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combine in his single person the functions of Mr. George Lewis and Sir Charles Russell. In England, where this is impossible, the number of men who go through the double mill is comparatively limited, but those who do have generally every reason to be grateful to their early energy. Certainly Sir Charles Russell owes a great deal of his " all-round" skill to having swung round the circle of legal training and legal

experience.

Sir Charles Russell is endowed with one faculty

which we are uncertain whether to characterise as a

blessing or a curse. He is a marvelous, a fatally marvelous, judge of wines. Perhaps no other Englishman living has the same keen and delicate perception of the finest shades and gradations of difference between one very excellent champagne and another. Is this, we may ask ourselves contemplatively, a very enviable gift? It does indeed put a man really endowed with it- we all think ourselves to be absolute authorities on the juice of the grape-upon a certain pinnacle above his fellow-men; but at what a price? The man who is less particular, who has been presented by nature with a less exquisitely sensitive palate, may never, perhaps, soar to such moments of ideal appreciation; but on the whole, his life floats in smoother channels. Any beverage that foams has its pleasant possibilities for the light-hearted, easily-gratified reveller, upon whom Sir Charles Russell looks down with half Olympiau disdain. The man who can drink any liquor set before him, from the black Bibline of the Greek poets to the raw red manslaughter served out to the luckless in Champagna wine shops, or the inferior marking-ink, with the fringe of dirty foam on the top, which may be tasted by the curious in Italian Austria, is not exactly an epicure, but he is more likely to make himself happy, and to be the cause of happiness in others, than Sir Charles Russell with all his knowledge. Indeed it may be doubted whether poor Sir Charles does not suffer more misery in the tasting of vintages that do not come up to his difficult standard than is at all compensated for by the moments of rare felicity when he drinks delight of incomparable crus with his peers.

To sum him up, Sir Charles Russell is one of the most remarkable figures of our time. A great lawyer, a great speaker, he has something of the universality of talents which lends so conspicuous a charm to some of the mighty figures of the last century. He is a politician, but he is also a man of the world. He is a lawyer, but he is also a sportsman. He is skillful with the tongue, but no less skillful with his fists. Like Baby Sylvester in Mr. Bret Harte's story he "slings an ugly left" on occasion, as the annals of a certain Dundalk election may record. His friends, admiring and envying these varied gifts, are naturally inclined to be enthusiastic; but perhaps their enthusiasm does not carry them so very far afield when in their zealous -and perhaps sometimes slightly jealous - way they nickname Sir Charles Russell the Admirable Crichton of the House of Commons.-The Observer. [The best judge of wine who ever lived in America was probably the late Edwin P. Whipple, the distinguished author. He could infallibly tell any kind of wine any vintage, it is said-by the bouquet. And if Oakey Hall did not write the foregoing article then we are no judge. ED.]

NOTES.

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Central Park is strictly prohibited, and the Park police enforce the law, you know. If he had tried to swim he would have been clubbed to death."-Texas Siftings.

It is not unusual for spinster testatrixes to provide by their wills for their domestic pets. Mr. Justice Chitty the other day had a case before him where a lady had made provision for the maintenance of several dogs during their lives; and the learned judge remarked

that the proper way of making such gifts was to give an annuity to a person, to cease at the death of the animal. He also said that doubts had often crossed his mind as to whether such gifts might not violate the rule against perpetuities. There can be no doubt that the life contemplated in the rule against perpetuities is the life of a human being, and it apparently could not be a violation of the rule to make a gift to a living dog or cat, as the duration of life of such animals is usually shorter than that of a human being. But take the case of an elephant. Would it be legal to give an annuity to a person to cease at the death of an elephant when, as is well known, an elephant's life is far fonger than the life of a man?-Solicitors' Journal.

