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aptly expressing our opinion on the conten- on motion of plaintiffs, the Great Southern tions here involved.

Land Company was made a party defendIt follows from these considerations that ant, to set aside deeds executed by plaintiff plaintiff is not entitled to the possession of to defendant Nelson, and by him to the Great the stock in question until he redeems by Southern Land Company. From a decree paying the Anson note, with interest, and the for plaintiffs, defendants appeal. Suit disquestion now is with regard to the remedy missed. which should be applied to do justice to both

Joseph & Haney, for appellants. E. B. parties. [3] Fankhauser has shown no dili. Dufur and H. H. Riddell, for respondents. gence to protect plaintiff after being informed of his rights, and, under the circumstanc

PER CURIAM. In this case it seems es, we think that it will be better to retain that during the progress of the trial the this case and see that both parties receive plaintiffs discovered that the land in questheir dues, rather than return the stock to tion had been conveyed by the defendant the defendant, who might be tempted to pur- Nelson to the Great Southern Land Comsue his own advantage in preference to the pany, a stranger to the suit. On motion of mutual advantage of himself and plaintiff. plaintiffs, at this juncture, the court enWe will therefore direct that defendant cor- tered an order making the land company a poration deposit the 10 shares held by it

party defendant. The amended complaint with the clerk of this court, and that plain-was filed, and nothing was done in that retiff deposit, within 30 days, with the clerk, spect, except, perhaps, to write the name of the sum of $1,000, due upon the note, with the land company in the title of the cause interest at 6 per cent from maturity, and in the original complaint as a defendant. the costs and disbursements of this suit, with

The land company filed an answer identi$160 attorney fees and expenses; that such cal in terms with the answer of the other sum be held for 60 days, within which time defendants; but, in the absence of any sort the defendant shall deposit with such re- of allegation in the complaint in any way ceiver the six shares of stock now in his alluding to it, the court is powerless to enter hands, and thereupon the receiver shall pay a decree binding the Great Southern Land to him the amount deposited, as before re Company. We are convinced that the plainquired, and return to Gray the 16 shares of tiffs have made a good case on the testistock; and that if defendant shall fail to mony against all the defendants; but, withdeposit the six shares he shall be charged, out allegations to support a cause of suit by supplemental decree herein, with the sym against the one confessedly holding the legal of $146 per share, the present value of the title to the real property in dispute, all that shares of stock, and such sum deducted from can be done is to dismiss this suit, withouť the amount of money paid by Gray. In case costs or prejudice to any cause of suit or Gray fails to deposit the sum of money re- action heretofore or now existing in favor of quired herein, within 30 days from the ren- plaintiffs, or either of them, against any or dition of the decree, the stock shall be re-all of the defendants answering herein. turned to defendant Fankhauser and he

It is so ordered and decreed. shall be decreed, by a suitable supplementary order herein, to recover his costs, expenses, and attorney fees, as above indicated.

(58 Or. 578) SMITH V. BAYER et al. Ť

(Supreme Court of Oregon. April 19, 1911.) (58 Or. 409)

1. BILLS AND NOTES (8 523*)-ASSIGNMENTDUFUR et al. V. NELSON et al.

ACTION-EVIDENCE OP TITLE. (Supreme Court of Oregon. April 19, 1911.) Coupled with plaintiff's possession of a JUDGMENT ($ 18*)-PLEADINGS TO SUSTAIN.

note executed to a corporation, its indorsement Where, in a suit to set aside a deed, plain- "0. K.," in the name of one by whom, as

in the name of its treasurer, attested with an tiff obtained an order making a third person, to whom the land had been conveyed, a party signed to the letter in which the note was sent

president, the name of the corporation was defendant, and amended the original complaint by, writing the name of the third person in the plaintiff, , with testimony of plaintiff that the title as a defendant, the court could not make treasurer's signature was in his bandwriting, a binding decree against such person, who filed is prima facie evidence of plaintiff's ownership.

answer identical with the answer of the [Ed. Note.-For other cases, see Bills and original defendant, though plaintiff established Notes, Cent. Dig. $8 1822–1825; Dec. Dig. 8 a good case, because of the absence of allega

523.*] tions in the complaint to support a cause 2. WITNESSES (8 275*)-CROSS-EXAMINATIONS against him.

