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on the ground of remoteness did not deprive | spect to the sharpening of the spurs on the plaintiff of his constitutional right to a jury ladder, the inference that can be drawn from trial, guaranteed by Bill of Rights, art. 20. it is so uncertain and remote that it is more likely to prevent than to promote the disCovery of the truth. It cannot be said that there is no evidence to support this finding.

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 204-219; Dec. Dig. § 31.*] 3. NEW TRIAL (8 7*)-RIGHT TO NEW TRIAL

-BILL OF RIGHTS.

Bill of Rights, art. 14, guaranteeing to a suitor a certain remedy for all injuries he may receive, does not entitle him to a new trial for newly discovered evidence as a matter of right, but in order to obtain such relief he must show, not only that he was free from fault, but that a different result would probably be reached if he was given a new trial, as provided by Pub. St. 1901, c. 230, § 1.

[Ed. Note. For other cases, see New Trial, Cent. Dig. & 18; Dec. Dig. § 7.*]

4. JURY (§ 31*)-RIGHT TO JURY TRIAL COMPETENCY OF EVIDENCE.

Though plaintiff has a constitutional right to have a jury pass on any competent evidence he may produce, he has no right, constitutional or otherwise, to have the jury pass on the competency of the evidence by which he proposes to prove his case.

[Ed. Note.-For other cases, see Jury, Cent. Dig. 88 204-219; Dec. Dig. § 31.*]

Exceptions from Superior Court, Merrimack County; Pike, Judge.

[1-4] There is no merit in the plaintiff's contention that the denial of his motion for a new trial is a violation of his right to "a certain remedy * * for all injuries he may receive" (Bill of Rights, art. 14), or that the court's finding that if the new evi

dence is relevant it should be excluded on the ground of remoteness deprives him of his constitutional right to a jury trial. Bill of Rights, art. 20. Article 14 of the Bill of Rights does not entitle him to a new trial as a matter of right. In order to obtain such relief he must show, not only that he is free from fault, but also that a different result will probably be reached if he is givInsurance Co., 36 N. H. 44, 50; Dennett v. en a new trial. P. S. c. 230, § 1; Crafts v. Dennett, 44 N. H. 531, 535, 84 Am. Dec. 97. Although the plaintiff has a constitutional right to have a jury pass on any competent evidence he may produce (St. Pierre v. Foster, 75 N. H. 11, 70 Atl. 289), he has no right, constitutional or otherwise, to have the jury pass on the competency of the evidence by which he proposes to prove his case. Exception overruled.

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Action by Crosby A. Sanborn against the Boston & Maine Railroad. A motion for a new trial for newly discovered evidence was overruled, and the case transferred to the Supreme Court on exceptions. Overruled. Motion for a new trial, on the ground of newly discovered evidence. The case is the same as that reported in 76 N. H. 523, 86 Atl. 157, where it was held that the evidence did not warrant the conclusion that the defendants had given the plaintiff to understand they would keep the spurs sharp upon the ladder which he was using at the time of (Supreme Court of New Hampshire. Merrimack his injury. The new evidence, in substance,

(1) That it was the custom of the man in charge of the planer to sharpen the spurs; and (2) that other workmen who had occasion to use the ladder did so without making an examination of it. The superior court found that the plaintiff was not at fault in failing to offer the new evidence at the trial, and that such evidence, if relevant, was so remote and inconclusive that justice did not require the granting of a new trial,

and denied the present motion, subject to the plaintiff's exception.

PLUMMER, J., was absent. The others concurred.

(77 N. H. 337) SLEEPER v. SMITH et al.

County. June 27, 1914.)

1. FRAUD (§ 58*)-REPRESENTATIONS-KNOWLEDGE OF FALSITY-EVIDENCE.

Evidence that defendant was a good business man, that he had carefully examined a mortgaged farm to ascertain its value, with a view of buying it, and that it was worth $14,000, justified a finding that he knew it was worth much more than about the amount of the first two mortgages on it, $7,000, the amount which he represented it to the owner of the third mortgage to be worth. Dig. §§ 90, 91; Dec. Dig. § 58.*]

[Ed. Note. For other cases, see Fraud, Cent.

