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(39 Sup.Ct.)

authorized sales of land for less than the | because of rights asserted under the federal assessment in violation of the act of 1874; Constitution, his further appeal to this court was permissible. Vicksburg v. Henson, 231 U. S. 259, 267, 268, 34 Sup. Ct. 95, 58 L. Ed. 209.

that instead of canceling certificates received in payment of assessments and of the purchase price at sales, it reissued the same; and that even where sales had been made for less than the amount of the assessments it allowed redemption from sales in certificates at par and interest. The City of New York is made defendant on the ground that in 1898 Long Island City was merged into it by the Greater New York Act and that the consolidated corporation assumed the obligations and liabilities of the constituent municipalities. Laws N. Y. 1897, c. 378.

[1] Protest was made by plaintiff at time of sales against the course pursued by the treasurer, but he justified the action complained of, relying upon act of 1874 and chapter 501 of the Laws of 1879 and chapter 656 of the Laws of 1886. Writs of mandamus had pre viously been issued compelling him to receive' certificates at par and interest even in payment for the redemption of land sold for nonpayment of assessments. People ex rel. Ryan v. Bleckwenn, 8 N. Y. Supp. 6381; People ex rel. Oakley v. Bleck wenn, 13 N. Y. Supp. 4872; People ex rel. Oakley v. Bleck wenn, 126 N. Y. 310, 27 N. E. 376. But plaintiff contended that, in view of section 23 of title VI of chapter 461 of the Laws of 1871, if the acts of 1879 and 1886 were construed as authorizing the action of which he complains, they impair, in violation of the *federal Constitution, the obligation of contracts previously entered into with certificate holders. The case was fully heard in the District Court on evidence, and several distinct defenses were relied upon. The city insisted, among other things, that the statutory lien did not impose a statutory trust upon it; that the persons who acted were not its agents, but independent officers, agents of the state; that the specific provision of the statute relied upon by plaintiff did not constitute terms of the contract but related merely to the remedy; and that the later legislation introduced at most permissible changes of remedy. The court without passing upon these questions, entered a decree dismissing the bill on the ground that the statute of limitations and laches constituted a complete defense. 235 Fed. 258. This decree was affirmed by the Circuit Court of Appeals on the same grounds. 247 Fed. 758, 159 C. C. A. 616. Benedict is a citizen of Connecticut; but as he invoked the jurisdiction of the Circuit Court not only on the ground of diversity of citizenship, but also

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[2, 3] The whole case is here for review; but we find it unnecessary to decide most of the questions presented, because we are of opinion that the lower courts did not err in holding that the suit was barred by laches. None of the acts relied upon here as constituting breaches of trust occurred later than the years 1892 and 1893. Before the principal action complained of was taken, the city treasurer publicly announced his purpose to pursue the course complained of, which he asserted was in accordance with law. Plaintiff was represented at the sales by an agent who protested there orally and elsewhere in writing against the treasurer's declared purpose and against specific acts now complained of, asserting then "as now that the course pursued was illegal. We have here a definite repudiation of the alleged trust duties more than 17 years before the institution of this suit. And there are no circumstances which excuse the delay. What occurred in the interval, so far as appears, was this:

(a) In June, 1893, Benedict commenced in the Circuit Court of the United States for the Eastern District of New York a bill in equity to restrain the treasurer from receiving certificates from property owners when redeeming their properties from assessment sales, made to the complainant, and from marking upon the books as paid any assessment upon such property when it was sold for less than the amount of the assessment. It seems that hearing on the motion was adjourned to a later date, and that a restraining order issued which the plaintiff alleges was never observed. It is not shown that any other proceeding was ever taken in the suit.

(b) On May 9, 1904 (at whose instance does not clearly appear), the Legislature enacted a statute (Laws N. Y. 1904, c. 686) entitled "An act to authorize the comptroller and corporation counsel of the city of New York on behalf of said city to compromise and settle with property owners interested, certain claims for taxes, assessments and sales for the same, and for or on account of evidences of indebtedness issued on account of local improvements in the territory formerly included within the boundaries of Long Island City."

