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We have no doubt that most of the men opposed to codification are opposed to popular election of judges. The two usually go together, but popular election came and codification is coming-slowly, we must confess - but gaining in favor every year, and bound to arrive and to stay.

We really wish some American would go over to England and teach the English judges how to write the English language. In the last number of the Law Times Reports Justice Hawkins writes "different to," which is abominable, even if Thackeray does use it. And then some Englishman should come to Illinois and teach the judges there how to write English, and especially carry a large supply of the conjunction "that" to Judge Scott, who seems prejudiced against that word. His example has apparently infected Judge Mulkey. If any of the judges want to know how English should be written let them devote their nights to reading the opinions of Mr. Justice Bradley and Judge Finch.

Our London exchanges are full of matter about dogs, although dog-days are past. The Times has a long communication as to when a dog is "under control" of the owner. The Law Journal advocates the abolition of the doctrine of scienter, or rather the reversal of it, proposing "to make evidence of the fact that a dog is not really tame or domesticated, in the true sense of the word, prima facie evidence of knowledge on the part of his master or keeper." This is approved by a correspondent signing himself "A Lover of Dogs," and it seems to us reasonable. If a dog bites, do not subject the bitten to the difficult burden of proving that his owner knew he was accustomed or disposed to bite, but compel the owner to prove the contrary, which is easy for him, if true. The Journal also has an account of a policeman who used a "decoy dog" in the business of dog-catching and killing, for which he was properly rebuked by a magistrate. This is the meanest use to which decoys have yet been put.

IN

her eye.

NOTES OF CASES.

N Weidmer v. N. Y. Elevated R. Co., 41 Hun, 284, the plaintiff, while walking on Third avenue in the city of New York, was injured by a hot cinder falling from one of the defendant's engines into She gave no other proof of negligence. Held, that the defendant was prima facie negligent, The court, Brady, P. J., said: "The jury found for the plaintiff, but the learned judge who presided at the trial, upon an examination of all the authorities, felt himself bound to grant a new trial, for the reason that in this, as in all kindred cases, he said it was elementary law that the burden of proof was upon the plaintiff to establish the fact that the accident was caused by the negligence of the defendant or its servants, citing the cases to establish that proposition, and to which must be

added the recent case of Searles v. Manhattan R. Co., 5 N. E. Rep. 66, in which the question was considered. There is in that case, the court said, sufficient evidence to show that the plaintiff's eye was injured by a cinder lodged therein; that it came from a locomotive on the defendant's railway, and that the plaintiff was free from contributory negligenceall of which was established in this case as well. But the court said that the defendant had a right to operate its railway over the street by steam, and to generate steam by the use of coal, and any damage caused by the careful and skillful exercise of its lawful rights could impose no obligation upon it. It appeared however in that case, as stated, from indisputable evidence, that the appliances used upon the defendant's locomotives to prevent the escape of sparks and cinders were skillfully made and the best known, and that there was no evidence that any of the appliances were defective or out of order, but, on the contrary, they were in order. It does not appear from the report of the case however whether the plaintiff attempted, in the first instance, to establish the fact that there was a careless or unskillful exercise of the right of the defendant to operate its railway by steam, and therefore the case is not controlling here. If it appeared that on proof of the injury, the plaintiff had been required to prove a failure by the company to adopt measures to prevent such an occurrence, it would be otherwise. It would seem to be an extraordinary proposition that a person using, as a matter of right, the highway, and receiving such an injury as the plaintiff did, should be obliged to show, in the first instance, that it resulted not only from the defendant's act, but in addition thereto, that the defendants had not adopted the best means of preventing such an occurrence. This would necessarily involve an examination of the defendant's engine, and an examination, scientific in its character, as to whether, by any known contrivance, it could have been avoided. It would seem more in accord with the principles of natural justice to exact such evidence in response from the company. If the injured person were using the defendant's road, the doctrine declared would have been in accord with established rules. Here however the plaintiff was in the exercise of a right entirely independent of, and in no way connected with the defendant, and entitled to protection in the exercise of such right. When the plaintiff proved the injury under the circumstances disclosed, the negligence of the defendant was established prima facie, and the onus was thrown upon the defendant to show absence of negligence, if it could be done. The injured person cannot be expected to attempt the useless feat of pursuing the train in order to secure an examination of its locomotive with a view of discovering what mode was adopted to prevent injuries such as described.”

