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Decision of Conflicting Cases. - In consid- to the law court. In Firth v. Midland Ry.Co.,? 4 ering the cases which are sometimes cited as the court refused specific performance on authority against our contention, we find but

the ground there had been a substituted agreetwo cases in the books which can be said to

ment, and such agreement was to be approved conflict with the weight of authority. Other by one who died before making the approval. cases which have been cited by lawyers, and The court held there was no definite consometimes by courts, as being in conflict, tract to enforce. can very easily be reconciled, and we The two cases cited in the note are in think should not be considered as against our direct opposition to our contention, and, proposition, but rather as authority for it. A

we think, against the overwhelming weight case which is often cited is that of Brace v.

of authority. 26 In Kay v. Johnston, 26 Wehnert. 20 If we will but examine this case, the contract was in the shape of a lease of we will find that specific performance woul lands, with covenant by lessee to build a have been granted had the contract in terms house and fence. Lessee failed to perform been certain and definite, and not loose and

his covenant, and the lessors ask for specific vague. The court here refused because there

performance, and cites in support of his claim were no plans or specifications by which the

the well known cases of “City of London v. court could arrive at the intention of the

Nash," and "Penbroke v. Thorpe," both of parties. The court said: “I think the juris- which are reported above, and have been condiction of this court, in cases of specific per- sidered as authorities for specific performformance, should not be diminished, and I con

Court held that the two cases cited cur in the cases which lay down that if the were opposed to specific performance, and as the thing contracted to be done can be made

it was entirely within the discretion of the reasonably clear, the court is bound to decree

court, he would direct an inquiry for damages a specific performance." In the cases cited only. In Kendall v. Frey,?? plaintiff conin the note, specific performance was denied veyed land to defendant, part of the considfor the same reason.2 1 Another case, which is ation being that defendant should build a city considered as contrary to the general rule, is hall of certain size and dimensions upon this the Cincinnati, etc. Ry. v. Washburn, 22 but land. Plaintiff owned land contiguous to the appears from the original report to have turned land conveyed, and when he conveyed he had on a technical point of pleading. In Haisten v. in mind the benefit which he would derive The Savannah G., etc. Ry. Co.,23 the court from the new city hall being built there. In refused specific performance, but on the a suit for specific performance, the court ground that to enforce the contract would

questions the right of a court of equity to work a violation of the statute of frauds. The

grant specific performance of building concourt said: “A court of equity interferes

tracts, and says the more recent authorities to decree the specific performance of a parol are against it. The court cites Oregonian R. contract, void by the statute of frauds, only R. Co. v. Oregon, etc. Co., as authority. and solely because the parties have so far

against the proposition. The case cited is acted upon and by virtue of the contract as

different in some respects. The “Oregon” that it would be a fraud to permit the de

one of ordinary contract to build, fendant to repudiate it." There was no part

falling within our first division, where the performance in this case, and the party must go remedy hy damages was adequate. This case

cannot be reconciled with the many authoriLaw. T. N. S. 409; Jones v. Seligman, 1880, 81 N. Y. 190; Willard v. Ford, 1884, 16 Neb. 543; Post v. W., etc. R.

ties supporting the proposition that specific R. Co., 1890, 123 N. Y. 580; L. & N. R. R. Co. v. M. & performance will be granted.

R. R. Co., 1893, 92 Tenn, 681, 22 S. W. Rep. 920; Rule as to the Enforcement of Contracts InProspect Park R. R. Co. v. Coney Is. R. R. Co., 1894, 144 X. Y. 152, 39 N. E. Rep. 17; S. & X., etc., Ry. Co.

volving Continuing Duties.--Some few courts V. H., etc. Ry. Co., 1893, 98 Ala. 400.

have attempted to restrict the exercise of this 20 1858, 25 Beavan, 358.

21 Wilson v. North Hampton, etc. R.R. Co., 1871, L. 24 1875, L. R. 20 Eq. 100. R. 9 Ch. App. 279; Stanton v. Singleton, 1899, 126 Cal. 25 Kay v. Johnston (1864), 2 H. & M. 118; Kendall v. 647.

Frey, (1889) 74 Wis. 26. 22 1865, 25 Ind. 259.

26 1864, 2 Hemming and Miller, 118. 23 1875, 51 Ga. 199.

