private crossing constructed by it. — See 7 L. N. S. 597.

Same — To anticipate presence of trespassing children on
track. — See 4 A. C. 680.

Same — To furnish employees with safe means and appliances
with which to work. — See 92 A. D. 218.

Same — To give signals at other than grade crossings. — See

3 A. C. 361.

Same — To keep lookout for animals on track or fenced roads
or where no duty to fence exists. — See 3 A. C. 891.

Same — To keep lookout for trespassers on track. — See 8 L.
N. S. 1069-1083.

293



§ 454 CIVIL CODE. [Div.I,Pt.IV.

Same — To maintain and operate gates at crossings. — See 3
A. C. 449.

Same — To maintain flagman at crossings in absence of stat-
ute. — See 4 A. C. 294.

Same — To maintain looltout on railroad train.— See 25 L. 287-
291; 55 L,. 418.

Same — To moderate speed of train where trespassers are to
be anticipated. — See 11 L. N. S. 352.

Same- — To stop, look, and listen — At railroad crossings where
flagman is situated. — See 10 A. C. 418.

Same — Same — Duty of driver of fire apparatus to. — See 7 A.
C. 352.

Same — Same — Failure of railroad company to give statu-
tory signals as excusing. — See 6 A. C. 708.

Same — Same — Presence of gates at crossings as excusing
traveler from. — See 7 A. C. 801.

Same — Same — Reasonable belief that no train is approaching
as relieving traveler of imputation of negligence per se. — See
9 A. C. 216.

Same — With respect to dogs on track. — See 6 L. N. S. 911.

Electricity — Right to use as motive power. — See 5 A. C. 553.

Elevated, damages for operating in the public streets. — See
26 A. S. 500.

Emission of smoke, soot, cinders and coal dust as a nui-
sance. — See 9 L. 712.

Employees, when chargeable with knowledge of tlie condi-
tion of the road. — See 47 A. R. 430.

Estate or interest acquired in land purchased for riglit of
way.— See 6 A. C. 242.

Exclusive privileges on depot grounds. — See 2 A. C. 190.

Fence — Corporations need not erect unless required by stat-
ute. — See 7 A. R. 47.

Same — Duty to construct. — See 5 L. 737; 8 L. 135; 11 L. 426;
12 L. 180; 25 L. 320.

Same — Gates, duty to keep in. — See 49 L. 625.

Same — Measure of care of company to maintain after con-
struction. — See 11 L. N. S. 228.

Same — On depot grounds. — See 5 L,. 737.

Fence laws — What are depot grounds within the meaning
of.— See 7 L. N. S. 203; also 3 W. & P. 2005.

Fires — ^Duty to avoid and liability for. — See 1 L. N. S. 533;
5 L. N. S. 99; 10 L. N. S. 175; 12 L. N. S. 382; 12 L. N. S. 472;
12 L. N. S. 526; 12 L. N. S. 624.

Same — Liability for when caused by coals or sparks from
locomotives. — See 38 A. D. 70; 78 A. D. 185; 6 A. R. 597.

Same — Liability of company for setting out. — See 1 L. 625;

294



Titlll.ch.L] RAILROADS, GENERALLY. § 454

3 L. 639; 5 L. 591; 9 L. 750; 9 L. 824; 11 L. 506; 18 L. 449; 21
L. 262.

Same — Same — Constitutionality of statute imposing absolute
liability for.— See 25 L. 161.

Same — Same — Presumption as to negligence in case of. — See
15 L. 40.

Same — Statute imposing liability for, whether constitutional.
—See 42 A. S. 538.

Fire apparatus — Duty of driver of to stop, look, and listen
at crossings. — See 7 A. C. 352.

Flagman — Duty of railroad to maintain at crossings in ab-
sence of statute. — See 2 A. C. 449; also "Crossings," this note.

Flying switch — Making, as negligence. — See 10 A. C. 1015.

Foreign railroad — Liability to attachment or garnishment of
cars. — See 2 A. C. 349.

Same — Rights of in state. — See 24 L. 313.

Franchises and property of, power of to transfer. — See 75 A. ■
D. 548.