If the quality of English beer is worth all the attention bestowed on it, the judgment of the Divisional Court in Crofts v. Taylor, is of national importance. There is little room for doubt as to the correctness of the conclusion arrived at. The argument turned on the meaning of the word "dilute," in section 8, subsection 2, of the Customs and Inland Revenue Act 1885, and if dictionaries and general usage left any doubt on this point, it is met by the general words which follow, "add any matter or thing thereto." The retailer who pours into strong ale "small beer," of many degrees lower specific gravity, is clearly “adding some matter or thing thereto." Any other construction than that which was adopted would, as Mr. Justice Grove pointed out, defeat the whole purpose of the act. By section 4, the term "beer" includes any liquor sold under that name which contains two per cent of proof spirit. If therefore it were held that dilution with weaker beer is not an offense against section 8, the retailer, though forbidden to water his beer, would only have to water down one kind of beer to the two per cent limit, and could then mix this liquor with any stronger beer without fear of the consequences. To all but the disciples of temperance it will be a satisfaction to know that we have been saved from such an anomaly as this. The doubt suggested in the course of the argument, which bristled with ingenious points, whether a decision against the appellant would not prevent a publican selling a mixture of two beers at a customer's request was disposed of by the answer, that in that case the publican would mix as the agent of the purchaser. There is no difficulty in limiting the act to the dilution of beer in bulk and before sale. -Law Times.

A JAIL WINDOW.

[Suggested by a walk down Maiden Lane.]
From out the grated window of a jail
Two faces looked with angry, evil glance,-
Two aged men's, with tedious durance pale,
And stamped with hatred, vice, and ignorance.

A morning-glory twined about the grate,
And lifted up its blossoms white and blue,
And as in sympathy with their hard fate,
Its modest freshness pitifully threw.

Sweet emblem of God's love for mortals frail!

Which finds in hardened natures some faint leaven, And from the grievous ladder of a jail

Prays them to struggle, like the flower, toward heaven. 1. B.

ments in the extradition of fugitives. The confer

The Albany Law Journal. ence served another most useful purpose in this, it

THE

ALBANY, SEPTEMBER 10, 1887.

CURRENT TOPICS.

has called general attention to the subject, and cannot fail to do much toward persuading Congress to enact a general law, superseding the present State statutes, which are violently in conflict in many important particulars, and obviating the necessity of adopting any rules of practice, which are, at best, only an expedient to serve until a general law can be obtained.

Our table is flooded with opinions, arguments and communications about the inter-State commerce act. We have singled out for publication an opinion by Judge Deady on the long and short haul classes, and on passes to employees' families, as of special interest. An argument by Mr. Clarence A. Seward, on behalf of the Adams Express Company, presents with ingenuity and force the reasons why the act should not be deemed applicable to such companies.

This journal has been repeatedly charged with undue severity toward criminals. We are not aware that we have ever done more than to advise the execution of the laws. Indeed we have been inclined to doubt the policy of continuing capital punishment, and have said so. In a sentimental moment we ventured a few stanzas last week show

tive, and thereupon a very eminent scholar writes us: "As for the old 'uns in jail, I'm afraid it'll take more than a morning-glory to transmute their vice. But who can tell?"

HE Inter-State Extradition Conference was convened in the city of New York, August 23, 1887. The governors of the following States and Territories were represented: California, Connecticut, Georgia, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin. The chief justice of the Supreme Court of the District of Columbia was also represented. The governors of Georgia and Pennsylvania were represented by three delegates each. Governor James A. Beaver of Pennsylvania was chosen chairman, ex-Governor John W. Stewart of Vermont, vice-chairman, and Goodwin Brown of New York, secretary. A committee was appointed by the chair to consider and report upon the following matters: 1. Rules of practice and forms. 2. Law having particular reference to formulating an act to be passed by Congress which should take the place of the present State statutes. The committee on rules of practice and forms made a report which was unanimously adopted. A copying that our spirit toward criminals is not vindicof the rules of practice adopted is published in another column. The committee on law reported that they were unable, in the brief time at their disposal, to agree upon a proposed bill for introduction in Congress, and recommended substantially as follows: That a committee of five be appointed by the chair to draft a bill and furnish copies of the same to the governor of each State and Territory, and to the attorney-general of each State, with the request that within thirty days they forward to the committee a statement of their views, together with any particular recommendation they may desire to make. That the committee thereafter recast the bill and forward it to Congress, together with a proper memorial requesting its passage. The following are the committee: Ex-Gov-pose it to be unsound. The land must go someernor John W. Stewart of Vermont, vice-chairman, as a member ex-officio; Judge W. W. Montgomery of Georgia; Attorney-General W. S. Kirkpatrick of Pennsylvania; Attorney-General E. J. Sherman of Massachusetts; Charles E. Prior of Ohio; and Goodwin Brown of New York. The accomplishment of two things was sought by the conference: 1. The adoption of rules of practice to be observed by the governors of all the States and Territories, governing demands only. 2. The adoption of a bill to be presented to Congress for enactment. In our judgment the practice rules adopted are vastly superior to the rules in force in most of the States. They have the most important merit of applying to a large number of States, thus avoiding many of the difficulties which have heretofore been experienced by reason of non-conformity with requireVOL. 36-No. 11.

