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cider as quite a harmless drink, for he says:
the irregularities consist of doing that which may dis-
qualify the jurors for proper deliberation and exercise
of their reason and judgment, as when ardent spirits
are introduced, then it would be proper to set aside
the verdict, because no reliance can be placed upon
its/purity or correctness."

VIn Stone v. State, 4 Humph. 27, it was alleged that
the jury drank ardent spirits at their meals, during
the progress of the trial, but the court held it innox-
ious to the prisoner, and thought that such decisions
as Brant v. Fowler, was more a matter of amuse-
ment than serious reflection."

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In Rowe v. State, 11 Humph. 491, the jury partook of intoxicating liquor during the trial, but not to excess, nor so as to disqualify them; and, on the authority thority of Stone v. State, the verdict was sustained.

In Davis v. People, 19 Ill. 74, a portion of the jurors, after they were sworn, and before the entire panel was made up, went to a grocery and drank spirituous liquor; the court thought it should not vitiate the verdict. The question was disposed of in less than a half dozen lines, and the verdict was reversed on other other grounds.

tion of the question the court held, that any indulgence in intoxicating liquor after the jury had retired to deliberate is sufficient to impeach their verdict. And this seems to us to be the rule best fortified by reason and principle. All the cases admit that, if a juror becomes intoxicated, the verdict should be set aside. Now if all men were affected alike by liquor, and we had an absolute standard as to how much would cloud a man's reason and judgment, then it would be safe and consistent to say, that unless that amount had been drunk, the verdict should stand; but it is a well-known fact that different men are differently affected by stimulants, and that even the same man may be differently affected at different times, owing to different conditions of his system. It cannot, therefore, be said with certainty, that even one dram taken by a juror has not had its effect upon his mind and judgment, and, therefore, upon the verdict. Especially in criminal cases, where the life or liberty of a citizen is at stake, ought the total abstinence of the jury to be held requisite to the validity of the verdict. The court should be absolutely certain that the prisoner has the benefit of the cool, dispassionate deliberation, and the honest exer

determine the limit to which a juror may indulge in stimulants without affecting his judgment.

CURRENT TOPICS.

In Purinton v. Humphries, 6 Greenl. 379, refresh-cise of the reason of each juror, and not undertake to ments, with ardent spirits, were furnished the jury, but it was not intimated that any one of them was in the least degree intoxicated. The court, refusing to set aside the verdict, said: "If ardent spirits constitute part of the refreshments and appear to have operated upon any juror so far as to impair his reasoning powers, inflame his passions or have any improper influence upon his opinion, the verdict would probably be set aside." This decision was followed in Thompson's Case, 8 Grat. 637, in preference to the New York doctrine.

So, in State v. Upton, 20 Mo. 397, it was held that a verdict will not be set aside because the jury used intoxicating liquor in their retirement, unless it appears that it was supplied from an improper source or affected the verdict; but the court said: "In consequence of the want of convenience for holding the sessions of the courts in many counties of the State, we have never lent a willing ear to objections against verdicts growing out of irregularities in the conduct of jurors, unless such irregularities affect the verdict or were induced by means employed by the party obtaining it." How much this accommodating spirit had to do with the decision may be imagined.

In United States v. Gilbert, 2 Sumn. 83, which was an indictment for robbery on the high seas, one of the jurors, who was unwell, drank a glass of brandy and water, and it appearing that the prisoner's counsel had consented, in open court, that those jurors whose health might require it, should be permitted to drink ardent spirits, the verdict was sustained.

The most recent decision that has come to our notice is that of Ryan v. Harrow, 1 Am. Rep. 302 (27 Iowa, 494), in which after a very able examina

striking coincidence has come to our notice in relation of a couple of sections in the California Code of Civil Procedure and in the new revision of our State statutes. In the summer of 1871, one of our State revisers prepared two sections settling the vexed question, when the statute of limitations runs against an action to redeem a mortgage. They were prepared after a careful examination of the English

The

statute and the statutes of several of the States, but
were entirely original, having only a slight resem-
blance to the statutes elsewhere. They appeared in
the first pamphlet of the revisers as sections 372 and
373. Now, it so happens, that these two sections
appear in the California Code of Civil Procedure as
sections 346 and 347, verbatim, except that "five
years" are substituted for "twenty years."
printed pamphlet of the revisers was not received
from the printers until February 17, 1872, while the
California act was passed March 11, 1872. The New
York revisers had never seen even a draft of the
California code, and the pamphlet could not have
reached the Pacific slope more than a week before
the passage of the code.

