thority or precedent for a different construction as to the effect of the decree within and without the state. To so hold would work partial defeat of the legislative policy, which every one must admit is in the interests of good morals. If the remedy is not as complete as it might have been, that will not affect the execution of the law. That such was the legislative intent is obvious. Similar statutes have long existed in other states, 2 Nels. Div. & Sep., par. 582a. Two classes of statutes upon this matter are discussed in the authorities: First. Those which prohibit marriage within the limited period, but do not declare the second marriage void. It is held that such statutes are penal, and have no extra-territorial effect. In such a case, therefore, a marriage in another state, which is lawful there, will be held to be valid in the state of the domicile, and where the decree was obtained. The other class of statutes are like ours in reference to this matter. They declare the subsequent marriage void from the beginning, unless the parties shall have been divorced for a limited period. In such cases a subsequent marriage within the period is held void, although entered into in another state. This is upon the ground that the parties are not unmarried persons, and therefore not capable of lawfully contracting marriage anywhere. Under such conditions it would follow as a matter of course that the statutory provision is to be deemed as qualifying the effect of every decree of divorce thereafter rendered. This question is so fully and so well considered in McLennan v. McLennan, 31 Oreg, 480, 50 Pac. Rep. 802, 38 L. R. A. 863, 65 Am. St. Rep. 835, that it is only necessary to refer to that case for a full statement of the argument. The statute of Oregon simply declared what I conceive to be the effect of several sections of our Civil Code, construed together, with the difference that the period during which the parties were declared incapable of marriage was for the time to take an appeal, and during an appeal pending, if one were taken. The parties married in the state of Washington during the period of the prohibition. It was held that the divorce was only partial, and would not be complete until the expiration of the limited period. The distinction between this class of cases and those cited by appellant is clearly stated. To the same effect are the cases of Wilhite v. Wilhite, 41 Kan. 159, 21 Pac. Rep. 173, and Conn v. Conn, 2 Kan. App. 419, 42 Pac. Rep. 1006. See, also, Calloway v. Bryan, 51 N. Car. 570; Cox v. Combs, 8 B. Mon. 231."

IS A FIRE INSURANCE POLICY Α PROMISSORY NOTE, PAYABLE IN EVENT OF FIRE?

The essentials of a negotiable promissory note are that it be given for a valuable consideration and for a definite sum, payable unconditionally at a time certain, or on the happening of a fact sure

to occur.

Fire insurance policies are personal contracts of indemnity against loss or damage from an uncertain element, upon conditions both antecedent and subsequent.

The impression in many quarters that the issuance of a policy of fire insurance, the payment of the premium stipulated therein, and a fire, are all that is necessary to create a liability upon the part of the insurer, regardless of the conditions and stipulations contained in the policy; in other words, that the policy is, practically, a promissory note, payable if and when a fire occurs. It is singular that such a view should be entertained and persistently adhered to by courts in any jurisdiction; and there is, perhaps, not a judge in America who would not individually disclaim it; and yet the books are full of the reports of decisions against insurance companies which have been rendered pursuant to this startling misconception of the rights of an insured under his policy. There is no more justification for judicial decisions of this character than for the idea held by some recording agents, that insurance companies are organized for their particular benefit. I invite you to consider the attempts along one certain line, to convert the fire insurance contract by judicial reconstruction, into a promissory note payable in the event of fire.

The forms of policies in general use throughout the country contain the provision, familiar to you all, against other insurance, incumbrances, change of possession and the like, unless consented to by an indorsement in writing thereon. These policies contain the further condition that no officer, agent or representative of the company shall have the power to waive any of the provisions thereof, except such as may be waived by indorsement in writing, and only in that prescribed mode. Nevertheless, for many years, some American courts, whose decisions ordinarily carry great weight, in utter disregard of the right of parties to make their own contracts and of elementary principles which control in the construction of all contracts, and in the trial of of all cases at law and in equity, have held that the knowledge of a recording agent of an insurance company of facts, information concerning which he had at the time the policy in suit was written, is binding upon the company and constitutes a waiver by the company of the particular policy condition or conditions violated by the facts known to the agent when the policy was delivered. Thus in many jurisdictions fire underwriters have been, and may yet be, at the mercy of forgetful or dishonest recording agents and negligent or unscrupulous policyholders.

