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requests for rulings and argued on the briefs is, whether the facts disclose a keeping for sale of intoxicating liquors contrary to law. [1] The complaint is based on R. L. c. 100, 1, which provides that:

"No person shall sell, or expose or keep for sale, spirituous or intoxicating liquor, except as authorized in this chapter."

[2] By the terms of section 64 of the same chapter, the delivery of the beer in the club house was prima facie evidence of a sale. This with the other facts, including the payment of money, warranted, if it did not compel, the inference that a sale took place, and that the beer was kept for the purpose of sale. Com. v. Cleary, 105 Mass. 384; Com. v. Hoar, 121 Mass. 375. Clearly the fact that the defendant was acting as an employé would not constitute a defense. Com. v. Ryan, 160 Mass. 172, 35 N. E. 673.

[3] The defendant does not bring himself

within cases like Com. v. Smith, 102 Mass.

144, and Com. v. Pomphret, 137 Mass. 564, 50 Am. Rep. 340, which recognized the right of two or more persons to unite in buying intoxicating liquor and then to distribute it among themselves. In those cases the members of a voluntary association owned the liquor in common; and the distribution of it in severalty among the owners was not construed as a sale within the meaning of the statute. In the present case the beer was owned not by the members but by the corporation, which is a distinct legal entity. The record is meager as to the amount and the details of the liquor business carried on by the society, and as to the rights of a member in the use of its property; but clearly he had no individual right or interest in the liquors owned by the corporation, and was obliged to pay the fixed price for any of it that he might order. In short the transaction in question discloses the transfer of property from one person to another for a consideration of value, or a "sale" in the ordinary meaning of the word. We do not assume that the Legislature used the word in any narrow or artificial sense. Com. v. Ramsdell, 130 Mass. 68; Howard v. Harris, 8 Allen, 297. The decisions to the contrary in some other states are generally based upon statutes that differ from ours. [4] The case of Com. v. Smith, 102 Mass. 144, was decided in 1869. By St. 1881, c. 226 (Pub. St. c. 100, § 45), the Legislature enacted that places used by clubs for selling, distributing or dispensing intoxicating liquors in no-license towns and cities should be deemed common nuisances. Subsequent to the Pomphret Case, the St. of 1887, c. 206, embraced clubs in towns that had voted to grant licenses, and also provided for a special club license in license towns. Com. v. Baker, 152 Mass. 337, 25 N. E. 718. As the statute is re-enacted in R. L. c. 100, § 88, it provides that:

"All buildings or places used by clubs for the purpose of selling, distributing or dispensing shall be deemed common nuisances." intoxicating liquors to their members or others

The defendant well might have been complained of under this section. Com. v. Fleckner, 167 Mass. 13, 44 N. E. 1053. But we are not prepared to adopt the argument that a complaint for maintaining a common nuifor clubs, must be used to the exclusion of a sance under this statute, enacted expressly complaint for the distinct offense of illegal keeping. Com. v. McCauley, 105 Mass. 69.

Nor do we intend to intimate that a license tributing and dispensing of intoxicating liqissued under section 88, authorizing the disnot authorize such a transaction as is here uors by a club that is incorporated, would complained of.

The first three rulings requested were given in substance by the trial judge as applicable to unincorporated clubs where intoxicating liquors are owned in common by the memfused so to rule in the case of an incorporatbers, practically as partners. He rightly reed club, where the liquors are owned by the corporation as distinguished from its members.

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Where a number of persons working together to a common end publish a libel, they are jointly liable, as well as severally.

74.*]

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 175-178; Dec. Dig. 8 3. LIBEL AND SLANDER (§ 68*)—ACTIONS— BILL IN EQUITY.

