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But let the opinion be as extensive as it might, it can avail nothing in this court; it was contrary to plain law and right, and this is the place to correct it.

3d. It is said that an adherence to the decision in the case of Stoddard v. Mills will disturb many titles; that much property is held under these New Madrid locations, made upon Spanish concessions, which have been since confirmed, while they were thus reserved from location.

I know not how the fact is, as few such cases have come under my notice; but if it be so, it is entitled to no weight with this court. Whether there had been much or little property thus illegally taken, it ought all to be restored to its lawful owners. It was taken by those who knew, at the time, that their acts were illegal, and that they were attempting to seize what the law had reserved for others. They played for a stake, putting up a warrant worth but a trifle against a tract of land of great value. They have lost, and should be compelled to stand the hazard of the die.

4th. It is said, also, that the confirmation of these titles by the Act of July 4, 1836, was a mere gift, and ought not to be considered favorably.

I contend, on the contrary, that it was an act 358*] of justice done *in execution of a treaty stipulation. Such is the ground on which it is put by the Act of July 9th, 1832, and by the commissioners who examined these claims and recommended them for confirmation. Those who have become familiar with these concessions, and with the early value of such property, the state of the country, and the policy of Spain as to her colonies, are satisfied that form was necessarily and habitually dispensed with; and that, if the United States had not acquired the sovereignty, the class of titles that were sanctioned by the law of confirmation would have become, or been made, valid by the existing government. It was thought with reason, that, independently of treaty stipulation, the inhabitants ought not to suffer in their property by the transfer of the sovereignty to the United States.

On the other hand, the New Madrid warrants were a mere charity.

The particular objections to be urged in this case, and which did not arise out of the evidence, in the case of Stoddard v. Chambers, I understand, are:

1st. That certain depositions offered by plaintiffs below were improperly admitted.

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The court, on the 4th day of April, 1844, established the following rule, which is still in force:

"Ordered, that all exceptions to depositions, other than exceptions to the competency or relevancy of the evidence therein contained, shall be in writing, and filed, and notice thereof given a reasonable time before trial, and shall be taken up and disposed of before the jury are sworn in the cause, or the trial commenced; and no exceptions to depositions, other than to the competency or relevancy of the evidence therein contained, shall be allowed on the trial of the cause."

Depositions offered by the plaintiffs below, to prove heirship, were objected to for informality in the taking, but admitted by the court

under the above rule. The depositions were filed in court in May Term, 1840. They were not objected to on the former trial of the cause, nor until the 31st day of March, 1846, a few days before the cause was again called for trial, when the objections were noted, and notice given to the plaintiffs' counsel. The court held that this notice was not given a "reasonable time before trial," taking into view all the circumstances of the case.

The correctness of this decision seems to me self-evident. It was not "reasonable" to suffer those depositions to remain four years on file without objection, and then take exception to them for form merely, at such time as would compel a continuance *of the cause, [*359 to the great inconvenience of counsel and with expense to the parties, especially as nothing was to be gained by it except this inconvenience and expense.

2d. That the conveyance by two of the plaintiffs of their interest in the land, after action brought, bars the recovery in ejectment as to all, and that the court erred in not so instructing the jury.

If this were an action of trespass in legal effect, as it is in form, the conveyance by the two plaintiffs would not disturb the case in the slightest degree. The sale of the land is not a release of the action; and if it were, the release must have been specially pleaded, puis darrein continuance, or it could not have been given in evidence.

But this action, wronged and mutilated as it is, is still ejectment, and the court will deal with it according to its substance, without regard to the form which it is constrained to

assume.

In this action the courts have long done on the trial, and on motion, what, in other real actions, used to be done by summons and severance; that is to say, they have freed the case of parties who ceased to have an interest in its prosecution. This was done here by nonsuiting the plaintiffs who had sold their interest, and striking their names out of the declaration, and taking a verdict in behalf of the other plaintiffs for their remaining interest.

This practice is in strict analogy to that in the action of ejectment, where the nominal plaintiff counts on several demises from tenants in common; and the court on the trial, or even on motion in arrest of judgment, allow the demises of some of the lessors, who have shown no title on the trial, to be stricken from the declaration. Van Ness v. Bank of United States, 13 Peters, 17.

