Rep. 410, the Court of Appeals of New York for the first time decided the question whether a social club is within the meaning of the statute requiring payment of liquor license. The holding of the court was that the dispensing of liquors by a social club which has a limited and select membership, and was organized for a legitimate purpose to which the furnishing of liquors to its members on payment therefor is merely incidental, is not a sale within the meaning of the statute. The court says in part:

We are aware that it has been generally understood that this court in the case of People v. Andrews, 115 N. Y. 427, intended to hold clubs liable under the statute, and that the general terms, in several instances, have subsequently so held, resting their decisions upon that case. People v. Sinell (Sup.), 12 N. Y. Supp. 40; People v. Bradley (Sup.), 11 N. Y. Supp. 594; People v. Luhrs, 7 Misc. Rep. 503, 28 N. Y. Supp. 498. But such was not the intention of this court, and to that extent its determination has been misunderstood. The question here presented must therefore be regarded as undecided, and still open for consideration. In 11 Am. & Eng. Enc. Law, 727, it is said that: "The distribution of liquors by a bona fide club among its members is not a sale, within the inhibition of a liquor law, even though the person receiving the liquor gives money in return for it, and the law prohibiting the sale of liquor on Sundays does not apply to such a club. It is otherwise, however, where the club is simply a device resorted to as a means of evading the statute." Black on Intoxicating Liquors, at section 142, after referring to the authorities in the different States upon the subject, concludes as follows: "Upon the whole, therefore, notwithstanding some conflicting rulings, the rational conclusion is that the intent must govern. On the one hand, if the object of the organization is merely to provide the members with a convenient method of obtaining a drink whenever they desire it, or if the form of membership is no more than a pretense, so that any person, without discrimination, can procure liquor by signing his name in a book, or buying a ticket or a chip, thus enabling the proprietor to conduct an illicit traffic, then it falls within the terms of the law. But on the other hand, if the club is organized and conducted in good faith, with a limited and selected membership, really owning its property in common, and formed for social, literary, artistic, or other pur poses, to which the furnishing of liquors to its members would be merely incidental, in the same way and to the same extent that the supplying of dinners or daily papers might be, then it cannot be considered as within either the purpose or letter of the law." In Graff v. Evans, 8 Q. B. Div. 373, the appellant was a manager of a club under the supervision of trustees, in whom all the property of the club was vested. The club was not licensed for the sale of intoxicating liquors, but these were supplied at fixed prices to members for consumption, the money produced thereby going to the general fund of the club. The manager, in the course of his employment, supplied liquors to a member. It was held that it was not a sale, within the meaning of the licensing act. Field, J., in delivering the opinion of the court, says: "The question here is, did Graff, the manager who supplied the liquor to Foster, effect a sale by retail? I think

not. I think Foster was an owner of the property, together with all the other members of the club. Any member was entitled to obtain the goods on payment of the price. A sale involves the element of a bargain. There was no bargain here, nor any contract with Graff with respect to the goods. Foster was acting upon his rights as a member of the club, not by reason of any new contract, but under his old contract of associatiom, by which he subscribed a sum to the funds of the club, and became entitled to have ale and whisky supplied to him, as a member, at a certain price." In State v. St. Louis Club (Mo. Sup.), 28 S. W. Rep. 604, it was held that the distribution of wines or other liquors among the members of a social club which is a bona fide organization, with limited membership, admission to which is only on a vote of the governing board, and with common ownership of property, is not a sale of liquor, within the meaning of the Missouri dramshop act. This is a recent case, and the opinion contains a review of all of the decisions upon the subject. The courts in our sister States are in conflict upon the question discussed in the above cases. Many of the decisions are based upon local statutes differing materially from our own, and other cases are disposed of upon the ground of the fraudulent character of the organization. Attention is called to Com. v. Ewig, 145 Mass. 119, 13 N. E. Rep. 365; Seim v. State, 55 Md. 566; Tennessee Club v. Dwyer, 11 Lea, 462; Piedmont Club v. Com., 87 Va. 541, 12 S. E. Rep. 963; State v. McMaster, 35 S. C. 1, 14 S. E. Rep. 290; Barden v. Montana Club, 10 Mont. 330, 25 Pac. Rep. 1042; Koenig v. State (Tex. Cr. App.) 26 S. W. Rep. 835; People v. Soule, 74 Mich. 250, 41 N. W. Rep. 908; State v. Horacek, 41 Kan. 87, 21 Pac. Rep. 204; State v. Essex Club, 53 N. J. Law, 199, 20 Atl. Rep. 769; State v. Lockyear, 95 N. C. 633; State v. Neis, 108 N. C. 787, 13 S. E. Rep. 225; State v. Mercer, 32 Iowa, 405; Rickart v. People, 79 Ill. 85; State Easton Social, Literary & Musical Club, 73 Md. 97, 20 Atl. Rep. 783; Kentucky Club v. City of Louisville, 92 Ky. 309, 17 S. W. Rep. 743; Newell v. Hemmingway, 16 Cox Cr. Cas. 604; Com. v. Po mphret, 137 Mass. 564 567.

