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[Image
of page 1]
Saml Allen
v. } Copy Record
Elizabeth Allen
Independence Cty
1828 April decree of Circuit Court reversed & cause remanded thereto
&c &c
Costs Taxed Fee Book
page 56.
[Image
of page 2]
Amongst
the records and proceedings of the Circuit Court of Independence County
(A.T.) the following is in the case of –
Allen v. Allen July Term 1827 – Chy.
To the Honorable Judge of the Circuit Court for the County of Independence
in the second Judicial circuit of the Territory of Arkansas
In Chancery
[left margin] Petition
The petition of Samuel Allen humbly complaining sheweth unto your honor
that your petitioner did on or about the __ day December 1825 at the county
of Independence aforesaid enter into a marriage contract with one Elizabeth
Tygert which said marriage was then and there duly solemnized according
to law. That upon entering into said marriage contract he fondly hoped
for the enjoyment of all the pleasures of domestic life that he continued
to reside with the said Elizabeth for the term of about __ months during
all of __ time he acted towards the said Elizabeth with the affection
and fidelity which was due to the solem vows which he had made and to
the sacred ties of matrimony. And your petitioner further presents that
notwithstanding the strict observance of his marriage contract on his
part, the said Elizabeth wholy regardless of her duty as a wife, and her
said marriage vow, did not conduct herself with the prudence discretion
and affection which she owed to her husband and the delicacy of her sex;
but on the contrary was ill natured an disobedient to your petitioner
and endeavored by every means in her power to render his life miserable
and unhappy. Your petitioner further presents that the said Elizabeth
did desert his bed and board without any reasonable cause about __ months
after the said marriage, contrary to the desires and persuasions of your
petitioner who notwithstanding the grievances aforesaid has always been
anxious that the said Elizabeth would return and reside with him, and
has frequently solicited her to do so which she most obstinately refused
to do and your orator further presents that the said Elizabeth "is
naturally impotent and incapable of procreation," the Image
of page 3] strongest and only inducement to matrimony and the only
tie that could cement and perpetuate domestic happiness and affection
& thus are the fond hopes which your petitioner entertained
of a happy and thriving progeny to soften the cares and infirmities of
age most unfortunately disappointed – In tender consideration Therefore
your petitioner prays that your honor will take his case into consideration
and for the causes aforesaid grant and decree unto him, not only a divorce
from bed and board but from the bonds of matrimony also and annull
and make void the said marriage so unfortunately entered into between
your petitioner and said Elizabeth and your petitioner further prays that
you will grant unto him your writ of summons directed to the said Elizabeth
commanding her to be and appear before your honor and make answer unto
this your petitioner libel and your petitioner will ever pray &c.
(Signed)Samuel Allen
Searcy & Dickinson
Solicitors
[left margin] Oath of Petitioner
Territory of Arkansas County of Independence – Personally appeared
before the undersigned a justice of the peace for said county the above
named Samuel Allen who being duly sworn says that the facts stated in
the above petition or libel are true to the best of his knowledge and
belief, and that the above complaint is not made out of levity
or by collission [fraud] or restraint between him and his said wife
and for the mere purpose of being freed and seperated from each
other but in sincerity and truth for the causes mentioned in the foregoing
petition or libel.
Samuel Allen
Sworn to and subscribed before me this 30th day of May 1827
John Redmon J.P.
[Image
of page 4]
[left
margin] Memo. of Clerk
"Filed May 30 1827. John Redmon Clerk "
[left margin] Writ of Summons
Territory of Arkansas County of Independence The United States of America.
To the sheriff of said county. Greeting
Summons Elizabeth Tygert alias Elizabeth Allen if she be found in your
bailiwick, to be and appear before the Judge of our circuit court at a
court to be holden at the Town of Batesville in and for said county of
Independence on the second Monday of July next, then and there to answer
the above named Samuel Allen of the within complaint, and have you then
there this writ. Witness John Redmon Clerk of our said court at office
the 30th day of May AD 1827 & of our Independence the fifty-first.
(Seal) John Redmon Clk.
[left margin] Memo of Sheriff
Came to hand May 30th 1827. JH Egner Depy. Shff.
Ruddell Township Independence County June 8h 1827
[left margin] Sheriff's Return
Executed the within writ by reading the same thereof to Elizabeth Tygert
alias Elizabeth Allen.
