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Moore's P. C. 288. (1858.) To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Wharton's Confl., supra, and the authorities there cited. These principles are axiomatic in the law upon the subject. When the claimant left Louisville it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is not to be presumed. The presumption is the other way. To be established it must be proved. 12 Moore's P. C., supra. Among the circumstances usually relied upon to establish the animus manendi are: Declarations of the party; the exercise of political rights; the payment of personal taxes; a house of residence, and a place of business. Phillimore, 100; Wharton, § 62, and post. All these indicia are wanting in the case of the claimant.

"The rules of law applied to the affirmative facts, without the aid of the negative considerations to which we have adverted, are conclusive against him. His purchase of the cotton involved the same legal consequences as if it had been made by an agent whom he sent to make it. Obviously, important further facts bearing on the question might easily have been put in evidence by either party. We regret that it was not done. As the case is presented, our conclusion is necessarily adverse to the appellant."


Reports of Cases Argued and Determined in the Supreme Court of Ohio. By E. L. De Witt. New series, Vol. XXIV. Cincinnati: Robert Clarke & Co., 1875.

THE present volume of Ohio Reports contains a large number of cases of general interest, among which we notice the following:

In Breslin v. Brown, p. 565, it appeared that the contract for making a public improvement being about to be let to the lowest and best bidder, A, who had filed his bond, and B, who was about to file his, entered into an agreement to become partners in the work in

the event that the contract be awarded to either of them. B filed his bid, and it proved to be the lowest. The bid of each was based on his own judgment and filed at his own discretion. It was held that this agreement was not void as being contrary to public policy. It could not be regarded as an agreement for the purpose of preventing competition; and no actual fraud was intended. The case of Atcheson v. Mallon, 43 N. Y. 147, is disapproved, McIlvaine, J., who delivered the opinion, saying: "Much as we esteem the decisions of that court" (New York Court of Appeals), "we cannot follow it to the full extent to which it has applied this rule of public policy." The learned judge cites in support of his position, Phippen v. Stickney, 3 Metc. 388; Smith v. Greenlee, 2 Dev. 729; McMinn v. Phipps, 3 Sneed, 196; Small v. Jones, 6 Watts & Serg. 128; James v. Fulcrod, 5 Tex. 512.

In Marietta & Cin, R. R. Co. v. Stephenson & Brown, p. 48, it is held that the rule of the English common law requiring owners of domestic animals to restrain them from running at large has never prevailed in Ohio, except such animals are habitually "breachy" or un


Neither the common law or the statutes of Ohio impose upon the owner any thing more than the duty to use reasonable care and precaution in restraining his animals upon his own premises. There are five important cases relating to negligence in connection with railroads. The case of Harrison v. Hoyle, p. 254, is a case in ecclesiastical law, holding that the civil courts, in determining the question of the legitimate succession of an unincorporated religious society, where a division has occurred, will adopt its rules and enforce its polity. If such society be composed of separate bodies the rules of the society for the management of its internal affairs constitute the law by which they should be governed.

The volume is well reported, and the value of the decisions is such as to commend them to the respect of the courts and the profession throughout the country.

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Motion denied without costs - Post v. Doremus.Re-argument ordered on the ground that the case being the last called before the adjournment of the Court for the term, the parties were, for want of time, deprived of the opportunity for a full oral argument.— Stillwell v. Carpenter.-- Judgment reversed and new trial granted, costs to abide event-Magnin v. Dinsmore; Rohrback v. Germania Fire Ins. Co.; Kirkland v. Dinsmore; Hobart v. Hobart; Payne v. Burnham; Knapp v. Roche.- - Judgments affirmed with costsRohrback v. Ætna Insurance Company, Hammett v. Barnard, Starbird v. Barrons, Bradley v. New York Central Railroad Company, Ludlow v. Dole, Hill v. Burke, Croninger v. Crockir, Maximilian v. The Mayor, Hayner v. The American Popular Life Insurance Company, Shea v. The Sixth Avenue Railroad Company, Conklin v. Bauer, Smith v. Glen's Falls Insurance Company. - Order granting new trial affirmed and judgment for defendant on stipulation with costs-Van Rensselaer v. The Albany and West Stockbridge Railroad Company.— Order reversed and new trial granted, costs to abide the event - Peo

