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RES G FSTÆ-NEGLIGENCE-PROXIMATE CAUSE. descent, under the circumstances, would ordinarily -(1) In an action to recover damages for death caused and uaturally draw a crowd, and therefore he was reby negligence, declarations of the deceased as to the sponsible for damages. We are also referred to Byrne cause of the injury sustained, inade after he had re- v. Wilson, which after considerable search we found turned home, and more than thirty minutes after the reported in 15 Ir. Law Rep. 333; and also Crowhurst accident, are not admissible as part of the res gesta. v. Amersham Burial Board, 4 Ex. Div. 5. This case we It is difficult, if not impossible, to say definitely what were unable to find, but wo assume the point decided constitutes a part of the res gestae. No absolute rule is correctly stated by counsel. These cases, it seems is or can be established in relation thereto. A discre- to us, are in principle like the “Squib" case, and that tion is and must be reposed in the court, and there- the controverted question therein was the remoteness fore each case must largely depend upon the circum- of the cause of the accident; that is, whether the first stances surrounding the transaction or res gestee. If wrong-doer or some other person was liable; and the the proposed evidence is merely a narration of a past holding in this class of cases is that the first wrongoccurrence, then it cannot be received as proof of the doer, or the person who first threw the squib is liable, existence of such occurrence. 1 Greenl. Ev., $$ 108- although some one else may have thrown it at the per110. The res gestae or transaction was the accident, son injured. We do not think such rule can possibly and how it occurred. It is not essential that the de- obtaiu in this class of cases. The throwing of the claration sought to be introduced in evidence was ut- squib was the proximate cause of the accident, and in tered at the identical time the accident occurred, but the case at bar the moving of the engine was such if made soon afterward, and explanatory thereof, it is proximate cause; and the fact that the engine stood admissible. State v. Jones, 64 Iowa, 349; Insurance on the track did not cause the accident, or in fact Co. v. Mosley, 8 Wall. 397. In the former the declara. contribute thereto. Iowa Sup. Ct., Oct. 29, 1886. tion preceded the occurrence, but was made in antici. Armil v. Chicago, B. & Q. R. Co. Opinion by Seevers, pation of it, and explanatory of a purpose. In the J.; Beck, J., dissenting. last case the deceased, for a proper purpose, left his