(c) On February 21, 1905, plaintiff filed with the comptroller of the city of New York an offer to sell to the city by way of compromise certificates held.

counsel, acting on behalf of the holders of (d) On May 26, 1909, plaintiff's present 283 certificates, presented to the comptroller a memorial and statement of facts, in which he requested "that provision should be made

in some way for the payment of the amount due" on the certificates.

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2, 1919.)

No. 279.

1. COURTS 273-FEDERAL COURTS JURISDICTION-DIVERSITY OF CITIZENSHIP-DEFENDANTS RESIDING IN DIFFERENT STATES.

*(e) Under date of March 19, 1910, plaintiff (Argued March 24 and 25, 1919. Decided June presented to the comptroller a similar memorial which he requested should be submitted for determination to the board of estimate and apportionment, in view of the fact that chapter 601 of the Laws of New York of 1907 provided that the comptroller may do so where he believes that, for any reason, a claim against the city is not valid legally, but in equity, justice, and fairness the same should be paid, the city having been benefited by the acts performed and the claim not be ing barred by the statute of limitations. (f) On April 26, 1910, a formal request was made upon the deputy comptroller.

1033), providing that no civil suit shall be Under Judicial Code, § 51 (Comp. St. § brought in any District Court against any person in any other district than that whereof he is an inhabitant, but, where jurisdiction is founded only on the action being between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant, held, in view of sections 50 and 52 (Comp. St. §§ 1032, 1034) and the history of the legislation, in action by resident of one state against residents of two other states in District Court for the state of which all but one of defendants were resident, other defendant, though he was found in such that such court had no jurisdiction over such district.

2. COURTS

276-FEDERAL COURTS-EXEMPTION FROM SUIT-WAIVER.

suit in a federal District Court for another
Exemption of a resident of one state from
state asserted by plea is not waived by his ac-
knowledgment on
the summons of service
thereof.

3. COURTS

276-FEDERAL COURTS-EXEMPTION FROM SUIT-PERSONAL PRIVILEGE. Exemption under Judicial Code, § 51 (Comp. St. § 1033), of a resident of one state from suit in a federal District Court for another state is

personal to him, and may not be availed of by resident codefendants as defeating jurisdiction of them.

4. COURTS 310-FEDERAL COURTS - PABTIES NECESSARY FOR SUIT.

Under the law of New York the alleged cause of action would have been subject, if not to the six-year statute of limitations (New York Code of Civil Procedure, § 382), then to the ten-year statute of limitations (New York Code of Civil Procedure, § 388), governing bills for relief in case of the existence of a trust not cognizable by the courts of common law. Clarke v. Boorman's Executors, 18 Wall. 493, 21 L. Ed. 904. If the act of 1874 created an express trust, the statute of limitations would not begin to run until there had been a repudiation of the trust. New Orleans v. Warner, 175 U. S. 120, 130, 20 Sup. Ct. 44, 44 L. Ed. 96. Here there was an open repudiation of the trust duties which the plaintiff now seeks to enforce. And 17 years were allowed to elapse after that repudiation before this suit was begun and more than ten years before any attempt was made to secure some settlement by negotiation; and there clearly was no waiver of the statute. While it is true that federal courts sitting in equity are not bound by state statutes of 1033), authorizing judgment to be rendered Under Judicial Code, § 50 (Comp. St. limitations (Kirby v. Lake Shore & Mich- against the other defendants where jurisdiction igan Southern Railroad, 120 U. S. 130, 7 Sup. cannot be obtained of one defendant, failure to Ct. 430, 30 L. Ed. 569), they are under ordi- obtain jurisdiction of him is fatal to maintenary circumstances, guided by them in de-nance of the suit only if he is an indispensable termining their action on stale claims (Godden v. Kimmell, 99 U. S. 201, 210, 25 L. Ed. 431; Philippi v. Philippe, 115 U. S. 151, 5 Sup. Ct. 1181, 29 L. Ed. 336; Pearsall v. Smith, 149 U. S. 231, 13 Sup. Ct. 833, 37 L. Ed. 713; Alsop v. Riker, 155 U. S. 448, 15 Sup. Ct. 162, 39 L. Ed. 218). Compare Sullivan v. Portland & Kennebec Railroad Co., 94 U. S. 806, 811, 24 L. Ed. 324. Between 1892 and 1905 plaintiff did nothing to enforce his alleged rights except to commence in 1893 a suit which he did not prosecute. His lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence. The lower courts did not err in sustaining the defense of laches.