The question in the Fisk-McGraw contest, concerning the validity of benefits conferred by will on Cornell University, is of great particular and general importance. The General Term have held the provisions in question void because in excess of the charter limitation of the value which the institution may legally hold. It is contended, we understand, that notwithstanding this, nobody but the State can object; that the land does not descend. If this is really contended, we should sup

where at once; it cannot rest in the air; the cor-
poration is prohibited to take it not merely in
case the State finally decides that it shall not, but
absolutely and instantly by force of the statute,
which enacts that it shall not; it must therefore de-
scend to the heirs or fall into a residuum. So far
as corporations of this State, in the case of the
Chamberlain Institute of Cattaraugus county, the
question is distinctly ruled by Chamberlain v. Cham-
berlain, 43 N. Y. 439, where Allen, J., says: "Claim-
ing property and seeking the aid of courts to reach
it, the corporation can rely only on the warrant
and authority conferred by law, and cannot claim
in transgression or excess of that authority. The
statute permits the corporation to take property of
a given yearly value, and prohibits the taking in ex-
cess of that value.
But here the estate

* *

*

of the testator, not well disposed of by the will, descends to the heir-at-law and next of kin, and the question is, who has the better title of the two claimants? Doubtless the restriction upon corporations is a governmental regulation, and one of policy, and to be enforced by the government; but an individual, whose interests will be affected by a transgression of the rule, may assert and insist upon the limitation as a restriction upon the power of the corporation to take." So in Mc Cartee v. Orphan Asylum Society, 9 Cow. 437, it was held that a devise to a corporation not authorized to take by devise is absolutely void, and the land descends to the heir. By analogy this doctrine must apply to a devise in excess of authority to take. There seems to be no doubt on this question so far as property situated in this State. The courts of Connecticut, Pennsylvania and Ohio however hold that a New York corporation, prohibited in New York, may take by devise in those States. White v. Howard, 38 Conn. 342; Thompson v. Swoope, 24 Penn. St. 474; Am. Bible Soc. v. Marshall, 15 Ohio St. 537. To the same effect, Christian Union v. Mount, 101 U. S. 352. Starkweather v. Am. Bible Soc., 73 Ill. 54, and White v. Howard, 46 N. Y. 144, are to the contrary.

A correspondent writes us: "Are you not a little severe on Texas? A recent visit to the State convinced me of the popular errors concerning its civilization and social condition. I learned, to my surprise, that in many towns the percentage of church members in good standing exceeded some of our best northern towns. I heard less profanity and saw less intemperance than one might hear and see in towns and cities in Maine. Carrying concealed weapons is more condemned and more often punished than in most States of the Union. The members of the bar compare favorably with those of other States. I met some who are most accomplished and learned men. The general moral tone in the several towns and cities I visited seemed to

me excellent." Very likely, but the question is, what is the general state of morals in comparison we will not say with old northern States - but with other southern States, such as Alabama, for

example? There are unquestionably many orderly localities, much refinement, piety and intellectual ability in some localities, perhaps even more than in certain localities in Maine or Massachusetts; but what is the grand average? As Mantilini says, "what is the demnition total?" Can any reasonable person believe that there is a less aggregate of 'cursing and drunkenness there than on the average in the northern States? "" Carrying concealed weapons is more condemned and more often punished "

inal laws, but it seems to us that the appellate criminal court is too technical and lenient. In the most hopeful view, a great part of Texas must long continue a turbulent and dangerous place to live in for people who do not go "well heeled" and are not apt at getting out their "guns" in a hurry. If anybody is disposed to look at it through a roseate medium let him read the reports of the Texas Court of Appeals.

