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JUDGMENT OF JUSTICE OF THE PEACE IN CRIMINAL CASE-JURISDICTION OF DISTRICT COURT.-1. The judgment of a justice of the peace in a criminal case can not be reviewed on petition in error in the district court. 2. The district court has no jurisdiction of a criminal case removed on petition in error to it from the judgment of a justice of the peace. Opinion by HORTON, C. J.-State v. Lofland.

BLOWING STEAM WHISTLE-WHEN NEGLIGENCE.-1. The blowing of a steam whistle and the letting off of steam are not per se acts of negligence or evidence of wrongful conduct on the part of those in charge of a railroad train. But when those acts are done carelessly, heedlessly and without any necessity therefor, they may become acts of negligence, and the railroad company be responsible for injuries caused thereby. Opinion by BREWER, J.-Culp v. A. & N. R. R. Co.

EFFECT OF VERDICT OF "NOT GUILTY."-1. In a criminal prosecution where the defendant has pleaded "not guilty" to the charge, and where the case is submitted to a jury and a verdict is rendered, and the court enters judgment that the defendant be discharged and go hence without day; held, that such verdict and judgment are conclusive, and that this court can not on an appeal set aside or reverse the verdict or judgment. Opinion by HORTON, C. J.-State v. Crosby.

DECREE OF FORECLOSUre-ReceipT OF SURPLUSWAIVER.-1. A party holding the fee in mortgaged premises, and against whom a decree of foreclosure is entered, can not, after voluntarily taking the surplus arising from the sale of said premises upon such decree, maintain a proceeding in this court to set aside the decree of sale. The receipt of such surplus is a waiver of any errors, if errors there be, in the proceedings. Babbitt v. Corby, 13 Kan. 612. Opinion by BREWER, J.-Hoffmire v. Holcomb.

LIMITED PARTNERSHIP-LIABILITY OF PARTNER-ACCEPTANCE OF NOTE OF ONE OF SEVERAL JOINT-DEBTORS. -1. Where a partner claims that his liability to creditors of the firm is restricted by a special contract between the partners, and no proceedings have been had under the limited partnership act, it is incumbent on him to prove notice to or knowledge by the creditors of such contract limitation, or he will be liable equally with the other partners for the entire debts of the firm. 2. The acceptance of a note by the creditor, of one of several joint-debtors, does not have the effect to discharge the other debtors without agreement to receive it in payment or satisfaction. Opinion by BREWER, J.-Yetter v. Soper.

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CORPORATE FRANCHISE-TAX-PAYERS AS JURORS.-1. An act providing for the incorporation of a city must be accepted as a whole; and the city in accepting the benefits derived therefrom must perform the duties required by law. The corporate franchise is a valuable privilege, and is a sufficient consideration for the duties which the law imposes. 2. The mere interest of a taxpayer and resident of a city is not of itself, under ordinary circumstances, sufficient to disqualify him from acting as a juror in a case in which the city is interested. Judgment affirmed. Opin. ion by MAXWELL, J.-City of Omaha v. Olmstead. ATTACHMENT AMENDMENT.-1. An affidavit for the issuance of an attachment may be amended, by leave of the court, even after a motion to quash the proceedings

is filed, because of that particular defect. 2. It is not error for the court to permit the officer, before whom the affidavit was made, to attach a venue, according to the fact, even after a motion has been filed to dismiss the attachment on the ground of its omission. Judgment affirmed. Opinion by LAKE, C. J.-Struthers v. McDowell.

STATUTE OF LIMITATIONS-MORTGAGE.-1. When it ap pears on the face of the petition that the cause of action arose at such a period, that under the statute of limitations no action can be maintained thereon, the defendant may demur to the petition, on the ground that the facts stated therein are not sufficient to constitute a cause of action. 2. The proviso to section seventeen of the code of civil procedure, that the absence from the state, death, or the disability of a non-resident, shall not operate to extend the time within which actions in rem shall be commenced by and against such non-resident, applies to actions to subject mortgaged property to the payment of the mortgage debt. If action upon a note secured by mortgage is barred by the statute of limitations, an action for foreclosure of the mortgage is also barred. Judgment reversed. Opinion by MAXWELL, J.-Peters v. Dunnell.