-PARTY. [Ed. Note.-For other cases, see Judgment, That the note sued on by an indorsee had Cent. Dig. $$ 34-37; Dec. Dig. § 18. * ]

previously been transferred to a third person

by the payee, and settled for with such person Appeal from Circuit Court, Wasco County; by the maker, is not a subject for cross-examW. L. Bradshaw, Judge.

ination of plaintiff, who had testified to the

indorsement to him, but matter of defense. Suit by A. J. Dufur, Jr., and another

[Ed. Note.-For other cases, see Witnesses, against W. F. Nelson, trustee, in which, Dec. Dig. $ 275.*] For other cases see same topic and section NUMBER 10 Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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3. BILLS AND NOTES (8 527*)-DEFENSE OF [2] The cross-examination to which objec. PAYMENT-SUFFICIENCY OF EVIDENCE. tions were sustained related to the transfer

Evidence in an action on a note held in- of the note by the Concordia Company to the sufficient to show payment.

[Ed. Note.--For other cases, see Bills and Fidelity Company in 1899, for the purpose Notes, Dec. Dig. $ 527.*]

of showing that the note was subject to deAppeal from Circuit Court, Multnomah fenses available against the Fidelity ComCounty; John B. Cleland, Judge.

pany. The indorsement on the note was for Action by Milton W. Smith against J. C. collection, and therefore subject to defenses Bayer and another. From a judgment for against the Concordia Company or its succesplaintiff, defendants appeal. Affirmed.

sor in interest. But the ownership of the

note by or the right of the Fidelity Company This is an action on a promissory note to settle the same were matters of defense, given by defendants to the Concordia Loan & and not proper subjects for cross-examinaTrust Company, of Kansas City, Mo., bear- tion. None of the evidence offered, either in ing date of January 30, 1896, in the sum of the cross-examination of plaintiff or on the $290, with interest at 10 per cent., and con- defense, tended to show a revocation of the taining a provision for attorney's fees in transfer of the note to plaintiff. case of action thereon. Certain payments

[3] The admissibility of the evidence offerwere indorsed on the note, and it was trans-ed on the defense as to the consolidation of ferred to plaintiff for collection. The answer the two companies and the correspondence admits the execution of the note, but denies by the Fidelity Company with J. Thorburn the indorsement thereof to plaintiff, and al- Ross, its agent, leading to the settlement of leges that the Concordia Company transfer certain matters between defendants and the red it to the Fidelity Trust Company on or Fidelity Company, depended upon whether before January 1, 1901, and alleges payment there was evidence tending to prove that the : of the note to the latter in February, 1902. defendant did pay or otherwise settle the note At the close of the evidence plaintiff moved with the Fidelity Company, and, treating all the court to direct a verdict in favor of plain the evidence offered and excluded as before tiff, which motion was allowed. Judgment us, we find that there is no evidence of paywas rendered upon the verdict, from which ment or settlement of the note with the Fidefendants appeal.

delity Company, and this renders the conRalph R. Duniway, for appellants. Milton sideration of each exception separately unnecW. Smith and Zera Snow, for respondent, essary.

