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The 80th section of the statute of Mississippi concerning the estates of decedents (Howard & Hutchinson, 409) provides that, "when the estate both real and personal of any person deceased shall be insolvent, or insufficient to pay all the just debts which the deceased owed, the said estate, both real and personal, shall be dis

or adminis

Lien of judgments in U. S. courts, what depend-tributed to and among all the creditors, in proent upon-judgment in Mississippi against administrator, not lien on property of deceased if estate subsequently declared insolvent by State court.

The laws of Mississippi direct that, where the insolvency of the estate of a deceased person shall be reported to the Orphans' Court, that court shall or der a sale of the property, and distribute the proceeds thereof amongst the creditors pro rata, and that in the mean time no execution shall issue upon a judgment obtained against such insolvent estate. A judgment obtained against the administrator before the declaration by the Orphans' Court of the insolvency of the estate, is not, upon that account, entitled to a preference; but must share in the general distribution.

But this court expresses no opinion as to the right of State legislation to compel foreign creditors, in all cases, to seek their remedy against the estates of decedents in the State courts alone, to the exclusion of the jurisdiction of the courts of the United States.

portion to the sums to them respectively due
and owing; and the executor
trator shall exhibit to the Orphans' Court an
account and statement, etc. And if it appear
to the said Orphans' Court that such estate is
insolvent, then, after ordering the lands, tene-
ments, etc., of the testator or intestate to be
sold, they shall appoint two or more persons to
be commissioners, with full power to receive
and examine all claims of the several creditors
of such estate," etc., etc. And the court are
afterwards required to make distribution pro
rata among the creditors, after paying the fu-
neral expenses, etc.

The 98th section provides, that no execution shall issue on any judgment obtained against any such insolvent estate, but it shall and may be filed as a claim against it, etc.

The case was argued by Mr. Frederic P. Stanton for the appellant, and Mr. Featherston for the appellees.

Mr. Stanton said that the equity of this case was dependent upon the peculiar statutes of the State of Mississippi, which require the assets of insolvent estates to be divided among the creditors, in proportion to their respective demands. See Hutchinson's Miss. Code, ch. 49, sec. 103, p. 667.

This law creates a lien in favor of creditors from the time of *the debtor's decease; [*109 and a judgment by any creditor, against the administrator or executor, cannot affect the right of the other creditors to their due proportion of the estate. Same Code, p. 673.

The Supreme Court of the State has given an authoritative exposition of these several provisions, in the case of Dye's Administrator v. Bartlett, 7 Howard, Miss. 227.

was from the District Court of the United States for the Northern District of Mississippi, sitting as a court of equity. The appellant, Thomas Williams, was complainant below, in a bill setting forth, that letters of administration on the estate of Benjamin J. Baldwin, deceased, were granted to him in October, 1838. That at the time he entered upon said administration and made an inventory of the estate, he confidently believed that his intestate's estate would be amply sufficient to satisfy all his creditors. That at November Term, 1839, the respondents obtained a judgment against him in the District Court of the United States, for a debt due to them by the inestate. That the complainant, having then discovered that the estate would not be sufficient to pay the debts of the deceased, suggested its insolvency to the Probate Court on the first It is contended for the appellees, Benedict & Monday of December following; whereupon Benedict, that the court below did not err in 108*] the court adjudged *the estate insolvent, sustaining the demurrer to the appellant's bill and appointed commissioners to receive and of injunction. It is rather a matter of surprise audit the claims. That, to the great wrong of that said bill should have been granted by the the intestate's other creditors, an execution has district judge. Appellant shows, by the allegabeen since issued on the judgment of Benedict tions and admissions in his bill, that the estate & Benedict, and levied by the marshal on a of his intestate was rendered insolvent by his large portion of the most valuable property of own negligence and maladministration. the intestate, thereby preventing the sale of it largest debt due the estate of said Baldwin, to by the administrator under the order of the wit, a note drawn by Henry A. Fowlkes, of Probate Court. Wherefore he prays the court Alabama, for seven thousand dollars, was lost to grant him a writ of audita querela, and to to the estate by the refusal of the administrator order a writ of supersedeas to issue to the mar-to sue on it. Other acts of maladministration shal, to stay the execution, and for further relief.