Decree affirmed.

party.

5. PARTIES 30-INDISPENSABLE PARTYJOINT CONTRACT.

One of several joint contractors is not an indispensable party defendant to action on the joint contract.

6. APPEAL AND ERROR

877(6)—HARMLESS ERROR-Error as to ONE DEFENDant.

Overruling one defendant's claim of exemption from being sued in that district, and proceeding to judgment against him, not having prejudiced the other defendants, is not ground for reversing judgment against them.

7.

COURTS 356 - FEDERAL Courts — ConFORMITY ACT-APPELLATE PRACTICE.

The conformity Act (Comp. St. § 1537), by its express terms referring only to proceeding in the District Courts, has no application to ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(39 Sup.Ct.)

pellate proceedings either in the Supreme Court or the Circuit Court of Appeals, which are governed entirely by the acts of Congress, the common law, and the ancient English statutes.

8. APPEAL AND ERROR 1170(1)-SUPREME COURT-JUDGMENT ON REVIEW-TECHNICAL

Error.

*Messrs. T. D. Savage and Thomas B Willcox, both of Norfolk, Va., for petitiorers. *Messrs. D. Lawrence Groner, of Norfolk, Va., W. M. Toomer, of Jacksonville, Fla., and Alexander Akerman, of Macon, Ga., for respondent.

Mr. Justice BRANDEIS delivered the opin

In cases coming from federal courts the Su-ion of the Court. preme Court is given by statute (Judicial Code,

§ 240 [Comp. St. § 1217], Rev. St. § 701 [Comp. St. § 1669], and Circuit Court of Appeals Act, §§ 10, 11 [Comp. St. §§ 1670, 1124]) full power to enter such judgment or order as the nature of the appeal or writ of error or certiorari requires; and by Act Feb. 26, 1919, amending Judicial Code, § 269 (Comp. St. § 1246), disregard of technical matters not affecting substantial rights is especially enjoined.

3, 1911, c. 231, 36 Stat. 1101 [Comp. St. § 1033]) declares that (with exceptions not here material)—

Section 51 of the Judicial Code (Act March

"No civil suit shall be brought in any District Court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states,

9. CERTIORARI 64(1)-TO CIRCUIT COURT suit shall be brought only in the district of the OF APPEALS-REVIEW.

The whole case being before the Supreme Court on writ of certiorari to the Circuit Court of Appeals, the contention of error in instructions on measure of damages must be examined; the objection having been properly saved.

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10. CORPORATIONS 30(1)
FORM-ACTION FOR BREACH.
Plaintiff, owning all the stock of the M.
sawmill corporation, having entered into a con-
tract with defendants, owners of timber lands,
whereby they should join in forming a corpo-
ration, to which they would convey the lands,
and to which he would convey the mill proper-
ties, which the contract recited he owned, title
only being in the M. Company, stock in the
new company to be issued to him and them in
certain proportions in exchange for such prop-
erties, all the damages for defendants' breach
of the contract are recoverable by plaintiff, and
this without an accounting and settlement of
the M.'s Company's affairs.

residence of either the plaintiff or the defendant.”

