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election, and upon actual count of the ballots as then

RECENT ENGLISH DECISIONS. made by the officers whose duty it is to do so. Const. Lim. side p. 625. McCreary, in his work on Contested MARRIAGE-DEED OF SEPARATION-COVENANT TO Elections,p.209, lays down the rule: "Before the ballot.

PAY ANNUITY “MOLESTATION A DEFENSE.-In & boxes should be allowed in evidence to overturn the

deed of separation between the defendant and his wife official count and return, it should appear affirma- and under which the plaintiff was trustee, the defendtively that they have beeu safely kept by the proper ant covenanted to pay to the plaintiff 5001. per annum custodian of the law; that they have not been exposed during the joint lives of himself and his wife; and the to the public, or handled by unauthorized persons, and plaintiff covenanted that the defendant's wife should that no opportunity has been given for tampering not at any time thereafter molest the defendant. The with them. If this is believed to be a rule founded plaintiff brought an action to recover 475l. for arrears upon a presumption that a fraud or crime has beev

of the annuity, and the defendant pleaded as a decommitted, the answer is that the rule does no more fense that his wife had molestd him, and counterthan make choice between two presumptions of law, claimed for damages. The jury found that there had which in this instance come in conflict, and cannot been molestation, and assessed the damages at 1001. both prevail." In People v. Livingston, 79 N. Y. 290, Held, that the covenants not independent, the Court of Appeals held the trial court erred in and the jury having found that there had been molescharging the jury, that to justify the rejection of the tation, the defendant had succeeded in establishing bis ballots as proof, it must appear affirmatively, by direct defense, and was entitled to judgment upon the claim evidence, or from circumstances, that the ballot-boxes and upon the counter-claim, without damages. Held, had been interfered with and fraud committed, also that the conduct charged against the defendant's Church, C. J., saying: “ The error is in putting upon wife was cousistent with molestation, and might be the party against whom the ballot-boxes are intro

found by the jury to be molestation, if they consid. duced, the onus of proving that they had in fact been

ered it proved, using the word “molestation" in tampered with. * The burden was upon the the sense of injury knowingly, and without lawful relator to satisfy the jury that the boxes had remained excuse inflicted upon another in his person, character, inviolate; the returus are the primary evidence of the

social position or property. High Ct. Just., Q. B. Dir. result of the election.

* The returns may be March 11, 1884. Fearon v. Aylesford. Opinion by impeached for fraud or mistake, but in attempting to Day, J. (50 L. T. R. (N. S.) 598.) remedy one evil we should be cautious not to open the door to another and far greater evil. After the elec. WILL-POWER UNDER MARRIAGE SETTLEMENT" IStion it is known just how many votes are necessary to SUE”—ELECTION.-The word “issue" may bear differ

change the result; the ballots themselves cannot be ent interpretations in different parts of the same deed, identified-they have no ear-marks. * * Every and it is not an inflexible rule, that because the word consideration of public policy, as well as the ordinary evidently means children" in the proper sense of rules of evidence, require that the party offering this the term in one part of a settlement, it must be necesevidence should establish the fact that the ballots are sarily so construed in another part of the documeut. genuine. * * * If the boxes have been rigorously See Wyth v. Blackman, 1 Browu. Sen. 196; Harrison preserved, the ballots are the best and highest evi- v. Symons, 14 W. R. 959. By a marriage settlement dence, but if not, they are not only the weakest, but the wife received a power to appoint certain property the most dangerous evidence. The jury might not be by her will among the issue of the marriage, and it was satisfied with the proof of identity, and yet be unable provided that in default of such appointment the propto find from the evidence that actual tampering or erty was to be held in trust for the issue of the marfraud had been committed.” Coglan v. Beard. Opin- riage, if more than one, in equal shares, for sons at ion by McKinstry, J.

twenty-one years and for daughters at that age or mar[Decided Feb. 12, 1884.)

