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Domina Regina v. Paty, 2 Salk. 503, 91 Eng.Rep. 431 (1705). 600 JUDGMENT, EXECUTION AND APPELLATE REVIEW

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20. Domina Regina v. Paty, 2 Salk. 503, 91 Eng.Rep.

431 (1705).



Cli. 30

jection of Evidence, Prejudicial Remarks on the Part of Counsel in the Opening and Cos­ing Arguments, Misdirection of the Jury, and the like, there was, prior to 1285, No Method of Review, except by Motion for New Trial, which Motion was made After Verdict and Before Judgment, before the Court En Bane, sitting at Westminster, of which Court the Trial. Judge was usually a member. This Court could grant or refuse a New Trial as a matter of discretion, the exercise of which was not Reviewable at Common Law.
The Writ of Error is usually brought by the Party or Parties against whom the Judg­ment was given; but it may be brought by a plaintiff to Reverse his own Judgment, if er­roneous, in order to enable him to bring an­other action.21 But the defendant was not permitted to bring it contrary to his own agreement or that of his Attorney.22
In general, a Writ of Error was available for any Error or Defect in Substance that had not been Aided, Amended or Cured at Common Law, or by the effect of one or more of the Statutes of Amendments and Jeofails.23 Thus, the Entry of a Judgment in a Form inappropriate to the Specific Form of Action, constituted an Error of Law. And if the plaintiff brings an Action of Ejectment and omits the Allegation of Ouster, alleging only Title and Damages, such omission of a Sub­stantive Allegation will be available on Writ of Error after Final Judgment.
And in this connection, it should be ob­served that there was some doubt as to whether a Judgment on Demurrer could be Reviewed as a part of the Common-Law Rec­ord, without taking an Exception. Speaking to this very point in Hamlin v. Reynolds 24
21. Johnson v. Jebb, 3 Burr 1772, 97 Eng.Rep. 1091 (1705).
22. Cates t West, 2 T.R. 183, 100 Eng.Rep. 90 (1787).
23. See Chapter 20, Aider and Amendment
24. 22 Dl. 207, 200 (1859).

Walker, 3., declared: “It is believed that no reported case can be found, either in Great Britain or this country, in which it has been held that it is necessary to Except to the Judgment on a Demurrer, to enable the Par­ty to have the decision Reviewed in an Ap­pellate Court. By the Ancient Practice it was the Final Judgment in the case, on the Count or Plea to which the Demurrer was in­terposed, and Leave to Amend or Plead Over was rarely if ever given. And the Judgment on Demurrer, by the Modern Practice, is Final, unless the Court in the exercise of its discretion permits an Amendment, or grants Leave to Plead Over. The Judgment on the Demurrer is as much a Part of the Record as any other Judgment that is rendered by the Court in the Cause. The Office of a Bill of Exceptions is to preserve that of Record, which otherwise would not Appear of Record. By the Practice of Courts of Common-Law Jurisdiction, the Evidence in a Cause, the Decisions of the Court in Admitting or Re­jecting Evidence, Affidavits on Motions, and the Reasons Upon which Motions are Made, the Giving and Refusing Instructions, and Various Other Matters, do not Appear of Rec­ord, and are no part of it, unless embodied in a Bill of Exceptions, and by that means are made a part of the Record in the case. In the-decision of all such questions, the Judgment of the Court is not usually spread upon the Roll of its Proceedings. While Judgments by Default, on Demurrer, in cases of Nonsuit, Fi­nal Judgment on Verdict, etc., have by the practice at all periods, been so Entered and re­garded as a Part of the Record. It would be improper practice, to embody a Judgment on a Demurrer in a Bill of Exceptions, as it would uselessly incumber the Record and unneces­sarily add to the expense of litigation. The position that the Judgment on the Demurrer to the Second and Third Pleas in this case, was not Excepted to in the Court Below is-wholly untenable,”

Sec. 323



The Writ of Error: Coram Nobis

WHERE a Judgment was Erroneous in Point of Fact only, and Not in Point of Law, it could be reversed by the same Court, by Writ of Error Coram Nobis, or Quac Corant Nobis Resident, so called from its being found­ed on the Record and Process, which were

