affect life; but on the whole he did not look upon him as a good life. Lord Mansfield, before whom the case was tried, observed:

The question of fraud cannot exist in this case. When a man makes ins. upon life generally, without any representation of the state of the life insured, the insurer takes all the risk-unless there was some fraud in the person insuring, either by his suppressing some circumstance which he knew, or by alleging what was false. But if the person insuring knew no more than the insurer, the latter takes the risk. When an ins. is upon a representation, every material circumstance should be mentioned, such as age, way of life, etc. But where there is a warranty, then nothing need be told, but it must in general be proved, if litigated, that the life was in fact a good one, and so it may be, though he have a particular infirmity. The only question is, whether he was in a reasonable good state of health, and such a life as ought to be insured on common terms.

The jury, on this direction, without going out of Court, found a verdict for the plaintiff. In the case of Aveson v. Lord Kinnaird and others, which came before our Courts in 1805, the facts were very remarkable. The husband insured the wife's life for his own benefit in 1802. The wife had proceeded to Manchester for the purpose of being examined prior to the ins. Shortly after returning to her home, she, then lying in bed ill, told a friend that, in consequence of the bad state of her health at the time of the journey, she did not think she should have survived the ten days which would elapse between the examination and the issue of the pol. She afterwards died, and an action was brought on the pol. The evidence went to show that she drank to great excess. The surgeon who had examined her was called by the husband to prove that the wife was then in "good health," he having been mainly guided by her answers. The insurers, by way of answer to this, called evidence of the above statement by the wife; and upon an appeal it was admitted, as showing her own opinion, "who best knew the fact of her ill state of health at the time of effecting the pol.' The case went for the defendants.

In the case of Watson v. Mainwaring, 1813, which was an action brought by the executors of Dr. Watson against the Equitable So. to recover the sum ins. on his life, the defence was that the deceased had, in breach of his declaration to the contrary, a disorder tending to shorten life, and that therefore his pol. was void. For the plaintiff it was proved that Dr. Watson had applied to a physician in Bath regarding dyspeptic symptoms, and that these, though uncomfortable, do not generally, unless increased to an excessive degree, tend to shorten life; and further that his complaint was not organic dyspepsia. Several medical men stated that they had attended him since the pol. had been effected, and that he was then quite free of the disorder. On the other side several medical men stated that they had seen him at the time of his visiting Bath, previously to effecting the ins., and that they considered him as a failing man. It was left to the jury to decide whether the patient's complaint was organic dyspepsia, and if it was not, whether the dyspepsia under which he had laboured was, at the time of effecting the pol., of such a degree that, by its excess, it tended to shorten life. The jury found that it was neither organic nor excessive; and gave a verdict for the plaintiff. An application was afterwards made at the Court of Common Pleas to set aside the verdict and have a new trial, on the ground that since the insured afterwards died of the same disorder which he had before effecting the pol., that circumstance was conclusive proof that he was then afflicted with a disorder tending to shorten life. Mr. Justice Chambre remarked:-"All disorders have more or less tendency to shorten life; even the most trifling, as for instance corns may end in a mortification. That is not the meaning of the clause. If dyspepsia were a disorder that tended to shorten life, within this exception, the lives of half the members of the profession of the law would be uninsurable." The application was refused.

In the case of Morrison v. Muspratt, 1813, the facts were these. A female with a disposition to consumption, such as cough and emaciation, had been attended by a medical practitioner for some time immediately previous to effecting an ins. He, however, did not suppose that structural disease was present, and she was then convalescent. The knowledge of this illness was not communicated to the insurers, and another practitioner, not then in attendance, but who had known her for several years, was sent to examine her, and he stated that she was in ordinary good health. She died a year after effecting the ins. of consumption. A verdict was found for the plaintiff; but on application a new trial was ordered, on the ground that neither the medical attendance nor the illness had been communicated to the insurers; and that the jury must decide whether this concealment was material.