2. FRAUD (§ 11*)-REPRESENTATIONS-OPIN

IONS.

Robert W. Upton, of Concord, for plainAs regards fraud, there is a false repretiff. Streeter, Demond, Woodworth & Sullo-sentation of fact where one expresses an opinion as to value for the purpose of misleading, way, of Concord, for defendant. when in fact he does not entertain that opinion.

YOUNG, J. As the case is understood, the court found in effect that if a new trial were granted it would not change the result, because it would be the court's duty to exclude for remoteness the evidence by which the plaintiff seeks to sustain his contention. In other words, the court found that if the evidence on which the plaintiff relies is

[Ed. Note. For other cases, see Fraud, Cent. Dig. § 11; Dec. Dig. § 11.*]

3. FRAUD_(§ 58*)-RELIANCE ON REPRESENTATIONS EVIDENCE.

While the fact that plaintiff called in two men to advise her in the matter of making a sale to defendant may be evidence that she did not rely entirely on what he said, it is .not conclusive that she was not misled by his state

ments.

[Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 90, 91; Dec. Dig. § 58.*]

relevant to the issue of what the defendants gave their employés to understand in re*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

4. APPEAL AND ERROR 1050*)-HARMLESS [ for her mortgage, for he did not know how ERROR-ADMISSION OF EVIDENCE.

Admission, in an action for fraud, of plaintiff's testimony that a man from Boston tried to buy her mortgage after she had sold it to defendant is harmless; she having previously, without objection, stated all this, except the man's residence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

from his conversation with her, according to they would come out. A reasonable inference her testimony, would be that he had serious doubts about the property being worth more than the amount of the first two mortgages, tiff relied upon this representation and was which was about $7,000, and that the plaininduced to give up her security for $100, upon

the theory, as she testified, that it was better Exceptions from Superior Court, Merri- to take that than to lose the whole of her mack County; Chamberlin, Judge.

Action on the case by Elmira W. Sleeper against Charles D. Smith and others, for fraud in the purchase of a farm mortgage. There was a verdict for plaintiff, and the case is transferred from the Superior Court on defendants' exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor. Exceptions overruled.

Niles & Upton, of Concord, for plaintiff. John H. Albin, of Concord, and Edgar W. Smith, of Wells River, Vt., for defendants.

WALKER, J. [1] The defendants' motions

claim. Considerable evidence was introduced upon the subject of the value of the farm, from which the jury might have found that at the time of this transaction it was worth about $14,000, and that the defendants understood that it was at least worth much more than the mortgage indebtedness. The facts that the defendants were good business men, and that they had carefully examined the property to ascertain its value with a view of purchasing it, justified the finding that they knew it was worth much more than Smith represented it to be to the plaintiff. There was evidence, therefore, of all the elements of fraud perpetrated by the defendants upon the plaintiff-a false representation, known by the defendants to be such, as to the value of the plaintiff's property, made for the purpose of inducing her to sell it to them for little more than a nominal sum, her sale of it to them in justifiable reliance upon their representation, and the resulting damage to her. Stewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496; Spead v. Tomlinson, 73 N. H. 46, 61, 59 Atl. 376, 68 L. R. A. 432; Shackett v. Bickford, 74 N. H. 57, 65 Atl. 252, 7 L. R. A. (N. S.) 646, 124 Am. St. Rep. 933; Sipola v. Winship, 74 N. H. 240, 66 Atl. 962; Cunningham v. Company, 74 N. H. 435, 69 Atl. 120, 20 L. R. A. (N. S.) 236, 124 Am. St. Rep. 979; Redgrave v. Hurd, 20 Ch. Div. 1.

