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sary to escape the common law idea of ments. So far as the real estate was concaveat emptor. As we said in Wooddy v.cerned, the values on each side were very Benton Water Co., 54 Wash. 124, 102 Pac. 1054, 132 Am. St. Rep. 1102.

"Strong language has been used by this and other courts in defining the duties of purchasers from which it might be inferred that vendors have an unbridled license to lie and deceive, but such has never been the law, and the tendency of the more recent cases has been to restrict rather than extend the doctrine of caveat emptor. Thus in Strand v. Griffith, 97 Fed. 854 [38 C. C. A. 444], the court said: "There is no rule of law which requires men in their business transactions to act upon the presumption that all men are knaves and liars, and which declares them guilty of negligence, and refuses them redress, whenever they fail to act upon that presumption. The fraudulent vendor cannot escape from liability by asking the law to applaud his fraud and condemn his victim for his credulity. "No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool."

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The contract provided that a certain note having a face value of $2,000 should be turned over to the brokers conducting the exchange in satisfaction of the part of the commissions the respondents had agreed to pay. The note was valued in the exchange ut $1,000, and in the decree the court directed that the appellants be paid that sum by the respondents in lieu of a return of the note. This was thought to be erroneous, but we think the sum awarded all that the appellants are entitled to recover. To charge the respondents with the face value of the note would be to charge them with commissions which the appellants are obligated to repay to them.

The failure to tender certain interest payments made by the appellants does not prevent a rescission. These were but nominal in amounts when compared with the total of the transactions, and were, moreover, properly taken care of in the decree of the

court.

The judgment is affirmed.

much inflated, and a balance is not easy to strike on the lands. But upon the notes it is clear that Gordon received much the worst of the bargain, and that there was a good deal to be learned about them which he did not know and which Hillman concealed from him at the time of the exchange. The tendency of a buyer of express obligations to expect face value is greater than his expectation to receive the estimated value of lands. One note was of $27,000 and another of $20,000. The two put together

are probably not worth $5,000. Some other notes were equally bad. It is inconceivable that Gordon was not to have some little further time to check the value of the collateral which was necessary to make good the face obligations of the makers. That this collateral proved utterly wretched in some aspects of it not before revealed is clear. I agree with Justice FULLERTON, without further elaboration of details, that Gordon was very much overreached.

He would, to be sure, be entitled to little assistance from a court were there in the case any circumstance of ratification or acquiescence, which, however, I do not find, notwithstanding he did not, on the first suspicious circumstance after the transaction, immediately rescind. He did rescind and offer back the unrecorded securities within a fortnight. This I consider very prompt under the circumstances.

HOLCOMB, J. To my mind neither the reasoning nor the result reached in this case is sound or consistent. The facts of record in the case show that these parties dealt as strangers, at arm's length. Respondent Gordon was a man in the prime of life and of great business ability and experience. He himself selected the properties in controversy from a long list of properties, and he had examined most of the

MORRIS, C. J., and MOUNT, J., concur. properties he selected, and had, or by the ELLIS, J., concurs in the result.

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exercise of reasonable care and prudence could have, examined and satisfied himself as to the character and values of every other item. There were no "badges of fraud.”

Possibly respondent made an improvident bargain. I am not concerned with the result reached of setting that bargain aside. But bargains are not to be set aside merely because they were improvident. The facts in this case are in no wise similar to the facts in the leading and very justly decided case of Wooddy v. Benton Water Co., 54 Wash. 124, 102 Pac. 1054, 132 Am. St. Rep. 1102, cited in the majority opinion, and other similar cases, nor to the facts in such cases as Stone v. Moody, 41 Wash. 680, 84 Pac. 617, 85 Pac. 346, 5 L. R. A. (N. S.) 799. But the facts in this case are similar to the various phases in such cases as Baker v. Bicknell, 14 Wash. 29, 44 Pac. 107; Griffith

Constables, Cent. Dig. §§ 143-145; Dec. Dig. [Ed. Note.-For other cases, see Sheriffs and

v. Bushell, 26 Wash. 576, 67 Pac. 216; Sam- [not regular on its face so far as it concerns son v. Beale, 27 Wash. 557, 68 Pac. 180; persons not parties to the judgment. Zilke v. Woodley, 36 Wash. 84, 78 Pac. 299; Conta v. Corgiat, 74 Wash. 28, 132 Pac. 746;98(1).] Stewart v. Larkin, 74 Wash. 681, 134 Pac. 186, L. R. A. 1916B, 1069. To be consistent this case should follow these last-cited cases. The judgment should be reversed.