In 1815, in the case of Huguenin v. Bayley, tried at the Sarum Spring Assizes, the defence set up was that a material fact had been suppressed. The life insured was at the time upwards of 60 years of age, but healthy for that period of life. It was not however mentioned in the medical certificate that at the time of examination, 1813, she was a prisoner for debt in the county gaol. The Judge supposed from the evidence, that by contrivance the physician had been prevented from stating this fact to the defendants, and therefore directed a nonsuit. But on an application to the Court of Common Pleas, a new trial was directed, on the ground that although there was nothing express in the terms of the pol. which required the imprisonment to be stated, and although everything called for by the office was answered, yet, if the imprisonment were a material fact, the keeping it back would be fatal. It ought, however, to have been submitted to the jury whether this was or was not a material omission.

In the case of Maynard v. Rhodes, 1824, the omission to mention the actual medical attendant proved fatal. Col. Lyon ins. in the Pelican. Previous to acceptance the usual printed proposal form was sent to him. Among its questions were, "Who is your medical attendant?" He answered, "I have none, except Mr. Guy, of Chichester." Another, "Have you ever had a serious illness?" He answered, "Never." Mr. Guy was referred to, and gave it as his opinion that Col. Lyon was an insurable life. He died in Oct., 1823, of a bilious remittent fever; and an annuity creditor pressed on an action against the Ins. Co. It was proved, on the part of the Co., that Mr. Guy had not been called to attend him for three years previous to giving his certificate; but that in 1823 Dr. Vetch, a physician, and Mr. Jordan, a surgeon, attended Col. Lyon from the month of Feb. to that of April, for an inflammation of the liver and fever, and a determination of blood to the head. The former proved that he considered him in a dangerous way, and had prescribed active medicine; and that he would not have certified him to be in health until the end of May. It was, however, agreed on all hands that the disease of which he died had no relation to any of the complaints for which these gentlemen attended him. The jury, however, found a verdict for the Co.

In the case of Chattock v. Shawe, 1835, the facts were as follow:-Colonel Greswolde made an ins. on his life, and died in two years thereafter. The Co. resisted payment, on the ground that the Colonel had been intemperate, and also had epileptic fits; and that these facts had been concealed from them. On these points there was great diversity of testimony. It turned out, however, that the ins. had had two fits, the result of an accident, and that he died from a fit. Lord Abinger charged the jury that all that was required to be considered was, whether it was satisfactorily proved that the Colonel had been subject to fits and accustomed to intemperate habits before the pol. was issued. It was not sufficient to vitiate the pol. if an epileptic fit had previously occurred in consequence of an accident. It must be shown that the constitution either was naturally liable to fits, or by accident or otherwise had become so. A verdict was found for the plaintiff.