In Abrath v. North-Eastern R. Co., 55 L. T. Rep. (N. S.) 63, in the House of Lords, Lord Bramwell,

although the question was not involved, and had not been raised by counsel, delivered the following discourse: "My lords: I am of opinion that no action for a malicious prosecution will lie against a corporation. I take this opportunity of saying that as directly and peremptorily as I possibly can, and I think the reasoning is demonstrative. To maintain an action for a malicious prosecution it must be shown that there was an absence of reasonable and probable cause, and that there was malice or some indirect and illegitimate motive in the prosecutor. A corporation is incapable of malice or of motive. If the whole body of shareholders were to meet, and in so many words to say, 'prosecute so and so, not because we believe him guilty, but because it will be for our interest to do it,' no action would lie against the corporation, though it would lie against the shareholders who had given such an unbecoming order. If the directors even, by resolution at their board, or by order under the common seal of the company (I am putting the case plainly in order that there may be no mistake about it), were maliciously, with the view of putting down a solicitor who had assisted others to get damages against them, to order a prosecution against that man, if they did it from an indirect or improper motive no action would lie against the corporation, because the act on the part of the directors would be ultra vires; they would have no authority to do it. They are only agents of the company; the company acts by them, and they have no authority to bind the company by ordering a malicious prosecution. I say therefore that no action lies, even if you assume the strongest case, namely, that of the very shareholders directing it, or the very directors ordering it, because it is impossible that a corporation can have malice or motive, and it is perfectly immaterial that some subordinate officer or individual, or individuals of the company, have such malice or motive. In the case which I put, an action would lie against the directors personally who had ordered an improper prosecution. It may be that no action would lie against any subordinate who had malice, and had not ordered, or caused, or procured the prosecution, because, although the two ingredients existed, which are necessary for the maintenance of such an action, that is to say, malice and the absence of reasonable and probable cause, yet in the case which I surmise the man would not be a prosecutor, and unless you find the absence of reasonable and probable cause and malice in him who is the prosecutor, an action is not maintainable. It is not enough therefore to show that there was an absence of reasonable and probable cause, and that the subordinate had malice - not that I for a moment suggest that that is the case here. In my opinion this is not merely what is commonly called a technical point, although if a point were untechnical it would be very objectionable. This is a substantial objection, because every one, or every counsel and solicitor listening to me, knows that the only reason why a railway

company is selected for an action of this sort is that a jury would be more likely to give a verdict against a company than against an individual. Everybody knows it, and perhaps there is a sort of hope of confusion; it is said 'the man was innoeent; somebody ought to be punished for it; here is a railway company; there was an improper motive;' and so there is a jumble; the case gets before a jury, and a railway company is exactly the party to have damages awarded against it. If ever there was a necessity for protecting persons it is in an action for malicious prosecution, and for two reasons: First of all a prosecutor is a very useful person to the community. We have something in the nature of public prosecutor, but everybody knows that the greater number of prosecutions in this country are undertaken not by the State, but by private persons, or as in this case, corporations. One may venture to quote Bentham even upon this matter. He said that laws would be of very little use if there were no informers, and that it is necessary for the benefit of the public that people when they prosecute, and prosecute duly, should be protected. And there is an additional reason. A man brings an action for a malicious prosecution; he gives evidence which shows or goes to show that he is innocent. You may tell the jury over and over again that that is not the question, but they never, or very rarely, can be got to understand it. They think that it is not right that a man should be prosecuted when he is innocent, and in the end they pay him for it. It is therefore all important that these actions should not be permitted to be brought against persons or bodies, or others who are not properly liable in respect of them. It may be said, 'well, but this is rather hard upon a man who has been prosecuted, and improperly prosecuted.' That is to say, the corporation is innocent, but its officers are guilty. But the same thing happens in the case of an individual prosecutor. A man receives false information; he prosecutes upon that information. The person who gave him the information is not liable, because he did not prosecute.

