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quite differently. The former class of statutes, based on the benevolent public policy of preventing destitution and pauperism, and on the patriotic motive of inspiring sentiments of independence, favorable, if not essential, to the maintenance of free institutions, are uniformly construed with the utmost liberality, to advance these objects; while statutes of the latter class, on account of their making invidious distinctions between citizens, and partaking of the nature of favoritism, and producing injustice and inequality in the contributions to a common burden, and being inconsistent with the general policy of our laws, are construed strictly to avoid these evils. The general policy of the law is that all who enjoy the protection of government should contribute to defray its expenses. Taxation is an act of sovereignty, which should be performed with justice and equality to all. Taxation is the rule; exemption the exception. Exemption from taxation is a matter of grace and favor, not to be presumed or implied. Unless it is clearly intended and expressed, it is not allowed. Cooley Taxn. 146-152. We are of opinion that a printing-press is not a tool, within the meaning of the statute. It accords with the letter and spirit of the statute to say that the Legislature intended thereby to exempt only the simple instrument used by the mechanic in manual labor, such as hammer, saw, plane, file, and the like; and that machinery or property as complicated and valuable as a printing-press may be was not contemplated by the statute. Under statutes similar to our own, exempting the tools of mechanics from liability to execution or attachment for debt, where, as before stated, the greatest liberality of interpretation is indulged, it has been several times decided that a printing-press was not exempt. Thomp. Homest. & Ex., $$ 756-758; Buckingham v. Billings, 13 Mass. 82; Danforth v. Woodward, 10 Pick. 423; Spooner v. Fletcher, 3 Vt. 133. And in Whitcomb v. Reid, 31 Miss. 567, it was held that the instruments of a dentist used in the practice of his art were not exempt from execution or attachment, under a statute in the very words of the one now under consideration. To save to the poor and toiling mechanic the means of employment in his trade is suggested by sound policy, as well as by sentiments of humanity; but to extend the circle of exemption from taxation beyond this, so as to embrace property that may be worth thousands of dollars, cannot be ascribed to the Legislature by any proper construction of the statute in question. Miss. Sup. Ct., April 18, 1887. Frantz v. Dobson, Opinion by Arnold, J.

WATER-LIABILITY OF TOWN FOR DAMAGES TO WELL BY CONSTRUCTION OF SEWER. A town which lawfully takes land, and constructs a common sewer therein, whereby a well upon land not taken nor adjacent to land taken, fed by water percolating through the soil, is made dry, is under the statute liable to pay damages to the owners of the land. The precise question| presented here was decided, in regard to a railroad, in Parker v. Boston & M. R., 3 Cush. 107. In this case damages were alleged to have been occasioned, in the construction of a railroad, to land not within and adjoining the location of the road, by changing the grade of a highway, and by draining a well. It is not suggested that either would be a cause of action at common law. Mr. Chief Justice Shaw says that the main question in the case is "whether a party having land, with buildings thereon, lying near the track of a railroad, but not crossed by it, can recover compensation for incidental damage cansed to his land by the construction of the railroad, and the structures incident to and connected with it;" and his conclusion is "that a party who sustains an actual and real damage, capable of being pointed out, described and appreciated, may recover compensation for such damage." In regard to the well, he says: "The claim for damages

