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was true, could not consistently swear that he was in-|TWO of the leading lawyers of our State and Nation

The two decisions cannot stand together. One is all is not anywhere expressly given, but it is implied directly opposed to the other, and still the General from the provisions as to verification, which apply to Term of the First Department has planted itself on “denials," as well as to "allegations." both sides of this question, the eminent presiding justice, Davis, concurring in both decisions. If the later decision is correct, then a defeudant

NEW BOOKS AND NEW EDITIONS. who has information from which he believes the alle

ARISTOTLE'S POLITICS. gations of a complaint are false, but has no positive knowledge on the subject, is in a very embarrassing The Politics of Aristotle, translated, with an analysis and

critical notes by J. G C. Waldron, M A., Fellow of position. He cannot, Judge Daniels says, deny on information and belief. If he denies that he has any

King's College, Cambridge, and Master of Dulwich Colknowledge or information sufficient to form a belief

lege. MacMillan & Co., London. as to the truth of the allegations of the complaint and

A work so celebrated as Aristotle's Politics was enswears to his answer, he commits perjury. If he de.

titled to the most judicious and skillful treatment at nies unqualifiedly, and it should turn out that the in

the hands of the translator and editor. It is hardly formation which he believes to be true is in fact false,

necessary to say that in this edition tbis celebrated he is liable to be convicted of perjury, under section work receives the care and scholarship it is fairly eni524.

titled to. No library of political philosophy is comJudge Daniels says in his opinion, speaking of the plete without Aristotle's Politics and Plato's Laws, denial on information and belief in that case: "It for they mark a phase of human thought at its infanoy. (the defendant) might very well have had the requisite It is almost useless to read Vico, Montesquieu, Hobbes, knowledge or information to form a belief that all the

or Bodin unless we know what Aristotle and Plato allegations contained in the complaint were true con

have said in a spirit not far removed from those of sistently with the answer as it was served in the ac

later political philosophers. In this edition of Aristotion” (p. 144). Exactly how this can be, it is difficult tle we have the entire scheme of the work in the shape to see. If the defendant was informed and believed of a preliminary analysis of great value tu the student, that the allegations in the complaint were false, as the and so far as we have been able to compare the text verified answer stated in that case, such information of the original, a translation of singular fidelity, yet and belief were hardly consistent with the defendant's indicating an elegant and liberal scholarship free from having knowledge or information sufficient to form a servility. belief that the allegations were true. It would seem to the ordinary unjudicial mind that a man having in

NOTES. formation which led him to believe that a complaint

WO of

were honored in the city of New York last week The decision in 21 Hun, 439, seems clearly to be

by receptions. Mr. Evarts was entertained by the right; otherwise the provision in section 524, speaking Union League Club, of which he is the president, by a of the allegations or denials in a verified pleading,

reception in honor of his election to the United States that "unless they (the allegations, or denials) are

Senate, an office which he richly deserves and wbich therein stated to be made upon the information and

he will greatly adorn. Mr. David Dudley Field, on belief of the party, it must be regarded for all pur

the occasion of his 80th birthday anniversary, was enposes, including a criminal prosecution, as having been

tertained by his brother, Mr. Cyrus W. Field, and a made upon the knowledge of the person verifying the

crowd of friends testified to their admiration and pleading,” would be entirely inoperative in regard to

good will. The following verses were addressed to Mr. denials. The language of that section makes it clear,

Field by Mr. F. J. Parmenter, of Troy, who is familas Judge Barrett says in 21 Hun, that where a defend

iar to our readers as a poet: ant has knowledge or information sufficient to form a

Except in years, thou art not old; belief as to the allegations in the complaint, and such

There's scarce a wrinkle on thy brow, allegatious are not within his personal knowledge, he

Thy hand is firm, thy step is bold, is “bound upon his peril to deny upon information and

Youth still is at the prow. belief."

You must have followed Nature's code ALBANY, Feb. 10, 1885.

H.

