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CORRESPONDENCE.

DELAYS IN THE COURT OF APPEALS.

Editor of the Albany Law Journal:

Will you allow me to refer in your columns to a well-worn subject, the delay in the hearing of cases by the Court of Appeals? The present calendar was made up last May, and I hear that there is no likeli hood of a new one before next October. Thus an unpreferred case which was appealed to the Court of Appeals last June, cannot possibly be heard before the latter part of 1889, if then. Roughly speaking, it is correct to say, that an unpreferred case has to wait about two and a half years for a hearing in the Court of Appeals. As to preferred cases, though the delay is less it is far too great. It is not necessary to say that this is a bad condition of affairs. The difficulty lies in devising a remedy.

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Judgment reversed, uew trial granted, costs to abide event-People, ex rel. Edwin A. Nash, surrogate, respondent, v. James Faulkner, Jr., executor, et al., appellants; Robert Young, respondent, v. New York, Lake Erie and Western Railway Company, appellant. Judgment affirmed with costs - John F. Hirsch, respondent, v. City of Buffalo, appellant; Louis Windmuller et al., respondents, v. Thomas J. Pope et al., appellants; Julia C. Chapin, respondent, v. Hopkins H. Meloon, appellant.-Judgment affirmed-People, respondent, v. Charles F. Myers, appellant.-Appeals dismissed with costs-Josephine Decatur, executrix, appellant, v. John E. Goodrich, respondent; George W. Wingate, respondent, v. Lip

Certainly a remedy is necessary. The Court of Ap-sey Gas Burner Company, respondent; E. P. Gleason peals makes every inch of ground possible under existing conditions. It hears an enormous number of cases every year, and decides them promptly, yet with all necessary care and deliberation. It maintains the high reputation which the highest Court of the Empire State should have. But the judges are worked far too hard. The bar acquits them of any blame for the state of the business in their court.

Various remedies have been proposed, and I have picked out of them what I deem the best, I submit my conclusions without discussion or elaboration, and mainly to keep the subject in a state of agitation. Only in that way can we hope to divert our legislators from irrelevant local and political matters to matters of really great concern affecting the public welfare.

(1) Appeals from orders to the Court of Appeals should be disallowed, excepting orders which put an end to an action or grant or refuse new trials, and final orders in special proceedings. This would leave the General Term the final court ou questions of practice. And so it should be. A court composed of three or four experienced judges is surely competent to finally regulate all questions of practice. This would relieve the Court of Appeals from the waste of much time in hearing such appeals.

(2) The limitation of $500 should be raised to $1,000, reserving of course, to the General Term the power to allow an appeal to the Court of Appeals in cases involving less than $1,000, when doubtful or exceptional questions of law are involved. A litigant with less than $1,000 at stake should be satisfied with the decision of a court consisting of three or four judges, when those judges see no reason in the nature of the case for allowing an appeal. We can trust to the judges exercising their power of allowing an appeal with discretion and consideration.

(3) The chief judge should be given the power to call up judges of the Supreme Court to aid the Court of Appeals whenever necessary. At all times there should be a majority of the regular judges of the Court of Appeals sitting in the court. This course would increase the working force of the court, and prevent the collisions and differences in prestige, incident to two final courts. If two or three Supreme Court judges were present in the court, they would relieve the same number of Court of Appeals judges from attendance on the court, and it could be so arranged that more time could be given to the hearing of cases and a larger force devoted to the writing of opinions.

I believe if these measures were adopted the Court of Appeals would keep abreast of its work. Yours very truly,

[See Current Topics.-ED.]

JOHN G. MILBURN.

Manufacturing Company, appellant; In re Jane A. Porter, a luuatic; John Brady, respondent, v. Mayor, etc., of New York, appellants; Bernard Brady, respondent, v. Same.-Order affirmed with one bill of Salie Frankel v. Same; Yette Thalheimer v. Same; costs-Ignatz Thalheimer v. Ferdinand Hays et al.; Susselia Hays v. Same.-Motion for reargument denied with costs-People, etc., v. Knickerbocker Life Insurance Company.-Motion to put cause on the A. Wheelock, respondent, v. Michael Noonan, appelcalendar as preferred granted without costs-William

lant.-Motion to review and affirmance denied withCode of Civil Procedure, with $10 costs-Harriet Balout prejudice to application under section 1278 of the lou, respondent, v. Charlotte Ballou et al., appellants.