For a full and elaborate consideration of the cases, we refer to Black on Intoxicating Liquors (section 142) and to State v. St. Louis Club, supra.

JUDICIAL DISCRETION IN DIVORCE.

The relation of married persons is not only a personal relation, it is a status, a condition established by law. The marriage relation partakes of the character of a civil contract though it is much more than that. It is not

a vested right. So that the State claims for itself the right to put an end to the marriage relation of its subjects upon such terms as it may dictate. The power of each State is derived from the federal constitution, which concedes to the separate States power to regulate the domestic relations of their subjects. Of course the State may refuse to exercise this authority, and may prohibit it by constitutional provision or amendment. Thus we find that the remedy for domestic infelicity is originally vested in the State. The

sibilities which may occur to change opinion. The representatives of the people who make the laws to govern society simply echo the opinions and sentiments of that portion of society represented by them. Their action may be salutary, or it may be not. It is not salutary when the discretionary power is withheld from the courts by the legislature. The only just determination in any case for divorce, is had from a knowledge of the circumstances of each particular case. This the court who hears the case always has. In many cases the facts disclosed to the judge convince him that the parties cannot live together as man and wife, and be happy; that the bond that binds them together, perhaps through no great fault of either party, has become galling and oppressive. Instead of a love and affection for each other their feelings were changed to dislike and perhaps to disgust. Still they must live together as man and wife so far as the world is concerned because of some special provision of the legislature which undertook to fix a rule without knowledge of its effect. What is the benefit to society at large for this sacrifice of individuality? A man and woman joined together even by the "divinely sanctioned institution of matrimony," who have found that they have no affinity for each other, that there is. absolute incompatibility of temperament so far as they are concerned, in the union, cannot, and do not, disguise their trouble from the world, even though they bring into practice that kind of philosophical acceptance of a bad job which is portrayed in the characters of those people in the first book of "The Heavenly Twins." When Coleridge wrote in his time that "when people understand that they must live together, except for a few reasons known to the law, they learn to suffer by mutual accommodation that yoke which they know they cannot shake off. They become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes." Modern society will hardly accept this as the correct rule to go by. The days of martyrdom have passed out and are gone. Science has taught us much along the social line since the days of Coleridge. Eternal punEternal punishment and the Spanish Inquisition could not exist in these days. Man lives his life

more in consonance with science. There can be no such sacrifice demanded by the needs of society. The spectacle of man and woman living together under the sanction of divine or human law with nothing but dislike and disgust for each other, although they may be sphynx-like in silence, is not a spectacle which will conduce to social elevation. The relation is paraded as public scandal, and is in the mouth of every mischievous purveyor of social rottenness. Would it not conduce to the welfare of society to permit the court on the application of either of these parties to dissolve this unnatural relation and permit these parties to find a place in the social fabrication where they may be happy themselves and make others happy as intended by their Creator. In giving the court discretionary power over such cases it seems as if the most good could be accomplished. This is permitted in some States; it should be in all. The church is too bigoted and impracticable for a guide in this matter. The attitude of the Roman Catholic church in opposing all divorce is an illustration of this. Because some evil has grown up in any system of social economy is not a reason for condemning the whole system. The church is not the only institution working for the welfare of society. If it were we might be in serious danger of a retrograde. Distinctly, there is no intention on the part of the writer to argue against the old-fashioned, but good ideas of the sacredness of the relation of marriage. But the changing status of society to meet modern requirements, necessitates an advance in ideas along this line as along other lines. The divorce laws of the several States should not be used as a sort of boom to populate growing sections of the country. There should at least be uniformity of the laws concerning domicile of the parties. We may well take a lesson from our English cousins in legislation on this question of domicile. Beginning with the agitation of Mr. Gladstone of the subject in 1857 down to the recent case of Le Mesurier v. Le Mesurier, decided by the privy council, does away with the theory which has existed in England since the decision in Jack v. Jack as to domicile in divorce. The later decisions show a complete evolution in this theory and serve to fix the English rule. It may be difficult to say just how far moral law may influence

