same time in an audible voioe proclaim the name of the person offering to vote to the board; and if the judges be satisfied according to the evidence as here. in described, that the person offering to vote is a legal voter, the clerks of election shall enter the name of the voter and his number under the proper headings in the poll-book, and the judges shall indorse on the back of the ticket offered the number corresponding with the number of the voter on the poll-list, and shall immediately put his ticket in the ballot-box.” The Constitution of the State declares that “all elections shall be by ballot, except for such town officers as may be directed by law to be otherwise chosen." As the election of city officers are not embraced in the exception, in regard to elections of town officers, the question in the case is whether the provision in regard to the numbering of the ballots is constitutional. The answer to this question depends upon what is meant by voting by ballot. Voting by ballot signifies a mode of designating an elector's choice of a person for office by depositing a ticket bearing the name of such person into a recepticle provided for the purpose, in such a way as to secure an elector, the privilege of complete and inviolate secretcy in regard to the person voted for. This privilege of secrecy may probably be regarded as the distinguishing feature of ballot-voting, as compared with open voting, as, for instance, voting viva voce. The object of the privilege is the independence of the voter. The provision requiring the numbering ef the ballots is unconstitutional, as violating the voter's privilege of secrecy, and a voter can not be required to submit to its application, and if the voter is debarred from voting upon refusing to submit, he may maintain his action for damages against the person debarring him. Opinion by BERRY, J.-Brisbin v. Cleary.

ment of a suit, employs another attorney who assists at the trial of the cause, and the client is present and sees the attorney thus employed assisting in managing and conducting the suit, and recognizes him as assistant counsel in the case, such client will be liable to such assistant attorney for his reasonable fees. Whether the original counsel were authorized by their client to employ such assistant counsel or not, the recognition of such assistant on the trial by the client would amount to an implied ratification of his employment. Judgment reversed. Opinion by NIB. LACK, J.--Hogate v. Edwards.

SLEEPING CAR TICKET-LIABILITY OF COMPANY. -Appellee purchased a ticket, or check, for a certain lower berth on a sleeping car of appellant, from Indianapolis to New York. While en route the car was detached from the train, and appellee was compelled to take an inferior berth in another car. He brought suit for damages and recovered below. The question as to whether appellant is a common carrier is not material to the case. The contract made imposed upon the appellant the obligation to furnish sleeping car accommodations for a continuous trip from one point to the other, so that appellee could go on with the continuous train, as he might be bound to do on the purchase of an ordinary railroad ticket without provision for stopping off. 71 Penn. 432; 72 Penn. 231; 11 Met. 121. The appellant was bound by the contract evidenced by the check, not merely to furnish sleeping car accommodations, but to furnish the particular berth in another car of equal safety, convenience and comfort. 47 Ind. 79. Judgment af. firined. Opinion by WORDEN, C. J.-Pullman Palace Car Co. v. Taylor.



May, 1879.

May Term, 1879.

TRESPASS CUTTING TREES BY A TENANT.- A tenant, as such, has no right without express authority or license, to cut trees upon the land of the land. lord, except, perhaps, for necessary firewood; and such authority or license can not be implied from the mere possession, or right of possession, of the land by the tenant. Judgment affirmed. Opinion by HOWK, J.-Devixson v. State.

CORPORATIONS NOTES GIVEN ULTRA VIRES.A note given by a corporation will be presumed to to have been given in the course of its legitimate business until the contrary appears. Such a note will be valid in the hands of a subsequent indorsee without potice, whatever may be the purpose for which it was given, even if given ultra vires. Judgment reversed. Opinion by PERKINS, J.-Vanarsdall v. Statc.

HUSBAND AND WIFE-TORT OF WIFE.- Replevin by appellant against appellee for some hogs. The court below charged the jury in effect, that the defendant was not liable for the detention of the property, and an action would not lie against him therefor, if the detention was caused by his wife and son, and he did nothing more in the way of detention than to allow his wife and son to keep it on his farm. Held, that this is an incorrect statement of the law. The unlawful detention of the plaintiff's property was a tort; and if it was tbus detained by the defendant's wife, he became liable to the plaintiff for the act. Cooley on Torts, 115. Judgment reversed. Opinion by WORDEN, C. J.-Choen v. Porter.