-Petition to put cause on calendar. Ordered, that the cause may be put upon any day calendar submit、 ted-New York State Monitor Milk-Pan Company, Limited, appellants, v. Philo Remington et al., respondents.Motion to dismiss granted with costsIgnatz Oestereicher, appellant, v. Thomas A. Raisbeck, respondent; William F. Parks, appellant, v. Margaret A. Murray, impleaded, respondent.-Motion to open default granted on payment of $20 costsJesse W. Powers, respondent, v. Morris Silbersteen, that the remittitur be amended by making the award appellant.-Motion to amend remittitur. Ordered, of costs in favor of the individual defendants to read. thereto the clause, and without prejudice to any apcosts in all courts against the plaintiff,'' and adding additional allowance, or of any application in behalf plication to the Supreme Court in their behalf for an of the defendant Chase for any relief." Ordered further, that the application to amend the remittitur, made in behalf of the plaintiff, be denied -Harriet Vilas et al., admx., etc., v. John B. Page et al.

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NOTES.

While a certain Judge Greene was trying a civil case, Mr. X., the attorney for the defendant, had occasion to quote from Browne (a legal authority), but pronounced the final e in that name. "Mr. X.," said the judge, "I believe that name is pronounced Brown, not Brown-e. Now my name is also spelled with a final e, but it is pronounced as one syllable is it not?" "Your honor," said Mr. X., "that depends entirely upon how you decide this case."

It is gratifying to learn that a wife may have a divorce for cruel treatment, although she herself "has not always been truly lady-like in her behavior, and was at times herself, in anger, guilty of profanity." Berryman v. Berryman, 59 Mich. 608.

The Albany Law Journal.

IT

ALBANY, DECEMBER 17, 1887.

CURRENT TOPICS.

is to be hoped that the Senate will not confirm the nomination of Mr. Lamar to the Supreme Court. Various reasons have been assigned for his unfitness for the post, some based on his former hostility to the government, some on his intemperate and unwise utterances, and some on his personal characteristics. We suppose there are plenty of men in the country, and in the south, who did not actively endeavor to overthrow our government by services in the field and in councils, who could have been selected without resorting to a violent secessionist, unrepentant, although "reconstructed." By process of "reconstruction" Mr. Lamar has been admitted to Congress and cabinet. Against this we have nothing to say. These are political offices in which it is eminently fit that the south should be represented. But the Supreme Court bench is not a political place. It is the one place in our scheme of government supposed to be devoid of political feeling, bias and aspiration. It is the final safe-guard of our nation in the time of the greatest strain upon our institutions, a barrier against encroachment and revolution. To put upon this bench a secessionist, who is not even repentant, and who cannot see that he did wrong, is a dangerous stretch of leniency and a violent shock to the patriotic feeling of the loyal people. Mr. Lamar says Davis was no traitor, and of course thinks the same of himself. If that is his way of arguing, he is an unsafe man to judge of what is treason, and an unsafe man to be intrusted with the sacred duty imposed on him by this office. A Supreme Court justice ought to know what constitutes treason, because he may be called on to pass on the case of anarchists at some time. There must be plenty of loyal men, even of the south, at least men whose swords and voices were not raised to destroy the government, from whom a satisfactory selection might be made. We hope not to be deemed prejudiced, vindictive or illiberal, when we say that it is unwise and unsafe to put any original secessionist on the Supreme Court bench. But there is another, and an all-sufficient reason against Mr. Lamar. He is not an eminent lawyer. He never was distinguished as a lawyer. He never was heard of as a lawyer except where he lived. For thirty years or more he has, we understand, been practically unfamiliar with the courts. The most partial friend of Mr. Lamar would not claim that he is a learned lawyer. He is a professional politician. His habits of thought and life are far from judicial. An estimable gentleman, a scholar of considerable cultivation, no doubt, but no lawyer, as we use the phrase in connection with the essential requirements of this post. There are certainly VOL. 36-No. 25.

eminent lawyers at the south whose learning and experience would add strength to the bench. We have heretofore suggested two or three of them. It is quite proper that the appointee should come from the south, but the senate should look to it sharply that he knows the law, from study and experience, to an extent that distinguishes him, and especially that he knows what treason is.

