Imágenes de páginas

entirely incapable of executing a valid deed. It is on this ground, as on the ground of weakness of mind sufficient to show that, from her sickness and infirmi- | and gross inadequacy of consideration, we think the ties, she was at the time in a condition of great mental case a proper one for the interference of equity; and weakness, and that there was gross inadequacy of con that a cancellatiou of the deed should be decreed." sideration for the conveyance. From these circum Mr. Justice Strong dissented from the decision of the stauces, imposition or undue influence will be inferred. majority of the court on the ground of laches on the In the case of Harding v. Wheaton, reported in the 2d

| part of complainant in instituting the action. As to of Mason, a conveyance executed by one to his son-in this point the court say: "The objectiou of the lapse law, for a nominal consideration, and upon a verbal of time, six years, before bringing the suit, cannot arrangement that it should be considered as a trust for avail the defendant. If during this time, from the the maintenance of the grantor, and after his death

death of witnesses or other causes, a full presentation for the benefit of his heirs, was after his death set

of the facts of the case had become impossible, there aside, except as security for actual advances and

might be force in the objection. But as there has charges, upon application of his heirs, on the ground

been no change in this respect to the injury of the that it was obtained from him when his mind was defendant, it does not lie in his mouth, after having en feebled by age and other causes.” “Extreme weak

in the manner stated obtained the property of tbe ness,” said Mr. Justice Story in deciding the case,

deceased, to complain that her heir did not sooner “will raise an almost necessary presumption of impo

bring suit against him to compel its surrender. There sition, even when it stops short of legal incapacity; is uo statutory bar in the case. The improvements and though a contract, in the ordinary course of things made have not cost more thau the amount which a reasonably made with such a person might be admitted

reasovable rent of the property would have produced, to stand, yet if it should appear to be of such a nature and the complainant, as we understand, does not as that such a person could not be capable of measuring object to allow the defeudant credit for them. And its extent or importance, its reasonableness or its value | as to the small amount paid on the execution of the fully and fairly, it cannot be that the law is so much

conveyance, it is sufficient to observe, that the comat variance with common sense as to uphold it." The

plainant received from the admiuistrator of the case subsequently came before this court, and in decid

deceased's estate only one hundred and thirteen doling it, Mr. Chief Justice Marshall, speaking of this

lars and forty-two cents, and there is no evidence that and, it would seem, of other deeds executed by the

he ever kuew that this sum coustituted any portion of deceased, said: “If these deeds were obtained by the

the money obtained from the defendant. exercise of undue influence over a man whose mind had ceased to be the safe guide of his actions, it is against conscience for him who has obtained them to RECENT BANKRUPTCY DECISIONS. derive any advantage from them. It is the peculiar

BANK CHECK province of a court of conscience to set them aside. Where not appropriation of fund in bank.- Where That a court of equity will interpose in such a case is one who has purchased a check of one bank upon among its best-settled principles." Harding v. Handy, another fails to present it for payment until the 11 Wheat. 125.

drawer has been adjudged a bankrupt, he is not en. The same doctrine is announced in adjudged cases titled to priority of payment from the fund in the almost without number; and it may be stated as set hands of the assignee, although there were sufficieut tled law that whenever there is great weakness of funds in the hands of the drawee at the time of premind in a person executing a conveyance of land, sentment to pay the check. Such check creates no arising from age, sickness, or any other cause, though appropriation of or lieu upon the fund in the bank, nor not amounting to absolute disqualification, and the does it give a right of action against the drawee. U. consideration given for the property is grossly inade 8. Dist. Ct., S. D. Ohio. In re Smith, 15 Nat. Bankr. quate, a court of equity will, upon proper and season Reg. 459. able application of the injured party, or his represen.