I therefore dissent.

6. SHERIFFS AND CONSTABLES
WRONGFUL EXECUTION-LIABILITY.

98(1)

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A sheriff, acting under an execution issued on a judgment, who takes property from the possession of one not a party to the judgment, is liable for the seizure of such property. [Ed. Note.-For other cases, see Sheriffs and 98(1).]

MAIN, CHADWICK, and PARKER, JJ., Constables, Cent. Dig. §§ 143–145; Dec. Dig. concur with HOLCOMB, J.

(91 Wash. 507)

INTERIOR WAREHOUSE CO. ▼. HAYS. (No. 13109.) (Supreme Court of Washington. June 16, 1916.) 1. APPEAL AND ERROR 544(2)—BILL OF ExCEPTIONS-REVIEW.

Where no bill of exceptions or statement of facts is brought to the Supreme Court, the cause is there for review only upon the findings of fact, conclusions of law, and judgment.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2424, 2428, 2478; Dec. Dig. ~544(2).]

2. AGRICULTURE

15-LIENS-FARM LABORERS-ENFORCEMENT-LIMITATION OR DURA

TION.

Under Rem. & Bal. Code, § 1190a, providing that all rights secured to holders of liens upon logs under chapter 7 of the Code shall inure to the benefit of those holding liens for farm labor, with the same right of foreclosure, joinder of parties, and judgment, construed with reference to section 1171 of chapter 7, declaring that no lien shall bind any saw logs, etc., for more than eight months after the claim is filed, unless a civil action is commenced within that time to enforce it, the time fixed for the enforcement of a farm laborer's lien is not a period of limitation, but marks the duration of the lien.

[Ed. Note.-For other cases, see Agriculture, Cent. Dig. §§ 42-49; Dec. Dig. 15.] 3. AGRICULTURE 15-LIENS-FARM LABOR

ERS-ENFORCEMENT-PARTIES-STATUTE.

Under such provisions and in an action to enforce a farm laborer's lien, brought only against the one for whom the labor was performed, after his mortgage of the crops and the mortgagee's sale thereof to a purchaser who was in possession prior to the filing of the lien or the suit to foreclose, such purchaser was a necessary party defendant, and, where he was not made a party or served with a summons within eight months, the lien was lost as to him.

[Ed. Note. For other cases, see Agriculture, Cent. Dig. §§ 42-49; Dec. Dig. 15.] 4. PROCESS 5 FARM LABORER'S LIEN-JU. RISDICTION-KNOWLEDGE.

In such case the fact that the purchaser in possession had knowledge of the pendency of the action against the grower and mortgagor to foreclose the lien did not require it to intervene in such action, as jurisdiction over it could only be obtained by the service of proper process upon it, and the fact of its knowledge would not give the court jurisdiction to render a judgment binding upon it.

[Ed. Note.-For other cases, see Process, Cent. Dig. 4; Dec. Dig. 5.]

5. SHERIFFS AND CONSTABLES -REGULARITY.

98(1)-WRIT Ordinarily a writ issued to carry into effect the judgment of the court runs only against the parties named therein as defendants, and it is

Department 2. Appeal from Superior Court, Franklin County; Bert Linn, Judge. Action by the Interior Warehouse Company against J. W. Hays. Judgment for plaintiff, and defendant appeals. Affirmed.

Edward A. Davis, of Pasco, for appellant. Driscoll & Leonard, of Pasco, for respondent.

MAIN, J. The purpose of this action was to recover damages for the conversion of 172 sacks of wheat. The cause was tried to the court without a jury, and resulted in findings of fact and conclusions of law, and a judgment, in favor of the plaintiff for the sum of $288.62. From this judgment the defendant appeals.