The case of Lindenau v. Desborough (1828) is very frequently referred to in works on the law of ins. It was a remarkable one. In 1824 a pol. was effected by the Baron Von Lindenau on the life of Frederick IV., Duke of Saxe-Gotha and Altenberg, in the Atlas Ins. Co. The Duke died on the 11th Feb., 1825, and the office refused to pay, on the ground of concealment and suppression of material facts. On the trial it appeared that Lindenau had stated in the application that the Duke was not gouty, asthmatic, or consumptive, or subject to fits; that he had never had apoplexy, and that he had no disease tending to shorten life. Two physicians of the Duke certified that since the year 1809 he had had a dimness of sight, from amaurodis in the left eye, and since 1819 had been "hindered" in his speech from having had an inflammation of the chest, of which he had been perfectly cured; and they further stated that he was perfectly free from disease and the symptoms of disease. In a communication from an agent in Germany, it was mentioned that the Duke had formerly led a dissolute life, "by which he had lost the use of his speech, and according to some, that also of his mental faculties; which, however, is contradicted by the medical men." On this the Co., instead of quoting the ordin. prem. of £2 175. p.c. p.a., required £5 p.c. It was now put in evidence that the Duke had been afflicted with almost a total loss of speech from 1822 to the time of his death, which one of the physicians attributed to local paralysis; and that he had periodical catarrhal affections, accompanied with fever. The chamberlain of the Duke, on his examination, mentioned that he never complained of pain in his head. He ate, drank, and slept well, but could not speak. Dr. Dorl, physician to the Duke, agreed that his intellectual faculties were impaired, although his bodily health was good. On post-mortem examination no chronic disease had been discovered in the viscera or any part of the trunk; but in the head was found a large tumour, six inches in length, two in breadth, and one in depth, which not only pressed on the brain, but had depressed the skull at its base. It was inferred that this tumour had commenced in early life. Mr. Green, an eminent English surgeon, gave it as his opinion that, from the hist. of the case merely, there was no symptom of organic disease. He further thought that the tumour in the skull must, during life, have been in a passive state, and, from the appearance on dissection, that it must have been formed in early life. He was only willing to allow that the symptoms mentioned above would lead to a suspicion of disease in the head; and he was disposed to attribute the difficulty of speech to want of volition, and not to the tumour in the brain. In reply, however, to a question from Lord Tenterden, the Judge before whom the case was heard, he answered, "If I, as a medical man, was asked by an ins. co. concerning the state of a man's health who was unwilling to move, who was subject to control upon his intellect, and who had lost his speech, I should not consider myself at liberty to forbear mentioning these circumstances.' Lord Tenterden said this was sufficient, and he should charge the jury, that if any material facts relative to the Duke's health were concealed, the pol. was void. The plaintiff thereupon elected to be nonsuited; but subsequently made an effort to obtain a new trial, which was refused.

In 1829 there came before the Courts the case of Everett v. Desborough, in which some points of the law in relation to insuring upon the life of another were elucidated. Everett

had effected a pol. with the Atlas for £1000 on the life of Howes, who had formerly resided at Warminster, but afterwards removed to Bath. While in the former place he was sober and temperate in his habits, and was to all appearance a man enjoying a good state of bodily health; while at the latter place he gave himself up to habits of intoxication, and ultimately died in a fit of apoplexy. On the application for ins., the agent of the Atlas gave to the plaintiff a paper containing the questions touching the health of the life to be insured. Amongst these was one requiring the name of the medical man who had usually and of late attended the person to be insured. The plaintiff inquired of Howes on these points, and was referred to a Mr. Vicary, of Warminster. Upon action brought, it turned out upon evidence that Dr. Vicary had not attended Howes for nearly twenty years. The question was raised whether this misrepresentation did not vitiate the pol., although unknown to the plaintiff. In the end a nominal verdict was taken for the plaintiff, with leave to the Co. to move to enter a nonsuit. On the subsequent hearing it was admitted to be a rule of law that, in cases of this kind, if the party ins. the life of another practised any concealment or deceit on the underwriters, with regard to any material fact concerning the life to be ins., upon proof of the fact, the pol. was vitiated. But in this case the deceit or concealment was practised by the life ins., and not by the plaintiff, who was ignorant that any misrepresentation had been made. On the part of the Co., it was contended, that the plaintiff in the case must be treated as principal, and Howes as the agent. The plaintiff acted upon the representation of Howes, who was his agent, and he (the plaintiff) should be held liable as the principal for the acts of his agent. The Court adopted this view, and the rule for nonsuit was made absolute in favour of the Co.-This principle was affirmed in the case of Maynard v. Rhodes.