riage, and that in the event of there being but one

child issue of the marriage, or only one should live to JUDICIAL SALE-SUBJECT TO EXISTING MORTGAGE

become entitled, the property should be held in trust KEEPING LIEN ALIVE.- Where the purchaser at an ex

for such only or such surviving child, and if there ecution sale takes, subject to an existing' mortgage, should not be any issue of the marriage or no issue any party in interest (not the principal debtor) may thereof should live to become entitled, then upon the pay off the mortgage, and even though it be discharged

other trusts. Held, that the word “issue" in the and satisfied of record, may keep the lien alive so far power of appointment was to be strictly construed as as is necessary for his equitable protection, as though referring to children of the marriage. In re Hophe took merely an assignment of the mortgage. The kins' Trusts, 9 Ch. Dir. 131, which was a case of a will, rights acquired by the purchaser at the execution sale Hall, V.C., said that he must decline to speculate as are not affected by the assignment of the mortgage, to probable intentions. He says: “I cannot guess, but either in fact or by operation of law. “In general, must do my best to construe the instrument upon the when any person having a subsequent interest in the words themselves;" and then he says: “Taking the premises, and who is therefore entitled to redeem, for words as I find them, the true interpretation is tbat the purpose of protecting such interest, and who is not

the word issue was used by the testator in the sense of the principal debtor primarily, and absolutely liable children,' and he has, I consider, thus explained him. for the mortgage debt, pays off the mortgage, he self.” The wife by her will appointed part of the fund tbereby becomes an equitable assignee thereof, and upon trust for one of her sons for life, with remainder may keep alive and enforce the lien so far as may be to his children who should attain twenty-one years; necessary in equity for his own benefit; he is subroga- and she further bequeathed certain property, pot ted to the rights of the mortgagee to the extent neces- within the settlement, to the persons entitled uuder sary for his own equitable protection." 3 Pom. Eq. the settlement in default of appointment. Held, that Jur., $ 1212. And this equitable result follows, “even since the appointment was ex facie void for remotethough a receipt was given speaking of the mortgage ness, the will was to be read as if it were not contained debt as being fully paid, and sometimes even though therein, and the person's entitled under the settlethe mortgage itself was actually discharged and satis

ment in default of appointment were not put to their fied of record.” Id., $ 1211. Matzen v. Shaeffer. Opin- election. High Ct. Just., Chan. Div. Feb. 16, 1884. ion by Sharpstein, J.

Matter of Warren's Trusts. Opinion by Pearson, J. [Decided Feb., 1884. ]

[50 L. T. Rep. (N. S.) 453.)

The Albany Law Journal.

IN a

than the reproduction of Mr. Chaney's head-notes, for they are concise enough, and at the same time

generally save the trouble of turning to the case. ALBANY, OCTOBER 4, 1884.

The same, we think, may correctly be said of the indexes of the American Reports. Taking the last

nine volumes of this series, which report probably CURRENT TOPICS.

some 1,600 or 1,700 cases, the indexes, which merely reproduce the head-notes, cover only 338 pages, or

an average of about 37 pages. We have had fault Reports, the Chicago Legal Adviser says the

found with us by one or two lawyers who seem to syllabi "deal too much with the facts of the cases,

measure their law by the yard, because these indexes and the index is nothing but a redistribution of the

are so short, whereas the indexes of some of the State points of the syllabi, a most vicious system of re

reports are twice as long! This reminds us of the porting.” In regard to the construction of a head

preacher who apologized for the excessive length note it is our belief that head-notes usually deal too

of his sermon by saying that he had no time to little with the facts of the cases, and too much with

make it shorter. The art of making things short is the steps of the argument by which the court arrive

difficult but very useful. at the conclusion. In our opinion a head-note ought to consist neither in a series of legal formulas, nor in a bare and detailed statement of the

The Adviser also remarks in the same paragraph: particular facts, but that it ought to state the facts

‘Among the cited cases we notice only one case from very concisely, where that is reasonably practicable,

the Breese reports, and the citation is found in a with the legal conclusion; or when the facts are too

dissenting opinion. We had occasion for some intricate for convenient statement, to impregnate

time to examine the lists of cases cited in this court, the statement of the legal conclusion with the lead

and find, to our regret, but few citations from the ing facts. The latter course is sufficient in a ma

Illinois reports.” This gives us leave to say that jority of instances, perhaps. But unless the facts

the Illinois reports are less cited generally in the are stated or rendered inferable, the head-note is

east than those of any other State of any thing like apt to degenerate into a statement of legal truisms,

its importance. It may be said without vanity that and to get any idea of what the decision is, the

our State is and always has been more in the habit statement of facts and the opinion mnst be read.

