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finding of the circuit court where the finding is, contrary, the defendant immediately proceeded. general, nor of the conclusions of the circuit court to introduce evidence responsive to that introembodied in the general finding. [No. 173.)

duced by the plaintiff, and evidence to show Submitted Dec. 24, 1873. Decided Jan. 5, 1874. that the decedent never promised the plaintiff

as alleged in the declaration, and at the close of N States for the Eastern District of Virginia. to decide substantially as follows: The case is stated by the court.

(1) That the alleged contract, inasmuch as Messrs. J. M. Carlisle, J. D. McPherson

war existed at the time between the United and James Lyon, for plaintiff in error. States and the Confederate States, was illegal Mr. Wm. w. Cramp, for defendant in and void.

(2) That the alleged contract, if not actually Mr. Justice Clifford delivered the opinion void, was an executory agreement and, as such, of the court:

was terminated by the war. Advances were made by the plaintiff to Silas (3) That the alleged contract, if otherwise Omohundro in the sum of $4,390, as alleged in valid, was too indefinite to be executed. the bill of particulars filed in the case. None (4) That no interest is recoverable during of that amount, as the plaintiff alleges, was ever the war or any portion of the war upon a conpaid by the decedent, and the defendant, as his tract between alien enemies. executor, having neglected and refused to pay (5) That upon the whole case, judgment the same, the plaintiff brought an action of as. should be for the defendant. sumpsit against the defendant, as such executor, But the court refused so to decide, and ruled to recover the amount. Service being made the against the defendant upon each of the propodefendant ultimately appeared and pleaded the sitions, and the defendant excepted to the said general issue. Both parties being present they ruling. waived a jury, and agreed that the issues of Under those circumstances the record states fact should be tried and determined by the court that “the court does find the facts in the case without the intervention of a jury.

for the plaintiff, and gives judgment that the Subsequently the defendant filed a special plaintiff recover of the defendant the sum of plea, that the plaintiff ought not to have and $4,391, with interest from the 24th day of June, maintain his action aforesaid against 1864, at the rate of six per cent. per annum, 67*] *him because, he says, that at the time of and costs of suit.” making the supposed contract and promise in Judgment having been rendered, the defendthe declaration mentioned, war existed between ant moved the court to arrest the same and the United States and the Confederate States, grant him a new trial, alleging for, cause that and that the plaintiff and the testator of the the judgment was contrary to the evidence and defendant were alien enemies, concluding with a the law, and in support of the motion assigned verification and a prayer for judgment. Re- for error the same causes as those stated in the sponsive to that special plea the plaintiff filed requests submitted before judgment, but the a replication denying the allegations thereof, court overruled the motion and the defendant and prayed that the same might be inquired of excepted to the ruling. by the country.

Such is the state of the record which is Three depositions were introduced by the brought here by the defendant in the subordiplaintiff to sustain the issue on his part, and he nate court. Since the cause was removed here also introduced certain receipts, four of which the losing party assigns a single cause of error, were signed by the reputed wife of the dece- which is that the circuit court erred in refusing dent, and two by the contractor employed to to rule in favor of the defendant upon the quesbuild a dwelling-house for his reputed wife and tions of law as requested, and in ruling to the children. Taken together, these proofs tend contrary thereof. strongly to prove that the decedent was indebt- Much discussion of the motion for new trial ed to the plaintiff in the sum of $4,390, as | is unnecessary, as the motion is one addressed found by the circuit court.

to the discretion of the *court, in respect [*69 Countervailing evidence was introduced by to which the ruling of the circuit court cannot the defendant consisting of five depositions, å be reviewed here upon a writ of error, nor in deed from the decedent to his reputed wife for any other mode. Nor can it make any differher life, remainder to her six children, and the ence in this case that the motion for new trial will of the testator with the probate thereof, the was blended with one to arrest the judgment, Virginia Ordinance of Secession, and an ordi- as such a motion ought regularly to be made benance of the State requiring the Governor to fore the judgment is entered. Motions in arrest call volunteers into the service of the State to at common law were made after verdict and berepel invasion and to protect the citizens of the fore judgment, and it is quite clear that the reState in the emergency, and ten other ordinan- fusal to grant such a motion after judgment, in ces passed by that State during the rebellion. case where the finding of the circuit court is All of the testimony introduced on the one side general, cannot be regarded as a ruling made in and the other being set forth at large in what is the progress of the trial. denominated in the transcript a bill of excep- Nothing remains to be considered except the tions, filling thirty-seven pages of the transcript. requests for rulings presented by the defendant

