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cause. The county court held that the deed of 9 Cal. 494; Gaines_v. Poor, 3 Metc. (Ky.) 503; separation was a defense to the petition.

Walker v. Walker, Exr., 9 Wall. 743. This conVEAZey, J.

tract is therefore one of a character that the This is a libel for divorce on the ground of court may recognize for some purposes. It is not intolerable severity, and was dismissed by the necessarily and utterly void. In this case it is not county court, that court holding that the con- invoked by the defendant as a bar to the restitutract entered into between the libellee and the tion of the libellant to any of her conjugal rights. father of the libellant, acting in her behalf, The separation grew out of trouble between the after the separation, operated as a defense to the husband and wife. The alleged cause of dipetition for the cause alleged, which had ac- vorce then existed in her favor, if it existed at crued before the contract was made.

all, and was known to her. In this situation, The point is made in behalf of the libellant and after the separation, she, through the interthat the question should have been raised by vention of a trustee, agreed upon the terms as to plea instead of motion, as it was based on mat- property upon which she would live separate ters dehors the record. This would be a correct from her husband. This property (including view, except that it appears that this contract the money specified in the contract), except, as was treated on the hearing in the county court is claimed, a portion of househeld furniture, was as though properly in the case for consideration, delivered or paid to and accepted by the trustee and that there was no material dispute about it, in her behalf.

in her behalf. After all the other provisions as and that the decision of that court was invoked to what property and money she was to have, it by both parties as to the legal effect of that con- was further provided in the contract as follows: tract upon the petition. Under these circum- "And the said parties further agree to and with stances we think the case should be treated here each other that they will not molest, disturb or as the parties treated it in the county court, and tro

trouble each other, or in any way publish or be decided upon the merits, no technical ques- speak or circulate slanderous matter of or contion of pleading or practice appearing to have cerning each other, but live separate and apart been raised in that court.

in a quiet and peaceable way, according to the The question, as before stated, is as to the true intent of these presents.' He has substaneffect of this contract, under the circumstances tially performed on his part, and she has received disclosed upon this petition for divorce. It will the benefits. The question about the household be noticed that this contract was entered into furniture seems to be one of difference as to what after the separation and through the interven- the contract covered in that respect, not a refusal tion of a person acting for the wife. It is not to perform by the husband. The contract 'was the policy of the law to encourage separations be- not strictly a condonation of alleged wrongs. tween husbands and wives. The rule as estab- The wife instead of forgiving her husband upon lished in many cases is that articles calculated promise of better treatment, agreed with him to favor a separation which has not yet taken upon terms of separation, which were satisfacplace will not be supported. Durant v. Titley, 7tory, and no complaint is now made in regard to Price, 577 ; St. John v. St. John, 11 Ves. 526; them. Nearly two years afterward this petition Westmeath c. Westmeath, Jac. 126.

was brought. But as stated by Cooley, Ch. J., in Randall v.

In the English Ecclesiastical Courts, it is held Randall, 37 Mich. 563; "When a separation has that a voluntary deed of separation between husactually taken place, or it has been fully decided upon, and the articles contain a suitable provis-titution of martial rights or to a petition for

band and wife is not per se a bar to a suit for resion for the wife and children, or on equitable and

divorce. Durant v. Durant, 1 Hagg. 733 (3 Eng. suitable division of the property, the benefits of

Ecc. R. 310); 1 Bishop, § 634. and n. 3. But which both have enjoyed during the coverture,

there are other cases where the deed, taken in no principle of public policy is disturbed by

connection with the circumstances under which them; on the contrary if they are fair and equal, it was given, and under which the application and are not the result of fraud or coercion, rea

for divorce was made, and with the conduct of sons abundant may be found for supporting the parties, was held to constitute a defense, and them, in their tendency to put an end to contro

the application was denied. Matthews v. Matversies, to prevent litigation, and to give the

thews, 1 Swabey & Trist. 161 ; Williams v. Wilwife an independence in respect to ber support liams, 35 Law J., decided in 1866. We think which without some such arrangement she could this case belongs to that class where the parties not have under the circumstances."

