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788, 100 Fed. 270; Re Hays, F. & W. Co. Sanborn, Circuit Judge, delivered the 117 Fed. 879.

opinion of the court: Then it must create a breach of the con- The contention of counsel for the appeltract, and, the adjudication relating back lant is that the claim of the lessor is not for to the filing of the petition, the breach of rents which were payable after the petition the contract occurs simultaneously with for adjudication in bankruptcy was filed, the commencement of the bankrupt pro- but for damages for a breach of the conceedings; and the cause of action arising tract in the lease to pay these rents; that for the breach of the contractual relation. the adjudication in bankruptcy dissolves ship between the bankrupt and the claim- all contractual relations of the bankrupt ant also arises simultaneously with the in at the date of the filing of the petition stitution of the bankruptcy proceedings. in bankruptcy (Re Jefferson, 2 Am. Bankr.

Re Swift, 50 C. C. A. 254, 112 Fed. 315. Rep. 206, 93 Fed. 948; Bray v. Cobb, 3 Am.

All damages may be recovered that may Bankr. Rep. 788, 100 Fed. 270; Re Hays, have accrued by reason of this breach of F. & W. Co. 117 Fed. 879); that the disthe contract now.

solution of a contractual relation is a Rochm v. Horst, 178 U. S. 1, 44 L. ed. breach of the contract; and that, for the 953, 20 Sup. Ct. Rep. 780; Re Stern, breach of the contract to pay the rents 54 C. C. A. 00, 116 Fed. 604; Re Frederick accruing subsequent to the filing of the petiL. Grant Shoe Co. 66 C. C. A. 78, 130 fed. tion, a claim for damages may be allowed 881; Schrandt v. Young, 2 Herdman (Neb.) | in bankruptcy (Re Swift, 50 C. C. A. 264, 546, 89 N. W. 607; Rule v. McGregor, 117 112 Fed. 315; Re Stern, 54 C. C. A. 60, 116 Iowa, 419, 90 N. W. 811.

Fed. 604; Re Frederick L. Grant Shoe Co.
Messrs. H. C. Tobey, W. S. McClin- 66 C. C. A. 78, 130 Fed. 881).
tock, I. J. Ringolsky, and Thomas L. It is, however, the nature of the claim,
Bond, for appellee:

and not the name which is applied to it, that The adjudication in bankruptcy of the conditions its provability in bankruptcy. tenant did not terminate the contract of Watson's claim was for $20 of the $60 per lease.

month which the lessee had agreed to pay Re Ells, 2 N. B. N. Rep. 360, 98 Fed. him for rent of the leased premises for 967; Re Mitchell, 8 Am. Bankr. Rep. 324, one hundred and fifteen months after the 116 Fed. 89; Re Pennewell, 55 C. C. A. petition in bankruptcy was filed. In reality, 571, 9 Am. Bankr. Rep. 490, 119 Fed. 139; his claim was for the entire $60 per month, Re Collignon, 4 Am. Bankr. Rep. 250; Re but he had received by the surrender to Curtis, 109 La. Ann. 171, 9 Am. Bankr. Rep. him of the premises by Brown under their 286, 94 Am. St. Rep. 445, 33 So. 125; contract of March 2, 1903, and had credited Witthaus v. Zimmerman, 91 App. Div. 202, to him, the rental value of the premises, 11 Am. Bankr. Rep. 314, 86 N. Y. Supp. $40 per month, so that the rent which he 315; White v. Grissing, 44 Conn. 437; 16 claimed remained unpaid was but $20 for Am. & Eng. Enc. Law, 2d ed. p. 776; Beach, each month.. Modern Law of Contracts, $ 407; Re Webb. At the close of the hearing the referee 6 Nat. Bankr. Reg. 302, Fed. Cas. Nn. found that the rental value of the premises 17,315; Re Mahler, 3 N. B. N. Rep. 39, 105 was $47.50 per month, and that the only Fed. 428.

rent remaining unpaid was

$12.50 per The lessor, by his own act, terminated month for the one hundred and fifteen the lease, and not the adjudication in bank- months subsequent to February, 1903, and ruptcy.

this amounted to $1,437.50, which he alRe Arnstein, 101 Fed. 706; Ex parte lowed to the appellant under the name Houghton, 1 Low. Dec. 554, Fed. Cas. No. of damages for the breach of the contract in 6,725.

