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such bank may cease to be further subject to voluntary liquidation of said Bank of Braggs the provisions of the banking laws of the state. has become, and is now, wholly matured. [Ed. Note. For other cases, see Banks and That said Bank of Braggs and said GuarBanking, Cent. Dig. § 125; Dec. Dig. § 64.*]

anty State Bank of Braggs have entered

2. BANKS AND BANKING (§ 72*)-LIQUIDATION into an agreement whereby said Guaranty

-CERTIFICATE OF DEPOSIT.

The effect of such liquidation upon a certificate of deposit issued by the liquidating bank which upon its face is not due is to mature it.

[Ed. Note.-For other cases, see Banks and

Banking, Cent. Dig. $$ 148-152; Dec. Dig.

72.*]

3. BANKS AND BANKING (§ 71*)-LIQUIDATION-CERTIFICATE OF DEPOSIT-REMEDY OF

HOLDER.

Where a state bank seeks to liquidate pursuant to section 277. Rev. Laws 1910, and in process of such liquidation pays off all its creditors except the holder of one of its certificates of deposit whom it refuses to pay, and thereafter transfers the greater portion of the balance of its assets to another banking corporation without providing for the payment of such claim, such creditor may ask a court of equity to administer sufficient of the assets of the liquidating bank through a receiver, or otherwise, to protect such claim.

[Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 143-147; Dec. Dig. § 71.*]

State Bank of Braggs has gone into possession of a large part of the assets of said Bank of Braggs; that said Bank of Braggs and said stockholders and said

Guaranty State Bank of Braggs have wholly and totally ignored and refused to pay the claim of this plaintiff, as evidenced by said certificate of deposit, and that said Bank of Braggs and said defendants, their officers and agents and directors and said State Guaranty Bank of Braggs, which has gone into the possession of a large part of the assets of said Bank of Braggs, will continue to neglect to pay this plaintiff's claim, and will disburse all the assets of the said Bank of Braggs, in exclusion of the plaintiff's claim, unless they be restrained by the court from so doing, and unless the court make and enter an order herein appointing some suitable person as a receiver to take charge of the assets and properties of said Bank of Braggs, and administer

Error from District Court, Muskogee the same for the purpose of impartially dis

County; R. P. De Graffenreid, Judge.

Action by the First State Bank of Idabel against the Bank of Braggs and others. A demurrer to the petition was sustained, and plaintiff brings error. Reversed and remanded.

Wilson & Tomerlin, of Oklahoma City, for plaintiff in error. Bailey, Wyand & Moon, of Muskogee, for defendants in error.

KANE, C. J. This was a suit in equity, commenced by the plaintiff in error, plaintiff below, against the Bank of Braggs, which was in process of liquidation pursuant to section 277, Rev. Laws 1910, its stockholders and the Guaranty State Bank of Braggs, to whom it is alleged the Bank of Braggs had transferred practically all of its assets. A general demurrer was sustained to the petition of the plaintiff, to reverse which action of the court below this proceeding in error was commenced.

The petition alleges, in substance, that the plaintiff is the owner of a certificate of deposit issued by the Bank of Braggs, dated the 11th day of October, 1912, which, upon its face, matures three years after date; that after the issuance of said certificate and before its maturity the Bank of Braggs filed its application for a voluntary liquidation, pursuant to the foregoing statute; that since filing said application for voluntary liquidation said bank has proceeded to liquidate and pay all of its obligations except the obligation of this plaintiff; that it has failed, refused, and neglected, and still fails, refuses, and neglects to pay said obligation, although said obligation, by operation of law, by reason of going into

tributing its assets and collect from the stockholders, officers, and directors of said Bank of Braggs such sums, if any, that have been distributed to them in the liquidation of said bank, and such sums as may be necessary for them to prorate in their individual capacities, and further take possession of all the assets of said Bank of Braggs that have gone into the possession of the said defendant the Guaranty State Bank of Braggs, and that this plaintiff is liable to and may lose its claim unless such receiver be appointed, for all of which it has no adequate remedy at law.