A letter by the Fidelity Company, dated EAKIN, C. J. (after stating the facts as March 5, 1901, to Mr. Ross, its agent in Portabove). There are many assignments of error land, and with whom defendants claimed to based upon rulings of the court in sustaining have settled the note, relating to certain objections to evidence offered by defendants, mortgage notes, contained a statement of the relating to the indorsement of the note to interest due on such notes and made special plaintiff; to the transfer of the note by the reference to this note, urging its payment and Concordia Company to the Fidelity Company; offering to accept $125 in satisfaction thereand to the settlement thereof by defendants of. On March 12, 1901, Mr. Ross made a with the latter company. [1] The note and statement to the defendants of the interest indorsement thereon were offered in evidence, due, in which he included this note at $175, to which defendants objected, for the reason making a total due of $866.61; and in a that the genuineness of the indorsement had later statement, not dated, but marked “Esnot been established. It appears that the ex- timate for July 1, 1901," it is again included ecution of the note was procured by plain- in a balance due of $946.74. But no settletiff, as attorney for the Concordia Company, ment was made on either of these statements. in connection with securing an extension of On February 3, 1902, another statement was the time of payment of certain mortgage rendered by the Fidelity Company, showing notes of the defendants in the hands of the the amount of interest due on certain mortConcordia Company, and was sent by him to gage notes to be $376.66. As shown by Ross' the latter company for whom he had been do- letter of April 7, 1902, to the Fidelity Coming business; that he was personally ac- pany, settlement was made on April 5, 1902, quainted with A. D. Rider, treasurer of the with defendants for such accrued interest, Concordia Company, and knew his signature according to the statement above mentioned, and handwriting, and testified that the signa- of date February 3, 1902, and including certure to the indorsement was his; that he re- tain fees for securing the extension of the ceived the note from the company in a letter, loans in the sum total of $552.66 ; and on of date July 21, 1896, to which was signed the April 14, 1902, the Fidelity Company accompany's name by "F. Amelung, P.,” who knowledged receipt of the same. These statealso attests the indorsement "0. K., F. Am- ments being itemized show that the payments elung.” This, with 'possession of the note, is did not include this note. Therefore, taking prima facie evidence of plaintiff's ownership the whole of defendants' offers as admitted, thereof.

they do not tend to show payment, and there

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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is nothing in the letter of the Fidelity Com-, Washington, Alaska, British Columbia, and pany, of date February 3, 1902, indicating the Hawaiian Islands by traveling salesmen that this note is included in the statement or and by mail orders. More than half of settlement thereof contemplated. Therefore these accounts were owing by residents of none of the evidence offered by defendants Oregon. If goods sold or ordered were not and excluded could aid the defense, nor does in the Portland stock, the manager ordered it tend to prove the settlement of the notes the same from the Duluth house. About 25 by defendants. It was not error to sustain per cent. of the goods sold by the Portland the objection thereto, and the order directing house were shipped direct to the purchaser a verdict for the plaintiff was not error. by the Duluth house, without passing them

The judgment of the lower court is af- through the Portland house, but the account firmed.

of all sales made by the Portland house

were kept only by it. The goods carried (58 Or. 469)

in stock by the latter house were ordered

from the Duluth house, and if it did not MARSHALL-WELLS HARDWARE CO. V.

have them in stock it ordered them from MULTNOMAH COUNTY et al. (Supreme Court of Oregon. April 25, 1911.) Portland house, except that purchases were

the factories, to be shipped directly to the TAXATION (8 95*)-CHOSES IN ACTION-Busi- made by the Portland manager of such goods NESS TRANSACTED IN THE STATE.

L 0. L. $ 3551, provides that all personal as are manufactured on this coast or hanproperty situated or owned within the state dled here by representatives of the factories. shall be subject to taxation. Section 3553 pro- The manager also extends all credit given to vides that personal property shall include all things in action, money on hand or in deposit, customers, except in cases where credit in all capital invested therein, and debts due or to

an unusual amount is desired, in which case become due, whether on account, contract, note, he refers the matter to the Duluth house. mortgage, or otherwise, either within or with The Portland manager employs, pays, and out the state. A corporation had its principal place of business in Minnesota, and operated discharges the traveling salesmen and sends

branch in Portland, Or. The Portland them out, and the orders are sent usually branch received payment for sales made in Ore- to the Portland house. If sent to the Duluth gon and other states, and collected all accounts incurred with it, retaining from $3,000 house direct by the salesmen, the shipment is to $5,000 in bank to pay current expenses, re- charged to the Portland house, and the acmitting any excess to the main office. Held, count therefor carried on its books as part that cash and accounts in the possession of of the Portland business. No special agreethe branch office, being a part of the Oregon business, are taxable at Portland, irrespectivement was made with the customers as to the of the residence of the debtors.

place of payment of the accounts, but the [Ed. Note.-For other cases, see Taxation, Portland house receives the payment for Cent. Dig. 88 190–192; Dec. Dig. $ 95.*] these sales and collects all accounts incurred

with it. It retains from $3,000 to $5,000 in Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

the bank to pay current expenses, and when Action by Marshall-Wells Hardware Com- money is collected from these accounts it pany against the county of Multnomah and is deposited in the general fund, and remitanother. From a judgment for defendants, to $5,000 or $10,000.

tances are made when the surplus amounts plaintiff appeals. Affirmed.

