evidence, that the death of the insured was the result, not only of external and violent, but of accidental means. The policy provides that the insurance shall not extend to any case of death or personal injury, unless the claimant under the policy establishes, by direct and positive proof, that such death or personal injury was caused by external violence and accidental means. Such being the contract, the court must give effect to its provisions according to the fair meaning of the words used; leaning however where the words do not clearly indicate the intention of the parties, to that interpretation which is most favorable to the insured. Bank v. Insurance Co., 95 U. S. 678; Insurance Co. v. Cropper, 32 Penn. St. 355; Reynolds v. Insurance Co., 47 N. Y. 604; Anderson v. Fitzgerald, 4 H. L. Cas. 484, 498, 507; Fowkes v. Association, 3 Best & S. 925. The requirement however of direct and positive proof, as to certain matters, did not make it necessary to establish the fact aud attendant circumstances of death by persons who were actually present when the insured received the injuries which caused his death. The two principal facts to be established were external violence and accidental means, producing death. The first was established when it appeared that death ensued from a pistol shot through the heart of the insured. The evidence on that point was direct and positive; as much so, within the meaning of the policy, as if it had come from one who saw the pistol fired; and the proof on this point is none the less direct and positive because supplemented or strengthened by evidence of a circumstantial character. Were the means by which the insured came to his death also accidental? If he committed suicide, then the law was for the company, because the policy by its terms did not extend to or cover self-destruction, whether the insured was at the time saue or insane. In respect to the issue as to suicide, the court instructed the jury that self-destruction was not to be presumed. In Mallory v. Insurance Co., 47 N. Y. 54, which was a suit upon an accident policy, it appeared that the death was caused either by accidental injury or by the suicidal act of the deceased. But," the court properly said, "the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person." Did the court err in saying to the jury that upon the issue as to suicide the law was for the plaintiff, unless that presumption was overcome by competent evidence? This question must be answered in the negative. The condition that direct and positive proof must be made of death having been caused by external, violent and accidental means, did not deprive the plaintiff, when making such proof, of the benefit of the rules of law established for the guidance of courts and juries in the investigation and determination of facts. Upon like grounds we sustain the ruling to the effect that the jury should not presume, from the mere fact of death, that the insured was murdered. The facts were all before the jury as to the movements of the insured on the evening of his death, and as to the condition of his body and clothes when he was found dead, at a late hour of the night, upon the floor of his office. While it was not to be presumed, as a matter of law, that the deceased took his own life, or that he was murdered, the jury were at liberty to draw such inferences in respect to the cause of death as under the settled rules of evidence the facts and circumstances justified. (2) We are however of opinion that the instructions to the jury were radically wrong in one particular. The policy expressly provides that no claim shall be made under it where the death of the insured was caused by "intentional injuries inflicted by the insured or any other person." If he was mur

ries inflicted by another person. Nevertheless the instructions to the jury were so worded as to convey the idea that if the insured was murdered, the plaintiff was entitled to recover; in other words, even if death was caused wholly by intentional injuries inflicted upon the insured by another person, the means used were "accidental as to him, and therefore the company was liable. This was error. Upon the whole case the court is of opinion that by the terms of the contract, the burden of proof was upon the plaintiff, under the limitations we have stated, to show, from all the evidence, that the death of the insured was caused by external vlolence and accidental means; also that no valid claim can be made under the policy if the insured, either intentionally or when insane, inflicted upon himself the injuries which caused his death, or if his death was caused by intentional injuries inflicted upon him by some other person. May 14, 1888. Travellers' Ins. Co. v. McConkey. Opinion by Harlan, J.