[1] We think the petition states facts sufficient to constitute a cause of action against the Bank of Braggs and the Guaranty State Bank of Braggs. The statute (section 277, Rev. Laws 1910, supra) provides that:

"Any bank doing business under this chap ter may voluntarily liquidate by paying off all its depositors in full; and upon filing a verified statement with the bank commissioner sefting forth the fact that all its liabilities have been paid, and the surrendering of its certiflcate of authority to transact a banking business, it shall cease to be subject to the provisions of this chapter, and may continue to transact a loan and discount business under its charter: provided, that the bank commissioner shall make an examination of any such bank for the purpose of determining that all its liabilities have been paid."

[2] It is obvious that the liquidation provided for by the foregoing section cannot take place with any show of justice and according to the intention of the law until all liabilities to the creditors of the liquidating bank have been met and paid. If there are claims presented which the liquidating bank is not willing to acknowledge as just debts, there is nothing in the statute which is inconsistent with the right of the bank | And such action may be prosecuted to final

to obtain a judicial determination of the controversy by process against the claimant, nor with that of the claimant to collect by suit debts due him. The very purpose of the liquidation provided for is to pay the

debts of the bank that the remainder of the assets may be reduced to money and distributed among the stockholders or otherwise disposed of. The necessary effect of such liquidation upon the executory contracts of the bank undoubtedly is to mature them. 10 Сус. 1312.

[3] The journal entry of judgment states that the bill was dismissed for want of equity. In our judgment, the petition states facts sufficient to entitle the plaintiff to the equitable relief prayed for against the liquidating bank and the bank to whom its assets were transferred. There seems to be authority by analogy for the principle that where a state bank seeks to liquidate by resolution of its stockholders under section 277, supra, and in pursuance of such liquidation pays off all its creditors except the holder of one of its certificates of deposit whom it refuses to pay, and transfers the greater portion of the balance of its assets to another banking corporation, such creditor may ask a court of equity to administer the assets of the liquidating bank through a receiver or otherwise, and a proper basis for such relief is laid by an allegation that the bank in process of liquidation, although it has paid all its other creditors, has refused to pay the claim of the plaintiff, and is about to transfer a large portion of its assets to another bank and distribute the balance among its stockholders without providing for the payment of such claim. Law v. Rich et al., 47 W. Va. 634, 35 S. E. 858.

For the reasons stated the judgment of the court below is reversed and the cause remanded with directions to overrule the demurrer and to proceed in accordance with the views herein expressed. All the Justices

concur.

(42 Okl. 784)

ST. LOUIS & S. F. R. CO. v. GOODE. (No. 2688.)

judgment by the administrator, notwithstanding that death resulted from such injuries.

[Ed. Note. For other cases, see Death, Dec. Dig. § 10.*]

2. EXECUTORS AND ADMINISTRATORS (§ 49*)

ASSETS-RIGHT OF ACTION FOR PERSONAL INJURIES.

The damages recoverable in such action, when revived, are only such as were sustained by the injured person in his lifetime (such as accrued in the period between the injury and his death), and when recovered are assets of his estate, and are not for the benefit of the widow and next of kin, except as they may take as heirs upon the final distribution of the estate.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 301, 303305; Dec. Dig. § 49.*]

3. EXECUTORS AND ADMINISTRATORS (§ 51*) JUDGMENT (§ 610*) -ASSETS OF ESTATE-RECOVERY FOR WRONGFUL DEATH - BAR TO SUBSEQUENT RECOVERY.

Such

Sections 5945, 5946, Comp. Laws 1909 (sections 5281, 5282, Rev. Laws 1910), create a new cause of action, to be prosecuted for the exclusive benefit of the beneficiaries named therein; the damages recovered in such suit do not become assets of decedent's estate. action is not dependent upon any common-law right, and the right to maintain same is independent of sections 5943, 5944, Comp. Laws 1909. Nor will a recovery under these sections for the benefit of the widow and next of kin bar a recovery for the benefit of the estate of decedent, on account of the suffering and loss the decedent sustained through the injuries wrongfully inflicted on him, where death was not in

stantaneous.