EXPERT-CONTROLLING TRAIN-NEGLIGENCE house in the night-time, and immediately upon his -DUE CARE ON SUFFERER'S PART.-The opinion of an returning he stated that he had fallen down stairs and expert as to whether freight trains crossing a certain hurt his head. This evidence was held admissible, by place where there was a sag, a “hog's back," and then a divided court; and in People v. Davis, 56 N. Y. 102, a down grade, should have been controlled when the it said in relation thereto, that “what may be re- fore part was on the “bog's back,' by applying the garded as a part of the res gestoe was certainly carried brakes at the front, rather than at the rear, is not adto its utmost limit by a majority of the court." We missible. Conceding that the brakes should be ap. are however, we think, asked to go a step further plied, we think it is for the jury to say to what part than that case. In the cited case the deceased left of the train such application should be made. When his bed, and passed out of his house for a certain pur- the train began the ascent of the “hog's back" there pose; and when he came back, said that in accom- would be slack, and when it went over and pitched plishing such purpose he had fallen down stairs, etc. down the grade the slack would be exhausted in a It seems to us that the declaration may be said to be greater or less period of time. Now if either end of explauatory of what occurred during his necessary ab- the train was held back, the tendency would be to sence; and while it may be difficult to draw a sharp ease the train, and make the jerk or tension less than distinction between that case and the one at bar, still it would otherwise be. We mean, of course, if the we think there is a marked difference. In this case it brakes were applied to the rear end, as that portion does not appear when the deceased left home, or that went down the sag. Whether the train would be he left there for the accomplishment of an avowed more likely to break in two it brakes were not applied purpose. He did not voluntarily and of his own ac- to the front part of the train, or whether it was safe cord, return home after the accident, but he was taken and prudent to do so, it seems to us, the facts being home by others; and the declaration sought to be in- shown, could be determined by the jury as well as by troduced was not made on his own motion, as explan- the witness. The evidence in question we think is atory of either his absence or the condition he was in. similar, if not identical, in principle as that held inadWe feel constrained to hold that the evidence sought missible in Hamilton v. Des Moines Val. R. Co., 36 to be introduced does not constitute a part of the res Iowa, 31; Muldowney v. Illinois Cent. R. Co., id. 462; gestæ, and is therefore not admissible. People v. Davis, Way v. Same, 40 id. 341; Belair v. Chicago & N. W. supra. (2) If this had not been done, the accident R. Co., 43 id. 667; McKean v. Burlington, C. R. & N. would not have occurred. The engine might have R. Co., 55 id. 193. The question as to the proper posistood on the track until doomsday, and the plaintiff's tion of brakeman on a train is materially different, haud could not have possibly got under the driving and so is the question as to the possibility of so conwheel. It is claimed however that when an act is ille- trolling a train as to avoid injuring stock on the track gal or mischievous, and thereby another person is which came thereon within a certain distanee of the damaged, that the “disposition of the courts is to train, and so is the proper construction of cars, under make the party liable for consequences following the circumstances appearing in Baldwin v. Cedar Rapfrom the illegal act, although they be very remote.” ids, I. & P. R. Co., 50 Iowa, 680; and therefore that Sedg. Dam., marg. p. 88. The cases referred to, and case and Cincinnati & Z. R. Co. v. Smith, 22 Ohio St. upon which this doctrine is based, are materially dif-246, and Bellefontoine & I. R. Co. v. Bailey, 11 id. 333, ferent from this. We are also referred to Guille y. are distinguishable. (2) A brakeman on a freight Swan, 19 Johns. 381, In that case an aeronaut made train was found dead on the track, having been thrown au ascension in a balloon, which aocidentally de- from the train apparently by the same separating and sceuded into the plaintiff's garden, and a great crowd breaking in two. About & minute before he was at of persons ran to the balloon, and trampled down and his post attending to his duties, and there was evidestroyed the plaintiff's vegetables; and he was per- dence that he was experienced and of good habits. mitted to recover, upon the ground that the aeronaut Held, that there was sufficient evidence of due care on knew that he could not so control the balloon as to his part to go to the jury. There are cases which hold descend when and where he saw proper, and therefore when the evidence wholly fails to show that the deit was immaterial that he descended into the garden ceased was using due care that there cannot be a re. accidentally, and that he should have known that his covery. Corcoran v. Boston & A. R. Co., 133 Magg.

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507; Riley v. Railroad Co., 135 id. 292. It has been life shall be recognized by wholesome laws, exempting said that “when the circumstances point just as much a reasonable amount of property from seizure or sale to the negligence of the deceased as to its absence, or for the payment of any debt or liability hereafter conpoint in either direction, the plaintiff should be non- tracted." This provision was ipserted in the ConstiBuited.” Cordell v. New York Ceut. & H. R. R. Co., | tution for the benefit of all resident debtors, and an 75 N. Y. 330. This court however has held that the exemption law which protects only certain classes of jury may infer due care under circumstances quite debtors, leaving others unprotected, would not similar, if not in principle identical, with the case at be a compliance with the constitutional mandate. bar. Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. The enactment of a homestead exemption law was abSee also Allen v. Willard, 57 Penn. St. 380: Gay v. solutely essential to the proper execution of such Winter, 34 Cal. 153; Strong v. City of Steven's Point, maudate, because without it in many cases debtors 22 N. W. Rep. 425. This last case is much like the would fail to realize the full benefits which the frame case at bar. We are not prepared to say that there ers of the Constitution, and the people who adopted was no evidence which authorized the court to submit it, intended they should receive under the exemption the question of due care on the part of the deceased laws which the Legislature was required to enact. to the jury, who bad the right to consider all the cir- Many personal property exemptions would be comcumstances, including the known babits of the de- paratively valueless to a debtor unless his homestead ceased, and the instincts of self-preservation with

is protected from seizure. Moreover a home is one of which all men are imbued. If the cause or manner of "the necessary comforts of life," in the enjoyment of the deatb was wholly unknown, it may be a different which the Legislature was required to protect every rule should prevail. Iowa Sup. Ct., Oct. 8, 1886. debtor. The homestead exemption law, above quoted, Burns v. Chicago, M. St. P. R. Co. Opinion by was enacted pursuant to the mandate of the Consti. Seevers, J.

