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structed, and may be proved by such acts of | build a railroad, the property conveyed to it the officers and agents of the company and for that purpose reverted to the grantors other facts as show that such line has been and passed by their subsequent deeds to the selected with the approval of the directors, appellant. and such approval may be shown by the circumstances of the case.

[6] So far as the appellant's claim rests upon the failure of the grantee to comply [5] The location indicated by the map of with the condition subsequent for the buildthe Toledo, St. Louis & New Orleans Rail-ing contained in some of the deeds it is of no road Company was earlier in time than that of the appellant, but the appellant insists that the appellee is not entitled to the benefit of this location, and the question raised by this objection will be considered under the next head.

Third, the title. The Toledo, St. Louis & New Orleans Railroad Company, prior to the organization of the appellant, obtained from the owners deeds for the right of way over all the lands in the pass. Some of these deeds were subject to a condition subsequent for the building of the railroad by December

1, 1904. New deeds were later executed in place of these, in which the date of building was December 1, 1909. No entry was ever made by any of the grantors or their heirs for failure to comply with this condition, and no attempt was ever made to declare a forfeiture. Some of the deeds were conveyances in fee simple. The deeds of March 5, 1912, from the Toledo, St. Louis & New Orleans Railroad Company to the Gulf Lines Connecting Railroad of Illinois purported to convey the located line for a railroad beginning at station 3985 of the location survey, situated on Main street, East Carmi, White county, Ill., extending southerly through various counties, including Pope, to a point on the Ohio river near Brookport, in Massac county, including all rights of way and the lands conveyed to the grantor company in Pope county, including the land through the pass in controversy. This constitutes the appellee's title.

The appellant's title consists of the resolution of its board of directors locating its line, and deeds from the owners of the land through the pass in controversy, obtained subsequent to the deeds to the Toledo, St. Louis & New Orleans Railroad Company. The validity of this title depends upon the invalidity of the appellee's title, and the appellant insists that the latter is void because of the expiration of the time limited for the building of the road in some of the deeds to the Toledo, St. Louis & New Orleans Railroad Company, because that company made no location of its railroad, because the appellee has made no location of its railroad, because the Toledo, St. Louis & New Orleans Railroad Company had no power to convey its right of way, located line, franchises, and all its property to the appellee, and the deeds by which it purported to do so are void, and because the Toledo, St. Louis & New Orleans Railroad Company having failed to complete its railroad and put it in operation within 10 years from its incorporation, and having abandoned its intention to

force. A court of equity will not lend its aid to enforce a forfeiture because of a breach of a condition subsequent in a deed. Toledo, St. Louis & New Orleans Railroad Co. v. St. Louis & Ohio River Railroad Co., 208 Ill. 623, 70 N. E. 715; Douglas v. Union Mutual Life Ins. Co., 127 Ill. 101, 20 N. E. 51; 2 Story's Eq. Jur. § 1319.

[7] Moreover, a breach of a condition subsequent can be taken advantage of only by the grantor, his heirs or devisees. His grantees, whether before or after the breach, acquire no right to enforce a forfeiture. Waggoner v. Wabash Railroad Co., 185 Ill. 154, 56 N. E. 1050; Boone v. Clark, 129 Ill. 466, 21 N. E. 850, 5 L. R. A. 276; Ruch v. City of Rock Island, 97 U. S. 693, 24 L. Ed. 1101; 2 Washburn on Real Prop. (6th Ed.) §§ 954,

957.

[8] Noncompliance with a condition subsequent does not, of itself, determine the estate. After breach, an entry, or some act equivalent thereto, is necessary to revest the estate in the grantor. Mott v. Danville Seminary, 129 Ill. 403, 21 N. E. 927; Ruch v. City of Rock Island, supra; 2 Washburn, supra.

