* *

directions and advice which she received from them in making the wil now in contest. Many of these communications from the spirits are segregated in these instructions, and the court is asked to say to the jury as a matter of law, that if they were believed by the testatrix, and her will was the result of them, such wil! is not valid." "The question of sanity is * a fact to be determined and decided by the jury, and not by the court, upon all the circumstances and proof in the case. The court cannot say as a matter of law, that a person is insane, because he holds the belief that he can communicate with spirits, and can be and is advised and directed by them in his business transactions and in the disposal of his property. He may receive this advice, and act as directed, because he is satisfied in his own mind and from his own reason that the thing recommended is wise and expedient. This is by no means impossible or improbable. Such beliefs do not of themselves afford a certain test of insanity or want of testamentary capacity." "The impropriety of a court segregating certain supposed delusions from a large bulk of evidence, and saying to a jury that they alone are sufficient to show insanity, is particularly applicable to this case. Although the proof establishes the fact that the testatrix believed in the most extreme doctrines of spiritualism, of communication and consultation with spirits, there is much evidence adduced by the caveatees, to the effect that she managed her large property with skill and intelligence. Her sanity and testamentary capacity are testified to by some of the most reliable and intelligent gentlemen of the city, where she resided. When about to have her will written, she intelligently informed the distinguished counsel, by whom it was drawn up, how she wished her property disposed of, and furnished him with an accurate and correct list of her numerous relatives. The will itself bears no intrinsic evidence of insanity in its provisions, but on the contrary is such a will as the most sane might have made." "The mere belief of the testatrix in the various phases of spiritualism, which have been testified to, and which are claimed to be extravagant and unfounded delusions, is not of itself sufficient to prove that she did not possess the capacity that the law requires to make a will. These alleged delusions constitute but part of the evidence, which had been submitted upon the issue of sanity." The celebrated Bonnard will case held that a belief in metempsychosis did not conclusively argue unsoundness of mind, and a will leaving money to a society for prevention of cruelty to animals was sustained, although the testator believed that human souls come back and inhabited them. In Robinson v. Adams, 62 Me. 369; S. C., 16 Am. Rep. 473, the same conclusion was arrived at as in the principal case, upon similar facts, after a learned review. The same law has also just been laid down by a Chicago court.

The decision of the divided Court of Common Pleas, in Latter v. Braddell, ante, 123, has been affirmed by the Court of Appeal. Bramwell, L. J.,

said: "I dare say the woman thought that her master and mistress had a right to have her examined. But what she did was to submit under the influence of other considerations. The truth is that it is impossible to say the jury was wrong in finding that she submitted, not in consideration of violence, but for some other reason. It is not like the case put by Mr. Murphy of a boy holding out his hand to be struck, for the boy knows that if he does not submit he will be compelled to submit to something worse. There is no ground here to suppose that to be the case, and I am satisfied that she did not submit under any fear of violence." Baggallay, L. J., said: "I think the verdict was right. It appears to me that the girl voluntarily led the way up stairs. She went into the room, and following out her statement, her objection was not so much to be examined as to strip off her clothes one by one. The doctor was in the performance of his ordinary duty. She might have resisted if she had pleased, but she did not resist." Brent, L. J., said: "It seems to me the doctor could only be liable if he acted without the consent or submission of the plaintiff, and that the other defendants could only be liable if the doctor so acted, being authorized by them to act without such consent or submission. It seems to me there was no evidence to be left to the jury that they authorized him to do it without the consent of the girl. I am of opinion, therefore, that the judge was right in saying there was no case to go to the jury against Mr. and Mrs. Braddell." "I think there was no case to go to the jury against the doctor. I think he did not act in any way so as to make the girl think force would be used to her. If she had so supposed, but without any such reason as would make a reasonable person think so, he would not be liable. It must be shown that he did use actual force, or that she acted under conduct of his which would make her think he was going to use violence. If there was no threat and she submitted, there was no assault." The judges denounced the conduct of the master and mistress.