The theory upon which these decisions have been rendered is best and most fairly stated by Judge Thayer, of the United States Circuit Court of Appeals for the Eighth Circuit, in the majority opinion in Northern Assurance Company V. Grandview Building Association, 101 Fed. Rep. 77, which case has, however, been overruled by the Supreme Court of the United States:

Power of Agent. "The doctrine in question rests upon the ground that facts made known to the agent of an insurance com pany who is empowered by it to solicit insurance, countersign and issue policies and collect premiums is the knowledge of his principal, and that a fraud would be perpetrated if the insurance company, through the medium of its agents, was allowed to deliver one of its policies and accept the premium thereon, with knowledge of facts which, under its provisions, render it void ab initio. To prevent the perpetration of such frauds the courts have very generally held the insurer estopped from taking advantage of a condition or conditions found in one of its issued policies, which, in the light of known facts, rendered the same void from the time of its delivery, or they have indulged in the charitable presumption that the insurer intended to waive the benefit of such a provision, or that, through accident or mistake, it failed to modify the condition before the delivery of its policy, as inbl do, so as to render it valid."

In the opinion from which I have quoted,decisions from several states, including Nebraska and California, and a number of text-books on the law of insurance, including the valuable work of Judge Ostrander, are cited to sustain the doctrine, subsequently, and in the same case, repudiated by the United States Supreme Court. But though, as already indicated, this view finds support in the utterances of some courts, it has never been accepted as good law by any standard law writer. Judge Ostrander himself is my authority for the statement that he disavows it. What he does intend in his reference to the cases so holding (Ostrander Fire Ins., Sec. 243) is to recognize the fact that courts which make over the insurance contract to suit themselves and which disregard the elementary rule of evidence which does not permit a written contract to be varied by parol testimony, base their decisions upon the assumed equitable principle "that the insurer, having accepted the premium with full knowledge of the other insurance, ought not to be permitted to escape performance of the obligation it has assumed and for which it has received the consideration demanded." Of course, these courts, in thus giving free play to their notions of what an insurance policy ought to provide, have stricken out of the contract the condition restricting the powers of agents and prescribing the mode of the exercise of such powers as they possess.

The opinion and judgment of the Circuit Court of Appeals in the Grandview Building Association case was principally grounded on the previous decisions of the same court in Firemen's Insurance Company v. Norwood, 69 Fed. Rep. 71, which grew out of a fire at Larned, Kans., and in which the court, in an opinion written by Circuit Judge Caldwell, attributed to a recording agent at that place the powers of a general agent, and held the company responsible for what this local agent

had done, as if his acts had been done by a general agent. It is submitted that a mere ticket agent of the railroad which goes through the town of Larned, Kans., and who sells tickets which have on their face the lithographed signature of the general passenger agent of the railroad, might, with the same propriety, be treated as a general agent of the railroad company and clothed with all the corporate powers which may be exercised by any general agent of a corporation.

Some other Federal courts and several of the state courts have held in substance that an insurance company is bound by the acts and conduct of an agent who has power to solicit insurance, make examinations and surveys of the premises, take applications and forward them to the home or branch office, deliver policies and collect premiums.

The cases upon this point in different jurisdictions, and frequently in the same court, as for instance, in the New York Court of Appeals, are apparently in irreconcilable conflict; but an analysis of all the decisions which accord with this false theory will disclose that in them all is the complete disregard of certain fundamental principles already referred to. In the opinion of the United States Supreme Court in the Grandview Building Association case, 183 U. S. 308, it is suggested that these cases assume that the recording agent had full knowledge of all the facts; that such knowledge must be deemed to have been disclosed by him to the company, and that consequently it would operate as a fraud upon the assured to plead a breach of the conditions; but, says the court, speaking through Mr. Justice Shiras:

"This mode of reasoning overlooks both the general principle that a written contract cannot be varied or defeated by parol evidence and the express provision that no waiver shall be made by the agent except in writing indorsed upon the policy.'

