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fact that the rails were unblocked did not nec and do not in that event tend to lighten the la. essarily imply knowledge of the attendant dan. bors of the jury; and when they are accurately ger. Knowledge of the danger was itself a and fairly framed on both sides and involve no question of fact, and if the jury believed that contradictions, the issues are presented in disthe deceased, by reason of his youth and inex- connected propositions of law which the jury perience, did not know of or appreciate the will find more difficult to comprebend than in danger incident to service about the unblocked a charge presenting all the issues on a single rails, and that the Company bad exposed bim phase of the case together in close contrast, and to the danger without warning bim of it, they presenting the whole law of the case as emanat. should have found that the risk was not one being from the court without apparent instigation had assumed by entering the service. Little from either side. What can be a greater paraRock, M. R. & T. R. Co. v. Leverett, 48 Ark. dox in the administration of justice or more 333; Fones v. Phillips, 39 Ark. 17; Bauer v. confounding to a jury than for a court to say St. Louis, I. M. & S. R. Co. 46 Ark. 396; Jones to them, as is sometimes done, “For the plainv. Florence Min, Co. 66 Wis. 208.

tiff, the court declares the law to be thus; for It is useless to follow the charge on these the defendant, so, and on its own motion as points. The duty of the master to instruct the follows," as though there were three sides to a young and inexperienced servant so as to en- single legal proposition between which the jury able him to appreciate the danger attending the are at liberty to choose ? employment was submitted to the jury in an It is the duty of counsel to present their instruction given on behalf of the plaintiff, prayers for instructions in order to aid the while the charge given at the instance of the court and to show their position in the case on defendant submitted the case as though there appeal, but the better rule for the court would were no question of inexperience in the servant be to treat the request oply as counsel's sugges. presented by the evidence. That was at least tions of wbat they desire the court to call the misleading and its tendency was to confuse the jury's attention to, and to embody no more jury. But there was positive error in the than the substance of them in the charge. cbarge in saying to the jury, in effect, that the The records of this court bear abundant tes. intestate's knowledge of the fact that the rails timony of the success of this practice at the were unblocked was knowledge of the attend- bands of the learned and usually careful and ant danger. Whether he had knowledge of or painstaking judge who tried this cause. The appreciated the dunger or ought to have done practice of making up the charge from the re. so, was a question for the jury to determine quests for instructions prepared by counsel upon the facts and circumstances shedding leads to the constantly recurring argument in light upon the question. The charge is made this court that the charge to the jury is inconup wholly of requests for instructions from the sistent and misleading and has resulted in the parties, and the two theories of the case pre- remanding of many causes, and perhaps in the sented by them are not so consistent and har- miscarriage of justice in many others by the monious as to render it an easy task for the indulgence of the presumption that the jury jury to determine where their duty lay. The was able to reconcile the apparent inconsistenfault is inherent in the practice of giving in cies or penetrate the obscurities of the charge. charge to the jury the requests for instructions For the errors indicated each of the judgments prepared by counsel. They are not uncom- will be reversed, and the causes remanded for fun monly framed with a view to giving the great ther proceedings. est advantage to the side which presents them,

CONNECTICUT SUPREME COURT OF ERRORS.

Dwight PIERCE

2. Where one employed under a valid 0.

contract, providing that in case he leaves the Frank H. WHITTLESEY, Appt.

service without giving two weeks' notice he shall forfeit two weeks' wages, leaves without giving

the required notice and sues to recover the wages (58 Conn. 104.)

forfeited, such forfeiture may be relied on as a

defense, although no special damage is alleged or 1. An agreement between an employer showa. and employe that either shall forfeit

(December 16, 1889.) two weeks' wages by terminating the em

PPEAL by defendant from a judgment of ployment without two weeks' notice thereof, is not unreasonable, and is not affected by Gen. Stat., $ 1748, imposing a penalty upon an employer who County in favor of plaintiff, upon appeal from withholds any part of the wages of any person

a justice of the peace, in an action brought to because of any agreement requiring notice before recover the amount alleged to be due for the leaving the employment. Two weeks' wages of rendition of certain personal services. Re the employé quitting without notice being for- versed. feited are not due bim, and therefore a refusal to The facts sufficiently appear in the opinion. pay them is not a withbolding of any part of his Mr. J. W. Johnson for appellant. wages.