And found the spring the Spaniard sought, P.S.-Since writing the above, I have noticed that

To keep so fresh along the road a motion for a re-argument in the Pratt Manufactur

Where you so much have wrought. ing Co. case was made and denied, as appears at p. 544

'Tis not enough that you may call of 33 Hun. The court there attempts, but it seems to

To aid your task, vast mental powers, me without success, to distinguish the case before it

You must have held old Time in thrall from Brotherton v. Downey. The cases of Swinburne

And codified his hours. v. Stockwell, 58 How. Pr. 312, and Powers v. R., W. & 0. R. Co., 3 Ilun, 285, are cited as sustaining its decis

Comparing with your works yonr years, ion. The case in 58 How. was a Special Term case; that

The world, in doubting mood, might say

Instead of only eighty years, in 3 Hun was under the old Code, and is no authority

You're twice that age to-day. as to the construction of the Code of Civil Procedure.

Men born for such achievement high The court say that section 500 permits no such form

Are cast in Nature's choicest mould, of pleading. But why not? True, it does not in so

And that must be the reason why many words say either that the “denials," or the

They never do look old, “new matter," therein authorized may be stated on

Some frost may round your temples cling, information and belief. Neither does section 481,

The product of deep thought and care, wbich provides what a complaint shall contain, say

But in your genial face, the Spring any thing about “information and belief." Section

Is ever blooming there. 500 does not provide that the denials shall not be made

Now, when Time's rapid wheel shall bring on information and belief, any more than it prohibits

Your hundredth apniversary, new matter to be thus alleged. Indeed the permission

May better bard its glories sing to make allegations on information and belief at

And I be there to see.

The Albany Law Journal.

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was

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greater

den say of him that he thought he had a more precise knowledge of the science of jurisprudence than

any other person living of the English speaking ALBANY, FEBRUARY 28, 1885. race.” Mr. O'Conor was undoubtedly a very busy

lawyer, but he was no genius and he has not been CURRENT TOPICS.

sorely missed. His death created no such vacancy

as the death of Webster and Choate, for example. HE current nuniber of The Century magazine is

There are a score of lawyers to-day just as compeof especial interest to lawyers on aceount of

tent as O'Conor, but where are the successors of two excellent portraits of two of the most eminent

those great men? Mr. Bigelow discloses an unof deceased American lawyers, if not on account of

pleasant credulity in O'Conor, who it seems could

believe that Chancellor Walworth decided all Burr's the accompanying comments. The frontispiece of the number is a portrait of Daniel Webster, with

causes against him from personal pique. As Mr.

Bigelow says, there is too much vanity in the Chanhis hat on, a most striking and admirable likeness.

cellor's address on assuming office, but the man The article accompanying it, by Stephen M. Allen, is of the slenderest interest, and contains very little

must have been prejudiced who could believe of novelty. There is rather too much gush in it; amusing to read the following: " He said that as

Aaron Burr as against Reuben H. Walworth. It is it is hardly fair to represent Webster as a “Co

far as he knew, he as much as any one was entitled lossus” of morality, although he was an intellectual

to the credit of originating the reform of our sysgiant. Mr. Lodge gives a fair estimate of him in his memoir in the “American Statesmen " series.

tem of procedure in 1847–8, the abolition of forms

of action, and the abolition of the Court of ChanThere is more of human nature and of the Webster

cery. He said he made the plea for those reforms nature in the editor's note to the paper than in the

in the Constitutional Convention of 1846. He would paper itself. Webster was a grand figure, and

on no account, he said, claim for himself, or have any perhaps Mr. Allen is right in saying that "he

one claim for him the credit of these, but he was quite stond alone in his massiveness among twentyfive million of people."

willing to be instrumental in defeating the pretensions Our country has produced greater lawyers — not

of any other person to their authorship. The line of a greater con

remark had been suggested by the news then just stitutional lawyer; Hamilton

received that Governor Cornell had vetoed the genius in statecraft, yet he lacked the divine