In Redmon v. Phoenix Fire Ins. Co., Wisconsin Supreme Court, February, 1881, 8 N. W. Rep. 226, it is held that a mechanics' lien is an "incumbrance," within the meaning of an insurance policy. The court said: "It is in effect conceded by counsel for the respondents 'that a covenant against incumbrances in a conveyance of land is a guaranty against the existence of any charge upon it, which will compel the grantee to pay money to relieve the land,' and hence includes a mechanic's lien; but it is insisted that in this application 'the word incumbrance is used in its popular and not in its technical sense.' No case has been cited making such distinction in the use of the word 'incumbrance.' Webster defines an 'incumbrance' to be a burdensome and troublesome load;' and again, 'a burden or charge upon property; a legal claim or lien upon an estate.' It will hardly be claimed that Webster did not define the word for the use of the populace, or that he only intended such definition to include

mortgages. Certainly, judgments duly rendered and docketed must be regarded as incumbrances, as used in popular speech. Is not the same true with respect to a mechanic's lien? It would seem to be impossible to conceive of any motive which would induce an insurance company, at the time of an application for insurance, to ask whether there were any incumbrances on the property by way of mortgage, which would not be equally controlling as to incumbrances by way of judgment or mechanic's lien. All such incumbrances affect what counsel called the 'moral hazard.' In this respect, such incumbrances are wholly unlike a highway or right of way. It is true, as stated by counsel, that 'the existence of an incumbrance adds nothing to the risk of accidental or honest loss,' but it is not so certain that it can in no case take any thing from the insurer.' If it be conceded that every loss is 'accidental or honest,' then it might be true. But many of the stipulations and statements required in the applications for insurance are to secure risks in which there shall be no motive for intentional or dishonest loss. Obviously, the inducement to bring about loss by fire would be far greater in one who is insolvent, having an insurance upon property incumbered for more than it is worth, than in one free from debt and perfectly responsible. Such questions, put to the applicant for insurance, are obviously to secure a declaration from him that he at the time is free from any temptation to bring about an intentional loss, in case the company issues the policy. It is not a prayer, but rather a declaration, forced by the company, to the effect that the assured will not be led into temptation by the issuing of the policy. Such being the motive for putting the question, it would seem to be difficult in this case to so construe the language as to hold that the company merely intended to ask, and the assured merely intended to answer, concerning incůmbrances by way of mortgage, and no other incumbrances. No reported case has been cited involving the precise question here presented, nor any affirming the distinction in the use of the word incumbrance here claimed, and it seems to us that such a distinction would be extremely technical and over nice, if not forced."

THE

A WISE JUDGE AND A MERRY.

THE current, 63d, volume of Georgia Reports comes down to September, 1879. The reports are thus a year and a half behind. But when we read Judge Bleckley's opinions, and reflect that we are reading the last of them, we fondly wish that these reports were much more in arrear, so that we could continue to be refreshed and delighted by the unfailing fountain of his wisdom and humor. The last volume has a large number of his opinions, from which we have culled the following gems:

In Harriman v. First Bryan Baptist Church, p. 186, which involved a breach of contract to furnish a steamboat for an excursion for the society, the judge says, "a committeeman on board was threatened with a most profane form of immersion."

The

In Buchanan v. Sterling, p. 227, a claim for a physician's services, the question was whether a magistrate had exceeded his jurisdiction of $100. It had been proved that if the medicine man had charged for every visit the bill would have exceeded that sum, but he charged only $96. The judge observed: "It is a rare complaint against a physician that his bill is too small. The law puts no such pressure upon a doctor as to require him absolutely to charge for every visit. It allows him the gratification of a free and friendly call upon his patient, even when he has a right to put it in his bill. gratuitous visits of the plaintiff were made, it seems, during the period of convalescence, and when there was no necessity to prescribe. There is no evidence that his account was ever in fact more than one hundred dollars, so as to be beyond a magistrate's jurisdiction. He may have kept it in bounds, partly for the purpose of having the cheap and expeditious remedy afforded by a justice court, but did this motive appear, we do not know that he would be obliged to charge up to the extreme limit of his right."

