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40; Madden v. Minneapolis, etc., R. Co., 20 N. W. Rep. the absence of all intelligent parliamentary procedure
317; Cone v. Delaware, etc., R. Co., 81 N. Y. 206; as one great cause of the failure of the revolutionary
Booth v. Boston, eto., R. Co., 73 id. 38. (3) There movement.
is no legal presumption that it is the duty of the con. Thanking you most sincerely for your kind atten-
ductor of a railway freight train to inspect the cars

tion. and machinery of his train, or that he is chargeable

Very respectfully yours, with negligence for using cars if the defect was such

FREDERICK WM. HOLLS. that it might have been discovered by inspection.

NEW YORK, Feb. 9, 1885.
Rusier v. Minneapolis, etc., R. Co. Opinion by
Dickinson, J.

"" VERGIL." [Decided July 21, 1884.]

Editor of the Albany Law Journal: SALE-PARTICULAR USE-WARRANTY WAIVER.

The spelling “ Vergil," in the Court of Appeals opinWhere a chattel is to be made or supplied to the order

ion by Judge Earl (Chapman v. Phoenix Bank, 85 N. of the purchaser, it is the general rule that there is an

Y. 449), having been alluded to with a "sic" in your

pages, it implied warranty that it sball be fit for the purpose in.

is proper to state that the name

is tended. But where the article ordered and agreed to

80 spelled in Harper & Brothers' edition of be furnished is to be of a particular design, pattern or

Green's History of the English People, vol. I, p. 65, model, well defined and understood between the par

and that the publishers, in reply to my question ties, and the article made and delivered in pursuance

whether it is a misprint, say: “D. Lewis and other of the contract conforms to such design or model, there

competent authorities support the spelling, Vergil." is no such warranty implied, but only that it should

Yours respectfully, be of good material and workmanship. Cunningham

B. W. HUNTINGTON. v. Hall, 4 Allen, 274; Mason v. Chappell, 15 Gratt. 586;

Feb. 4, 1885. Chanter v. Hopkins, 4 Mees. & W. 399; Prideaux v.

[“Vergil” is a well accredited modern form.-ED.] Bunnett, 87 E. C. L. 613. C. contracted to manufacture and deliver to B. “one of the Cosgrove Cascade

COURT OF APPEALS DECISIONS. Roller Mills, machine to have a capacity of 100 barrels

THE as of amounted an express day, Feb 10, 1885: warranty, and that such contract of warranty

Judgment affirmed with costs—Daniel P. Barnard was not satisfied by delivering a machine of and others, respondents, v. John T. Barnard and a certain size or descriptiou, if there proved to be such others, Horatio G. Ouderdonk, appellants; Sarah B. inherent defects in the mill as to prevent its success- Aikman, respondent, v. Blaize L. Harsell and another, ful operation, so that ordinarily uuder proper man

trustees, appellants; In re Will of Ann Martin; Willy agement it could not turn out the stipulated amount Wallach and another, executors, respondents, v. Comof flour. The express warranty distinguishes this case mercial Fire Ins. Co., appellants; Daniel Defreest, refrom Haase v. Nonnemacher, 21 Minu. 490. Here there

spondent, v. Samuel S. Warner and others, appellants; is a written contract obligating the parties to do cer- G. Bruce Brown, adm'r, etc., respondent, v. George tain things, and biuding upon both. The receipt of a L. Landon, appellant; Sophie Schmid, adm’x, respond. mill otherwise answering the description in the con

ent, v. N.Y., L.E. & W. R., appellant; Johanna Donatract was not a waiver of defendant's right to sue upon hue, respondent, v. Susan R. Kendall and others, appelthe warranty on a subsequent discovery of its breach. lants; Catherine Murphy, adm'x, respondent, v. N. Y., Polhemus v. Heiman, 45 Cal. 573; Maudel v. Buttles, L. E. & W. R. Co., appellant; Susan Lenhart, adm's, 21 Minn. 397; Scott v. Raymond, 18 N. W. Rep. 274. respondent, v. N. Y., L. E. & W. R. Co., appellant; Cosgrove v. Burnett. Opinion by Vanderburgh, J.