on this ground does not depend on the relative rights of owners of land, each of whom has a right to make a proper use of his own estate, and sinking a well upon it is such proper use; and if the water, by its natural current, flows from one to the other, and a loss ensues, it is damnum absque injuria. But the respondents did not own land; they only acquired a special right to and usufruct in it, upon the condition of paying all damages which might be thereby occasioned to others." Marsden v. City of Cambridge, 114 Mass. 490, is directly to the point that the petition for damages for taking land for a highway is not a substitute for an action at law. In that case the petitioner owned one-half of a dwelling-house and the land under it. Part of the land under the other half of the house was taken for a highway, and part was left between the location and the petitioner's land and half of the house. The owner of the other half removed it, occasioning loss of support and shelter to the petitioner's half. The court decided, without regard to the petitioner's rights as between himself and the adjoining owner, that the petition could be maintained. Mr. Justice Wells says: "By the laying out of the street the petitioner was deprived of the support and shelter for his house from the other part of the double structure which rested upon the land of his neighbor, and was consequently put to the expense of a new wall for his own part. For the continuance of that support and shelter, of which he was in the actual enjoyment, he had at least the title and assurance arising from mutual necessity and mutual advantage, of which no one but his neighbor could deprive him. That security was taken away by the location of the street in such manner as substantially to destroy the part of the building upon the adjoining laud, and render it unfit for further use and maintenance as a dwelling." The decisions in regard to damages occasioned by taking the water of great ponds are also in point. When the Commonwealth grants a right to take the water, a provision that payment shall be made for all damages sustained by any person in his property by the taking is held to include damages to mill-owners by depriving them of the water, although they should have no rights to it as against the Commonwealth or its grantee. Watuppa Reservoir Co. v. City of Fall River, 134 Mass. 267. We think that there was evidence that the petitioner received damage in her land occasioned by making the sewer, within the meaning of the statute, and that the court properly refused to rule that she could not recover, as matter of law. Mass. Sup. Jud. Ct., Feb. 26, 1887. Trowbridge v. Inhabitants of Brookline. Opinion by W. Allen, J.

NEW BOOKS AND NEW EDITIONS. HORR AND BEMIS' MUNICIPAL POLICe Ordinances. A Treatise on the power to enact, passage, validity and Enforcement of Municipal Police Ordinances, with appendix of forms, and references to all the decided cases on the subject in the United States, England and Canada. By Norton T. Horr and Alton A. Bemis, of the Cleveland Bar. Cincinnati, Robert Clark & Son, 1887. Pp. xxxi, 312.

The bungling construction of the title-page does not promise well for the work, but the title-page is the worst part of it. It is a fairly constructed work, upon a subject important enough to be magnified beyond the bounds allotted to it in the general treatises on the police power. It is well classified and indexed, and all the cases seem to have been considered. The "forms" amount to little, and contain one dreadful misprint. It is vexatious to turn into the publishers' advertisements at the end when seeking for the index. We are glad to see that very few publishers insert them.

counted for, naturally and reasonably, without at

The Albany Law Journal.tributing it, inferentially and without proof or

ALBANY, JULY 16, 1887.

CURRENT TOPICS.

seem determined to force us

data, to "easy marriage."

Mr. Westbrook informs us that the principal reason given by the governor for disapproving the measure was the requirement of parental consent to the marriage of minors. Herein we should be inclined to with Mr. Westbrook against the

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subject of licensed and ceremonial marriages. We give place in another column to a communication from Mr. Levi, and we have received an exceedingly well written communication from Surrogate Westbrook, of Amsterdam, which is too long for publication, but to some parts of which we shall be glad to call particular attention. It seems from Mr. Levi's communication that the Wemple bill did not prohibit common-law marriages. This of course removes the ground of our main objection. The bill at first, as we pointed out, was ambiguous on this point. If however we are ever to have a license system, we hope Mr. Levi's notion of having licenses granted exclusively by judges will not prevail, because of the inconvenience of that provision, if for no other reason. Mr. Levi seems to think that judges should have exclusive control of the "making of citizens" through the operation of marriage. There is no parallel between marriage and naturalization. The latter is not a contract. We assure Mr. Levi that we are perfectly "serious" when we assert that "there is nothing the matter with our marriage laws." We speak of the laws of this State. Is there any thing the matter with them? Is there any remarkable or undue number of divorces in this State? It has never been demonstrated; indeed, never asserted, to our knowledge. We find no assertion of the sort in the latest book on the subject, just now published, Lloyd on Divorce. Let Mr. Levi point to any other community of five millions with so few divorces, if he can. In our judgment, Mr. Levi errs in attributing the present evils in other States to "easy marriage." In some of them marriage is not easy. They are exclusively due to 'easy divorce." While the communities of Maine, Rhode Island, Connecticut and some of the western States are scandalized by the enormous increase of divorces among them, they seem blind as moles to the seat of trouble - the frivolous and numerous grounds for divorce, and the laxity of the courts in construing those grounds. Time need not be consumed in enumerating them. In several of these States a single act of "cruelty" justifies an absolute divorce; such for example, as a single unjust a cusation of unchastity. Many of the statutes read innocently and reasonably enough, but the courts are to blame for an absurdly liberal construction. Add to this the laxity of courts in regard to proof of citizenship, and their unjustifiable neglect to demand proper proof of notification to the defendant, and the increase of divorces is acVOL. 36-No. 3.