In Kupperman v. McGehee, p. 256, he says: "Trusts are children of equity; and in a court of equity they are at home- - under the family rooftree, and around the hearth of their ancestor." In Nussbaum v. Heilbron, p. 312, a son carried on business in the name of his father, because he felt that his own name was under a mercantile cloud. As Judge Bleckley expresses it: "According to the charges of the bill, the father had no capital, and the son no character. The man without character carried on business in the name, and upon the credit, of the man without capital."

In Lee v. Porter, p. 346, we find the following: "It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.

"The pupil of impulse, it forc'd him along,
His conduct still right, with his argument wrong;
Still aiming at honor, yet fearing to roam,
The coachman was tipsy, the chariot drove home.""

In Forrester v. State, p. 349, the defendant undertook to evade the law against retailing intoxicating liquors without a license, by having his cook sell them in his kitchen. "In the defendant's kitchen, by his servant, in his presence, and with his cooperation through the responses, 'Go to Mary,' and 'Give the money to Mary,' the traffic was carried

In Lester v. Lester, p. 356, the question was about attaching a husband for contempt in refusing to pay alimony This is what the judge thought about it: "If a man, though having health, will not work for the support of his wife and minor children, a court cannot assume direct control of his will and muscle and compel him to labor. To do this would be to reduce him to a sort of juridical slavery, and would contradict the spirit of our institutions. To be idle (taking the consequences) is one of the privileges of a freeman, unless he is convicted penally of some offense and put to work as a punishment. But while a civil court cannot order an able-bodied man to go to work, it can, in a proper case for alimony, order him to contribute so much money at such and such times to the maintenance of his dependent family, and leave him to provide the money by the free and voluntary exercise of his

faculties, mental and physical, or by any other

means at his command. If it is not reasonably and fairly within his power to comply with the order, he may disobey it, and the court must and will excuse him." "The attachment will bring the actual resources of the respondent to a practical and decisive test. Pressure is a great concentrator and developer of force. Under the stress of an attachment, even the vision of the respondent himself may be cleared and brightened, so that he will discern ways and means which were once hidden from him, or seen obscurely. It is a great help to do a thing to feel that it must be done, and that there is no evading it."

In speaking of the power of amendment on appeal, in Burrus v. Moore, p. 409, he says: "Curative measures are not restricted to the early stages of a case; our 'court physicians' now treat chronic disorders as well as acute ones."

In commenting on the small boy, and his criminal responsibility for injuries by throwing stones in fun, he says, in Hill v. State, p. 581: "Life itself is not safe where stones are flying about, even though they be thrown by a boy." "It is good for the young to engage in rough and hardy sports, but the State cannot permit her children to beat and batter one another, even at school, with stones or other dangerous missiles. Bad boys should be made to understand that they are accountable to the law, as well as to parents and teachers, for throwing rocks and thereby inflicting personal injuries." If the Georgia boys are athletic enough to throw "rocks," they certainly should be restrained. At all events, on general principles, we are willing to join Judge Bleckley in a subscription for a monument to Herod.

In Dodd v. Middleton, p. 639, the judge dissented in the following terms: "If I could be reinforced here by the votes, as I am by the opinions of the Supreme Judicial Court of Massachusetts and the Court of Appeals of New York, I could easily put my brethren in the minority; but as it is, they are two against one, and I have no option but to yield

to the force of numbers in other words to 'the tyranny of majorities.' Though twice beaten, I am

still strong in the true faith, and am ready to suffer for it (moderately) on all proper occasions."

Now the question may suggest itself, is Judge Bleckley's law any the worse for his humor? That may be settled by the opinion of his brother Jackson, in the last-mentioned case, in which he says: "The dissent of my able and learned associate always makes me distrustful of my own ruder judgment, even when fortified by the venerable chief justice who has so long presided in this court, and whose life is indissolubly interwoven with the growth of the jurisprudence of Georgia from its root in first Kelly to the latest leaf upon it now." We mean to make a pilgrimage to Georgia sometime on purpose to see Judge Bleckley.

IN

ADMISSION TO THE BAR.