the lease. Appellant's claim is one for future rent, These facts demonstrate the proposition and as such is not provable under the bank that, wbile counsel and the referee call this ruptcy act.

allowance damages for a breach of the lease, Re Mahler, 3 N. B. N. Rep. 39, 105 Fed. it is in fact nothing but that part of the 432; Re Arnstein, 101 Fed. 706; Re Hev- monthly rent which was to accrue after the enor, 144 N. Y. 271, 39 N. E. 393; Deane petition was filed, which the referee found v. Caldwell, 127 Mass. 242; Atkins v. Wil that the lessee had not paid by his surren. cox, 53 L. R. A. 118, 44 C. C. A. 626, 3 N. der of the leased premises to the lessor in B. N. Rep. 497, 105 Fed. 595; Fidelity Safe March, 1903. But rent which the bunkrupt Deposit & T. Co. v. Armstrong, 35 Fed. 567; has agreed to pay, and which is to accrue Brown v. Schleier, 55 C. C. A. 475, 118 subsequent to the filing of the petition in Fed. 981; Re Curtis, 109 La. 171, 9 Am. bankruptcy, does not constitute a prov. Bankr. Rep. 286, 94 Am. St. Rep. 445, 33 able claim under the bankruptcy law of So. 125.

1898 (Act July 1, 1898, chap. 541, 30 Stat.

an

are

at L. 562, 563, U. S. Comp. Stat. 1901, p. , lessee will pay any rents after his default 3447), because it is not "a fixed liability and the re-entry by the lessor. The use

absolutely owing at the time of and occupation of the premises during the the filing of 'the petition against him" (§ term of the lease were the consideration for 63a), and because it is not ex- the payment of the monthly rents, and the isting demand, but both the existence payment of the rents was the consideration and the amount of the possible future de. for the use of the premises. If the rent mand contingent upon unforeseen for any month was not paid, or if waste events, such as default of the lessee, re-entry was permitted, the lessor had the option by the lessor, and assumption by the trus- to repossess himself of the premises, and tee, so that it is neither an unliquidat- to withold from thenceforth the consideraed nor

a liquidated provable claim ( $ tion for future instalments of rent, or to 636). Walla Walla v. Walla Walla Water permit the lessee to continue in possession Co. 172 U. S. 1, 19, 43 L. ed. 341, 349, of the property, and to enforce the collection 19 Sup. Ct. Rep. 77; Re Ells, 2 N. B. N. I of the rents by an action or by some other Rep. 360, 98 Fed. 967, 969, 970; Re Mahler, i proceeding. He could not, however, do 3 N. B. N. Rep. 39, 105 Fed. 428, 430 ; both. His resumption of the premises necFidelity Safe Deposit & T. Co. v. Arm- essarily constituted, in the absence of an strong, 35 Fed. 567, 569; Re Hevenor, 144 express agreement to the contrary, a terN. Y. 271, 274, 39 N. E. 393; Re Commer- mination of the lease, and a release of the cial Bulletin Co. 2 Woods, 220, Fed. Cas. lessee from the payment of all the instalNo. 3,060; Re Collignon, 4 Am. Bankr. Rep. ments of rent he had promised to pay there. 250; Atkins v. Wilcox, 53 L. R. A. 118, 44 after. Lamson Consol. Store Service Co. C. C. A. 626, 3 N. B. N. Rep. 497, 105 Fed. v. Bowland, 52 C. C. A. 335, 338, 114 Fed. 595; Ke Curtis, 109 La. 171, 9 Am. Bankr. 639, 642. Rep. 286, 292, 295, 94 Am. St. Rep. 445, Moreover, if by contract or by virtue of 33 So. 125; Re Heinsfurter, 97 Fed. 198; legal proceedings the lessor became entitled Beers v. Hanlin, 3 N. B. N. Rep. 749, 99 to the possession of the premises, and also Fed. 695; Lamson Consol. Store Service to the difference between the amount which Co. v. Bowland, 52 C. C. A. 335, 338, 114 he might secure from another tenant, or the Fed. 639, 642; Wilson v. Pennsylvania rental value of the leasehold, and the rents Trust Co. 52 C. C. A. 374, 114 Fed. 742. reserved, that amount would always be un

