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proceeds of the said brig and her cargo are now tion in such a case, we must look into those deposited, subject to the order of the said writers on ethics who speak of imperfect oblicourt, which half would have been payable to gations, which cannot be enforced. The rule the said Beverly Chew, William Emerson, and is the same, whether the voluntary (*413 William Lorrain, but for an omission in the benefit be conferred on an individual or on laws heretofore passed on that subject: there the government. fore, be it enacted, etc., that the District Court Had Emerson become insolvent and made of the United States be authorized and directed an assignment, would this claim, if it may be 412*] *to order the proceeds of the said seiz: called a claim, have passed to his assignees ? ure now deposited, subject to the order of said We think, clearly, it would not. Under such an court, be paid over to the said Beverly Chew, assignment, what could have passed ? The and the legal representatives of the said Wil. claim is a nonentity. Neither in law nor in liam Emerson and Edwin Lorrain, respectively." equity has it any existence. A benefit was

The question whether the sum of money voluntarily conferred on the government; but received by the heirs of Emerson, under this this was not done at the request of any officer law, was assets in their hands, and liable to his of the government, or under the sanction of debts, was first raised in the Court of Probate, any law or authority, express or implied. And which decided that it was so liable; and this under such circumstances, can a claim be raised judgment was, on an appeal to the Supreme against the government which shall pass by a Court of the State, affirmed.

legal assignment, or go into the hands of an In the seizure and prosecution of a vessel administrator as assets ? for a violation of law, Emerson, with those If in this form debts could be originated who co-operated with him, rendered a merito against the government or an individual, there rious service to the public. But he acted under would be no security against such demands. no law, nor by virtue of any authority. And One party, without the consent of the other, his acts imposed no obligation, either in law or makes the contract, and assigns it to his credequity, on the government to compensate him itors. For if there be even an equitable claim, for his services. Had he been prosecuted on it arises out of a contract express or implied a debt due to the government, he could not have a claim against a foreign government for set up these services, either as an equitable spoliations is not of that character. The deor legal offset. And this he might do, under mand is, in such case, founded upon the law of the rules of law, of any specific demand he nations, and the obligation is perfect on the might have on the government, which imposed offending government. It is true, remuneraon it even an equitable obligation.

tion cannot be recovered against the goveraIt is true, the payment of a debt cannot be ment by action at law, but if justice be not enforced against the government by suit; but done, the government of the injured citizen, claims against it are not the less legal or equi. in the exercise of its discretion, will protect table on that account. Services rendered under and enforce his rights. the requirements of law or of contract, for In the case of Comegys et al. v. Vasse, 1 which a compensation is fixed, constitute a Peters, 193, this court held that the assignees legal demand. Services rendered under an au- of a bankrupt are entitled to a share of the thority which is casual, or in some degree dis- indemnity for unjust spoliation provided for cretionary, may constitute an equitable claim. under the treaty of 1819 with Spain. But that An individual, by timely efforts, may save from case is not analogous to the one under condestruction, by fire or otherwise, a large sideration. By the law of nations, Spain was amount of public property. This would be a bound to indemnify the owners of foreign veshighly meritorious act; but would it constitute sels which had been illegally captured and cona claim on the government for compensation ? demned under her authority.

From motives of public policy, the governo A claim having no foundation in law, but ment might bestow à suitable reward on the depending entirely on the generosity of the individual in such a case; but this would be a government, constitutes no basis for the action gratuity on its part. And if this reward were of any legal principle. It cannot be assigned. given to the heirs of such an individual, could It does not go to the administrator as assets. it be reached by his creditors ? Numerous It does not descend to the heir. And if the gov. pensions have been given by law to heirs for the ernment, from motives of public policy, or military services of their ancestors; and are any other considerations, shall think proper, these pensions liable to the debts of the ances. under such circumstances, to make a grant of tors ? Under al the provisions of his kind, money to the heirs the claimant, they rehas it ever been supposed that the pension, ceive it as a gift or pure donation. A donathough given to the legal representatives of the tion made, it is true, in reference to some deceased, and on the ground of military serv. meritorious act of their ancestor, but which ices, should be paid to his administrators? did not constitute a matter of right against No individual can be made a debtor against the government. bis will. Voluntary benefits may be con- In the present case, the government might ferred on him which may excite his gratitude, have directed the money to be paid to the cred. and which, in the exercise of his generosity, he itors of Emerson, or to any part of his heirs. may suitably reward. But this depends on Being the donor, it could, in the exercise of its his own volition.

