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A PAROL CONTRACT for insurance, in the absence of a statute requiring such a contract to be in in writing, is valid. That it is not usually made in this way," it is said in Relief Fire Ins. Co. v. Shaw, recently decided in the Supreme Court of the United States, "is no evidence that it can not be so made." The same doctrine was held in the older cases of Sanborn v. Fireman's Ins. Co., 16 Gray, 448, and Trustees of the First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305. In the latter case, Comstock, J., after tracing the policies of insurance, says: "The contract, as I have said, had its origin in mercantile law and usage. It has, however, become so thoroughly incorporated into our municipal system, that a distinction which denies the power and capacity of entering into agreements in the nature of insurances, except in particular modes and forms, rests upon no foundation. The common law, with certain exceptions, having regard to age, mental soundness, etc., concedes to every person the general capacity of entering into contracts. This capacity relates to all subjects alike, concerning which contracts may be lawfully made, and it exists under no restraints in the mode of contracting, except those which are imposed by legislative authority. There is nothing in the nature of insurance which requires written evidence of the contract. To deny, therefore, that parol agreements to insure are valid, would be simply to affirm the incapacity of parties to contract where no such incapacity exists, according to any known rule of reason or of law." See also Kelly v. Commonwealth Ins. Co., 10 Bosw. 82. In the case first mentioned, decided by the Supreme Court of the United States, it was further held that the charter of a fire insurance company organized under the general law of New York, which provided that the purpose and business of the company should be "by instrument, under seal or otherwise, to make insurance on dwellinghouses," etc., and that "the president or other officer shall be authorized in and by policy of insurance in writing to be signed * to make contracts of insurance," did not limit the power of the company to make a verbal contract of insurance in Massachusetts, and that a statute of Massachusetts, passed for the protection of policy-holders, requiring the conditions of insurance to be stated in the body of the policy, did not prohibit a parol contract of insurance. On the other hand, see the case of Cockerell v. Insurance Co., 16 Ohio, 148, in which it is held that a parol contract of insurance is not recognized as valid by the commercial law, but must be expressed in a written policy.

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A QUESTION of some interest, bearing upon the subject of "the privileges and immunities of citizens in the several states as expressed in article 4 of sec. 2 of the Constitution, was presented in the United States Supreme Court, in the recent case of McCready v. The Commonwealth of Virginia. The question to be determined in this case

was, whether the State of Virginia could prohibit the citizens of other states from planting oysters in Ware river, a stream in that state where the tide ebbs and flows, when its own citizens have that privilege. The court held that the state had such power, and that its exercise did not conflict with the Constitution. It is well settled that the beds of all tide-waters fall within its jurisdiction, unless they have been granted away. Pollard's Lessee v. Hagan, 3 How. 230; Smith v. Maryland, 18 How. 74; Mumford v. Wardwell, 6 Wall. 436; Weber v. Harbor Commrs., 18 Wall. 66. In like manner the states own the tide-waters themselves and the fish in them, so far as they are capable of ownership while running. For this purpose the state represents its people, and the ownership is that of the people in their united sovereignty. Martin v. Waddell, 16 Pet. 410. The title thus held is subject to the paramount right of navigation, the regulation of which in respect to foreign and inter-state commerce has been granted to the United States. There has been, however, no such grant of power over the fisheries. By article 4, sec. 2 of the Constitution, the citizens of each state are "entitled to all privileges and immunities of citizens in the several states." Mr. Justice Washington, in Corfield v. Coryell, 4 Wash. C. C. R. 380, thought that this provision extended only to such privileges and immunities as are ⚫ in their nature fundamental; which belong of right to the citizens of all free governments;" and Mr. Justice Curtis, in Scott v. Sandford, 19 How. 580, described them as such "as belonged to general citizenship." But usually, when this provision of the Constitution has been under consideration, the courts have manifested the disposition, which this court did in Conner v. Elliott, 18 How. 593, not to attempt to define the words, but rather to leave their meaning to be determined in each case upon a view of the particular rights asserted or denied therein. "The planting of oysters in the soil covered by water, owned in common by the people of the state, is not different in principle," the court say, "from that of planting corn upon dry land held in the same way. Both are for the purposes of cultivation and profit; and if the state, in the regulation of its public domain, can grant to its own citizens the exclusive use of dry lands, we see no reason why it may not do the same thing in respect to such as are covered by water. And, as all concede that a state may grant to one of its citizens the exclusive use of a part of the common property, the conclusion would seem to follow that it might, by appropriate legislation, confine the use of the whole to its own people alone."