[9] We have held that the evidence justifies the conclusion that the Toledo, St. Louis & New Orleans Railroad Company had made a location of its road on July 23, 1909. The sale and conveyance of its located line, right of way, franchise, and other property to the appellee, if valid, conveyed to the latter the prior right which the grantor had to construct a railroad on this located line. It is insisted, on behalf of the appellant, that the attempted conveyance to the appellee was contrary to public policy and beyond the power of the grantor, and was therefore void and of no effect whatever. A railroad corporation has not, as a general rule, the power to sell its road and franchise without statutory authority. The powers of all corporations are such, only, as are conferred by the statute under which they are organized, and a public service corporation cannot, without the assent of the state, sell or lease its entire property and franchise to another corporation and disable itself from performing the duties to the public imposed by its charter. Chicago Gaslight Co. v. People's Gaslight Co., 121 Ill. 530, 13 N. E. 169, 2 Am. St. Rep. 124; Union Trust & Savings Bank v. Kinloch Telephone Co., 258 Ill. 202, 101 N. E. 535, 45 L. R. A. (N. S.) 465, Ann. Cas. 1914B, 258; Thomas v. West Jersey Railroad Co., 101 U. S. 71, 25 L. Ed. 950; Central Transportation Co. v. Pullman's Pal

ace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 1 a direct proceeding instituted for that pur35 L. Ed. 55. It would not, however, enable pose. Fritts v. Palmer, 132 U. S. 282, 10 the appeilant to maintain its bill even if we Sup. Ct. 93, 33 L. Ed. 317; Hickory Farm were to hold the deed of the Toledo, St. Louis Oil Co. v. Buffalo, New York & Philadelphia & New Orleans Railroad Company to the ap- Railroad Co. (C. C.) 32 Fed. 22; Bone v. Delpellee void. The only effect of such holding aware & Hudson Canal Co., 2 Sad. (Pa.) 55, would be to leave the title in the former com- 5 Atl. 751; Chicago, Burlington & Quincy pany, but it would not confer any right upon Railroad Co. v. Lewis, 53 Iowa, 101, 4 N. W. the appellant or give to it any title or enable 842; Carlow v. Altman, 28 Neb. 672, 44 N. the grantors of the Toledo, St. Louis & New W. 873. Where the statute prohibited a corOrleans Railroad Company to grant any title poration from owning over 5,000 acres of to the complainant. The fact that because land, the question whether a corporation of its failure to finish the road and put it owning a greater quantity of land exceeded in operation within 10 years from the time its powers in purchasing an additional quanof filing its articles of association section tity is a question between the corporation 26 of the Railroad and Warehouse Act de- and the state only, and does not concern the clares that the corporate existence and pow- vendors or others. American Mortgage Co. v. ers of the corporation should cease does not Tennille, 87 Ga. 28, 13 S. E. 158, 12 L. R. A. affect the question. The state, alone, could 529. These are cases in which the conveytake advantage of the failure of the com- ance was made to the corporation and not pany in this regard, and until it did so no by the corporation, but there is no differother person could question its existence or ence, in principle, whether the excess of powthe validity of its corporate acts. Ross v. er is in purchasing or in selling. The corChicago, Burlington & Quincy Railroad Co., poration having the power in such cases to 77 Ill. 127; Chicago & Eastern Illinois Rail- sell and convey property, the question whethroad Co. v. Wright, 153 Ill. 307, 38 N. E. er it exceeded its power is for the state only. 1062.

Admitting that the conveyance by the Toledo, St. Louis & New Orleans Railroad Company was beyond the corporate powers of that corporation, the law does not permit third persons having no interest in the corporation or its trust to dispute the validity of its conveyance. The ultra vires acts of the corporation may be objected to by the state, the corporation, its stockholders or creditors, or the persons with whom the ultra vires transactions are had, but not by third persons having no interest in the subject-matter. Railroad corporations have power, under certain circumstances, to make sales and conveyances of real and personal property. Whether any particular conveyance is in excess of this power is a question which concerns only the corporation itself, the state, or those persons having some interest or title in the corporation or the property involved. Where a corporation has power to hold real estate under any circumstances or for any purpose, its title cannot be questioned by any person except the state. Hough v. Cook County Land Co., 73 Ill. 23, 24 Am. Rep. 230; Barnes v. Suddard, 117 Ill. 237, 7 N. E. 477; Hamsher v. Hamsher, 132 Ill. 273, 23 N. E. 1123, 8 L. R. A. 556; Cooney v. Booth Packing Co., 169 Ill. 370, 48 N. E. 406; Ehrman v. Union Central Life Ins. Co., 35 Ohio St. 324. A national bank is prohibited from making loans on real estate sesurity, but a mortgage given to such a bank to secure future advances is a valid security, which can be questioned only by the government. Genesee Nat. Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443. Only the sovereign can object to a conveyance to a corporation incompetent by its charter to take the title