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Neither the statute nor the common law prevent one spouse, after the marriage relation has terminated, from testifying, in a case in which the other is a party, as to independent facts, within the knowledge of the witness, and not coming within the definition of privileged communications.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 180, 181; Dec. Dig. § 64.*]

5. APPEAL AND ERROR (§ 1140*) -JUDGMENTREMITTITUR.

Where a verdict in a damage suit itemizes the damages allowed, and some of the amounts allowed are not justified under any view of the evidence, but the other amounts allowed seem to have been proper, the court being able to

(Supreme Court of Oklahoma. May 12, 1914. separate the legal from the illegal allowances,

Rehearing Denied Sept. 15, 1914.)

(Syllabus by the Court.)

1. DEATH (§ 10*) -ACTION-RIGHT OF ACTION -PERSONAL INJURIES.

plaintiff will be offered the right to remit the amount he is not entitled to receive.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. 1140.*]

6. APPEAL AND ERROR (§ 1140*) -HARMLESS

ERROR-INSTRUCTIONS.

Where an instruction has permitted the jury to award an illegal item of damage, and the illegal allowance can be clearly determined by this court on the record, and a remittitur to cover the illegal allowance is offered and accepted by plaintiff, the error in the instruction be comes harmless.

The right of action of a person, injured through the wrongful act of another, to recover the damages sustained thereby, existed at common law, but abated upon the death of such injured person. This common-law right of action survives, and is thus preserved, in the personal representative of decedent, by the terms of sections 5943, 5944, Comp. Laws 1909, and the cause of action and its survival are quite independent of sections 5945, 5946, Comp. Laws 1909, relating to the recovery of damages for the benefit of certain beneficiary therein named. 1140.*]

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4476; Dec. Dig. § Action by Gertrude Goode, as administratrix of Frank R. Goode, deceased, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed on condition.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Commissioners' Opinion, Division No. 2. | his injuries abated on his death, and but one Error from District Court, Comanche Coun- action could be maintained, that for wrongful ty; J. T. Johnson, Judge.

142 P.-75

W. F. Evans, of St. Louis, Mo., R. A. Kleinschmidt, of Oklahoma City, Stevens & Myers, of Lawton, and J. H. Grant, of Oklahoma City, for plaintiff in error. J. L. Hamon, of Ardmore, and Chas. Mitschrich, of Lawton,

for defendant in error.

BREWER. C. In the summer of 1906, Frank R. Goode, while a passenger on plaintiff in error's train, was seriously injured in a collision. On September 15, 1906, he instituted this suit to recover damages because of personal injuries received in the sum of $30,000, also for $3,000 for loss sustained by his business and $750 expended for physicians, nurse hire, drug bills, hotel expenses, etc., incurred because of his injuries. On October 11, 1906, while this suit was pending and before its trial, he died as a result of the injuries sustained in the collision.

After Goode's death his widow qualified as administratrix and brought a new action to recover the damages allowed by statute to the widow and next of kin. This second suit was transferred on motion of the plaintiff in error to the United States court for the Western district of Oklahoma, where a recovery was had which was thereafter paid.

On February 20, 1907, this suit, brought by Goode in his lifetime, was revived in the name of Gertrude Goode, administratrix, over the objections of the railway company, and was thereafter tried in the district court of Comanche county, resulting in a recovery of

damages for the benefit of the estate of the deceased in the sum of $9,750; the jury in its verdict having itemized the damages as follows: $7,000 general damages; $2,000 loss to business of deceased; $750 for medical attendance, nurses, hotel bills, etc.

death."

The plaintiff, defendant in error here, states her contention as follows:

"We contend that two separate and independent causes of action exist in the event death results therefrom (except in cases of instantaneous death): One for the benefit of his estate, in which the measure of damages is the same as it would have been had he lived and prosecuted the action to final judgment limiting the damages, of course, to the date of his death; the other for the sole use and benefit of the widow and next of kin, the measure of damages in the latter being such amount, as, in the good judgment of the jury, will compensate the widow and children, or next of kin, for the pecuniary loss they suffered by reason of his death."

