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unlawful assault. And on the third point | The same general rule, under very similar there can be no doubt that the evidence giv-circumstances, is announced in the case of en at the former trial could be repeated with Charlesworth v. Tinker, 18 Wis. 633; the satisfactory correctness. As has been stated, syllabus being as follows: it was taken by the stenographer selected by these parties, and no complaint is made that her work was either unsatisfactory or inaccurate, or failed to present in accurate form all the testimony given by the witnesses. Neither can it be doubted that a sufficient reason is shown for not producing the

witnesses at the second trial. The record shows that both of these witnesses were dead at that time.

The rule allowing the class of secondary evidence involved here has been the subject of considerable discussion by law writers, and we are impressed with the statement of and we are impressed with the statement of Judge Chamberlayne in his work on Evidence, vol. 2, p. 1630:

"Indeed, it may fairly be said that, as originally devised and as practically applied, the rule is an administrative expedient for doing justice between litigants in a particular situation as a rational compromise between two well-known canons of judicial administration."

But coming to the exact point upon which there is reasonable ground for controversy, viz., Was there sufficient identity of parties? we find that in the text (Ency. Ev. vol. 5, p. 922) the admissibility, under the circumstances, is doubted, on the ground that the parties in the two causes are not sufficiently the same; but it is admitted that it is sometimes allowed.

We have examined the authorities cited under the point in the last-named work, and in our judgment they are fairly well balanced. The cases of Harger v. Thomas, 44 Pa. 128, 84 Am. Dec. 422, and Zelen v. Andrews, Moody & M. 336, 31 R. R. 736, are against the admissibility of the evidence. We also find McInturff v. Ins. Co., 248 Ill. 92, 93 N. E. 369, 140 Am. St. Rep. 153, 21 Ann. Cas. 176, against it. The case of Gavan v. Ellsworth, 45 Ga. 283, is in favor of the admissibility of the evidence, and is a case very similar to the one here, and exactly in point on the precise phase of the question involved. We quote paragraph 4 of the syl

labus:

"The testimony of a witness, since deceased, given before the magistrate on a commitment trial for an assault with intent to murder, may be used against the defendant in a civil suit for damages by the person injured."

"In a subsequent civil action by such complainant to recover damages for the same asby the defendant' showing what was said on sault and battery, evidence may be introduced the trial of such prosecution by a witness for the defense, subsequently deceased; the plaintiff having had opportunity to cross-examine such witness at the former trial."

And we excerpt from the body of the opinion the following:

"It seems, however, to be well settled by many of the authorities that it is not necessary, in order to admit such testimony, that it should have been given on the trial of a cause in the exact technical shape of the second action, or that the parties in this action should be literally or nominally the same with those on the trial of the first action. See the cases cited in Cowen & Hill's Notes to Phil. Ev. vol. 1, p. 389 et seq. (4th American Ed.); 1 Greenl. Ev. §§ 163 and 164. It appears to us that the true test in regard to the admissibility of such evidence is: Did the party, who is to be affected by it, have the power of cross-examining the witness, or at least have an opportunity of doing so? If the party had this power of cross-examining the witness on the former trial, and was legally called upon to do so, we can then see no danger or hardship in admitting the evidence in a subsequent suit after the decease of the witness."

We also find the sa..e rule announced by the Supreme Court of Iowa in the case of Kreuger v. Sylvester, 100 Iowa, 647, 69 N. W. 1059; a paragraph of the syllabus being as

follows:

was not error to admit the evidence of a wit"In a civil action for assault and battery, it ness taken in shorthand on the trial of defendant for assault to commit great bodily injury on plaintiff, involving the same assault, in which said witness was fully cross-examined, where the proper foundation was laid, and the reporter who took the notes testified at the civil trial as to what the witness said in the criminal trial."

And in the body of the opinion it is said: shorthand on the trial of the criminal case, and "It appears that the evidence was taken in the reporter who took it was present at this trial, and gave testimony as to what Meggitt said in the former proceedings. We think that if the proper foundation was laid, as we must assume it was, the evidence was admissible, for it appears that the witness Meggitt was fully cross-examined by counsel at the trial of the criminal case, and, although the parties are not precisely the same, yet such evidence is almost universally admitted. Greenleaf, Ev. § 164; Charlesworth v. Tinker, 18 Wis. 633, and cases cited; Bradner, Ev. p. 313; Code, § 3777. The admissibility of such evidence seems to turn on

And in the body of the opinion the court the right to cross-examine, rather than on the

say:

precise identity of the parties."