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The subject of codification has again cropped out as one of the interesting topics of the times in England. This renewed interest is probably largely due to the recent speech of the attorney-general. The latest contribution to the subject is an address of Mr. J. Fitzjames Stephens, Q. C., late legal member of Council in India. He gave a history of codification in India, and an account of the practical workings of the codes there, with the bearings of the Indian experience on codification in England. He remarked that Indian experience showed pretty clearly what, in practice, was meant by codification the expression in plain words, and the perspicuous arrangement of actual law, of rules drawn up for practical purposes by the light of common experience; and this was as easy as any other sort of skilled labor. The Indian Penal Code, drawn up by Lord Macaulay and his associates, contained, in 511 sections, nearly the whole criminal law of the empire, and although it had been in use for eleven years by a large number of unprofessional judges, so well was it understood and so successfully administered that hardly any amendments, additions or explanations had been re

its influence and concerted action, three justices of the higher courts whose names and deeds have brought dishonor upon us - have been relegated to private life, and a fourth is in process of trial; it has exerted a strong, if not controlling, influence on the selection of their successors; it has defeated a series of amendments to the code, alike inexpedient and iniquitous, and has besides made a decidedly healthy impression on much of the general legislation of the State. We speak only of the outside, palpable work of the Association; what it has done for its members, or for the whole profession, in lifting it, in upholding some of its best traditions, in making vital its ethics, cannot be gauged, but can be guessed. While the "close corporation" feature of the Bar Association may seem, and be, objectionable, it is infinitely better than no association. Did the Bars of the other cities of the State, and of the country—for it is not a State question only-display the same interest for matters beyond the mere question of personal business and dollars, State organizations and a National organization might, and would result, which would have an abiding and beneficial influence not only on the legislation and judiciary, but upon the honor, the dig-quired. He thought that comparing it with English nity, and the welfare of the entire profession.

A scheme of legal education has been devised, after careful consideration, by the English Council of legal education which it is thought highly probable the Inns of Court will accept and carry into speedy operation. Its outline is as follows: No student shall be called to the bar until he has passed an examination both in Roman law and in the leading branches of English law. It is also proposed that for a payment of ten guineas a year the student shall be admitted to all the lectures and all the private classes of a set of professors and tutors who are to be appointed to teach the different subjects in which the examination is to be. The examination will be compulsory but the attendance at the lectures will be voluntary. Students are to be recommended, but not compelled, to attend the chambers of practicing barristers. The professors and tutors are to hold office for three years and are not to be appointed for more than two terms. The Pall Mall Gazette considers the scheme as one of the wisest steps ever yet taken by the profession, and to be at once and in the very best sense of each word, as liberal and as conservative a measure as could be desired," and adds: "It will tend most powerfully to the steady and systematic improvement of the law itself. It will strengthen the moral and intellectual influence of the law as a subject of study. It will fortify the position of the bar as the chosen profession of educated and cultivated men. Henceforth it may be said with truth that no man can call himself a barrister who is not a man of high and careful education, and who has not given distinct proof of that fact by passing a severe examination in the leading branches of his profession."

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criminal law was like comparing cosmos with chaos. The real obstacle in the way of codification, as Mr. Stephens explained, and as we, in this State, have, by experience, found out, is not in the preparation, the drafting, but in the adoption. The legislative body wants to discuss and amend and patch the work when propounded, as they discuss and amend and patch other bills. Mr. Stephens very forcibly says: "A popular assembly might as well try to paint a picture."