MARRIAGE-CONVEYANCE OF WIFE'S SEPARATE ESTATE ACKNOWLEDGMENT. - Under the Ohio and Virginia statutes a deed by husband and wife, made in either State, conveying the wife's land, is inoperative to pass her title, unless the husband, she having duly acknowledged the deed, has, in her life-time, and by an acknowledgment in the form prescribed by law, signified his consent to such conveyance. His acknowledgment made after her death is of no effect. Until the husband acknowledged it, and thereby, in the only way prescribed by statute, gave his assent to her conveying away her interest, the deed was ineffectual for any purpose. While it may not have been necessary that they should acknowledge the deed at the same time or upou the same occasion, or before the same officer, the statute of Virginia, upon any fair interpretation of its words, and having regard to the policy which induced its enactment, must be held to have required that the acknowledgment of the husband should occur in the life-time of the wife, while she was capable of asking his consent to the conveyance of her lauds. But that assent was of no avail after the death of the wife, before the husband had, by acknowledgment of the deed, signified his willingness to have her convey to Jones, under whom the defendant claims title. In Ludlow v. O'Neil, 29 Ohio St. 181, it was held, using the language of the syllabus, that "under the statute of February 22, 1831, it is not indispensable to the validity of a deed executed by husband and wife that they should acknowledge it before the same officer, or at the same time and place, or that their acknowledgment should be certified by a single certificate." Yet "the acknowledgment of the wife is not binding upon her until the deed is executed and acknowledged by the husband." "The husband," the court said, "can render the wife every needed protection by himself refusing to sign and acknowledge the deed. If she acknowledged it before the husband, it is presented to him with the wife's signature and acknowledgment, and he has only to refuse to acknowledge." We are of opinion that equally under the Ohio and Virginia statutes a deed by the husband and wife conveying the latter's land is inoperative to pass her title unless the husband, she having duly acknowledged the deed, should, in her life-time, and by an acknowledgment in the form prescribed by law, signify his assent to such conveyance. May 14, 1888. Sewall v. Haymaker. Opinion by Miller, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

INSURANCE-FIRE-PROPERTY COVERED BY POLICY.

the judicial robes, now sat in a review, by no means unpleasant, of the utterances of magistrates before whom he had until then stood in considerable awe; and seized the opportunity, doubtless with a keen perception of the drift of popular sentiment on matters of personal liberty, to enlarge the mild policy of the later law. When it was urged that if the law were not technically administered, imprisoned debtors would of a Sunday wander beyond the "limits," securely able to return before Monday, when the creditor could sue-Van Buren, with a contemptuous fling at the Supreme Court, confessed in Johnsonian sentences his lenient temper toward these "stolen pleasures "-his willingness that debtors should snatch the "few moments of liberty, which although soured by constant perturbation and alarm, are notwithstanding deemed fit subjects for judicial animadversion." His rhetoric was rather agreeably florid when he declared the law establishing "jail liberties" to be a concession for humane purposes made by the inflexible spirit which authorized imprisonment for debt. He strongly intimated his sympathy to be with "the exertions of men of intelligence, reflection and philanthropy to mitigate its rigor; of men who viewed it as a practice fundamentally wrong, a practice which forces their fellow-creatures from society, from their friends, and their agonized families into the dreary walls of a prison; which compels them to leave all those fascinating endearments to become an inmate with vermin;" and all this, not for crime or frauds, "but for the misfortune of being poor, of being unable to satisfy the all-digesting stomach of some ravenous creditor." The practice was one confounding virtue and vice, and destroying the distinction between guilt and innocence which should unceasingly be cherished in every well-regulated government." Democrats rejoiced over this passage when Van Buren was a candidate for the presidency. Richard M. Johnson, then his associate upon the Democratic ticket, had successfully led an agitation for the abolition of such imprisonment upon judgments rendered in the Federal courts.

66

In 1830, while secretary of state at Washington, he is said to have appeared before the Federal Supreme Court in the great litigation between Astor and Sailors' Snug Harbor, in which he had been counsel below; but no record is preserved of his argument there. His last well-known argument was before the Court of Errors at Albany in Varick v. Jackson, a branch of the famous Medcef Eden litigation. This long and highly technical battle was lighted up by the fame and competitions of the counsel. It arose upon the question whether a will of Eden which gave a landed estate to his son Joseph, but if Joseph died without children, then to his surviving brother, Medcef Eden the younger, created for Joseph the old lawyers' delight of an "estate tail." If it were an estate tail," then the law of 1782, which, in the general tendency of American legislation after the Revolution, was directed against the entailing of property, would have made the first brother, Joseph, the absolute owner, and have defeated the later claim of Medcef. For Joseph had failed while in possession of the property. His creditors, accepting the opinion of Alexauder Hamilton, then the head of the bar, insisted that he had been the absolute owner, that the provision for his brother Medcef's accession to the property was nugatory as an attempt to entail the estate; and upon this view the creditors sold the lands, which by the rapid growth of the city soon became of large value. Hamilton's opinion for years daunted the younger Medcef and his children from asserting the right which it was morally plain his father had intended for him. Aaron Burr, not less Hamilton's ri