So.

The

"Wine has been held

The prohibitionists have a decided triumph in the decision of the Supreme Court of the United States that prohibition is constitutional. But that court did not decide that it is practicable or politic, and if it had so decided it would not have made it The decision simply is that society may suppress the use of property for a purpose deleterious to it. The tobacconists are also triumphing in Mr. Blaine's late dictum that the tax ought to be taken off tobacco Of course we have nothing to say about mere matters of tariff, but when Mr. Blaine says that tobacco is no longer a luxury but has become a necessary, we think he is ridiculous. It may be so in a presidential but not in a legal'view. He might say as much for alcohol or opium. courts have decided that it is not a necessary for infants. Bryant v. Richardson, L. R., 3 Exch. 93. In that case counsel argued: to be a necessary, and why not cigars? Smoking is now a general habit in all ranks of life, and more particularly in the army." But Martin, B., said: "I do not think that any one can doubt that cigars and tobacco are articles of luxury and not of utility." We do not use the filthy weed ourself, but we have no objections to other men's impoverishing their land or poisoning themselves with it. But we do protest against any encouragement to the young to use it. It is a loathsome spectacle to see a young man nervously wriggling and unhappy if he is obliged to go without a cigarette for an hour. Even seasoned smokers advise against the habit, and are unwilling that their sons should acquire it. Prose is inadequate to express our emotions on this topic, and so in the Albany Journal we dropped in poetry as follows on

THE NICOTINE HABIT.
At evening of a frosty day

An urchin crossed my homeward way,
Scarce bigger than a babe in arms,
Subject of mother's fond alarms;
His trousers short, but over wide,
Flapped in the wind from side to side;
No coat had he; a ragged shirt,
A cherub face besmeared with dirt,
And marked by pugilistic scratch;
An old straw hat did hardly thatch
His hair of tow, while on the ground
Ten other toes did wriggle round
Convulsed with cold; his blue lips quivered,
His bare legs like the aspen shivered;
He blew upon one chubby fist,
While in his eyes there stood a mist
Of tears suppressed; his weary voice
Announced to citizens a choice

Of some newspapers which he pressed
Convulsively to his thin-clad breast;
His other fist could scarce conceal
Something he fain would not reveal
Beseechingly he looked at me
As I approached; in sympathy,

Between a nickel and a dime

I doubted for a moment's time,
When he my hesitation solved,
And all my charity dissolved,

As my stunned ears these words did catch: "Mister, I say, gimme a match!"

The portrait of Henry Smith, painted by Mr. Twitchell of this city, and just added to the collection of the Court of Appeals, is a most meritorious work, one of the three or four very best in the collection. The painter had the advantage of a noble subject, and he has made not only a speaking but an eloquent likeness-eloquent with wit, logic and good humor. The great advocate shines in every line.

It would not be surprising if Mr. Proctor found some member of the Pinkney family in his hair for reviving that anecdote of Webster's compelling Pinkney to apologize. We told it once, 16 ALB. LAW JOUR. 457, and repeated it 17 id. 24, and met with a rebuke, id. 115, and published a long protest by Bishop Pinkney, 20 id. 87, and an explanation of the probable origin of the tale, id. 260, and the Bishop's last words, id. 300. The story probably was exaggerated, perhaps by Daniel in his convivial moments, perhaps by fame "crescit eundo." The story of Pinkney's apology to Emmet has probably also received some ornament and coloring by narrators, for Ticknor, who heard the apology, says in his "Life and Letters," that it was "a cold and inefficient apology." But se non è vero, è ben trovato.