The Fight of a Man with a Railroad" is the title of an article in the December Atlantic, in which Mr. Coleman gives his impressions of railroads in general, and of his litigation with the New York and New Haven railroad in particular. The gist of the controversy was this: Mr. Coleman, holding a coupon ticket from New Haven to New York, undertook to use it from New York to New Haven, on the theory that it represented a certain amount of money paid to the railroad for a certain amount of service, and that it mattered not whether his "face was turned east or west." The conductor refused to receive the ticket as satisfaction of fare, and proceeded to eject Mr. Coleman by the aid of sundry brakemen, etc. Mr. Coleman, with faith in what he took to be his rights, declined to be ejected and was seriously injured in the operation. After three or four trials and retrials, he got a verdict of $3,500, which the Supreme Judicial court of Massachusetts refused to set aside. This verdict was probably sustained on the ground, that unnecessary force and violence had been used in the ejection, but as there is no report of the case we cannot speak of a certainty. From the analysis of the decisions given in the Law JOURNAL last week,

however, it seems clear that the law as to the right to ride "backward" on the ticket was against Mr. Coleman. But it seems to us that the railroads have the law all in their own hands-that the courts have not held evenly the balance between the people and the corporation. A railroad company, on the theory that it is for the public's use and benefit, may take a man's house and lands against his will, and yet may eject that man from its cars if he happen to violate almost any arbitrary rule that it may see fit to adopt. For instance- and it is not an imaginary one a man wishes to go from New York to Philadelphia. He buys his ticket and gets aboard the train, leaving Jersey City for Washington at one p. m. After the departure of the train the conductor informs him that he has orders not to take, on that train, any but through passengers, and ejects him, although the train actually stops at Philadelphia every day. Now, so far have the courts carried this judge-made law for it is nothing else that the company would be held justified. Practically, the road may make any rule it pleases, and if a passenger breaks it he may be ejected. It is surely time that legislatures turned their attention to the matter and gave the people an equivalent for the burdens and sacrifices these corporations impose upon them.

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In the death of Thomas A. Johnson, which occurred at Corning, on Thursday evening, the 5th inst., the State has lost the oldest and one of the ablest of its supreme court justices. Judge Johnson was elected as a justice for the seventh judicial district in 1847, and has continued to occupy that position until his death. In 1870 he was designated by Governor Hoffman as one of the general term judges of the fourth department. The simple fact that, for twenty-five years, he received the confidence and suffrages of the people is the best evidence of his ability and integrity. By the profession of the seventh district, who knew him best, he was particularly honored for the vigor and clearness of his intellect, the extent of his legal acquisitions, the justness of his judgment and the purity and benevolence of his heart. The bars of Auburn and Rochester, and other cities and counties of the district, have held memorial meetings. The remains of the dead judge were buried on Monday.

The ceremonies attending the formal unveiling of the statue of the late Chief Justice Taney, erected by Maryland, his native State, took place at the State capitol on Tuesday last. S. Teakle Wallis delivered a brief eulogy on the deceased jurist. The statue was executed by the sculptor Reinhart, and was cast at the royal foundry in Munich. It is of bronze, heroic size, and represents the chief justice in his robes of office. Many distinguished persons attended

the ceremonies.

✓ The

NOTES OF CASES.

The case of Fletcher v. Rylands, 14 W. R. 739; L. R., 3 H. L. 330, clearly and finally settled the liability of persons who, for their own purposes, collect upon their land a body of water, which thence finds its way into and floods the land or mines of adjacent owners. The present case of Smith v. Fletcher, exr., 20 W. R. 987, extends that liability to persons who, by their operations, create in their lands hollows which (without their designing it) naturally collect water from the neighborhood, and by ponding it up or giving it a new direction, do the like injury to neighboring owners. The conclusion seems to follow irresistibly from the premises which justified the conclusion in Fletcher v. Rylands. The case that seemed in contradiction to this conclusion was Smith v. Kenrick, 7 C. B. 515; in that case the water which did the mischief was not collected by the defendant; the flooding happened in consequence of his having, in the course of mining, struck into hollows where the water was impounded, and the water came thence in its natural course into his own and thence into his neighbor's mines. He could scarcely be said to have brought the water; rather he could not keep it away. -Sol. Jour.

