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evidence raises no question as to the correctness of the copy,^ nor



Mississippi. — Routh v. Agricul-
tural Bank, 12 Smed. & M. 161, 185.

New Hampshire. — Currier v.
Boston & M. R. R., 34 N. H. 498;
Haynes v. Thorn, 28 N. H. 386.

New York. — Murphy v. People, 6
Thomp. & C. 369; Trankla v. Mc-
Lean, 18 Misc. 221, 41 N. Y. Supp.
385.

Tennessee. — Campbell v. Camp-
bell, 3 Head 325.

Texas. — Croft v. Rains, 10 Tex.
520.

A general objection to the intro-
duction of a record of a patent to
land as " incompetent " is not suf-
ficient to raise the point that no
proper foundation has been laid for
the use of the record by showing
that the original is not available.
Enid & A. R. Co. V. Wiley, 14 Okla.
310, 78 Pac. 96.

An Objection to Evidence as "In-
competent " does not raise the point
that it is secondary and not the best
evidence. Matthews v. J. H. Luers
Drug Co., no Iowa 231, 81 N. W.
464; Walser v. Wear. 141 Mo. 443,
42 S. W. 928; Topeka Capital Co.
V. March, 10 Kan. App. 40, 61 Pac.
876.

An Objection to Evidence as " In-
competent and Immaterial " does not
raise the point that it is not the best
evidence. Asbestos Pulp Co. v.
Gardner. 39 App. Div. 654, 57 N.
Y. Supp. 353.

An Objection to Evidence as " Ir-
relevant and Immaterial " is too
general to raise the point that it is
secondary and not the best evidence.
Clark V. State, 40 Tex. Crim. 127,
49 S. W. 85.

An Objection to Evidence as " In-
competent, Irrelevant and Imma-
terial " does not raise the point that
it is not the best evidence. Buett-
ner v. Steinbrecher, 91 Iowa 588,
60 N. W. 177; Kenosha Stove Co. v.
Shedd, 82 Iowa 540, 48 N. W. 933;



Taylor v. Wendling, 66 Iowa 562, 24
N. W. 40; The Iowa Homestead Co.
V. Buncombe, 51 Iowa 525, i N. W.

725-

99. Minchen v. Hart, 72 Fed.
294.

1. Eversdon v. Mayhew, 85 Cal.
I, 21 Pac. 431 ; Smith v. Leighton,
38 Kan. 544, 17 Pac. 52, 5 Am. St.
Rep. 778; Watson v. Hahn, i Colo.
494; McDonald v. Stark, 176 111.
456, 52 N. E. 2>7\ Crawford v. Chi-
cago, B. & Q. R. Co., 112 111. 314;
Conway v. Case, 22 111. 127; Rus-
sell V. Whiteside, 5 111. 7.

An objection to copies of deeds as
improper, immaterial and irrelevant
is not sufificiently specific to raise
the point that they are only second-
ary evidence. Cunningham v. Crui-
ningliam, 75 Conn. 64, 52 Atl. 318.

Incompetent and Immaterial.
An objection to the admission of a
copy as " incompetent and imma-
terial " does not raise the question
that the paper was improperly admit-
ted because a copy and not the orig-
inal. Atkins V. Elwell, 45 N. Y. 753.

Incompetent, Irrelevant and Im-
material — An objection to a copy
of a record as incompetent, irrele-
vant and immaterial does not raise
the point that it is secondary evi-
dence, for the admission of which
no foundation has been laid. Ken-
osha Stove Co. V. Shedd, 82 Iowa
540, 48 N. W. 933. And the same
is true of a similar objection to a
copy of a letter. St. Vincent's In-
stitution V. Davis, 129 Cal. 20. 61
Pac. 477; Ackley v. Welch, 85 Hun
178. ^2 N. Y. Supp. 577.

2. Where a witness was shown
what purported to be a copy of a
letter and asked if it was a copy,
the objection to the testimony on
the ground that the original was
not produced was held not sufficient
to cover the point that the copy w-as
not shown to be in fact a copy.
Toplitz V. Hedden, 146 U. S. 252.

