Sidor som bilder

closure, taking care to employ no unnecessary force; but, for any injury which is the natural and proximate consequence of a wrongful act on his part, outside of these defensive measures, he is liable to the statutory penalty (Code $ 1587) of five times the amount of the injury. The plaintiff's horse having been taught by the defendant while trespassing in his field not inclosed by a lawful fence, tied with a rope to a tree, and here left for twenty-four hours, when he was found dead; the liability of the defendant does not depend on the question of negligence, but on the question whether the injury was the natural and proximate consequence of his unlawful act; though he would not be liable for the death of the animal, if it resulted from other causes. - Wilhite v. Spearman, S. C. Ala.

cannot sustain an equitable action to remove a cloud upon title, nor to establish a legal title or cover possession, unless other circumstances give equitable jurisdiction. Where the invalidity of the disputed title appears upon the face of the convey. ance or in any proof which the claimant is required to produce in order to maintain an action to establish it, no suit whatever can be maintained in equity to set it aside. Moores v. Townshend, N. Y.

Ct. App., June 1, 1886. 3 Cent Rep. 442. 14. EQUITY.-Practice- When Injunction will not

lie Against Unlawful Detainer Suit.-Where a bill is filed for the purpose of correcting the numbers in a deed to certain lands, made by M. to B., and for the purpose of enjoining an unlawful detainer suit in favor of M. and against B. for the lands embraced or intended to be embraced in the deed sought to be reformed, as title is not the subject of inquiry in said suit, the bill sets forth no equitable right to an injunction against the recovery complained of, or against its enforcement. If, instead of unlawful detainer, M. had brought ejectment, or the statutory real action, then a reformation of the deed would bave been necessary to B's defense, for title would have been the issue in the

The bill avers that the suit and recovery were in unlawful detainer, and the injunction prayed for and obtained was against the enforcement of that judgment. In such suit title can not be inquired into. A tenancy, or authorized possession, and its termination or forfeiture, are the conditions of its maintenance. Murphree 0. Bishop, S. C. Alabama, December Term, 1885-86. 15. ESTOPPEL. Judgment Second Appeal

Wrong Decision.—where, in a former action, the appointment of plaintiff as general receiver was alleged in the complaint, and denied in the answer, and the same issue was framed and tried as in this, the legality of the appointment is res adjudicata, and cannot be the subject of review upon this appeal. Even if the decision was wrong, it does not impair the effect of the former judgment as a bar to the right to raise the same question. Nor does it change the effect of the judgment because the amount recovered was not sufficient to entitle the plaintiff to appeal, as a matter of right, from the general term to this court. Griffin v. Long Island etc. Co., N. Y. Ct. of Appl; June 1, 1886, 7 N. East R. 735.

18. FRAUD.-Mortgage of Homestead-Homestead

- Mortgage-Acknowledgment-Wife's Separate Estate-Waiver of Dower.- Evidence and circumstances considered, and held not to sustain a charge of fraud in omitting to except from a mortgage the homestead of plaintiffs. When a married woman executes a mortgage on real estate, including the homestead, the title to which stands in her name, an acknowledgment made by her and her husband to the effect that the same was their act and deed, for the purposes therein mentioned, and that the wife relinquishes all her right to dower and homestead, is sufficient. Kimmell v. Carnthers, Ky. Ct. of App. June 5, 1886, 1 S. W. Rep. 2.


19. HABEAS CORPUS.-Contempt-Fine-Order of

Imprisonment for Non-Payment-Such Order not Revievable by Habeas Corpus.-Where a witness is properly brought before the court, and, for failure to answer question propounded, he is fined for contempt, and an order is entered that he stand committed until the same and all costs are paid, such order is in the nature of a final process or means of enforcing the judgment, and not a judgment in itself. A habeas corpus will not lie in such case, as it does not come within any of the statutory grounds for a habeas corpus for a prisoner under process. 1 Starr & C. St. C. 65, par. 22. A writ of error with an order for a supersedeas is the proper remedy. In Re Smith, S. C. Ill. May 24, 1886, 7 N. East. Rep. 683.