tion, and there is no reason to doubt that the LegislaFRAUD-SETTING ASIDE DEED-CONVEYANCE TO BE

tur thereby intended fully to execute such mandate. Trothed.--A bill iv equity, alleging the plaintiff

, By such statute therefore the Legislature intended to

exempt to every debtor in the State the homestead being a widow, and engaged to marry C., was per

which he owns and occupies, with a specified quantity suaded by him to convey to him certain real estate

of land appurtenant thereto, without regard to the owned by her, being all of her property, under a promise that she should have it all back, and as much more

uses to which he puts such land, or the business he besides, and with the understanding that he was

pursues upon it. All that is required is that it be his

homestead, and the statute was intended to protect merely to manage it for the benefit of herself and her

the owner in the enjoyment of it. The fisherman may children; that they afterward married, and in a few years he died, still holding the title to said property, only for the spreadivg of his nets and the mooring of

build his home upon the barren beach, using his land and having meanwhile collected and used all the rents

his vessels; or the hunter may build his home in a for: thereof; and that his children by a former wife now

est, and make no use whatever of bis land appurtenclaim the absolute title thereto; and asking to have

ant to his dwelling except to pass over it; yet we enthe deed set aside, and for a reconveyance and ac

tertain no doubt whatever that the Legislature in. counting, is not demurrable. Mich. Sup. Ct., Oct. 28,

tended, by the enactment of section 2983, to protect 1886. Carney v. Carney. Opinion by Champlin, J.

these men by exempting their homestead from seizHOMESTEAD-HOTEL.- Under the Constitution of ure for debt. The same is true of the present case, Wisconsin, a person living in a building used solely as where the debtor used his lands appurtenant to his a hotel, which is erected upon a parcel of land from residence exclusively in connection with his hotel half an acre to an acre iu extent, and wbich is not business. It would be a gross imputation upon either situated in a city or a village, is entitled to a home- the intelligence or honesty of the Legislature-indeed stead exemption therefor, even though the statute of many Legislatures--to say that in this case, and in carrying the constitutional provision into effect limits the cases of the fisherman and hunter above suggested, the exemption to land "used for agricultural pur- 110 exemption was intended; but that if either of these poses.” This brings us to the question, do the words owners should raise a bushel of beans or other pro* used for agricultural purposes," as employed in the duce annually upon his land, or pasture a cow upon it, statute, exclude the appellaut from the benefit of the then in such case an exemption was intended. The homestead exemption therein given? To ascertain first homestead exemption law was enacted in July, the literal meaning of the words “ agricultural pur- 1848, at the first session of the Legislature after the poses” resort must be had to the lexicons for defini- adoption of the Constitution. It has been amended tions of “ agriculture.” Webster tells us (accurately from time to time, but those provisions which affect enough, no doubt) that it is “the art or science of the question uuder consideration have remained uncultivating the ground, especially in fields or in large changed to the present time. The law has frequently quantities, including the preparation of the soil, the been before the courts for construction. Before this planting of seeds, the raising and harvesting of crops, case arose the unchallenged practical construction and the rearing, feeding, and management of live given the law by bar and bench was that it' secured an stock, tillage, husbandry, farming." The defendant exemption to every owner of a homestead, without redid none of these things on his Sullivan land, unless gard to the uses to which the land appurtenant to his perhaps be kept and fed his horse there; and if the dwelling and residence might be put. Now however literal construction of the statute prevails, he had no after the lapse of nearly forty years, it is contended homestead rights in the property, unless the same for the first time, so far as we are advised, certainly were saved by the keeping and feeding of the horse on for the first time in this court, that a debtor owning X the premises. If that was one of the purposes for homestead outside a village or city can have no benefit which he used the premises, it must be conceded, we of the homestead exemption law unless he raises prothink, that they were used for ove "agricultural pur- | duce or domestic animals on his land. It goes for pose," at least. But we do not think the statute nothing that he rears a family upon it, and that a should receive a literal construction. Our Constitu- homestead is exempted from seizure for debt chiefly tion contains an imperative mandate to the Legisla- to enable its owner to do so. We are of the opinion, ture to enact exemption laws. It is ordained in arti- and so hold that the practical construction above cle 1, section 17, of that instrument, that "the privil. mentioned is the true one, and hence that the defendege of the debtor to enjoy the necessary comforts of ant's Sullivan property was exempt from seizure and