Vol. IX



90



OBJECTIONS.



does it raise the point that secondary evidence is absolutely
inadmissible.^

c. Must Appear That There Is Better Evidence. — It is not
sufficient merely to object to evidence on the ground that it is
secondary and not the best evidence, but it must appear either from
the evidence itself or from the objection that there is better
evidence.*

O. Parol Evidence. — Incompetent parol evidence varying the
terms of a written instrument must be objected to specifically on
this ground.^

P. Opinion Evidence. — a. Generally. — A mere general ob-
jection to a question calling for an opinion is not sufficient to ques-
tion the competency of opinion evidence upon the matter in question,
nor the competency of the particular opinion called for.^



3. Where it appeared that a depo-
sition regularly taken, sealed and
transmitted to the clerk of the court
and by him opened and filed, had
disappeared, and that the copy of-
fered in evidence was a true copy
taken under the direction of the
court and by him compared and
certified, it was held that an objec-
tion to the admission of the copy
" on the ground that it was not the
original " was properly overruled be-
cause not sufficiently specific to raise
the point that the deposition should
have been retaken, and that second-
ary evidence of its contents was inad-
missible. "Here the objection was
that the copy was not the original.
This as a fact was self-evident, but
as a ground of objection it was
wholly indefinite." Burton v. Driggs,
20 Wall. (U. S.) 125.

4. Duplessis v. Kenned}^ 6 La.
231 ; Lewinsohn v. Stevens, 70 111.
App. 307.

An objection that " there was bet-
ter evidence," without stating in
what the better evidence consisted,
was held properly overruled, being
too vague and indefinite. Levens v.
Smith, 102 Ga. 480, 31 S. E. 104.

In Andrews v. State, 123 Ala. 42.
26 So. 522, an objection to a question
on the ground that there " is better
evidence of the facts sought to be
proved " was held properly overi'uled
because it did not appear that there
was any better evidence than the an-
swer of the witness disclosed.

When oral evidence of a fact is
offered and objection is raised on the

Vol. IX



ground that there is written and bet-
ter evidence of the fact, it is in-
cumbent on the objector to produce
the writing itself or prove that it
was once in existence. Allen v.
State, 8 Tex. App. 67.

Oral Evidence of Incorporation.
Sufficiency of Objection An objec-
tion to a question as to whether a
particular concern is a foreign cor-
poration, on the ground " that it is
not the proper way to prove whether
it is a corporation," is sufficiently
specific to raise the point that the
fact of incorporation cannot be
proved by parol testimony. Nicoll
V. Clark, 13 Misc. 128, 34 N. Y.
Supp. 159- . .

5. An objection to testimony that
it is incompetent, irrelevant, imma-
terial and inadmissible under the
pleadings does not raise the point
that it varies the terms of a written
contract. Union Cash Register Co.
V. John, 49 Minn. 481, 52 N. W. 48.

On Appeal the Writing Must Ap-
pear — An objection to oral evidence
on the ground that it varies the
terms of a written contract is not
available on appeal where the writ-
ten contract was not introduced in
evidence by either party and is not
before the appellate court. Kirby
V. Berguin, 15 S. D. 444, 90 N. W.
856.

6. Walker v. Erie R. Co., 63
Barb. (N. Y.) 260. See People v.
Mahoney, yj Cal. 529, 20 Pac. j^.

A general objection to a question
calling for an opinion does not ques-
tion the competency of opinion evi-



OBJECTIONS.



91



Defects in the Form of the ftuestion must be specifically pointed out
in the objection.'^



dence upon the matter in question,
since the form of the question might
have been changed, or the party
might have acquiesced in the incor-
rectness of the evidence and have
withdrawn the question entirely.
Ward V. Kilpatrick, 85 N. Y. 413,
39 Am. Rep. 674.

Insufficient Foundation An ob-
jection to a question calHng for the
opinion of a non-expert as to the
mental capacity of a testator as " in-
competent " is too indefinite to raise
the point that the witness had not
shown sufficient facts upon which to
base an opinion. Rivard v. Rivard,
109 IMich. 98, 66 N. W. 681, 63 Am.
St. Rep. 566.

An Objection That a Question Calls
for a " Conclusion " does not raise
the point that expert testimony of
the kind called for is inadmissible,
since all opinions are conclusions.
McLain V. British h Foreign M. Ins.
Co., 16 Misc. 336, 38 N. Y. Supp. 77.