The court having directed that the names of two of the plaintiffs be stricken out of the declaration, it is not necessary to erase the record. Lessee of Walden v. Craig's Heirs, 14 Peters, 147. The direction stands for the act.

At common law, the summons and severance was resorted to in all real actions, where one of the parties plaintiff was for any reason unable or unwilling to proceed in the case.

"It lies in waste because the land is to be recovered." 20 Vin. Abr. 51. "It lies in right of ward of land." "In right of ward of body and land." "In detinue of charters, for peradventure he (the plaintiff) is to recover a warrantee by it." "So, generally, in actions real or mixed." 20 Vin. ubi supra. "It lies also

in quare impedit, and a writ of error upon it." | immigration, enabled him to explain that Pipe v. Dominam Reginam, Cro. Eliz. 325. difference. "Cette rive" means this side of the 360*] *In modern practice, the summons and Mississippi. It may be north or south of the severance is seldom used, but in cases where it has heretofore applied, the court proceeded on motion. In the case at bar it would have been very idle to summon and sever, when the parties were all present by their counsel, and ready to sever by nonsuit.

But, be the mode adopted to get clear of the parties who had sold their interest right or wrong, it was for them only, and not for defendants below, to complain of it. The defendants were not injured by any irregularity, if there was any. It would be a reproach upon the law to say that there was no way in which this could be done; and no one, I think, can devise a better than that which was adopted by the court below. Chouteau v. United States, 9 Peters, 144, 153; Hunter v. Hemphill, 6 Mo. 119; United States v. Percheman, 7 Peters, 90,

91.

To the objection, that the location was a departure from the concession, I answer

1st. That it is immaterial if it were so; for, the location having been made, the survey filed with the claim became a part of it. Altogether, it was a claim; and whether good or bad, it was not for a stranger, but for the United States, to determine. This land, then, was claimed; and being so, was reserved from sale by the Act of 1811. Finally, the Board of Commissioners, and Congress acting on their report, determined that the land ought to be held according to the survey.

Missouri, for his majesty had domains on both sides of that river; but "R. S. due Missouri,” (rive sud), defines the side north or south of that river, on which he prays for a concession. But neither "cette rive" nor "rive sud" means short, in its most restricted sense-the water's edge, or the river bank. Its whole sense, text, and context show, that it was to this side of the Mississippi which he had come, not confining himself to the water's edge; and it was on the south side of the Missouri, in an equally large sense, as contradistinguished from the north, that he asked permission to locate the warrant which he prays for.

Indeed, the very fact that initials are used (M. R. S.), shows that the expression occurred frequently, and De Mun, a contemporary, gives its conventional meaning.

Mr. Justice McLean delivered the opinion of the court:

The plaintiffs brought an action of ejectment in the Circuit Court, to recover three hundred and fifty arpents of land in the neighborhood of St. Louis, which they claim under a concession made by the Spanish government, in 1800, to Mordecai Bell. Bell conveyed his right to James Mackay on the 20th of May, 1804, and on the 20th of September, 1805, Mackay conveyed the same to Amos Stoddard, the ancestor of the plaintiffs. A plat and certificate of the survey were certified and recorded by Antoine Soulard, as Surveyor-General, the 20th of Janu

2d. But the location was in pursuance of the concession. The translation of De Mun conveys the true meaning of the petition; that of Ren-ary, 1806. ard does not, though it may translate each French word literally into an equivalent English word. Their disagreement is in the translation and explanation of the clause in which Bell represents, "que avec l'agrement de votre predecesseur il se transporter sur cette rive, où il a choisi une morceau de terre,” etc.

On the 29th of June, 1808, the above papers. were filed with the recorder of land titles for the district of St. Louis. The claim was duly presented to the board of Commissioners, under the acts of Congress, and rejected on the 10th of October, 1811; but afterwards, on the 8th of June, 1835, a new board decided that three hunDe Mun, a contemporary, resident at the time dred and fifty arpents of land "ought to be conin Louisiana, translates and explains the pass-firmed to the said Mordecai Bell, or his legal age thus: "That, with the consent of your predecessor, he came over to this side (of the Mississippi), where he selected a piece of land,"

etc.