None of the evidence introduced by the plain before judgment. tiff was objected to at the time, nor is any part Beyond all doubt the only effect of the exof it made the subject of an exception, nor was ception to the refusal of the court to grant the any request made by the defendant at the close fifth request, if the exception is admitted to be of the plaintiff's case for a ruling adverse to well taken, will be to require the court here to the right of the plaintiff to recover. On the review the finding of the circuit court in a case

where the finding is general, and where it is un

[No. 542.] accompanied by any authorized statement of the facts, which it is plain this court cannot do, Submitted Dec. 22, 1873. Decided Jan. 12, 1874. for the reasons given in the opinion of the court in the case of Ins. Co. v. Folsom, 18 Wall., 237,

A o 21 L. ed. 827, decided at the present term. Our ed States for the District of Minnesota. decision in that case was, that in a case where The case is stated by the court. issues of fact are submitted to the circuit court Mr. W. P. Clough, for appellant: and the finding is general, nothing is open to re- The ordinary legal effect of the covenants of view by the losing party under a writ of error warranty which Pepin and French respectively except the rulings of the circuit court in the held—the former by his deed from Poncin, and progress of the trial, and that the phrase "rul the latter by his deed from Pepin, at the time ings of the court in the progress of the trial” of acquirement of title by Poncin, cannot be does not include the general finding of the cir- open to dispute. The nature of the obligations cuit court nor the conclusions of the circuit of each covenantor to each covenantee was that, court embodied in such general finding, which in accordance with the tenor of the covenant, certainly disposes of the exceptions to the re- the former should maintain the latter in quiet fusals of the circuit court to decide and rule as enjoyment of the premises to which the coverequested in the first four prayers presented by nant related, free from molestation by any the defendant, as it is clear that those excep- claiming under title paramount; that if the tions seek to review certain conclusions of the covenantor should be unable to perform his circuit court which are necessarily embodied in covenant specifically, then he should compenthe general finding of the circuit court.

sate the covenantee in damages; and if the cove70*] *Opposed to that it may be suggested nantor should at any time afterward acquire that the judgment shows that interest is al. | any title to the premises not in him at the date lowed but the answer to that is that neither the of the covenant, that such title should at once, finding nor the judgment shows anything in by legal operation, inure to the covenantee, and regard to the principal except the amount become vested in him. awarded to the plaintiff. Nothing can be in- Irvine v. Irvine, 9 Wall., 617, 19 L. ed. 800; ferred from the declaration, to support the de- Rawle, Cov., 4th ed., 390, and cases cited; Bk. fense of illegality, as it contains only the mon- v. Mersereau, 3 Barb. Ch., 528; notes to Duchey counts, nor from the bill of particulars filed ess of Kingston's Case, 2 Sm. L. Cas. in the case, as it gives only the dates of the By virtue of the operation of the latter branch payments and makes no reference to the date of of the covenantor's obligation, in order to sat. the contract. Support to the defense is entire isfy Poncin's covenant to Pepin, Poncin's esly wanting, without resorting to the evidence tate in the one hundred acres at once inured to, as reported in the bill of exceptions, which in- and vested in, Pepin; and, in order to satisfy eludes all that was introduced on both sides Pepin's covenant to French, Pepin's estate so and is unaccompanied by any special finding of received from Poncin, at once inured to, and the facts. Issues of fact cannot be found by vested, in French. this court, as the Act of Congress requires that But when the title had thus arrived in such issues shall be found by the circuit court. French, it remained in him, for want of any reConsequently there can be no review of the find. lations to the Elfelts, upon which the law could ing of the circuit court where the finding is gen-operate to carry it to them. As has been before eral, nor of the conclusions of the circuit court remarked, French was under no obligation as to embodied in the general finding.

the Elfelts' title in the land. He had not coveJudgment affirmed.

nanted to protect their title, and he had not professed in his deed to them, either to have or transfer any interest whatever in the land. The

bargain, therefore, between them was confined, WILLIAM M. MCCARTHY, Appt., in law as well as in fact, to the estate, if any

which French had at the date of his quitclaim CHARLES A. MANN et al.

deed to the Elfelts. As to all future estates or

! | interest, he and they were strangers. (See S. C., 19 Wall., 20-32.)