ple ex rel. Frost v. Wilson.—Appeal dismissed without costs to either party-Hewlett v. Wood. - Order of General Term reversed and judgment of Special Term affirmed with costs-Van Brokkelen v. Taylor. Order affirmed with costs In re Williamson, Rooney v. Crombie, In re Kelly v. Morange, O'Mahoney v. Belmont, Same v. Same. - Judgment affirmed-Woodford v. The People.- Appeal dismissed with costs-Llamosas v. Llamosas.—-Judgment affirmed and new trial granted, costs to abide event unless plaintiff stipulate to reduce the recovery and judgment by deducting therefrom the three items, with interest as included in the report of the referee, amounting to the sum of $3,125.82, and if they so stipulate the judgment as so modified affirmed without costs to either parties in this court-The Board of Supervisors of Monroe county v. Miller.

A contemporary complains that the department of justice at Washington does not even send to the legal periodicals the official list of the officers of the courts and officers of the department of justice, or any other of the publications that emanate from that department.



Journal du Droit International Privé, for March and April, contains valuable articles on the Immunity of Diplomatic Agents and Maritime Hypothecation and its Practical Application. It also contains the usual number of interesting decisions in Private International law, collated from the tribunals in different countries, and a brief account of the principal international events.- Mr. Francis Hilliard, in an article in the first number of the new series of the Southern Law Review, in speaking of the connection or supposed antagonism between law and equity says, "It may perhaps be safe to say, that the two may be regarded as emblematic of that duality which is so generally impressed upon nature and life, and may usefully co-exist, as branches of common jurisprudence; the former, save in exceptional cases, not requiring the mitigating influence of the latter; the latter safely regulated and balanced by its own established rules, without any steadying help from the former, and the two together, with such cautious changes as the exigencies of society may require, constituting as complete a tribunal for the adjustment of controversies between man and man, as human imperfection wiil admit.". Chief Justice Sir Edward Creasey, of Ceylon, has in the press, to be published by Van Voorst, a new book entitled "First Platform of International Law."

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A large and interesting work by Mr. Aldridge is now on free view at the Grand Cafè de Paris, near Ludgate Viaduct. The painting represents an ensemble view of the Court of Queen's Bench, with striking likenesses of the leading persons in a case.— In the life of William, Earl of Shelburne, occurs the following singular passage: Like the generality of Scotch, Lord Mansfield had no regard to truth whatever. Sir Thomas Clerk, Master of the Rolls, said to Sir Eardley Wilmot, 'you and I have lived long in the world, and of course have met with a great many liars; but did you ever know such a liar as Will Murray, whom we have seen capable of lying before twelve people, every one of whom knows also that he lies?' But the worst part of his character as a judge was what Mr. Pitt called inventing law, and no fond parent could be more attached to his offspring than he was to such inventions. He had a most indecent habit of attending the appeals against his own decrees in the House of Lords. Lord Bathurst, when Chancellor, was so overawed by Lord Mansfield's manner that he literally, as speaker, decided a cause against a decree of his own, when, upon counting the house some time after, there was a majority of one against Lord Mansfield's opinion; but it was too late. Lord Bathurst was flustered, and in his confusion gave it against. At the same time no one was enough interested to call for a division."The Scottish Journal of Jurisprudence says that the late Angus Fletcher, of Dunans, used to tell a good story of a once well-known Scottish counsel. The counsel, whose forte was tediousness, was defending a Highlander at Perth. He spoke for a long time. The judge, Lord Gillies, got restless on the bench. The Highlander, observing this, whispered to his counsel, "fery goot, fery goot, that will do fery weel." But the unrelenting current went on, and the patient jury got restless in the jury-box. "Fery goot" was again the address, but no heed was taken to the interjunction. Another course was tried. An appeal was made to Mr. Fletcher, of Duuans, then a junior ou circuit: "Dunans,

