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§ 1104. “The plaintiff must lie on the bed he, fore the court sustained the plea in abatement, has made. He cannot substitute one surety | the plaintiff had filed exceptions to the same, for another, as a matter of right, nor can and a motion to substitute a new bond, in the court confer such right, when the bond which motion it is stated: “Plaintiff says 'tis was worthless ab initio, by reason of the in- true, said sureties, Lamb and Wrather, are ressolvency of the surety, unless such power is idents of the state of Tennessee, but, as to their given by statute." Wap. Attachm, p. 125. having property in the state of Texas, plaintiff There is no provision of the statute of this is unable to state," etc. Attached to the plea state allowing the emendation of attachment in abatement was the affidavit of B. T. Palmer, bonds. If there was a defect in the bond in clerk of the court, who approved the bond and this case, it was incurable by amendment. issued the attachment, in effect, that he ap

3. The next assignment of error urged by ap- proved the bond mainly on the ground that the pellant is to the effect that the court below sureties were solvent, as shown by the certifierred in sustaining defendant Lamkin's second cate of the clerk of the county court of Henry amended plea in abatement, because it was not county, Tenn., and on the statement of plainsupported by any evidence, nor was any proof tiff's attorneys that they believed the surety A. offered in support of the same; that the affida- B. Lamb (one of the sureties on said bond) had vit of B. T. Palmer, district clerk, attached to property in Texas, and that affiant had no defithe plea, was not evidence, and could not nite knowledge that said sureties had any prophave been considered by the court, it being a erty in Texas. We think affidavits may be rule of practice that all pleas in abatement, read in support of a plea in abatement to the where the matters relied on are not of record, | sufficiency of the bond. Wap. Attachm. pp. must be supported by legal evidence, and the 430-434, inclusive. But, besides the affidavit of bond for attachment (being for sufficient the district clerk, it was admitted by plaintiff, amount, conditioned as the law directs, signed in his motion to substitute the bond, that the by a sufficient number of sureties) was prima fact of nonresidence of the sureties was true. facie a good bond, and could only be abated We think the fact alone admitted to be true upon full and competent proof; that, while was sufficient to authorize the court to sustain good on its face, it was in fact insufficient, and the plea. The sureties were nonresidents of because the bond being prima facie good, in the the state, and it would be immaterial whether absence of express statutory authority, its va- they had property in this state or not, as, in a lidity could not be questioned, and there is no suit against them for damages for the wrongauthority in this state providing for abatement ful suing out of the attachment, their property of attachment bonds that are prima facie good. could not be attached so as to give jurisdiction We think a plea in abatement is permitted in to the action, because it would be an unliquithis state to show the insufficiency of an at- dated demand, that would not support attachtachment bond when it appears to be prima fa- ment. cie good. Donnelly v. Elser, 69 Tex, 286, 6 S. 5. We agree with the court below that it is W. 563; Bank v. Cupp, 59 Tex. 270; Messner and should be the policy of this state not to rev. Hutchins, 17 Tex. 597; 1 Wade, Attachm. quire its citizens to go out of our own jurisdic$$ 109-112, 285; Davis v. Willis, 47 Tex. 155; tion to recover damages against sureties on atAnderson v. Chandler, 18 Tex. 436. "The prin- tachment bonds, and consequently that nonrescipal methods in use for dissolving an attach- ident persons are not the persons mentioned in ment on grounds dehors the record are the mo- the statute as "good and sufficient sureties" tion or rule to dissolve, and the plea in abate- required in an attachment bond. They might ment.” Wap. Attachm. 427. We have no doubt as well be insolvent as nonresidents of the but there may be grounds to dissolve an attach- state, so far as a suit in this state could be ment in this state when all the proceedings are available against them. Our statute was inin form and regular, and that the proper meth- tended to meet the requirements of our own juod of raising the question is by plea in abate- risdiction, and to provide for it, not for courts ment.

