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ployment in interstate commerce. He was in fendant. The charge of the Court fairly subthe act of getting on his employer's shuttle mitted all questions in the case to the jury, train, furnished by the railroad company to and the verdict is not without evidence to him, and other employees, exclusively, for such support it. purpose and as part of his employment. He The judgment of the District Court is had partially gotten on this train,' and was affirmed. thrown or fell therefrom, thus causing his injuries. The sole purpose he had in what he NOTE—Employee Going to Work As Enwas then doing was to reach the engine upon

gaged in Interstate Commerce.—The real queswhich he was engaged as fireman for the

tion involved in this subject is whether or not

the employee, on his way to work, is in the handling of interstate trains. It seems to us

course of his employment. If he is, and that that he was for all practical purposes on the employment is in interstate commerce, then be premises of the company engaged in going to is engaged in interstate commerce. such work, using a means the right to use

An engineer crossing yard tracks to take which arose solely from his employment, and

charge of an engine for the purpose of bringing

in an interstate train. Held, that he was in that at the time his relation to his employer

line of his duty and in interstate commerce. was that of an employee engaged in interstate Huxoll v. Union Pac. R. Co., Neb., 155 N. W. commerce. Philadelphia Co. v. Tucker, 35 App.

900. D. C. 123, L. R. A. 1915C, 39, affirmed 220 U.

A conductor walking along a track to the S. 608, 31 Sup. Ct. 725, 55 L. Ed. 607; Erie

caboose of his train, which was hauling inter

state goods, was engaged in interstate comRailroad Co. v. Winfield, 244 U. S. 170, 173, 37 merce. Neil v. Idaho & W. N. R. R., 22 Idaho Sup. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 74, 125 Pac. 331. 662.

A brakeman on his way through the freight (2) 2. Error is also assigned upon the

yards to his train, was in course of his employment in interstate commerce.

Illinois charge of the Court, stating to the jury that Cent. R. Co. v. Nelson, 203 Fed. 956, 122 C. under the federal Employers' Liability Act, if C. A. 258. plaintiff was negligent in boarding the train,

Other similar cases are: Philadelphia, B. &

W. R. Co. v. Tucker, 35 App. Cas. (D. C.) 123, such negligence would not defeat his ability

affd. 220 U. S. 608, 55 L. Ed. 607; Knowles 5. to recover, but would go only to the measure

New York, N. H. & H. R. Co., 164 App. Div. of damages; the grounds of error alleged being (N. Y.) 711; Lamphere v. Oregon R. & N. Co., that there was no evidence to show that the 196 Fed. 336, 116 C. C. A. 156, 47 L. R. A. relation of inaster and servant existed at the

(N. S.) 1; Gee v. Lehigh Valley R. Co., 163 time of the accident, or that the plaintiff was

App. Div. (N. Y.) 274; Easter V. Virginian R.

Co., W. Va., 86 $. E. 37, 11 N. C. CA. 101. then engaged in interstate commerce. We think that there was sufficient evidence to show that at the time of the accident the re

FALSE PRETENSES-POST-DATED CHECK lation of master and servant had existed between the parties, and for the reasons above

STATE v. BARONE given that the plaintiff was engaged in interstate commerce, and that the charge of the

118 Atl. 779 Court complained of was not erroneous. (3) 3. Complaint is made that there was a

Supreme Court of New Jersey, Nov. 20, 1922 variance between the allegations of plaintiff's petition and the evidence of negligence offered

Criminal Procedure Act, making it a misde We do not find that any such objection was

meanor to deliver a check where the maker

knows he has not sufficient funds in the bank made to the introduction of evidence sub- for its payment, contemplates the giving of a mitted in support of the declaration, or that check immediately payable, but not a postany alleged variance between the proof offered

dated check, unless maker made promises con: and the allegations of the petition was called

cerning his deposit other than those implied

by mere giving of the check. to the attention of the Court, or any action of the Court on such alleged variance requested. William A. Lord, of Orange, for plaintiff in For this reason we do not think the assign

error. ment of error could be now considered. But,

Azariah M. Beekman, Prosecutor of the Pleas, even if it should, we do not find any such

of Somerville, for the State. variance as is complained of.

