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No legislature ever intended, or in the rightful exercise of legislation could intend, that any corporation it creates, directly or mediately, should have implanted in its charter the seeds of its destruction. It is upon this idea, that we have, in 70 Cent. L. J. 273, and in 71 Cent. L. J. 129, taken the position, that all courts, which denied to fraternal benefit associations the right to readjust their rates whenever necessary to equalize burdens among members, were proceeding in the teeth of legislative policy. This subject is such an important one to thousands upon thousands of people scattered among the various sovereignties of our country, that we have endeavored in various allusions to prevent its being overlooked, We have pointed out, that, while uniformity in statute and decision is desirable for commercial and other reasons, with respect to other subjects, it is vitally necessary for the success of fraternal insurance. Indeed, it would seem that though states may desire to meet the reasonable demands of citizens in the creation or recognition of corporations for the conduct of fraternal insurance, they show themselves negligent in effort to protect the welfare of those citizens in not guarding them against the evil effects of contrariety in the rule of right in their contractual relations with other citizens.

Because we think we have long discerned the destructive vice of the rule, that denies the power to rerate when equality of right and obligation among members demands readjustment, we welcome such a discussion and decision as appear in a late case decided by the Texas Court of Civil Appeals. See Supreme Ruling of Fraternal Mystic Circle v. Ericson, 131 S. W. 92.

In this discussion there is reference made

to a great abundance of decision for and against the right to rerate under clauses that a member is to be bound by such laws and rules as exist or as they may be amended, and the contention of courts which take the view, that the right to amend does not include the right to abrogate in any essential respect the contract between the association and a member is noticed.

The reasoning of the Texas court, however, suggests, that the contract itself embraces such right of amendment and that such a clause is more ex abundante cautela than as really needed.

Here is what the court says: "As the insure, the member has the right to demand that the association pay the beneficiaries named in the certificate the amount therein specified, and, in consenting to be governed by the by-laws of the association, which might thereafter be enacted, it is not presumed that he intended to agree that the association might in this manner relieve itself of the obligation to pay as it had contracted to do. But as the promise to pay the beneficiary is binding upon the association, it ought to make adequate provision to obtain the means of payment. And as the members of the association are the association in this sense, they ought to be bound by their agreement to allow such changes to be made in the by-laws as shall be found necessary to make such provision. As the insurer, he contracts that the certificates of all the other members shall be paid, and agrees in advance to such changes in the by-laws as are necessary, to meet such payments, such payments as he knew at the time he joined could be met only by the assessment of adequate rates upon himself and all other members. * * * The right of a mutual fraternal association to increase its rates of assessment, when the same becomes necessary to preserve its existence, may be likened to the law of selfdefense, which Blackstone says may justly be called the primary law of nature. * * * A member of such an association has no vested right to have his fellow-members continue to carry his insurance at a loss to

them while he refuses to bear his part of the burden in making preparation to pay their policies at maturity."

This reasoning appears to us incontestable. It points out with admirable force the scope of the limitation of the amendment clause in applications for insurance and in benefit certificates thereunder. Opposing courts have said it refers both to the direct obligation of the association to pay a certain amount and the obligation that the rate of assessment is also fixed.

The Texas court says the amount to be paid cannot be affected by the right of the amendment, but, in effect, the mention of a rate is merely incidental, as that is regulated by the law of the member's obligation expressed, tentatively, in the rules and regulations of the association. The member becomes entitled to a fixed amount by complying with the laws of the association. But the basic law of them all is that each member is to do his part, bear his proper burden, as a co-insurer. The court very forcibly expresses this idea in saying: "A member *** has no vested right to have his fellow-members continue to carry his insurance at a loss to thenì.” But when he claims that he has a vested right in a lower rate than is equal between him and his fellow-members, he does put them to an election either to carry him or abandon the insurance they have.

If, therefore, a member, who, with all others, is a co-insurer, has a right to insist on a lower rate than he ought to pay in a scheme of equality of burden, there is an injustice, which has in it the potentiality of disintegration-indeed, there is not only potentiality of, but the tendency to, disintegration. It is plain injustice, and when we consider, that it is a kind of injustice, that is as certain to have effect as the lapse of time brings about varying ratios in related things, it is to impeach the essential honesty of any law authorizing the creation of fraternal associations, if the right to continue equality among co-insurers is not deemed to be intended.