in other states, nor to compel our citizens to go 4. The court was not without proof that the out of the state to sue for damages on an atground of nonresidence of the sureties was tachment bond. That the insolvency of suretrue. The bond was in form, and for a proper ties on attachment bond is good ground for amount. It was signed by the plaintiff, and A. abating it and dissolving the attachment, see B. Lamb and W. T. Wrather as sureties. It Wap. Attachm. pp. 121-126; Id. pp. 426, 427. was approved by the clerk of the district court The right to question the validity of the bond who issued the writ, but under the following by plea in abatement exists independent of circumstances: The clerk of the county court statute. Id. p. 427. Suppose the clerk, in an of Henry county, state of Tennessee, certified attachment suit, should approve a bond that that he was personally acquainted with S. H. had been forged; would it be said that there Caldwell and A. B. Lamb and W. T. Wrather, must be a provision of the statute authorizing and that each of the sureties was good and it, before the creditor could show the fact under solvent, and well worth more than the amount a proper plea? The bond may appear to be of the bond, over all liabilities and exemptions, good, and in all respects in form conformable and that if the same were tendered to him he to the statute; yet if, from extrinsic facts, it would accept and approve the same. This cer- be made to appear that it furnishes no security {ificate was made in Henry county, Tenn. Be- to the debtor for wrongfully taking his prop

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erty, unquestionably, such facts may be shown, , 2 in block No. 1, as described in the plat and and the proper method of laying a predicate for field notes of the partition of said league the proof would be by plea in abatement. It amongst the heirs; thence running with the may be said that defendant Lamkin had the lower line of lot No. 2 in block No. 1, N., 30 right to plead in reconvention or cross suit for E., 3,060 vrs., to the northeast corner of lot damages for wrongfully suing out the writ, No. 2 in block No. 1; thence runs south, 60 and that, therefore, the sureties on the bond east, 605 yrs., to a stake from which a black would be in court for such purpose, and the jack bears S., 35 W., 7 vrs. distant, and a court could render personal judgment against | hackberry brs. S., 87 W., 7 vrs.; thence runs them for such damages. This is not, however, south, 30 W., 3,410 vrs., to a stake from the only right of the defendant. He has the which a box elder brs. S., 45 E., 5 yrs. distant right to bring an action on the bond for the (this corner stands on the northeast bank of wrongful issuance of the writ, and this he the San Marcos river); thence runs up said could not do if the sureties were not residents river, with its meanderings, to the place of beof the state, as he could not attach their prop- ginning,-containing 347 acres of land, more erty, if they had any in the state, on such a or less. And this tract of land is that part of suit. We therefore conclude that, if the bur- said league which in the said partition den of proof was on the defendant Lamkin on amongst the heirs is marked as lot No. 3 in his plea in abatement, the admission of plain- block No. 1. Second tract situated, lying, tiff that the sureties on the attachment bond being in the county of Caldwell, state of were residents of Tennessee was sufficient to Texas, on the San Marcos river, about 15 sustain the plea, without showing that they had miles above Gonzales; the same being a part no property within the state. And we also con- of the headright league of Silas Fuqua, dec'd, clude that such fact of nonresidence rendered and being that particular part of said league the bond insufficient as security for the writ. amongst the heirs of said Silas Fuqua was These being our conclusions, it becomes un- allotted to Lusius Fuqua as lot No. 4 in block necessary for us to proceed further upon the No. 1, as described in the map of the partiother issues found by the trial court in favor tion of said league; and the metes and bounds of defendants Johnston and Flournoy,--that of which tract levied upon are as follows, to their claim of ownership to the property levied wit: "Beginning at the lower of lot No. 3 in on was superior to the claim of plaintiff under block No. 1, allotted in the partition of said the attachment. When the attachment was league Salvia Pinger, said corner being a dissolved because of the insufficiency of the stake from which a box elder brs. S., 45 E., bond, all rights under the writ failed, and the 5 vrs; thence N., 30 E., 3,410 yrs., to the court could not do more than it did do,-to ren- northeast corner of lot No. 3 in said block No. der judgment for the plaintiff for his debt, and 1; thence S., 60 E., 725 yrs., to a stake on refuse to foreclose the attachment lien. We the south line of the Silas Fuqua league, from therefore conclude that the judgment of the which a post oak brs. S., 76 W., 7 yrs., and a lower court should be affirmed, and it is so or- black jack brs. S., 55 E., 5 yrs.; thence with dered. Affirmed.

the lower line of said Fuqua league to the

northeast bank of the San Marcos river; Findings of Fact.