27 1869, 74 Wis. 26.

case was


remedy to contracts which can be performed the defendant, Delphine Wilson, wife of the by one act, that is, by one decree of the court,

appellant, J. A. Wilson. It was admitted on the and not to extend it to contracts which call

trial that the husband was not present at the time

of the assault, and had no knowledge of the for continuous acts which would require the

occurrence until some time afterwards. An incourts to superintend. But the weight of au- struction was asked by appellant to the effect thority is clearly against this contention, and "that the husband is not responsible for the especially is this so of the later cases. The wrongful acts of the wife committed out of his case of Joy v. St. Louis, 28 is an important

presence, and without his knowledge or consent."

This was refused, and a verdict for plaintiff was leading case, in which the court compelled a

returned, and judgment went against both derailway company to permit another company fendants, from which the husband appeals. to use their tracks as per agreement. The Whether this proposed instruction should have defense insisted that the court had no juris- been given is the only question involved. diction, but such defense was not sustained.

While there is a contlict in the anthorities, apThe authorities cited in the note are of the

pellant concedes at the outset that a majority of

the cases still hold to the common-law rule which same opinion.29

makes the husband liable absolutely for all torts Conclusion.-With this review, we conclude

committed by the wife. This statement is too that contracts of the class or division which broad. Pom. Rem. & Rem. Rights, $$ 320, 321, we have been studying are not to be consid- states that as to all torts committed by the wife, ered with the class of ordinary agreements to

not done by means of, or in the use of, or in the

assertion of some right in reference to, her sepaperform certain labor or work. The latter

rate property, the common-law rules remain unclass is not, in the proper sense of the word,

changed. Since she is permitted to manage her one for specific performance, as the court separate estate as though she was a feme sule, it will not decree this remedy where the remedy follows that in such management she must be reat law is sufficient, and in the ordinary con

sponsible as a feme sole. The common-law rule must tract for building the remedy at law for a

prevail unless it has been changed by statute. No breach is adequate, as the complaining party

express change has been made, but it is con

tended that, since the wife now retains as her own may at once hire other workmen to complete such property as she has at the time of the marthe building. But wherever the defendant is riage, and such as she afterwards may acquire by in possession of land and has entered into an gift, descent, or devise, and may manage her own agreement to build on that land, consideration

separate estate, she should now be held solely re

sponsible for her torts, on the principle that the has been given, plans for the building are de

reason for the cominon-law rule has ceased to finite and certain, and if for any other reasons exist, and therefore the rule should cease. But the remedy of damages is inadequate, the what all the reasons for the rule were originally courts of equity may grant relief in their dis- is not now so easy to determine, and accordingly cretion by decreeing specific performance.

it was said by Mr. Justice Field, in Van Maren v.

Johnson, 15 Cal. 312: “It matters not what was
the origin of the cominon-law doctrine; its rule is

settled and exists independently of the grounds
2* 1890, 138 U, S. 1.
29 Lawrence v. Saratoga L. R. R. ('0., 1885, 36 Hun

on which it originally rested." These rules are (N. Y.), 467; Chicago R. I. & Pac. R. R. Co. v. Un.

quite ancient, and cannot be said to have been Pac. R. R. ('0., 1891, 47 Fed. Rep. 15; U'n. Pac. R. R. rested solely upon the fact that the husband may Co. v. (hi. R.J. & P. R. R. Co., 1892, 51 Fed. Rep. 309; take all the wife's personal property and her earnL. & N. R. R. Co. v. M. & F. R. R. Co., 1893, 92 Tenn. ings, and may control her person, or that she can 681, 22 S. W. Rep. 920; Standard Fashion Co. V. Siegel, have no estate from which a judgment against Cooper & Co., 1898, 157 N. Y. 60.

her could be satisfied, added to the supposed

merger of her legal personality in his. It was HUSBAND AND WIFE-LIABILITY FOR WIFE'S

said by the Supreme Court of Texas in Zeliff v. TORTS.

