Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 4) online

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unauthorized acts — neghgence, 1110.

permissive, compulsory, discretionary and necessary powers, 1111.
the rule of general application, 1112.
legislature may prescribe more favorable rule, 1112a.
consequential d. — term misused, 1113.
what is a "taking" of property, 1114.
early rule, 1115.

second rule — physical interference destroying beneficial use, 1116.
third rule — any injury a taking of property, 1117.
rules under new constitutions, 1118.
Massachusetts, 1119.

English rule adopted in Pennsylvania, 1120.
rule in Illinois, 1121.
Alabama, 1122.
other states, 1123.
d. must not be speculative, 1123a.
general conclusions, 1124,
IV. — The Allowance of Benefits

the allowance of benefits in general, 1125.

under statutes, 1126.

in the United States, 1127.

street openings — the taxing power, 1128.

general benefits, 1129.

special benefits, 1130.

causes of diversity in the rules governing benefits, 1130a.

state constitutions — local rules — special statutes, 1131.

3184 INDEX

[References are to sections, d. means damage; n. means note.]


originally no distinction between general and special benefits, 1132.
new constitutions — Alabama, 1133.
Arkansas, 1134.
California, 1135.
Colorado, 1136.
Georgia, 1137.
lUinois, 1138.
Kentucky, 1138a.
Louisiana, 1139.
Mississippi, 1139a.
Missouri, 1140.
Nebraska, 1141.
North Dakota, 1141a.
Pennsylvania, 1142.
Texas, 1143.
Washington, 1143a.
West Virginia, 1144.
other states, 1145.
old constitutions — New York, 1146.
Massachusetts, 1147.
other states — general conclusions, 1148.
V. — General Considerations Affecting the Measure of Damages

Under Statutes of Eminent Domain
measure of d. — difference in value — prospective estimate. 1149.
theory of a prospective measure of d., 1149o.
nominal d., 11496.

principle one of compensation, 1150.
time at which d. are measured, 1151.
new d. from change in construction, 1152.
additional burden, 1152a.
d. from other causes excluded, 1153.
entire tract, 1154.

interest giving title to compensation, 1154a.
d. in gross — individual interests consolidated, 11546.
effect of transfer of title on right to compensation, 1154c.
measure of d. where fee is taken, 1155.
where interest less than fee is taken, 1156.
leasehold interest, 1157.
fee subject to restrictions, 1 158.
unlawful entry — new proceedings, 1159.
discontinuance; ;ind abandonment, 1160.
njduction of d., IKiOa.

hypothetical reduction of d. not. allowed, 1161.
VI. — The Elements of Compensation in Proceedings Under Statutes

OF Eminent Domain
enhanced value, 1102.

elements entering into the measure of d., 1163.
general nature of inejuiry, 1164.
elements of d., 1165.

INDEX 3185

[References arc to sections, d. means damage; n. means note.]

EMINENT DOMkm— Continued.

easements of light, air and access; smoke, noise, etc.; special d., 1165a.
condition of property as left, 11656.
risk and danger in general, 1165c.
risk of fire, 1166.

costs and expenses of landowner, 1166a.
projections in streets, 11666.
mines, quarries and oil wells, 1166c.
sewage and surface water, 1166rf.
trees, 1166e.

fences, crossings and cattle guards, 1167.
buildings, fixtures and improvements, 1168.
injuries to business: personal property, 1169.
conflict in the cases, 1170.
elements of value, 1171.
value for all legitimate purposes, 1171a.
value for special purpose, 11716.
value of a homestead, 1171c.
franchises, Wild.

value for purpose for which condemned, 1171e.
possibility of procuring other land, 1172.
avoidable consequences; reinstatement, 1172a.
bridges, ferries and turnpikes, 1173.
value as affected by previous entry, 1174.
original entry unlawful, 1175.
value as enhanced, when allowed, 1176.
entry by consent, 1177.
value enhanced by private road, 1178.
evidence, 1179.
interest, 1179a.
VII. — Damages Under the New York Statutes of Eminent Domain.
The Elevated Railroad Decisions
introductory, 1180.
constitution and statutes, 1181.

general principles established by early decisions, 1182.
use of street by horse railroads, 1183.
by steam railroads, 1184.
the measure of d., 1185.
conflict in the cases, 1186.
elevated railway cases, 1187.
d. from operation of road, 1188.
alternative rule of d., 1189.
general rule finally adopted, 1190.
right to recover for noise, etc., 1191.
exemplary d. not allowed, 1192.
scope of the decisions finally announced, 1193.
ownership in the street, 1194.
recovery at law limited to past d., 1195.
results of the cases, 1196.
rule of d. as affected by benefits, 1197.


