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March 1, 1907, Stats, and Amdts. 1907, p. 87, Kerr's Stats, and Amdts.
1906-7, p. 513; April 26, 1911, Stats, and Amdts. 1911, p. 1135; May 26,
1917, Stats, and Amdts, 1917, p. 954. In effect July 27, 1917.

PRIVILEGED COMMUNICATIONS.

of an attorney does not render, the com1. Under subdivision 1-Husband and wife. munication attending it privileged, and 2. Under subdivision 2-Construction of the same may be testified to by him as by "communication."

any other agent.--Ferguson v. Ash, 27 Cal 3-5. --Attorney and client.

App. 375, 150 Pac. 657. 6. --When not privileged.

7. Under subdivision 4-Physician and 7. Under subdivision 4-Physician and surgeon.-In an action to recover for persurgeon.

sonal injuries in a negligence case an in

struction given at the defendant's request 1. Under subdivision 1-Husband and

in which after stating that, by reason of wife.In an action to have a trust declared

privilege defined herein, the physicians who in certain real estate conveyed to the de

had attended the plaintift could not testify fendant by his wife shortly before her death

without his consent, it charged that if the it is not error to refus to permit the de

plaintiff had failed to call them as witnesses, fendant to testify as to conversations oc

and showed no reason for such failure, the curring between himself and his wife at the

law presumed that their testimony would time of the execution of the deeds to him.

have been against him, is erroneous.--Cook McIntosh v. Hunt, 29 Cal. App. 779, 157 Pac.

v. Los Angeles R. Corp., 169 Cal. 113, 145 Pac. 839.

1013. 2. Under subdivision 2-Construction of “communication.”—The word "communica- 8 1884. tion" means not only mere words uttered

1. Interpreter.—The propriety of calling but includes the attorney's knowledge of

an interpreter and the fitness of the person acts as well.-Ex parte McDonough, 170 Cal.

so called are matters for the trial court.230, Ann. Cas, 1916E 327, L. R. A. 1916C 593,

People v. Valencia, 27 Cal. App. 407, 150 149 Pac. 566.

Pac. 68. 3. —Attorney and client.--The rule of privileged communications between attor- $ 1902. ney and client does not apply in litigation,

1. Evidence as to laws of another state after the client's death, between parties, all

-Witness need not be lawyer.-Oral testiof whom claim under the client.-Smith v.

mony may be given by any witness who is Smith, 173 Cal. 724, 161 Pac. 495.

skilled therein and he need not have prac4. An attorney at law who has been re

ticed law or been a professor of law. The tained to represent certain persons in con- fact that he was not a lawyer would go to nection with any and all investigations that

the weight of the testimony and not to its were being made or that might be made as

competency.-Estate of Faber, 168 Cal. 491, to their participation in certain alleged

143 Pac. 737. election frauds and violations of the election laws, can not be compelled, without their $ 1908. consent, to testify before the grand jury

EFFECT OF JUDGMENT UPON RIGHTS. as to whether or not he was employed by them to defend certain other persons who

1, 2. As bar to future proceedings. had been indicted by the grand jury for par

3–16. Conclusiveness as to parties and priticipation in such election frauds,

vies (subd. 2).

or whether or not they furnished the bail

1. As bar to future proceedings.--In ormoney which he deposited for their release, der that a former judgment be a bar to for such questions called for "communica- future proceedings, it must appear that such tions" received by the attorney from his judgment necessarily involved the deterclient, concerning which he can not testify mination of the same fact to prove or diswithout the client's consent.–Ex parte Mc- prove which it is pleaded or introduced in Donough, 170 Cal. 230, Ann, Cas. 1916E 327, evidence. It is not enough that the question L. R. A. 1916C 593, 149 Pac. 566.

was one of the issues in the former suit; it 5. The rule that an attorney is not privi- must appear to have been precisely deterleged from disclosing by whom he was em- mined.—Purcell v. Victor Power & Min. Co., ployed is inapplicable to such a case,

since

29 Cal. App. 503, 156 Pac. 1009. the sole purpose of such questions is to ob- 2. The fact that the plaintiff in the prestain proof of admissions of the clients tend- ent action acquired title to the property in ing to show complicity in the very crimes on question after issue joined and before judgaccount of which the attorney was employed ment in the action in ejectment does not to defend them.-Ex parte McDonough, 170 make such judgment conclusive upon him, Cal. 230, Ann. Cas. 1916 E 327, L. R. A. 1916C where the acquisition of such property was 593, 149 Pac. 566.