That the defendants were interlocking corporations controlled by the same stockholders and directors, that the first company was created by the second company, and that the periodical formerly printed by the second company, in which the libel appeared, was transferred to ground for maintaining a bill in equity for the the first, which had no visible property, is no assessment of damages suffered, for, if the first company is merely the mouthpiece of the second, its corporate form does not prevent plaintiff from reaching the real offender, in an action at law.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 169, 170; Dec. Dig. § 68.*]

Report from Superior Court, Worcester County; Hugo A. Dubuque, Judge. Suit by the Finish Temperance Society

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-36

Sovittaja against the Riavaaja Publishing, an action at law discloses that the first Company and another. A demurrer was sus- company is merely the creature or mouthtained to the bill, and the cause reported piece of the second company, its corporate without decree. Bill dismissed.

Marvin M. Taylor and Marvin C. Taylor, both of Worcester, for plaintiff. George E. Roewer, Jr., of Boston, for defendants.

form does not prevent the plaintiff from
reaching the real offender, and actual in-
stigator of the defamatory attacks. Ginn v.
Almy, 212 Mass. 486, 505, 506, 99 N. E. 276,
and cases cited. The demurrer therefore
was properly sustained, and if the plaintiff
within a time to be fixed by the trial court,
and upon such terms as it may determine,
does not amend into an action at law as
provided in R. L. c. 159, § 6, the bill is to
be dismissed with costs.
Ordered accordingly.

BRALEY, J. [1] This is a suit in equity for the assessment of damages suffered by the plaintiff corporation from the publication of libels in a newspaper owned or controlled by the defendant corporations, with a prayer for a mandatory injunction to compel them to publish a retraction. The defendants, to whom we shall refer respectively as the first and second company, demurred to the bill, and after sustaining the demurrer the judge of the superior court reported the case to this court without entering a decree. R. L. c. 159, § 27. It is settled by our decisions that where no breach of trust or of 1. contract appears, a bill in equity will not lie to enjoin the publication of libelous statements injurious to the plaintiff's business, trade or profession, or which operate as a slander of his title to property. Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, 19 Am. Rep. 310. The remedy is by an action at law for damages. Raymond v. Russell, 143 Mass. 295, 296, 9 N. E. 544, 58 Am. Rep. 137. As to the English rule since the Judicature Act of 1873, 36 & 37 Vict. c. 66, see Pom. Eq. Jur. (3d Ed.) § 1358, and cases cited in the note.

(219 Mass. 144) MOSES v. SPRAGUE, NUGENT CO. (Supreme Judicial Court of Massachusetts. Suffolk. Oct. 24, 1914.)

MASTER AND SERVANT (§§ 121, 154*)—LIABILITY FOR INJURIES-UNSAFE PLACE TO WORK.

Where a trapdoor in the room in which an employé worked was a part of the employer's permanent structure, and was kept closed except when in use, at which times it was not guarded, and the employé knew of its existence and that it was liable to be opened at any time for its customary use, the employer was under no obligation to change its construction or its use or to give the employé a warning each time it was opened, and the failure to do so was not negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 228-231, 308, 309; Dec. Dig. §§ 121, 154.*]

2. MASTER AND SERVANT (§ 219*)—LIABILITY FOR INJURIES-ASSUMPTION OF RISK.

The employé assumed the obvious risk of stepping through such trapdoor as a part of his employment.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 610-624; Dec. Dig. § 219.*]

3. MASTER AND SERVANT (§ 185*)-LIABILITY FOR INJURIES NEGLIGENCE OF FELLOW SERVANT.

The giving of the notice commonly given of the danger from the trapdoor being open leave to fellow servants of the employé, for was an act which the employer could properly whose act the employer would not be liable.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]