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He may be liable for the untrue statement, because it may be slander, in the same way as he would be liable if he charged an indictable offense against a person, or possibly he may be liable for having procured the prosecution, and it may be tnat in such a case as this some of the people employed by the company were actuated by an indirect motive. I do not say that they were - it is impossible to say so-but what I say is, that it is no harder upon a man that he has no remedy against a public company, who has prosecuted him when the servants of the company have been malicious, than it is that there is no remedy against any individual man who has prosecuted, he having no malice, but somebody who gave him information having malice. It is said that this is an old-fashioned sort of notion. It is, but this opinion is one that I have entertained ever since I have known any thing about the law; and although it is an old

not think that your lordships' decision in the present case can properly be regarded as determining that question." What an unhappy man Lord Bramwell will be if there are no corporations in heaven for him to stand up for!

CONSTITUTIONAL LAW-PROCESS-EXEMPTION
FROM SERVICE-MEMBER OF CONGRESS.

CIRCUIT COURT, E. D. WISCONSIN, AUGUST 9, 1886.

MINER V. MARKHAM.*

Under section 6 of article 1 of the Constitution of the United States a member of the House of Congress is entitled to exemption from service of process, although not accompanied with arrest of the person, while on his way to attend a session of Congress.

The privilege is limited to a reasonable time; it is not strictly confined to the exact number of days required for the journey, nor will it be forfeited for a slight deviation from the route which is most direct.

These were two suits begun in the State Court, and

fashioned one, I trust that it is one which will not die out, for the reasons which I have given. But it is said, 'well, but a variety of actions have been allowed against corporations which did not formerly exist.' I deny it. It is certain a corporation may order a thing to be done which is a trespass, because there the act of those who act for the corporation is not ultra vires. For instance, take the case of false imprisonment. A railway company gives somebody power to take up persons who it believes are doing some wrong to the company. If a person is so authorized, that is an authority which may be unreasonably exercised. You cannot give an authority maliciously to prosecute, but you may give an authority to take up persons who are cheating a railway company. If that person to whom authority is given makes a mistake, and takes up a person who is not cheating, it may in such a case be said properly to be the act of the company, and they are properly liable. But in that case there is neither malice nor motive in question. So also they may be liable for the publication of a libel. That removed to this court. The summons in each case unfortunate word 'malice' has got into cases of action for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. Therefore the case is not the same where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication, he would be liable, although he had not a particle of malice against the man, so would a corporation. Suppose that a corporation published a newspaper or printed books, and suppose that it was proved against them that a book so published had been read by an officer of the corporation in order to see whether it should be published or not, and that it contained a libel, an action lies there, because there is no question of actual malice or ill-will or motive. For these reasons, which I dwell upon at no greater length, more particularly as Mr. MacClymont did not cite any cases upon this point, or go into it at all, I am clearly of opinion that this action does not lie against this company." Lord Fitzgerald politely sat down on Lord Bramwell as follows: "That question is not now properly before us. We have had no argument upon it, and in the view which your lordships have taken it is unnecessary for the decision of the case. I have no doubt that the weighty observations of my noble and learned friend will be instructive in future, and will always carry with them that force before any tribunal which they so eminently deserve." And the Earl of Selborne got on Lord Fitzgerald's lap: "The importance of that question would certainly have led me, before I could arrive satisfactorily at an opinion of my own upon it, to desire to hear it argued. It has not been argued at your lordships' bar. It was not, so far as I can see, a ground of decision in the court below. What has been said by my noble and learned friend, I am sure, will have the weight due to all opinions of his whenever the question comes to be solemnly examined, but I do

was served on the defendant personally at Milwaukee on the 28th day of October, 1885. Before the removal of the cases to this court the defendant appeared specially therein, and moved to set aside the service of the summons in each action on the ground that he was a member of Congress, and at the time of such service was on his way from his residence in California to Washington for the purpose of attending the next ensuing session of Congress. The motion was overruled by the State court, but without prejudice to the right of the defendant to renew the motion in that or any pending. Thereupon the defendant, thereafter appearing in the cases for the purpose only of removing the same to this court, filed petitions in each suit for the removal of the same under the act of 1875, and the cases were duly removed. A new motion was then of the summons in each action, upon the same ground made in behalf of the defendant to quash the service as that upon which a similar motion was made in the State court; which motion was opposed and argued.