of furnishing law for other States than of borrowThe head-notc ought to be a minute photograph of

ing it from them. Our State is not alone in this rethe case and decision. There are a few reporters

spect. The Pennsylvania judges seldom cite any who know how to do this.

reports but their own. The Massachusetts judges, since Chief Justice Gray's departure, do not travel

much abroad in their citations. These three States An eminent and admirable example is Mr. are perhaps the most affluent and influential sources Chaney of Michigan, who makes the most concise of American law. At the risk of bringing down head-notes in this country, and generally all-suffi- the Adviser and the Chicago Legal Neros upon us, cient and admirable ones. We can hardly remem- we will further say that considering the enormous ber a head-note of his that could be improved. wealth and business activity of Illinois, we find her We seldom see any head-note by any other reporter law reports singularly uninteresting. This is no that could not be improved. Our own theory of new reflection of ours. We have felt the convicsyllabus-making is illustrated in the American tion for a long time in making selections for the Reports, the head-notes of which are certainly con- American Reports, and have wondered why the fact cise, which generally state or infer the ruling facts, should be. But we are free to maintain that in and which never give the logical steps of the argu-comparison with any of the New England States, ment. It is a very much more difficult thing, how- with any of the middle States, except Delaware, ever, to construct a head-note originally than to with Ohio, Michigan, Wisconsin, and perhaps Iowa, improve on one already constructed, and in pre- the judicial decisions of Illinois are singularly unparing the American Reports we have the advan-interesting. This is, of course, not the fault of the tage of seeing what has already been done by the bar or bench, nor of the reporter. State reporters.

We regard Mr. Sickels' headnotes as far above the average in merit. It must be remembered that he frequently has cases of great

The Canadian Lan Times has the following on intricacy and novel characteristics to report.

judicial notice, entitled “Judicial Ignorance:
“ We do not intend to attribute ignorance to any

member of the bench. Far from it. But we conAs to the construction of an index, we agree tend that a learned man when he takes his seat on the with the Adviser, that merely reproducing the bench is not called upon to make himself judicially statements of the syllabi is generally a vicious sys- ignorant of the ordinary affairs of life. In a judgtem. But it would not be a bad system if the head- ment lately delivered by Jr. Justice Rose, which notes were constructed as we have suggested. No was printed in the newspapers, his lordship is rebetter index for Michigan Reports can be devised ported as having put the question: "Am I to take

Vol. 30 – No. 14.

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judicial notice that beating a drum is playing a

menced. On the other hand, he may not write letdrum?' His lordship is further reported to have ters on the client's behalf, issue process, effect the refused to do so, and in consequence, to have engrossing of briefs, or do any similar business.' quashed a conviction for making a noise in the Without recommending this resolution for adoption street by playing a drum. The question arose in en bloc at the earliest convenient bar meeting in the case, we believe, whether or not the playing of London, it may safely be said that the bar and bar drums was an unusual noise. His lordship held it committee of Victoria have set a notable example was not an unusual noise. If not, then it is one of of activity and decision to the corresponding instithe usual sights and sounds of our public streets. tutions of this country.” There is nothing in legal Must a judge shiut his eyes to all that is going on

affairs that strikes an American lawyer as so ludiabout him, and become absolutely ignorant of the crous as this separation of attorneys from barristers commonest things when he ascends the bench? We – this “chaperoning” of the client. The custom hope not. In R. v. Woodward, 1 Moo. C. C. 323, of course is in one way a good one for the lawyers the judges unanimously took notice that beans were - it entails the employment of at least two lawyers å species of pulse. In R. v. Swatkins, 4 C. & P. on the same side in every case. But if one is fit to 548, Patteson, J., after conferring with Bosanquet,

do all the work, why not let him? England is gradJ., took judicial notice that barley was corn. But ually learning good sense from her children, the colin R. v. Blaney, R. & R. 416, the judges refused onies and the States, and we hope to live to see her to take notice that a colt was of the horse species legal institutions more like our own. But let us be We do not believe however that the modesty of careful that she does not get a code ahead of us. the bench would extend so far to-day. One of our learned judges is an accomplished player upon the flute. Must he forget this on the bench, and

