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policy. On appeal the Appellate Court of Indiana took a different view and sent the case back for trial on the theory that the leakage was within the purview of the policy and not directly due to the windstorm. On this point the Court said:

"The windstorm tore away a part of the roof of the factory, and broke the pipes and connections of the sprinkler system, and that constitutes a loss by windstorm. The extent of that loss could be ascertained by estimating the cost of restoring the roof, the pipes, and connections. But the damage to the merchandise caused directly by the water from the sprinkler system is an entirely different loss. For the purposes of this policy, the wind cannot be regarded as the direct and immediate cause of that loss, but must be regarded as the indirect and remote cause thereof, for the reason that the very hazard which makes this species of insurance possible intervened."

The exception (No. 4) provides in clear terms that the insurance company should not be responsible "for loss" caused by lightning, cyclone, etc. This does not mean loss of any kind but loss from leakage due to lightning, cyclone, etc. The term "loss" in a policy generally refers to the character of the loss insured against. In a fire policy it is a loss by fire; in a sprinkler leakage policy the term, "loss," unless otherwise defined, refers to loss by sprinkler leakage. In a policy of the latter kind the company insures generally against all losses from leakage except losses from leakage occurring in certain specified ways. Otherwise the exceptions as to lightning, fire, cyclones, etc.. would be as meaningless as if the exceptions related to wireless telegraphy or to the inhabitants of the moon. The policy is not concerned with losses other than those due to sprinkler leakage. To construe the exceptions as referring to losses in no sense within the general scope of the policy and denying their application to situations they were evidently designed to cover is to make a new contract for the parties.

IS LOSING PARTY IN A CASE ESTOPPED TO APPEAL BY COMPLIANCE WITH JUDG MENT?-It has not infrequently been declared that if a money judgment is paid or an order or decree complied with, there is an end of the proceeding. But it has been held in a recent case that the losing party can pay a judgment or comply with a decree and yet appeal his case. Josevig-Kennecott Copper Co. v. Howarth Co., 261 Fed. Rep. 567.

In this case the appellee in a suit against the appellant and its trustees for the specific performance of a contract, obtained a decree requiring the appellant to transfer to the ap

pellee 260,000 shares of the appellant's treasury stock. The appellee moved to dismiss, on the ground that since the decree the appellant has complied therewith and transferred the stock to the appellee, and the latter has sold and disposed of the same to a number of purchasers, who now own the same.

The Circuit Court of Appeals (9th Cir.) denied the motion of appellee on the ground that where the trial Court would not be powerless to afford the appellant substantial relief the appeal will be heard. The Court contended that on reversal, the court below could give the appellant adequate relief notwithstanding that the shares of stock have been transferred tc appellee. The Court said:

"The appellant by its affidavit shows that the said stock was issued and transferred to the appellee more than 90 days after the date of the decree, and when a supersedeas could not be had, and that this was done solely because of duress exercised by the appellee by means of threats to institute contempt proceedings for the appellant's failure to comply with the order of the court. There having been no judg ment for costs in the court below, the appellee argues that there is no longer a pending controversy between the parties to the suit. It is true that courts do not try academic questions, where neither party will be affected by the result; but by the decided weight of authority it is established that compliance with the judg ment or decree of a court by payment or performance is no bar to an appeal or writ of error for its reversal, particularly where repayment or restitution may be enforced or the effect of the compliance may be otherwise undone, in case of a reversal.' 3 C. J. 675."

There can be no doubt of the correctness of the Court's decision in this case. Sometimes a losing party is confronted with the alternative of complying with the judgment of the Court or giving a supersedeas bond, if he ap peals, so large in amount as to be prohibitive. If compliance with the Court's judgment prevented an appeal, not a few losing parties might be deprived of this valuable right. In Dakota County v. Glidden, 113 U. S. 222, 5 Sup. Ct. Rep. 428, the Supreme Court of the United States states the rule as follows:

"There can be no question that a debtor against whom a judgment for money is recov ered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money, and a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal."

PROOF OF SUICIDE IN ACTION ON INSURANCE POLICY.

A clause providing that the assurance company shall not be liable if the assured commits suicide within a specified period is a common one in policies of life assurance, and if a claim is made under such a policy the company must resist payment on the ground of suicide, if it wishes to rely on that defense.