one years of age, male or female, are frequently unfit to incur the obligations of marriage, physically, mentally or morally. We would not go so far as to prohibit such marriages, but it may be reasonable to exact the consent of their parents, who know their natures, their intellects, and their pecuniary resources or ability to support families. Mr. Westbrook says: "Disregard of the law in respect to a license would not, I think, make a marriage void if valid in other respects, except in case of a strictly prohibitory statute. Public policy would sustain the marriage without a license, though the violators of the law would be subject to the fines and penalties prescribed." "All laws merely prescribing particular formalities for consummating a marriage have always been regarded as merely directory." This is a correct statement so far as it regards the law of this State, but under a statute substantially like our own the Supreme Court of Massachusetts have declared that none but a ceremonial marriage, before priest or magistrate, is valid. Commonwealth v. Munson, 127 Mass. 459; S. C., 34 Am. Rep. 411. But as it seems that the Wemple bill excepted common-law marriages, this argument is irrelevant. But Mr. Westbrook argues in favor of requiring a ceremony, saying the "sovereign power of the State may and of right ought to supervise and control the reasonable preliminary conditions to its consummation." If this is true, the State ought to satisfy itself on the fitness of the parties for marriage and the probability of their harmony and happiness. There should be a commission to examine them as to age, temper, pecuniary means and prospects, physical capacity, the views of their relatives, and other matters. "A simple ceremony, sanctioned by religion and by law, would seem to be a reasonable and an appropriate condition," says Mr. Westbrook. Now can anybody explain how a "simple religious ceremony" can increase the probability of a happy marriage? The requirement of a license, it may plausibly be argued, would increase the publicity of marriages, and prevent clandestine marriages, but a ceremony never can have that effect. How is the contract of marriage likely to be any more binding for the approval of some priest or magistrate? It is a fact that nearly all marriages now are ceremonial, and yet the number of divorces is enormous. What right has the government to say that this contract shall not be entered into without such approval? In the Massachusetts case which we have cited the marriage was public, and evi

denced by a religious ceremony conducted by the parties themselves, but because no priest or magistrate conducted it, nor was present, the parties had to go to prison. We like and respect the clergy as much as anybody; we have always been married by them and always shall be; but other people have a right to get along without them, as Charles Lamb did, when asked to say grace. "Is there no clergyman present?" said he, "then let us thank God." 'Many of the States maintain such a law with beneficial results," says Mr. Westbrook, referring to licenses. We doubt it; in fact, we do not believe it.

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On the contrary, we believe that the exaction of a license does not counteract the evils of easy divorce, and so in the license States we find the most divorces. It is easy and common to utter platitudes on this subject. Just so the opponents of the modern married women's acts talked about the danger of destroying the unity and harmony of the family by giving one-half the population the right to take and control their own property. It is easy to assert that the apparent evils of other communities prevail in our own. But at present we see no reason for changing the laws of our State, except that it may be well to provide, under penalty, for the registration of marriages, and to prohibit marriages of minors without parental consent.

