an end; and I think that, when the risk ceased, the guarantee must be considered as satisfied."

§ 306 a. An insurance upon a life was effected under the following circumstances: An infant who was furnished with necessaries, and the means in cash of procuring them, by his parent or guardian, or from other sources, was held not to be liable, primâ facie, for necessaries furnished by a stranger on credit; but it seemed, that a policy of insurance effected by the creditor, under such circumstances, on the life of the infant, as security for his debt, was not affected by its invalidity; and, at any rate, the proceeds of the policy could not be claimed by the infant's administrator. The Chancellor, in his opinion, remarked: "If the creditor of an infant, for a consideration paid by himself, obtains a guaranty from a third party, I see no reason why such third party should not be bound, nor why the creditor should not have the benefit of his bargain." 1

1 Rivers v. Gregg, Court of Appeals of S. C., reported in American Law Register, for December, 1854, p. 88.

32*

CHAPTER XV.

OF LIFE INSURANCE IN REGARD TO WARRANTY, REPRESENTATION, AND CONCEALMENT.

§ 307. WHAT is a warranty in the contract of Life Insurance, and what, in connection with the same subject, is a representation, and whether material or not, and what is a material concealment, depends precisely upon the same principles which have been laid down as applicable to the contract of Fire Insurance. It will appear, by having recourse to the chapters referred to in the note below, that the effect of a stipulation amounting to a warranty, is to render the accuracy of the state of facts alleged in it a cONDITION PRECLDENT2 of the insurer's responsibility, and he becomes bound only "if," and "in the event that" they are literally as the assured has thus represented them to be. A declaration of the age and state of health made previous to the policy being issued, which is always referred to in the policy, is to be taken as a part of it; and where there is no stipulation amounting to a warranty, an untrue allegation of a material fact, or a concealment of a material fact, will avoid the policy, though such allegation or concealment be the result of accident or negligence, and not of design.5 The same as in fire

1 See ante, Chapter VI., "Of Warranty and Representation;" "Concealment," ante, Chapter VII.; "Misrepresentation and Concealment of the Interest of the Assured," Chapter VIII.

2 See ante, § 142.

3 Dowdeswell, 35.

4 See 1 Bell, Comm. 545, 546.

5 Vose v. Eagle Life and Health Ins. Co. 6 Cush. (Mass.) R. 42.

policies. As to an implied warranty, and as to matters subsequent and matters precedent, in a warranty, and as to an affirmative or promissory warranty; and as to affirmative and promissory representations, the reader is referred to the note below.2

§308. In the United States, the decisions which have been the direct results of warranty, representation, or concealment, in the contract of Life Insurance, are in number very limited compared to those which have been made in England; and yet it cannot be said of the latter that they are very numerous. For a valuable summary of the latter the author acknowledges his indebtedness for the saving of labor, to several English authors, who have given to the public valuable works on the subject of Life Insurance.

§ 309. As in Fire Insurance, so in Life Insurance, the effect of warranty is to insure the accuracy of the state of facts alleged in it; and consequently the greatest care in making a declaration of them is requisite. There cannot well be too great care in making this declaration; and where

1 See ante, Chapters VI. VII. VIII. There is an old case in the English Court of Chancery, 1690, in which a policy of insurance for insuring a life, gained by fraud, was set aside, both at law and in equity. Whittingham v. Thornburgh, 2 Vernon's Ch. R. 206, and S. C. Prec. in Chan. 20; and see 2 P. Williams, R. 476; 3 Burr. R. 361. Policies are vitiated by fraud or falsehood as to the health of the assured. This is the point on which the physician's testimony may be, and indeed is, frequently required. 1 Beck, Med. Jurisp. 677.

2 As to implied warranty, ante, § 144; as to matters subsequent or to matters precedent, ante, § 145; or an affirmative or promissory warranty, Ibid. As to affirmative and promissory representations, ante, § 149; and see also ante, § 281; Lord v. Dall, 12 Mass R. 115; Vose v. Eagle Life and Health Co. 6 Cush. (Mass.) R. 42; Beck. Med. Jurisp. 674, (ed. of 1850.)

3 Viz.: Ellis on Fire and Life Ins.; Beaumont on the same subjects; and more especially the later production of Dowdeswell, which likewise embraces both the subjects of Fire and Life Insurance.

there is a doubt, or even a deficiency of evidence, it may be prudent to object to the insertion of some of the clauses, for the insurers are at liberty to controvert them at any time, and the proof devolves upon the person claiming under the policy. In the event, therefore, of a dispute after the death of the party, it would be incumbent on the assured or his representatives, or a perfect stranger to whom the policy may have been assigned, without requiring the insurers to produce any evidence to impugn the truth of them, in the first instance to substantiate by legal evidence the facts affirmatively stated.1 Hence it is desirable that the insurance office should, if possible, be satisfied in the first instance upon some points, and that these should be admitted upon the policy. The age of the party, which is capable of easy proof, is the only fact usually admitted, and this admission is said to increase considerably the marketable value of the policy, but there is no reason why, in many cases, the existence of the interest, where the insurance is effected by a third person, the correctness of the references, and the fact of the party having had the small-pox or cow-pox, should not likewise be admit ted.2

§ 310. Upon the different clauses of declarations, varying slightly in terms from the forms set forth, there have been several decisions, which will illustrate the view taken of them generally by the courts, and the spirit in which they are construed. Thus, a declaration that the party had not been afflicted with nor was subject to fits, was held by Lord ABINGER, C. B., to mean, not that he never accidentally had had a fit, but that he was not a person habitually or constitutionally afflicted with fits; a person liable to fits from some peculiarity of temperament, either natural, or contracted from

1 Rawlins v. Desborough, 2 Mood. & Rob. 70; Geach v. Ingalls, 14 Mees. & W. 95.

2 Dowd. vol. sup.

some cause, during life. In that case, therefore, the policy wherein it was contained, was held not to be vitiated by the circumstance that, in consequence of a fall, the person whose life was insured had, several years before the date of the policy, two epileptic fits within a short interval, which the jury were satisfied had never recurred. This case, it will be observed, was decided upon the peculiar expressions,' afflicted with,' or 'subject to' fits; the declaration did not positively allege, as in the form above set forth, that the party had never had a fit since his infancy; for had it done so, the defence to the claim on the policy must have prevailed, even though the seizures under which he was proved to have suffered were not calculated in any degree to impair life. It seems that if the assured takes upon himself to warrant that the person, whose life is the subject of the policy, never has had certain specified disorders, the bare fact that he has had any one of them suffices to annul it, and the degree or extent of the complaint, or the probability of its producing any permanent result on the constitution, is wholly immaterial. Notwithstanding the disorder may have assumed the mildest form, or exhibited itself in the most transient manner, so that its effect has wholly passed away when the statement is made, the insurers are entitled to insist upon the omission as a breach of this stipulation. In a very recent case,2 Scott, the assured, had stated in the declaration, which was incorporated in the policy, that he was not afflicted with any disorder tending to shorten life; that he had not at any time been afflicted with insanity, rupture, gout, fits, apoplexy, palsy, dropsy, dysentery, scorfula, or any affection of the liver; and that he had not had any spitting of blood, consumptive symptoms, asthma, cough, or other affection of the lungs. Evidence was given by the insurers, upon the trial of an action brought upon this policy, that the assured, about four years

1 Chattock v. Shaw, 1 Mood. & Rob. 498.

2 Geach v. Ingall, 14 Mees. & W. 95.