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Hence it seems to be eminently proper that where the the exclusive legislative authority of the Dominion legislative power exists some statutory provision Parliament. It had no power to borrow money or inshould be made for binding the minority in a reasona- cur debts except for completing, maintaining ble way by the will of the majority; and unless as is and working its railway. The bonds taken by the case in the States of the United States, the passage the defendants in error showed on their face that they of laws impairing the obligation of contracts is forbid- were part of a series amounting in the aggregate to & den, we see no good reason why such provision may very large sum of money, and that they were secured not be made in respect to existing as well as prospect- by a trust mortgage on the railway of the company, its ive obligations. The nature of securities of this class lands, tolls, revenues, etc. In this way the defendis such that the right of legislative supervision for the ants in error, when they brought their bonds, were in good of all, unless restrained by some constitutional legal effect informed that they were entering into prohibition, seems almost necessarily to form one of contract relations not only with a foreign corporation their ingredients, and when insolvency is threatened, created for a public purpose, and carrying on its busiand the interests of the public as well as creditors are ness within a foreign jurisdiction, but with the holders imperiled by the financial embarrassments of the cor- of other bonds of the same series, who were relying poration, a reasonable "scheme of arrangement” may equally with themselves for their ultimate security on in our opinion as well be legalized as an ordinary a mortgage of property devoted to a public use, “composition in bankruptcy.” In fact such “ar- situated entirely within the territory of a foreign rangement acts" are a species of bankrupt acts. Their government. object is to enable corporations created for the good A corporation must dwell in the place of its creaof the public to relieve themselves from financial em- tion, and cannot migrate to another sovereignty," barrassments by appropriating their property to the Bank of Augusta v. Earle, 13 Pet. 588, though it may settlement and adjustment of their affairs, so that they do business in all places where its charter allows and may accomplish the purposes for which they were in- the local laws do not forbid. Railroad Co. v. Koontz, corporated. The necessity for such legislation is 104 U. S. 12. But wherever it goes for business it carclearly shown in the preamble to the Grand Trunk ries its charter, as that is the law of its existence, Relf Arrangement Act, 1862, passed by the Parliament of v. Rundel, 103 id. 226; and the charter is the same the Province of Canada on the 9th of June, 1862, before abroad that it is at home. Whatever disabilities are the establishment of the Dominion government, and placed upon the corporation at home it retains abroad, which is in these words:

and whatever legislative control it is subjected to at “ Whereas the interest on all the bonds of the Grand liome must be recoguized and submitted to by those Trunk Railway Company of Canada is in arrear, wbo deal with it elsewhere. A corporation of one well as the rent of the railways leased to it, and the country may be excluded from business in another company has also become indebted, both in Canada country, Paul v. Virginia, 8 Wall. 168, but if admitand in England, on simple contract, to various persons ted, it must in the absence of legislation equivalent to and corporations, and several of the creditors have making it a corporation of the latter country be taken, obtained judgment against it, and much litigation is both by the government and those who deal with it as now pending; and whereas the keeping open of the a creature of the law of its own country, and subject railway traffic, which is of the utmost importance to to all the legislative control and direction that may the interests of the province, is thereby imperiled, and be properly exercised over it at the place of its creathe terms of a compromise have been provisionally

tion. Such being the law, it follows that every person settled between the different classes of creditors and who deals with a foreign corporation impliedly subthe company, but in order to facilitate and give effect jects himself to such laws of the foreign goverument to such compromise the interference of the Legis- affecting the powers and obligations of the corporation ture of the province is necessary."

with which he voluntarily contracts as the known and The confirmation and legalization of “a scheme of established policy of that government authorizes. To arrangement" under such circumstances is no more all intents and purposes, he submits his contract with than is done in bankruptcy when a "composition"

the corporation to such a policy of the foreign governagreement with the bankrupt debtor, if assented to by ment, and whatever is done by that governmeut in the required majority of creditors, is made binding on furtherance of that policy, which binds those in like the non-assenting minority. In no just sense do such situation with himself, who are subjects of the governgovernmental relations deprive a person of bis prop- ment in respect to the operation and effect of their erty without due process of law. They simply require contracts with the corporatiou will necessarily bind each individual to so conduct himself for the general him. He is conclusively presumed to have contracted good as not unnecessarily to injure another. Bank- with a view to such laws of that government, because rupt laws have been in force in England for more than the corporation must of necessity be controlled by three centuries, and they had their in the Roman law. them, aud it has no power to contract with a view to The Constitution expressly empowers the Congress of