N view of the attempt which has been lately made in this State to elevate the standard of admission to practice at our bar, an examination of the English system will be found to be most interesting and instructive. That system was only recently perfected, and is due mainly to the exertions of the Incorporated Law Society.

It is no doubt generally known to the members of the legal profession that the whole matter of admission to the English bar is vested in that society. Prior to 1825 the solicitors had no regular organization except perhaps a few local societies. In that year the idea of a law institution took shape, and in obedience to a call

issued by certain leading solicitors, a meeting was held in London at which it was determined to effect a permanent organization. The project was carried out; a building was obtained in that city and a committee of managers appointed. In 1831 a Royal charter was obtained incorporating the society, which has since been superseded and new charters granted enlarging the powers and privileges of the society.

Under these charters the corporation was organized. By-laws were adopted, prescribing the test of membership and creating a governing body composed of a president, vice-president and other officers called the "council."

The building which was first obtained soon became inadequate to the accommodation of the rapidly increasing numbers of its members, and the society added new buildings from time to time which are located in Chancery lane, in which there is a large and commodious hall for examinations and lectures. The library of the society has grown from about 1,000 volumes in 1832 to upwards of 26,000. The subscribers or members have increased from 223 in 1825 to 3,372.

Prior to the year 1844 a somewhat similar organization existed, which was less metropolitan in its character, being composed largely of country subscribers. In that year both organizations were merged into one and became the Incorporated Law Society.

A few years after its incorporation the society turned its attention to the subject of legal education. Before the year 1833 articled clerks depended for their education upon their own exertions and what assistance they received from those with whom they served, and the tests for admission were one length of service as articled clerk and satisfactory character.

About that time, in order to promote the cause of educating candidates, the society established courses of lectures, and began to agitate the question of the

expediency of an examination before applicants were admitted to practice. The judges in whom the power was vested, recognizing the advantage to be derived from such an examination, finally appointed twelve

senior members of the committee of managers of the society and certain officers of the courts as examiners, and the first examination was held in the hall of the society in 1836.

The rules of the examination required that the candidates should pass a satisfactory examination on the principles and practice of common law and equity before the examiners, and also on one of three subjects, namely, Conveyancing, Bankruptcy, Criminal Law and Proceedings before Magistrates, before the magistrates themselves. A failure to pass an examination on other subjects was not fatal.

In 1877 an act was passed by Parliament, called the "Solicitors Act," putting the whole matter under the control of the society. Pursuant to the act, examiners were appointed composed of twelve members of the board of managers, who in their turn appointed paid assistant examiners chosen from members of the profession. Three examinations yearly are required by the act.

Candidates must pass three examinations, called respectively the preliminary, intermediate and final. The preliminary examination is required before the candidates enter into articles of clerkship and is designed to test the general knowledge of the applicant. The subjects of that examination for the year 1881 are 1. Writing from dictation.

2. Writing a short English composition.

6. And any two languages to be selected by the candidate out of the following six, viz.: 1. Latin; 2. Greek ancient; 3. French; 4. German; 5. Spanish; 6. Italian. There are certain exemptions from this preliminary examination in favor of graduates of leading universities and others.

Having passed this examination the candidates may immediately enter into articles of clerkship. The period of service of an articled clerk, generally speaking, is five years, although there are certain exceptions to this rule. The candidate, within six calendar months next succeeding the day he shall have completed half of the term of service, is required to pass the second or intermediate examination. The subject of this examination for this year is Stephens' "Commentaries on the Laws of England," classed under the following heads:

1. Conveyancing.

2. Private rights, and remedies for their breach, being proceedings in civil actions in all decisions in the Supreme Court.

3. Public rights and their breach.

The final examination occurs when the articled clerk has served this allotted period, or before that time, and extends over three days. The subjects of this examination for this year are as follows:

1. Principles of law and procedure in matters usually determined or administered in the higher courts.

2. Principles of the law of real and personal property and the practice of conveyancing.

An examination on other subjects embracing the law and practice in bankruptcy, criminal law, etc., is also had, but it is not essential that the candidate should pass that examination. There are also held other examinations for prizes offered by the society and others, called "honors examinations," which of course take a wider range and call for higher qualifications and attainments in the applicant than the regular final examinations.