Mr. M. M. O'Sullivan for appellee.

A

NOTE.

exist before liability attaches to pay liquidated Substantial breach of contract resulting in more damages. Hathaway v. Lynn (Wis.) 6 L. R. A. than nominal damages to the other party must 551.

Carpenter, J., delivered the opinion of the decided in 1842, turned on that distinction. court:

But it was not alone, or principally, for cases This is an action by an assignee of a claim in court that the Act was passed. A refusal to for personal services. The answer is that pay for the reason given by the Statute, either Thomas Nolan, the assignor of the claim, en with or without a suit, is an offense. If this tered the employment of the defendant in June, case was defended solely on the ground of a 1888, under an agreement that if he should at broken agreement to give notice, it would be any time desire to leave the employment of the difficult to deliver it from the operation of the defendant, he should give him two weeks' no. Statute. But the agreement is more extensive. tice thereof; and that in case he should leave It is coupled with a like agreement by the dehis employment without giving two weeks' no- fendant. Each party makes precisely the same lice of bis intention to do so, he should forfeit agreement. Each party agrees to give the two weeks' wages to the defendant; and it was same potice, and in case of failure to submit to also agreed that the defendant should give No- the same forfeiture--Nolan to lose two weeks' lan two weeks' notice if be desired to dismiss wages, and the defendant to pay two weeks' him from his employment, and in case he failed wages in addition to payment for services actuto give such notice he should forfeit to him two ally rendered. In this there was nothing opweeks' wages; that he entered into the employ: pressive, one-sided, unfair or unreasonable. ment of the defendant and there remained until Presumptively it was mutually advantageous. October 16, 1888, when he left witbout giving Whatever may be said of a unilateral obligation two weeks' notice and without just cause; and by an employé, it can hardly be said that the that the two weeks' wages claimed by the plain- Legislature intended to prohibit a fair and reatiff are the same two weeks' wages forfeited by sonable agreement in wbich both parties ashim, etc.

sume the same obligation. The plaintiff denied all the allegations in the Even if it be conceded that such legislation answer. On that issue the cause was tried in would be constitutional, we should expect to the court below, and the allegations of the an- find the intent expressed in direct and unequivswer found true, and judgment rendered for ocal language. We cannot give language of the plaintiff on the ground that it did not ap- doubtful import any such effect by implication pear, and was not alleged, that the defendant or construction. bad suffered damages from Nolan's leaving his The Act was passed for tbe benefit of the employment without notice. The defendant employé—to protect him against injustice appealed to this court.

and oppression. So far as effect can be given Questions of pleading and practice are raised, to that intention without violating important but we pass them and will consider the case principles, it is well. In cases of a mere prom. and dispose of it upon its merits. The case ise by an employé to give notice of his inten. was submitted without oral argument, counsel tion to terminate a contract, the Legislature for the defendant filing a printed brief and may well say that the employer shall not take counsel for the plaintiff filing no brief. The advantage of it to withhold wages, and the defendant's counsel proceeds upon the theory courts may well enforce the restriction. But that the defense was held insufficient by reason when it is a mutual agreement on equal terms of the Statute ($ 1748, Gen. Stat.), while it may another principle is to be considered. Let us be fairly inferred from the record that the court illustrate by a supposed case. If the defendant overruled the defense for the reason that no had discharged Nolan without giving the special damage was alleged or shown.

agreed notice, and Nolan had brought a suit to Considering the case in either aspect, or in recover the two weeks' wages agreed to be forboth, we are constrained to say that we think feited, is it not clear that the defendant could the court erred.

not have set up this Statute as a defense? Tbe The section of the Statute referred to is as agreement and the acts of the parties are neither follows: “Any person or corporation who sball within the letter nor spirit of the Act. If the with bold any part of the wages of any person, Statute does not annul the agreement as to one, because of any agreement, expressed or implied, why sbould it as to the other? If it does, it requiring notice before leaving the employment. makes the contract void as to one, leaving it in shall forfeit fisty dollars, half to him who shall force as to the other—a result which the Legsue therefor and half to the State.”