The statutes of Oklahoma (Snyder's Comp. L. 1909), the construction of which, it is admitted, must determine the question presented here, follow:

"5943. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same." Section 5279, Stat. 1910.

"5944. No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of the defendant." Section 5280, Stat. 1910.

"5945. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of

the deceased." Section 5281, Stat. 1910.

The next section (5946) merely relates to who may prosecute the action under certain contingencies and has no important bearing on the question being considered.

In the instant case it must be conceded that Goode died because of the actionable negli

No contention is made in the case that the death of Goode was not caused by the negligence of defendant; that he received injuries

gent acts of the railway company, and, for the purposes of the case, we take it that defendant's actionable negligence is admitted. So in this situation it is apparent that the controlling question is as to whether or not,

so severe that they later caused his death; that in the interim he suffered great pain; that his injuries required and received expensive medical attention, nursing, etc., with hotel and drug bills, and the absolute loss of his time; that this resulted in damage and loss to his estate, and was unquestionably re

under the statutes in force in this state, a recovery for the benefit of the widow and children, on account of the wrongful death coverable by him at the time this suit was

of the husband and father, bars a right of recovery by the personal representative of the deceased, of the damages resulting to his personal estate on account of the wrongful act, where the death resulting therefrom was not instantaneous.

[1-3] The contention of defendant below, as stated in the brief, is:

"Since the death of Frank R. Goode resulted

filed. Was the right to have these damages lost at the time he died, and, if so, why? The decision of this case rests on an answer to the above question.

At common law the injured person could recover damages for the injury done his person, which included pain and suffering, and also for that occasioned his personal estate, but for the fact of his death; his death, howsuit. The right to recover for the personal injury, however, was a common-law right. The recovery allowed by Lord Campbell's Act, 9-10 Vict., for pecuniary loss to the family (the widow and children), or next of kin, occasioned by the death of the injured person, was unknown to the common law. It stands solely on the statute, not only on the right to prosecute the suit, but for the very right itself. The action for the injury first mentioned only needs a statute to enable the injured person to prosecute his suit (to keep it alive and from abating); he had the right (the action) at common law.

Thus far there is slight conflict in the authorities, but after this all is confusion. Even the English cases seem to be in conflict. One theory advanced in some of the cases is that the right of action given by Lord Campbell's Act is merely a continuance, in the personal representative of the deceased, of a right vested in the deceased in his lifetime; other cases hold that the right to recover is an entirely new right created by the act.

As we shall presently see, this dividing line in the authorities is highly important in this case. In fact it controls the controlling question. We believe that this can be dem onstrated. Now this suit for the damages done the deceased and his estate, as we have said, was based on an existing common-law right, when it was filed; had Goode lived to prosecute it, his right of action and right to prosecute and recover on it is not and cannot be controverted; at common law his cause of action would not, but his right to prosecute it would, have died with him. Therefore all this suit needed after his death was a removal of the common-law bar to a recovery. By referring back to section 5943 it will be seen that this obstacle is removed. By this section large classes of actions, which at common law abated with the death of the injured party, are made specifically to survive his death. Actions for "mesne profits," "injury to the person," or to "real or personal estate," or for any "deceit or fraud," no longer die with the injured man. This section of the statute preserves these causes of action quite independently of section 5945 and quite as fully as if it had not been passed. Then, further, in this case the cause of action had been put in suit in the lifetime of the injured man; and section 5944, "no action pending in any court shall abate by the death of either or both the parties thereto," etc., still further protects and preserves it; unless it can be successfully maintained that section 5945 merely continues the cause of action which had vested in Goode, and did not create a new cause of action, and that it being a mere continuance of the old right, by considering the three sections of the statute as in pari materia, it would follow that one or all of the supposed causes of action would merge into the one right of a recovery for the pecuniary loss sustained by the family on account of the death. This shows why it is so

important to determine whether section 5945 creates a new cause of action. If it does, the other sections discussed most certainly preserve the original cause of action.