Mr. Featherston, for the appellees:

are apparent on the face of the bill.


Appellant has not, therefore, made out such a On this bill, the judge ordered an injunction case as would entitle him to relief in a court of to issue. The respondents afterwards appeared equity. Administrators are bound to exercise and demurred to the bill for want of equity, and such prudence, diligence, and caution in the afterwards, at June Term, 1845, upon hearing, administration of estates, as a prudent man, the court decreed that defendants' demur-looking to his own interests, would exercise in rer to plaintiff's bill of complaint be sustained, the management of his own affairs. See Bailey and the bill dismissed. At the same term, it et al. v. Dilworth, 10 Smedes & Marsh. 404. was ordered that the final decree be enrolled, and an appeal allowed to this court. A writ of error was also issued.

They are also required by the statutes of Mississippi, to be prompt in reporting the insolvency of the estates of their intestates.

See Bramlet v. Webb et al. 11 Smedes & Marsh, 439.

But is said by the solicitor for the appellant, that "the equity of this case is dependent upon the peculiar statutes of the State of Mississippi, which require the assets of insolvent estates to be divided among the creditors in proportion to their respective demands.” See Hutchinson's Miss. Code, ch. 49, sec. 103, p. 667.

It is equally true that the statutes of Mississippi give judgment creditors a lien on all the property of defendants from the rendition of the judgment. See Hutchinson's Miss. Code, 881, 882, 885, 890, 891, 894; Dye's Adm'r v. Bartlett, 7 Howard, Miss. 226.

Benedict & Benedict acquired a lien on all the property of Benjamin J. Baldwin, deceased, in the hands of Thomas Williams, his administrator, from the rendition of their judgment in November, 1839. This lien could not be de110*] feated by any *act of the defendant, Williams. The plaintiffs in the court below could alone by their acts raise their lien. See 1 Bland's Chan. Rep. 449, 452.

Nothing subsequent could devest plaintiffs' lien without their consent. This judgment was rendered before the appellant declared the estate insolvent. The other creditors, who had not obtained judgments, acquired a lien (if at all) from the time the Court of Probates declared the estate insolvent, and not from the death of the intestate, as insisted by counsel for appellant. See Hutchinson's Code, 673.

The plaintiffs, therefore, in the court below, acquired by their judgment a prior lien on the estate of Baldwin over the other creditors. A prior lien gives a prior right to satisfaction. See Andrews v. Wilkes, 6 Howard, Miss. 554. This judgment was entitled to satisfaction, to the exclusion of all other creditors. Nor will it do injustice to other creditors to give it such preference.

The case would not be altered if Baldwin were alive; it would still be a prior lien. It is an advantage gained over other creditors by the superior vigilance of the appellees in the prosecution of their claim to final judgment—an advantage recognized and sustained by the law. There is no provision of the statutes of Mississippi which operated per se as a stay of execution on this judgment in the court below. Nor is there any, it is believed, which would by any fair or rational construction authorize the district judge in enjoining it.

Section 103 of Hutchinson's Mississippi Code, pages 667, 668, relied on by appellant's counsel, provides that no suit shall be commenced against an administrator after his intestate's estate has been declared insolvent, etc., etc. This section can have no bearing on this case, because the judgment was obtained and the suit ended before the estate was reported or decreed insolvent.

Section 1, art. 2, of the same code, p. 673, is also relied on. This section provides, that, when suits are pending against administrators, and undetermined at the time the estates of their intestates are decreed insolvent, execution shall be stayed after judgment, etc. This provision is equally inapplicable to this case. This suit was determined, and judgment rendered, before appellant reported the estate of Baldwin insolvent.

Would not a decision, bringing this case within the meaning of the above sections (and they are the only statutes relied on), be an act of a legislative rather than a judicial character.

The decree of the district judge dismissing the bill of injunction *must therefore be [*1.11 sustained. No injustice will be done to the other creditors. They have their remedy against the administrator and his securities on his official bond, for all acts of maladministration, etc. See Edmundson v. Roberts, 2 Howard, Miss. 822; Lerhr v. Tarball, 2 Ib. 905; Prosser v. Yerby, 1 Ib. 87.

