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ed. Held, that he had jurisdiction to issue an order appointing the commissioners. Orders below affirmed. In re Ryers. Opinion by Folger, J. Church, C. J., dissented.

[Decided January 15, 1878. Reported below, 10 Hun, 93.]

PARTNERSHIP.

Attachment and execution against one partner on firm debt does not hold firm property.-In an action against a firm upon a firm debt where both partners were brought into court, but one only was liable from his personal situation to the issue of an attachment against his property, held, that an attachment issued would reach only his property, and not the property of the firm, and that an assignment of the firm for the benefit of creditors after the attachment, would convey the firm property, and a sale thereafter, under execution, of the interest of the partner named, would only convey his interest after the settlement of the estate, and the execution purchaser could not hold title to the property attached and sold against the assignee. Judgment below affirmed. Staats v. Bristow. Opinion by Folger, J.

[Decided April 9, 1878.]

RAILROAD AID BONDS.

Town bonds not issued in compliance with statute invalid.-The consent of a majority of the tax payers of the town of Thompson was obtained for the issuing of town bonds in aid of a railway. The consent stated on its face that it was given in accordance with the provisions of the act of 1868 (chapter 553, amended by Laws 1869, chapter 96), and authorized commissioners appointed thereunder for said town to borrow upon the faith and credit of the town $148,000, and to do and perform other things necessary to carry into effect the provisions of the said act. Held, to authorize the commis sioners to proceed only according to the provisions of the act of 1868, that is, to borrow money by disposing of the bonds at not less than par, and invest the money so raised in the stock of a railroad company, and not to authorize the commissioners to issue bonds in exchange for the stock of any company, and bonds issued in the latter manner would be invalid. Held, also, that where bonds payable to bearer were issued in the latter way, and recited on their face that they were issued under the act of 1848, and were given "for value received in the stock of the Monticello and Port Jervis Railroad Co.," it would appear on their face that they were issued in violation of the act, and would be void in the hands of any holder. Judgment below reversed. Horton v. Town of Thompson. Opinion by Rapallo, J. Andrews, Miller and Earl, JJ., dissent.

2. Constitutional law: statute validating invalid bonds void.When bonds were issued in the manner mentioned, held that an act of the legislature declaring the bonds valid (Laws 1871, chap. 809) would not render them so, it being beyond the limits of legislative power to render the bonds binding upon the town without its consent.

[Decided January 15, 1878.]

TITLE.

To property manufactured under contract: when it vests: lien of workman for price.-Where plaintiff contracted to make and deliver to defendant a tent, and defendant requested him to send it from New York to Lewistown, Me., but plaintiff did not contract to deliver it at Lewistown, held, that plaintiff had com

pleted his contract when he had shipped the tent by the usual route to Lewistown, and the title passed and defendant would be liable for the purchase-price, even though the tent should be destroyed, without plaintiff's negligence, in transitu, and this would not be affected by the fact that plaintiff retained his lien for the purchase-price until the tent was delivered at Lewistown. Judgment affirmed. Higgins v. Murray. Opinion by Church, C. J. [Decided April 9, 1878.]

NOTES OF RECENT DECISIONS.

CONSTITUTIONAL LAW: POWer of CongresSS AS TO CRIMES IN STATES: POWER AS TO MAILS.-Congress has no power to make criminal the using of means to procure abortions in the several States. That power belongs to the respective States. But Congress has plenary power over the mails and the postal service, and may declare what shall and what shall not be mailable matter, and punish violations of its criminal enactments in this regard. U. S. Dist. Ct., E. D. Mo., March 30, 1878. United States v. Whittier (Ch. Leg. News.)

CORPORATION: JURISDICTION OF FOREIGN.-A resolution of a foreign corporation, filed pursuant to a State statute, authorizing its agent "to acknowledge service of process for and in behalf of such company, and consenting that service of process upon any agent shall be taken and held to be as valid as if served upon the company or association," amounts to an agreement for a constructive presence within such State; and a Federal court may obtain jurisdiction over such corporation by service upon its agent. U.'S. Circ. Ct., E. D. Mich., April 1, 1878. Fonda v. Brit. Am. Assur. Co. (Cent. L. J.)