Every well-informed layman knows that it is an elementary rule of evidence, enforced in all courts, that parol testimony is inadmissible to contradict or vary the terms of a valid written instrument. In Dewees v. Manhattan Insurance Company, 35 N. J. L. 366, the reason for this rule is thus tersely stated by Chief Justice Beasley, of New Jersey:

The common

Written and Parol Evidence. good requires that it shall be conclusively presumed in an action at law, in the absence of deceit, that the parties have committed their real understanding to writing. Hence it necessarily follows that all evidence merely oral is rejected whose effect is to vary or contradict such expressed understanding. Such rejection arises from the consideration that oral testimony is unreliable in comparison with that which is written. It is idle to say that the estoppel, if permitted to operate, will prevent a fraud or inequitable result; most parol evidence contradic➡

tory of a written instrument has the same tendency; but such evidence is rejected, not because, if true, it ought not to be received, but because the written instrument is the safer criterion of what was the real intention of the contracting parties."

This is a rule of universal application, and is enforced in suits arising upon all classes of contracts. except in suits upon insurance policies; but the Supreme Court of Wisconsin went so far, in Dick v. Equitable Fire and Marine Ins. Co., 92 Wis. 46, as to declare that the restrictions, set out in the closing pargaraph of the standard policy, upon the powers of agents and the mode in which their powers are to be exercised are ineffectual! Such decisions are based on a prejudice that is astounding, an ignorance that is inexcusable and a wilful abandonment of the right of parties to make their own contracts.

The Supreme Judicial Court of Massachusetts, in Kyte v. Assurance Company, 144 Mass. 43, stated the reason for the insertion of these restrictions in the policy in the following language:

"The company, which has seen fit to prescribe that the terms and conditions of its policy shall only be waived by its written or printed assent, has prescribed only a reasonable rule to guard against the uncertain ties of oral evidence, and by this the insured has assented to be bound."

Mr. Justice Shiras, in the Grandview Building Association case, says:

"Such express provision was intended to protect both parties from the dangers involved in disregarding the rule of evidence.'

Again he says:

"It should not escape observation that preserving written contracts from change or alteration by verbal testimony of what took place prior to and at the time the parties put their agreements in that form is for the benefit of both parties. If the agent had died, or his memory had failed, the defendant company might have been at the mercy of unscrupulous and interested witnesses."

There has recently been considerable lay and professional criticism of the United States Supreme Court. It is contended by demagogues that this is a government by injunction, and the unfavorable comment from bar and press upon the decisions in the income tax and insular cases may be cited as examples of the tendency to criticism, mostly ill-timed, ungenerous and disrespectful, of the ablest and most dignified judicial tribunal in all the world. But our National Supreme Court has always sacredly preserved the right to make contracts and enforced that the right to the same extent as the obligations of contracts; the rules of evidence have always there been heeded; they have never been cast aside in order to bring about a particular result, and no judgments of that court have been rendered because oral testimony has been permitted to vary the terms of a valid written instrument.

Other Insurance.-In Carpenter v. ProvidenceWashington Ins. Co., 16 Peters 495, decided by the Supreme Court in 1842, two propositions were established: First, that where a policy, provides that notice shall be given of any prior or subsequent insurance, otherwise the policy to be void, such a provision is reasonable and constitutes a condition, the breach of which will avoid the policy; second, that where the policy provides that notice of prior or subsequent insurance must be given by indorsement upon the policy or by other writing, such provision is reasonable and one competent for the parties to agree upon, and constitutes a condition the breach of which will avoid the policy.

In Merchants' Mutual Ins. Co. v. Lyman, 15 Wallace, 664, the court, speaking through the late Justice Miller, said:

"Where there is a written contract of insurance it must have the same effect, as the adopted mode of expressing what the contract is, that it has in other classes of contract, and must have the same effect in excluding parol testimony in its applicato it that other written instruments have."

In New York Life Insurance Company v. Fletcher, 117 U. S. 519, the late Mr. Justice Field said:

"It would introduce great uncertainty in all business transactions if a party making written proposals for a contract, with representations to induce, its execution, should be allowed to show, after it had been obtained, that he did not know the contents of his proposals, and to enforce it, notwithstanding their falsity as to matters essential to its obligation and validity. Contracts could not be made, or business fairly conducted, if such a rule should prevail, and there is no reason why it should be applied merely to contracts of insurance."

In Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, the court announced:

The courts may not make a contract for the parties. Their function and duty consists simply in enforcing and carrying out the one actually made."

But, as has been stated, several of the State and Federal courts have swung far away from these plain and simple propositions. Many thousands of dollars have been paid upon judgments which may be said to have been unjustly rendered, and possibly the payment of millions of money has been coerced by these decisions, backed only by the power of judicial office, and it was inevitable that the highest court of the nation should be appealed to to straighten out the tangle and enforce the insurance contract as the parties made it.

