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ing over: provided that if the number of petitions so standing be so great that the times for selecting committees to try the whole thereof cannot, in the judgment of the general committee, be appointed within two days after their first meeting, the said general committee shall, within two days after their first meeting, appoint the times for selecting committees to try so many of the said petitions as the said general committee deems convenient, and shall afterwards, as soon as conveniently may be, appoint the times for selecting the committees to try the remainder of such petitions.

51. That notice of the time and place at which the committee will be chosen to try any election petition shall be published with the votes, not less than 14 days before the day on which such committee is appointed to be chosen ; and in case the conduct of the returning officer is complained of, such notice shall be sent to him through the post, not less than 14 days before the day on which such committee is appointed to be chosen; and every such notice shall direct all parties interested to attend the general committee of elections, by themselves or their agents, at the time and place appointed for choosing the select committee; and if (after any such notice has been published with the votes, or sent to the returning officer as aforesaid,) the proceedings in the matter of such petition become suspended, notice of such suspension shall be published with the votes; and in case the returning officer is complained of, such notice shall be sent to him through the post.

52. That if notice of the death or vacancy of the seat of any member petitioned against, or that it is not the inten tion of such member to defend his election or return, have been inserted in the Gazette, by order of the Speaker, and no party has been admitted to defend such election or return, then, if the conduct of the returning officer is not complained of, it shall not be necessary to insert such petition at the bottom of the then list of petitions, but the general committee of elections shall meet for choosing the select committee to try such petition after the expiration of the time allowed for parties to come in to defend such election or return, and not less than one day's notice of the time and place appointed for choosing such committee shall be given in the votes; and in such case it shall not be necessary to deliver to the clerk of the general committee of elections a list of the voters intended to be objected to, as herein-after is required.

53. That the general committee of elections may change the day and hour appointed for choosing a select committee to try any election petition, and appoint some subsequent day and hour, if it be expedient so to do, giving notice in the votes of the day and hour so appointed; and in every case in which any such change is made by them they shall forthwith report the same to the house, with their reasons.

54. That notice shall be published with the votes, of the petitions for each week, and of the panel from which committees will be chosen to try such petitions, and each panel shall serve for a week, beginning with the panel first drawn, and continuing so in rotation in the order in which they were drawn, and not reckoning those weeks in which no select committee is appointed to be chosen. (To be continued.)

IRISH MANUFACTURE INDIAN RUBBER BLACK

ING, Manufactured by RICHARD KELLY, Boot Maker, 16, COL LEGE.GREEN, Dublin,

It makes the Leather soft, pliant, and even Waterproof, sold by the Bootmakers and Grocers through the City, in Bottles at 4d. 8d. and Is. each. N.B.-Country Shopkeepers treated with on the most Liberal Terms. Portobello March 31st.

Sir, "I have examined your Indian Rubber Blacking, and find it made of those materials which are most proper for such a composition. It has some advantages in use not possessed by similar articles of manufacture; it is susceptible of a very high polish, it does not soil, and its permanent effect on the leather is of a beneficial character.

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12mo. price 2s. 6d.-by Post, 3. TREATISE ON THE LAW OF INTERPLEADER, containing all the Reported Cases in this Country and in England with an Appendix, containing the Act 9 & 10 Vic. c. 61, with Form of Affidavits, Rules, Orders, and the Record on a Feigned Issue. By Jonn BLACKHAM, Esq., Barrister-at-Law.

EDWARD J. MILLIKEN, 15, COLLEGE GREEN.

Just published, 4th Edition, 12s 6d. cloth boards, THE PRECEDENTS AND GENERAL ORDERS for

the MASTRR'S OFFICE of Her Majesty's HIGH COURT OF CHANCERY in IRELAND, with the authority of the Masters; with Practical Notes and References. By THOMAS JOHN BEASLEY, A.M. Solicitor.

N.B-This Edition contains all the Orders of the Court of Chancery to the day, with the Sections relating to the Master's Office of the Act to Facilitate the Sale of Incumbered Estates in Ireland.