There seems to be a fatality about the wills of the most distinguished lawyers. In a very recent case in our Court of Appeals, Finch, J., observed: "One would hardly have expected that the will of so eminent and able a lawyer as the late Charles O'Conor would come before us for construction, and present a question quite debatable, and involving some difficulty. He made his will, about which as it stood at the date of its execution there was no ambiguity, and which had the clearness and precision we were certain to anticipate. But fifteen months later, and about two weeks before his death, he made and executed a codicil which creates a serious difficulty, and if drawn by him or at his verbal dictation, may have some explanation in his failing health. By the terms of the will he released in its sixth clause certain of his debtors, conveying his purpose in the following language: 'I hereby release all claims or demands which I may have at my death against any person or persons named in this will.'" But the testator added a codicil, and a dispute arose as to whether that was included in the phrase

"in this will." The court held that in the circumstances it was not included.

The Virginia Law Journal has a paragraph on "The Decrease of Law Business," commenting on an article from the Maryland Law Record as follows: "The causes, as assigned by our contemporary, are

To

the 'glorious uncertainty' of the law, the delays and slothfulness of legal proceedings, and the costliness of litigation. With us the second is the great cause of the undeniable decrease in litigation. The uncertainty which deters suitors is, in fact, the certainty that they will not see the end of the matter for years at least. The cure for the whole thing is in the hands of the lawyers, and it is a reproach to them that it has not been remedied long ago. It is perhaps unprofitable to inquire why it has not been done, but we believe the two chief reasons illustrate the two characteristics of the profession - its conservatism and its selfish indolence. This is hardly a popular thing to say of the profession, but it is nevertheless true. It cannot be denied that the majority of lawyers in almost every community follow the profession merely for the bread that it furnishes today or the money it promises for to-morrow. quarrel with them for this may lay one open to the charge of quixotism in these practical days; but to say the least, they cannot be expected to know or care much about the law as a science, either in the past or the future. It ought to be remembered that the desire to make the law a perfectly efficient instrument for the enforcement of rights and the punishment of wrongs is not merely a desire to increase litigation, and thereby benefit the lawyers. The benefit to the lawyers is not to be compared to the interest the community has at stake in having the laws executed with promptness and certainty." The Tribune also recently published a terrific attack on the lawyers on account of their exorbitant charges. We have for many years urged that the law should be made surer, swifter and cheaper. There is unquestionably a general decrease in law business, and we believe it is fairly due to the causes above alleged. Worst of all is the popular conviction that the lawyers are opposed to any change or reform. Many, perhaps most lawyers,

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content themselves with the reflection that the present state of things will probably last as long as they do, and after that they care not. As to costs, many of them, especially in the large cities, are industriously engaged in trying to kill the goose and It is amazing to get all the golden eggs at once. observe the elasticity of conscience of many highly gard to fees. Lawyers are probably just about as respectable" and influential practitioners in regreedy as men in trade and commerce, and manufacturers-no worse, but they ought to be better but they are not so much restrained by competition. There are unquestionably some lawyers who are conscientiously opposed to codification, but it is our belief that nine-tenths of the opposers are swayed by no higher motives than selfishness, laziness, jealousy, ignorance and constitutional obstinacy. We venture to say that nine-tenths of them have never read the Code - even Mr. Carter had at last accounts read only forty sections and that half of them have never even seen it or want to see it. The profession will have an awakening some day. It will be a long time in coming, we admit, but these slow mills grind small.

IN

NOTES OF CASES.