Free passes, risks assumed by acceptors of. — See 57 A. R. 388.

Frightening horses — Liability of company for personal in-
juries caused by. — See 3 A. C. 1070; 10 A. C. 302.

Same — On highway by engine, etc., on or near crossing, lia-
bility for. — See 3 L. N. S. 111.

Garnishment — Liability of foreign railroad to. — See 2 A. C.
349.

Same — Of cars of foreign railroad company. — See 2 A. C. 347,
349; 9 A. C. 437.

Gates — At crossings — Duty of railroad company to maintain
and operate. — See 2 A. C. 449.

Same — Duty to keep in fences. — See 9 L. 625.

Saine — Power of municipality to require at crossings. — See
3 L. N. S. 141.

Implied power of railroad to engage in or guarantee enter-
prise other than transportation of goods or passengers. — See
2 L. N. S. 887.

Imputation of contributory negligence of driver to occupant
of vehicle. — See 5 A. C. 163.

In highways — Liability to abutting owner for mutilating
trees, etc. — See 12 L. N. S. 1125.

Injunction against, as nuisances, in suit by municipality. — See
44 L. 565.

Injuries — By train at crossing. — See "Crossings," this note.

Same — Caused by objects thrown from moving train, liability
of railroad company for. — See 6 L. N. S. 581.

Same — Which wrongful acts of are deemed the proximate
cause of. — See 41 A. R. 53.

Same — To animals. — See "Animals," this note.

295



§ 454 CIVIL CODE. [Div.I,Pt.IV.

Same — To property and interference with rights of others.—
See 2 L. 542; 3 L.. 565; 9 L. 712; 17 L. 221; 40 L. 593; 59 L. 863;
70 L. 585.

Joint traffic arrangements, power of the states to compel the
entering into. — See 89 A. S. 527.

Land-owner's right to damages for obstruction of street or
highway by railroad adjacent to his property. — See 9 L. N. S
496.

Lateral railroad — What within charter-power to build. —
See 12 L. N. S. 326.

Lease as affecting liabilities of. — See 7 L. 344; 10 L. 794.

Leasing their property, liability of afterward. — See 48 A. R.
580.

Legalization of nuisances injuriously affecting private prop-
erty. — See 1 A. C. 625.

Legislative control — Charter rights of subject to. — See 9 L.
754.

Lessee of railroad — Liability of lessor for negligent or illegal
operation by. — See 2 A. C. 861; 10 A. C. 350.

Same — Proper pleading in action against railroads for dam-
ages caused by its lessee. — See 9 A. C. 682.

Lessor — Liability of to persons other than lessees. — See 58 A.
S. 147.

Liability — For assaults made by their employees on passen-
gers. — See 41 A. R. 340.

Same — For conducting surface water through to embank-
ments and on to the property of an adjoining owner.- — See 12
L. N. S. 680.

Same — For frightening horses on highway by engine, etc., on
or near crossing. — See 3 L. N. S. 111.

Same — For injuries inflicted in removing trespassers from
train. — See 1 A. C. 775.

Same — For injury or loss of baggage. — See 7 A. C. 57; 9 A.
C. 199.

Same^ — For injury to animals. — See 3 A. C. 274; 3 A. C. 590;
8 A. C. 417.

Same — For killing dog. — See 3 A. C. 275.

Same — For personal injuries by objects thrown from moving
train. — See 6 L. N. S. 581.

Same — For personal injuries caused by frightening of horses
by train or cars. — See 3 A. C. 1070; 10 A. C. 302.

Same — For personal injuries due to employees. — See 60 A.
R. 880.

Same — For physicians and siirgeons attending injured ena-
ployees. — See 1 A. S. 199.

Same — For private nuisance. — See 1 L. N. S. 62.

Same — For torts of their lessees. — See 71 A. D. 295.

296



Tit.III.ch.I.] RAILROADS, GENERALLY. § 454

Same — Of cars of foreign railroads to attachment or garnish-
ment. — See 2 A. C. 349.

Same — Of lessee or licensee to its servants for condition of
track. — See 6 L. N. S. 787.