Service$1.00
Mileage circular 8 .40
1.40
JH Egner Dp. Shff.
(July Term 2nd day 1827)
[left margin] Note on Record
Elizabeth Allen
ads. } In Chancery
Samuel Allen
The Defendant by her counsel filed her cross
bill and answer herein –
[left margin] Answer & Cross bill Marked "A"
To the Honorable J. Woodson Bates Judge of the circuit court in and for
the county of Independence of the second Judicial circuit in the Territory
of Arkansas Humbly complaining sheweth unto your Honor your oratrix Elizabeth
Allen Alias Elizabeth Tygert that she your oratrix is the person against
whom Samuel Allen on the thirtieth day of May in the present year A.D.
1827 filed in the clerks office of the said county of Independence, a
petition addressed to your Honor praying that your honor would grant him
the said Allen a Divorce a vinculo matrimonii from your oratrix
Elizabeth the obedient and dutiful wife of the said Samuel Allen, all
[Image
of page 5] which will appear by a reference to said bill which your
oratrix prays your honor may consider
in conjunction with this her cross bill. Your oratrix further states that
she was on the __ day of December 1825 legally married to the said Samuel
Allen, that during __ months she resided with the said Allen as his wife,
and did whilst thus residing with him honor and obey him, and do all things
in her power to promote his domestic happiness and did not as charged
in said bill by the said Allen in any wise disregard or neglect her marriage
vows or the obligations she owed the said Allen as her husband, but in
all things demeaned herself as an affectionate wife – That not withstanding
her your oratrix's love and duty to the said Allen he did without any
provocation or cause whatever frequently use rude and unkind language
to your oratrix Elizabeth and endeavoured to render her condition miserable
and degraded, and did not as he alledges in his said bill observe and
keep his marriage vows so as afsd. made to her the said Elizabeth,
but did from time to time within the first six months after their marriage
beat and bruise your oratrix by striking her with his fist and by other
means. And that he the said Allen treated your oratrix with other indignities
and finally ordered and compelled your oratrix to leave his bed and board
contrary to her wish and intention, and would not for a length of time
permit her to return to his house, that she did afterwards return and
was again compelled from the same causes to leave his house. Your oratrix
further presents that the said Allen in his said bill falsely maliciously
and with a view further to degrade and injure the said Elizabeth
your oratrix; [Image of page 6] has stated that
your oratrix is "naturally impotent and incapable of procreation,"
which assertion is entirely groundless and without truth. Your oratrix
offers too, and so fare as it is in equity incumbent on her will prove
the premises afsd. in such manner as your honor may direct and
require. In tender consideration whereof your oratrix prays that your
honor may release her from giving further answer to said bill, filed by
the said Allen, that your honor may not grant to the said Allen a Divorce
"a vinculo matrimonii" as prayed for in his said bill, but she
your Oratrix further prays that your honor would take into consideration
the case and misfortune of your oratrix as set forth in the premises,
and that you would grant to her a Divorce a mensa et Thorro of
the said Allen and that your honour may grant and decree to your oratrix
out of the estate of the said Samuel Allen afsd a maintenance
during her life or so much of his estate as may be sufficient for that
purpose and likewise decree so much out of his estate as your honor may
deem a compensation for the wrongs injuries and degradations she has suffered
from the said Allen out of his estate and that your honor would compel
the said Allen upon his corporal oath to answer "what his said estate
is worth in what kind of property it consists whether in lands, negroes,
stock, money, debts, dues, reversions, or any other rights whatsoever
and in what amount of each it consists, where situated, and in whose hands
or possession, and your oratrix further prays that your honour [Image
of page 7] will decree in her behalf and for her benefit whatsoever
may to equity and justice pertain, the premises being considered and your
Oratrix shall ever pray
Oden & Cummins Solicitors for Defendant
Elizabeth her x mark Allen
[left margin] Oath of Defendant on her Bill
Territory of Arkansas County of Independence
Personally appeared before the undersigned a justice of the peace for
said county the above named Elizabeth Allen and makes oath that the facts
as set forth in the foregoing bill as of her own knowledge are true and
that this is not made from levity or collison but in sincerity and truth
her
Elizabeth X Allen
mark
Sworn & subscribed to before me July the 10th 1827 John Redmon J.P.