Mr. Justice Grier delivered the opinion of the court:

The only question raised in this case depends on the construction of the peculiar statutes of Mississippi. It is, whether a plaintiff who has obtained a judgment against the administrator of an intestate's estate, before it has been declared insolvent, has such a prior lien on the same as will entitle him to issue an execution and satisfy his judgment out of the assets, after the estate has been declared insolvent by the Orphans' or Probate Court, and commissioners appointed for the purpose of distributing the assets equally among all the creditors.

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The process, both mesne and final, in the district and circuit courts of the United States, being conformed to those of the different States in which they have jurisdiction, the lien of judgments on property within the limits of that jurisdiction depends, also, upon the State law, where Congress has not legislated on the subject. In some of the States, a judgment is not a lien on lands; in others, there is a lien coextensive with the jurisdiction of the court. In Mississippi, a judgment obtained in his lifetime is a lien, from the time of its rendition, on all the defendant's property; and the property of a decedent becomes liable for his debts from the time of his death. See Dye v. Bartlett, 7 How. Miss. 224. Consequently, the lien of a judgment obtained before defendant's death cannot be affected by a declaration of insolvency subsequently made by his administrator. But if, at the time of the death, the fund from which each of the creditors has an equal right to claim satisfaction is insufficient to pay all, equity requires that one should not be permitted, by a mere race of diligence, to seize satisfaction of his whole debt, at the expense of another. Hence, a declaration of insolvency must relate back to the death, in order that this equitable principle may have its effect. Such appears to be the policy of the legislation of Mississippi on this subject, apparent in her statutes and the decisions of her courts.

The case of Parker v. Whiting, 6 How. Miss. 352, decided in the High Court of Errors and Appeals of that State, presented the same point in a case parallel with the present.

In that case, as in this, it was contended that an administrator cannot report an estate insolvent after nine months, that *being the [*112 period within which he cannot be sued; and that a judgment obtained after that time became a lien on all the property of the deceased, which cannot be destroyed, raised, or superseded by the subsequent report of insolvency,

especially when it appeared that this insolvency might have been caused by the maladministration of the defendant.

But that court decided that the estate of a deceased person may be reported insolvent after the expiration of nine months from the grant of letters of administration; and that, when an estate is so reported, the lien of a judgment previously obtained against the administrator is held in abeyance, and must give way to the general and equal lien of all the creditors which existed at the time of the death, and to which the declaration of insolvency must relate. Also, that the action of the Probate Court on a report of insolvency cannot be collaterally impeached; and if the insolvency has been caused by maladministration, the remedy is by action for a devastavit, or on the administration bond.

In this exposition of the statutes of Mississippi, as given by her courts, we fully concur; and it is conclusive of the question now under


As, therefore, the judgment obtained by the plaintiffs in the court below did not entitle them to a prior lien, or a right of satisfaction in preference to the other creditors of the insolvent estate, they have no right to take in execution the property of the deceased which the Probate Court has ordered to be sold for the purpose of an equal distribution among all the creditors. The jurisdiction of that court has attached to the assets; they are in gremio legis. And if the marshal were permitted to seize them under an execution, it would not only cause manifest injustice to be done to the rights of others, but be the occasion of an unpleasant conflict between courts of separate and independent jurisdiction. But we wish it to be understood that we do not intend to express any opinion as to the right of State legislation to compel foreign creditors, in all cases, to seek their remedy against the estates of decedents in the State courts alone, to the exclusion of the jurisdiction of the courts of the United States. That will

present an entirely different question from the present.

The decree of the court below dismissing the bill must be reversed, and a decree entered in favor of complainant continuing the injunction.


This cause came on to be heard on the tran113*] script of the record *from the District Court of the United States for the Northern District of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby reversed, with | costs; and that this cause be, and the same is hereby remanded to the said District Court, with directions to enter a decree in favor of the complainant, continuing the injunction in this cause, and for such further proceedings, in conformity to the opinion of this court, as to law and justice may appertain.




SAME, Appellants,



SAME, Appellants,



Private land claims in Missouri, acts respecting proceedings to try validity of-appeals from District Court.