Same — Of lessor of railroad — For injuries caused by negli-
gence of lessee or licensee. — See 44 L. 737.

Same — Same — For negligent or illegal operation by lessee. —
See 2 A. C. 861; 10 A. C. 350.

Same — Same — Proper pleading in action against railroad to
recover damages caused by lessee. — See 9 A. C. 682.

Same — Of purchaser of railroad on personal contracts of old
corporations. — See 6 A. C. 85.

Same — Of right of way to assessment for local improvements.
—See 12 L. N. S. 112.

Same — Of sleeping car company for loss of passenger's prop-
erty left by him in berth while temporarily absent therefrom. —
See 10 A. C. 895.

Same — Rimning train in violation of speed law for injury to
trespassers. — See 5 A. C. 1007.

Same — To persons with whom they have no contract rela-
tions but who are lawfully on their tracks, cars, or premises. —
See 90 A. D. 55.

Same — While in the hands of trustees or receivers. — See 5 A.
S. 313.

Lien — For charges on goods tortiously delivered to it. — See
3 A. C. 1095.

Same — For demurrage. — See 3 A. C. 1092; 4 A. C. 12, 15; 5 A.
C. 387, 388; 7 A. C. 960; 9 A. C. 790.

Low bridges, liability of for injuries to employees by. — See
53 A. R. 699.

Making flying switch as negligence. — See 10 A. C. 1015.

Mandamus to compel to perform public duty required by its
charter.— See 37 A. S. 321; 12 L. 180.

"Materials," construction of word as used in statute given
mechanics' lien for materials furnished for railroad construc-
tion.— See 9 A. C. 309; also 5 W. & P. 4409-4412.

Measure — Of care of to maintain fence once constructed. —
See 11 L. N. S. 223.

Same — Of damages for breach of contract by railroad to erect
depot.— See 4 A. C. 99.

Mechanics' lien laws, applicable to railroads. — See 5 A. C.
433; 7 A. C. 267, 269; 10 A. C. 372, 374.

Mortgages — After-acquired property which is covered by. — See
99 A. S. 252.

Same — Of propertj' — What included, foreclosure. — See 1 L. 334;
5 L. 566; 6 L. 44; 9 L. 140; 32 L. 208; 69 L. 682.

Same — Subsequent claims which take precedence of. — See 54
A. S. 400.

297



§ 454 CIVIL CODE. [Div.T.Pt.IV.

Same — What included within. — See 38 A. R. 353.

Motive power tliat may be used by. — See 2 L. N. S. 138.

Same — Electricity as a. — See 5 A. C. 53.

Municipal ordinances, requiring railroad to maintain gates
or flagman at crossings, validity of. — See 5 A. C. 301.

Negligence — Contributory — Of passengers in riding on plat-
forms, etc.— See 37 A. R. 710; 41 A. R. 347.

Same — Same — Of passenger in jumping from moving train. —
See 56 A. R. 842.

Same — Same — Of persons not looking for approach of cars. —
See 51 A. R. 360.

Same — In allowing view at crossings to be obstructed by trees,
etc., on its right of way. — See 10 A. C. 485.

Same — In permitting obstructions on right of way which ob-
scure view of track from highway crossing. — See 12 L. N. S. 1067.

Same — Speed of train as evidence of. — See 53 A. R. 52.

Negligent construction. — See 3 A. C. 201; 3 A. C. 1065.

New highways — Validity of statute requiring railroad to con-
struct and maintain crossings at without compensation. — See 8
A. C. 1056.

Notice to purchasing railroad company to construct culverts
where road originally constrvicted without them, necessity for. —
See 12 L. N. S. 571.

Nuisance — Emission of smoke, soot, cinders, etc., as a. — See
9 L. 712.

Same — In injunction against as a, in suit by municipality. —
See 44 L. 565.

Same — Injuriously affecting private property — Legalization of.
—See 1 A. C. 625.

Same — Liability for private. — See 1 L. N. S. 62.

Same — Statutory authority to commit by construction and
operation. — See 70 L. 585.

Ordinance — As to operation — Violation of as ground for pri-
vate action. — See 5 L. N. S. 186.