A REPORT, recently printed on the subject of the receipts and expenditure of the Chancery Division of the English High Court of Judicature shows the magnitude of the funds of suitors with which this division of the High Court has to deal. During the year ending the 31st of August, 1876, the amount of cash received was £12,670,390, and the amount paid out was £12,341,129. The balance remaining at the end of the year consisted of £4,920,151 in cash, and £64,485,595 nominal value of securities.

THE LAW OF ESTOPPEL AS APPLICABLE

TO MARRIED WOMEN.*

We had concluded the discussion of the effect of the deed of a married woman as an estoppel in our former article. But since its publication, the Supreme Court of Indiana have delivered an opinion, following the intimation in Schumaker v. Johnson, but putting the decision upon different grounds; and as the decision based upon this new theory presents a view of the question only partly met in our former article, we desire to give the case a passing notice.

The facts of the case were these: A married woman, who was tenant in common in fee with her two children in lands, but was in possession of the same, claiming the whole, joined with her husband in an Indiana deed which contained the words convey and warrant. After the conveyance, one of the children of the feme covert grantor died; whereby the share of the child descended to her. Her vendee brought a bill to quiet title, and she set up her subsequently acquired title by descent from the child, and the court held her estopped by her deed. (King v. Rea, May Term, Indiana Supreme Court, 1877.) The opinion was written by Mr. Justice Biddle, and enunciates the following propositions:

1. "Where a person competent to act has solemnly made a deed, he shall not be allowed to gainsay it to the injury of those whom he has misled thereby."

2.The statute, which enables a married woman to convey during her coverture by joint deed with her husband, imposes upon her as a corollary all the obligations of the conveyance, save those which the statute excepts; for it would be absurd to say that she had passed her lands, if she could take them back again.

3. "That, but for the statute, a married woman would be estopped by her covenants. But notwithstanding she is not bound by the covenants, she is bound by the deed, and is estopped by it in any case where a feme sole would be estopped independently of the covenants."

4. Where a married woman joins with her husband in the conveyance of lands held in her own right, which purports to convey the entire estate therein, she is estopped from afterwards setting up any title to the lands so conveyed, whether it existed at the time or was subsequently acquired. For, while she is not bound by the covenants, she is estopped by the deed."

The learned judge arrives at these conclusions partly from the reasons incidentally stated above, and for the additional reasons: (1), that a married woman was estopped by a fine; (2), that, under the former statutes authorizing her to relinquish dower, she was estoppoed by her deed; and, (3), as it is held in Indiana that a married woman may be estopped by matter in pais, there is no reason why she may not be estopped by her deed. In support of the several positions announced by the court, and of which the substance is stated above, the fol*Continued from p. 510.

lowing cases are cited: Fowler v. Shearer, 7 Mass. 14; Massie v. Sebastian, 4 Bibb, 433; Wadleigh v. Glines, 6 N. H. 17; Grout v. Townsend, 2 Hill, 554; Fletcher v. Coleman, 2 Head, 584; Hill v. West, 8 Ohio, 222; Graham v. Meek, 1 Oregon, 325; Van Rensselaer v. Kearney, 11 Howard, 297, and Schumaker v. Johnson, 35 Ind. 33. We will briefly examine the propositions above enumerated, and refer to the reasons and authorities upon which they are based.

The principle involved in the first proposition announced by the court is perhaps correct in the abstract, but it has no application to the case in judgment. But if any discussion of it were necessary, the substance of the same thing is embraced in the third proposition and will be there noticed. The doctrine of the second proposition was anticipated and fully discussed in our first article (4 Cent. L. J. 507, et seq). Nor are we convinced by the somewhat novel reason given by the court, as part and in support of this proposition; nor by the additional reason.