In 1824, Congress passed an Act, 4 Stat. at Large, 52, entitled "An Act enabling the claimants and Territory of Arkansas to institute proceedings to lands within the limits of the State of Missouri to try the validity of their claims."

the party against whom the judgment or decree of

The second section provided that, in "all cases, the said District Court may be finally given, shall be entitled to an appeal, within one year from the time of its rendition, to the Supreme Court of the United States ;" and the fifth section enacted that any claim which shall not be brought by petition before the said courts within two years from the passing of the act, or which, after being brought neglect or delay of the claimant, not be prosecuted before the said courts, shall, on account of the to a final decision within three years, shall be forever barred.

In 1844, Congress passed another act, 5 Stat. at Large, 676, entitled "An Act to provide for the adjustment of land claims within the States of Missouri, Arkansas, and Louisiana, and in those parts of the States of Mississippi and Alabama, south of the thirty-first degree of north latitude, and between the Mississippi and Perdido rivers."

It enacted, "that so much of the expired act of 1824 as related to the State of Missouri be, and is hereby revived and re-enacted, and continued in force for the term of five years, and no longer : and the provisions of that part of the aforesaid act hereby revived and re-enacted shall be, and hereby are, extended to the States of Louisiana and Arkansas, and to so much of the States of Mississippi and Alabama as is included in the district of country south of the thirty-first degree of north latitude, and between the Mississippi and Perdido rivers."

The Act of 1824, revived and re-enacted by the passage of the Act of 1844, so far as regards apIt will peals from the District Court to this court. continue in force until all the appeals regularly brought up from the district courts shall be finally disposed of.

Act of 1844, did not expire in five years from the


HE first two of these cases were appeals from the District Court of Mississippi. One of them, viz., The United States v. The Heirs of Boisdoré, was the same case in which a motion to dismiss was made at the preceding term, as reported in 7 Howard, 658.

*The third was an appeal from the [*114 District Court of Louisiana.

A motion was now made to dismiss the whole three, upon a ground which was common to them all, viz., that the Act of 1844, reviving and re-enacting the Act of 1824, continued it in force for the term of five years, and no longer; and that, as the act was passed on the 17th of June, 1844, it expired upon the 17th of June, 1849. By reason of which expiration, it was alleged, this court had no longer any jurisdiction over the case.

NOTE.-Missouri private land claims. See note to 11 L. ed. U. S. 1051.

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By an act of June 17th, 1844 (5 Statutes at Large, 676), entitled "An Act to provide for the adjustment of land claims within the States of Missouri, Arkansas, and Louisiana, and in those parts of the States of Mississippi and Alabama south of the thirty-first degree of north latitude, and between the Mississippi and Perdido rivers," it is enacted, "That so much of the expired act of the 26th of May, 1824, entitled 'An Act to enable claimants to land within the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims,' as related to the State of Missouri, be, and is hereby revived and re-enacted, and continued in force for the term of five years, and no longer; and the provisions of that part of the aforesaid act, hereby revived and re-enacted, shall be, and hereby are extended," to the States of Louisiana, Mississippi, etc., "in the same way, and with the same rights, powers, and jurisdictions, to every extent they can be rendered applicable, as if these States had been enumerated in the original act hereby revived, and the enactments expressly applied to them, as to the State of Missouri; and the District Court and the judges thereof, in cach of these States, shall have and exercise the like jurisdiction over the land claims in their respective States and districts, originating with either the Spanish, French, or British authorities, as by said act was given to the court and the judge thereof in the State of Missouri."

The Act of the 26th of May, 1824, thus revived and re-enacted (4 Statutes at Large, 52), after describing the classes of cases embraced | within its provisions, prescribes, that the claimants shall present a petition to the District Court, setting forth their claims; that proper parties, including the district attorney, shall be made; that the proceedings shall be conducted according to the rules of a court of equity; and that the said court shall have power to hear and determine the questions arising in the cause, and to make a decree. It then, in the latter part of the second section, enacts: "And in all cases, the party against whom the judgment or decree, of the said District Court may be finally given shall be entitled to an appeal, 115*] within one *year from the time of its rendition, to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the parties; and should no appeal be taken, the judgment or decree of the said District Court shall, in like manner, be final and conclusive."

