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not been ascertained, it is allowed to be set-off on the same ground when its value is determined. Warren v. Franklin Ins. Co., 104 Mass. 518. This rule applied to a partial as well as to a total loss; and when the amount is ascertained, it may be set-off against the amount due on the note. Opinion by ENDICOTT, J.— Un. Mut. Mar. Ins. Co. v. Howes.

DRUNKENNESS-ARREST.-1. The "crime of drunkenness," as set forth in the Gen. St. Ch. 165, § 25, is "drunkenness by the voluntary use of intoxicating liquor." It is possible, therefore, that one may be drunk, without being guilty of the offense described. Arrested in a public place, kept in custody till sober, and then brought before a court of justice, he may be able to show that the intoxication, which he admits existed, was produced by some other cause or means than the voluntary use of intoxicating liquor. If he can do this, he is entitled to acquittal and discharge. 2. The right of an officer to arrest without a warrant, reaches by Stat. 1876, Ch. 17, the case of any person found in a public place in a state of intoxication, and does not depend on the intoxication having been produced by means which render the intoxicated person guilty of the "crime of drunkenness." The mere fact, therefore, that one arrrested by an officer, without a warrant for drunkenness, was acquitted at the trial of the complaint, is not conclusive evidence that he was not drunk when arrested, nor that the officer was not in the discharge of his duty in making the arrest and keeping him in custody afterwards as a preliminary to making complaint against him. Opinion by SOULE, J.—Com. v. Coughlin.

DEFECTIVE HIGHWAY-DUE CARE-CONTRIBUTORY NEGLIGENCE.-In an action of tort for injuries occasioned by an alleged defect in a highway, it appeared that the plaintiff drove his horses and loaded wagon, upon which himself and wife were riding, out of the traveled part of the highway into a ditch, two and a half feet deep, containing some six inches of mud and water. The highway upon which he was traveling was without a railing, but was constructed twenty-six or twenty-seven feet wide, for the use of carriage travel, and was, for this entire distance, even, smooth and hard. The plaintiff testified that he had the guidance and control of his horses; that he knew of the alleged defect, having just been warned by his wife, and that he drove so near the edge of the road in the daylight that, in order to prevent going over sideways, he turned his horse square off the bank, receiving the injuries. The plaintiff contended that when he found himself so near the edge of the bank, he could not stop without going off, and that he was obliged either to run into an approaching wagon, or turn off as he did. Held, that the plaintiff's position, so near the bank, was through his own want of due care, for which no excuse is shown. A party can not relieve himself from a dangerous position, into which his own fault has brought him, and hold the town responsible for the result. Mayo v. B. & M. R. R., 104 Mass. 137; Gaynor v. O. C. & N. R. R., 100 Mass. 208. Whether the want of a railing is a defect is not necessary to be considered. Opinion by COLT, J.-Little v. Inhabs. of Brockton.

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subject to taxation, on the ground of irregularities in the assessment and levy of the taxes and the proceedings of the sale without the party seeking equitable relief, shall first pay or tender the taxes which are admitted to be due, or just, or which the court finds, from the evidence, ought to be paid. 2. Where the assessment roll has been properly filed with the county clerk, and no claim is made that it is lost, or that it can not be produced by the county clerk, Held, not erroneous for the district court to reject evidence tending to prove who made the assessment of the real estate in controversy. Opinion by HORTON, C. J. Affirmed. All the justices concurring.- Hagaman v. Commrs. of Cloud County.

CONSTRUCTION OF LETTER.-Where G. sent to D. a letter of which the following is a copy:

"October 1st, 1873. "Victoria, Ellis County. "Mr. Dabney-Dear Sir: Please let Mr. Seth and family have whatever they may want for their support and I will repay you for the same.

"George Grant." and therefore D., at the instance of the Seth family, procured a physician to attend the family, and such physician furnished medicines and medical services to the value of $200; Held, in an action brought by D. against G. therefor, that D. could not recover upon the authority of the letter for the services and medicines furnished by the said physician. Opinion by HORTON, C. J. Reversed. All the justices concurring.-Grant v. Dabney.