In connection with undue leniency to criminals, we are reminded by Mr. Semmes' address at Saratoga of what we used to consider the best "bull" in the books, namely, the provision in our statute of commutations of terms of imprisonment for good behavior, that the act shall not apply to the case of any one imprisoned for life! Now it seems that the apparent impossibility of such an application has been overcome in Colorado, by a direction to calculate the prisoner's probable life by the tables, and after he has served a certain number of years and has behaved himself well, to let him out. This is sentimentality run mad. It amounts simply to imprisonment for just so many years for crimes deemed worthy of imprisonment for life. It takes away the only theoretical reason of reformers for urging imprisonment instead of hanging. We are informed that Governor Tilden vetoed a similar act in this State.

Our advice to lawyers about vacation has been followed by at least two very high judicial dignitaries of this State, who attend base-ball matches together. Probably they find the benches rather less easy than that which they are accustomed to sit on as magistrates. For ourselves, we never attend a ball game without recalling an anecdote of a celebrated Vermout judge, of whom one of the "side judges" once said that the former never asked the latter his opinion more than once, and that was at the close of a tedious day's session, when he turned to him and said, "I ache like fury!

Don't you?"-or words to that effect. It strikes us that the base-ball benches are fully as easy however as the judicial bench is to Judge Potter about this time. Our base-ball devotees probably admire the game as the only thing that is as uncertain as the common law. The treatment of the umpire by the crowd, too, must remind them of the howl of the omniscient newspapers over some judicial decisions. But it is a great game — nothing like it.

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NOTES OF CASES.

there, because there is more occasion to punish it, IN Keyser v. Chicago & G. T. Ry. Co., Michigan

and yet nearly everybody carries his "weapon." The very officers of the law carry them while prosecuting criminals for carrying them, because their lives would be unsafe if they did not. No doubt the orderly part of the community are making heroic and praise worthy efforts to enforce the crim

Supreme Court, June 23, 1887, the question of declarations of an agent as res gesta was considered. The court said: "I think these statements of the engineer, made at the place where the accident occurred, and at the time he backed up the train and took the boy on, as to the circumstances and the

reason he gave for the management of the engine and train in approaching this boy, and how he came to run upon him, were so connected with the acts complained of as to become a part of the res gestæ, and the testimony was properly received. There is more question in regard to his statements made to Inslee at Port Huron. It is true, it was a part of the engineer's duty to give to Inslee a truthful report of the accident, and all the circumstances under which it occurred, and from the time the boy was hurt until the train arrived at Port Huron the engineer and conductor had the child with them on the cars, and the company's liability for proper care and safety of the boy continued, to some extent, until the train arrived at that place, which was but three miles from where the accident occurred. I do not understand that declarations by persons whose duty it is to make them, in order to constitute a part of the res geste, are required to be precisely concurrent in point of time with the principal transaction. If they spring from it and tend to explain it, are voluntary and spontaneous, and are made at a time so near as to preclude the idea of design to misrepresent, they may be regarded as so nearly contemporaneous as to be admissible. Scaggs v. State, 8 Sm. & M. 722; Insurance Co. v. Mosley, 8 Wall. 397; Commonwealth v. McPike, 3 Cush. 181; Harriman v. Stowe, 57 Mo. 93; Crookham v. State, 5 W. Va. 510; Boothe v. State, 4 Tex. App. 202; Rex v. Abraham, 2 Car. & K. 550; Hanover R. Co. v. Coyle, 55 Penn. St. 402; Brownell v. Pacific R. Co., 47 Mo. 239; People v. Vernon, 35 Cal. 49; Handy v. Johnson, 5 Md. 450; Carter v. Buchannon, 3 Ga. 513; Mitchum v. State, 11 Ga. 633; Courtney v. Baker, 2 Jones & S. 529; O'Connor v. Chicago, M. & St. P. R. Co., 27 Minn. 166; Amil v. Chicago, B. & Q. R. Co., 30 N. W. Rep. 42; State v. Horan, 20 id. 905; Lund v. Tyngsborough, 9 Cush. 36. I think this view will be found, upon an examination of the later authorities, to be sustained, and such I believe to be the tendency of our own decisions, so far as any have been made. Sisson v. Cleveland & T. R. Co., 14 Mich. 495; Mabley v. Kittleberger, 37 id. 362; Cleveland v. Newsom, 45 id. 63. See, also section 108 Greenl. Ev. 144, and cases cited. Our attention is called to what is said by Mr. Justice Champlin in Patterson v. Wabash, etc., R. Co., 54 Mich. 91, but it will appear by an examination of the opinion it was held that the statement of the brakeman was no part of the res gesta, for the reason that such admission was not made while in the execution of his duty, or while the act to which it referred was being performed, and he was not so connected with the corporation defendant as to make his admissions the admissions of the defendant.' Not so in this case. At the time and place this accident occurred the engineer had complete control of his engine and management of the same. He directed all of its movements; and the fireman and brakeman, and even the conductor, in case of danger to property or life from obstructions appearing upon the track, were subject to his orders in his efforts to avoid them. He was not only in the