The following are a few specimens of questions for the final examination for 1880:

"What is the effect of non-entry of a demurrer, no order for leave to amend having been obtained and served?

"State the distinction between an express trustee

and an implied or constructive trustee, both as regards the statute of limitations and remuneration for time and skill?

"When is leave given to surcharge and falsify accounts?

"What is the position of a first legal mortgagee who advances a further sum on mortgage, as regards a mesne mortgage of whose charge he had notice at the date of his second advance?

"State some of the events on the happening of which a partnership is determined by operation of law? "What is stoppage in transitu,' and how may it be lost?

"State very shortly the ordinary successive steps in the administration, without suit, by an executor of the effects of a solvent testator?

"Construct a pedigree table showing Henry Morgan to be the heir at law of his paternal great-uncle John Morgan?

"How may a will, which has been revoked, be revived?"

There were seventy-five of these questions in all, and it will be observed from the foregoing specimens that the questions are not more difficult to answer than those which are now put by careful examiners of our own courts under the present rules.

A certificate of having passed the final examination enables the clerk to obtain admission as a solicitor, but no person can be admitted until he has attained twentyone years of age and his term of service has expired.

It is important to note that the thoroughness and efficiency of the English system is due to the lawyers themselves acting through the Incorporated Law Society. Our own rules on the subject recognize to a certain extent the importance of enlisting the interest and services of the bar. Examiners are now selected with care, and as they hold their office for a year they have the time and opportunity for making the examinations as careful and thorough as they should be. Whatever improvement may be suggested in our own system will tend toward leaving the matter more decidedly with the bar, who may be depended upon to see that only well-trained and well-instructed candidates are admitted to membership.

While the Legislature will persist in setting aside the rules year after year in favor of graduates of law schools who in so many instances owe their diplomas wholly to the good nature and excessive zeal of their instructors, it seems idle and useless to talk about improvements. But it cannot be that the Legislature will long continue this work, and perhaps the best service that can be rendered at this time by the bar to the cause of elevating the standard of admission to practice, is to induce the Legislature to stop all special legislation which sets aside the present rules of the courts and the proceedings under them.

phine Prewit, to set aside a deed of settlement as fraudulent. The opinion states the facts.

FIELD, J. On the 27th of April, 1856, Mrs. Josephine Prewit was a widow only twenty years of age. Her husband was the late John Prewit. Not many months after his death another Mr. Prewit- Richard this time-proposed marriage to her. He was of mature age, being in his fifty-eighth year. His proposal was rejected. He renewed it and accompanied it with a promise to settle upon her if she would consent to the marriage a large amount of property. This promise moved her to consent. The deed of settlement was accordingly executed, and in the May following the marriage took place. Both parties affirm that the marriage was the only consideration for the settlement, and it is so stated in the deed.

A little more than two years and a half afterwardin December, 1858- the husband was adjudged to be a bankrupt in the District Court of the United States for the Northern District of Alabama, in proceedings taken upon his own application, and in the following month the plaintiff was appointed assignee of his effects, and to him an assignment was made. The present suit is brought by him to set aside the deed of settlement on the alleged ground that it was executed by Prewit to defraud his creditors.

At the time of the settlement Prewit was the holder of a large amount of property, consisting chiefly of lands in Alabama, but was indebted in an amount greater than their value. It is stated that his property was not worth more than $50,000, and that his debts exceeded $70,000.

It would seem from the evidence, and we assume it to be a fact, that he was insolvent at the time he executed the deed of settlement, in the sense that his debts largely exceeded the value of his property. It may also be taken as true, so far as the present suit is concerned, that he intended by the deed to hinder, delay and defraud his creditors, and that he made the settlement to place his property beyond their reach.