Among the

should be held to their own settlement; and that numerous cases that have settled the law as

the deed of separation, under the circumstance, stated, may be found the following: Compton v. is a good defense to this petition. See Brown v. Collinson, 2 Bro. Ch. 377; Worral v. Jacob, 3 Brown, 5 Gill, 249; Hunt v. Hunt, 32 Law J., Meriv, 266; Jee y. Thurlow, 2 B. & C. 547; S.C., Rep. 168; J. G. v. H. G., 33 Md. 401. 4 D. & R. 11; Baker v Cooper, 7 Serg. & R. 500;

The judgment of the county court is affirmed. Hutton v. Duey, 3 Penn. St. 100; Dillinger's Ap. peal 35 id. 357; Nichols v. Palmer, 5 Day 27; Baker v. Barney, 8 Johns. 73; Shelthar v. Greg

"What is your occupation ?" asked the magistrate, as ory, 2 Wend. 422; Carson v. Murray, 3 Paige,

he beamed at the burglar through his spectacles..“Wot

hom I, yer washup?" replied the burglar in his most 483; Chapman v. Ġray, 8 Ga. 341; Wells v. Stout, silvery tones, “why, a house cleaner, in course !"


UNITED STATES CIRCUIT COURT, D. minor to leave the service openly after demandMASSACHUSETTS.

ing his release, nor that he could be tried and

punished after a court had released him. IN RE WALL.

It appeared upon the cross-examination of a

witness that Wall was actually tried and JULY 2, 1881.

sentenced while in the constructive custody of 1. Federal Enlistment- Minor-Validity.

the district court, the officer who had him in

The tract of enlistment of a minor, who is old enough to

charge not thinking it worth while to inform understand the contract, and who was accepted in good the court that the proceedings in the district faith as being of full age, is voidable only and not void. 2. Ibid.-Ibid.--Triał by Court-marti-Habeas Cor

court were pending. This conduct was highly pus. A minor under enlistment by virtue of a voidable

reprehensible. Whether the sentence is a valid contract of enlistment may be arrested for the military one, under these circumstances, is a question not crime of desertion, and if a court-martial has been ordered to try the offence, he ought not to be discharged

brought here by the appeal, which is merely for on habeas corpus.

a review of the decision by the district court.

If Wall or his friends should be so advised, they Wall enlisted in the United States Marine Corps, taking the usual oath that he was up

may probably be able to try this question upon wards of twenty-one years old. He deserted

new and independent proceedings. from the navy-yard at Charlestown, and was

Appeal dismissed. arrested as a deserter. An order was issued for his trial by court-martial, and was received May

UNITED STATES CIRCUIT COURT, D. 11, 1881, at nine A. M. At noon of the same day

KENTUCKY. a writ of habeas corpus was served on the officer commanding the marines at Charlestown.

PEPPER V. LABROT. Upon the hearing before Judge Nelson, in the district court, it appeared that Wall was under

JULY, 1881 eighteen years of age when he enlisted, and was Trade-mark-Name of Factory-Sale of Factory. When

a trade-mark consists merely in the name of the estabunder twenty-one years when the trial took

lishment wbere the manufacture is carried on, and beplace. On appeal from the decision of the comes attached to the manufactured article only as the district court.

product of that particular establishment, a sale of the

establishment will carry with it to the purchaser by LOWELL, J.

operation of law the exclusive right to use the name it The district judge decided that the enlistment bad previously acquired, in connection with his own of a minor who was old enough to understand

manufacture at the same place of a similar article. the contract, and who was in good faith accept- Bill for injunction and account and cross-bill ed as being of full age, was voidable only and for injunction. The complainant in 1874 was not void ; and that if he had committed the the owner of land on which his father, in his military offence of desertion, and was under lifetime, had carried on a distillery, manufac. arrest for that crime, and the court-martial had

martial had turing whiskey which was known as “Old Crow been ordered to try him, he ought not to be dis- Whiskey," and the distillery was known as charged on habeas corpus. This view of the Oscar Pepper's Old Crow Distillery. Complainrights of the parties is sustained by the author- ant erected a new distillery and manufactured ities cited. See Commonwealth v. Gamble, 11 whiskey, branding the barrels : "Old Oscar S. & R. 93; Ex parte Anderson, 16 Iowa, 595; Pepper Distillery