Renard translates it, "That he, with the consent of your predecessor, has come over to this shore, where he has selected a tract of land," etc.; and by the context, as expounded by counsel, makes it the "shore" of the Missouri, and not of the Mississippi, to which he has come with this assent.

representatives, according to the survey on rec-
ord." On the 4th of July, 1836, an Act of Con-
gress was passed, confirming the decision of the
commissioners. The land was surveyed as con-
firmed.
firmed. The *defendant admitted that [*362
he was in possession of forty acres of the land
claimed at the commencement of the suit.

and a patent to Peltier was issued on the 16th of July, 1832. Possession has been held of the forty acres claimed by the defendant and by those under whom he claims, since 1819. This title was conveyed to the defendant.

The title of the defendant was founded on an entry made by Peltier of one hundred and sixty acres of land, by virtue of a New Madrid certificate, on the 24th of October, 1816. A That it was the Mississippi, and not the Mis-survey of the entry was made in March, 1818, souri, which he crossed with the assent of the Lieutenant-Governor, is certain. The Mississippi bounded the Spanish territory on the east, but the Missouri was entirely within it; he might cross the Missouri at pleasure, without 361*] such assent-not the Mississippi. *Again, The township in which this land is situated why say, "il se transporter sur cette rive où il was surveyed by the United States in 1817, a choisi," etc., "rive sud du Misouri?” Why 1818, 1819, and was examined in 1822. In 1823, "cette rive" and "rive sud," with the addition the proclamation of the President, published at of Missouri in the same sentence, if both meant | St. Louis, directed the lands in the above townthe same thing, or if Missouri were understood ship to be offered at public sale.

in the first branch of the sentence? But it is This title, with but little variation of facts, very clear from the text itself that they meant was asserted by the plaintiffs, and duly considdifferent things. De Mun's knowledge of the 'ered by this court, in the case of Stoddard's boundary of Louisiana, and the laws touching Heirs v. Chambers, 2 How. 284. And the court

held the title to be valid against that which is now set up by the defendant. In the case of Barry v. Gamble, 3 How. 53, that decision was sanctioned. But the counsel for the defendant, having brought the same title before us in this case, have requested a re-examination of the points ruled in the case of Chambers. We will briefly refer to the points now made, and to the new facts proved, on which this application is founded.

The court instructed the jury, "that the land included in the survey given in evidence, made for Amos Stoddard on the 21st of January, 1806, by James Mackay, No. 42, was reserved from location and sale at the time Peltier's location was made, and also at the time his patent issued; and, therefore, both the location and patent are invalid, as against the title of Amos Stoddard, or those claiming through him, to the extent that the two claims cover the same land. And that the land included in Mackay's survey aforesaid is the land confirmed to Amos Stoddard, or to his heirs, by the Act of Congress of July 4th, 1836," etc.

It is objected, that the concession granted to Mordecai Bell should have been located at St. Andre, and not in the vicinity of St. Louis. In his petition to the Lieutenant-Governor of Upper Louisiana, he states, "with the consent of your predecessor, he came over to this side [of the Mississippi], where he has selected a piece of land in his majesty's domain, on the south side of the Missouri. This being considered, he supplicates you to have the goodness to grant him, at the same place, for the support of his family, three hundred and fifty arpents of 363*] *land in superficie.” This bears date 21st January, 1800; and on the 29th of the same month the Lieutenant-Governor responds: "In consequence of the information of the commandant of St. Andre, Don Santiago Mackay, I do grant to the petitioner the tract of land of three hundred and fifty arpents in superficie," etc., "in the place indicated."

tended far north of the Missouri. That to cross the Missouri River, the "leave of his predecessor" could not have been asked, as it was unnecessary.

Whatever doubts this evidence may have created, as to the location of Bell's concession, had it been laid before the commissioners who acted upon the claim, it is now too late to affect the title under it. In regard to the statement of Bell, his conveyance of the land in controversy to Mackay shows, at least, the inaccuracy of his memory. But the survey of the concession in 1806, as now claimed, which survey was recorded and expressly confirmed by the commissioners on the 8th of June, 1835, is a sufficient answer to the above objection. The survey was a private one, and consequently was of no authority except to designate the locality and extent of the claim, until sanctioned by the commissioners. By the Act of the 21st April, 1806, they were authorized to direct such surveys as they may think necessary for the purpose of deciding on claims presented for their decision; and under this power they had a right to adopt private surveys of [*364 claims, if accurately executed. This was in pursuance of the instructions of the Secretary of the Treasury.

