ys in ey are ·lation ly, the :ic Afas the under House ing the with any House of by an into resign; stile to any nent on a mat esignation of the and a general electo follow this, is the uli-the final decree of or against the policy pro e frank to acknowledge the bethat if the Constitution of the nited States had been made in the light of the political knowledge we enjoy today, there would have been some provision for making the executive power responsible to Congress. Such a plan would have avoided the not infrequent and deplorable controversies between the President and Congress which not only have cast discredit on the authority of both these high functionaries of government but have paralyzed governmental action by the ridiculous deadlocks that have resulted. The present deadlock over the Peace Treaty is only one example of the failure definitely to fix responsibility for the making of treaties. Complaint has been made that the Senate should have been consulted in the making of the Peace Treaty. We coincide with that opinion as a matter of abstract principle; but no provision exists dent of the other's control in the mode, manner, and means of doing the work.-Kinsman v. Hartford Courant Co., Conn., 108 Atl. 562. 65. Respondeat Superior.-A solicitor and collector for a life insurance company, fatally injured by a street car when running across the street to take a car, was injured in the course of his employment, within the Workmen's Compensation Act; his necessary use of street cars in his employment exposing him to dangers not too remote in their causative relation to the employment.-Moran's Case, Mass., 125 N. E. 591. 66.- -Volunteer.-A person, by merely volunteering his services to another, or by assisting the servants of another without authority to employ such assistance, cannot establish the relation of master and servant, and so establish liability for injuries under the principles of law governing master and servant.-Houston, E. & W. T. Ry. Co. v. Jackman, Texas, 217 S. W. 410. 67. Workmen's Compensation Law.-An employe injured by negligent act of a third party employer within Workmen's Compensation Act (Gen. St. 1913. § 829) may maintain an action against such employer notwithstanding a settlement had with his own employer and the payment of the amount agreed upon. -Podgorski v. Kerwin, Minn., 175 N. W. 694. 68. Mechanic's Lien-Ejusdem Generis.-By the rule of ejesdem generis, where, in oil and gas lease, general words follow the enumeration of particular classes of minerals, the general words will be construed as applicable only to the same general character or class as those enumerated.-Wolf v. Blackwell Oil & Gas Co., Okla., 186 Pac. 484. 69. Test of. The test of whether lien claimant was a contractor or materialman is the relative value of the material and the labor supplied; the claimant being a materialman if the value of the labor is small in comparison with that of the material.-Ferger v. Gearhart, Cal., 186 Pac. 376. 70. Mortgages-Lien.-The lien of a judgment recovered against the mortgagor takes priority over a mortgage which was not executed as to be entitled to be recorded.-First Nat'l Bank v. Casselton Realty & Investment Co., N. D., 175 N. W. 720. 71. Negligence-Injury by Third Person.The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such act ought to have been foreseen.-Marton v. Jones, Cal.. 186 Pac. 410. 72. Last Clear Chance.-The essentials of last clear chance doctrine are that the injured party has come into a position of peril; that injuring party then or thereafter became, or by exercise of ordinary prudence ought to have become, aware, not only of that fact, but also that the party in peril either reasonably cannot escape from it, or aparently will not avail himself of opportunities for escape; that the injuring party subsequently has opportunity, by exercise of reasonable care, to avoid the injury, and fails to exercise such care.-Tullock v. Connecticut Co., Conn., 107 Atl. 556. 73. Railroads Imputable Negligence. Though a passenger in an automobile approaching a railroad is not chargeable with the driver's negligence, he is responsible for his own lack of reasonable care.-Martin v. Pennsylvania R. Co., Pa., 108 Atl. 631. 74. Reformation of Instruments-Equity.Equity has jurisdiction to reform written instruments in cases of "mutual mistake"; that is, a mistake reciprocal and common to all the parties to the transaction, as where there has been a meeting of the minds, an agreement actually entered into, but where the instrument in its written form does not express the real intention of the parties.-Literal v. Bevins, Ky., 217 S. W. 369. 75. -Mutual Mistake. Where parties had fully agreed on provisions of a lease contract and lessee had entered into possession, and by mutual mistake of parties or the mistake of one and the fraud or inequitable conduct of the other the written lease thereafter prepared and presented by lessor did not embody all of his covenants, equity has jurisdiction to reform lease to make it cover the contract actually agreed upon.-White v. Kelly, W. Va., 101 S E. 724. 77. 76. Robbery-Putting in Fear.-Robbery is accomplished if the owner is deprived of his property either by force or by putting in fear. -Graves v. Commonwealth, Ky., 217 S. W. 356. Sales Inspection. Ordinarily a buyer has a reasonable opportunity to inspect goods before payment, but such rule does not apply where the contract provides otherwise.-Ten Broeck Tyre Co. v. Rubber Trading Co., Ky., 217 S. W. 345. 78. Street Railroads-Last Clear Chance.Where the evidence showed nothing to reasonably indicate to a motorman any purpose or lack of ability on the part of an automobile driver inconsistent with the duty or intention of managing a light automobile in an ordinary careful manner until it was too late to avoid the collision, the doctrine of the last clear chance was not applicable.-Heath v. Wylie, Wash., 186 Pac. 313. 79.-- -Pedestrian.-A pedestrian was entitled to use the public ways for free and unobstructed passage, a use not restricted to crosswalks or sidewalks, or to the part not used by a street railway in a street where cars were operated.Crowell v. Boston Elevated Ry. Co., Mass., 123 N. E. 607. 80. Sunday-Killing by Mistake.