James v. Jenkins, 6 Am. Rep. 300, is another contribution to the question, whether if a man have a house with windows looking upon his own vacant land, and sell the house without the land, the purchaser will have an easement of light and air on the latter. This question was discussed at some length ante, page 234. In the case mentioned the court of appeals of Maryland held, that by the grant of a lot and all the rights, "privileges, appurtenances, and advantages to the same, belonging or in any wise appertaining, is passed the easement of light and air as to windows previously opened toward another lot of the grantor. Nicholas v. Chamberlain, Cro. Jac. 121, is the leading authority on the same side of the question, and it has been frequently followed in this country, but some of the courts have declined to adopt it. Among the leading cases opposed to it is Mullin v. Stricken, 2 Am. Rep. 379; 19 Ohio St. 533.

In McClary v. Lowell, 44 Vt. 16, the court held that a journey on Sunday to visit one's children is not a violation of the law against traveling on Sunday, except in cases of necessity or charity, and would not, therefore, debar a recovery for injuries received from defects in the highway. The court did not, of course, pass upon the right of recovery had the traveling been illegal. But, in Cratty v. City of Bangor, 2 Am. Rep. 56 (57 Me. 423), the court expressly held that traveling on Sunday, unless in the excepted cases, was such a violation of law as to prevent a recovery for injuries so received.

THE OLD JUDGE AND THE NEW.

The retirement of Mr. Justice Nelson carries one's memory back a half century to men and things which have nearly all passed away. Under what was then the "new constitution," he was appointed on 21st April, 1823 to be circuit judge of the sixth judicial district. He was then but thirty years of age. The constitution of 1821 had just gone into effect, and under it the State was divided into eight circuits. The duties of the circuit judges were nearly identical with those of our present supreme court judges not on the general term bench. Among those appointed at the same time, to be circuit judges, were Ogden Edwards, Samuel R. Betts, William A. Duer, Reuben H. Walworth, Enos T. Throop, afterward governor, and Nathan Williams. John Savage was at the same time appointed chief justice of the supreme court. Mr. Nelson remained on circuit until February, 1831, when Governor Throop, his former co-laborer, appointed him to the supreme bench to take the place of Wm. L. Marcy, who had resigned to take the governor's chair. In 1837 Mr. Nelson succeeded Savage as chief justice, his associates being Esek Cowen and Green C. Bronson. Of all the circuit or supreme court judges who took office with him he alone survives. Indeed, nearly or quite all who held judicial positions during the twenty-two years of his service are dead, as are all those whom he found on the bench of the United States supreme court when, in 1845, he was appointed to that position. The Cooperstown Journal, printed at the home of Judge Nelson, says, speaking of the resignation: "And thus closes a most remarkable and highly honorable and distinguished judicial career, covering a period of half a century. As to point of time and constant service, it is without precedent in this country or England, and we doubt whether it has a parallel in the history of jurisprudence. Lord Mansfield served 32 years and Lord Eldon 28 years, and they were longest on the bench of Great Britain; Chief Justice Marshall was 34 years on the bench, Chief Justice Taney 30 years, Mr. Justice Story 34 years, and Chancellor Kent about 25 years, and of the distinguished judges of this country they longest held judicial positions. * * * The judge has with slight exception always enjoyed robust health, and has never been absent from duty at the State or United States courts but one term, that of last year. At the closing session of the grand high commission in the spring of '71, which had lasted seventy days, and was not only of vast importance but at times very laborious, Judge Nelson took a severe cold from sitting several hours in a room not sufficiently warmed, and after his return home was for several months confined to his house from its effects. this he recovered, and for the past six months has enjoyed very comfortable health, while his mind has retained all its wonted force and vigor.

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There has been a strong desire on the part of many of his friends and admirers, in the legal profession, that Judge Nelson should remain on the bench a few months longer, that his half century of service might be fully rounded out; it had even come to his knowledge indirectly what we heard spoken of in Albany last spring, and quite recently, that it was in contemplation by leading members of the bar in New York and other parts of the State to celebrate that event in a becoming manner, showing their high appreciation of him as a man and of his eminent services as a judge; but when it appeared evident to him that he could not

go to Washington this winter and discharge the full duties of his office without running the risk of seriously jeopardizing his health, although still able to do all ordinary chambers work, his strong sense of justice and duty impelled him to the course he has taken, feeling, as he unselfishly remarked, that with so much business pressing upon it, the court needed the presence of an active working member in his place. Judge N. completed his judicial labors the week of his resignation by deciding an important and final motion on the taxation of costs, amount claimed about $40,000, in a famous suit which had been in the courts during half the long time he has been on the bench-the "hook headed spike case," Troy iron and nail factory (Burden & Co.) vs. Erastus Corning and others. The motion was heard last spring, and the examination of voluminous papers took time and involved considerable labor.