[2, 3] The plaintiff, however, urges that because of certain allegations in the bill these decisions are inapplicable, and relief should be decreed. But even if as alleged the defendants are interlocking corporations where the stockholders and boards of directors who control and direct the policy of each are substantially the same, and the first company was created by the second company, and the periodical formerly published by it in which the libels appeared was transferred for a nominal sum to the first company which has no visible property in order that the second company which owns real and personal estate of great value might escape liability in damages for the publications, the plaintiff | does not make out a case in equity. While 4. MASTER AND SERVANT (§ 279*)-LIABILITY FOR INJURIES-NEGLIGENCE OF PERSON EXthe companies are distinct organizations, yet ERCISING SUPERINTENDENCE "SUPERINthe wrong is to be established by the same TENDENT." evidence and degree of proof as at law. The essence of the defamation is the malicious publication of the libelous language, and does not necessarily lie in the authorship of the articles or the ownership of the press which printed them. People v. Miller, 122 Cal. 84, 54 Pac. 523. If the defendants all worked for a common end which they accomplished by the publication of the libels they are liable jointly as well as severally. Patten v. Gurney, 17 Mass. 182, 186, 9 Am. Dec. 141; Miller v. Butler, 6 Cush. 71, 74, 52 Am. Dec. 768. It also is plain that if the trial in

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In an action for the death of a person employed as a sign painter who stepped through a trapdoor, evidence that F. was the foreman of the sign makers, that he had full charge of the raising and lowering of signs through the trapdoor, that deceased had been instructed to assist him in raising and lowering them, that he sometimes did commercial work outside the shop and would take one man, or sometimes two or three men, with him and exercise supervision over them in the nature of a journeyman to a helper, that sometimes the employer transferred to him orders given to it and he would give the orders to the men working under him, that he received more pay than those working under him, and that he had a right to call upon de

ceased to assist in raising and lowering signs, would not support a finding that he was a superintendent whose sole or principal duty was that of superintendence, within St. 1909, c. 514, § 127, cl. 2, making employers liable for injuries due to the negligence of a person intrusted with and exercising superintendence whose sole or principal duty is that of superintendence, but only showed that he was an ordinary working foreman in charge of a few men. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.*

For other definitions, see Words and Phrases, First and Second Series, Superintendent.]

Report from Superior Court, Suffolk County; William B. Stevens, Judge.

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[4] The plaintiff contends that the injury arose because Foley was negligent in the performance of his duties as statutory superintendent. The testimony as to Foley's work was that he was "the foreman of the sign makers"; that he "had full charge of the raising and lowering of the signs through the trap"; that the deceased had been instructed to assist Foley "in raising and lowering the signs"; that sometimes Foley did commercial work outside the shop and would take one man with him in most cases, and sometimes two. On roof work he usually In took two and, occasionally, three men. these instances he would exercise supervision over them in the nature of the journeyman

Action by Charles Emery Moses, administrator, against the Sprague, Nugent Company. to the helper. Sometimes, though not alReported from the Superior Court. ment for defendant.

Judg-ways, the defendant transferred to Foley the

Jos. J. Leonard and Frost & Breath, all of Boston, for plaintiff. Dickson & Knowles, of Boston, for defendant.

RUGG, C. J. The plaintiff's intestate was a sign painter, who had been long in the employ of the defendant. A trapdoor was in the room where he worked, closed all the time, except when opened, as it was frequently, for the purpose of raising and lowering signs through it, and at these times it was not guarded. He worked alone and the place of the trapdoor was light. One Foley came into this room, passed the deceased on his way to the trapdoor, opened it for some use and then engaging in conversation with the deceased about his work, the latter stepped backward and fell through the door, receiving mortal injuries. The deceased knew of the door and had opened it or used it, when open, many times during his employment.

[1-3] There is no evidence of negligence on the part of the defendant. The trapdoor was a part of its permanent structure. Its existence and its method of use were well known to the deceased. The employer was under no obligation to change either its construction or its use, and the employé assumed this obvious risk as a part of his employment. McCafferty v. Lewando's French Dyeing & Cleansing Co., 194 Mass. 412, 80 N. E. 460, 120 Am. St. Rep. 562.