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That Texas Court of Appeals has a reporter, or rather two reporters - -so busy is the court who indulge in flowery rhetoric in a way that would cause a pang of envy in the bosom of the late Mr. Wallace, reporter of the United States Supreme Court, were he living and reporting. Whatever may be said of the rival claims of these two courts to judicial supremacy, there are occasional passages in these reports that are unsurpassed by Mr. W. in his palmiest and most high-flown days. In the last volume, now before us, in a rape case, the reporter, in order to convey the idea that the prosecutrix was chaste, says she had never ministered to the appetite of a sexual epicure.' In the statement of another case he says: "The effort of the State was to establish against the appellant a murder scarcely paralleled in atrocity by any recorded in the annals of crime, and unexcelled in deliberate diabolism by any yet conceived as fiction. Having established the illegitimate maternity of the deceased infant in his own unmarried daughter, the State attempted to establish, by circumstantial evidence, that the babe was the offspring of his own incestuous lust, begotten within the precincts of a place of worship, and that it was brutally murdered by him while the unfortunate victim of his unnatural passion was yet struggling to preserve the life she gave, and which her father, seducer and paramour destroyed." This is certainly putting the facts strongly. In this volume we find eighteen cases of conviction of murder, in twelve of which new trials were granted. We never perused a volume setting forth more wickedness. "Diabolism" seems to be deliriously rampant in the Lone Star State.

Mr. John Townshend, author of the standard work on Slander and Libel, and President of the United States Cremation Company, has printed for private distribution "A Catalogue of some Books relating to the Disposal of the Bodies and Perpetuating the Memories of the Dead." The first part only is yet printed, and contains "authors' names arranged alphabetically." The second part is to contain "subjects and anonymous works, arranged as nearly as may be alphabetically." The present part covers some 74 octavo pages. It is an interesting compilation. Mr. Townshend says in the preface: "I do not pretend to have so much as seen the majority of the books catalogued, and judging from the number of misleading titles I discovered, I doubt not but many have escaped detection. A book advertised as 'Church Yard Chips,' proved to be a collection of essays by Thomas Churchyard; 'Sutton's New York Tombs' turned out to be a description of a prison in New York called the Tombs; Dostoriffsky's Buried Alive' was a narrative of penal servitude in Siberia; Halpine's Baked Meats of the Funeral' had no relation to funerals; 'A Legal Mummy' was a lecture upon law; William Reid, an Expert in the Art of Exhumation of the Dead, by Benjamin Rust,' I found to be an attack upon Reid for some comments of his upon a deceased relative of Rust's." We thank Mr. Townshend for including our own paper on "Gravestones." It is something to be in a catalogue next to the immortal Sir Thomas.

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Foulkes appeared for the plaintiff; and Mr. Crump, Q. C., and Mr. Short for the defendant. Mr. Kemp said that although this was a small action the importance of it to his client was great. The libel he complained of was as follows: "Umbrella tricks.Irate customer: Look here, I bought this compactum umbrella at your shop yesterday. You guaranteed that it would remain small and tidy; and now look at it! I can't fold it up into double its original size. Shopkeeper (blandly, as he inspects the article): I am sure I am very sorry; and I cannot account for it unless (horrified) - why, my dear sir, you've been using it!" Which appeared in the issue of January 8, 1887. The plaintiff sold nothing but the compactum umbrella, of which he possessed the patent and a copyright. A joke of this kind, bad as it was as a joke, could not fail most seriously to injure him in his business. The defendant refused to apologize, and replied to the plaintiff's complaints that they had merely intended this as a joke without reference to the plaintiff or his business. The plaintiff was therefore driven to vindicate his reputation by an action. The plaintiff was called and confirmed the statement of his counsel, and called a witness to prove that there was only one compactum umbrella. There was no cross-examination, and the defendant called no witnesses. It was objected for the defendant that the libel was not actionable at all, but Baron Huddleston held that the innuendo of the paragraph must be for the jury, and it could be urged that it intended to say that umbrella could not shut up. Mr. Crump maintained that the whole thing was a joke, and it was ridiculous to treat it seriously. It was called an umbrella trick, and it was obviously intended to suggest a possible trick. Mr. Davis had had the advantage of showing the umbrella to the jury and of putting it into his lordship's hands, and so advertise it to the public. To this advantage he was welcome, but it ought not to injure the defendant, whose publication was intended for the most part to amuse boys and girls who did not use umbrellas at all. Mr. Baron Huddleston said that this case introduced them to the lowest end of the scale of libel. He did not know whether the joke was looked upon as a libel on the plaintiff or a libel on his very excellent umbrella. It must be treated by them as men of the world; for if every joke of this kind was made the subject of an action the courts would be fully occupied. It was possible that the plaintiff intended and might by this means get a cheap and excellent advertisement, but they were bound to consider the question as seriously as they could because it was brought before them. To make this a libel they were gravely asked to find that this joke had an innuendo, namely, that the plaintiff fraudulently and deceitfully, and in breach of contract, manufactured and sold the compactum umbrella as one which would shut up in a small compass, well knowing that it would not, etc. It was in their power to give the plaintiff £100,000 for this libel, or they might give him a farthing, or they might