Expert Testimony. — An objection
to a question calling for expert opin-
ion on the ground that it is incom-
petent, immaterial, irrelevant and
leading does not raise the point that
expert testimony is not admissible
on the point in question. Wilson 7k
Harnette, 32 Colo. 172, 75 Pac. 395.

Objection to Opinion as to Depre-
ciation in Value Due to Railroad.
In an action for damages caused by
the proximity of an elevated rail-
road, an objection to a question call-
ing for the opinion of a witness as
to the rental value of plaintiff's prem-
ises in the absence of the elevated
railroad was objected to as "incom-
petent, irrelevant, immaterial and
conjectural, as not within the com-
petency of this witness and not within
the competency of any witness."
This objection was held sufficiently
specific to raise the point that the
subject to which the question related
was not one upon which expert evi-
dence was admissible. Jefferson v.
New York Kiev. R. Co., 132 N. Y.
483, 30 N. E. 981, citing Roberts v.
New York Elev. R. Co., 128 N. Y.
455, 28 N. E. 486; Doyle v. Man-
hattan R. Co., 128 N. Y. 488. 28 N.
E. 495; Gray v. IManhattan R. Co.,



128 N. Y. 499. 28 N. E. 498, and
distinguishing McGean v. Manhat-
tan R. Co., 117 N. Y. 219, 22 N. E.
957, in which an objection to a sim-
ilar question as " incompetent, irrele-
vant, hypothetical," and because the
witness was not competent to give
an opinion, was held insufficient.
The objection did not raise the point
that opinion evidence on this ques-
tion is not admissible, but on the
contrary seemed to imply that opin-
ions were competent on the subject.

But in Carter v. New York Elev.
R. Co., 134 N. Y. 168, 31 N. E. 514.
an objection to a question calling
for an opinion as to the difiference
in value of the property in question
with or without the elevated rail-
road, that the evidence called for
" is immaterial, incompetent, hypo-
thetical, and that the difference in
value is not the measure of dam-
ages." was held insufficient. See also
Mortimer v. Manhattan R. Co., 129
N. Y. 81, 29 N. E. 5; Kernochan v.
New York Elev. R. Co., 128 N. Y.
559, 29 N. E. 65; Blum V. Manhat-
tan R. Co., I Misc. 119, 20 N. Y.
Supp. 722.

Sufficient Objection An objec-
tion to a question calling for an
opinion that it is " incompetent, im-
proper and speculative and not the
proper method of proving damages "
is sufficiently specific to raise the
point that it calls for an inadmissible
opinion. Pratt v. New York C. &
H. R. R. Co., 77 Hun 139, 28 N. Y.
Supp. 463.

7. See Stouter z>. Manhattan R.
Co., 127 N. Y. 661, 27 N. E. 805;
Brown v. Third Ave. R. Co., 19
Misc. 504, 43 N. Y. Supp. 1094; and
supra, " Form of Question," IV, 3,
A, b.

An objection to a question calling
for expert testimony on the ground
that it is incompetent, immaterial
and irrelevant does not raise the
point that the question assumes facts
not in evidence. State v. Ginger, 80
Iowa 574, 46 N. W. 657.

An objection to a question calling
for expert testimony on the ground
that it is incompetent is not suffi-
cient to reach a defect in the ques-
tion, in that it is not sufficiently r^.-

Vol. IX



92



OBJECTIONS.



b. Wholly Incompetent on Its Pace. — It has been held that when
the opinion called for is wholly incompetent on its face for any
purpose, and the grounds of objection could not be obviated, a gen-
eral objection is sufficient.^

c. Conclusion. — A general objection does not raise the point
that the question is so framed as to call for the mere conclusion of
the witness.®

d. Hypothetical Question. — (1.) Generally. — An objection to a
hypothetical question should show wherein the question is
defective. ^°

(2.) Foundation. — A general objection does not raise the point
that it is based upon an incorrect or incomplete statement of the
evidence. The objection should point out specifically the particu-
lars in which the statement is incomplete or incorrect,"



stricted to prevent the witness from
going outside the field of scientific
knowledge. Lyon v. Grand Rapids,
121 Wis. 6og, 99 N. W. 311.