By the fifth section it is enacted "that any claim to lands, tenements, or hereditaments, within the purview of this act, which shall not be brought by petition before the said courts within two years from the passing of this act, or which, after being brought before the said courts, shall, on account of the neglect or delay of the claimant, not be prosecuted to a final decision within three years, shall be forever barred, both at law and in equity; and no other action at common law, or proceeding in equity, shall ever thereafter be sustained, in any court whatever, in relation to said claims." In the three cases above mentioned, petitions had been filed in the respective courts, and the district judge confirmed the claims to the several petitioners. The United States appealed to this court.

The motion to dismiss was sustained by Mr. Volney Howard and Mr. Henderson, and opposed by Mr. Gillet and Mr. Johnson (AttorneyGeneral).

The motion and brief, as filed by Mr. Henderson, were as follows:

The appellees have presented their respective motions to dismiss these cases, in form as follows:

"And now at this term come the appellees, by attorney, and move the court to dismiss this case, because the court has no jurisdiction thereof, in this, to wit: That the court from which this case is brought here by appeal had but a limited and special jurisdiction of the case in virtue of two acts of Congress, the one of date 17th June, 1844, entitled "An Act to provide for the adjustment of land claims within the States of Missouri, Arkansas, Louisiana, and those parts of the States of Mississippi and Alabama south of the 31st degree of north latitude, and between the Mississippi and Perdido rivers," and which said act revived a certain other expired act therein recited of date 26th May, 1824, for five years and no longer, and during the operative existence of which two acts, the decree in this case was pronounced. And because by virtue of which said Act of 1824, so revived as aforesaid, and by no other law or authority whatever, this court was assigned to have a like special jurisdiction of this case by appeal; but which act, so revived as aforesaid, ceased and expired on the 17th of June, *1849, by express legislative legislative [*116 limitation, without any saving clause for the adjudication of cases then pending."

Assuming the facts to be as set forth in this motion, we contend that there is now no law in force giving to this court jurisdiction of these cases, or of supplying any rule by which it can review them; and the same must therefore be dismissed.

It is well settled, that this court has no general jurisdiction in matters of appeal. That unless Congress authorize an appeal by statute, none can be entertained. 11 Pet. 165, 166;

3 How. 104; 6 Pet. 495; 1 Cranch, 212; 3 Cranch, 159; 6 Cranch, 307; 3 Dall. 321, 327; 1 How. 268; 3 How. 317; 7 Wheat. 38; 3 Pet. 193; 7 Pet. 568.

It is equally well settled, that the United States have no greater claim to assert the right of appeal, or any other legal right as a litigant, than a citizen has; and have no right of appeal unless expressly accorded to them by act of Congress. 6 Pet. 494; 11 Pet. 165, 166.

If, therefore, it be shown that the appeal given by the statute of 1824 was special, and had its origin with that statute, and that the statute conferred a special and peculiar jurisdiction, appellate as well as original, and that said statute has expired or is repealed, we suppose the legal conclusion of such showing to be demonstrative in favor of our motion to dismiss, unless some other law be shown to sustain the appeal.

A mere glance at the records and decrees in these cases, show them to have been adjudicated in pursuance of the authority conferred by these two statutes. And the reading of the statute of 1824 will certify the specialty of the jurisdiction it confers in every section.

It is special as to the States to which it ap

plies, being but five in number. Special as to | rule, law, or authority in existence by which it the classes of cases it submits for trial; and can try and adjudge them. In other words, even excepts one case of the classes submitted. the jurisdiction by which it was contemplated It is special in designating the court to have this court should have cognizance of these cognizance of the cases, and directing the mode cases was wholly special, and the law which of procedure. Selecting the district courts of conferred it is extinct, and has ceased to be a the United States, which have no general rule. And this conclusion we think clearly chancery jurisdiction, and directing them to sustained by the following *authori- [*118 adjudicate the cases in accordance with equity ities: Miller's case, 3 Burr. 1456, 1 Hill, 328– practice. 336; 2 Pet. 523, 524; 5 Mart. La. 463; 4 Wend. 211; 6 Wend. 526; 1 Watts, 258; 4 Yeates, 392; 17 La. R. 478; Dwarris on Statutes, 676; 4 Mann. & Ryl. 586-588; 9 Barn. & Cress. 750; 12 Moore, 357-359; 4 Moore & Payne, 341, 351; 4 Bingh. 212.