16. EVIDENCE.-Confession-Corpus Delicti-Ad

missibility of Confession-Finding Stolen Property.-In a criminal prosecution, the corpus delicti cannot be shown by the prisoner's confessions, unless they appear to the court to have been absolutely involuntary, and free from compulsion or fear. The discovery of stolen property through information furnished by the accused does not warrant the admission of his confession that it was stolen by him. Yates v. States, S. C. Ark. June 5, 1886, 1 S. W. Rep. 65. 17. FENCES.--Trespass-Common of Pasture.-In

this State, except where the rule is changed by local statutes, uninclosed lands are regarded as com, mon of pasture, over which cattle or stock may be suffered to run at large; and if the owner of the lands desires to protect himself from damage, he must erect and maintain a lawful fence around them. The owner of lands not inclosed by a lawful fence, whose rights are only defensive, may have the trespassing animals estrayed, and may use all proper means to drive them out of his in

20. INSURANCE.- Fire Insurance Inventory.-Where

an application for insurance against loss by fire was obtained by one not an agent of the defendant, but a broker doing the business under an arrangement with defendant's duly authorized agent, by whom it was sent to defendant, and the defendant returned it for additional information as to the ownership and occupation of the property to be insured, and the agent gave the application to the broker with instructions to obtain the answers from the applicant, and the broker took the application away and returned it with the answers written in his own handwriting and not in accordance with the facts, although the broker at the time bad full information as to the facts; Held, That the act of the broker under these circumstances was the act of the agent, and the knowledge of the broker, no matter when obtained, if before the answers were given, was the knowledge of the defendant, and it was estopped from setting up such false answers in defense. It was the duty of the assured to supply the defendant with an honest inventory of the property damaged, and although he could properly employ his wife to make the inventory of household goods destroyed, if he makes

oath to one thus made by his wife containing false statements and fraudulent claims, without knowing of its false claim and without scrutiny, he thereby adopts and makes the fraud his own and cannot recover. Mullen v. Vermont etc. Co., June 26, 1886, 15 Ins. L. Jour. 561.

21. LIMITATIONS.— Statute of Adverse Possesion.

Rule in Shelley's Case.-Uninterrupted possession by defendant and his vendor, for twenty eight years before suit brought, under written claim of title, accompanied by the usual acts of ownership, “perfects a title against ali the world, unless there be a claimant armed with a paramount title, yet so circumstanced that he could not assert his title until the occurrence of an event which has happened within less than ten years before the commencement of the suit.” The “Rule in Shelley's case," as at common law, prevailed, in this State until the 17th January, 1353, when the Code of 1852 became operative; and deeds and wills which took effect before that date, are governed by it. A deed, executed in 1841, by which lands were conveyed to a trustee, "for the purpose of providing a permanent domicile and home for the said Jane C. M," a married woman, "and such family as she may have, for their use and benefit during her natural life,and at her death descend to and be equally divided among and between her heirs," under the operation of the rule in Shelley's case, rested the entire estate in Mrs. M.; and if her children took any present interest, as members of her "family,” their right to sue for it was not postponed until her death. Reversed and remanded. McQueen v. Logan, S. C. Ala.


Deed Absolute in Form Conditional Sale.- Where the controversy is whether a convey. ance, absolute in form, was intended as an unconditional sale or as a mortgage, the evidence must be clear and convincing to overcome the terms of the writing; but, where the controversy is whether it was intended as a conditional, sale, with a res. ervation of the right to re-purchase, or as a mort. gage, a court of equity Jeans to the latter construction. The concurring intention of both parties must be shown, before the transaction can be extablished and treated as a mortgage; and if it ap. pear that the defendant considered and intended it as a conditional sale, though the complainant intended it as a mortgage, this does not make a “doubtful case,” norjrequire the court to adopt the complainant's construction. The fact that the par. ties originated in an application for a loan of money, is regarded as one of the principal indiciu of a mort. gage; but, when it is shown that the application for a loan was repeatedly declined, and, after the negotiations were broken off, the defendant's proposal of a conditional sale was accepted, the weight of that circumstance is destroyed. Great disparity between the price paid and the value of the property, is also one of the indicia of a mortgage; but, when it is shown that the property was not in demand at the time, its value being prospective and speculative, a subsequent advance in its value, arising from unforseen and advantitious circumstances, cannot be considered in this connection. If the bill alleges that the transaction was a mortgage, the complainant can obtain no relief founded on a conditional sale. Douglas v. Moody, S. C.