[left margin] Memo of Clerk on Answer
Filed July 10 1827 John Redmon Clerk
[left margin] Demurrer on File
Samuel Allen v. Elizabeth Allen Demurrer
to answer
1st Because she must answer by her next friend. 2d Because she has no
right to file a cross bill.
Dickinson & Searcy Solicitors. Joinder
Oden & Cummins Attos for Defend.
(3rd day of July Term 1827)
[left margin] Judgment of the Court upon Demurrer
The complainant filed a demurrer to the Defendants answer and cross bill
filed herein & Joinder thereto being had the court overruled the demurrer
and defendant have costs accrueing upon said demurrer.
Samuel Allen
v. } On Petition for Divorce
Elizabeth Allen alias Tygert
Be it remembered that on the Eleventh day of July 1827 this cause came
on for trial in the forenoon of that day the respondent had filed a paper
marked ‘A' as her answer & cross bill to which the complainant
demurred for the following reasons to wit "1st Because she must answer
by her next friend. 2d Because she had no right to file a cross bill,
which demurrer was overruled and the court proceeded in the case [Image
of page 8] until the usual hour for a recess in the afternoon session
other chancery business was taken up and transacted at the instance of
one of the counsel for the complainant & when this case was again
entered upon, complainant's counsel tendered a bill of exceptions overruling
overruling the demurrer to the signing of which the counsel for
the defendant objected for reason that the exceptions were not tendered
when the decission of the court was had, that too much time had elapsed
& other business transacted between such decission and application
which objection was sustained by the court the complainant by his counsel
excepts and prays that this his Bill of exceptions may be signed sealed
& made a part of the record in this case.
J Woodson Bates (seal)
(4th day of July Term 1827)
[left margin] Entry made upon filing the above Bill
of Exceptions
Samuel Allen compt.
vs
Elizabeth Allen alias
Elizabeth Tygert
Petition for Divorce
The complainant filed his bill of exceptions to the opinion of the court
upon a demurrer (filed by him as of yesterday).
[left margin] Spoes. for Witnesses
Territory of Arkansas United States of America Sct.
To the Sheriff of the County of Independence Greeting:
We command you to summon Eli Sherrell, Daniel Lasewell, Sally Walker,
James Davis, Lewis Moulder, John W. Meacham & Gabriel Frost to appear
before the Judge of our Circuit Court at the courthouse in the town of
Batesville immediately then and there to testify and the truth
to speak, in behalf of Elizabeth Allen in a certain matter now pending
in said court, wherein Samuel Allen is complainant and Elizabeth Allen
is defendant and that you [Image
of page 9] make due return of this subpoena to our said court In testimony
whereof I have hereunto set my hand as clerk and affixed the seal of office
this 10th day of July 1827 and of the Independence of the United States
the 52nd. (seal) John Redmon Clerk
[left margin] Sheriff return on Spoe
Executed the within by reading the same to the within named Eli Sherrell,
Daniel Lasewell, Sally Walker, James Davis, Lewis Moulder, Gabriel Frost
& John W. Meacham on the 11th July 1827.
Services & Mileage 2.61 Charles Kelly
[left margin] Spoe. forWitnesses
Territory of Arkansas United States of America ss.
To the Sheriff of the County of Independence Greeting
We command you to summon John Spence to appear before the judge of our
Circuit Court at the courthouse in the town of Batesville immediately
then and there to testify and the truth to speak in behalf of Samuel Allen
in a certain matter now pending in said court wherein said Samuel Allen
is plaintiff and Elizabeth Allen is defendant, and that you make due return
of this subpoena to our said court. In testimony whereof I have set my
hand as clerk, and affixed the seal of office this 10th day of July 1827
and of the Independence of the United States the 52nd. (seal) John Redmon
Clerk
[left margin] Sheriff Return on Spoe.
Executed the within Spo by reading the same to the within named John Spence
on the 10th July 1827 in the town of Batesville Ruddell Township Independence
County A.T.
Services $.33 Charles Kelly Shff.
Territory of Arkansas United States of America Sct.
