inserted by him in the certificate required to be made and indorsed on the conveyance. The provisions of the Revised Statutes were mostly new and effected radical changes in respect to the laws relating to the proof and acknowledgment of conveyances, and especially in regard to such proof when made by a subscribing witness. The revisers, in their notes upon section 15, say that so much thereof as refers to the residence of witnesses is new and was "deemed desirable in order to detect fraud or to sustain an honest deed." (5 Statutes at Large, 345.) The established canons for the construction of statutes require the courts to examine the condition of the law prior to the adoption of the statute, in order to discover its reason and purpose, and to so interpret it as to give effect to such purpose and object. Waller v. Harris, 20 Wend. 555 (32 Am. Dec. 590). The imperative language of the statute respecting the residence of the subscribing witnesses, as well as its plain object, would seem to preclude the court from considering its requirements as either directory or immaterial. It was plainly intended to remedy defects in the pre-existing law which experience had shown to be dangerous. Proof of a conveyance by a subscribing witness, being liable to be rebutted by evidence that he was interested or incompetent (sec. 17), it became important that par. ties interested should have some means of identifying such witness aside from his mere name, which, in many cases, would be mislead. ing and unreliable. The witness, is therefore, expressly required to state his residence, and that fact must also be incorporated in the certificate. The requirement has, in the safeguard it affords the public against frauds, a plain and obvious purpose to serve which cannot be disregarded without opening the door to the most manifest abuse and imposition. To consider the provisions as directory or immaterial, violates the language of the statute, deprives it of its efficacy, and puts in the power of unknown and unascertainable persons the opportunity to foist upon the record evidence of important transactions in real estate without any adequate security against imposition and fraud. It is not necessary that this certificate should be expressed in the exact language of the statute, or according to any precise form; but, in respect to its substantial provisions, it is indispensable that they should in some way be contained in it and convey to all persons knowledge of the required information. In the certificate in question no

attempt is made to comply with the requirement of the statute in respect to the residence of the witness, and there is nothing in the circumstances surrounding the transaction which can properly supply the omission to do so. We have not been referred by the respondent to any authority on the point holding such an acknowledgment to be valid or sufficient. In Dibble v. Rogers, 13 Wend. 536, it was held, where a deed was acknowledged by the grantor, that the identity of the person making the acknowledgment was not required to be proven to the officer taking it by the subscribing witness, but that other persons acquainted with him might make the necessary proof, and the certificate would be sufficient although the residence of such witness was not stated therein. It was assumed, however, in the opinion that the statute required. the residence of the witness to be imperatively stated only in the case of a subscribing witness making proof himself of the execution of the deed. It was held in Fryer v. Rockefeller, 63 N. Y. 268, that an acknowledgment which failed to state that the persons making it were known to the officer as the persons described an and who executed the deed, although it did state they were grantors of the within indenture," was fatally defective and did not entitle the deed to be recorded.

We find no authorities holding that a material provision of the statute expressly required to be stated can be wholly disregarded, and the deed thus acknowledged lawfully admitted to record. That a deed improperly recorded can not be read in evidence has been determined in numerous cases. Morris v. Keyes, 1 Hill. 540; Clark v. Nixon, 5 Hill. 36.

The cases of Jackson ex dem. v. Gumaer, 2 Cow. 552; West Point Iron Co. v. Reymert, 45 N. Y. 703; Trustees, etc., v. McKechnie, 90 N. Y. 618, referred to by the respondent, are not authorities on this point. These cases all arose under deeds executed previous to the adoption of the Revised Statutes, and under a statute which did not require the residence of the subscribing witness to be stated in the certificate of acknowledgment.

We should have been gratified in this particular case if we could have reached a conclusion in favor of the sufficiency of the plaintiff's title, because we feel convinced that the lapse of time. will soon cure any defects in their title, but a careful regard for the salutary provisions of the statute has seemed to us to forbid such a result. The mere fact that in this case the subscribing

witness was a well-known and respected citizen, whose residence was widely known, cannot work a change in the general rule provided by statute, and we are, therefore, constrained to hold that the acknowledgment in this case does not entitle the Lawrence deed to be read in evidence.

The judgment of the General and Special Terms should, therefore, be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.

NOTE.-See Epitome of cases:

Title.

TRESPASS.

NASHVILLE V. COMAR.

(88 Tenn. 415.)