islature could not have intended. Here a penalty is prescribed for doing an act; But the contract is not only mutual, but it hence the act is impliedly prohibited. What is covers ground otherwise not contemplated by the act?. Simply withholding payment for the the Statute. It provides in direct terms that a reason given. A contract requiring notice is violation by either party shall work a forfeiture lawful, as there is no penalty imposed for mak- of two weeks' wages-ihat is, they agree upon ing it. It is withholding wages that comes un- the amount of damages in case of a breachder the consideration of the Statute, and not liguidated damages. It is not an extravagant. the making of the contract. Such a contract sum, it is moderate and reasonable; large may be made and enforced, if it can be done enough to insure a probable compliance, ana. without withholding wages.

not large enough to make it inequitable to enThe spirit of the Act, and perhaps its letter, force it. Besides, the duty required is light, forbids ibe setting up of the broken agreement imposing no hardship, so that the forfeiture as a defense to an action for wages; that would can be easily avoided. With such a contract be using such agreement as a means of with it cannot be said that wages were withheld beholding payment.

cause of a mere agreement to give notice. The distinction between resisting an action They were withbeld because Nolan in a fair for wages and bringing an action for damages contract upon a sufficient consideration agreed is not new. Hunt v. The Olis Co. 4 Met. 464, I to relinquish them. By their contract no wages were due, and therefore there were none | there—that a breach should entitle the other to pay, strictly speaking none to withhold. party to such damages only as he could show The case is not within the letter, and it cer- that he actually sustained; whereas the parties tainly is not within the spirit, of the Statute. in effect agreed that a sum equal to two weeks'

The ground on wbich the court placed its wages should be regarded as liquidated damjudgment is equally untenable, and partly for ages. reasons already suggested. It virtually puts Tbere is error and the judgment is reversed. into the contract what the parties did not place In this opinion the other Judges concurred.

IDAHO SUPREME COURT.

0.

TERRITORY OF IDAHO, Respt., undertakes to prevent the performance of an

impossibility; hence, in effect, is void. ConThomas EVANS, Impleaded, etc., Appt.

ceding, however, that it may be construed to

prohibit the exportation of fish, as the Legisla. (.... Idaho....)

iure undoubtedly designed it, is it in violation

of the section referred to of the supreme law *Section 7193, Rev. Stat., prohibiting of the land? This question was involved in

the exportation of fish from this Territory, the court below, in the demiirrer to the indictbeing in conflict with $8, art. 1, of the Constitu- ment, on the exceptions to the instructions, and tion of the United States, providing for the regu- in the motion for arrest of judgment, and is lation by Congress of commerce between the saved by appellant's exception to the ruling of States, is void.

the court in those matters. (February 24, 1890.)

The provision of $ 8, art. 1, of the Constitu.

tion of the United States, that “Congress shall the District Court for Bingham County foreign nations and among the several States," convicting bim of a violation of the Statute having been so frequently and fully considered against shipping fish from the Territory. Res by the ablest, including the bigbest, courts in versed.

the nation, it will not be expected we shall, to The facts sufficiently appear in the opinion. any length, now attempt its discussion. It is Messrs. Hawley & Reeves for appellant. clearly settled and conceded by all, that the

Mr. R. Z. Wood, Atty-Gen., for respond-above provision of the Constitution confers upon ent.

Congress the exclusive power to regulate com

merce between the States, and any statute Beatty, Ch. J., delivered the opinion of which attempts to probibit the shipment into the court:

or out of a State of any lawful commodities or The appellant, Thomas Evans, was indicted articles of commerce or trade is in conflict with George Rae for a violation of section 7193 itberewith, and necessarily void. To each of the Revised Statutes of Idaho, as same is State is reserved the power of regulating comamended by Act of the Fifteenth' Legislative merce within its borders, but not that extend. Assembly, which, as amended, reads: " It is ing across its boundary lines. The State may unlawful for any person in this Territory to also, under its police power, enact such laws make any dam, or use any nets, seines, fish as are necessary to the protection of the lives, traps or any similar device or measures for tbe bealth and comfort of its citizens, and for catching fish, or to ship the same out of this the promotion of good order within its limits. Territory for speculative purposes.” The ap: cise of its police power, the State enacts any