There seems to be, as will be observed from the above authorities, a growing tendency to make the test as to the admissibility of such evidence, depend upon the “right and opportunity to cross-examine." We think this test, most assuredly, should be applied, but not to the exclusion, or even to the diminution in value, of the other essentials, such as a reasonable identity of issues and par

"The issue is precisely the same, except that, in the criminal trial, the intent of the defendant was more prominently matter for consideration than here. And the parties were, for this purpose, substantially the same. The defendant was there in propria persona, and the plaintiff, the injured party, represented by his protector, the state. The authorities seem to make the matter turn upon the opportunity for cross-examination. This the defendant, against whom the testimony is now offered, had fully, on the commitment trial. See 1 Greenleaf, Ev., 88 183 to 187. See, also, United States v. Ma- ties, etc. And, upon applying all of the tests

evidence admitted in this case was properly admitted. The assaulted woman prosecuted the criminal charge, not in name, it is true, for all prosecutions must run in the name of the state. The offense is against the state and all the people thereof, actually as well as theoretically; all the people are aggrieved and are interested, at least theoretically, in the prosecution; but the victim of the assault has actually a greater interest, a personal present concern, in the prosecution and conviction of the assailant, at whose hands she has suffered. She takes her grievance to the law officer of the county, makes complaint under oath, and the criminal charge is filed by her protector, the state, in its name; the prosecuting witness, the assaulted person, has an interest in the prosecution, and, for all practical purposes, may be considered substantially a party thereto.

The mandate having gone down and been spread of record in the trial court, this court has lost jurisdiction of the cause, and on authority of Thomas v. Thomas, 27 Okl. 801, 109 Pac. 825, 113 Pac. 1058, 35 L. R. A. (N. S.) 124, 133, Ann. Cas. 1912C, 713, the motion is sustained, and the second petition for rehearing is stricken from the files.

PER CURIAM. Adopted in whole.

(44 Okl. 307)

HUCKINS HOTEL CO. v. HOOPER. (No. 3932.) (Supreme Court of Oklahoma. Oct 27, 1914. Rehearing Denied Nov. 24, 1914.)

(Syllabus by the Court.) INNKEEPERS (§ 11*)-Loss OF GUEST'S PROPERTY-BURDEN OF PROOF.

H., a traveling salesman, while a guest of defendant hotel, deposited with it for safe-keeping $390. It was not called for until about three or four weeks later. In the meantime he was a registered guest a part of the time, and part of the time he was away and not technicaljudg-ly a guest. The money could not be found when

The remaining points urged for a reversal do not require detailed discussion. The challenge to the sufficiency of the petition, as well as the objections to certain instructions given by the court, are not well taken. There was no substantial error committed, and the ment appears to have been a just one. The cause should be affirmed.

PER CURIAM. Adopted in whole.

(44 Okl. 285)

BRUSHA et al. v. BOARD OF EDUCATION OF OKLAHOMA CITY. (No. 2561.)

(Supreme Court of Oklahoma. Nov. 24, 1914.)

On motion to strike second petition for rehearing. Motion sustained.

GALBRAITH, C. For original opinion in this case see 41 Okl. 595, 139 Pac. 298. The defendant in error files motion to strike the second petition for rehearing from the files for the following reasons:

"The court is without jurisdiction to hear and entertain said second petition for rehearing, and has no jurisdiction of said cause, for the following reasons: Said cause was appealed from a judgment of the district court of Oklahoma County, Okl., to this honorable court, and on April 4, 1913 was by this court decided and an opinion rendered therein. After the decision of said cause in this court and the rendition of its opinion therein, the plaintiffs in error filed their petition for rehearing, within the time allowed by the rules of this court, which said petition for rehearing, after consideration by the court, was duly overruled on the 10th day of March, 1914, and the opinion of this court affirming said judgment of said district court of Oklahoma county, Okl., was thereupon duly promulgated, reported, and published in volume 139 of the Pacific Reporter, at page 298. After the overruling of said petition for rehearing on the 17th day of March, 1914, the mandate of this court was duly and regularly issued and transmitted to the trial court on the 18th day of March, 1914. Defendant in error further shows to the court that the decision in said cause and the order overruling the petition for rehearing therein, were made and entered without accident, fraud, inadvertence, or mistake."