discretion, make such distribution or applicaIt would constitute a singular item under the tion of its bounty as circumstances might relaw of assets to raise a charge against an indi- quire. And it has, under the title of "An Act vidual, for a benefit conferred on him by some for the relief of the heirs of Emerson," directed voluntary act of kindness. To find an obliga-l in the body of the act, the money to be paid

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to his legal representatives. That the heirs, recover losses sustained on the schooner Break.
414*] were. *intended by this designation is water und her cargo. Both the cases wero
clear; and we think the payment which has brought from the Circuit Court of Massachu-
been made to them under this act has been setts, on certificates of division of opinion of
rightfully made, and that the fund cannot be the judges of the Circuit Court.
considered as assets in their hands for the pay. The cases were stated in the record as fol.
ment of debts.

lows:
As the decision of the Supreme Court of "These were actions of assumpsit on policies
Louisiana is not in accordance with this view, of insurance, dated the 19th of August, 1830,
the judgment of that court is reversed with whereby the plaintiff caused to be insured by
costs.

the defendants for nine per cent. per annum This cause came on to be heard on the tran- premium, warranting twelve per cent. 'lost or script of the record from the Supreme Court not lost,' forty-nine hundred and nineteen dol. of the State of Louisiana, and was argued by lars on fifteen sixteenths of schooner Harriet, counsel; on consideration whereof, it is ordered and eighteen hundred and seventy-five dollars and adjudged by this court that the judgment on board said vessel, at and from Stonington, of the said Supreme Court in this cause be, and Connecticut, commencing the risk on the 12th the same is hereby reversed, with costs; and day of August, instant, at noon, to the souththat this cause be, and the same is hereby re

ern hemisphere, with liberty to stop for salt at manded to the said Supreme Court, that fur. the Cape de Verd islands, and to go round ther proceedings may be had therein in con. Cape Hom, and to touch at all islands, ports, formity to the opinion of this court.

and places for the purpose of taking seals, and
for information and refreshments, with liberty

to put his skins on board of any other vessel or 415) *CHARLES L. WILLIAMS

vessels until she returns to her port of dis

charge in the United States; it being underTHE SUFFOLK INSURANCE COMPANY. stood that the value of the interest hereby inAssumptions of executive concerning sovereign- sured, as it relates to this insurance, is not to

ty of foreign island conclusive on judiciary, be diminished thereby. It is understood and master not bound to abandon voyage because agreed that if the Harriet should not proceed of threat of illegal capture- liability of in southeasterly of *Cape Horn on a voyage[*416

towards the South Shetland islands, and there

be no loss, then the premium is to be six per The government of the United States having 10: centum per annum, the assured warranting executive authority, that the Falkland Islands do only nine per cent.; vessel valued at five thou. not constitute any part of the dominions within the sand dollars; outfits valued at two thousand sovereignty of Buenos Ayres, and that the seal fish

dollars. ery at those islands is a trade free and lawful to the citizens of the United States, and beyond the “There was a similar policy underwritten by competency of the Buenos Ayres government to the defendants for the plaintiff on the same for a circuit court of the United States to inquire day, for the like voyage in all respects, of Into, and ascertain by other evidence, the title of thirty-five hundred dollars, on the schooner the government of Buenos Ayres to the sovereignty Breakwater, and two thousand dollars on out

When the executive branch of the government, fits on board, at the same premium; the veswhich is charged witə the foreign relations of the sel being valued at thirty-five hundred dollars United States shall, in its correspondence with a and the outfits at two thousand dollars, upon ereignty of any island or country, it is conclusive which, also, an action was brought. on the judicial department.