But whenever, under the pretence of an exerpellant, Evans, alone, was tried upon this charge, and from the judgment rendered statute which operates to prevent the free exagainst him upon his conviction thereof le bas change between the States of lawful articles of appealed to this court. While the record con

trade, it is void because in conflict with that tains various specifications of alleged error, trated in a number of recent and interesting

constitutional provision. This is clearly illus. the appellant has in his argument of the cause referred to but two, viz.: That the Statute does not probibit the exportation of fish, and,

Hannibal & St. J. R. Co. v. Husen, 95 U. S. if it does, it is iu violation of $ 8, art. 1, of the 468 (24 L. ed. 529), is a case in which the Stato Constitution of the United States.

of Missouri, under the claim of exercising its It is true the Statute does not read as it un of contagious cattle disease in the State, enacted

police prerogative, and to prevent the spread doubtedly was intended it should, and it is surprising that it passed unchallenged the or

a Statute forbidding the unloading of Texas ucal ef six readings in the presence of careful caitle within the State, but allowing their pas. legislators. Construed as it reads, it prohibits sage through it on board of cars or vessels. the exportation from this Territory only of The court held that cattle were subjects of dams, and the use of nets, fish-traps, and other lawful commerce, and could not be excluded, devices for catching fish, and not the pets, fish- except when diseased; that the Statute practi. traps, etc., themselves. As dams cannot be cally operated, not in the exclusion of diseased shipped, and the use of a thing is an incorpore

catile alone, but of all Texas cattle, and was right, this Statute, if construed by its words. void. The business of butchering cattle, and

shipping the dressed fresh meat into the sur. *Head note by BEATTY, Ch. J.

rounding States from the place of slaughter,

cases.

See also 47 L. R. A. 153.

has in recent years become an important pur- I therefrom of fowls and other game. For a suit, but one which came in conflict with local violation of this, an express agent was indicted dealers. To prevent this, Statutes were enacted for sbipping to Chicago four prairie chickens. in several of tbe western States, purporting to the Act only prevented the exportation of be in pursuance of their police power, and to chickens, and did not prevent their capture and promote the health of their inhabitants by pre. use by the denizens of Kansas, but scemed venting the importation of diseased meat. rather to preserve them for their exclusive use They required that all animals should be in and comfort. It was held void in State v. spected within twenty-four hours before their Saunders, 19 Kan. 123. slaughter, and the sale of meat of animals not By the law of this Terrritory we recognize so inspected should be prohibited. The courts fish as a lawful article of trade. The Statute bave uniformly beld that such statutes are not only attempts to preserve them for us, and to within the police power of the State, and that, deprive our neighbors of their use, which, in whatever their design, they operate as a pro- the light of the authorities, we must conclude bibition to the importation of dressed meat, is in violation of the constitutional provision which is a lawful article of trade; and wbenever referred to, and therefore void. tbese Statutes have come before the courts for It follows that the demirrer to the indicte consideration, they have been held void. The ment above referred to should be sustained, following cases on this subject will be found of and it is therefore ordered that the judgment interest, and in them tbe wbole subject is fully appealed from be set aside, and the indictment reviewed: Swift v. Sutphin, 39 Fed. Rep. 630; dismissed. Re Barber, Id. 641; Re Christian, Id. 636; Uar. vey v. lluffman, Id. 646; Ex parte Kieffer, 40 Berry, J.: Fed. Rep. 400.

I concur that the Act, so far as it prohibits In the State of Indiana a statute prohibiting the shipping of fish out of this Territory for the exportation of patural gas from the State speculative purposes, is unconstitutional. I tbrough pipes bas, upon the same principle, think the Statute is not against the shipping of recently been held void. The State of Kansas dams, etc., but is against shipping of fish only. has had a statute to prevent the shipment Sweet, J., concurs.

0.

NEW YORK COURT OF APPEALS (2d Div.).
David NEWMAN, Respt.,

property by reason of the construction of a

railroad must necessarily be considered in deterMETROPOLITAN ELEVATED R. CO. et

mining the amount of the consequential damages

to be allowed to its owner on account of such al., Appts.

construction, and their consideration for such (......N. Y.......)

purpose is not prohibited by the statute which

forbids commissioners in determining the com. 1. The benefits which will accrue to sation to be made to owners of property acquired NOTE.-Elevated railroad; benefits considered on space occupied by a street, open from the soil upassessment of damages to abutting owner.