ENFORCEMENT OF JUDGMENT AFTER A WRIT OF ERROR IS SUED OUT-CONSTRUCTION OF SEC. 555, CIVIL CODE OF 1868.-A contract in these words: "Mr. D., Dear Sir: please let Mr. S. and family have whatever they may want for their support, and I will repay you for the same, G." is not "a contract for the payment of money only," within the meaning of section 555 of the civil code. Gen. Stat. 739. Therefore, where a judgment was rendered in favor of D. and against G. on such a contract, and G. then took the case to the supreme court on petition in error, giving an undertaking as prescribed by section 551 and 554 of the civil code, (Gen. Stat. 737, 738) D. would have no authority to give the undertaking prescribed by said section 555, and obtain leave to enforce said judgment. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Grant v. Dabney.

COVENANTS OF conveys by deed with covenants two certain pieces of land to M. M conveyed one of said pieces of land to H. H was afterwards evicted. H then sued C on the covenants. The deed from C to M expressed a consideration of $575. On the trial it was shown that $375 thereof was for the piece of land conveyed to H, and $200 thereof was for the other piece of land; but C offered to prove that there was in fact no consideration for said deed, except a worthless and useless patent right, and that I knew it when he purchased his said land. But the court excluded such evidence. Held, that the court committed error; that if C, in fact, received no consideration from M, and if H, in fact, knew this at the time of his said purchase, he can not recover anything from C on C's covenants. Opinion by VALENTINE, J. Reversed. All the justices concurring.-Clippenger v. Hastings.

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bonds by the vendee against the vendor, without a return, or an offer to return to the vendor, the worthless paper; and, also, Held, that a resale of such forged bonds to a subvendee for a sum in excess of the price paid the vendor is no bar to the recovery of the money paid by the vendee to such vendor, although the money on the resale has not been refunded by the first vendee to the subvendee, Opinion by HORTON, C. J. Valentine, J., concurring. Affirmed. Brewer, J., not sitting.-Smith v. McNair.

FORECLOSURE OF MORTGAGE ON REAL ESTATEATTORNEY FEES ON CROSS-PETITION-1. Where it appears from a mortgage that certain pieces of real estate, with two mills and "all and singular the hereditaments and appurtenances thereunto belonging," are mortgaged; and it also appears from the pleadings and admissions of the defendants and mortgagors, that a certain mill-dam and water power are appurtenant to said mills and real estate; and it does not appear whether said dam and water power are situated on said said real estate or not; and the court below renders judgment that said mortgage is a lien upon said dam and water power, as well as upon the real estate, more particularly described in the mortgage; Held, not error. 2. Where M., one of several defendants in a foreclosure suit, sets forth, in his answer, a cause of action on a promissory note and mortgage against L., a co-defendant; Held, that such a thing is, in effect, the bringing of an action on such note and mortgage against such co-defendant; and therefore, where such co-defendant has stipulated in such mortgage to pay an attorney's fee to the holder thereof, for the prosecution of any action that might be brought to recover any amount due on said note and mortgage; Held, that the court, when rendering judgment on said note and mortgage, does not err in also rendering a judgment for an attorney's fee. Opinion by VALENTINE, J.-Affirmed. All the justices concurring.— L anone v. McKinnon.

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LIBEL CRIMINAL AND CIVIL PROSECUTIONS PRACTICE ANSWER.-1. In all criminal prosecutions for libel the truth of the matter charged as libelous is not a full and complete defense, unless it appears that the matters charged were published for public benefit, or in other words, that the alleged libelous matter was published for justifiable ends, but in all such proceedings, the jury, after having received the direction of the court, shall have the right to determine, at their discretion, the law and the fact. 2. In all civil actions of libel, brought by the party claiming to have been defamed, where the defendant alleges and establishes the truth of the matter charged as defamatory, such defendant is justified in law and exempt from all eivil responsibility. In such actions, the jury must receive and accept the direction of the court as to the law. 3. In a civil action prosecuted by a party to recover damages against the publisher of a newspaper for an alleged libel and a plea of justification is filed and thereon evidence of the truth of the matter published is submitted and the court instructs the jury to the effect that the fact of the language being true is not alone an answer to the charge, but can only be shown in mitigation of damages; that it is not a defense simply to show the truth of the matter published, but the party must go further and show that it was not only true, but that he did it with good motives and for justifiable ends, that he had some purpose in view that was justifiable; that if the defendant acted honestly for good purposes and for justifiable ends and what he said was true then he is to be excused or acquitted; and after a verdict for the plaintiff, on motion of the defendant, the court grants a new trial for misdirection of the jury, Held, not error, as the instructions are not applicable in a civil action. 4. Where in answer