No rule of law is better settled than that

subsequently acquired interests are wholly unVoid entry for landre-instatement of_rights affected by deeds of mere release without cove. of grantees.

nants, or without recitals of estate in the gran:

tor. Van Rensselaer v. Kearney, 11 How., 297; 1. Where an entry for land was void and was set aside by the Commissioners of the Land Office, the Rawle, Cov., 4th ed., 390, and cases cited. l'nited States held the land as if no entry had been Since, then, the operation of ordinary legal made. Beink the absolute owner, it could grant principles failed to carry the title to the one it hipon such terms and conditions as Congress hundred acres any further than to French, it might prescribe.

2. Where the Act of Congress declared, that the must have remained in him until he granted it entry should be re-instated as of its original date, away by sufficient deed of conveyance, which he and'a patent should issue to the person who en did to furber afterwards, in 1856. terer the land, and that the title should inure to the benefit of his grantees as he should have con- We are now brought to consider whether the vered the land: by his grantees was meant those ordinary rules of law did, in fact, govern in this claiming title under him.

case, or to what extent, if to any, the passage 3. When he paid his money and procured a certificate of ertry, pursuant to the Act, an equity of title from Poncin to the party or parties in rested in each of those who would have held it it whom it ultimately vested, was controlled and the original entry bad been, valid, and when the guided by force of the Act of Congress itself. patent issued the legal title vested in the same parties.

Appellant's position upon this point is, that


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the statute gave no direction whatever to the It is unnecessary to argue that Congress is passage of the title, after its arrival in Poncin. powerless to enact, with effect, that title to any

The only part of the Act upon which argu- property at the time actually vested in the ment can be based to show that Congress did United States, was transferred by the latter not mean that the existing laws of the land, years before, for to argue that it could, would which were adequate to effect complete justice, be to propound a manifest absurdity. It is no should be left to operate upon Poncin's estate, less unnecessary to argue that Congress is powand so to work out an adjustment of the right erless to enact with effect to-day that a desig. of the respective parties, is that portion provid. nated person may have a patent of some parcel ing that the entry of Peter Poncin be allowed of land in which none but government has any and re-instated, as of the date of said entry. spark of interest, and that upon the issuance of

Even this clause of the statute cannot be such patent to-morrow, the land shall have been made the basis of such an argument, unless it the property of the patentee for the four years must be accorded a literal operation. Ordinary past. legal principles were left by this clause free to However extensive the authority of that body accomplish their usual results, unless Congress may be over the public domain it cannot, from not only meant the proposed transfer to relate the very nature of things, declare, with effect, back to the time of the location in 1850; but by binding upon third parties, that lands have the clause actually did make it relate back to been transferred by government one moment be that time, and have the same effect in law for fore they have actually passed from it. every purpose and as between all persons, as if It is manifest, therefore, that the statute prothe location had been legally perfected at that duced no retroactive result by virtue of its opdate. In other words: unless, by the clause, all erating upon banks themselves and changing parties interested and the courts were estopped them from what they really were. from saying that title did not in fact pass to It did not operate by way of_ratifying any Poncin in 1850.

previous void Act of the party, Poncin, and of The Act did not purport to burden Poncin's the land officers. title with equities or trusts in favor of any spec- Ratification can only take place when the ified person. The statement that allowance of party ratifying consents to what has been done the entry is made so that the title may inure to and agrees to abide by it as it exists. the benefit of Poncin's grantees, does not de- In this instance, Poncin had never made any clare a use in favor of any particular claimant "entry” of the lands, and had never offered to of the land, in preference to any other, but does make any. no more than to assign a reason operating upon It will be no answer to these positions to the minds of Congress to induce the enactment argue that the lands were the government's, of the law. It is simply a statement of one of and that, therefore, it was free to grant them the causes leading to so extraordinary and ex- to whomever it should choose. ceptional a piece of legislation. This recital, if So far from denying or avoiding such fact it may be so termed, instead of negativing the and right, the appellant not only admits them, idea that the question of title was to be left for but relies largely upon them to establish his settlement by general principles, is the strong- case. It is true that none of the parties who est possible expression of intent, on the part of had given or taken deeds of the lands, had any the law-making power, that it should be settled claim or right whatever to them as against the in that way, and in no other.

