Imágenes de páginas

apon the face of the deed of assignment, the an opportunity to make a fraudulent disposi. assignors direct or autborize the assignee to tion of the property. Until they are filed it is take possession of the property assigned before the duty of the assignors to retain possession he bas filed bis inventory and bond, this would and control and take care of and proiect the render the deed fraudulent and void as to cred property. The delivery of possession to the itors. And if the assignors, or tbeir agents, by assignee for any purpose, prior to the time their direction, or with their consent, in con- fixed by law, which would enable him to do summation of an agreement, oral or written, what the Statute intended to prevent, would be extraneous to the deed and made at or before clearly unlawful. The purpose can avail noththe execution of the deed, agree to put the as-ing if the possession given afforded the assignee in possession of the property assigned signee the opportunity to commit the frauds before the making and filing of the inventory that the Statute intended to prevent by requirand bond, as provided by law, and such as ing the bood and inventory to be first filed. signee was put in possession of the property If the evidence adduced, as stated, be true, before the filing of the bond, this would ren possession was delivered to the assignee in this der the deed fraudulent and void as to cred case in violation of the Statute, Bartlett v. itors. And if you find from the evidence that Teah, 1 McCrary, 176, 179. a key or keys to the storehouse, or bouses, But the question recurs: Did the agreement were delivered to the assignee at the time of and the delivery of the keys in pursuance the delivery of the deed, or afterwards, in con- thereof avoid the assigoment? This court bas summation of a contemporaneous agreement, repeatedly held that provisions in a deed, together with the possession of the property, which were in contravention of the Statute, this would render the deed fraudulent and rendered the decd void. void. But, if the key or keys were delivered In Teah v. Roth, 39 Ark. 66, an attachment to the assignee for the purpose only of giving was sued out on the ground that the defendaccess to the goods to enable him to make an ant had fraudulently disposed of her property, inventory, the assignors retaining to themselves the fraud relied on being the making of an asthe possession and control of the assigned signment for the benefit of creditors. Io speak-property, this would not render the deeding of the deed of assignment in that case the void."

court said: “The deed empowered the asBy “access," as used in the instruction, is signees to retail the goods privately for twelve meant "liberty to approach and inspect the months, and then to sell the remainder by property.” By “possession” is meant, "that public auction. This is in contravention of condition under which one can exercise his our Statute of Assignments, which directs a power over property at his pleasure to the ex- public sale within one bundred and twenty clusion of all others."

days after the assignee takes upon bimself the Under this state of facts arises the question, execution of the trusts of the assignment. Did the agreement and the delivery of the keys And the legal effect is to avoid the deed, as avoid the deed? Section 305 of Mansfield's against non-assenting creditors;" and the court Digest provides: “In all cases in which any held the assignment fraudulent. See Raleigh person shall make an assignment of any prop- v. Griffith, 37 Ark. 150; Rice v. Frayser, 24 erty, whether real, personal, mixed or choses Fed. Rep. 460. in action, for the payment of debts, before the In Aaronson v. Deutsch, 24 Fed. Rep. 465, the assignee thereof shall be entitled to take pos- question, under consideration was presented session, sell or in any way manage or control and decided. The court said: “Ii was the any property so assigned, he shall be required understanding of the parties to the deed that to file in the office of the clerk of the court ex. possession of the assigned property should be ercising equity jurisdiction a full and complete delivered to the assignee upon the execution inventory and description of such property, and delivery of the deed, and before the asand also make and execute a bond to the State signee had qualified by giving bond and filing of Arkansas in double the estimated value of an inventory. Accordingly, immediately after the property in said assignment, with good the execution of the deed the assignor put and sufficient security, to be approved by the the assignee in possession of the property. clerk of said court, conditioned that such as The key to the storehouse containing the siguee shall execute the trust contided to him, property, and the property itself, was delivered sell the property to the best advantage and pay to the assigvee; the assignor withdrew from the proceeds thereof to the creditors mentioned the place aud abandoned all watch or care over in said assignment according to the terms the property, leaving the assignee to exercise thereof, and faithfully perform the duties ac absolute and unrestricted dominion over it. cording to law.”