In Deane v. Caldwell, 127 Mass. 242, 244, certain and contingent upon future events. Chief Justice Gray (subsequently Mr. Jus- Re Hevenor, 144 N. Y. 271, 274, 39 N. E. tice Gray of the supreme court) announced 393. the true rule upon this subject in these When the petition in bankruptcy was filed, words: “Before the day at which rent is no rent was due and unpaid. There was there. covenanted to be paid, it is in no sense a fore no debt owing by the lessce to Watson, debt. It is neither debitum nor solven- and the latter had no legal demand or claim dum; for, if the lessee is evicted before against him under the lease. The future that day, it never becomes payable. Bord- existence of any such claim or demand, and

v. Osborn, 23 Pick. 295. It is not its amount, if it ever came into existence, within the provision of a bankrupt act were contingent upon (1) the future de allowing 'uncertain or contingent demands' fault of the lessee; (2) the exercise by the to be proved against the estate of a bank- lessor of his option to resume the possession rupt, because it is not an existing demand, of the leased premises if such a default the cause of action on which depends upon should occur; and (3) upon the assumpa contingency; but the very existence of the tion of the lease by the trustee in bankdemand depends upon a contingency." ruptcy. For the latter had the option to

The lease before us admirably illustrates take the leasehold estate, and to assume the principle. It provides that the lessee the payment of the agreed rents. Ex parte shall pay $60 per month for the term of Houghton, 1 Low. Dec. 554, Fed. Cas. No. ten years “for the use and benefit accruing 6,725; Ames v. Union P. R. Co. 60 Fed. 966, to him from the use and occupancy' of the 970, 971; Re Ells, 2 N. B. N. Rep. 360, premises; that, if he pays these sums as 08 Fed. 967, 968. As the lessor had no they fall due, and performs all his cove legal claim or demand against the lessee for nants, he may hold and enjoy the premises; the agreed rents to be paid in the future, but that, if any rents are due and un when the petition in bankruptcy was filed; paid, or if default is made in any of and as the future existence and the amount his covenants, or if he allows any un of such a claim were both contingent upon due waste of any of the improvements unforeseen future events,-Watson had no on the premises, the lessor may at once provable claim for any part of these rents. re-enter and repossess the premises. The Since his claim is in fact for nothing but contract contains no covenant that the $12.50 per month of the agreed rents pay.

man

able after the filing of the petition in bank. I liable for his debts; but he does acquire the ruptcy, the application to it of the title right to accept and assume, or to renounce, of a claim for damages for a breach of the the executory agreements of the bankrupt, lease neither changes its nature, nor makes as he may deem most advantageous to the it more provable than it would have been estate he is administering; and the parties if its real character had been described to those contracts which he assumes are by its name.