Dublin: T. O'GORMAN, Law Bookseller and Publisher, 33, Upper Ormond Quay. London: Stevens and Norton, Bell-Yard, Lincoln's Inn,

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TREATISE ON THE LAW OF LEGACIES. By the late R. S. DONNISON ROPER, Esq., Barrister-at-Law, of Gray's inn; and by H. H. WHITE, Esq., Barrister-at-Law, of the Mid dle Temple. Fourth Edition. 2 vols, royal 8vo. £3 3s. boards.

ROSCOE'S LAW OF NISI PRIUS EVIDENCE. A

Digest of the Law of Evidence on the trial of Actions at Nisi Prius By H. ROSCOE, Esq., of the Inner Temple, Barrister-at-Law. Seventh Edition, with considerable additions, by E. SMIRKE, Esq. Barrister.at. Law. I vol, royal 12mo. 248.

A TREATISE ON THE LAW OF EVIDENCE, as

administered in England and Ireland; with Illustrations from the American and other Foreign Laws. By JOHN PIT TAYLOR, Eq of the Middle Temple, Barrister.at.Law. 2 vols, royal 8vo £2 10%.

A SELECTION OF LEADING CASES IN Various

Branches of the Law, with Notes. By JOHN WILLIAMSMITH, Esq. of the Inner Temple, Barrister-at-Law Third Edition. Ry HS KEATING Esq, and JAMES S. WILLES, Esq., of the Inner Temple, Barristers at-Law. 2 vols, royal 8vo. £2 12s. 6d.

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All communications for the IRISH JURIST are to be left, addressed to the Editor, with the Publisher, E. J MILLIKEN, 15, COLLEGE GREEN. Correspondents will please give the Name and Address, as the columns of the paper cannot be occupied with answers to Anonymous Communications-nor will the Editor be accountable for the return of Manuscripts, &c.

Orders for the IRISH JURIST left with E. J. MILLIKEN, 15. COL LEGE GREEN, or by letter (post paid), will ensure its punctual delivery in Dublin, or its being forwarded to the Country, by Post, on the day of publication.

TERMS OF SUBSCRIPTION-(payable in advance): Yearly, 308. Half-yearly, 17s. Quarterly, 9s

Printed by THOMAS ISAAC WHITE, at his Printing Office, No. 45, FLEET STREET, in the Parish of St. Andrew, and published at 15, COLLEGE GREEN, in same Parish, by EDWARD JOHNSTON MILLIKEN, residing at the same place, all being in the County of the City of Dublin. Saturday, April 21, 1849.

Erish Jurist

No. 26.-VOL. I.

APRIL 28, 1849.

PRICE

SPer Annum, £1 10 Single Number, 9d.

The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows:

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"Mr. Osborne-Select Committee to enquire into the state of the law, as respects the appointment of Receivers of the Courts of Chancery and Equity Exchequer in Ireland, and the effect of the present laws and regulations of the said Courts, in the management of estates under their control; and how far the same has conduced to the improvement of the said estates, and the condition of the tenantry, or the contrary."

Ix a very few days, Mr. Osborne will move for a Committee of the House of Commons, to enquire into the system adopted by the Court of Chancery in the management of estates under its control, with the ultimate object of proposing a plan for its amendment.

We copy above the notice of motion, as it appears in the parliamentary papers, and we can entertain no doubt whatever that the Committee will be appointed. Every person acquainted with the subject, admits the hugeness of the evil of the present system, and the desirableness of its reform. We have from time to time shewn how pernicious it has been to owner, occupier, creditor, and the country.

It was adopted by the court under the extraordinary hallucination that its authority would be but short-lived, and that any description of management would answer for a temporary purpose; that, in short, estates only required an ad interim pro tection-provided they were kept safely, it mattered little how they were kept. The tediousness of Chancery proceedings has long been proverbial, and property once under the control of the court, was long before the day of its emancipation came -emancipation from a dominion the most cumbrous, the most costly, the most unimproving, the most deadly it was possible to conceive.