The fact that a married woman was formerly estopped by a fine, does not prove that she is estopped by her deed; on the contrary, a fine is an assurance by matter of record, and has the binding force and effect of the judgment of a court of record upon a person over whom it has obtained jurisdiction. (Preston Convey. 200, 202, 268, 269; 2 Bl. Com. 348-9; 1 Bouv. Law Dict., title "Fine.") The manner in which a married woman is estopped by matter of record will be considered hereafter, where it will be shown that there is no analogy between this and estoppel by deed, so far as the disability of a married woman is concerned. And so of the mode of barring dower under former statutes;-the deed did not operate by way of estoppel, but by force of the express provisions of the statute. The estate of the doweress was inchoate when the deed was made, and, when consummated, was in no sense after-acquired.

An estoppel in pais is established and maintained upon wholly distinct grounds from that of estoppel by deed,-the one being founded in tort, the other in contract. In the latter case, the estoppel grows out of the obligations of a contract, to make which a feme covert possesses only such power as is given her by statute; while in the former it results from liability for tort, against which no disability can protect her.

In support of the third proposition the court cite Fowler v. Shearer, Massie v. Sebastian, and Hill v. West,-all overruled, as we showed in our first article, and the two former are but obiter dicta besides; also Grout v. Coleman, a case which simply decides that even a married woman is estopped from avoiding her deed, by showing, in contradiction of the recital, a want of consideration, where the property has passed into the hands of innocent third parties,—a proposition which would hardly be denied. Also Fletcher v. Coleman, in which the argument of counsel must have been mistaken for the opinion of the court. The former contains an elaborate argument upon the subject of estoppel,

and cites Hill v. West, Fowler v. Shearer, and Massie v. Sebastian. But the judgment of the court is, that there is no estoppel against the married woman. And therefore the case is certainly no authority in support of the ruling here. And so of Graham v. Meek, though the court say that the married woman is estopped, yet the ruling is put upon the express ground of the peculiarities of the Constitution and laws of Oregon, which go further in removing the disabilities of married women than those of any other Western state. And besides this, that part of the opinion which relates to this point is but obiter, as the wife had parted❘ with her after-acquired interest after it had been acquired and before her attempt in that suit to assert it, as the record shows. Wadleigh v. Glines is still less in point, as we shall presently see.

We can not say how far this unsuccessful attempt to sustain this position by authority is due to the crowded condition of the docket and the consequent hurry in the consideration of cases; the diligence of counsel for the appellant, or the want of it on the part of the counsel for the appellees, who were represented by distinguished and able counsel. But a very singular expression is used in the opinion upon the point under consideration, which is substantially quoted from the brief of the counsel for the appellant, to the effect that Jackson v. Vanderheyden, 17 Johns. 167, is the only case which the court found sustaining a contrary doctrine. This assertion could never have been made, if the learned counsel for the appellee had furnished the court, and the court had examined, a few of the numerous cases found in the books, deciding the very reverse of the proposition announced. We enumerate a few of them: Nunnally v. White, 3 Metc. (Ky.), 584; Porter v. Bradley, 7 R. I. 538; Nicholas v. Helmsley, 3 Har. and McH. 409; Wadleigh v. Glines, N. H. 17; Sawyer v. Settle, 4 Vt. 414; Aldridge v. Burlison, 3 Blkf. 201; Fletcher v. Coleman, 2 Head, 383; Falmouth Bridge v. Tibbatts, 16 B. Monroe, 637; besides many others cited in our former article. But, had the court only read the opinion in Wadleigh v. Glines, cited in support of this proposition, it certainly could not have been cited, nor such an assertion have been made. That was an action against husband and wife upon the covenants in. a deed. The court say: "In this state a married woman may, by joining with her husband in a deed, convey her lands, and the deed thus made' will estop her and her heirs from setting up against the grantee any title she may have had when the deed was made. But she has never been bound by any covenant (7 Mass. 291); nor is she estopped by such a covenant from setting up a subsequently acquired title (17 Johns. 167)." So much for these authorities. Half of them or more are overruled, two or three not applicable, two sanctioning and sustaining the contrary doctrine. Having, as we think, shown, in this and the former article, that the third proposition, in both its branches, is neither founded upon principle nor sanctioned by authority, we might close the examination here;

for, if a married woman is not estopped by her covenant, nor by her deed without covenant, in a case where a person sui juris would be thus bound, there is an end of the argument.