still liable to perform them. And SO 2. An adjudication in bankruptcy does throughout the entire field of contractual not dissolve or terminate the contractual obligations the adjudication in bankruptcy relations of the bankrupt, notwithstanding absolves from no agreement, terminates no the decisions to the contrary in Re Jeffer contract, and discharges no liability. Re son, 2 Am. Bankr. Rep. 206, 93 Fed. 948; Curtis, 109 La. 171, 9 Am. Bankr. Rep. Bray v. Cobb, 3 Am. Bankr. Rep. 788, 109 286, 94 Am. St. Rep. 445, 33 So. 125; Re Fed. 270; and Re Hays, F. & W. Co. 117 Ells, 2 N. B. N. Rep. 360, 98 Fed. 967, 968; Fed. 879. Its effect is to transfer to the Witthaus v. Zimmerman, 91 App. Div. 202 trustee all the property of the bankrupt 11 Am. Bankr. Rep. 314, 316, 86 N. Y. except his executory contracts, and to vest Supp. 315; White v. Griffing, 44 Conn. 437. in the trustee the option to assume or to 446, 447; Re Pennevell, 55 C. C. A. 571, 9 renounce these. It is the assignment of Am. Bankr. Rep. 490, 119 Fed. 139. the property of the bankrupt to the trustee 3. Not only this, but, if counsel for apby operation of law. It neither releases pellant could sustain his proposition that nor absolves the debtor from any of his the adjudication of bankruptcy absolved the contracts or obligations, but, like any other parties to the lease from their contract at assignment of property by an obligor, leaves the date of the filing of the petition in him bound by his agreements, and subject bankruptcy, or terminated the lease on t'at to the liabilities he has incurred. It is day, still the lessor would have no legal the discharge of the bankrupt alone, not claim against the estate, because the petihis adjudication, that releases him from tion was filed on February 6, 1903, the liability for provable debts in consideration rent was paid by Brown to March 1, 1903, of liis surrender of liis property, and its there had been no breach of the contract distribution among the creditors who hold when the petition was filed, and, if both them. Even the discharge fails to relieve parties were released from the agreement him from claims against him that are not at that time, or if the lease was then ter. provable in bankruptcy; and, since his minated, neither party could have subseobligation to pay rents which are to accrue quently been in default under it or have after the filing of the petition in bankruptcy committed a breach of it, because theremay not be the basis of a provable claim. after no contract would have existed to be his liability for them is neither releised defaulted, and no covenant to be broken. nor affected by his adjudication in bank- 4. Finally the adjudication in bankruptcy ruptcy, or by his discharge from his prov. did not constitute a breach of the lease, and able debts. One agrees to pay monthly it raised no cause of action as of the date rents for the place of residence of his fam- of the filing of the petition in bankruptcy. ily or for his place of business, or to render At that date the rent had been paid until personal services for monthly compensation March 1, 1903,—until twenty-two days after for a term of years; he agrees to purchase the date of the filing. There could thereor to convey property; and he then becomes fore have been no breach until March 1, insolvent and is adjudicated a bankrupt. 1903, when the rent for March fe'l due; His obligations and liabilities are neither and consequently there was no claim or terminated nor released by the adjudication. demand founded on a breach of the contract He still remains legally bound to pay the at the time the petition was filed, and, if rents, to render the services, and to fulfil one ever accrued, it arose many days after all his other obligations, notwithstanding the filing of the petition, and too late to the fact that his insolvency may render constitute a provable claim against the him unable immediately to do so. Nor are estate of the bankrupt. The rule of law those who contracted with him absolved that, where one has disabled himself from from their obligations. If he or his trustee performing a contract, it immediately pays the stipulated rents for his place of ripens, and an action for its breach arises, residence, or for his place of business, the which is illustrated by Re Swift, 50 C. C. lessors may not deny to the payor the use A. 264, 112 Fed. 315, wherein a stockbroker of the premises according to the terms of had made contract to deliver stock the lease. If he renders the personal serve

customer, and he

held to ices, he who contracted to pay for them have made it impossible for him to may not deny his liability to discharge this fulfil his agreement by his adjudicaobligation. His trustee does not become ' tion in bankruptcy, which took the stock

a

to

a

was

from him, and vested it and all his 604, and Re Frederick L. Grant Shoe Co. property in his trustee, is not in conflict 66 C. C. A. 78, 130 Fed. 881, cited by apwith this conclusion, because the leasehold pellant's counsel, fail to rule the question estate of Brown-the only thing essential here under consideration, because the to the performance of his contract-never breaches of contract in those cases occurred passed to his trustee, as the latter did not before the petitions in bankruptcy were filed. elect to assume it. Brown was not neces. The conclusion is that a claim for damsarily disabled by the adjudication from ages for a breach of a contract in a lease using or selling his leasehold, or from pay- to pay instalments of rent for the use of ing the rent. The mere probable financial the premises at times subsequent to the inability of one to fulfil his contract, or to filing of the petition in bankruptcy is not pay his debt not yet due, does not make provable under the bankruptcy law of 1898, them immediately due and actionable. The and the order of the District Court is af. cases Re Stern, 54 C. C. A. 60, 116 Fed. 'firmed.

UNITED STATES CIRCUIT COURT OF APPEALS, FIRST CIRCUIT.

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Town of NAHANT, Piff. in Err., This right is independent of the consent of

any state, and requires no state legislation UNITED STATES of America, Impleaded,

as a condition precedent to its exercise.

Kohl v. United States, 91 U. S. 367, 23 etc.

