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son left a descendant, the property should be 2. NEGLIGENCE (8 125*)-EVIDENCE-SIMILAR given to such descendant or descendants.

ACTS. Here is language of direct gift in fee simple. occasion cannot be shown by proving his neg

In general, a person's negligence on one The surviving descendants are designated as ligence on other occasions. the beneficiaries of the testatrix's bounty. [Ed. Note. For other cases, see Negligence, The indication is plain that she conceived Cent. Dig. SS 239-244; Dec. Dig. $ 125.*] that she was giving to them directly in the 3. DAMAGES ($ 62*) — PERSONAL INJURIES same way that she was giving to other per

DEFENSES. sons named or described in the paragraph juries, consulted a 'reputable physician, recov:

Where plaintiff, who suffered personal inand not making a mere provision for a sucery could not be diminished on the theory that cession in perpetuity by inheritance to that his treatment was not the most expert. which had been given to an ancestor. The [Ed. Note. For other cases, see Damages, gift is direct and in absolute terms to per- | Cent. Dig. $$ 119–131 ; Dec. Dig. $ 62.*] sons described, and not a provision for a 4. APPEAL AND ERROR (8 1071*) — ASSIGNtransmission of title to descendants in un

MENTS OF ERROR-FINDINGS OF FACT.

An omission from the finding of facts ending sequence which the law arbitrarily which, if included, would not affect the correctconverts into a fee simple in the issue of the ness of the rulings made is not a ground of erfirst donee. In other words, the testatrix ror. attempted to make the designated descend

[Ed. Note.-For other cases, see Appeal and ants her beneficiaries by her own act and not Error,, Cent. Dig. $8 4234-4239; Dec. Dig. 8

1071.*] to provide for a beneficiary succession to

5. TRIAL (8 395*)-FINDINGS-SUFFICIENCY. which the law operating contrary to her will

Where evidence, the admission of which would, for reasons of public policy, give the was assigned as error, was in each instance by same effect. The erasure at the end of the the same witness and as to the same subjectthirteenth paragraph, whether it was occa- provisions of Practice Book 1908, p. 267, § 5, to

matter, it was unnecessary, under the direct sioned by a wish to vest in the descendants include it twice in the finding. an absolute estate or a desire to avoid a [Ed. Note.-For other cases, see Trial, Cent. perpetuity, or other reason, emphasizes the Dig. 88 927-934, 939; Dec. Dig. § 395.*) fact that the testatrix had in mind a gift 6. Costs ($ 256*)-APPEAL-RECORD-UNNECdirect.

ESSARY EXPENSE. As the final gift over to the heirs of D. C. An appellant is not entitled to have costs Rand, Jane S. Smith, and Catherine H. Car- taxed for the printing of the evidence, where,

on his motion, it was all made part of the recnahan is void as being in contravention of ord, though much of it was unnecessary. the statute against perpetuities, we have no [Ed. Note.-For other cases, see Costs, Cent. occasion to inquire as to the effect of the Dig. 88 968-971; Dec. Dig. 8 256.*] quitclaim of Catherine H. Carnahan and her children, who proved to be her heirs, as ac-field County; Frank L. Wilder, Acting Judge.

Appeal from Court of Common Pleas, Faircomplishing a release of all interest of her

Action by Isabel M. Ross against the City heirs, had the terms of the will been effective

of Stamford. From a judgment for plainto create one in them. They could take noth- tiff for $2,000, defendant appeals. Reversed ing by the will, and there could therefore be

and remanded. no interest in them to release.

The superior court is advised that the de Adelbert A. Skeel, of Stamford, for appelfendant, at the time of his said conveyance lant. George P. Rowell, of Stamford, for to the plaintiff, was seised and possessed of appellee. the land therein described as of a good, indefeasible estate in fee simple, and that judg

RORABACK, J. Three assignments of erment be rendered for the defendant. The ror relate to rulings upon evidence and another Judges concur.

other that the trial court failed to find as re

quested. (88 Conn. 260)

It is alleged in the plaintiff's complaint ROSS v. CITY OF STAMFORD. that on January 7, 1912, the plaintiff, when (Supreme Court of Errors of Connecticut. in the exercise of due care, stepped on an acJune 10, 1914.)

cumulation of snow and ice upon the side1. MUNICIPAL CORPORATIONS (8 818*)-IN- walk of the city of Stamford, and was great

JURIES TO PERSONS ON SIDEWALK-ACTIONS ly damaged and injured. This allegation was -EVIDENCE.