Ida Deweese, adm'x, respondent, v. Boston and Al[Decided July 29, 1884.]

bany R. Co., appellant; Martha A. Beales, executor,
etc., respondent, v. James Lyons, appellant; In re

Final Accounting of Stephen T. Hopkins, executor,

eto.; Jos. Blumenthal, respondent, v. Julia A Riley,

adm'x, appellant.-Judgment affirmed and record

remitted to the court below, with directions to proEditor of the Albany Law Journal:

ceed according to law-People, respondent, v. George In your very courteous notice of my paper on Dr. H. Mills, appellant.- Judgment affirmed without Francis Lieber occurs the following statement:

costs in this court to either party-Rector, etc., of “When a translation of the Conversations Lexicon Trinity Church, eto., appellant, v. Jacob H. Vander. could be termed an Encyclopædia Americana, it is not

bilt, respondent.-Order affirmed and judgment absurprising to learn that it was seriously proposed to solute ordered for the defendant on the stipulation control Bismarck at Frankfort by a German compen- with costs—Henry G. Crouch, appellant, v. William dium from Cushing's Manual.”

M. Hayes, treasurer, etc., respondent. — Judgment This does injustice to the memory of Dr. Lieber.

reversed, new trial granted, costs to abide the eventThe Encyclopædia Americana was much more than

Cynthia A. Tolman, adm'x, etc., respondent, v. Syraa translation. About balf of its articles were original,

cuse, Binghamton and New York Railroad, appellant; and the rest were "adapted” for the new work in a

Eugene Lewis, executor, respondent, v. Enos Merritt, manner which involved rewriting as well as translat- appellant; Mary A. Brick, adm'x, etc., respondent, V, ing.

Rochester, New York and Pennsylvania Railroad Moreover the body for whose benefit Dr. Lieber

Company, appellant. —Motion for reargument denied

with costs-Stephen D. Pringle, respondent, v. Charles thought of translating Cushing's Manual was, as I

D). Leverich, appellant.--Motion to amend remittistated in my paper, the revolutionary Parliament

tur denied with costs-People ex rel. James S. Stranwhich met in St. Paul's church at Frankfort in 1848, ahan and others v. Hubert 0. Thompson, commisand of which Bismarck never was a member. Dr. sioner, etc. -Granted with costs-Mary F. StoughLieber's hard common sense would never have allowed ton, respondent, v. Samuel A. Lewis, appellant.

Motion to vacate order dismissing appeal granted, him to seriously propose influencing or controlling the

without costs-Elizabeth Welch v. John T. Wilson. German Diet (Bundestag), to which Bismarck was appointed ambassador from Prussia in 1852, by any parli

-Motion to put on preferred calendar denied with

out costs-In re Accounting of C. A. Waldron, asameutary rules. He was right however in considering signee.

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The Albany Law Journal.

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been very successfully followed in a few instances, as by Underbill on Torts, Desty on Taxation, Law

son on Custom, and some others. And every one ALBANY, FEBRUARY 21, 1885. will agree with Bates in the following: “Law trea

tises so constructed, whether they prove imperfect

or not, will also revolutionize the present inadeCURRENT TOPICS.

quate method of teaching and learning law. I sup

pose no lawyer, of say fifteen years' standing, but R. CLEMENT BATES, in the Cincinnati Law

feels and regrets that all he has learned might per

haps have been acquired in four or five years, if be If codification is really necessary as a relief from only could have had the proper tools, and the advanan intolerable load of precedents, there must be, in

tage of working or being taught on some conceivably my opinion, years of preliminary work done before better plan; and law students might be in two or any body of lawyers, however accomplished, or any three years trained in the fundamental conceptions Legislature, however free from ignorance or indo- and theories of the entire substantive law, and not lenče, can succeed in it or any part of it. To thresh

only that, but more thoroughly and accurately than a field sown with different kinds of grain, by

now, producing a set of men better equipped than threshing one stalk of each at a time before separa- we are to undertake codification. It would be untion and gathering into shocks, would be easier

just to disparage too much present systems of inand more possible. The present generation of struction; some, notably the Langdell system, and wordy and inexplicit text-books must first pass that of the Iowa school, have conspicuous merits, away, and with them disappear the present system but the results are entirely inadequate to the time of teaching law. It is not only necessary before