demanded, and suit was brought for the amount deposited. Held, that the burden of proof was not on H. to show that he was a registered guest at the precise time the money was lost. [Ed. Note.-For other cases, see Innkeepers, Cent. Dig. §§ 3, 17-40; Dec. Dig. § 11.*]

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; John J. Carney, Judge.

Action by Joseph O. Hooper against the Huckins Hotel Company, a corporation. Judgment for plaintiff, and defendant brings

error. Affirmed.

B. O. Young, of Oklahoma City, for plaintiff in error. David N. Taylor, of Oklahoma City, for defendant in error.

BREWER, C. Joseph O. Hooper brought this suit, as plaintiff below, against the Huckins Hotel Company, a corporation, as defendant, to recover $390, which he had deposited with the defendant for safe-keeping. A judgment for said sum was rendered, on the verdict of a jury in his favor, from which the defendant appeals.

The appellant, as a premise for the argument in its brief, says:

"We contend that there is only one proposition in this case, and that is: Was the plaintiff a guest at the time the package was lost? And this proposition naturally divides itself into two questions, namely: First, when was the package lost? And, second, was the plaintiff a guest at that time?"

Plaintiff's evidence, which is not contradicted, discloses that he is a traveling man, representing an Eastern firm, and that on March 11, 1911, he came to Oklahoma City and registered at the Lee-Huckins Hotel, and took therein his trunk; that he stayed over Sunday, and on Monday paid his bill and

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 144 P.-12

ting up a printed notice in a prominent place that he keeps such a safe and will not be liable in the room occupied by the guest or boarder, for money, jewelry, documents or other articles of unusual value and small compass unless placed therein, he is not liable, except so far as his own acts contribute thereto, for any loss of, or injury to, such, article, if not deposited with him, and not required by the guest or boarder for present use."'

The question of exemption from liability under the statute above quoted is not involved in this case, for it seems to be admitted that the notice had been given under the statute, and that plaintiff had fully complied with the notice by making the deposit of his money with the defendant. Neither is there any claim that the plaintiff was in any way negligent or had anything to do with the loss of his money.

made arrangements to have a room reserved | guest or boarder, either personally or by putfor him either Friday or Saturday of the same week, and for his trunk to remain at the hotel in its care, and directed that all mail that he might receive should come to the hotel. This arrangement continued, or rather was repeated weekly, from the time he first came to the hotel up to May 19th. He was actually in the hotel nine periods during the time mentioned, his trunk remaining there throughout the entire time; he either being an actual guest present in the hotel, or with a room reserved for the next Saturday, for which he was liable during the entire time mentioned. About the middle of April, on either the 14th or the 21st, while he was present and a guest, he went to the cashier's window and informed her that he had a larger amount of money than he ought to carry with him; that he wanted to leave same in the hotel vault or safe for safe-keeping. He counted the money and thought it was $370, was $370, pushed it through the wicket into the cashier, and she counted it and made it $390. Plaintiff then recounted the money and found it was $390, pushed it back to the cashier, and she took it, put in a patent envelope, sealed it, and detached and gave to him a receipt for the About the 19th of May the plaintiff, being in the hotel and a registered guest, asked for his package of money and exhibited his receipt. The cashier took the receipt, went to the vault to get the package, but later returned and informed plaintiff that it could not be found. Later plaintiff made formal demand for the money, but it

was never restored to him, and this suit resulted.

