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sary to try them separately. The solicitor general' | affirmed with costs-James T. Scarff, respondent, v. Somers, conducted the prosecution with a moderation and humanity of which his predecessors had left him no example. 'I did never think,' he said, 'that it was the part of any who were of counsel for the king in cases of this nature to aggravate the crime of the prisoners, or to put false colors on the evidence.' Holt's conduct was faultless. I would not mislead the jury, I'll assure you,' said Holt to Preston, nor do you any manner of injury in the world.' Whatever my fate may be,' said Ashton, 'I cannot but own that I have had a fair trial for my life.'"

It is well to bear in mind that the issue in the Supreme Court was not between the punishment of the defendants and their absolute acquittal, but between death and a new trial, and we believe that by reason of the errors confessed in the decision itself a new trial should have been allowed. And this is the conviction, we are assured, of men as eminent for legal ability and attainments as any of the learned gentlemen by whom this decision has been rendered. A lawyer in this city remarked a few days ago: "I believe the men are guilty, and ought to be hanged, but I am sorry that they did not have a fair trial." Guilty or not, if they did not have a fair trial," they should have another.

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Assuming that the men are guilty, as the evidence indicates that most of them are, we still adhere to the conviction expressed in The Index months ago, that the highest justice and the best interests of society would be promoted by the commutation of their sentence.-The Open Court.

NEW BOOKS AND NEW EDITIONS.

MORRILL ON CITY NEGLIGENCE.

Of the Law and Practice in actions against Municipal Corpora

tions for negligence in the case of highways. By William W. Morrill: New York, S. S. Peloubet, 1887, pp. li, 281. The original and peculiar merits of Mr. Morrill's "Competency and Privileges of Witnesses" have been preserved and even enhanced in this clever manual. It is delightful to take up a book in which principles are so concisely stated and so logically arranged, and the authorities so discriminatingly marshalled. Even the typographical arrangement is peculiarly striking and convenient. Mr. Morrill certainly "takes the cake" as a manual maker. Although the book is primarily intended for New York, yet it would be almost equally useful elsewhere, because statutes and decisions of other States are cited and considered. All things considered, we think we never saw books so useful for handy reference by a brief-maker as Mr. Morrill's. Let him make more.

COURT OF APPEALS DECISIONS.

B. F. Metcalf and another, appellants.-Judgment affirmed with costs-Martin Chornelius, respondent, v. David C. Holton and another, appellants.-Judgment affirmed with costs-William O. Douglass, respondent, v. Edwin B. Low, as general guardian of William O. Douglass, appellant.-Judgment, affirmed with costs-Patrick Walsh, respondent, v. Mayor, etc., of Brooklyn.-Orders affirmed with costs-Bezalul H. Dupignæ, appellant, v. Margaretta Dupignæ and others, respondents.- -Order of General Term reversed, and that of Special Term affirmed with costs-Michael L. Hunt, appellant, v. City of Oswego, respondent.

-Order modified by striking out provision for short notice of trial, and as modified affirmed, without costs to either party-Joshua B. Leavitt, respondent, v. Lewis B. Chase, appellant.-Orders reversed and proceedings dismissed-People, ex rel. Fisk Wallace, appellaut, v. Thomas C. Abbott and others, trustees, etc., respondents.-Appeal dismissed with costsFleming S. Phillips, respondent, v. Germania Mills, appellant.-Order affirmed with costs--William C. Herring, trustee, etc., appellant, v. Mary C. Berrian and others. Judgment affirmed with costs-Bertha Laubhiem, appellant, v. Die Koninglyk Nederlandath Stoomboot Mootschappy, respondent. Plaintiff was a passenger on defendant's steamship, and accidentally slipped and broke her knee joint. The ship surgeon, it was charged, treated her so unskilfully that it became necessary to submit to amputation after her arrival in New York. Held, in all courts, that defendant is not liable for the injuries and its unfortunate consequences. Judgment affirmed with costsLouis Schneider, respoudent, v. Carl L. Quoobarth, appellant. Judgment affirmed with costs-John A. Kelly, respondent, v. Bridget E. Kearns, appellant

Appeal dismissed with costs; new trial ordered by the General Term may be had, unless the appellant shall, at the first General Term held in the Fourth