required.” codification, but also highly desirable for other purposes, and far from impossible, that now, at the Governor Hoadley, of Ohio, who is an earnest and present time, treatises on the best known legal sub- able advocate of codification, has the following on jects should be constructed by formulating settled the subject in his late message: “If the whole body and universal propositions into the shape of cate- of the law of Ohio were reduced to writing and engorical rules, like the sections of a statute, and acted into statutes, great progress would be made printing them, perhaps, in large type. These then in giving to it accessibility and certainty, and in the stand as legal axioms of ultimate postulates. Then economy of its administration. This was done under each of these axioms, in smaller type, follow with the Roman law in the days of Justinian, and its sub-rules or inferential branches, as corollaries; the body of the civil law prepared under the auspiand finally, in still smaller type, under each of these ces of that emperor (revised in France in the Codes latter deductions, will naturally fall the anomalous of Napoleon), is to-day the legal system of the and doubtful decisions, and extreme and inconsist- whole civilized world, except the English speaking ent applications of the principles, all the primary nations, and largely affects even their jurisprudence. or secondary being accompanied, of course, by their The practicability of such a work has therefore been illustrative and historical authorities.

tested by the experience of ages. In California and This leads to the only other alternative in the pre

Dakota codification has been successfully accomparation of material for codification, and that is, for plished, so that no unwritten law is administered, the men engaged in instructing in the elements of and the courts no longer indulge in guesses as to the law to formulate the law somewhat in the manner customs of England as the basis for judicial acof the text-books above described, but on tion. In New York the complete code has twice resmaller scale, and thus furnish the profession and

ceived legislative sanction, and but for vetoes by the world with the raw material of codification." Governors Robinson and Cornell would have been We do not assent to this. The best text-book writers in force. Livingston's work, done early in the cenwould prove poor codifiers. A writer on a special tury, in the preparation of a Code of Procedure and subject has a hobby which he must ride, and the Penal Code for Louisiana, still stands, and twentyimportance of which he will exaggerate. He can

four States have codified their Civil and nineteen not take the broad view of the man trained to look their Criminal Procedure successfully since. The at principles as separated from cases, and to express

work which has been so well done in Ohio in the them concisely. It is indeed disheartening if we

(ciles of Civil and Criminal Procedure, in the laws have to wait a generation for codification in order of testamentary succession, usury, guardianship and to have our text-books improved.

many other topics, may be extended with profit to the whole body of the law, I recommend that it

be undertaken through the agency of a commission Nearly every one will agree with Mr. Bates how

to be created for that purpose.” The italics are ever that our text-books might be improved. They

ours, and those words express the state of the law should gradually be written after the method above

as well as any we have ever seen. pointed out, which we believe was originated by Vice-Chancellor Wigram in his unrivaled treatise Judge Freedman has adjudged ex-Mayor Edson on Extrinsic Evidence as to Wills, and which has guilty of contempt in disobeying Judge Bench's in

VOL. 31 - No. 8.


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junction restraining him from filling certain mu- profession and the public in this State. We call atnicipal offices in the city of New York. He says: tention to a communication on this subject in another “The defendant, as mayor, was the chief executive column, which suggests some novel expedients, officer of the corporation of New York. He was well worthy of serious consideration. In regard to elected to that high office by the votes of a majority two of them we can at once express our own opinof the electors of this great city. He, above all oth

ion. We have long believed that there are a good ers, should have set an example of devotion and

many appeals manifestly taken for delay in which the submission to the supremacy of the law as administered by the tribunals created by the sovereign

court ought to exercise its power to impose dampower of the State for that purpose. Occupying ages. As to increasing the costs of appeal genersuch a high position, his willful and public disobe ally, we are decidedly opposed to it. Litigation dience to the positive mandate of a court of general should be made cheaper rather than dearer, and jurisdiction, is an act of far-reaching consequences.

many sound lawyers are even in favor of abolishing Under these circumstances, and inasmuch as neither costs except as a penalty. In regard to the other the seutence by this court in the Compton case of and main expedient suggested, we must reflect with Alderman Sturtevant to imprisonment for fifteen our readers. days, and to me of a fine of $250 into the city treasury, and of a further fine of $102.07 to the relators for their costs and expenses, nor the sentence