As the duty of a municipality with respect denied, so that one of the controlling questo snow and ice on sidewalks is limited, and as tions in issue was whether the sidewalk in those conditions are not at all permanent, evi- question was slippery and icy at the time and

, on an accumulation of ice on the sidewalk, that place alleged in the complaint. the sidewalk was icy and slippery at a time not

[1, 2] Two witnesses called by the plaintit shown to be the same as that of the accident upon her direct examination were allowed, was improperly received, not tending to show against the objection of the defendant, to negligence, and tending to mislead the jury.

[Ed. Note. For other cases, see Municipal testify that the sidewalk in question was icy Corporations, Cent. Dig. 88 1726–1738; Dec. and slippery, without specifying any time. Dig. 818.*]

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

This court has said that:

This evidence was not offered for the pur"It is conceded that in this rigorous climate pose of showing that the plaintiff had not the duty of cities and towns in respect to snow used due diligence to obtain proper medical and ice is and must be very limited.” Congdon treatment, but it was claimed as tending to v. City of Norwich, 37 Conn. 414, 419. Snow and ice do not create a continuous diminish the damages, and therefore not ad

missible. and permanent obstruction to a sidewalk in this section of the country. They disappear

It would seem to be well settled that, many times suddenly, and a defect of this where one is injured by the negligence of character of to-day may be removed before another, if his damage has not been increasto-morrow by the action of the weather.

ed by his own subsequent want of ordinary The plaintiff had the right to show all the care, he will be entitled to recover of the facts and circumstances surrounding and wrongdoer to the full extent of the damage, connected with the accident in question. But although the physician whom he employed she had no right to show facts and circum- omitted to apply the remedy most approved stances which may have been connected with in similar cases, and by reason thereof the the condition of this walk at a remote or un- damage of the injured party was not dimincertain time or occasion. Such evidence had ished as much as it. otherwise would have a tendency to raise collateral issues to the been. Loeser v. Humphrey, 41 Ohio St. 378, inevitable prolongation of the trial and the 52 Am. Rep. 86; Eastman v. Sanborn, 3 Alprobable confusion of the jury. That which len (Mass.) 594, 81 Am. Dec. 677; McGarrathese witnesses saw at such times cannot han v. N. Y., N. H. & H. R., 171 Mass. 211; properly be said to be facts connected with 50 N. E. 610. the accident which happened to the plaintiff.

In Lyons v. Erie R. Co., 57 N. Y. 489, it As a general rule, one's negligence on a was held, in an action to recover damages for particular occasion cannot be proved by injuries alleged to have been sustained by showing his negligence on other occasions, defendant's negligence, where the defendant nor can his freedom from negligence on one had given evidence tending to show the exeroccasion be shown by proof of his due care oncise taken by plaintiff might have tended to other occasions. Our reports furnish num- retard recovery, and that quiet would have erous illustrations of the application of this been better, that evidence that plaintiff was principle. Morris v. East Haven, 41 Conn. advised by his physician that it was right

The 252, 254; State v. Goetz, 83 Conn. 437, 440, and beneficial to exercise was proper.

court said: 76 Atl. 1000, 30 L. R. A. (N. S.) 458; Budd v. Meriden Electric R. Co., 69 Conn. 272, and restore himself. He cannot recklessly en

“He is bound to use ordinary care to cure 286, 37 Atl. 683;

683; Tiesler V. Norwich, 73 hance his injury and charge it to another. If Conn. 199, 203, 47 Atl. 161; Gilmore v. Ameri- his arm be broken he cannot omit to have it can Tube & Stamping Co., 79 Conn. 498, 504, set, and charge the loss of the arm to the 66 Atl. 4. These are instances where an act most skilled surgeon that can be found, or re

wrongdoer. He is not obliged to employ the of negligence, or the reverse, was sought to sort to the greatest expense to ward off the be inferred from other acts of negligence or consequence of an injury which another has innonnegligence. Moffitt v. Connecticut Co., 86 faith and to resort to such means and adopt

flicted upon him. He is bound to act in good Conn. 527, 529, 86 Atl. 16.