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Judge Nelson reached the advanced age of 80 years on the 10th of last month, and his friends throughout the country will be glad to learn that recent published reports in regard to his feeble health, etc., have no real foundation. We cherish the hope that for years to come the first citizen of Cooperstown" may live, the pride and the wise counselor, as in many years past, of his fellow citizens. His massive frame and strong mind and cheerful temperament all give promise of a long and useful life. There is no question that we should have hailed him "chief justice "at the death of Judge Taney, had the administration continued in democratic hands. Under the law of 1869 he now retires on full pay, well deserved by one who has so faithfully served his country on comparatively small salaries during the space of five decades."

The Hon. Ward Hunt, the successor of Mr. Justice Nelson on the supreme bench of the United States, was born at Utica on the fourteenth day of June, 1810. His father, Montgomery Hunt, was, for many years, cashier of the old Bank of Utica.

Mr. Hunt's preparatory education was obtained at Oxford Academy and at Geneva Academy, at both of which schools he had for a classmate the Hon. Horatio Seymour, who has ever since been his near neighbor and personal friend. He entered Union College and graduated in 1828. He then attended the law school of Judge James Gould at Litchfield, Conn., then the most flourishing school of the kind in the country. After completing the course there, he returned to Utica and entered the office of the late Hiram Denio, then a lawyer of high rank, and since one of the ablest of our judges. In 1831, having just reached his majority, he was admitted to the bar as an attorney and solicitor, and spent the ensuing winter in New Orleans in the pursuit of health. Soon after his return, he entered into copartnership with his former instructor, Judge Denio, and rapidly won his way to a lucrative practice and the confidence of a large number of clients. He was afterward a candidate for the supreme court, but having excited the hostility of the Irish by his successful defense of a policeman charged with the murder of an Irishman, he failed to secure the election.

Mr. Hunt was associated at different times as partner with the late Benjamin F. Cooper, Wm. L. Walradt, Montgomery H. Throop now of New York, and one of the commissioners to revise the statute law of the State, and Daniel Waterman, Jr.

Mr. Hunt's earlier political associations were with the old democratic party of which General Jackson

was then the presidential candidate, and in 1838 he was elected by that party to the assembly. He afterward became a "free soiler" and an active partizan of Mr. Van Buren in his contest for the presidency. This course placed him in direct antagonism to many of his old associates, and especially to that branch of the democracy known as "hunkers;" so that when in 1853 he was nominated for the office of justice of the supreme court of the State, he failed to receive their support and was defeated. On the organization of the republican party he joined it and gave it his zealous support. In 1865 he was made its candidate for the court of appeals bench, and was elected by a majority exceeding 31,000 votes. This position he filled with great ability until the reorganization of the court under the amended constitution, when he became a member of the commission of appeals. Judge Hunt has a preference for the bench and has, moreover, what is usually termed a "judicial mind." Neither a Marshall in intellect nor a Kent in legal knowledge, he has both in a greater degree then usually falls to the lot of judges. Judge Hunt was twice married. His first wife was a daughter of the late Chief Justice Savage, and a lady of great personal worth. By this marriage he had three children. In 1853, after having remained a widower for eight years, he married a daughter of the late James Taylor, for many years cashier of the Commercial Bank of Albany.

RULE XII IN ADMIRALTY.

UNITED STATES DISTRICT COURT. WICKES V. THE STEAMSHIP CIRCASSIAN, HER TACKLE, ETC. Where necessaries are furnished to a vessel in the port or State where she belongs, the general maritime law does not give to the party furnishing them a lien on the vessel herself for his security.

The history of the 12th Rule in Admiralty, given, and the decisions under it explained.