NOTES OF CASES. by the Supreme Court in the Dwyer case of each of the seventeen aldermen to imprisonment for thirty

'N Geismer v. Lake Shore and Michigan Southern days and the payment of a fine of $250 deterred the defendant from defying the authority of this court;

fendant was liable in damages for delay in transthe case demands the infliction of the highest pun- portation of goods caused by a strike of its emishment anthorized by law, unless mitigating cir-ployees, although assisted by outside persons. The cumstances can be found that can properly be con

court said: “This precise question does not appear sidered. Upon this point I have, after due deliber- to have been passed upon in the courts of this State. ation, come to the conclusion that some of the mat- In the case of Blackstock v. Nero York and Erie Railters urged as an excuse, but rejected as insuffi- road Co., 20 N. Y. 48, the damages sustained were cient in law for that purpose, ought to be accepted for a delay in the carriage of a quantity of potain mitigation. The fact cannot be denied that the toes. The delay was occasioned by reason of a order of injunction was granted under circumstances strike of the engineers of the railroad company. which made it difficult to ascertain whether there In that case it was held that although the officers was or was not jurisdiction, and upon being advised of the company were without the slightest fault, by counsel that the order was void, the defendant the corporation was responsible for the damages may well have believed it. Moreover the practice caused by a delay in transporting the property

, of the plaintiffs themselves in obtaining the injunc- which resulted from the strike. In that case there tion was so faulty and irregular as to lend color to does not appear to bave been any violence used on the theory that the order was invalid. Upon the the part of the striking engineers. It does not apwhole, I am charitable enough to think that the de- pear however that the railroad company was unafendaut actually believed that the order was void. ble to find other competent men with whom they But after giving to the defendant the fullest benefit could safely intrust the running of their engines. of every extenuating consideration that can be pre- The court laid down the rule that the railroad sented, the case still remains one which calls for sub-company is liable for the misconduct of its serstantial punishment. I therefore direct that for the vants, and that it makes no difference whether such willful disobedience and the contempt of which the misconduct was willful or from carelessness, if their defendant stands adjudged guilty, he be imprisoned action was within the scope of their employment. in the county jail for the period of fifteen days, and In the case of Weed v. Panama Railroad Co., 17 that in addition thereto, he pay a fine of $250.” N. Y. 362, the action was for damages sustained by This is as much as to say that although an injunc- a passenger by reason of the willful act of the contion may be contemptible, it is still contempt to dis-ductor in stopping the train and detaining it over obey it, when there was colorable jurisdiction to night. It was held that the company was under grant it. And this is probably the law. We have contract to transport the passenger with reasonable great confidence in Judge Freedman's judgment, dispatch to his place of destination, and that by its impartiality and integrity. He is one of the city failure to do so it was guilty of a breach of conjudges who is above suspicion, and we do not be tract, and that the plaintiff could recover, notwithlieve that any order of his will ever need to be made standing the act of the conductor in stopping the the subject of legislative inquiry.

train was willful; that he was acting within the
scope of his employment. The rule, as laid down

in this case, is sufficiently broad to cover the case Next to codification the relief of our Court of Ap- under consideration. The employees of the depeals calendar is the most vital subject to our fendant were engaged in running the trains of the

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company. They stopped the trains at Collingwood, striking employees had been discharged by the
detained them there, and thus prevented the prop- company, and that the acts of violence took place
erty of the plaintiff from being transported to its after they had ceased to be employees. In that re-
place of destination, in the same manner as the con- spect is is distinguishable from the case under con-
ductor stopped the train in the case of Panama | sideration.”
Railroad Company, and prevented the transporta-
tion of the passenger. Under the authority of that In State v. Nebraska Telephone Co., Nebraska Su-
case they were servants acting within the scope of preme Court, January 21, 1885, 22 N. W. Rep. 237,