Dunans, for Cot's sake stop that man; I feel the rope round my neck already." But still the speech went on. As a final and desperate effort the prisoner whispered, "Dunans, Dunans, you have always been a goot friend to the poor Highlandman. · Will a five pound note stop that man ? "

Judge Dillon sailed for Europe on the 26th instant, and will probably be absent during the summer months. This step, says the Central Law Journal, has been determined upon with the view of recruiting his health, which has been considerably impaired by overwork. Mr. Justice Miller will remain in the circuit during Judge Dillon's absence. Judge Erskine, of the United States District Court for the northern district of Georgia, recently decided a case which is thus epitomized: The petitioner was tried, convicted and confined in the penitentiary, by one of the State courts of Georgia, for a perjury alleged to have been committed in testifying before a United States commissioner, in a preliminary examination of a person charged with obstructing the right of a citizen to vote, in contravention of the Enforcement Act (R. S., §§ 5,506 et seq.): Held, 1. That the courts of the States have no jurisdiction to try a citizen for perjury committed in the federal tribunals. 2. That if a person is tried in a State court on such a charge, and convicted and imprisoned in the State penitentiary, he may be enlarged by a federal district judge, under the Habeas Corpus act of February 5, 1867 (R. S., §§ 753 et seq). · Orlando F. Bump, Esq., author of Bump's Bankruptcy Practice, will assume the editorial management of the Bankruptcy Register Reports with the next number, which commences volume twelve. The following passage occurs in Wharton on Negligence, which the Solicitors' Journal considers unanswerable: "The English law on this point presents an extraordinary contrast. On the one side it is held that the negligence of a person having charge of a young child is the negligence of the child and imputable to the child, and that there is no redress if the child is negligently run over. On the other side it is held that though oysters are negligently placed in a river bed, it is an injury redressable by damages for a vessel to negligently disturb them. The child, were he an oyster, would be protected; but as a child, under analogous circumstances of neglect, he is without redress."


Judge Joseph B. Underwood, of Bowling Green, Ky., is said to be the only surviving resident of the State who ran the gauntlet" in the early days of Indian warfare. He successfully performed the feat at Fort Wayne, Indiana, and now carries a bullet in his back received on that occasion. The Judge is more than eighty years of age, and is still engaged in the practice of law. A contemporary states that there is a case of considerable interest pending in the Superior Court, Boston, which involves the rights of Catholic priests to discipline members of their parish by publicly denouncing them, The suit is one of slander, brought by Robert C. Fanning against Father James McGlew, of Chelsea, and the damages are laid at $2,000. The plaintiff sets forth that in 1873 he was lawfully wedded to Catharine Murphy, and that on several occasions Father McGlew has called out his (Fanning's) name and that of his wife, in the pulpit, before a congregation, and accused them of fornication, saying that "these parties must come before the altar and give public satisfaction." Father McGlew,

in his defense, says that if he spoke the words as alleged they were spoken by him in his capacity and by virtue of his authority as parish priest and spiritual director of the plaintiff.

It is stated that the Union College of Law, in Illinois, is in a prosperous condition. A senior class of eighty, and a junior class of about the same number are confidently expected for next year. During the past year lectures have been given by Storrs, Root, Booth, Doolittle, Trumbull, Hurd, Bissell, High and others. Judge Warren, of Saratoga, who for nearly thirty years held several prominent judicial positions, died Sunday evening, aged eighty-two years.- - In the Court of Claims on Monday, Col. Robert M. and Stephen A. Douglas, sons of the late Stephen A. Douglas, of Illinois, received an award for 1,457 bales of cotton, or about $259,000, seized on the maternal plantation in Mississippi. Mr. Carl. Zerrahn's suit against Mr. P. S. Gilmore, to recover $5,000 for the services during the Peace Jubilee in Boston, has been decided adversely to the plaintiff by the Massachusetts Supreme Court.