any other laws with which they are not in entire harthe United States to establish such laws. Every mem- mony. It follows therefore that anything done at the ber of a political community must necessarily part legal home of the corporation, under the authority of with some of the rights, which as an individual not such laws which discharges it from liability there, disaffected by his relation to others, he might have re- charges it everywhere. tai red. Such concessions make up the consideration No better illustration of the propriety of this rule he gives for the obligation of the body politic to pro

can be found than in the facts of the present case. tect him in life, liberty and property. Bankrupt laws, This corporation was created in Canada to build and whatever may be the form they assume, are of that work a railway in that Dominion. Its principal busicharacter.

ness was to be done in Canada, and the bulk of its 2. That the laws of a country have no extra-terri. corporate property was permanently fixed there. All torial force is an axiom of international jurisprudence, its powers to contract were derived from tbe Canadian but things done in one country under the authority of government, and all the contracts it could make mere law may be of binding effect in another country. The such as related directly or indirectly to its business in obligor of the bonds and coupons here sued on was a Canada. That business affected the public interests and corporation created for a public purpose, that is to say, the keeping of the railway open for traffic was of the utto build, maintain and work a railway in Canada. It most importance to the people of the Dominion. The had its corporate home in Canada and was subject to corporation had become financially embarrassed, and

was and had been for a long time unable to meet its WILLS.--(1) Complainauts filed a bill in equity allegengagements in the ordinary way as they matured. ing that they were heirs at law of one D., and entitled There was an urgent necessity that something be done to real estate of which she died seized; that the defor the settlement of its affairs. In this the public, the fendant was in possession of such estate claiming title creditors and the shareholders were all interested. A to the same under the will of D., and holding adversely large majority of the creditors and shareholders had to complainants; that said will was procured by the agreed on a plan of adjustment which would enable fraud and undue influence of D. The bill asked that the company to go on with its business and thus ac- the will of D. be cancelled and annulled as void ; that commodate the public, and to protect the creditors to defendant account for his acts as agent of D., during the full extent of the available value of its corporate his life-time and since her death, and that he surrenproperty. The Dominion Parliament had the legisla- der the property mentioned to complainants. Held, tive power to legalize the plan of adjustment as it had that the action to recover the estate was not maintainbeen agreed on by the majority of those interested, able in equity. In Hipp 5. Babin, 19 How. 271, the and to bind the resident minority creditors by its complainants sought by a bill in equity to recover posterms. This power was known and recognized session of real estate to which they claimed title, as throughout the Dominion when the corporation was against a judicial sale, alleged to be void as against created, and when all its bonds were executed and them, under which the defendants were in possession, put on the market and sold. It is in accordance with and also for an account of rents and profits. The court and part of the policy of the English and Canadian refused to entertain the prayer for the recovery of the governments in dealing with embarrassed and insol-possession, on the ground that the remedy of the vent railway companies and in providing for their re- complainants at law was plain and adequate. It was organization in the interest of all concerned. It takes urged that the bill would nevertheless lie for the acthe place in England and Canada of foreclosure sales count. To this the court replied as follows: “Nor in the United States, which in general accomplish sub- can the court retain the bill under an impression that a stantially the saine result with more expense and court of chancery better adapted for the adjustgreater delay, for it rarely happens in the United ment of the account for rents, profits, and improveStates that foreclosures of railway mortgages are any- ments. The rule of the court is, that when a suit for thing else than the machinery by which arrangements the recovery of the possession can be properly brought between the creditors and other parties in interest are in a court of equity, and a decree is given, that court carried into effect and a reorganization of the affairs will direct an account as an incident in the cause. But of the corporation under a new name brought about. when a party has a right to a possession which he can It is in entire harmony with the spirit of bankrupt enforce at law, his right to the rents and profits is also laws, the binding force of which upon those who are a legal right and must be enforced in the same jurissubject to the jurisdiction is recognized by all civil- diction. The instances where bills for an account of ized nations. It is not in conflict with the Constitu- rents and profits have been maintained are those in tion of the United States, which although prohibiting which special grounds have been stated to show that States from passing laws impairing the obligation of courts of law could not give a plain, adequate, and contracts, allows Congress "to establish * * * uni- complete remedy. No instances exist where a person form laws on the subject of bankruptcy throughout who had been successful at law has been allowed to the United States.” Unless all parties in interest file a bill for an account of rents and profits during the wherever they reside can be bound by the arrangement tortious possession held against him, or in which the which it is sought to have legalized, the scheme may complexity of the account has afforded a motive for the fail. All home creditors can be bound. What is interposition of a court of chancery to decide the title needed is to bind those who are abroad. Under these and to adjust the account." This case was cited aud circumstances the true spirit of international comity its doctrine approved and applied in the recent case of requires that scheines of this character, legalized at Root v. Railway Co., 105 U. S. 189. See also Bootle v. home, should be recognized in other countries. The Blundell, 19 Ves. 494. The modern rule is, “that fact that the bonds made in Canada were payable in the usual and generally more convenient practice is to New York is unimportant, except in determining by enable the heir to proceed by ejectment, but that it is what law the parties intended their contract should open to the court to direct an issue, if from any cause be governed, and every citizen of a country, other that course appears desirable.” Boyce v. Rossborthan that in which the corporation is located, may pro- ough, 6 House of Lords Cas. 1. (2) Held also, that no tect himself against all unjust legislation of the for- jurisdiction for the purpose of decreeing the invalidity eign government by refusing to deal with its corpora- of a will and annulling the probate, so far at least as it tions.