Passenger — ^Alighting from trains, right of and duties to. —
See 50 A. R. 277.

Same — Duty of to ascertain whether train stops at their sta-
tion. — See 50 A. R. 527.

Same — Employees, riding on, when not deemed to be. — See
52 A. R. 280.

Same — Negligence of in projecting a member of his body out
of a car window. — See 116 A. S. 721.

Same — Obligation to stop for at the times advertised. — See 66
A. D. 603.

Same — When not guilty of contributory negligence in not
remaining in their seats. — See 58 A. R. 113.

Same — Who is a, and when becomes such. — See 61 A. S. 75.

298



Tit.III,ch.I.] RAILROADS, GENERALLY. § 454

Persons loading or unloading not simply licensees. — See 1 A.
C. 601.

Power to change its location. — See 7 A. C. 1032.

Prescriptive right to maintain. — See 53 L. 900.

Presence of gates at railroad crossings as excusing traveler
from duty to look and listen. — See 7 A. C. 801.

Priority of claims against property of, in hands of receiver
over recorded liens. — See 2 L. N. S. 1015.

Private action — For violation of statute imposing duties on
railroads.— See 9 L. N. S. 347.

Same — Violating ordinance as to operation, as ground for. —
See 5 L. N. S. 186.

Private crossing — General nature of duty owed by railroad
to one using with perinission.— See 7 L. N. S. 597.

Privileges, right of to grant exclusive to hackmen and other
solicitors. — See 22 A. S. 699.

Property of, exempt from execution. — See 5 A. C. 511.

Railroad bridge over navigable stream.— See 2 L. 542; 59 L. 863.

Reasonable belief that no train is approaching crossings as
relief of negligence per se in failing to stop, look, and listen. —
See 9 A. C. 216.

Requisites of averment in complaint as to casual connection
between violation of law or ordinance by railroad company and
injury. — See 8 L. N. S. 987.

Right- — Of persons in charge of train to presume that cliild
will get out of danger. — See 6 L. N. S. 283.

Same — Of way, as encumbrance. — See 4 L. N. S. 318.

Same — To change location of railroad. — See 36 L. 510.

Same — To condemn land for spur to private establishment. —
See 7 A. C. 835.

Same — -To grant exclusive privileges on depot grounds. — See
2 A. C. 190.

Same — To use electricity as motive power. — See 5 A. C. 553.

Rules and regulations which may make respecting passengers
and others not employees. — See 41 A. D. 471.

Sick, aged, and feeble passengers, care and duty with respect
to. — See 97 A. D. 499.

Signals by locomotives — Duty as to approaching overhead
crossings. — See 1 L. N. S. 307.

Speed — At country crossings as negligence. — See 3 L. N. S.
778.

Same — Excessive as negligence. — See 3 L. 594; 3 L. 6S3; 4
L. 776; 7 L. 317; 9 L. 160; 11 L. 434.

Same — Of railroad train as negligence in absence of pro-
hibitory statute. — See 7 A. C. 988.

Spur to private establishment — Right to condemn land for. —
See 7 A. C. 835.

299



§ 454 CIVIL CODE. [Div.I,Pt.IV.

State regulation of railroads — As an interference with inter-
state commerce. — See 7 A. C. 5.

Same — Validity of requirement that railroad construct and
maintain crossings at new highways without compensation. —
See 8 A. C. 1056.

Stations — And grounds, dominion of. — See 8 L. 753.

Same — Duty of to keep safe for passengers and others. —
See 29 A. S. 55.

Statutory signals — Failure of railroad company to give on
approaching crossings as excuse for traveler's contributory
negligence. — See 6 A. C. 78.

Stop, look and listen — Duty of at crossings where gates are
open. — See 4 L. N. S. 521.

Same — Duty of traveler to on approaching overhead or
underground railroad crossing. — See 6 L. N. S. 150.

Same — Failure in duty to, contributory negligence. — See 7
L. 316; 9 L. 161; 11 L. 385.

Same — Failure to give customary signals as excusing from.
—See 3 L. N. S. 391.

Stop-over privileges and tickets, rules which may be en-
forced respecting. — See 45 A. D. 192.