Pepper_Distillery; Hand-made Sour Mash; McConologue's case, 107 Mass. 154, 170, per James E. Pepper, Proprietor, Woodford County, Gray, J.; Re Dee, 25 Law Rep. 538; Re Beswick, Ky.," and used the same as a trade-mark in 25 How. Pr. 149. It is true that Commonwealth circulars, bill-heads, etc.

circulars, bill-heads, etc. The complainant bev. Gamble, 11 S. & R, 93, is doubted in a later came bankrupt, and his premises, machinery, case in the same court (Commonwealth v. Fox, 7 etc., were sold by his assignees as the “old Penn. St. 336), but in this case the judges found Oscar Pepper Distillery," and became the propthat the statute made such an enlistment abso- erty of defendants, who manufactured whiskey lutely illegal, and for that reason held it to be there, and used the trade-mark adopted by comvoid. I have not found a corresponding statute plainant, substituting their own name as proapplicable to this case. It is illegal to enlist a prietors. marine between eighteen and twenty-one years

MATTHEWS, J., old, without the consent of his parent or In delivering the opinion of the Court, said: guardian, if any he have; and if an officer does The construction of the complainant is, that the this knowingly, he is liable to punishment; but words "Old Oscar Pepper," and the abbreviation this minor had neither parent nor guardian. of them, “O.O. P.," constitute a brand or mark His contract was voidable at common law; but I originally adopted by him to designate do not see how I can hold it to be void. whiskey as made by him, without reference to McNulty's case, 2 Low. 270. If not, it seems to the place of manufacture; and that by use and follow that if he commits a military offence, and recognition it has become associated in the is actually arrested and in the course of trial be- minds of dealers and the public with the article fore the contract is duly avoided, he may be manufactured by him, so as to constitute its tried and punished. I do not mean to be under- name in the trade, whereby to distinguish it stood as deciding that it would be desertion in a from a similar article made by any and all others. On the other hand, the defendants to the manufactured article only as the product claim that the words in question were origin of that particular establishment, a sale of the ally used, and their use subsequently continued, establishment will carry with it to the purmerely to designate the fact that the whiskey chaser the exclusive right to use the name it contained in the packages so marked or spoken had previously acquired, in connection with his of in advertisements, circulars, signs, etc., on own manufacture at the same place of a similar which the mark was burned or printed, was article, by operation of law. Congress Spring made at the distillery so designated; and that case (N. Y.), Cox's Trade-Mark Cases, 599; that was done because the distillery, or its Manuf. Co. 0. Hall, 61 N. Y. 229; Carmichael v. predecessor on the same site, had acquired a Lattimer, 11 R. I. 407; Booth o. Jarrett, 52 How. reputation in connection with the manufacture Pr. 169. of whiskey which was sufficient to recommend Decree for defendant. any article made at the same place. The clear result of the whole evidence seems,

SUPREME COURT OF PENNSYLVANIA. in our opinion, to be that the complainant adopted the name of “Old Oscar Pepper Distill

PHILADELPHIA & READING RAILROAD Co. v. ery as the name of his distillery, in order that

SCHARTEL. the whiskey manufactured by him there might have the reputation and whatever other advan

MAY 23, 1881. tages were to result from that association. That

In a suit against a railroad company for damages for distillery having now become the property of injuries caused by defendant's negligence, the court the defendants by purchase from the complain- should take the case from the jury if there is no eviants, can they be denied the right of using the

dence of negligence. name by which it was previously known in the Error to the Court of Common Pleas of Schuylprosecution of the business of operating it, and

kill county of describing the whiskey made by them as its Paxson, J. product? Can the complainant be permitted to This was an action brought by the widow and use the brand or mark formerly employed by minor children of George Schartel, deceased, to him, to represent whisky made by him else- recover damages for injuries resulting in his where as the actual product of this distillery? death. The declaration alleges that said injurBoth these questions, in our opinion, must be ies were occasioned by the negligence of the answered in the negative. Amoskeag Manuf. Philadelphia and Reading Railroad Company, Co. 0. Trainer, 101 V. S. 51; Canal Co. v. Clark, defendants below. The jury having found the 13 Wall. 311; Amoskeag Manuf. Co. v. Spear, 2 negligence, the cause has been removed to this Sandf. (Sup. Ct.) 599. It would seem that the court, and several errors have been assigned to trade-mark claimed by the complainant cannot the rulings of the court below. As the seventh be sustained as a designation of whiskey manu- and last assignment, if well taken, renders a factured by him without reference to the place discussion of the others unnecessary we will of its production, and that it is not, therefore, a consider it here. lawlul trade-mark at all, in the proper sense of By the defendant's ninth point, the court was that term. It is rather the trade name of the called upon to pass upon the sufficiency of the distillery itself, of which he was at one time the evidence, the point being: "That under all the proprietor, but which now is the property of the evidence in this case the plaintiffs cannot redefendants. Neither by its own meaning, nor cover.” The learned judge declined to so inby association, does it indicate the personal struct the jury upon the ground that it would origin or ownership of the article to which it is withdraw the case from their consideration. affixed. It does not seem to give notice who This was the object of the point. It was not was the producer

