given by a witness on oath. That is quite true, but it is at the same time stated in the bill of exceptions that it was an enquiry connected with the discipline of the army, that it was an enquiry warranted by the queen's regulations and orders for the army, that it was called by the field-marshal the commander-in-chief in pursuance of these regulations, and that the defendant in the action was called before the court of enquiry as a witness, as a person who was required to make statements relevant to the enquiry which was then being conducted, and that it was in the course of that enquiry that those statements were made. Adopting the expressions of the learned judges with regard to what I take to be the settled law as to witnesses and as to the protection of witnesses in judicial proceedings, I certainly am of opinion that upon all principles, and certainly upon all consideration of conscience and of public policy, the same protection which is extended to a witness in a judicial proceeding, who has been examined on oath, ought to be extended, and must be extended, to a military man who is called before a court of enquiry of this kind, for the purpose of testifying there upon a matter of military discipline connected with the army. It is not denied that the statements which he made, both those which were made viva voce, and those which were made in writing, were relative to that enquiry. Under these circumstances, I submit that the conclusion of the learned judges is in all respects one which we ought to adopt, and that your lordships will hold that statements made under these particular circumstances, are statements which can not become the foundation of an action at law. I, therefore, beg to move that the appeal be dismissed, with costs.

is a policy of re insurance. The jury have found that the fact was not material; there is, therefore, no question of concealment as a matter of evidence; it is purely a question of law. It is admitted that the plaintiff did not mention the fact; it is admitted that it has been usual to state the fact; but since recent legislation it is contended that it is not necessary as a matter of law to mention it. The course of legislation has removed the restrictions formerly imposed on re-assurance. By 19 Geo. 2, c. 37, s. 4, it was provided, "That it shall not be lawful to make re-assurance, unless the assurer shall be insolvent, become a bankrupt, or die; in either of which cases such assurer, his executors, administrators, or assigns, may make re-assurance to the amount of the sum before by him assured, provided it be expressed in the policy to be a re-assurance." By 27 & 28 Vict. c, 56, s. 1, re-assurances were allowed in every case, but the clause requiring the fact to be mentioned remained in force. By 30 & 31 Vict. c. 59 (the General Statute Law Revision Act) the whole of section 4 of 19 Geo. 2, c. 37, is repealed, so that the extended powers of 27 & 28 Vict. c. 56, remain, and the proviso requiring the fact of re-insurance to be stated is repealed. While this proviso remained in force the fact was always stated, and what is called a custom was really obedience to the law. The defendant will rely on Glover v. Black, 3 Burr. 1394, but at p, 1401 Lord Mansfield especially limits the decision to the facts of that case. [BRAMWELL, B.-There is, I suppose, a plea of not interested. Suppose I guarantee the payment of the price of goods to the vendor, have I an insurable interest ?] Without doubt. The plea is that the plaintiff was not interested as alleged. The jury found that there were no facts in the case which rendered it material to state the fact that it was a re-insurance, and unless it would amount to material concealment, it is clearly not necessary to state the interest. Arnold on Insurance (ed. 1872), p. 46, lays down the law correctly, and in Phillips on Insurance, par. 424, it is stated "the interest of carriers may be insured under the description of the goods, without specifying the particular interest to be covered." At par. 498 the same writer says, "I conclude the better doctrine to be that an assured may effect re-insurance directly on the insured subject, without any disclosReed v. ure in the policy or otherwise that it is a re-insurance.” Description of Cole, 3 Burr. 1512 is in point. [BRAMWELL, B.-The suggestion there is that the plaintiff had no interest at all. In this case the defendant says in effect that the plaintiff is interested neither in the goods nor in their arrival, that he is only interested because he has insured them, and that he ought, in so many words, to have re-insured his own original insurance.] Yes, that is the argument, but it is submitted that it is concluded by the authority both of cases and text books: Crowley v. Cohen, 3 B. & Ad. 478, de"The nacides the very point. Chief Justice Tenterden there says, ture of the interest may in general be left at large." [AMPHLETT, B. That again is a question of interest, not of re insurance, as it was then illegal.] That point was not taken, and being an insurThe unance by a carrier it amounted in fact to a re-insurance. derwriter looks to the goods and not to the motive of the insured. Anderson v. Morice, 23 W. R. 180, L. R. 10 C. P. 58, shows that the plaintiff to recover. very little is required to give an insurable interest, and to enable

Lord CHELMSFORD, Lord HATHERLEY, Lord O'HAGAN and Lord SELBORNE merely expressed their concurrence in the judgment which had been delivered by the Lord Chancellor.

