not at the time of the marriage, and to prove her claim produced the certificate of two medical gentlemen who had examined her recently, expressing their belief that her incapacity rad arisen since the marriage, Chancellor Walworth, upon the application of the husband, ordered that she should submit to another examination at the hands of experts appointed by the court, declaring that under the peculiar circumstances of the case, the complainant ought not to be compelled to leave the decision of his cause to rest solely apon an ex parte examination made by physisians who had been selected for the purpose by the wife herself. 23

The husband must, of course, furnish all he necessaay funds to pay the expenses of the surgical examination. 24 And if the wife refuses to submit herself to the examination ordered by the court, the allowance of her almony may be suspended until she consents to the examination as directed.25 And either party refusing to submit to such an examination might undoubtedly be punished for contempt of court.26 But as a refusal to submit

the examination has been regarded as evidence of incapacity,27 a party will ordinarily besitate long before refusing compliance with the order of the court in such cases.

And after the medical experts have made their examination of the person according to the direction of the court, and given in their testimony, such testimony is to be received and weighed with great caution, and Sir Johr Nichol has gone so far as to declare that he is not aware that it has ever been held sufficient alone" to justify the court in granting a decree of nullity.28 There ought to be other evidence to supplement that given by the medical witnesses, in order to justify a court in annuling a marriage on the ground of the impotency of one of the parties.

HENRY WADE ROGERS.

23 Newell v. Newell, 9 Paige, 26.

21 Devenbagh v. Devenbagh, 5 Paige, 554, 558. 25 Newell v. Newell, 9 Paige, 26.

26 See Schroeder v. Chicago, etc. R. Co., 47 Iowa, 875.

27 Harrison v. Harrison, 4 Moore P. C. 96, 103; Lord Brougham's Opinion. See, too, H-v. P— (L. R.), 3 Prob. & Div. 126. The court should be satisfied, however, that there was no collusion between the parties. Pollard v. Wybourn, 1 Hagg. Eccles. 725; Sparrow Harrison, 3 Curtis, 16.

28 Norton v. Seton, 3 Phillimore, 147.

EXPERT TESTIMONY IN INSANITY CASES.

The increasing tendency of counsel retained in a case to rely upon the defense of insanity to accomplish an acquittal of the prisoner, and the latitude allowed them in introducing experts to testify to the prisoners insanity, and now especially the favor with which juries regard such experts, has given rise to numerous adjudications upon the subject of who should be competent to testify in relation to the prisoner's sanity or insanity. And the cases involving similar questions arising in contests as to the condition of a testator's mind are also numerous. When expert testimony was first introduced in trials great deference was paid to it, for the reason, no doubt, that an expert called as a witness represented the science as to which he was called to testify, and on account of his familiarity with it, having made it a study, he was recognized as being a better witness than those not specially skilled in his art. But of late this belief that an expert was more credible than an ordinary witness, has been in a great many cases destroyed. One thing in particular has tended to disabuse the minds of jurors that greater reliance should be placed upon the testimony of experts than that of ordinary witnesses, and that is, at the present time, the practice is to remunerate experts in proportion to the importance of the testimony they are to give. If, for instance, an expert were to receive a large fee for his testimony in a required case, it is obvious his mind would be more or less biased in favor of the side by which he was called to testify. When a witness comes into court to testify in scientific matters, it should in a measure affect his credibility, if he has accepted a retainer sufficient to bias his opinion. Lord Campbell, in Tracy Peerage,' says that "skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence."2

A jury might well be suspicious of an attorney who testified in his own case, and the

same rule should apply to the testimony of experts. An expert is ore specially skilled in the matters in which he is called to testify, and the question then arises, is one specially skilled in the detection of insanity a better witness than one who ordinarily testifies as to facts, not an opinion, where the question of one's sanity or insanity is in dispute. The doctrine is well defined by a long list of decisions, where the question is whether a particular person is insane, not only experts skilled in diseases of the mind, but attendants and friends who had occasion to note from their varied intercourse with the patient what his condition was, may testify.3 No attempt has been made to distinguish cases involving the insanity of a testator and the insanity of one on trial for a felony. In the former case it is one of the objects in having witnesses to wills, that they give testimony as to the sanity of the testator, and they are competent to judge of this.*