Much of tue argument of appellant is directed to the proposition that the plaintiff, upon each recurring visit to the hotel, ceased to be a guest when he checked out on Monday morning, and that the relation did not exist while he was away, but would be reestablished at the week-end when he was actually in the hotel, and appellant says, therefore, that plaintiff's evidence fails to make a case in that it does not affirmatively prove that the loss occurred when he was a guest in the hotel; in others words, that the burden was on plaintiff, not only to prove all that he did prove, but to go further and affirmatively show that the property was lost when he was a guest, and, not having done so, that his case fails for want of proof. We do

not believe that this burden rested upon him. Even assuming for the purpose of the argument, but without so deciding, that plaintiff would not be a guest from Monday morn

The defendant admits that it received the The defendant admits that it received the money in the amount stated and gave a receipt as claimed, and that it has not restoring until Friday or Saturday when he reed the money, but defends on the theory that, at the time the money was lost, the relation of innkeeper and guest had been terminated between the parties, and that therefore it was not liable as an innkeeper. Section 1113, Rev. L. 1910, is as follows:

"An innkeeper or keeper of a boarding-house is liable for all losses of, or injuries to, personal property placed by his guests or boarders under his care, unless occasioned by an irresistible superhuman cause, by a public enemy, by the negligence of the owner, or by the act of someone whom he brought into the inn or boardinghouse; and upon such property the innkeeper or keeper of a boarding-house has a lien and a right of detention for the payment of such amount as may be due him for lodging, fare, boarding, or other necessaries by such guest or boarder; and the said lien may be enforced by a sale of the property in the manner prescribed for the sale of pledged property."

This statute practically makes the innkeeper an insurer of the property of his guests placed under his care, but certain exemptions from liability may be availed of by the innkeeper by complying with section 1114, Rev. L. 1910, which is as follows:

"If any innkeeper or boarding house keeper

The

turned, we do not believe that the burden was cast upon him to show that his money was lost by the defendant at a time when he was actually in the hotel as a guest. plaintiff knows nothing about, and in the very nature of things could know nothing about, the loss of his money or how or just when it occurred. If anybody knows anything about how the hotel lost this money or when it occurred, it must be the hotel managers. They ought at least to know something about it and be able to give some explanation of the very unusual occurrence.

We have not found any case directly in point on this question, wherein the facts are the same, but it seems to be unquestioned that where the relation of innkeeper and guest has been created, and the question arises as to whether the relation has been terminated, the burden is on the innkeeper to show such fact (Beale on Innkeepers and Hotels, 105), and likewise where an innkeeper has made a misdelivery of the goods of a departing guest, so that they are lost, the burden is on the innkeeper to explain the

(Beale on Innkeepers and Hotels, 206, and the relation of guest and innkeeper had been cases cited).

In this case the defendant offers no word of explanation as to how the loss occurred. It does not make a suggestion, or even hazard a guess, as to how it might have happened. It stands in the attitude of saying: Yes, we are an innkeeper, and you were our

terminated was on the defendant. The case should be affirmed

PER CURIAM. Adopted in whole.

(44 Okl 246)

ALFREY V. COLBERT et al. (No. 3599.)

guest when you deposited your money, and, (Supreme Court of Oklahoma. Nov. 17, 1914.)

had you demanded its return while you were our guest, we were insurers and would have been liable to you; but since there was a portion of the time, between the time of

the deposit and the demand for it, in which you were not in fact our guest, therefore you have not shown us liable for your money, because you have not shown affirmatively that we lost it during the time you were actually with us. This will not do. It is just as probable as otherwise that this money was lost while the plaintiff was an actual guest in the hotel. We think it is more probable than otherwise. The defendant took great pains to show that packages of this kind were put in a concrete-steel vault, which had a steel door, locked with a key, and inside an inner steel chamber, which had two keys to open it; that these keys were kept by the clerk; that packages of this kind were received by the cashier at her cashier's cage and were immediately turned over to the clerk, or his assistant, to be placed in the vault. Neither the hotel proprietor nor the cashier in this particular instance remember a single thing about the transaction. The cashier admitted her signature to the receipt, but all recollection of the transaction of receiving the money, the handling of it. the counting and recounting of it, as testified to by the plaintiff, had passed from her mind; but she united with the proprietor in saying that the package must have been handled in the usual way, as has been above set out. Now it is clear that if the package was handled in the usual way and was put, by the clerk, in this steel box under two locks, in the vault under another lock, all of the keys of which are in the custody of the hotel, that it was not lost at all, but was misappropriated by some trusted employé. There is no suggestion by the defendant, and we would not like to assume, that any of the employés were dishonest and stole the money; therefore it would seem more probable that the money never got into the strong box, but possibly, after having been received by the cashier, was temporarily laid aside and stolen by some one not connected with the hotel. If such was the case, the money was lost while the plaintiff was a registered guest, and there could be no question of liability; but, be this as it may, we are content to simply hold that, under the facts of this case, the plaintin's evidence was sufficient, and that the burden of showing, if it could show such, that the package was lost after

(Syllabus by the Court.)