CREDITORS. tatives or heirs, interfere and set the conveyance Proof of claim: guardian and vard: statute of limiaside. Aud the present case comes directly within tations: who may participate in distribution.- A claim this principle.

founded upon a judgment or decree recovered after In the recent case of Kempson v. Ashbee, decided in the commencement of the proceedings in bankruptcy, the Court of Appeal in Chancery in Eugland, two

without leave of the baukrupt court, canuot be proved. bonds executed by a young woman, living at the time

The liability of a guardian to his ward is not affected with her mother and step-father, -one, at the age of

by his discharge in bankruptcy. Proof of claims may twenty-one, as surety for her step-father's debt, and

be filed after an order discharging the assiguee has the other, at the age of twenty-nine, to secure the

been set aside, and the assignee ordered to proceed. amount of a judgment recovered on the first bond

The filing of the petition arrests the runuing of the were set aside as against her, on the ground that she

statute of limitations. So long as there is a fund to had acted in the transaction without independent

distribute, all those who bad valid, subsisting claims advice, one of the justices observing that the court

existing at the time of the commencement of the had endeavored to prevent persons subject to influ

proceedings, upon making proof, will be permitted to ence from being induced to enter into transactions

participate in it. U. S. Dist. Ct., N. D. Mississippi. without advice of that kind. The principle upon

In re Maybin, 15 Nat. Bankr. Reg. 468. which the court acts in such cases, of protecting the

DISCHARGE. weak and dependent, may always be invoked on Impeachment of.- A discharge duly granted under behalf of persons in the situation of the deceased the baukrupt act canuot be impeached in a collateral spinster in this case, of doubtful sanity, living action on the ground that it was obtained by fraud. entirely by herself, without friends to take care of Sup. Ct. Com., Ohio. Smith v. Ramsey, 15 Nat. her, aud confined to her house by sickuess. As well Bankr. Reg. 447.


made no arrangements to meet, that he shall, as a conWhat must appear to entitle to.-On au application to dition of a further loan which he requires to meet a review the decision of the District Court upon the

borrowed note, substitute smaller notes, payable immequestion whether the bankrupt has made a full dis

diately, for those then held by the bank, and also for closure in obedience to an order requiring it, the

such further loan, in order to enable it more easily to petitioner must satisfy the court that the relation

obtaiu judgment thereon, held, that the demand was given by the bankrupt is such that a reasonable man

made with knowledge of the applicant's insolwould not be able to credit it, but would be satisfied of

vency. Ib.
its substantial untruth. U. . Cir. Ct., S. D. New
York. In re Mooney, 15 Nat. Bankr. Reg. 456.

Assignee acquires no title to: agreement to waive MARYLAND REPORTS - VOLUME XLIV.
right.-The assiguee acquires no title to property

| Reports of cases argued and determined in the Court of exempt as a homestead by the law of the State, al Appeals of Maryland. By J. Shaait Stockett, State Re

porter. Vol. XLIV - Containing cases in October term, though the bankrupt owned po other property not

1875, and April term, 1876. Published by authority. Baltiexempt by the bankrupt law, and the homestead was more: William K. Boyle & Son, 1877. not ascertained and set apart until after the convey.

THE present volume of this valuable series of reports ance to the assiguee was executed. A prior agreement

contains a number of very important opinions by the bankrupt with a creditor to waive his right to

upon subjects of general interest. Among those which such exemption confers no power on the bankrupt

have attracted our attention we would mention the court over such property. The creditor claiming 'un

following: B. & 0. R. R. Co. v. Wilkins, p. 11. This der such agreement must proceed in the State courts.

case is upon the interesting subject of bills of lading, U. S. Cir. Ct., 8. D. Georgia. In re Bass, 15 Nat.

the guaranteeing of them and their negotiability. It Bankr. Reg. 453.

is held that where the agent of a corporation frauduHUSBAND AND WIFE.

lently issues bills of lading for goods never received by Gift to wife: right of wife to independent proceeding.

the company, the company is not liable to one making Where a husband, being insolvent, has purebased fur

advances thereon, and that bills of lading are negoniture and articles of luxury and given them to his

tiable only in a limited sense. Hawman v. Thomas, p. wife, such gift does not ipso facto constitute an adverse

30. Extrinsic evidence is held not allowable to supply interest in the wife; but the bankrupt court, upon a

a defect in a will. Third Nat. Bank of Baltimore v. petition of the assignee for possession of such property,

Boyd, p. 47. The liability of a national bank for the may require the baukrupt to answer the petition, and

loss of bonds, held by it as collateral security for a if it shall then appear that the wife really has any ad

loan, through negligence, is asserted. Klepper v. verse interest, she will be permitted to bave her right

Coffey, p. 117. It is held that the fact tbat plaintiff ascertained in an indopendent proceeding. U. S. Dist.

was negligent will not defeat a recovery for injury Ct., E. D. Wis. In re Pierce and Whaling, 15 Nat.

from negligence of defendant, if plaintiff's negligence Bankr. Reg. 449. MORTGAGE.

did not contribute to the injury. Shaer v. Wilson, p.