ward to the free admission of light and air and the

prospect unobstructed from any point. Codman v. On the establishment of a street private rights of Evans, 5 Allen, 308. access to adjacent property attach, as well as an The right to the enjoyment of the unobstructed uninterrupted right to light and air. South Car. R. passage of light and air is so essential that it exists Co. v. Steiner, 44 Ga. 516; Chicago v. Union Bldg. by a law common to the whole civilized world. Asso. 102 III. 379; Denver v. Buyer, 7 Colo. 118; Lex- Barnett y. Johnson, 15 N. J. Eq. 489. See Stevens v. ington & 0. R. Co. V. Appleton, 8 Dana, 289; Tran- Paterson & N. R. Co. 34 N. J. L. 564. sylvania University v. Lexington, 3 B. Mon. 27; The right of abutting owners in such cases was Elizabethtown & L. R. Co. v. Combs, 10 Bush, 382; first passed upon in the case of Story v. New York Rensselaer v. Leopold, 106 Ind. 29; Indiana, B. & W. Elevated R. Co. 90 N. Y. 122, 11 Abh. N. C. 236, and R. Co. v. Eberle, 110 Ind. 542, 9 West. Rep. 206; this case has been followed in Tiffany v. United Grand Rapids & I. R. Co, v. Heisel, 38 Mich. 62; States Ill. Co. 67 How. Pr. 73, and Peyser v. New Lackland v. North Mo. R. Co. 31 Mo. 180; Thurston York Elevated R. Co. 12 Abb. N.C. 276, where it was v. St. Joseph, 51 Mo. 510, Burlington & M. R. R. Co. held that the rule applies where the street is held v. Reinhackle, 15 Neb. 279; People v. Kerr, 27 N. Y. by the city in trust for public use as a highway, as 188; Kellinger v. 424 St. R. Co.50 N. Y. 206; Crawford well as where the fee, subject to such easem ot, is v. Delaware, 7 Obio, 459; Jackson v. Jackson, 16 in the abutting owners. Obio, 163; Anderson v. Turbeville, 6 Coldw. 150. That special benefits only may be set off against

The rights of abutters on streets are subject to both the value of the part taken and the damages the use of the public, only for the purposes of a to the remainder is a doctrine maintained by the highway, and any interference for other purposes courts of the following States: Connecticut, Kan. is a taking of private property, and a damage to the sas, Maine, Minnesota, Massachusetts, Missouri, extent of such interference. Shawneetown v. New Hampshire, New Jersey, North Carolina, Mason, 82 III. 337; Buchner v. Chicago, M. & N. W. Pennsylvania and Vermont. Lewis, Em. Dom. R. Co. 60 Wis. 264; Story v. New York Elevated R. 8 469. Co. 90 N. Y. 1:22.

Special benefits are such as affect the actual use Where the fee of land has been taken by the and enjoyment of property and thereby render it city in trust to be kept open and used as a public more valuable. Id. & 476. street, no structure can be authorized which is in- Condemnation advantages and disadvantages consistent with its use as a public open street, even considered in condemnation proceedings. notes if the obstruction be to the crossing of light and to San Diego Land & Town Co. v. Neale (Cal.) 3 L. air. Doyle v. Lord, 64 N. Y. 432.

R. A. 83; Leroy & Western R. Co. v. Ross (Kan.) 2 L An abutting owner is entitled to have the whole R. A. 217. 7 L, R. A.

19

for the construction of railroads to make any al- | ture caused a permanent impairment of the lowance or deduction on account of any real or easements in the street for light, air and access. supposed benefits which the party in interest The court having charged the jury that “lhe may derive from the construction of the proposed damage to plaintiff's leasehold was to be measroad.

ured by the depreciation of rents caused by 2. The damages to abutting property defendant's structure in depriving the premises

owners by reason of the destruction of their of the accustomed light, air and access which easements for ingress and egress to and from a it had had before said structure was placed public street and the free circulation of light and air therefrom

to tbeir property by the construc- thereon,” and that in considering the question tion of an elevated railroad in such street, are en- of damages “the fact that real estate bad risen tirely consequential; and in determining the generally in that district of the city, did not amount to be awarded therefor the jury may relieve the Railroad Company from the element consider the benefits as well as the injuries result- of damage,” was requested by the defendants ing from such construction.