not set up by supplemental answer therein. 6. --When not privileged.—There are -Purcell v. Victor Power & Min. Co., 29 many cases in which an attorney is em- Cal. App. 503, 156 Pac. 1009. ployed in business not properly professional 3. Conclusiveness as to parties and priand where the same might have been trans- vies (subd. 2).- A successor of the assignee acted by another agent. In such cases the of a certificate for the purchase of state fact that the agent sustains the character land, which was afterward canceled, who v. Kraus, 51 Cal. Dec. 154, 155 Pac. 838. 13.

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acquired his interest after injunctive judg- gage, and subsequent dismissal of the action, ment had been rendered and with notice, is does not conclude the defendant herein from bound by such injunctive judgment.-Lake relying upon the judgment in the action of v. Superior Court, 165 Cal. 182, 131 Pac. 371. ejectment or from asserting that such deed

4. The successor in interest of the origi- was not a mortgage, where the evidence of nal defendant in action to enjoin the the original transaction shows that such latter from diverting waters is bound by a deed was deposited with a third party to be judgment in favor of the plaintiff to the held for a certain time, and if the debt for same extent as the original defendant be- which it was given as security was not then fore the transfer of its property.—Gale V. paid, the deed was to be delivered to the Tuolumne County Water Co., 169 Cal. 46, mortgagee in full satisfaction of the in145 Pac. 532.

debtedness.-Simon v. McCoy, 28 Cal. App. 5. Parties to a judgment are not bound 523, 153 Pac. 406. by it in a subsequent action unless they

14. Where a court has jurisdiction, mere were adverse parties in the original action. error in its judgment will not vitiate the

-Robson v. Superior Court, 171 Cal. 588, decree to the extent of rendering it vulner154 Pac. 8.

able to collateral attack. Nor does the fact 6. The bar of former adjudication can be

that error appears upon the face of the deraised only between those who were adverse

cree alter or change the rule.-Rountree v. parties in the former suit, and the judgment

Montague, 30 Cal. App. 170, 157 Pac. 623. in the former suit settles nothing as to the

15. A right, question or fact definitely relative rights or liability of the codefend- put in issue and directly determined by the ants as between themselves, unless their court of competent jurisdiction as a ground conflicting claims were put in issue by cross

of recovery can not be contested in a subpetition or adverse answers and were actu

sequent suit between the same parties or ally litigated and adjudicated.-Robson v.

their privies.—People v. Bailey, 30 Cal. App. Superior Court, 171 Cal. 588, 154 Pac. 8. 581, 158 Pac. 1036. 7. A judgment is conclusive between the

16. A judgment or decree necessarily afparties not only upon the matters actually

firming the existence of any fact is conclulitigated but upon every ground of recovery.

sive upon the parties or their privies, when--Erving v. Goodman, 171 Cal. 569, 153 Pac.

ever the existence of that fact is again an 945.

issue between them, not only when the sub8. Identity of the issue involved and

ject-matter is the same, but when the point identity of the parties are the two essential

comes incidentally in question in relation to requirements to a valid plea of res adjudi

a different matter, in the same or any other cata.--Rauer v. Rynd, 27 Cal. App. 556, 150

court, except on appeal or other proceeding Pac. 780.

provided for its revision.-Atchison, T. & S. 9. Where it does not appear from the

F. R. Co. v. Nelson, 220 Fed. 53. record that the cause of action in the former suit was identical with that in the action § 1910. in which it is pleaded in bar, the fact may 1. Identity of parties - Construction.be proved by evidence aliunde.-Rauer v. The expression in section 1910 of the Code Rynd, 27 Cal. App. 556, 150 Pac. 780.

of Civil Procedure, "and a judgment or other 10. If a particular point or question is determination could in that case have been in issue in the second action, and the judg- made between them alone,” relates to and ment will depend upon its determination, a qualifies section 1909, not section 1908.former judgment between the same parties Atchison, T. & S. F. R. Co. v. Nelson, 220 will be final and conclusive in the second Fed. 53. if the same point or question was in issue and adjudicated in the first suit, otherwise

$ 1911. not.-Rauer v. Rynd, 27 Cal. App. 556, 150

JUDGMENT. Pac. 780.