GUMMERE, C. J. [1, 2] The writ of error (4) There was sufficient evidence to war- in this case brings up a conviction had against rant the Court in submitting the question of the defendant in the Somerset quarter sessions negligence in this case to the jury, and in re- upon an indictment which charged that he, using to direct a verdict in favor of the de- on the 5th day of May, 1921, with intent to

defraud, did make and deliver to the order of Halsey's Garage a check for $150, bearing date on the said 5th day of May, knowing at the time of the making and delivery of the check that he had not sufficient funds in or credit with the bank on which it was drawn with which to pay the check upon its presentation. The indictment charges the statutory offense declared in section 1 of the supplement to our Criminal Procedure Act, passed April 10, 1919 (P. L. p. 133) which provides that

"Any person who, with intent to defraud, shall make or draw, or utter or deliver, any check, draft or order for the payment of money upon any bank or other depositary, knowing at the time of such making, drawing uttering or delivering, that the maker, or drawer, has not sufficient funds in, or credit with, such bank or other depositary for the payment of such check, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor."

The legislative purpose to be gathered from the language of this section of the statute seems to us to be plain, and that is to make criminal the fraudulent giving of a check which is immediately payable; the maker knowing when he delivers it that he has not sufficient finds in the bank upon which it is drawn out of which it can be paid. And this purpose is made clear-if the first section of the supplement leaves it at all in doubt-by section 2 thereof, which declareg that, as against the maker of the check, the refusal of payment by the bank shall be prima facie evidence of intent to defraud.

The charge laid in the indictment was that made criminal by the statute, as we construe it, viz., the giving of a check immediately payable, drawn upon a bank in which the maker had not sufficient funds on deposit with which to meet it. The proof's submitted on the part of the state, however, conspicuously failed to support that charge. The situation disclosed by the evidence was that on the 1st day of May, 1921, the Halsey Garage sold either to the defendant or a friend of his (the identity of the purchaser being left somewhat in doubt) a second-hand automobile for $600, that the car was delivered to the purchaser at the time of the sale, and that in part payment of the purchase price the defendant gave to the Halsey Garage his check for $150, post-dated on the 5th of May, because of the fact that the defendant then had no funds in the bank upon which it was drawn, and that he informed the manager of the Halsey Garage of this fact when the check was delivered. No attempt was made to prove that at the time of the delivery of the check any promise or representa

tion was made by the defendant other than the mere giving of the check, that on the day of its date he would have funas on deposit in the bank sufficient in amount to satisfy it; nor was there even a suggestion in the evidence that the payee had been induced to accept the check by reason of any express representation with relation to it which was made by the defendant.

From this collation of the facts submitted it is clear that the transaction proved is essentially variant from that laid in the indictment, and it would seem that this alone is sufficient to set aside the conviction now before us; for, as was said in State v. Riley, 65 N. J. Law, 624, 48 Atl. 536: "Evidence not within the allegations of the indictment is incompetent to induce a conviction.” But, as this phase of the case has not been considered by counsel either for the defense or for the state, we prefer to base our conclusion in this case upon the determination of the question whether the mere fact that a person gives for a valuable consideration a post-dated check upon a bank in which he has no deposit with which to meet it when the due date arrives brings him within the condemnation of the statute, even if our construction thereof be too narrow. We think that it does not. The giving of a check presently payable is an implied representation by the drawer that he then has funds on deposit in the bank upon which it is drawn sufficient to meet it upon its presentation for payment.

The giving of a post-dated check carries with it no such implication, but rather the contrary. It is a mere promise to discharge a present obligation on a future day. And the fact of its non-payment when the due date arrives—without more—is no more evidence that it was given with fraudulent intent than is the permitting of a promissory note to go to protest proof of such intent, or the failure to pay the purchase price of goods sold on credit, standing alone, evidence of fraud in the making of the contract. Fraud is never presumed, but must always be proved, and an intent to defraud cannot be predicated solely upon the mere non-performance of a future promise. The citation of authority in support of such a proposition is unnecessary. plication under facts similar to those presented in the present case led to a reversal of a conviction in Brown v. State, 166 Ind. 85, 76 N. E. 881, 8 Ann. Cas. 1068, and in State v. Winter, 98 S. C. 294, 82 S. E. 419.