Lord PENZANCE based his judgment in favor of Lord Rokeby on the ground of public policy, which required that all witnesses should feel themselves at liberty to give their evidence without fear of their being dragged into litigation for something which they might rightly or wrongly have stated.

Judgment affirmed, and appeal dismissed, with costs.

MACKINZIE v. WHITWORTH.*

English Court of Exchequer, February 10, 1875.

1. Re-insurance-Recitals in Policy.-It is not necessary, as a matter of law, to state at the time of effecting a policy of re-insurance, that it is a policy of that nature. The plaintiff effected a policy of insurance" on goods," without mentioning that it was a re-insurance. The jury found that there was no concealment of

2.

any material fact, and the verdict was entered for the plaintiff. Held, on a rule to set aside the verdict, on the ground that the plaintiff was only interested as a re-insurer, and that he was not entitled to recover on the policy, that the plaintiff could recover.

This was an action on an ordinary policy of marine insurance on goods. Evidence was given at the trial, before Pollock, B., to show that it was usual, when effecting a policy of re-insurance, to state the fact, and this was admitted by the plaintiff. The plain

tiff had not mentioned the fact that it was a re-insurance, and con

tended that it was not material; the defendant contended that it was, a material fact, and that it had been concealed. The jury found

that the fact that it was a re-insurance was not material, and the verdict was entered for the plaintiff.

Herschell, Q. C., obtained a rule to set aside this verdict on the ground that the plaintiff was only interested as a re-insurer, and that he was not entitled to recover on the policy.

Feb. 9.-Benjamin, Q. C (Myburgh with him), showed cause. -The simple question of law in this case is whether or no must a re-insurer declare, at the time of making the re-insurance, that it *Our report of this case is taken from the Weekly Reporter, Vol. 23, p. 323.

Feb. 10.-Herschell, Q. C. (Baylis with him), in support.— There are two grounds on which it is submitted this rule should be made absolute, first, that the subject-matter of the policy was not properly described; and secondly, that the intention of the parties when they entered into the contract has not been carried out. In point of fact the interest was never described, the words on goods" in the policy do not mean that it is a contract of indemnity. [BRAMWELL, B.-Surely they do, unless their meaning is limited by special words.] By the common usage of mercantile men, re-insurances have always been treated as a matter of business quite distinct from first insurance; some underwriters decline them altogether, The intention of the parties must be considered, and

thing little, if at all, over his interest in the sum charged for carrying them; but the fact is that he really recovers a substantial amount. In the case of ships, the mortgagor and mortgagee can both insure their respective interests, and yet they are not both owners. The general rule is well known, it is laid down in Arnould and Phillips, and it clearly does not especially require the interest to be declared. The authority of Glover v. Black, 3 Burr. 1394, has been relied on by the defendant. The general principle of that case is not quite clear, but the peculiar circumstances are quite sufficient to justify the decision. Lord Mansfield decides in express terms that it is not to be considered that any general rule is there laid down, and on the particular facts of that case, which was on respondentia and bottomry bonds, he gives a judgment which was certainly convenient and in accordance with what appeared to be the general mercantile understanding of the day, and one which was warranted by the statement of the facts in that case. The present case is not one on a respond entia bond, and in my opinion, the rule should be discharged.