-stated in the Writ to remain in the Court of the Lord the King, before the King himself; as where the defendant, being under age, ap­peared by Attorney, or the plaintiff or de­fendant was a married woman, at the Com­mencement of the Suit, or died before Ver­dict, or Interlocutory Judgment; for Error in Fact was not the Error of the Judges, hence reversing it was not reversing their own Judgment.
323. A Bill of Exceptions is a Statement of Objections or Exceptions taken by a Party to the Rulings of the Court on Points of Law, Signed by the Judge who made the Decision, and Sealed with the Seal of the Court. -
AS observed in the discusElon of the Writ

-of Error, Errors Apparent Upon the Face of the Common-Law Record, after Final Judgment, were Reviewable by Writ of Error. If the alleged Error was One Not Apparent Upon the Face of the Record, but consisted of an Error that occurred At the Trial, such

2~. In general on Appellate Review I y Bills of Ex­ceptions, see:
Treatises: 2 Tidd, The Practice of the court of King’s Bench in Personal Actions c. XXXVII, Of Trials by the Country and their IncIdents, 785—791 (Phil­adelphia 1807); Mansel, A Treatise on the Law nnd Practice of Demurrer to Pleadings and Evi­dence, of Bills of Exception; Wager of Law; Is­sue and Trial by Itceord, &c. (London 1828); Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, Of the Proceedings in an Action, from Its Commencement to its Termination, 120—121 (3d Am. ed. by Tyler, Washington, D. C.

1900); Gould, A Treatise on the Principles of

Pleading, Pt. II, Procedure, e. I, Procedure In Gen— oral, 111—112 (0th ed. by Will, Albany 1909); Mar­tin, Civil Procedure at Common Law, c. xiv, Trial, Verdict, Judgment and Execution, 368 (St Paul 1905).

as the Improper Admission or Rejection of Evidence, Misdirection ofthe Jury, or Prej­udicial Remarks on the Part of Counsel in Opening and Closing Arguments, and the like, prior to 1285, there was No Method of Review except by Motion for New Trial, which Motion, as we have seen, was made before the Court En Banc sitting at West­minster, of which Court the Trial Judge was frequently a member. This Court could grant or refuse to grant a New Trial in its discretion, the exercise of which at Common Law was not Reviewable. This Method of Review left the Aggrieved Party somewhat at the mercy of the Original Trial Judge, as he was usually a Part of the Reviewing Court En Banc, and it provided No Method for Re­view, after Judgment, of Errors which occur­red At the Trial. Obviously, a New Method was needed by which such Errors could be incorporated into the Record.

The Origin of the Bifl of Exceptions

THE Method devised had its origin in that Great Remedial Statute of the Common Law, the Statute of Westminster II, 13 Edw. I, c. 31, 1 Statutes at Large 206 (1285), under which it was provided, in Substance, that where an Error occurred At the Trial, such as the Improper Admission of Evidence, the Aggrieved Party could allege an Exception; if the Exception was not allowed, he could reduce the Exception to Writing,26 have it Signed and Sealed by the Judge, and Attach it to the Record. This operation incorpo­rated the alleged Errors into the Record and when the Writ of Error issued, not only those Errors Apparent Upon the Face of the Common-Law Record, if any, but also those Errors which occurred At the Trial, and which had now been incorporated by means

26. The time for reducing the exception to writing was not prescribed by the statute, but it was held in the case of Wright -r. Sharp, 1 Salk. 288, 250, 91 Eng. Rep. 255, 258 (1705), that reason required the sub­stance of the exception be reduced to writing when taken and disallowed.



Ch. 30

of the force and effect of Chapter 31 of the Statute of Westminster U, also went up to the Appellate Court for Review. And thus the explanation of the distinction between Matters on the Record, and Matters in the Record, or, as sometimes otherwise express­ed, between Matter of Record and Matter of Exception, Matter of Record consisting of Errors Apparent Upon the Face of the Strict Common-Law Record; Matter of Exception referring to those Errors placed in the Rec­ord by the Bill of Exceptions.


324. Review is now generally by Appeal, which is a Statutory Proceeding. Where the Action is Legal in Nature, the Appeal is gen­erally limited to a Review of Questions of Law.

Where the Action is Equitable in Nature, Ques­tions of both Law and Fact are Reviewed on

Appeal, as was traditionally the case in Equity.