“The declaration upon each policy averred Where a vessel, insured on a salling poyage, was a total loss, by the seizure and detention of one ordered by the government of Buenos Ayres not to catch seal of the Falkland Islands, and having Lewis Vernet and other persons, pretending to continued to take seal there, the vessel was seized act by the authority of the government of and condemned, under the authority of the gov: Buenos Ayres, with force and arms. ernment of Buenos Ayres ; the government of the United States not having acknowledged, but hav

“The causes came on to be heard together, ing denied the right of Buenos Ayres to the Falk by the court, upon certain facts and statements land Islands, the insurers were liable to pay for the agreed by the parties; the parties agreeing that ing to obey the orders to leave the island, having the verdict should be rendered by the jury for acted under a belief that he was bound so to do as the plaintiff, and for the defendants, according a matter of duty to the owners, and all interested to the opinion of the court upon the matters of claimed by the American government. The master law arising upon those facts and statements ; was not bound to abandon the voyage under a and the cause was argued by C. G. Loring for threat or warning of such Illegal capture.

the plaintiff, and by Theophilus Parsons for ON N a certificate of division from the Circuit the defendants. It appeared from these facts

Court of the United States for the District and statements that both of the vessels insured of Massachusetts.

were bound on a sealing voyage, and proceeded This was an action brought by the plaintiff, to the Falkland islands in pursuance thereof; a citizen of the State of Connecticut, against and were there both seized by one Lewis Ver. the Suffolk Insurance Company, of Boston, net, acting as governor of those islands, under Massachusetts, to recover a loss on part of the the appointment and authority of the governschooner Harriet and part of her cargo, they ment of Buenos Ayres. The Harriet was seized having been insured by the defendants. There on the 30th of July, 1831, and was subsequentwas a similar action against the defendants to ly carried by the captors to Buenos Ayres;

where certain proceedings were had against NOTE.—Effect of voluntary exposure to perll her in the tribunals, and under the sanction of upop liability on marine Insurance policy, see note to 1 L.R.A.(N.S.) 1095.

the government of Buenos Ayres. She has

never been restored to the defendants, but has, to abandon the voyage under such a threat and been condemned for being engaged in the seal warning of such illegal seizure. trade at the Falkland islands.

The case

was submitted to the court by "The Breakwater was seized at the islands, on Messrs. C. G. Loring and E. G. Loring for the or about the 18th day of August, 1831, and plaintiff, and by Mr. Parsons for the defend. was afterwards recaptured by the mate and ants. crew, who remained on board, and was by them The printed argument for the plaintiff conbrought home to the United States; and after tained a full statement of the case. her arrival was libeled for salvage in the Dis Mr. Parsons, for the defendants, contended, trict Court of Connecticut District, and sal 1. That the Malvinas are rightfully in posvage was awarded of one third part of the session of Buenos Ayres, and that historical proceeds of vessel and property.

evidence and established principles of the law "Copies of the orders and decrees of the of nations show this to be so. courts of Buenos Ayres respecting the seal 2. That however this may be, the courts of fisheries, of the appointment of Vernet as this country will not decide this question Governor of the Falkland islands, of the pro- against Buenos Ayres, unless authorized to do ceedings against the Harriet, of the corre so by a formal act of our government; Buenos spondence of the American government with Ayres being a nation friendly to us, claiming the Buenos Ayrean government, relative to the the Malvinas, certainly under color of right, jurisdiction of the Falkland islands, were pro- and claiming and exercising that dominion for duced and read, de bene esse, in the case.' many years.

The following points and questions occurred *3. That there is no such act of our [*418 in the case, on which the judges of the Circuit government. An American sloop of war (the Court were divided in opinion; and they were Lexington, Captain Duncan) arriving at Buenos stated and ordered to be certified to the Su- Ayres, soon after the seizure of the Harriet and preme Court to be finally decided :

Breakwater, proceeded to the Falklands, and 417*] *1. Whether, inasmuch as the Amer. broke up the establishment by violence. The ican government has insisted and does still government of Buenos Ayres complained insist, through its regular executive authority, urgently of this, and a correspondence ensued, that the Falkland islands do not constitute any wherein our consul, and our charge d'affaires part of the dominions within the sovereignty at Buenos Ayres, and our Secretary of State, of the government of Buenos Ayres, and that took a part; but the question remains unsettled the seal fishery at those islands is a trade free between the countries—and, and lawful to the citizens of the United States, By the Constitution of this country, it is and beyond the competency of the Buenos of vital importance that our courts call nothing Ayrean government to regulate, prohibit, or an act of the government but one which passes punish, it is competent for the Circuit Court in through the forms of the Constitution, and has this cause to inquire into and ascertain by the force and sanction of regular enactment. other evidence the title of said government of No analogies drawn from European nations (if Buenos Ayres to the sovereignty of the said any there be) can apply; because the Judiciary Falkland islands; and if such evidence satisfies holds no such place, and is entrusted with no the court, to decide against the doctrines and such duties in other nations. claims set up and supported by the American It would seem difficult to doubt, from the government on this subject, or whether the ac- historical evidence, and the plain principles of tion of the American government on this sub- territorial and international law, that the ject is binding and conclusive on this court, as ancient government of Spain, and the govern. to whom the sovereignty of those islands be ment of Buenos Ayres, as their successor, had longs.