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There is no lightning speed for the Court of Chancery. Causes, from the inertness of parties conducting them, will still "drag their slow length" along, and estates will still for years upon years either be subjected to the present wasting system of receiverships, or to an improved one. merely is this to be expected, but from the recent course of legislation, which makes it easy to encumber, difficult to sell, when the reverse would be right legislation, the entire encumbered property of Ireland seems likely to fall an easy victim to the Court of Chancery. The increase of properties placed under its control since 1835-when the 5 & 6 W. 4, c. 55, was passed-has been inordinately great; it now shows a rental of one million and a half sterling, and a surface of country covering nearly one ninth of the whole island.

The return of last session, from which we have so often quoted, is indeed an instructive document; it was the largest ever yet presented to parliament, the bare expense of printing it was, as estimated, over £1000. To save the country this expense, it has not been printed in full, and the little tabular summary taken from it gives a most. inadequate idea of the facts capable of being developed; but suggests a few salient points. We are satisfied there is a mine of information to be not gleaned, but gathered, from the document itself, and we trust to see it printed in extenso, or in the form of a digest.

Much knowledge can be, however, derived from the precis to which we have alluded.

Properties coming under the court free from arrear, at once change their nature; and the column

of arrears in the Receiver's account, soon becomes greater than that of receipts; on the average, increasing from the date of his appointment, as we have shewn, p. 66, eleven fold.

And this loss accrues to the estate, whilst the tenants, deprived of a fostering hand, cease to thrive. How could they thrive, when over a rental of nine hundred thousand per annum, not one shilling is expended on improvements? How could they thrive, when they live under a Court which makes them pay £10 for a lease, and gives that lease but for seven years, pending the cause? The Court thus not only does not make improvements, but renders it hopeless that a tenant will improve. He has no fixed interest in the soil, and how can it be expected that he will expend money upon a farm, when his tenure is so short-lived and so insecure?

Again, from its centralization, the Court cannot assist by employment. Thus, no employment, no improvement, no permanency, are afforded by the ad interim proprietor.

If Mr. Osborne's Committee does no more than alter this state of things, it will do much. Why should not the Court do, in causes, what they do in minor matters? The Chancellor-we presume, so convinced of the evils of the present seven years' leasing system-by a very recent general order, has directed, that, in all lunacy and minor matters, leases should be granted for a fixed period, even for a term of 21 years. The same power should be exercised in all cases. This reform is exceedingly simple.

So is that of dispensing with the heavy cost for leases. At present the tenant is required to enter into recognizances himself, and two sureties, for payment of the rent. This stringency is not required in private estates, where rents are vastly better paid; and the practice should be abolished, and a much more wholesome one substituted, of giving a summary remedy by eviction in case of non-payment of rent. At present there is an absolute encouragement held out to the tenant to fall into arrear, the rent, according to the practice of the Court, not being demandable for five months until after it has become due. This is a senseless practice; the Receiver has no power to stir during that interval, except by special application, on a statement of facts. He should have a discretionary power to collect when he can, but not to keep the money one hour beyond its receipt. Thus, he would not be urged on by an improper desire to collect money and turn it to his own use until the day of accounting came, and would be, at the same time, invested with a power, which, in case of fraud or fraudulent preference, it is most desirable for the Court, and the sureties for the tenants,

the Receiver should have.

The present system of accounting is also most expensive, unsatisfactory, and objectionable. Neither creditor, nor owner, nor any party interested, can know anything of the management of the property, or of the progress made in the receipt of the rents, until the Receiver comes to pass his accounts; and is even then unable to scrutinize, investigate, or object, without incurring the expense

of taking out a copy of the account, and appearing by his solicitor in the Master's office.

This requires to be altogether altered and reformed. Both owner and creditor have a right to the fullest, easiest information, and that the accounts of an estate under the management of the Court should be kept in the plainest and clearest manner, and that they should at all times be open to the inspection of every party interested in the cause or matter.

The return also shews the enormous amount allowed annually in costs, and which, we think, an analysis of the return would prove, falls short of the actual amount.

It is impossible to suppose that a more inexpensive system cannot be devised, than the present, -say, £30,000 for costs, and £50,000 for Receivers' fees,-£80,000 a-year. We affirm, the properties might be better managed for one-half the amount.