In 1848 the New York Code of Civil Pro­cedure made an Appeal the only Form of Review in that State. Other States abolish­ed the Writ of Error, but created a System of Review which included a Review of Legal Causes by Proceedings in Error, and for Eq­uitable Causes Review on the lines of the Appeal in Chancery.2~ An Appeal in New York was at that time regarded as a New Ac­tion.2° In those States which did not adopt the New York Statutory Appeal, an Appeal in the Nature of a Writ of Error was adopt­ed, including Alabama in 1853, Connecticut in 1882 and 1889, and Pennsylvania in 1889.20 The Method of Appeal in New York, being entirely Statutory, it was available only in the situations specifically provided for by the
27. Pound, Appellate Procedure in Civil Cases, c. IV, Appellate Procedure in the United States to the End of the Nineteenth Century, 260 (Boston 1941).
15. Pratt v. AlIen, 19 How.Pr. 450. 456 (1858).
19. Pound, Appellate Procedure in Civil Cases, c. XV, Appellate Procedure in the United States to the End of the NIneteenth Century, 261 (Boston 1941).

Code. In States where there was a Concur­rence of Review by a Writ of Error and an Appeal in the Nature of Error, the term “Ap­peal” began to be regarded as covering both Types of Review. This gradual merger of the two principal Modes of Review was a by­product flowing from the introduction of Eq­uitable Defenses and Equitable Relief in Ac­tions at Law. -

In the States today, Review on Appeal is generally a Statutory Proceeding, with more of the characteristics of the Common-Law Writ of Error, rather than the Appeal in Eq­uity, by which the whole cause was removed from a lower to an Appellate Court, and

there tried tie novo without reference to the

conclusions of the Inferior Court. The Mod­ern Appeal is more in the nature of a Writ of Error, in that the Appellate Court does not try the cause afresh or hear evidence. It is regarded as a continuation of the Original Litigation.
In an attempt to modernize and simplify Appellate Review in the Federal Courts, even before the Federal Rules of Civil Procedure were adopted, Congress, in 1928, abolished the Writ of Error in all cases, Civil and Criminal, except in cases coming from State Courts, and substituted the Modern Ap­peal as the Vehicle for Ordinary Appellate Review.30 The effect of this Legislation was to make Uniform the Procedure for Review in both Law and Equity, since prior to 1928 the Appeal, and not the Writ of Error, was the Method of Review from a Decree in Eq­uity.3
However, this Legislation did not remove the differences that had theretofore existed
30. Act of January 31, 1928 e. 14, as amended by

Act of April 26, 1928, c. 440. The wisdom of this

enactment has been iiuestioned, see, The Supreme

Court Under the Judiciary Act of jg~, 42 flarv.L.

Rev. 1, at 27—29 (1928).
$1. Robertson and Kirltham, Jurisdiction of the Su­preme Court of the United States, 806 (New York, 1951).

Sec. 324



with respect to the Scope of Review for Ac­tions at Law and in Equity. Perhaps the most significant difference was that Appeals from Judgments of Law Courts continued to be limited to Review of Questions of Law only, whereas an Appeal from an Equitable Decree permitted Review of the Facts as well as the Law.32
Today, the basic Federal Judicial Struc­ture is composed of District Courts,33 Courts of Appeals ~<‘ and the Supreme Court.35 The District Courts “are the Trial Courts of the System” and exist in each of the numerous Judicial Districts established by Statute.36 Decisions of the District Court are Appeal­
35. Marker, Federal Appellate Jurisdiction and Pro­Cetiure, 272—270 (Chicago 3935).
33. Sections 81—132, 3331—1359, Title 28 U.S.C.A.
U- Sections 41—48, 1201—12.94, Title 28 U.S.C.A.
35- Seeiions 1—40, 1251—3257, Title 28 JJ.S.C..A. There arc, of course, other Federal Courts such as, for ex­ample, the Court of Claims (Sections 171—175, Title 28 TJ.S.C.A.), the Court of Customs and Patent Ap­peals (Sections 211—216, Title 28 U.S.C.A.), the Cus­toms Court (Sections 251—255, Title 28 U.S.CA.). The “Tax Court of the United States” is strictly speaking, not a Court but rather “an independent agenc-y in the Executive Branch of the Government”, l4unn, .lurisdietion and l’ractice of the Courts of the United States, 33 (St. Paul, 1949).
36. Bunn, Jurisdiction and Practice of the Courts of the United States, 31 (St. Paul, 1949); See Sections 81—131, Title 28 U.S.C.A., for enumeration and lo­cation of these Judicial Districts.