`N Pedigo v. Grimes, Indiana Supreme Court, Nov. 3, 1887, it was held that a college student may be both a voter and a student; and if he in good faith elects to make the place his home, to the exclusion of all other places, he may acquire a legal residence, although he may intend to remove from such place at some fixed time, or at some indefinite period in the future. Elliott, J., said: "Taking the view of the testimony most favorable to the appellant, the utmost that can be said of it is that the voters entered the State university at Bloomington without at the time of entering having formed a definite intention of making that place their residence, but that they did subsequently determine that it should be their residence. This gave them the right to vote, because there is no evidence that this was not their intention, formed and acted upon in good faith. We think it clear that if they had gone to Bloomington with the intention of remaining simply as students, and there was no change of intention, they would not have acquired a residence. Granby v. Amherst, 7 Mass. 1; Fry's Election case, 71 Penn. St. 302; S. C., 10 Am. Rep. 698; Dale v. Irwin, 78 Ill. 170; Vanderpoel v. O'Hanlon, 53 Iowa, 246. Where however the intention is formed to make the college town the place of residence, and that place is selected as the domicile, then the person who does this in good faith becomes a qualified voter. In Vanderpoel v. O'Hanlon, supra, the court said, speaking of a student: 'It would probably be admitted if when he went to Iowa City, or at any time thereafter, his intention was to make that place his home and residence when he ceased to attend the university, that such place was, and became his place of residence, in such a sense that he would have become a legal voter in Johnson county.' Judge McCrary says: 'It will be found from an examination of these authorities, and from a full consideration of the subject, that the question whether a student at college is a bona fide resident of the place where the college is located must in each case depend❘ upon the facts. He may be a resident, and he may not be. Whether he is or not depends upon the answers which may be given to a variety of questions, such as the following: Is he of age? Is he emancipated from his parent's control? Does he regard the place where the college is situated as his home, or has he a home elsewhere, to which he expects to go, and at which he expects to reside?' The case of Sanders v. Getchell, 76 Me. 158; S. C., 49 Am. Rep. 606, is a strong one, for there the Constitution of the State provided that 'the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situate,' yet it was held that a student might acquire a residence. In the course of the opinion it was said: 'It is clear enough that residing in a place merely as a student does not confer the franchise. Still, a student may obtain a voting residence, if other conditions exist sufficient

to create it. Bodily residence in a place, coupled with an intention to make such a place a home, will create a domicile or residence.' It can, we conceive, make no difference that the person is a student, if he has in good faith elected to make the place where the college is located his residence, since there is no imaginable reason why a person may not be both a student at a college and a resident of the place where the college is situated. If he is at the place merely as a student, then he is not a resident; but if he has selected that place as his abode, he acquires a residence which entitles him to vote if he possesses the other qualifications. It is said by appellant's counsel that 'to effect a change of domicile, there must be intention and an act united. The act of residence, and the intention of remaining.' In support of this proposition, counsel cite McCrary Elect. 39, 40; Cooley Const. Law, 604; 2 Kent Com., 431; Astley v. Capron, 89 Ind. 167; Culbertson v. Board, 52 id. 361; Mc Collem v. White, 23 id. 43; Maddox v. State, 32 id. 111. The counsel's statement doubtless is an accurate one; but here the intention and the act, as the trial court found, did unite, and we think this finding is fully sustained by the testimony before the court. It is not necessary however that there should be an intention to remain permanently at the chosen domicile; it is enough if it is for the time the home of the voter to the exclusion of other places. Judge Cooley says: 'A person's residence is the place of his domicile, or the place where his residence is fixed, without any present intention of removing therefrom.' Cooley Const. Lim. (5th ed.) 754. Judge Story makes substantially the same statement of the rule. Confl. Law, § 43. In the case of Cessna v. Myers, reported and strongly approved by Judge McCrary, it was said: 'A man may acquire a domicile if he is personally present in a place and elect that as his home, even if he never design to remain there always, but design, at the end of some short time, to remove and acquire another. A clergyman of the Methodist church, who is settled for two years, may surely make his home for two years with his flock, although he means at the end of that period to remove and gain another.', McCrary Elect., p. 496, § 38. This principle was applied to the case of a student of Andover college, in Putnam v. Johnson, 10 Mass. 488, where it was said: 'A residence at a college or other seminary for the purpose of instruction would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father's control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be his expectation to remain there forever.' In this instance, the citizens, having taken up a residence in Bloomington, and having no other home, were entitled to vote there, although they may not have intended to remain there always. It is frequently said in the books that a man must have a home somewhere, and it is agreed that this home is

at the place where he is bodily present with the intention of making it his domicile, although he may have in view a change of residence at some future time. Cooley Cont. 754; McCrary Elect., § 39. The intention to remain is as Judge McCrary says, 'entirely consistent with a purpose to remove at some future indefinite time.' It can hardly be doubted that a man living in Evansville is a resident of that city, although he may intend to remove to❘ Indianapolis either at a fixed time or at an indefinite period in the future. So if a man should take a business position at Bloomington, intending to remain as long as the business required, he would acquire a residence at that place, even though his purpose may be to return at some future time to the place of his former residence. Of course a removal without any intention of making the place a domicile would not secure a residence, no matter how long the person intended to remain; but if the intention was to make the place the domicile, a legal residence would be acquired."