The appellant has no such interest as entitled it to enjoin the appellee from constructing a railroad in this pass. The only injury of which it can complain in a judicial tribunal is the invasion of some legal or equitable rights. It alleges that the appellee is acting beyond its authority under the law because the conveyance under which it claims was beyond the charter power of its grantor to make. This conveyance, however, did not injuriously affect any right of the appellant, and it has therefore no ground to complain. Neither the Toledo, St. Louis & New Orleans Railroad Company nor the appellee owed any duty to the appellant in regard to this A stockholder land or to the title thereto. in the grantor company might have an interest in restraining it within the limits of its corporate powers, and the state might have an interest in preventing the usurpation and perversion of its franchises, but the appellant has no interest in these questions, and cannot raise them to enable it to seize the property which is the real subject-matter of the controversy. New Orleans, Mobile & Texas Railway Co. v. Ellerman, 105 U. S. 166, 26 L. Ed. 1015.

[10] It is urged that by the abandonment of the right of way by the Toledo, St. Louis & New Orleans Railroad Company the property reverted to the original grantors of that company, and that they had the power to convey a good title to the appellant. There is no evidence of any intention to abandon the right of way. To constitute such an abandonment there must not only be nonuser, Stannard v. but an intention to abandon. Aurora, Elgin & Chicago Railroad Co., 220 Ill. 469, 77 N. E. 254; Durfee v. Peoria, Decatur & Evansville Railway Co., 140 Ill. 435,

.

CONFIDENCE

5. FALSE PRETENSES (8 38*) -
GAME-ISSUES, PROOF, AND VARIANCE.
There is no variance between an indict-
ment, alleging that defendant and codefendant
at a certain date obtained property of prosecu-
tor by means of the confidence game, and evi-
dence of distinct transactions, whereby property
of prosecutor was obtained by use of the con-

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.*] 6. CRIMINAL LAW (§ 678*)-DIFFERENT OFFENSES-ELECTION.

company took up the rails and ties over the place in controversy, and failed to occupy it for 9 or 10 years, but without an intention to abandon it, and it was held that there was no abandonment. Here the railroad company was unable to construct its railroad within 10 years after filing its articles of associa-fidence game. tion, but there is no evidence that it ever ceased its efforts to procure its construction or intended to do so. The sale of the right of way was not an abandonment, but was an attempt to secure the application of the right of way to railroad purposes. It is immaterial that the particular corporation was unable to build the railroad. The right of way cannot be said to have been abandoned so long as the original grantee or its grantees are occupying it for railroad purposes. Crol-7. FALSE PRETENSES (§ 11*) - CONFIDENCE ley v. Minneapolis & St. Louis Railway Co., 30 Minn. 541, 16 N. W. 422; Noll v. D., B. & M. Railroad Co., 32 Iowa, 66; Hatch v. Cincinnati & Indiana Railroad Co., 18 Ohio St. 92; 1 Redfield on Railways, 221.

The decree of the circuit court dismissing the bill was right, and it is affirmed. Decree affirmed.

(265 I11. 272)

PEOPLE v. BERTSCHE et al. (No. 9509.) (Supreme Court of Illinois. Oct. 16, 1914. Re

hearing Denied Dec. 3, 1914.)

1. CRIMINAL LAW (§§ 370, 371*)—EVIDENCE OF OTHER OFFENSES-ADMISSIBILITY.

On a trial for obtaining property by means of the confidence game, evidence of similar fraudulent transactions perpetrated by defendant, the principal actor in the transaction complained of, and codefendant charged as accessory before the fact, was competent against defendant to show knowledge and intent, and competent against codefendant to show knowledge and intent, and that he aided and abetted in

the commission of the crime.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 825-829, 830-832; Dec. Dig. 88 370, 371.*]

2. FALSE PRETENSES (§ 49*) - CONFIDENCE GAME-EVIDENCE-SUFFICIENCY.

Evidence held to sustain a conviction of obtaining property by use of the confidence game.