a right, as owners of the islands and the coast, 2. Whether, if the seizure of the Harriet, to regulate the fisheries thereon, and within a by the authority of the Buenos Ayrean govern- reasonable distance of their shores, and that ment, for carrying on the seal fishery at the the decrees actually passed are therefore justifiFalkland islands, was illegal and contrary to able by the laws of nations; and, consequently, the law of nations, on account of the said fishing in violation of those decrees is an illicit islands not being within the territorial sover and proliibited trading within the policy. It eignty of the said Buenos Ayrean government, follows inevitably that a seizure for that cause and the master of the Harriet had warning is not protected by the policy, though the confrom the government of the said islands under demnation may be informal. the government of Buenos Ayres, that he If it be said that the trespassers upon these should seize the said Harriet if she should en islands and their fisheries appear to have been gage in the seal fishery, and after such warn- notified and threatened before, and then pering, the master of the Harriet engaged in such mitted to transgress with impunity, and that seal fishery, and the Harriet was illegally seized punishment for the offense, was therefore un. and condemned therefor, the loss by such seiz- lawful; there is surely an obvious and sufficient ure and condemnation was a loss for which answer to this. It is, that after mild means the plaintiff is entitled to recover in this case; had been carried so far as to prove them inif the master of the Harriet acted, in engaging effectual, more positive measures were resorted in such seal fishery bona fide, and with a sound to. This is a plain and fair statement of the and reasonable discretion, and under a belief whole case upon this point, and if the whole that he was bound so to do, as a matter of testimony were examined, and the indisputable duty to his owners, and all others interested facts of the case considered, they would fully in the voyage, and in the vindication of the confirm this view. Will the court then say that rights recognized and claimed by the American forgiveness, with renewed prohibition and governinant, or whether he was bound by law caution, implies perpetual forgiveness? That

if the Arst offense, or any single offense be and the master of the Harriet had warning pardoned by a nation, or one of its authorities, from the governor of the said Islands under the it shall never be lawful again to punish the government of Buenos Ayres, that he should offense; how often soever it be repeated, or seize the said Harriet if she should engage in howsoever aggravated the circumstances by the seal fishery; and after suck warning the which it is attended! It can hardly be expect master of the Harriet engaged in the seal fish. ed that such a principle as this can receive the ery, and the Harriet was illegally seized and sanction of this court: for it seems not more condemned therefor; the loss by such seizure repugnant to law and justice than to mere and condemnation was a loss for which the humanity.

plaintiff is entitled to recover in this case, if

the master of the Harriet acted in engaging in Mr. Justice M'Lean delivered the opinion of such seal fishery bona fide, and with a sound the court:

and reasonable discretion, and under a belief Two actions were commenced by the plain that he was bound so to do as a matter of duty tiffs against the defendant in the Circuit Court to his owners and all others interested in the of the United States for the State of Massachu. voyage; *and in the vindication of the (*420 setts, on policies of insurance dated 19th rights recognized and claimed by the American August, 1830; whereby the plaintiffs caused to government; or whether he was bound by law 419*] be insured by the defendants, for *nine to abandon the voyage under such a threat and per centum per annum premium, warranting warning of such illegal seizure. twelve per centum, lost or not lost, forty-nine As the fact is stated in the first point certi. hundred and nineteen dollars on fifteen six-fied, that there is a controversy between this teenths of schooner Harriet; and eighteen hun government and that of Buenos Ayres, whether dred and seventy-five dollars on board said ves the jurisdiction is rightful, which is assumed to sel at and from Stonington, Connecticut, com- be exercised over the Falkland islands by the mencing the risk on the 12th August instant at latter; and that this right is asserted on the noon, to the southern hemisphere; with liberty one side and denied by the other, it will not be to stop for salt at the Cape de Verd islands, necessary to look into the correspondence beand to go round Cape Horn, and to touch at all tween the two governments on the subject. islands, ports and places, for the purpose of To what sovereignty any island or country taking seals, and for information and refresh belongs is a question which often arises before ment; with liberty to put his skins on board courts in the exercise of a maritime jurisdiction of any other vessel or vessels, until she returns and also in actions on policies of insurance. to her port of discharge in the United States;