PLEADING-RELEASE OF SURETY-EXTENSION OF TIME TO PRINCIPAL.-1. When an answer contains an allegation, that one of several defendants, joint makers of a promis sory note, was in reality only a surety thereon, to which allegation there is no reply, it will be taken as true; and if the court, on request, refuse to instruct the jury to this effect, it is error. Yet the judgment will not be reversed, unless the error appear to have been prejudicial to the party seeking to take advantage of it. 2. When the defense depended upon showing, in addition to the fact of suretyship, the fact of an extension of the time of payment to the principal, which was alleged but not proved; the refusal of the court to instruct as above stated is no ground for reversal of the judgment. 3. An extension of time to the principal for payment will not have the effect to release the surety, unless the agreement to extend the time be such as will bind the holder of the note, and bar bis action against the principal for some definite time. A mere voluntary forbearance on the part of the creditor, enlarg ing the time of payment without consideration, will not work a discharge of the surety. Judgment affirmed. Opinion by LAKE, C. J.-Dillon v. Russell.

NOTES.

THE San Francisco Common Council has passed a special bill permitting a certain Chinaman to carry a pistol three months, because his life is threatened by persons against whom he has testified.

IN the marginal notes to Mr. Jacob Bright's Woman's Disabilities Bill, there is one to the effect that the mascaline gender should include females. Is not "include: here a misprint for " embrace ?"-Yorick.

CHIEF JUSTICE MOSES of the Supreme Court of South Carolina, died at Columbia last week. He was seventy-two years of age. -Ex-Governor Washburn, of Massachusetts, well known as the author of several legal treatises of great merit, died on Monday last.

THE North Carolina Legislature has passed an act placing the price of the reports of the State at $3 per volume, and paying the official reporter a salary. Here tofore, the reporter has had the profits on their sale at the rate of $8 per volume. Hon. W. T. Faircloth is the junior justice of the supreme court of this state. His predecessor, Judge Settle, has been appointed United States District Judge of Florida.

THE VALUE OF A DEFINITION-The Lord Chief Justice of the English Common Pleas, (in Twycross v. Grant, January 24, 1877): All arguments, at least when conducted in the English language, have to commence with a definition. It depends on what is your definition of "consequence." In one sense I quite agree with you; but in another sense it was a consequence of the fraud that the purchaser obtained a worthless thing.-Baron Cleasby in the Exchequer Division (in Attorney General v. Gasquet, January 2 1877): I do not pretend to give any definition of "domi cile" myself, because it has been said that, though so many great minds had applied themselves to it, there is no universally-accepted definition, no agreed on enumeration of its ingredients. I rather agree with the dictum: “In jure civili omnis definitio periculosa."-[Daily Register (N. Y.)

The Central Law Journal.

SAINT LOUIS, MARCH 30, 1877.

CURRENT TOPICS.

A PROPOSITION to amend the statutes concerning the publication of obscene matter, now before the Missouri Legislature, must commend itself to the judgment of every decent-minded man in the State. If it become the law, it will doubtless also be a source of satisfaction to all the leading daily newspapers. The project is to make the publication of indecent or offensive matter, such as is too frequently elicited in suits for divorce, trials for rape or attempts to commit rape, and other such proceedings at law as involve the production of salacious testimony, punishable as in ordinary cases of publication of obscene matter. There can be no doubt that there is a large mass of matter, tending to the destruction of morals, published daily under the guise of court news. It would be a libel on the ordinary newspaper publisher to say that this wretched stuff is printed because he desires it. But the race to be earliest in the field with the most startling and comprehensive account of each new sensation is so exciting, that newspaper proprietors and editors are tempted to lose sight of the grievous wrong that may result. In some cases the mere greed of gain -the desire to sell so many extra papers-is the moving cause. But, put it which way we will, the enactment of such a law as that now projected can not fail of having a salutary effect. Those unscrupulous newspapers who would make a market out of moral corruption will be brought up with a round turn; and the more conscientious, but weaker vessels, who plead competition as an excuse for the publication of the vile matter, will be strengthened in their desire to follow the paths of rectitude.