Department, procure the order of the reversal to be so amended as to give this court jurisdiction to hear the appeal, in which event the case is to retain its place on the present calendar, and be argued at a time to be agreed upon by counsel-Isaac R. Pharis, appellant, v. R. Nelson Gere, respondent.-Judgment modified by ordering a new trial-People, appellant, v. George Clement, respondent. This was an appeal by District Attorney Hull, of Washington county, from a judgment of the Supreme Court, Third Department, reversing the conviction of Clements, the ex-cashier of the broken State Bank of Fort Edward, for perjury for swearing to the correctness of a false official statement of the condition of the bank to State Superintendent Paine, in March, 1884, and ordering the discharge of the prisoner. The General Term (Bockes, J., writing the opinion) held that the indictment was fatally defective, in not directly averring that the affidavit was false, instead of couching that charge in the averment, "he well knowing the same to be false." This the Court of Appeals holds, is a sufficient charge of the commission of the crime to sustain a conviction under the Penal Code; but as

THE
HE following decisions were handed down Tuesday, Justice Fish, in the Oyer and Terminer, charged the
Oct. 18, 1887:

Judgment reversed, new trial granted, costs to abide event-Reuben H. Farnham, supervisor, etc., appellant, v. Charles B. Benedict, respondent.-Judgments of General and Special Terms reversed, and case remanded to Special Term to be further considered, after notice to attorney-general, without costs to either party-George W. Johnson v. Henry Spier. -Judgment reversed, new trial granted, costs to abide event-Theresa Lynch, respondent, v. Twelfth National Bank of Jersey City, appellant.-Judgment

jury in substance that they must first ascertain from the evidence whether Clements knowingly and corruptly made the false affidavit, and that if they found that he did, the evidence of previous good character did not avail him. This court holds invariably that evidence of previous good character always goes to show probability concerning the commission of the crime charged. Consequently they order a new trial of the issues contained in the indictment. The decision is substantially a victory for the people against the bank wreckers.

speech-making on the evening in question. That

The Albany Law
Law Journal. Lingg manufactured bombs of peculiar form and

A

ALBANY, OCTOBER 29, 1887.

CURRENT TOPICS.

PERUSAL of the opinion of the Illinois Supreme Court in the anarchists' case ought to convince any lawyer that the defendants had a fair trial, as free from error as possible in judicial proceedings, and that they are all guilty, and richly deserve extirpation. A more depraved set of scoundrels never infested the earth, and society will be safer for their permanent absence. "Throttle the law or the law will throttle you," said one of them in his incendiary speeches. So it will, if there is any justice under the heavens, and any backbone in society. "Ruhe – peace - Iwas the preconcerted word published in their newspaper as the signal for the uprising. Society will get no peace until it makes a few examples of these socialistic fire

brands, haters of mankind, spoilers of property, defiers of God and judgment. We recommend to every lawyer to read Judge Magruder's opinion. A more masterly and convincing one was never uttered. It should always stand as a monument to his intellectual powers. It is marked also by perfect calmness and impartiality, stating the pros and cons of the voluminous and sometimes conflicting evidence with admirable clearness and absence of bias. The evidence against all the prisoners but two is direct and overwhelming, and as to those two it is sufficient to justify the finding of the jury: The prisoners are all of German birth or descent but two, who are respectively English and American. The indictment was for an executed conspiracy to murder Policeman Degan. The bomb which killed him destroyed six other policemen and wounded sixty more. The evidence showed that Spies

Schwab, Parsons, Engel and Fielden, by numerous

speeches and writings of the most bloodthirsty de

scription, counselled the workingmen to arm for a conflict with the police and militia, and that they (excepting Engel and Fischer) were engaged in handling bombs and experimenting with dynamite. That Engel and Fischer organized a conspiracy to throw bombs into the police stations and shoot down the escaping policemen, as a preliminary to a general attack on capitalists and property. That Spies continually incited the attack through the columns of his newspaper, the Arbeiter Zeitung, with the co-operation of Schwab, an editorial writer for his newspaper, and that the two composed and published bloodthirsty circulars, and announced the time for striking by publishing in the newspaper the agreed signal "Ruhe " on the evening in question. That Fielden, the Englishman, delivered an incendiary speech in the Haymarket, the scene of the conflict, on the evening in question, and fired several shots at the police. That Parsons, the American, played a similar part as to VOL. 36 No. 18.