to a civil action of libel, the defendant files the defense "that the matters charged as defamatory are true," and no motion is filed to make the answer more specific, no demurrer is presented thereto; no objections are taken on the trial to the proof of the truth of the alleged libelous publication, and the court and all the parties treat the defense as one of justification on the ground of the truth of the publication: Held, that it is too late after the verdict to attack such answer as insufficient as a plea of justification. Affirmed. Opinion by HORTON, C. J. Valentine J., concurring. Brewer, J., not sitting in this case. Castle v. Houston.

BOOK NOTICES.

TENNESSEE REPORTS, Vol. 57. Reports of Cases Argued and Determined in the Supreme Court of Tennessee for the Middle Division, at the Decembet Term, 1872. Edited by JERE BAXTER. Volume I. Nashville: James Browne. 1878.

This volume contains, so far as we can learn from the preface, the unreported decisions of the Supreme Court of Tennessee, beginning where 9th Heisk. concluded. Within its five hundred and forty pages, over one hundred cases are reported. A table of Tennessee cases cited and an excellent index are also added. The head-notes are clear and comprehensive, the type large and distinct. Without saying more, it is, perhaps, sufficient to remark, that the volume, both in its plan and execution, has been approved by Chancellor Cooper and the State Reporter.

NEW JERSEY EQUITY REPORTS, VOL. 28. Reports of Cases Decided in the Court of Chancery, the Prerogative Court, and on appeal in the Court of Errors and Appeals of the State of New Jersey. JOHN H. STEWART, Reporter. Vol. I. Trenton, N. J., 1877. To the equity lawyer this will be a valuable book. The cases reported here are some of them decided twice-first by the chancellors at the hearing, and secondly by the court of errors and appeals. Consequently, in not a few cases, the opinions of two courts are found in one volume. Many of the cases are of great interest, particularly that of Williamson v. The New Jersey Southern R. R., p. 277, which contains an elaborate and learned review of the nature of rollingstock of a railroad. To the cases of Thomas Iron Co. v. Allentown Mining Co., p. 77, upon the question of the right of the owner of the surface of land to reasonable support as against the worker of an adjoining mine, and his remedy to compel it; Camden Horse R. R. Co. v. Citizens' Coach Co., p. 145 (see 4 Cent. L. J., 410), holding that the public right to use a horse railroad track in the streets of a city for vehicles, incidentally in traveling through the streets, does not authorize a transportation company to use it in competition with the railroad company; Stoudinger v. City of Newark, p. 187 (see 4 Cent. L. J., 410), as to the power of municipal corporations to appropriate to particular purposes land acquired by dedication; Harris v. Betson, p. 211, upon the degree of unsoundness of mind in a testator, which will justify a court of equity in setting aside a will made by him; Force v. City of Elizabeth, p. 403, as to when compound interest will and will not be allowed; Lee v. Zabriskie, bearing upon the construction of devises to a man and his wife without further description or condition; Morrow v. Dows, p. 459, as to the lien of taxes upon realty at common law, and under statute; Midland Tunnel & Ferry Co. v. Wilson, upon the jurisdiction of equity to protect ferries, the reporter has appended lengthy and valuable notes. In every respect, his work is worthy of his reputation. The cases reported-about 150 in all-were decided at the different terms during the year 1877.

NOTES.

THE Illinois Supreme Court, at the present term, substituted the following rule as to appeals for the one in force during the past term: In all cases removed from the Appellate Courts to this court, by appeal or writ of error, only so much of the record embracing a copy of the final judgment or decretal order of the Circuit Court, with a short statement of the facts found by the Appellate Court, and a copy of their final judgment, as shall be necessary to clearly and fully present the question upon which the decision of this court shall be sought, shall be made up, and the same shall be directed by at least two of the judges of the court from which the record is brought, and their order to that effect shall be certified as part of the record. Adopted January 18, 1878.