DEFENSE: BREACH OF AGREEMENT TO FURNISH INFORMATION.-A defendant who had agreed to furnish information as to the credit of others, and whose negligence had caused loss to the plaintiffs, cannot set up as a defense that the communications were merely verbal, and that they are required by statute to be in writing, in order to sustain his liability. Such a statute is intended to protect honest and careful men, and cannot be used to shield one who has been guilty of negligence or misfeasance. Ct. Common Pleas, Philadelphia, April 6, 1878. Sprague v. Dun (Leg. Intel.)

ESTOPPEL: STATEMENTS BY MAKER OF PROMISSORY NOTE TO INTENDING PURCHASER.-Where the maker of a promissory note, payable to a certain person or bearer, on being inquired of by a third persou, to whom the payee had offered, after its dishonor, to sell it, answered that it was all right, and that he would pay it, and thereupon the purchase was made and the price paid, the maker is estopped from setting up failure or want of consideration, or any other equity existing between himself and the payee, to an action brought upon the note by the purchaser or his privies. Sup. Ct., Ga., March 16, 1878. Reedy v. Brunner.

FRAUD: SALE BY ONE PARTNER OF INSOLVENT FIRM TO ANOTHER.-A sale for a valuable consideration by one partner to another, when the firm is insolvent, does not of itself constitute fraud, either actual or constructive. U. S. Dist. Ct., W. D. Mich., March 15, 1878. Russell v. McCord (Ch. Leg. N.).

-

PRACTICE IN U. S. COURTS: LIEN OR JUDGMENT. 1. In the United States courts where a State is divided into several districts, a judgment obtained in one district is a lien upon defendant's real estate in all parts of the State. The right of lien depends upon the right of execution; and by section 985, Revised Statutes, all writs of execution may "run and be executed in all parts of the State." 2. Plaintiff has a right to concurrent execution all over the State. 3. The direction of the writ to one marshal is merely formal and of no consequence. U. S. Circ. Ct., E. D. Penn., March, 1878. Prevost v. Gorrell (Pittsb. L. J.).

REPEAL OF GENERAL LAW UNDER WHICH CORPORATION IS FORMED.-The repeal of an act under which a corporation is incorporated does not repeal its charter. Only express legislation can take that away. New Jersey Ct. Chancery, Feb. 1878. Freehold Mut. Loan Assoc. v. Brown (N. J. L. Jour.).

COURT OF APPEALS DECISIONS.

THE following decisions were passed down Tuesday, April 23, 1878:

Per curiam, opinion for denial of motion, with $10 costs Madison Ave. Baptist Church v. Baptist Church in Oliver street. Per curiam, opinion for granting motion to discontinue appeal, on payment of costs of the appeal, and $10 costs of motion- MacKay v. Lewis. - Agree to deny motion, with $10 costs, no opinion - Faber v. Hovey. Agree to grant motion for leave to perfect the appeal by giving an undertaking with sureties, who shall justify within 20 days, and it is ordered that the appellant shall, within 20 days, cause the return to (the appeal to be filed with the clerk of this court, and three printed copies thereof to be served on the attorneys for the respondents within 10 days thereafter, and that the appeal be put upon the present calendar for hearing as a preferred cause, with liberty to either party to move it on for argument on a notice of two days, and if the appellants fail to give such security, or cause the return to be filed, or to serve copies thereof as above required, the appeal to be dismissed with costs; no opinion - Scofield v. Adams. Cal. 47, Rapallo, J., reads opinion for reversal of final judgment and new trial - Sturgis v. Vanderbilt. Cal. 79, Andrews, J., reads opinion for affirmance order and judgment absolute for Morris ex rel. respondent-People v. Board of Supervisors of Richmond county.-Cal. 152, Church, Ch. J., reads opinion for reversal of judgment and order setting aside verdict, and dismissing complaint, and judgment ordered on verdictConnecticut Fire Insurance Co. v. Erie Railway. Cal. 203, Miller, J., reads opinion for reversal and new trial- People's Bank of New York v. Mitchell.