execution of his duties while passing over the road when the plaintiff was injured, but during the entire trip, and until he had made his report of the same to Inslee, and of the circumstances of the accident which had occurred. It required less than sixteen minutes to run from the place of the accident to Port Huron, and less than fifty minutes to make the run and his report to Inslee. He was in the proper discharge of his duty all this time, having the injured boy on the train until he arrived at Port Huron, and what he did and said in the discharge of that duty, if no more than was required, I think should be regarded as proper evidence against the company, so far as it had any materiality to the case. It was the statements thus made to Inslee concerning the accident, and defendant's agency in causing the injury, upon which the plaintiff had most to rely. How far the statements of the agent are binding upon and competent to be given against the company, and to what extent they are part of the res geste, depends upon the circumstances of each particular case, and I think the testimony of Inslee, giving the statements of the engineer made at Port Huron, was properly received." See contra, Durkee v. Cent. Pac. R. Co., 69 Cal. 533; S. C., 58 Am. Rep. 562, and note, 565.

In Cook v. Moore, 95 N. C. 1, an action brought on the 20th of October, 1883, on a judgment rendered on the 20th of October, 1873, was held barred by the statute of limitations. The court said: "This rule as to the indivisibility of a day is never departed from except in those cases where questions as to the priority of claims arise, depending upon the order of events occurring on the same day. But even in those cases where the general rule applies, as when statutes of limitation fix the periods which date from the time of the accrual of the causes of action, there is some diversity in the decisions of the courts, whether the day of the accrual of the cause of action is to be excluded or included. Yet the decided current of the authorities is that the day of the accrual is to be excluded. So in the computation of time from an act done, the day on which the act is done will be excluded. Mr. Angell, in his work on Limitations, section 49, makes the distinction that when the expressions are from the date the rule is, if a private interest is to commence from the date, the day of the date is included, but if they are used merely to fix a terminus from which to commence, the day is in all cases excluded. In Cornell v. Moulton, 3 Denio, 42, an action was brought upon a note, payable on demand. The note was dated February 14, 1839, and the action was brought thereon February 14, 1845. The statute of limitations in that State being six years, the court held that the action was barred. Bronson, C. J., who spoke for the court, said: 'Our cases all go to establish one uniform rule, whether the question arises upon the practice of the court or the construction of a statute, and the rule is to exclude the first day from the computation.' The same rule has been announced by their respective

courts, as obtaining in the States of Connecticut, Pennsylvania, Massachusetts, Maine, Kentucky and Missouri. See Wood on Limitations of Actions, pp. 96, 97, and notes. It is considered in Indiana to be the general rule that when the computation of time is to be made from an act done, the day on which the act is done is to be excluded. Jacob v.

AMERICAN BAR ASSOCIATION. ADDRESS OF THE PRESIDENT, HON. THOMAS J. SEMMES, OF LOUISIANA, DELIVERED AT SARATOGA, AUGUST 17, 1887.

Graham, 1 Black, 393. The same rule is main- CORP

tained in the courts of Pennsylvania, Massachusetts, Maine and New York. Angell on Limitations, § 50. And in New Hampshire when in the computation of time from a date, or from the day of the date, the day of the date is to be excluded. Blake v. Crowningshield, 6 N. H. 598. The same rule is adopted and maintained in Pennsylvania, Kentucky, Indiana, Illinois, Massachusetts, New York and Maine. Wood on Limitations of Actions, p. 97. Without going out of our State, we have a statute in regard to the computation of time, to be found in the Code, chapter 8, section 596, which reads, the time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day be Sunday it shall be excluded.'"