[1] No bill of exceptions or statement of facts has been brought to this court. Hence the cause is here for review only upon the findings of fact, conclusions of law, and judgment.

The facts as stated in the findings, so far as necessary to an understanding of the questions to be determined, are these: During the year 1912, one Theodore Schmidt was in possession of a certain farm in Franklin county, Wash., upon which he raised a crop of wheat. Before harvesting this wheat, Theodore Schmidt mortgaged the same to A. A. Smith and C. W. Smith. Certain parties known as Galloway and Zumwalt performed labor in harvesting the crop of wheat. Almost immediately after the grain was harvested and threshed, Schmidt turned over the grain here in question to the mortgagees who, with the consent of the mortgagor, sold and delivered the grain to the Interior Warehouse Company. After the wheat was sold and delivered to the Interior Warehouse Company, Galloway and Zumwalt filed a notice of claim of farm laborer's lien, and soon thereafter commenced foreclosure of the same. This farm laborer's lien described the wheat involved in this action as being then in the possession of the Interior Warehouse Company. In the foreclosure action, Theodore Schmidt alone was made a party defendant. Neither the Interior Warehouse Company nor the mortgagees in the chattel mortgage were parties to that action. In due time a judgment was entered foreclosing the lien claimed by Galloway and Zumwalt, and directing a sale of the grain by

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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158 PACIFIC REPORTER

the sheriff. After this judgment was enter-
ed, the appellant, acting as sheriff, over the
protest and objection of the Interior Ware-
house Company, sold the wheat and deliv-
The pro-
ered the same to the purchaser.
ceeds of the sale were in turn paid to Gal-
loway and Zumwalt, the holders of the lien.
Thereafter, and more than eight months aft-
er the filing of the claim for a farm laborer's
lien, the Interior Warehouse Company be-
gan the present action against Hays for the
value of the grain upon the theory that he
had wrongfully and unlawfully converted it.
[2, 3] The first question is whether the
sheriff wrongfully took the grain from the
possession of the Interior Warehouse Com-
pany, since that company was not a party to
the action in which the judgment of foreclos-
ure of the farm laborer's lien was entered.
It was upon authority of this judgment that
the sheriff sold the wheat and took posses-
sion thereof from the Interior Warehouse
Company, over its objection and protest.
It may be admitted that had the Interior
Warehouse Company been made a party de-
fendant to the action to foreclose the farm
laborer's lien, it could properly have been
adjudicated that the rights of the lien claim-
ants were superior to the rights of the Inte
rior Warehouse Company. Rem. & Bal. Code,
§ 1189; Sitton v. Dubois, 14 Wash. 624, 45
Pac. 303.

The two statutes just quoted are to all In each the intents and purposes the same. lien claimant is required to bring an action upon his claim within the period of eight calendar months after the claim has been filed.

Construing the mechanic's lien statute, this court has held that the statute limits the duration of the lien, and that such lien is within eight with summons lost as to any necessary defendant who is not served months. Davis v. Bartz, 65 Wash. 395, 118 Pac. 334; City Sash & Door Co. v. Bunn, 156 Pac. 854.

In the Davis Case it was said:

"It is the manifest purpose of this statute to his lien while the evidence upon which it rests require the claimant to bring suit to establish is sufficiently recent to enable any party interested to successfully contest it if the facts do this opportunity within the time limited or lose not warrant the lien. The claimant must accord his lien. It is equally manifest that this right A mortof contest is as valuable, and should be as available, to a mortgagee as to the owner. He has redeem as against an antecedent lien. gagee has something more than a mere right to a right to contest its validity or assail its priority if the evidence warrants either defense. matters, within the period fixed by the statute. He is entitled to his day in court upon these In this respect there is no valid distinction benecessary parties and proper parties. tween Union Nat. Sav. & Loan Ass'n v. Helberg, 152 "It follows of necessity that any one interestInd. 139, 51 N. E. 916. ed, whether as owner, mortgagee, lien claimant, Section 1190a, Rem. & Bal. Code, provides or otherwise, any one who may defend against that all rights secured to the holders of liens the lien, or show by competent evidence that it is to invoke the statute if the action be not comupon logs under chapter 7 of the Code shall not a lien as against his interest, has the right inure to the benefit of those holding liens un-menced as against him within the statutory peder the provisions of this chapter, and "the riod. So read the better considered authorities said lienholders hereunder shall have the in construing similar statutory provisions." same right to have their liens recorded, the same right of foreclosure, of joinder of parties, of judgment over against the person primarily liable, and against any person who shall injure or impair their lien or any of their rights, as are above secured to the holders of liens upon logs, under said chap