268. The rights of adjacent owners as to support from Sustaining one presumptively invalid.-To sustain a

each other's soil is considered, and the duty of one in mortgage, otherwise invalid as a preference, upon the

making improvements, to do so in such a way as to ground of a promise to give security, made at the time

not injure his neighbor, is asserted. Cumb. & Penn. of the loan, the prior promise must contemplate the

R. R. Co. v. State, to use of Moran, p. 283. The liability giving of a specific and definite security — such an

of a master for injuries arising to a servant from the agreement as could be enforced by a bill for specific

negligence of another servant and what risks the serperformance. U. 8. Dist. Ct., E. D. Mich. In re Jack

vant takes in entering the employment are here conson Iron Manuf. Co., 15 Nat. Bankr. Reg. 438.

sidered. Withaus v. Braun, p. 303, is a trade-mark PREFERENCE.

case, and it is held that the mere sale of a trade-mark 1. Substituting notes at short time for those at longer apart from the article to which it is affixed confers no time.-Where an insolvent, with knowledge of his right of ownership. State to use of Barnard v. Gott, p. condition and with intent to give his bank a prefer

241. A receipt under seal is held to be conclusive and ence, substitutes small notes, payable immediately, for

to prevent a recovery in favor of the one giving it. older and larger ones held by the bank, some of which

Magruder, receiver, v. Colston, p. 349. A person holdhave already matured, such substitution as a condition

ing stock in his own name in a national bank as pledgee for a further loan having been demanded by the presi.

to secure a loan is held to be liable for the debts of the dent of the bank with knowledge of the insolvent's

bank so long as he holds it, though a sale of the stock condition, and thereby the bank is enabled more eas

under the terms of the pledge would not be cousidered ily to and does obtain judgment upon said notes, and done in fraud of creditors. See same case, 15 Alb. L. seize aud sell the insolvent's property upon executions J., p. 389.) Hambleton v. Cent. Ohio R. R. Co., p. 551. issued thereon, such seizure and sale will be declared Here a firm in good faith advanced money upon shares void, and the amount realized at the sale will be or of stock in a railroad company pledged to them under dered paid to the assignee of such insolvent. U.S. forged powers of transfer. The company upon the Dist. Ct., E. D. North Carolina. Loudon, assignee, etc.,

receipt of the original certificates in like good faith v. First Nat. Bank of Wilmington, 15 Nat. Bankr. transferred the stock to the firm on its books and Reg. 476.

issued new certificates to such firm. Held, that as 2. What shou8 knowledge of insolvency.-Where a between the firm and the company (the rights of third bank demands of a depositor, who has theretofore parties not being involved) the loss must fall on the always been prompt in his payments, and who has a former. Hardesty v. Hardesty, p. 617. Here a parol note overdue and others about to mature, which he has 'gift of a farm by a father to a son upon which extensive permanent improvements had been made upon the committed by the attorneys on questions of practice, faith of the gift was euforced in equity. The reporting many of them of a most simple and obvious character. is well done though the head notes would be better if Suppose a similar number of technical errors should somewhat shorter. The volume contains a list of un- / be committed by architects, bridge builders or boilerreported cases decided at the same terms as the report. makers, what would be the result? It is obvious that ed ones, with a brief statement of the point involved. | the machinery of the criminal law would be put in The book is well printed and bound.

operation to stop it, and the legal profession would

reap a rich harvest out of it. Such blacksmithing in RUSSELL 'ON CRIMES.

the practice of the law ought not to be tolerated, even A Treatise on Crimes and Misdemeanors. By Sir Wm. Old in a new community. What makes it worse, the cost nall Russell, Knt., late Chief Justice of Bengal. By

of these blunders is borne by innocent clients. Could Chas. Sprengel Greaves, Esq., one of Her Majesty's Counsel. Ninth American, from the fourth London

| a more potent argument be suggested in favor of the Edition, with the Notes and References contained in elevation of the standard of legal education ?" the foriner Editions, and additional Notes to English and American Decisions by Hon. Geo. Sharswood, LL.D. In three vols. Vol. III. Philadelphia: T. & J. W. Johnson & Co., 1877.