some it

from me ability bare serted jent detien ly certaines ected

JUDGE

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sale for his debts while he owned it. Wis. Sup. Ct., dicating intellectual strength; the complexion dark; Nov. 3, 1886. Binzel v. Grogan. Opinion by Lyon, J. the eye dark and expressive; the lines of the mouth

indicate firmness, decision and self-reliance. It is

easy to imagine, from the expression the artist has PORTRAIT OF CHIEF JUSTICE SPENCER PRE

given the face, that Ambrose Spencer is before us as SENTED TO THE STATE BAR ASSOCIATION. he appeared when listening to an argument, perhaps

by that great master of jurisprudence he so much adDGE EARL, of the Court of Appeals, has pre- mired, Thomas Addis Emmet.

sented the State Bar Association an elegant He was urbane and dignified in bis manner. Though and truthful oil portrait of Chief Justice Ambrose inclined to taciturnity, when his words began to flow Spencer. The softness, grace and accuracy of its com- he was the ceuter of a refined and polished circle, for position, the exquisite blending of its lights and he was an eloquent and instructive conversationalist. shades, the intellectual expression that presides over He was the father of John C. Spencer, whose name it, and the historic memories connected with its orig- and distinguished career as a statesman, cabinet mininal, give it inestimable value.

ister, lawyer, writer and scholar, adds lustre to the The learned and distinguished donor is tendered the history of the State and nation. sincere thanks and gratitute of an organization, one “Like Calhoun, whom he resembled in many os his of whose primal duties is the preservation in various characteristics and personal appearance, John C. ways of the memory of the great jurists of the State Spencer was gifted, ambitious and indomitable; defi. of New York.

cient in the plastic and congenial qualities that attach The judicial, legal and political career of Ambrose followers to party leaders, and yet from nis great Spencer is almost unexampled in distinction and suc- moral worth, useful aud powerful talent, he was always cess. He was a brother-in-law of DeWitt Clinton. As popular with the masses." a statesman and political leader, he stands in history Ambrose Spencer was born at Salisbury, Conn., next to his great brother-in-law.

December 13, 1765. In the autumn of 1779, he entered
In the zenith of his political career, his “bossism” Yale College, and in 1782 Harvard University. His
held the powers and towering ambition of DeWitt mind, method, and taste for polemics naturally led
Clinton, and Martin Van Buren, largely under his him to adopt the legal profession as his occupation in
control, often neutralizing their plans in advancing life.
his own.

After his admission to the bar he established him-
At the bar he was the compeer of Hamilton, Burr, self at Hudson, N. Y., entering rapidly into a lucra-
Van Vechten, Henry, Josiah Ogden, Hoffman and tive and extensive practice, soon attaining a national
Wells. His judicial brethren were Chancellors Kent, reputation.
Lansing, Livingston, Walworth, and Judge Brock- The profession of law, inter-woven as it is with the
holst Livingston.

preservation and protection of personal and political
Mr. Hammond, in his political history of the State, rights, almost necessarily brings its members into the
says: “Ambrose Spencer was truly a great man, not political arena. So it was with Ambrose Spencer.
only fond of power, but fond of exercising it-one of In 1794 he represented Columbia county in the As-
the ablest judges in the nation."

sembly. Two years later he was elected a member of He was a deep, accurate thinker, a professional the State Senate, in which body he had a seat eight scholar, familiar with the classics and the æsthetics of successive years. Ou January 9, 1797, he was chosen a antiquity. His taste was refined, largely exercised in member of the council of revision, exercising with the the study of the literature of all ages. As was said by executive the veto power over the laws enacted by the Rufus Choate, “he united the niost profound knowl- Legislature. In 1802 he was appointed attorney-genedge of law with perfect literary culture, Literature eral, serving two years. In 1803 he removed to Alto him was of essential service; it quickened his in- bany where, with the exception of a few years, he genuity; it rendered his logic flexible; it enlarged his spent the remainder of his life. On February 4, 1804, mind without taking from him the power to narrow he was appointed an associate justice of the Supreme down its proportions again to practical legal dimer- | Court, serving with great ability until 1819, when he sions. In every way he made literature subservient received the appointment of chief justice. The posito law, not dominant over it."