MORTGAGE-CONDITIONAL SALE - EVIDENCE.-1. An instrument under seal executed by P. and wife to M., declares that, in consideration of $430 to them in hand paid, they have “bargained, sold, granted and conveyed to M., his executors," etc., a certain mare and harness, phaeton and piano, all then in their possession: “provided, however, and on these conditions," that if said P. or his representatives should, within six months, pay to M., his representatives or assigns, $75 and 10 per cent. interest on said piano, or $150 and 10 per cent. interest for said mare, or $215 and 10 per cent. interest for said phaeton and harness, then said instrument, “ as to the article or articles so redeemed," should be void; and that M. agreed to let P. redeem said chattels severally by payment of said respective: sums, and to resell, assign, and transfer to said P., by bill of sale, any separate chattels so redeemed;" provided, further, that P. should retain possession of the properiy during said six months. There was also a habendum, and a warranty of title. Held, that, in the absence of any testimony as to the circumstances under which the instrument was executed, the transaction must be regarded, not as a conditional sale, but as a mortgage. 2. Whether there can be a chattel mortgage without personal liability of the mortgagor, or some other person, to the mortgagee, for the sum secured, is not here determined, there being no evidence that there was not such a liability in this case. 3. Parol evidence would have been admissible in this case to show the circumstances under which the contract was made, for the purpose of enabling the court to construe it. Ly. man v. Babcock, 40 Wis. 503. 4. Error of the court below, against the appellants, in holding the contract, unexplained by evidence of facts attending it, a condi. tional sale, would not be cured by its erroneous rejecBOOK NOTICE.

tion of evidence of such facts offered by respondent; nor could the latter error be considered here on this appeal. 6. A tender of the mortgage debt by the mortgagor remaining in possession after condition broken, kept good by payment of the money into court, is a good defense to an action by the mortgagee for the possession. Opinion by TAYLOR, J.-Musgat v. Pumpelly.

FIRE INSURANCE-CONSTRUCTION OF POLICYWARRANTIES.–1. A stipulation in an application for fire insurance construed, in a doubtful case, most strongly against the insurer, by whom it was framed. 2. In a doubtful case, that construction of a contract which will save it, is to be preferred to one which 'will destroy it. 3. The use of the word “warranty" in a contract will not always control its construction, as there may be a warranty without use of that word, and its use will not always create one. 4. An application for insurance against fire, on a printed form furnished by the company, contained over a hundred interrogatories, with answers thereto, and a statement that the applicant covenants and agrees with the company" that the foregoing is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk; and the same is hereby made a condition of the insurance, and a warranty on the part of the assured.” The policy provides that the application “shall be considered a part of this policy, and a warranty by the assured.Held, (1), That the stipulation in the policy that the application shall be considered a warranty by the assured, must be construed to mean such a warranty as stipulated in the application itself. (2). That the clause “so far as the same are known to the applicant," etc., is not an additional stipulation that the assured has stated all facts known to him material to the risk, though not called for in the interrogatories; but it qualifies the preceding clause, changing it from an absolute covenant that all the answers

true to a covenant that they are true "80 far as known," etc. (3), That in an action upon the policy, therefore, it can not be held void merely because the application contains some false statements of fact, but it must be shown that these were known by the assured to be false, and were material to the risk. And as to a promissory or continuing undertaking, true when made but afterwards departed from, it must appear that the change increased the risk, and was thus material. 5. To the question, what material was used in lubricating the machinery, the assured answered, "lard and sperm oil;" and to the questions whether the machinery was regularly oiled, and, if so, by whom and how often, the answer was: “Yes, by engineer and miller, as often as necessary.” The proof was, that during the whole life of the policy, an oil known as “ fine engine oil ” was constantly used in the mill for lubricating purposes, and that the machinery was not usually oiled by the engineer or miller, but by another person specially employed by plaintiffs for that purpose.

Held, that the insurer could not escape liability on these facts, without proof that the use of said “fine engine oil," instead of lard and sperm oil, was known to the assured, or that the risk was increased by the fact that some person other than the miller or engineer usually oiled the machinery, Opinion by LYON, J.-Redman 0. Hartford Fire Ins. Co.


Court of Chancery of the State of New Jersey, with Practical Notes and References to Decisions on Matters of Pleading and Practice. By 8. MEREDITH DICKINSON, Counselor at Law. Jersey City: F. D. Linn & Co.