We commend this Texas decision both for its thorough review of the conflicting cases on the subject it treats, and for the clear distinction it enforces in what is outside of the reach of the right of amendment from what is within. The opinion is a fit successor to that of Chief Justice Knowlton of the Supreme Judicial Court of Massachusetts, upon which we commented in 70 Cent. L. J. 273.

NOTES OF IMPORTANT DECISIONS WILLS-MISDESCRIPTION AS BEING OR NOT WITHIN THE RULE GOVERNING LATENT AMBIGUITY.-We find the Supreme Court of Illinois standing, negatively, four to three upon the proposition whether a devise of the West 1⁄2 and the East of "N. W." 4 of Section 12 and the "Northwest" % of Section 9 took effect, where the testator owned no such lands but did own the "N. E." 4 of Section 12 and the "Southwest" 14 of Section 9. (Graves v. Rose 92 N. E. 601.)

The majority opinion confines its discussion of cases to those of Illinois entirely and the dissenting opinion almost entirely, the only exception being the famous case of Patch v. White, 117 U. S. 210.

In this latter case the misdescription consisted in reversing the number of lot and block, as for example where testator owns lot 5 in block 6 and the will reads lot 6 in block 5, which latter lot he does not own.

Justice Brewer referred to a confusion in. the mind as to such things well known sometimes to exist and he stated as a principle that: "It is settled doctrine that a latent ambiguity may arise upon a will either when it names a person as the object of a gift or a thing as the subject of it and there are two persons or two things that answer such name or description; or, secondly, it may arise when the will contains a misdescription of the object or subject, as where there is no such person or thing in existence, or, if in existence, the person is not the one intended or the thing does not belong to the testator. The first kind of ambiguity * may be removed by any evidence that will have that effect-either circumstances or declarations of the testator. (Jarman on Wills, 370; Hawkins on Wills, 9. 10.) When it consists of a misdescription, as before stated, if the misdescription can be struck out and enough remains in the will to identify the person or thing, the court will deal with it in that way; or, if it is an obvi

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ous mistake will read it as if corrected." The error here must come under the last clause of the second class of ambiguities and seems certainly covered by the ruling in Patch v. White supra, but it does not really seem an ambiguity, but a mere mistake. Nevertheless when we are able to arrive at a definite conclusion that it is a mistake in the taking of certain words of description for other words, it would seem that the right to declare a mistake includes the right to correct it.

The only thing courts should be careful about is that the mistake and its correction should both be obvious. We believe Patch v. White has been considered generally to have been properly decided; but if it was, the minority in the principal case were right and the majority, wrong.

BANKRUPTCY-COSTS RECOVERED BY SUCCESSFUL DEFENDANT IN MALICIOUS INJURY SUIT RELEASED BY DISCHARGE. -The Supreme Court of South Dakota considers that it may well be conceded that the entire recovery by plaintiff in a malicious injury suit, including his costs, is not released by defendant's discharge in bankruptcy under Subd. 2 of Section 17a of the bankruptcy act, but says: "It does not follow that a judgment for costs awarded the defendant" in such a suit is a liability for a wilfull and malicious injury to the person or property" partakes of the nature of that suit, so as to survive bankruptcy of the unsuccessful plaintiff. Drake v. Vernon, 128 N. W. 317.

The court says: "So far as the plaintiff is concerned in an action for such an injury, his expenditures in the way of costs are rendered necessary and occasioned directly by the 'wilful and malicious injury,' redress for which he is compelled to seek by an action in the courts. Hence the cost element in a judgment for plaintiff, successful in such an action, partakes of the nature of the action, in that it is a direct result of the very injury itself. But to hold that a judgment awarded defendant for costs in such an action partakes of the nature of the plaintiff's cause of action, when the very right to the judgment for costs is created by and founded wholly upon statute, and not in any sense upon a wilful or malicious injury to the person or property of the defendant in the action, would, it seems to us, be little short of an amendment to the bankruptcy law by judicial legislation."