--

Cal. 388, Earl, J., reads opinion for reversal order and denial of motion-People ex rel. Morris v. Randall. Cal. 205, Andrews, J., reads opinion for affirmance. Welsh v. German American Bank. Cal. 206, Miller, J., reads opinion for affirmance. Schroeder v. Gurney. · - Cal. 207, Earl, J., reads for affirmance of order, and judgment absolute for plaintiffs on stipulation - Lawrence v. Gallagher. Cal. 294, agree to affirm on opinion of Special Term Hunt v. Church.-Cal. 57, Folger, J., reads opinion for affirmance-McCullough v. Hoffman. Earl, J., reads opinion for affirmance-Townsend v. O'Conner. - Cal. 394, Allen, J., reads for reversal of judgment and affirmance of proceedings of defendants.

Cal. 28,

- People ex rel. Royal v. Board of Fire Commissioners of city of New York. Cal. 395, same as last above Cal. - People ex rel. Simms v. Same defendants. 399, Folger, J., reads opinion for affirmance order— People ex rel. Freer v. Canal Appraisers.

NEW BOOKS AND NEW EDITIONS.

HERMAN ON CHATTEL MORTGAGES.

Treatise on Chattel Mortgages. By Henry M. Herman, author of the law of Executors, etc. New York: Cockroft & Co.

THIS

HIS is a valuable book upon a subject of great and growing importance to the profession and the business community. The law on the subject has here tofore been in a chaotic condition, and a thoroughly comprehensive work was very much needed. There were, indeed, a vast number of decisions, but they were scattered and contradictory, and those of the profession who had occasion to consult them were very liable to be misled. The author seems to have deduced from the various authorities the underlying principles which govern the subject treated, and we are confident the bench and bar will welcome his book as being a safe guide to the understanding of these principles. The work is divided into three books, each book being subdivided into chapters. The first book treats of the origin and nature of chattels and mortgages, of the form of a chattel mortgage, of the description of the property, of the consideration, and of delivery. Book second is devoted to a consideration of the validity of chattel mortgages, of their registration, recording or filing, of the possession of mortgaged chattels, of fraudulent and void mortgages, of the effect of the bankrupt law, of priority, and of mortgages on ships. Book third considers the rights of the various parties to a mortgage, and others affected by it, of payment and of satisfaction, of transfer of the interest of the mortgagor, and of the remedies of the mortgagee after default or breach of condition. It will thus be seen that the law on the subject is presented in a systematic manner, and that every part is considered. The work is well indexed and excellently printed and bound.

NEW YORK SUPERIOR COURT REPORTS, VOLUME XLII. Reports of cases argued and determined in the Superior Court of the city of New York. By Samuel Jones and James C. Spencer, reporters of the Court. New York Superior Court Reports, Volume XLII. Jones & Spencer's Volume X. New York: Ward & Peloubet, successors to Diossy & Co., 1878.

There are a number of valuable cases in this volume, both upon general questions of law and upon those of interest only in this State. Among such cases we will notice these: Brown v. Torrey, p. 1. A stockholder claiming to be liable for the debts of a corporation and who, himself, as an officer, signed a note issued by the corporation, is estopped from setting up a want of power in the corporation to make the note. Maguire v. Dinsmore, p. 17. A concealment by a shipper of the true value of the goods shipped, or his silence alone, discharges the carrier from liability for ordinary negligence. Wiel v. Fischer, p. 32. A representation by a mortgagor, to one about to purchase the mortgage, that the same was given for value, accompanied by a certificate that the mortgagor "knew of no offset or defense, legal or equitable, thereto," held to estop the mortgagor from setting up the defense of usury. National

Trust Co. v. Roberts, p. 100. A conviction for an infa-
mous crime in another State, or foreign country, would
not render a witness incompetent here, under the law
as it stood previous to the new Code. Dumphy v. Erie
Railway Co., p. 128. Rules of a railway company, lim-phen J. Field, Associate Justice.
iting the right of a passenger on a ticket from New
York to Rochester, as to stopping over at intermediate
stations, held reasonable and valid. Einstein v. Chap-
man, p. 144. The change of possession required by 2 R.
S. 136, in order to make a sale of property valid, must
be not only actual, but continued, or the sale will be pre-
sumed fraudulent. Madens v. Shepard, p. 353. Persons
receiving bills of lading from a carrier are conclusively
presumed to know the terms upon which the property is
to be carried, and to have assented thereto. O'Hagan