NOTES OF CASES. solemnly take evidence as to the manner in which the sound of a flute is produced when the occasion

N Pence v. Commonwealth, Kentucky Court of calls for it? We hope Mr. Justice Rose was a little

Appeals, July, 1884, 6 Ky. L. Rep. 113, the dewrong on this point.” But does not everything

fendant, a distiller, was indicted for selling five depend on how the drum was beaten or played, in

gallons of whisky at one time. The court discussed determining whether it was an unusual noise?"

the meaning of the term “wholesale dealer” as

follows: “In the absence of a statute giving a legal The London Law Times says: “It has lately been definition to the word wholesale with regard to a roundly asserted that England has everything to particular commodity, it is a question of fact learn in her political system, her judicature, and whether, according to the usual course of trade in her social arrangements, from her own children in that commodity, a given transaction is to be rethe United States and the British colonies. In par- garded as at wholesale or retail. These are relative tial support of this view it would seem that the terms. Etymologically considered, it might be said Australian colonies have lately been exercised by that the sale of a thing as prepared and put up by the great question of the amalgadiation of the two the manufacturer, to be sold as put up, without branches of the legal profession, which lately prom- subtraction, is a wholesale transaction; but if only ised to suddenly come within the range of practi- a part of the thing is sold, if there is (as the word cal politics,' in the mother country. The question retail implies) a cutting or severing of the thing as is so much nearer ripeness at the Antipodes than put up, the sale is a retail transaction. It is howhere, as to have formed, as we gather, the subject ever a very hazardous rule to interpret legislative of a bill before the Victorian Legislature. In face language by reference to the obscure etymology of of the growing movement the bar of Victoria has words. In its active life business loses sight of found it necessary to organize in its own defense, philological proprieties. It divides things by the has appointed a committee to inquire into its rela- rule of utility, and seizes on apt words to desig. tions with the solicitors and the public, and has nate the divisions. But even if the meanings of the adopted resolutions at the instance of the commit- words wholesale and retail are taken from the dictee.

The Melbourne committee has not tionary, it is still a question of fact as to the minionly recommended that the etiquette of the bar mum quantity of whisky, or of any other fluid, or should be reduced, so far as practicable, to a writ- of any thing made entire, as nails, pins and needles, ten code, and an organization adopted with the which constitutes a whole package, as originally duty of watching over and enforcing observance of put up. With respect to such matters it seems the code, but has also advised a practical step, by clear that the condition in which the wholesale way of modification of accepted etiquette, which dealer chooses, for safety or convenience, to keep has been a good deal discussed in England. In his stock is unimportant. A dealer in grain may conformity with this report, the Melbourne bar gen- keep a hundred thousand bushels in an elevator; erally has adopted a resolution to the effect that a a dealer in liquors may keep them in casks of imbarrister may henceforth see his client personally, mense capacity, but it could not be said that the • advise him, and earn a fee,' without the interven- sale of fifty thousand bushels of the grain out of tion of a solicitor, provided no litigation has com- one elevator, or the sale of one thousand gallons of






wine out of one cask, would therefore be a retail v. People, 89 Ill. 571; Mesmer v. Commonwealth, 26 dealing. What constitutes a wholesale dealer in a Gratt. 976. Proffatt on Trial by Jury, section 46, given commodity, and what constitutes a wholesale says: “If the necessary minimum number are on transaction, if made by a wholesale dealer, are ques- the grand jury when an indictment is found it will tions of fact to be proved by evidence, and found be good.' The above views also cover the ground by the jury. It is the usual course of trade' of the claim as to the five who were present, but which determines the answers. It may be that only did not vote on account of being depositors in the a minimum quantity is considered in deciding bank of which the respondent was president, there whether a dealer is wholesale or retail, and it may be being twelve who agreed to the bill. But it is furthat the question as to the purpose of the purchaser, ther claimed that these five were disqualified by as whether buying for personal use or for resale, favor, being interested on account of being deposmay be an element. But we do not think it can be itors, and that one other who was one of the twelve assumed, as matter of law, as the second instruction who agreed to the bill, was also disqualified on acseems to assume, that the sale of no quantity, how- count of his wife being a depositor, though in her ever great, is a wholesale transaction, unless the own right. The ground of this claim is that if the purchaser buys as a dealer to resell, the in respondent is guilty of the charges alleged in the struction going somewhat further by requiring that indictment, he would be liable to these men for any the purpose of the purchase should be to sell again loss in their deposits. This is plainly too speculaat retail.” As to “wholesale dealer," see Taylor v. tive and remote. In Middletoon v. Ames, 7 Vt. 166, Vincent, 12 Lea, 282; as to “retail dealer,” see it was held that a juror was not disqualified, though Tennessee Club of Memphis v. Droyer, 11 id. 452 ; the fine might go into the treasury of the town of and 30 ALB, LAW JOUR. 64,