thence up said San Marcos river to the place

of beginning,-containing 450 acres, more or In case the supreme court should disagree less." with us in dissolving the attachment in this Plaintiff read in evidence the note sued on, case because of the insufficiency of the bond, the affidavit and bond for attachment, the we deem it necessary to find the facts upon writ of attachment, and the return thereon, the other branch of the case, as to the claims

and certified copy of the writ, the return and of defendants Johnston and Flournoy. We

record of the same in the county clerk's office therefore find such facts, in addition to the of Caldwell county, Tex., showing a levy on facts found in connection with our opinion the land claimed by defendants Lamkin, filed herewith, so that the whole case may

Johnston, and Flournoy, and a record of that be before the supreme court in case of writ of levy in the county clerk's office of Caldwell error to that court, as follows:

county on August 9, 1894; the land claimed by Additional findings of fact as to the claims Johnston and Flournoy, respectively, being of appellees Johnston and Flournoy:

part of the land embraced in the levy of plainThe sheriff's return on the writ shows that tiff's attachment. Defendant Johnston read he levied on all the right, title, and interest in evidence a trust deed dated February 14, of L. A. L. Lamkin in the following lands: 1885, upon land described in the trust deed, “Situated in Caldwell county, Texas: First viz. that certain tract of 200 acres of land in tract being a part of the headright league of Caldwell county known as the “Old Home land of Silas Fuqua, on the east side of the Place of George W. Hyson," being a part of San Marcos river, about 1,304 above the town the Silas Fuqua league; said tract of land of Gonzales. Beginning at a stake on the deeded to N. B. Fuller on September 3, 1880, northeast bank of the San Marcos river, from and by N. B. Fuller and wife to L. A. L. which a buroak brs. N., 75 E., 8 yrs. dis- Lamkin on the 1st day of September, 1881, tant, the same being the lower corner of lot by deed recorded in Caldwell County Records, on pages 363 and 364, of Book W, to secure, 368, the description of the land being as foltwo notes of same date for $1,306.25, due one lows: "Situated in Caldwell county, being a and two years from date, with 12 per cent. | part of the Silas Fuqua league, the amount interest and 10 per cent. attorney's fees, estimated at 200 acres, situated about 4 miles which said trust deed was filed for record southeast of the town of Luling, through February 17, 1885, and recorded in Trust which the San Antonio and Aransas Pass Deed Records of Caldwell County, Book B, Railway now runs, and bounded as follows: pp. 31, 32, 33. Defendant Johnston also in- On the north or upper side by two tracts of troduced in evidence the two notes referred land owned by L. A. L. Lamkin and the esto above, with credits partial payments tate of J. K. Walker one 342 acre tract, and shown on the back of each by defendant the other 14 acres, known as the 'Mill Tract'; Lamkin on the 10th February, 1891, signed on the east and southeast by Plumb creek, by Lamkin on that date. He also introduced and on the west by the San Marcos river, and two deeds, one from George W. Hyson to N. on the south, just above the conjunction of B. Fuller, dated September 3, 1880, duly re- the San Marcos river and Plumb creek, by corded on the 30th September, 1880, in Book a tract of land formerly owned by L. A. L. W, pp. 345, 346, of Caldwell County Deed Lamkin, and by him conveyed to F. Flournoy Records, the description of the land conveyed by deed dated September 3rd, 1894; said land in said deed being as "all that certain tract being between the said river and the said of land known as my 'Home Place,' in Cald- Plumb creek, and being all the land between well county, Texas, being the same tract of said creek and river below said mill tracts land sold to me by