Jennings, 61 Texas, 458, that the doctrine -rests

perhaps mainly upon the supposition that her acts HENLEY V, WILSON.

are the result of the superior will and influence of Supreme Court of California, September 13, 1902. the husband. Owing to the intimate relation of 1. The husband's liability for tort of his wife, not

husband and wife, and to the nature of the condone by means of, or in the use of, or in the assertion trol given him by law and social lisage over her of some right in reference to, her separate property, conduct and actions, it would be ditticult, if not is not changed by the fact that under the statutes she impossible, for the courts to determine when she may have a separate estate, and may manage it.

had acted at her own instance, and when she was TEMPLE, J.: Action for damages caused by a guided by his dictation." And it may be added. violent assault committed upon the plaintiff by in a case where the wife has no separate estate, if

the husband cannot be held, the aggrieved person property. The husband appealed, and the only will have no redress, and upon the wife there will question was as to the liability of the community be no restraint of pecuniary responsibility. If so property. Upon this question Judge Field said: disposed, she could with impunity blast the lives The statute in terms provides that the separate of her neighbors by most grievous slanders. Nor property of the wife shall be liable for her debts is it true, in the absolute sense, that she has no contracted previous to the marriage, and at the interest in the estate of her husband. She is en- same time that the separate property of the hustitled to a support out of it, and to be maintained

band shall not be thus liable. It is silent as to in a degree of comfort proportionate to his wealth. liability of the common property as to such debts, To make this fortune liable for her torts may di- and also as to the liability of that property for rectly affect her. It may diminish her comfort and the previous debts of the husband." The learned style of living. As to the community property, if judge then proceeds to show that the common the coverture is ended in any mode during her law is the basis of our jurisprudence, and that the life without her fault, one-half of it will be hers.

statute has modified that law, on this matter, Most wives consider themselves equally interested only in two respects: “Il renders the separate in accumulations, and properly so. At common property of the wife liable and exempts the sepalaw, even, they had morally an interest in the rate property of the husband. Beyond this fortune made or inherited by the husband. In exemption of his separate property his liability some circumstances they could secure a separate exists; that is to say, he is liable to the extent of maintenance from it on a scale proportionate to its the common property." That is, the common amount. We hear much of the power over the law prevails except as it has been modified by wife given to the husband by the coinmon law, statute. Furthermore, by the express provision which is now thought to have been oppressive. of the statute, the wife cannot be sued without But it had its other side. It was calculated to her husband for a tort wbich does not concern make a more complete and indissoluble union, in her separate estate. She can sue or be sued alone which the wife had rights that could be lost only only when: (1) The action concerns her separate by her violation of her marriage vow, and, I property or her claim to the homestead; (2) when think, to make the common earnings liable for the the action is between herself and husband; (3) torts of each tended in the same direction. Each when she is living in separation by bis desertion, became the other's keeper.“ These earnings or under an agreement in writing. Code Civ. are held by the husband, but are liable for the Proc., $ 370. And it has been held that in an action support of the wife. Since the reasons of the for damages which accrue for the injury of the common-law rule cannot now be fully known, we wife the husband must be joined; the recovery are at liberty to suppose that it was founded upon will be community property. McFadden' v. Railthese and many other considerations, as well as road Co., 87 Cal. 464, 25 Pac. Rep. 681, 11 L. R. upon those usually stated.

A. 252; Neale v. Railroad Co., 94 ('al. 425, 29 Pac. But inany of the reasons upon which it is com- Rep. 954. See, also, Sheldon v. The Uncle Sam, 18 monly supposed the common-law rule depended Cal. 527, 79 Am. Dec. 103. I think there would still subsist, and the express limitations upon the be no profit in discussing the cases cited by appelliability of the husband or of the community prop- lant from other states. In soine the statutes exerty for the debts of the wife imply that in other pressly provide against the liability of the husrespects the common law still prevails. For in- baud for the torts of the wife. In others all the stance, the husband is the head of the family, and earnings of the wife during coverture, and all remay choose the residence. Civ. Code, $ 156. He coveries for personal injuries, are her separate is entitled to the custody and control and to the property. In some cases the tort accrues in the earnings of minor children as against the wife management of her separate estate. But what(Id. $ 197), unless during separation (Id. $ 198). ever the rule may be in other jurisdictions, the The provisions of the Code giving the wife the principles which are determinative of the case power to make contracts with reference to prop- have been settled here, and are in accordance erty negative the idea that she has in other with the rule prevailing in a majority of the states. respects the power or the responsibility of a feme Some of the cases cited by the respondent are sole. So section 107 of the Civil Code ex- interesting, because'they discuss the reason upon pressly provides that the community property which the common-law rule was believed to be shall not be liable for the debts of the wife con- based. See Kowing v. Manly, 49 N. Y. 201, 10 tracted before marriage, leaving it still liable for Am. Rep. 346; Alexander v. Morgan, 31 Ohio St. her debts contracted after marriage. See In re Bur- 548; Heckle v. Lurvey, 101 Mass. 314, 3 Am. dick's Estate, 112 Cal. 398, 44 Pac. Rep. 734, opinion Rep. 366. of Mr. Justice Harrison; also Van Maren v. John- The judgment is affirmed. son, 15 Cal. 308; Vlautin v. Biimpus, 35 Cal. 214. Van Maren v. Johnson was a suit against husband