1-4. As to what deemed adjudged by. 11. Where the right, title or ownership

5, 6. Estoppel by. of property is directly put in issue, whether by the pleadings or the course of the liti- 1. As to what deemed adjudged by.-The gation, and is tried and determined, the general rule that a judgment is conclusive, judgment is conclusive thereon in all fur- not only as to that which is actually dether litigation between the same parties or termined, but also as to every other matter their privies, whatever may have been the which the parties might have litigated in nature or purpose of the action in which the action, is not always applicable literally. the judgment was rendered or of that in -Brown v. Brown, 170 Cal. 1, 147 Pac. 1168. which the estoppel is set up.-Rauer

2. Where, in an action involving a partRynd, 27 Cal. App. 556, 150 Pac. 780.

nership, the prayer of the complaint is for 12. A judgment in action in which a dissolution of the firm and appointment of the title to a chattel was directly in issue a receiver to sell the property and out of and adjudicated is conclusive on that point the proceeds pay the partnership debts, dibetween the parties and their privies, with- viding the balance, if any, between the out regard to the form or purpose of the partners, the judgment will not be a bar to action.--Rauer v. Rynd, 27 Cal. App. 556, 150 a subsequent suit for an accounting.-Miller Pac. 780.

The filing of a complaint in an action 3. That a former judgment may be a bar for the foreclosure of such deed as a mort- to future proceedings, it must appear that

V.

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such judgment necessarily involved the de- was tried and determined by such court. Intermination of the same fact to prove or stancing what intrinsic fraud consists of, disprove which it is pleaded or introduced our supreme court has said that it may rein evidence. It is not enough that the ques- sult from (1) keeping the unsuccessful party tion was one of the issues in the former away from the court by a false promise of suit, but it must appear to have been pre- a compromise; (2) purposely keeping him in cisely determined.-Purcell v. Victor Power ignorance of the suit; (3) where an attorney & Min. Co., 29 Cal. App. 504, 156 Pac. 1009. fraudulently pretends to represent a party

4. That only is deemed to have been ad- and connives at his defeat; (4) being regujudged in a former judgment which appears larly employed, corruptly sells out his upon its face to have been so adjudged, or client's interest. In instances of this charwhich was actually and necessarily included acter, the defrauded party is prevented by therein or

necessary thereto.—People the act of his adversary from having a Bailey, 30 Cal. App. 581, 158 Pac. 1036.

trial.—Rountree v. Montague, 30 Cal. App. 5. Estoppel by.It is not the finding of 170, 157 Pac. 623. the court or the verdict of the jury which concludes the parties but the judgment en- 1917. tered thereon; in other words, the force of

1. Jurisdiction necessary to judgment, an estoppel by judgment resides in the judg

what is.-Jurisdiction is the power to hear ment itself.-Purcell v. Victor Power & Min.

and determine, and it does not depend upon Co., 29 Cal. App. 504, 156 Pac. 1009.

the correctness of the decision made.6. The plea of res judicata applies, except in special cases, not only to points upon

Rountree v. Montague, 30 Cal. App. 170, 157

Pac. 623. which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which

1936. properly belonged to the subject of litiga- 1. Map as evidence.—The form and limtion, and which the parties, by employing its of a military reservation, as fixed by the reasonable diligence, might have brought government, may be shown by a map of a forward at the time.--Atchison, T. & S. F. survey of the reservation made by officers R. Co. v. Nelson, 220 Fed. 53.

of the war department and filed therein.

Burk v. Howe, 171 Cal. 242, 152 Pac. 435. 8 1915.