tion rendered him an ex-officio member of the court As we have said of Judge Spencer on another occa- for the correction of errors, superseded by the Coustision, he combined, in a remarkable degree, the qualities tution of 1846, by the Court of Appeals. of a great judge. He occupied a seat on the bench of In 1821, he was a member from Albany,of the con verithe Supreme Court over nineteen years. Many vol- tion of that year which formed the second Constitution umes of reports in which his opinions are preserved of the State. It has been said with great truth that no attest the extent and importance of his judicial labors. deliberative body ever convened in the State or in the In all coming time the lawyer and the student will Nation, in which so many great jurists and wise legisladiscover in them that intellect and power, that tors occupied seats. In this distinguished assemblage, depth of investigation and wisdom, which gave him Ambrose Spencer and James Kent were the acknowlsuch a commanding position among the jurists of his edged leaders in all the discussions on the judiciary, time. “His opinions, always brief, are characterized and on the elective franchise. Spencer's speech ou the by such instinctive neatness and precision that no su- latter question was read with interest throughout the perfluous thought or word interrupts the full force of Nation. his reasoning.

The rare faculty he possessed of The Judiciary Bill adopted by the convention, condetecting intuitively the decisive points in a case was stitutionalized Spencer out of office, and he retired to another of his distinguishing characteristics." Не private life. always carried on his examinations, reflections and From 1829 to 1833, he was a representative in Con. consultations with impartiality, steadiness and clear. gress from the Tenth Congressional District. In 1839,

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he removed to Lyons, N. Y., where, on March 13, 1848, In his personal appearance, Chief Justice Spencer he died. was commanding and impressive. He was above the Such in brief is the original of the portrait, wbich ordinary height, formed in the harmony of manly now ornaments the rooms of the New York State Bar beauty. His features, as seen in the portrait, are Association. strongly marked. The forehead high and massive, iv. ALBANY, Dec. 23, 1886.

L. B. PROCTOR,

niegs.

CORRESPONDENCE.

respondent, v. Barbara Goldscbmidt, appellant; Den

nis Sullivan, administrator, respondent, v. Buffalo CODE OF CRIMINAL PROCEDURE.

Grape Sugar Co., appellant; Joseph T. Watson, adEditor of the Albany Law Journal:

ministrator, respondent, v. Brooklyn City R. Co., ap

pellant. · Appeal dismissed, with costs-Lizzie H. I have read with interest your comments, and those Clark, respondent, v. Marion B. Clark, appellant; of your correspondents, upon the inconsistencies of the John R. Hurtz, administrator, respondent, v. John H. Criminal Code, but there are provisions in the Code Starin, appellant. —Motion for reargument denied. of Civil Procedure, which though they may be con- without costs-Johnson v. Myers. — Order affirmed sistent with each other, work disastrously to property with costs Beuj. Wright, receiver, appellant, v. interests, and should be denounced in terms equally Mary A. Nostrand, impleaded, respondent: In unqualified. My particular “pique" is directed to re Final Accounting of Joseph B. Spencer, testamensubdivisiou 7 of section 382, and other sections defin-tary trustee, appellant; In re Application of N. Y., L. ing its application. Prior to the enactment of this E. & Western R. Co., to acquire land of Sprague, etc., Code the limitation on a justice's court judgment was respondent; Benjamin Fitch, respondent, v. Patrick twenty years, and no good reason can be found for its MoWalon, appellant; Alex. S. Turner, appellant, v. change. Nevertheless the change occurred, and no Wm. W. Watson et al., respondents; Jacob Hoag et judgment creditor could have been specially grieved al., respondents, v. Charles Hillmeier, appellant; by it, if its application was confined to judgments | Mary Emma Wyckoff v. Seth W. Scofield (petition of afterward rendered, but subdivision 3 of section 414 W. S. Maddock). makes it retrospective, and causes the demise of all Adjourned until Monday, January 17, 1887, at 10 justice's court judgments unless an action is brought o'clock A. M. on them within two years thereafter. This appears to approach dangerously close to the constitutional prohibition, that no Ex post facto law'' shall be en