For the reason indicated, we consider that the application of the defendant for the direction of a verdict at the close of the state's case should have been granted, and that its refusal requires a reversal of the conviction.

Its ap

.

NOTE-Giving Worthless Post-Dated Check as Amounting to False Pretense.-Under the Indiana Statute a false pretense cannot be predicated upon the non-performance of a future promise, or the happening of a future event, and therefore the giving of a worthless post-dated and post-payable check is not a false pretense. Brown v. State, 166 Ind. 85, 76 N. E. 881, 8 Ann. Cas. 1068.

Giving a post-dated check at a time when the drawer has no funds to meet it, is not a violation of a statute making it a misdemeanor to draw a check when the drawer has no funds on deposit to meet it. A post-dated check has only the effect of a promise to pay at such future time. State v. Winter, 98 S. C. 294, 82 S. E. 419.

the lawyer, whose good faith is thus attacked, properly disclose to counsel for the defendant the communications which he actually made to his client, and which are not those of which his client falsely accuses him as the basis of his suit?

ANSWER No. 218 In the opinion of the Committee, the client, by making the charges against the lawyer, waives the privilege of the otherwise confidential communication; and therefore it is of the opinion that such disclosure may be made.

ITEMS OF PROFESSIONAL INTEREST

RECENT DECISIONS BY THE NEW YORK

COUNTY LAWYERS ASSOCIATION
COMMITTEE ON PROFESSIONAL

ETHICS

QUESTION No. 219 In the opinion of the Committee, will it offend professional ethics for a lawyer to write his clients and friends, communicating to them the necessity and advantages of will making?

ANSWER No. 219 In the opinion of the Committee, any general communication of the kind would be improper as a solicitation of business. In special cases such a letter might be justified by personal relations or circumstances.

MEETING OF U. S. CHAMBER OF COM

MERCE IN NEW YORK

QUESTION No. 217 In the opinion of the Committee may or should a lawyer, who has secured a postponement of legal proceedings, on the ground that he is unable to ascertain the present whereabouts of his client, subsequently disclose to counsel for the adverse party, or to the Court, but without the consent of his client, either that he has learned the present address of his client, or what such address is, the client having communicated such knowledge to the lawyer in confidence?

ANSWER No. 217 In the opinion of the Committee, a client's confidence (with certain exceptions such as the proposed commission of a crime) may not properly be disclosed by the lawyer without the client's consent, but the lawyer, having obtained a favor of indulgence from the Court by asserted ignorance of his client's whereabouts, cannot in good morals, after learning his client's address, conceal the fact that he knows it and continue to benefit by his previously asserted and presumably continued ignorance.

Therefore, where such a situation of a continuing benefit exists, he should advise counsel for the adverse party, and in a proper case, the Court, that he now knows his client's whereabouts, but that it has been disclosed to him in confidence.

"Transportation in All Its Phases in the United States" and "Europe and Europe's Affairs" will be the two major topics considered at the eleventh annual meeting of the Chamber of Commerce of the United States in New York, May 7 to 10.

Because of the interest of business men through the country in the two general subjects it is expected that the convention will be one of the largest ever held by the Chamber. Representative business organizations in every State in the Union have been asked to send delegates, and an attendance of from 4,000 to 5,000 business men is looked for.

DELAWARE'S NEW STATE BAR

ASSOCIATION

The lawyers of Delaware have recently formed a State Bar Association. Heretofore there has been a County Bar Association in each of the three counties-Sussex, Kent and New Castle, and it was only recently that it was decided to have in addition a State Association. The officers of the new Association

President, Josiah Marvel, Wilmington; First Vice-President, John Biggs, Wilmington: Second Vice-President, Henry Ridgely, Dover; Third Vice-President, Charles W. Cullen, Georgetown; Secretary, Leonard E. Wales, Wilmington; Treasurer, Thomas C. Frame, Jr., Dover.

are:

QUESTION 218 When a client brings suit for rescission of a contract made by him with a third person upon the ground that his lawyer deceived him and thereby induced him to make the contract, may

DIGEST.