When such a case comes to trial the Court must decide whether the evidence is sufficient to prove suicide or not, and in this connection the case of Dominion Trust Company vs. N. Y. Life Insurance Company, decided by the Privy Council and just reported in the Canadian Law reports, is of vital importance, as insurance totalling $170,000 was involved, and the highest court in the British Empire lays down some important principles governing cases where suicide is sought to be proved.

In this case W. R. Arnold of Vancouver, Canada, died from a gunshot wound, either accidental or self-inflicted, on October 12, 1914, and less than a fortnight before he had taken out $100,000 insurance in the N. Y. Life Insurance Company. He also carried $50,000 in the Mutual Life of Canada, placed in November, 1912, and $10,000 in the Sovereign Life, taken out in October, 1912.

All these policies contained the usual. clause exempting the company from liability if the assured committed suicide within two years from the date of the policy, and the three companies named resisted payment on the ground that Arnold had, in fact, died by his own hand on the 12th day of October, 1914.

First of all, the insurance companies attempted to prove, and did prove, a strong motive for suicide on Arnold's part. Lord Dunedin, in delivering the judgment of the Privy Council, refers to the evidence of motive in the following words:

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"Arnold was in a quite hopeless financial position. Enjoying a salary of $14,000 a year, he owed at the time of his death about $1,000,000 which he had not the faintest chance of repaying. But, further, it was not a case of simple indebtedness. He had been guilty of a long course of embezzlement in his position as managing director of the Dominion Trust Company. As he had confessed about a fortnight before to Hodges, the government inspector, who had been sent to investigate the affairs of the company, he had committed crimes for which he was liable to be sent to the penitentiary. He was on the brink of exposure and disgrace as well as of irretrievable financial ruin. He had made an appointment on the day on which his death occurred to meet Hodges, in order to give explanations and exhibit securities. He knew that the result of such examination would be to confirm what Hodges already knew, and he knew that the presentation of Hodges' report to the government authorities meant the end so far as he was concerned. The counsel for the Trust Company was very anxious to demonstrate that there was no particular disclosure which on that particular day he had to dread-that Hodges knew the worst already. That, however, is not the point. The point is that the end was approaching, and was even nearer as Hodges' investigation proceeded and the time for sending in his report drew nigh. Further he was in absolute want of ready money. He owed small sums right and left, and he had no more than a few dollars in his bank account. In the whole circumstances, if ever there can be said to be motive for selfdestruction, such motive was present in this case."

Although the above quotation is a strong one, Lord Dunedin goes on to point out that "motive, however, can never be of itself sufficient. The utmost that it can do is destroy or attenuate the inference drawn from the experience of mankind that selfdestruction being contrary to human instincts is unlikely to have occurred. The proof of suicide must be sought in the circumstances of the death."

Coming to the circumstances of Arnold's death, it appeared that "Arnold had a small country ranch. He was not a sportsman, and had no experience of shooting nor any

Familiarity with the management of guns. On the Saturday, two days before his death, he called at the house of a friend, Gibson, and asked him to come to the ranch in his (Arnold's) motor. At the ranch they met a man called Bladen, who was acting as overseer there, and who was, to Arnold's knowledge, in possession of a gun, and Arnold asked him to get his gun and bring it along. Arnold had come provided with cartridges, which he had instructed his chauffeur to buy, Gibson suggesting the probable bore to be selected. The cartridges were handed to Bladen, who loaded the gun with the cartridges. The gun was a single-barreled magazine gun, with the magazine arranged to take only two cartridges. The action was what was described as a pump action, i. e., the fore end is made to slide backwards and forwards, which motion cocks the hammer and inserts the cartridge from the magazine into the breech. A grouse was sighted, which flew and perched on a tree. Arnold had shot at it and missed. After the shot he tried to recharge the gun, but the action stuck, and he handed it to Bladen, who got it to work and eject the discharged cartridge. Bladen is uncertain whether he put another cartridge into the magazine but thinks it likely he must have done so. Arnold had never been seen with a gun before that day. No more shots were fired, and Arnold and Gibson returned to town in the motor, taking the gun and cartridges along with them. In the car Arnold began to handle the gun and was so clumsy that Gibson thought it was dangerous, and suggested that the gun had better be discharged. The car was stopped, and one shot was fired into the ditch. Arnold then said it was all right, and Gibson was satisfied. The gun was taken to Arnold's home and put in a cupboard. On Monday morning Arnold's chaffeur arrived with the car to take his master into town. One of the children asking Arnold whether he was going to take the gun with him, he said, "Well, probably I had better, or mother won't have any rest," and he then took the