this contract must be construed accordingly; the practical difficulties are great and must be regarded; third parties are introduced and have to be dealt with and the risk is increased. [BRAMWELL, B.-An underwriter can easily insert the words "warranted not a re-insurance."] The finding of the jury really was that as the ship had not sailed the fact was immaterial; it may not be material to the risk, but it is to the knowledge of the underwriter. He may wish to know the character of the person insured, and he would be misled by the common practice both here and abroad. The authorities are not opposed to this view. Arnould lays down that the ship, goods, freight, and profits must be described; it surely follows that the fact that it is a re-insurance should be mentioned. Phillips' par. 498, concludes "the better doctrine to be" that the fact of re-insurance need not be described; but his conclusion is not warranted by the cases he cites, and in that very section he writes, "Mr. Christian says a re-assurance must be expressly mentioned." Andree v. Fletcher, 2 T. R. 161 ; New York Bowery Fire Insurance Company v. New York Fire Insurance Company, 17 Wend. 359. [BRAMWELL, B.-Suppose a carrier insures goods which are destroyed by the Queen's enemies, so as to render him free from all liability, could he recover the value of the goods?] Doubtless if he had in fact insured them he might, he need not set up the defence of Queen's enemies, he might claim the money and pay it over to the owner; moreover, carriers and bailees have a special property in and possession of the goods, so that they can bring trover. London & Northwestern Railway Company v. Glyn, 28 L. J. Q. B. 188. Anderson v. Morice, 23 W. R. 160, L. R. 10 C. P. 58, merely decides that the plaintiff had an insurable interest. [POLLOCK, B.-The plaintiff's point is that if the underwriter has the insurance matter fairly described, it does not matter to him to know who the owner is.] Glover v. Black, 3 Burr. 1394, is a clear decision on the point as far as concerns respondentia and bottomry. A re-insurance is an indemnity on an indemnity; it may even extend to the premiums paid. The case of insurances effected by carriers has already been reThe clear distinction between insurance and re-insurance has al-ferred to, and on the same principle the mortgagor and the mortways been recognized, and 30 Vic. c. 23, sched. 3 and 4, especially mentions re-insurances, and provides for the stamp duty on them as though they would not otherwise come within the act which had already mentioned insurance.

BRAMWELL, B.—I am of opinion that this rule must be discharged; and that our judgment must be for the plaintiff. It is admitted on all hands that, as a general rule, a policy of marine insurance must contain a description of the ship, the subject-matter of the insurance, the voyage, and the perils insured against. A policy of insurance is a document to which a customary meaning attaches by mercantile usage. It imports that the person insuring states the subject-matter, the risk and the perils, and then, in effect, tells the underwriter that what he wishes is a guarantee against loss by the non-arrival of certain named goods. The defendant who seeks to avoid this policy, must make out clearly why an exception should be introduced in his favor; and in the present case, he attempts to do this for a reason which, if good at all, goes to the question of concealment. Now, if that is a good reason, then the jury were wrong; but there is no rule on the ground that the verdict was against the weight of evidence. The underwriter can put in any clauses that seem to him good or necessary measures of precaution, and in the present case the simple phrase "warranted not a re-insurance," would have held him harmless. He, however, maintains that the plaintiff was bound to add ⚫ being a re-insurance," after the words "on goods." If, however, this is immaterial, it would be an anomaly, and we are not to introduce anomalies into the law of insurance. The authorities, as it seems to me, are strong in the plaintiff's favor. A carrier is able to insure the goods he is carrying, just as though he were the owner, but if he could only insure his possessory interest -the interest, that is, which he has in their carriage-he would only recover a nominal amount in the case of their loss, some

POLLOCK, B-I am of the same opinion. The question before the court is, whether by law a re-insurer is bound to inform the underwriter that it is a re-insurance. There is no question of concealment here; that and all kindred questions are concluded by the finding of the jury. The bona fides of the plaintiff was established; the immateriality of the fact of the policy being a policy of re-insurance is found, and we have to decide what the law is. The contention is that the plaintiff is bound to show that the policy is one of re-insurance, and that if he does not he can not recover anything under the policy. There is no doubt that the assured is bound to state the subject-matter of the insurance, and the question is whether he can be considered to have done so when he has not mentioned his interest. I think that the fact that he did not declare his interest, does not deprive him of the fruits of his policy.

gagee of a ship and a vendor and vendee can all insure their interest in the subject-matter of the contract. Reed v. Cole, 3 Burr. 1512, is in the same volume as Glover v. Black, and helps to show that the decision in this last-mentioned case turned on the particular facts, and that it was by no means intended to decide that in all cases (the statute requiring it having been repealed) the nature

of the interest must be declared. In the case of Reed v. Cole the

insured was a stranger to the ship, having parted with his interest, as was alleged in the plea, before the loss happened, and the court there held that he was still interested quoad the loss.

In the case now before us, the subject-matter of the policy is set out, and that is quite sufficient to entitle the plaintiff to recover. Before Glover v. Black was decided it is well known that there was great jealousy on the subject of lending and borrowing on ships and cargoes, as merchants, so called, were then not seldom mere adventurers. Wager policies and gambling insurances were of frequent occurrence until discouraged and forbidden by the law. In the case of Gregory v. Christie, 3 Doug. 419, cited in Park on Marine Insurance, vol. I, p. 522, it has been held that the phrase "goods, specie, and effects" covered a sum of money advanced by a master for the benefit of the ship, and for which he charged a respondentia interest. In the Code de Commerce, art, 342, we find the provisions of the French law on this subject. Emerigon, chap. 8, s. 14, treats of the same subject, but it does not appear that there is much authority in the English books on the point now before us. I do not think that the defendant has established his case, and the rule must be discharged.