A general objection to a question
to an expert calUng for the results
which might follow from certain in-
juries is not sufficiently specific, since
expert testimony as to results which
are reasonably certain to ensue is
competent, and the court's attention
should be called to the fact that
the witness is testifying as to a re-
sult which may or is liable to occur,
rather than to one which is reason-
ably certain to follow from the in-
jury. Dow-Currier z'. Henderson, 85
Hun 300, 32 N. Y. Supp. 953.

8. Wallace v. Vacuum Oil Co., 128
N. Y. 579, 27 N. E. 956. See supra,
IV, I, E.

Where a nuestion calls merely for
the opinion of a witness as to the
amount of damages caused by a
trespass, a general objection is suffi-
cient since such testimony is never
admissible. Rodgers v. Fletcher, 13
Abb. Pr. (N. Y.) 299, citing 5 Hill
603, and distinguishing 3 Hill 609.

9. Lake Erie & W. R. Co. v. Par-
ker, 94 Ind. 91.

The sustaining of a general objec-
tion to a question calling for testi-
mony which may be material to the
issue is error, although the question
in form may be objectionable as call-
ing for a conclusion. Gerry v. Sie-
brecht (App. Div.), 84 N. Y. Supp.
250.

An objection to evidence as incom-
petent and immaterial does not raise
the point that it calls for a conclu-

Vol. IX



sion. Asbestos Pulp Co. v. Gard-
ner, 39 App. Div. 654, 57 N. Y. Supp.

353-

A general objection to a question
that it is " illegal " does not raise
the point that it calls for a legal con-
clusion. Steiner v. Tranum. 98 Ala.
315, 13 So. 365. See also Coghill v.
Kennedy, 119 Ala. 641, 24 So. 459.

10. Shirley v. State. 37 Tex. Crim.
475. 36 S. W. 267; Barber's Appeal,
63 Conn. 393, 27 Atl. 973, 22 L. R.
A. 90.

An objection to a hypothetical
question as incompetent and imma-
terial is insufficient. State v. Wright,
134 Mo. 404. 35 S. W. 1 145.

A general objection to hypothetical
questions as incompetent is not suffi-
cient to question their defects in
form, especially if the party object-
ing refuses on request to make the
objection more specific. Davey v.
Janesville, in Wis. 628, 87 N. W.
813.

11. Cornell v. State, 104 Wis. 527,
80 N. W. 745; Aledo V. Honeyman,
208 111. 41S, 70 N. E. 338; O'Neill V.
Kansas City, 178 Mo. 91, 77 S. W.
64; People V. Foglesong, 116 Mich.
556. 74 N. W. 730; Gilbert zf. Ken-
ned}', 22 Mich. 117, 143; McCooey
V. Forty-Second St. & G. St. Ferry
R. Co., 79 Hun 255, 29 N. Y. 368.

An objection to a hypothetical
question put to an expert witness on
the ground that it is incompetent,
immaterial and irrelevant is too gen-
eral to raise the point that the ques-
tion is based on an erroneous state-
ment of the evidence. Chicago, R.
I. & P. R. Co. V. Archer, 46 Neb. 907,



OBJECTIONS.



93



(3.) Scope of Specific Objection. — An objection to a hypothetical
question on specified grounds is limited to the grounds stated. ^-

Q. Admissibility Under Pleadings. — a. Generally. — A gen-
eral objection to evidence does not raise the point that it is not
admissible under the pleadings^^ as on account of a variance.^* An
objection on the latter ground should point out in what particulars
there is a variance/^ that an amendment may be made.

b. Limitations of Rule. — The foregoing general rule, however,
does not apply where the variance is of such a nature that it could



65 N. W. 1043; Missouri Pac. R. Co.
V. Hall, 66 Fed. 868.

An objection to a hypothetical
question on the ground that it as-
sumes facts not proved must point
out what particular assumed facts
have not been proved. Styles v. De-
catur, 131 Mich. 443. 91 N. W. 622;
People's Cas. Claim Adjust Co. v.
Darrow, 172 111. 62. 49 N. E. 1005.

An objection to a h\'potheticaI
question that it does not state the
evidence on material matters and as-
sumes conditions not existing is not
sufficient, but should specifically point
out the particulars wherein the ques-
tion is defective. Prosser v. Mon-
tana Cent. R. Co., 17 Mont. 372, 43
Pac. 81, 30 L. R. A. 814.