such methods reasonably within his reach as [3] The plaintiff offered evidence tending will make his damage as small as he can.” to prove that shortly after she was injured [4] The defendant assigns as error that the she consulted Dr. E. Rowell, her family phy- trial court failed to find as requested in sician, a doctor of extensive experience, who, paragraph 2 of the draft finding. If the findon account of the serious nature of the in- ing had been corrected by the trial court, as jury, referred her to Dr. Biggs, an expert the defendant claimed, it would have given surgeon. Evidence was also offered by the no better understanding of the character of plaintiff as to the nature, extent, and perma- the testimony which we have found was imnency of her injuries.

properly admitted. The omission from the The defendant offered in chief the testi- finding of certain facts which, if included, mony of a physician and surgeon who was would not affect the correctness of the rulconceded to be an expert. This doctor testi- ings made is not a ground of error. Hoadley fied that he had made a physical examination v. Savings Bank of Danbury, 71 Conn. 600, of the plaintiff on behalf of the defendant, 611, 612, 42 Atl. 667, 44 L. R. A: 321. and he then described the condition of her in [5] Two errors assigned åre that the court juries. He was then asked the following erred in admitting the testimony of two cerquestions:

tain witnesses over the objection of the de"Q. What was the usual custom among phy- fendant as set forth in certain paragraphs sicians in Stamford in January, 1912, as to and subdivisions of the finding. using anæsthesia and X-ray examinations for fractures of this character? Q. I will ask you,

An examination of the finding discloses Doctor, what the proper treatment for such that in each instance the testimony was by an injury as this would have been, in your the same witness and as to the same subjectopinion?' On objection these questions were excluded. rulings made at different times.

matter. In substance they were the same These objections were well taken, and the

“When the same ruling is made at different evidence properly excluded.

times, either with respect to the same or dif

ferent witnesses, the finding should contain only was wrongfully taken from him by the dea single ruling, unless the other rulings may fendant. be important as further illustrating the rule which determined the action of the court, or as

[1] Trover, in substance, is a remedy to establishing the materiality of the error recover the value of personal chattels wrong. claimed.” Practice Book, p. 267, $ 5.

fully converted by another to his own use. [6] All the evidence and rulings of the It is admitted in this case that the plaintiff court, comprising about 130 pages, have been was the tenant of the defendant of a certain printed and made a part of the record upon farm in Blackbird Hundred in New Castle the defendant's motion.

county in this state for one year from March As we have already indicated, there was 1, 1913, and plaintiff claims that in addition no good excuse for burdening the record to the farm rented to him under a verbal with all the evidence which is now before us. agreement, that the defendant left on the

Therefore no costs in favor of the defend- farm certain live stock, consisting in part of ant will be taxed for the printing of the four cows, thirty-two ewes and one ramevidence.

that the number of ewes was increased by There is error, and a new trial is ordered. the addition of twelve ewes during the tenThe other Judges concur.

ancy, that the plaintiff was to receive the

milk from the cows, and the defendant was (5 Boyce, 140)

to receive the increase from the cows, that BAKER V. SPRUANCE.

plaintiff was to receive one-half of the lambs (Superior Court of Delaware. Kent. April 30, that were dropped by the ewes. 1914.)

On the part of defendant the above recited 1. TROVER AND CONVERSION ($ 13*)—NATURE facts are admitted with the exception that OF ACTION="TROVER."

defendant contends, that the plaintiff was to “Trover,” in substance, is a remedy to receive one-half of the lambs, if the lambs recover personal chattels wrongfully converted were dropped during the tenancy but if the by another to his own use.

[Ed. Note.-For other cases, see Trover and lambs were not dropped until after the tenConversion, Cent. Dig. 88 103-116; Dec. Dig. & ancy expired, then only one-quarter of the 13.*

lambs. Further, defendant claims that he For other definitions, see Words and Phras-was to be at liberty to remove the above es, vol. 8, pp. 7111-7113, 7821.]

stock from the farm if disagreements arose 2. TROVER AND CONVERSION (8 16*) - ELE- between him and the plaintiff, or if he failed MENTS OF ACTION.