Field-Throop Civil Code an act on the governor's faculty of oratory; but Webster was a great

part with which he repeatedly expressed the greatstatesmau, and one of the half dozen greatest ora

est satisfaction. Recurring to this subject of coditors of all history, and his published works remain

fication later, he said he doubted whether our civil to attest his supremacy, and will live as long for

law could be codified successfully; he inclined to Americans as Burke's for Englishmen. Webster

think it could not, and proceeded to place his doubts was a man of colossal talents and colossal vices and

upon grounds substantially the same as those which weaknesses. The writer ot these lines heard him

have been more recently set forth in Mr.James C.Caron Bunker Hill in 1843 — most precious remem

ter's exhaustive and masterly discussion of that subbrance of his youth! — and he saw him once after

ject.” The italicized words show the true dog in ward, when dissipation and disappointment had

the manger spirit. The reference to his former asmarked that magnificent face, and the weakness of

sociate in business, Mr. Carter, is significant. We mortality had asserted itself in the grandest of men.

had supposed however that Mr. Carter's views were It is difficult for his contemporaries who lived un

original with Mr. Carter, but it now seems not imder the spell of his greatness to remember his de

possible that he absorbed them from association fects, but at the rate at which history is going

with O'Conor. Perhaps O'Conor wanted to get rid the next generation of school boys will not believe

of chancery on account of his dislike for the chanthat the greatest of Americans had any faults.

cellor. But to claim him, or for him to claim him

self as the originator, or even as a champion of pracThe other portrait is of Charles O'Conor, with a tice codification, is ridiculous. Our old readers paper of considerable interest by John Bigelow. will not have forgotten his celebrated letter on Mr. Bigelow conveys a good deal of information code pleading, and his avowal of his utter inability that will be new to his readers. It is touching to

to “state the facts" in any case, and his fling at read the record of O'Conor's early poverty and "the pleadings which come from the office of the struggles, of his generosity and beneficence, and of chief codifier himself.” But even according to his chivalric devotion to his

rly benefactor. O'Conor, as stated in Mr. Bigelow's paper, the old These are tender traits in a character usually con- system of pleading was at least as bad as the

пету, , sidered cold and stern. But Mr. Bigelow strikes for he said “he never knew a case in which the too high a strain when he says at the outset and at parties had been pleading for an issue a year that the close: “ The death of Mr. O'Conor has left a he could not find a defect of sufficient gravity to set large vacancy in the American bar, larger perhaps their proceedings aside.” Really, when Webster is than was ever created before by the death of any pronounced a Colossus of morality, and O'Conor the single individual;

” “I once heard Governor Til- originator and champion of codification of practice,

VOL. 31 -- No. 9.

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we may well adopt Sir Robert Walpole's estimate of catalogues, and they go far to bear out the librarian's history — that whatever else may be true, history assertion. Having been personally in the library must be a lie.

we can testify to its excellence, and to the good

method in which it is arranged and the good order Two distinguished British lawyers have just died in which it is kept. It is one of the most convenient Of Lord O'Hagan there is appreciative remark in law libraries in this country. our current London letter. Of Sir Robert Pbillimore the London Law Journal says: " With the death of Sir Robert Phillimore probably disappears

A Vermont lawyer thus frees his mind to us on the last of the civilian lawyers. They were distin- the subject of text books, and there is a good deal guished, with notable exceptions, like Lord Stow. what work on damages you consider the best for

of justice in what he says: “Will you inform me ell, rather by learning than capacity, by subtlety in argument rather than depth of insight. For the practical use? I have Sedgwick, but the text does future, the law which they practiced will less and

not state what the law is upon a given subject. The

notes are full of all kinds of decisions and after two less possess a special class of practitioner devoted

hours' consultation with the books no point is gained. to it alone, but will be taken up as occasion requires by the ordinary practitioner who may have

I am disgusted with such compilations for eleturned his attention in that direction in spare mo

mentary books. This book is only one of many at the ments. This is not a subject of regret, as special three volume work, probably by the number of vol.

present day. I see, by the name only, that there is a lawyers and special courts have a tendency to narrowness; and it would be a step in the right direcumes, a compilation thorough and complete” of all tion if the probate, divorce and admiralty division trash and law ever written or enunciated by judges were merged in the Queen's Bench, or at all events, if upon the subject, and for a practitioner how many divorce were distributed in turn among the Queen's hand, if at all? If a man is capable of making a

days would it take to find the law upon the case in Bench judges. Sir Robert Phillimore represented the transition period between the old school and book, let him write in the text and tell what the

law is and then cite authorities to sustain it. A the new. His name will be remembered at once as

book of 700 pages can hold all that is necessary the last of the admiralty judges, and as the introducer of the modern system of trial in ecclesiastical upon the subject. Jones' Laws of Bailments of 1796 causes." We know Doctor Phillimore mainly by make books full of “exhaustive research.” There

is a good pattern and guide for those editors who his long warfare with the Ritualists, and his par- is one other among many others I wish to speak of

, ticular tussle with Chief Justice Cockburn.