About 1830 the well-known case of the Earl of Mar arose. In 1826 the Earl effected several ins. on his life, and among these one in the Edinburgh L. for £3000. This pol. was held by a banking house in Edin. as security for debt. The Earl died in Sept. 1828, of jaundice and dropsy. The Co. then learned that he had been for years in the habit of taking laudanum to excess; and instead of being, as had been represented, temperate and active, that he had drank to excess, and led a very sedentary life. They refused to pay, and a suit was instituted in the Scotch Courts. The plaintiffs admitted a manifest change in the health and spirits of the Earl in 1827, but ascribed this to his pecuniary embarrassments. On the part of the Co., it was proved that he had been in the habit of taking laudanum for 30 years, and in large quantities. He used to take a tablespoonful at a time on going to bed, and often also when going out to walk, etc. They contended that this was a "habit tending to shorten life." It was also stated in evidence that he had been subject to rheumatism and stomach complaints previous to effecting the ins. The charge of the Chief Commissioner-before whom the case was heard-was in favour of the plaintiffs, principally on the technical ground that the Co. did not make inquiries relative to the health of the Earl with the care usually observed, and were therefore to be understood as accepting the life at a venture. He also appeared to entertain doubts whether the habit was carried to such an extent, or at all events whether it was so important a circumstance, as to render it necessary for Lord Mar to reveal it. The jury thereupon found for the plaintiffs; but on an appeal to the Court of Session, the verdict was set aside, and a new trial was granted, 1832. The Lord Chief Commissioner said "it was a verdict without due and sufficient deliberate consideration of the evidence." The parties finally came to a compromise. [Forbes and Co. v. Edinburgh L. Assu. Co., Cases in the Court of Session, vol. x. p. 451.]

In 1830 also there came before the Court of Common Pleas the case of Edwards v. Barrow and others, which presented some novel features. A pol. of ins. had been effected with the Globe on the life of a Miss S. The pol. was dated 10th Sept., 1828, and was for 7 years. Miss S. died in March, 1829. The usual declaration had been made, and was recited in the pol., "that the person ins. was not afflicted with gout, etc., or any disease tending to shorten life." It appeared in evidence on an action brought that at Christmas, 1827, she was in a fair state of health; that in Sept., 1828, she was in general good health, except that she complained of little pains in the head. She was a pale and weakly-looking person. In Feb., 1828, she had been bled and leeched for a supposed determination of blood to the head; but appeared subsequently, and shortly previous to her last illness, to be healthy. Upon a post-mortem examination it was the opinion of the medical men that there was nothing which they could call unhealthy about the stomach or head, or anything elsewhere which would lead them to suppose that she was affected with any disease likely to shorten life. It turned out that in 1825 she had had a child. A physician who was examined stated that that fact could not have accelerated her death, and that he should not think it necessary for an office to inquire if a female had had a child; but that he, being aware of the fact, and being applied to by an office, should think it material to state it. Some letters from Miss S. to a schoolfellow were written shortly before and after the ins. was effected, detailing the state of her health, which she considered very bad, and stated in one of them that "her health was entirely gone, and her constitution quite undermined." The Chief Justice interposed, and asked the counsel for the plaintiff if he thought he could get over the declarations in these letters, and also

VOL. II.

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the fact of Mr. H. E., who effected the ins., concealing the circumstance of Miss S. having had a child, of which he was aware? A nonsuit was submitted to.-Ellis, 1846.

In the famous Irish case of Abbott v. Howard (Director of Alliance F. and L.), 1832, where the jury afterwards found there had been concealment, Chief Baron Joy charged the jury on the subject of Concealment as follows:

The question is then, has this Ins. Co. been fairly dealt with, and has no fact been withheld from them which they were entitled to know? I take the law to be this, as to the facts and circumstances not provided for by the written instrument, that they may or may not be material; but if they be material, they ought to be communicated to the Co. It has been argued here that the parties

are bound by the terms of their pol.; that they cannot travel out of them; and that the written contract cannot be varied by any matter dehors it. The defendants seek not to vary, but to annul the

contract, on the ground that by this fraudulent concealment it would be inequitable to enforce it. [After citing Huguenin v. Bayley, already quoted by us, he continued:] That case shows as clear as light that although the party did not omit to answer anything as to which he was interrogated, yet if anything material were in his knowledge, and not communicated, the suppression would be fatal.Bliss, 1872.