materials, like that which did the work, and distributed them among the socialists on the evening of the murder. That Spies not only made an incendiary speech on that occasion, but actually handed the bomb to Schnaubelt and lighted it, after which Schnaubelt threw it. (This last evidence was strongly controverted, as was also that of Fielden's shooting, but there was amply enough to justify Neebe was a socialist, stockholder in the newspathe finding of direct action as to both.) That per, and next to Spies and Schwab, the most active in its management; active in preparing for the movements counselled, presiding at meetings where the use of dynamite against the police was urged, distributing incendiary circulars on the night before the attack in question, his house full of arms and a

red flag in it. The whole case shows that the socialists had been armed, drilled and instructed in the manufacture and use of dynamite-bombs for many months, and that a preconcerted attack on the police was fixed for about May 1, 1886. On Monday, May 3d, the police broke up a strike riot and killed one of the strikers, and this precipitated dience to the publication of the signal the attack in question on the next evening, in obe"Ruhe." The evidence also showed that some of the policemen were wounded by pistol shots. The evidence against Parsons and Neebe is only somewhat less direct as to active participancy on the night of the murder; that they counselled such an attack, Par

sons on the scene, and Neebe at other times and

places, there can be no sort of question. In deferfixed at imprisonment for fifteen years. We think ence to the doubt about Neebe his punishment is every good American citizen ought to read this case, easily accessible in a separate number of the Northeastern Reporter, published at St. Paul, for Then the community will wake twenty-five cents. up to a realization of what a volcano they have

been sleeping on; what a viper this free and hospitable land has taken to its hearth. But we are prepared for the usual chorus of sentimental priests for a band of lawless Thugs who would despise and whining women begging for pardon or mercy

them for their softness and cut their throats for

their money. The might of Law for Dynamite!

say we.

"Once more unto the breach, dear friends!" The Columbia Law Times, the new organ of Professor Dwight and his excellent law school, is on our table in its first number. Its contents are fairly interesting. An article on "The Cy Pres Doctrine as affecting the construction of Deeds and Wills" may usefully be read in connection with Mr. McGrath's monograph noticed in another column, especially as the writer cites authorities from more States than will be found in Mr. McGrath's book. The verses, "A Woman having a Settlement," etc., quoted in this number, are rather mouldy, but if to be quoted, why omit the chorus of "Puisne

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We have received a copy of a bill to be proposed to Congress for the regulation of the practice in extradition cases between the States, and providing a uniform system. This is in pursuance of the action of the conference of governors last summer. The bill contains eleven sections, and forms of demand, appointment of agent to receive the fugitive, warrant, and indorsement on appointment. It denounces severe penalties against any one who shall compel or persuade any fugitive to return except as herein provided, and prohibits arrest on other charges until the lapse of a reasonable time for his return whence he came. It also provides against the use of these proceedings for the mere collection of debts. The bill seems to us very well considered clear, simple and comprehensive. The adoption of this or of something similar will effectuate and simplify such proceedings, and greatly promote justice.

A lady we suppose writes us that she has a wondrously cheap and effective process for gold and silver plating, by which she has plated all the neighbors' things, and in nineteen days has cleared $97.65 more than a great many lawyers could earn in the same time by plating their brass. Her brother, working two days longer, cleared $90.50, but then he plated a set of band horns. She continues: "I am making a geographical crazy quilt, and desire to have as many different places as possible represented. So to any of your readers who will send me a piece of silk or satin I will send complete directions for making a plater like mine that will plate gold or silver." The cost of said plater is only $4.00. This lady hopes we will print her letter, and would like us to represent a piece in her quilt. We thus conspicuously draw attention to her liberal offer, and we hope the wives of our subscribers will respond. But for ourselves we cannot consent to become a principal to the insane comfortable; we draw the line after accessory. address is H. Griffith, Sago, Ohio.

The

The schoolmaster seems to be " "abroad 99 from Vermont. In Rowell v. School District, 59 Vt. 658, it was held that there is an implied promise on the part of a school district to pay a de facto committee for boarding a teacher, and for labor and material furnished it, when though not legally elected, he acted in good faith as a committee, and the district

stood by in silence and availed itself of the benefit; and this is so, although the district had voted to have the teacher "board arround."