for a nonsuit and for a directed verdict present the question of law whether the evidence authorized the jury to find that the defendants made false and fraudulent representations to the plaintiff, intending thereby to induce her to sell her mortgage security to them for a sum far below its actual value, and that the plaintiff relied on and was induced by such representations to sell her mortgage for the sum mentioned. As there were no exceptions to the charge, it must be assumed that the jury were properly instructed in regard to the law of the case. The principal contention, therefore, relates to the sufficiency of the evidence to support the verdict. That the plaintiff sold her mortgage on the farm in question to the defendants for $100, [2] The argument advanced by the defenda ninth part of the sum for which it was orig- ants that what Smith said about the value of inally given, upon the personal solicitation of the property and the almost worthless charone of the defendants, Smith, who was acting acter of the plaintiff's mortgage was a mere for the others as well as for himself, is conced-expression of opinion, and not the assertion of ed. It is also admitted that the plaintiff was an old lady who had little knowledge of real estate values, while Smith was a business man who was conversant with land values in that vicinity and who, in conjunction with his partners, purchased the first mortgage on the farm and sought to buy the plaintiff's interest for the purpose of making money by the transaction. It is clear that Smith's purpose in visiting the plaintiff was to induce her in some way to sell her mortgage, which was the third mortgage on the property. There was evidence tending to show that the defendants were enthusiastic in carrying out their purpose of buying up the outstanding mortgages and in acquiring an absolute title to the property upon foreclosure proceedings, which had been begun. The plaintiff testified that Smith told her he could not pay her more than $100

a fact upon which she was entitled to rely, is fallacious; for if in one sense it was the expression of an opinion, the jury could find that, in view of his business ability and the careful examination he had made of the property, he did not in fact entertain that opinion, but expressed it for the purpose of misleading the plaintiff.

ment that it is his opinion includes one that "When a person gives his opinion, the statehe believes what he has said to be the truth; in other words, that what he has stated as his opinion is his opinion. Every expression of opinion contains at least that one statement what he knows to be false, for the purpose of of fact; consequently, a person can state inducing another to change his position, when he pretends to express his opinion as to any matter, as well as when he pretends to state facts in relation to it. In such a case the falsity of the statement consists in stating something as his opinion which is not his opinion."

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Spead v. Tomlinson, 73 N. H. 62, 59 Atl. 381, [law, limiting its jurisdiction as to admitting 68 L. R. A. 432.

[3] The fact that the plaintiff called in two other men to advise her in the matter may have been evidence that she did not rely entirely on what Smith said, but it is not conclusive that she was not misled by his statements. It was clearly competent for the jury to find that she was.

[4] The exception to the plaintiff's testimony that a man from Boston tried to purchase her mortgage after she had sold it to the defendants is unavailing. It seems she had already stated without objection that she received such an offer. Whether the man lived in Boston or not does not seem to be

important or prejudicial. Its admission was not error.

Exceptions overruled; judgment for the plaintiff.

members, was a "dead letter."

Cent. Dig. § 8; Dec. Dig. § 8.* [Ed. Note.-For other cases, see Associations,

For other definitions, see Words and Phrases, vol. 5, pp. 4539-4542; vol. 8, p. 7722.]

Exceptions from Superior Court, Strafford County; Young, Judge.

Bill in equity by George H. Yeaton and others to enjoin the Somersworth Grange of the Patrons of Husbandry from refusing plaintiffs admission to its hall and from de priving them of the privileges and benefits enjoyed by members of the organization in good standing, the New Hampshire State Grange and the National Grange also being made defendants. Findings and rulings were adverse to defendants, and they excepted. Exceptions sustained.

The plaintiffs while residents of Rollinsford applied for membership in the Somers

PLUMMER, J., was absent. The others worth Grange, and, being declared eligible concurred.

(77 N. H. 332)

YEATON et al. V. SOMERSWORTH GRANGE OF PATRONS OF HUS

BANDRY et al.

by the master of that grange, they were thereupon elected and took the first two degrees of the order. This proceeding was in violation of a by-law of the order legally adopted by the State Grange and imposed upon the subordinate granges in their admission of members, which provided that in

(Supreme Court of New Hampshire. Strafford such a case the Rollinsford Grange should

County. June 27, 1914.)

1. ASSOCIATIONS ( 5*)-GRANGES-BY-LAWS -DETERMINATION-REVIEW BY COUrts.

The question, whether a by-law of the State Grange, prescribing jurisdiction of a subordinate grange as to admission of members, has become a "dead letter," having been finally determined by the regular tribunals of the order, will not, ordinarily, be re-examined by

the courts.