Story on Agency. Many half pages are given in Latin.

If it is an English book and for English educated Some busy fellow, who has not the courage to people to read, in Heaven's name why go back into sign any thing more than his initials, writes us as an old dead language to give Americans an elemenfollows: “I have just had time to look at your tary treatise ? Much more reason for incorporating number of February 14th. In it I find the follow- into such booķs the French language; either would ing, speaking of the scrap-book of Judge Folger: be a fault." "The editor feels greatly distinguished by being made the recipient of this precious legacy, and

NOTES OF CASES. when he has done with it and with all other earthly affairs, will deliver it to our Court of Appeals for

IM

N Coup v. Wabash, St. L. & P. Ry. Co., Michigan preservation among its archives.' Is the Court of

Supreme Court, January 28, 1885, 22 N.W. Rep. Appeals' an earthly affair, or not? How, after 215, it was held that a railroad company that condone with all earthly affairs, will you deliver it?” tracts with a circus proprietor as a hirer, and not as This is a sample of the letters which an editor gets. a common carrier, to furnish men and motive power Is it any wonder his waste-basket is so full? to transport his circus and menagerie in special cars The first question is of course too absurd to need owned by him, to be operated under the manage

As to the last, we answer that we shall ment and control of the proprietor, but to run acdeliver the book to the Court of Appeals by will, cording to the rules, regulations and time-tables of but we should never think of employing such a

the company, from a point designated to certain critic to draw the will.

other points, at greatly reduced rates, with the priv

ilege of stopping at places and times stated to give Mr. Culver, librarian of the Chicago Law Insti- exhibitions, is not liable as a common carrier, and tute, writes us : “Referring to your article on Law. may stipulate for exemption from responsibility for yers Tools in No. 5 of the current volume of your damages caused by the negligence of its servants esteemed journal, we send you to-day a copy of our while in this special employment. The court said: catalogue and the three supplements, which will “ The duty to receive cars of other persons, when probably show you that this institution of the west existing, is usually fixed by the railroad laws, contains almost everything on Roman law, general and not by the common law. But it is not incumjurisprudence and international law that is written bent on companies, in their duty as common carin the English language.” We have received the riers, to move such cars except in their own routine,

.