Digest of Important Opinions of the State Courts

of Last Resort and of the Federal Courts.

a mortgage of bankrupt corporation, without first restoring the money advanced thereon, where the mortgage was executed by its president, without authority from directors or stockholders, when the corporation was hopelessly insolvent, and the proceeds, after deducting a usurious discount, were so manipulated as to inure to the benefit of the president, instead of to that of the company, and the mortgagee was put on inquiry.-Maryland Finance Corporation v. Duvall, U. S. C. C. A., 284 Fed. 764.

Copy of Opinion in any caso referred to in this Digest may bo procured by sending 25 cents to us

or to the West Pub. Co., St. Paul, Minn.

6. -Exempt.-"Farming" and "tillage of the soil,' as used in Bankruptcy Act, § 4b (Comp. st. $ 9588), are synonymous.-In Re Brown, U. S. D. C., 284 Fed. 899.

7.- Exemptions.-Wages due a bankrupt, which are exempt under the laws of the state, and are claimed as exempt by the bankrupt, &re no part of the bankrupt estate, and the court of bankruptcy is without jurisdiction to determine the validity of an assignment of an interest therein.Birmingham Finance Co. v. Chisolm, U. S. C. C. A., 284 Fed. 840.

Alabama... California Colorado Florida Georgia Indiana Towa Kansas Kentucky Louisiana Massachusetts Minnesota Mississippi Missouri. Montana Nebraska New Jersey New York Oklahoma Pennsylvania Rhode Island South Carolina Tennessee Texas U, S. C. C. A U. S. D. C.. U. S. S. C. Washington Wisconsin Wyoming

.19, 30, 31, 32, 44, 50, 58, 60

.43

.25 .17, 24 .35, 36

.....15 ...14, 54

29 .22, 42

.53 ..1, 12, 49

.33

.51 ..13, 37, 38, 45, 48, 55

...26, 52, 59 .10, 18

47 ..16, 20, 28, 56

39, 62

.63 ....4, 41

23

.21 .34, 40, 46 ....5, 7, 8, 27

..6

.9 ..11, 61 ..2, 57

3

8. -Mortgages.-A mortgage given by bankrupt more than six months prior to bankruptcy, to secure a prior indebtedness to a bank, which was extended for less than a year, where it was taken by the bank in good faith, and the value of the property was less than the debt, held valid, ana not rendered fraudulent by the knowledge of the bank that bankrupt was also giving a mortgage on other property to a trustee to secure his other creditors.-Lane v. Eggleston, U. S. C. C. A., 284 Fed. 743.

9. -Proof of Claim.-Under Bankruptcy Act July 1, 1898, § 17a (3), as amended by Act Feb. 5, 1903, § 5 (Comp. St. § 9601) providing that a discharge shall release the bankrupt from all his provable debts, except such as have not been duly scheduled, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceeding in bankruptcy, the burden is on the creditor to prove his debt was not scheduled; but, having brought himselt within the exception, the burden is on the debtor to prove the creditor had knowledge of the bankruptcy proceeding, so as to be within the exception to the exception.-Hill v. Smith, U. S. S. C., 43 Sup. Ct., 219.

10. Banks and Banking-Acceptance of Check.Under our Negotiable Instruments Law (Comp. St. 1922, § 4742), requiring acceptances to be in writing, an unauthorized payment of a check by the drawee bank on a forged indorsement will not constitute an acceptance.-Gasper v. Security State Bank, Neb., 191 N. W. 654.

1. Automobiles-Allegation Necessary. That defendant was the owner of the truck which injured plaintiff, and that the driver was in his general employment, was not sufficient to show that the driver was acting within the scope of his employment at the time of the accident.-Porcino V. De Stefano, Mass., 137 N. E. 664.

2.-Driver Not Chargeable With Knowledge.Where defendant loaded an automobile truck with boards in an alley, and allowed one of several children who were in proximity to the truck to ride in the seat with him, and started the truck with two other children on the running board in a position of comparative safety, and without knowing that a 342-year-old child also had climbed to an insecure position on the truck from which he fell and was injured, the driver was not chargeable with knowledge of the presence of such child.Routt v. Look, Wisc., 191 N. W. 557.