In the case of Swete v. Fairlie, 1833, where the ins. was on the life of another, the life insured, Mr. Abraham, had stated in reply to the usual question concerning diseases, that he was troubled with "occasional indigestion only." This was in 1827. It appeared in evidence at the trial that he was seized with depression of spirits, nearly, if not quite approaching to insanity. He was not however secluded, but took lodgings in the country, and came to town every day and attended to business. This after some time restored him to health. His complexion was florid, and there was the general appearance of a tendency to determination to the head. He died of apoplexy in 1830. It was held, by Lord Lyndhurst, that a pol. of ins. on the life of another person, who at the time of ins. is in a good state of health, is not vitiated by the non-communication by such person of the fact of his having, a few years before, been afflicted with a disorder tending to shorten life, if it appears that the disorder was of such a character as to prevent the party from being conscious of what had happened to him while suffering under it.

In the case of Fisher v. Beaumont, tried at York in July, 1835, the defence was the existence of insanity, which had been concealed. The Judge told the jury that the question was, whether the individual laboured under any disease likely to shorten life at the time the policies were effected; whether insanity was that disease; and, if so, whether it had a tendency to shorten life. The presence of insanity was proved; and all the medical witnesses except one swore that they did not think it had a tendency to shorten life. The jury found for the plaintiff. A correspondent in the Lond. Medical Gazette combated the above medical testimony, and quoted Lawrence in proof that the brains of maniacs show more or less disease. On the other side the long life of many of the insane was urged. Beck (Med. Jurisprudence) argued from this case the necessity of tables of mort. based on returns from lunatic asylums to settle the point. [LUNACY.]

In the case of Huckman v. Fernie, 1838, the action was brought by the plaintiff on a pol. effected on his wife's life, who, it appeared in evidence after action brought, had, before and up to her marriage, been frequently attended for serious disorders by a particular medical adviser, and nearly up to the time when the pol. was effected; and that after the marriage the medical attendant of the husband's family on one or two occasions, when called in to other members of the family, had prescribed for her in the case of a cold or some trifling matters. She referred the office to the latter as her usual medical attendant. The Co. stated that before the ins. was effected the wife had suffered from delirium tremens, erysipilatous inflammation of the legs, etc., all which the husband knew. It appeared that at the time the pol. was issued the wife had been examined at the ins. office, and answered several questions put to her, but did not inform the Co. as to these disorders. It did not appear that questions eliciting these disorders had been put; nor did they appear to fall within the scope of the declaration on the proposal for ins. The jury did not find the insured to be intemperate, or that the statement of the disorders was material to be known. It was held upon the issue as raised by the pleadings, that the wife was not the general agent of the husband, but only sent to answer particular questions; and that her knowledge was not, in this respect, the knowledge of the husband. The verdict was for the plaintiff; and although an application for a new trial was made, on the ground of the Judge having left it to the jury to say which was her usual medical attendant, the verdict was not disturbed.

In the case of Geach v. Ingall (Sec. of Imperial L.), 1845, where it was stipulated by the pol. that it should be void, if anything stated by the ins. in his declaration to the directors should be untrue, the ins. in his declaration had stated that he was at that time in good health, and not afflicted with any disorder, nor addicted to any habit tending to shorten life; that he had not at any time been afflicted with insanity, rupture, gout, fits, etc.; that he had not any spitting of blood, consumptive symptoms, asthma, cough, or other affection of the lungs; and that W. was at that time his usual medical attendant. It afterwards transpired that for years previously the ins. had spit blood; that he had since evinced consumptive symptoms, and ultimately died of consumption, three years after taking out the pol. The Judge directed the jury to say whether the ins., when he made his declaration, had such a spitting of blood and such an affection of the lungs and inflammatory cough as tended to shorten his life :-Held, on appeal, that this was a mis