The Irish Law Times, in giving citations to American cases as a note to an Irish case, says: "Although American decisions are not binding as authorities here, they, at all events, possess the weight to be attached to the opinions of professors of the law."-The Chicago Legal News says that "Edward C. Marshall, a son of Chief Justice Marshall, 70 years of age, is a clerk in the pension office at Washington, at a salary of $1,200. Think of a son of the great Chief Justice of the Supreme Court of the United States having to work as a clerk, at that advanced age, for $1,200 per year. A very large majority of the most distinguished judges of the United States have died poor and left their children to depend upon their own labor for support. This speaks well for the honesty of our judges, but is it not the duty of a judge to serve his own family as faithfully as he does the public, and see that they are properly provided for?" Ex-Attorney-General Williams and ex-Commissioner Douglas have taken an office together, in Washington, for the practice of their profession.

Mr. Edward B. Merrill, chairman on the Richmond county (N. Y.) jail, reported at the annual meeting of the local visiting committee of the Richmond county institutions, that "the jails as prisons for convicts should be entirely abolished, and hereafter used only as houses of detention for persons held for trial, and witnesses, and persons held for contempt and upon civil process. As a substitute there should be erected in each congressional, or in each judicial district, a reformatory, to be called a 'work-house,' to be used for the detention, punishment and reform of all classes of criminals who are now, under the present laws, sentenced to the county jails. These 'work-houses,' if erected in each judicial district, would be eight in number, and should be paid for by the State, established in the county having the largest population in each district, and the expenses of the prisoners could be met by fixed rates of board, to be paid by the counties from whence the convicts came. The convicts should be sentenced to the 'work-house' for an indeterminate period, and not be discharged therefrom until reformed. They should, while there confined, have both moral and

intellectual instruction; be taught any or all the trades, as each convict may choose or be best fitted, and in fact be taken away entirely from their former and all evil associations and circumstances, and by care, culture and habit be truly reformed, and restored to the community as good citizens, if at all."

The Central Law Journal, in noticing "The History of Lawyers, Ancient and Modern," by William Forsyth, published by James Cockroft & Co., of New York, refers to the fact that the book first appeared in London under the title "Hortensius; Duty and Office of an Advocate." The Journal

states that "it appears that this attempt to palm off an old book as a new one does not even possess the respectability of a skillful forgery, for the text of the book is itself inadvertently left unaltered, to accuse the trickery which could attempt such a fraud upon an enlightened and honorable profession." We referred recently to the fact that Messrs. Cockroft & Co. had reprinted the " Adventures of an Attorney in Search of Practice," by Stephen, accrediting it to Samuel Warren, who is much the better known in this country. Such practices as these deserve the severest condemnation, not only of the law publishers, but of the entire profession. It is a miserable piece of trickery.

The offenses against the person bill, which has passed the English House of Commons, repeals sections 50 and 51 of 24 and 25 Vict., chapter 100, and proposes to enact as follows: "3. Whosoever shall unlawfully and carnally know and abuse any girl under the age of twelve years, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than five years or to be imprisoned for any term not exceeding two years, with or without hard labor. 4. Whosoever shall unlawfully and carnally know and abuse any girl, being above the age of twelve years and under the age of thirteen years, whether with or without her consent, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor. 5. Whosoever shall by false pretenses, false representations, or other fraudulent means, have carnal knowledge of any girl, being above the age of thirteen years, and under the age of sixteen years, whether with or without her consent, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor.". The visiting committee of the Richmond county (N. Y.), institutions report that at the county jail the "diettary arrangements are, and have been for a long time, such that the jail has become known as a pleasant 'boarding-house,' where good board may be obtained free of expense to those who patronize it, and the pubiic will pay the bills."-The citizens of Saratoga gave Judge George S. Batcheller, the new Judge of the Egyptian International Court, a reception Monday evening, which was largely attended. Judge Batcheller sails for Egypt on Saturday. Judge George Vail of Morristown, N. J., died on Sunday evening at the age of seventy-two. He had been a judge of the Court of Errors in New Jersey. He assisted in perfecting the first telegraphic instruments.

All communications intended for publication in the Law JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The weekly issue of the ALBANY LAW JOURNAL is now 3,800 copies.