L. ed. 449; Ft. Leavenworth R. Co. v. Love, (136 Fed. 273.)

114 U. S. 525, 29 L. ed. 264, 5 Sup. Ct. Rep.

995. 1. A state statute acqniescing in an The commonwealth of Massachusetts did

attempt by the Federal government to acquire land within the state for the not, by chapter 373 of the Acts of 1902, deluse of such government does not entitle the egate to the United States the authority to government to employ the local rule of dam exercise the right of eminent domain of the ages as the measure of its liability for prop. commonwealth in this case.

erty taken. 2. The value of sewer and water pipes Boston, 14 Gray, 282; People ex rel. Hayden

Perry v. TFilson, 7 Mass. 393; Glover v. owned by a municipal corporation, and laid under streets which are taken by

v. Rochester, 50 N. Y. 525; Currier v. Marithe Federal government under its power of etta & C. R. Co. 11 Ohio St. 228; Butler v. eminent domain for an entirely different use, Thomasville, 74 Ga. 570; Peavey v. Calais must be paid to the municipality.

R. Co. 30 Me. 498; Burt v. Merchants' Ins.

Co. 106 Mass. 356, 8 Am. Rep. 339; Kohl v. (March 20, 1905.)

United States, 91 U. S. 374, 23 L. ed. 452.

Property of the town of Nahant was taken E RROR, to the District Court of the

United States for the District of Mas. | by the United States by force of these prosachusetts to review a judgment refusing ceedings. compensation to the town of Nahant for the Newburyport Water Co. v. Newburyport, value of certain property alleged to have 168 Mass. 541, 47 N. E. 533. been taken by the United States under its An easement is property within the meanpower of eminent domain. Reversed. ing of the 5th Amendment to the ConstituThe facts are stated in the opinion.

tion of the United States. Argued before Colt and Putnam, Circuit United States v. Great Falls Afg. Co. 112 Judges, and Aldrich, District Judge.

U. S. 645, 28 L. ed. 846, 5 Sup. Ct. Rep. Messrs. James R. Dunbar and Wil- 306; Great Falls Mfg. Co. v. Atty. Gen. liam Hoag, for plaintiff in error:

(Great Falls Mfg. Co. v. Garland) 124 U. The United States possesses, as an inher. S. 581, 31 L. ed. 527, 8 Sup. Ct. Rep. 631; ent attribute of sovereignty, the right of Lowndes v. United States, 105 Fed. 833; eminent domain,—the right to take private United States v. Certain Lands, 112 Fed. property for public uses within the scope 622. of the powers granted by the Constitution.

The taking away of the usefulness of a Note. -As to right of public to compensa- piece of property is a taking of the propertion upon interference with its interests by the ty itself. exercise of the right of eminent domain, see Lewis, Em. Dom. 2d ed. pp. 49, 61-63; Seattle & M. R. Co. v. Washington, 22 L. R. A.

Eaton v. Boston, C. & M. R. Co. 51 N. H. 217; Heffner v. Cass & Morgan Counties, 58 L. R. A. 353; Zanesville v. Zanesville Teleg. 504, 12 Am. Rep. 147. & Teleph. (0. 52 L. R. A. 150.

To the extent of its impairment in useful. ness, the sewer system of the town has been | MerchantsIns. Co. 106 Mass. 356, 8 Am. taken.

Rep. 339. Eaton v. Boston, C. & M. R. Co. 51 N. H. The roads, streets, and paths referred to 504, 12 Am. Rep. 147; Monongahela Nav. being devoted to purposes strictly public, Co. v. United States, 148 U. S. 343, 37 L. ed. and held by the town merely as an agency 474, 13 Sup. Ct. Rep. 622; Sedgw. Stat. & of the state government for the performConst. Law, 2d ed. pp. 462, 463; United ance of the strictly public duties devolved States v. Lynah, 188 U. S. 445, 47 L. ed. upon it, the town would not be entitled to 539, 23 Sup. Ct. Rep. 349; United States v. compensation for a taking by the commonAlexander, 148 U. S. 191, 37 L. ed. 417, 13 wealth for other public purposes. Sup. Ct. Rep. 529; Pumpelly v. Green Bay Mt. Hope Cemetery v. Boston, 158 Mass. & M. Canal Co. 13 Wall. 166, 20 L. ed. 557 ; 509, 35 Am. St. Rep. 515, 33 N. E. 695; Old Colony & F. River R. Co. v. Plymouth Re Certain Land, 119 Fed. 456. County, 14 Gray, 155; Thompson v. Andro- Sewerage and water pipes constructed upscoggin River Improv. Co. 54 N. H. 545; on or under public ways are personal propArimond v. Green Bay & M. Canal Co. 31 erty. The right of the town to maintain Wis. 316; People ex rel. Manhattan Sav. and use them is not a right of

operty in Inst. v. Otis, 90 N. Y. 48.