Street improvements — Assessment of railroad riglit of way
for. — See 2 A. C. 587; 28 L. 249; 12 L. N. S. 112.

Street-railroads. — See note § 497, post.

Streets and highways, constitute additional servitudes upon.
—See 28 A. R. 267; 37 A. R. 224.

Taking railroad lands for draining district. — See 2 L. N. S.
227.

Taxation of — As to generally. — See 10 A. C. 354, 355; 15 L.
298; 57 L. 64; 60 L. 687; 66 L. 51; 69 L. 445.

Same — Assessment of. right of way for street improvements.
— See 2 A. C. 587; 28 L. 249.

Same — Exemption from taxation. — See 4 A. C. 1195, 1203;
1 L. 426.

Tickets of, limitations upon and of right to stopover.— See
24 A. R. 22.

Train-dispatcher's record as evidence. — See 3 L. N. S. 1190.

Trespasser — Child — Right of persons in charge of train to
presume will get out of danger. — See 6 L. N. S. 283.

Same — Duty of railroad company toward person going
upon property to pass around a train blocking crossing. — See
5 L. N. S. 775.

Same — Duty to keep lookout for. — See 8 L. N. S. 1069-1083.

Same — ^Duty to moderate speed where to be anticipated. —
See 11 L. N. S. 532.

Same — Duty with respect to dogs. — See 6 L. N. S. 911.

300



Tit.III,ch.I.] ASSESSMENTS, ETC., STOCK. § 455

Same — Helpless on track, duty of train-men upon observ-
ing-. — See 2 L. N. S. 498.

Same — Injury to — Children on tracks. — See 4 A. C. 680.

Same — ^Same — In running train in violation of speed law. — •
See 5 A. C. 1007.

Same — Same- — ^Traveling along railroad right of way. — See
2 A. C. 548.

Same — On track — Duty toward and liability for injuries to. —
See 30 A. S. 53; 6 L. 242; 10 L. 139; 11 L. 385; 13 L. 248; 16
L. 634; 25 L. 287; 25 L. 784-791; 55 L. 418; 66 L. 587; 69 L. 523.

Same- — Removal from trains — Authority of brakeman. — See
2 A. C. 624.

Same — Same — Liabilities for injuries inflicted in. — See 1 A. C.
775.

Same — Upon cars, liability for injuries to. — See 55 A. R. 42.

Trespassing — By traveling along railroad right of way. — See
2 A. C. 548.

Sam.e — Animals, liability of for negligently or willfully kill-
ing. — See 96 A. D. 681.

Turntables — And other dangerous appliances, liability to
trespassers injured by. — See 59 A. R. 23.

Same — Care required of railroad in operation of in respect
to children. — See 5 A. C. 377.

Validity of contract to pay an officer of a railroad company
for his own benefit for specific location of road or depot. —
See 6 L. N. S. 524.

Violating ordinance as to operation as ground for private
action. — See 5 L. N. S. 186.

Violation by servant of rule adopted by company for pro-
tection of public, as evidence of negligence toward a member
of the public. — See 8 L. N. S. 1063.

Waiver of carrier's lien to consignor's agent on promise to
retain goods until payment of freight charges. — See 7 A. C. 961.



§ 455. ADDITIONAL PROVISIONS IN ASSESSMENT AND
TRANSFER OF STOCK. No stock in any railroad corporation
is transferable until all the previous calls or instalments
thereon have been fully paid in;

[Transfer not \alid, except.] Nor is any such transfer
valid, except as between the parties thereto, unless at least
twenty per cent has been paid thereon and certificates issued
therefor, and the transfer approved by the board of direc-
tors.

History: Enacted March 21, 1872.
SOX



§ 456 CIVIL CODE. [Div.I,Pt.IV.