their employment. This case is cited with ap. was held that telephone companies being common
proval in the case of Mott v. Consumers' Ice Co., 73 carriers of news, all persons are entitled to equal fa-
N. Y. 543. In the case of the Indianapolis and St. cilities in the employment of the benefits to be de-
Louis Railroad Co. v. Juntegen (manuscript opinion rived from the use of the telephone; and where no
of the Appellate Court of the Third District of good reason is assigned for a refusal by a telephone
Illinois), the action was for damages occasioned at company to furnish a telephone instrument to a per-
the same time and by the same strike which is the son who desires to become a subscriber, and ten:
subject of consideration in this action. The court ders a full compliance with all the rules established
in that case held that the plaintiff was not entitled for other subscribers, a writ of mandamus will issue
to recover. It however placed its decision upon to compel such company to furnish such person
the ground that it appeared from the evidence with the necessary instruments. The court said:
upon the trial that but a small portion of the strik- 6. The demands of the commerce of the present day
ers had been in the employ of the defendant's com- make the telephone a necessity. All people, upon
pany; that they had left their employment and complying with the reasonable rules and demands
joined the strike, and that the great body of strik- of the owners of the commodity - patented as it is
ers were men not in the employ of the company. -should have the benefits of the new
The evidence in the case under consideration ap-

The wires of respondent pass the office of pears to be quite different upon this branch, mak- the relator. Its posts are planted in the street in ing it a proper question for the jury. In the case front of his door. In the very nature of things, no of the Pittsburg, Fort Wayne and Chicago Railroad other wires or posts will be placed there while Co. v. Hazen, 84 III. 36; S. C., 25 Am. Rep. 422, those of respondent remain. The relator never can the action was for damages occasioned in conse- be supplied with this new element of commerce, so quence of a strike. The rule was there stated as necessary in the prosecution of all kinds of business, follows: "From the delay resulting from the re- unless supplied by the respondent. He has tenfusal of the employees of the company to do duty, dered to it all the money required by it from its the company is undoubtedly responsible. For de- other subscribers in Lincoln for putting in an inlay resulting solely from the lawless violence of strument. He has proven, and it is conceded by men not in the employment of the company, the respondent, that he is able, financially, to meet all company is not responsible even though the men the payments whioh may become due in the future. whose violence caused the delay had but a short It is shown that his office can be supplied with less time before becn employed by the company. In expense and trouble to respondent than many oththe case of the Pittsburg, Cincinnati and St. Louis ers which are furnished by it. No reason can be asRailroad Co. v. Hollowell

, 65 Ind. 188; S. C., 32 signed wily respondent should not furnish the reAm. Rep. 63, the action was for damages oc- quired instruments, except that it does not want to. casioned by the breach of an agreement to ship live There could, and doubtless does exist in many stock, and such breach was occasioned by a strike cases, sufficient reason for failing to comply with among the employees of the company. The ques- such a demand, but they are not shown to exist in tion was raised upon a demurrer to the pleading this case. It is known to be essential to the busiThe majority of the court held the pleading insuffi- ness interests of relator that his office be furnished cient, but differed in reference to its construction with a telephone. The value of such property is of and not in reference

to the rule of law course conceded by respondent, hut by its attitude, applicable. The rule as there stated is, that it says it will destroy those interests and give to whether the persons causing the delay complained some one in the same business, who may have been of were the employees of the defendant or not, was more friendly, this advantage over him. It is said a question of fact for trial, and that where the de- by respondent that it has public telephone stations lay was caused by a strike or mob composed solely in Lincoln, some of which are near relator's office, of the employees of the railroad company, the com

and that he is entitled to and may use such telepany will not be excused from carrying the freight phone to its full extent by coming there; that like in accordance with its contract. This case appears the telegraph, it is bound to send the messages of to be in point, and in accordance with the weight relator, but it can as well do it from these public of authority in this State. We do not regard it as stations; that it is willing to do so, and that is all in conflict with the case of the Pittsburg, Fort that can be required of it. Were it true that reWayne and Chicago Railroad Co. v. Hazen, supra. spondent had not undertaken to supply a public deIn that case the evidence tended to show that the mand beyond that undertaken by the telegraph,