other court in which the cases should be thereafter

Affidavits filed in the cases in support of the motion showed that at the time of the service of process, and for a considerable time prior thereto, the defendant was a member of the Congress of the United States, having beeen duly elected thereto as a representative from the Sixth Congressional District of the State of California, and that he is a resident of the county of Los Angeles in that State. He alleged that at the time of the service of process upon him he was on his way to the city of Washington for the purpose of attending a session of the House of Representatives, as a member thereof from the Sixth Congressional District of California, and was at the time of such service temporarily in the city of Milwaukee. He further stated, in his affidavit, that he left Los Angeles accompanied by his wife and four children, intending to proceed to Washington and there secure a suitable place of residence for himself and family during the session, and in time to arrange for and settle his fam

ily and household affairs there, prior to the date of the

commencement of the session; that during his jour. ney several of his children were ill, and by reason thereof he was obliged to stop at several places on his way to Washington; and further, that by reason of such illness he was being detained in Milwaukee at

*28 Fed. Rep. 387.

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the residence of his brother at the time of the service
of summons in said actions. He further states in his
affidavit that he started from his residence in Los
Angeles county to attend the session of Congress only
a reasonable length of time before the commencement
of the session, and such as he considered proper and
necessary under all the circumstances connected with
the proper discharge of his duties as a representative
in Congress, and was proceeding on his way to attend
the session without any unreasonable or unnecessary
delay.

The affidavit of George C. Markham, brother of the
defendant, stated that on the 28th day of October,
1885, when the summons was served, the defendant,
with his wife and children, was stopping with him,
and that at that time, and for some time prior thereto,
the defendant's children were ill, and that by reason
thereof the defendant was detained in Milwaukee on
his way to the city of Washington with his family for
the purpose of attending a session of the Congress of
the United States.

It was also shown by affidavit that the usual time required to go from Milwaukee to Washington does not exceed two days; that the time required to come from Pasadena, the residence of the defendant in Los Angeles county, California, to Milwaukee, does not exceed six days; and that the time required to travel between Pasadena and Washington does not exceed eleven days.

An affidavit made by the plaintiff stated that for ten years prior to 1878 or 1879 the defendant was a resident of Milwaukee; that in one of the years named he changed his place of residence to the State of California; that prior to the service of the summons upon him in these cases Congress has not been in session since March 4, 1885, and that the next session did not convene until December 7, 1885; that at the time of the service of the summons the defendant had more than abundant time to return from Milwaukee to his residence in California, and after remaining there over two weeks, to start therefrom and arrive at Washington three weeks before the meeting of Congress; that for at least seven days before the service of the summons, and until November 2, 1885, he was in Milwaukee visiting his friends and relatives, and as the deponent was informed and believed, had spent some time in October hunting deer in the northern woods of this State; that the direct route from the defendant's residence in California to Washington does not include the city of Milwaukee. And it was alleged, upon information and belief, that at the time of the service of process upon the defendant, and for some time thereafter, he was travelling about and visiting sundry places before going to Washington to attend the session of Congress; and that when he left Los Angeles with his family he did not intend to go direct to Washington, but intended to stop on his way at Milwaukee, to visit friends and relatives at that place.

Supplemental affidavits were filed after the argument of the motions. An affidavit of the defendant stated that when he left California with his family, his family physician deemed it hazardous on account of the tender years of the children to go from California to Washington without change and rest, and therefore advised stopping in Kansas and Wisconsin until about the first of November. He stated further that the shortest time for travelling from Pasadena to Washington is six days and six nights, and that owing to his own impaired health it was necessary for him to take every precaution to prevent sickness; that he remained in Topeka, Kansas, two days, leaving his wife and children with a relative there while he proceeded to Chicago, and remaining there one day, he reached Milwaukee October 9th; that the following

day he went to the hunting camp of his brother in the northern part of the State, intending to remain there until his family reached Chicago; that owing to sickness and delay, his family did not reach Chicago till about October 21st. when he met them there, and on the following day took them to the residence of his brother in Milwaukee; that his two youngest children were seriously ill, and remained so for several days, and that as soon as they recovered, and on November 2d, he and his family proceeded to Washington, where it was necessary for him to be at the earliest moment to get his family settled, and prepare for the work of the coming session.