It is peculiarly special, also, in enlarging the field of equity power in the latitude given for the decision of these cases. Submitting them to be adjudged in "conformity with the principles of justice," and "according to the law of nations; the stipulations of any treaty, and proceedings under the same; the several acts of Congress in relation thereto; the laws and ordinances of the government from which it (the title) is alleged to have been derived; and all other questions properly arising between the claimant and the United States."

117*] *It is strikingly special in permitting the citizen to implead and litigate with the government.

The rules of evidence are special; the common law rules being relaxed in these cases.

The statute submitted, also, legal and complete titles to be tried under equitable rules. The decree to be pronounced was special in its recitals and requirements.

The powers of the court were peculiarly special, also, in being permitted to decree the survey of the claims adjudged, though affecting the public domain.

We consider the court has already construed this statute of 1824 as conferring a special jurisdiction, as well as special remedy. United States v. Curry, 6 How. 113; and see 6 Pet. 493 and 11 Pet. 165, 166.

Congress, too, in extending this act of 1824, by the Act of 24th May, 1828 (4 Stat. at Large, 298), obviously discovers its opinion, that, with the expiration of the law, the jurisdiction also terminated.

And so, too, in repealing the bankrupt laws of 1800 and of 1841. In both instances, Congress inserted a saving clause, to save jurisdiction in cases pending at the time of the repeal; and without which, doubtless, those cases would have fallen with the repeal.

Mr. Gillet said it was not his purpose to controvert the correctness of the positions laid down in the cases cited for the motion. If there was no statute in force conferring jurisdiction upon the Supreme Court, he should not contend that these appeals could be heard. Nor should he insist that the Judiciary Act conferred any such power. It was found in the Act of 1824, or did not exist at all. It has been contended, that this act expired in five years from its ap

And the operation and effect of the decree are also singularly special, when, after adjudging the title of the petitioner in his favor, it deprived him of so much of the claim as the United States had previously disposed of, and turned him over for reclamation upon the public lands; the decree, to this extent, thus oper-proval, and was revived June 17, 1844, for ating as land scrip.

The time allowed for an appeal from decrees pronounced under this statute is special, being limited to one year.

five years only, and is not now in force. He denied the correctness of this assumption, and took issue upon it. The second and fifth sections of the Act of 1824 contain limitations Such are a portion of the peculiar and special upon the claimant, as to the time within which rules under which proceedings in these cases the petition shall be presented, and the cause have been carried on, and the decrees. pro-heard and an appeal taken. The residue of the nounced, pursuant to the Act of 26th May, 1824, act is without limitation. As a whole, it is as and while it was in force. And such only must permanent as any other statute. An examinabe the rules by which this court can review and tion of its provisions, and especially sections 2, revise these cases, if it assumes to review them 3, 5, 6, 7, and 11, will prove this. The fifth at all. It must be certainly requisite, then, if section contains an important limitation, while this court is to review these cases by these the seventh contains an important provision rules (being the rules by which the court be- applicable to all bonds not determined to belong low adjudged them), the rules themselves must to claimants. There is no limitation upon the have vitality, and be in force. Because, from jurisdiction of this court, when a cause is lawno other laws and from no other source of fully brought here. The Act of 1844 revived authority, can these rules be invoked, but from and continued in operation provisions relating the Act of 1824. But this act, by the special to proceedings in the court below only. limitation of the Act of 1844, which revived it, But if we are in error in this view of the statwas prescribed in the precise measure and dura-ute, then these appeals, having removed the tion of its operative existence; and the act causes from the court below, cannot [*119 again became functus on the 17th of June, be sent back to that court. If there is no law empowering this court to hear and determine them, then it has no power to act upon them at all, and it can perform no act which will entitle either party to any advantage which they did not possess, and could not enforce, on the day when the revival Act of 1844 expired. To dismiss the appeal, and thereby, furnish evidence that the causes had not been lawfully


This act, therefore, which conferred specially all the jurisdiction this court could ever entertain of these cases, is now as if it had never been, except as to the rights it conferred, consummated, or established, while in force.

This court, then, can have no right to retain these cases upon its docket, because it has no


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