[Ed. Note. For other cases, see Associations, Cent. Dig. §§ 4-6; Dec. Dig. § 5.*]

2. ASSOCIATIONS (§ 5*)-GRANGES-BY-LAWS -REPEAL-SUBORDINATE GRANGES.

A by-law imposed by the State Grange on all subordinate granges as to jurisdiction in the admission of members cannot be, in effect, repealed by a subordinate lodge, by it for a long time disregarding it.

[Ed. Note. For other cases, see Associations, Cent. Dig. §§ 4-6; Dec. Dig. § 5.*]

3. ASSOCIATIONS (§ 5*)-GRANGES-BY-LAWS -REPEAL EVIDENCE.

It cannot be inferred that the State Grange had waived or repealed a by-law imposed by it on subordinate granges as to jurisdiction in the admission of members, because some of its officers knew, or were chargeable with knowledge, that the by-law had not always been observed by some of the subordinate granges in a certain vicinity.

[Ed. Note. For other cases, see Associations, Cent. Dig. §§ 4-6; Dec. Dig. § 5.*]

4. ASSOCIATIONS (§ 8*)-GRANGES-BY-LAWS -"MISTAKE."

be notified and its consent obtained; but the court found that the by-law had not been observed in many instances by granges in the vicinity of Somersworth, and that for that reason it had become a dead letter. As soon as the Rollinsford Grange learned that the plaintiffs had been admitted to the Somersworth Grange it entered a complaint with the master of the State Grange, who upon a hearing ruled that the plaintiffs had not been admitted in accordance with the rules of the order, and dismissed the complaint. The Somersworth Grange appealed from the decision to the State Grange, and from its decision to the National Grange. Both of these organizations sustained the finding of the master of the State Grange. The question whether the plaintiffs became members through "inadvertence or mistake," within the meaning of another provision of the by-laws, was not decided upon the appeals; but the court ruled that if the bylaw as to jurisdiction was in full force and effect, nevertheless the plaintiffs became members through inadvertence and mistake as to the meaning and effect of that by-law. To these findings and rulings the defendants excepted.

Elmer J. Smart, of Rochester, for plaintiffs. Harry W. Spaulding and Robert L. Manning, both of Manchester, for defendants.

A by-law of the State Grange, in effect, that discovery that a subordinate grange has "inadvertently or by mistake" initiated a member from the jurisdiction of another grange, without its consent, shall not render his adWALKER, J. [1] In the "by-laws of the mission illegal, refers to a mistake of fact as to the applicant's place of residence, and does New Hampshire State Grange" (page 29) it not include a mistaken belief that another by- is provided that "when a grange [i. e., a sub*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

bound by the adjudication upon their membership rights in the contest between the two granges. But however this may be, an examination of the facts leads to the same conclusion as that reached by the tribunals of the order.

ordinate grange] receives an application for membership from a candidate residing within the jurisdiction of another grange, it should be laid upon the table, and no further action be taken upon it until the consent of the grange having jurisdiction is obtained"; also, that "complaints for infringement of The plaintiffs' argument, based upon a jurisdiction must be made to the master of custom to disregard a positive by-law in the State Grange within sixty days after the regard to the admission of members in subinitiation of the candidate." The former ordinate granges, if otherwise sound, overby-law was not observed when the plaintiffs' looks the essential fact that the by-law in applications were received by the Somers-question is not a regulation adopted by the worth Grange. The proceedings upon the Somersworth Grange, but one imposed upon applications were the same as are observed it and all other subordinate granges in the when an applicant is within the territorial state by the superior authority of the State limits of the grange he desires to join. The Grange. It could not modify or repeal it, master of the grange declared them to be nor could it accomplish that purpose indieligible, and they were elected at the first rectly by a series of violations of its provimeeting and took the first two degrees. In sions. Whatever effect its continued nonthis situation the question arises whether observance of a rule adopted by it might they were admitted to membership in the have, it is clear that it could not of its own Somersworth Grange, in apparent violation motion, through the acts of its master, deand repudiation of the rule or by-law in clare an applicant for membership eligible regard to jurisdiction. Their contention is in violation of a rule formulated by the that this by-law had become a "dead letter" state organization and made obligatory and in consequence of a custom that had grown binding upon the local branches in their adup in that vicinity of disregarding its provi- mission of new members. It is true that sions in such cases; that is, that its nonob- such a case, if the member living in another servance in many former cases occurring in jurisdiction was formally admitted without granges in the vicinity of Somersworth had a compliance with the rule, his status as a deprived it of its validity, and that the juris-member might become established, if no comdictional test of eligibility to membership plaint was interposed by the grange in whose had been waived. The question thus presented having been finally determined by the regular tribunals of the order adversely to this contention, upon the appeal of the Rollinsford Grange against the Somersworth Grange, would not ordinarily be re-examined in this court.