val at the bar than in the politics of New York, gave a contrary opinion; but after killing Hamilton in 1804 and yielding up the vice-presidency in 1805, his bril| liant professional gifts were exiled from New York. On his return in 1812 from years of conspiracy, adventure and romance, he took up the discredited Medcef Eden claim; and in the judicial test of the question he, and not Hamilton, proved to have been correct. The struggle went on in a number of suits; and when in 1823 the question was to be finally settled in the court of last resort, Burr, fearing, as he himself intimated to the court, lest the profound suspicion under which he rested might obscure and break the force of his legal arguments, or conscious that his past twenty years had dimmed his faculties, called to his aid Van Buren, then United States senator and a chief of the profession. As Van Buren and Burr attended together before the Court of Errors, they doubtless recalled their meetings in Van Ness's office twenty years before, when Burr, still a splendid though clouded figure in American life, hoped, by Federalist votes added to the Republican secession which he led, to reach the governorship aud recover his prestige; those days in which the unknown but promising young countryman had interested a vice president and enjoyed the latter's skillful and not always insincere flattery. The firm and orderly procedure of Van Buren's life was now well contrasted with the discredited and profligate ability of the returned wanderer. Against this earlier but long deposed, and against this later and regnant chief in the Republican politics of New York, were ranged in these cases David B. Ogden, the famous lawyer of the Federalist ranks, Samuel A. Talcott and Samuel Jones. In Van Buren's long, masterly and successful argument there was again an edge to the zeal with which he attacked the opinion of Kent, the Federalist chancellor, who asked the Court of Errors to overrule its earlier decisions, and the chancellor's own decision as well, and defeat the intention of the elder Medcef Eden.

Great lawyers were then fond of illustrations from polite literature; they loved to set off their speeches with quotations from the classics, and to give their style finish and ornament not practicable to the precise, prompt methods which their successors learn in the driving routine of modern American cities. Van Buren did not however become a great orator at the bar. His admirer, Butler, upon returning to partnership with him in 1820, wrote indeed to an intimate friend, Jesse Hoyt (destined afterward to bring grief and scandal upon both the partners), that if he were Van Buren he "would let politics alone," and become, as Van Buren might, the "Erskine of the State." But though his success, had he continued in the profession, would doubtless have been of the very first order, his oratory would never have reached the warm and virile splendor of Erskine or the weighty magnificence of Webster. Van Buren's work as a lawyer brought him however something besides wealth and the education and refinement of books, and something which neither Erskine nor Webster gained. The profession afforded him an admirable discipline in the conduct of affairs; and affairs, in the law as out of it, are largely decided by human nature and its varying peculiarities. The preparation of details; the keen and far-sighted arrangement of the best, because the most practicable, plan; the refusal to fire off ammunition for the popular applause to be roused by its noise and flame; the clear, steady bearing in mind of the end to be accomplished, rather than the prolonged enjoyment or systematic working out of intermediate processes beyond a utilitarian necessity-all these elements Van Buren mastered in a signal degree, and made invaluable in legal practice.

Holmes to be forced to disagree with Mr. Holmes, the learned commentator, and it must have been a strain on his modesty to be compelled to write an opinion agreeing with him. It was scarcely fair in his brethren to assign that duty to him, and he might reasonably have declined it. But he is not the man to shirk an unpleasant duty, and undoubtedly no other man in this country is more likely to be right on a point of ancient common law. The editor of the Review says, in brackets, "the relative weight of text-books, as compared with decisions, is no doubt much greater in the United States than here." This is probably because our text-books are so much better than theirs.