-Since hunting game on Sunday is expressly prohibited by P. S. 5957, shooting of man on Sunday by mistake for game was unlawful act voluntarily done, for which defendant was liable, whether it resulted from carelessness or accident.White v. Levarn, Vt., 108 Atl. 564. 81. Police Power.-Under the police power the legislature may impose such reasonable penalty for violation of the Sunday Law as it may deem necessary to make the law effective.State v. Murray, Neb., 175 N. W. 666. 82. Trusts Restraint on Alienation.-Restraints on alienation of property by way of spendthrift trusts are void as limitations attached to legal interests, and valid as respects equitable fees in real estate and interests in personal property.-Haskell v. Haskell, Mass., 125 N. E. 601. 83. -Substituted Trustee.-Appo.tment of a substitute trustee, appointed under Laws, c. 147, § 5, cannot be attacked colla rallyHanscom V. Malden & Melrose Gaslig Co., Mass., 125 N. E. 626. ༣ Central Law Journal, ST. LOUIS, MO., MARCH 26, 1920. SHOULD THE EXECUTIVE POWER BE SEPARATED FROM THE OFFICE OF PRESIDENT AND MADE RESPONSIBLE TO CONGRESS? The Canadian Law Times (March, 1920) charges that the United States is an Autocracy and not a Democracy because all executive power is placed in the hands of the President. While using President Wilson as a "bad example" the writer disclaims any intention to attack the President personally but, on the contrary, concedes that he is a man of exceptional ability. He contends, however, that our Constitution, by giving such great and uncontrolled powers to the chief executive makes it impossible to place the United States in the category of democracies. In only one respect may Great Britain claim any advantage, if it be an advantage, in respect of its form of government over that of the United States and that is in separating the executive power from the executive or sovereign himself, making the former answerable to Parliament and the latter the mere figure head of national power. "The sovereign of the British a Isles," says the writer, "for years has been a great assenting functionary to the delibgerate acts of the Legislative and Executive is departments of the Government. The Judile. ciary is pre-eminently independent both of tiv ab VI reti d challenged power to represent the nation. in controversies with foreign powers; and his power to make treaties restricted only by the necessity of securing the concurrence of the Senate. He contrasts these powers with the powers of the King of England, who is an executive without executive power. On this important point of the separation of the executive powers from the executive the writer says: "The executive officers are always in either one House or the other, and they are open to interrogative enquiries in relation to their several departments-the Army, the Navy, Foreign, Colonial and Domestic Affairs; and the Premier of the day as the acknowledged head of all is specially under obligation to make declaration to the House in which he is of anything involving the Peace of the Kingdom or its war with any other Nation. A vote of the House of Commons hostile to any act done by an individual minister will cause him to resign; and a vote of the House hostile to any avowed policy of the Government on a mat Executive Government; and a general electer of moment causes the resignation of the tion which is not long to follow this, is the inevitable vox populi-the final decree of the people for or against the policy proposed." We are frank to acknowledge the belief that if the Constitution of the United States had been made in the light of the political knowledge we enjoy today, there would have been some provision for making the executive power responsible to Congress. Such a plan would have avoided the not infrequent and deplorable controversies between the President and Congress which not only have cast discredit. on the authority of both these high functionaries of government but have paralyzed governmental action by the ridicu lous deadlocks that have resulted. The present deadlock over the Peace Treaty is only one example of the failure definitely to fix responsibility for the making of treaties. Complaint has been made that the Senate should have been consulted in the making of the Peace Treaty. We coincide with that opinion as a matter of abstract principle; but no provision exists in our Constitution that would have even justified the President in seeking the opinion of the Senate in advance. Since the President is in no sense responsible to the Senate for his actions, the latter might very properly have declined to enter in advance into any partnership arrangement with him. in the making of a treaty. If, however, the treaty making power had been confided to a Premier or Secretary of State responsible to the Senate and not to the President, the making of a treaty would have been free from the embarrassments that have interfered with the making of the present treaty. Neither the President nor the Senate are to blame for the present unfortunate situation, but rather the provision for the division of the treaty making power between with no method provided to determine differences of opinion except by the surrender, on the part of either of the joint donees of the power, of their convictions in the mat ter. When the Constitution was framed there were in existence no other republics, whose form of government afforded any feasible pattern for the government which the framers of the Constitution desired to set up. It is said that the framers of the Constitution were under the influence of Montesquieu and other political philosophers of the 18th century, but their real model was the English Constitution itself as it existed in the time of George III. This is clearly proven by the declaration of Madison in the Federalist (Law, Ed., Vol. I, p. 330) that "Montesquieu viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty." Madison, in that same letter, compares the philosophy of Montesquieu with the existing British institutions and then points out how nearly the framers of the Constitution followed the British model. It must be borne in mind that the idea of separating the Executive Power from the Executive and making the former responsible to the legislature did not take concrete form in England until many years after the American government was formed nor did the idea occur, so far as we are able to learn, to the framers of the Constitution. This is evident by Hamilton's paper in the Federalist (LXIX) wherein he compares the power of the King of England with that of the President down to the minutest detail. He shows how the powers of the king were transferred to the President, curtailed, however, in many particulars so as to give to each department of the new government a more equal share in its administration. In defending the veto power of the President in comparison with the power of the British monarch, Hamilton says: "The King of Great Britain, on his part, has an absolute negative upon the acts of the two houses of Parliament. The disuse of that power for a considerable time does not affect the reality of its existence; and is to be ascribed wholly to the crown's having found the means of substituting influence to authority." On the subject of the treaty making power the framers of the Constitution again followed their British "model" simply restricting the exercise of the power. They had no idea of a treaty making power confided to a responsible ministry for Hamilton again says (ib.): "Every jurist of Great Britain knows, as an established fact, that the prerogative of making treaties exists in the crown in its utmost plenitude; and that the compacts entered into by the royal authority have the most complete legal validity and perfection, independent of any other sanc tion." It is clear, therefore, that the framers of the Constitution were governed in their work largely by Montesquieu's philosophy and his high regard for and close analysis of the British Constitution as it then existed. Their main purpose was to divide the powers of government into the three parts which Montesquieu regarded as essential to any republican form of gov ernment and to keep these three co-ordinate reservoirs of power as independent of each other as possible. The idea of separating the Executive Powers from the Executive, so as to put these powers, without putting the Executive, under the control of the legislature was a further development of the English Constitution which probably never occurred to the makers of the Constitution. This idea of a responsible ministry is not without many distinct and clear advantages, and it is a matter of note that practically every new government formed in the last one hundred years has followed the English Constitution in this respect rather than the American Constitution. NOTES OF IMPORTANT DECISIONS. MAKING A CONTRACT FOR INSURANCE COMPANIES IN THE INTEREST OF THE INSURED. We hold no brief for insurance companies. We are well aware of the shrewd ness and care with which well-paid and competent counsel prepare every clause in the policy. We also know that for that reason perhaps and because of the fact that beneficiaries are not usually competent themselves to understand the conditions of the policies which they take out nor able to pay for competent advice in respect thereto, it is a rule of construction of insurance policies, that, where the language of the policy is inadequate, construc tion adopted will be that which is most favorable to the insured. But conceding all of this we are unable to follow the Appellate Court of Indiana in its uncertain path toward a proper construction of a sprinkler policy which was the basis of an action in the recent case of Maxwell v. Springfield Fire Insurance Co., 125 N. E. Rep. 645. Loss from damage due to leakage in sprinkler systems installed in large factories, is a comparatively new branch of insurance. Such systems are installed at the suggestion of fire insurance experts to reduce the hazard of fire. In most cases it has introduced another and very serious hazard-loss from leakage. In these stand pipes water is held under high pressure ready to be released when the tempera ture rises to a certain point when the whole interior of the building is flooded. But this is a risk that often falls in between other risks already covered by other insurance and it became the difficult duty of insurance counsel to so word these policies that it should not make the companies insuring against leakage liable for losses that should properly come within the purview of a fire policy or, on the other hand, be properly compensated for under a tornado policy. In the policy in this case the company properly bound itself under the general obligation "to pay indemnity for all direct loss or damage by sprinkler leakage, except as hereinafter provided." Every counselor knows that it is better to state the obligation of a contract or general terms with exceptions than to state the exact extent of the obligations in detail. Among the seven exceptions to the contract were two which placed the liability of the insurer for losses midway between catagories covered by fire and tornado policies. They were as follows: "Nor for loss resulting from the leakage of water, if such leakage is caused directly or indirectly by fire." "Nor for loss caused by lightning (whether fire ensues or not), cyclone, tornado, windstorm, earthquake, explosion, or blasting." It is quite evident that if a fire broke out in such a building the sprinkler system might very probably spring a leak even before the temperature reached the required point and damage goods by water. Such damage is clearly within the contemplation of the parties to the fire policy especially since the sprinkler system is installed at the suggestion of the fire insurance company and for the very purpose of reducing that hazard. On the other hand, it is clear that a tornado might wreck the building, tearing the roof off and causing the sprinkling system to leak and add greatly to the damages caused by the storm. This was the state of facts in the principal case, the petition alleging that "on the 25th day of April, 1915, a severe windstorm, cyclone, or tornado swept over said city where said factory was located; that said storm tore a large part of the roof from that portion of the factory which is situated on the east side of Eastern avenue, and broke the pipes and attachments of the sprinkler system in the factory, so that the water and mud from the sprinkler pipes was precipitated and thrown in and upon the floors and upon the finished and unfinished products, stock, materials, and machinery in the building, thereby damaging the plaintiff in the sum of $21,500. To this petition the trial court sustained a demurrer interposed by the defendant on the ground that such loss was not covered by the |