The assignee had not given bond and filed the The intention of this Statute is manifest. inventorý up to the time the goods were atBefore the assignee can lawfully take posses- tached. The contention of the learned counsion of the property assigned he must file an sel for the defendant is that, because this illeinventory of the property conveyed to him gal understanding and actions of the parties and execute a bond, with good and sufficient were not in terms provided for in the deed, the sureties, to faithfully perform his duties. The validity of tbe assignment is not affected thereobject of this provision is the protection of by; and that the wrongful possession of the creditors and the prevention of fraud. The assignee was a matter occurring subsequent to inventory is to show the property assigned and the execution of the deed, and cannot alfect its the bond to secure all parties concerned against validity. The mere act of taking possession loss on account of the failure of the assignee was subsequent to the execution of the deed; to perform his duties, and both are required to but it was done in pursuance of an underbe filed before the assignee can lawfully have standing had at the time of the execution of


the deed, and when that fact is shown its legal obtain indemnity against the debt or liability for effect is the same as if the deed bad provided which he is bound, he cannot sue in the name of for it. When the parties to the deed enter

the creditor. into an agreement to do an act in violation of 2. The ratification of the act of an atthe requirements of the Statute of Assign- torney in bringing an unauthorized attachments, and that agreement finds expression in

ment suit will not relate back to the time of the the deed, the instrument is fraudulent and void

commencement of the suit so as to give the atin law upon its face. When such an agree

tachment lien priority over the liens of third par

ties wbich have been acquired in good faith durment is made, but is not disclosed on the face

ing the interval between the bringing of the suit of the deed, it must be proved; and when it is

and the ratification, proved, and it is also shown that the parties are carrying out their illegal purpose, the effect

(April 12, 1890.) upon the validity of the assignment is precisely the same as if the illegal purpose had been des APPEAL

by intervenors from a judgment of

the Circuit deliberate agreement, in or out of the deed, favor of plaintiffs upon a petition by intervenmade at the time and carried into effect, to vi- ors filed in plaintiffs' attachment suit, seeking olate the Statute, is a fraud upon the Statute, to have plaintiffs' lien declared to be subse and a fraud upon the legal rights of creditors, quent to liens held by intervenors. Reversed. which the law will redress by removing the Deere, Mansur & Co. held certain promissory fraudulent barrier to the assertion of their le notes made by Reynolds Bros. upon which one gal rights against their debtor.” Whedbee v. William Reynolds was surety. Btewart, 40 Md. 414, 424.

William Reynolds' attorneys brought suit Upon the evidence adduced the instructions upon the notes on June 14, 1888, in the names asked for by appellant should bave been given. of Deere, Mansur & Co., and sued out a writ of For reasons indicated the instruction given was attachment. They thereupon notified Deere, erroneous and misleading.

Mansur & Co. of their action and the same Other questions are presented for our consid- was subsequently rutitied. eration, but we do not deem it necessary to de- On the same day that suit was commenced cide them.

the Carruth-Byrnes Hardware Co. and other Reversed.

creditors commenced suits against Reynolds Bros. and sued out writs of attachment there


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All the parties subsequently obtained judget al., Appts.,

ments, and the Hardware Company and other

creditors filed petitions in the cause of Deere, DEERE, MANSUR & CO.

Mansur & Co. v. Reynolds Bros. asking to in

tervene, and that Deere, Mansur & Co's claim (.... Ark.....)

be deferred and declared subsequent to them,

op the following among other grounds: (1) that 1. Although a surety may bring suit un- the suit was instituted without authority: (?) der $ 6396, Mansf. Dig., against his principal to Ithat the attachment was collusively obtained.

NOTE.-Surety seeking indemnity; Arkansas Act | vening rights of third persons cannot be defeated construed.

by the ratification. In other words, it is essential The failure of an obligee to sue the principal that the party ratifying should be able, not merely debtor within the time prescribed will not release to do the act ratified at the time the act was done, the surety, where notice was served on the attor- but also at the time the ratification was made. ney who has the note for collection, and not on the Cook v. Tullis, 85 U. S. 18 Wall. 332 (21 L. ed. 933). principal obligor. Cummins v. Garretson, 15 Ark.