We have become fully convinced that according to the weight of authorities, both in England and the United States, the cause of action given by Lord Campbell's Act (which is substantially section 5945) is a new cause of action and not a continuation of the one vested in deceased in his lifetime. And, outside of the authorities, reason brings this conclusion. If it is the same cause of action, why should not all the elements of damage recoverable in the old one be recoverable under the statute? Yet they are not. Under Lord Campbell's Act, and the state statutes modeled on it, the next of kin, or whomsoever of relatives may be named as beneficiaries, are never allowed to take into the account of their damages the pain and suffering the injured person endured; in such suit the damages are confined and limited to compensation for the pecuniary loss sustained by the beneficiaries, because of the death of the one from whom they confidently expect financial assistance had he lived. Besides, in such cases no part of the recovery becomes assets of the dead man's estate; it all goes to those named in the statute. But under the injured man's own cause of action all the recovery would be assets of his estate and subject to the demands of creditors, if any. So we see that, under the section we are discussing, the recovery is based and awarded on different elements of damage, and the amount recovered becomes funds of an entirely different nature. And, further, the right is given, and most generally arises, in cases of instantaneous death. It seems to us to be very difficult to argue that, in cases of instantaneous death, there was a cause of action vested in the decedent in his lifetime to be continued.

We shall not quote on this point the authorities, but shall content ourselves with citing a number of them, and referring any one who cares to go minutely and analytically into the English and early American authorities (prior to 1889) to a careful review thereof, made by Mr. Chas. R. Darling, in which, after a critical study, he arrives at the conclusion we have come to on the point. This paper is reported in 28 American Law Register (N. S.) at pages 385, 515, 577.

In volume 13, Сус. 316, tit. "Death," it is

said:

"In many jurisdictions, under statutes providing that whenever death shall be caused by wrongful act, such as would, if death had not ensued, have entitled the party injured to maintain an action, the persons who would have been liable had death not ensued shall be liable notwithstanding such death, and designating the beneficiaries, it is held that such action is not a survival of the former right of action, but that a new cause of action arises, since there is an element in it, in addition to

that which constituted the cause of action in favor of the person injured, namely, death must ensue as a consequence of the injury, and also because only the damages which ensue from the death are recoverable; and under these statutes, creating a new cause of action in favor of designated beneficiaries, the right of action thereunder is not affected by the fact that the deceased is instantaneously killed."

See Blake v. Midland Ry. Co., 18 Q. B. 93; Payne v. G. N. Ry. Co., 2 B. & S. 759; Barnett v. Lucas (Irish) 6 C. L. 247; Fink v. Garman, 40 Pa. 95; Perham v. Portland Elec. Co., 33 Or. 451, 53 Pac. 14, 24, 40 L. R.. A. 799, 72 Am. St. Rep. 730; Whitford v. Panama Ry. Co., 23 N. Y. 465; Malott, Rec., v. Shimer, Adm'r, 153 Ind. 35, 54 N. E. 101, 74 Am. St. Rep. 278; Andrews v. Hartford & N. H. Ry. Co., 34 Conn. 57; Smith v. Louisville & N. Ry. Co., 75 Ala. 449; City of Norwalk (D. C.) 55 Fed. 98; The Oregon (D. C.) 73 Fed. 846; Northern Pac. Ry. Co. v. Adams, 116 Fed. 324, 54 C. C. A. 196.

