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shall have the right to the immediate possession thereof and may have partition. A husband brought partition, and the land was sold, and certain creditors claimed the interest of the husband under a judgment against him. Held, that the judgment creditors could not as against the wife hold the entire fund realized from the partition proceedings of the husband's real estate, in the conveyance of which she had not joined, and in which proceedings she was not a party.

[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Dower, 88 87, 88, 145-153.]

Appeal from Circuit Court, Vanderburgh County; Louis G. Rasch, Judge.

Action by Lewis C. Staser against Gaar, Scott & Company and others. Anna Staser was made party defendant, and from the judgment she appeals. Case transferred to the Supreme Court.

Spencer & Brill and G. V. Menzies, for appellant. W. W. Ireland and W. M. Reister, for appellees.

sale in the partition proceeding of the husband's real estate, in the conveyance of which the wife has not joined, and to which proceeding she was not a party.

A judicial sale is "a sale made by authority of some competent tribunal, by an 'offcer authorized by law for the purpose. The term includes sales by sheriffs, marshals, masters, commissioners, or by trustees, executors, or administrators, where the latter sell under a decree of a court." Bouvier's dictionary, tit. “Judicial Sales." A sale made under the process of a court by an officer appointed and commissioned to sell, which becomes absolute only upon confirmation by the court, is in every essential respect a judicial sale. 17 Am. & Eng. Ency. Law, 953; Lawson v. Debolt, 78 Ind. 563. It includes a sale in partition. 17 Am. & Eng. Ency. Law, 954, authorities cited under note 4.

The facts exhibited by the record herein entitle the wife to the benefit of section 2669, supra.

But in the case of Haggerty v. Wag. ner, 148 Ind. 625, 628, 48 N. E. 366, 367, 39 L. R. A. 384, it was held by a divided court that: "It is not necessary in a partition suit between co-tenants, where one of the co-tenants has a wife living at the time the partition proceedings are had, to make such wife a party thereto in order to make such proceedings binding on her in case she outlives her husband and becomes his surviving widow." In that case the wife, after the death of her husband, sought to recover from a grantee of the purchaser her interest in the real estate. In this case the question arises between a judgment creditor of the husband and the wife. The propositions laid down in the main opinion in Ilaggerty v. Wagner are inconsistent with the conclusion to which we are irresistibly drawn in the case at bar. Such conclusion accords with the propositions asserted in the forcible dissenting opinion filed therein.

This case is therefore transferred to the Supreme Court, with the recommendation that Haggerty V. Wagner, supra, be overruled.

ROBY, J. Section 2652, Burns' Ann. St. 1901, provides that: "A surviving widow is entitled:

to one-third of all the real estate of which her husband may have been seised in fee simple at any time during the marriage and in the conveyance of which she may not have joined in due form of law.

By section 2669, Burns' Ann. St. 1901, it is provided that: "In all cases of judicial sales of real property, in which any married woman has an inchoate interest by virtue of her marriage, where the inchoate interest is not directed by the judgment to be sold or barred by virtue of such sale, such interest shall become absolute and vest in the wife in the same manner and to the same extent as such inchoate interest of a married woman now becomes absolute upon the death of the husband, whenever by virtue of such sale the legal title of the husband in and to such real property shall become absolute and vested in the purchaser thereof.

When such inchoate right shall become vested, under the provisions of this ac such wife shall have the right to the immediate possession thereof and may have partition.

In the case at bar Lewis C. Sta ser brought an action for partition, setting up his ownership as tenant in common with other parties named of certain real estate described. Said real estate was found to be indivisible. A commissioner to sell the same was appointed, who duly reported such sale and now has the proceeds thereof in his hands for distribution. Subsequent to the sale the wife of said Staser was by order of court made a party defendant and sets up her right as such wife, under section 2669, Burns' Ann. St. 1901. Gaar, Scott & Co. were also made defendants and set up their right to the interest of said husband by virtue of a lien upon said land, under a judgment against said husband. The question for decision is whether the judgment creditor of the husband can, as against the wife, hold the entire fund realized from the

*"

(39 Ind. App. 515) PITTSBURGA, C., C. & ST. L. RY. CO. V.