ter VII."

By this statute, those claiming a farm laborer's lien have the same right of foreclosure as do the claimants for a lien upon logs. Section 1171, being one of the sections of chapter 7 of the Code, which covers the subject of liens upon logs and other timber, provides:

"No lien provided for in this chapter binds any saw-logs, spars, piles or other timber, or lumber and shingles, for a longer period than eight calendar months after the claim as herein provided has been filed, unless a civil action be commenced in a proper court, within that time, to enforce the same.

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*Section 1138, Rem. & Bal. Code, which is one of the sections devoted to the subject of liens of mechanics and materialmen, provides:

"No lien created by this chapter binds the property subject to the lien for a longer period than eight calendar months after the claim has been filed unless an action be commenced in the proper court within that time to enforce such

"

In the city Sash & Door Co. Case it was said:

"The owner of property subject to a mechanic's lien at the time of suit is a necessary party to an action to foreclose the lien. The proceeding to establish and foreclose the lien is in a sense in rem. Jurisdiction of the subject-matter can only be acquired by service, actual or constructive, upon the owner of the interest sought to be subjected and within the statutory life of the lien."

Under the doctrine of those cases, the Interior Warehouse Company was a necessary party to the foreclosure of the farm laborer's lien claimed by Galloway and Zumwalt, unless a different construction is to be given to the statute requiring suit to be begun upon a farm laborer's lien within eight months after the lien is filed, from that given to the statute which requires a suit to be brought These upon a mechanic's lien within eight calendar months after the lien has been filed. statutes being in almost identical language, there seems to be no good reason why they should not be given the same construction.

The Interior Warehouse Company was in possession of the wheat, and had purchased the same, not only prior to the time the suit was begun to foreclose the farm laborer's lien, but also prior to the time the lien claim was filed. It cannot therefore be contended that the possession of the Interior Ware

house Company was not known when the suit | the seizure by the sheriff was wrongful, and was instituted. The appellant in this action, he becomes liable in damages.

which was begun more than eight months after the judgment in the foreclosure action was entered, cannot rely upon the statute which makes farm laborers' liens superior to other liens or incumbrances. The eight months' period having expired, the Interior Warehouse Company had a right to invoke the statute which requires that the action to foreclose the lien be begun within eight months after the claim for lien is filed. The Interior Warehouse Company not having been made a party to the action to foreclose, and not being served with summons within eight months, the right to the farm laborer's lien claimed by Galloway and Zumwalt as to it had been lost.

[4] It is next claimed that since the Interior Warehouse Company had knowledge of the pendency of the action to foreclose the lien, that it was its duty to intervene in that action, and, not having done so, it is bound by the judgment. But this contention cannot be sustained. Jurisdiction of the Interior Warehouse Company could only be obtained by service of proper process upon it. The fact that it had knowledge of the pendency of the action did not give the court jurisdiction to render a judgment that would be binding upon it. Osborne & Co. v. Columbia, etc., Corporation, 9 Wash. 666, 38 Pac. 160; Bennett v. Supreme Tent, etc., Maccabees, 40 Wash, 431, 82 Pac. 744, 2 L. R. A. (N. S.) 389.

In the case last cited it was said: "The respondent, on the other hand, contends that the appellant had at least actual notice of the commencement of the action. We cannot

concede for a moment that a court can acquire jurisdiction of the person in that way."