order given to it and he would give the orders to the men who were working under him. He received more pay than the men working under him, though the amount does not appear. He had a right to call upon the plaintiff's intestate to assist in raising and lowering signs. Other evidence showed that Foley worked all the time himself at manual labor. But even assuming that the jury would have disbelieved this, there was not enough to warrant a finding that Foley was a superintendent "whose sole or principal duty was that of superintendence" within the meaning of the Employers' Liability Act. St. 1909, c. 514, § 127, cl. 2. Giving it the greatest weight, it goes no further than to show that he was an ordinary working foreman in charge of a very few men. He had no power to hire or discharge men, and he does not appear to have possessed any of the substantial authority which is a necessary incident of the position of superintendent, to which his chief energies were to be devoted. Robertson v. Hersey, 198 Mass. 528, 84 N. E. 843; Collins v. Borden, 217 Mass. 309, 104 N. E. 840; Henahan v. Lyons, 201 Mass. 269, 87 N. E. 602; Stevens v. Strout, 200 Mass. 432, 86 N. E. 907; O'Brien v. Rideout, 161 Mass. 170, 36 N. E. 792; Mulligan V. McCaffery, 182 Mass. 420, 65 N. E. 831.

There was no testimony warranting a finding that Foley was exercising superintendence in the absence of a regular superintendent. Hence cases like Carney v. A. B. Clark Co., 207 Mass. 200, 93 N. E. 647, are not in point.

In accordance with the terms of the report, let the entry be:

The employé knew that the trapdoor was liable to be opened at any time for its customary use. There was no obligation resting on the defendant to give a warning each time it was opened under these circumstances. McCann v. Kennedy, 167 Mass. 23, 44 N. E. 1055; Young v. Miller, 167 Mass. 224, 45 N. E. 628; Carrigan v. Washburn & Moen Mfg. Co., 170 Mass. 79, 48 N. E. 1079. If there was failure to give the notice commonly given of the danger, that was an act properly left, so far as concerned the defendant, to fellow 1. servants of the deceased, for whose act the defendant would not be liable. Falardean v. Hoar, 192 Mass. 263, 78 N. E. 456.

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In an action based on the death of plaintiff's intestate, who was left overnight in defendant's saloon in an intoxicated condition,

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

it will be presumed on appeal that the civil damage statute was not relied upon, where not mentioned in the declaration or the briefs. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3679-3681; Dec. Dig. § 910.*]

2. TRIAL (§ 169*)-DIRECTION OF VERDICT.

Where there is no evidence to support a count in the pleadings, a verdict is properly directed as to such count.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 381-387, 389; Dec. Dig. § 169.*] 3. TRIAL (§ 169*)-DIRECTION OF VERDICT

DECLARATION-SUFFICIENCY.

Where the declaration alleged that defendants who were the proprietors of a saloon and left plaintiff's intestate there overnight in an intoxicated condition, did assault and beat him, there was a sufficient pleading of assault and battery, no demurrer having been interposed, though the declaration as a whole proceeded on other grounds; hence, evidence of the assault and battery having been introduced, plaintiff was entitled to go to the jury on that issue.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 341, 381-387, 389; Dec. Dig. § 169.*] 4. Assault and Battery (§ 2*)-WHAT CON

STITUTES.

Where a saloonkeeper removed a drunken man from the barroom, placing him in a small room and locking the door, he is guilty of an assault and battery; the intoxicated man not being able to look out for himself.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 1; Dec. Dig. § 2.*

For other definitions, see Words and Phrases, First and Second Series, Assault and Battery.] Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge. Action by Adelaide Grenier, administratrix, against Michael O'Gara and others. There was a verdict for defendants, and plaintiff excepted. Exceptions overruled.

Frank W. Morrison, of Uxbridge, and Arthur E. Seagrave, of Whittinsville, for plain

tiff.