which he was a ratable inhabitant. In Common

wealth v. Ryan, 5 Mass. 90, that the indictment was In State v. Brainerd, 56 Vt. 532, an indictment

good, though the foreman of the grand jury that

found the indictment was a taxable inhabitant of against the president of a trust company for mis

the town to which the fine would go. Thompson application of the funds, found by twelve, was held valid, although one of the rest of the panel sylvania and one in Virginia, where it was held

and Merriam on Juries cite two cases, one in Pennwas disabled from acting by sickness, others were

that an indictment for embezzling the money of a depositors in the company, and the wife of one of the twelve was a depositor. The court by Veazey,

bank was good, although one of the grand jurors J., said: “Before a person could be convicted of a

who found the indictment was a stockholder in the capital offense, twelve at least on the grand jury bank, and possessed a large amount of the notes,

and therefore was greatly interested in procuring must assent to the accusation, and twelve more find

the indictment. The authors say: "Such a juror him guilty on the trial. Judge Dillon, in State v.

cannot be said to be interested in the event of the Ostrander, 18 Iowa, 435, after referring to the common-law rules, and citing numerous authorities,

prosecution. He can neither gain nor lose by a

conviction or acquittal of the accused. He is not says: The requiring of twenty-three to be sum

interested beyond that common interest which moned, though we have found no reason stated in

every member of society must feel in the conviction the books, was probably in order to make sure of

of such persons as offend against the peace, the orobtaining a jury of twelve, possibly to be sure of

der and well-being of society.' Add. (Pa.) App. having a few over, so that if the accused should

See have a friend or two upon the panel, the course of 45; Commonwealth v. Strother, 1 Va. Cas. 186.

also Prof. Jur., $ 169, and cases there cited; also justice might not be defeated; possibly to prevent

Waters v. Day, 10 Vt. 487; State v. Nerfane, 12 id. a dissolution of the jury by the death or sickness or

422." absence of one or more of the jurors, or it may be for all of these reasons combined.' It is plain from this that it never occurred to him, in the elaborate

POPULAR LEGAL CATECHISM. investigation which he gave the subject, as that


LIFE" opinion shows, that the absence of one or more on account of sickness or death would prevent those Q. “What is this case, please?" remaining from proceeding with their investiga- A. “ This is the case of Power v. Cassidy, detions, provided there were twelve left.

cided by the New York Court of Appeals, and reWe think the above construction is consistent with | ported in 79 N. Y. 602." the decisions generally in other jurisdictions. The Q. “What is it about?" difference in the statutes prohibits such decisions A. “A testator made a bequest to his executors, from being controlling either way, but the course to be divided by them among such Roman Catholic of reasoning found in some opinions applies with charities, institutions, schools or churches in the more or less force to this case. See State v. Davis, | city of New York, as a majority of my executrix and 2 Ired. 157; Commonwealth v. Wood, 2 Cush. 149; executors shall decide, and in such proportion as State v. Miller, 3 Ala. 343; People v. Roberts, 6 Cal. they may think proper." 214; People v. Hunter, 54 id. 65; Pybos v. State, 3 Q. “The parties wanted to find out whether it Humph. 49; Hudson v. State, 1 Blackf. 317; Beasley was a good bequest, did they?

No. 1.)

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A. “That was what they wanted.”

Q. “And if the executors failed to carry out the Q. “And what did the Court of Appeals say?" trust?" A. “They held that it was a valid bequest.”

A. “The court said that, in that event, in the Q. But what is this other case, please?” case of Power v. Cassidy, all the Roman Catholic

A. “This is the case of Pritchard v. Thompson, charities, institutions, schools and churches in the decided by the same court, and reported in 95 city of New York would share equally in the fund. N. Y. 76."