The following resolution accepting the act of incorThis volume completes the ninth American edition poration of the New York State Bar Association, of this work, which we heretofore noticed more fully presented by Elliott F. Shepard, of New York, was (15 Alb. L. J., p. 297). The volume embraces Perjury, submitted May 30, 1877, to the several district comConspiracy and Threats, and the Law of Criminal mittees and adopted by the executive committee: Evidence, and is very full in its treatment of those " Resolved, that the · Act to incorporate the New subjects.

York State Bar Association,' passed' May 2, 1877, be and is accepted by the executive committee of the

New York State Bar Association, organized NovemNOTES,

ber 21, 1876, for and on behalf of the Association and THE Southern Law Review for June-July, 1877, has

all its members, pursuant to the authority conferred

upon the executive committed by the constitution, I just appeared. It contains valuable articles upon

article VI." these topics: “Dartmouth College Cases (sixth and concluding paper); Of the Jurisdiction of Equity to

A demented Welsh suitor recently drove up to his Enjoin Corporate Elections, by James L. Hugh, Esq.;

solicitor's office, and, not finding him, drove away to Removal of Cases from State to Federal Courts, by R.

his clerk's house, and there wrote out à check for McP, Smith, Esq.; Jurisdiction of Probate Courts, by

£90,000,000 to retain the whole of the North Wales Bar Hon. J. G. Woerner; Reporters and Text-Writers, by

| in an action he was going to bring against the London F. F. Heard, Esq. ; A Point on Chancery Practice, by

and North Western Railway Company. - The EngHon. W. F. Cooper. The book notices display the

lish government derives a large revenue from litigausual ability, and the notes are of considerable inter

tion. In England alone, in addition to the sum of est. The digest of recent cases is very full and ac

£195,901 158. 11d., the gross income from judicature fee curate, and is a very valuable feature of the number,

stamps, there was also a sum of £129,995 98. as received as it furnishes au index to the decisions appearing in

in England in the last financial year from the Proall the leading law publications.

bate Court. The aggregate, £325,897 4s. 11d. (over

$1,700,000), must go very far toward paying the entire In the case of Wayman v, Blumgart, recently tried

expense of maintaining the courts, both civil and in the New York Superior Court, a jury con

criminal. trived what they believed to be an excellent plan to avoid the performance of their duty. Several The Chicago Legal News of the 28th ult. says the questious were submitted to their decision, and the judges of the Supreme Court have left Mount Vernon court directed them in case of agreement to return a aud returned to their homes. Before doing so they sealed verdict. They agreed upon one question and sent for filing in the various divisions over two hundred gave to the officer in charge what they informed him

opinions. These opinions will make nearly two volwas a sealed verdict. The paper left with the officer

umes of reports. We pity the bar of Illinois.-Under when opened was found to contain & verdict upon an amendment to the rules of the Suprem

an amendment to the rules of the Supreme Court of one question only, with a statement that the jury dis

the United States assignees in bankruptcy can be agreed upon the other points. The jury were able

allowed extra fees in special cases requiring more than thus to release themselves from what bid fair to be a

ordinary care and attention. Judge Blatchford on the tedious confinement, but Judge Freedman, before

27th ult. decided, in construing the application of the whom the case was tried, fined the foreman $20, and

amendment, that its purpose “was not to reform the the other jurymen $10 each for the irregularity com

rate of compensation to assignees ju all cases, or in any mitted by them.

large proportion of cases. Undoubtedly the compen

sation of assignees may often be properly called insuffThe Central Law Journal is rather hard upon the cient, but the Supreme Court did not by the amendWestern lawyers. It says: “Much as may be said in ment intend to alter it. It intended only to provide for favor of the skill, vigilance and fidelity of the legal a small class of cases where a special inadequacy of comprofession, things occasionally come to light, backed pensation appears, and great care and exaotion are by statistics which do not lie, which are decidedly to shown." - The Court of Common Pleas in Dublin on the disadvantage of the fraternity. The reporter of the 12th ult. decided that a Roman Catholic clergyman, the decision of the Supreme Court of one of our Western in making charges from the altar against members of States lately told the writer that one-half the decisions his own congregation, was not privileged in any way, which were reversed by his court (and the reversals were but that, on the contrary, he was not only violating rather numerous) were reversed ou the ground of errors the law of Englaud but the law of his own church.