The contention of plaintiff is that no taxW. M. Gregory (A. C. Emmons, on the es are payable in Oregon upon such accounts, brief), for appellant. S. B. Huston, for re- for the reason that plaintiff is not a resident spondents.

or inhabitant of the state of Oregon, and

has merely a branch office in Multnomah EAKIN, C. J. This is a suit to enjoin the county for the transaction of its business. collection of a tax levied by defendant coun- Plaintiff relies exclusively for such exempty upon the personal property of plaintiff. tion from taxation upon the rule that the

Plaintiff was incorporated under the laws situs of personal property follows the person of New Jersey, and has its principal office of the owner. It concedes, however, that, for in that state, but its principal place of busi- the purpose of taxation, that rule is modified ness is in Duluth, Minn. There is nothing in by the statute and decisions as to tangible the record, other than in the name itself, to personal property, which is taxable where disclose the particular business in which it is situated, but contends that the rule plaintiff is engaged. But it does appear that still operates as to intangible property, such since the year 1903 it has conducted a branch as choses in action. Both the text-writers business in Portland, Multnomah county, and the courts refer to this rule as a legal Or., in charge of Jay Smith, as manager, fiction, by which the situs of personal propcarrying a large stock of goods, which in erty is presumed to follow the domicile of 1906 was of the value of $350,000, and ac- the owner, but that it has no application in counts accruing from sales through the Port determining the situs of the property for land branch in the sum of $225,000; sales the purpose of taxation; that the modificahaving been made in Oregon, California, tion of the rule applies to intangible, as well as tangible, personal property. Many cases | The branch at augusta does business on have held that, when bonds, notes, or other credit, as well as for cash, and in January, evidences of debt owned by a nonresident 1900, it had upon its books, due upon acare in the possession and under the control counts for sale of meat, $6,000, and the quesof an agent for the purpose of renewal, they tion was whether the city of Augusta had the are within the power of the state where power to levy a tax thereon. In that case, the agent resides to subject them to taxation. as here, it was conceded that tangible per

By sections 3551 and 3553, L. 0. L., Ore-sonal property was taxable where it was gonhas made such choses in action the situated, and that its situs did not follow subject of taxation in this state, regardless the owner, but it was contended that the of the domicile of the owner. By the form- rule is otherwise as to intangible property. er section all personal property situated or The opinion does not agree that this rule owned within this state, except such as is is universal, even as applied to that class of expressly exempted, shall be subject to as- property ; that many courts have held that sessment and taxation. By the latter sec- negotiable instruments for taxation have a tion it is provided that personal property situs without regard to the residence of the shall be construed to include all things in owner, citing several cases, and says that action, money on hand, or on deposit, and the reasoning of these cases applies equally all capital invested therein, and debts due to other intangible property than negotiable or to become due from solvent debtors, securities; that this fiction has no applica whether on account, contract, note, mort- tion to matters of taxation in such a case as gage, or otherwise, either within or without is presented by this record; that to all inthe state. The decision in Poppleton v. Yam- tents and purposes these notes and accounts hill County, 18 Or. 377, 23 Pac, 253, 7 L. R. are part of the business being conducted in A. 449, involved this question. In that case Augusta, and represent a part of the capital the property was in Washington and the employed in the business. That case fully owner domiciled in Oregon, and it was held sustains the case of Armour Packing Co. P. to have a situs in Washington, where the Savannah, 115 Ga. 140, 41 S. E. 237, which property was in possession of an agent, to be the court was asked to review and overrule. lent, and that it was taxable there, and See, also, In re Jefferson, 35 Minn, 215, 28 N. not in this state.