The amended 12th Rule of May 6, 1872, which provides that "in all suits by material-men, for supplies or repairs, or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam," does not apply to suits brought, or to supplies, etc., furnished, before that date. The purport of the rule is to provide that, in every case of a contract for supplies, etc., to a vessel, domestic or foreign, being a maritime contract, made after the rule takes effect, process in rem against the vessel, or in personam against her master or owner, may optionally be resorted to where a suit is required to enforce the contract.

BLATCHFORD, J. This libel is filed to recover against the steamship Circassian the sum of $3,936 for coal and wood furnished to her at New York, in October, 1866, she being then a domestic vessel, owned in New York, and bound on a voyage to Europe. The supplies were furnished by the firm of C. H. Bass & Co., who have assigned their claim to the libellant. The debt was contracted at the request of the agent of the vessel; the supplies were put on board of the vessel, and receipted for by the master; they were proper supplies for her intended voyage, and the evidence shows that credit was, in fact, given to the vessel, because of the want of pecuniary responsibility of the owner of the vessel. The libellants supposed at the time that the statute of New York would give them a lien which they could enforce by proceedings in rem against the vessel, according to the mode prescribed by that statute. The libel alleges that the claim is, by the maritime law, a lien on the vessel, and also that it was, at the time the supplies were furnished, and now is, a lien on the vessel by the law of the State of New York.

After the decision in the case of The General Smith, 4 Wheat. 438, in 1819, it was no longer open to question in the courts of the United States that, where necessaries are furnished to a vessel in the port or State where she belongs, the general maritime law does not give to the party furnishing them a lien on the vessel herself for his security. The point arose directly in that case, and was necessarily decided. The vessel was owned in Baltimore, Maryland, and the supplies were furnished to her at Baltimore. The supreme court held that there was no lien by the law of Maryland. This being so, there was no lien at all, and no foundation for the suit, which was one in rem, unless there was a lien by the general maritime law. The supreme court decided that there was no lien by the general maritime law. This decision has been recognized as a correct one in numerous cases since, which have come before the supreme court, to and including the case of The Kalorama, 10 Wall. 204, 208, 211, at the December term, 1869, in which last case it is said that "the question was put at rest" by the decision in the case of The General Smith. It had become a rule of property, established for nearly fifty years, when the supplies in the present case were furnished. In the opinion of the court, in the case of The General Smith, it was remarked that, "in respect to repairs and necessaries in the port or State to which the ship belongs the case is governed altogether by the municipal law of that State, and no lien is implied unless it is recognized by that law." This remark was understood to suggest that, where the municipal law of the State gave or recognized the lien, it would be enforced in the admiralty court. Accordingly, in the case of Peyroux v. Howard, 7 Pet. 324, in 1833, it was held that the district court had jurisdiction of a suit in rem against a vessel for materials supplied and work performed, in repairing her at New Orleans, on the ground that the contract was a maritime contract, that the service was to be performed within the ebb and flow of the tide, and, therefore, within the jurisdiction of the admiralty, and that the local law of Louisiana gave a lien in the case.

In Steamboat Orleans v. Phœbus, 11 Pet. 175, in 1837, it was stated that the decision in Peyroux v. Howard proceeded on the ground that, where the contract was a maritime one and the State law gave a lien, the admiralty had, in the first place, jurisdiction of the contract as a maritime one, and then, finding that the lien had, by the State law, attached, would enforce such lien according to the mode of administering remedies in the admiralty. The jurisdiction of the admiralty was regarded as vesting under the laws of the United States, and not under the local law of the State, the latter law only conferring the right to a lien which the admiralty, having jurisdiction of the maritime contract, would enforce by the appropriate admiralty remedy. Accordingly, the court decided that the admiralty court had no jurisdiction of a suit in rem against a vessel, to recover a claim by a master for his wages, as master, and for necessaries advanced by him to the vessel, while he acted as master, because the services and disbursements were not maritime, and that it made no difference that a lien was given by the local law, so long as the contract was not maritime.

Following out these principles, it was stated by the supreme court, in People's Ferry Co. v. Beers, 20 How. 393, 402, in 1857, that it had never sanctioned the doctrine that admiralty jurisdiction in rem existed against a vessel, to enforce a carpenter's bill for work and

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