NOTES. acted. Section 3352 properly prescribes that the law in force the day before the Code takes effect (ch. 4, ou Sept. 1, 1877) are deemed to remain in force, notwith- “A Lawyer's hands must be clean,” says the Amer. standing this repeal, “excepting chapter 4,” which lat

ican Law Review. This implies that he must have ter provision seems most prejudicial, severo and un- plenty of “soap.” called for. I know of an estate with justice's court

Mr. Justice Day evidently believes in a judge underjudgments aggregating $4,000, mostly good, so far as

standing his work; his lordship has already had a turn the ability of the judgment debtor to pay is concerned,

at the treadmill. His latest achievement was at Liv. but killed by this unjust law. A judgment creditor erpool the other day, when he visited the most notoobtaining judgment in, say 1870, has a right to repose rious neighborhoods of low life to be found in that sufficient confidence in the stability of the then laws,

city. He first visited, in company with his son, Rose to excuse him from vigilance each year afterward in

Hill Police Station, situated in the centre of a very ascertaining whether there has been a change affecting disreputable quarter, and then “The Long Jigger, his property interests. As the twenty years are about and Ben Johnson Street, a narrow thoroughfare well expiring he naturally commences to think about per- known to the police. Entering a thieves' lodgingpetuating his claims against his several judgment house, called by them "The Loose Box,” the usual debtors, and then for the first time learnis that they Saturday night scene of rowdyism met his lordship’s died an unnatural death in 1879.

view. To satisfy his curiosity still further, be proIt is vicious and our Legislature would act wisely in ceeded toward Athol street, a neighborhood identified rectifying it. Very respectfully,

with the “High Rip Gang." It is not recorded that

his lordship went arrayed in judicial wig and gown. WILMER H. DUNN.

It is fortunate none of the members of the “High Rip CHAMPLAIN, N. Y., Dec. 1886.

Gang" recognized him. Shortly before he had in. flicted some very severe sentences on members of that community.-Gibson's Law Notes.

The late Enoch H. Rosekrans was one of the greatest COURT OF APPEALS DECISIONS.

wits that ever sat on the bench of this State. He

loved to tease his dignified brother-in-law, the late HE following decisions were handed down Fri

William A. Beach. On one occasion the latter mado day, Dec. 17, 1886:

a motion before him, in which the judge intimated Order of General Term affirmed with costs-In re

pretty plainly that he thought he was wrong. But Petition of the New York Cable Co.-Judgment re- Beach was not to be put down in this way, and perversed, new trinl granted, costs to abide the event

sisted in his argument, citing a decision which he de: Ann Craston, administratrix, respondent, v. N. Y. C.

clared was the latest, and to which he said he hoped & H. R. R. Co., appellants; Michael Martin, general his honor would yield. “But there is a later decision guardian of Sarah Quigley, administrator, respondent, the other way," said the judge, “I am not aware of v. New York, New Haven and Hartford R. Co., ap

it,” said Beach very stifly; “where may it be found ?" pellants.--Order of General Term, affirming decree “It is the one I made in this case about ten minutes of the surrogate, affirmed, with costs-In re Account

ago. Any other motions, gentlemen ?" On another ing of John J. Jones et al., executors, respondents, v. occasion he was aring an action for an assault and Margaret A. Jones, appellants.--Order affirmed on

battery committed on the day of a political couvelle the merits and judgment absolute ordered for the de- tion in the interest of Gen. McClellan. An old soldier fendant, with consts-Ida May Morse, administratrix, had testified, and on cross-examination was asked if etc., appellant, v. N. Y. C. & H R. R. Co.-- Judgment he was attending the convention. “No, sir," said the affirmed, with costs--Sarah McCallum, administratrix, witness; "that wasn't my stripe," Great laugater etc., respondent, v. Long Island R. Co., appellant; ensued, and the judge, who also was not of “tbat Francis E. Johnson, administrator, respondent, v. stripe,” rapped to order, observing with a deprecatory Andross B. Stone et al., appellant;, Thomas Anderson, air, " the witness has a right to exculpate himself."

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