The civil-law maxim, omnis ratihabitio retrotra132.

hitur et mandato priori æquiparatur, has been An executor who seeks to remove out of the adopted by the common law, recognizing as a State without leaving property to indemnify his qualification, however, that the thing done and gureties against loss may be arrested and held to which is ratified must have been done in a reprebail, under $ 6396, Ark. Stat. 1884, relating to sure- sentative character, and not in the name of the unties. Ruddell v. Childress, 31 Ark. 511.

authorized person as principal; and also that such Any person bound as surety may at any time af- a ratification has no effect upon the rights of third ter action hath accrued on the bond, by notice in

pergons acquired between the time of the unauthorwriting, require the person having the right of ac-ized act and the ratification of the act. There must tion forthwith to commence suit thereon (Ark. be some mutuality between the ratifying princi-. Stat. 1884, 8 6398); and where he has given the hold-pal and the third party who is to be affected by his er of the bond notice and he fails to sue within ratification, else the ratification will not have a retthirty days, the surety may plead his exoneration rospective effect as aguinst the interests of such in bar of an action on the bond (State Bank v.

third party. Johnson v. Johnson, 31 Fed. Rep. 700; Watkins, 6 Ark. 123); or he may elect to suffer judg-Wilgon v. Tumman, 6 Man. & Gr. 236; Walker v. ment by default, and apply to equity for relief. Hunter, 2 C. B. 324. Hempstead v. Watkins, 6 Ark. 317.

Liens by attachment or judgment upon the Principal and agent; effect of ratification of acts of property of a debtor are not affected by his subseagent.

quent ratification of a previous unauthorized Ratification operates upon the act ratified pre- transfer of the property. Taylor v. Robinson, 14 cisely as though authority to do the act had been Cal. 396; Wood v. McCain, 7 Ala. 806; Bird v. Brown, previously given, except where the rights of third 4 Exch. 799. parties have intervened between the act and the Ratification of acts of agent: general discussion. ratification. The retroactive efficacy of the ratifi- See note to Wheeler v. McGuire (Ala.) 2 L. A. Bon cation is subject to this qualification. The inter- | 808; Story, Ag. 20%.

The court beld, inter alia, that William An action is a formal demand of ope's rights Reynolds, being surety on the potes due Deere, from another person in a court of justice. Mansur & Co., had a right to institute the suit The plaintiff may bring an action either diwithout autbority from them, and that the sub- rectly, in person, or indirectly, througb an sequent ratification dated back to the time of agent, but his assent in one way or the other filing the complaint and affidavit for attach is essential, and unless bis mind does ibus enter ment; that the evidence did not show such into it, it is not bis action. Section 6:396, fraud and collusion as would render the lien Mansfield's Digest, authorizes a surety to bring void as to subsequent attaching creditors; and an action against his principal to obtain inrendered judgment against intervenors, and demnity against the debt or liability for wbich they appealed to tbis court.

he is bound, but it does not autborize bim to Messrs. 0. P. Brown and Sandels & slie in the creditor's Dame. The surety failed Warner, for appellants:

to do what be might bave done, and did what The affidavit, not having been made by one he bad no authority to do. who was the agent or attorney of Deere, Man- In Jones v. Moody, 59 Miss. 327, a junior atsur & Co., was no affidavit. There being no taching creditor sought by bill in chancery to statutory affidavit, no lien was created thereby. vacate a senior attachment on the grounds ibat

See Drake, Attachm. E$ 83, 86, 93, 131; Wap it was founded on no debt and was a fraud. les, Attachm. pp. 76-82; Pool v. Webster, 3 Met. The attachment assailed was in favor of a party (Ky.) 278; Manley v. Hcadley, 10 Kan. 88; who bad owned the note sued on, but assigned Miller v. Chicago, M. & St. P. R. Co. 58 Wis. it as collateral; the court held that although 310.

not the proper party to sue, he had an interest The ratification by the principal of the act of in the note and thai the attachment in his favor an unauthorized agent does not relate back to was not a fraud. It did not bold that be could the time of the original act so as to give the sue for bis assignee without authority. The principal priority of lien over subsequent lien- attorneys who fled the complaint were not auors.

thorized to collect the debt for Deere, Mansur Messrs. J. E. Joiner and Cohn & Cohn, & Co., or in any way to act for them; in fact for appellees:

it is not contended that ibere was any authority The presumption is that the agent had au- of any kind to institute the action in their favor, thority to make the affidavit for attachment. and it follows that it was not in fact their ac