James Hyson the 11th above mentioned, except a small portion of day of March, 1868, and containing 200 acres, the tract conveyed by me (Lamkin] to F. a part of the Silas Fuqua league, and lies Flournoy; said land herein conveyed being between the San Marcos river and Plumb that portion of lot No. 3 lying between San creek.” Also deed from N. B. Fuller and Marcos river and Plumb creek in the partition wife to L. A. L. Lamkin, dated September of the Silas Fuqua league, as shown in the 1, 1881, duly recorded in Caldwell County field notes and plat in the record in the RecDeed Records, in Book W, pp. 363, 364, on ords of Gonzales County transcribed and rethe 8th day of October, 1881, the land con- corded in Gonzales County Records transcrib-, veyed being described as "that certain tracted for Caldwell county, pages 324 to 329, to of land in Caldwell county, Texas, known as which records reference is here made for a the 'Home Place of Geo. W. Hyson,' contain- more particular and further description of ing 200 acres, being part of Silas Fuqua said land.” Johnston also introduced the league, and the same properly deeded to me transcribed records of the partition of the by said Hyson on the 3rd day of September, Silas Fuqua league and the field notes of the 1880." Defendant Johnston also introduced partition. Johnston proved that defendant in evidence two deeds from defendant Lam-Lamkin, February 14, 1885, borrowed money kin to himself (Johnston), one dated August from him, and on that date executed to him 28, 1894, duly recorded in Deed Records of two notes for $1,306.25 each, due in one and Caldwell County, in Book 17, pp. 301, 302, to two years after date, bearing 12 per cent. inland described as follows: "That certain tract terest per annum from date, and 10 per cent. situated and lying in Caldwell county, state attorney's fees if sued on, to secure which he of Texas, on the east bank of the San Marcos executed deed of trust on 200 acres of land river, on the west bank of Plumb creek, described in the trust deed above set out; that known as the 'Geo. W. Hyson Home Place,' the land covered by that trust deed was a part of the Silas Fuqua league, and contain- known to him and to Lamkin. It was siting 200 acres, more or less, and being about uated on the Fuqua league, between the San four miles below the town of Luling, the Marcos river and Plumb creek, and known same being that particular tract of land con- as the "Geo. W. Hyson Homestead," sold by veyed by N. B. Fuller and wife to me by deed him to N. B. Fuller, and by Fuller and wife bearing date Sept. 1st, 1881, and duly record- to L. A. L. Lamkin; that afterwards, on ed on 8th day of Oct. 1881, in Records of February 10, 1891, defendant Lamkin made a Caldwell County, Book W, pp. 363 and 364, small payment on said notes, and renewed to which reference is made; the consideration the notes on the back of each note, and signrecited in said deed being the release of said ed his name to each renewal, and that on Lamkin of $4,600, the balance and interest August 28th defendant Lamkin was unable due on said two notes hereinbefore referred to pay the notes, and, in consideration of the to, and the consideration of said notes and re- notes, executed and delivered to him (Johnlease of said deed of trust by defendant John- ston) a deed for said land, and delivered the ston to Lumkin." Johnston also introduced possession of the land to him (Johnston) and a corrective deed to make a better description that at the time he had no actual notice of of the land, dated 27th day -- -, 1894, ac- the issuance and levy of the plaintiff's attachknowledged September 27, 1894, and filed for ment, and that the price paid for the land was record September 27, 1894, duly recorded in more than the fair and reasonable value; that, Deed Records of Caldwell County on the 5th before the filing of this suit, Johnston had a day of October, 1894, in Book 17, pp. 367, conversation with E. F. Barnhill, one of the