for the Sixth Circuit, Noah H. Swayne, Associate
Justice; for the Seventh Circuit, John M. Harlan, As-
sociate Justice; for the Eighth Circuit, Samuel F.
Miller, Associate Justice; for the Ninth Circuit, Ste-

v. Dillon, p. 456. Intoxication will not constitute contributory negligence, unless it disqualifies the individual from the exercise of ordinary care and prudence. Welsh v. German Am. Bank, p. 462. Where a bank paid a check drawn to order upon a forged indorsement of the name of the payee, and returned the check to the depositor, who kept it two years before discovering the forgery, held, that this did not constitute payment of the check, nor was the keeping two years ratification. Eneas v. Hoops, p. 517. An alteration materially affecting a contract guaranteed, will discharge the guarantor, though the variation may be to his advantage. Ritterband v. Baggett, p. 556. Restrictions upon the sale of shares of membership, in a corporation, do not destroy the character as property, which such shares or right would otherwise have. There are a number of decisions in the volume, construing the meaning of sections of the old and new Code. In Hatzel v. Hatzel, p. 561, $$ 968, 969, 970, 1009, 1013 of the new Code are explained. The reporting is excellently done, and the mechanical execution of the volume is all that could be desired.

A

NOTES.

NEW law periodical has appeared on the Pacific Coast. It is entitled the California Legal Record, and is issued weekly in San Francisco by Messrs. Scofield & Palmer. The first two numbers have reached us, and, judging from them, we should say that the Legal Record is a publication that ought to receive the support of the profession in California and the adjoining States. The numbers received by us contain a number of current decisions of the Supreme Court of California, legal notes upon events of interest to the legal profession, digests of decisions in other States, and other useful matter. We trust our new contemporary will succeed. It certainly deserves to.

The following order was entered in the United States Supreme Court on the 22d inst.: There having been an Associate Justice of this court appointed since the commencement of this Term, it is ordered that the following allotment be made of Chief Justice and Associate Justices of said court among Circuits, agreeably to act of Congress in such case made and provided, and that such allotment be entered on record, viz. For the First Circuit Court, Nathan Clifford, Associate Justice; for the Second Circuit Court, Ward Hunt, Associate Justice; for the Third Circuit Court, William Strong, Associate Justice; for the Fourth Circuit, Morrison R. Waite, Chief Justice: for the Fifth Circuit, Joseph P. Bradley, Associate Justice;

The Chicago Legal News thus discourses concerning the Bankrupt Law, skillfully uniting sentiment and business: "This law is evidently in its death struggle. A few more days, and in all human probability it will have passed away. We have no tears to shed over its decease. We never spoke a kindly word of it while living, we shall not praise it now. We feel like saying, "Behold, an aged sinner goes, Laden with guilt and heavy woes, Down to the regions of the dead, With endless curses on his head;"

and, in this connection, we would say that we have the most complete line of Bankruptcy Blanks in the United States, which we shall be most happy to furnish to the mourners until after the funeral."

In the case of Bowery Nat. Bank v. Duryee, decided by the General Term of the Supreme Court for the First Department on the 23d inst., an important point of practice was passed upon. At Special Term, Lawrence, J., held that under the new Code the plaintiff must state in his complaint in every case where the defendant is subject to arrest not only the cause of action but the cause of arrest, even where such cause of arrest is extrinsic to the cause of action, so that the jury on the trial might pass not only on the question of defendant's liability in money, but also on the matters affecting his liberty. Judge Lawrence held in this respect the New Code had effected a desirable improvement on the old practice of passing upon the question of a man's liberty upon affidavits, while the less important question of his money liability was passed upon after hearing the oral testimony of witnesses. The General Term reversed this decision upon the authority of the case of Sloane v. Livermore, decided at the same time. The latter case involved the construction of section 558 of the New Code, which says: "But at any time after filing or service of the complaint, the order of arrest must be vacated on motion if the complaint shows that the case is not one of those mentioned in section 549 or 550 of this act." Judge Ingalls, who gave the opinion, holds that to entitle the defendant to his release the complaint must actually negative the right to arrest; and where the cause of arrest is distinct from the cause of action, the complaint in the action need not state the cause of arrest, and not negativing it, the arrest may be upheld on affidavits.