This book has been prepared especially with refererence to the wants of the New Jersey practitioner, but it has a value far beyond that State. Barring the technical rules which constitute the science of special pleading at the common law, the elements of all good pleading under whatever system it may be are essentially the same everywhere. A concise and logical statement of the cause of action or defense forms the basis of every well prepared answer or complaint. This being so, the forms contained in Mr. Dickinson's book can be made available, as well by the intelligent practitioner under a modern code, as by one still pursuing the methods of procedure originally adopted and long confined to the practice in courts of equity. It will be found upon examination that these forms are clear, concise and logical. They omit nothing which is essential; they contain nothing which is superfluous. They bear the most unmistakeable evidence of having passed under the practiced eye, as well as having been pruned and fashioned by the skilful hand of a master of the subject to which they belong.

The notes, which are very conveniently arranged for reference, constitute a store-house of selected authorities upon the subjects to which they refer. This peculiar merit consists in the cases cited being directly in point as illustrative of the principles for which they are cited, and that every one is an acknowledged authority upon the subject.

This is a book eminently to be praised. The paper upon which it is printed, its typographical execution, the quality of its binding and the general style and manner of its preparation, are well worthy of imitation by all law-book makers. But these qualities, though much to be commended, constitute only a small part of superior value and excellence of the work. To the New Jersey practitioner this book must become absolutely essential. It will be to him at least, what the great work of Mr. Daniel has proved to the English bar.



QUERIES. 5. MORTGAGE-FORECLOSURE, REDEMPTION.-B, under the laws of Iowa, mortgages his realty to A. Before foreclosure, C and D obtain judgments in a court of record against B. A forecloses his mortgage against B, without making C and D parties to the proceeding. The year for redemption expires, and a sheriff's deed is made upon sale under such foreclosure. Are the rights of redemption by C and D cut off-if so, when and how, and if not, how long time do they have to assert the right to redeem?

M. L. T. 6. MASTER AND SERVANT-DISCHARGE.-A is a wholesale dealer, and hires B to sell for him to retail dealers by sample, and upon commission upon sales actually made, B to pay his own expenses. The contract is for one year. At the end of six months, A discharges B, without fault upon the part of B. Can B recover damages, and if so, what is his measure of damages?

M. L. T.

7. GIFT–WHEN REVO CABLE.—A sold to B property at the price of $500. A, intending a gift to his son C, took B's obligation for the payment of the $500 payable to himself as trustee for the use of C. A has always retained this obligation. Part of it has been paid to A, and the balance is owing. A refuses to account to C, and proposes to appropriate the whole sum. Has C any enforceable claim against A or B?

Owensboro, Ky.

Mr. Justice Field decided what is known as the "queue eutting ordinance,” to be invalid, being in eonflict with the fourteenth amendment. The ordinance prescribed that the queues of all Chinamen im. prisoned in the county jail for petty offenses should be out off, and was expected to prove a strong detriment to that class of criminals.


No. 4.

[9 Cent. L. J. 39.] The supplying lodgings or clothing to a prostitute, for the purpose of enabling her to carry on her practices, is illegal, and the creditor can not recover the price. Girardy v. Richardson, 1 Esp. 13; Jennings v. Throckmorton, R. & M. 251; Bowry v. Bennet, 1 Camp. 348. See Feret v. Hill, 2 L. J. (C. P.) 185; 15 C. B. (80 E. C. L. R.) 207. Any contract encouraging prostitution, or auxiliary to the keeping of a bawdy-house, or supplying a thing with the knowledge that it is going to be used for that purpose, is void. Pearce v. Brooks, Law Rep. 1 Ex. 213, 217; Smith v. White, Law Rep., 1 Eq. 626. This includes the letting of a house for bawdy-(Crisp v. Churchill, 1 B. & P. 340; Jennings v. Throckmorton, Ryan & Moody N. P. 251; 1 Bishop Crim. Law, $$ 1090-1096)-letting a carriage to a prostitute as a part of her equipage to entice men-Pearce v. Brooks, supra; Girardy v. Richardson, 1 Esp. 13)and in some circumstances furnishing her with board, (Mackber v. Griffith, 2 Cranch C. C. 336; compare with Lloyd y. Johnson, 1 B. & P. 340; 2 Chitt. Cop., 11th Am. Ed 981) and clothing. Bowry v. Bepnett, 1 Camp. 348. But in the application of the doctrine, there are some nice distinctions, and not on all of them are the courts quite agreed. Compare with the following cases, Armfield v. Tate, 7 Ire. 258; Hanauer v. Doane, 12 Wall. 342; McGavock v. Puryear, 6 Coldw. 34; Michall v. Bacon, 49 Mo. 474; Taylor v. Chester, Law Rep. 4 Q. B. 309. The bare knowledge of the seller, that the purchaser intends to use the property unlawfully, is not sufficient to vitiate a contract of sale, and render it illegal and void. Sup. Ct. Gen. T. 1850; Kreiss v. Seligman, 8 How. 435; S. C., 8 Barb. 439. St. Louis, Mo.