The Albany Law Journal.

ALBANY, JUNE 5, 1875.


The young

THE HE other day between two and three hundred young gentlemen, with their law school diplomas in their pockets, presented themselves to the Supreme Court in the city of New York for enrollment as attorneys and counselors at law. The learned Presiding Justice expressed his disapprobation of such wholesale business in forcible terms, and the newspapers took advantage of the occasion to say some not very courteous things about lawyers, and to talk about the decadence of the bar. And New York is not alone, for Albany and Cambridge, and Boston, and the many other law schools in the country, have recently commissioned other hundreds of young gentlemen. For our own part we see nothing at all alarming in this accession to the legal profession nothing that threatens the peace of the State or the safety and welfare of the profession. gentlemen who no doubt come to the bar full of daydreams of a near prosperity, as all of us came to it, may find, as most of us found, that they are like the lapwings, farthest from their nests when they seemed to be nearest them, and may finally be compelled to turn aside and become editors, or something worse; but we are sure they will be the better-will make the better editors, or whatever they may turn to, for the little knowledge of the law that came to them at the law school. Lord Bacon, it may be remembered, recommended the study of the law as a remedy for some particular defects in the mental powers; and Burke spoke of it as a science which does more to quicken and invigorate the understanding than all the other kinds of learning put together. We wish that the schools might find it to their interest to keep the young gentlemen longer within their walls, but very likely, even then, quite as many would fail ipso limine and drift into that course of life which best befits them. That a thousand men, more or less, have been called to the bar, ought not now to excite our wonder, when so long ago as Fortescue's day the students of the Inns of Court numbered over two thousand, and were not a whit better taught than our students of to-day. Every man is the stronger for a course at a law school, even though it does not make him as wise as a judge; and if he undertake VOL. 11.- No. 23.

the profession invita Minerva, the goodness and the felicity of nature will, in due time, bring him to that path wherein he was destined to walk.

The general term judges of this State met on Tuesday and elected Mr. Marcus T. Hun reporter of the Supreme Court. All the judges were present except Justices Barnard and Talcott-the latter being ill. Resolutions were adopted requesting the reporter to "cite the volume and page of authorities in the body of the printed opinion, instead of at the foot of the page; " requesting counsel, receiving copies of opinions, to withhold them from publication and to cite only the official series; and requesting the legislature to so amend the laws as to put the graduates of all law schools upon an equal footing with other law students, as to the term of study necessary for admission to the bar-a much more sensible plan than that proposed by Judge Davis. Mr. Hun is a gentleman of culture and ability, has had some experience as a reporter, and will, we do not doubt, produce a series of reports which will so fully answer the needs of the profession, that no other series of reports of the same court will find support. This is the only way in which other series can be cut off. If the official series be made what the profession require, there will be no support for outside reports; but the fact that a series is official goes for little unless it have the merit. The following judges supported Mr. Hun: Davis, Daniels, Brady, Gilbert, Tappen and Learned.

Dr. Samuel T. Spear continues his remarks on constitutional law in the Independent, in an article on "United States Citizenship." The writer maintains that the Constitution, in its grants of power to the general government, constantly recognizes the fact that there are State governments in the Union; that these governments are charged with the duty of regulating the rights of persons and property in respect to State citizens, and that it is no part of its purpose to suspend the powers or supersede the functions of these domestic and local governments. The general government is not invested with all powers, but only with a specific and limited class of powers. Dr. Spear holds that the protection of United States citizenship on the high seas, or in foreign countries, presents a different question from that of its protection in the States. The citizen goes abroad not as a State citizen, but as a citizen of the United States. The States are not recognized on the high seas or by foreign powers. This is an important distinction. The case of a citizen resident in one of the States is different, because the State power is operative and is recognized by the general government. If a citizen is murdered or robbed abroad, the general government appeals

to the proper authorities for redress; if a citizen is murdered or robbed at home, the local State authorities punish the crime, and the general government cannot interfere. Dr. Spear justly remarks that the claim has no basis in the Constitution, that all the rights of citizenship are to be protected by the Federal government, when in its opinion they are not suitably protected by the local State authority.