The statistics of divorce actions in Vermont are thus stated in a local paper: During the year 1876 one hundred and sixty-eight divorces were granted in the State three less than in 1875-being one divorce to every sixteen marriages. In one hundred and twentythree cases the wife was the petitioner, and in fortyfive the husband. Sixty-six were granted for 'intolerable severity,' eleven for 'refusal to support,' twenty-four for 'adultery,' fifteen for 'desertion.'

A suit brought by the city of St. Louis for the possession of the property of the St. Louis Gas Company, was decided by the Court of Appeals on the 16th inst. in favor of the plaintiff. About $2,000,000 is involved.

ALL communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

difference of opinion, many believing it would be no improvement to adopt the provisions of the Federal law and forbid every preference. There is a difference in the character of debts which men in

Communications on business matters should be ad- their private transactions everywhere recognize. dressed to the publishers.

The Albany Law Journal.

ALBANY, MAY 4, 1878.

Payment in full to one creditor even at the expense of a failure to pay others, may not be unjust though the allowance of preferences in assignments opens a door to fraud and tends to render favored persons less vigilant. The question is one of difficulty, and it is probable that the statutes of the various States will continue to differ in respect thereto.

CURRENT TOPICS.

THE Supreme Court of the United States in the

Among the acts contained in the Supplement acnumber is one repealing section

T case of Edwards v. Kearzy, just decided, and companying this on Civil Procedure. That section

appearing in our present issue, pass upon the important constitutional question of the validity as to existing debts of exemption laws passed by State legislatures. The court hold that the remedy subsisting in a State when and where a contract is

made, and is to be performed, is a part of its obli

gation, and any subsequent law of the State, which so

affects that remedy as substantially to impair and les

sen the value of the contract, is forbidden by the Federal Constitution and is therefore void. In the case in question, the court hold that a statute of North Carolina exempting the personal property of a debtor to the extent of five hundred dollars and a homestead of the value of one thousand dollars, is unconstitutional

excluded from the witness-stand the husband or wife of one who was excluded by section 829. We pointed out some time ago the folly of the section and are pleased to see it stricken out. It would have been better had section 829 been included in the repeal, but that will come in time. Among the other acts in the Supplement is an act in

relation to infections and contagious diseases of animals, which confers upon the governor plenary power in relation thereto when occasion requires; an act amending chapter 465 of the Laws of 1875, which requires fire insurance companies to contribute to the support of fire departments in villages and cities, and a lengthy act amending the law so far as debts in existence at the time of its pass-regarding the assessment and collection of taxes. age are concerned. The position of the court upon this subject will satisfy every one except those who desire to defraud their creditors. The decision comes at an opportune moment, and will do much to check a growing disposition in State legislatures to relieve debtors from the performance of their obligations by the passage of exemption and stay laws.

The action of Congress in reference to the bankrupt law has called attention to the laws formerly in force in the various States, regulating insolvency, but which have since the enactment of the Federal statute to a great extent been dormant. The repeal of this statute will revive the State laws and many of these will be found not suited to the needs of the present time. In one State, Rhode Island, the situation has been anticipated, a special session of the legislature having been held to consider bills for modifying the insolvent laws. Only two days were spent in the work, but a law was passed wherein preferences to creditors are forbidden, and an equal distribution of the property of failing debtors among their creditors provided for. The insolvent law of our own State is probably as good a one as could be contrived except as to the matter of preferences, and even as to this there is a great VOL. 17.- No. 18.

The Bankrupt Law dies hard. After the bill for its unconditional repeal had passed the Senate by a vote of 37 to 6, and the House of Representatives by an equally overwhelming majority, notwithstanding the most vigorous efforts to either postpone action upon it or to so change it by amendments so that it would not accomplish the object sought, it has been, during the past week, the subject of considerable debate in the Senate. The amendments made in the House did not change the tenor of the bill passed by the Senate, they only made it more certain and more effective. The bill was discussed on Tuesday and Wednesday. On the latter day the amendment of the House mentioning the date of the acts to be repealed, and designating their place in the Revised Statutes, was agreed to. An amendment fixing the time when the repeal should take effect at January 1, 1879, was then proposed by Mr. Matthews, and after a vigorous debate adopted, and the bill referred to the judiciary committee that the saving clause might be perfected. The principal argument advanced for a continuance of the law until the date mentioned was that there are many insolvent persons who would be turned out of house and

home unless they are given the remainder of the year to commence proceedings to obtain a discharge. The necessities of unfortunate debtors furnish the excuse for a continuance of the law, but we imagine that the most of these persons would willingly take their chances of relief under the laws of their own States. The real cause of the delay in this matter of repeal will be found in the efforts made by those who derive profit from bankruptcy proceedings, either in the way of official fees or otherwise. We trust, however, that their opposition will prove ineffectual and that before another week the bill may become a law.