In order to entitle plaintiff to recover in to properly care for the stock; and still trover, he must prove property in himself and further the defendant claims that he was a right of possession at the time of conversion notified by the plaintiff to remove his stock and conversion of the property by defendant to from the farm. The plaintiff denies that he his own use.

[Ed. Note.-For other cases, see Trover and so notified the defendant, either in person or Conversion, Cent. Dig. $$ 119-147; Dec. Dig. by another, and plaintiff claims that he prop§ 16.*]

erly cared for the stock while in his posses3. TROVER AND CONVERSION (8 46*) Dansion. AGES.

[2] To entitle the plaintiff to recover in an The measure of damages in an action for action of trover he must prove (1) property trover and conversion is the value of the property at the time of the taking and conversion. in himself and a right of possession at the

[Ed. Note.--For other cases, see Trover and time of the conversion, and (2) a conversion Conversion, Cent. Dig. § 263; Dec. Dig. $ 46.*] of the property by the defendant to his own 4. EVIDENCE ($ 588*)-CONFLICTING EVIDENCE use. The matter of the taking and conver-DUTY TO RECONCILE.

sion of the property in this case is admitted Where evidence is conflicting, it is the jury's duty to reconcile it if possible; other-by the defendant, so that the one question wise to give credit to that which in the jury's left for your determination is whether the opinion is entitled to the most credit, consider- defendant at the time of taking the property ing the bias, prejudice, or interest that the wit had the right of possession under the agreenesses may have in the outcome of the case.

ment of lease with the plaintiff, or was re[Ed. Note.-For other cases, see Evidence, quested to remove the stock from the premCent. Dig. $ 2437; Dec. Dig. 8 588.*]

ises. Action by William J. Baker against Edgar

If you are satisfied from the evidence that Spruance. Verdict for plaintiff.

defendant reserved to himself the right to Argued before BOYCE and CONRAD, JJ. take back or remove the stock if disagree

Charles H. Le Fevre, of Dover, for plain- ments arose between him and the plaintiff in tiff. James M. Satterfield, of Dover, for de the course of the tenancy, or if, as defendfendant.

ant claims, the plaintiff failed to properly

care for the stock and if that fact has been CONRAD, J., charging the jury:

established by the evidence, or if the witness, Gentlemen of the jury:--This is an action es have convinced you that plaintiff notified of trover, brought by the plaintiff William J. defendant to remove his stock from the premBaker against the defendant, Edgar Spru- | ises, then defendant would be entitled to a ance, wherein the plaintiff claims the value verdict. of certain personal property which he alleges [3] If on the other hand the evidence pro

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

duced on the part of the plaintiff satisfies | An order was made directing that citations your minds that he was in the rightful con- issue to the persons interested therein, and trol and possession of the stock under the at the return thereof a caveat was filed on agreement of lease, and thereby entitled to behalf of two of the persons so interested. possess and enjoy them during the continuance of the tenancy; and that plaintiff did propounders. Edward G. Cooke and Charles

Robert H. Richards, of Wilmington, for not consent to or direct their removal, then W. Bush, both of Wilmington, for caveators. plaintiff should be given a verdict, and the measure of damages is the value of the propthe of ,

CURTIS, P. J. Alfred D. Lecarpentier sion, not exceeding the sum of one hundred died March 1, 1914, leaving a will dated July and forty-seven dollars and fifty cents, the 10, 1912, the two attesting witnesses to which amount claimed by him.

were Francis M. Walker, Esq., and George The real matter for your consideration is A. Elliott, Esq. Mr. Walker was at the time the scope and meaning of the verbal agree- of the execution of the will, and at the death ment between the parties, and this you must of the testator and still is, register of wills determine from the preponderance of the evi- for New Castle county. Being disqualified dence in the case.

to probate the will, a petition was presented [4] Where evidence is conflicting, as in this to the Orphans' Court by those named in the case, it is your duty to reconcile it, if you will as executors, setting forth the disqualican, but if you cannot do that, you should fication of Mr. Walker and asking that the give credit to that evidence which in your Orphans' Court take jurisdiction, as provided opinion is entitled to the most credit, taking in the Constitution of the state. Thereupon into consideration the bias, prejudice, or in- 'this court made an order taking cognizance terest that the parties and witnesses may of the cause, and directing that citations be have in the outcome of the case.

