can it be said that, beyond all question, the act of Cox, in firing upon and killing Cluff, was caused by his attempt to take the horses, and was not an unjustifiable and wanton act prompted by feelings of malice and revenge? It is not enough to say that if Cluff had not made the attempt, he would not have been killed. The killing must have been a natural and reasonable consequence of the attempt, to warrant a decision that it was caused thereby. Cluff's going to Louisiana, and his taking a lease of the farm, were links in the chain of circumstances which ended in his death. If he had not done those things he would not have been killed as he was. Yet it would not be reasonable to say that those acts were the causes of his death.

In the Bank of Ireland vs. Trustees of Evans Charities, 5 House of Lords Cases, 410, the fraud could not have been perpetrated if the trustees had kept the seal securely; yet it was held that negligence in the custody of the seal was too remotely connected with the fraud to render the trustees liable, for as the court says: "The transfer was not the necessary or likely result of that negligence."

The proximate and not the remote cause must be regarded. The immediate cause of the death was the shooting, and if Cluff so conducted himself, that the shooting was a natural, reasonable and legitimate consequence of his acts, then it may be said that they caused the shooting. But if Cox fired with intent to kill, and his act was wholly beyond the scope of lawful resistance to the trespass of Cluff, and the provocation given by the latter was totally inadequate to excite or justify the character of violence which was used; and if the circumstances of the killing were such that rational men would attribute it to wanton malace, rather than to an endeavor to resist aggression, or even to natural indignation, then, although the deceased was in the wrong in the first instance, his wrong was but a remote and not a proximate cause of the death, and other causes for which he was not responsible, intervened.

Some analogy is afforded by the common law rules in respect to acts of provocation, which will reduce a homicide from murder to manslaughter. In the Commonwealth vs. Drew, 4 Mass., 396, Chief Jutice Parsons states, as a rule of law, that a trespass barely against the property of another, not his dwelling house, is not a provocation sufficient to warrant the owner in using a deadly weapon, and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provocation; and,'as a general rule, every willful and intentional killing, without a justifiable cause, if done with deliberation, and not in the heat of passion, is murder, and legal malice is always implied in such cases. Per Walworth, Ch. J., 2 Park, Cr. R., 28. Here it was not even left to the jury to say whether the killing was in the heat of passion. If the acts imputed to Cluff, though illegal, were not sufficient inducement to the homicide, even to reduce the grade of the offence, it can hardly be said that they were the

cause of his death. The diversity in the statements of the witnesses, as to the circumstances of the killing, and the necessity of an inquiry into the motive which actuated Cox, render it impossible to determine, as a question of law, that the killing was a reasonable or natural consequence of the acts of Cluff.

So long as the evidence falls short of establishing that the homicide was legally justifiable, I can see no safe rule by which the court could be guided in deciding, that the provocation proved was cause of the killing, and in withdrawing that question from the consideration of the jury.

The learned court in Massachusetts express the opinion, that if Cox shot Cluff, not in the course of the affray, but merely to revenge himself for what had been done, the case would not be within the proviso. 13 Allen, 318.

This distinction is reasonable, and seems to be applicable whether Cluff''s violation of law were criminal or not.

If Cox abandoned the horses and started for his home, and afterwards changed his mind, turned and maliciously shot Cluff, that was a new and independent event. There was some evidence to sustain that theory of the case. Bugbee testifies that Cluff got possession of the lines, and Cox started for the house, Cluff still standing by the horses' heads. That when Cox got to the rear of the wagon, he turned, drew a revolver and shot Cluff, and cocked his pistol for a second shot, when finding that Cluff was hit, he ran away.

It was impossible for the court to say, on this evidence, when Cox first formed the design of shooting, and that he did not intentionally and maliciously take the life of Cluff to satisfy his own feelings of revenge, after the seizure of the horses had been effected, and he had abandoned them. The accuracy of the aim, and the attempt to fire a second shot, at an apparently unarmed man, were circumstances from which malice could be inferred. Furthermore, there were circumstances from which a hostile state of feeling, on the part of Cox, could be inferred, independently of the taking of the horses.

Cluff was turning the family of Cox off the farm, was hurrying their departure, and insisting upon their paying for the feed consumed by their cattle, and the tone of the conversation between Cluff and Cox evinced an angry state of feeling, which may have contributed, quite as much as the taking of the horses, to the deadly assault made by Cox.

Under all these circumstances, I think that the case should have been submitted to the jury, as requested by the plaintiff's counsel, to determine, under proper instructions, whether the death of Cluf!" was caused by a known violation of law on his part, and whether the act of Cox, which produced the death, was a natural, reasonable or legitimate consequence of the acts of Cluff. The determination of these questions involved so many doubtful questions of fact, that they could not properly be disposed of by the court.