IN

NOTES OF CASES.

N Rommel v. Schambacher, Pennsylvania Supreme Court, October 10, 1887, a novel case was decided. Gordon, J., said: "From the evidence in this case we gather the following facts: On the evening of the 9th of August, 1884, the plaintiff, William Rommel, a minor, entered the tavern of the defendant, Jacob Schambacher, and there found one Edward Flanagan. They both became intoxicated on liquor furnished them by Schambacher. Whilst the plaintiff was standing on the outside of the bar, engaged in conversation with the defendant, who was in the inside thereof, Flanagan pinned a piece of paper to Rommel's back and set it on fire. The consequence was that Rommel's clothes were soon in flames, and before they could be extinguished he was very badly injured. He brought the present suit to recover damages from the defendant for the injury thus sustained. The court below adjudged the facts as stated above to be insufficient to sustain the plaintiff's case, and directed a nonsuit. In this we think it made a mistake. There is no doubt that the defendant, from the position he occupied, had a full view of the room outside of the bar, and did see, or might have seen, all that was going on in it. If, in fact, he did see Flanagan setting fire to the plaintiff, and did not interfere to protect his guest from so flagrant an outrage, his responsibility for the consequences is undoubted. If, on the other hand, he was guilty of making Flanagan drunk, or if he came there drunk, and Schambacher knew that fact, he was bound to see that he did no injury to his customers. All this is a plain matter of common law and good sense, and does not depend on the act of 1854, or any other statute. Where one enters a saloon or tavern, opened for the entertainment of the public, the proprietor is bound to see that he is properly protected from the assaults or insults, as well as of those who are in his employ, as of the drunken and vicious men whom he may choose to harbor. To illustrate the principle here stated we need go no farther than the case of the Pittsburgh and Connellsville R Co. v. Pillow, 76 Penn. St. 510. In the case cited a drunken row occurred on board one of defendant's cars, and during the quarrel a bottle was broken and a piece of the glass struck the plaintiff, a peaceful passenger, in the eye and put it out; held that the company was responsible for the injury thus done. 'The plaintiff lost his eye through the quarrel of a couple of drunken men, who should not have been permitted aboard the cars, or if so permitted, should have been so guarded or separated from the sober and orderly part of the passengers that no injury could have resulted from their brawls.' If then a railroad company is liable for the conduct of drunken men who

may chance to board its cars, much more the tavern-keeper, who not only permits drunken men about his premises, but furnishes liquor to make them drunk, and who is thus instrumental in fitting them for the accomplishment of such an insane and brutal trick as that disclosed by the evidence of the case in hand. The judgment of the court below is now reversed and a new venire granted."

In Osborne v. City of Detroit, United States Circuit Court, E. D. Michigan, Oct. 25, 1886, 32 Fed. Rep. 36, an action for injuries occasioned by a defective sidewalk, where the plaintiff claimed to be paralyzed by the fall, it was held not error to permit her medical attendant, who had not been sworn, to demonstate her loss of feeling to the jury by thrusting a pin into the side plaintiff claimed to be paralyzed. The court said: "Objection was made to this upon the ground that the doctor was not sworn as to the instrument he was using, nor was the plaintiff sworn to behave naturally while she was being experimented upon. It is argued that both the doctor and plaintiff might have wholly deceived the court and jury without laying themselves open to a charge of perjury, and that plaintiff was not even asked to swear whether the instrument hurt her when it was used on the left side, or did not hurt her when used on the right side; in short, that there was no sworn testimony or evidence in the whole performance, and no practical way of detecting any trickery which might have been practiced. We know however of no oath which could be administered to the doctor or the witness touching this exhibition. So far as we are aware, the law recognizes no oaths to be administered upon the witness stand except the ordinary oath to tell the truth, or to interpret correctly from one language to another. The pin by which the experiment was performed was exhibited to the jury. There was nothing which tended to show trickery on the part of the doctor in failing to insert the pin as he was requested to do, nor was there any cross-examination attempted from the witness upon this point. Counsel were certainly at liberty to examine the pin and to ascertain whether in fact it was inserted in the flesh, and having failed to exercise this privilege, it is now too late to raise the objection that the exhibition was incompetent. It is certainly competent for the plaintiff to appear before the jury, and if she had lost an arm or a leg by reason of the accident, they could hardly fail to notice it. By parity of reasoning, it would seem that she was at liberty to exhibit her wounds if she chose to do so, as is frequently the case where an ankle has been sprained or broken, a wrist fractured, or any maiming has occurred. I know of no objection to her showing the extent of the paralysis which had supervened by reason of the accident, and evidence that her right side was insensible to pain certainly tended to show this paralyzed condition. In criminal cases it has been doubted whether the defendant could