gave effect to the will as a muniment of title belongs On the whole we are satisfied that the scheme of ar- to the Circuit Courts of the United States, as courts of rangement bound the defendants in error, and that equity; for courts of equity, as such, by virtue of their these actions cannot be maintained. The same result general authority to enforce equitable rights and was reached by the Court of Queen's Bench in the remedies, do not administer relief in such cases. The Province of Ontario when passing on a similar statute question in this aspect was thoroughly considered and in Jones y. Canada Central R. Co., supra.

finally settled in Broderick's Will, 21 Wall. 503. It was The judgments are reversed and the causes remanded elaborately considered and finally determined in Engwith instructions to enter judgment on the facts found land by the House of Lords in Allen v. McPherson, 1 in favor of the railway company in each of the cases. H. of L. Cas. 191. Jurisdiction as to wills, and their

Field, J., not being present at the argument of this probate as such, is neither included in nor excepted case, took no part in the decision.

out of the grant of judicial power to the courts of the Harlan, J., dissented.

United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be ex

ercised by them at all, until in a case at law or in UNITED STATES SUPREME COURT AB- equity, its exercise becomes necessary to settle a conSTRACT.

troversy of which a court of the United States may

take cognizance by reason of the citizenship of the EQUITABLE ACTION—TO RECOVER POSSESSION OF parties. It has been often decided by this court that REAL ESTATE NOT MAINTAINABLE WHERE NO TRUST the terms “Jaw" and "equity," as used in the ConFEDERAL COURTS NO JURISDICTION AS TO PROBATE OF stitution, although intended to mark and fix the dis