A group of cases worthy of remark by Gibson's Law Notes reaches us in the last batch of exchanges. In Delaware, etc., R. Co. v. Cadow, it was held negligent for a cripple with a stiff leg to depart from a path which he knows to be safe, and take one which he does not know, to reach the same point across a street. We should suppose it would be a fair question of fact. Vermont is a great State for dog suits. In Worthen v. Love it is held that proof that a dog, whose owner knew he was vicious, had previously broken his chain and bitten a child, was competent to show that the defendant did not keep him securely fastened. In Hass v. Marshall (Penn.) it was held that a witness was not competent to testify as to the purity of whisky simply by reason of having been an attorney at law for forty years and studied chemistry to some extent. In Johnson v. Commonwealth (Penn.) it was held that an effigy, bearing the words "by George, the old liar," hung on a tree in front of the complainant's place of business, and understood to represent him, was a criminal libel.

The eleventh annual meeting of the American Bar Association will be held at Saratoga Springs on Wednesday, Thursday and Friday, August 15, 16 and 17, 1888. The sessions will be held at 10 o'clock A. M. and 8 P. M. on Wednesday and Thursday, and at 10 o'clock A. M. on Friday, at Putnam's Music Hall, at the corner of Broadway and Phila street, nearly opposite the United States Hotel. Wednesday morning. The president's address, by George G. Wright, of Iowa; nomination and election of members; election of the general council; reports of the secretary and treasurer; report of the executive committee. Wednesday evening. --A paper by J. Randolph Tucker, of Virginia, on "Congressional Power over Inter-State Commerce; " a paper by J. M. Woolworth, of Nebraska, on "Jurisprudence considered as a branch of the Social Science;" discussion upon the subjects of the papers read. Thursday morning. The annual address, by George Hoadly, of New York; discussion and action on the report of the committee on commercial law made last year, on the subject of the adoption by Congress of laws about commercial paper and on other subjects (see report of 1887,

pages 79 and 332); reports of standing committees (see list of subjects referred in report of 1887, page 438); report of special committee "on the Expression of Legislative Intention in Public Statutes," Johnson T. Platt, chairman. Thursday evening.— The following unfinished business from last year: Discussion and action upon the report of the committee on judicial administration and remedial procedure, on the subject of uniformity of pleading and practice in United States courts (see report of 1887, pages 52 and 317); discussion and action upon the report of the committee on jurisprudence and law reform, on the subject of a Federal code of procedure (see report of 1887, pages 52 and 317); discussion on the subject of the paper read this evening. Friday morning.- Nomination of officers; unfinished business; miscellaneous business; election of officers. The annual dinner will be given at the Grand Union Hotel at 8.30 o'clock on Friday evening.

The State Library will be closed to the public from the 5th to the 20th of August, inclusive, for the purpose of cleaning.

IN

NOTES OF CASES.

·

N Heuston v. Simpson, Indiana Supreme Court, May 29, 1888, it was held that even in a will case, under a statute which forbids physicians to testify as to matter communicated to them as such by patients in the course of their professional duties, a physician is not a competent witness to prove the mental and physical condition of his patient, whether his knowledge thereof was derived from words of the patient, his own observation, or his professional examination. The court said: "In Association v. Beck, 77 Ind. 203, the court quoted with approval from the case of Edington v. Insurance Co., 5 Hun, 1, this language: The secrets of the sick-chamber cannot be revealed because the patient was too sick to talk, or was temporarily deprived of his faculties by delerium or fever, or any other disease, or because the physician asked no questions. The statute seals the lips of the physician against divulging in a court of justice the intelligence which he acquired in the necessary discharge of his professional duty.' The last sentence in the extract we have made from Edington v. Insurance Co., supra, correctly declares the law. the knowledge is acquired in the chamber of the patient, and in the discharge of professional duty, the physician can make no disclosure. This is true whether the knowledge is communicated by the words of the patient, or is gained by observation, or is the result of a professional examination. The law forbids the physician from disclosing what he learns in the sick-room, no matter by what methods he acquires his knowledge. Association v. Beck, supra; Association v. Riddle, 91 Ind. 84; Insurance Co. v. Wiler, 100 id. 92; Turnpike Co v. Andrews, 102 id. 138; Williams v. Johnson, 112 id. 273;

If