The great question in the case is, whether the land in controversy was subject to be appropriated by a New Madrid warrant on the 20th of October, 1826, when Peltier made his location.

Under various acts of Congress up to the 26th of May, 1829, Spanish or French titles which had been duly filed by the recorder of land titles were reserved from sale. Those acts are referred to in the case of Stoddard v. Chambers. At that period, all claims which had not received the sanction of the government were barred. On the 9th of July, 1832, an act was passed "for the final adjustment of land titles in Missouri," which provided that the recorder of land titles, with two commissioners to be St. Andre, the place of Bell's residence, is appointed, should examine all the unconfirmed situated on the south side of the Missouri claims to land in Missouri, which had heretoRiver, about thirty miles from St. Louis. Pas- fore been filed in the office of the said recorder, cal L. Cerré, a witness, states that Bell resided according to law, founded upon any French in the neighborhood of St. Andre several years, or Spanish grant, etc., issued prior to the 10th and was engaged in hunting, drinking, and of March, 1804." And they were required to playing cards, and led a sort of vagabond life; class the claims so as to "state in the first class that his petition, except the mark of the signa- | what claims, in their opinion, should in fact ture of Bell, was in the handwriting of Mackay. have been confirmed, according to the laws, And Bell, being sworn as a witness, says he usages, and customs of the Spanish governnever applied for a concession, nor was there,ment, and the practice of the Spanish authorto his knowledge, any grant made to him. ities under them; and second, what claims, in That Mackay told him he had a head right which he, Mackay, wished to obtain, and which the witness exchanged with him for a tract of land near St. Andre.

Instead of the word "(Mississippi)," included in brackets in the petition of Bell, it seems the letters M. R. S. were used, which one of the witnesses considers "as put for Majeste Rive Sud;" and Milburn, a surveyor, says that he should have surveyed the concession on the south bank of the Missouri River, if not otherwise directed. In opposition to this view, the words of the petitioner are relied on, "that with the consent of your predecessor he came over to this side of the M. R. S.," which could only have meant the Mississippi River, that river being the eastern limit of Louisiana, which ex

their opinion, are destitute of merit, law, or equity." And after the report, the lands in the first class shall continue to be reserved from sale as heretofore, until the decision of Congress shall be made against them; but the second class was declared to be subject to sale as other public lands.

This act reserved from sale, necessarily, all claims which had been duly filed, until the final report of the commissioners; and those which were embraced in the first class, until Congress should reject them. In the case of Stoddard v. Chambers, the court say, in reference to Peltier's location: "It was made on land not liable to be thus appropriated, but which was expressly reserved; and this was the case when the patent was issued. Had the en

try been made, or the patent been issued, after | of the United States" must be "in conformity the 26th of May, 1829, when the reservation with it." But this, it is insisted, is not the ceased, and before it was revived by the Act true construction of the proviso. That, "under of 1832, the title of the defendant could not be the law" does not mean "in pursuance of it," contested. But at no other interval of time, or "in conformity with it," but an act assumed from the location of Bell, until its confirmation to be done under it. in 1836, was the land claimed by him liable to be appropriated in satisfaction of a New Madrid warrant."

The defendants' counsel suppose that if the location of the New Madrid claim was void, 365*] the patent, though issued within *the time above stated, could have conveyed no title. The New Madrid location was void because it interfered with the Spanish title. When that title was barred by the lapse of time, the government, by issuing of a patent, would have sanctioned the New Madrid claim, and no one could have contested it, as between the government and the claimant no controversy could exist. By the patent, he only acquired what his certificate entitled him to. And the right, thus made complete, could not have been affected by any subsequent act of Congress. The government might have withheld the patent, on the ground that the New Madrid certificate had been improperly located; but that not being done, the patent gave an indisputable title.