[Ed. Note.-For other cases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. § 49.*]

CONFIDENCE

3. FALSE PRETENSES (§ 2*)
GAME-STATUTES-VALIDITY.
The confidence game statute is not void for
uncertainty merely because the means that may
be used are varied.

[Ed. Note. For other cases, see False Pre-
tenses, Cent. Dig. § 2; Dec. Dig. § 2.*]
4. INDICTMENT AND INFORMATION (§ 125*) —
DUPLICITY-CONFIDENCE GAME.

An indictment, alleging that defendant and codefendant obtained possession of property from a person named by means and by use of the confidence game at a certain date, charges but one offense, consisting of a single transaction at the date specified.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dec. Dig. § 125.*]

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ferent dates, accused may ask the court to reWhere different offenses are proved at difquire the prosecution to elect on which it will rely for a conviction.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1580-1583; Dec. Dig. § 678.*]

GAME-PROPERTY.

A draft drawn by one bank on another is property in the hands of the payee, and proof that accused, charged with obtaining property by the use of the confidence game, obtained a draft from prosecutor is proof that accused obtained property of prosecutor.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. § 15; Dec. Dig. § 11.*] 8. FALSE PRETENSES (§ 7*) CONFIDENCE GAME-EVIDENCE-MATERIALITY.

Where defendants, charged with obtaining property by use of the confidence game, took advantage of the confidence reposed in one of the defendants by prosecutor, and thereby defrauded him of his property by a swindling scheme, it was immaterial that the scheme took the form of a business transaction, and that notes evidencing the amount received were given, neither of the defendants nor prosecutor intending that the notes should be paid.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig. § 7.*] 9. FALSE PRETENSES (§ 7*) CONFIDENCE GAME-ELEMENTS OF OFFENSE.

erty by use of the confidence game, physical To constitute the offense of obtaining propmeans such as false or bogus checks are unnecessary, and false verbal representations, pretensions, and statements, supplemented by tricks and deception which led prosecutor to believe that accused had supernatural powers, and in that belief delivered to him drafts and cash, are sufficient.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 5-12, 25; Dec. Dig. § 7.*]

Error to Criminal Court, Cook County; Charles M. Walker, Judge.

Christian P. Bertsche and another were convicted of obtaining property by means of the confidence game, and they bring error. Affirmed.

Benedict J. Short, of Chicago, for plaintiffs in error. Patrick J. Lucey, Atty. Gen., C. H. Linscott, Asst. Atty. Gen., and Maclay Hoyne, State's Atty., of Chicago, for the People.

CARTWRIGHT, C. J. An indictment against the plaintiffs in error, Christian P. Bertsche, alias B. P. Christy, and Charles T. Crane, alias James Ryan, was returned into the criminal court of Cook county. It contained three counts, and in the first charged that the defendants obtained from Hope L

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

McEldowney United States treasury notes, bank bills, and silver of the value of $15,000, and a draft of the value of $12,500, by means and by use of the confidence game.

and another fortune teller testified that they saw the questions by switching the papers, He held the paper to his forehead and anThe sec-swered the questions. He said the trip to ond count charged a conspiracy to unlawful- California would not be successful, that she ly obtain money and property of Hope L. McEldowney of the value of $15,000 by means and use of the confidence game, and the third count charged the larceny of a draft of the value of $12,500 and lawful money of the value of $15,000. Upon the trial the jury returned a verdict applicable to the first count, finding each of the defendants guilty of the confidence game in manner and form as charged in the indictment, and the court sentenced the defendants in accordance with the verdict.