issued to all the parties interested and noVerdict for plaintiff.

tice given by publication in the usual way according to the practice in the register's

court. All the parties were cited, or notified, (10 Del. Ch. 503)

or appeared. A caveat in general form was In re LECARPENTIER'S WILL filed by two of the parties interested, and on (Orphans' Court of Delaware. New Castle. motion of the attorney for the proponent of May 7, 1914.)

the will, the caveators were required to set 1. Wills (8 116*)-ATTESTATION-COMPETEN- out the grounds on which the caveat was CY OF WITNESSES.

based. Objections were made to the comThe register of wills is competent to testi- petency of both of the attesting witnesses; fy as an attesting witness to the execution of to Mr. Walker because he was register of a will, for the Constitution provides that in case the register is interested the Orphans' wills, and to Mr. Elliott because he was a Court shall take jurisdiction of the proceedings stockholder and director of the Equitable for probate.

Guarantee & Trust Company, which was one [Ed. Note.-For other cases, see Wills, Ccnt. of the executors and was also appointed trusDig. $$ 284–298; Dec. Dig. § 116.*]

tee of the estate. 2. WILLS ($ 116*)-ATTESTATION-COMPETENCY OF WITNESSES - "CREDIBLE" - "COMPE

[1] The first ground of objection was not TENT.

further urged and was distinctly abandoned. Under Act Gen. Assem. April 6, 1881 (16 Inasmuch as by the Constitution in case a Del. Laws, c. 537 (Rev. Code 1893, p. 798]), register of wills is interested in questions which made persons interested in the event of the suit competent to testify, a shareholder in concerning the probate of wills, the cogni. a corporation appointed executor of a testa- zance thereof belongs to another tribunal, the tor's last will is "competent” to testify as an Orphans' Court, there is, of course, no basis quiring two "credible witnesses” to a will, and for an objection to the competency of the *credible" being synonymous with "competent." register of wills to testify as an attesting

[Ed. Note. For other cases, see Wills, Cent. witness at the probate of the will in the Dig. 88 284–298; Dec. Dig. $ 116.*

Orphans' Court. For other definitions, see Words and Phras

Against the sufficiency of this objection the es, vol. 2. pp. 1709; vol. 8, p. 7622; vol. 2, attorney for the will cited authorities to pp. 1358, 1359.)

show that a person is not disqualified to act In the matter of the probate of the paper as subscribing witness to a will because at writing purporting to be the last will and the time of the execution of the will he was testament of Alfred D. Lecarpentier, deceas

a judge of a court for the probate of wills. ed. Will admitted to probate.

Schouler on Wills, 172; Patten v. Tallman, The register of wills being disqualified to 27 Me. 19; Panaud v. Jones, 1 Cal. 488; probate the paper writing purporting to be McLean v. Barnard, 1 Root (Conn.) 462; the last will and testament of Alfred D. Le- Ford's Case, 2 Root (Conn.) 232. He would, carpentier, deceased, a petition was present of course, be disqualified to probate the will. ed on behalf of those named therein as ex [2] The other ground of objection related ecators asking the Orphans' Court to take to the competency of Mr. Elliott. Testimony jurisdiction thereof and to probate the will. was heard before the Orphans' Court which

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

showed that Mr. Elliott was a stockholders an attesting witness. It was also there held and director of the Equitable Guarantee & that the proviso of the act did affect the reTrust Company, and that the number of sult. This decision is binding on this court. shares of the stock of the company held by It was by the Superior Court on an issue him were 50. There was no evidence of any from the register of wills, and by the Constiother interest which he had in the estate of tution made final, and it is, therefore, final the decedent in any way.