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They are not obliged to accept and run them at all shipped to Fairfield, and in collecting the money
times and seasons, and not in the ordinary course for it, for the defendant employed him for that
of business. The contract before us involves very purpose, and agreed to pay him ten per cent on the
few things ordinarily undertaken by carriers. The money collected by him, without reference to
trains were to be made up entirely of cars which whether the liquor was shipped C. O. D.' or by
belonged to plaintiff, and which the defendant tags attached to the jugs, with the price and ad-
peither loaded nor prepared, and into the arrange- dress marked thereon. Certainly then, as to all the
ment of which, and the stowing and placing of packages shipped 'C. O. D.,' the ownership and
their contents, defendant had no power to meddle. possession of the liquor remained in the defendant
The cars contained horses which were entirely un- after reaching the hands of his agent in Fairfield,
der control of plaintiff, and which under any cir- just as completely as before it left his store in
cumstances may involve special risks. They con- Shawneetown, and the sale did not take place until
tained an elephant, which might very easily involve the defendant, by his agent, received the money at
difficulty, especially in case of accident. They con- Fairfield, and delivered the liquor there to the pur-
tained wild animals, which defendant's men could chaser. This would be true, too, even if the F:ir-
not handle, and which might also become trouble- field express agent had not been specially em-
some and dangerous. It has always been held that ploved as the defendant's agent in the handling of
it is not incumbent on carriers to assume the bur- this liquor, for in the case of liquor shipped by the
den and risks of such carriage. The trains were defendant to Fairfield by express, 'C. O. D.,' the
not to be run at the option of the defendant, but liquor is received by the express company at Shaw-
had short routes and special stoppages, and were to neetown as the agent of the seller, and not as the
be run on some part of the road chiefly during the agent of the buyer, and on its reaching Fairfield it
night. They were to wait over for exhibitions, and is there held by the company, as the agent of the
the times were fixed with reference to these exhibi- seller, until the consignee comes and pays
tions, and not to suit the defendant's convenience. and then the company, as the agent of the seller,
There was also a divided authority, so that while delivers the liquor to the purchaser. In such case
defendant's men were to attend to the moving of the possession of the express company is the pos-
the trains, they had nothing to do with loading and session of the seller, and generally the right of
unloading cars, and had no right of access or regu- property remains in the seller until the payment of
lation in the cars themselves. It cannot be claimed the price. An order from a person in Fairfield to
on any legal principle that plaintiff could, as a mat- the defendant at Shawneetown for two gallons of
ter of right, call upon defendant to move his trains liquor, to be shipped to Fairfield C. 0. D.,' is a
under such circumstances and on such conditions; mere offer by the person sending such order to pur-
and if he could not, then he could only do so on chase two gallons of liquor from the defendant, and
such terms as defendant saw fit to accept. It was pay him for it when he delivers it to him at Fair-
perfectly legal and proper, for the greatly reduced field, and a shipment by the defendant according
price, and with the risks and trouble arising out of to such order, is practically the same as if the de-
moving peculiar cars and peculiar contents, on fendant had himself taken two gallons of liquor
special excursions and stoppages, to stipulate for from his store in Shawneetown, carried it in person
exemption from responsibility for consequences to Fairfield, and there delivered it to the purchaser,
which might follow from carelessness of their ser- and received the price of it. It would be different
vants while in this special employment.” Citing if the order from Fairfield to the defendant was a
Mann v. White River Log and Booming Co., 46 Mich. simple order to ship two gallons of liquor by ex-
38; S. C., 41 Am. Rep. 141.

press to the person ordering, whether snch order

was accompanied by the money or not. The moIn People v. Shriver, U. S. District Court, Illinois, ment the liquor under such an order was delivered Judge Treat has just decided upon the effect of a

to the express company at Shawneetown it would sale with delivery to a carrier, C. 0. D. The de

become the property of the person ordering, and fendant was indicted for carrying on the business

the possession of the express company at Shawneeof a retail liquor dealer at Fairfield, Illinois, with

town would be the possession of the purchaser out having paid the special United States tax there.

the sale would be a sale at Shawneetown — and if He lived at Shawneetown, Illinois, where he had

it were lost or destroyed in transit the loss would paid the special tax, and the goods were sent by fall upon the purchaser

. But in the case at bar the express from Shawneetown to Fairfield, C. O. D. shipping of the liquor to Fairfield, C. 0. D., the The court said : “ In deciding this case it only defendant inade no sale at Shawneetown; the right seems to be necessary to consider the effect of the

of property remained in himself, and the right of sales made by shipment from Shawneetown to Fair- possession, as well as the actual possession, remained field by express, C. O. D.,' to be delivered at Fair- in him through his agent. Had it been lost or defield by the agent of the

shipper to the consignee stroyed in transit the loss would have fallen upon upon payment of the price. It is clear that the ex

himself. He simply acted npon the request of the press agent at Fairfield was also the actual agent of purchaser, and sent the liquor to Fairfield by his the defendant in receiving and delivering the liquor own agent, and there effected a sale by receiving

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the money and delivering the liquor. In the case near tbe printed impression of a seal, but had put it of Pilgreen v. State, 71 Ala. 368, cited by defend- on the deed, to a receipt for the taxes and costs, ant's counsel, the distinction between absolute and and for the bond, for the surplus purchase-money, conditional sales seems to have been overlooked.” and had also acknowledged the deed in open court,

which acknowledgment was entered on the records In Miller v. Ruble, 15 W. N. Cas. 431, Pennsylva

of the court, and duly certified on the deed. Cases nia Supreme Court, Nov., 1884, it was held that

may undoubtedly be found in which judges of this signing by the grantor is essential to the validity

court have cited English authorities to prove that of a deed. The deed in question recited six grant

at common law, irrespective of statutes, signature ors, and had six seals, but was signed by only four

was not essential to a deed. Hoffman v. Bell, 11 of the described grantors. The court said: * It is P. F. S. 444, cited by counsel for plaintiff in error, true at an early day in England signing was not

is one of them. That case however was not ruled considered essentially necessary to the validity of a

on the validity of a deed sealed and not signed, but deed. It is not stated as one of the things neces

on the fact that the evidence failed to prove that sarily incident to a deed at common-law. Co. Litt.