It seems to us it is something of an expansive construction to allow even for costs recovered by a plaintiff to form a part of his judgment, unreleased by discharge in bankruptcy. Certainly there seems little reason for carrying that over to a case where by the i

judgment of a court wilful or malicious injury has been found not to exist at all. The defendant certainly stands to such a suit like he would to any other, and so it appears to us does the plaintiff. It does not add to the injury that it is defended against and therefore a defendant commits no additional wilful or malicious injury upon plaintiff by causing him to incur costs. He incurs costs contractually and reimburses himself by their becoming a liability against another in tort, if they survive bankruptcy.

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In effect, the chief justice says all theorizing about freedom of the press and the federal government taking advantage of reservations for governmental purposes to set up within each state an imperium in imperio was but a sort of aeroplaning with "castles in the air." The superstructures having no base in law, the supposition of law was punctured, and they dissolved out of the fog of literalness before the sunlight of construction found in the maxim-the old law, the mischief and the remedy.

When we reflect over the strenuous militancy of a chief executive in matters judicial, we can see the boot and spur which seemed to make of the department of justice a puppet of his personal desire. It has been complained of the federal judiciary-especially its subordinate courts-that they have encroached on the prerogatives of the state courts in their independent interpretation of state law, while casually administering it at the instance of noncitizens and non-residents. But we scarcely think the course that judiciary has taken is so much subject to criticism as the spirit of this abortive step, though the principle at bottom is the same.

In the one case the constitution says the federal judiciary shall, if a foreigner or nonresident invokes it, see he gets justice uninfluenced by environment. This the states specifically assented to. It is mere misconstruction of the duty devolved on it for it to interpret state law for itself, if the constitution otherwise intended.

But when the government desires for admin

istrative purposes a reservation within state lines, all that should be supposed to devolve on it is that order and peace and respect for state law should there be by the government enforced as scrupulously and by the same sort of law as in surrounding territory.

To suppose that our government should desire anything else is to suppose, that it was by clandestine methods trying for a foothold whereby state law might be flouted and that it could, if it desired, put burdens and create penalties and crimes upon citizens in a state, which the state conceived contrary not only to its policy but its very autonomy.

We can conceive the state's requesting congress not to permit government reservations to be lawless land within borders controlled by law. We find it utterly opposed to every principle of harmonious co-operation in our complex system for this to be so.

Perhaps there is another suggestion to be here adverted to, which is only optimistic in nature on the theory that to realize where we stand is the best way to see whether we should remain or advance or recede. That suggestion is that the federal executive department at least at the time this prosecution was begun-showed either that it distrusted states in the prosecution of an alleged offense where aspersion was cast on its chief executive or it looked to its own judiciary as the supine servant of its will.

As to this the sadness of the suggestion is, that the executive department could entertain such thoughts-the optimism is in the credit with which every federal judge who has been appealed to emerged from the test. Now congress should clear its skirts of all suspicion by no longer suffering federal statutory courts to administer any other law as state law than that upon which state courts place their imprimatur.

REPLEVIN-GATHERING FRUIT FROM TREES BY MEANS OF A WRIT FOR PERSONAL PROPERTY.-Though it be true that fruits, whether naturales or industriales may be part of the realty until plucked, yet it also seems that, like fixtures, they may according to contractual intent be changed to personalty before they are plucked. This is seen in contracts of sale of crops of apples, oranges or peaches, with the purchaser to gather same and account for quantity.

This kind of contract in reference to a crop of oranges was held by the Supreme Court of Florida to give to the purchaser a plain and adequate remedy at law, by replevin, so as to make demurrable a bill for injunction against the seller, who refused to allow the purchaser to enter on his premises to gather the pur

chased crop from the trees. Simmons v. Williford, 53 So. 452.

The court said: "The oranges may be regarded as personal chattels and an unlawful detention of the possession thereof by the seller may be adequately remedied by the statutory action of replevin."

There seems no reason to distinguish such a situation from that of taking by replevin a growing crop of corn, and this seems to have been ruled. Courts, we believe, have differed some little in fixtures cases, but this only related to severance in the execution of the writ, possibly being injurious to the freehold, an objection which could not be urged as to fruits, which grow to fall or be plucked.