able as of Right to the Court of Appeals, “ex­cept where a Direct Review may be had in the Supreme Court.” ~ The distinction be­tween Appeals in Actions which are Legal in Nature, and those which are Equitable in Nature, is maintained, with the Appellate Court reviewing Questions of Law as to the Former and both Law and Fact as to the Latter,33 except that the Appellate Court also reviews Questions of both Law and Fact in Actions which are Legal in Nature when the Action is tried by a Court without a Jury.39 In Actions which are Equitable in Nature, and those which are Legal in Nature and tried by a Court without a Jury, the Findings of Fact of the Trial Court may, however, be set aside by the Appellate Court only when they are dearly erroneous, and provided due regard is given to the opportunity of the Trial Court to judge the credibility of wit­nesses.4°

37. Section 1291, Title 28 U.SC.A. This section by its terms refers only to “flnal” decisions of the Dis­trict court; however, the following sectIon, 1292, permits Appeals also from certain interlocutory de­cisions.
33. Burns Bros. v. Cools Coal Co., (3d Cir. 1930) 42 F.2d 109; See 6 Ohllnger, Jurisdiction and Pro­cedure of the Courts of the United States in Civil Actions, 590 (cincinnati, 1954).
39. Federal Rule of Civil Procedure 52(a), Title 28 U.S.C-A. -