AMPHLETT, B.-After some doubt I have come to the same conclusion. My mind has wavered during the argument, and there appeared to me to be some difficulty in the question of the description of the subject-matter. If the first policy had been void for fraud, the second policy would have been void also, so

The custom

that there is some connection between the two.
which, it was admitted, prevailed amongst mercantile men, of
mentioning the fact of a re-insurance, affects the case only as a
matter of evidence, as to whether there was concealment or not.
The argument as to the convenience of mentioning the second in-
surance seems to me to be very strong; the practice seems to be
usual in the civilized world, although it may be observed that the
authorities in America are divided on the point; but as the law
stands in England, these would appear to be topics for a jury on
the facts of each case. I am therefore of opinion, although not
without some doubt, that the rule should be discharged.
RULE DISCHARGED.

Attorneys for the plaintiff, Norris, Allen, & Co.
Attorneys for the defendant, Gregory, Rowcliffes, & Co.

SAWYER, C. J., charged the jury orally as follows:*

Before going into the merits of the case, I wish to give you this caution, gentlemen of the jury: I do not suppose it necessary, but still I deem it advisable, under the circumstances, to give it.

the one or the other.

even.

NOTE.-The English court is to be commended for its refusal "to intro-You will sit here as an impartial jury, as impartial arbiters between duce anomalies into the law of insurance." Conceding that the fact of the these parties. You are neither to look with favor or disfavor upon You are to hold the scales of justice You are to determine the facts of the case upon the evidence that is before you, and not upon any other evidence or any other consideration whatever. You are to take that evidence as the witnesses delivered it to you upon the stand, precisely in the way that you believe them to intend to be understood.

policy being a re-insurance was immaterial, as the jury found it, the conclusion seems irresistible that it need not have been mentioned. The question which this case thus settles for the English practitioner, does not seem to have been the subject of adjudication in America. It is true the English baron suggests that "the authorities in America are divided on the point." But an examination of the American cases and text-books, exhibits a curious misunderstanding on this subject.

Mr. Phillips, in the earlier edition of his work on insurance, quotes Christian's note to 2 Bl. Com. 460, a re-assurance must be expressly mentioned to be a re-assurance, in the policy," and says (p. 204), "but the case cited by

him (Andree v. Fletcher, 2 Term R. 161), does not appear fully to support the position." He then adds, The opposite doctrine has been adopted in New York, where it has been held that an underwriter may effect re-insurance directly on the property insured by him against the risks he has assumed, without specifying that it is a re-insurance, but describing the property as in an original insurance," and cites N. Y. Bowery F. Ins Co. v. N. Y. F. Ins. Co., 17 Wend. 359. In this conclusion, the counsel in the principal case says Mr. Phillips was not warranted by the case he cited. In fact the case in 17

Wend. is not an authority on this point. The question was not discussed in it, and it seems to have been there a contract expressly for re-insurance, and so

understood by both contracting parties. The rule laid down by Mr. Phillips in his later editions, par. 498, and quoted in the brief of counsel, supra, though now justified by the foregoing opinion, does not seem to have been drawn from any American authority. The other cases quoted in support of it decided merely that, in general, indirect interests in the insured property need

not be specifically stated.

The later text writers on insurance seem not to have fallen into the same error that Mr. Phillips has as to the effect of the 17 Wend. case.

cases.

It has been generally held in America that the statute of 19 Geo. 2, was not in force, and that re-insurances were lawful, as well in fire as in marine Merry v. Prince, 2 Mass. 176; Hone v. Mut. Safety Ins. Co., 1 Sandf. 137; Hastie v. De Peyster, 3 Caines, 190; Bowery Ins. Co. v. N. Y. Ins. Co., 17 Wend. 359. In a late case in the Court of Appeals of Maryland, at April term, 1874, it was decided that the statute of 19 Geo. 2, is in force in that state, but applies only to marine re-insurance, and that re-insurances of fire risks are, and have always been valid. Real Estate, Etc., Co. v. Caslow, 3 Ins. Law Jour. 757. It results that that statute remains in partial force in America, after its repeal in Great Britain.

Life Insurance Fraud

Estoppel

Agents.

P.