One witness testifies to a personal conflict. The other denies it. If the first witness is to be believed, the blow struck by Cluff may have been the provocation for the shot. But the court could not act upon that statement, because it was contradicted. Under that state of the evidence, to decide the controversy by saying that if the blow was not struck, the seizure of the horses was the cause of the shot, is subject to the objections, not only that it disposes of the case upon a hypothesis, and without ascertaining the actual facts, but that it involves a disregard of the circumstances tending to show that the shooting was with intent to kill, and a willful and deliberate act of malice or revenge, and does not even leave it to the jury to determine whether the killing was in the heat of passion, caused by the act of Cluff. It would hardly be contended, that if one should intentionally and deliberately kill another in consequence of some slight violation of a civil right, such as walking across his land without his permission, or other trivial trespass, the case would fall within the proviso, for no one would hesitate to say that in the case supposed, the unlawful act of the deceased was a totally inadequate cause for the killing. Yet, between such an act as that, and one which would in law justify the killing of the offender, there are an infinity of supposable cases involving different degrees of provocation, which cannot be measured, so as to determine as matter of law, their adequacy to produce a fatal result; and it can hardly be laid down as a rule of law, that an attempt to take one's horses for debt, without process, but without any threat of personal violence, is of itself an adequate cause for intentionally killing the offender, and that a killing during or immediately after such an attempt must necessarily be held a legitimate consequence of the act. Such an act may lead to violence, and if any act of violence of the character which would naturally be resorted to as a measure of resistance, should result in death, the necessary connection between the original illegal act and the death, might be established. But the intentional killing of another, with a deadly weapon, under such circumstances, is a totally different affair, and cannot be held, as matter of law, to be a natural or reasonable result or consequence of the original offence. It follows that the uncontroverted facts were not sufficient to justify a dismissal of the complaint, and that the case should have been submitted to the jury with proper instructions.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

COURT OF APPEALS OF NEW YORK.

THE SPRINGFIELD FIRE AND MARINE

INS. CO., et al, Resp'ts,

Ag't

ORLANDO BROWN, et al, App'ts.*

ALLEN, J.

The parties to the policies of insurance have, by the terms of their contract, avoided some of the questions which have embarrassed the courts and led, in some instances, to an apparent conflict of opinion, if not of decision. The rights of the mortgagees are protected against the effect of certain acts of the mortgagor, in derogation of the policies, by an agreement that the policies as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor, with the qualification, however, that if the mortgagee fail to notify the insurers of any change of ownership after the same shall have come to his knowledge, the policies shall be void.

They have definitely determined the question, perhaps not definitely settled by adjudication, as to the right of subrogation by an agreement, making part of the contract of insurance, that whenever the insurers shall pay to the mortgagee any sum for loss, for which loss the company would not have been liable to the mortgagor or owner, the insurers shall be subrogated to the rights of the mortgagee, and entitled to an assignment of the mortgage. This provision is probably in accordance with the legal and equitable rights of the parties regarding the policy from the time it might become void as to the mortgagor, as an insurance existing only in favor and for the benefit of the mortgagee, and as an insurance upon his interest as mortgagee, and not as an insurance upon the property generally, although the doctrine has been questioned in King vs. State Mutual Ins. Co., 7 Cush., 1, Sec. 2 Phil. on Insurance, ¿? 1512, 1712; Kernochau vs. N. Y. Bowery Fire Ins. Co., 17 N. Y., 428; Roberts vs. Traders Ins. Co., 17 W. R., 631; Carpenter vs. Washington Ins. Co., 16 Peters, 495; Tyler vs. Etna Ins. Co., 12 W. R., 507, and S. C., 16 W. R., 385, per Chancellor.

If then the mortgagor who was the party primarily insured, could not for any reason have enforced the policies and recovered thereon for his own benefit, either as owner, or as having an insurable interest as the mortgagor, personally liable for the payment of the mortgage debt, he is precluded, by the terms of the policies,

*Decision Rendered Jan. 24, 1871.

from claiming the benefit of the insurance, in satisfaction of the mortgage debt, and the insurers are entitled to be subrogated to the rights of the mortgagee. The mortgagee was equitable assignee of the policies containing a provision, which, upon the happening of certain events, should absolutely vacate and avoid the insurance as of the property generally, and as a contract of indemnity to the mortgagor, and resolve it into an insurance of the interest of the mortgagee as such, and make it a personal contract with her, in which the mortgagor would have no interest. Per Shaw, Ch. J.; King vs. State Mutual Fire Ins. Co., 7 Met., 1; Per Story, J.; Columbia Ins. Co. vs. Lawrence, 10 Peters, 517.

Ferris, the grantee of the premises and owner of the equity of redemption, can, as the representative and equitable assignee of Allen, claim no greater rights under the policies than his grantor and assignor, Allen, could have claimed. Grosvenor vs. Atlantic Fire Ins. Co., 17 N. Y. R., 391.

The policies were made and accepted by Allen, the insured, with full knowledge of and subject to all the terms and conditions expressed therein, and he had personal knowledge of every fact and circumstance affecting their validity existing at the time they were made, and was a party, and assenting to every act which has been alleged as breaches of the conditions of the policies, and as avoiding them, as to him and all (except the mortgagees) claiming under him.

One of the conditions of each of the policies was, that in case of any change or transfer of title in the property insured the policy should be void and cease.

A contract of insurance, like every other contract, must be so construed as to give effect to the intent and understanding of the parties, and the language employed must be taken in its ordinary popular sense, unless it appears to have been used in a technical sense, or custom or usage has impressed a different meaning upon it. 1 Phil. on Ins. 122, and see Whiton vs. Old Colony Ins. Co., 2 Met., 1; Mutual Safety Ins. Co. vs. Hone, 2 Comst., 235.

Every part of a policy should be read and construed in obedience to this rule. There was a change and transfer of the title of the property which was the subject of insurance, after the insurance was effected, and before the loss.

If the words employed were used in their popular sense, this condition of the policy was violated, and the policy, as an insurance of the property generally, and for the benefit of mortgagor and owner, ceased. Had the parties intended only to provide for a change in, or transfer of, the interest of the assured, which in one sense is "the property assured," it may be assumed that language more appropriate to express the idea would have been chosen.

An insurable interest may exist without any estate or interest in the corpus of the thing insured.

As guarantor of the mortgage debt, personally liable for its payment, Allen probably had an insurable interest in the buildings