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then its obligations would extend no further. But before its production could be insisted on. I adas the telegraph has undertaken to the public to mit that in such a case much reliance must be send dispatches from its offices, so the telephone placed on the declaration of the president, and I has undertaken with the public to send messages do think that a privilege does exist to withhold prifrom its instruments, one of which it proposes to vate letters of a certain description. The reason is supply to each person or interest requiring it, if this: letters to the president in his private characconditions are reasonably favorable. This is the ter are often written to him in consequence of his basis upon which it proposes to operate the de- | public character, and may relate to public concerns. mand which it proposes to supply. It has so as- Such a letter, though it be a private one, seems to parsumed and undertaken to the public. That the take of the character of an official paper, and to be telephone, by the necessities of commerce and pub- such as ought not on light ground to be forced into lic use, has become a public servant, a factor in the public view. Yet it is a very serious thing, if such commerce of the nation, and of a great portion of a letter should contain any information material to the civilized world, cannot be questioned. It is to the defense, to withhold from the accused the all intents and purposes a part of the telegraphic power of making use of it. It is a very serious system of the country, and in so far as it has been thing to proceed to trial under such circumstances. introduced for public use, and has been undertaken I cannot precisely lay down any general rule for by the respondent, so far should the respondent be such a case. Perhaps the court ought to consider held to the same obligation as the telegraph and the reasons which would induce the president to other public servants. It has assumed the responsi- refuse to exhibit such a letter as conclusive on it, bilities of a common carrier of news. It has and unless such letter could be showu to be absolutely must be held to have taken its place by the side of necessary in the defense. The president may himthe telegraph of such common carrier. The views self state the particular reason which may have inherein expressed are not new.” Citing Pensacola duced him to withhold a paper, and the court Tel. Co. v. W. U. Tel. Co., 96 U. S. 9; State v. Bell | would unquestionably allow their full force to these Telephone Co., 36 Ohio St. 296; S. C., 38 Am. Rep.

At the same time the court could not re583, and note, 587.

fuse to pay proper attention to the affidavit of the
accused. But on objections being made by the

president to the production of a paper the court RULES AS TO THE PRIVILEGES OF WIT

would not proceed further in the case without such

an affidavit as would clearly show the paper to be
essential to the justice of the case. On the present

occasion the court would willingly hear further tesRULE. An officer of the government is not compella- timony on the materiality of the paper required, ble to give evidence (a) or to produce documents (b)

but that is not offered. In no case of this kind which, in his opinion, it is for the public interest to keep would a court be required to proceed against the secret (1); nor in any case while he is officially en

president as against an ordinary individual. The gaged in the duties of his office (c).

objections to such a course are so strong and so obThe first judicial expression and enforcement of vious that all must acknowledge them. But to this rule is believed to have taken place in the cele- induce the court to take any definitive and decisive brated American State trial of Aaron Burr (2), step with respect to the prosecution, founded on Chief Justice Marshall saying: “That the president the refusal of the president to exhibit a paper, for of the United States may be subpænaed and exam- reasons stated by himself, the materiality of that ined as a witness, and required to produce any pa- paper ought to be shown. In this case however per in his possession is not controverted. I cannot the president has assigned no reason whatever for however on this point go the whole length for withholding the paper called for. The propriety which counsel here contended. The president, al- of withholding it must he decided by himself, not thcugh subject to the general rules wbich apply to by another for him. Of the weight of the reasons others, may have sufficient motives for declining to for and against producing it he is himself the judge. produce a particular paper, and those motives may It is their operation on his mind, not on the mind be such as to restrain the court from enforcing its of others, which must be respected by the court, production. I do not think precisely with the They must therefore be approved by himself, and gentlemen on either side. I can readily conceive not be the mere suggestions of another to him. It that the president might receive a letter which it does not even appear to the court that the presiwouid be improper to exhibit in public, because of

dent does object to the production of any part of the manifest inconvenience of its exposure. The

this letter. The objection, and the reasons in supoccasion for demanding it ought in such a case to port of the objection, proceed from the attorney be very strong, and to be fully shown to the court himself, and are not understood to emanate from

the president. He submits it to the discretion of (1) Marbury v Madison, 1 Cranch, 137 (1803); Totten v. United States, 92 U.S. 105 (1875); R. v. Fiardy, 24 How, St.

the attorney. Of course it is to be understood that Tr. 199; R. v. Watson, 32 id. 102.

he has no objections to the production of the whole (2) Burr's Trial, vol. 2, page 535.

if the attorney has not. Had the president when

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