II.

YORPORATIONS may be organized in Michigan to carry on every imaginable business, mercantile, mechanical or agricultural, including the buying and selling of brood animals, and the growing of mint. The sparrow is proscribed; a reward of one cent is offered for every scalp. New York with less mercy makes it a duty to starve the sparrow, because it punishes him who gives the poor bird food or shelter. Before long this pitiless legislation will render it impossible to answer the query, so familiar to our youth, "who killed Cock Robin?"

Minnesota: Following in the footsteps of the other States, Minnesota has enacted that woman shall retain

the same legal existence and legal personality after marriage as before marriage, and shall receive same protection of all her rights as a woman, which her husband does as a man, and for any injury to her reputation, person, or property or character or any natural rights, she shall have the same right to appeal in her own name to the courts of law or equity for redress and protection, that her husband has to appeal in his name alone, provided the wife shall not have the right to vote or hold office; but women may be appointed notaries public. The garnishment of the wages of a laborer is prohibited; and a first lien is given to the laborer, and the second lien to the furnisher of material on all property to which either has contributed, and it is made a penal offense for a contractor or sub-contractor to receive the full amount due on his contract, without paying the laborer and the material man. Receivers of corporations are required, after

Actions for libel are regulated by a provision, that the aggrieved party shall, at least three days before commencing suit, serve notice on the publisher, specifying the alleged defamatory matter and demanding a retraction, and if retraction is made, actual damages only can be recovered. The mortgage of crops before the seed thereof shall have been planted for more than one year in advance is prohibited; suits for the foreclosure of mortgages must be commenced within fifteen years after the cause of action accrues. The validity of a will admitted to probate cannot be attacked after the lapse of ten years; minors and other persons under the disability at the time the will was probated, are allowed ten years from the removal of the disability to question it. The stipulation in a contract that a debt shall have a greater rate of interest after maturity than before, works a forfeiture of the entire interest.

In Hussey v. Kirkman, 95 N. C. 63, the question was of the sufficiency of an acknowledgment to take a demand out of the statute of limitations. The intestate admitted to a third person that he owed a note of about sixty dollars, which was just and due, and he intended to pay it if he ever got well enough. The court held this insufficient, observing: "The trouble is that no note has been pro- payment of taxes, to pay all laborers and all sums duced, nor its contents shown, to which the admis- owing to clerks and servants of the corporation for sions can be attached, so as to admit of identifica-personal services, rendered for the three months preceding their appointment. tion. The acknowledgment is very like that in Faison v. Bowden, 72 N. C. 405, in which the testator said to the plaintiff, 'I can't pay 'you what I owe you, but I will pay you soon, or next winter. I need what money I have now for building, and it will do you more good to get it in a lump.' The testator owed the plaintiff for medical services, running over a period from the beginning of 1854 to his death, in November, 1861, and the recognition of the debt was relied on to remove the bar as to the whole account. It was held to be insufficient, and Reade, J., for the court says: "The rule to be gathered from the numerous cases, to which we were referred by the counsel, may be thus expressed: The new promise must be definite and show the nature and amount of the debt, or must distinctly refer to some writing, or to some other means by which the amount and nature of it can be ascertained; or there must be an acknowledgment of a present subsisting debt, equally definite and certain, from which a promise to pay such debt may be implied.' Again, it has been held that the promise must be made to the creditor himself (Parker v. Shuford, 76 N. C. 219, and Faison v. Bowden, id. 425), or to an attorney or agent for the creditor (Kirby v. Mills, 78 N. C. 124), to repel the statute." See note, 58 Am. Rep. 749, and references.

Contractors of prison labor are prohibited from making contracts in advance for the manufacture of articles in competition with artisan labor.

Railroad corporations are made liable for all damage sustained in the State by their employees from the

negligence of co-employees, unless there be contributory negligence on the part of the injured employees, and such corporations are not allowed by contract, rule, or regulation to diminish or impair their liability. An act has been passed to regulate common carriers which creates a railroad and warehouse commission, and defines the duties of such commission; also an act to regulate elections, which is substantially a reenactment of the law of New York on that subject;

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