be compelled to make profert of his person, and thus, as it were, make evidence against himself. The authorities upon this subject are collated in 15 Cent. Law J. 2, and are not unequally divided, but we know of no civil case where the injured person has not been permitted to exhibit his wounds to the jury. In Schroeder v. Railroad Co., 47 Iowa, 375, it was held not only that the plaintiff would be permitted, in actions for personal injuries, to ex hibit his wounds or injuries to the jury, but that he might be required by the court, upon proper application therefor by the defendant, to submit his person to an examination for the purpose of ascertaining the extent of such injuries, and upon refusal might be treated as in contempt. See also Mulhado v. Railroad Co., 30 N. Y. 370." See note, 33 Am. Rep. 540.

In Forwood v. Forwood, Kentucky Court of Appeals, Oct. 1, 1887, it was held that in the absence of fraud a woman who is sui juris, may, by ante-nuptial contract, relinquish her right of dower and distributive share in her intended husband's estate; and the marriage of the parties is a sufficient con· sideration to sustain such contract. The court said: "There is a class of cases which hold that a woman cannot by ante-nuptial contract legally dispose of her right to dower in her intended husband's lands, because, first, she cannot contract away or release a right before it has accrued; second, that no right or title to a freehold could be barred by a collateral satisfaction. This class of cases therefore holds that such a contract is not enforceable at law because it has no legal existence; but it is an executory, equitable agreement, which a court of equity will enforce a specific performance of as against the widow, provided the agreement is reasonable, fair, and upon an adequate consideration; but if it appears that the agreement is unreasonable, unconscientious, and without an adequate consideration, a court of equity will not enforce a specific performance of it. Such are the cases relied upon by the counsel for the appellee. There is another class of cases which hold that while such a contract is not binding at law, because the parties cannot contract away or release a right that does not exist, yet its enforcement does not rest upon the doctrine of specific performance, but the contract constitutes an equitable bar to the widow's right of dower. This class of cases does not regard an adequate consideration as essential to uphold the contract; any valuable consideration is deemed sufficient. The question involved in both of these classes of cases was that of a jointure or settlement upon the intended wife in lieu of her dower or distributable share in her intended husband's estate. There is another class of cases that hold (and with which we agree) that an ante-nuptial contract is a legal contract, the consideration of which may be, first, that of the intended marriage alone; or second, that of a jointure or settlement upon the intended wife in lieu of her dower or distributable share in her intended husband's estate, and that either of

these considerations, if both parties are sui juris, is sufficient to uphold the ante-nuptial agreement on the part of the woman to relinquish her right of dower and distributable share in her intended husband's estate. By such a contract the parties do not in fact contract away a right which does not exist; but they do what is done every day, namely, provide a rule by agreement to be applied to their property rights in view of the relation that they are about to enter into, instead of the rule that the law would furnish in the absence of the agreement. See 1 Bish. Mar. Wom., §§ 418, 425, 427. Also, this court virtually held in the case of Crostwaight v. Hutchinson, 2 Bibb, 408, that an ante-nuptial con tract which was not to take effect until after coverture was a legal contract. To the same effect is the case of Mitchel's Adm'r v. Mitchel, 4 B. Mon. 380. We have seen that marriage alone is a sufficient consideration to uphold an ante-nuptial marriage contract. Bishop (1st vol. on Married Women, 775) says: 'To say therefore that it is to be regarded, when it is the inducement to any contract, as a valuable consideration, is to utter the truth, yet only a part of the truth. What this utterance lacks is in our books not infrequently expressed by the adjective highest, as marriage is the highest consideration known to the law.' In the case of Naill v. Maurer, 25 Md. 538, the court says: "The contract was in contemplation of marriage, and as clearly appears, was intended to bar or prevent the acquisition thereby of any right by either party in the property of the other, in order that the marriage proposed might take place. The main object in view was the consummation of the marriage, and it was to that end that the contract was executed. It seems almost impossible to view the contract as founded on any other consideration, although the reciprocal character of the stipulations might be held to constitute one sufficient to make the contract binding and effective. But whether the marriage they proposed be expressly mentioned as a consideration or not, we think it must be regarded as such within the purview and meaning of the contract. The consideration of marriage is not only regarded as sufficient to uphold an ante-nuptial contract, but the consideration may be regarded by the woman as of inestimable value to her -a value that would by far outweigh her property rights in the estate of her intended husband. The appellee's marriage contract with her husband, William H. Forwood, therefore must stand, unless he overreached and defrauded her in the making of it." See Barth v. Lynes, 118 Ill. 374; S. C., 59 Am. Rep. 374, to the same effect.

