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ing, or limiting the words "levied on" because it contemplated a mode of taking property that is entirely foreign to the office of a levy. This interpretation of the condition in question we think is warranted by the natural construction of the language in which it is expressed. If so, the act of the plaintiff in deliberately suffering levies to be made on its personal property evidently avoids the insurance thereon. But, if it were held to be otherwise, then the ceasing to operate the establishment, contrary to the general condition of the policy in that regard, will certainly absolve the defendant from any liability thereunder. This, as before observed, is a general condition which relates to all the property embraced in the policy. The condition is as follows: "If it [meaning the factory] shall cease to be operated without special agreement indorsed hereon, all insurance by this policy shall thereupon cease." In the statement of facts it is admitted that after the attempted sale of the personal property, to wit, on the eighteenth day of September, 1888, the business which had been previously carried on in the building was discontinued and the establishment ceased to be operated for manufacturing purposes, and it nowhere appears in said statement of facts that this 51 defendant either consented to such cessation of business or waived its effects.

It is also stated that the plaintiff provided watchmen who were in the buildings day and night until the fire occurred, October 1, 1888. But did this answer the demands of the condition? The defendant, as we have before said, stipulated in that condition for the care and supervision of the workmen, and a substitution of watchmen for them was not a compliance with the terms of the contract. And though the risk may not have been changed or increased by such a substitution, yet the defendant has a right to insist upon the fulfillment of the contract as the ground of its liability for the loss. The plaintiff contends that the ceasing to operate the establishment did not affect the liability of the defendant because its risk thereby was not increased. The case of Lattomus v. Farmers' etc. Ins. Co., 3 Houst. 404, is referred to in support of such contention. That case is entirely different from the case at bar. The facts were that Lattomus obtained an insurance on a stock of goods in a storehouse in the town of Clayton. The company had a by-law which is in these words: "When the risk has been changed, either within itself or by the surrounding or adjacent buildings, it shall be incumbent on the insured to make the proper representations to the nearest agent, and have the same corrected or adjusted, and

manifested in writing, by the secretary; otherwise, the company will not be responsible." The by-law was treated as a part of the contract of insurance. The defendant alleged that the plaintiff erected a shed adjoining the store which contained the stock of goods, and insisted that that was a violation of the contract. The court in that case properly charged that, if the erection of the shed adjacent to the store increased the risk of the defendant, the plaintiff could not recover, but that, if it did not increase the risk, he could recover. This language of the court in that case was in accordance with the terms of the contract, which made an increase of risk the test of the defendant's responsibil ity. It could not have been otherwise. But in the present case the liability of the defendant is not based 52 upon the contingency as to whether a violation of the contract increased the risk of the underwriter or not. It was agreed by both parties that the ceasing to operate the concern should per se be a cause of forfeiture. The unanimous opinion of the judges is, that the plaintiff in this case cannot recover the loss occasioned by the destruction of either personal or real property covered by the insurance.

Let a certificate in accordance with this opinion be drawn up and transmitted to the superior court in and for New Castle county.

INSURANCE-FORCE AND CONSTRUCTION OF CONTRACT. The rights of both the insurer and the insured are governed by the contract of insurance. If it is susceptible of two constructions, that one will be adopted which is more favorable to the assured; but if its language is clear and unambiguous, its effect cannot be destroyed by construction: German Ins. Co. v. Hayden, 21 Colo. 127; 52 Am. St. Rep. 206, and note. Conditions of forfeiture will be construed strictly against the insurer and in favor of the insured: Snyder v. Dwelling-House Ins. Co., 59 N. J. L. 544; 59 Am. St. Rep. 625, and note; Goodwin v. Provident etc. Life Assur. Assn., 97 Iowa, 226; 59 Am. St. Rep. 411, and note; but construction must not make a new contract for the parties: Schuermann v. Dwelling-House Ins. Co., 161 Ill. 437; 52 Am. St. Rep. 377.

ENCUMBRANCES.

INSURANCE CONDITION AGAINST Where a policy of insurance contains a provision that "if the property shall hereafter become mortgaged or encumbered, this policy shall be null and void," this provision will be regarded as relating only to liens voluntarily placed upon the property by the assured, and not as applying to judgments or other liens created by law: Phenix Ins. Co. v. Pickel, 119 Ind. 155; 12 Am. St. Rep. 393, and note. That such a condition is reasonable and valid: Olney v. German Ins. Co., 88 Mich. 94; 26 Am. St. Rep. 281.