Ala. 26. NEGLIGENCE.-A child riding upon the platform

of a railroad car without payment of fare is a trespasser; but this fact will not exempt the company from payment of damages if its driver ejects him in a manner which endangers life or limb; as here, by compelling him to jump backward from the platform while the car was in motion. Biddle r. Hestonville etc. Co., S. C. Penn., May 3, 1886. 3 Cent. R. 404.


When-Absconding Debtor.-Whenever a cause of action accrues, the statute of limitations begins to run directly against it, and the continuous operation of the statute cannot be suspended by any subsequent act of the debtor. Where a debtor, against whom a cause of action exists, absconds, but subsequently returns, the entire period of his absence is to be computed as a part of the time prescribed by the statute. Richardson v. Coggs

well, S. C. Ark. June 6, 1886, 1 S. W. Rep. 51. 23. MASTER AND SERVANT-Injuries to Servant by

Negligence - Breaking of Scaffolding FellowServants.-Where an employer furnishes suitable materials, and employs competent carpenters, to construct scaffolding, to be used by them in put. ting the cornice upon a building, and the same scaffold is subsequently used by painters hired to paint the cornice, heid, that the carpenters who constructed the scaffolding and the painters are sellow-servants, and that the employer is not liable for injuries caused to one of the painters by the breaking of the scaffolding. Hoar v. Merritt, S. C.

Mich., July 15, 1886. 29 N. W. R. 15. 24. MORTGAGES-Rights of Mortgagee-- Advances

Crops-Rents and Profits.-A mortgagee of growing crops may advance sufficient to preserve them from waste and destruction, and the advances thus made add to his mortgage debt, and are chargeable against the mortgagor in an equitable accounting. A mortgagee in actual possession must devote the entire rents and profits to the payment of the mortgage, and can divert no part thereof towards the satisfaction of other and due him from the mortgagor, without the express assent of the latter. Caldwell v. Hale, S. C. Ark., June 19, 1886. 1 S. W. R. 62.

27. OFFICERS- Constitutional Limit Successor

Elected but Dying before-Qualifying. Though a public officer, who is empowered to hold office for a certain term and until his successor is elected or appointed and qualifies, will hold over, after the election of a successor who dies before qualification; but if he has held the office for the full term allowed by the constitution which visqualitiies him to hold longer, the office is vacant though his successor has not qualified after election or appointment. Gosman v. State, S. C. Ind. April 16, 1886. 22 Rep. 107.

28. PARTNERSHIP Deed Or Mortgage in Firm

Name-Rights of Partners-Mortgage-Release --Quit-claim Deed. A conveyance or mortgage of real estate, in which a partnership, by its firm name, is named as grantee or mortgagee, operates, in law, only in favor of a partner whose name is in the firm name, and not in favor of a partner whose name is not contained in the firm name. A quitclaim deed by a mortgagee of real estate to one having an estate in the land operates as a release of the mortgage in favor of such person. Gille u.

Hunt, S. C. Minn., July 7, 1886; 29 N. W. Rep. 2. 29.

Surviving Partner-Insolvency-General Assignment-Assignment for the Benefit of Cred

ken to an instruction given to the jury or to the exclusion or admission of evidence, the ruling of the court upon such instructions or testimony cannot be reviewed on appeal. Where there has been a refusal to give certain instructions to the jury, and the testimony upon which they were based is not incorporated in the bill of exceptions, it will be assumed that there was no error in refusing to give them, and they will not be considered on appeal. Where there is one good count in a declaration and a plea thereto and issue joined thereon, and there is no bill of exceptions showing the evidence adduced on the trial, the appellate court will presume that the evidence was sufficient to sustain the verdict rendered in favor of the plaintiff. Myrick v. Merritt, S. C. Fla., June Term, 1886.