The Committee must grapple with this branch of the subject; this must be their peculiar duty. They will see that the present body of Receivers are not men, generally speaking, at all adapted for their duties. How is it possible that practising barristers, apothecaries, or attornies, residing in Dublin, can efficiently discharge the onerous duties of the management of landed property in Ireland? And the great majority of Chancery Receivers are of such a class, or, if not, men totally unconnected with agriculture or the management of land.

At present the Receivers are a multitudinous mass, indiscriminately selected, distinct heads over small properties, or if over large ones, often nonresident, whilst their bailiffs are a low, uneducated class. It may be true, that as human nature is constituted, the duty of a Receiver will be best performed where the remuneration is on an ad valorem scale, and that object may be kept in view as a premium to industry; but in our judgment there should be a fixed salary, and the situation dependant upon the efficient discharge of the duties. What a happy change from the present system, if the local manager were a good agriculturist, and a resident moral agent. This is perfectly practicable, and forms one of the principal features of the proposed change.

Estates under the Court of Chancery are now confessedly the most mismanaged and uncared for in Ireland-perhaps on the face of the whole habitable globe-they are hot-beds of destitution, covering with a blight every adjacent property. Under the system we propose they would be pattern estates; agriculture, instead of relapsing, would progress; the tenantry would not die of destitution; the property given in pledge to the court would either be restored to the owner in an inproved condition, or be sold, not as now at a depreciated, but at an enhanced value. Thus creditor and debtor, and the country at large, would be alike benefitted.

How excellent a change, and how easy of accomplishment. We shall dwell no longer on gloomy retrospects; the evils have been great, they must be abated; we now look forward with the energy of hope to see them struck down and for ever.

In a former number of this journal, (ante, p. 146, Mis.,) we considered the question, what or whether there was any warranty of title annexed to a contract—not under seal-for the sale of land. The result we then conceived to be deducible from the cases, was, that an implied covenant or contract in law was created of an ability to give that interest in the land the vendor proposed to give. We now propose to consider the analogous question, as arising from the sale of specific chattels, in which the same rule, if not applied by the existing law, we trust will ere long be adopted as a settled principle.

In a recent case, Morley v. Attenborough, (13 Jur. 282,) the question was raised, whether the law annexed to the sale of a specific chattel an implied agreement on the part of the vendor, of an ability in him to convey, or, as stated by Mr. Baron Parke, "Where there is a bargain and sale of a specified, ascertained chattel, which operates to transmute the property, and nothing is said about title, what is the legal effect of that contract? Does the contract necessarily import, unless the contrary be expressed, that the vendor has a good title, or has it merely the effect of transferring such title as the vendor has ?"

The facts on which the question arose were as follows:-The plaintiff was the purchaser of a harp, sold by auction as an unredeemed pledge. The harp had been pledged by a person who had no title, and the real owner obliged the plaintiff to give it up, after it had been delivered to him by the defendant. Of the want of title in the pawner, the defendant was ignorant. Under these circumstances, the Court was of opinion that there was no implied warranty of title "that the vendor must be considered as selling merely the right to the pledge which he himself had."

The judgment of the court is not confined to the application of the legal principles applicable to the facts before them. The rule is laid down, that generally no such implied warranty exists; but that it would be inferred from the usage of the trade, or where the articles were purchased in a shop professedly carried on for the sale of goods. The judgment was principally founded on the rule of the old law-one, we think, ill adapted to the circumstances of the present generation, and which the enlightened spirit of modern law-givers has done much to dissolve.

When all sales took place in market overt-the then sole recognised place of sale-the common law annexed to that sale a complete title against all except the crown, and, subsequently, a prosecutor to whom restitution was ordered by the 21 Hen. 8, c. 11. This rule of the common law gave effectual protection to the vendee. The question we are now discussing could not arise except in sales in places not recognised as legitimate for the purposes of sale, and then the vendor gave no implied warranty, the vendee having notice of the infirmity in the place of the sale, was entitled to no redress, except for the deceit, if the vendor wilfully made a fraudulent representation of title; and this was the case of Sprigwell v. Allen (Al. 91). There the defendant bought the horse

in Smithfield, being a market overt; in the absence of any statement to the contrary, the inference was, that he believed himself possessed of a title as against the whole world; and, as the plaintiff could not have purchased in the market-else he also would have had good title, having purchased without notice of the infirmity in his vendor's title-he was bound to allege in the declaration that the defendant had sold the horse fraudulently, or knowing it not to be his own horse, which the plaintiff failed to prove. This is the oldest and the leading case on this branch of the law, and has been followed in all the subsequent cases.