Another bill before the Legislature, having a similar tendency, is also to be commended. This is designed to give the State courts the power to forbid the publication of such matters as may arise in the course of a suit, the publication of which may prove detrimental to public morals. We have not seen the latter bill, and ground our remarks solely on the newspaper reports of its general tendency. Whether either or both of the bills be passed, it will be a matter for congratulation. As matters now stand, the abominable stories published under the guise of testimony are a disgrace on our civilization, and it is quite possible that the sending of newspapers abroad, containing such reports as those of a recent divorce trial, might be made the subject of a criminal suit under the United States statutes forbidding the use of the mails for the dissemination of obscene matter. Any legislation, however, which will bring about a surcease of this crying evil, will be Vol. 4.-No. 13.

sure to be hailed as a relief by all who are interested in the preservation of public morals.

THE question of the right to disinter and remove a body, after burial, and in whom the control of it rests, is one that has seldom received the attention of courts. In a recent case in Pennsylvania, Lowry v. Plitt, reported 16 Am. Law Reg. 155, it is held that after the interment of a body with appropriate obsequies, which all interested at the time considered as final, the control over it rests with the next of kin who is living, and can not be transferred. In this case, where there were several next of kin in the same degree, and they differed in their wishes as to the disposition of the remains, a bill by the majority, to enjoin the others from interfering with the removal of the remains to another place, was dismissed. The law regards with favor the repose of the dead. When they are inurned in the places selected by them, it must be something more than sentiment or abstract right which will induce a court to enforce the claim of the next of kin, by the invasion of the burial-place of another. In such a case it may well be questioned whether the right of the next of kin exists at all. This doctrine is more than foreshadowed by Chief Justice Read, in Wynkoop v. Wynkoop, 6 Wright, 293, when he says: sides, the fact that her son is deposited in her burial-place, in consecrated ground, and that he was buried with the ceremonies of the church, and with the honors of war, is sufficient to justify us in refusing permission to a removal under the circumstances." See also King v. Coleridge, 2 B. & Ald. 806; Gilbert v. Buzzard, 3 Phill. 335; Reg. v. Twiss, 10 B. & S. 298; Reg. v. Sharpe, 7 Cox C. C. 214; In re Stephen Girard, 4 Am. L. J. 97; 5 Pa. L. J. Rep. 68; Wynkoop v. Wynkoop, 6 Wright, 293; 4 Bradf. 503; Bogert v. Indianapolis, 13 Ind. 138; Pierce, et al. v. Sivan Point Cemetery, et al., 10 R. I. 229; Secor's case, 31 Leg. Int. 268.

"Be

THE fair and liberal construction given to the second section of the Missouri Damage Act, in the recent case of Proctor v. The Hannibal and St. Joseph Railroad Company, which we publish in this issue, has excited the latent hostility of some members of the Legislature who are not greatly distinguished for moderation or fairness; and a bill has been introduced making railroad companies, steamboat companies and the proprietors of stagecoaches liable for injuries to their employees caused by the negligence, unskillfulness or criminal intent of a fellow-employee, even though the employer was guilty of no negligence whatever in employing or retaining the servant whose default caused the injury. If the rule governing the liability of the master for injuries to servants in his employ is unjust or against public policy, it ought to be abrogated, and a more just rule adopted; but if the rule is good enough for all other classes of employees, it ought to be for those embraced in the three classes named in this bill. We know of no reason why the life or limb of a railroad employee,

or a roustabout on a steamboat, is more precious than that of other laboring men. This bill ought to be entitled an act to promote and encourage litigation against railroad, steamboat and stage companies, and for the relief of shyster lawyers who make a precarious livelihood by inciting suits against corporations on the shares. Citizens of St. Louis, representing all the more important branches of business, have remonstrated against this bill as most unwise and unjust. And it seems to us that it is so clearly against the public interest, that it ought never to become a law. It would largely increase the cost of operating railroads and steamboat lines, and this would be in the end a tax on the industries of the country. Every farmer and every merchant in the state is interested against this bill, which practically makes a railroad company an accident insurance company. If railroad employees are to be insured against their own negligence at the public expense, why should not all other employees enjoy the same protection? As the law now stands, if the master, or the person to whom he delegates that power, is guilty of negligence in employing or retaining an unskillful or negligent servant, he is liable to another employee for an injury caused by the servant so negligently employed or retained. This rule is best for the public. The employer is held liable for his own fault. He ought not to be held liable to an employee when he is not in fault. Every consideration of public policy requires that such companies should be held to strict accountability in employing servants, and in equipping and managing their routes and machinery. Ordinary care in a business less hazardous might be gross negligence in pursuits as hazardous as these. But when skillful

and competent men have been employed, and good and reasonably sufficient machinery provided, the employer ought not to be held liable for accidents or neglects wholly beyond his power to foresee or prevent. This bill is essentially bad, and should be voted down.