THE Governor of this State deserves the thanks of its citizens, for the courageous stand wbich he has taken against that sentimentalism which sees in every murderer condemned to suffer the extreme penalty of the law, a proper subject for executive clemency. It ought, by this time, to be well understood by all per. sons of murderous proclivities, that so far as the chief officer of the State is concerned, they have little to look for except justice; and a falling off in the number of homicides within our borders will, we venture to say, soon be noticeable. With a weaker man than Governor Phelps at Jefferson City, a murderer, no matter wheth. er rich or poor, influential or friendless, would be much more likely to die of fever or sunstroke, than at the hands of the law. While his riches might be po. tent with the jury, as juries now go, his poverty, in the event of his conviction, would be strighway urged as a reason why he should be pardoned, because, lor. sooth, had he been rich he would have been acquitted. This argument seems to have reached the height of its absurdity in a letter, one of many written with the same object, addressed to the Governor in support of a petition for the commutation of the sentence of one Degonia, convicted at Potosi, in this State, for the killing of a man who, at the time he received the fatal wound, was running away from his assassin. There seem to be few mitigating features in a case of this kind, and yet the Governor is implored to commute the sentence, because other criminals, as bad as he, have lately escaped punishment in that part of the State, and to make an example of this one would be unfair. It apparently did not strike the writer of this letter that the trouble lay in permitting the ninety-nine to escape; and that, if this argument was worth anything, no criminal of avy grade could be justly convicted, because criminals of every grade have again and again been unjustly acquitted. It is to be hoped that the firm stand taken by the Governor will succeed in putting an end to a ridiculous feature of criminal trials which, at present, prevails very extensively in this part of the country. We mean the attempts which are made not only by jurors, but, we regret to say, by trial judges and prosecuting attorneys, to transfer the responsibility for a conviction for a capital crime from their own to the shoulders of the executive. No sooner has the Supreme Court affirmed the case than the Gov. ernor is overwhelmned with petitions for a pardon or reprieve, signed not only by citizens in general, but by the judge who sat on the trial, the attorney who prosecuted the prisoner, and the jurors who convicted him. As to the petitions of sympathetic people who know nothing about the facts of the case, they are entitled to but little weight, and generally receive but small attention. The others, however, stand on a dito ferent footing. If the prisoner was not guilty on the evidence, the jury violated their oaths; if the prosecuting attorney believed him innocent, it was no part of his duty to prosecute him; if he was unjustly con. victed, the judge, in permitting the verdict to stand, became himself the criminal. The Degonia case, in

The fact that a vendor sells goods to the keeper of a house of ill-fame, knowing that they are to be used in her business, will not preclude him from recovering the purchase price of said goods in an action brought for that purpose; provided the goods be articles of lawful commerce. 24 La. Ann. 591; 26 La. Ann. 108; 49 Mo. 478; S. C. 13 Am. Rep. 128; 8. C. 21 Am. Rep. 549; S. C. 8 Am. Rep. 138.

S. H. Holton, Kansas.

[See, also, as supporting this answer to the query, Howell v. Stewart, 54 Mo. 404; contra, Ochse v. Wood, 5 Cent, L. J. 417.-ED. CENT. L. J.)