The practice of selling in market overt all goods adapted for ordinary purposes, having almost wholly ceased, to follow fairly the analogy afforded by the former state of the law, the correct rule would appear to be, that the purchaser should, in every instance, have an implied warranty of title where the subject matter of sale is purchased in its known and customary place of sale, the place of resort for those requiring the thing to be purchase; viz., in a shop, as put by Mr. Baron Parke, for the sale of that particular class of goods. The indefeasible title given to the vendee amounted to an implied warranty; and, as the common law, when circumstances changed, did not follow up this rule, by giving an absolute title out of market overt, yet we think in lieu thereof its principles attached an implied warranty of title where the purchase was made in the place customarily used for such transactions; and, if not, then the vendee purchased on his own responsibility, and was remediless if his vendor's title was incomplete, unless he had an express warranty, or had averred and could prove fraud.

The judgment in the principal case appears to us to establish this proposition. Mr. Baron Parke, in his judgment (p. 285), after stating what appeared to him to be the general rule, "that there is no implied warranty of title on the sale of goods," says, "the question on each case where there is no warranty in express terms, will be, whether there are such circumstances as to be an equivalent to such a warranty. Usage of trade, if proved, as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement; and, without proof of such usage, the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons; and we do not suppose there can be any doubt, that if articles are bought in a shop professedly carried on for the sale of goods, the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods purchased." These rules, or, rather, exceptions to the rule of non-warranty, appear to include every species of sale made in the place customarily used for that purpose.

The case of Burnet v. Rollitt, (11 Jur. 827,) illustrates this question. There, one person, having purchased a carcase of pork from a professed butcher, did not remove it immediately; another person, asking the butcher to sell the same meat, was referred to the first purchaser, who thereupon sold to the second. The meat proved

This decision, though not in terms, in principle, establishes the rule followed in the civil law, and that of France and America, viz., of implying a

to be unfit for use; and the Court held that no implied warranty of quality was created by this contract, the vendor not being a professed dealer. This, it will be observed, was a question of war-warranty of title by the vendor of goods; the exranty of quality, not of title. But it shews the different view the law takes of a person professing a particular duty or business, and of a person acting otherwise than in their ordinary calling.

A contemporary legal journal (13 Eng. Jur. 141, part 2,) observing on this case, says :-" That so far as the judgment of the Court proceeded on the supposed analogy between warranty of title and of quality, the analogy is deficient, as, a shop-keeper does not warrant the quality of the goods sold by him, though he is now to be considered as waranting title." To these observations we cannot assent. To us the analogy appears extremely close, if not complete. No doubt, a shop-keeper does not, in every case, warrant the quality of goods sold by him, because they are capable of examination by the vendee; but so it is in the case of warranty of title; where it is in the power of the purchaser to ascertain, or the circumstances of the sale are such as to put him upon enquiry as to the state of the title, no implied warranty will arise, Bayley v. Meril, (Cro. Jac. 386;) Dyer v. Hargrave, (10 Ves. 507.) On the other hand, where the purchaser has no opportunity of examining the goods, merely ordering them from the shopkeeper, there is an implied warranty as to their fitness for the particular purpose they are required for, as in Burnet v. Rollitt, the Court holding that if the purchase had been from a professed dealer, and under the same circumstances which occurred with the defendant, in that case there would have been an implied warranty of the quality of the meat, at least its fitness for use, (See Browne v. Edginton, 2 M. & Gr. 279. Chanter v. Hopkins, 4 M. & W.399; Jones v. Bright, 5 Bing. 533.) The conclusion arrived at by the same Journal, that as no implied warranty of quality arose from the contract, when the purchaser has had full opportunity himself of examining the subject of the purchase, that consequently the maxim careat emptor was inapplicable to the case of warranty of title of goods, where the purchaser has not the means of exercising his own judgment, is, we think, deficient in analogy, if the rule we conceive deducible from the authorities be the true one, viz: that in cases of warranty, whether of title or quality, if the purchaser have the means of ascertaining the true state of facts, he takes on himself the responsibility, and no warranty is created.