any deed had been delivered or executed. The T. 1, C. 5, Sec. 40, 35b. A due sealing thereof great industry and careful search of counsel have was deemed a sufficient execution. This however

not resulted in his being able to cite a case since was by reason of a very general inability to read or

McDill v. McDill, in which it was held by this court, write. 1 Reeves Hist. of Eng. Law, 184, in note. In 1

on a direct presentation of the question, that a Blackstone's Com. 305, it is said to be requisite cuted without any signature of the vendor

. On

deed professing to convey land was sufficiently exethat the party whose deed it is should seal, and now in most cases, I apprehend, should sign it also. the contrary, in Watson V. Jones, 4 Norris, 117; He proceeds to state that under Saxon rule seals

McDill v. McDill is cited approvingly by Mr. Juswere not of much use in England. Their method,

tice Gordon. The recognition of any rule which for such as could write, was to subscribe their dispenses with the necessity of the signature of the names, and whether they could write or not to affix grantor would be fraught with great mischief. the sign of the cross. On the conquest by the Nor

Aided by a pliant justice of the peace, or by a false mans they introduced waxen seals only, instead of personation before an honest one, it would provide a the English method of writing their names and

convenient way to rob a man of his land without signing the sign of the cross. These seals however

the trouble and danger of forging his signature." generally had specific devices to distinguish them from each other. The statute of 29 Charles II, and the first section of our act of March 21, 1772, indi- SOME MORE FACTS ABOUT LAWYERS cated a necessity that all transfers of land should be

TOOLS." put in writing, and be signed by the parties making the same. This was deemed necessary for the THE New York Daily Register of February 10th prevention of frauds and perjuries. Our act makes no reference to a seal for the purpose therein men- sistant librarian of the New York Law Institute tioned, but requires the writing to be signed. It Library, directly impugning some of our statements was however held more than one hundred years in a former issue, in regard to the defects of that ago that the signing of a deed was a material part library. We had fully intended to compliment Mr. of the execution thereof, and that the seal had be- Winters upon those strong points of the Institute come a mere form, and a written or ink seal, as it Library which we deemed largely due to his intelliwas called, was good. McDill v. McDill, 1 Dall. 64. gent interest; in this we referred more especially The sufficiency of such a form of seal, when the to case-law, and to the post-Revolutionary statute deed is signed by the maker, wis affirmed in Long law of the various States of the United States. V. Ramsay, 1 S. & R. 72. It is true in Maul v. Our statement in regard to the bad condition of our Weaver, 7 Barr. 329, Mr. Chief Justice Gibson did colonial laws, not affecting that library more than all say that he did not entirely concur in what was others, is not challenged, and we presume is conceded said in those cases, that the signing of a deed was to have been accurate, and accurate it certainly was. the material part of its exccution, yet he admitted Mr. Winters however does distinctly challenge it to be the most powerful evidence of the joint or our statement that the literary material, used by separate ensealing thereof. In that case however Story and Wheaton, in their great commentaries, the question was whether covenant could be main. did not exist in the Institute Library, and if we un. tained against the grantee in a deed when he had derstand him aright he says it does so exist. The neither signed nor scaled it, but it concluded “in issue is a plain and simple one, and in so far as it witness whereof the said parties have hereuuto in- is consistent with a very brief outlay of time we terchangeably set their hands and seals the day and

propose to make good our assertion, although those year first above written,' and was signed and sealed who inconsiderately deny the statements of others by the grantor alone. In Liggett v. Long, 7 Harris, are not justly entitled to be furnished with evi499, a treasurer's deed was held sufficiently exe- dence. No doubt the Institute Library is a great cuted where he had omitted to write his signature library: It represents care, intelligence, and a cer

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