government. It was free to grant them, with If, therefore, the clause referred to cannot or without price, to Poncin, Pepin, French, the preclude us from insisting as a matter of law, Elfelts, or to anyone else who should choose to as well as a matter of fact, that Poncin had accept the grant when made. But the defect nothing in the lands until Oct., 1854, no imag: in such an agreement would be that governinable room is left to contend that the specialment exercised its right of disposition by passact gave any peculiar direction of its own to ing over all the title it had in the lands, to Ponthe transit of title from Poncin forward. As cin, and by evidencing such transfer by a conregards this clause, the appellant denies that it veyance of the highest degree of solemnity of had a literal effect. In so far as it assumed to any in its use. It chose Poncin as the recipient produce retroactive results, it was inoperative, of its grant, and appointed no particular perat least as to interested parties, other than the son to share the advantages of the grant with United States and Poncin.

him. Although government, by the statute, If it had a literal and retroactive operation, declared that it exercised its proprietary right its effect was to clothe the patent issued under of disposition of the lands, so that the title it in 1854, with the same legal consequences vested by it ir Poncin might inure to the benethat would have attended one lawfully issued fit of his grantees, in so far as he might have in 1850.

conveyed the same, it omitted to state which of Such a result was not accomplished for sev- the several parties claiming to stand in that reeral decisive reasons. It could only be accom lation was the one intended. It did not even plished in one of two ways:

undertake to say that any part of the land had 1. By the statute acting by way of ratifying been conveyed, much less to decide whether a void act done in the name of the United French, with his covenants, or the Elfelts, withStates, by one having no authority at the time; out any, and holding a mere release applying to or,

no future interest, was the person to whom the 2. By the statute acting by way of saying title with which it was parting should ultimatethat the rights of all persons should be, underly move. Congress plainly meant that whoever this patent, precisely what they would have should get title after Poncin, should get it by been if the attempted location had been effec- the laws of the land, and did not mean to as. tual and a patent had issued upon it.

sume the task of itself settling and adjusting

the conflicting claims of those deriving title, conveyed all his right, title and claim, “both from him. Had there been any design on the part in law and in equity, as well in possession as of Congress to intervene between the adverse expectancy,” to Elfelt. claimants, it would have adopted some mode On the 10th of March, 1851, the Commissionof choosing between them, and when its choice er of the General Land Office set aside Poncin's had been arrived at, would have enacted that entry, upon the ground that the section in the title be made over to such person directly. which the land was situated was reserved by

The insurmountable difficulty with respond- the Act of March 3, 1849, for school purposes ents' title is, that it would force a construction On the 15th of October, 1853, Elfelt conveyed, upon this Act that would give to a mere quit. by deed of quitclaim, to Van Etten. claim deed, having no covenants nor averments On the 27th of July, 1854, an Act of Congress of title, equal efficacy with a deed having cove- was passed whereby the entry of Poncin was nants to pass subsequently acquired estates. re-instated, and it was enacted that upon the

If the appellant is estopped from asserting payment of the purchase money a patent should anything, it is either that Poncin had no title issue to him. in 1850 or that he had no title in 1851, when On the 19th of October 1854, Elfelt executed he quitclaimed to the Elfelts.

to Van Etten a further deed of quitclaim. On And if such estoppel arose at all, it was upon the 24th of October, 1854, Van Etten, by deed his deed to the Elfelts, because that is the only of quitclaim, conveyed the undivided half of transaction between them of any consequence the tract to Robertson. On the 31st of the in determining that question.

same month, Poncin paid into the Land Office That deed, however, contained no averment the price of * the land, and on the 24th of [*31 of title, and no covenant and, consequently, March, 1855, the United States issued to him a no statement capable either of being denied or patent for it. On the 22d of July, 1855, Robaffirmed. It is well settled in this court that a ertson and Van Etten laid the tract out into deed of that character works no estoppel what- lots and platted them as an addition to the City ever upon the grantor (Van Rensselaer v. Kear- of St. Paul. This addition is now worth more ney. IÎ How., 297); and such is the universal than half a million of dollars. The lots and doctrine.