CHIEF JUSTICE WAITE has received from the Ohio State University the degree of Doctor of Laws.-Abraham B. Olin, late of the Supreme Court of the District of Columbia, died at his residence in Maryland, on the

morning of July 7th, at the age of sixty-seven, the addition, shows that

, even with the decision of the The Central Law Journal. Vice-Chancellor Stuart decided to the contrary.

The trial of Thomas Buford for the murder of Judge Elliott of the Kentucky Court of Appeals is in progress at Owenton in that State. In the United Ststes Circuit Court at San Francisco, on the 7th inst.,

Governor, the end of the case is not reached; it is still left for his counsel to attack that decision in the news. papers. Luckily, however, for the public peace, this lası appeal is made to a tribunal which has no jurisdiction.

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The pre


Stock Gambling has received another blow

in the recent decision of the Supreme Court of In Bennet v. Bennet, recently decided in the

Pennsylvania, in Fareira v. Gabell, 20 Alb.

L. J. 48, to the effect that notes given by a English High Court of Justice, it was held that an intention that a gift to a child is an advance

purchaser to a stock broker to cover losses

incurred by the broker in stock gambling, on ment, will not be presumed in the case of a widowed mother under circumstances in which

the principal's account, are void. The action such an intention would be presumed in the

was one of assumpsit on five promissory notes, case of a father. JESSEL, M. R., said: “The

drawn by the defendant to the order of the doctrine of equity is that where one person

plaintiff. The plaintiff having offered in evstands in such a relation to another, that there

idence the notes, the defendant set up that, is an obligation on him to make a provision for being desirous of operating in stocks, he em

ployed the plaintiff, a broker, for that purpose. he latter,and we find a purchase or investment in the name of the latter, or in the joint names

The contracts made through the agency of the of both, of an amount which would constitute

plaintiff were simply contracts of wager.

These transactions continued about two years. a provision, there arises the presumption of an intention to discharge such obligation, and,

In July, 1875, he give the plaintiff three of

the notes in suit, amounting to $7,000, as therefore, in the absence of evidence to the

“margins on stock contracts,' and two contrary, that purchase or investment is held

months later gave the other two notes for to be in itself evidence of a gift.

$5,000 for indebtedness then appearing due. sumption of a gift arises from the moral obli

The evidence for the plaintiff in rebuttal was gation to give. That reconciles all the cases

that in a settlement of accounts in November, except one, because it is well established that, 1875, there appeared a balance due the plainas regards a child, a person not the father may tiff from the defendant of $14,794.67, which put himself in loco parentis, and so incur the the defendant had admitted to be correct; obligation to make provision for the child. that the defendant not having fulfilled his conWhat, then, is meant by a person in loco par- tract, the plaintiff had advanced the money entis? It means a person taking upon himself necessary to cover the defendant's losses, with the duty of a father to provide for the child;

his assent, and also that, in some cases, the so that the doctrine can only have reference to stock was actually delivered to the purchasers the obligation of a father to provide for his and sometimes it was not. The trial judge, child, and nothing else. In the case of a father, in his charge to the jury, stated the principles the obligation arises from the mere fact of his governing the case as follows: being the father; no other evidence is neces- “ Was this a gambling or wagering operation which

the law does not sanction, and will not carry into effect? sary; it is part of his duty. But in the case

Now, a wager may be defined as a contract in which of a person in loco parentis, you must prove the parties stipulate that they shall gain or lose upon that he undertook the obligation. Now, in our

the happening of an uncertain event, in which they

have no interest except that arising from the possibillaw there is no legal moral obligation--that is, ity of such gain or loss. no such obligation as a court of equity recog

“This may be illustrated by an example: A and B

agree, in consideration of a premium paid by B, that nizes—on a mother to provide for a child. if a certain ship is lost at sea, A shall pay B the value From Holt v. Frederick, 2 P. Wms. 357,

of the ship. If B has no interest in the ship, it is a

wagering contract, but if B has an interest, and will downwards, i has been held that no such ob

be loser if the ship is wrecked, it is a contract of inligation exists; and, therefore, an advance- demnity and not a wager. So, if two men agree that if

coffee rises in price, one of them shall pay a sum of ment to a child by a mother is not in itself

money to the other, it is a wager, if they have no other sufficient to raise the presumption in law that interest in the coffee than that growing out of the conit is a gift. In Sayre v. Hughes, however,

tingency about which they stipulate. But it does not

follow that every contract which produces such a result Vol. 9–No. 4.