In the case of senile dementia, or that which is peculiar to old age, the evidence of those having business transactions with the patient, would certainly be entitled to as great weight as the testimony of experts, although the latter may have had occasion to see the party and converse with him. It has become quite well settled that a question arising as to whether a party was intoxicated at a given time or not may be disposed of by admitting ordinary persons who had observed the defendant in that state, to testify, as well as experts, for it is of such common occurrence that ordinary persons may be as competent to judge as the most learned specialists.6

Campbell, J., in speaking of temporary or emotional insanity says: "The rules of evidence as administered in this State, while they have opened the door very wide to the testi

3 Cram v. Cram, 33 Vt. 15; Fairchild v. Bascomb, 35 Vt. 398; Grant v. Thompson, 4 Conn. 203; Kinne v. Kinne, 9 Conn. 102; Real v. People, 42 N. Y. 270; Wilkinson v. Pearson, 23 Pa. 177; Castner v. Sliker, 33 N. J. L. 95-507; Titlow v. Titlow, 54 Pa. 216; Weems v. Weems, 19 Md. 334; Clark v. State, 12 Ohio, 483; Powell v. State, 25 Ala. 21; and see Beaubien v. Cicotte, 12 Mich. 459, citing numerous other authorities.

41 Redf. on Wills, 41-43.

5 Rutherford v. Norris, 77 Ill. 397; Rankin v. Rankin, 61 Mo. 295.

6 State v. Pike, 49 N. II. 399; Gahagan v. R. Co., 1 Allen, 187; People v. Easton, 14 N. Y. 562; Stanley v. State, 26 Ala. 26; 3 Park (Crim)., 25.

mony of experts without any over nice scrutiny as to their expertness, do not recognize such mental unsoundness as requires legal inquiry as necessarily involving scientific evidence, or as beyond the domain of common sense."7 If, then, an ordinary witness is competent to testify to the mental unsoundness in emotional insanity, it seems the rule should be extended to all forms of insanity, and the non-expert be placed on the same footing with the expert.

The question has sometimes arisen whether an expert may give his opinion upon the evidence rendered in the case, but it has generally been held by the courts, and very wisely too, that if this were allowed it would put the witness in the place of the jury and intrude upon the power given them by law. The court is to decide the law, the jury facts, and witnesses are merely to aid the court and jury in these cases, and if experts were to give an opinion upon the evidence the necessity for a jury would be obviated.8

There are always experts, or persons who call themselves such, ready and willing to testiy to one's insanity in consideration of almost any remuneration whatever, and in consequence it must be obvious there is often a conflict of testimony. This may not always arise from impure motives, and often does from mistakes unintentionally made. The late Guiteau trial presented some interesting points upon the subject of expert testimony in insanity cases. Here were experts ready to testify as to the prisoner's insanity without having seen him, and the testimony of non-experts almost obliterated in that of the scientific witnesses. It is the practice at the present time to give the expert a fee in proportion to the importance of his testimony, and of course an expert of universally acknowledged reputation, would command a larger retainer than one whose capacity is unknown. It is a question for the jury to determine after taking into consideration the amount of remuneration received by

7 People v. Finney, 38 Mich. 484. Quoting also the remarks of Lord Denman in Regina v. Oxford, 9 C. â P. 525, to the same effect.

8 Kempsey v. McGinniss, 21 Mich. 123; Perkins v. Railroad, 44 N. H. 223; Dexter v. Hall, 15 Wall. 9; Woodbury v. Obear, 7 Gray, 467; Brill v. Flagler, 28 Wend. 354; Bishop v. Spring, 38 Ind. 143; Phillips v. Starr, 26 Iowa, 349; Choice v. State, 31 Ga. 424; People v. Lake, 12 N. Y. 358. And see also the dicta of Ch. J. Shaw in Commonwealth v. Rogers, 7 Met. 505, which describes the point concisely and accurately.

the witness, to credit him or not, the same as any other witness produced at the trial. But it is no ground for reversal if at the trial it was not known that such retainer existed.9