Leake v. Sut/ erland, 25 Ark. 219, 221, 222; tion. But they were notified of its institution Websler v. Stewart, 6 Iowa, 401.

by tbe attorneys who bad assumed to act for It is not presumed that one in no wise inter- them and expressly ratified the upauthorized ested in the suit would make such an affidavit, act. without it was done by him as the agent of the That a party may adopt a suit brought in his party in interest, or done for him, for accom- dame without bis consent was ruled in the case modation,

of Craig v. Troomey, 14 Gray, 486, and seems Mandel v. Peet, 18 Ark. 236.

to follow from the general rules applicable to The surety could bave brought the suit on the relation of principal and agent. Of this the cbancery side of the court to compel pay- we entertain po doubt, but the difficulty arises ment, without regard to any statute, and upon in considering the effect of the ratitication in general principles of equity.

this case. Brandt, Sur. $ 192, 193.

Tbe appellces contend that "every ratificaThe selection of a law tribunal instead of an tion of an act already done has a retrospective equity tribunal did not oust the court of juris- effect, and is equal to a previous request to do diction,

it.” This is a rule applicable to the subject, Organ V. Memphis & L. R. R. Co. 51 Ark. ! and, if given in this case ibe broad meaving it 235, 259; Catchinga v. Harcrow, 49 Ark. 20, 22; conveys, the effect is to give to every act done Jones v. Moody, 59 Miss. 327.

in this action, including the attachment proIf the principal recognize and affirm the ex- Iceeding, the same effect as if they had been istence and acts of an agent, a mere stranger originally authorized. will not be permitted to controvert either. But the rule bas its exceptions as well recog.

Scott v. Detroit Young Men's Society, 1 Doug. nized and as generally approved as the rule it. (Mich.) 119, 149; Craig v. Tuomey, 14 Gray,486. self. Without attempting to indicate to wbatex

A person nay ratify an action brought in bis tent the rule applies or lo specify the exceptions pame, but without biš knowledge or authority, that are recognized, we bold that where, prior by another professing to act as bis agent and in to the ratification, third persons have in good .his behalf, and the subsequent ratification is faith acquired substantial rights or have been equivalent to a prior authority.

placed in such position in reference to the transAncona v. Marks, 7 Hurlst. & N. 686; Irons action that they will be prejudiced by such rev. Reyburn, 11 Ark. 378; Wharton, Ag. S 80. troactive effect, the ratification will not be al

lowed to cut out or prejudice those rights. The Hemingway, J., delivered the opinion of benefit of this exception has been extended to the court:

protect the rights of intervening purchasers and Assuming that the attachment sued out in lienors, by attachment or otberwise. Mechem, the name of the appellees was not vitiated by Ag. $ 168; Wbarton, Ag. 8_78; Wood v. Mc fraud or collusion, we must decide (1) if it was Cain, 7 Ala. 800; Taylor v. Robinson, 14 Cal. their attaclıment, and if so (2) Wben was the 396; Johnson v. Johnson, 31 Fed. Rep. 700. lien fixed in their favor?

Mr. W barton, by way of illustrating the rulo The right of attachment is incident to a civil and its exceptions, puis a state of case as an action and dependent upon it. Mansf. Dig. exception which is a counterpart of the case & $ 309.


The Supreme Court of Massachusetts in the as against the former at the time of the ratifi. case of Baird v. Williams, 19 Pick, 381, which cation, and is subsequent to theirs. involved the same questions upon the same The appellees con tend that appellants cannot fact, said: "If it be argued that the subse- question the validity of their lien, and cielo susquent assent of the creditors relates back to the tain them, the case of Sannoner v. Jocol8011, 47 making of the note, and makes tbe travsaction Ark. 31. The objection urged by appellants in valid ab initio, the plaintiffs are met by the this case did not go to the grounds of the atwell-known rule, that this principle of relation, tachment or the irregularities of the proceed equitable in itself between the parties, is not to ing, but denies the validity of the atteoment be construed as overreaching mesne liens and and attacks the ground work of the lien. A rights accrued to others before the consent and prior lien would be of little value if the lienor ratification."

could not assert it, but the law a ffords him the It may be that there are certain kinds of acts opportunity. Mansf. Dig. $ 350. done for another without authority, so manifest- Without considering the question of fraululy for his benefit that all parties dealing in rela- lent and collusive attachments by cointion to the matter would be beld to know, and sel for the appellants, we conclude ibat the the law would presume, ibeir ratification. Be record shows that their liens are prior to the that as it may, no such presumption exists as lien of appellecs. to attachments and their incident liabilities. The judgment will be reversed, and the cause

As the intervenors bad acquired their liens remanded with directions 10 the Circuit Court before the appellees bad adopted this action, it to render judgment in accordance with the law follows that the lien of the latter became fixed as herein announced.