NOTE.-Liability of Husband for Wife's Torts ut

Common Laro and Under Statute.-It was well set. and wife for services rendered the wife before

tled at common law that the busband, was liable for marriage. Judgment was against both, but in

the torts of his wife. While this proposition is agreed terms it provided that it could be satistied from

upon by all the modern decisions, yet there seems to her separate property or from the community be a diversity of opinion as to the causes for the rule,

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and from this fact has resulted a different line of decisions as to the effect the modern statutes, giving the wife the right to sue and be sued and the use of her separate property, should have upon the common-law rule. The principal case adopts the rule that the husband's liability did not rest alone on the fact that he was entitled to the possession and control of the wife's property, but also upon other marital duties and relations. And, consequently, using that for a basis, upon which to found its argument, very justly arrives at the conclusions announced in the case; and therefore all decisions founded upon a like basis would support the rule, that although the statute gave to the wife the right to sue and be sued, and to have full control of her property, yet unless the statute further provided, that the husband should not be liable for the torts of his wife, the liability of the husband would still exist as at common law. In the state of Illinois in which the basis of the common law was given to be the fact that the husband had the right to use and control the wife's property, it was held that for that reason he was liable for her torts and that if these property rights were removed, that therefore, without any further statutory provision, the husband could not be held liable for the wife's torts. Martin v. Robson, 65 Ill. 129. To the same effect are the holdings of the Kansas Supreme Court. Norris v. Corkhill, 32 Kansas, 409. However, as a general rule, I think it may be said, that the courts are inclined to follow the rule in the principal case and hold that unless the statute expressly states that the husband shall not be liable for his wife's torts that the mere giving to the wife the right to use and control her own property will not relieve the husband of his common-law liability. See Mac Elfresh v. Kirkendal, 36 Iowa, 224; Hill v. Duncan, 110 Mass. 238; Fitzgerald v. Quann, 109 N. Y. 441. Thus, in Ohio, under a former statute of that state, it was held, that the husband was not relieved from his common-law liability for torts committed by his wife during coverture, and there was nothing in the act which evinced in any degree that it was intended to change or abrogate the common-law rules; and that such matter could not be inferenced by implication. Fowler v. Chicester, 26 Ohio St. 9. This state has by recent statute, expressly provided, that the husband should not be liable for the torts of his wife. Under the English married woman's act, which provided “that a married woman shall be capable of suing and being sucd, either in contract or in tort or otherwise, in all respects as if she were the feme sole, and her husband need not be joined with her as plaintiff or defendant or made a party in action or other legal proceeding,” etc., it was held that the husband might be joined with his wife in a suit for her tort. Seroka v. Kattenburg, L. R. 17 Q. B. Div. 177,65 L. J. B. 375, 34 Week. Reps. 542, 54 L. T. N. S. 649. These casos, however, are applied to torts which do not arise out of the use of a wife's separate property, such as slander, assault and battery, etc. Where they arise from some use or misuse of the wife's separate property, then the husband is not liable. This is well illustrated in the case of Quilty v. Battie, 135 N. Y. 201, where an action was brought for damages, resulting from an injury caused by a vicious dog which was harbored on the wife's property. It was held that the husband was not liable by reason of his marital relations, although he owned the dog. It was not sought to make him liable for the reason, that he was the owner of the animal, but by reason of his marital relations.