Resting jurisdiction wholly on diversity of citizenship, Gress, a citizen and resident of Florida, brought, in the District Court of the United States for the Eastern District CONTRACT TO of Virginia, this action against P. D. Camp, P. R. Camp, and John M. Camp, alleging them to be citizens of Virginia and residents of that district. One of them, John M., filed a "plea to jurisdiction," asking that the suit be dismissed, because he was not a citizen or resident of the district in which it was brought, but a citizen of North Carolina, resident in the Eastern district thereof. P. D. and P. R. Camp filed a separate "plea to jurisdiction" setting up the same facts, alleging that the cause of action sued on was joint and inseparable, and denying jurisdiction as to themselves also, because there was none as to John M. Camp. The pleas were overruled; the case proceeded to trial; a verdict was rendered against the three defendants; and judgment was entered thereExceptions had been duly taken both

11. LOGS AND LOGGING 3(15)-BREACH OF CONTRACT TO FORM CORPORATION.

Plaintiff having entered into contract with

defendants whereby they should join in forming a corporation, to which he should convey a sawmill and timber lands, in exchange for which five-eighteenths of the corporation's stock should be issued to him and thirteen-eighteenths to them, his measure of damages for their failure to comply was all of the depreciation in value of the mill from being deprived of the timber supply and five-eighteenths of the increase in market value of timber lands.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fourth Circuit.

Action by Morgan V. Gress against P. D. Camp and others. Judgment for plaintiff was affirmed by the Circuit Court of Appeals (244 Fed. 121, 156 C. C. A. 549), and defendants bring certiorari. Modified and affirmed.

on.

by John M. and by P. D. and P. R. Camp to the decision overruling their pleas to the jurisdiction, and by the three defendants to certain rulings at the trial alleged to be erroneous; but *the judgment was affirmed by the Circuit Court of Appeals (244 Fed. 121, 156 C. C. A. 549). A writ of certiorari was granted by this court (245 U. S. 655, 38 Sup. Ct. 14, 62 L. Ed. 533).

[1] First. The several defendants below, although not citizens of the same state, were all citizens of states other than that of the plaintiff. Hence the diversity of citizenship requisite to federal jurisdiction existed. Sweeney v. Carter Oil Co., 199 U. S. 252, 26 Sup. Ct. 55, 50 L. Ed. 178. The objection of John M. Camp is not to the jurisdiction of a federal court, but to the jurisdiction over him of the court of the particular district; that is, the objection is to the venue. He asserts the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*310*309

#318

Strawbridge v. Curtiss had been applied indiscriminately to plaintiffs and defendants; and after the decision in Smith v. Lyon it was generally assumed in the lower courts that the rule there applied to plaintiffs must likewise be applied to defendants.1 Compare Shaw v. Quincy Mining *Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Geneva Furniture Co. v. Karpen, 238 U. S. 254, 259, 35 Sup. Ct. 788, 59 L. Ed. 1295. The same assumption appears to have been made in Interior Construction & Improvement Co. v.

personal privilege not to be sued in a district other than that of his residence, since the action is not brought in the district of the plaintiff's residence. If he were a sole defendant, or if none of the defendants resided in the district where suit was brought, the privilege asserted would be supported by the very language of the statute. Macon Grocery Co. v. Atlantic Coast Line Railroad Co., 215 U. S. 501, 30 Sup. Ct. 184, 54 L. Ed. 300. Section 51 of the Judicial Code does not in terms provide for the case where there are several defendants. Does the limitation | Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L of jurisdiction to the district of the residence "of either the plaintiff or the defendant" mean also of all the plaintiffs or all the defendants, so that, when the several defendants are not all residents of the district in which they are sued, the nonresident may assert the privilege not to be sued there in? The precise question has not been decided by this court; but the construction already given to this section in analogous cases and to analogous provisions in other statutes makes it clear that the privilege asserted should be sustained.

Section 51 of the Judicial Code embodies in substance the Act of March 3, 1887, c. 373, § 1, 24 Stat. 552, as corrected by Act of August 13, 1888, c. 866, § 1, 25 Stat. 433 (Comp. St. § 1033). From the passage of the original Judiciary Act September 24, 1789, c. 20, § 11, 1 Stat. 73, 79 (Comp. St. § 991), until 1887, suit could be brought not only in the district of defendant's resi*dence, but also in any other district in which the defendant was found. The 1887-1888 act accomplished its purpose of restricting the jurisdiction of the federal courts, in part, by limiting the districts in which suit might be brought to that of the defendant's or of the plaintiff's residence. See In re Keasbey & Mattison Co., 160 U. S. 221, 228, 16 Sup. Ct. 273, 40 L. Ed. 402. In Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635, the question was presented whether this limitation prohibited suit in a district in which some, but not all, of the plaintiffs were resident. The court felt itself controlled largely by the construction which had been given in Strawbridge v. Curtiss, 3 Cranch, 267, 2 L. Ed. 435, to a clause of the original Judiciary Act, similar in language and analogous in subject-matter, and had been steadfastly adhered to since. There this court construed the phrase "where the suit is between a citizen of the