1. Foreign judgments, effect of.—Courts 8 1937. need only give to a foreign judgment the 1. Books must be produced.-In an action same force and effect which is given to by the seller of hops to recover damages those of our own courts, and may therefore

from the buyer for his breach of contract, a in an equitable proceeding inquire whether

witness should not be allowed to testify it was acquired by fraud, although valid on

from figures compiled from the books of the its face.-Title Ins. & Trust Co. v. California

seller, where the books themselves are acDevel. Co., 171 Cal. 173, 152 Pac. 542.

cessible and unaccounted for. In such cir2. A judgment which operates in person- cumstances the books themselves afford the am against shareholders in a Mexican cor

primary evidence of their contents.—Pabst poration but which does not determine title

Brewing Co. v. E. Clemens Horst Co., 229 to the corporation and the property, is not Fed. 913. objectionable as overthrowing the judgment of a foreign court contrary to section 1915

§ 1943. of the Code of Civil Procedure.—Title Ins. & Trust Co. v. California Devel. Co., 171 Cal.

1. Evidence of handwriting Construc174, 152 Pac. 542.

tion of section.--Under section 1943 of the 3. Where a court of this state distributes

Code of Civil Procedure, the testimony of a an estate to the heirs "in trust," a judgment

witness that he has seen the defendant in of a court in Illinois adjudging that prop

a perjury case write and is of the opinion erty of the estate in that jurisdiction be sold

that a signature to the document in question to the heirs is res judicata and not subject

is his, is some evidence that he subscribed to collateral attack in California.-Plant v.

the document.-People v. McLeod, 30 Cal. Plant, 171 Cal. 765, 154 Pac. 1058.

App. 435, 158 Pac. 506. 4. Jurisdiction of a court of a foreign state to render a judgment is always open 8 1959. to collateral attack in a proceeding in an- 1. Presumption distinguished from inferother state, and the record of the judgment

ence.-The difference between an evidenin the foreign state may be contradicted as

tiary presumption and an evidentiary inferto the fact necessary to give the court jur

ence is this: That, when the law requires isdiction.-Steinbroner v. Steinbroner, 30

the jury to draw a certain designated conCal. App. 673, 159 Pac. 235.

clusion from particular evidence, that con

clusion so forced upon the jury is a pre8 1916.

sumption. Where mandatory presumptions 1. Impeachment of record for fraud.-A are not exacted, it is the right and duty of judgment or decree of a court of competent the jury to draw such reasonable inferences jurisdiction can be set aside for fraud only from the evidence as may appeal to and when the fraud alleged is shown to be ex- satisfy their minds.-Thomas v. Visalia Elec. trinsic or collateral to the matter which R. Co., 169 Cal. 658, 147 Pac. 972.

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§ 1960.

the fact against the presumption, it still re

mains with the jury to say whether or not 1. Inferences.--An appellate court has not

the fact has been proved; and if they are the right of drawing its own inferences

not satisfied with the proof offered in its from admitted probative facts, unimpeded by the conclusions of the trial court, where

support, they are at liberty to accept the

evidence of the all the evidence is brought up on an appeal

presumption.—Pabst from order denying a motion for a

Shearer, 172 Cal. 239, 156 Pac. 466. new trial, for to do so would be for

3 1962.
the appellate court to make findings of
fact; if

finding
a
of fact is

1.
based

Conclusive presumptions-Intent of acupon reasonable inference, it is not

cused (subd. 1).-An instruction to the jury within the power of the appellate court

based upon subdivision 1 of section 1962 of to set it aside any more than it is within its

the Code of Civil Procedure that there are power to set aside any other findings sup

certain presumptions of law regarding a ported by sufficient legal evidence, as a find.

person's intent, and among them is the ing of fact based upon reasonable inference

one that a guilty intent is conclusively predrawn from facts proved with legal suff

sumed from the deliberate commission of an ciency, is as much and as completely as is

unlawful act, for the purpose of injuring any other finding of fact a finding based

another, is not sufficiently prejudicial as to upon good and sufficient evidence.-Ryder v.

call for a reversal.-People v. Dunlop, 27 Bamberger, 172 Cal. 753, 158 Pac. 753.

Cal. App. 460, 150 Pac. 389.