A great many of the statutes of the various states have a provision that the husband is relieved from

the liability for his wife's torts, unless they were committed by the authority, direction or encouragement of the husband. Austin v. ('os, 118 Mass. 58; McCarty v. DeBest, 120 Mass. 89: Burt v. McBain, 29 Mieh. 260; Ricci v. Mueller, 41 Mich. 214; Weber v. Weber, 47 Mich. 569: Mason 1. Mason, 66 Hun (N. Y.), 386; Vocht v. Kuklence, 119 Pa, St. 365; Storey v. Downey, 62 Vt. 243. See, also, Hill v. Duncan 110 Mass. 238; Arthurs v. Chatfield, 9 Pa. Co. Ct. 34; Quick v. Miller, 108 Pa. St. 67; Lee v. kopkins, 20 Ont. 666. In a recent case in Louisiana in an opinion, in which it is not shown whether there is a statute on the subject or not, the husband was held not to be liable for a slanderous utterance of bis wife, when it was not shown tbat he was cognizant of the utterance. McClure v. Martin, 104 La. 496, 29 So. Rep. 227. In a recent case in Vermont (Russell v. Phelps, 50 Atl. Rep. 1101, 73 Vt. 390), it was held that under the statute providing that a married man shall not be liable for the torts of his wife unless committed by his authority or direction, that a married man is not liable for a tortious act of his wife committed by his direction when the substantive basis of such tort is the direct tort of the wife regarding her separate es. tate, since the statute merely leaves the torts of the wife committed by direction of the husband as they were by common law. In the same state in an earlier case, Story v. Downey, 62 Vt. 243, 20 Atl. Rep. 321, under a statute which provided that a husband shall not be liable for the torts of his wife unless committed by his authority or direction, that it was improper to join the husband as defendant, unless it was alleged that the slander was uttered under the direction or authority of the husband. In Nebraska, where it was sought to charge the husband with a letter written by a defendant's wife containing a libelous charge it was held, that, in order to render the husband liable, imust be shown that he assisted in or authorized the composition of the libelous letter. Mills v. State, 18 Seb. 575. So it was held in New York that a husband was not liable for the act of the wife in causing a dog to bite a cbild when there is no evidence that the act was done under his coercion or instigation. Strubing 1. Mahar, 61 N. Y. Supp. 799.

The following cases are suggestive where the act was done in the husband's presence or by his coercion: Kosminsky v. Goldberg, 44 Ark. 401; Storey v. Downey, 62 Vt. 243; O'Connor v. Welsh, 29 W. N. (. 92; Quick v. Miller, 103 Pa. 67, Gantt's Ark. Dig. 1233; Mills v. State, 18 Neb. 575; McNicholl v. Kane, 2 City Ct. Rep. 57. A wife, however, is not exempt from liability for her tortious acts by reason of the mere presence of her husband. It must be shown that her acts were committed by his coercion. O'Brien v. Walsh, 43 Atl. Rep. 664. See, also, in this connection: 23 Cent. L. J. 364, 42 Cent. L. J. 151, 35 Cent. L. J. 483.

WM. ROCKEL. Springfield, Ohio.



The first state in the Union to have an out-and-out popular referendum is Oregon. That state has now adopted an amendment to the state constitution which establishes completely the direct power of the people over legislation. It is provided that whenever eight per cent. of the legal voters petition for any specific legislation, this must be sub

mitted to popular judgment at the polls, and if a majority approve of it, it is made law without the intervention of the legislature. Also, if five per cent. of the voters demand the popular judgment on any bill which the legislature passes, it must be submitted to the people, who inay ratify or reject it. It is further provided that the governor shall not have the power to veto a bill which the people have adopted by direct ballot. There ought to be no objection on the part of sister states to watching the progress of this referendum principle in Oregon, to see how it eventuates. For our own part, we fail to discern how it can be made, in all cases, to establish the public weal (though it may in some cases), because it is quite within the bounds of probability that certain measures wbich are wholly for the public good shall be repudiated by a majority vote at the polls, notwithstanding all the more thoughtful elements of society might discern that the law is good and needful. It is conceded that it may put a veto upon certain measures of the legislature that ought not to become laws and thus break up legislation inimical to public interests, but, at the same time, puts it into the hand of a small body of men to set in operation expensive machinery, and then to call in as judges those who are not qualified by education along legislative lines to pronounce upon it, besides opening the door to corruption. Probably it will be said that it is less difficult to corrupt a large body of voters than a small body of legislators, and this may be true. At all events, the referendum scheme, which seems to have proven a reasonable success in Switzerland, and which has many intelligent advocates in this country, will now have a trial in Oregon, and the result of that trial will be watched for with unusual interest.-New Jersey Law Journal.