"The preponderance of authority is in favor of the doctrine that as to all questions of policy, discipline, internal government, and custom, the legal tribunals must accept as binding the decision of the regularly constituted judicatories of the church, fraternity, association, or society." 1 Bac. Ben. Soc., § 68.

See, also, Spilman v. Home Circle, 157 Mass. 128, 31 N. E. 776; Connelly v. Association, 58 Conn. 552, 20 Atl. 671, 9 L. R. A. 428, 18 Am. St. Rep. 296; State v. Knights of Pythias, 53 N. J. Law, 536, 22 Atl. 343; People v. Board of Trade, 80 Ill. 134; State v. Grand Lodge, 8 Mo. App. 148; Watson v. Jones, 13 Wall. 769, 20 L. Ed. 666; 24 Am. Law Rev. 556.

[2] But it is urged in argument by the plaintiffs that as they were not technically parties to the proceedings upon appeal, they are not bound by the decision, which in effect was based upon a ruling that they were not members of the Somersworth Grange, never having been legally admitted as such; and that no procedure is provided by which they can bring the question of their membership before the grange for adjudication. It might be a sufficient answer to this contention to say that when they applied for membership they impliedly agreed to be bound by the rules of the order, and that they are

territorial limits he lived, within 60 days after his initiation. But his right to membership would at most be conditional during that period; it might upon complaint be determined, in accordance with the procedure and rules of the order, that he did not become a member, and such was the result with reference to the plaintiffs upon the complaint of the Rollinsford Grange against the Somersworth Grange. If they had been parties to that proceeding in a technical sense, they would undoubtedly have been bound by the final decree or order. Whether they are so bound need not be considered: for by that decision, upon appeal to the highest tribunal of the order, it has been held that the by-law in question was in full force when they applied for admission, and that the action of the Somersworth Grange in 'admitting them was void. This interpretation of the by-law is at least an authority to be considered by the court in this case, as indicating with some force what the by-law means and what the effect is of its violation. It is not necessary to hold that it is a conclusive authority, for it seems to coincide with the views of the court above expressed.

[3] The fact that some of the officers of the State Grange knew, or were chargeable with knowledge, that the by-law in question had not always been observed by some of the subordinate granges in the vicinity of Somersworth does not authorize the inference that the State Grange, that established the by-law, had waived or repealed it. It

would be a novel doctrine that knowledge, evident intention expressed by the language on the part of those charged with the enforcement of a law that it has been violated in some instances, unaccompanied with any attempt to enforce it, is evidence that the law is of no legal force. There is no evidence that by any act of the State Grange this by-law has been repealed or invalidated.

of the by-law. It is not to be presumed the rule as to the eligibility of candidates was not to apply when there should be a mistaken belief by the parties that it was not in force. Such an assumption is absurd. The mistake suggested and relied upon by the plaintiffs was a mere mistake of law. They erroneously supposed that the by-law was meaningless, but they are not thereby authorized to profit by their error of judgment. Evans v. Gale, 17 N. H. 573, 575, 43 Am. Dec. 614; Bradley v. Laconia, 66 N. H. 269, 20 Atl. 331; Strafford Savings Bank v. Church, 69 N. H. 582, 44 Atl. 105; State v. Goodenow, 65 Me. 30; People v. Powell, 63 N. Y. 88, 92.