THERE are at present two propositions before the Legislature for the reporting and publishing of the decisions of the Supreme Court of this state. The first provides, in substance, for the appointment of a reporter, to be paid a salary by the state; the retaining of the present system of copying the opinions and briefs by the clerk at the cost of the state, and the publication of the volumes by direct contract with the state, the price to the state not to exceed $2.50 per copy, and to the profession not to exceed $3.50 per copy. The other proposal is to report the decisions, at private expense, from the original opinions and briefs, without expense to the state for copies as at present; the volumes to be sold at $3.00 each to both the state and the public, and to be equal to the best Missouri reports heretofore published; to contain 600 pages, exclusive of index and table of cases, each page to contain 1,700 ems longprimer type, except the head notes, which are to be set in brevier. The latter is the proposal of

Mr. W. A. Winslow, who, in a pamphlet addressed to the members of the General Assembly, advocating his scheme, has thrown considerable light upon the system and cost of law-reporting in this state. From 1853 to 1867 the reports were sold at $3.00 per volume, both to the public and the state. The passage of an act (Wag. Stat., sec. 19, p. 428), in regard to the copying of opinions, soon increased the expense to the state, to what Mr. Winslow very justly characterizes as "extravagant proportions." This statute enacted as follows: "The clerk shall also at the same time make a true copy of the points and citations of authorities by the counsel, giving the names of counsel who signed the briefs, and distinguishing the same from the opinion of the court, and shall certify the same, with a true copy of the decision in the cause, under the seal of the court, and transmit the same to the reporter within thirty days." The fee law (Wag. Stat., p. 622, sec. 9), fixed the compensation for such copies at fifteen cents a folio, to be paid by the state. The present publisher commenced the publication of the reports with volume 51, under a contract with the state, limiting the price to be paid by the state to $3.75 per volume, and by the public to not more than $4 per volume. Since the commencement of his contract to the present time, including volume 62, the state has purchased of him 6,292 volumes, at a cost of $23,595. The extravagance, however, becomes apparent when we find that the copying of the decisions for the reporter has cost in four years over $27,000, or more than the volumes themselves, and has raised the price which the state has paid for its reports to nearly $8.00 a volume. Mr. Winslow proposes to dispense with this, and to supply the volumes to the state at $3.00 instead of $8.00. In order to do this, it would be necessary for him to have the custody of the original opinions and briefs, and to this we can see no objection. He would be held responsible for them while in his possession, and they would therefore be as safe with him as in the custody of the clerk. If his proposition is accepted,—and we think it is entitled to the consideration of the Legislature, he should be required to copy the opinions himself, as the placing of the originals in the hands of the printer would result in their being either badly mutilated or destroyed. Concerning the proposal to pay a reporter a salary, which is embraced in the other bill, we have already expressed an opinion. Lawyers neither require nor wish to buy cheap books at the expense of the public.

EMORY WASHBURN.

The death of Ex-Governor Emory Washburn, of Massachusetts, ends a long life of singular purity, and of earnest and useful labor. Governor Washburn was born in Worcester County, Massachusetts, in the year 1800. He graduated at Williams College at the early age of seventeen, and entering at once upon the study of the law, devoted himself for sixty years to a jealous and exacting

profession with an active loyalty, which won for him great and deserved favors. In 1854 he was elected Governor of Massachusetts, and during his year of office, served the Commonwealth with the same singleness of purpose, fidelity and high sense of responsibility, which characterized his discharge of every duty, great or small, that was entrusted to him. In 1856 Governor Washburn was appointed Bussey Professor of Law in Harvard University, and removing to Cambridge, held the position for twenty years, resigning it only a few months before his death.