40. Ibid.


References are to Pages

Abbott v. Kimball, 201

Abe Lincoln Mut. Life & Accident

Aber V. Bratton, 267

Abererombic v. parkburst, 268

Abington v. Lipscombe, 222

Abrahams V. Sones, 576

Aeerro v. Pctrone, 113

Ackcrson v. Eric Ri’. Co., 104

Acme Food Co. v. Older, 345

Acton V. Simonds, 355

Acton v. Symon, 320

Adair v. Loft, 233

Adair’s Adm’r v. Rogers’ Adnfr, 361

Adam v. Arnold, 304

Adams v. Abram, 598

Adams v. Adams, 503

Adams v. Barry, 129

Adams v. Clark, 221

Adams v. Columbian Steamboat Co., 357

Adams v. Crosby, 342

Adams v. Cross, 117

Adams v. Filer, 515

Adams v. Freeman, 168

Adams v. Gardner, 129

Adams v. Bemmenway, 154, 166, 176, 177

Adams v. Munter, 578

Adams v. O’Connor, 161, 830

Adams v. Richardson, 201

Adams v. Wiggin, 421

Adams v. Wood, 268

Adamson v. Jarvis, 189

Addams v. Tutton, 305

Addington v. Allen, 575

Addison v. Overend, 421

Adler v. Prcstwood, 246

Admiralty Com’rs v. The Amcrika, 165

Aetna Ins. Co. v. phelps, 331

Aetna Life Ins. Co. v. Hoppin, 242

Ahitbol v. Benneditto, 113, 114

Ainslie v. Martin, 413

Ainsworth v. Partillo, 219

Aireton v. Davis, 201

Akerley v. Halnes. 161, 165. 192

Alabama Consol. Coal & Iron Co. v. Heald, 561

Alabama Fuel & Iron Co. v. Bush, 94

Albert v. Seilcr, 570 -

AllAn v. Talbot, 98

Alderman v. Way, 159

Alderson V. Ennor, 352

AMine Mfg. Co. v, Barnard, 343, 358

Aleberry V. Walby, 333

Alex v. Shalala, 239

Alexander v. Capital Paint Co., 340

Alexander v. Shalala, 230

Alexander v. Vane, 351

Algeo v. Algco, 341, 359

Allen v. Colliery Engineer Co., 525

Allen v. Crary, 280

Allcn v. Ford, 358

Anderson v. Martlndale, 423

Anderson v. Talcott, 500

Anderson v. Todesco, 208

Andrew v. Deshler, 200


Soc. v. Miller, 348

Allen v. Gray, 108

Allen v. Hartfield, 330

Allen v. Lucket, 425

Allen v. McKibbin, 342, 359

Allen v. Oppenheimer, 200

Allen v. Patterson, 12, 22, 90, 299, 300

Allen v. Scott, 7, 520, 521

Allen v. Smith, 213, 285

Allen v. Taylor, 113

Allen v. Player, 160

Allen v. Tnscarora Val, Ry. Co., 526, 559

Allen V. Watt, 420

Allen Clark Co. v. Praneovich, 94

Allied Amusement v. Glover, 309

Allis-Chalmers Mfg. Co. v. City of ChIcago, 561

Almada V. Vandecar, 263

Almond v. Bonnell, 118, 238

Almy V. Rarris, 201, 297

Alsope V. Sytwell, 137

Altes v. thnckler, 208

Ambler v. Whipple, 505

Ambrose v. Roe, 364

American lIsp. Co. v. haggard, 428

American Trading & Storage Co. v. Gottstein, 399

Amburst v. Sky,mer, 146

Amory V. Flyn, 209

Amos v. Cosby, 308

Anderson v. Boneman, 267

Anderson v. Courtrigbt, 235

Anderson v. Hapler, 257

Anderson v. Lewis, 418

Koffler & Reppy Com.Law PIdg. KB


Androseoggin Water Power Co. v. Metcalf, 358

Andrus v. Waring, 525, 528

Anheuser~Busch Brewing Ass’n v. Bond, 398

Anniston Electric & Gas Co. v. Rosen, 147

Anonymous, 162, 191, 260, 278, 280, 290, 334, 454, 455, 471, 490, 555

Aasorge v. Kane, 407

Anthony v. Wilson, 503

Applebee V. Rumery, 180

Appleby v. Brown, 311, 312

Appleton v. Barrett, 268

Appo V. The People, 597

Arasmith V. Temple, 165, 193

Archer v. C]aflin, 120

Archibald v. Argall, 420

Arden V. Pullen, 357

Arizona Commercial Mining

Co., 105, 208, 352

Arlett v. Ellis, 441

Anus v. Ashley, 351

Armstrong v. Cooley, ISO

Armstrong v. Webster, 149, 476

Arnold v. Dodson, 352

Arnold v. Foot, 179

Arnold v. Jefferson, 213

Arthur v. Griswold, 194

Arthur v. Ingels, 251

Arthur v. Richards, 387

Ashley v. Root, 187

Aslin V. Parbin, 240

Atkins v. Barnstal,le County, 359

Atkins v. Byrnes, 499

Atkins v. Lewis, 233

Atkinson v. Baker, 200, 247

Atkinson v. Bell, 288, 358

Atkinson v. Scott, 351

Atlanta & W. P. R. Co. v. Jacobs’ Pharmacy Co., 331

Atlantic Mut. Fire Ins. Co. V. Young, 332

Atlantic Refining Co. v. Feinberg, 254

Atlas Shoe Co. v. Beehard, 212, 218

Atlee v. Baclthouse, 352