Q. “But why couldn't the same thing be done Q. “And what is it about?"

in the case of Pritchard v. Thompson ?A. “A testator made a bequest to his executors, A. “The question is too hard for me." to be distributed by them among such incorporated Q. Well, what reason did the court give?” societies organized under the laws of the State of A. “They said it wouldn't be so easy." New York or the State of Maryland, having lawful Q. “Then the only difference between the two authority to receive and hold funds upon perma

cases is that it might be a little easier to carry out nent trusts for charitable or educational uses, as the trust in one case than in the other?” said executors or the survivors of them might select, A. “That is the only difference." and in such sums as they should determine."

Q. “And the cases are alike in all other respects?” Q. But that is very much like the other case, * Exactly alike.” isn't it?

Q. And any rule of law or equity that applies A. “Very much.”

to one case applies just as well to the other?” Q. “And must be decided on the same principle

A. “Certainly." as the other case, mustn't it?

Q. “My, what a funny thing law is! " A. “ One would think so.”

A. “Yes." Q. “Of course that made it very easy for the

J. H. H. Court of Appeals ? " A. “That is the natural inference."

THE LAWYER AND SOME OF HIS DUTIES. Q. “My, how glad the court must have been to get a case just like one they had decided a little | IT is proposed to notion in this paper certain com

yet all-important A. “Very glad.”

lawyer at all worthy his high calling must diligently

perform. For the present, broad and liberal culture, ex Q. “And so they held that the bequest in this

act and exhaustive mastery of the principles of the law, last case was valid ?”

and an elevated moral sense of the duties and responA. "On the contrary.”

sibilities of the profession must be assumed as cardi. Q. “What! They couldn't hold that it was nal qualifications for every one entering upon the pracinvalid?"

tice of the law, and it is only proposed here to note

some of the duties absolutely esseutial to successful A. “That is precisely what they did hold.”

and honorable continuance in its practice. Q. “Gracious! How could that be?”

Although the propositions may appear trite and selfA. “Well, it was, you know."

evident, they are shamelessly ignored and disregarded Q. “Had the court forgotten the case of Power by a large percentage of the members of the profession, v. Cassidy ??

and this is my excuse for this discussion.

The first duty I insist upon is diligent, prompt and A. “Oh no, they referred to it.”

respectful attention to all correspondence. To neglect Q. “Did they overrule it?”

or delay answering any letter is positively uncivil, and A. "No."

such neglect of any ordinary business letter is not ouly Q. “What did they do with it, then?

a breach of good manners, but exhibits vulgar educaA. “They distinguished?'"

tion and au utter want of any sense of appreciation of Q. “What does that mean?”

patronage. Letters may sometimes be trivial; they

may be petulant or unimportant, but they must be A. “Why, you see, in one case the beneficiaries

answered. It will however be found generally true were limited to a particular class, i. e., incorporated that men who write letters have something worthy to societies lawfully authorized to receive and hold write about, but I quite agree with that distinguished

* that all notes funds upon permanent trusts for charitable or edu- lawyer and scholar, David Hoffman,

and letters must be answered, politely, if possible, but cational uses, and to a particular locality, i. e., the

rudely rather than not at all." States of New York and Maryland, while in the In this respect our profession may profit by the exother case the beneficiaries were limited to a par- ample set by business men. Instances will indeed be ticular class, i. e., Roman Catholic charities, insti- found rare where successful business men fail to an. tutions, schools or churches, and to a particular lo

swer their correspondents. We are dependent to a

great extent on this class of men for our business, and cality, i. e., the city of New York.”

waiving all questions of mere civility, lawyers ought as Q. “Is that all the difference between the two

a matter of business to be prompt and courteous to all cases?"

correspondents. I know that the business men of the A. "That is all.”

country hold the profession at large responsible for Q. “Then in each case the selection of the bene

the delinquencies of some of its members in this mat

ter, and that this is one of the chief grounds of comficiaries, and the amounts to be given to them, were

plaint against the legal profession. Nothing is better left to the discretion of the executors?"

calculated to foster distrust upon the part of business A. "Yes."

men of lawyers than indifference to their correspond


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