DE COURCY, J. There was testimony tending to establish the following facts: John B. Grenier, the plaintiff's intestate, was addicted to the excessive use of intoxicating liquors. On November 14, 1911, he spent a large portion of the day in the liquor saloon of the defendants, and there drank several glasses of ale. At 11 o'clock, p. m., the hour for closing, he was under the influence of liquor and in a dull and "dopey" or stupid condition. The defendant O'Neill and another man carried or supported him into the entry, and urged him to go home or to the Keough Hotel; but he objected and wanted to remain in the saloon. Thereupon he was assisted into a room adjoining the saloon, and was allowed by the defendant O'Gara to remain there. This side room was about 6 by 8 feet in size, without windows, and contained a table, some chairs and beer cases. The door between it and the saloon proper was fastened, so that Grenier could not get out, and the outer saloon door was locked. The night was stormy and cold, the thermometer being down to zero. In the morning Grenier was found on the floor, dead,

and with bruises and abrasions on his head, such as would be caused by a blow or a fall.

[1] The plaintiff's declaration originally contained two counts, but three others were added later. It is to be noted that none of them is based on a claim for imprisonment. Further, no reference to the civil damage statute, R. L. c. 100, § 58, is made in the declaration or in the plaintiff's brief, and presumably it was not relied on. See Barrett v. Dolan, 130 Mass. 366, 39 Am. Rep. 456.

[2-4] As to the first count, alleging that one "John Doe," while under the influence of liq. uor furnished by the defendants, assaulted Grenier, it is enough to say that there was no evidence in support of it. It is equally clear that a verdict for the plaintiff on the fifth count would not be warranted. This is based on the death statute, R. L. c. 171, § 2; and there was no evidence that Grenier was in the exercise of due care within the meaning of that statute. See Hudson v. Lynn & Boston R. R., 185 Mass. 510, 71 N. E. 66. As a general verdict for the defendants was ordered, however, it must be set aside if the plaintiff was entitled to go to the jury on any of the counts. In the third count there is an averment that the defendants "did assault and beat the said Grenier." It is true that the count as a whole proceeds on other grounds; and it is doubtful if the attention of the trial judge was directed to the fact that an assault was therein alleged. But no demurrer was filed, and there is here a sufficient allegation of an assault. We are of opinion that there was evidence of unpermitted violence to the person of Grenier, by one or both the defendants, in removing him without his consent to a place of danger and leaving him unprotected there, while he was virtually in a stupor and incapable of looking out for himself. It could be found that this constituted an assault for which they would be liable. Hudson v. Lynn & Boston R. R., 178 Mass. 64, 59 N. E. 647.

As the exceptions must be sustained for this reason, it is unnecessary to determine whether there was any evidence to entitle the plaintiff to go to the jury under the second or fourth counts, which seem to be based on alleged negligence of the defendants. See Podespik v. Worcester Cons. St. Ry., 216 Mass. 213, 103 N. E. 638, and cases cited. Exceptions sustained.

(219 Mass. 168) SMITH v. INHABITANTS OF HYDE PARK.

(Supreme Judicial Court of Massachusetts. Norfolk. Oct. 24, 1914.)

1. HIGHWAYS (§ 209*)-ACTIONS FOR INJU RIES FROM DEFECTS IN STREETS-BUrden of PROOF.

Under Rev. Laws, c. 51, § 18, providing that if a person sustains bodily injury by reason of a defect or want of repair in or upon a way,

and such injury might have been prevented or such defect or want of repair remedied by reasonable care and diligence on the part of the county, city, or town by law obliged to repair it, he may, if such county, city, or town had, or by the exercise of proper care and diligence might have had, reasonable notice of the defect or want of repair, recover damages, in an action against a town for injuries caused by a defect in a street, the burden was on plaintiff to show that the town had, or by the exercise of proper diligence might have had, reason

able notice of the defect.

Highways,

[Ed. Note.-For other cases, see Cent. Dig. § 526; Dec. Dig. § 209.*] 2. HIGHWAYS (§ 211*)—ACTIONS FOR INJURIES FROM DEFECTS-EVIDENCE-NOTICE.