The Independent also contains a valuable discussion in financial and constitutional law, on the question whether, in case a State repudiates its debts, a holder of its bonds, being a citizen of another State, can bring a suit against it in the courts of the United States, and in this way enforce its claims. Our contemporary quotes the eleventh amendment of the federal constitution, which provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." Now, if a citizen of Michigan be the holder of a State bond issued by Ohio, he cannot, in the federal courts, enforce the payment of the bond. The result is, that our system furnishes no judicial remedy against the repudiation or non-payment of State obligations in the hands of non-residents. Before the adoption of the eleventh amendment the case would, it seems, have been different. See Chisholm v. Georgia, 2 Dall. 419; 1 Kent's Com. 297.

The New York Herald reporters, with characteristic enterprise, have interviewed foreign representatives, “learned in the law," in regard to the reme

dies for seduction of the wife in various countries. According to the French law, it seems that the husband has a cause of action, in damages, against his wife's seducer, at least whenever the act has resulted in the pecuniary injury of the husband. Criminal prosecution is also allowed in France. The law in Italy is the same as that of France in respect to pecuniary damages. But in most of the European countries no action of damage lies. And in Japan the usual method of settling such cases is by an action for divorce, or by a criminal prosecution. Our law not providing for a criminal prosecution, the only remedies are the action for divorce against the wife, and the action for crim. con. against the seducer.

The opinion of Judge Blatchford in the case of Carl Vogt, on a writ of habeas corpus, is an elaborate and able discussion of the question, whether the decision of the United States commissioner, as to the surrender of a prisoner under an extradition treaty,

can be reviewed by the federal courts. The court held that the decision could not be so reviewed. This conclusion is sustained by In re Henrich, 5 Blatchf. C. C. 414; Ex parte Van Aernam, 3 id. 160; In re Veremaitre, 9 N. Y. Leg. Obs. 137; In re Kaine, 10 id. 257; In re Heilbron, 12 id. 65; In re Macdonnell, 11 Blatchf. C. C. 79. Judge Blatchford is of opinion that the evidence before the commissioner tended to prove the death of the deceased; his death by violence; the simultaneous burning of articles in the room where he died; the simultaneous

stealing, from the safe in the same room, of securities to a large amount in value; the flight of the accused (Vogt) to England the same night; the previous poverty of the accused; his possession of money in England; his previous acquaintance with the deceased and familiarity with the premises; a previous quarrel of his with the deceased; the flight of the accused to this country, and the tracing to his possession, while here, of securities shown to have been in the safe of the deceased at the time of his death. The decision of the commissioner, on this evidence, was not reviewable by the Circuit Court. Judge Woodruff concurred in the opinion and in the conclusion reached. It is now announced that Vogt has been surrendered to the Belgian authorities, and if this is true his case will no longer vex our courts. It has been one of the most remarkable extradition cases on record.

A paper was read by Chief Justice Daly, on Tuesday, before the New York Historical Society, on James W. Gerard, his life, professional career and legal contemporaries. After a few introductory remarks upon the way in which the legal profession was regarded in the palmy days of the Roman Empire, Judge Daly stated that he had prepared his paper upon a lawyer who for more than half a century was actively engaged in New York city in the practice of law, and who was one of the most conspicuous advocates in the courts. Judge Daly paid a high tribute to the character of Mr. Gerard, and spoke of the bar of the city as it existed thirty years ago. He mentioned the names of Thomas Addis Emmet and John Wells, who were unexcelled

as forensic orators in the trial of causes before the

Jury. The style of Mr. Wells was flowing, fascinating and persuasive, and he possessed one of the sweetest, most musical and delightful of voices. Mr. Emmet was a man of extensive classical, scientific and general knowledge, and possessed a wonderful mastery over language. But Judge Daly thinks that the leader of the New York bar, at the period in question, was Cadwalader B. Calden. His pre-eminence was due, in a great degree, to his ancestral name, his high social position, and his fine personal qualities. Judge Daly's paper was a most interesting production.

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