would not be happy, and that Chicago would be a better place to make money. He asked her if it was really necessary for her to practice chiropractics as a livelihood, and she told him it was not, and he ascertained that she had considerable property, amounting, as he said, to $125,000 or $130,000. He told her that she should be a very happy and successful woman, but an evil influence was following her, and he would like to remove that. He charged her 50 cents for what he called the "reading" and $20 for removing the evil influence. He asked her to come to his office and talk about it with him, and on the second visit he asked her about her investments. She had lived at West Salem, Wis., where she had been assistant cashier in a bank. She told him that she was getting 5 per cent. on her mortgages, and he said that he could invest her money and make a great deal more. He gave her a book on psychology and mental thought, and she reported

Money and drafts amounting to $15,500 were obtained from Hope L McEldowney by the defendant James Ryan by fraud and deceit, and the fact was not disputed. He was the principal actor in the fraudulent scheme by which the money and drafts were obtained, and the defendant Christian P. Bertsche was charged as an accessory before the fact and therefore a principal. The evidence of the transactions of the defendant James Ryan with Hope L. McEldowney was, in sub-afterward that she was progressing and feelstance, as follows:

In January, 1913, Hope L. McEldowney, a widow 42 years old, arrived in Chicago from Davenport, Iowa, where she had graduated from a school of chiropractics, which professes to teach a method of curing disorders by a treatment of the spine. She saw in the Sunday Examiner, a newspaper published in Chicago, the following advertisement of the defendant James Ryan under the style of Prof. C. T. Crane:

"Prof. C. T. Crane, clairvoyant, permanently located and favorably known in Chicago for the past eleven years for his marvelous foresight and accurate advice upon the problems of life in their multifarious details, such as love, courtship, marriage, investment, speculations, patents, insurance, journeys, changes, property, etc. Positively reunites the separated, causes speedy marriages, removes evil influences, develops mediums, etc., and immediately brings about every ambition and wish, and saves you the saddest words that pen ever wrote: It might have been.' Full and complete reading to-day, only 50 cents. Hours 10:00 to 6:00 P. M. 204 North State street, corner of West Lake street, one

block north of Marshall Field's. All 'L' trains stop at the door."

She went with a friend, Nellie Hoople, to the place named in the advertisement and was ushered by a doorman into a reception room, where she found a number of ladies waiting for the professor to solve the problems of life by his marvelous foresight, and after a time she was admitted to the defendant. By his direction she wrote a number of questions on a slip of paper. She was in doubt whether to locate in California or Florida, and one of the questions asked for his advice which it would be best to do. The paper was folded up and the professor was supposed not to see the writing, but he

ing much better. She called on him frequently, and he was very attentive to her, and their relations became very intimate. He telephoned her many times a day and asked her how she was feeling, and she would tell him that she was feeling better. She saw him nearly every day, and he sent her flowers, books and bonbons and presented her with a diamond ring. At first she stopped at a hotel, where he called on her very often and took her to dinners and suppers, and he also gave her daily automobile rides and took her to theaters. After a time she changed her location from the hotel to rooms at 2507 Michigan avenue, where the same relations existed between them. Soon after the acquaintance was formed he told her that his father and he had a broker on the board of trade who supervised all their investments, and he would like to prove to her how easily he could make a good profit on a small sum. She gave him a draft for $400 drawn by the La Crosse County Bank of West Salem on a bank in Chicago and $100 in cash. He made no investment, but in about a week brought her $121 and said that was the result of the investment of the $500. About February 13, 1913, she gave him another draft, for $2,500, to be invested on the board of trade. He said they never took money without giving collateral of some sort, and on each occasion gave her his note for the amount received. Some days later he told her that Murray, who was in high esteem and employ of James J. Hill, of the Great Northern Railroad, was in Chicago and in close conference with himself and his father for three days, and had told them about