It is not error to overrule an ob-
jection to a hypothetical question on
the ground that it assumes facts not
proven, where the objection does not
correctly state the facts claimed to
be assumed. M'Cready v. Staten
Island Elec. R. Co., 51 App. Div.
338, 64 N. Y. Supp. 996.

12. See infra V, 6. H, b.

13. Illinois Cent. R. Co. v. Prick-
ett. 210 111. 140, 71 N. E. 435;
Schwarz v. Oppold, 74 N. Y. 307;
Russell V. Davis, 51 Minn. 482, 53
N. W. 766. See Detroit, Hillsdale
& I. R. Co. V. Forbes. 30 Mich. 165, 178.

An objection to evidence as incom-
petent, irrelevant and immaterial is
not sufficiently specific to raise the
point that it is inadmissible under the
pleadings. Keigher v. St. Paul, 73
Minn. 21, 75 N. W. 732.

An objection to testimony on the
ground that it is " inadmissible un-
der the pleadings" is not sufficient,
but should point out the particular
defects in the pleadings. Ileymes v.
Champlin, 52 Mich. 25, 17 N. W. 226.

A general objection tliat evidence
is irrelevant or incompetent is not



sufficient to raise the question of its
competency under the special form
of the issues joined. Columbus Safe-
Deposit Co. V. Burke, 88 Fed. 630,
32 C. C. A. 67.

An objection to evidence on the
ground that it is not in any manner
responsive to the charge in the in-
dictment is too general. Simons v.
State (Tex. Crim.), 34 S. W. 619.

14. A variance between a lease
offered in evidence and the pleadings
cannot be covered by a general ob-
jection. Richards v. Bestor, 90 Ala.
352, 8 So. 30.

The question of variance is not
raised by an objection to testimony
as incompetent, irrelevant and imma-
terial. Burlington Ins. Co. v. Miller,
60 Fed. 254. 8 CCA. 612. 19 U. S. App.
58S. Compare Shrimpton v. Dwor-
sky, 2 iNIisc. 123, 21 N. Y. Supp. 461.

15. United States. — Illinois Car
& Equip. Co. V. Linstroth Wagon
Co., 112 Fed. 737, 50 C. C. A. 504;
Walsh V. Colclough, 56 Fed. 778, 6
C. C. A. 114.

Alabama. — Alabama M. R. Co. v.
Darby, 119 Ala. 531, 24 So. 713.

Illinois. — Swift v. Rutkowski, 182
111. 18, 54 N. E. 1038; Murchie v.
Peck, 160 111. 175. 43 N- E. 356;
Richelieu Hotel Co. z'. Militarv En-
camp. Co., 140 111. 248. 29 N. E.
1044; Lake Shore & M. S. R. Co. v.
Ward, 135 111- 511, 26 N. E. 520; St
Clair Co. Benev. Soc. v. Fietsam,
97 111. 474; Espen V. Hinchliffe. 131
111. 468, 23 N. E. 592; Chicago & A.
R. Co. v. Morgan, 69 111. 492; Ohio
& M. R. Co. V. Brown, 49 111. App. 40.

Louisiana. — Hennen v. Wetzel, 12
La. 265.

Vermont. — Hills v. Marlboro, 40
Vt. 648.

In an action to foreclose a me-
chanic's lien, the introduction in evi-
dence of the notice of lien was ob-

Vol. IX



94



OBJECTIONS.



not be obviated/^ or, it has been held, where the variance is plainly
apparent on the face of the evidence. ^^ And some courts hold that
a variance must necessarily be apparent when the evidence is offered,
and therefore a general objection is sufficient/*

c. Bvidcnce Not Within the Issues. — A general objection to
evidence does not raise the point that it is not within the issues
made by the pleadings.^** A general statement of this ground of
objection is, however, sufficient.-**



jected to on the ground " it was
incompetent, irrelevant and imma-
terial, and that it was a variance
from the allegation of the complaint,
no such lien having been pleaded and
no contract set out in the complaint
such as is described or attempted to
be described in said lien." This ob-
jection was held insufficient because
it did not point out wherein a vari-
ance existed or was supposed to
exist. Georges v. Kessler, 131 Cal.
183. 63 Pac. 466.