To the Sheriff of the County of Independence Greeting
We command you to summon Jesse Miller to appear before the judge of our
Circuit Court at the courthouse in the Town of Batesville immediately
[Image
of page 10] then and there to testify, and the truth to speak in behalf
of Saml Allen in a certain matter now pending in said court wherein said
Allen is complainant and Elizabeth Allen is Defendant, and that you make
due return of this subpoena to our said court. In testimony whereof I
have set my hand as clerk and affixed the seal of office this 10th day
of July 1827 and of the Independence of the United States the 52nd. (seal)
John Redmon Clerk
[left margin] Sheriff Return on Spoe.
Executed the within subpoena by reading of the same to the within named
Jesse Miller on the 10th day July 1827 in the town of Batesville Ruddell
Township Independence Cty AT Service $.33 Charles Kelly Sff.
Territory of Arkansas United States of America
To the Sheriff of the County of Independence Greeting
We command you to summon David Vance & Nancy Vance to appear before
the judge of our Circuit Court at the Court House in the town of Batesville
immediately then and there to testify, and the truth to speak,
in behalf of Elizabeth Allen in a certain matter now pending in said court
wherein Saml. Allen is complainant and said Elizabeth Allen is defendant,
and that you make due return of this subpoena to our said court. In Testimony
whereof, I have set my hand as clerk and affixed the seal of office this
11th day of July 1827, and of the Independence of the United States the
52nd.
(seal) John Redmon Clerk
Executed the within subpoena by reading the same to the within named
David Vance & Nancy Vance on the 11th July 1827.
Services 33 cts. Each 66 cts. Charles Kelly Shff.
[Image
of page 11]
[left margin] Spoe. for Witness
Territory of Arkansas, United States of America Sct.
To the Sheriff of the County of Independence, We command you to summon
Brezilla Bell & Andrew Cresswell to appear before the Judge of our
Circuit Court, at the court house in the town of Batesville immediately
then and there to testify, and the truth to speak, in behalf of Samuel
Allen in a certain matter now pending in said court, wherein said Saml.
Allen is complainant and Elizabeth Allen alias Elizabeth Tygert is Defendant,
and that you make due return of this subpoena to our said court. In Testimony
whereof I have set my hand as clerk, and affixed the seal of office, this
11th day of July 1827, and of the Independence of the United States the
52nd. (seal) John Redmon Clerk
[left margin] Shff. return on Same
Executed the within by reading the same to the within named Brazilla Bill
& Andrew Creswell on the 11th day of July 1827. Service 33 cs. Each
66 cs. Charles Kelly Shff.
[left margin] Spoe. for Witness
Territory of Arkansas, United States of America Ss. To the Sheriff of
the County of Independence Greeting We command you to summon John Davis
to appear before the Judge of our Circuit Court, at the court house in
the town of Batesville immediately then and there to testify, and the
truth to speak, in behalf of Samuel Allen in a certain matter now pending
in said court wherein said Saml. Allen is complt. and Elizabeth Allen
is defendant and that you make due return of this subpoena to our said
court. In Testimony whereof I have set my hand as clerk, and affixed the
seal of office this 12th day of July 1827, and of the Independence of
the United States the 52nd. (seal) John Redmon Clerk
[left margin] Sheriff return on Spoe.
Executed the within subpoena by reading the same to the within John Davis
on the 12th July 1827.
Services 33 cs. Charles Kelly Shff.
[Image
of page 12]
(July
Term 4th day 1827)
[left margin] Jury & Verdict
Saml. Allen Complainant
Against }Petition
for Divorce
Elizabeth Allen alias Elizabeth Tygert Defdt.
And now on this day came the parties by their solicitors and agree to
proceed to a final hearing upon the Bill Answer & Cross Bill and the
Testimony to be adduced and also came a jury to wit John Dearman, William
Caldwell, James D. Gibbins, Thomas Moore, John Kyler, Ellis Ragsdale,
Aaron Gillett, William P. Morris, Henry Perry, C. H. Pelham, James Boswell,
& John Ringgold twelve good and lawful men of the county aforesaid
elected tried and sworn to try the following facts in issue (viz) whether
the defendant be guilty of wilful desertion and whether she is naturally
impotent or not; and it is agreed between the parties that the one jury
shall try both issues of fact and give special verdicts on each issue,
who return upon their oaths "We the jury find the defendant had cause
to leave the complainants bed & board and that the defendant is not
naturally impotent."