The Albany Law Journal.

ALL communications intended for publication in the function is to serve as a sort of sieve to prevent the LAW JOURNAL should be addressed to the editor, and the criminal courts from being over-run with frivolous name of the writer should be given, though not necessa

prosecutions. But the grand inquest of Baltimore rily for publication. Communications on business matters should be ad

county, Maryland, has attempted to make manifest dressed to the publishers.

to the world that it is capable of greater things. It was engaged upon an investigation for the completion of which the term of the court was not long enough, and Judges Grason and Yellot who

held the court, notwithstanding the jury desired it, ALBANY, JULY 14, 1877.

refused to make the term any longer. For this lack

of accommodation the jury forth with presented said CURRENT TOPICS.

judges for malfeasance in office. Judge Grason THE decree in the famous church bell case in (who is upon the Court of Appeals bench) seems 1 Philadelphia (see 15 Alb. L. J. 245) has been to have taken no notice of the presentient; but affirmed by the Supreme Court of the State with Judge Yellot procured a warrant for the arrest of some modifications. The defendants are permitted the foreman of the jury upon the charge of perjury to ring their chime of bells on Sunday for two | in making false presentments. This is as far as the minutes at thirty minutes before the time of com- | matter has gone and probably as far as it will go, mencing divine service and the smallest bell alone as nothing more can be done until September, before for five minutes immediately before such time; such which time both sides will see that the proceedringing to take place only at the usual services ings they have taken are neither in the interests of forenoon, afternoon and evening, but not at early | justice nor dignified. morning service. Three of the judges dissent from the decision of affirmance on the ground that it is

It is said that the divorce lawyer is a thing of the not a case for a preliminary injunction. The decis past in Chicago; that he can lawfully advertise his ion as it stands is a victory for the opponents business no longer in the newspapers, and, therefore, of noisy religious services and indicates that in the will be unable to obtain customers. He cannot State of Pennsylvania at least an individual cannot advertise that he will procure divorces, but he does make the performance of his devotional duties a advertise that he does law business generally withimeans of annoyance to his neighbors.

out publicity, and makes no charge unless success

ful. Forbidding the insertion in newspapers of It is reported from New Orleans that the fa advertisements asking for divorce causes is one step mous Gaines will case is at an end. The time for

| in the right direction, but it is not enough to put an the defendants to file their bonds of appeal from end to the business. The only way to successfully the decision of Judge Billings is said to have

check that, is to make the obtaining of a divorce expired on the 30th ult. and no bonds were filed.

difficult. The marriage contract is one that should If this is so the plaintiff has at last achieved a

| be sundered only for causes that render its longer complete victory and nothing can stand in the way

continuance destructive to social order, and never of her reaping some fruits of her struggle of almost

for reasons that merely make it an inconvenience to half a century. What those fruits will be we do one of the parties. When it is easy to procure not know, but she has at least secured a com- divorces, the divorce “shyster” will flourish, no petence, for the defendants, having abandoned matter what steps are taken to crush him. litigation, must be willing to settle upon the best terms they can obtain. That the victorious plain

| The enterprise of the New York daily newspapers tiff will be liberal to her antagonists we do not lin procuring early reports of important decisions doubt, and the abandonment of the contest by has been the occasion of remark. The manner in them is probably due to the circumstance that a which the decisions of the Federal court of last favorable compromise has been obtained.

resort are reported is no exception to the rule,

though perhaps the excellence of the method We do not often hear of a grand jury taking adopted is therein made more conspicuous. On upon itself the office of regulating the manner in each day during the summer, two or three old which the presiding judges of the court of which opinions are served up in the form of a letter from it forms a part conduct the business of the court. Washington, but the individual who prepares the This body is usually regarded as a sort of harmless report is usually very cautious about giving dates. appendage to the tribunals of justice, possessed | But it is said that even Homer sometimes nods, so it indeed of high-sounding titles and supposed in the is not remarkable that the getter-up of legal reports popular mind to be capable of performing great for the daily press sometimes forgets himself and feats of an unknown character, but whose only real I assigns a day and date for his late decisions. An