to charge as follows: “That in estimating the 8. In an action by a lessee of property damages to the leasehold interest in this plain

abutting upon a street through which an elevated tiff caused by the interference by the defendrailroad is constructed to recover damages for ants with the light, air and access appurtenant the permanent impairment of his ensement in to the premises, the jury may take into conthe street for light, air and access, the general sideration any benefits peculiar to his house appreciation of the value of property consequent which have arisen by the construction of the upon such improvement cannot be considered as road as shown by the evidence.” To this the It belongs to the property owner, but special and court replied: “That I refuse to charge. On peculiar advantages which tend to increase the the contrary, the jury bave no right to take rental value of the property are elements which the jury must consider in determining the amount any such fact into consideration." of their award.

The defendants gave evidence tending to

show, and from which the jury might have (March, 1890.)

found, that while the upper parts of the buildthe General Term of the Supreme Court, by reason of the erection of defendant's strucFirst Department, aflirming a judgment of the ture, and in consequence thereof the rents had New York Circuit in favor of plaintiff, and an | fallen, the location of the station in Record order denying a motion for a new trial in an Street bad, from the greater number of people action by a lessee of property abutting on a resorting there, caused the first or store floor of street through which an elevaied railroad was the building to become more desirable for busiconstructed to recover damages for the perma. ness purposes, and greatly enhanced in rental nent injuries to his easements therein.

Re-value. versed.

Messrs. W. Bourke Cockran, Julien T. Statement by Brown, J.:'

Davies and Edward S. Rapallo, for appelAppeal from a judgment of the General Term lants: of the First Judicial Department allirming a “Just compensation” does not exclude the judgment entered in favor of plaintiff upon a consideration of special benefits in the estimaverdict and allirming an order denying a motion of consequential damages. tion for a new trial.

Rexford v. Knight, 15 Barb. 627; Betts v. At the commencement of this action the Williamsburgh, Id. 255; Granger v. Syracuse, plaintiff held a lease of property situated upon 29 How. Pr. 303; Genet v. Brooklyn, 99 N. Y. the northwest corner of Church and Rector 296. Streets, in the Cily of New York. The lease The plaintiff can recover only consequential bore date May 1, 1877, and was for the term damages to his lease, which can only be estiof fifteen years with a right of renewal for an mated by taking into consideration all the conadditional term of ten years. Upon the prop- sequences, beneficial or injurious, of the taking erty there was a brick building tive stories in of the condemned portion of the parcel, to wit. height, the first floor of which was used as a so much of plaintiff's easements as have been restaurant, and the other floors for dwellings. interfered with or destroyed.

The Metropolitan Elevated Railway was con- Drucker v. Manhattan R. Co. 106 N. Y. 157. structed through Church Street in front of said The clauses in the 16th section of the Generpremises, and in Rector Street there had been al Railroad Act relating to the non-allowance erected by the defendants a station from which of nefits, while providing that no benefits a covered platform ran to Greenwich Street, shall be considered as offsetting the value of and there connected with the Ninth Avenue property taken, cannot be reasonably construed Elevated Road,

to prevent the consideration of benefits in estiThe plaintiff claimed in his complaint that mating consequential damages. the defendants' structure interfered with the Gould v. Iludson River R. Co. 6 N. Y. 558; ingress and egress to and from his premises, Canandaigua R. Co. y. Payne, 16 Barb. 273; and also impaired the circulation of light and Albany R. Co. v. Lansing, 16 Barb. 68; Cooley, air from the street to his building, and deprived Const. Lim. *565; Lewis, Em. Dom. $ 471; him of its customary and lawful use, and Setzler v. Pennsylvania R. Co. 112 Pa. 56; greatly reduced its value to bim as lessee. Bangor & P. R. Co. v. McComb, 60 Me. 290;

It was admitted that the action was brought Meacham v. Fitchburg R. Co. 4 Cush. 291; and tried as to one to recover in one sum the Nicholson v. New York & N, H, R. Co. 22 Conn. whole damage sustained and to be sustained 74; Adams v. St. Johnsbury & L. C. R. Co. 57 from the vepreciation of the plaintiff's estate, Vt. 240; Paducah & M. R. Co. v. Storall, 12 on the assumption that the defendant's struc- Heisk, 1; Adden v. White Mts. N. H. R. Co. 55

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