2. 2. The inference of one fact from others,

In a prosecution for libel, based upon unless such fact is a necessary conclusion

a letter written by the defendant containing from those others, must be made by the

a charge of forgery against an attorney, trial court, and, if the facts that it has

where the defendant upon the trial not only found are such as might authorize different

made no effort to prove the truth of the asinferences therefrom, it will be assumed

sertion, but expressly admitted the charge that the inference made by the trial court

of forgery was untrue, the trial court propwas one that will uphold, rather than de

erly excluded from evidence documents infeat, its judgment.--Spoon v. Sheldon, 27 Cal.

cluding certain letters which passed between App. 765, 151 Pac, 150.

himself and the attorney while the latter 3. The assumption of a fictitious name by

was acting for defendant in certain litigaone accused of crime is circumstance

tion, which letters and documents defendant

a which the jury may consider a strengthen

contended were admissible as tending to ing of any inference of guilt arising from

show his intention in uttering the libel, and other established facts.-People v. Cox, 29

as proving it was published with good moCal. App. 419, 155 Pac, 1010.

tives and justifiable ends, as the defendant, 4. When person suspected

in uttering the libel, engaged in the delibof and

erate commission of an unlawful act for the charged with crime resorts to deception and falsehood, that is a circumstance which,

purpose of injuring another, from which, like flight and concealment, tends to show

under section 1962 of the Code of Civil Pro

cedure, a malicious and guilty intent is cona consciousness of guilt,

and

thereby strengthens any inference of guilt arising

clusively presumed.-People v. Pryal, 25 Cal. from other established facts.-People v. Cox,

App. 779, 147 Pac. 114, 115.

3. 29 Cal. App. 419, 155 Pac. 1010.

In such a case, where the proffered

evidence tended to show that difficulties had 5. The findings of the trial court are to receive such a construction as will uphold

arisen between the defendant and the atrather than defeat its judgment thereon;

torney, over the latter's conduct during cer

tain legal proceedings, resulting in an effort and whenever from the facts found other

on the part of the defendant to discharge facts may be inferred which will support the judgment, such inference will be deemed

his counsel, such evidence, instead of show

ing that the motive for publishing the willto have been made by the trial court.

ful defamation was an innocent one, would Cooley v. Brunswig Drug Co., 30 Cal. App.

rather tend to strengthen the presumption 58, 157 Pac. 13.

that the publication was inspired by ill will

and was malicious.-People v. Pryal, 25 Cal. $ 1961.

App. 779, 147 Pac. 114, 115. 1. Presumptions - Controverting. Pre- 4. -Estoppel (subd. 3).-One is culpable sumptions are evidence, and sometimes re- who by his silence leads another to believe quire clear and convincing evidence to over- in the existence of a state of facts in relicome them.-Hitchcock v. Rooney, 171 Cal. ance upon which the other acts to his preju285, 152 Pac. 913.

dice. Such person is estopped by silence, 2. A presumption declared by statute, al- But there must be something willful or culthough disputable, is itself evidence, and it pable in the silence, which allows another is for the trial court to say whether the evi- to place himself in an unfavorable position dence offered to overthrow the presumption on the faith or understanding of a fact has sufficient weight to effect that purpose. which the person remaining silent can con-Pabst v. Shearer, 172 Cal. 239, 156 Pac. tradict.-Eltinge v. Santos, 171 Cal. 279, 152 466.

Pac. 915. 3. Against a proved fact, or a fact ad- 5. An estoppel can not exist where the mitted, a disputable presumption has no knowledge of both parties is equal and weight, but where it is undertaken to prove nothing is done by the one to mislead the

a

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other.-Eltinge v. Santos, 171 Cal. 279, 152 course. -People v Woodson, 29 Cal. App. 531, Pac. 915.

156 Pac. 378.

9. Marriage from deportment.This pre§ 1963.

sumption can have no force where it appears DISPUTABLE PRESUMPTIONS.

that the only attempt to enter into a law1. As to character of suppressed evidence.

ful marriage was in fact illegal and void.2. Death from seven years' absence.

Estate of Elliott, 165 Cal. 339, 132 Pac. 439. 3. Idem sonans. 4, 5. Indorsements.

8 1973. 6. Innocence of crime.

STATUTE OF FRAUDS. 7. Judicial records.

1, 2. Construction and application-In gen8. Legitimacy.

eral. 9. Marriage from deportment.

3, 4. Subdivision 1. 1. As to character of suppressed evidence.

5-10. —Subdivision 4. --It is a satisfactory presumption that evi

11, 12.