It is as Law Professor at Cambridge that he is best, or at least, most widely known. He came to his new and important duties with the experience gained from thirty-five years devoted, uninterruptedly, with the exception of the brief interval he was on the bench of the Common Pleas to the intelligent and earnest practice of his profession, during which period he rose steadily in reputation, until he stood an acknowledged leader of the bar of western Massachusetts. With all this store of legal knowledge, however, there was a certain want of system, which in the beginning threatened his success as a lecturer. But as he became wonted to his new position, this defect remedied itself, and he met the sharp questions of his curious and alert hearers honestly and fairly, and, with rare exceptions, satisfactorily. His native ingenuousness here stood him in good stead. He never condescended to hide his ignorance in ambiguities, nor would he endeavor to lose in circumlocution an inquirer whose honest aim was information.

When Governor Washburn first entered upon his professorship, the law of real property, to which he gave especial attention, was studied mainly through the medium of Cruise's learned treatise, which, although disencumbered in Greenleaf's edition of much learning useless to the American student, was still far from satisfactory as a text-book of American real law. The need of a new work on this important subject was early forced upon Professor Washburn's attention, and determined him to make an effort to supply it. The result was a Treatise on the American Law of Real Property, which, first published in two volumes in 1860-1862, has since passed through four editions, and has grown from two to three volumes. This work has come to be a recognized authority on the subject of which it treats, and remains a monument of its author's untiring industry and accurate learning. In 1863 appeared the first edition of Professor Washburn's Treatise on the American Law of Easements and Servitudes, another work of great practical value, which has already reached a third edition, and which, like its predecessor, is an admirable example of conscientious book-making. They are, neither of them, the crude essay of a prentice-hand, but the finished labor of a master, whose pride of craft makes him feel no time or pains misspent which serve to better his work. In both are manifested the author's characteristics-indomitable industry -scrupulous accuracy-sound learning, and all

infused with an enthusiasm as refreshing as it is rare. Such books serve to repay something of that debt supposed to be due from every lawyer to his profession, and make one the more regret that ever-accumulating mass of ill-digested information which, under the guise of legal literature, threatens some day to topple over and crush the profession beneath its multitudinous volumes.

The good that Professor Washburn did during his long connection with the Dane Law School, was not confined, we believe, to the instruction he gave in his lectures. There was something in the man himself, and in the lesson of his life, that could not be wholly lost upon the students who were brought into relation with him. His were not gifts calculated to confound or dazzle the young learner-to fill him with a sense of the hopelessness of emulation. Indeed, with the exception, perhaps, of his wonderful and untiring industry, his possessions were less gifts than acquisitions. He presented to the young men, who daily gathered to his teachings, the valuable and instructive example of one, who without genius, in the common use of that word, had attained an enviable position as lawyer, jurist and citizen by making the best uses of powers that were, in a greater or less degree, at the command of all of them.

His personal relations with the students were marked with an unaffected cordiality that could not but win their friendship. He entered into their plans with the lively sympathy of youth, made valuable by the experience of years. He followed with heartiest interest the progress of those whose first steps in their profession had been taken under his eyes and guidance; and he never seemed happier than when hearing of the prosperity and good fame of former pupils. The purity of his character, and his perfect ingenuousness, diffused about him an atmosphere bracing and healthful as the winds that blow from Berkshire Hills, and no one could come within its influence without being sensibly made better. As a citizen none stood higher, and in none was public confidence more absolute. He held many offices of trust, and in times of trouble, was relied upon for prudent counsel and sound judgment. He bore himself blamelessly and well in every office, and in his death the public suffers a substantial loss. With rare truth might be written over him, as a fitting epitaph: Integer vitæ scelerisque purus.”

ACTUAL NOTICE.

If there is any term sufficiently definitive of its meaning to pass without gloss or comment, it would seem to be that employed here to designate that branch of the law of notice which does not rest upon mere legal inference or presumption, and to distinguish it from what is properly called constructive notice. On its face, it would appear to import its own character so clearly and unmistakably, as not to depend for elucidation upon judicial construction. And yet the decisions upon

the question of what is actual notice are far from harmonious, or uniform, even in this country, and the contrariety of view between the courts of Great Britain and the United States, upon this question, is equally confusing and unsatisfactory.