Counsel, in their zeal, often differ as to what the testimony of witnesses is. In their interested view they are sometimes liable different turn, a different construction from that which was into misapprehend; they are apt to repeat testimony and give it a tended; or to echo it back in their own language and convey a certain idea of their own, when the witness does not mean to convey that precise idea.

Anything of that kind you are to disregard. You will reject all those changes and turns and glosses that may be given to the testimony conveying a meaning manifestly not intended by the witness, and take the testimony from the witness' own mouth, as you believe he desired it to be understood.

There is one other remark that, in view of the course which was taken in the argument, I think I ought to make:

A great deal has been said of the injustice of insurance companies defending against their policies. Now, gentlemen, I state this to you: That if a fraud has actually been perpetrated upon this defendant, and an uninsurable life has been fraudulently palmed off upon it, and its officers are aware of that fact, it is as much the duty of defendant to itself, to the other policy-holders in that company and to the public, to defend a suit upon such a policy, as it is to pay a loss when the policy has been fairly and properly issued.

You must determine all these questions upon their individual merits, and not allow youself to be swayed or prejudiced by what other companies have done, or by what this company may be said to have done in other cases on other occasions; you are to determine whether or not, in this particular case, there has been such Powers of a fraud perpetrated, or there are such other circumstances as give the defendant a just defence. If you find for defendant, then it is your duty to give it the benefit of that finding; if you

HANNAH LEE v. GUARDIAN LIFE INSURANCE COM- find against the defendant, then it is equally your duty to give the

PANY.

United States Circuit Court, District of California, March, 1875.

2.

Before Hon. Lorenzo Sawyer, Circuit J., and a Jury.

1. Life Insurance-Application-Representations.-The representations of the application enter into and form a part of the policy, when it is so conditioned; and if they are substantially false in any particular material to the risk, the policy is void. If the applicant knows, or has an opportunity to know. the statements made in the application signed by him, he is bound by those statements, 3. Life Insurance Agent - Powers of. A mere solicitor for life insurance, whose blanks and forms exhibit the limitations upon his authority, can not bind his principal by acts done in excess of such limitations, in a transaction of which those blanks and forms are a part.

gives it to you, whether it be right or wrong, and be governed trary. His testimony is that he read these questions through, quesby it. tion by question, received to each Lee's answer, wrote it down as given, and after writing it down read the question and answer again before proceeding; and that he thus went through with each and every question in the application to Mr. Lee, who gave the answers now appearing in that paper.

The provision is one of the terms of the contract. The defend-up the applications as indicated by the printed forms, and gave no ant has never agreed in this policy to insure the applicant upon any other terms than that those representations are true, and the plaintiff has accepted the contract with that term in it. Their minds have fully met upon that one item of the agreement, and not upon any other proposition or terms. As I said before, if any of those representations are substantially false in any particular material to the risk, then, under the terms of this contract, the defendant is entitled to a verdict. That would be its right upon

the insurance is made-not by the solicitor-and on that very the policy be not accepted by the party when issued, the above blank application are these questions: sum shall be forfeited to the company."

"Have you read the answers given to the questions page 1 and 2 of this application, and do you believe them to be correct?" "Are you aware that any untrue or fraudulent answers to the queries contained in this application, or any suppression of facts in regard to his (or her) health, habits or circumstances, or neglect to pay the premium on or before the day it becomes due, will vitiate the policy and forfeit all payments thereon, except as specified and agreed in the company's policy?"

"Do you understand that agents of the company are authorized to receive payments when due, upon the receipt of an authorized officer of the company, but not to make, alter or discharge contracts, or waive forfeitures ?"

Now, if Wright was authorized to make these declarations testified to by Mrs. Lee, and to procure or himself insert and return false answers, that would be an authority to change, by way of estoppel-to waive-the terms of the contract which the defendant itself had prescribed, and that very thing is expressly forbidden in the application which is presented, and under which he is at the very moment acting.

It goes upon the theory that Lee might decline to take the policy, although he made the proposition, and then provides that since he has made the proposition and put the company to the trouble and expense of examination, the sum shall be, if he then rejects the policy, forfeited to the company. But whether they acted upon that idea or not, that is the correct legal position of the parties.

In all this evidence there is no evidence that this agent had specific authority to commit this fraud upon the company. All the affirmative evidence in the case goes to show that he had no such authority.