There is no evidence that Mrs. Prewit was aware at the time of the amount of property he held or of the extent of his debts, or that he had any purpose in the execution of the deed except to induce her to consent to the marriage. It is not at all likely, judging from the ordinary motives governing men, that whilst pressing his suit with her and offering to settle property upon her to obtain her consent to the marriage, he informed her that he was insolvent, and would by the deed he proposed to execute defraud his creditors. If he intended to commit the fraud imputed to him, it is unreasonable to suppose that he would, by unfolding his scheme, expose his true character to one whose good opinion he was at that time anxious to secure. If capable of the fraud charged, he was capable of deceiving Mrs. Prewit as to his pecuniary condition. She states in her answer that she knew he was embarrassed and in debt, but to what extent or to whom she did not know, and that it was because of the knowledge that he was embarrassed that she insisted upon his making a settlement upon her. The deed itself shows that he owed a large sum, for of the 6,770 acres of land embraced by it 2,185 acres were charged with the payment of certain designated debts to the amount of $18,000. A knowledge of these facts justified her in saying that she knew he was embarrassed, but they rather dispelled than created any suspicion that he had a design to defraud his creditors. Her statements do not warrant the inference of knowledge of any such purpose, much less of any assent to its execution. Besides the property charged in the deed with the payment of the large amount of indebtedness mentioned, he owned 4,700 acres of land not included in it, and personal property of the value of several hundred dollars.

When a deed is executed for a valuable and adequate consideration, without knowledge by the grantee of any fraudulent intent of the grantor, it will be upheld however fraudulent his purpose. To vitiate the transfer in such case, the grantee also must be chargeable with knowledge of the intention of the grantor.

Now, marriage is not only a valuable consideration, but as Coke says, there is no other consideration so much respected in the law. Bishop justly observes that "marriage is attended and followed by pecuniary consequences; by happiness or misery to the parties; by life to unborn children; by unquiet or repose to the State; by what money ordinarily buys and by what no money can buy, to an extent which cannot be estimated or expressed, except by the word infinite. To say, therefore, that it is to be regarded, where it is the inducement to any contract, as a valuable consideration, is to utter truth, yet only a part of the truth." And also that "marriage is to be ranked among the valuable considerations, yet it is distinguishable from most of these in not being reducible to a value which can be expressed in dollars and cents, while still it is in general terms of the very highest value." Law of Married Women, $$ 775-6. Such is the purport and language running through all the decisions both in England and this country with reference to marriage as a consideration for an ante-nuptial settlement. Barrow v. Barrow, 2 Dickens, 504; Nairn v. Prowsé, 6 Vesey, 752; Campion v. Cotton, 17 id. 264; Sterry v. Arden, 1 Johns. Ch. 261; Herring v. Wickham, 29 Grat. 628.

In Maginac v. Thompson, this court said that "nothing can be clearer, both upon principle and authority, than the doctrine that to make an antenuptial settlement void, as a fraud upon creditors, it is necessary that both parties should concur in or have cognizance of the intended fraud. If the settler alone intend a fraud and the other party have no notice of it but is innocent of it, she is not and cannot be affected by it. Marriage, in contemplation of the law, is not only a valuable consideration to support such a settlement, but is a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution." 7 Pet. 393.

The same doctrine is asserted by the Supreme Court of Alabama, in which State the parties to the deed of settlement reside and in which it was executed. Andrews v. Jones, 10 Ala. 401.

According to these authorities there can be no question of the validity of the settlement in this case. There is an entire absence of elements which would vitiate even an ordinary transaction of sale where, if set aside, the parties may be placed in their former positions. And an antenuptial settlement, though made with a fraudulent design by the settler, should not be annulled without the clearest proof of the wife's participation in the intended fraud, for upon its annulment there can follow no dissolution of the marriage, which was the consideration of the settlement.

It follows that the decree of the court below must be reversed, and the cause remanded with directions to dismiss the bill of complaint; and it is so ordered.

LIFE INSURANCE-INSANITY NO EXCUSE FOR FORFEITURE-RIGHT TO

PAID-UP POLICY.

NEW YORK COURT OF APPEALS, NOV. 16, 1880. WHEELER V. CONNECTICUT MUTUAL LIFE INSURANCE

COMPANY.

While as a general rule, where the performance of a duty, created by law, is prevented by inevitable accident, without the fault of a party, the default will be excused, yet when a person, by express contract, engages absolutely to