tinction between the two systems of jurisprudence as the Colorado Code of Civil Procedure, as at common known and practiced at the time of its adoption, do law, facts may be pleaded according to their legal not restrict the jurisdiction conferred by it to the very effect, without setting out the particulars that lead to rights and remedies then recognized and employed, it; and necessary circumstances implied by law need but embrace as well not only rights uewly created by not be expressed in the plea. In an action by the statutes of the States, as in cases of actions for the patentee of a placer claim to recover possession of a loss occasioned to survivors by the death of a person vein or lode within its boundaries, an answer alleging caused by the wrongful act, neglect, or default of that the vein or lode was kuown to the patentee to another, Railway Co. v. Whitton, 13 Wall. 287; Den exist at the time of applying for the patent, and was nick v. Railroad Co., 103 U. S. 16, but new forms of not included in his application, well pleads the fact, remedies to be administered in the courts of the United which under $ 2333 of the Revised Statutes, precludes States, according to the nature of the case, so as to bim from having any right of possession of the vein or save to suitors the right of trial by jury in cases in lode. Whether the words “known to exist," as used which they are entitled to it, according to the course in the statute, are satisfied by actual knowledge of the and analogy of the common law. Ex parte Boyd, 105 applicant, or imply also a located claim for the vein or U. S. 647; Boom Co. v. Patterson, 98 id. 406. In Hyde lode, the fact signified by the statute is well pleaded; v. Stone, 20 How. 170-175, it was said, that "the court for by the elementary rules of pleading, facts may be has repeatedly decided that the jurisdiction of the pleaded according to their legal effect, without setting courts of the United States over controversies between forth the particulars that lead to it; and necessary citizens of different States cannot be impaired by the circumstances implied by law veed not be expressed laws of the States, which prescribe the modes of in the plea. Bac. Ab. Pleas and Pleading, I, 7; Co.Lit. redress in their courts, or which regulate the distribu- 303 b. The fact that the vein or lode was kuown to tion of their judicial power.” In Payne v. Hook, 7 exist as contemplated by the statute being well pleaded Wall. 425, it was decided that the jurisdiction of the although in general terms, is admitted by the de Circuit Court of the United States, in a case for equit- murrer. Eaton v. Southby, Willes, 131; Postmasterable relief, was not excluded, because by the laws of General v. Ustick, 4 Wash. C. C. 347; Christmas v. the State the matter was within the exclusive juris- Russell, 5 Wall. 290. In order to present the issue, diction of its probate courts; but as in all other cases the plaintiff should either have traversed the allegaof conflict between jurisdictions of independent and tion, or have replied that no claim for the vein or lode concurrent authority, that which has first acquired bad been located at the time in question. Sullivun . possession of the res, which is the subject of the litiga- Iron Silver Mining Co. Opinion by Grey, J. tion, is entitled to administer it. Williams v. Bene- [Decided Deo. 17, 1883.] dict, 8 How. 107; Bank of Tennessee v. Horn, 17 id. 160; Yonley v. Lavender, 21 Wall. 276; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 id. 454;

MISSOURI SUPREME COURT ABSTRACT. Hook v. Payne, 14 Wall. 255. Ellis v. Davis. Opinion by Matthews, J. [Decided Dec. 10, 1883.]


TO SUE-ACTION AGAINST DIRECTORS FOR FRAUD.-(1) MARITIME LAW-CONFLICT OF LAW-PROCEEDINGS The rule that the question of the plaintiffs legal capacTO LIMIT LIABILITY SUPERSEDE OTHER ACTIONS.—1) ity to sue must be raised either by demurrer or by Proceedings in the District Court of the United States

answer,and if uot so raised is to be deemed waived, does under the act of Congress of 1851 (9 Stat. 635), limit

not apply alone to cases of infancy, coverture, lunacy the liability of ship-owners for loss or damage to

and the like. It applies to all cases where the plaintiff, goods, supersede all other actions and suits for the

though having an interest in the subject of the suit same loss or damage in the State or Federal courts, and the relief demanded, does not show a right to apupon the matter being properly pleaded therein. (2) pear in court and demand such relief in his own The effect of such proceedings in superseding other name. (2) Where the petition in a suit brought by a actions and suits does not depend upon the award of stockholder against certain directors of a corporation an injunction by the District Court, but upon the ob- for a fraudulent breach of trust in dealing with the ject and intrinsic character of the proceedings them corporate property, failed to show either that the corselves, and the express language of the act of Con- poration had refused to sue or that it was under the gress. (3) The power of Congress to pass the act of control of the defendant, but no objection was made on 1851, and of this court to prescribe the rules adopted that score until the case reached this court, held, that in December Term, 1871, for regulating proceedings it could not then be su ined, though if made in under the act, reaffirmed. (4) Loss and damage by time it would have been. Bulkley v. Big Muddy Iron fire on board of a ship are within the relief of the third

Co. Opinion by Hough, C. J. as well as the first, section of the act. (5) Goods transported by steamer from Providence to New York

EVIDENCE-DEATH OF ONE PARTY TO A CONTRACT were injured by fire on board the vessel at her dock in