[left margin] Bills of Exceptions
The complainant filed five Bills of Exceptions to the opinion of the court
marked "A" "B" "C" "D" & "E"
which were exceptions taken on the trial of the first issue aforesaid
before the Jury aforesaid (Here follows the Bills of Exceptions)
[left margin] Marked "A"
Samuel Allen
vs
Elizabeth Allen
In the Circuit Court for the County of Independence July Term 1827
Be it remembered that on the trial of the issues in this cause John Kyler
a juror was asked whether he had formed and delivered an opinion in this
[Image
of page 13] case to which he replied that he had said that he thought
the case would end where it began but had not formed or delivered any
opinion upon the issues on trial, to which opinion said plaintiff by his
counsel excepts & prays this his Bill of exceptions may be signed
sealed & made a part of the record in this case Js Woodson Bates(seal)
[left margin] Marked "B"
Samuel Allen
vs
Elizabeth Allen
Circuit Court July T 1827 –
Be it remembered that on the trial of the issues in this cause the plaintiff
counsel asked a witness whom he had introduced this question "whether
the defendant did not propose to you that she would get what she could
of Allens property and go off with you," which question the court
would not permit the witness to answer unless it had reference to a period
anterior to the final separation, to which opinion of the court the plaintiff's
counsel asked leave to except, but the bill of exceptions was not then
drawn as it was understood that such Bill of exceptions could be signed
in due time when said court took a recess when the court again met &
the trial resumed, the defendants counsel offered to permit the Plaintiff
to again call said witness and ask him the same question and waved every
objection which they had to his answering thereto, which the plaintiff
refused to do said witness being in the court house the court also offered
to give plaintiff counsel permission to call said witness ask the
said question and receive their answer & decided; & that plaintiff
waved all objections in consequence of his refusal [Image
of page 14] so to do. To which opinion of the court plaintiff
by his counsel excepts & prays that this his bill of exceptions may
be signed sealed & made a part of the record in this cause.
J.W. Bates (seal)
[left margin] Marked "C"
Samuel Allen
vs
Elizabeth Allen
In the Circuit Court of Independence County July Term 1827
Be it remembered on the trial of the issues in this case the plaintiff's
counsel asked a witness this question "whether the Deft. did
not tell witness that she would let him sleep one night with her for a
comb," which question the witness was not permitted to answer for
the reason that it was not asked whether said offer was made anterior
to the last separation & because if answered affirmatively or negatively
would not be responsive to the issues. And to which opinion of the complainant
excepts & prays that this his bill of exceptions may be signed sealed
& made a part of the record.
J.W. Bates (seal)
[left margin] Marked "D"
Samuel Allen
vs
Elizabeth Allen
On Petition for Divorce
Be it remembered that on the trial of the issues in this cause the plaintiffs
counsel asked a witness who had been sent by Plaintiff for his
wife the following question "did you think it was safe for her to
come home," which question the court overruled and would not permit
the witness to answer, to which opinion of the court the Plaintiff
by his counsel excepts & prays that this his Bill of exceptions may
be signed sealed and made a part of the record in this case.
Js W Bates (seal)
[left margin] Marked "E"
Samuel Allen
vs
Elizabeth Allen
In the Circuit Court of Independence County July Term 1827 –
Be it remembered that on the trial of the issues in [Image
of page 15] this cause the plaintiff offered to prove by a witness
that he was present at the first seperation of the parties, that they
seperated in peace, that defendant told complainant that she believed
they could life together if it were not for the complainants relations
the parties resided together again after this seperation, which testimony
was rejected by the court because in its opinion it had no relation to
the issue, to which opinion of the court the plaintiff by his counsel
excepts and prays this his bill of exceptions may be signed sealed and
made a part of the record in this case. Js. Woodson Bates (seal)
[left margin] Schedule of Compts. Estate by the Defendant
Samuel Allen
vs
Elizabeth Allen
July Term of Independence Circuit Court A.D. 1827 –
Elizabeth Allen being sworn says (in as much as she has prayed in her
answer & cross bill a disclosure of the estate of said Samuel Allen
of every name nature & discreption, and he refusing to give in the
schedule in conformity to said prayer after an agreement entered upon
record of this court for a final hearing of the above cause) that the
following is a true & correct list of the estate of said Allen as
far as has come to her knowledge & belief Four negroes to wit Jack
worth $1000 Abraham worth $450 John worth $200 Alice worth $350 2 head
of horses worth $80 – one yoke of oxen worth $40 one cart worth $25
one debt on Joseph Kellett for $35 one rifle gun worth $20 two feather
beds worth $30 2 bed stacks worth $4 3 blankets 2 sheets & 2 coverlids
worth $7 50/100 2 tables worth $3 – one cupboard worth $1 50/100
5 table cloths worth $10 – and divers pots & other articles of
household & kitchen furniture [Image
of page 16] worth $50 – one hundred & sixty acres of land
worth $350 one other tract of land of Eighty acres worth $500 Five negroes
in the state of North Carolina willed by the Father of said Allen to him
as this deponent understood from the son of said Allen & sd Allen
himself, worth $400 each as this affiant would suppose from the general
value of slaves, 30 head of hogs worth $60. And further this deponent
saith not.