is a wager; the question is one of intention, as deduced events, entirely new models must be adopted, from facts and circumstances. “Let us suppose that A agrees with B to buy :

or followed to a greater or less extent. And thousand bushels of wheat, at $2 per bushel, to be de- the plan usually was, after the adoption of the livered and paid for at the end of thirty days. If

pioneer code, to follow models, and in most wheat raises in value, A will be a gainer, and if it goes lower he will lose, but inasmuch as the apparent ob- instances most severely. The history of codiject of the contract is an actual purchase of the wheat,

fication would perhaps reveal the fact that, in it is not a gaming contract. Nor could such a contract be justly regarded as a wager, although when the

most of the instances in which the later codes time for the delivery of the wheat arrived, it was

differ from the models from which they are agreed that B should, instead of forwarding the wheat to A, pay him the damages to which he would be copied, the difference has been caused by legally entitled for a refusal to deliver; that is to say, legislative revision, introduced after the code the difference between the stipulated price and the actual value of the wheat at the time fixed for the ful

commissioners have finished their work. But fillment of the contract. Such a settlement of the dif- to the revision commissioners is committed a ference would not, if there was nothing more, be a

different work. After a quarter of a century sufficient ground for inferring that the contract was a gambling contract, or contrary to law. But the case in the administration of code procedure by the would be materially different if the evidence, taken as

courts, there develop crudities in the structure a whole, showed that A and B did not really intend to buy and sell; that there was no intention on the one

of the different provisions, and in their applihaud to deliver, or on the other hand to receive, the cation to their subject matter. Crudities in wheat, and that their real purpose was to make a wager in the form of a contract of sale. Hence, if A and

language, resulting most frequently from legisB were to deal with each other in the way supposed, lative attempts to improve upon former codes, during a series of months or years, and it appeared in evidence that B did not, in any single instance, forward

in many cases changes making confusion rather the wheat, or have it in readiness for delivery, and that than improvement. Again, the greatest imagwhen the time arrived for the fulfillment of these suc- inable confusion prevails in code reports. Incessive contracts, they were always settled by the payment of a sum of money answering to the rise and fall

deed, in many of the States in which the rein price, the question would then be one of fact for ports of the court of last resort look very high the jury, whether the parties really intended to buy

rank among the State reports, they have lost and sell, or to make a wager on the price of grain." The jury returned a verdict for the defendant,

their prestige, and fallen far below their former which was affirmed on appeal, the Supreme

reputation, since the adoption of a code;

until in the States where the common law forms Court filing no opinion except to concur in the full and accurate charge of the court below,

still prevail, the reports in the code States are and to refer to Brua's Appeal, 5 P. F. Smith,

more or less out of repute, though, as we sub274, and Smith v. Bouvier, 20 Id. 325. But mit, unjustly so, as this contempt for code rein neither of these cases was the distinction

ports, upon general questions of law, is part adverted to between an action between princi

of the popular prejudice discussed in a former pals brought to recover the differences in a

paper. There is no reason why good lawyers wagering contract relative to the price of

may not decide general questions of law as stocks, and an action by a broker, or other

well under a code system as the common law

system. agent in the transaction, for the recovery of

But the confusion to which we refer, and money loaned to pay those differences.

which thus affects the reputation of code re

ports, is altogether upon questions of pleading SUGGESTIONS UPON CODE PROCEDURE and practice. With the experience up to the AND CODE REVISION.

present time, with the aids that are now found

to guide the profession and the courts, it is III-CODE REVISION IN GENERAL.

difficult to appreciate the difficulty which surIt is impossible to conceive a more difficult rounded the courts in the earlier history of and delicate task than the one which is imposed this procedure. The early specimens of pleadupon a revision commission, where their duties | ing and the forms of procedure were crude and require a revision of one of our modern codes unshapely, having been framed without any of procedure. It is unquestionably true that adequate precedents. And both judges and there are more lights to guide the mere reviser lawyers were incased, so to speak, in the enthan were afforded the original codifiers. vironments of the formula of the old technical And yet, in many respects, more difficulties learning, and hence the early practice reports beset the reviser than the codifier. There, show a constant struggle between an effort to an entirely new path had to be trod, or, at all carry out the spirit of reform inaugurated by

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