one

When it is once conceded or established that the widow's action, under section 5945 of the statute, is an entirely new cause of action, it follows that it is independent, both in the right and the enforcement of it, of section 5943; in other words, this last-named section might be stricken from the law without injury to the right to recover the widow's damage. And as has been suggested elsewhere, the right to recover decedent's personal damage for his estate is perfect under the common law, aided by section 5943, independent of and without any aid from section 5945. This leads us to believe that the two causes of action, in cases such as this, are coexistent; that a recovery on the does not bar a recovery on the other; that the damages to the estate begin with the wrong and cease with the death; that the widow's damages begin with the death; that they do not cover the same field, nor do they overlap. We think, after a somewhat extended study of the cases, arising under a similar condition of the statute law, that the holding here made is supported not only by reason but by the weight of authority. In approaching the matter, the investigator will be bewildered by the variety of views expressed and the apparently hopeless conflict into which the courts have fallen; but this is more apparent than real. Much of the trouble comes from the fact that the statutes involved in the various states differ widely. In some states we find only the statute allowing the widow's recovery, and no general revivor section. Obviously a decision from such a state would be valueless here. In other states the statute in terms or by necessary implication limits the right to one recovery. In some states the two sections of the statute were passed at different times, in others as part of the same legislation; and this fact

seems to have influenced the decisions, although it is difficult to see why it should. Therefore a decision, to be of value to us, must have been based on a similar condition of the statutes. And, as the question is a new one in this jurisdiction, we shall quote

above suggestion, are quite applicable to the instant case.

The Arkansas Supreme Court, where the statutes, while differing in phraseology, are materially alike in meaning, has gone into the question in Davis v. Railway, 53 Ark. 123-126, 13 S. W. 801, 802 (7 L. R. A. 283), and says:

* *

"These appeals involve three suits brought against the railway on account of an injury to a minor resulting in his death. Two are by the personal representative of the minor; one of them for the benefit of his estate, the other for the benefit of the next of kin. The third is an action by the father of the minor to recover for the loss of his son's services during his minority. The question presented at the threshold of the cases is: Who can maintain action against a railroad for an actionable injury resulting in the death of a minor? The answer involves a consideration of the common law and the statutes on the subject. The cause of action which accrued to the injured party by the common law survives to his administrator after his death by virtue of a provision of the Revised Statutes of 1838, which is carried into Mansfield's Digest as section 5223. The question then is: What is the effect of this statute (Mansf. Dig. §§ 5225, 5226) upon the general provision (Ib. § 5223) regulating the revival of actionable wrongs to the administrator or executor of the injured person? We are not without authority upon the question. The English rule, which is commonly followed by the courts of the states whose statutes embody the provisions of Lord Campbell's Act, is that the right of action, given by the latter statute to the personal representative of one whose death has been caused by the default of another, is created by the statute, and is not a continuation of the right of action which the deceased had in his lifetime, although the new right, it has been ruled, arises only by preserving the cause of action which was in the deceased. If the deceased never had a cause of action, none accrues to his representative or next of kin. The right which accrued to the deceased revives to his administrator by virtue of the former statute (Mansf. Dig. § 5223); the newly created right results from, and accrues on, the death of the injured party. Both actions are prosecuted in the name of the personal representative, where there is one, and may proceed pari passu, without a recovery in the one having the effect of barring a recovery in the other, because the suits are prosecuted in different rights, and the damages are given upon different principles to compensate different injuries. One is for the loss sustained by the estate and for the suffering from the personal injury in the lifetime of the decedent, the recovery in which goes to the benefit of the decedent's creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the next of kin, occasioned by the death alone. The death is the end of the period of recovery in one case and the beginning in the other. In one case the administrator sues as legal representative of the estate, for what belonged to the deceased; in the other he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them. Blake v. Railway, 18 Q. B. 93; Pym. v. Railway, 2 B. & S. 759; Barnett v.

Lucas. Irish. Rep. 6 C. L. 247; Needham v. Railway, 38 Vt. 294; Littlewood v. Mayor, etc., 89 N. Y. 24 [42 Am. Rep. 271]; Railway v. Phillips, 64 Miss. 693 [2 South. 537]; Hulbert v. Topeka [D. C.] 34 Fed. 510; Fordyce v. MeCants, 51 Ark. 509 [11 S. W. 694, 4 L. R. A. 296, 14 Am. St. Rep. 69] supra. The

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