3186 INDEX

[References are to sections, d. means damage; n. means note.]


construction of the benefit statutes, 1198.
results of the decisions as to benefits, 1198a.
rationale of the decisions as to benefits, 11986.
avoidable consequences, 1199.

right of action not dependent on time when title acquired, 1200.
different interests, 1201.

past and future claims not merged by assignment, 1202.
rental value the rule, though plaintiff occupies premises, 1203.
suitableness of property for business, 1204.
loss of profits — falling off of trade — certainty, 1205.
risk of fire, 1205a.

effect of transfer of title on right to compensation, 1205&.
entirety, 1205c.

judgment generally a bar to further actions, 1206.
form of judgment — protection of mortgagees, 1207.
evidence, 1208.

condemnation proceedings, 1209.
in the Federal courts, 1210.
general conclusions, 1211.
VIII. — Provisions in Particular States
Alabama, 1122, 1133.
Arkansas, 1123, 1134.
California, 1123, 1135.
Colorado, 1123, 1136.
Connecticut, 1148.
Delaware, 1148.
Georgia, 1123, 1137.
Idaho, 1145.
Illinois, 1121, 1138.
Indiana, 1148.
Iowa, 1148.
Kansas, 1148.
Kentucky, 1123, 1138a.
Louisiana, 1123, 1139.
Maine, 1148.
Maryland, 1148.
Massachusetts, 1119, 1147.
Minnesota, 1145, 1148.
Mississippi, 1 139a.
Missouri, 1123, 1140.
Montana, 1123, 1145.
Nebraska, 1123, 1141.
Nevada, 1148.
New Hampshire, 1148.
New Jersey, 1148.
New York, 1146, 1180-1211.
North Carolina, 1148.
North Dakota, 1141a.
Ohio, 1148.

INDEX 3187

[References are to sections, d. means damage; n. means note.]


Oklahoma, 1123.

Oregon, 1148.

Pennsylvania, 1120, 1142.

Rhode Lsland, 1145, 1148.

South Carolina, 1148.

South Dakota, 1145.

Tennessee, 1148.

Texas, 1143.

Vermont, 1148.

Virginia, 1148.

Washington, 1143a.

West Virginia, 1144.

Wisconsin, 1148.

Wyoming, 1145.
EMPIRE, changes wrought by the, 1314.
EMPLOYMENT, benefit of contract of, lost by plaintiff, 1076.

chance of obtaining, 200.

compensation after expiration of term of, 664.

conjectural loss of, by failure to transmit telegram, 888.

contract of, is entire, 85.

d. for breach of contract of, 607a.

duty to seek, 206, 207, 213, 667.

does not arise in all contracts, 208.

expense of obtaining after discharge, 22Qd, 675.

loss of, from failure to transmit telegram, 881.

of a different kind, 207.

offer of, after wrongful discharge, 222.

recovery for loss of, in action for false imprisonment, 461.

services outside scope of, 673c.

terminable on notice, breach of contract of, 668.

for life, breach of contract of, 666.

duty to seek other, 205.

See Service, Contract of.
ENCROACHING on land, 1123 n., 102.
ENCROACHMENT on lode, 1123 n., 115.
ENDORSEMENT, d. for breach of warranty of, 775.

liability to cost of suit, 605.

necessary for recovery of cost of protest, 701.

recovery of d. by, against maker, 706.
ENGAGEMENT, length and publicity of, may be shown in breach of promise of
marriage, 6386.

length of, may be shown in action for breach of promise of marriage, 639a.

previous, may be shown on breach of promise of marriage, 641.
ENGINE, d. for breach of warranty of fitness of, 767.

for carrying on business, wrongfully disabled, 182 n.

value of, in situ, 254a.

warranty of, 767.
ENGINEER, injury to, 180.

unskilled, learning profession, 180a.