blocks of lots in controversy are parts of this Mr. H. J. Horn, for appellees :

addition. All the deeds before mentioned were So long as appellant derives his whole title duly executed and recorded. from the Pepin deed, and derives it solely upon On the 14th of January, 1856, French conthe theory that Pepin estopped to eny that veyed, by deed of quitclaim, the entire tract to he had title when he made his deed, he is Furber. On the 28th of June, 1856, Furber equally estopped to deny that title did not pass conveyed by a like deed to Dunn. On the 31st to French and, consequently, is estopped to of July, 1856, Dunn executed a like deed to deny that French had not a good title when he Hammond, and on the 20th of September, 1862, conveyed to the Elfelts. See, Douglass v. Hammond a like deed to McCarthy, the appelScott, 5 Ham. (Ohio), 194; Royston v. Wear, 3 lant. The deeds to Furber and Dunn were duly Head (Tenn.), 8; Carver v. Jackson, 4 Pet., 1. recorded. Those to Hammond and the appel

The deed from French to the Elfelts, al- lant have never been recorded. though in form a quitclaim, was sufficient. The Act of Congress under which the second

A deed of release and quitclaim may convey entry of Poncin was made is as follows: the interest of the releasor without words of "An Act authorizing a patent to be issued to grant, although the releasee had no prior inter- Peter Poncin, for certain lands therein deest in or possession of the estate.

scribed. 2 Washb. Real Est., citing Jackson v. Fish, “Sec. 1. Be it enacted, That the entry by 10 Johns., 456; overruling Bennett v. Irwin, 3 Peter Poncin of the north half of the southJohns., 365; Russell v. Coffin, 8 Pick., 143; east quarter and the south half of the northPray v. Pierce, 7 Mass., 381.

east quarter of section thirty-six, in township

number twenty-nine, of range twenty-three, in Mr. Justice Swayne delivered the opinion Stillwater land district, Minnesota, canceled of the court:

by the Commissioner of the General Land This is an appeal in equity from the Circuit Office, be, and the same is hereby allowed and Court of the United States for the District of re-instated as of the date of said entry, so that Minnesota.

the title to said lands may inure to the benefit The appellant, under a remedial statute of of his grantees as far as he may have conveyed the State, filed the bill to enforce his cla of the same; provided, that the money paid for title to the real estate in controversy. The said lands shall not have been withdrawn, or, court below decreed against him, and he there if withdrawn, shall be again paid at said land upon brought the case to this court by appeal office, and that thereupon a patent shall issue for review. The facts, so far as it is necessary in the name of said Peter Poncin for said lands. to state them, are as follows:

Sec. 2. And be it further enacted, That the The premises were a part of the public do- superintendent of public schools in said Terrimain of the United States. On the 13th of tory of Minnesota, be, and he is hereby auFebruary, 1850, Peter Poncin entered at the thorized to select other lands in lieu of said proper land office a tract of one hundred acres. section thirty-six, as far as the same have been The premises are a part of that tract.

granted or sold.” On the 28th of March, 1850, Poncin conveyed *The first entry by Poncin was clearly [*32 the entire tract to Pepin, by deed of warranty. void, and the Commissioner was right in setting On the 19th of April, in the same year, Pepin it aside. When the Act in question was passed, conveyed with warranty to French. On the 19th the United States held the land as if no entry of March, 1851, French, by deed of quitclaim, had been made. Being the absolute owners,