state where the suit is brought, and a citizen of another state," as meaning "that where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts [courts of the United States]." Adopting a like construction, this court held in Smith v. Lyon, supra, that suit could not be brought in a district in which some, but not all, of the plaintiffs resided. The rule declared in

Ed. 401, where the question was raised whether the resident defendant could avail himself of the objection that another de fendant, who was a nonresident, was not liable to suit therein. And in Ladew v. Tennessee Copper Co., 218 U. S. 357, 364, 365, 31 Sup. Ct. 81, 54 L. Ed. 1069, a like rule was applied; for it was there held that, although an alien defendant could be sued in any district where found, an American citizen joined with him as codefendant could not, without his consent, be sued in a district other than that of his or the plaintiff's residence.

It is said, however, that section 51, if read in connection with section 50 (Comp. St. § 1032) and in the light of their legislative history, shows that it was the intention of Congress to confer jurisdiction over all the defendants found within the district, if one of them resides therein. Section 50,2 which embodies without substantial change the Act of February 28, 1839, c. 36, § 1, 5 Stat. 321, makes provision for enforcing a cause of action which exists against several persons, although one of them is neither an inhabitant of nor found within the district in which suit is brought and does not voluntarily appear. It does so by permitting the court to entertain jurisdiction without prejudice to the rights of the party not regularly served nor

1 E. g., Turk v. Illinois Cent. R. Co., 218 Fed. 315, 316, 134 C. C. A. 111 (Sixth Circuit); Excelsior Pebble Phosphate Co. v. Brown, 74 Fed. 321, 20 C. C. A. 428 (Fourth Circuit); Revett v. Clise (D. C.) 207 Fed. 673, 676 (Wash.); Schultz v. Highland Gold Mines Co. (C. C.) 158 Fed. 337, 340 (Or.); Tice v. Hurley (C. C.) 145 Fed. 391 (Ky.); Lengel v. American Smelting & Refining Co. (C. C.) 110 Fed.

19, 21 (N. J.); Bensinger Self-Adding Cash Register Co. v. National Cash Register Co. (C. C.) 42 Fed. 81 (Mo.). But see Jennings v. Smith (D. C.) 232 Fed. 921, 925 (Ga.): Rawitzer v. Wyatt (C. C.) 40 Fed. 609 (Cal.).

"When there are several defendants in any suit

at law or in equity, and one or more of them are
in which the suit is brought, and do not volunta-
rily appear, the court may entertain jurisdiction,
and proceed to the trial and adjudication of the
suit between the parties who are properly before
it;
but the judgment or decree rendered therein
shall not include or prejudice other parties not reg-
ularly served with process nor voluntarily appear-
ing to answer; and nonjoinder of parties who are
not inhabitants of nor found within the district, as
aforesaid, shall not constitute matter of abatement
or objection to the sult."

neither inhabitants of nor found within the district

814

(39 Sup.Ct.)