FERRELL. (No. 5,533.)1 (Appellate Court of Indiana. Oct. 26, 1906.) ) RAILROADS - CROSSING ACCIDENT—WILLFULNESS-EVIDENCE.

Plaintiff was struck and injured at a railway crossing by defendant's passenger train, which approached and passed over the crossing at a speed of from 50 to 60 miles per hour. The highway at the point in question, including the crossing at that season of the year, was used by from 100 to 125 teams daily. As the train approached the whistle was sounded onefourth of a mile north of the crossing and the bell was rung continuously from that time until the train passed over the crossing. The engineer did not see plaintiff at any time before the collision occurred, and did not know of his presence in the vicinity of the track, and the fireman did not discover plaintiff until he was just about to enter on the track, too late

* Rehearing denied, 80 N. E. 425.

to take steps to stop the engine and avert the he lawfully might at said point, the same accident. Plaintiff approached the crossing from being a public crossing as aforesaid, defenda canning factory, driving at a brisk trot, which was continuously maintained until the horses

ant at the same time was willfully and reckslowed down of their own volition as they pro

lessly running said locomotive with said cars ceeded to go on the crossing. Held, that such attached over and along said railroad through facts were insufficient to establish a willful in

said town of Whiteland at an excessive, unjury on the part of the railway company. [Ed. Note.-For cases in point, see vol. 41,

usual, and highly dangerous rate of speed, to Cent. Dig. Railroads, SS 1100-1103.]

wit, a speed of 60 miles per hour; that, when Robinson, C. J., and Roby, J., dissenting.

defendant approached said highway crossing

and was attempting to pass over the same as Appeal from Circuit Court, Johnson Coun

aforesaid, defendant, well knowing the danty; W. J. Buckingham, Judge.

gerous location of the same, and well knowAction by John C. Ferrell, minor, against ing that the same was situated in a populous the Pittsburgh, Cincinnati, Chicago & St.

section of said county and town, and well Louis Railway Company. From a judgment knowing that said crossing was frequented for plaintiff, defendant appeals. Reversed. by large numbers of teams and foot passen

M. Z. Stannard and Branigin & Williams, gers, who must needs cross said defendant's for appellant. J. B. Huntington, Miller & railroad at said crossing, willfully, purpose. Barnett, and Douglas Dobbins, for appellee.

ly, and recklessly, without regard to life or

limb of the people who were crossing at that COMSTOCK, J. Action brought to recover crossing, and without regard to the welfare damages for personal injuries sustained by of this plaintiff, ran its locomotive and train the appellee, caused by coming in collision of cars over and against the wagon that with appellant's train. The complaint was plaintiff was driving and against this plainin two paragraphs. Appellant's demurrer tiff with great force and violence, and by to the first was sustained and overruled to reason thereof said wagon was torn in fragthe second. Appellant answered the second ments, said horses were instantly killed, and paragraph by general denial, and the issue plaintiff was thrown a great distance with was tried on the second paragraph and the immense force, so that he was severely hurt general denial thereto. Cause was submit- and injured thereby, internally and exterted to a jury and a general verdict returned nally, being bruised,” etc. Willfulness implies in appellee's favor for

for $900,

$900, for which design. It involves conduct which is quasi amount judgment was rendered. The appel- criminal. Walker v. Wehking, 29 Ind. App. lant relies for a reversal of the judgment up

62, 63 V. E. 129: Union Traction Co. v. Lowe, on the action of the court in overruling its 31 Ind. App. 336, 67 N. E. 1021; Brooks et demurrer to the second paragraph of com- al., Admr's, v. Pittsburgh, etc., R. Co., 158 plaint and in overruling its motion for a new Ind. 62, 62 N. E. 694; Dull v. Cleveland, etc., trial. Said paragraph was held to be suffi- R. Co., 21 Ind. App. 571, 52 N. E. 1013. cient by the trial court, as charging willful It is said in Kalen v. Terre Haute & Ininjury. Instructions to the jury were given dianapolis R. Co., 18 Ind. Apr. 202, 47 N. E. and refused, and the cause was tried upon 694, 63 Am. St. Rep. 343, that “to be good as the theory that said paragraph charged a a complaint for willful injury it should willful iniury. To quote from appellee's show by some consistent form of averment brief: "There was not the slightest sugges- that the injurious act was purposely done tion in the lower court that there was any with the intent on the part of the doer to element of negligence in this case. It was a inflict willfully and purposely the particular willful injury case, pure and simple.” If injury of which complaint is made. not good upon this theory, the court erred Willfulness is a desire or intention to pro. in overruling appellant's demurrer. Omit- duce a certain result.” In Union Traction ting the formal parts of said second para- Company v. Iowe the court say:

“This pargraph of complaint, it is alleged that the de- agraph of complaint is clearly insufficient. fendant ran a locomotive and a train of It falls far short, under the law as ancars over, along, and upon its said railroad, nounced in the decided cases in this state, of situated in the town of Whiteland, Johnson stating a cause of action for a willful injury. county, Ind., the same being an incorporated It seems to be a settled law of this state that town of said state; that at the time said de- a complaint which seeks redress for a willfendant so ran said locomotive and said cars ful injury, involving, as it does, conduct as aforesaid plaintiff was driving a team of which is quasi criininal, must aver that the horses hitched to a wagon along and upon a injurious act was purposely and intentionstreet of said town, “the same being a public ally committed, with the intent willfully and thoroughfare in said town frequently tray- purposely to inflict the injury complained of." eled during the entire time by large numbers Willfulness and negligence are held inconof vehicles and foot passengers, and being sistent. Purpose or design is foreign to negsituated in a populous part of said county ligence. Parker,

Parker, Adm'r, v. Pennsylvania and town; that at the time plaintiff attempt- Company, 134 Ind. 673, 34 N. E. 304, 23 L. R ed to drive across defendant's said railroad A. 552. Willfulness cannot be inferred from where the said public thoroughfare crosses mere knowledge on the part of the operatives the same; that while attempting so to do, as of the appellant of the presence of the in

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jured party. Before willfulness will be in- done under circumstances such as evinced a ferred such operatives must have knowledge reckless disregard to inflict the injury comalso of the inability of the injured party to plained of, and that the case at bar belongs avoid the injury. Parker, Adm'r, v. Pennsyl- to the second class. The following cases vania Co., supra; Brooks et al., Adm’rs, v. are cited: Louisville, etc., Ry. Co. v. Bryan, Pittsburgh, etc., R. Co., 158 Ind. 62, 62 N. 107 Ind. 51, 53, 7 N. E. 807; Belt R. R. & E. 694; Cleveland, etc., R. Co. v. Miller, 149 Stockyards Co. v. Mann, 107 Ind. 89, 92, 7 Ind. 490, 49 N. E. 445. Where the doer was N. E. 893; Louisville, etc., Ry. Co. V. Ader, without knowledge of the presence and situa- 110 Ind. 376, 380, 11 N. E. 437; Gregory, tion and peril of the injured party, the act Adm'r, v. Cincinnati, etc., R. Co., 112 Ind. done cannot be said to have been willfully in- | 385, 387, 14 N. E. 228; Brannen v. Kokomo, flicted. Brooks et al., Adm’rs, v. Pittsburgh, Greentown & Jerome Gravel R. Co., 115 Ind. etc., Co., supra; Parker, Adm'r, v. Pennsyl. 115, 17 N. E. 202, 7 Am. St. Rep. 411; Citivania Co., supra. A complaint charging will- zens' St. Ry. Co. of Indianapolis v. Willoeby, ful injury must be strictly construed. Union 134 Ind. 563, 33 N. E. 627; Chicago, etc., R. Traction Co. v. Lowe, supra. So that the Co. v. Spilker, 134 Ind. 380, 33 N. E. 280, 34 paragraph of complaint before us, to be suffi- N. E. 218; Korrady, Adm'r, v. L. S. & M. S. cient, should allege that the injurious act Ry. Co., 131 Ind. 261, 29 N. E. 1069; Clevewas purposely done with the intent on the land, etc., Ry. Co. v. Miller, 149 Ind. 490, 499, part of the doer to inflict the injury of which 49 N. E. 445; P., C., C. & St. L. Ry. Co. v. complaint is made. Said paragraph does not Judd, 10 Ind. App. 213, 36 N. E. 775; L. & allege that those operating the train knew N. R. Co. v. Cronbach, 12 Ind. App. 666, 41 of appellee's presence on and near the cross- N. E. 15; L. E. & W. R. Co. v. Brafford, 15 ing. It is not averred that the injurious act Ind. App. 655, 661, 44 N. E. 551; Miller v. was purposely done with the intent on the Miller, 17 Ind. App. 605, 47 N. E. 338; Hanpart of the doer willfully to inflict the in- cock v. L. E., etc., Ry. Co., 21 Ind. App. 10, jury of which complaint is made. In Con- 19, 51 N. E. 369; Brooks, Adm'r, v. Pittsnor v. Citizens' Street Ry. Co., 146 Ind. 435, burgh, etc., R. Co., 158 Ind. 62, 62 N. E. 694. 45 N. E. 663, the court says: "The sub- Counsel for appellee call special attention to stance of the rule as established by the cases Belt R. R. & Stockyards Co. v. Mann, supra; to which we have referred is that to entitle Chicago, etc., R. R. Co. v. Spilker, supra ; one to recover for an injury without show- Cleveland, etc., R. R. Co. v. Miller, supra; ing his own freedom from contributory fault Brooks, Adm'r, v. Pittsburgh, etc., supra. In the injurious act or omission must have been Belt R. R. & Stockyards Co. v. Mann, supra, purposely and intentionally committed, with Mitchell, J., speaking for the court, says: a design to produce injury, or it must have "The use of the phrase, 'willful negligence,' been committed under such circumstances as in the connection which it is frequently emthat its natural and reasonable consequence ployed, is, to say the least, inapt. Whatwould be to produce injury to others; the ever idea the word 'willful' may express when actor having knowledge of the situation of so used, it is beyond question that to entitle those others." The only averment of will- one to recover for an injury to which his fulness exists in the charge of the running own negligence may have contributed the inof the train at a high rate of speed over a jurious act or omission must have been purpublic crossing in a popular section of the posely and intentionally committed, with a town, knowing that said section was populat- design to produce injury, or it must have ed by large numbers of teams and foot pas- been so committed, under such circumstances, sengers, who must needs cross said defend- as that its natural and probable consequence ant's road at said crossing. There is no would be to produce injury to others. There averment that statutory signals were not must have been either an actual or congiven, nor that any ordinance of the town structive intent to commit the injury. The was violated, nor that appellant knew that act must have involved conduct quasi crimappellee was on or near the crossing. As inal in character.