AT the Illinois State Bar Association dinner, Judge Gillespie, one of the few living lawyers who went on circuit with Lincoln, Douglas, and the other pioneers of the Illinois bar, gave some interesting reminiscences of those times. The people used to crowd the court-houses to watch the giants of the profession contend against each other. Fun was an element that entered largely into the composition of all forensic efforts in that day. Lincoln and Linder would keep judge, jury and audience convulsed with laughter. Indeed they could, upon all proper occasions, laugh a case out of court. The lawyers then, unquestionably, were more familiar with elementary principles than they are now. The only books to which the lawyers had access in the early days were elementary. So little was known of reports, that Adolphus Hubbard convinced a jury that Johnson, from whose reports David Baker had quoted, was a clock pedlar who had perambulated the country gathering up idle rumors, traditions and current reports, and published them in a book, which got the name of Johnson's Reports. Hubbard asked the jury how Mr. Baker dared to ask them to believe Johnson's Reports, when they would scarcely believe reports gotten up in the same neighborhood. Hubbard, of course, gained his cause before the jury.

HON. ALEXANDER S. JOHNSON, United States Circuit Judge for the Second Judicial District, comprising the states of New York, Vermont and Connecticut, died on January 26, at Nassau, Bahama Islands, of water on the chest. He was born, says the Albany Law Journal, in Utica, N. Y., July 30, 1817. He went through a course of study at Yale College, and was admitted to the bar when just 21 years of age. He practiced first in Utica and then in New York. He was elected Justice of the Supreme Court, at the first election under the Constitution of 1846. In 1851 he was elected to the Court of Appeals. This position he held for nine years. In 1860 he returned to his old home in Utica, and resumed there the practice of law. In January, 1873, he was appointed to the bench of the Commission of Appeals, and in December of the same year he was appointed Judge of the Court of Appeals. Subsequently, he was appointed commissioner to revise the statutes of New York, which position he resigned when he was appointed to the judicial office he held at the time of his death. He was also one of the Regents of the State University. His rank as a jurist and a man of learning was high. The opinions delivered by him are esteemed among the ablest appearing in the reports.

THE Canada Law Journal, in its last issue, criticises with much vigor the custom of publishing, in the official reports, the dissenting opinions of the bench. |

There can be no doubt at all, that a final tribunal should give forth no uncertain sound as to the law, and that the publication of conflicting judgments can only tend to weaken the authority of the rule laid down, and so to perpetuate uncertainty and to increase litigation. Another argument which it uses, comes to us with even more force, viz: that the suppression of dissenting opinions would reduce the bulk and number of reports to a material extent. "We think we speak advisedly," it says, "when we say that the little weight possessed by decisions of Lower Canada courts is partly owing to the diverse views entertained and expressed by the different judges who take part in the disposition of the case. Much better to suppress the disagreement, and not to give prominence to it by publishing in extenso all that can be said against the opinion of the majority. As in family matters, if there be disturbances, better not aggravate the trouble by taking the public into your confidence. When Mr. Justice Maule, according to the well-known story, gave judgment, after Judge A and Judge B had just delivered conflicting opinions, by saying that he agreed with his brother B, for the reasons given by his brother A, he never intended that the views of the court should be published for the benefit of the profession, or the confusion of suitors." While heartily concurring in the opinion of our contemporary, it is not a little surprising to find that, in the American courts, "it is not the custom to report any opinion given by the dissenting judges; the fact that such a judge dissents is mentioned, and no more." One need only go away from home in order to learn the manners of his country.