Vor 16 M 2

instance of this is to be found in the New York understand that there is no insolvency, but the Herald of Sunday, July 8, where it is announced in means of the gentleman referred to are amply suffia communication dated at Washington, July 7, cient to meet all his indebtedness and leave a con1877, that “An important opinion of special interest siderable surplus. The reason for the bankruptcy to New York was handed down by the United States proceedings is said to be this. He owns property in Supreme Court yesterday. It settles the controversy Vermont, and has become liable as security for the concerning the celebrated Jumel estate," etc. Then debts of a Vermont corporation. An action has been follows the opinion in the case of Bowen v. Chase, commenced in that State by attachment, and the which appeared in the ALBANY LAW JOURNAL of property there owned by the judge seized. If sold May 12, 1877, more than two months ago. The under the attachment proceedings, there will be a same issue contains abstracts of several other great sacrifice and a needless one, and to prevent decisions of equal antiquity, which are stated to this, the petition in bankruptcy was filed. This have been delivered on the 6th inst. We do not action was taken, not because of insolvency, but to know that any of the profession are deceived by prevent it. It is said by those who have an opporthe misstatements made in connection with the pub- tunity of knowing, that only a short time is neceslication of these cases, but the general public are, sary to adjust all the indebtedness of the judge as is shown by references, in the interior newspapers, satisfactorily, and there would have been no necesto such cases as late news.

sity of the present proceeding if it were not for the

unfair operation of the Vermont attachment laws. It is announced that the Supreme Court of Pennsylvania have just rendered a decision that is of the

The method of beginning actions by attachment greatest importance to the holders of a very common

in vogue in Vermont and Massachusetts and some kind of a promissory note in that and some other

other States, is one of the main reasons why the States, though happily not familiar to the people of

bankruptcy law has remained in force so long. this and the New England States. The note in

Attachment is proper as a provisional remedy to cludes, besides the promise to pay the principal and

prevent a dishonest debtor, who means to remove his interest, an agreement to pay a specified sum as costs

property beyond the reach of his creditors, from for collecting the same if litigation should ensue.

accomplishing his purpose, but as an ordinary means These notes, negotiable in form, are transferred by

of instituting a lawsuit it is unjustifiable. The indorsement in the usual way, and it is said that

theory on which such a use of this process is based those held in central and western Pennsylvania

is, that all debtors are dishonest and all creditors amount to more than $5,000,000. The question

are entirely honest and fair. It is objected to the involved was, whether the indorsers of these instru

laws regulating litigation in the western States, that ments were liable upon them, and the court held,

they are too favorable to the debtor, and it may, that without a formal guarantee in connection with

with as much reason, be said that the New England their indorsement they were not. The decision is

laws unduly favor the creditor. Besides, from the said to destroy the security of the greater part of

details of procedure where actions are usually such potes held by banks and investors in Pennsyl

begun by attachment, injustice to third parties who vania, and the conclusion of the Supreme Court will

have claims upon the attached property is liable to not be accepted as binding by them, but recourse will

result. The law may, in form, provide against loss be had to the Federal courts for a final determina

occurring through fraud or mistake, but the remedy tion. With decisions of this character sapping the

is often unavailing to the injured party or available very foundation of credit, and with stay laws to

only at so great trouble, expense and risk, as to postpone the collection of adjudicated claims, the

prevent its adoption.' We have been cognizant of State of Pennsylvania would seem to be a very

several instances where these proceedings have been unsafe place to loan money.

used to enforce claims that no court or jury would A number of the daily newspapers have taken it

have sustained, and we presume that they are so

used very frequently. upon themselves to severely censure one of the judges of the Supreme Court of this State, because he has filed a petition in bankruptcy, and have

NOTES OF CASES. denounced the act as one unworthy of a judge and I IN Columbia Ins. Co. v. Buckley, decided by the one for which there is no precedent. Whether there 1 Supreme Court of Pennsylvania on the 7th of are instances of judicial bankruptcy we do not May last, an interesting question in insurance law know, but the people in this country have, as a was passed upon. Defendant had procured an inrule, paid the judges of the higher courts so meagre surance against fire upon his property for five years salaries, that those dependent solely upon such sala- in a mutual insurance company, paying a cash ries for support are often in an insolvent condition premium and giving a premium note in the usual all their lives. In the case mentioned, however, we i form, whereby he agreed to pay such assessments as

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