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PEOPLE of the State of New York, ex rel. ducting $4,600 as an over-valuation, and $13,

William DARROW et al., as Trustees for 466.67, representing one third of the valuation Harriet Ivison,

of the estate, which the General Term decided

was not assessable in New York for the reason Michael COLEMAN et al., Comrs. of Taxes, that one of the trustees resided in New Jersey. etc., of the City and County of New York.

The relators appeal from that part of the or

der which affirms the original assessment as re(....N. Y.....)

duced and modified.

The commissioners appeal from that part of Securities in the actual possession and the order which provides for a reduction of

control of one of three trustees, who is a the one third of the valuation of the estate. nonresident, the beneficiaries also being nonresi

Messrs. Brownell & Lathrop, for reladents, are not "due or owing to persons residing

tors: within the State" so as to be subject to taxation therein although the other two trustees are resi

Prior to the Act of 1883, chap. 392, p. 568, dents thereof.

no tax could bave been assessed upon any of

the trustees in respect to the mortgages upon (January 21, 1890.)

property in Illinois and lowa.

People v. Comrs. of Taxes, 23 N. Y. 223; PeoTerm of the Supreme Court, First Depart. 51 Barb. 352; People v. Comrs. of Tares, 4 Hun, ment, reversing an order of the New York 595, 62 N. Y. 630; Graham v. Norfolk First Special Term vacating and setting aside a cer. Nat. Bank, 84 N. Y. 393; Lord v. Arnold, 18 tain tax assessment. Reversed.

Barb. 104; Boardman v. Tompkins Co. Suprs. Relators were, as trustees for Harriet Ivison, 85 N. Y. 359. a resident of California, under the will of The Statute of 1883 does not authorize any Henry Ivison, deceased, assessed for taxation taxation of them because they are not within on personal estate for 1887 in the City of New its terms. This Statute is to be strictly conYork, in the sum of $60,000.

strued; taxation is not to be extended or auThey appeared before the tax commissioners thorized by construction. Nor should the and stated that the sum vested in them as trus-court stretch the Statute as the Tax Commistees was $87,000; that the securities were kept sioners and prevailing opinion at general term in New Jersey by their co-trustee, who was a have done. resident of that State and who bad principal Strauss v. Coleman, 44 Hun, 20; People v. charge and management of the trust estate and Comrs. of Tarcs, 17 llun, 293. Becurities; that $46,600 was invested in the The two trustees taxed have no means of instock of corporations liable to taxation and demnifying themselves against the tax.

The paying their own taxes, and $40,400 in western property is not in their possession nor under land mortgages.

their control and so not taxable to them. The commissioners thereupon reduced the People v. Coleman, 42 Hun, 581; People v. assessment from $60,000 10 $45,000.

Com r8. of Taxes, 23 N. Y. 224. The relators brought certiorari proceedings The Act does not include under the term to review the assessment and the Special Term "owners” or “owner,” executors, trustees and decided that it should be stricken from the roll. agents. It requires a stretch of judicial conThe General Term reversed this judgment, but struction to insert in the Statute the word reduced and modified the assessment by de- / “trustee."

