In re APPLICANTS FOR LICENSE.

and practical basis and one in entire harmony with all our notions of the duties and functions of the different branches. of our government.

It is unfortunate that the explicit language of the former statute was changed, but I am quite sure it was the result of inadvertence and was not intended by the Revisers or the Legislature to change the meaning of the law and to divest this Court of a power it has exercised since the first year of its existence.

The case of Ex parte Thompson, 10 N. C., 355, which is cited in the opinion of the Court, would seem to be an authority against the conclusion that we have been divested by the Revisal of the right to inquire into the character of an applicant. It is true Chief Justice Taylor said that if the Act of 1777 appeared, according to the usual rules of interpretation, to convey a peremptory direction to the Court to examine the applicants then before the Court, it could only yield obedience to the mandate, however striking might be the mischief and impolicy of such a course of legislation. He was then speaking of the qualification of citizenship in this State, which involved a political and not a judicial question. It was for the Legislature to say who should be citizens, or who should enjoy the rights of citizenship, such as the right to apply for license to practise law. It was a matter solely of public policy, and it was with reference to the question, in that phase of it, that the Chief Justice said what we have substantially stated. But the Court undertook to decide, and did decide, that notwithstanding the Acts of 1777 and 1818 provided for the admission by the Court to the bar of a person found to have competent law knowledge and an upright character, the Court could still reject any one who did not have the qualification of citizenship, and even though the act also provided that a person coming into this State from any foreign country should be admitted, if he had resided in the

THAXTON V. INSURANCE Co.

State one year and exhibited a testimonial of his unexceptionable moral character in the manner therein provided.

The Court added another qualification to those required by the act, it being deemed essential that it should be possessed by any one who should apply for admission to practise in our courts. The language of the Court used in this connection is strong and most impressive: "Viewing the profession of the law as the source from which the superior judicial magistrates. must be derived, and from which a large proportion of enlightened and efficient public officers is usually selected, every one must naturally feel solicitous that it should not fall into such hands as would lower it in the national opinion." And again: "No longer a nursery in which merit is trained under the directing hand of experience and qualified to render manly and essential service to the community, the legal profession, 'in its nature the noblest and most beneficial to mankind; in its abuse and debasement the most sordid and pernicious,' would sink into a mere mercenary instrument, without sympathy in the public prosperity, and without hold on the public confidence."

THAXTON v. INSURANCE COMPANY.

(Filed November 13, 1906).

Insurance-Evidence-Prima Facie Case-Proofs of Death -Waiver "Death by Own Act"-Suicide-Burden of Proof.

1. In an action to recover the amount of an insurance policy, where the plaintiff introduced the policy insuring the life of the deceased for plaintiff's benefit, proved the payment of premiums which kept the policy alive, till June 18, 1905, and introduced a clause of the defendant's answer admitting that deceased died on April 25, 1905, this testimony makes out a prima facie case for plaintiff.

THAXTON V. INSURANCE CO.

2. Where proofs of death of the insured have been formally made, and the insurance company retains them without suggesting any defect or failure to comply with the requirements of the policy, and finally refuses to pay the claim, it thereby waives any defect in the formal proofs of death and acknowledges that the requisite proofs were received by it.

3. A provision in an insurance policy that if the insured, within one year from the issue of the policy, die by his own act or hand, whether sane or insane, the company shall not be liable for any greater sum than the premiums, etc., is valid, and refers to suicide, and does not include a killing by accident.

4. On an issue addressed to the question whether the insured committed suicide, the presumption is against an act of suicide, and the burden is on the party who seeks to establish it.

5. Where the testimony disclosed that the insured was "found dead with a gunshot wound in his left side," with the additional and only explanatory statement, "Everything pointed to an accident in handling the gun, which was supposed to be empty," the Court was correct in charging the jury that if the testimony was believed, they should find that death was not suicidal.

WALKER, J., dissenting.

ACTION by Mollie F. Thaxton against the Metropolitan Life Insurance Company, heard by Judge M. II. Justice and a jury, at the June (Special) Term, 1906, of the Superior Court of RoWAN. This was an action to recover the amount of an insurance policy.

Issues were submitted and responded to by the jury as follows:

1. Has plaintiff complied with all the conditions of the contract of insurance set out in the complaint, which by the terms of the contract were to be performed by her as a condition precedent to her recovery on this contract? Answer: "Yes."

2. Did the insured, Beverly Wiley Thaxton, die by his own hand or act, with intent to commit suicide? Answer: "No."

3. Is the defendant indebted to the plaintiff; if so, in what sum? Answer: "$2,000."

THAXTON V. INSURANCE CO.

Judgment on the verdict for the plaintiff, and defendant excepted and appealed.

R. Lee Wright and P. S. Carlton for the plaintiff. Burwell & Cansler and L. H. Clement for the defendant.

HOKE, J. At the close of the testimony the Court instructed the jury that if they believed the evidence, they would answer the first issue "Yes"; the second issue "No," and the third issue "$2,000," the amount stipulated in the policy.

The defendant objected to this charge of the Court, and the brief for defendant filed in the cause stated that all other exceptions are abandoned.

We are of opinion that the objection to the charge cannot be sustained.

On the trial, the plaintiff introduced the policy insuring the life of the deceased for plaintiff's benefit for the sum of $2,000, proved the payment of premiums, which, by the terms of the policy kept same alive, till June 18, 1905; and then introduced a clause of the defendant's answer which admitted that deceased died on the 25th of April, 1905.

According to the authorities, this testimony makes out a prima facie case for plaintiff, and nothing else appearing, would justify the charge of the Court as given. Spruill v. Ins. Co., 120 N. C., pp. 141-150; James v. Ins. Co., at the present term.

Defendant's first objection rests upon the allegation that no satisfactory proof of the death of the insured has been made; that the requirements of the policy as to the form and quantum of proof have not been fully complied with.

We fail to discover any essential defect in the matter referred to; but if such defect existed, we do not think the objection is now open to defendant.

So far as the quantum of proof is concerned, it is admitted in the answer that the insured is now dead, and was at the beginning of the suit.

THAXTON v. INSURANCE Co.

And as to the form, to which this objection is chiefly urged, it is well established that where proofs of death have been formally made and the company retains them without suggesting any defect or failure in this respect to comply with the requirements of the policy, and finally refuses to pay the claim, it thereby waives any defect in the formal proofs of death and acknowledges that the requisite proofs were received by it. Niblack Benefit Societies and Accident Insurance, vol. II, sec. 326, and authorities cited.

Here, proof of death was made on blanks supplied by the company in July, 1905. So far as the testimony shows, no objection or suggestion of any defect was made as to the proof until answer filed November following, denying liability on the policy; and then in such general terms that plaintiff could hardly discover what change or correction was desired. Under such circumstances, the objection as to the form of proof is properly held to be waived.

Again, the charge of the Court is urged for error in connection with the second issue, the issue being in form as follows:

"Did the insured die by his own act or hand with intent to commit suicide?"

The policy, bearing date June 18, 1904, contains a condition that if the insured, within one year from the issue of the policy, die by his own act or hand, whether sane or insane, the company shall not be liable for any greater sum than the premiums, etc. A condition of this kind is held to be a valid stipulation. Spruill v. Ins. Co., 120 N. C., p. 140; Vance on Insurance, p. 532.

And it is generally held also that such a provision, in its terms, refers to suicide and does not include a killing by accident, even although the act of the insured may have been the unintended means of causing death. Vance on Insurance,

supra.