I instruct you, therefore, that there is no evidence which will justify you, in this case, in finding that Mr. Wright had authority from this defendant to perform these acts which they claim to be matter of estoppel. If you were to find against this view from the testimony in this case, I should be compelled to set aside the verdict. I instruct you that there is no evidence tending to show that specific authority; the evidence is all the other way, and there is no conflict in it whatever; and the authority does not result, as a presumption of law, from the mere fact that Wright was furnished with those blank applications, and with authority to fill or have them filled up with the answers given by the parties desiring to be insured as the applications indicate. Then, gentlemen, this policy as it is written, is the contract by which these parties must be bound and their rights determined.

performed the acts which it is claimed he did perform, and in the way stated by Mrs. Lee, it was a fraud upon the defendant, a fraud practiced in the interest, necessarily, of the applicant or the assured, and not in the interest of the defendant, for it is not in the interest of the insurance company to insure an uninsurable life; if the company can not protect itself by its contracts and other means adopted, it will be at the mercy of any of the multitude of persons it necessarily employs, who choose to practice these frauds upon it.

But, gentlemen, the rights of the party are not ended or concluded with the making out of the application. When the application is made out and forwarded to the company it is not yet a contract of insurance. It is only then that it has attained to the position of a proposal on one side, not accepted by the other. There is no contract of insurance until the policy itself is delivered and accepted. If such a representation were made by the solicitor I will say further, with reference to this point, that if Mr. Wright at the time, afterwards, when this contract was delivered, the contract (under which the plaintiff claims, and which she has in her possession ever since) informs the party that the agent had no auauthority to make any such statement or procure the application in any such manner. It expressly brings it to the attention of the applicant that the contract is made upon the consideration that the representations made in the application for the same are made a part of the contract; and it further provides, as I have already read, that "it is also understood and agreed by the within as sured to be the true intent and meaning hereof, that if the representations made in the application for this policy, and upon the faith of which this policy is issued, shall be found in any respect untrue, then and in such case this policy shall be null and void." When this contract is tendered to him, there is brought to the applicant's attention directly from the defendant itself, from the officers of the company, in the very contract, the statement in express terms, that if those answers are false the contract is void, and it calls his attention to that fact, which would negative any idea o authority to the solicitor to make these representations in fraud of the rights of the company.

Besides, this kind of fraud could not be well practiced upon the insurance company except by either the co-operation of the applicant-and in case of such action and co operation, of course the policy would be void for fraud on his part-or else through his becoming by gross negligence the passive and culpable instrument of the party perpetrating the act. He is in fault because it is a piece of gross negligence on his part to sign a document of that kind without knowing its contents, and to accept a policy containing these specific provisions, referring back to the application, without considering the effect it would have upon his rights. And such negligence necessarily contributes to the accomplishment of the fraud.

Again it says, in the margin: "The agents of the company are authorized to receive premiums, when due, upon receipt of an auI instruct you, gentlemen of the jury, that this contract is the thorized officer of the company, but not to make, alter, or dis-measure of the rights of these parties; that this clause is binding, charge contracts, or waive forfeitures."

Thus in every paper where the defendant itself acts, it takes particular pains to bring this limitation of authority to the notice of parties dealing with it, and when this policy was delivered, if the party insured was unwilling to accept those terms, he should have rejected it; and it was not a contract until it was delivered, and until he received and accepted it, and the policy itself brought again to his attention the fact that there was no such authority to waive, expressly or by matter of estoppel, any right under the provisions of the policy in question.

This duplicate receipt in evidence, if it be the receipt that was given by Wright on the payment of the first $20 (and whether it is or not is a question for you to determine), also carries out that idea, that the contract is not a contract until accepted by the defendants. One of the provisions of it is: "If declined, the above amount will be returned on the surrender of this receipt; if

and that if there are any false statements or misrepresentation in in any of those answers-any statement substantially false, material to the risk assumed-then you must find for the defendant. If they were all true-substantially true-then you must find for the plaintiff. This brings us to the question whether there was anything false in these representations.

"rheu

It is claimed on the part of the defendant that these are false in several particulars. One question is, "Have you had any of the following diseases"-among others, "spitting of blood," matism," "palpitation of the heart," "or disease of any vital part?" The answer is, "No." "Are you subject to cough or 'Have you ever shortness of breath?" The answer is, "No." had any serious illness or personal injury?" The answer is, "Broken leg when about 13 years old."

"

*

You have heard the testimony on this subject.
Gentlemen: In addition to your general verdict, I have conclud

*