Trespass-Continuing

injury-Measure of damages. The law will not presume the continuance of a trespass, nor allow a license to continue a wrong, when the cause of the injury is of such a nature as to be abatable, either by the expenditure of labor or money; and where the cause of the injury is one that will not be presumed to continue, the measure of damages will be the injury sustained by the plain tiff before the commencement of his action, and successive actions may be brought for the subsequent continuance of the wrong.

LURTON, J.

Sec. 432. Facts stated. This is an action at law by defendants in error to recover of plaintiff in error damages resulting from an alleged negligent construction of a sewer, whereby both storm and sewage water, in times of unusual freshet, have been discharged from the sewer upon the premises owned by them. The market value of the freehold is charged to have been depreciated, and damages are sought both for injury and destruction of household furniture, as well as for permanent impairment of value of the realty. Comar and wife recovered judgment in the circuit court, from which the city of Nashville appealed.

There was evidence admitted on the trial going to show the value of the premises before and after the alleged wrong. The trial Judge charged the jury that if they found from the evidence "that the market value of the plaintiff's property has been permanently impaired by the construction of this sewer, its proximity and liability to back up surface water and discharge offensive sewage matter upon his premises, he would be entitled to recover difference in market value of the property before and since the building of the sewer."

This is assigned as error.

The sewer complained of was erected by the city, and is upon the public street upon which the property of Comar abuts. A private tributary sewer, erected and maintained by Comar, crosses his property and passes under his house and enters the public sewer. The supposed defect in the public sewer seems to be that in times of unusual rains it has not capacity sufficient to carry off the storm water flowing into it, and upon several occasions the pressure of the accumulated sewage and storm water has been so great as to result in backing the water into the maller and tributary sewer of Comar, whereby his premises have Deen flooded.

Sec. 433. Trespass-Continuing injury-Measure of damages. Assuming that defendants in error were entitled to recover damages the question is, What damages? Were they limited to such actual damages as they had sustained up to the time of the bringing of their suit, or may they recover, not only past, but prospective damages? If the latter, then the charge of his honor is correct; but if limited to damages already sustained, then the charge is erroneous.

The learned counsel for Comar and wife defend the measure of damages stated to the jury by the Circuit Judge upon the suggestion that "the sewer was a permanent improvement, and whatever damage it occasioned is of a permanent character," and that for this reason plaintiffs cannot bring successive actions, but must recover their damages once for all. The recovery of prospective damages can only be justified upon the assumption that the premises of Comar will, for all time to come, be subjected to the same disgusting invasions of sewage as have heretofore occurred. Damages assessed upon this basis, as is frankly conceded by counsel, would operate as a perpetual license to the city to continue the

This we held to be the

wrongs of which it has been convicted. consequence of a recovery upon a similar charge in a case of an action for a nuisance where the judgment was submitted to by the defendant. Harmon v. Railroad, 87 Tenn. 614 (11 S. W. Rep. 703). See to same effect 3 Sutherland on Damages, 413, 414.

It was not erected

Is it just or right to assume that the wrong of which Comar complains proceeded from a cause permanent in its character? That the sewer is a permanent improvement, and cost a great deal of money, will not, as we shall undertake to show, be a conclusive factor in the settlement of the question. It was lawfully constructed by the city, upon a public street. with any purpose to discharge its sewage upon the premises of Comar, but rather to carry off his drainage, as well as that of others in the same territory. The complaint is not that the city has been guilty of any misconduct in erecting a sewer where this has been constructed, but that its servants have so unskillfully built it that upon the occurrence of certain unusual conditions it discharges its contents upon the premises of defendant in error., Now, upon what authority is it to be assumed that the negligence or unskillfulness of the servants of the city in the construction of this sewer will not be remedied? The argument is advanced that, inasmuch as it will require the expenditure of human labor to remedy the defects in this sewer, that therefore the damages are to be treated as permanent and original, and recoverable in one action. This test is supported by the opinion of Judge Bell, who delivered the opinion of the Court in the case of Troy v. Cheshire Railroad Company, 3 Foster (N. H.) 82.

In that case it appears that the railroad company had built its roadway in and upon a public highway in such a manner as to obstruct and destroy its value as a street. The town was held entitled to recover as for a permanent occupation of the street, and damages were assessed accordingly. Now, if the railway was lawfully upon the street, then the damages recoverable were properly recovered in one suit. Harmon v. Railroad, supra. But if it was unlawfully there, then it was a trespasser and an abatable nuisance, and successive actions would lie so long as it continued thereon, the recovery in each action being limited to damages already accrued and subsequent to the last recovery. Whether there rightfully or as a trespasser does not appear from the report of the case before us, but the inference is that it was not a tres