. It could be applied by him, error to refuse it if there was sufficient evidence with truth, to his goods only while he was the of the negligence of the defendant company to owner of the distillery named, and then only, submit to the jury: On the other hand it is not to all whiskey of his manufacture, but only equally clear that if there was no evidence, or to that actually produced at that distillery. It at most a scintilla, it was the duty of the court can now be used without practising a deception to withdraw the case from the jury and give a upon the public only by the defendants. It binding instruction to find for the defendant. points only at the place of production not to the The authorities upon this point are numerous ; produce. If a trade-mark at all, in any lawful it is sufficient to refer to a few of the later ones : sense, it is cnly in its use in connection with the Howard Express Co. v. Wile, 14 P. F, S., 201; article which it truthfully describes ; that is, Hoag v. The Railroad Co., 4 Norris, 293; Pennwhiskey wh is actually manufactured at the sylvania Railroad Co. v Fries, 6 Id., 234, and Old Oscar Pepper Distillery, in Woodford County. Mansfield Coal and Coke Co. v. McEnery et al., Hall v. Barrows, 4 De G., J. & S., 157; Kidd v. heretofore decided by this court. Johnson, 100 U. S. 617. It is a 'fair 'inference I have looked in vain through this record for from these authorities that when, as in the pres- any'

any'evidence of negligence on the part of the ent case, the trade-mark consists' merely in the defendant company. řhere is not even a scinname of the establishment itself where the tilla. The deceased was at the time of the acci. manufacture is carried on, and becomes attached dent, and had been for years prior thereto, a brakeman in the employ of the company. On SUPREME COURT OF PENNSYLVANIA the night of the injury, which unfortunately resulted in his death, he was engaged in coup

HOME INSURANCE Co. 1. TIGHE. ling and uncoupling the cars of a freight train. While so engaged, in some manner unexplained

MAY 2, 1881. to the jury, he fell under the wheels of the tank

When an insurance company, after due notice, effect or tender of the locomotive, which passed over a cancellation of the policy, in order to extinguish the one of his legs, producing the injury complained liability of the company for the insurance, actual payof. As to how he fell, or the cause of his falling,

ment of the sum to be refunded must be made.

When a due bill or certificate of indebtedness is given there is not a word of evidence. The theory of for the return premium it is properly left for the jury to the plaintiffs was that his fall was occasioned decide whether such instrument is accepted as payment either by reason of the roughness or inequali

or only as an evidence of indebtedness. ties of the track, or in an attempt to get on the

Error to the Court of Common Pleas of Wayne county. tank; the allegation being that the step was

Mary Tighe, an illiterate woman, insured her house defective and that he missed his footing because

with the Home Insurance Company. The company, of such defect. It appears from the evidence

through its agent, undertook to cancel the insurance. that the track at the particular point where the

Due notice was given and Mary Tighe met the agent accident occurred was in the course of being re

and signed the cancellation of the policy. The agent

then handed her a kind of due bill or certificate of inpaired; that it had been raised a few inches,

debtedness on the part of the company for the portion and the space between the ties had not been ballasted or filled in; that as regards the step, it

of the premium returnable to her. The court below left was not defective in its construction, but as

it to the jury to find whether Mary Tighe had accepted

the due bill as an actual payment, or as only an eviplaintiffs alleged, was not in the position it

dence of debt. should have been to insure the greatest amount

MERCUR, J. of safety. Yet even as to this point, the plaintiff's own evidence was entirely balanced, while it

The company had a right at its option to terminate

the insurance at any time, on giving notice to that efwas not denied that the deceased had used the

fect and refunding a ratable proportion of the premium step for a year without complaint to the com

for the unexpired term of the policy. The company pany, and that if he had made objection to it,

gave the necessary notice, and the insured delivered the the rule or practice of the company required it

policy to the agent of the company without his paying to be changed to suit the crew operating the her any money for the unexpired portion of the term. engine, of which the deceased was one.