YOUNG, J., did not sit. PLUMMER, J., was absent. The others concurred.

(77 N. H. 340)

[4] But it is urged that if the by-law was in force they were admitted by inadvertence and mistake, within the meaning of another by-law which provides that "should a grange, inadvertently or by mistake, initiate a member from the jurisdiction of another grange without the consent of such grange, it shall pay the injured grange all the initiatory fees, except what goes to the State Grange." Moreover, by applying for admission to It is found as a fact that this point was the grange the plaintiffs in effect agreed that not raised or considered by the State Grange their eligibility should be determined by its upon the appeal, and it does not appear to existing rules and in accordance with the have been determined by the order in any prescribed procedure. If the rule in regard case. The only mistake suggested is in the to mistake and inadvertence is deemed to assumption of the plaintiffs and of the Som- be a part of the contract relation to which ersworth Grange that the by-law relating to the plaintiffs assented, its interpretation jurisdiction was a "dead letter." Although does not differ from what it is when viewed it is found as a fact that they all entertained as a quasi legislative provision. The questhis idea in good faith, it does not follow tion is still one of intention, to be ascertainthat the legal efficacy of this by-law, as ap-ed from the language employed in its appliplied to them, was thereby abrogated. The cation to the subject-matter. No different evident purpose of the by-law was to make test is required, and no different result is not become an honest mistake by a subordinate grange reached. The plaintiffs did as to the residence of the candidate inef- members of the Somersworth Grange. fectual to render his admission illegal. It Exceptions sustained. was not intended that a mistake as to the force and validity of a by-law, or an erroneous assumption that a rule of the order defining the eligibility of a candidate was of no consequence, should have the same WHITE MOUNTAIN FUR CO. v. TOWN OF effect as a careful compliance with the rule. The honest, but mistaken, opinion of a subordinate grange that a rule prescribed by the State Grange relating to the admission of members, not formally repealed or modified by the superior body, was not intended to have the force and effect of law in the particular cases in which it might be applied does not render its nonobservance an immaterial circumstance. If there was a mistake If there was a mistake of fact as to the jurisdictional line between two granges, or as to the actual domicile of the applicant, whether within or without that line, the by-law prescribes, in effect, that his initiation does not become void upon the discovery of the fact that he lived without the jurisdiction. The previous rule prescribing a jurisdictional test of the eligibility of the applicants does not apply in such a case. But the finding of the court that the mistake or inadvertence related, not to the fact of the actual residence of the plaintiffs, but to the validity of a material by-law, is not sufficient to relieve the plaintiffs from the consequences of a violation of the bylaw when they sought admission to the order. Such a result would be contrary to the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

WHITEFIELD.

(Supreme Court of New Hampshire. Coos. June 27, 1914.)

1. TAXATION (§ 72*) — PROPERTY SUBJECT TO TAX-"TRADESMAN."

The word "tradesman," in its most common it is frequently used in the sense of a skilled meaning, is synonymous with "shopkeeper"; but workman, as a blacksmith, carpenter, or tanner, and such was the intended meaning of the word in Pub. St. 1901, c. 55, § 7, cl. 6, taxing the stock in trade of tradesmen, and as so used it did not include the owner of a fox pack kept for breeding purposes and for sale.

[Ed. Note. For other cases, see Taxation,
Cent. Dig. § 157; Dec. Dig. § 72.*
For other definitions, see Words and Phrases,
First and Second Series, Trader.]

2. WORDS AND PHRASES “MERCHANT” "SHOPKEEPER.'

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A merchant is one whose business or occupation is buying and selling commodities; but every person who buys and sells commodities is not necessarily a merchant. What is true of a merchant is true of a shopkeeper, for whether a person who buys and sells commodities as a business is one or the other depends on the extent, and not on the character, of his business; if his business is large he is a "merchant," and if it is small he is a "shopkeeper."

[For other definitions, see Words and Phrases, First and Second Series, Merchant; Shopkeeper.j

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