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A Michigan lawyer, moved by Providence or some less mysterious power to take up his abode in a sister state, would naturally consider what his status would be in his own domicile before forsaking his old one. Should he neglect this precaution from an overweening confidence in the Constitution of the United States, believing that it would protect him in life, liberty and property, and that it forbade any state to deny any person within its jurisdiction the equal protection of the laws, he might learn to his cost, that, in spite of a much vaunted religious liberty, and "equality before the law," the courts of his new domicile might admit him to practice, as a lawyer, but brand him as incompetent to give evidence as a witness. This ridiculous paradox is one of the many proofs of the tenacious conservatism with which the law clings "to some ancient saw." The courts of Alabama, Arkansas, Maryland, New Jersey, North Carolina, South Carolina, Pennsylvania, and New Hampshire, like the mob that put to death that most Christian martyr, Polycarp, undertake to mark a man as an atheist, and having so marked him, deny a plaintiff the privilege of proving facts of which the "atheist" alone has knowledge. Why is it that this remnant of heathenism and barbarism still survives? What is an athe

ist? The courts of these states must surely have some test by which they brand a man as unfit to give evidence in a court. Not that any man should object to be classed as an atheist, if he is thereby ranked with such men as Polycarp and Socrates; but when the courts close the door against truth and decide causes upon a partial view of the facts, it is the litigant who is injured, and the state that injures him by clinging to this ancient superstition loses the respect of its best citizens. Intelligent persons who have given the matter any thought at all, know that it is impossible to make any proof of a man's ontological beliefs without calling him as a witness. The man who really has any belief on such questions has arrived at such belief by the exercise of his mental faculties; and it is impossible that any one save himself should know whether he has ever gone through the mental processes essential to any belief that is not founded purely on hearsay evidence; or whether he has had that passive receptivity of mind essential to a belief which has no other support than hearsay. By what means, then, do these courts brand a man as an atheist? What is the distinguishing mark of this brand? It is related that as "Polycarp stood in the amphitheater at Smyrna just before his martyrdom, with the heathen multitude around crying out against him as an atheistical innovator, the Roman proconsul, pitying his great age, begged him to pronounce the formulas which expressed adherence to the popular religion and abhorrence of Christianity. 'Swear,' said he, 'by the fortune of Cæsar; cry: Away with the atheists!' Whereupon Polycarp, says the letter of the Church of Smyrna, which relates his martyrdom, looking round with a severe countenance upon the heathen clamorers who filled the amphitheater, pointed to these with his hand, and with a groan, and casting up his eyes to heaven, cried: 'Away with the Atheists.' This did not give satisfaction and Polycarp was burnt. Yet so completely has the so-called atheism of Polycarp prevailed that we are almost puzzled at finding it called atheism by the pop

ular religion of its own day, by the worshippers of Jupiter and Cybele, of Rome and the fortune of Cæsar. On the other hand, Polycarp's retort upon these worshippers, his flinging back upon their religion the name of atheism, seems to us the most natural thing in the world. And so most certainly will it be with the popular religion in our own day."-Matthew Arnold, God and the Bible, p. 1, 2.

Again we put the question? What is atheism? Is it acceptance or denial of a single proposition, or a series of propositions? Is it belief or disbelief

a theological or philosophical system? What is the nature of the matter upon which the court passes judgment? Is it not the mental attitude of

the man charged with atheism? Let us make sure at least of this point. The judgment will involve a decision that man is or is not an atheist. The point to decide is surely not merely a question of verbal expression. The verbal expressions of the man charged with atheism may easily be proven by those who have heard him utter them. Other persons may have heard him say that he did not believe in a God. Will their testimony upon this point prove that he is an atheist? If so, then the inquiry relates merely to what verbal utterances the man has given vent. But surely this is not the point is issue when determining whether a man is or is not an atheist. His verbal utterances may tend to prove his attitude of mind and may thus be relevant to the issue, but they are not themselves the subject of inquiry.

It being granted then, that the subject of inquiry, the point in issue, is the socalled atheist's attitude of mind, let our next step be to determine the time to which the inquiry relates. Does it relate to some time in the past, or to the time when the witness is sworn? Manifestly the attitude of the witness's mind at the time when he is sworn and testifies is alone important. It is not what the witness has been, but what he is, that is in issue.

If then the mental attitude of the witness at the time when it is proposed to swear

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