But, passing to the fourth proposition, which embraces the third with an addition, let us apply the rules of law and see how it will stand the test.

It will be observed that, although Schumaker v. Johnson is cited, yet the intimation therein contained is not followed,—that is, the ground upon which that intimation is founded is not adopted. On the contrary, it is freely admitted that the wife is not bound by the covenant, and that no estoppel arises out of anything therein contained, and the estoppel is distinctly placed upon grounds independently of the covenants, either expressed in the deed, or implied under the statute; hence the theory upon which the intimation and argument in Schumaker v. Johnson is based, and which we have already sufficiently considered, is abandoned and out of the case.

The case stands then as if the deed were a deed of bargain and sale, independently of the statute. The language of the opinion is that, "where the deed purports to convey the entire estate." A deed of bargain and sale does this. The language of a deed of bargain and sale is, "grant, bargain, sell and convey to the grantee, his heirs and assigns." (2 Washb. Real Prop. 620.) This form of deed purports to convey the entire estate, and does it just as effectually as if it contained all the covenants. And yet such a deed, even of a person not under disability, never was in any well considered case held to operate as an estoppel against after-acquired title.

Mr. Rawle, in his work on Covenants of Title, discussing this subject, after stating that a grant and a release at the common law did not work an estoppel, proceeds: "And as the conveyances in use at the present day deriving their efficacy and virtue from the statute of uses, and which, as distinguished from some of the common-law modes of assurance, were called 'innocent conveyances,' viz., bargain and sale, lease and release, etc., pass no more than the actual estate of the party, it naturally follows that they have no greater effect by way of estoppel than the common-law grant or release." (Bawle, 4th ed., 385-6-7.)

Our statutory deed without the covenants can have no greater effect than a deed of bargain and sale. By virtue of the statute dispensing with the necessity of words of perpetuity, the word “convey," alone, will pass the fee, if the grantor has such an estate. But as the word warrant is in its very essence, and by its very terms, but a covenant, and as a married woman, as is conceded, is not bound by such a covenant, there is nothing left with any binding effect in such a deed except the word "convey." And surely, this language can have no greater effect without any covenants, under the statute, than the words " grant, bargain, sell and convey," with words of perpetuity, without the statute. And, as we have seen, this language being

that of a deed of bargain and sale does not work an estoppel.

The only case then, where an estoppel has ever been held to arise without a warranty, is where there has been some recital or averment of a particular title. For, whatever the language of the court may be in some portions of the opinion in Van Rensselaer v. Kearney, the deed under consideration contains two pages of recitals relating to the character of the title, and upon these the judgment of the court was based.

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Again, in Lessee of French v. Spencer, 21 How. 240, the court, following Van Rensselaer v. Kearney, lay down the doctrine thus: " Where the grantor sets forth on the face of his conveyance, by averment or recital, that he is seized of a particular estate in the premises, and which estate the deed purports to convey, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was seized and possessed at the time he made the conveyance." This was also a case where a particular title was recited, and states the principle intelligibly and accurately; and this is up to the full extent of the rule, either upon principle or authority; it is in consonance with the general doctrine of estoppel by recitals or averments of facts in a deed.

Mr. Rawle, in addition to "recital" or 66 averment," uses the words "or otherwise," which are not justified by the cases cited. (Rawle on Cov. of Title, 4th ed., 388.) It will be observed that each and all of the cases discussed and cited, as the basis of the doctrine laid down in Van Rensselaer v. Kearney, are cases where there were recitals, averments or affirmations of title in the deed held to be an estoppel, which would have been contradicted by the assertion of after-acquired title. Graham v. Meek, one of the cases relied on here, was decided upon the effect of a recital, and the court, after discussing the rule in case of fine and lease, proceeds: "This principle is applicable to all cases of bargain and sale where the deed, on its face, purports to convey an estate in fee simple, and recites the title." And this is the true rule.

The deed in King v. Rea contains no covenant, so far as the present discussion is concerned,-no recital, no averment of any particular title, but is a deed of bargain and sale simply; and, though it purports to convey the estate without limitation, this is not enough. The case is clearly not within the rule; else every deed purporting to convey an estate in fee will operate as an estoppel; and this, no one will assert.