3188 INDEX

[References are to sections, d. means damage; n. means note.]

ENGLAND, doctrine of, for fraud in sale of goods, 778.

doctrine of one third new for old does not apply on first voyage, 715.

early rule in, for recoupment, 1036.

modem rule, 1030.

history of allowance of interest in, 283 el seq.
of doctrine of liquidated d. in, 394/ et seq.

law of, as to higher intermediate value, 508.

power of court of equity to award d. in, 12566.

recovery of higher intermediate value of goods sold, 745.

rule in, for d. on breach of warranty, 962.

rule of d. in, for breach of contract to convey land, 1002 et seq.

rule of, for d. for severance from freehold, 501.

special rules on compensation in, 1100.

workman's compensation act in, 675a.
ENGLISH law on eminent domain, difference between, and American law, 1106.

cases, on eminent domain, referred to, 1123.

rule, judicial objection to, 1105.

decisions, on eminent domain, cited in Illinois, 1121.

rule on eminent domain, application of, in Pennsylvania, criticised, 1122.
criticised, 1122.
in Pennsylvania, 1120.

statutes and decisions on eminent domain, 1078.

statutes, benefits under, 1103.

compensation based on, 1174.

when allowed, 1176.
ENHANCEMENT, general, 1162.

of market value, 1171.

of value by private road, 1178.
ENJOYMENT, taking of beneficial, 1114.

of life, d. for loss of, 485.

infringement of personal, 1123.

of property, deprivation of, 1121.
ENLARGEMENT, of brickyard, preventing of, 11656.
ENRICHMENT of land by sediment from river, 11716.
ENTERPRISE of salvor as affecting amount of salvage, 599c.
ENTERTAINMENT, action by plaintiff for loss of, 170.

premises let from time to time for, 182o.

d. for, 449.

exemplary d. for, 376.
ENTIRE contract price, when recoverable, 612.

cause of action cannot be split, 836.

all d. for an injury must be recovered in a single action, 84.

joinder of similar causes in a single suit, 84a.

for breach of contract, 85.

separate contracts, 85a.

INDEX 3189

[References are to sections, d. means damage; n. means note.] .


for a tort, 856.

distinct torts, 85c.

for causing land to fall, 93a.

for trespass to lands, 924a.

when assessed by jury, 1276.
ENTIRE LOSS, cases not falling within the rule, 178.
ENTIRE TRACT, injury to, by taking of rights of highway in New York, 1205c.

d. to, recoverable in eminent domain proceedings, 1154.

several buildings may form, in eminent domain proceedings, 1205c.

what constitutes, 1154. See Eminent Domain.
ENTRY by consent, 1177.

exemplary d. for forcible, 373.

made in good faith, 1175.

of landlord on demised premises, d. for illegal, 9906.

original, unlawful, 1175.

previous, value as affected by, 1174.

time of, 1151.

tortious, 1173.

under conveyance from mortgagor in possession, 1175.

unlawful, to construct reservoir, 1175.

without making compensation, 1151.

writ of, substitute for ejectment in New England, 899 n.
EQUITY, remedies given by, 3.

does not usually award pecuniary d., 3.

allowance of d. by a court of, 1256a.

power of English court of to award d., 1256&.

d. as incidental relief, 1256c,

d. on failure to obtain equitable relief, 1256d.

no d. where plaintiff should not have sued in, 1256c.

d. granted for the protection of the defendant, 1256/.

taking of an account, 1256(/.

d. against a trustee for breach of trust, 1256A.

time to which d. are assessed, 12562.

d. assessed on legal principles, 1256^.

interest in, 1256A;.

abatement of purchase money for land in, 1021a.

accounting for profits of infringing in, 1242.

burden of proof in, 1243.

d. allowed by, in suit for failure to convey land, 1021.

doctrine of set-off in, 1032.

exemplary d. not given in, 371.

liability of commissioner in, on official bond, 692^.

license fees in, 1225.

profits in, 1230-1232.

may proceed quia iirnet, 96a.

may reform or avoid an unconscionable agreement, 606c.

recovery of counsel fees in, 235a.

rule in patent suits. See Patents.

3190 INDEX

• [References are to sections, d. means damage; n. means note.]