Attersoll v, Steve,]s, 189

Attorney General v. Meller, 122, 123

Atwood v. Davis, 431

Atwood v. Lucas, 344

Aubery V. James, 445

Auburn & Dwasco Canal Co., The v. Lelteb, 400, 403, 404, 477

Auditor v. Woodruff, 880, 598

Augusta, City of v. Moulton, 514

Aurora Trust & Savings Bank v. Whildln, 478

Austen V. Gervas, 133

Austin v. Dills, 126

Austin v. Jervoyse, 133

Avery v. Inhabitants of Tyringham, 324, 573

Avery v. Spieer. 171, 172

Axford v. Mathews, 214

Aycr v. Bartlett, 157, 183

Ayes v. Hewett, 266

Ayliff V. Arehdale, 321

Azparren v. Ferrel, 257, 263


Baals v. Stewart, 212

Babb v. Mackey, 201

Babcock v. Trice, 516

Bach v. Owen, 329

Bacon v. Davis, 267

Bacon v. Sehepflin, 420, 429

Backus v. Clark, 110

Badger v. Batavia Paper Mfg. Cc., 219

Badkin v. Powell, 486

Badlam v. Tucker, 213

Bagagiio v. Paolino, 319

Bailey v. Adams, 218

Bailey v. Bussing, 326

Bailey v. Clay, 329, 331

Bailey v. Cowles, 501

Bailey v. Ellis, 262

Bailey v. Freeman, 326

Bailey v. Valley Nat. Bank, 513

Baillie v. Columbia Gold Mm. Co., 77

Bain v. Hunt, 361

Baker v. Bailey, 445

Baker v. Beers, 222

Baker v. Blackman, 441

Baker v. Corey, 340

Baker v. Dumbolton, 97

Baker v. Fales, 264, 266, 267

Baker v. Faweett, 516

Baker v. Fuller, 330

Baker v. Howell, 215

Baker V. Jameson, 325

Baker v. KIng, 160

Baker v. Lauterbaeh, 343

Baker v. Lothrop, 221

Baker v. Morphew, 198

Balcom V. Craggin, 327

Baldridgc v. Allen, 167

Baldwin v. City of Aberdeen, 403

Baldwin v. Cole, 219, 221

Baldwin v. Whittier, 169

Ball v. Fatterson, 216

Ballance v. Flood, 233

Ballou v, O’Brien, 268

Baltimore & 0. B. Co. v. PoIljç Woods & Co., 340, 471


References are to Pages

Andrews v. Allen, 312

Andre~vs v. C-allenth’r, 320

.Aaidrews V. Hoeslich, 267

Andrew’s v. Ives, 321

Andrews v. Montgomery, 361

Andrew’s v. Morris, 125

Andrew’s v. Thayer, 108

Andrews v. Whiteliend, 111, 132, 136, 327

Andrews V. Williams, 126

Andros v. Childors, 376

Co. v. Iron Cap Copper

Baltimore & 0. & C. B. Co. v. flUnols CenC~ K Cc., 490

Bane v. Detrick, 221

Banik v. Bishop-Stoddard Cafeteria Co., 336

Bank of Bristol V. Ashworth, 411

Bank of Buffalo v. Crouch, 264

Bank of Columbia v. Hagner, 330, 340

Bank of New Brunswick v. Arrowsmitb, 72

Bank of New South Wales v. O’Connor, 251

Bank of Orange County V. Brown, 188

Bank of United Stotes v. Smith, 541

Banks v. Whetstone, 247

Bannister v. Read, 341, 342

Bannister v. Victoria Coal & Coke Co., 324, 364

Banorgee v. Hovey, 320, 321

Banyer V. Empie, 235

Barber v, Chester County, 276

Barber v. Rose, 516

Barber v. Summers, 145

Barber v. Vincent, 397

Barbour v. Breckenridge, 505

Barhour’s Adm’rs v. Areher~ 126

‘Barclay v. Howell, 238

Barkeloo v. Randall, 168

Barker v. Braharn, 168

Barker v. Chase, 161

Barker v. Justice, 559

Barker v. Lade, 126, 127

Bark-er v, Miller, 213

Barkhamstcd, Town of v. Parsons, 297

Barley v. Roosa, 115

Barlow v. Garrow, 576

Barnard V. Duthy, 332

Barnard v. Poor, 180

Barnes V. Bartlett, 265

Barnes v. Brookman, 575, 576

Barnes v. Cole & Fitzhugh, 178

Barnes v. ford, 165, 193

Barnes r. Jcenyon, 105

Barnes v. Northern Trust Co., 144

Barnett v. Barnett, 400

Barnett v. Phelps, 198

Barney V. Dewey, 189

Barnitz V. Casey, 235

Barnum V. Landon, 311, 312, 316

Barnum v. Martin, 187

Barnum s’. Stone, 209, 219

Barr V. Craig, 352

Barrett V. Carden, 294, 295

Barrett V. Douglas Park Bldg. Ass’n, 285

Barrett v. McAllister, 510

Barrons v. Ball, 199

Barrow V. Burbridge, 555

Barry V. Peterson, 154, 166, 176, 177

Bartholomew v. Jackson, 319

Bartlett V. Perkins, 159, 190

Bartlett V. Prescott, 480

Barton v. Dunning, 212

Barton v. Webb, 134

Barwjck v. Barwlck, 213

Bascom V. Dempsey, 157

Basset V. Maynard, 210

Bateman V. Allen, 122

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