One expert can not give his opinion of the opinion of another expert, nor can he testify as to whether a certain state of facts was enough to justify another expert in the formation of an opinion upon those facts. 10 When one is allowed to be an expert witness upon the stand, there are many cases going to show that he must have made the subject of mental diseases a special study.11 But there is some little difference of opinion upon this point. 12 It is a question of fact within the province of the jury whether the testimony of an expert is entitled to more weight than that of ordinary witnesses. The difference between an expert and non-expert is, the former gives the results of a process of reasoning which can only be understood by those specially skilled in those matters; the latter by a process of reasoning familiar to every one, and which a jury of average ability can comprehend. There is a long list of decisions going to show and extending the well settled doctrine, that experts in insanity, and in fact experts of all classes, may be questioned as to a hypothetical case. 13 The whole subject of expert testimony in insanity cases is a vast one, and it is well nigh impossible in a brief sketch to treat the subject with any degree of minuteness or to lay down anything more than a few broad rules underlying the whole subject. The admissibility of expert testimony has been gradually widened until it may most truthfully be said, there are few or no restrictions upon it. Courts are very slowly ascertaining the fact that expert testimony can with no more safety be relied on, than can the testimony of witnesses who make no pretensions toward expertness, and who speak from nothing but observation. ADDISON G. MCKEAN.

9 People v. Montgomery, 13 Abb. (N. Y.) Pr. N. S. 207. But see Lyon v. Wilkes, 1 Cow. 591.

10 People v. Hartung, 17 How. Pr. 151; Horne v. Williams, 12 Ind. 324; Walker v. Fields, 28 Ga. 237.

11 Commonwealth v. Rich, 14 Gray, 335; Commonwealth v. Fairbanks, 2 Allen, 511, citing Pool v. Richardson, 3 Mass. 330; Needham v. Ide, 5 Pick. 510; Commonwealth v. Wilson, 1 Gray, 337.

12 State v. Redick, 7 Kan. 143; Hathaway v. Nat. Life Ins. Co., 48 Vt. 335.

13 Wharton on Evidence, sec. 452 and cases cited.

SPECIFIC PERFORMANCE OF CONTRACT TO CONVEY LAND-QUESTIONABLE AND UNMARKETABLE TITLES.

CORNELL v. ANDREWS.

New Jersey Court of Errors and Appeals.

Title to lands in this State was derived through a mortgage given to Joseph D. Beers, President of the North American Trust and Banking Co., his successors and assigns," without words of inheritance. The bill states that the North American Trust and Banking Company was a corporation of the State of New York, and its president, by virtue of the statutes of New York, a corporation sole of that State, and therefor took an estate in fee in said lands, under the mortgage: Held, that the court would not, on an application for a specific performance of a contract to buy such lands, compel the vendee to complete his purchase, because such title was questionable, and there. fore not marketable.

Bill for specific performance. On final hearing on bill and answer.

R. Gilchrist, for complainants; C. H, Hartshorne, for defendant.

The CHANCELLOR,

This suit is brought to enforce specific performance of a contract for the sale of land in Hudson County. The price agreed to be paid is $65,000. The defendant resists on the ground that the title is not such as he ought not to be compelled to take; that it is at least a doubtful one. The complainants insist, on the other hand, that their title is good and free from all reasonable doubt. The objection made to the title is that it is derived under a mortgage given to "Joseph D. Beers, President of the North American Trust and Banking Company," which contained no words of inheritance, but conveyed the property to him, his successors and assigns. The defendant therefore apprehends, and is advised that the estate mortgaged was but a life estate. The bill states that the North American Trust and Banking Company was, when the mortgage was given, a corporation of the State of New York, duly created by virtue of and pursuant to a statute of that State, passed April 18, 1838, and entitled “an act to authorize the business of banking," and that Beers was then its president, and that by virtue of the twenty-fourth section of that act, he, as president, was a corporation sole of the State of New York, and therefore took an estate in fee under the mortgage, notwithstanding the absence of words of inheritance. On the hearing it was further urged that if Beers should not be held to such corporation sole, it should be held that the words "Joseph D. Beers, President of the North American Trust and Banking Company," were one of the names of the corporation; and that, in either case, the title in fee passed by the mortgage. In support of these propositions are adduced adjudications of the courts of New York that associations under that act were corporations