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they could grant it upon such terms and condi- Messrs. John Ganson and B. H. Williams, tions as Congress might prescribe. The govern- for appellant: ment united the powers of ownership and leg. The collision took place at about 9 o'clock in islation, and both were exercised in passing the the evening of Nov. 29, 1869, off Port Stanley, Act. The Act declared, first, that the entry near the middle of Lake Erie. The night was should be re-instated as of its original date, cloudy, dark and hazy, with a fine rain. and that a patent should issue to Poncin; sec- The lights of the schooner were seen, by those ond, that the title should inure to the benefit in command of the propeller, in ample time to of his grantees as he should have conveyed the avoid a collision, and there was nothing in the land. The law is explicit and there is no diffi- locality to prevent a steam vessel from maneuculty in carrying out its provisions. It must vering as she chose. be liberally construed to effect the purposes of The general course of the propeller, as shown its enactment. By Poncin's grantees was by its compass, when it first made the lights of meant those claiming title under him. Those the schooner, was east, three quarters north. to whom he might have conveyed were no more The propeller's compass varied from the true intended to be beneficiaries under the Act, than course about three fourths of a point, so that those holding remoter links in the same chain the propeller's general true course was east by of title. When he paid his money and procured north, half north. The schooner's course was a certificate of entry pursuant to the Act, an southwest by west, half west. These courses in equity vested in each of those who would have tersected each other, with a difference of only held it, if the original entry had been valid, and one point. The propeller at some time starwhen the patent issued, the legal title vested in boarded its helm. There is a dispute as to when the same parties. The Act applied the doctrine this was done, and what the relative positions of relation. It made no distinction between of the propeller and schooner were, when the grantees with warranty and those without it. order to starboard was given. The propeller hit If there had been outstanding title bonds, they the schooner on the larboard side, between the also would have been within the equity of the stem and the fore-rigging. The sterns stood at Act, and the holders could have enforced them less than a right angle as the collision occurred. accordingly.

The chief dispute upon the evidence relates The law and equity of the case are with the to the schooner's changing her course, and the appellees, and the decree of the Circuit Court is proximityof the vessels when the propeller affirmed.

star-boarded. The propeller claims that the schooner ported her helm before the collision

was imminent and thereby caused the collision. WILLIAM T. FRASER, Appt.,

The schooner denies this, and those in command

of her and on duty at the time, testify positiveTHE PROPELLER WENONA, etc., William G. lision became inevitable. The order was given

ly that she was kept on her course until the colFargo et al.

by the captain when they were close together. (See S. C., "The Wenona," 19 Wall., 41-58.) Her helm was then ordered hard a-port, but not

in time to enable her to swing to starboard Rules of navigation-signal lights-collision. more than a point and a half or two points.

1. Salling, vessels, when approaching a steamer, This was done to ease the blow. are required to keep their course, and steamers, under such circumstances, are required to keep out respective lights were first made, were pursuing

The propeller and the schooner, when their 2. It is not material that the signal lights of a such courses as to bring this case, as the vessels It clearly appears that they were burning bright. 18th articles of the Act of Congress, approved sailing vessel were not properly located on it, where approached each other, within the 15th and ly and that they were seen by the approaching steamer in ample season to have enabled her to Apr. 29, 1864, entitled "An Act Fixing Certain adopt any and every proper precaution to avoid a Rules and Regulations for Preventing Colli. collision.

3. A change of course of a sailing vessel, when sions on Water.” 13 Stat. at L., 58, 60. the collision was incvitable, cannot be regarded as

Article 15 of that Act provides that “If two a culpable act.

ships, one of which is a sailing ship, and the (No. 123.]

other a steamship, are proceeding in such direc

tions as to involve risk of collision, the steamArgued Nov. 26, 1873. Decided Jan. 12, 1874. ship shall keep out of the way of the sailing A Ped States for the Northern District of New above Rules, one or two ships is to keep out of PPEAL from the Circuit Court of the Unit- ship.”

18 that by York.

This cause was commenced by libel filed in the way, the other shall keep her course, subthe District Court of the United States for the ject to the qualification contained in the followNorthern District of New York, by the presenting article"-which it is not, in this connection, appellant, to recover damages for the loss of the necessary to quote. schooner Fremont occasioned by a collision with

The courses of the propeller and the schooner the propeller Wenona. The history and general intersected each other, there being a divergence facts of the case are clearly stated in the

opin. of the propeller, before it reached the point of

of one point only between them. The position ion. The particular claims of the parties ap- intersection, would present to its view the green pear more fully in their respective briefs. See, also, 4 Ben., 207, and 8 Blatchf., 499. light of the schooner, a little off the port bow.

The master of the propeller says, “He first made NOTE.--Collision; rights of steam and sailing the green light of the schooner in about that vessels with reference to each other, and in the position, or nearly dead ahead, when the vessels ing and meeting-see note 13 L. ed. U. S. 537; and note 35 L. ed. U. S. 453.

were a little short of two miles apart. Those on

of the way.


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