The affidavits of R. B. Brown, a practicing physician in Milwaukee, stated in substance that he attended the family of the defendant professionally on the 29th, 30th, and 31st days of October, 1885; that two of the children were ill; that he was informed that they had been ill for several days; and he states that when he visited them they were too ill to travel, and ought not to have travelled in the condition they were in; that he advised the defendant not to leave Milwaukee until they were in better health; further, that the illness of said children did not appear to be serious, and that when he made his last visit he advised the defendant that in a few days the children would probably be well enough to proceed to Washington without material injury to their health.

The plaintiff also made a further affidavit in which he stated that he met the defendant in Milwaukee on the 27th day of October, 1885, and that the defendant made certain statements to him in relation to the health of his family, and also that he had been visiting and hunting with his brother a week or ten days in northern Wisconsin. It was also alleged in the affidavit that on the 26th and 27th of October the defendant and his wife were visiting stores and shops in Milwaukee.

Wells, Brigham & Upham, for plaintiff.
James G. Jenkins, of couusel.

Markham & Noyes, for defendant.

DYER, J. Upon the presentation of facts thus made, the question to be decided is, was the defendaut exempt from the service of civil process on him at the time the summons in each of these actions was served? Two propositions are involved in the consideration of this question: First, does the privilege from arrest specified in section 6, article 1, of the Constitution of the United States include a privilege from the service of civil process? Second, if it does, to what extent in period of time, with reference to going to and returning from the discharge of public duty, may the privilege be invoked?

1. Section 6, article 1, of the Constitution of the United States provides that representatives "shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same."

In Juneau Bank v. McSpedan, 5 Biss. 64, it was held that a non-resident defendant, coming within a State for the purpose of defending his suit, cannot be legally served with process in another suit; and Judge Miller, in the opinion, says: In England the privilege from arrest has always been construed to include the service of a summons. So in this country from an early period."

In Atchison v. Morris, 11 Biss. 191; S. C., 11 Fed. Rep. 582, Judge Drummond, on a review of the cases held in accordance with the rule established in New York and Pennsylvania, that as to a witness the privilege extends to freedom from the service of civil process, and is not to be limited, as is held in some cases cited in the opinion, to freedom from arrest. It is

observed by Judge Drummond, in deciding the question before him, that in the Federal courts the weight of authority seems to be in favor of a more liberal view of the subject than is taken in some of the State courts. See also U. S. v. Bridgman, 9 Biss. 221; Brooks v. Farwell, 4 Fed. Rep. 166.

In Gyer's Lessee v. Irwin, 4 Dall. 107, decided in 1790, it was held that "a member of the general assembly is undoubtedly privileged from arrest, summous, citation, or other civil process during his attendance on the public business confided to him."

In Bolton v. Martin, 1 Dall. 317, it was adjudged that a member of the State convention, which assembled in Philadelphia to consider the Constitution of the United States, was privileged from the service of a summons or arrest during the session, and for a reasonable time before and after it. This decision was before the ratification of the Constitution proposed for the government of the United States by the Federal convention. The opinion of the court reviews the old law on the subject, and it is there said that "upon an attentive perusal of the statute of 12 & 13 Wm. III, no other authority will be wanting to show what the law was upon this subject before the passing of that act. From the whole frame of that statute it appears clearly to be the sense of the Legislature that before that time members of Parliament were privileged from arrest and from being served with any process out of the courts of law, not only during the sitting of Parliament, but during the recess, within the time of privilege, which was a reasonable time eundo and redeundo." In the same case the court, referring to a citation from Blackstone's Commentaries, 165, to the effect that a member of Parliament might be sued for his debts though not arrested, during the sitting of Parliament, says: "This will appear to be expressly confined to actions at the suit of the king under a particular provision in the statute of William III, and by the strongest implication shows that it could not be done at the suit of a private person."

Reference is then made to another passage from Blackstone, where he says: "Neither can any member of either house be arrested or taken into custody, nor served with any process of the courts of law, * * * without a breach of the privilege of Parliament."