If, on the contrary, the vendor has the sole means of knowledge, and the subject be purchased in the usual place of sale, under ordinary circumstances, and there is nothing in the sale such as would put a cautious purchaser on inquiry, a warranty of title will be implied.

The decision of the Court on the particular case before them, is in direct accordance with the view we have taken. The sale being notoriously of unredeemed pledges, the purchaser, in the view of the law, must have been aware that he could have no better title than his vendor had, which, necessarily was one qualified by the laws respecting pawnbrokers.

ceptions, to the general rule stated by Mr. Baron Parke, appearing to include almost every species of legitimate sale. To hold otherwise would leave every purchaser at the mercy of his vendor, and would cast a doubt on the bona fides of every contract, highly injurious to the interests of a commercial country.

Court Papers.

Chancery.-Easter Term.

April 23.-The following gentlemen took the usual oaths on being called to the bar.

John Thomas Lloyd, Nicholas Alexander Ball, Joseph Neale M'Kenna, William James Sidney, William Pennefa ther, Richard Waring Pittar, John Creighton Gray, Tho mas Perry Lynch, Edward Falconer Litton, William Robertson Jones, James Edward Jackson.

LIST OF CAUSES UNDISPOSED.
Kirkwood v. Lloyd, report, exceptions and merits.
Farrell v. Fleming, pleadings and proofs.
Jacob v. Taylor, ditto ditto.
ditto.
Dimsdale v. Hemming, ditto ditto.

Twycross v. Moore, ditto

Simpson v. Synge, pleadings and proofs, order pro con.
Smith v. Robinson, plead. & p., bill & an., order pro. con.
Newport v. Scott, report, exceptions and merits.
Londonderry & Coleraine Railway v. Dimsdale, plead, & p.
Woodrooffe v. Grace, pleadings and proofs, order pro con.
Alston v. Alcock, pleadings and proofs.
Hillhouse v. Tyndal, ditto ditto.
Baily v. Swan, ditto ditto.
Lyle v. Lyle, report and merits.
Plunket v. Reilly, bill and answer.
O'Grady v. Barry, pleadings and proofs.

Rubie v. English, pleadings and proofs, order pro confesso.
Reynolds v. Kelly, reports and merits.

Hinds v. Same, ditto ditto.

White v. White, pleadings and proofs for dismiss.
Mara v. Tibeaudo, report and merits.
Barron v. O'Brien, ditto ditto.

Same v. Maunsell, ditto

ditto.

Carberry v. Cox, report, exceptions and merits.
Molloy v. French, report and merits.
Kelly v. Hayes, plead. & proofs, ord. pro con., bill & answer.

Same v. Same, ditto ditto.

Murphy v. Linde, report and merits.
Balfe v. Colgan, pleadings and proofs.
Barton v. Stewart, ditto ditto.
Bayly v. O'Connor, ditto ditto.
Callaghan v. Callaghan, report and merits.

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Fagan v. Fagan, ditto ditto.
Molony v. Scollard, pleading and proofs, order pro confesso.
Blakeney v. Blakeney, ditto ditto.
Marshall v. Hovendon, return of commission.
Hayden v. Hearne, pleadings and proofs, order pro con.
Fishe v. Lawder, report and merits.

Orr v. Foster, bill and answer, order pro confesso.
Balfe v. Balfe, pleadings and proofs.
Burrowes v. Attorney-general, report and merits.
Clarke v. Lawder,

ditto

White v. White, pleadings and proofs.

Bond v. Coane,

ditto ditto.
ditto.

ditto.

Gartland v. M'Alister, ditto
Murray v. Murray, pleadings and proofs, order pro con.
Gordon v. Mahony, pleadings and proofs.

Rowland v. Macdonnell, pleadings and proofs, ord. pro con.

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