Northern railroad bonds, and that he and his father were going to take a good many of them, and they would be a better investment for her money than on the board of trade. He showed her a bundle of bonds which he said were worth about $7,500 and belonged to him. He said that he and his father had helped a great many people and had done a great deal of good in the world; that God had given him a marvelous gift, and he had never abused that gift, and if he did anything wrong the gift would be taken from him. He Isaid he lived with his father and sisters and brothers on Sheridan road and was a single man, all of which was false. On the representation that he would buy bonds for her she procured another draft from the same bank for $12,500 and gave it to him on March 3, 1913, to buy the bonds. The bonds did not come, and he showed her what purported to be a telegram from New York that the man authorized to sign the bonds was attending the inauguration at Washington, and as soon as the man returned the bonds would be signed and sent to him. He had proposed marriage to her, and it was agreed that they should go to New York and be married. He turned the draft for $12,500 over to his confederate, and he started with her ostensibly for New York, but on the way told her that his father had requested him to stop in Indianapolis to attend to an estate worth about $400,000 in which he was interested. They stopped at Indianapolis and stayed at a hotel as husband and wife for two days while he claimed that he was trying to find a judge, and he then said that there was important business for him back in Chicago, and they would have to go back and start again the next week for New York. They left Indianapolis the evening of March 6th and took a compartment and arrived in Chicago on the morning of March 7th. She then went to West Salem and had some news which caused her to come back to Chicago, when he had disappeared and the rooms at 204 North State street were vacant. While he had her away at Indianapolis the draft was collected, and it is a fair inference that it was a part of the scheme that she should be absent from Chicago at that time. On April 18, 1913, Ryan was arrested in Mannsville, Wyo. He resisted extradition, and Mrs. McEldowney went to Wyoming to identify him in a habeas corpus proceeding. At the hearing he testified that he had never lived in Chicago, that he was never there more than two days at a time, and that he never went by the name of C. T. Crane. He was remanded to the sheriff and sued out a writ of habeas corpus from the Supreme Court of the state, and there gave the same testimony, which is admitted to have been false. He never made any investments of the money or the proceeds of the drafts and never intended to, but claimed that he gave the drafts to his brother, Frank Ryan.

The testimony of the defendant Ryan did not tend to relieve him of the charge made against him, although he denied some of the statements of Mrs. McEldowney. He did not deny obtaining the money or the drafts, or that he disposed of them as claimed, but testified that he told Mrs. McEldowney that he was married, but he and his wife were not congenial, and she asked him when his wife was going to get a divorce, so that they could be married as they had agreed. In fact, he was living with his wife in Chicago at the time, and there was no intention of having a divorce. He testified that he read the questions that Mrs. McEldowney wrote on the paper, and he gave the same account of their relations as she did. He said that he took dinner with her at her hotel 30 or 40 times in January and February, and she told him he was spending too much money with her, and suggested that she pay half the expenses and gave him the first $500 on that account. He said that she asked him if his wife was holding out for a money consideration, and gave him the draft for $2,500 to settle with her and to make arrangements for a divorce, and he was to go to Wyoming to see his wife for that purpose, and if there was any money left, the balance was to be used in a business venture of clairvoyancy and chiropractics. He said that she gave him the draft for $12,500 for investment by his brother in a copper mine in Mexico. According to his own account the draft for $2,500 was obtained by falsehood and fraud, and, of course, the story about attempting to make an arrangement for a divorce was inconsistent with the fact that he agreed to go to New York to be married, and started for that pretended purpose, when he had been living with his wife in Chicago.

[1, 2] There was much other evidence which was objected to, but it was competent, as against the defendant Ryan, to show guilty knowledge and intent. Du Bois v. People, 200 Ill. 157, 65 N. E. 658, 93 Am. St. Rep. 183; Juretich v. People, 223 Ill. 484, 79 N. E. 181; People v. Weil, 244 Ill. 176, 91 N. E. 112. It was also competent as against the other defendant, Christian P. Bertsche, to show such knowledge and intent, and also to prove that he aided, abetted, and assisted the commission of the crime. He took the drafts obtained from Mrs. McEldowney and collected them, and his defense was that they were cashed by him in the ordinary course of business and not as a party or participating in the crime. He kept a saloon near the city hall, and testified that he cashed drafts for from $3,000 to $7,000 every day, and on pay day cashed from $15,000 to $20,000 for pay of policemen and city hall employés, and that he had nothing to do with the fortune-telling business. The saloon was headquarters for a number of fortune tellers with whom Bertsche was connected, and who had a code which he understood. The place where for

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