The Grandview Building Association, owning and conducting a boys' military academy at Lincoln, Neb., insured as household goods in the Northern Assurance Company of London the contents of the academy, upon which there was already other insurance. The fact of the other insurance was unknown to the Northern agent, although upon the trial of the case the presi

dent of the association swore, and the jury found, that the agent knew, when he delivered the Northern policy, of the other insurance upon the property. A fire occurred; the company learned for the first time of the prior insurance; liability was denied because consent thereto had not been given in writing, indorsed upon the policy: suit was brought in one of the state courts of Nebraska, which was removed to the federal court and there tried. The policy was of the New York standard form, containing the provision already referred to, against other insurance not consented to by indorsement upon the policy, and also that provision restricting the power of the agents of the company to waive any of the terms of the policy, except as therein provided. Upon the special finding by the jury that the agent of the Northern company knew when the policy was written and delivered that there was another policy covering the subject of insurance, the United States Circuit Court rendered judgment against the company, which was affirmed by the United States Circuit Court of Appeals for the Eighth Circuit. Thereafter, by writ of certiorari, the case was taken to the Supreme Court of the United States, in which court, on January 6 of the present year, an exhaustive opinion was filed, approving the wisdom of the provision against other insurance, sustaining the right of insurer and insured to make their own contracts without judicial interference, refusing to permit oral testimony to establish a waiver of any provision of a written instrument, and reversing the judgment against the company of both the trial and the appellate courts.

With reference to the policy provision against other insurance the court says:

"Overinsurance by concurrent policies on the same property tends to cause carelessness and fraud, and hence a clause in the policy rendering it void in case other insurance has or should be made upon the property and not consented to in writing by the company is customary and reasonable."

The court states in the following words its refusal to permit oral testimony to vary the terms of the fire insurance policy:

"As to the fundamental rule that written contracts cannot be modified or changed by parol evidence, unless in cases where the contracts are violated by fraud or mutual mistake, we deem it sufficient to say that it has been treated by this court as inviolate and salutary. Policies

*

of fire insurance in writing have always been held by this court to be within the protection of this rule."

The importance of this decision and its farreaching influence and effect can scarcely be overstated. The principles it enunciates apply to many other conditions of the policy, and the doctrine that a company is bound by the mere knowledge of its agent, when the policy is delivered, of facts which make it void is effectually punctured.

Decisions of Federal Courts. In the federal courts of the sixth, eighth, and ninth circuits, comprising the states of Michigan, Ohio, Kentucky, Tennessee, Arkansas, Missouri, Iowa, Minnesota, the two Dakotas, Nebraska, Kansas, Colorado, Wyoming, Utah, Montana, Idaho, Oregon, Washington, California and Nevada, the rule hitherto prevailing is reversed, for all the federal courts are bound to follow this decision. The argument of the learned justice is so simple and clear, and the fallacy of the other view so plainly set forth, that it is not too much to prophecy that those state courts which have fallen into error may be persuaded thereof and induced to shake off their prejudices and anchor once more to legal principles; for, while laws may change with changing conditions. principles are eternal, and no considerations of convenience, nor of sympathy, nor of mere individual opinion, whether of judges, counsel or parties, ought to divorce the facts of a lawsuit from the principles by which it must be determined, and it is inconceivable that any court of last resort will yield a blind and sullen adherence to a palpable wrong.

It is fortunate that courts and judges merit the public confidence reposed in them. They may, at times, err in judgment but the motives which actuate and control the American bench are pure, and with a pure judiciary there is always hope for the correction of errors and the righting of wrongs; political issues may change, new questions may arise, clouds may loom on the political horizon, revolutions, even, may impend, but the courts may be relied on to safeguard property rights

The commerce of the world needs protection against the fire dragon and the perils of the sea, and for a comparatively insignificant expenditure the business of our expansive modern civilization is indemnified from the ravages of fire and water; the workingman may lie down to dreamless sleep under his humble roof in the security of his policy of insurance against fire, for he knows that, though the flames may lick up what represents the savings of years, he also will be indemnified. No business is more completely bottomed on the confidence which permeates society than insurance. The insured's word is taken implicitly for nearly every fact connected with the insurance and the validity of the contract is made to depend on his veracity, and therefore no class of litigants has better claims upon courts of justice for the enforcement of their contracts than insurance companies.