People v. Coleman, supra; Perry, Trustees, dulged in for purposes of justice, was held not &$ 411, 412.

to apply in such a case for the purpose of im. Messrs. David J. Dean and George S. posing a tax upon a security not within the Coleman, with Mr. William H. Clark, for State, and not protected by our laws. The respondents:

case bere presented is one where the persons The assessment against the two resident coassessed are not the absolute owners of the trustees was correct in form,

property, but are trustees, and bave only a People v. Coleman, 42 Hun, 581.

representative or official interest therein, and The Act of 1883, chap. 392, authorized such but two out of the three are residents within taxation and plainly declared that the debt and the State, wbile a third resides in another not the security was the thing to be considered. State, and also has custody and control of the The mortgagors could discharge their indebted property, and the beneficiaries are also non. ness only through the trustees. The trustees residents. Does the Act of 1883 ieet such a alone could pass title to the property-the debt case? We think not. It is not a debt due and (or credit) owned by the estate. In this sense, owing to persons residing within this State, for which is the practical and legal sense, the trus. it is one which is due or owing to them in tees did and do control the property, and it is connection with another who is a joint owner, not susceptible of and does not require physi- and who is not a resident within this State, and cal possession.

such other has the securities. The Statute The obvious purpose of the Act (chap. 392 means that the debt must be one which is of the Laws of 1883), was to make the tax fall, solely due or owing to residents of this State. as it should,on the actual property-the valuable if the trustce residing here has possession of credit-whether the debtor bad or bad not given the securities, he can be assessed for them un. the resident creditor a proper paper lo evidence der the old law as a trustee in possession, even and secure tlie loan, and whether or not the though there be other trustees nonresidents. written instrument was within the State. Nor do we think that the Statute meant to in

The owner of property, for the purposes of clude as owners persons who were trustees taxation, is the person having the legal title or only, and thus assess them for property not estate thereto or therein.

held by them, and not within this State. Tracy v. Real, 38 Fed. Rep. 69; Baldwin v. Generally, a man is not spoken of as the Shine, 84 Ky. 502.

owner of property who merely holds it as a The right to tax personal property held in trustee and in a representative capacity. He trust “bas not been rendered dependent either bas the legal title, and he is to be assessed for upon the residence of the person creating the it when it is within the State; but this is by trust, or that of the person to be benefited by express provision of statute, and such provision the performance of it.'

is not mentioned in the case of a trustee whose People v. Albany Assessors, 40 N. Y. 160. trust property is outside of the State, and not

in his possession. The contention of the counPeckham, J., delivered the opinion of the sel for the tax commissioners would render court:

property liable to double, or even treble, or still It is substantially conceded, and it is in any greater taxation, if the laws of other States event very plain, that prior to the Act (chap. were like ours, and there were three or more 393, Laws 1883) the assessment in question trustees living in as many different States. could not be sustained. People v. Smith, 88 N. The Statute, as it is, may lead to injustice in Y. 576.

the double taxation of personal property, That Act provides that “all debts and obli. once to its absolute owner in this state, and gations for the payment of money due or owing again in the hands of bis agents in the shape to persons residing within this State, however of securities in their custody and control in secured, or wherever such securities sball be other States. It is not for courts to widen the held, shall be deemed, for the purposes of tax- possible injustice which may be perpetrated ation, personal estate within the State, and under a Statute, by giving it a construction shall be assessed as such to the owner or own not only not called for by its language, but ers thereof in the town, village or ward in forced and unnatural under the circumstances. which such owner or owners shall reside at the It is unnecessary to go over the argument time such assessment shall be made.”

arising from an examination of the whole law This Statute was passed the year subsequent of assessment for the purpose of showing that to the decision of the case of People v. Smith, the construction adopted by us is the correct supra, and the inference is not a labored one one. We think it plainly appears that the which concludes that the law was enacted to construction adopted by the learned general meet the decision. In that case the relator, a term may lead to such a perversion of justice resident of the Village of Warsaw, in this that no court ought to adopt it unless conState, was the absolute owner of the securities strained by the plainest language of the statwhich the assessors bad attempted to reach for ute. We are of the opinion that such is not the purposes of taxation, but such securities the language of this one. This case is a good were in the possession of agents residing with illustration of the inequitable consequences out the State, md by the laws of the States arising from the construction of the court bewhere the agents resided the securities were low. The real, acting trustee lives in New liable to be taxed in those States. It was held Jersey. He bas possession and control of the by this court that the relator was not liable to securities, which are bonds and mortgages upbe assessed for such securities.

on lands in other States, and the beneticiaries The idea that personal property follows the are all ponresidents of this State. And yet, situs or residence of the owner, while in some by the action of the Tax Commissioners, becases a perfectly proper legal fiction, to be in.cause two of the trustees are residents of this

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