To constitute a against the pleader, in ruling upon the de- willful injury, the act or omission which promurrer, must presume that the railroad at duced it must have been purposed and inthe crossing in question in both directions tentional, or must have been committed under was straight and open and free from obstruc- such circumstances as evinced a reckless distions of any kind for a distance of 80 rods, regard for the safety of others.” In suband that the whistle was sounded and bell stance the language above set out has been rung as required by the statute. These con- followed in every opinion involving the quesditions are inconsistent with a willful intent. tion before us since delivered in this state, Such acts are not even negligence per se at and in some of them the exact language has an ordinary country crossing. L. S. & M. been used. The following expression also S. R. Co. v. Barnes (Ind. Sup.) 76 N. E. 629. occurs in the opinion: “There is no language

Counsel for appellee contend that there are in the paragraph under consideration which two classes of willful injury cases: First, can be said to charge that the appellant's those in which the act that produced the employés had an intent, either actual or injury was intentional. Second, those in constructive, to commit the injuries comwhich the act that produced the injury was plained of. It does not appear that they had

*

in as

knowledge of the plaintiff's presence in time was 20 feet. These improvements were all to have avoided the collision, or that the upon the land lying between the highway and crossing was of such a character as that the railroad track; the canning factory being natural and probable consequence of running about one-quarter of a mile north of the an engine in the manner described would be crossing. These improvements created a parto produce an injury such as that suffered by tial obstruction to the view of the track to the plaintiff.”