COMPETENCY OF SURVIVOR AS WITNESS.-- Where one of the latter place, and suits for damage were commenced

two parties jointly bound by a contract is dead, the against the owners of the steamer in New York and adverse party is not thereby disqualified as a witness Boston; thereupon proceedings were instituted by in an action upon the contract between himself and such owners in the District Court of the United States

the survivor. Nugent v. Curran. Opinion by Winsfor the Southern District of New York, under the act

low, Com. of 1851, to limit their liability. Held, that said pro- HIGHWAY-CONDITIONAL DEDICATION.-(1) A dediceedings, properly pleaded and verified, superseded the cation for a street ou condition that the street shall be actions in other courts, and that it was error to pro- extended by the neighboring proprietors without exceed further therein. Providence and New York pense to the dedicator, is void and cannot be accepted Steamship Co. v. Hill Manufacturing Co. Opinion by by the city. Whether the dedication should be Bradley, J.

charged with benefits for the extension would depend [Decided Dec. 18, 1883. ]

upon the charter of the city, and could not be conPUBLIC LANDS-MINING LANDS-CONSTRUCTION OF

trolled by agreement of the parties. (2) A dedication STATUTE AS TO PLACERCLAIMS-EFFECT OF DEMURRER.

can take effect only according to its terms. Hence -A demurrer admits all facts well pleaded. Under

*To appear in 77 Missouri Reports.


land of his ueighbor aud occupied the building, held Wis. 223. Johnson v. Chicago, Milwaukee & St. Paul in an actiun by the neighbor against him, that occupa- Railway Co. Opinion by Dickinson, J. tion was adverse, and that defendant was seised and [Decided July 18, 1883.] possessed of the premises, according to the meaning of the Statute of Limitation. The title of the owner of a freehold estate is described by the terms “seisin," or "seisin in fee;" yet in a proper legal sense the

ILLIVOIS SUPREME COURT ABSTRACT. holder of the legal title is not seised until he is fully invested with the possession, actual or constructive. LEASE-NEED NOT BE SIGNED BY LESSEE TO BIND When there is no adverse possession the title draws to HIM.–Where lease recites that the lessee is to pay it the possession. There can be but one actual seisin, a certain sum as rent for the premises, his acceptance and this necessarily includes possession; and hence an of the lease makes him a direct obligor or promisor to actual possession in hostility to the true owner works pay the rent, although he has not sigued or executed a disseisin, and if the disseisor is suffered to remain the instrument. Such an instrument is not a unilatcontinuously in possession for the statutory period, eral contract. Kershaw v. Kershaw, 102 Ill. 307; Atthe remedy of the former is extinguished. Melvin v. lantic Dock Co. v. Leavitt, 54 N. Y. 35; Schmucker F. Proprietors, etc., 5 Metc. 33; Fowle v. Ayer, 8 N. H.

Sibert, 18 Kau. 104. “An agreemeut contained in a 57. The actual, exclusive possession of the defend- deed poll was enforced, notwithstanding an objection ant must to the extent of the occupancy be deemed which was taken from the unilateral nature of the inadverse, whether the original entry and possession strument." Fry Sp. P.. $ 298; Otway v. Braithwaite, thereunder were by mistake or not. Crary v. Good- 1 Finch, 405; Butler v. Powis, 2 Coll. C. C. 156. See man, 22 N. Y. 173; Swettenham v. Leary, 18 Hun, 284;

also Old Colony R. Co. v. Evans, 6 Gray, 25. The Cole v. Parker, 70 Mo. 372; Melvin v. Proprietors, 5 promise to pay rent was a sufficiently valuable conMetc. 33; Enfield v. Day, 7 N. H. 457; French v. sideration for the promise to lease. Chitty Cont., 11th Pearce, 8 Conn. 439. Seymour v. Carli. Opinion by Am. ed. 50, note d. McFarlane v. Williams. Opinion Vanderburgh, J.

by Scholfield, J. [Decided July 18, 1883.]