3. -Liability of Auto Driver.- Where plaintiff agreed to rent property from defendant who promised to turn over the property and invited plaintiff to accompany him in his automobile, plaintiff was merely a guest, and was not engaged with the defendant in a joint enterprise, and could recover for injuries caused by defendant's negligence, under the rule that the driver of an automobile is liable for negligent injuries to an invited guest. Ryan v. Snyder, Wyo., 211 Pac. 482.

-Negligence.-Evidence that defendant was driving his automobile at a proper speed on the proper side of the street, when a child suddenly started across the street from his left and ran into his automobile, held not to warrant a finding he was negligent, though he did not see the child before she was struck, so that a non-suit was proper. -Razza v. Williams, R. I., 119 Atl. 318.

5. Bankruptcy-Contest of Mortgage.--It was not error for the bankruptcy court to allow contest of

11. -Liability of Stockholders.-Within Const. art. 12, § 11, and Rem. Comp. St. 3242, making every stockholder of any banking corporation liable for its debts to the extent of the par value of his stock, the stockholders referred to are those who own stock in the bank at the time of its insolvency:-Duke v. Johnson, Wash., 211 Pac. 710.

12. Stakeholder.- Where a buyer placed funds with a trust company for the payment of a draft, and the trust company thereupon promised the seller that its draft would be paid, the contention that the seller could not claim the money as a trust fund, because mingled with the general assets of the bank, could not be raised by the buyer, where a second trust company assuming the first's obligations did not raise the question, but assumed the position of a mere stakeholder.-John McClure Estate v. Fidelity Trust Co., Mass., 137 N. E. 701.

13.- Trust Funds.—The rule that a bank must return the identical thing specially deposited does not require it to return the identical money, but requires a return of money in kind, and means that such money, though mingled with the general fund of the bank, is a trust fund to be enforced against the funds of an insolvent bank.-Schulz v. Bank of Harrisonville, Mo., 246 S. W. 614.

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15. Carriers-Release of Liability.-A contract for hauling a circus train from place to place on a time schedule suitable to a show company's own peculiar purposes, wherein the railway company was released from liability for the negligence of the carrier's employees, is valid.—Dierickx v. Davis, Ind., 137 N. E. 685.

16. Carriers of Merchandise-Agency.-Where defendant, pursuant to a contract with the government, transported merchandise, invoiced to plaintiff and requiring government appraisal, from the pjer to the appraisal stores, defendant was liable for the truck driver's negligence under the doctrine of respondeat superior, as defendant

not public agent.-Thompson v. P. H. Keahon, Inc., N. Y., 197 N. Y. S. 686.

was

a

sue

17. Carriers of Passengers-Cause of Action.Where a passenger on a street car, in attempting to leave the car at a place where the car usually stops for the purpose of allowing passengers to descend from it after the car has come to a full stop, falls and injures herself, the mere fact of the injury does not cast upon the company the presumption that it either caused the injury or that the injury was the result of any negligence upon the part of the company or its agents.Tampa Electric Co. v. Soule, Fla., 94 So. 692.

18. -Liability.--The rule is not held to be an inflexible one, not subject to exceptions in the case of children or in the case of persons not apparently possessed of normal faculties for protecting themselves, or where a person of normal faculties actually is known by the employee to be about to incur a danger in alighting of which the employee knows the passenger is unaware.--Jacobson v. Omaha & Council Bluffs St. Ry. Co., Neb., 191 N. W. 327.

19. -Negligence.--It was not negligent toward a boarding passenger, who had reached the vestibule and was hanging onto an upright iron rod, to start the car, where there was no violent or unusual jerk.-Alabama Power Co. v. Carroll, Ala., 94 So. 743.

20. Commerce-Engaged in Interstate Commerce.--That defendant was operating a ferry in interstate commerce, and employed plaintiff's intestate to work in the boiler room at the terminus of the ferry's route, from which steam was supplied for heating the ferry house, and hot water was furnished for the ferryboats, and that he was killed by being caught between the apron and the dock when a ferryboat entered the slip, warrants a finding that he was engaged in carrying on interstate commerce.--Hiser v. Davis, N. Y., 137 N. E. 596.

21.--Interstate Commerce. Contracts made within the state for the sale of coal, which were breached by the omission of the seller to load at its mines in Kentucky cars of coal to be shipped to states other than Kentucky, related strictly to interstate commerce.--Federal Coal Co. v. United States Fuel Corporation, Tenn., 246 S. W. 528.