one driving from the canning factory to The question before us is one of plead- the crossing. Just south of the crossing was ing, not of evidence. If, upon a sufficient an elevator. When the elevator and canning complaint, we were discussing the sufficiency factory were in operation, as they were on of the evidence, the doctrine of implied in- the date of the accident, both made rumbling tent would be properly considered. The rule noises that could be heard at a distance of requires that facts must be averred and from one-quarter to one-half mile away. Approven in the case. It is averred only by pellant's train, a regular passenger train, aprecital that people were crossing at said proached and passed over the crossing at a crossing. The paragraph in question is de- speed of from 50 to 60 miles per hour. The fective in failing to aver that the servants highway was used by the public, and from of the appellant operating the train knew 100 to 125 teams passed over the crossing of appellee's presence on or near the crossing, daily during the summer season, when the and that the injurious act was prompted with canning factory was in operation. When the intent upon the part of the doer to will- the train was one-quarter of a mile north of fully inflict the injury of which complaint is the crossing, the whistle signal was sounded made. In willful injuries the intention with and the bell was rung continuously from which the act is done constitutes the wrong,

this time until the train passed over the crosswhich is the gist of the charge. In pleading ing. Appellee was familiar with the crossing that intent will not be inferred. An intent and with the fact that fast trains made use to commit a willful injury may be inferred of the track and crossing. Appellee had takfrom facts proven, because intent may be en a load of peas to the canning factory. established by positive or circumstantial evi- In doing so he had passed over the crossing. dence. An intent to kill, as has often been After unloading the peas, appellee drove the said, may be inferred from the discharge of team from the canning factory, southwesta loaded gun upon the public street or into wardly, to the crossing. Bert Voris was rid

, a crowd, but it would be necessary, in an ing on the wagon with him. Appellee drove indictment for homicide under such a state from the canning factory to within five or of facts, to charge that the act was done eight feet of the crossing at a brisk trot. with intent to kill. A quasi criminal act

When the heads of the horses came within consists of an act and intent. The union of from five to eight feet of the railroad track the two is necessary—both must be charged. the horses, of their own volition, slowed down "In pleadings facts must be directly and to a walk and proceeded on to the crossing, positively alleged, while, in regard to evi- where the collision occurred. Appellee did dence, conclusions may be inferred from facts not, nor did the team, stop at any point and circumstances without positive state

between the canning factory and the crossing. ments.” La Porte Carriage Co. v. Sullender On the way from the canning factory to the (Ind. Sup.) 75 N. E. 280, and cases cited. The crossing Bert Voris called appellee's attenonly averment which can be claimed to show tion to the fact that it was about train time, intent is that appellant purposely ran its and appellee stepped to the forward part of locomotive against appellee. The pleader evi- the wagon and looked for the train, tightening dently relied upon the facts averred to raise the lines in his hands as he did so. As apthe presumption of criminal intent. Under pellee and Voris approached the crossing bethe decisions of this state the averment is tween the blacksmith shop and station buildnot sufficient.

ing, Melton Hughes, after hearing the train An examination of the evidence shows that signal, attempted to signal them by waving the charge of willfulness, if properly made, his hand and hollowing, "Hello, boys! yonder is not sustained. The following is a con- is the train !" At this time the team was densed recital of the evidence: Appellant's going in a trot, and appellee and Voris were track through Whiteland ran north and engaged in conversation. They continued to south. The station building was north of converse in this way until the horses' heads the highway and east of the railroad track. were almost to the railroad track. When the East of the station was a closet and coal team went upon the crossing, they were struck shed. East of these was the blacksmith shop. by the train, killing both horses, breaking the East of the blacksmith shop was Dr. Phipp's wagon and harness, and throwing appellee premises, on which were an orchard, dwell- some distance from the wagon and inflicting ing house, and outbuildings. North of Dr. upon him the injuries complained of. By Phipp's premises was the canning factory. stopping north of the blacksmith shop, or The station building was 40 feet long and 16 between the blacksmith shop and the station, feet wide, and it was 20 feet north of the appellee could have seen part of the track center of the railroad track. The open space north of the station. The engineer in charge between the closet and the blacksmith shop of the locomotive did not see appellee or

9

know of his presence in the vicinity of the Judgment reversed, with instructions to crossing at any time before the collision oc- sustain the demurrer to the complaint. curred. The fireman, who was in the cab with the engineer, discovered appellee just as

BLACK and MYERS, JJ., concur in the he was about to enter on the railroad track, result. Concurring opinion by WILEY, J. but too late to take steps to stop the engine ROBINSON, C. J.,