In a note to this case it is said, that "in the case of U. S. v. Edme, 9 Serg. & R. 147, the court said that the privilege of protection has extended itself in process of time to every case where the attendance was a duty in conducting any proceedings of a judicial nature;' and the case in the text shows that the privilege extends to protect all persons engaged in public business of a legislative character from the service of a summous as well as from arrest. To the same effect (in the case of suitors) is Miles v. McCullough, 1 Bin. 77."

In Parker v. Hotchkiss, 1 Wall. Jr. 269, it was held that a suitor in court residing without the circuit is privileged from the service of a summons; overruling the case of Blight's Ex'r v. Fisher, decided by Judge Washington in 1809 (1 Pet. C. C. 41), in which this privilege was limited to exemption from arrest. Purker v. Hotchkiss was decided by Judge Kane, whose opinion was concurred in by Mr. Justice Grier and Chief Justice Taney.

In Gentry v. Griffith, 27 Tex. 461, it was decided that members of the Legislature are not privileged against service of citation in civil suits by virtue of the provision in the Constitution of the State granting an immunity from arrest to such members during the session of the Legislature, and while going to and returning from the same.

In Case v. Rorabacher, 15 Mich. 537. it was held that there is no general exemption from the service of pro

cess without arrest, merely because a party is attending court awaiting the trial of a case. This case appears to be in antagonism to Juneau Bank v. McSpedan; Brooks v. Farwell and Parker v. Hotchkiss, ubi supra, and to Larned v. Griffin, 12 Fed Rep. 590, which is an instructive case in its collation of the authorities.

In Doty v. Strong, 1 Pin. 84, the question was whether the privilege from arrest guaranteed by the Constitu tion of the United States to members of Congress extended to delegates from the territories; and if so, whether it was not only a privilege from arrest, but also from trial. The affirmative of both of these propositions was there adjudged, and the court, speaking by Mr. Justice Miller, in passing upon the questions, uses this language: "In order to reuder this provisjon (meaning section 6 of article 1 of the Constitution of the United States) available to the extent of its necessity, it will not do to construe the words 'privilege from arrest' in a confined or literal sense. A liberal construction must be given to these words upon principle and reason. It is just as necessary for the protection of the rights of the people that their representative should be relieved from absenting himself from his public duties during the session of Congress for the purpose of defending his private suits in court, as to be exempt from imprisonment on execu tion. If the people elect an indebted person to represent them, this construction of the Constitution must also be made to protect his rights and interests, although it may operate to the prejudice of his creditors; but the claims of the people upon his personal attendance are paramount to those of individuals, and they must submit."

In Anderson v. Rountree, 1 Pin. 115, the subject was more thoroughly reviewed and considered, reference upon the question of privilege being made to 5 Bac. Abr. 618; Tidd Pr. 257, and 1 Dunl. Pr. 92, and to the principal adjudged cases then extant, and it was held that the privilege from arrest secured to members of the legislative assembly not only exempted their persons from actual arrest, but also from suit or any civil process which might interfere with their public duties during the continuance of their privilege.

Thus it will be seen that the decisious are not entirely harmonious upon the question of the extent of the privilege in question; but it has been the law in this jurisdiction from territorial times that the priv ilege in such a case as that at bar extends to exemption from civil process, with or without actual arrest; and in the absence of more authoritative exposition of the constitutional provision from the Supreme Court of the United States, I shall hold that under that provision, the defendant, as a member of the Congress of the United States, was entitled to exemption from service of process upon him, although it was not accompanied with an arrest of his person, provided the privilege was in force at the time of such service.

2. This brings us to the second proposition involved, namely, was the defendant, when served with process, "going to" the capital to attend a session of the house of which he was a member, within the meaning of the constitutional provision? No fixed time is prescribed by the Constitution during which, before and after the close of the session, the privilege in question shall extend. The clause is: "During their attendance at the session of their respective houses, and in going to and returning from the same." It would be a superfluous task to go into all the old law on this subject as it once existed in England, when members of Parliament were allowed prescribed periods of exemp tion from arrest, before and after sessions of Parliament. An exhaustive review of the law, and of the English authorities, may be found in the case of Hoppin v. Jenckes, 8 R. I. 453, and nothing can be profit

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