He gave to her a writing called by him a due bill, statHad there been evidenee to show that the

ing the sum due her. The main contention is wbether deceased came to his death by reason of the she accepted that in payment. If she did not then she condition of the track, or of the step, it would, was not repaid, and the insurance was in force at the notwithstanding, have been too weak and in- time of the loss. It is claimed on her part that she did conclusive to establish negligence on the part not voluntarily and understandingly surrender her of the defendant company and to base a verdict policy. The first assignment is that the court erred in for damages upon. There certainly was no duty submitting that question to the jury without evidence. to ballast the track for the safety of its em

She died before the trial and her evidence is not in the ployees, and, except perhaps at a crossing, no case. It is contended, however, that the evidence given such duty to the public. Besides, the inequalities by the plaintiff in error was sufficient to justify the subwere occasioned by necessary repairs to the

mission. track, of which repairs the deceased as an em

The evidence of the agent of the company does not fairly ployee of the company must be presumed to

indicate that he drew and had her sign the cancellation have had knowledge.

of the policy before he said any thing to her indicating There was not, however, as before stated, a

that he would not pay her the refunding muney at the particle of proof that either the track or the

time. She had a right to exact the payment, and may step had anything to do with his death. For

reasonably have 'supposed she was then to be paid. aught that appeared he may have fallen in a

When he handed her the due bill, and explained in refit, or from some cause wholly disconnected with

gard to its payment, she made no reply. As bearing on either. The case was submitted to the jury

the presumption that she did not understandingly sur

render her insurance without the payment of any money without evidence, and the verdict has no better foundation than a guess, or at most mere possi

the character of the paper given must be considered. He bilities. This will not do. The practical effect

calls it a due bill, but it is more like a certificate of in. of the judgment below is to take the property of

debtedness. It is a writing signed "E Killam, agent,

declaring there is due Mary Tighe from the Home Insurthe defendant and give it to the plaintiffs.

ance Company of New York, the sum of $10.66, the reThis is not allowable, even in the case of a

turn premium on policy No. 558." corporation.

Thus the agent states the fact that the sum specified is Judgment reversed.

due, not from him, but from the company. If thus au

thorized by the company it created an implied promise Frank Walworth, of New York, who shot his to pay it, but the time when is not stated. On its face father, will, it is said, soon marry an heiress who it would be demandable at once. The agent says, he has passed several summers at Saratoga. If you was to pay it over after he received it from the company. want to marry an heiress shoot your father, and When that would probably be he did not state. The then her father won't dare make a fuss.

law would imply it should be in a reasonable time. It casual connection is broken as to either party, when the Judgment affirmed..


could hardly be expected that she was obliged to go to recover, if his own want of care has contributed to the inNew York to demand payment. In view of the fact that jury, some courts overlook the reason of the rule. They she was entitled to the money at the time she handed quote the maxim “No one shall profit by his own wrong," over the policy, it was proper to consider whether she or the maxim “Volenti non fit injuria," and then attach could have understood it was to be withheld from her the entire blame to the plaiutiff.. They require him not for an indefinite time in the future. The fire occurred only to show the fault of the defendant, but also to anticthirteen days after the evidence of indedtedness ipate a possible defense; and if he fail in this, they comgiven, yet the money was not paiil. Is it reasonable to pel him to bear the whole damage. assume that she understood there would be, or assented By the rules uf pleading the plaintits should not be reto, such delay? The length of time required for com- quired to set up that which would more properly come municating between New York and Hawley is about five from the other side. Even just defenses are left for the hours. Under all the circumstances shown in regard to defendant. the transaction we think there was enough to justify the Much more, then, should we leave for the defendant submission of these facts to the jury. Whether Mrs. the unjust defense which is to excuse him from compenTighe did in fact accept the due bill in payment was sation, not because he deserves to be excused, but because. properly submitted to the jury. A clear distinction ex- the law is inadeqħate to apportion the damages. If we ists between taking it as a payment or as an admission analyze a cause of action in tort, we find but two eleof indebtedness. To extinguish the liability of the com- ments: a wrong by one person, resulting in a damage to pany for the insurance, actual payment of the sum to be another person. To make out these two elements prima refunded must be made, Hathorn 1. Germania Ins. Co., facie, is all that should be required of the plaintiff in the 55 Barb. 28; Van Valkenberg v. Lennox Fire Ins. Co., 51 first instance. “But," it is said, “the casual connection N. Y. 465 ; Ætna Ins. Co. v. Maguire, 51 Illinois, 242 ; between defendant's negligence and the injury is broken Holden ». Putnam Fire Ins. Co., 46 N. Y. 1. It is un- by the intervention of plaintiff's negligence, and hence necessary to discuss the other assignments in detail, the latter can not make out a prima facie case without what we have said sufficiently covers them. We discover showing his own due care." How can it be said that the no error therein.