The term of office of the Commissioners to revise the statutes expired on Tuesday last. On that day

the Commissioners submitted to the Legislature a considerable portion of "part four," relating to crimes and criminal procedure. The whole of the Part is drafted and ready for the press, but there was not sufficient time to print it. The Commissioners say that in drafting the Part they have made use of the "Code of Criminal Procedure" reported in 1860, and of the "Penal Code" reported in 1865, but have adopted or followed neither exclusively, as their work had a different scope. They, however, express their "high opinion of the ability with which the latter (the Penal Code) was drawn and of its value ”— an opinion which will be indorsed by all familiar with the work. Beside this part four and the unadopted chapters of the Code there is now before the Legislature part two, relating to property and other matters connected with private rights.

The Court of Appeals of this State took a recess on the 26th ult., until the 20th of this month, when it will re-convene and proceed with the present calendar.

The Court of Appeals in First National Bank of Chittenango v. Morgan, an abstract of which is given in our present number, refuse to extend the doctrine of Risley v. Brown, 67 N. Y. 160, and Getty v. Binsse, 49 id. 385, that upon the death of one of the makers of a joint promissory note, who signed simply as surety, his estate is discharged from the payment thereof, both in law and equity, to a case where a firm in business makes its note for the accommodation of the indorsers, who transfer the note for value, to a bona fide purchaser without notice. The rule in the two cases mentioned is a severe one and often operates unjustly. Section 758 of the Code of Civil Procedure abrogates it so far as this State is concerned, but it prevails elsewhere. It should not be extended beyond the cases to which it has heretofore been applied.

IN

NOTES OF CASES.

N Welsh v. German American Bank, 42 N. Y. Super. 462, the plaintiff was a depositor in the bank mentioned. Checks upon the bank, payable to the order of one W. N. Johnson, were signed by the plaintiff, at the solicitation of his clerk, who represented that amounts for which they were given were due to Johnson, who had dealings with the firm. The clerk, after obtaining such checks, forged the name of Johnson and sent them, through other parties, to the bank for payment, and they were paid. The checks were charged to plaintiff's account and were returned to him with his pass-book, and kept by him for nearly two years, when he discovered the made a claim against the bank for the amount forgery of Johnson's indorsement, and then first which had been paid on the checks. The bank, as a defense to an action brought for such amount, claimed that it had fulfilled its agreement with plaintiff in paying money upon checks signed by him, and, second, that plaintiff, by keeping the had ratified the payment. The court decided that checks two years without claiming any thing wrong, both these defenses were unsustainable, holding that the payment made was not one to the written order of the depositor, and that the failure of the

plaintiff to make a claim for the sums paid on the ing discovered the forgery until that time, did not forged checks until two years thereafter, he not havconstitute a ratification of the payment. See Weisser v. Denison, 10 N. Y. 69, which, in some respects, very much resembles the case at bar. Here checks forged by the confidential clerk of a depositor were paid by a bank, charged to the depositor in his passbook, the book balanced, and with the forged checks among others returned to the clerk who examined the account at the request of his principal, the depositor, and reported it correct, and the depositor did not discover the forgeries until several months afterward, when he immediately made them known to the bank, and it was held in an action to recover the amount of the deposit that the bank could not retain the amount of the forged checks. See also Hall v. Huse, 10 Mass. 40; Salem Bank v. Gloucester Bank, 17 id. 1; Ward v. Evans, 2 Salk. 442.

In Beard v. Connecticut and Passumpsic Riv, R. R. Co., 48 Vt. 101, plaintiff was rightfully at defendant's railroad station in the evening for the purpose of taking passage on defendant's cars. There was a platform which extended from the east side of the station to the railroad track, over which passengers passed to and from the cars. A passage led through the center of the station to the street which was several feet lower than the track, and there were also

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