It is insisted that the New Madrid location, if made on lands reserved from sale by reason of the Spanish claim, became valid, so soon as the bar was complete against that claim. But this consequence would not seem to follow. If, during the bar, no act was done by the government to confirm the New Madrid claim, nor by the claimant to perfect his title, a removal of the bar would not prejudice any newly acquired right. And this only could prevent the renewal of the reservation by Congress. By such a renewal, a preference was given to the Spanish claim, which was an exercise of legislative discretion. Congress might have excepted from this reservation lands covered by New Madrid locations; but this not having been

done, the Spanish claim was revived, and placed on the same footing as before the bar.

It is insisted, that, as Bell's concession was surveyed without authority, it was no notice to Peltier, though recorded. The Act of 1806, as before remarked, authorized the commissioners to direct such surveys as they may think necessary to be executed, for the purpose of deciding on claims presented for their decision; but where a private survey had been made, they had the power to adopt it, as was done in this case. And such survey, being placed upon record by the recorder, seems to have been a reasonable notice, within the acts of Congress. But it is contended that the proviso in the Act of 1836, which confirmed the Spanish and French claims reported by the commissioners, embraces Peltier's New Madrid location. The words of the proviso are, "that if it should be found that any tract confirmed, or any part thereof, had been previously located by any other person or persons, under any law of the United States, or had been surveyed or sold by the United States, that act should confer no title on such lands, in opposition to the rights acquired by such location or purchase." 366*1 *In the case of Stoddard v. Chambers, this court held, that "a location under the law

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The word "under" has a great variety of meanings. But the sense in which it was used We in the proviso is, "subject to the law." are under the laws of the United States-that is, we are subject to those laws. We live under a certain jurisdiction-that is, we are subject to it. The proviso declares, that the act shall not confer a title, "in opposition to the rights acquired under the laws of the United States." This would seem to be conclusive, as no right can be acquired under a law which is not in pursuance of it. If the New Madrid location was made in violation of the law, it is not perceived how any right could be acquired under it.

The judgment of the Circuit Court is affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Missouri, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

EDMUND B. CALDWELL, surviving partner of James Lynd, Jr., & Company, Plaintiff in Error,

V.

THE UNITED STATES.

Collection of duties-forfeiture-invoice for less than value-election by U. S. to take goods and not the value-instructions calculated to mislead jury erroneous.

In this case, the court below instructed the jury, that, if the goods were fraudulently entered, it was no matter in whose possession they were then election between the penalties, and that the forseized, or whether the United States had made an feiture took place when the fraud, if any, was committed, and the seller of the goods could convey no title to the purchaser.

This instruction was right in respect to the sixtyeighth section of the Act of 199 (1 Stat. at Large, 677), as the penalty is the forfeiture of the goods without an alternative of their value, but section of the same act as the forfeiture under it wrong as the instruction applies to the sixty-sixth is either the goods or their value.

time the offense is committed. The title of the

Under the sixty-eighth section, the forfeiture is the statutory transfer of right to the goods at the United States to the goods forfeited is not consummated until after judicial condemnation, but the fense was committed, so as to avoid all intermediright to them relates backwards to the time the ofate sales of them between the commission of the offense and condemnation.

But under the sixty-sixth section of the act, in which the forfeiture is the goods or their value, the United States have no title in the goods, until a election has been *made either to recover [*367 section, any rights in the goods acquired bona fide the goods or their value. Therefore, under that by third persons in the meantime are protected.

The claimants prayed the court to instruct the jury, that the United States were not entitled to recover under the first and second counts of the in formation founded on the fifteenth section, unless the goods were unladen and delivered without permits. The jury was told, in reply, "If the permits were obtained by fraud and improper means, they were of no effect, and a mere nullity. The United States are entitled to recover, if the goods were imported with the view to defraud the revenues.' Whether or not the permits were obtained by fraud or improper means was a point in the cause for the jury to decide, and what the court said upon the prayer, was virtually saying to the jury, that a verdict might be returned upon the first and second counts against the claimants, and that they were liable to the penalties of the act for unlading goods without a permit, without saying if they thought that there was evidence enough to prove the fact against them.