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plaintiff's attorneys, who had plaintiff's claim for collection, in which he (Johnston) explained to Barnhill, “as attorney for plaintiff," that Johnston had an unpaid trust deed on defendant Lamkin's land, and explained what land the trust deed covered; that Barnhill knew the tract covered by the trust deed, and proposed to Johnston to take up his mortgage. Lamkin executed the notes to Johnston for borrowed money, and, being unable to pay the money, executed to Johnston the conveyance to it, August 28, 1894, delivered it to Johnston, and put him in possession, and Johnston surrendered the note to Lamkin. The notes were renewed, as stated, on February 10, 1891. Lamkin fully described the land at the time of the execution of the deed of trust, and both of them knew what land it was, known as the “Geo. W. Hyson Homestead," sold by him to Fuller, and by Fuller and wife to Lamkin. Lamkin had notified the attorney of administrators, who transferred the note sued on to plaintiff, by letter, that the tract of land was covered by Johnston's deed of trust. The price received by Lamkin from Johnston was more than the full value of the 200 acres.

The defendant Flournoy proved the following facts: He introduced in evidence a mortgage from L. A. L. Lamkin to himself, dated January 21, 1889, duly recorded in Trust Deed Records of Caldwell County, on "a certain tract of land situated in Caldwell county, on the east side of the San Marcos river, about 4 miles south of the town of Luling, 285 acres out of the Silas Fuqua league, a part of which is in cultivation, the balance in pasture and outlands, all of which is on record in said Caldwell county and state of Texas,” referred to and made a part of the description of the land covered by the mortgage. The mortgage was given to secure the payment of three promissory notes of same date as the mortgage, payable in one, two, and three years, respectively, from date, with 10 per cent. interest per annum from date, payable annually, notes given by Lamkin to Flournoy each for the amount of $666.66%. Flournoy also introduced a deed in evidence,-a deed from defendant L. A. L. Lamkin to him (Flournoy),--dated September 3, 1894, recorded in Caldwell county, same day, to land, as follows: "Beginning at the lower corner of lot 3 in block No. 1, at a stake on the N. E. bank of the San Marcos river; thence with the lower line of said lot 3 to its corner; thence S., 60 E., 725 vrs., to a stake on the south boundary line of said league, S., 30 W., 3,540 vrs., to the lower corner of league on bank of San Marcos river; thence with the meanderings of the river to the place of beginning,-containing 450 acres of land; the land conveyed being the S. W. end of said survey, and all the tract S. W. of John Brown's S. W. line; the other lines of the 285-acre tract being the lines of the original 450-acre tract." It was proved

V.33s.w.no.3–21

that the land conveyed by Lamkin and Flournoy was the same land upon which Flournoy had a mortgage, and is the southeast end of a survey of 450 acres, which was lot No. 3 of the Silas Fuqua partition. At the time Lamkin made the mortgage to Flournoy, he had conveyed all of the rest of the 450-acre tract to other parties, by deed duly recorded, and the vendees were in possession of the same. The 285 acres was all the land Lamkin then -at the time of the execution of the mortgage-owned in the Silas Fuqua league, and Lamkin was in actual possession of the same, cultivating a part of it as a farm, Lamkin, outside of the deed, fully described the land intended to be mortgaged to Flournoy, and the latter knew what land it was at the time the mortgage was executed. At the time of the execution of the deed by Lamkin to Flournoy, there was due and owing on the mortgage $2,122, which Lamkin was unable to pay. Flournoy was pressing for payment of the debt, and, having no other means of paying it, Lamkin conveyed to him the lands covered by the mortgage in consideration of the sum of $2,122, which Lamkin considered at the time a fair market value of the land. This amount was paid by the notes at the time of the execution of the deed, and Lamkin at the time placed Flournoy in possession of the land. Neither Flournoy nor Lamkin at the time had actual knowledge that plaintiff's attachment had been levied upon the land, and Lamkin did not know of the levy of the attachment until some weeks afterwards. Before plaintiff's suit was filed, Lamkin notified plaintiff's attorney, Mr. Barnhill, of the execution of the mortgage to Flournoy, and that it covered this particular 285 acres of land; and at the same time, before suit, Lamkin notified the attorney that this was the only tract of land owned by him in the survey at the time. The land upon which Flournoy had the mortgage fronts on the river and is bounded by the original lines of lot No. 3 of 450 acres, up to John Brown's southwest line, it being the partition line between John Brown and the 285 acres. A few years before the trial, Lamkin was offered $25 per acre for the land, but, owing to financial depression, it was not now worth more than $8 or $10 per acre, and could not be sold for that amount. The notice of the mortgage was to A. B. Lamb and the executors of the Caldwell estate, and was given to E. F. Barnhill, plaintiff's attorney, and not to plaintiff himself, after the attorney's employment, and before the suit was brought. Lamkin was served with citation some time before the deed made by him to Flournoy. Attorney Barnhill, before suit, made an examination of the records of Caldwell county with reference to the lines of the Lamkin land, and told Johnston that he knew upon what lands the mortgage to Flournoy was made.

in any reported case, but in former decisions GRAVES v. HORN.

the difficulty of construing the statute has (Supreme Court of Texas. Dec. 24, 1895.)