so far as the Orphans' Court is concerned The statute of this state requires that when it takes cognizance of the probate of a there be two, or more, “credible" witnesses will in cases where the register of wills is to a will. It seems to be settled by uniform disqualified. decisions that "credible" is synonymous with The case of In re Spiegelhalter's Will also "competent.” Page on Wills, & 191; 40 Cyc. decides that a trustee under a will is not 1109. The case of Sutton v. Sutton, 5 Har. disqualified to be an attesting witness, for 459, seems to have a different definition and interest in the event is no longer a disqualito make it synonymous with 'creditable,” fication. If Mr. Elliott had been executor but it was not so there said respecting the and trustee under this will, he would not testimony of an attesting witness. There are have been incompetent as an attesting wittwo cases which were decided before 1881, ness, much less would he be here since he is when the act removing the disability of in- not executor or trustee, but an officer and terest of witnesses was passed. They were holder of a small number of shares of stock Sutton v. Sutton, 5 Har. 459, and Davis v. of a corporation named as executor and trusRogers, 1 Houst. 44. But neither of them tee. decided that a person named as executor in Counsel for the will in his brief cites aua will was disqualified as an attesting wit- thorities of other courts which sustain the ness to the will. In each of the cases the decision of the Superior Court, but it is not court considered whether persons named as necessary to advert to them. executors were competent to testify, not as The argument for the caveators is based attesting witnesses, but as general witnesses. largely on the decisions of a Pennsylvania In the former case (Sutton v. Sutton), there statute respecting gifts by will to or in trust were two executors called to prove the cir- for charities. This statute expressly requircumstances under which the will was found es that in such cases the witnesses to the will after the death of the testator. One of them shall not only be credible, but “at the time was interested in a codicil and was excluded, disinterested.” Of course, decisions respectjust as all persons interested in a suit were ing this statute are not helpful in interpretat that time excluded, but the other executoring or applying our own statute. not being so interested was admitted. In the There is no ground to sustain the caveat, later case, Davis v. Rogers, William H. Rog- and an order will be made admitting the ers, the executor named in the will, but not will to probate. an attesting witness, was also a trustee under the will, which expressly provided that

(10 Del. Ch. 308) he should be paid fair and liberal compensa

GREIF et al. v. JAMES H. WRIGHT CO. tion as such trustee. It was held that he

(Court of Chancery of Delaware. June 15, was incompetent by reason of his interest.

1914.) Chief Justice Harrington, however, intimat- 1. CORPORATIONS (8 567*) — RECEIVERSHIPSed that there would have been a difference SET-OFFS OF OB AGAINST CLAIMANTS. if he had been an attesting witness, and the The right to set off mutual debts due to only disqualification urged was based on and from a corporation, under Rev. Code 1852,

amended to 1893, p. 793, c. 106, § 21, providhis being such.

ing that 'mutual debts between parties to an Whatever may have been the decisions be- action, due at the time of action brought in fore 1881, one decision has been rendered in the same right, may be the subject of set-off, Delaware since that time which is decisive was not defeated by the appointment of a re

ceiver for the corporation under a statute auof this case, and binding on this court. The thorizing the appointment of a receiver for act of April 6, 1881 (chapter 537, vol. 16, p. insolvent corporations on the application and 798, of Revised Code), removed the disability for the benefit of any creditor or stockholder, of interest in a witness and made a person tee and as a representative of the insolvent,

since such receiver takes the assets as a trusinterested in the event of the suit or matter and acquires no greater interest in the estate to be determined competent as a witness, ex- than the corporation had, and the assets are cept in proceedings by or against executors, brances as exist at the time of the appointment.

subject to such set-offs, liens, and incumin which a judment or decree may be render

[Ed. Note.--For other cases, see Corporaed for or against them.

tions, Cent. Dig. $ 2287; Dec. Dig. $ 567.*] In the case of In re Spiegelhalter's 2. CORPORATIONS ($ 567*) - RECEIVERSHIPS Will, 1 Pennewill, 5, 39 Atl. 465 (1897), SET-OFFS OF OR AGAINST CLAIMANTS. the executor was one of the attesting wit A debt due to the receiver of an insolvent nesses, and it was held he was not disquali. corporation, as distinguished from a debt due fied to prove the execution of the will. The to the corporation, cannot be set off against a

debt due from the corporation. court relied on the act of 1881, above refer

[Ed. Note. For other cases, see Corporared to, as making the executor competent as I tions, Cent. Dig. 8 2287; Dec. Dig. § 567.*}

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

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