W. 256; Billinghurst v. Spink County, 5 S. In Buck v. Beach, 206 U. S. 392, 27 Sup. D. 84, 58 N. W. 272; People v. Trustees of Ct. 712, 51 L. Ed. 1106, it is said that, for the Village of Ogdensburg, 48 N. Y. 390 ; Walkpurpose of taxation, it has long been helder v. Jack, S8 Fed. 576, 31 C. C. A. 462. that personal property may be separated In the case before us the choses in action from the owner, and he may be taxed for it were a part of the Oregon business, arising where the property is, regardless of the from sales made here, and the only evidence place of his domicile. To the same effect is concerning them was in the hands of the Mononga hela River Consol. C. & C. Co. v. Portland manager and were collectible by Board of Assessors, 115 'La. 564, 39 South. him; and whether the debtor is in or out of 601, 2 L. R. A. (N. S.) 637, 112 Am. St. Rep. the state these debts are a part of the capi. 275. Metropolitan Life Insurance Co. v. New tal of the Oregon business, and were properOrleans, 205 U. S. 395, 27 Sup. Ct. 499, 51 ly taxable in Multnomab county. L. Ed. 853, a case under the Louisiana stat- The judgment must be affirmed. ute, is to the same effect, where it is said that cash and bills receivable are, for the

(58 Or. 499) purpose of taxation, to be taken into account

PLINKIEWISCH V. PORTLAND RY., merely because they represent the capital,

LIGHT & POWER CO. and are not to be omitted because their owners happen to bave a domicile in another

(Supreme Court of Oregon. April 27, 1911.) state. There is a valuable note to the case

1. STREET RAILROADS (8 98*)-INJURIES TO

PERSON ON TRACK-CONTRIBUTORY NEGLIof Buck v. Beach, supra, in 11 Am. & Eng. Ann. Cas. 739, in which many cases are col- A street car passenger, after alighting lated, citing with approval, among other from a car eight or ten feet' from a crossing,

walked around behind the car and started to cases, Poppleton v. Yamhill Co., supra.

cross a parallel track. He walked with his A case almost identical in facts with the head down, without looking or listening for an one before us is Armour Packing Co. v. Au- approaching car, and at the instant he stepped gusta, 118 Ga. 552, 45 S. E. 424, 98 Am. St.

on the track he was struck by a car. By a Rep. 128, in which the plaintiff was incor- Held, that he was guilty of contributory neg

casual glance he could have seen the car. porated under the laws of New Jersey with ligence as a matter of law. a place of business in Augusta, Ga., in [Ed. Vote.-For other cases, see Street Railcharge of a manager to whom it shipped roads, Cent. Dig. $S 204–208; Dec. Dig. 8

98.*] meats to be sold, and the amounts received from sales were remitted directly to the Ar. 2. STREET RAILROADS ($ 93*)-OPERATION OF

CARS-CARE REQUIRED. mour Packing Company at Kansas City, Mo.;

A motorman observing a person near none of the money being invested in Augusta. I track may assume that he will halt before step

GENCE.

a

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Kcy No. Series & Rep'r Indexes (3) In

ping on the track, and a 'motorman who first nies; there being no other street railways in sav a person as he stepped on the track operation in the city. six or seven feet away, and who could not then [Ed. Note.--For other cases, see Street Railstop the car to prevent an accident, was not roads, Cent. Dig. § 153; Dec. Dig. § 73.*] guilty of negligence; the car being operated 9. STREET RAILROADS (873*)—REGULATIONS at about four miles an hour.

-VALIDITY. [Ed. Note. For other cases, see Street Rail

A resolution of the council of a city, reroads, Cent. Dig. 8 197; Dec. Dig. $ 93.*]

quiring street railway companies to use on their 3. STREET RAILROADS ($ 102*)-NEGLIGENCE cars the Hunter Drop. Guard Fender," is not -PROXIMATE CAUSE.

void as discriminating in favor of a particular Where the light was sufficient to enable a fender, in the absence of anything to show person nearly a block away to see an approach that the fender called for is a patented article, ing car, the fact that a car striking a person or one that anybody is prohibited from making stepping on the track had no headlight was

or selling. immaterial on the issue of actionable negli- [Ed. Note.-For other cases, see Street Railgence.

roads, Cent. Dig. § 153; Dec. Dig. $ 73.*} [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 203; Dec. Dig. § 102.*]

Appeal from Circuit Court, Multnomah

County; Darl C. Bronaugh, Judge. 4. NEGLIGENCE ($ 122*)—LAST CLEAR CHANCE RULE.