been recognized. Stewart v. Heidenheimer,

55 Tex. 644; Wooldridge v. Roller, 52 Tex. APPEAL--PRACTICE — AFFIDAVIT OF INABILITY TO SECURE Costs.

452. In cases where the attempt was made The filing of an affidavit of inability to

to perfect the appeal after the term at which give security for costs on appeal with the clerk the judgment was rendered, it was held that is not a sufficient compliance with Rev. St. the affidavit must be presented and acted amend. art. 1401, providing that a person un

upon by the county judge of the county in able to pay or give security for costs shall be entitled to an appeal on proof of his inability,

which the appellant resides. Wooldridge v. to be made by affidavit before the county judge Roller, supra; Hearne v. Prendergast, 61 where the party resides, or before the court try- Tex. 627. Since the county judge of the ing the case, which may be contested, whereupon it shall be the duty of the court trying county of the appellant's residence, when he the case, if in session, to determine the right of resides in a different county from that in the appellant.

which the suit is tried, has no power to deApplication for writ of error to court of

termine a contest if one shall be made, it

is difficult to see what was the purpose of civil appeals of Second supreme judicial district.

requiring the affidavit to be made before or Application by C. E. Graves for a writ of presented to that officer. But it seems that error to the court of civil appeals to review

there is reason for requiring that the proof a judgment of the latter court (33 S. W. 303) should be made before the court, if the court

be in session. dismissing his appeal in a case between him

The statute contains no exself and Henry Horn. Refused.

press provision that notice shall be given.

and it may be that it contemplated that, if Hodges & O'Fiel, for applicant.

it was sought to prove the inability to secure

the costs while the court was in session, a GAINES, C. J. A judgment having been better opportunity for knowledge would be rendered against the applicant for the writ afforded to the officers and parties adversely of error in this case in the district court, interested, and also that the court might he gave notice of appeal, and sought to per- proceed in a summary manner to give what fect his appeal by filing during the term in it deemed proper notice at once, and to rethe office of the clerk of the court an affi- quire the contest, if desired, to be immedidavit, made before such clerk, of his ina- ately made, to the end that it might be bility to pay or give bond for the costs. A promptly determined. However that may motion was made in the court of civil ap- be, the requirement is that if the court be peals by the appellee to dismiss the appeal in session the proof shall be made before upon the ground that the appellant had the court; and although the affidavit of the neither filed an appeal bond nor made prop- | party is sufficient, in the absence of contest, er proof of his inability to pay or secure the this clearly means that it shall be presented costs; and upon hearing the motion was sus- to the judge on the bench, while holding sestained, and the appeal dismissed. The ap- sions. Lyons-Thomas Hardware Co. plicant here seeks a writ of error for the Perry Stove Manuf'g Co., 88 Tex. - 27 purpose of reversing judgment of dismissal. S. W. 100. An affidavit made before the The question is, was the mere filing of the clerk, and filed in his office, may be proof affidavit with the clerk a compliance with before the clerk, but it is not proof before the statute. Amended article 1401 of the Re- the court. In order to obtain the benefit of vised Statutes was in force when the affidavit the statute, a party must comply with its was filed, and it is as follows: “Where the provisions. In this case there was a compliappellant or plaintiff in error is unable to pay ance neither in substance nor in form. We the costs of appeal, or give security therefor, cannot say that an affidavit made before the he shall nevertheless be entitled to prosecute clerk is the equivalent of one presented to his appeal; but, in order to do so, he shall be the court. We conclude that the court of required to make strict proof of his inability civil appeals correctly dismissed the appeal, to pay the costs, or any part thereof. Such and the application is therefore refused. proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party, stating

MCNEILL V. CITY OF WACO. his inability to pay the costs; which affidavit may be contested by any officer of the

(Supreme Court of Texas. Dec. 23, 1895.) court or party to the suit, whereupon it

MUNICIPAL CORPORATIONS-LIMITATIOy of Power

TO CREATE Debt-BURDEN OF PROOF. shall be the duty of the court trying the

As Const. art. 11, declares that no debt case, if in session, or the county judge of the

shall be created by any city, unless at the same county in which the suit is pending, to hear

time provision be made for its payment, one evidence and to determine the right of the claiming compensation under a contract with party, under this act, to his appeal." Sayles'

the city must show that the obligation was to

be satisfied out of the current revenues, or out Supp. art. 1401. The precise question seems

of some fund within the immediate control never to have been passed upon by this court of the city, and was not, therefore, a debt, with

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