[5, 6] It is finally contended that the appellant is protected as to all acts done by him in selling and taking possession of the wheat, because he acted as sheriff in obedience to the mandate of legal process regular on its face and issued by competent authority. Ordinarily a writ issued to carry into effect the judgment of a court runs only against the parties named therein as defendants, and is not regular on its face so far as it concerns persons not parties to the judgment.

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1. CRIMINAL LAW 656(2) - TRIAL-CONDUCT OF JUDGE-COMMENTS ON EVIDENCE. Where a witness in her cross-examination admits that testimony she had given in a former trial with reference to the same facts as to which she testifies in the present trial was false, a further cross-examination by the judge, bringing out more fully the falsity of such testimony, is not a comment on the evidence of the witness, in violation of the rights of the defendant, guaranteed by Const. art. 4, § 16.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1525; Dec. Dig. ~656(2).]

2. CRIMINAL LAW 658-TRIAL-ARREST OF WITNESS FOR Perjury.

Where a witness in a trial of a criminal case admits the falsity of her testimony at a trial a week previous, the action of the court, while room, in having the witness held to answer for a the jury was excused and absent from the courtcharge of perjury, does not prejudice defendant in the present trial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 15542; Dec. Dig. 658.] 3. PROSECUTION 6-PUNISHMENT-DISCRE

TION OF COURT.

A sentence to four years' confinement in the state reformatory on conviction of having received compensation for causing a female to cohabit with male persons other than her husband is not an abuse of the trial judge's discretion.

[Ed. Note.-For other cases, see Prostitution, Cent. Dig. § 6; Dec. Dig. 6.]

Department 2. Appeal from Superior Court, Thurston County; John R. Mitchell, Judge.

ceived compensation for causing a female to Henry Roberts was convicted of having recohabit with male persons other than her husband, and appeals. Affirmed.

C. E. Collier, of Olympia, for appellant. Geo. F. Yantis, of Olympia, for the State.

HOLCOMB, J. Appellant was informed against and convicted of having received compensation for causing a female to cohabit with male persons other than her husband. The date fixed in the information is

If a sheriff, acting under an execution issued on a judgment, takes property from the possession of one not a party to the judgment, he may be liable for the seizure of such prop-on or about January 25, 1915. On trial the erty. West v. Hayes, 120 Ala. 92, 23 South. 727, 74 Am. St. Rep. 24; Fish v. Nethercutt, 14 Wash. 582, 45 Pac. 44, 53 Am. St. Rep. 892.

In this case, as already stated, the Interior Warehouse Company was not a party to the judgment. It was in possession, and claimed to be the owner of the wheat. It had not had its day in court where it could be heard as to the rights claimed prior to the time of the seizure of the wheat. In such a case

state elected to rely upon an offense of date April 10, 1915, and directed all its evidence to that date as to the particular act relied upon for conviction. The case as made by the state was substantially as follows:

Henrietta Cairns, the, female in question, testified that she and appellant had been acquainted for some time prior to April 10, 1915, she being of the age of about 16 years; that about the first of the year 1915 appellant induced her to engage in acts of sexual in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

102

158 PACIFIC REPORTER

tercourse with various Chinese, and con-
tinued to ply her in such course during the
winter and a portion of the spring of 1915,
taking her at various times from her home
to Chinatown, to the Mitchell Hotel, the
Columbia Hotel, the Tacoma Hotel, a Chinese
laundry, and the dwelling house occupied by
an Austrian fisherman, all in Olympia,
Thurston county, for the purpose of meeting
the Chinese-appellant compelling witness
to such course of conduct by his representa-
tions that he was an officer of the law, and
by threats of personal violence and exposure
and commitment to a reformatory institution.
She further testified that for each of the acts
of intercourse the sum of $2.50 was paid,
either directly to appellant, or into her
hands, to be taken from her later by appel-
lant. On the afternoon of April 10, 1915,
she met appellant, accompanied him to her
home in the early evening, later returned
with him to the downtown portion of Olym-
pia, going to the place referred to as the
Austrian shack, where she met Chinese, and
in front of which place she met the China-
man, Charley Kay, whom, together with
Roberts, she accompanied to the Mitchell
Hotel, for the act of intercourse relied on for
conviction and alleged to have taken place at
11 o'clock p. m.; that from there she went
with appellant to the Tacoma Hotel, where
with other
she engaged in intercourse
Chinese and a Japanese; that she occupied
room 17 of the Tacoma Hotel on the night of
April 10th, after about 11 o'clock, with Rob-
erts, and the next morning, or near noon of
the next day, she was taken to her home in
a jitney bus by one Hazel Hyatt. She fixed
the date of April 10th by the fact that she
purchased a dress on that date, being the
first dress purchased by herself, and being
charged to her at a local dry goods store on
that date.