1. JUDGMENT (§ 540*) - "RES JUDICATA” — REQUISITES OF PLEA.

judicata, the following elements should be apIn order to constitute a good plea of res parent: First, the parties or their privies must be the same; second, the subject-matter of the action must be the same; third, the issues must be the same, and must relate to the same subject-matter; fourth, the capacities of the persons must be the same in reference to the subject-matter and to the issues between themand where these elements are clearly apparent, the plea should be sustained.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1079; Dec. Dig. § 540.*

For other definitions, see Words and Phrases, First and Second Series, Res Adjudicata.] 2. JUDGMENT (§ 713*) - CONCLUSIVENESS MATTERS CONCLUDED.

diction delivered upon the merits of a cause A judgment of a court of competent jurisis final and conclusive between the parties in a subsequent action upon the same cause, not only as to all matters actually litigated and determined in the former action, but also as to every ground of recovery or defense which might have been presented and determined therein.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1063, 1066, 1099, 1234-1237, 1239, 1241, 1247; Dec. Dig. § 713.*1 3. JUDGMENT (§ 958*)-RES JUDICATA-QUESTION OF LAW.

When a former judgment is set up as a bar or estoppel, the question whether there is such an identity of the parties and of the subjectmatter or cause of action as will support the plea of res judicata is a question of law for the court when it is determinable from an inspection of the record.

Cent. Dig. §§ 1827-1829; Dec. Dig. § 958.*] [Ed. Note.-For other cases, see Judgment,

Commissioners' Opinion, Division No. 2. Error from District Court, Rogers Count T. L. Brown, Judge.

Injunction by R. J. Alfrey against Perry Colbert and another. Judgment for defendants, and plaintiff brings error.

Affirmed.

Jesse W. Watts and Chas. G. Watts, both of Wagoner, and Alvin F. Molony, of Muskogee, for plaintiff in error. Henry M. Brown and Robert F. Blair, both of Wagoner, for defendants in error.

HARRISON, C. This was an action by R. J. Alfrey against Perry Colbert, a Creek freedman, and his guardian, James A. Harris, to enjoin the sale of a portion of the lands allotted to such freedman, which lands, upon petition of his guardian, had been ordered to be sold by the county court; the plaintiff alleging that he was the legal and equitable owner by virtue of a deed executed

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

to him by Colbert July 10, 1906, and that the sale of such lands by order of court constituted a cloud on plaintiff's title. Wherefore he prayed that such sale be enjoined. The defendant Colbert, through his guardian, Harris, answered plaintiff's petition by denying specifically every allegation not admitted, and filed a cross-petition against plaintiff setting up a former judgment and decree of the United States Circuit Court of Appeals, wherein the rights of the plaintiff in error and Colbert to the tract of land in question were alleged to have been finally adjudicated, and praying for the dismissal of plaintiff's petition and for costs and damages, and that plaintiff be enjoined from further interfering with the disposition of Colbert's land. Plaintiff replied, admitting, in substance, that the decree of the federal court pleaded by defendant in his answer had the effect of adjudicating the rights between plaintiff and Colbert in reference to the land in question as evidenced by two former deeds, but contending that such decree did not have the effect of adjudicating the issues presented in the case at bar, for the reason that plaintiff had a later deed. When the cause came on for trial, defendant moved for judgment on the pleadings, which motion was sustained by the court on the theory that all rights be tween the plaintiff and Colbert in reference to the land in question had been determined by the United States District Court and on appeal by the United States Circuit Court of Appeals for the Eighth Circuit (168 Fed. 231, 93 C. C. A. 517), and that the doctrine of res judicata was applicable, and from such judgment the plaintiff appeals.