31. TAXATION Exemption of Church Property

Title must be in Church Society - Dedication of Property by Religious Services, Immaterial to Question of Exemption. In order to make property exempt from taxation as church property under the provisions of the constitution and revenue act, the title to the property must be in a religious corporation or church society as a body. A church edifice, and the lot upon which it stands, owned by a citizen individually, and regularly used for religious services, is not exempt from taxation. The fact that such property has been dedicated to religious uses, by the holding of religious services of a dedicatory character therein, is immaterial to the legal question concernining its exemption from taxation. People ex rel v. Anderson, S. C. Ill. May 14, 1886. 7 N. East. R. 625.

itors-By Surriving Partner-Retention of Goods by Him.– The surviving partner of an insolvent firm may make a general assignment. A general assignment by a surviving partner is a valid instrument, though he retains a part of the firm property. Emerson v. Senter, S. C. U. S., April 12,

1886; 22 Rep. 129. 30. PLEADING-Contract- Acceptance of Contract. -A demurrer to a plea reaches any substantial defect in the declaration, or the count thereof to which the plea has been tendered; but not a defect of mere form. The appellant, upon whom an order was drawn in favor of the appellee by H. & J., for five hundred and seventy dollars "balance due on the house we are building for you,” accepted it is as follows: “I accept the above when the house is finished according to contract and delivered. To pay said sum by the first of January, 1885, interest to commence when said building is delivered.Held, To be a conditional acceptance, and that no recovery could be had against the acceptor upon the instrument until the house has been finished according to the contract, whatever it might be and delivered. The declaration upon a conditional acceptance must allege a performance of the condition. An allegation of a delivery of a house and that the acceptor has been in possession, is not a sufficient allegation of performance of the conditions that the house has been "finished according to contract and delivered," upon which a draft is payable. The allegation that the plaintiff, the payee, gave the acceptor notice that he held himself ready to complete the house according to contract or to pay her a reasonable sum for his failure if she point out to him the deficiencies or omissions, and that she refused to do so, and that she refused to permit him to enter the house for, the purpose of completing it according to contract, is not a sufficient averment of performance of the conditions named in the acceptance, whether considered alone or in connection with above allegation of delivery to, and possession by the acceptor. If, in any case of a non-performance by a drawer of the conditions named by the acceptor in the acceptance, the payee has a a right of action against the acceptor who refuses to permit him to perform the conditions, which the drawer was under contract to perform, such right of action is not upon the acceptance, but is one of special action on the case for damages occasioned by the acceptor's refusal and prevention of performance by the payee. Where there is both a demurrer and a replication to a plea, it is a matter of discretion with the Circuit Court as to which issue shall be first disposed of. Assuming that such discretion can ever be controlled, it cannot be done when there is no showing of an abuse of the discretion. Where an exceptton has been taken upon the trial to the refusal of the Circuit Judge to give ceriain instructions to the jury, and the instructions so refused have been then and there written out and endorsed as refused, and the exception noted and signed by the judge, and the paper filed, it constitutes of itself a special bill of exceptions as to such instructions, and when it has been incorporated in this shape into the general bill of exceptions, and such general bill has been subsequently struck from the record by an order of the appellate court, because it was not settled in the time allowed, the special bill is not affected by such order and will be considered as if such order had not been made. Where there is no bill of exceptions showing that any exception was ta


[ Correspondents are requested to draw up their answers in the form in which we print them, and not in the form of letters: to the editor. They are also admonished to make their answers as brief as may be.-Ed.)

QUERIES. 18. Has an Indiana Turnpike Company the right to prohibit the passage upon its roads of a steam traction engine used for threshing purposes? The conductor of the engine offering to pay all reasonable toll. 2. If it bas,and no such prohibition is made, and the engine is injured while passing over the road, by reason of a defect in the bridge not known to the conductor of the engine; is the Turnpike Company liable for the damages to the engine?

E. B. S. Cite authorities, if any.

QUERIES ANSWERED. Query No. 11. [23 Cent. L. J. 94.] A. B. & C. sign a petition for dramshop license; § 4 of Dramshops, session Acts, 1883, of Mo. C. afterwards reconsiders his action and in writing, petitions the county court to cause his name to be erased from or held for naught on dramshop petition. His plea being filed before the 4th day of July, and before action had on dramshop petition, should the court grant his prayer? J.

Answer. Yes; party who having signed petition, afterwards signs a remonstrarce, must be regarded not as a petitioner, but a remonstrant. 26 N. W. Red. 25. (Iowa Case.)

W. J. H.


placing the notes to each section at the end of the sec. tion and not at the foot of the page.

Much thought, labor and research have manifestly been devoted to this work, and the modest and unpretentious little book, in which it is all embodied, is well worthy of a favorable reception by the profession.