An objection to evidence on the
ground that it is immaterial, irrele-
vant and incompetent in that it does
not support the allegations of the
complaint is not sufficient to raise
the point that the evidence varies
from the allegations of the complaint.
Knox V. Higby, 76 Cal. 264, 18 Pac.
381.

16. In an action for the recovery
of the possession of real estate, with
damages for the withholding thereof,
a general objection to evidence as
to the value of the use and occupa-
tion of the premises was held suf-
ficiently specific since there was no
cause of action alleged authorizing
the introduction of such evidence,
and the complaint could not have
been amended so as to obviate the
objection, since that would have re-
quired the inserting of a new and
independent cause of action. Larned
V. Hudson, 57 N. Y. 151.

An objection to evidence showing
a different contract than the one al-
leged on the ground that it is " ir-
relevant, immaterial and incompe-
tent " was held sufficiently specific,
where it appeared that there could
have been no amendment of the com-
plaint which would have made the
testimony relevant. Morehouse v.
Morehouse, 140 Cal. 88, 73 Pac. 738.

17. In Gabriel v. State, 40 Ala.
357. a general objection to a confes-
sion was held sufficient where the

Vol. IX



evidence was on its face illegal, be-
cause of variance from the facts
charged in the indictment.

In an action upon a bill of exchange
payable to " Bart " W., which is
described in the declaration as pay-
able to " Bartholomew " W. without
any averment that Bart and Bar-
tholomew were one and the same
person, or that the former was an
abbreviation of the latter, a general
objection to the admission of the
instrument in evidence on the ground
of variance without stating in what
the variance consisted was held suf-
ficient, since the objection could not
be obviated on the trial, the declara-
tion lacking the necessary averments
under which to admit the requisite
proof. Curtiss v. Marrs, 29 111. 508.

18. Gabriel v. State, 40 Ala. 357.
But see Sawyer v. Patterson, 11 Ala.
523.

In Gilbert v. Kennedy, 22 Mich.
117, 142, a general objection to evi-
dence as to special damages not al-
leged in the complaint was held
sufficient. "Though the objection
made to the evidence was general,
yet the court trying the cause must
always be supposed to know what
is in issue by the pleadings. The
ground of objection should, there-
fore, I think, be considered too ob-
vious to require it to be specifically
stated ; and it is one which could not
be cured without at least striking out
the testimony or expressly with-
drawing it from the jury."

19. Claflin v. New York Standard
Watch Co., 7 Misc. 668, 28 N. Y.
Supp. 42, 28 N. Y. Supp. 1 143.

The objection of " irrelevant, im-
material and incompetent " does not
raise the point that no issue is made
by the pleadings which renders the
evidence objected to admissible.
Walker v. Gray (Ariz.), 57 Pac. 614.

20. In Kitchen Bros. Hotel Co.
V. Dixon (Neb.), 98 N. W. 816, an



OBJECTIONS.



95



d. Insu-fficiency of Complaint To State Cause of Action. — It has
been held that an objection to the admission of any evidence on the
ground that the complaint does not state facts sufificient to consti-
tute a cause of action need not specify in what respects the complaint
is deficient, since this objection can be raised in the appellate court
for the first time.-^ But the contrary has also been held. -

e. Fact Not Alleged. — A general objection is not sufficient to
question the admissibility of evidence of a particular fact on the
ground that it has not been pleaded. ^^

R. Objections to Witness. — a. Generally. — An objection to
the competency of a witness must specifically point out the ground



objection to evidence as incompe-
tent and irrelevant and not within
the issues was held sufficient to call
the attention of the court to the fact
that the evidence was not within the
issues made by the pleadings, and it
was therefore error to overrule the
objection. But see Shewalter v.
Hamilton Oil Co., 28 Ind. App. 312,
62 N. E. 708. See Weatherford v.
Union Pac. R. Co. (Neb.), 98 N. W.
1089.

In an action for damages to prop-
erty caused by the erection of an
elevated railroad in its vicinity, an
objection to testimony comparing the
rental value of the premises in
question with that of other prop-
erties located in widely separated
territory, on the ground that the evi-
dence called for was " not within the
issues," was held sufficiently specific
to raise the point decided in Jamie-
son V. Kings Co. Elev. R. Co., 147
N. Y. 322, 41 N. E. 693, that such
evidence is incompetent because it
raises collateral issues. Stuyvesant



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