trance of the same hotel with one whom he
took to be a Chinaman.

Appellant did not take the stand in person,
but relied on the testimony of one Jean
Brownlee to testify to having occupied room
17 at the Tacoma Hotel, being the room com-
plaining witness claimed to have occupied on
the night of April 10th, and on that partic-
ular night spending the evening in the com-
pany of appellant, and to deny that the girl
in question was in that room on that night.
On cross-examination by the prosecutor, it
developed that she had testified to the iden-
tical facts in a similar case against appellant
as to the same room, which case had been
tried shortly before the trial of the present
case, and had fixed her date by alleging cir-
cumstances which she admitted on cross-ex-
amination were false. On cross-examination
by the prosecutor this witness testified that
she fixed April 10th as the date on which
she came to Olympia by its being on Satur-
day night, and the first week after she had
gone to Tacoma, where she was looking for
work; that she had no employment; that
she went back on Sunday morning to pursue
her search for work; that she had testified
in a case "last week," in which the state was
plaintiff and Henry Roberts was defendant,
in the same court; that she testified in that
trial that on April 10, 1915, she was employ-
ed by the Lyceum Theater in Tacoma; that
she went to work there on the Saturday pre-
ceding Easter Sunday; that there could be
no mistake as to the time in which she was
employed; that she had, after testifying in
that case, sent a telegram to a person in Ta-
coma, asking that person to verify her state-
ment; that the telegram was to the pro-
prietor of the Lyceum Theater; that as a
matter of fact she had left that place (the
Lyceum Theater) long prior to the 10th of
April; that she found she had been mistak-
Other misstatements of hers while tes-
en.
tifying in the previous trial were elicited by
the cross-examination of the prosecutor.

The court interrupted the cross-examination by the prosecutor, the following occurring:

Her father and mother corroborate her testimony that on that particular date, also fixed by the date of the entry of the purchase of the dress, the witness came to her home early in the evening with appellant, returned with him to the city in the evening, after "By the Court: May I ask this witness just promising to return early to her home, spent a few questions, and if on the part of either party there is any objection to the questions, the entire night away from home, and returned in a jitney bus about noon on Sunday, you will call it to my attention, Mr. Yantis, or Both parents testified Mr. Collier. Q. You remember testifying in a the following day. that appellant represented to them that he cause in court last week against this defendant, the trial of that cause that you were questioned was an officer of the law. The clerk of the do you? A. Yes, sir. Q. Do you remember in A. Yes. Tacoma Hotel testified that appellant en- with reference to your occupancy of room 17 gaged room 17 on the afternoon of April 10th, in the Tacoma Hotel of this city? that room that night? A. I did. Q. With refas shown by the hotel register. The China- Q. And that you answered that you occupied erence to your being certain as to the date, you man, Kay, testified to the act of intercourse, and further that he met the girl near the testified that it was on the Saturday following A. Yes. Q. Do you remember if you Austrian's shack. Another witness testified Easter? stated that you were quite sure of the date because you commenced work with the Lyceum to having seen the girl and appellant at or near the back entrance to the Tacoma Hotel, Theater in Tacoma on or about the 3d of April, apparently going to the back entrance, at and that the 10th was the second Sunday after Theater in Tacoma that you came down here? about 11 o'clock on some night not definitely you had commenced work with the Lyceum fixed in the spring of 1915. This witness al-A. I believe that was one reason I gave for so testified that at about the same time he the date. Q. Do you remember if in that examsaw appellant going toward the back en-ination you were questioned-cross-examined

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