judicial action. It is not so difficult to say that public opinion will, in the end, make laws through legislation, in accordance with its idea of right and wrong. The "nickel in the slot" method of divorce in Oklahoma is directly attributive to the acts of its legislature. And the acts of the legislature are dictated by the moral sentiment which prevails in this section. When moral sentiment becomes more elevated, perhaps, the laws will become better. In the meantime if the legislature had fixed a reasonably just rule of domicile and had left more discretion in the hands of the court American jurisprudence might have been spared this incontinence. The courts are not to be blamed. They do but apply the laws made by the legislature. If these laws are good, the result is good; if bad then the result cannot be good. The Chicago Legal News recently contained this statement: "It is remarkable how rapidly the average Oklahoma judge can dispatch divorce business. The defendants usually know nothing about the proceedings until the papers are served by the successful litigants. As a rule no defense is ever offered in divorce cases in Oklahoma for the reason that defendants are seldom aware of the beginning of the suit." Such statements convey wrong impressions. The conclusion is natural that the courts are the blameworthy factors. This is not true. Blame for such abuses is upon the people's representtatives who fix the law, and who pander to the element to which such legislation is acceptable. This mistake or abuse of legislative discretion may be obviated only by the application of a constitutional remedy. And such a remedy would be more effectual and salutary if uniform in all the States. It is the province of judges to determine what the law is under a given act or rule of conduct established by the legislature, under constitutional restrictions. And the distinction between a legislative and judicial act is too well defined for argument. The one prescribes what the law shall be in cases coming within its scope; the other determines what the law is as applied to a certain set of facts.* Judge Cooley says in his work on Constitutional Limitations: "The legislative power we understand to be the authority under the

4 See Justice Field's dissenting opinion, 99 U. S. p. 761.

constitution to make laws and to alter and repeal them. On the other hand

to adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar purview of the judicial department." But there can be no question of this functional distinction at this time. The object of this paper, as suggested above, is an appeal for more power in the courts to exercise a discretion independent of statutory particularity. Of course this exercise of discretion should be a sound one. Judges are supposed to be and should be chosen because of their ability and honesty. And then it would seem as if no danger should be apprehended in this direction. The discretion is to be exercised only when conducive to domestic harmony, and consistent with the peace and morality of society. What, then, are the cases or the classes of cases in which the power can be properly exercised? If the facts involved bring the particular case within a prescribed ground of a statute, in such a case the law gives a right to a divorce, and the court has no discretion over the facts. They are the result of legislative deliberation. But there may be cases for which the statute does not provide; for instance, several of the grounds recognized by the statute may exist, although in a degree less than the statutory requirement. Such cases should be subject to the discretionary power of the court. In Illinois, Indiana, Iowa and North Carolina, the courts frequently recognized and applied this authority. But the legislatures of those States have seen fit to take this power from the courts and has repealed the statutes by authority of which these courts exercised their discretion. It seems to the writer that this discretionary power of courts in the matter of divorce is a very important one. That next to uniformity of domicile laws, and the effect to be given decrees in the different States, this subject is of first importance, and while we are now about reforming the divorce laws and adopting uniform methods and ideas let us give to the subject above its due consideration. PERCY EDWARDS.

Bishop on M. & Div. sec. 546.

6 Lloyd v. Lloyd, 66 Ill. 87; Hamaker v. Hamaker, 18 Ill. 137; Ritter v. Ritter, 5 Black. (Ind.) 81; Ruby v. Ruby, 29 Ind. 174; Inskup v. Inskup, 5 Iowa, 204; Borden v. Borden, 3 Dev. (N. Car.) 548; Scroggins v. Scroggins, 3 Ib. 535.

GUARANTEE AND TITLE INSURANCE. MINNESOTA TITLE INSURANCE & TRUST CO. V. DREXEL.

Circuit Court of Appeals, Eighth Circuit, Sept. 16, 1895. Plaintiffs loaned $55,000 on mortgages and further to secure them took defendant's policy of insurance on the title by which defendants agreed to "indemnify, keep harmless and insure" plaintiffs "from all loss or damage by reason of liens or incumbrances affecting" the property. Subsequently mechanic's liens on the property were foreclosed to the amount of $31,360.00 and held to be a prior lien to the mortgages. Plaintiffs bought in these mechanic's lien judgments for $31,994.77, and then requested defendants to indemnify them for this sum under the policy of insurance. Such indemnity being refused plaintiffs bring suit. Held,

1st. That the policy would be interpreted in favor of the insured.