-Subdivision 6. dence willfully suppressed would be adverse

13, 14. -Subdivision 7. if produced.—Estate of De Laveaga, 6 Cof.

15, 16. Statute must be specially pleaded. Prob. Dec. 55.

1. Construction and application-In gen2. Death from seven years' absence.—The eral.—The statute of frauds is simply a presumption does not fix the date of death weapon of defense which the party entitled at any particular time, but merely at some thereto may or may not use.-Healy v. time during the interval. -Benjamin v. Dist. Obear, 29 Cal. App. 696, 157 Pac. 569. Grand Lodge No. 4, I. O. B. B., 171 Cal. 260, 2. The statute of frauds has no applica152 Pac. 731.

tion to executed oral agreements.-Frietas 3. Idem sonans.—The name Dimetra may v. Frietas, 31 Cal. App. 16, 159 Pac. 611. be said to mean the name Demetra and falls

3. -Subdivision 1.—The statute does not within the rule of idem sonans, and this

declare invalid a contract which may not be subdivision is then applicable.—Bruschi v.

performed within a year, or which is not Cooper, 30 Cal. App. 682, 159 Pac. 728.

likely to be performed within that period, Indorsements.-An indorsement of

but

it includes only agreements which, promissory note is itself presumptive evi

fairly and reasonably interpreted, do not dence of a consideration therefor, and also

admit of a valid execution within the year. of the fact that the indorsement was made

-Hellings v. Wright, 29 Cal. App. 649, 156 at the time and place of the making of the

Pac. 365. note; and the presumption may be resorted

4. When a contract has been so far perto in aid of a finding to that effect in an action to recover on the indorsement, even

formed that nothing remains to be done but

the payment of the consideration for the though such presumption stands alone, and is opposed by direct evidence to the con

performance, the fact that the contract does trary.-Pacific

not require the payment within a year furPortland Cement Co.

nishes no defense to an action for the price. Reinecke, 30 Cal. App. 501, 158 Pac. 1041.

-Hellings v. Wright, 29 Cal. App. 649, 156 5. An instrument passing by delivery

Pac. 365. will be presumed to have come into the possession of the holder before maturity,

-Subdivision 4.-A contract for the and if an indorsement bears no date, the

purchase and sale of goods is taken out of

the statute of frauds where the buyer acpresumption is that it was made before the maturity of the instrument.-First Bank v.

cepts and receives part of the goods.-CoulPennig, 28 Cal. App. 267, 151 Pac. 1153.

ter Dry Goods Co. v. Wentworth, 171 Cal. Innocence of crime.-The presumption

500, 153 Pac. 939. of the continuation of life is overcome by

6. Where in an action against stockholdthe presumption that a person is innocent ers to

recover their proportion of an inof crime or wrong, and there is also a pre

debtedness for goods sold to the corporation sumption in favor of the legality of a mar- it is alleged in the complaint that the goods riage regularly solemnized.-Wilcox v. Wil

furnished were delivered in pursuance of a cox, 171 Cal. 769, 155 Pac. 95.

certain contract, the plaintiff can not claim Judicial records.-A recital in an order

that the contract was invalid because the appealed from that the matter "came on

price of the goods exceeded two hundred regularly for hearing this day" will be pre

dollars and the contract was in parol. sumed to be true.-Schulmeyer v. McAllister,

Coulter Dry Goods Co. v. Wentworth, 171 171 Cal. 340, 153 Pac. 233.

Cal. 500, 153 Pac. 939. 8. Legitimacy.-The presumption that a 7. The principle that where delivery and child born of a married woman is legitimate change of possession are necessary to commay be rebutted by evidence showing that ply with the statute of frauds an oral decthe husband was incompetent, entirely ab- laration does not alone constitute such sent so as to have no intercourse or com- delivery, has no bearing or relationship to munication of any kind with the mother, en- cases where the actual possession is in the tirely absent at the period during which the vendee, and the real question is whether child must, in the course of nature, have that possession has been transformed from been begotten, or only present under such that of bailment or pledge to that of comcircumstances as afford clear and satisfac- plete ownership.-Wilson v. Hotchkiss, 171 tory proof that there was no sexual inter- Cal. 617, 154 Pac. 1.

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