In McCulloch v. Campbell, Arkansas Supreme Court, Oct. 15, 1887, an action contesting the probate of a will, the defendant offered evidence to rebut evidence of testamentary incapacity, and it was excluded by the court, on the ground that the onus was on the defendant to show such capacity, and that the evidence should have been offered in chief. Held, error; that the burden was on the contestant to establish a want of testamentary capacity. The court said: "There is some confusion in the reported cases on the adjustment of the burden of proof of insanity in will contests. But we think the weight of authority, both in England and this country, establishes the rule that the production of a paper writing purporting to be the will of a deceased person, which is rational on its face, and which is proved to have been executed and witnessed in accordance with the statute, makes a prima facie case, and devolves upon the contestants the onus of showing the testator's incompetency. This rule rests upon the presumption that all men are sane until the contrary is proved. 1 Williams Ex'rs (6th Am. ed.) 24 et seq.; 1 Redf. Wills, ch. 3, § 4; Schouler Wills, §§ 173, 174; 18 Cent. Law J. 282, where the American cases are collected with some care by Mr. Elisha Greenhood. To this rule we have given in our adhesion. Rogers v. Diamond, 13 Ark. 479; McDaniel v. Crosby, 19 id. 533; Tobin v. Jenkins, 29 id. 151; Jenkins v. Tobin, 31 id. 309. It is true our statute of wills requires a testator to be of sound mind. Mansf. Dig., §§ 6490, 6491. But the same thing is required in order that a person may be held responsible for a crime. Id. §§ 1495, 1497, 1499. Yet upon the trial of an indictment the State never goes into evidence of the prisoner's sanity until he has given evidence of his insanity. It is also true that since the rule was first announced by this court, the procedure in will contests has been changed. By the practice then in force, the contestant filed his petition in the Circuit

Court to set aside the probated will, whereupon an issue of devisavit vel non was made up, and in this ssue the contestant was the plaintiff. Whereas now the heir, desiring to contest, takes his appeal from the order of the probate court admitting the instrument to probate, and becomes the defendant in the proceeding. But the burden of proof of insanity, and the presumption of soundness of mind, are not changed."

In International & G. N. R. Co. v. Cock, Texas Supreme Court, Oct. 28, 1887, an action for personal injuries suffered by plaintiff by being thrown from a hand-car of defendant, the evidence showed that plaintiff was riding in the hand-car as a passenger by invitation of defendant's train-master and dispatcher, who had charge of all freight and passenger trains, but it was disputed whether hand-cars and their crews were under his control or that of the general road-master. The court instructed the jury that "according to the undisputed evidence, the plaintiff was on defendant's car, either at the invitation or with the consent of the servants authorized by the general train-master of the defendant company," that he was lawfully on the car, and that defendant would be liable for any injury he sustained by reason of the negligence of its servants. Held, that it should have been left to the jury to say whether the train-master had any authority to give the defendant's consent for plaintiff to ride on the car. The court said: "It did not appear that appellant or its servants had ever before this time carried passengers over the road on hand-cars. It was in evidence that there were rules prohibiting appellant's servants from carrying any one on hand-cars except track men; such cars being designed for carrying such persons with necessary tools and material for keeping up and repairing the track. But it did not appear that the public had been advised of this rule of the company. * * * The servants of appellant, who gave appellee permission to ride on the car, are not shown to have had the power to abrogate or suspend rules promulgated by the proper authority for the operation of the road, and the court below could not assume that said servants in so doing were acting in the apparent scope of their anthority. But if the facts proven had been sufficient to justify the belief that appellant's agents had the authority to furnish transportation to facilitate holding the inquest, it might have been submitted to the jury to say whether such agents were acting in apparent scope of their authority in furnishing the hand-car in question. The decision in the case of Prince v. Railway Co., 64 Tex. 144, although growing out of the same facts that exist in the present case, was upon demurrer to plaintiff's petition, in which it was alleged that Prince was on the hand-car by the invitation and consent of an agent of defendant, who had authority to give defendant's consent thereto, and has no application to the question under discussion. * Some courts have held that persons taking passage on trains not designed or used

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