From what has been said, it is apparent that, independently of the question of disability, except as to the binding effect of the covenants, the case was not well decided; for independently of them there would be no estoppel against the husband even.

But when we take into consideration what has already been fully stated, that the deed of a married woman derives its efficacy from the statute, and that the only effect of it is to convey lands; that she is not bound by any covenant or recital

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BIDDLE, J., delivered the opinion of the court:

This action is brought by the appellee to establish by use an easement in light, to be supplied to his ancient windows from the premises of the appellant. The complaint alleges such use uninterruptedly during twenty years, acquiesced in by the vendor of the appellant, and by the appellant after his purchase; and that after such use and acquiescence, the appellant erected upon his own premises a frame structure which effectively and permanently obstructed the light from the windows of the appellee. The sufficiency of the facts alleged in the complaint to maintain the action was questioned by a demurrer, which was overruled.

The question to be decided in this case is, can an easement in light and air, to be supplied to the ancient windows of one from the premises of another, be acquired by use or prescription in the State of Indiana?

We read much in our books about the common-law right in England of an easement acquired by use or prescription in light or air coming to ancient windows from the premises of another; but when the history of the right is carefully studied, it will be found that it was sometimes disputed. It was denied in the case of Bury v. Pope, 1 Cro. Eliz. 118; and under the reign of Charles II, in the case of Palmer v. Fletcher, 1 Lev. 122; it was modified by the custom of London, and indeed was never indisputably settled until it was established by the statute of 3 William IV, c. 71, sec. 3. But assuming that such an easement was a commonlaw right in England before the statute of William IV, the question whether it is a common-law right in the State of Indiana has never before been directly presented to this court. In the case of Keiper v. Klein, 51 Ind. 316, the question was incidently noticed; but that case turned upon the question whether a certain deed conveyed such an easement by implication; not whether it could be acquired by use or prescription. And it has been held that the common law as a system is adopted in this state, except such parts of it as are inconsistent with our institutions or not suited to the condition of the country. In the case of Robison v. Pittenger, 1 Green Ch. R. 57, it is held that when ancient lights have existed for upwards of twenty years, undisturbed, the owner of an adjoining lot has

no right to obstruct them; but this case was decided mainly on the authority of Story v. Odin, 12 Mass. 157, which has long ceased to be the law of Massachusetts; for in the case of Randall v. Sanderson, 111 Mass. 114, decided more than sixty years later, it is expressly held that, "it is the established law in this commonwealth that an easement of light and air can not be acquired by prescription;" in support of which many cases are cited. In the case of Durel v. Boilsblanc, 1 La. An. 407, where the easement of light to a window was coupled with the right of way through a passage, it was held that they could not be obstructed; but the decision was expressly placed upon the ground that these servitudes were visible and palpable, and on examination of the property the purchaser must have seen them; the court remarking that, "could we believe he was ignorant of them, a very different case would have been presented." In the case of Gerber v. Grabel, 16 Ill. 217, it is held that, "twenty years uninterrupted and unquestioned enjoyment of lights constitutes them ancient lights, in the enjoyment of which the owners will be protected;" but Caton, J., in a separate opinion, evidently doubts the wisdom of the rule and Treat, C. J., dissented. These three cases are all the decisions we can find, and these three states, New Jersey, Louisiana and Illinois, the only states which have adopted the English rule concerning easements in light and air acquired by use or prescription; and the case in Illinois is the only one fully in accord with the English decisions, and is based upon a full adoption of the English common law by a statute of the state.