INSURANCE-CONDITION AGAINST CEASING TO OPERATE INSURED ESTABLISHMENT.-The temporary closing of an insured mill for forty-two days without notice to the insurers, when such closing is caused by want of logs to manufacture, such logs

being daily expected, but detained by low water, is not such "ceasing to operate" as will avoid a policy conditioned to become void if "the mill shall cease to be operated" without notice to or consent of the insurers: City Planing etc. Co. v. Merchants' etc. Ins. Co., 72 Mich. 654; 16 Am. St. Rep. 552, and note. See, also, Poss v. Western Assur. Co., 7 Lea, 704; 40 Am. Rep. 68. See monographic note to Moore v. Phoenix Ins. Co., 10 Am. St. Rep. 390-396.

CASES

IN THE

SUPREME COURT

GEORGIA.

POWELL V. STATE.

[101 GEORGIA, 9.]

HOMICIDE--PROOF OF CHARACTER.-Except when speclal facts may have been shown to have existed in a particular case, evidence of character, conduct, or utterances of the deceased is not admissible in trials for homicide.

HOMICIDE-PROOF OF CHARACTER.-In a trial for homicide, where the plea of self-defense is set up, evidence of the character of the deceased for violence must be confined to evidence of his general character and reputation, and this cannot be established by proof of specific acts.

HOMICIDE EVIDENCE OF CHARACTER.—If, on a trial for homicide, the character of the deceased for peace or violence is in issue, the testimony of a witness to the general character of the deceased cannot be confined to evidence of what is generally said in reference thereto. It is competent to show by a witness who has lived in the same community with the deceased, that he knows the estimation in which he was held by the people, and that he has never heard the character of such person questioned. Such evidence authorizes the inference that such character was good.

HOMICIDE-DECLARATIONS OF ACCUSED AS EVIDENCE.-On a trial for murder, where self-defense is set up, declarations of present pain made by the accused soon after the killing, and alleged by him to have been caused by an attack made by the deceased at the time of the killing, are admissible in evidence to be considered by the jury along with the other facts in the case.

TRIAL-DISCRETION IN REOPENING CASE.-The question of reopening a case at any stage of the proceedings, to let in additional testimony, is largely in the discretion of the trial court, which cannot be reviewed on appeal unless a gross abuse of such discretion is shown.

MURDER - DECLARATIONS AS EVIDENCE — INSTRUCTIONS.-A declaration made by one charged with murder admitting the homicide, but disavowing any criminal responsibility therefor, though admissible in evidence as an admission of a fact, is not a confession of guilt, and does not authorize instructions on the law of confessions.

WITNESSES-IMPEACHMENT.-If a witness has been impeached, it is the duty of the jury to disregard his testimony, unless it is corroborated in material particulars.

WITNESSES-IMPEACHMENT.—If the credibility of a witness is attacked by an effort to impeach him by legal methods, the jury become the triers of the credibility of the witness sought to be impeached, and of the witnesses by whose testimony the attack is made. They are to weigh the opposing testimony, and at last say whether or not in their judgment the witness has been impeached.

HOMICIDE-INSTRUCTIONS.-If, on a trial for murder, the accused pleads self-defense, and the court, after instructing the jury as to all grades of homicide, in conclusion instructs the jury to "look to all the facts and circumstances surrounding and connected with the case; if you find that the defendant and deceased had a difficulty, look to all the facts and circumstances surrounding and connected with it; see whether or not it was necessary for the defendant to take the life of the deceased in order to save his own life. Before he would be justified and you would be authorized to find him guilty of no offense, you must believe from the evidence that it was necessary for him to take the life of the deceased in order to save his own life," such instruction is erroneous in that it excludes from the consideration of the jury the question whether the accused killed the deceased to prevent a felony being committed on his person.

HOMICIDE-JUSTIFICATION.-A homicide committed in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either, is justifiable homicide.

Indictment for murder and conviction of voluntary manslaughter. A motion for a new trial was overruled, and the accused excepted and prosecuted a writ of error to the supreme court.

D. M. Roberts, E. Herrman, Hardeman, Davis & Turner, and E. H. Williams, for the plaintiff in error.

J. M. Terrell, attorney general, T. Eason, solicitor general, H. Lawson, D. B. Nicholson, and J. H. Martin, for the state.

16 LITTLE, J. A number of grounds are set out in the motion for a new trial, which was overruled. Inasmuch, however, as the case goes back for another trial, we purposely omit consideration of such of them as we do not deem material to be decided for the purposes of another hearing.

1. The first six grounds of the amended motion are based on the rulings of the court where witnesses were introduced by the defendant to show the character of the deceased for violence. Without going into the details of the rulings set out in these several exceptions, it is sufficient here to say that, except when special facts may have been shown to have existed in a particular case, proof of character, conduct, or utterances of the deceased is not admissible in evidence in trials for homicide, because

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