fault of both contributed to the injury.

But suppose it were broken. Suppose plaintiff saw the THE BURDEN OF PROOF OF CONTRIBUTORY NEG- obstruction and ran against it willfully. The burden LIGENCE.

should still be upon the defendant to sbow this fact ; and

if plaintiff, without showing his own fault, could show In an action for personal injury through vegligence, the negligence of the other party, and an injury to himthe Federal courts put upon defendant the burden of self apparently resulting therefrom, he would bave a good showing contributory negligence of the plaintiff

. In the prima facie case. The burden of proofrests upon the courts of Iowa the plaintiff is required to show affirma- party maintaining the affirmative. A negative is notoritively his own freedom from negligence. Here are two ously hard to prove. Yet, when we require the plaintiff rules very unlike each other. Which is the better of the to show no want of ordinary care on his part, we require two? Suppose a house to stand close a narrow street. him to establish a negative. But," some will say, “this The owner, for the purpose of repairing the house, puts a

is an essential element in the case." If that were true, pole across the street. Another man comes riding along the law has already established this negative before the on horseback at a violent speed and runs against the pole suit began. The common law presumption is that everywithout seeing it. He is injured and sues the owner of one does his duty, until the contrary is proved. Every the house.

person is presumed innocent of crime, or fraud, or tresNow it is evident that both are to blame. If the plaint- pass; why not negligence? These things are presumed iff had been riding carefully, he would have seen the on- because they occur in a majority of cases. They are in struction and avoided the injury. If the defendant had accordance with the natural order and general state of not put up the pole the accident would not have hap- things. It is a contradiction in terms to say that the mapened. Since both contributed to the injury, it would jority of men do not use ordinary care. Ordinary care is seem unjust that one alone should bear the damage. In just that care which the majority of men do use under strict justice the defendant ought to compensate the like circumstances to avoid injury and preserve life. All plaintiff and so share the damage resulting from their the instincts of his nature lead him to do this. joint negligence. Thus each would suffer for his wrong. Now, the presumption of ordinary care is always recog

If there is no compensation, the defendant does not suf- nized in favor of the defendant. Considering the great fer for his wrong, and he may even profit by that which strength of the motives for care on the part of the plaintwas the occasion of the injury. But, from the difficulty iff, since the personal injury threatens him alone, how of determining to what extent the negligence of each much more should the presumption of care exist in his party was instrumental in producing the injury, it has favor. become a well-settled rule that the law will not apportion But what do we presume when we require him to allege the damages.

and prove ordinary care on his part ? Such a rule can Hence the doctrine that in order to maintain an action proceed only on the presumption of plaintiff's negliin such a case, two things must concur: 1. Negligence of gence. This is contrary to all reason and common sense. the defendant causing the injury. 2. No want of ordi- We presume defendant's care, and compel the plaintiff to nary care on the part of the plaintiff.

show the contrary. Then we presume plaintiff's negliHow, then, shall these two essentials be determined ? gence in excuse of defendant's negligence and compel the All agree that the burden of proving the first should be plaintiff to rebut this presumption. There is no principle upon the plaintiff. But must be go still further and as- of law or justice on which to ground such a rule. If the sume the burden of showing his own freedom from neg- presumption of ordinary care exists in favor of the deligence? In applying the rule that the plaintiff cannot fendant, it exists also in favor of the plaintiff, and he must

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