gun out of the cupboard. He next told the chauffeur to put the remaining cartridges into the car, which was done. They drove to the garage, which was at a different place from the house, being situated on a small property which was being laid out. The garage had rooms over it which were occupied by a gardener. Arriving at the garage Arnold took out the gun and leaned it up against the wall. He then went out and spoke to the gardener, and walked through the grounds, giving orders. Returning to the garage he told the chauffeur to back out the car and get into the road. The gardener coming into the garage found Arnold with the gun in his hand, while a stick which he always carried was standing against the wall. The gardener noticed that the breech-block of the gun was open, so that a cartridge was partially visible. He said to Arnold, "The gun is loaded." Arnold took no notice of the remark, but told the man to go outside and clear away a pool of water which had collected. The gardener did so, and Arnold was left in the garage alone with a son of the gardener, aged eight. This boy said that he saw Arnold hang the stick on the hose pipe and take the gun in his hand. He had then looked the other way, so that he did not see what Arnold was doing. A shot was heard. The gardener rushed in and found Arnold lying on his back dead, with the gun on the ground on one side of him and the stick on the other."

After referring particularly to this evidence, Lord Dunedin remarks that, "if death was intentionally self-inflicted the modus operandi was simple enough. Having by orders got rid of the chauffeur and the gardener, he either placed the gun with its butt against the wall and its muzzle pressed close up against his heart, and so maintained it by pressure in a horizontal position, or he placed the butt on the ground and leaning over it brought the muzzle at right angles to the line of his body. Then in either case he released the trigger by means of his stick. On the shot taking effect he fell on his back, the gun falling

to one side of him, the side of the wound, the stick to the other, the side of the hand which had directed it."

The Dominion Trust Company attempted to meet this evidence by the argument that Arnold's death was accidental, and the question was whether the evidence summarized above properly led to the inference of suicide or accident, and the Privy Council adopted the suicide theory for the following reasons:

"First, as to the fact of the gun being loaded. If the gun being empty when brought to the garage Arnold loaded it there in the absence of the chauffeur and the gardener, it would be almost conclusive in favor of suicide as for no conceivable reason could he wish to load the gun in the garage. Accordingly, the theory is that after the shot at the grouse Bladen had put in another cartridge. That would put two cartridges in the gun. One was discharged in the ditch, but through ignorance Arnold thought that that emptied the gun. In reality, however, one remained, and this is borne out by the remark of the gardener that it was loaded. The gardener being gone it is supposed that he tried to get the cartridge out, and in so doing accidentally discharged the gun and shot himself.

"Now the character and position of the wound were such that it could not be selfinflicted by anyone holding the gun in the ordinary way and carelessly or unknowingly pulling the trigger. It is impossible for anyone to hold the gun (which their Lordships had the advantage of seeing) by the grip and place the muzzle at right angles to his own breast. The Trust company therefore suggest that, finding the action stick, he, in order to exert more force, either jammed the butt of the gun against the wall, or put it on the ground, and then leaning against the muzzle with his breast proceeded to apply force to the fore end, and that while he was doing so the gun went off. There seemed to be several quite fatal objections to this theory. In the first place, the hypothesis being that the gun was loaded, and that he knew it was loaded, it is almost inconceivable that anycne, however inexperienced, would prefer to put the muzzle against his chest and the butt to the wall or the ground rather than to reverse the position and put the butt to his chest and the muzzle to the wall or ground, a position which would make it

just as easy to apply force at the fore-end if he ever attempted such a position at all, which seems extremely improbable in itself. In the second place, if the jamming of the gun against the wall or ground was resorted to in order to keep it steady so as to exert strength, the natural place against which to jam it would be the middle of the breastbone and not against the left nipple. In the third place, there would be no reason whatever for having the stick in his hand, where it would only be an incumbrance, and he must have had it in his hand for it was last seen by the gardener propped against the wall, and by the little boy hung on the hose-pipe, neither of which positions would account for its being found on the floor beside the body."