direction, as the ins. was bound to state to the Co. the fact of a single spitting of blood, to enable them to ascertain whether it proceeded from the disorder called by that name. In the case of Anderson v. Fitzgerald, decided in the House of Lords in 1853, the circumstances were as follow: F. applied to the United Kingdom Ins. Office to effect an ins. upon his life. He received a form of proposal, one of the questions in which was, "Did any of the proposer's near relations die of consumption or any other pulmonary complaint?" Another was, "Has the proposer's life been accepted or refused at any other office?" To each of these questions F. answered "No." These answers were false. F. signed the proposal, and a declaration accompanying it, by which he agreed "that the particulars mentioned in the proposal should form the basis of the contract. The pol. mentioned several things which were warranted by F. The subject of these two answers was not included in such warranty. The pol. also contained a proviso, that "if anything so warranted shall not be true, or if any circumstances material to this ins. shall not have been truly stated, or shall have been misrepresented or concealed, or any false statements made to the Co., or about the obtaining or effecting this ins.," the pol. should be void, and the prems. paid should be forfeited :-Held, on appeal, that it was a misdirection to leave it to the jury to say whether the answers to the questions were material, as well as false, and that, if not material, the plaintiff was entitled to a verdict. representation being part of the contract, its truth, and not its materiality, was the question. In the case of Jones v. Provincial Ins. Co., 1857, the facts were as follow: At the time of effecting the pol., the insured signed a declaration in writing, which was to be the basis of the contract, and in which he stated that he had not had certain specified diseases; that he was in good health; and that he was not aware of any circumstance or disorder tending to shorten his life, or to render an ins. on his life more than ordinarily hazardous :-Held, that to make the declaration untrue, so as to vitiate the pol. granted, the insured must not only have known, when he signed the declaration, that he had had some circumstance or disorder tending to shorten his life, or to render an ins. on his life more than ordinarily hazardous, but he must also have known that such circumstance or disorder was of a character to shorten his life, or to render an ins. on his life more than ordinarily hazardous.

The

In the case of Hutton v. Waterloo Life, tried before Lord Chief Justice Cockburn in 1859, the form of proposal of the Co. contained the following questions: "If of sober and temperate habits? "If aware of any disorder or circumstance tending to shorten life?" "Is there any other and what information touching the past or present state of health which the Co. ought to be made acquainted with?" "Name and address of ordinary medical attendant?" The answers concealed certain information. The insured had, in the year preceding that in which the pol. was effected, and in the very same year, been attended for the effects of severe drinking; on the last occasion (a month or two before the proposal for ins.) for delirium tremens, of which he, in two years' time, died and the medical man who had attended him for several years before the ins., and down to his death, was not mentioned as the ordinary medical attendant :-Held, that this justified a verdict for the Co., even although the answer to the latter question was bonâ fide.

In the case of British Equitable Ins. Co. v. Gt. Western Railway Co., in the Equity Courts, 1868, the facts were as follow: In July, 1863, B. negociated for the ins. of his life, and in filling up the usual declaration as to his health and habits of life, stated that he could not remember when he was last ill, and that he was then, and always had been, enjoying good health. After examination by the medical officer of the Co., he was accepted as a first-class life. In August preceding the completion of his contract he became alarmed about his health, and went to consult a physician other than his ordinary medical attendant, who warned him that he was in a dangerous state of health, and prescribed for him. He never communicated this circumstance to the Co. In Sept. the prem. was paid and the pol. effected. On the receipt for the prem. was indorsed a condition that if any variation should have taken place in the health of the insured since the date of medical examination, and before actual payment of the prem., the receipt should be void. Eight months afterwards the insured died. It was not proved satisfactorily of what disease:-Held, that the non-communication to the Co. of his change of health and visit to the physician was fraudulent, and vitiated the pol. This was confirmed on appeal. In the case of the Life Asso. of Scotland v. Jane Foster and others, before the Scotch Courts in January, 1873, the Co., in attempting to act upon the ruling of some of the preceding cases, by resisting a claim where incipient hernia had been concealed, has found itself defeated, and has been subjected to some severe comments. The complexion of the case rendered it not a happy one to contest.

In the case of Bembridge v. Hoare (Chairman of the Sun Life), before the English Courts three days later than the last-named case, where the concealment was mainly in relation to difficult labours, and derangements consequent thereupon, the jury found for the defendants on all points.

It appears that the law regarding Concealment in relation to life ins. is the same in the U.S. as in the U.K. Mr. Bliss jun., in his excellent Law of Life Insurance, etc., 1872, says:

It is true of Concealment, as of misrepresentation, that if it proceeds from fraud, it avoids the