But the security of merchant and householder lies in the integrity of the insurance contract. State regulations which keep dishonest men and insolvent companies out of the field are well, but legislative and judicial raids on the insurance business are mere folly, and whenever conditions are created under which the annual losses and expenses of a company exceed its annual income. the security of every policyholder and the integrity of every policy is necessarily impaired.

Everybody ought to be interested in the prosperity of legitimate underwiting. Mr. Justice Shiras says:

"The community at large have a deep interest in the welfare and prosperity of such beneficial institutions as fire insurance companies."

tellectual discrimination and freedom of will.

If there be either incapacity to distinguish between right and wrong as to the particular act, or delusion as to the act, or inability to refrain from doing the act, there is no respon

ness of fire insurance agents need not stand on mere technicalities in the adjustment and settlement of honest losses, and they may scorn to employ any methods but the purest. They should, however, defy fraud and imposture, and can afford to be patient under temporary defeats, for time and right and law are on their side.

Omaha, Neb. RALPH W. BRECKENRIDGE.

VARIOUS FORMS OF MENTAL ALIENATION IN THEIR RELATION TO CRIME.

The term mental alienation, which in ordi

nary medical as well as general usage is synonymous with insanity, denotes any deviation of the mental faculties (intelligence, sensibility, will) from an assumed normal or or healthy standard. In a legal sense, such mental unsoundness constitutes insanity. It is sometimes said, that there is a conflict between the legal and medical ideas of insanity and that certain forms of insanity, well understood among alienists, are not "recognized" by the courts. There is no foundation in true legal principle for the distinction thus implied. The legal position is simply, that a product of mental disease is not a will, a contract, a crime.1 In criminal cases, the rule, supported by the great weight of reason is, that whenever, from ahy cause, the faculties of a person are so deficient or impaired, that he is without power of distinguishing right from wrong, or of so governing his actions as to adhere to the right and avoid the wrong, such person is not a responsible moral agent and is not punishable for acts falling within the definition of crime.2 The law does not undertake to define kinds or degrees of insanity, but merely attempts to ascertain whether a person has sufficient faculty to do the particular thing in question."

The tests of insanity are not matter of law. In the criminal law, the constituent elements of legal responsibility are capacity of in

1 S. v. Pike, 49 N. H. 399, 438.

2 Davis v. U. S., 160 U. S. 469, 485; C. v. Rogers, 7 Metc. 500; Parsons v. S., 81 Ala. 577; Flanagan v. S., 103 Ga. 619; S. v. Peel, 23 Mont. 358.

3 St. George v. Biddeford, 76 Me. 593.

any particular case is ultimately a question of fact, to be ascertained by means of competent evidence and to be determined by a jury.4

1

Mere weakness of intellect does not exempt from punishment; but it has been held, that if a person is so weak of intellect that his perceptions of consequences and effects are only such as are common to children of tender years, he should not be held criminally liable. Insanity may be general or specialized. The former state is characterized by a lesion of the general activity. The latter state is variously designated as monomania, partial or systematized insanity, paranoia. These insanities are relatively numerous and are characterized by hallucinations, especially of hearing, and by delusions. The most dangerous type of this form of insanity, which leads to many homicides, is that which is characterized by delusions of persecution. The rule of liability as to such cases is, that a person laboring under an insane delusion must be considered in the same situation as to criminal responsibility as if the facts were as they appear to him. For instance, if he believed another person to be in the act of attempting to take his life and killed him in supposed necessary self-defense, he would not be punishable.

Mental alienation may likewise take the form of a morbid impulse, or an irresistible. tendency to perform a particular action. Under the general rule above stated, if one commits an act under an insane impulse which he could not control, he cannot be held criminally accountable.7 This class of alienations is generally designated under the names obsessions and lesions of the will, what is affected being the will, taken as a cerebral function, the impulses being accompanied with consciousness of the condition and reasoning powers. They are variously subdivided, the

4 S. v. Pike, supra; S. v. Jones, 50 N. H. 369; Stevens v. S., 31 Ind. 485; Bradley v. S., Ib. 492; Parsons v. S., supra.

5 S. v. Richards, 39 Conn. 591.

6 Merritt v. S., 39 Tex. Cr. R. 70.

7 S. v. Peel, supra; Flanagan v. S., supra.