, dissents. Dissenting and avert the accident. Before this the fire- opinion by ROBY, J. man had not seen appellee, and had no knowledge of his presence in the vicinity of the WILEY, J. (concurring). The facts pleadcrossing. To refer more particularly to the ed and those disclosed by the evidence are testimony of the engineer, he testified that he so fully and fairly stated in the prevailing was in his proper place, on the right-hand opinion that it is unnecessary to restate them side (west side) of the engine; that the here as a basis for the expression of the crossing was free and clear of obstructions, individual views which I entertain upon the as far as he could see, off the engine; that vital questions involved in this appeal. he was running the train on schedule time, The appellee bases his right to recover upat 40 miles an hour; that the crossing ap- on the acts of the appellant, as stated in the peared to be clear and he believed it to be complaint, which acts are characterized as clear, and that he had no intention to injure "willful.” In other words, the appellee charplaintiff or any one. The testimony of these ged in his complaint that appellant "willwitnesses furnishes no evidence to sustain the fully, purposely, and recklessly” inflicted incharge of willful injury. If there is any jury upon him, and hence the judgment in evidence tending to support its charge, it his favor rests upon a willful act of appelmust be in the fact that the train ran at a lant, resulting in injury. It is important to the high rate of from 50 to 60 miles an understand what is meant in the use of the hour over the crossing over which from 100 word "willful," or "willfully," as used in to 125 teams passed daily during the summer the complaint. “It is the quality of being season, when the canning factory was in oper- willful; obstinacy; stubbornness; perverseation. This high rate of speed might show ness; voluntariness.” Dull v. Cleveland, etc., heedlessness, but not willfulness.

Ry. Co., 21 Ind. App. 571, 52 N. E. 1013. In In Brooks v. Pittsburgh, etc., Ry. Co., 158 Re Young, L. R. 31 Ch. Div. 168, it was Ind., at page 70, 62 N. E., at page 697, the said: "'Willful' is a word of familiar use court say: "It must be borne in mind that, in every branch of law, and although in

, while the evidence tends to prove that the some branches of the law it may have a speappellee's servants were heedless of the rights cial meaning it generally, as used in courts of persons who might be upon the crossing, of law, implies nothing blamable, but merely yet that there is no evidence that such serv- that the person of whose action or default ants had knowledge that any person was the expression is used is a free agent, and upon or near the crossing.” The evidence in that what has been done arises from the fact shows that after the plaintiff's first spontaneous action of his will. It amounts danger was seen by the fireman there was no to nothing more than this, that he knows opportunity or time to avoid the accident. what he is doing, and intends to do what he In the recent case of the Lake Shore & is doing, and is a free agent.” In Fuller Michigan Southern Ry. Co. v. Barnes (Ind. V. Chicago, etc., Ry. Co., 31 Iowa, 187, it is Sup.) 76 N. E. 629, it is said not to be negli- said: “It is said by defendant's counsel that gence for railroad companies to run their the word 'willfully' implies the idea of maltrains over ordinary public crossings, in the ice of a mild kind-an evil intent without exabsence of a speed ordinance, at any speed cuse. Such may be its meaning in indictthey choose, not inconsistent with the safety ments and criminal statutes, but it is not of the persons and things in their charge. to be so understood here. The word means In this case the evidence shows that the 'obstinately stubbornly; with design; with a train was run in the usual manner, in the set purpose. And this definition must be usual way, on schedule time.

applied to it where it occurs in the statute Presumptions may arise from circumstan- under consideration." In Louisville, etc., Ry. ces, but they are not conclusive as against Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, ap. positive evidence. No presumption of the pellee sued to recover damages for killing a wrongful purpose can arise from the facts team of horses. One paragraph of his comthat lawful signals were given of appellant's plaint was based upon willfulness, and the approaching train; nor can such presumption charging part of that paragraph was as fol. arise from the running of the train in a lows: "And that said collision was caused lawful manner, without knowledge of the by the reckless, negligent, and willful conpersons of any one near the track, because duct of said employés and servants of said knowledge is essential to purpose. We have defendant in the management of said lococonsidered only the question of willfulness, motive, in this, to wit: that said locomotive and, if we concede that the complaint is was being propelled at an exceedingly high sufficient upon that theory, the charge is and dangerous rate of speed, and was being without support in the evidence,

propelled backwards, and that the whistle

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