The definition given in Bouvier's Law Dictionary (p. 236, title "Notice "), is as follows: "Actual notice exists when knowledge is actually brought home to the party to be affected by it;" thus giving to "notice" and "knowledge" the same signification. If actual notice requires that "knowledge shall be actually brought home," etc., then actual notice means one and the same thing as actual knowledge. A great deal of the confusion which exists in relation to the proper distinction between notice, actual and constructive, is doubtless owing to the erroneous impression chat notice means knowledge. It is true that these words are frequently employed to signify, substantially, the same thing; but they are by no means identical in meaning. Where notice is requisite, knowledge often supplies its place; and knowledge is frequently inferred from notice, which is purely technical. In the one case, however, there may be actual knowledge, and an entire absence of the requisite notice; and in the other, the notice may have failed to impart knowledge to the party affected by it. There are cases where the proof of actual knowledge will not be held admissible as an excuse for the notice prescribed by law. The object of notice is, undoubtedly, to convey knowledge to the person notified; but this, instead of amalgamating the two terms, only tends to render their difference of meaning more apparent.

Judge Selden, in the case of Williamson v. Brown (15 N. Y. 354), lays down the rule in language calculated to draw the lines distinctly between "notice" and "knowledge," as well as between actual, and constructive notice. "Actual notice," says the learned judge, "embraces all degrees and grades of evidence, from the most direct and positive proof, to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion."

The shadowy and uncertain line by which these two species of notice have been distinguished, is probably owing, in no small degree, to the circumstantial nature of the evidence by which the fact of notice is frequently established. Some of the courts insist upon classing, as constructive, all that kind of notice which depends upon inferences drawn from circumstances for its proof, or, in other words, where the proof is simply of facts calculated to put one upon inquiry. By dividing the class of notice under consideration into notice, express and implied, we may be able to arrive at a clearer comprehension of the proper distinctions between actual and constructive notice.

Express notice would include all of that kind of actual notice where information is communicated to the person notified, of such a character as to

amount to the highest degree of hearsay evidence of the substantive fact, which it is possible to bring to his knowledge. This excludes all that depends upon inference, or imposes upon the person receiving the notice the further duty of inquiry. He is as well informed of the fact as it is possible for him to be, short of actual, personal knowledge; for express notice need not amount to actual knowledge. If it did, and the matter to be brought to his knowledge be an unrecorded deed of real estate, or a contract to convey, he must see the identical instrument itself. If it is a parol contract to convey, accompanied by possession and such improvements as would take the case out of the operation of the statute of frauds, it would not amount to actual knowledge to show that the person notified had been informed by the tenant in possession, that he claimed an equitable interest in the land; that he had contracted for its purchase, gone into possession and made the visible improvements, on the faith of, and pursuant to the terms of such contract. Though the improvements were of the most substantial and enduring character, and were specifically pointed out by his informant, this, though express notice, would not amount to actual knowledge, because it is evidenced only by hearsay. It would be necessary for the subsequent purchaser, or incumbrancer for value, in order to be charged with actual knowledge, to have been witness to the contract between the parties, or at least to have been present at the simultaneous assent to its terms by both parties, and to have witnessed the erection of the improvements. The utter impracticability of conducting judicial inquiry subject to the hampering restraint of a rule requiring notice of this character, in order to bind purchasers, is apparent on the face of the proposition. And yet, there can be no logical departure from these strict requirements in cases requiring actual notice, so long as "notice" and "knowledge" are construed to be synonymous.

Implied notice may be said to include all that species of actual notice resting upon inference or circumstantial evidence, or which merely raises a presumption of knowledge by showing that the party notified is conscious of having means of knowledge, though he does not use them. This is the species of notice which gives rise to the uncertainty and confusion above referred to, and which is so often declared to be constructive, rather than actual. It varies in degree, from positive information communicated by third parties, to the evidence of collateral circumstances, by which a man of ordinary prudence and honesty is put upon inquiry. As to what constitutes notice of this character, and the manner in which it affects purchasers, there is some conflict between the authorities, both British and American. Baron Alderson, in the case of Whitbread v. Boulnois (1 You. & Coll. Ex. R. 303), lays down the rule in relation to purchasers of real estate, where an adverse claim is subsequently set up under a prior equitable title or unregistered deed, in the following language:

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