EQUITY OF REDEISIPTION, agreement to pay mortgage by grantee of, 789.
EQUIVALENT, of pain, pecuniary, 41.
ERECTION of bridge, injuries to ferries by, 1173.

of county bridge, 1120.

of fire engine house, 1123 n.

of mill dam, d. from, 1151 n.

of public schoolhouse, 1177.
ERROR by telegraph company, in transmitting conditions of sale, 886.

in awarding d., arrest of judgment for, 1277.

in charge to jury, 1321.

in instructions to jury, 1321.

in transmitting telegram, d. for, 884-886.
recovery for consequences of, 884.

of telegraph company in transmitting price, 885.

interest in, 336.
ESCAPE, action against public officer for, 544, 546, 552-554.

d. for, 547.

d. on sheriff's bond for, 692i.

expense of litigation recoverable by sheriff in action for, 241.

from arrest on execution, d. for, 552.

from arrest on mesne process, 554a.

of gas, danger of, 1166c.

of surface water prevented, 1116 n.
ESSENTIAL BENEFITS, whether allowance will be made for, 1130.

what is, 1087.

from which plaintiff expected profits, 182.

profits of, 182.
ESTABLISHED STREET, closing of, 1123.
ESTABLISHMENT of new centre of population, is new benefit, 1129.

of street across railroad, 1152a.
ESTATE, interest due to, 3116.

of deceased, liable for interest, 340a.

of infant, chargeable with medical expenses, 226/.
ESTIMATE of injury, 1162.

of value, 1085.
ESTOPPEL as to value, 1.301.

d. how affected by acquisition of title by, 977.

by deed, doctrine of, 977.

d. in action on negotiable paper, alTccted by, 708.

lic}uidation of d. by, 1301.

to deny signature of note, 708.

to diiiiiuish value of one's own note or bond, 277.
ESTREPImMIONT, action of, 950.

writ of, 900.
ETIIIOLlilOR'l', earliest Anglo-Saxon laws of, 9.
EVASION OF USURY LAWS, stipulation for, 420.
EVICTION, compulsory, d. from, lOSO.

const niclive, 9.')0.

d. for total, on covenant against incuinl)rances, !)(»!).

INDEX 3191

[References arc to sections, d. means damage; n. means note.l

EVICTION— Coniinued.

from leased premises, d. for, 988.

from part of land, 975.

gives right of action on covenant of warranty, 956.

offer of other premises after, 222.

recoupment for rents and profits after, 1054.

recovery for, in action for breach of covenant against incumbrances, 968.

wrongful, d. for, 188.
EVIDENCE. See Witness.

admissibility of, 1179.

aggravation or mitigation matters of, 52.

admission of, 11656.

as to business, 1169, 1304.

as to elements of d., 1149.

as to profits, 1169.

in actions for death, 580.

of auction sale, as proving value of land, 1023.

of character and capacity of deceased in action for death, 580a.

of cost of improvement, 1171e.

of d., how far necessary, 1322.

of family circumstances, 580.

of materials in buildings, 1168 n.

of net earnings, 1173.

of past d., 1109 n.

of price paid for land, 1149 n.

of probable length of life, 485, 581, 636i, 1306.

of profits, 1169.

of rental value, 1171a,

of sales at auction, 1179.

of value, market value as best, 242.

of value of guano, 596.

of value, price as, 766, 777.

of value of vessel, 595.

mode of proof, 1287.

exceptions to common-law rule excluding testimony of party, 1288.

abrogation of common-law rule, 1289.

witness to testify to facts, not opinions, 1290.

of experts, 1291.

confined to matters of art and skill, 1292.

opinions as to quantum of d., 1293.

of value — opinions of value, 1294.

of value of lands and leases, 1295.

of chattels — opinions of value, 1296.

of market value, 1297.

of sales, 1298.

offers — price-lists — quotations — appraisals, 1299.

presumption against defendant, 1300.

estoppel, 1301.

value of construction, 1302.
of services, 1303.

3192 INDEX

[References are to sections, d. means damage; n. means note.]

EVIDENCE— Contin ued.

of other value, 1304.

of malice or intention — appraisals, 1305.

of the duration of life, 1306.

of pain, 1307.

of a former verdict, 1308.

physical examination, 1309.

approximate, 1310.

d. imported from the circimistances, 1310a.
EX POST FACTO wisdom, 221.
EXAMINATION by physicians, 1309.

physical, 1309.