THE AMERICAN REPORTS, Containing all Decisions of

General Interest Decided in the Courts of Last Re. sort in the Several States, With Notes and References by Irving Browne. Vol. LIII, Containing all Cases of General Authority in the following Reports: 72 Georgia; 111 Illinois; 103 Indiana; 33 Minnesota; 83 Missouri; 18 Nebraska; 40 New Jersey Equity; 100 New York; 92 North Carolina; 93 North Caro. lina; 12 Oregon; 21 South Carolina; 22 South Carolina; 19 Texas Court of Appeals; 61 Texas; 26 West Virginia; 63 Wisconsin. Albany: John D. Parsons, Jr., Publisher. 1886.

The volume before us brings this excellent series of reports nearly down to date, so far at least as concerns the States from which the cases are derived. There are no decisions rendered earlier than in 1883, some in 1884, but the most of them bear date of 1885. The volume is in arrangement, and, indeed, in all respects fully up to the standard of its predecessors. The syllabi of the cases are prepared with the care which their critical nature requires, and the notes which the reporter has appended to many of the cases are learned and judicious, and add much to the value of the book. We cannot do for it less, or more, than to commend it heartily to the favorable regards of the profession.

THE LAW OF NEGLIGENCE, by James H. Deering of

the San Francisco Bar. San Francisco: Sumner, Whitney & Co., 1886.

This is another issue of the small volumes, practitioners or pony series, so much affected on the Pacific coast. It is a small volume, treating on a very large subject, the development of which, within living memory, is one of the marvels of the science of the law. The growth of the “Law of Negligence” reminds one of the classic poet's description of “Rumor” which, from small beginnings, swells until it pervades all space.

It is not because people of these days are more careless than their ancestors, but because they are held to a stricter account, that litigation of this character has increased to its present enormous proportions, that every day new liabilities are declared, new distinctions drawn, and new principles evolved by the ratiocination of the bench.

The author of the work before us has boldly tackled this great subject in this single volume of less than seven hundred pages (24mo.), and we must say with a success that we hardly expected when we first took up the work. There is no knowing, however, how much a man can say within a limited space, if he gives his mind to it, and while saying all he ought to say, says nothing that he ought not to say, and as little as possible of things that he need not say. With a rigid adherence to this rule, and a religious abstinence from padding, the sin that doth so easily beset the authors of legal works, a vast body of law can be gotten into an incredibly small space.

Mr. Deering seems to have appreciated fully all this, and his book is pretty fair evidence of its truth. It is concise, condensed, well arranged, and exhaustive. The work is divided into three parts, of which the first treats of the “General Principles of Negligence; " the second, of “Negligence in Particular Relations;" and the third of “Remedies for Negligence.” There are forty-five chapters and four hundred and twenty-six sections, each with its appropriate heading,descriptive of its subject. The references in the index are by their numbers to the sections. All this is as it should be, but what we particularly like is the arrangement, peculiar we believe to the publishers of this book, of

GETTING ADMITTED.-A young man dropped into the office of a Dakota lawyer and said:

“What is a habeas corpus?” It is a kind of writ for

“That's all I want to know about it. Is a mandamus a writ, too?"


“Use pretty considerable of these writs in the law business I reckon?

“Yes, there are a number of different kinds." “What is the usual rate for making collections in the Territory?" “We usually take about half.”

“All right-thanks. You see I made up my mind this morning to become a lawyer and wanted to get a point or two. I'm going over to get admitted to the bar now before court adjourns-I'll hang out my shingle in the morning."

Tart and TESTY.-From the following item taken from the London Law Times it would appear that English judges have become singularly deficient in the suaviter in modo, which should especially characterize all gentlemen in high places.

The exhibition of temper by Mr. Justice Stephen, at Nottingham Assizes, is one of those incidents which everyone must deplore. Mr. Stevenson, a solicitor, appears to bave had a dispute with the judge's clerk, as to a document which, being held by both, came in two. The conduct of the solicitor does not seem to have been very reprehensible, and, indeed, it went wholly unpunished. But, verbally lashed by the judge, he mildly said that the members of his branch of the profession had a good deal to bear, which is perfectly true. This expression precipitated the judge into a flood of personal abuse absolutely inexcusable, with the result that Mr. Stevenson must receive universal sympathy. Whether it is the distracting anxiety which Mr. Justice Hawkins says disturbs the judges, or the increased wear and tear of modern life, which is to be credited with the aggravated irritability which is to be found on the bench, we know not. But of this we are convinced that, if the judges are to retain the respect of the profession, they must not presume too much upon their position.