real estate. The town of Nahant had such an interest New England Teleph. & Teleg. Co. v. Bos. in the property taken as entitled it to com- ton Terininal Co. 182 Mass, 397, 65 N. E. pensation.

835; Natick Gaslight Co. v. Natick, 175 United States v. Lynah, 188 U. S. 445, 47 | Jass. 246, 56 N. E. 292; Com. v. Lowell L. ed. 539, 23 Sup. Ct. Rep. 349; Webb v. Gaslight Co. 12 Allen, 75; Dudley v. Jamai. Meyers, 64 Hun, 11, 18 N. Y. Supp. 711; ca Pond Aqueduct Corp. 100 Mass. 183; Hand v. Brookline, 126 Mass. 324; Scott v. Edmands v. Boston, 108 Mass. 535. Manchester, 1 Hurlst. & N. 59, 2 Hurlst. & N. 204; White v. Hindley Local Bd. of Aldrich, District Judge, delivered the Health, L. R. 10 Q. B. 219; Bailey v. New opinion of the court: York, 3 Hill, 531, 38 Am. Dec. 669, 2 Denio, This is a proceeding instituted by the 433; Aldrich v. Tripp, 11 R. I. 141, 23 Am. United States for condemnation of certain Rep. 434; Oliver v. Worcester, 102 Mass. land at Nahant needed by the general gov489, 3 Am. Rep. 485; Child v. Boston, 4 ernment for fortifications and coast deAllen, 41, 81 Am. Dec. 680; Merrifield v. fenses, together with all roads, ways, and Worcester, 110 Mass. 216, 14 Am. Rep. 592; avenues included in the description of land, Murphy v. Lowell, 124 Mass. 564; Bates as well as all buildings and structures. The v. Westborough, 151 Mass. 174, 7 L. R. A. petition of the United States contains a 156, 23 N. E. 1070.

prayer for notice to certain parties of inIf the water and sewerage systems were

terest expressly named, and a general prayer public property which could be appropriated for notice to all parties interested in the without compensation by the commonwealth lands described, and parts thereof, and of Massachusetts, the United States stands rights therein, and for an appraisement and

valuation by a jury of the land and ways differently.

and interests therein, and any buildings St. Louis v. Western U. Teleg. Co. 148 U. S. 92, 37 L. ed. 380, 13 Sup. Čt. Rep. 485, standing on said land, including all damages

sustained by the owner or owners thereof. 26 Am. Law Rev. 520; Bates v. West. borough, 151 Mass. 174, 7 L. R. A. 156, 23 district court ordered notice to the parties

. Following the prayer of the petition, the N. E. 1070.

of interest named, and to any and all other Mr. William H. Garland, for defendant in error:

persons, corporations, and associations who The town was not entitled to compensa- the petition, or any parts thereof or rights

may be interested in the lands described in tion for the taking of the land upon which its therein; and that they and each of them aproads, streets, and paths were constructed. pear before the court, and show cause why

Cheshire v. Adams & C. Reservoir Co. 119 the petition should not be granted as prayed Mass. 356; Perley v. Chandler, 6 Mass. 453, for, 4 Am. Dec. 159; Millbury v. Blackstone Ca- The order further directed the marshal nal Co. 8 Pick. 473; Andover v. Sutton, 12 to serve a copy of the petition upon parties Met. 182; McHugh v. Boston, 173 Mass. of interest expressly named, and to give no408, 53 N. E. 905.

tice to all persons, corporations, or associaThese proceedings were to be governed by tions interested, by publication, and the rethe laws of Massachusetts; and the rights of turn shows that notice was in fact in the town to the lands in question are de accordance with the order. Subsequently, termined by those laws.

but seasonably, the town of Nahant, in Re Certain Land, 119 Fed. 453; Burt v. which the property is situated, filed its ap

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