In an action against a town for injuries caused by a ditch across a sidewalk, dug with

such inferences could not be drawn without some evidence to justify them. In Bennett V. Everett, 191 Mass. 364, 77 N. E. 886, there was evidence that the defendant had issued a day or two before the accident a permit to dig the trench into which the plaintiff fell, and that the actual digging began in the morning, while the accident did not happen until about half past 8 o'clock in the evening. Moreover in that case the place of the accident was within four or five minutes walk from the defendant's city hall, in the center and business part of the city. In the case at bar, there is no evidence as to the locality of the accident. In our opinion the instruction requested should have been given.

in three hours before the accident, evidence that it was dug for the purpose of connecting a house with a sewer would not justify an in- The defendant in its brief did not ask us ference that the officers of the town issued a to order judgment in its favor under St. permit therefor, and hence should have anticipated that the work would be done and guard- 1909, c. 236; and it may be that all the exed against its consequences, in the absence of isting facts were not brought out at the evidence as to the locality of the accident, as trial. The entry will be that it was in the center or business part of a city.

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Chas. G. Chick and Emery B. Gibbs, both of Boston, for plaintiffs. Jos. P. Lyons, of Boston, for defendant.

SHELDON, J. [1] The ditch across the sidewalk which constituted the defect alleged in this case did not exist at 1 o'clock in the afternoon when the plaintiff passed over the sidewalk. It was there and she fell into it at about 4 o'clock in the same afternoon. There was no evidence that any one had a permit to dig either in the street or in the sidewalk. There was no evidence that the defendant had before the accident any knowledge or actual notice of the creation or the existence of the defect. But the

burden was upon the plaintiff to show that the defendant either had, or by the exercise of proper diligence might have had, reasonable notice of the defect. R. L. c. 51, § 18; Brummett v. Boston, 179 Mass. 26, 60 N. E. 388; Campbell v. Boston, 189 Mass. 7, 10, 11, 75 N. E. 96; Craig v. Leominster, 200 Mass. 101, 104, 85 N. E. 855.

Exceptions sustained.

(219 Mass. 187)

TAYLOR et al. v. PIERCE BROS., Limited. (Supreme Judicial Court of Massachusetts. Bristol. Oct. 29, 1914.)

EXCEPTIONS. BILL OF (§ 16*)-SUFFICIENCY. Exceptions must be abbreviated and put in narrative form, so that the rights of the parties will be presented concisely and the expense of litigation reduced.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 16, 17; Dec. Dig. § 16.*]

Exceptions from Superior Court, Bristol County; Hugo A. Dubuque, Judge.

Action by Walter A. Taylor and others against Pierce Bros., Limited. There was a verdict for plaintiffs, and defendant excepted. On motion to dismiss exceptions. Exceptions dismissed, with leave to defendant to apply within 20 days to amend its exceptions, with provision for rendering judgment on the verdict in case no application should be made.

Fall River, for plaintiff. A. J. Jennings and I. C. R. Cummings and J. W. Cummings, both of Brayton, both of Fall River, for defendants.

PER CURIAM. This is a motion that the defendant's exceptions, because of their length and form, be disposed of by ordering judgment for the plaintiffs on the verdict. The exceptions are obnoxious to the rule stated in Cornell-Andrews Smelting Co. v. Boston & Providence R. R., 215 Mass. 381, 387, 102 N. E. 625, and reiterated with em

[2] There was some evidence from which it might have been inferred that the ditch was dug for the purpose of connecting a house abutting on the highway with a sew-phasis in Isenbeck v. Burroughs, 217 Mass. er; and the plaintiff contends that the jury might infer that this would not have been done unless the defendant's officers or some of them had issued a permit therefor, and so that the defendant ought to have anticipated that the work would be done and to have guarded against its consequences. But

537, 105 N. E. 595, Romana v. Boston Elevated Ry., 218 Mass. 76, 81, 105 N. E. 598, and Corsick v. Boston Elevated Ry., 218 Mass. 145, 105 N. E. 600. Much of the evidence is set forth by question and answer, which should have been abbreviated and put in narrative form. Thus the points of law at

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

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