WILL-DEVISE TO BASTARD CHILDREN PUBLIC POLICY.

GEORGIA SUPREME COURT, JUNE 13, 1887.

SMITH V. DU BOSE.

A testator, a white man, who had cohabited with a colored woman, devised all his property to the bastard child of

A

such cohabitation, and her children, of whom E., a friend of the testator, was the putative father. It did not appear that the intercourse between E. and the bastard daughter of testator was carried on in consequence of any agreenient or promise on the testator's part to make provision for such child, and the children born in consequence of such intercourse, and the will was in fact made after the death of E. Held, that the will was not void on the ground of public policy.

PPEAL from Superior Court, Hancock county; Lumpkin, J.

N. J. Hammond, Hill & Harris, Bacon & Rutherford and R. W. Patterson, for plaintiffs in error.

C. W. Du Bose, W. M. & M. P. Reese, J. T. Jordan, and Reese & Little, contra.

HALL, J. In response to a notice served by the executors of David Dickson, late of Hancock county, deceased, on his heirs and distributees, to show cause why this will should not be proved in solemn form, a portion of them appeared and caveated the Probate Court on the grounds: (1) That the will was procured by the undue influence of Amanda Dickson and her mother, Julia Dickson, or one of them. (2) That it was procured by the fraud of said Julia and Amanda, in inducing said David Dickson to believe that said Amanda was his child, when she was not; and that her sons were the sons of Eubanks, when they were not. (3) That the whole paper is a scheme to carry into effect the last clauses of item 4, all of the seventh item, and all of the ninth item, relating to said Amanda and her said children, the alleged natural sons of Eubanks, which items are inconsistent with the laws, or contrary to the policy of the State, and therefore the whole paper is void as a will for this and for the reasons stated in the caveat and this amendment; that if the whole is not void, said parts are void for said reason. The other reasons stated in the original caveat of file were that the paper was not David Dickson's will; that he had not testamentary capacity to make a will; that it was made under the undue influence and improper control exercised over him by Amanda Dickson; that it was made under a mistake as to his heirs at law, and was not such a will as he would have made had he known the facts; because the paper was in its scheme and nature and tendency illegal and immoral, and contrary to the policy of the State and of the law, and destructive and subversive of the interests and welfare of society.

The will was admitted to probate by the Court of Ordinary, and from this judgment the caveators appealed. On the appeal trial, all questions as to the capacity of the testator to make a will was abandoned. The other grounds of the caveat were those relied on to defeat the probate of the will. On this trial, as well as that before the Ordinary, the will was sustained, and a judgment was taken admitting it to probate and record.

The material questions discussed before this court were: (1) That the will was the result of the undue influence exercised by Amanda Dickson, one of the principal beneficiaries under its provisions, and her mother, Julia Dickson, upon the testator. (2) That it resulted from false and fraudulent representations made by Amanda and Julia, not only as to the paternity of Amanda, but of Amanda's children, it being insisted that Amanda was not the child of the testator, and that her sons, Julian H. and Charles G., were not the natural sons of the testator's deceased friend, Charles H. Eubanks. (3) That in consequence of these facts, the will embodied a scheme of Amanda and Julia to carry out the same by virtue of the items and provisions in favor of Amanda and her children;

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