THIS HIS case was brought up by writ of error from the Circuit Court of the of the United States for the Eastern District of Pennsylvania. The case was this:

the collector of New York; that on each of the entries an invoice of the goods was produced and left with the collector; that all and each of the said invoices were made up with intent, by a false valuation, to evade and defraud the revenue of the United States. Act of 1830, sec. 4, 4 Stat. at Large, 410.

7. That all and each of the several packages contained in each and every of the entries, and each and every of the invoices so produced, were made up with intent, by a false valuation, to evade and defraud the revenue. Act of 1830, sec. 4, 4 Stat. at Large, 410.

8. Charges that the invoices were made up by a false extension, to evade and defraud the revenue of the United States. Act of 1830, 4 Stat. at Large, 410.

9. That the goods, etc., being composed wholly or in part of wool or cotton, were entered, at the times of their importation, at the In August, 1839, the attorney of the United office of the Collector of New York; that inStates filed an information in the District Court | voices were produced and left with the colof the United States for the Eastern District lector; that all and each of the packages in of Pennsylvania, against thirty-five remnants each and every of the invoices, and each and of pieces of cloths and cassimere, that had every of the entries, were made up with intent been seized at the store of James Lynd, Jr., & to evade and defraud the revenue of the United Co. States. Act of 1832, 4 Stat. at Large, 593.

The information contained thirteen counts.

1. Charged, That the goods were brought from a foreign port into some port or place in the United States, to the attorney of the United States yet unknown, and were unladen and delivered from the vessel in which they had been brought, without any permit or special license from the collector or naval officer, or any other competent officer of the customs. Act of 1799, sec. 50, 1 Stat. at Large, 665.

2. Charged, That the goods were brought into the port of New York, and there unladen and delivered without a permit. Act of 1799, sec. 50, Ibid.

3. That the said goods were found concealed in a certain store in the occupation of William Blackburne & Co., at the port of Philadelphia, the duties on said goods not having been paid or secured to be paid. Act of 1799, sec. 68, 1 Stat. at Large, 677.

4. That the said goods were, on their importation, entered at the office of the collector of New York; and that on each and every of the entries, an invoice of the goods included in the entry was produced and left with the collector. That the said goods were not invoiced according to the actual cost thereof at the place of exportation, but were invoiced at a less sum than the actual cost, with design to evade the duties thereupon, or some part thereof. Act of 1799, sec. 66, 1 Stat. at Large, 677.

368*] *5. That entries of the said goods, at the time of their importation, were made at the office of the collector of New York; and that on each of the entries an invoice of the goods, etc., was produced and left with the said collector. That all and each of the said invoices so produced, and all and each of the several packages, in each and every of the said invoices in which the said goods were imported, were made up with intent, by a false valuation, to evade and defraud the revenue of the United States. Act of 1830, 4 Stat. at Large,

410.

6. That entries of the said goods, at the time of their importation, were made at the office of

10. As amended, the same with the 4th. 11. As amended, the same with the 6th. 12. As amended, the same with the 7th. 13. As amended, the same with the 9th. To this information the claimants put in three pleas:

1st. Traversing the several causes of forfeiture alleged.

2d. The second plea, which was to all the counts save the two first, alleged that claimants, prior to goods being seized, had bona fide purchased the goods for full value, without any notice or knowledge of their being liable to seizure or forfeiture, under or by an act of Congress, entitled "An Act to regulate the collection of duties on imports and tonnage," from persons having the ostensible ownership of them, and that at the *time [*369 of seizure the goods were in no way whatever concealed, within the meaning of any act of Congress.

3d. The third plea alleged that the goods, prior to their seizure, had been duly entered, passed through the custom-house, etc., the duties imposed paid, and the goods thereupon delivered to the importers; that afterwards the several packages, of which these goods formed part, were broken up and divided; that subsequently these goods were at sundry times purchased bona fide, and for full value, from persons having the ostensible ownership of same, and without notice knowledge that they were liable to seizure or forfeiture under any act of Congress for any cause; that no part of the goods had been imported or entered by the claimants; that at the time of seizure they were not in original packages, nor concealed, but openly exposed for sale on the shelves of claimants' store.

or

To the first of these, the United States joined issue.

To the second and third demurred generally, and claimants joined in demurrer.

These two pleas denying every cause of forfeiture except the single one of the goods having been falsely invoiced, it is believed that

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