voluntarily appearing. The argument is that, therein. The history of section 52 confirms in order to give *effect to the retention in this conclusion. It is substantially a re-ensection 50 of the words "found within the actment of section 740 of the Revised Statdistrict," we must, although these words utes. After the passage of the act of 1887were omitted from section 51, hold that, 1888 restricting the jurisdiction of the fedwhere there are several defendants, the court eral courts, considerable doubt arose as to has jurisdiction of all, if one or more are whether the provisions of that act now conresidents of the district, and the others are tained in section 51 of the Judicial Code did found there. The argument overlooks the not repeal section 740 of the Revised Statfact that section 50 is applicable not only to utes. Compare Petri v. Creelman Lumber cases in which the venue is dependent upon Co., 199 U. S. 487, 26 Sup. Ct. 133, 50 L. the residence of a defendant in the district Ed. 281.3 Congress re-enacted in the Judiwhere suit is brought, but also to those cases cial Code this provision expressly permitting, in which it is dependent upon the residence in states having more than one district, all of the plaintiff. Ordinarily jurisdiction could defendants resident within the state to be be obtained in the district of the plaintiff's sued in any district thereof in which one of residence only over nonresidents, because all them resides; while it made no similar proof the defendants must be nonresidents in vision for the case where the several defendorder to satisfy the requirement of diversi- ants reside in different states. If Congress, ty of citizenship. And as to these there can in re-enacting the provisions of section 51, be personal jurisdiction only so far as found had intended that it should establish a rule within or voluntarily appearing within the with reference to defendants resident in difdistrict. To such persons the term "inhab- ferent states contrary to the construction itants" in section 50 obviously cannot refer. | placed by the overwhelming weight of auIf the provision therein concerning those not thority upon the identical provision contain"found" had been omitted, a suit would failed in the earlier statute, it would have exin case any one of those who at common pressed that intention in unmistakable lanlaw was a necessary party defendant should not be found therein or voluntarily appear. Shields v. Barrow, 17 How. 130, 15 L. Ed. 158. As the act of 1887-1888 did not restrict jurisdiction based on diversity of citizenship in those cases where the venue is determined by the residence of the plaintiff, it was appropriate to retain in the earlier statute (now section 50) the words "found within the district," although it had ceased to be operative in cases where the venue is determined by the residence of the defendants.

On the other hand, section 52 of the Judicial Code (Comp. St. § 1034) makes it clear that the construction contended for by defendant is unsound. It provides that where a state contains more than one district a suit (not of a local nature) against a single defendant must be brought in the district where he resides, "but if there are two or more defendants, residing in different districts of the state, it may be brought in either dis trict." We thus have an express declaration by Congress that under one particular set of circumstances a codefendant may be sued in a district in which he does not reside. "Expressio unius est exclusio alterius." This section follows directly after that which contains the general prohibition against suing a defendant in a district other than that in which he or the plaintiff resides, and constitutes one of the specified exceptions to the general prohibition. It shows, therefore, that the prohibition of section 51 expresses the deliberate purpose of Congress that a person shall not be compelled to submit to suit in the federal District Court in a state within which neither he nor the plaintiff resides, although a codefendant may reside 39 SUP.CT.-31

guage.

[2] No reason appears, therefore, for re fusing to apply here the rule of Smith v. Lyon, supra. The objection made below that the plea to the jurisdiction is bad because not limited by its terms to the question of jurisdiction over the particular defendant is highly technical, and was hardly insisted upon here; and the contention that his exemption from suit was waived by the acknowledgment on the summons of service is clearly unfounded. John M. Camp properly asserted his privilege by plea to the jurisdiction, and the plea should have been sustained. It follows that the judgment against him is void; that the judgment of the Cirfirms the judgment of the District Court cuit Court of Appeals, in so far as it af against him, should be reversed; and the suit should be dismissed as to him.

[3-5] Second. The plea to the jurisdiction filed by P. D. and P. R. Camp was properly overruled. The objection was based wholly on the fact that John M. Camp was not suable within the district. This is an exemption from suit personal to the nonresident of the district. A resident codefendant cannot avail himself of the objection. If John M. had

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Tice v. Hurley (C. C.) 145 Fed. 391, 392; Chesapeake & O. Coal Agency Co. v. Fire Creek Coal & Coke Co. (C. C.) 119 Fed. 942; Smith v. Atchison, T. & S. F. R. Co. (C. C.) 64 Fed. 1, 2; Jewett v. Bradford Sav. Bank & Trust Co. (C. C.) 45 Fed. 801; Bensinger Self-Adding Cash Register Co. v. National Cash Register Co. (C. C.) 42 Fed. 81, 82.

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