Action by Edward Plinkiewisch, adminA plaintiff who admits negligence on his istrator of Otto Brandes, deceased, against own part, and who seeks to avoid its conse- the Portland Railway, Light & Power Comquences, has the burden of showing that, not- pany. From a judgment for defendant, plainwithstanding his negligence, the circumstances were such that defendant, after perceiving tiff appeals. Affirmed. plaintiff's peril, could, by ordinary care, have

Plaintiff's intestate was struck and killed avoided the injury.

[Ed. Note: --For other cases, see Negligence, by one of defendant's street cars, and this Cent. Dig. $ 229; Dec. Dig. § 122.*]

is an action to recover damages sustained by 5. STREET RAILROADS (8 103*) - INJURIES TO

his estate by reason of such accident. PEDESTRIAN-NEGLIGENCE CONTRIBUTORY

It is alleged that defendant was negligent NEGLIGENCE.

in the following particulars: (1) In using a A person struck by a street car. neither worthless and insufficient fender, different looked nor listened for an approaching car, nor took any precautions to insure his own from that prescribed by the statutes of Ore. safety. By a casual glance the approaching gon. (2) In failing to have the car under car would have been discovered. At the instant control when passing another car. he stepped on the track the car struck bim. failing to ring the gong as the car approachThe motorman could not see him until he stepped on the track a few feet away. Held, ed the crossing. (4) In failing to keep a that the negligence of the street railway. com- headlight burning. (5) In carelessly and neg. pany in failing to stop the car, or in failing to ligently failing to stop the car after seeing ring the gong, and the negligence of the pedes- deceased coming upon the track and into a trian were concurrent, precluding a recovery under the last clear chance rule.

place of danger. Defendant denied the al. [Ed. Note.--For other cases, see. Street Rail- leged negligent acts, pleaded a resolution of roads, Cent. Dig. $ 219; Dec. Dig. $ 103.*] the city council of Portland, authorizing the 6. _STREET RAILROADS ($ 103*)-INJURIES TO use of a fender of the character then used

PEDESTRIAN-NEGLIGENCE CONTRIBUTORY
NEGLIGENCE.

upon the car described in the complaint, Where the death of a person was the re- and alleged that the accident was due wholly sult of his being struck by a street car, which to the negligence of deceased in going upon carried him a distance of 40 or 50 feet, the the track without looking or listening for last clear chance rule did not apply to the alleged negligence in failing to stop the car

an approaching car. inore quickly after the collision, for the whole

The evidence introduced by plaintiff tended accident was but one transaction.

to show that deceased was on a car going [Ed. Note.-For other cases, see Street Rail-east on Glisan street in Portland, and that roads, Cent. Dig. $ 219; Dec. Dig. § 103.*]

when within eight or ten feet of the west 7. CONSTITUTIONAL LAW ($ 63*) — DELEGA-crosswalk of Eleventh street, which interTION OF LEGISLATIVE POWERS.

The proviso in L. O. L. & 7007, describing sects Glisan street at right angles, he stepped the character of fenders for use on 'street cars, off of the moving car on the south side and providing that municipal authorities may sub- walked around behind the car, and started stitute another approved fender, is not invalid in a northerly direction across Glisan street. as giving the municipal authorities the right to This street has a double railway track upon arbitrarily set aside a general state law, but merely gives municipalities the right to deter- it. The width of the track is three feet nine mine the character of fenders for street cars inches, and the distance between the nearest operated within their limits.

rails of the two tracks is six feet. The evi. [Ed. Note.-For other cases, see Constitution: dence shows that he walked with his head al Law, Cent. Dig. $$ 108-114; Dec. Dig. $ 63.*]

down, without looking for an approaching 8. STREET RAILROADS ($ 73*)-REGULATIONS car, and that he stepped upon the track at -VALIDITY.

the same instant that he was struck by a A resolution of the council of a city, re- car going west, which was moving at a rate quiring two street railway companies to use a

of from two to four miles an hour. He was particular fender on its street cars operated within the city, is not void as discriminative, carried by the car a distance of from 40 to either in favor of or against the two compa- ! 50 feet, and was so bruised and injured that

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