A SUBSCRIBER writes: "Allow me to propound a question in professional ethics: A is elected judge to preside over several counties. Shortly after A's election and qualification, B, A's brother, comes from another state into his brother's district and begins practice, being obliged, as the leading member of the firm, to appear often before his brother, the judge. Is there anything in professional ethics that would render such practice in bad taste? Ought an honest and upright judge, in cases of the above kind, where the opposite party or counsel object, to refuse to hear a case, and ask another judge to preside in his place?" The first part of this question which, broadly, is, should a relative of a judge be debarred from practicing in his court, is easily answered in the negative, both by common sense and by precedent. If there were any reason for such a rule, the only safe way would be to adopt a law that only one member of a family should be permitted to enter the legal profession. In England, where nearly all law is administered in one city and in one hall, such a question has never, that we are aware of, been raised. Lord Chancellors Bacon and Yorke, Erskine, Coleridge, Pollock, Denman and Thesiger, names known to almost every lawyer on this side of the Atlantic, were or are sons of judges, and practiced in the courts in which their fathers sat. To take precedents nearer home, we need only refer to Canada's first chancellor, Blake, and his son, the present vice-chancellor, Mr. Justice Field, of the Supreme Court of the United States, and his brother, David Dudley Field, the distinguished lawyer. As regards the second part of our correspondent's query, we presume that no lawyer would ask a judge to refer a case to another unless he had some reason for believing that he would be influenced by the relationship. No more injurious attack than this suggestion of possible partiality could be made upon the integrity of a judge. If he can not administer justice" without fear, favor or affection," he is no longer fit for his place, and our subscriber can readily see that he would not be unwarranted in resenting the intimation that he might possibly violate his oath.

The Central Law Journal.

SAINT LOUIS, FEBRUARY 22, 1878.

CURRENT TOPICS.

THE Supreme Court of Missouri, during the present term, in State v. Willis, decided a question of great interest to criminal lawyers. The defendant had been convicted of grand larceny, the crime being committed prior to, but the trial not occurring until after an act went into effect changing what had been before known as grand larceny into petit larceny and altering the punishment. It was held that although an ex post facto law changing the punishment after the commission of an offense can not have any retrospective operation, yet such a law, dispensing with some separable portions of punishment, is in mitigation, and, therefore, not unconstitutional. An ex post facto law is said to be one "which renders an act punishable in a manner in which it was not punishable when committed." "Laws, however, which mitigate the character or punishment of a crime already committed may not fall within the prohibition, for they are in favor of the citizen." 2 Story on Const., S 1345, and cases cited. There has been great diversity of opinion as to what in this connection constitutes mitigation. In Texas, it has been held not to "mitigate" the punishment, where for the death penalty was substituted the infliction of stripes, and this upon the ground of the peculiarly degrading character of the latter method of punishment. Herter v. State, 7 Tex. 69. On the other hand, in South Carolina, where the punishment, death, was before final judgment changed to fine, whipping and imprisonment, the new law was applied in passing sentence. State v. Williams, 2 Rich. 418. In Indiana, the law in force punished perjury by not exceeding one hundred stripes. In a certain case, before trial the punishment was changed to imprisonment in the penitentiary, not exceeding seven years, Strong v. State, 1 Blackf. 193; and this last act was held applicable and not obnoxious to constitutional objections. This decision has, however, met with criticism from Mr. Bishop. 1 Bish. Cr. L., § 219; Cooley, Cons. Lim. 267. See, also, Hastings v. People, 22 N. Y. 217; Shepherd v. People, 25 Vol. 6. No. 8.

N.Y 406; Ratzky v. People, 29 N. Y. 124; Knickler v. People, 5 Park Cr. Rep. 212.