Nation and enrolled on the freedman roll thereof; that on April 25, 1904, the plaintiff, todefendant Perry Colbert, with covenants of gengether with one G. D. Carl, took a deed from eral warranty to said lands; that on July 28, 1904, the said Perry Colbert, by his father and next friend, James Colbert, began an action in the United States Court for the Western District of the Indian Territory at Wagoner against the plaintiff herein and said G. D. Carl, to cancel and set aside said deed for the reaand was ignorant, uneducated, unable to read son that the said Perry Colbert was a minor or write, and was of weak and feeble mind and memory, and that the consideration paid for said deed was grossly inadequate; that on NoD. Carl obtained another deed from said Perry vember 21, 1905, the plaintiff herein and said G. Colbert to said land, containing covenants of general warranty; that plaintiff who was one of the defendants in that action, claimed to be the owner of said land under and by virtue of the deed first executed and under and by virtue of the deed last mentioned, and claimed all right, title, and interest in and to said land by virtue of said deeds, and also the right of possession thereto; that upon the issues thus formed, said action was tried, and the court canceled and set aside said deeds, and enjoined the defendants, said R. J. Alfrey and G. D. Carl, from conveying said land and from in any wise clouding the title thereto; that said case was taken to the United States Circuit Court of Appeals for the Eighth Circuit, where the defirmed, said court holding, in its opinion, that cree of the trial court was modified and afsaid deeds were void, and that the defendants in that action, said R. J. Alfrey and G. D. Carl, had no right, title, or interest in or to said land said Perry Colbert, ought not to be required to by virtue of said deeds, and that the plaintiff, pay said defendants the amount of money paid to him for said deeds, and adjudged against the defendants in that action the costs of said suit. "The court further finds that the decree of the chancellor was made and entered in that action on July 23, 1906, and that on said date, and long prior thereto, the plaintiff in this the third deed to said land, which he had prosuit, said R. J. Alfrey, had in his possession cured from said Perry Colbert to the same land as described in his first two deeds, but which, by misdescription, appeared to be different land; that said third deed was delivered to the plaintiff, R. J. Alfrey, on July 10, 1906; The history of the facts involved and is- and that said deed was not set up in any pleadsues determined, both in the former judging before the United States court and was not ment and decree and in the case at bar, is well stated in the finding of facts and decree of the trial court in this case as follows: "Now on this 16th day of August, A. D. 1911, came on regularly to be heard the above-entitled cause upon the petition of plaintiff, the answer and cross-petition of defendants, and the reply thereto by plaintiff, and thereupon the plaintiff appeared by his attorney, Charles G. Watts, and the defendants appeared by their attorneys, Blair and Brown, and all parties announced ready for trial; whereupon, the defendants, by permission of the court, filed their motion for judgment upon said pleadings; and the court, having heard the argument of counsel, and having read and fully considered and understood the authorities cited by them, is of the opinion that said motion is well taken and ought to be

Two material propositions are presented: First, whether the doctrine of res judicata was applicable under the state of the pleadings; second, whether the defendants were entitled to judgment on the pleadings.

sustained.

"The court further finds that the land described in plaintiff's petition-to wit, the south half of the northwest quarter, less 85/100 acres occupied as a right of way by the Kansas & Arkansas Valley Railway Company, and lots 5 and 6 of section 4, township 19, range 17 east of Indian base and meridian, lying and being in Rogers county, Okl.-was a part of the allot

called to the attention of the court.

"The court further finds that the judgment and decree of the Circuit Court of Appeals of the Eighth Circuit finally adjudicated and determined as between said R. J. Alfrey and said Perry Colbert their respective rights to the property, and that the plaintiff in this suit, said R. J. Alfrey, is bound by that decree, and is estopped in this suit to set up any title to said land.

"The court further finds that the subjectmatter of this action is the same as the subjectmatter in that action, and the parties to this suit are the same as the parties to that suit, and that judgment should be rendered in favor of the defendant Perry Colbert."

Whereupon the court entered judgment in favor of Perry Colbert, and perpetually enjoined Alfrey, his agents, servants, employés, and attorneys, and each of them, from interfering with the defendant's right of possession and right to use, keep, and occupy and sell said land or any part thereof, and further enjoined plaintiff from instituting any suit with the object of clouding the title to said

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