§456. RAILROAD CORPORATIONS MAY BORROW
MONEY AND ISSUE BONDS, ETC.— [INTEREST— LIMITA-
TION OF AMOUNT]. Railroad corporations may borrow, on
the credit of the corporation and under such regulations and
restrictions as the board of directors thereof, by unanimous
concurrence, may impose, such sums of money as may be
necessary [1] for constructing and completing their railroad
with its equipment, and [2] for the purchase of all necessary
rolling stock and [3] all else relative thereto, and may [4]
issue promissory notes therefor, or [5] may issue and dispose
of bonds to raise moneys necessary to pay therefor, at a rate
of interest not exceeding ten per cent per annum; and may
[6] also issue bonds, or promissory notes, at the same rate of
interest in payment of any debts or contracts for construct-
ing and completing their road, with ifs equipments and roll-
ing stock, and all else relative thereto, and [7] for the pur-
chase of railroads and other property within the purpose of
the corporation.

The amount of bonds, or promissory notes, issued for such
purposes [1] must not exceed in all the amount of their capi-
tal stock; and to secure the payment of such bonds, or notes,
they [2] may mortgage their corporate property and fran-
chises, or [3] may secure the payments of such bonds, or
notes, by deed of trust of their corporate property and fran-
chises. [4] Any person or corporation formed under the
laws of this state, or of any other state within the United
States, that the directors of the railroad corporation may, by
unanimous concurrence, select, may be trusiees in such deed
of trust.

History: Enacted March 21, 1872; amended April 15, 1880,
Code Amdts. 1880 (C. C. pt.), p. 10; March 9, 1897, Stats, and
Amdts. 1897, p. 73; March 4, 1899, Stats, and Amdts. 1899, pp.
57-58 (became a law, under constitutional provision, without
Governor's approval).

See Kerr's Cyc. C. C. for 11 pars, annotation.

109 C. 571, 595, 42 P. 225 (referred to); 124 C. 321, 328, 329,
71 A. S. 68, 57 P. 76 (construed and applied); 125 C. 407, 409, 410,
58 P. 85 (referred to); 125 C. 453, 454, 455, 58 P. 64 (construed
with §359); 64 F. 450, 452 (construed and applied).

302



Tit.III.Ch.L] BONDS, SINKING FUND. §§ 457, 458

As to many miscellaneous matters as to corporations g-ener-
allj', see note § 283, ante.

As to many miscellaneous matters as to railroads, see note
§ 454, ante.

§457. TO PROVIDE SINKING FUND TO PAT BONDS.

The directors must provide a sinking fund, to be speciallj^
applied to the redemption of such bonds on or before their
maturity, and may also confer on any holder of any bond or
note so issued, for money borrowed or in payment of any
debt or contract for the construction and equipment of such
road, the right to convert the principal due or owing thereon
into stock of such corporation, at any time within eight years
from the date of such bonds, under such regulations as the
directors may adopt.

History: Enacted March 21, 1872. This section is founded
upon § 15 Act May 20, 1861 (Stats. 1861, § 15, p. 607), as amended
by § 1 Act May 4, 1862 (Stats. 1862, § 1, p. 547).

See Kerr's Cyc. C. C. for 2 pars, annotation.

125 C. 453, 454, 58 P. 64 (applied).

As to construction of section original act, see 69 C. 606, 609,
6 P. 748.

As to many miscellaneous matters as to corporations gen-
erally, see note § 283, ante.

As to many miscellaneous matters as to railroads, see note
§ 454, ante.

§458. CAPITAL STOCK TO BE FIXED. When, at any
time after filing the articles of incorporation, it is ascertained
that the capital stock therein set out is either more or less
than actually required for constructing, equipping, operating,
and maintaining the road, by a two-third [s] vote of the
stockholders the capital stock must be fixed, and a certificate
thereof, and of the proceedings had to fix the same, must
be made out and filed in the office of the secretary of state.

History: Enacted March 21, 1872.

65 C. 193, 209, 3 P. 661, 802 (referred to in discussing con-
tention not material to decision).

As to many miscellaneous inatters as to corporations gen-
erally, see note § 283, ante.

303



§ 459 CIVIL CODE. [Div.I,Pt.IV.

As to many miscellaneous matters as to railroads, see note
§ 454, ante.

§ 459. ( EIiriFICATE OF PAYMENT OF FIXED CAPITAL
STOCK. Within thirty days after the payment of the last



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