2d. That it is a guaranty that the plaintiffs as mortgagees should not suffer any loss or damage by rea son of defects in the title of property or liens or incumbrances thereon existing on the date of the policy and that plaintiffs could have judgment against defendants for the amount paid out by them upon such mechanic's liens.

3d. That the purchasing of the mortgaged property by the plaintiffs at the foreclosure sale did not cancel the mortgage debt so as to bring the case within the clause of the policy that "payment, discharge or satisfaction of such mortgage indebtedness (except by foreclosure of said mortgage) shall fully terminate and annul this policy and all liability of the company thereunder;" but semble, the case would be otherwise if payment of the mortgage had been made by a stranger.

In error to the Circuit Court of the United States for the District of Minnesota.

This was an action by John R. Drexel, Anthony J. Drexel, George W. Drexel, James W. Paul, Jr., John R. Fall, John Lowbar Welch, and Richard C. Dale, surviving executors and trustees under the will of Anthony J. Drexel, deceased, against the Minnesota Title Insurance & Trust Company, on a policy of title insurance. The plaintiffs recovered judgment in the circuit court. Defendant brings error. Affirmed. The defendants in error, John R. Drexel, et al., on the 7th of March, 1894, filed in the United States Circuit Court for the district of Minnesota, at Minneapolis, their complaint at law against the plaintiff in error, the Minnesota Title Insurance & Trust Company, alleging, in substance, that, on the 1st day of June, 1889, Anthony J. Drexel loaned to Alfred J Condit $55,000, taking as security therefor seven mortgages on separate parcels of a block of land, and the brick and stone tenements situated thereon, in the city of Minneapolis, which are particularly described in the complaint. That on the 19th of June, 1889, the defendant, the Minnesota Title Insurance & Trust Company, for the consideration of $126, made and delivered to Drexel, the mortgagee, its policy of insurance which is made part of the complaint and reads as follows: "Capital, $500,000. Guaranty Fund

with State Auditor, $200,000. Policy No. 3,151. Amount, $55,000. Block No.- Minnesota Title Insurance & Trust Company, a corporation duly established by law in Minnesota, by this policy of insurance, in consideration of the sum of one hundred and twenty-six dollars to it paid, doth hereby covenant that it will, for the period of twenty-five years from the date hereof, indemnify, keep harmless, and insure Anthony J. Drexel, the mortgagee named in seven certain mortgages executed by Alfred J. Condit and Nellie D. Condit, his wife, as mortgagors, dated June 1st, 1889, and filed for record in the office of the register of deeds of Hennepin county, Minnesota, June 5th, 1889, at 5 o'clock and-minutes, P. M., and all persons claiming the estate and interest of said mortgagee under said mortgage by descent, or by will, and all other persons to whom said mortgage may be assigned, from all loss or damage not exceeding fifty-five thousand dollars, which the said insured shall, during said period of twenty-five years, sustain by reason of defects of the title of said mortgagors to the real estate or interest described in schedule A, hereto annexed, or by reason of liens or incumbrances affecting the same at the date hereof, excepting only such as are set forth in schedule B; subject to the conditions and stipulations hereto annexed and together with said schedules made a part of this policy. This policy is issued upon an application numbered 1,137 1-2, which application is agreed by all parties claimimg hereunder to be a warranty of the facts therein stated. (Signed by the company.)" The conditions of the policy annexed to and made a part of it, which are material to be considered in the decision of this case, read as follows: "(b.) If the interest of the insured shall, by foreclosure and the expiration of the period of redemption, have matured into an ownership in fee-simple, the price to be paid, unless determined by mutual agreement, shall be the amount bid at said foreclosure sale, with interest thereon at legal rate from the date of such foreclosure sale, together with any and all subsequent expenditures by the insured for improvements, taxes, or assessments on said real estate, with interest at the legal rate on each of such expenditures, from the date of the making thereof, less any sum or sums received by said insured from any partial redemption or sales of said real estate. (4) As long as the interest of the insured in said real estate consists of a mortgagee's interest, and subject to redemption, the liability under this policy shall not exceed the amount at any time remaining unpaid on the mortgage indebtedness, and the company may, at its option, at any time, pay the amount then remaining unpaid on said mortgage, and in that case the mortgagee or his assigns shall by proper instrument assign to this company said mortgage, together with said mortgage note and debt, or the portion thereof remaining unpaid. * Payment, discharge, or satisfaction of said mortgage indebtedness

* *