The decision of the Privy Council, therefore, was that the defense of self-destruction was made out, and that the insurance companies were not liable on account of the suicide clause in the policies.

M. L. HAYWARD.

Hartland, N. B., Canada.

THE AMENDATORY POWER UNDER THE CONSTITUTION, PARTICULARLY WITH REFERENCE TO AMENDMENT 18.

The 18th Amendment to the Federal

Constitution, relating to the subject of prohibition, is anomalous in that it does not seek to amend any clause in the constitution; but, on the contrary, delegates a new power-a power unrelated to any specified in that instrument. The question therefore arises as to whether this is a valid amendment, even though ratified by a threefourths vote as provided in Article V.

Prior to the adoption of the Constitution, all governmental functions were exercised by the different States. These States were independent communities possessing sovereign powers, though bound together in at league under the Articles of Confederation.

The instrument submitted for adoption by the Convention of 1787 was professedly a suggestion of agreement, made to the people acting as units determined by state

lines-a covenant of government to be binding on those and those alone who assented to or "ratified" it. It embodied the results of a series of compromises between conflicting interests. It delegated certain. powers to a limited government and restrained the exercise of others by the States. Sovereignty was in the people, who transferred certain authority from their state to the new national government. All other powers were by them reserved.1

While these changes were in the nature of burdens assumed by the States in that they constituted privation of authority, nevertheless it was the people of the individual States who altered their condition in consideration of similar change by the people of neighboring States. It was, therefore, an agreement between peoples residing in different areas and under separate constitutions, and not between the governments themselves-a contract with its quid pro quo and its terms and limitations. This constitution was intended to be permanent excepting in so far as it might be changed in accordance with the covenant contained in it allowing alteration.

The Constitution provides for amendment. No other method of alteration is sanctioned.2

"The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution. or, on the application of the legislatures of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, provided that no amendments which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its

(1) Const. of U. S., Amend. X. Kansas V. Colorado, 206 U. S. 40-118.

(2) See the Federalist (Ford's Ed.), No. 85, pp. 585-588; No. 43. See Cohens v. Virginia, 6 Who. 382.

consent, shall be deprived of its equal suffrage in the Senate."3

This article of the Constitution is only one of numerous delegations of authority in the agreement of government. It constitutes a binding consent in advance to alter by way of amendment and not otherwise, any of the powers granted. It does not speak of anything in addition to or supplemental by way of a new delegation of authority that would not come within the meaning of this word amendment.

The word used is AMENDMENT. "Amendment" means a change or altera

tion of what is.*

It does not mean a revision of the Constitution, but "an addition or change within the lines of the original instrument."5

There must be something to changenot an instrument merely, for that is just form, but the power of which that instrument is evidence-not the addition of some

thing totally disconnected, but the change that necessarily has relation to the matter amended-an alteration of a provision contained in the constitution.

And this is the sense in which the word "amendment" is used throughout The Federalist."

The covenant as to amendments, therefore, cannot be construed to be an assent to the creation by three-fourths of the States of powers entirely unrelated to those already delegated. It is not a consent to an organic act of government by less than all the States. Such acts being within their reserved sovereign rights must be passed upon by the people of each State for themselves.

Suppose that A and B, two private persons, were to enter into a contract with C

Const. of U. S., Art. V.

(3) (4) Re, Penna Tel. Co., 2 Chest. Co. Rep. 131. (5) Livermore v. Waite, 36 Pac. 424, 426, 102 Cal. 113.

(6) See above cases. Woodruff v. Pickle, 28 Super. Ct. 622; Hardin v. Boll, 113 U. S. 50-168; Sheridan v. Salem, 12 Pac. 925, 928; Landbeck v. Pilmair, 43 N. W. 271; Brake v. Collison, 122 Fed. See Meigs Growth of the Constitution, pp. 272-277.

2.

(7) The Federalist (Ford's Ed.), 291, 585-588.

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