PEREMPTORY.—The Times says that on Wednesday Mr. Justice Field, after a jury had stopped a case in which the plaintiff claimed damages for personal injuries, expressing an opinion that the case ought never to have been brought, called the plaintiff's solicitor to the front of the court and, addressing him said: Have the goodness, sir, at once to pay the jury their fees. I make an order to that effect, and if you do not pay these fees to-day, sir, I shall make an order for your attachment. I will not allow the jury to be treated like this; it is bad enough that they have to put up with their present low remuneration.” [The statement is obviously imperfect; there must surely have been some demur on the part of the solicitor to the payment of the fees of the jury.] (Solicitor's Journal London.)

The Central Law Journal.

tion, and the wild struggles of every paper to "scoop" its rivals, that particular circum

spection must be exercised to keep abreast ST. LOUIS, AUGUST 27, 1886.

with the times, and yet on the windy

side of the law. It is suggested by a conCURRENT EVENTS.

temporary, in the interest of the press, that

persons furnishing information upon which COPYRIGHT.–We have not yet been able to

libellous articles are founded, should be see the full text of the International Copy- primarily liable, and, we infer, that the pubright Act of 1886 (49 and 50 Vict. Ch. 33),

lisher should go free if he shall give the name but the Irish Law Times of Aug. 7, informs

of his informant and testify against him. us that the new statute “makes some valuable

That such a rule would operate most injuriimprovements in that branch which is called ously to the public is obvious, for there could international copyright, and which owes its

be no assurance that the informant could reexistence to the very peculiar and anomalous

spond in damages for the mischief he had views taken of copyright by lawyers, both

done. We think the existing law of libel is English and foreign.” That the English gov

in no respect too striugent, and that the pubernment is disposed to do justice to foreign lishers of newspapers should be required, beauthors in this respect, encourages the hope fore they venture to publish matter (not privthat Congress will emulate its good work; ileged,) which is in its nature defamatory, to and that in the good time coming" will be verify their information at their peril, and removed the reproach now resting upon the hold themselves in readiness to answer all American people, that they take the fruits of comers, irrespective of the liability of their the foreign author's labors without paying informant. him anything, and at the same time discriminate against, and discourage native authorship.

DAMAGES CAUSED BY FELONY.-It is not a little remarkable how the spirit of feudality

still pervades the administration of law in CALIFORNIA JUDGES AGAIN. We learn England. In this country it has long been from a late California paper, that the legisla settled, both by judicial decisions and, in ture of that State has taken partial action many States, by statute, that a party injured upon the charges of physical and mental in by a felonious act, may avail himself of either capacity, brought by David S. Terry, against a criminal prosecution to punish the felon, or two of the Judges of the Supreme Court. In an action for damages to obtain a suitable the House of Representatives the following recompense for his loss, or both, and it is imresolution was adopted : “Resolved, that the material which precedes the other. In Engcharges heretofore presented against Hon. R. land the general rule was, that a party canF. Morrison, Chief Justice, and Hon. John not bring a civil action for a felonious act, R. Sharpstein, Associate Justice of the Su until after the (alleged) felon has been prospreme Court of the State, be and they are ecuted, and convicted or acquitted of the hereby dismissed, being wholly unsupported felony. And this because, under the feudal by evidence.”

system, a felony worked a forfeiture of the feudatory's grant, and the forfeiture extended to the whole property of the felon.?

It seems, that in England, the courts are THE LAW OF LIBEL.–At a recent meeting

still struggling with this question. In a late of the Press Association, of Texas, the law

number of the Irish Law Times, is an article of libel was discussed at some length, and

on the subject, in which it is said: several amendments of it were suggested. It would seem, from the extraordinary activity

1 Sedgwick On Damages 362 (471); Boardman v. of the press in these days, the morbid crav Gore, 15 Mass. 331; Ocean etc. Co. v. Flelds, 2 Story C. ing of the public for news of every descrip

C. 59; Plammer v. Webb, 1 Ware D. C. (U. S.) 78.

2 Sedgwick on Damages, supra. Vol. 23.-No 9.

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