See Physical Ex.\min'atiox.
EXCAVATION, by owner, not a tort, 93a.

d. for, 939.

d. for, after suit brought, 91, 92.

d. on land of defendant caused by, 925.

measure of d. for making, 939.

not the wrongful act, in action for loss of support of land, 925.

in distant street, 1123.

in street, destruction of access by, 1123.

power of court to set aside verdicts as excessive, 1325.

what d. are excessive, 1326.

successive verdicts, 1327.

cases in which the court will act, 1328.

practice, 1329.

remission of the excess, 1330.

when a remittitur will be entered, 1331.

action of appellate courts on, 1332.

what amount is excessive, 1333.

for pecuniar}' loss, 1334.

for defamation, 1335.

for false imprisonment, 1336.

for malicious prosecution, 1337.

for alienation of affections, 1338.

for breach of promise of marriage, 1339.

for seduction, 1340.

against telegrajih companies, 1341.

against carriers, 1342.

for other malicious torts, or \^Tong3 causing mental sufifering, 1343.

e-xcmplarj- d., 1344.

for assault and batter>', 1345.

for physical injur>'; doubtful physical consequences, 1346.

for slight or temporary' injur}', 1347.

for broken bones: bones of leg and hip, 1348.
arm or .shoulder, 1349.
the trunk, V.i'yO.
the head, 13r,l.

for Burgical ojx'rution, 13.52.

INDEX 3193

[References arc to sections, d. means damage; n. means note.]


for pain and suffering, 1353.

for permanent injuries: disability to labor, 1354.

for permanent crippling, 1355.

for loss of a member: leg or foot, 1356.
arm, hand or finger, 1357.

for disfigurement, 1358.

for impairment of sight or hearing, 1359.

for nervous disorders, 1360.

for insanity and loss of mental power, 1361.

for shortening of life, 1362.

for other permanent injuries, 1363.

doubt as to permanence of injury, 1364.

for loss of service, 1365.

upon civil damage act, 1366.

for death, 582, 1367.

for breach of promise of marriage, 637.

verdict for exemplary d. may be set aside if grossly excessive, 388.
EXCESSIVE VERDICT, one greatly exceeding average is, 1333.

weight of precedent on question of, 1333.

where excessive part can be separated, 1331.
EXCHANGE liquidated d. for, 1020.

of chattels, breach of agreement for, 734.

of horses, recoupment in action for fraud in, 1044.

of labor or property, breach of contract for, 621.

of land, d. on breach of contract for, 1010, 1012, 1012 n., 1020.
hquidated d. for breach of contract for, 400, 417, 1012.
d. for breach of covenant of seisin upon, 966.
d. for breach of warranty on, 965.
d. for failure by one party to convey, 1010.
d. for fraud in, 1029.

of property, breach of warranty in case of, 762.
recoupment in contract for breach of, 1071.
recoupment in case of, 1071.

rate of, how fixed, 275.

value of, 275.
EXCHEQUER formerly part of Aida Regis, 18.

EXCITED FEELINGS OF PLAINTIFF not be satisfied by exemplary d., 388.
EXCLUSION of benefits, in Iowa, 1152.

of consequential d., 1170.

from office, d. for, 40, 569.
EXCLUSIVE AGENCY, contract for, 633.

recoupment on breach of contract for, 1061.
EXCLUSIVE TERRITORY, d. for invasion of, 1246a.

d. of agent deprived of, 834d.
EXCURSION TRAIN, contract to furnish, 194.
EXCUSE by act of God, 655c.
EXECUTED CONTRACT, recovery upon, 611.
EXECUTION, d. for injunction against enforcement of, 685^.

d. for escape from arrest on, 552.

3194 INDEX

[References are to sections, d. means damage; n. means note.]