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find a verdict for the defendant. It was for them to say what they thought of it. The jury found a verdict for the defendant.- Law Journal.

In Bass Furnace Co. v. Glasscock, Alabama Supreme Court, May 23, 1887, it was held that drunkenness on the part of one employed in reducing wood to charcoal, on the premises of the employer, may be sufficient cause for dismissal, though such drunkenness does not incapacitate the employee or cause him to fail in the performance of his part of the contract. The court said: "To justify an employer in discharging a servant or employee, the rule, no doubt, is that the servant must have been guilty of conduct which can be construed to be a breach of some express or implied provision in the contract of service. It seems to be settled that it is an implied part of every contract of service that the employee will abstain from habitual drunkenness, or repeated acts of intoxication during the period of his employment. If he be guilty of this indulgence his conduct will justify his dismissal. 2 Add. Con. (Morgan's ed.), § 890; Wise v. Wilson, 1 Car. & K. 662; 2 Pars. Cont. *36, note f; Gonsolis v. Gearhart, 31 Mo. 585; Huntington v. Claflin, 10 Bosw. 262. There may be circumstances however under which a single act of drunkenness would warrant a servant's discharge; as for example, in the case of a minister of the gospel, where the act might bring personal reproach, and tends to degrade the moral standard of religion, or of a family physician, where it might result in negligence or malpractice in pharmacy or surgery. Wood Mast. & Serv., § 111, p. 213. The same act, when committed by a day laborer, in privacy and when off duty, or on some rare occasion when great temptation was presented, might not be a sufficient excuse for his discharge. The rule is stated by a recent author to be that 'intoxication while in service is generally a good excuse for discharging a servant, particularly when it is habitual and interferes with the discharge of his duties, or will be likely to. But it is held that as to whether it is to be regarded as a proper excuse depends upon the occasion.' Wood Mast. & Serv., § 111, p. 213. We do not doubt that public drunkenness of any employee while in the service of the employer, and manifesting itself in boisterous and disorderly conduct, either toward the employer or third persons, is such misconduct as to constitute a violation of the stipulation implied in every contract of service, that the employee will conduct himself with such decency and politeness of deportment as not to work injury to the business of the employer. This he can do by a single act of drunkenness, which may tend to offend the reasonable prejudices or tastes of the public, or impair their confidence, or render him disagreeable in social or business intercourse. The drunkenness of employees may well deter the patrons of any business establishment from continuing their business intercourse with it, especially when social contact is frequently neces

sary to its consummation. It may prove also equally offensive to the master or employer, who may justly regard sobriety as an indispensable element of efficient service. The charge of the court laid down the rule that no drunkenness justified the plaintiff's discharge unless it incapacitated him, and caused him to fail in the performance of his part of the contract. This, under the principles above declared, was erroneous, and must work a reversal of the cause." The complaint in this case was that the servant "raised a disturbance and had a fight with a man," and rode with some negro

women.