22.-Interstate Commerce.-A contract made by a foreign corporation for the purchase of the entire output of a coal mine, which output was to be shipped to points without the state, held a transaction of "interstate commerce" relieving the foreign corporation from compliance with Ky. St. $ 571, regarding the appointment of an agent upon whom service of process could be made notwithstanding a small part of the coal so purchased was resold within the state and never became the subject of interstate shipment.-Logan-Pocahontas Fuel Co. v. Camp, Ky., 246 S. W. 433.

from property owned or from business operations within the state on the same basis as resident tas. payers, held not unconstitutional as necessarily working discrimination between residents and nonresidents, as amounting to a burden upon interstate commerce, as abridging the privileges and immunities of nonresident citizens, as denying equal protection of the laws, nor as depriving persons or corporations taxed of due process of law.Santee Mills v. Query, S. C., 115 S. E. 202.

24. Corporations-Agency.-When a person is employed by the vice-president of a corporation to find a purchaser for lands belonging to the corporation and an action is brought by the person employed against the corporation for breach of the contract, the plaintiff is required to show under the general issue the authority of the vice-president of the corporation to make the contract in the corporation's name.-St. Petersburg Land & Loan Co. v. Shallcross, Fla., 94 So. 502.

25. Directors.-A director cannot be counted as a part of a quorum of the board of directors to authorize the corporation to enter into a contract with such director.-Laybourn v. Wrape, Colo., 211 Pac. 367.

26.--Foreign Corporations.-Isolated transactions, whereby a foreign corporation sells goods fabricated in another state and shipped into this state by such corporation for use or installation, does not constitute the doing of business in this state within Rev. Codes 1921, Mont. $8 6651, 6653, providing conditions under which foreign corporations may do business within the state.-General Fire Exting. Co. v. Northwestern Auto S. Co., Mont., 211 Pac. 308.

27.- -Receivers.-Generally, where a corporation is in the hands of a receiver, a stockholder cannot

directors for maladministration without the sanction of the court appointing the receiver, nor can such a suit be maintained, even where the court has granted its permission, where there is no order purporting to assign to the plaintiff stock. holder or to confer on him the right to enforce the claim vested in the receiver; the right of action by the receiver being exclusive.-Klein v. Peter, U. S. C. C. A., 284 Fed. 797.

28. Covenants-Restrictions.-Under restrictions excluding bungalows generally, but permitting them in certain portions of the tract covered by the restrictions, the fact that the property in the rear of defendants' property may be used for the erection of bungalows does not prevent enforcement of the restriction against defendants' property.Pellegrino v. MacKenzie St. Const. Corporation, N. Y., 197 N. Y. S., 699.

29. Deeds-Repugnant Restrictions.-A warranty deed purported to convey a present estate in fee simple to the grantee, and in a later clause of the instrument was a restriction that if the grantee outlived the grantor the property should revert to the heirs of the grantor, held that the restriction is repugnant to the express grant, and is void.Conner v. Cole, Kan., 211 Pac. 615.

30.-Undue Influence.-That grantee in a deed of gift was grantor's daughter-in-law did not of itself create one of those technical relations from which trust and confidence are presumed by law to arise, so as to cast on grantee the burden of proof as to undue influence.-Harris v. Bowles, Ala., 94 So. 757.

31. False Imprisonment-Cause of Action.-An inference that defendant caused officers to arrest plaintiff may be drawn from facts and circumstances, and it is not essential that there should be evidence of express command or direction to the officers.-American Ry. Express Co. v. Summers, Ala., 94 So. 737.

32. Guaranty-Sietus of Contract.-Where a contract was signed by the principal and guarantors and forwarded by mail from the state of Alabama to plaintiffs at Freeport, III., where plaintiffs ac. cepted and acted upon it, the instrument was made in Illinois and was governed by the laws of that state.-Furst & Thomas V. Sandlin, Ala., 94 So. 740.

23.--State Income Tax.--South Carolina Income Tax Law, March 13, 1922, requiring persons and corporations subject to the federal income tax to pay to the state as tax on income a sum equal to one-third of the federal income tax, non-residents to pay the tax upon their separable net income

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