her
Elizabeth X Allen
mark
Sworn and subscribed in open court this 13th July 1827
John Redmon Clerk
[left margin] Memo on the Schedule
Filed & Read July 13th 1827 John Redmon Clerk
[left margin] Interlocutory
Decree of C. Court
Samuel Allen
vs
Elizabeth Tygert alias Elizabeth Tygert
Petition for Divorce
This case being submited to the court and the issues of fact arising in
the same having been refered to a jury, and the verdict of the jury being
received by the court and after solemn argument by counsel both on the
part of the complainant and Defendant and the court having duly weighed
and considered the premises orders & decrees that the said Defendant
Elizabeth Allen be divorced A mensa et thoro from the said Samuel
Allen and be permited to live separate and apart from her husband the
said Samuel, who shall hereafter be permited to exercise no controul over
her as his wife; and the court further decrees that the said Samuel Allen
shall within the next three months pay to the person herein after named
as Trustee for the maintenance and support of the said Elizabeth his wife
the sum of Sixty Dollars lawful money of the United States. It is further
ordered and decreed that David Vance be and he is hereby appointed
a Trustee [Image
of page 17] to receive from the said Samuel the aforesaid sum of money,
and that he enter into bond with two sufficient securities before the
Clerk of this court to the Governor of the Territory of Arkansas and his
successors in office in the penal sum of one hundred and twenty dollars
conditioned that he the said Vance shall appropriate the said sum
of sixty dollars when paid over to him to the support and maintenance
of the said Elizabeth Allen and so far as the said sum will go after expenditures
for maintenance he will pay and discharge the just debts that may be owing
by the said Elizabeth for maintenance & c. previous to this time.
And it is ordered that this decree issue & take effect to the extent
of its provissions until the further decree of this court –
[left margin] Appeal Granted Compt.
The complainant prays an appeal to the next Term of the Superior Court
of this Territory, which is granted him upon his entering into bond and
security in the Clerks office in the sum of 500 Dollars conditioned to
prosecute his appeal with effect & c.
[left margin] Bond
Know all men by these presents that we Saml. Allen, Richard Searcy and
Townsend Dickinson are held and firmly bound unto Elizabeth Allen Alias
Elizabeth Tygert in the penal sum of Five hundred Dollars for the payment
whereof we bind ourselves our heirs executors and administrators firmly
by these presents witness our hands and seals this 13th day of July 1827.
The condition of this obligation is such that if the complainant Saml
[Image
of page 18] Allen shall prosecute his appeal with effect and the judgment
of the Circuit Court be reversed this obligation to be void and of no
effect otherwise remain in full force.
Samuel Allen (seal)
Richd Searcy (seal)
Townsend Dickinson (seal)
Acknowledged in open
Court July 13th 1827
John Redmon Clk
Territory of Arkansas
County of Independence
Sct. The United States of America
I John Redmon Clerk of the Circuit Court within and for the [missing]
aforesaid, do hereby certify that the foregoing contains & is a true
copy of the Record & proceedings of the Circuit Court of Independence
County in the suit of Samuel Allen Against Elizabeth Allen Alias Elizabeth
Tygert on petition for a Divorce
In Testimony whereof I have hereunto set my as Clerk and affixed the
seal of said court at office this 3rd day October A.D. 1827 and of the
Independence of the United States the Fifty second.
John Redmon Clk
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