In Hunt v. Hunt, New Jersey Court of Chancery, April 23, 1887, it was held that the seal of the court, which is required for the due authentication of the record of a judgment of another State may be affixed by merely making the impression of the seal on the paper; the use of wax or a paper wafer is not essential. Bird, V. C., said: "This objection rests on the absence of wax, or any thing in the nature of wax, from the certificate. The want of wax makes the whole record a nullity! The want of wax deprives it of all solemnity, of all certainty, of all truthfulness! It is said that the act of Congress makes wax the sine qua non of such a paper. And it is said that the Supreme Court of the State of New York has pronounced such interpretation as the only true one of the act. Coit v. Milliken, 1 Denio, 376. I am a great admirer of precedents. It is a great relief to be sheltered and protected by an adjudication of a most distinguished court. But when such decision is not of one's own State, and it seems to be against reason and to violate the principles of justice and equity, and not to be required by any sound, public policy, I think a judge may be pardoned if it is not followed. Now, Congress intended to facilitate judicial proceedings, not to obstruct or embarrass the administration of them. Congress intended to promote and to secure justice and equity, and therefore declared that a copy of the record or judicial proceedings at length, accompanied by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice

record, what follows? The rejection of the record, and for aught that can now be foreseen, the failure of justice. Can this be overcome? Can any one state to another: 'You shall use wax in affixing your seals, if you expect your judicial proceedings to have credit abroad?' Such an attitude would not prove beneficial to any one, much less to the suitor whose rights may be imperiled. Suppose that A. has brought his action against B. in Missouri for the recovery of $10,000 upon B.'s note, which action B. has fairly and successfully resisted, and that afterward A. brings another action on the same note in New Jersey, and B. offers the proceedings of the former trial and adjudication in all respects complete, except that the seal of the court is not impressed on wax, and B. has been disabled from making his former defense by the death of witnesses or otherwise, would it be right, in any sense, to reject such proceedings because of the absence of a little wax? I do not see how such rejection could be justified. If under the act of Congress everything in the shape of a seal may be dispensed with, and the proceedings, when certified, entitled to credit, then surely, in all reason, when the clerk certifies that he has affixed the seal of the court every solemnity appears, even though

the wax is absent."

MISTAKE-OF LAW-REFORMATION.

MINNESOTA SUPREME COURT, MAY 21, 1887.

BENSON V. MARKOE.

The plaintiff, who had sold real estate to the defendant's grantor, and executed a deed of conveyance, taking back a mortgage for the price, $12,000, was afterward requested by the grantee to execute to him a further deed of release and quit-claim of the premises for the purpose of effectually conveying certain land, which as was represented, had not been transferred by the prior deed. The plaintiff executed the quit-claim and release, without consideration, thereby in legal effect, but contrary to his intention, discharging his mortgage. Held, that the plaintiff was entitled to relief limiting the operation of the latter deed to the conveyance of the premises, the defendant having acquired his title with knowledge of the plaintiff's equity.

or presiding magistrate, as the case may be, that APPEAL from District Court, Ramsey county.

the said attestation is in due form, shall have full faith and credit. Congress was much more liberal than those who have been called upon to interpret its acts. Congress said that the seal of the court should be annexed, but Congress was not so worshipful of the seal as to assign to it the sole arbitrament of the rights of men; for it distinctly declared that such judicial proceedings shall be entitled to equal credit when they come from a forum which has no seal. In this case the clerk certifies that he has affixed the seal of the said court. This makes it most clear that the court in which the proceedings were had have adopted what it regards as a seal without the use of wax. To that court it is a seal to all intents and purposes. But suppose I take it upon myself to say it is not a seal and reject the

W. J. Rogers and H. J. Horn, for Benson, respondent.

R. J. Markoe and James B. Beals, for Markoe, appellant.

DICKINSON, J. This is a demurrer to the complaint. It appears from the complaint that in 1883 the plaintiff, being the owner of several lots in a certain block veyed them to William F. Markoe, a son of the deof land in the village of White Bear, sold and cou

fendant, designating the property conveyed by giving
the numbers of the lots and block according to the
recorded plat. The plaintiff took back a mortgage
upon the same property to secure the payment of the
purchase price, a sum of about $12,000, which was re-
corded. In 1885 the grantee "applied to the plaintiff
to make, execute and deliver *
a deed of quit-
claim and release of said mortgaged premises, and
then and there alleged, as a reason for such request,"

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