Prior to the revolution in South America, it it being understood that the value of the inter is known that the Malvinas, or Falkland isest hereby insured, as it relates to this insurlands, were attached to the viceroyalty of La ance, is not to be diminished thereby, etc. Plata, which included Buenos Ayres. And if

On the same day there was a similar policy this were an open question, we might inquire of thirty-five hundred dollars on the schooner whether the jurisdiction over these islands did Breakwater, and two thousand dollars on out. not belong to some other part, over which this fits on board, at the same premium, etc. ancient viceroyalty extended, and not to the

And on the trial the following points were government of Buenos Ayres; but we are saved raised in the case on which the opinions of the from this inquiry by the attitude of our own judges were opposed, and on which the case is government, as stated in the point certified. certified to this court:

And can there be any doubt that when the 1. Whether, inasmuch as the American gov. executive branch of the government, which is ernment has insisted, and does still insist, charged with our foreign relations, shall in its through its regular executive authority, that correspondence with a foreign nation assume a the Falkland islands do not constitute any part fact in regard to the sovereignty of any island of the dominions within the sovereignty of or country, it is conclusive on the judicial de. the government of Buenos Ayres; and that the partment? And in this view it is not material seal fishery at those islands is a trade free and to inquire, nor is it the province of the court to lawful to the citizens of the United States, and determine, whether the executive be right or beyond the competency of the Buenos Ayres wrong. It is enough to know that in the exergoverment to regulate, prohibit, or punish; it cise of his constitutional functions he has deis competent for the Circuit Court in this cause cided the question. Having done this under to inquire into and ascertain by other evidence the responsibilities which belong to him, it is the title of said government of Buenos Ayres obligatory on the people and government of the to the sovereignty of the said Falkland islands; Union. and if such evidence satisfies the court to de. If this were not the rule, cases might often cide against the doctrines and claims set up and arise in which, on the most important questions supported by the American government on this of foreign jurisdiction, there would be an ir. subject; or whether the action of the American reconcilable difference between the executive government on this subject is binding and con- and judicial departments. By one of these declusive on this court as to whom the sovereign-partments, a foreign island or country might ty of those islands belongs.

be considered as at peace with the United 2. Whether, if the seizure of the Harriet by States, whilst the other would consider it in the authority of the Buenos Ayrean govern

a state of war. No well regulated government ment, for carrying on the seal fishery at the has ever sanctioned a principle so unwise, and Falkland islands, was illegal and contrary to

so destructive of national character. the law of nations, on account of the said In the cases of Foster v. Neilson, 2 Peters, islands not being within the territorial sover 253, 307, and Garcia v. Lee, 12 Peters, 511, eignty of the said Buenos Ayrean government; I this court have laid down the rule that the

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action of the political branches of the govern. The other case depending upon the same ment, in a matter that belongs to them, is con principles, the same certificate will be affixed clusive.

to that case. And we think in the present case, as the This cause came on to be heard on the tran. executive, in his message, and in his corre- script of the record from the Circuit Court of spondence with the government of Buenos the United States for the District of MassachuAyres, has denied the jurisdiction which it has setts, *and on the points and questions (*422 assumed to exercise over the Falkland islands; on which the judges of said Circuit Court the fact must be taken and acted on by this were opposed in opinion, and which were certi. court as thus asserted and maintained.

fied to this court for its opinion, agreeably to 421") *The decision of the first point the act of Congress in such case made and promaterially affects the second, which turns upon vided, and was argued by counsel; on considerathe conduct of the master.