REPAIR.-If an employee discovers tbat the service has missible to show that a deed absolute in form was in

become more hazardous than usual, or than he had antended as a mortgage. Any conveyance intended to

ticipated by reason of defective machinery, the rebe a security for the payment of money, or the per- taining of unfaithful fellow servants, or from any other formance of some duty, is a mortgage. 2 Washb. Real

cause, the general rule is, he must quit the service or asProp. (4th ed.) 42. And in order to carry out the

sume the extra risks to which he is exposed. The law actual intention in such case, an enlarged view of the

imposes no obligation on the master to take more care of facts constituting the transaction will be taken by the

the servant than the latter is willing to observe for his court. Steel v. Steel, 4 Allen, 420; Laufair v. Lanfair,

own personal safety. Indianapolis, B. and W. R. Co. 18 Pick. 304; Wilcox v. Bates, 26 Wis. 465. (2) As be

v. Flanagan, 77 111. 365; Pennsylvania Co. v. Lynch, 90 tween the parties, at least, the doctrine is well estab

id. 334; Columbus, C. and I. C. R. Co. v. Troesch, 68 lished that a mortgage may be made to secure future

id. 545. This general rule however has its exceptions. optional advances, or to secure the mortgagee in ad

When the master, op being notified by the servant of vance for an optional liability as indorser or security.

defects that render the service he is engaged to perRobinson v. Williams, 22 N. Y. 381; Ackerman v. form more hazardous and the master expressly promi. Hupsicker, 85 id. 47; Babcock v. Bridge, 29 Barb. 4:27;

ses to make the needed repairs, the servant may conJones Mortg., $$ 369, 372, etc.; Boswell v. Goodwin, 31

tinue in the employment a reasonable time to permit Coun. 74; McDaniels V. Colvin, 16 Vt. 300. “Mort

the performance of the promise without being guilty gages may as well be given to secure future advances

of negligence, and if any injury results therefrom he and contingent debts as those which already exist, and

may recover, unless he should continue in the emare certain and due. The only question that properly

ployment when the danger is so imminent that no arises on such cases is the bona fides of the transac

prudent man would undertake to perform the service. tion." Conrad v. Ins. Co., 1 Pet. 448. Madigan v.

The promise of the master, in such case, relieves the Mead. Opinion by Vanderburgh, J.

servant from the charge of negligence by coutinuing in [Decided Aug. 13, 1883.]

the service. Patterson v. Pittsburg and C. R. Co., 76 NEGLIGENCE-FIRE SET BY LOCOMOTIVE- JOINT

Penn. St. 389; Conrad v. Vulcan Iron Works, 62 Mo. WRONG-DOERS-PROXIMATE CAUSE.-Sparks escaping

35; Hough v. Railway Co., 100 U. S. 213; Holmes v. from an engine set fire to a pile of corn stalks near the

Clark, 7 H. & N. 348; Clark v. Holmes, id. 937. Misrailroad track belonging to one N. The fire was com

souri Furnace Co. v. Abend. Opinion by Scott, J. municated from thence to a barn standing near, and

MUNICIPAL CORPORATION-LIABILITY FOR INJURY thence to the barn of plaintiff which was destroyed.

FROM DEFECT IN STREET.-A city had notice of a hole Held, that the negligence of N. in leaving combustible

in a sidewalk near a railroad crossiug and neglected to material exposed near the railroad was not a defense

repair the same within a reasonable time. A person to an action against the railroad company for loss, and

in passing over such walk, exercising due care, that the injury was not too remote. Either one of the

stepped into the hole, whereby he was unavoidably wrong-doers was responsible, and the concurrent neg

thrown upon the railway track before an approaching ligence of the other would be no defense. McMabon

train of cars, and in attempting to get up his clothes v. Davidson, 12 Mion. 357 (Gil. 232); Eaton v. Boston

caught upon a spike or nail in the sidewalk, and he & L. R. Co., 11 Allen, 500; Barrett v. Third Ave. R.

was struck by the train before he was able to extricate Co., 45 N. Y. 6:28. The injury was not, as a matter of

himself, and killed. Held, the city was liable iu damlaw, too remote to justify a recovery. The result

ages under the statute, to the personal representawas such as may well be considered might have been

tives of the deceased, for causing his death. City of reasonably anticipated. Griggs v. Fleckenstein, 14

Chicago v. Schmidt. Opinion by Mulkey, J. Minn. 81 (Gil. 62); Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469; Pennsylvania R. Co. v. Hope, 80 SPECIFIC PERFORMANCE - WHEN NOT DECREED Penn. St. 373; Kellogg v. Chicago & N. W. R. Co., 26 PATENT.-Courts of equity never decree the specific

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