IN English v. Ozburn, 5 Rep. 205, decided by the Supreme Court of Georgia, a rule nisi to foreclose a mortgage on realty was served on defendant January 2, 1877. The next term of the superior court met April 2, 1877. The Code, § 3962, requires service of the rule nisi to be made three months before the first day of the next term of court. The trial court held that the three months had not elapsed, and set aside the judgment of foreclosure. On appeal this decision was reversed, Jackson, J., saying: In Jones v. Smith, 28 Ga. 41, the rule to count the first day was made applicable to months. That case was on the statute which required certiorari to be sued out within six months "from and after" the trial. In Pugh et ux. v. Duke of Leeds, 2 Cowper, 714, Lord Mansfield discusses the doctrine at length, and decides that the first day will be counted always in private writings when so counting it will effectuate and not destroy the deeds of the parties; that no such technical and foolish distinctions as between the meaning of "from the date" and "from the day of the date," that had obtained in some of the old cases, should be made, but common sense should be applied to ascertain the intention of the parties and get at the justice of the case. In that case, he construed the words "from the day of the date" to include the day of the date in counting when the lease should begin. 1 Chit. Practice, 766775; 2 Ib. 69; 9 B. & Cross. 603. So here, we think, the statute should be construed so as to carry out the intention of the legislature, as gathered from the entire code, and do justice under the law, fairly construed, to the parties. From the first of one month to the first of the next month, in common language and common sense, is always one month; and to count from the second of one month to the second of the next does not vary the length of time—it is a month still. So from January 1st to April 1st is three months, and it can make no difference if the count be from January 2d to April 2d. If the party was served on January 2d (fractions of days not being counted in such cases), he was, in contemplation of law, served at day-break, or rather, perhaps, the first minute after twelve

o'clock of the night before; and he had three calendar months up to day-break of April 2d, or the first minute after twelve o'clock of the night before. Defendant had all of February and March, thirty days in January, with one in April to stand for the 31st of January, making three full months. The rule is simple: In such cases the first day is to be counted, and from the first or second, or any other day of the month, to the corresponding day of any succeeding month, will be computed one, two or three full months, as the case may be.

A statute of Oregon, similar in this respect to those of other states as to the service of process upon absentees, declares that when service cannot be personally made, and the defendant, after due diligence, cannot be found within the state, and "that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner, appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in the state, such court or judge may grant an order that the service be made by publication of summons

when the defendant is not a resident of the state but has property therein and the court has jurisdiction of the subject of the action"-the order to designate a newspaper of the county where the action is commenced in which the publication shall be made-and that proof of such publication shall be "the affidavit of the printer, or his foreman, or his principal clerk." In Pennoyer v. Neff,, recently decided by the Supreme Court of the United States, the court in construing this statute hold that defects in the affidavit for the order can only be taken advantage of on appeal or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally; and that the provision as to proof of the publication is satisfied when the affidavit is made by the editor of the paper. The term printer, the court said, is there used not to indicate the person who sets up the type; he does not usually have a foreman or clerks; it is rather used as synonymous with publisher. The Supreme court of New York so held in one case, observing that, for the purpose of making the required proof, publishers were "within the spirit of the statute;" Bunce v. Reid, 16 Barb. 350. And following this

ruling the Supreme Court of California held that an affidavit made by a "publisher and proprietor" was sufficient; Sharp v. Daugney, 33 Cal. 512. The term editor, as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper or put it in circulation. Webster, in an early edition of his dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of a newspaper." It is principally

since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession.

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IN American Trust Society v. Atwater, 30 Ohio St. 77, the Supreme Court Commission of Ohio held that a bequest of a certain fund to trustees, to apply it for the interest of religion, and for the advancement of the kingdom of Christ in the world, as follows," naming certain religious societies, is not void for uncertainty. In Chamberlain v. Stearns, 111 Mass. 267, a devise for "benevolent” purposes was held void, because too general in its meaning. In Holland v. Peck, 2 Iredell Eq. 255, executors were directed to "pay over and deliver, for the benefit of the Methodist Episcopal Church in America," the sum of $5,000, "to be disposed of by conference, or the different members composing the same, as they shall in their godly wisdom judge will be most expedient or beneficial for the increase or prosperity of the gospel." It was held: "The object of the bequest being of so indefinite a nature that the court can not determine how it should be employed, the same is void." In Wisconsin the statute with regard to trusts to uses, provides that the trust must be "fully expressed and clearly defined on the face of the instrument creating it," which is merely declaratory of the existing law on the subject. In that state the case of Ruth v. Oberbrunner, 40 Wis. 238, holds that a devise of land to A. & B., "to hold the same in trust for the use and benefit of the Order of St. Dominican and St. Catharine's Female Academy, and for no other purpose,' can not be sustained for want of certainty. In Heiss, Ex'ı v. Murphy, 40 Wis. 276, a will devising the property "to

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