EXECUTION— CoTiiinued.

d. for sale on void, 494.
d. on sheriff's bond for failure to levy, 692i.
d. for wrongful levy on, 565.
illegal sale on, 568.
injunction against sale on, 685/i.
legal seizure on, followed by informal sale, 61.
levy of, after destruction by fire, 725.
liability of judge for failure to issue, 692g.
of rightfully seized property, wrongfully sold, 61.
of judgment on bond, 676.

purchaser on, recovers for mesne profits from date of sheriff's deed, 912.
recovery of mesne profits by purchaser on, 912.
seizure on, 60.
EXECUTOR, d. for failure to file inventory, 692^.

de son tort may reduce d. by sho\,«ing payment of debts, 61.

failure of, to render account, 107a, n.

gets action for injury to land before death of testator, 836.

liability of sureties on bond of, 6926.

may recover interest on advances to estate, 3116.

not liable in exemplary d., 362.

recovery by, of expense of accounting, 2416.

of medical expenses and loss of time, 570a.

of mesne profits, 913.
recovery on bond of, 692j.
interest payable by, 311a, 3116.
EXEMPLARY DAMAGES, 30 n., 347 et seq.
I. — General Principles

meaning of the term, 347.

vindictive, punitory, or punitive d. and smart money synonymous with,

347 n.
distinction between, and punitory d. not well taken, 347 n.
origin of the doctrine, 348.

original position of the jury in the assessment of, 349.
evolution of theory of, 350.
history of doctrine of, in America, 351.
given to punish, 352.
objections to the doctrine of, 353.

by Professor Greenleaf, 353.

by the Supreme Court of New Hampshire, 353.
rule of, established by authority and convenience, 354.
in other systcjins of law, 355.
in the Roman and civil law, ;'55.
in the Scotch law, 355.

not the same as d. for mental suffering, 356.
in addition to compensatory d., 357.
not awarded in some; States, 358.
in some Statfw ba.4('(l on compensation, 359.

where bas«'d on (listiiicdon between determinate and indeterminate d.,

INDEX 3195

[References are to sections, d. means damage; n. means note.]


generally given a,s punishment, 3G0.

not allowed without actual loss, 361.

do not survive, 362.

counsel fees whether included in, 234, 359.

do not involve a consideration of value, 242.

for injuries which arc crimes, 386.

not allowed as matter of law, 387.

the conflict of laws as to, 1380.
II. — Under What Circumstances Allowed

allowed only for wilful, wanton, or aggravated wrong, 363.

allowed for aggravating circumstances, 363a.

for malice, 364.

for oppression, brutality, or insult, 365.

for wantonness of injury, 366.

for fraud, 376.

for gross negligence, 368.

circumstances preventing the allowance of, 369.
III. — In What Actions Allowed

in what actions recoverable, 370.

not in amicable suits, 383.

a. Actions sounding in contract:

not usually recoverable on breach of contract, 603.

for breach of promise of marriage, 351, 370, 637a.

in actions against public service companies, 371a.

for failure to carry passenger, 862 n.

for expulsion from railway train, 365, 372, 383, 388, 865.

against sleeping car company, 873o.

for expulsion from theatre, 8736.

against telegraph company, 896.

in detinue, 375.

not recoverable on official bond, 692.

on statutory bond, 370, 680.

on attachment bond, 683.

on bond to indemnify sheriff, 684a.

b. Actions sounding in tort:

may be awarded in action of tort, 370, 429.

not for tort committed by accident or mistake, 363.

action against public officer, 350, 351, 363, 365, 554, 564.

assault, 350, 352, 372, 384.

conversion, 374.

crim. con., 376.

defamation, 377.

enticement, 376.

false imprisonment, 352, 372.

flowing land, 373.

harboring wife or husband, 376.

illegal distraint, 990a.

injury to personal property, 351, 352, 373a.

injury to real estate, 373.

3196 INDEX

[References are to sections, d. means damage; n. means note.]

landlord upon tenant, 990.
Ubel, 351, 352, 377, 383.
loss of serv'ice, 376.
malicious arrest, 388.
malicious prosecution, 352, 372.
personal injury, 372.
refusal to receive vote, 562.
seduction, 376, 474.

trespass, q. c. /., 350, 361, 363, 373, 383, 384.
trover, 374, 930.
c. Other actions:

in admiralty, 352, 5996.
under the Civil Damage Act, 1254.
for violation of copyright, 12466.
for death, 584.

on dissolution of injunction, 3776.
not against elevated railroads, 1192.
not in actions for eminent domain in New York, 1192.
not in equity, 3 n., 371.
in forcible entry and detainer, 373.
for wrongful sale of intoxicating liquor, 359, 363, 387.

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