tion whereof, it is the opinion of this court, 1st, If these islands are not within the jurisdic- That, inasmuch as the American government tion of the Buenos Ayrean government, the has insisted and still does insist, through its power assumed and exercised by Governor regular executive authority, that the Falkland Vernet was unauthorized, and the master was islands do not constitute any part of the donot bound to regard it. He was not necessarily minions within the sovereignty of the govern. to be diverted from the objects of his voyage, ment of Buenos Ayres, the action of the Ameri. and the exercise of rights which belonged in can government on this subject is binding on common to the citizens of the United States by the said Circuit Court, as to whom the sover. an unauthorized threat of the seizure of his eignty of those islands belongs. And, 2d, That vessel. He might well consider the prohibition the seizure and condemnation of the Harriet of Vernet as influenced by personal and sinister was a loss for which the plaintiff is entitled to motives, and would not be enforced. If the recover in this case, under the circumstances as principle were admitted that the assured were stated in the second point certified. Wherebound to regard every idle threat of any in. upon, it is ordered and adjudged by this court dividual who might assume to exercise power, that it be so certificd to the said Circuit Court as in this case, it would be most injurious, and accordingly. in many cases destructive to commercial rights.

The inquiry is, whether the master, under all the circumstances of the case, acted in good faith, and with ordinary prudence.

* BARRINGTON ANTHONY, Marshal [*423 If he acted fraudulently, he was guilty of of the United States, Plaintiff in Error, barratry, and the underwriters are discharged. In 4 Taunton, 858, Mr. Justice Gibbs, in giv.

CYRUS BUTLER, Defendant in Error. ing the opinion of the court, lays down the true rule. "The master," says he, “being asked Effect of mortgage of company's property by why he had not British colors and British

an agent-record of mortgage-power of a papers, said, I cannot have them, because I

partner. have not a British register. He stands on his strict rights. He says, I will do nothing to en

A mortgage was executed by D. G, as the agent danger my owners; I am a neutral, and I have of the Union Steam Mill Company, conveying to a right to enter your port. The master really the mortgagee certain lands in Rhode Island, with communicated the true facts of the case when a woolen mill and other buildings, with the ma

D. G. was, and had been the she was searched, and says, I cannot go off, general agent of the company, and as such, had because of my charter-party. The other says: made all purchases and sales for the company, Then I will seize you. We think, then, each and the mortgage was executed by him, with the party stands on his strict rights; and we are time of its execution were members of the com. now to consider the strict point of law, not the pany. The machinery, and other movables, had question whether it would have been more

been taken in execution by the marshal of Rhode

Island, under an execution issued on a judgment prudent for him to go to Tercera, but whether obtained after the mortgage against the company. he acted bona fide."

The court held, that although the mortgage was And so in the present case, the question is not valid as the deed of the corporation, it was not whether the master of the Harriet would machinery, and that he could maintain an action of not have acted with more prudence had replevip for them against the marshal. he yielded to the inhibition of Vernet; but

The mortgage was recorded by the town clerk of

the place, where the property was, he being the whether, in placing himself upon his strict proper officer to record such instruments, under rights, he did not exercise a proper discretion. the statute of Rhode Island. He kept two books, He violated no regulation which he was

in one of which he recorded mortgages, which inbound to respect. In touching at the Falkland cluded real estate, and in the other, mortgages islands for the purpose of taking seal, he acted this case was first recorded in the book kept for

And he gave strictly within the limits of his commercial recording mortgages on real estate.

a certificate, “lodged in the town clerk's office to enterprise, and did not voluntarily incur a risk record, November 20, 1837, at 6 P. m., and recorded which should exonerate the insurers.

same day, in the record of mortgages in East

The court held that It was the duty of the master to prosecute Greenwich; book No. 4" etc.

this certificate was properly received in evidence his voyage, and attain the objects of it, for the in the Circuit Court, benefit of his owners; and, in doing this, he It is a well settled rule, though a very technical was not bound to abandon the voyage by any | by deed.

one, that one partner cannot bind his copartners

And it is equally well settled that one threat of illegal seizure. We think, therefore, partner" may dispose of the personal property of that the underwriters are not discharged from the film. One partner may bind his copartner by liability by the conduct of the master, as

deed, if he is resent, and assent to It. The seal of

one partner, with the assent of the copartner, will stated in the second point,

bind the firm.

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