Against these decisions we have many American authorities. In Napier v. Bullwinkle, 5 Rich. 311, it is held that," in case of a window which gives no cause of action to the owner of the space over which it looks, he is not bound to obstruct within twenty years to prevent the acquisition of a right; and without some other circumstance from which his assent to the easement, as a right, may be inferred, his grant can not be presumed from the mere unobstructed enjoyment." In Parker v. Foote, 19 Wend. 309, that eminent jurist, Bronson, J., in delivering the opinion of the court, says: "There is, I think, no principle upon which the modern English doctrine on the subject of lights can be supported. It is an anomaly in our law. It may do well enough in England; and I see that it has recently been sustained, with some qualification, by act of Parliament (3 William, IV, 71, 3), but it can not be applied in growing cities and villages in this country without working most mischievous consequences. Nor do I find that it has been adopted in any of the states." This doctrine is fully approved in Cherry v. Stein, 11 Md. 1. In Iowa the English doctrine is held inapplicable. Morrison v. Marquardt, 24 Ia. 35. In Powell v. Sims, 5 W. Va. 1, the English common law of ancient lights was disapproved. Ohio has decided that, 66 an easement in light and air to be supplied to one's windows from the premises of another, can not be acquired by use or prescription." Mullen v. Stricker, 19 Ohio St. 135. See also Banks v. The American Tract Society, 4 Sandf. ch. 438. We have already cited Randall v. Sanderson, 111 Mass. 114, which is supported by the following cases: Fifty Associates v. Tudor, 6 Gray, 255; Rodgers v. Sarvin, 10 Gray, 376; Carrig v. Dee, 14 Gray, 583. Massachusetts has long since abrogated the English doctrine by statute. Mr. Washburn says: "The tendency of late years in this country has been against the doctrine of gaining a prescriptive right to the enjoyment of light and air as an easement appurtenant to an estate, on the ground that it is incompatible with the condition of a country which is undergoing such radical changes in the progress of its growth." 2 Washb. on Real Prop. 346. He cites the

states of New York, Massachusetts, South Carolina, Maine, Maryland, Alabama, Pennsylvania and Connecticut, as having discarded the English doctrine; to which list of states he might have added Ohio, Iowa and West Virginia, as we have seen by the authorities cited supra. In several of the states the question seems to be vet undecided.

It may not be unprofitable to reason a moment upon the propriety of following the current of American authorities upon this question, to which a few exceptional cases seem as but eddies. In the first place, an easement in light or air is unlike any other easement known to the law. It is neither an appurtenance nor a hereditament. No definition of property known to the law includes it specifically. No exclusive right can be had in light or air; legislation can not create such a right, because man has no exclusive dominion over them. They are for all in common. "And upon whom doth not His light arise?" Job 25, 3. And "the wind bloweth where it listeth and thou hearest the sound thereof, but canst not tell whence it cometh and whither it goeth." John 3, 8. To give a right of property in light or air, which can control the right of the use of land, is to make the incident greater than the principal and allow the shadow to control the substance. Second, the owner of open space may not know, and can not know of right, the internal arrangement of his neighbor's house; and may "stand by" while the invading claim, which is finally to embarrass, if not to destroy the usefulness of his land, is gradually accruing against him, until it becomes a vested right which he can not dispute. Third, if he knows that the right is accruing against him he has no right of action against the person who enjoys his light or air to prevent it, because he has not and can not have any exclusive property in the light or air which occupies his space; he has, therefore, nothing to do except to stand by and lose his rights or erect his obstruction within a given time, simply for the purpose of protecting what was already his own. Besides, fourth, the injury of such an easement to the land,-which can be used only in the one place where it is, is so great compared with the value of the easement in light or air, which can be had and used everywhere-that no such easement ought to be acquired by use or prescription against one who may not know that it is accruing, or, knowing it, can defend against it only by suffering expense and inconvenience. The boundaries of the land are generally sufficient for the supply of its own light and air; and we do not see why the owner should be allowed to go beyond them to supply himself with these blessings against the rights of another; or to turn that which was granted to him as a favor into an injury to the grantor.

Upon these authorities and for these reasons, we are prepared to hold as the law of this state, that no one can acquire an easement in light or air to be supplied from the premises of another by mere use or prescription. We can not see that this rule will work injury to any one; and we think it will place these impalpable and invisible claims upon a safe footing, consistent with the rights of all concerned. It is very easy to reserve such an easement to the vendor, or grant it to the vendee, in the deed which conveys the land; or to create it by any valid contract; then each one knows what he sells and what he buys, and all persons are protected in their rights. Embarrassments have accumulated and injuries have been suffered to property, growing out of the unsettled views upon this question. It should be put to rest. No one should stand in danger of unwittingly suffering burdens to be laid upon his property; nor be constantly compelled to guard against such an insiduous invasion of his rights. But the appellee insists that the State of Indiana has

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