in fact. and that conveyances to the president were conveyances to the corporation, and also dicta of more or less weight, to the effect that those corporations were binominous, one of their names, being the one assumed, and the other that of the president (or other officer designated to hold and convey its lands), as such. By the provisions of that act, mortgages or other conveyances of real estate to the association were not to be made to it, but to the president, or such other officer as should be indicated for the purpose in the articles of association; and it was further provided that the president, or such other officer and his successors, from time to time, might sell, assign and convey the same, free from any claim thereon against any of the shareholders or any person claiming under them. It is insisted, on behalf of the complainants, that it is incumbent on this court to pass upon and decide, for the purposes of this litigation, the question raised in defense-whether the mortgage, which is the foundation of the title, conveyed an estate in fee or only for life. If such decision would have the force and effect of an adjudication in a direct proceeding for the purpose, and be an end of controversy on the subject, and establish the title, the court might well proceed to the determination of the question; but this suit is a proceeding in personam merely, and will bind those only who are parties to it. "It is a great, though perhaps a common mistake," said the court, in Pratt v. Eby, 67 Pa. St. 396, "to suppose that a doubtful title can be made marketable by an opinion of a court in a case stated between vendor and vendee." The real question to be decided in this case is whether the title which the complainant offers is a marketable one. If it is such a title as would be questionable, the court ought not to force it on the unwilling purchaser, even though, in its opinion, it would, on litigation, be sustained. Obviously, for the considerations before presented, the decision of the question in this suit would be but the opinion of this court on the subject, which, would still be open to litigation by parties claiming adversely to the title. It is conceded that on its face, and in the absence of the construction contended for by the complainants, the mortgage, for the want of words of inheritance, conveyed only a life estate. The answer admits that the North American Trust and

Banking Company was a corporation under the before mentioued statute, and that Beers was its president, but it denies that a greater estate than a life estate passed by the mortgage. The title to real estate can only be acquired, passed and lost according to the lex rei site, and a party must have a capacity to take according to the law of the situs, otherwise he will be excluded from all ownership. Story's Confl. of Laws, secs. 428, 430. The question whether the mortgage was in fact given to a corporation, whether aggregate or sole, or to a natural person, is one to be determined by our courts, and until it shall have been so decided in a direct proceeding, the title will be subject to

an objection materially affecting its marketable value. The exercise of equity jurisprudence respecting the specific performance of contracts is not a matter of right in either party, but of sound and reasonable discretion in the court. Story's Eq. Jur., sec. 742. And the court, in the exercise of that discretion, will not compel a party to take a title which may expose him to litigation, even though it may believe the title to be good. Pyrke v. Waddington, 10 Hare, 1; Dobbs v. Norcross, 9 C. E. Green, 327; Fry on Spec. Perf., sec. 573; Waterman on Spec. Perf., sec. 412. and cases cited. Said the court, in Tillotson v. Gesner, 6 Stew Eq., 313:

"The true rule is stated in 3 Pars. on Con. (6th ed.), *380, that if the character of the title be doubtful, although the court were able to come to the conclusion that on the whole a title could be made that would not probably be overthrown, this would not be good enough, for the court have no right to say that their conclusion or their opinion would bind the whole world, and prevent an assault on the title. The purchaser should have a title which shall enable him not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The court can not satisfactorily or conclusively settle in the absence of parties who are not before them in the suit to assert their estate or interest in the land."

It is quite clear that if this court were to compel the defendant to take the title in question, it would have no judicial certainty that he would not be subject hereafter to litigation to test before other tribunals, in direct proceedings, the very question which it would have decided in this suit. Much less could it be certain that he would not be embarrassed in disposing of the property to purchasers by the apparent defect of estate which he now urges in his defense. Under such circumstances, a decree of specific performance should be denied.

NOTE.-The following cases show what defects in title a court considers doubtful or unmarketable:

That a use had not been executed, Shapland v. Smith, 1 Bro. C. C. 75; [this case was disapproved in Vancover v. Bliss, 11 Ves. 465; Stapylton v. Scott, 16 Ves. 274.]

That a devise included a lease for lives. Sheffield v. Mulgrave, 2 Ves. 526.

That the premises had been inaccurately described, and their use limited to certain purposes, Bentley v. Craven, 17 Beav. 204; Brooks v. Drysdale, L. R. 3 C. P. Div. 52; Corless v. Sparling, L. R. 9 Irish Eq. 595; Wardell v. Trenouth, 24 Grant's Ch. 465; Foley v. McKeown, 4 Leigh, 627.

That a devisee in trust of a survivor of several trustees, could exercise a power of sale given to all, and the survivor, his heirs, etc. Macdonald v. Walker, 14 Beav. 556; Wilson v. Bennett, 16 Jur. 966; 5 De G. & Sm. 475; Cooke v. Crawford