AMENDMENT OF THE FEDERAL CONSTITUTION. A hearing was recently had before the judiciary committee of the House of Representatives upon the proposition to amend the constitution of the United States so as to provide that the term of office of the president shall commence on the last Thursday in April, instead of the 4th day of March. If the proposition comprehends merely a change of inauguration day, we are not surprised at the report that the senti. ment in the House of Representatives in its favor ís decidedly lukewarm. Uvdoubtedly such a change would be desirable, but there are more important proposed amendments which may well engage earlier attention. A proposed amendment has been favorably passed on by the Senate, changing not only the date of the inauguration of the president and vicepresident, but of the commencement and termination of Congress, from the 4th day of March to the last Thursday in April. The anomaly of the present law, by which members of a house of representatives elected in November do not take their seats until a year from the following December is generally conceded. It would increase such anomaly to extend for two months the term of a congress whose majority possibly had been discredited at the polls. In an article in The Forum for April, 1902, Mr. H. L. West, discussing "Proposed Amendments to the Constitution," said: “I am inclined to agree with the opinion tbat it would be better to have the new congress assemble, and the president sworn in on the 1st day of January. This would bring the meinbers of the house to their duties almost immediately after their election. They would be fresh from the people and in a position to enact into legislation the issues upon which the campaign had been fought." This suggestion is certainly entitled to careful consideration.

Another amendment which has been favorably reported by the Senate is as follows:

“In all cases not provided for by article 2, clause 5 of the constitution, where there is no person entitled to discharge the duties of the office of the president, the same shall devolve upon the vice-president. The congress may by law provide for the case where there is no person entitled to hold the office of president or vice-president, declaring what officer shall then act as president, and such officer shall act accordingly until the disability shall be removed or a president shall be elected."

This certainly covers a matter of great importance, as the constitution in its present form“absolutely fails to provide for an emergency where there is no person entitled to hold the office of president or vice-president, although it might arise through the death or disability of the newly elected officials between the election day in November and inauguration day in March.”

Some readers may be surprised to learn that the legislatures of seven states have applied for the calling of a constitutional convention for the purpose of proposing amendments. In certain other legislatures resolutions of similar import have been introduced. This movement is primarily inspired with a view to altering the present law so that United States Senators may be elected by direct vote of the people instead of by the various legislatures. As to the wisdom of such change opinions differ,and we do not propose to express an opinion on it at the present time. It certainly seems to have taken more serious hold upon popular sentiment than any other amendment which has been proposed during recent years. As to the scheme of calling a convention we entirely concur in the following language from Mr. West's article:

"It would seem as if a constitutional convention, for whatever purpose called, would be unwise. It would be a most disturbing element in the national serenity. It is true that the legislatures which have already acted have specified only one desirable change; but all authorities agree that if the convention assembled it would not and could not be restricted to this single consideration. Every proposition, no matter how radical, which might be conceived in the fertile minds of would-be statesmen, would be offered for discussion. The convention would, in all probability, be in session for a year, during which time the business interests of the country would pass through a period of uncertainty that would be almost disastrous. Besides this, the spectacle of such a revered document lying helpless in the hands of those who would possess the power to mar its beautiful symmetry,to alter its familiar and oft-construed sentences, to introduce new and possibly dangerous phrases, wonld be a shock to the moral sense of the nation. After all, the American people are conservative. Their Anglo-Saxon blood teaches them to revere tradition and precedent. The document which has been almost untouched during the nation's evolution has become sacred. Those who believe, with the late Mr. Gladstone, that our constitution is the greatest instrument ever struck off by the hand of man could hardly view with equanimity any effort to alter materially its stately form.”

We hope, however, that the increasing discussion upon all the proposed amendments will tend to familiarize the people with the idea of amendment and gradually develop the policy of occasional special amendment, through the alternative method of proposal by two-thirds of the members of both houses of congress, and ratification

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