SA^^^^^ A ~ ~ ~ ~ ~ U ~ ~ - ~ ~ ~ ~ ~ ~ $a Zrmt-; ANR F ~ ~ ~ ~ ~ ~ ~ ~ ~ , ~ ~ e f e R ~ -

C o ~ ~ e n t e d on in 193 r e ~~~~~~~~~ ~r~~~~~~~

~~~~~~~e Go., 1575, L.R. 19 Eq. $95 ; Lo?zdon Asszcrasce Co. v. se^^ 1879,

I1 Ch. D. 571 ; ~ ~ u ~ s ~ ~ . ~ . tYeerts , 1884, 9 A.C. 682.1

~ t ~ ~ ~ r ~ ~ ~ art &if ~ - ~ f f t ~ ~ ~ ~ of untrue Am wcr,~-;1.risdirection-~~ll of ~ ~ ~ e ~ € ~ ~ ~ ~ .

Re received a form

of “ Proposal )) containing questions requiring to be answered. Among these

were the following : ‘ I Did any of the party’s near relations die of consumption

or any other pulmonary. c o m ~ ~ a i n t ~ ” and ‘‘ Has the party’s life been accepted

or refused at any office? ” To each of these questions F. answer^ ‘‘ No.”

The answers were false. F. signed the proposal, and a declaration accom-

pmying them, by which he agreed ‘‘ that the particulars mentioned in tbe

abwe proposaf. should form the basis of the cmtraet.” The poIicg ~ i e n t ~ o ~ i e d

several things which were ~ ~ w a ~ r a n t e d ” by F. The subjects of these two ans

were not included in such w a r ~ a n ~ y . The policy also conQined a proviso,

that “ i f anything so w ~ r r a x i ~ d shall not be true, or if any c i ~ c ~ ~ m s t ~ n c e .

material to this insuruiice shall riot have been truly stated, or shall have been

misrepresented o r concealed, or any false stat;ementa made tt3 the Conipany in

or about the o ~ ~ i n i n ~ o r effecting of this ~ ~ ~ s u r a n c e ~ the policy should be

void, arid the moneys paid should be forfeited.

Held, reversing the judgnients oC the Courte o’f Exchequer and Exchequer

Chmiber in Ireland, that i t was R, misdirection to leave,it to the Jury to say

whether the answere to the t.wo ~ u e s t ~ o n ~ were material as well as false, and

if not, material, that the plaintiff was entitled to the verdict. The r~presen~a-

tion being part of the contract, its firzith, not i t s materiality, was in q u ~ ~ ~ o n ~

A Bill of Exceptions, which sets forth what a Judge was asked to

direct, aiid alleges thaf, he refused to give E U G ~ direction, i s i ~ ~ ~ o r ~ n ~ l nnd bad.

A Bill ($2 ~ ~ c ~ p t ~ o n s should tate what ~ ~ ~ e c t ~ o ~ s the Judge gme, as it i g mis-

directioii, and not nondirection, which is the subject. of an exception.

This wtxs a writ of error on a judgment of the Court of Exchequer C ~ i a ~ ~ r in

Ireland. Ann Fitzgerald was the ~ d ~ i n ~ s t r a t r i ~ of one Patrick F ~ ~ ~ ~ e x a l d , deceased,

[4@] Ttle defendant Anderson represented the United Kingdom Life. Aseurwcs

Company. The action was brought against Anderson on a policy of insurance ebected

with that company upon ths life of Patrick Fitzgerald. The declaration, which was

in the usual form, set forth the policy, in which was a warranty that, amongst other

things!, the asmred was not affiicted with m y disease tending to shorten life ; that he

led, and mntinueki to lead, a temperate life, and that he had a saund and good

c o n s t i ~ ~ t ~ ~ ~ ~ . The policy also ocmt.ttined tl provirro, which, after providing against the

assured going beyond &e iiniits of Europe, or enkering the military or n a d service,

~ r o c ~ d e d thus: ‘‘ O r if anything so ~ a ~ r ~ x i t e d a8 doresaid shall not be true, or i f

any c~rcuK~ist~nce material ts this insurance s l d not have been truly stated, or &all

lime been ~ i ~ ~ s r e p ~ s e n t ~ d or concealed, or shd1 not have ~XWR fully and fairly disclosed

and c o ~ ~ 7 ~ n i c a t ~ to the mid company, or if any fraud shall hare been practised on

the said company, o r any false s ~ ~ t e ~ e ~ ~ t s made tn them in ~r about the obtaining or

e ~ e c t i ~ ~ of this insurance, this policy &all be null and void ; aiid all moneys paid by

or on behalf of the said Patrick Fitzgerald on account of this insurance shall Become

forfeited,” The declaration then c ~ n t a ~ n e d the U S U U ~ averments of the f u l ~ l ~ ~ e n t of

all matters requisite to be performed on the part of the deceased and his represen-

tatives by the ternis of the policy, and negatived the doing of any of the matters which

might hare vitiated the policy.

The d e f e ~ d ~ n t pleaded, first, -2EU72 ~ ~ s ~ L ~ ~ s ~ ~ , and secondly, a special plea, se~ting

forth the ’‘ proposal and statement ” which F ~ ~ ~ g e ~ a l d had signed, and which contained

among others the follt3wing d e c ~ ~ ~ . ~ t ~ o n ~ “ that none uf his near reldions had died of

consu~~~p t ,~o~ i , or any other p ~ ~ n i ~ ~ ~ ~ c o ~ ~ p ~ a ~ ~ ~ t , and that his life had not been f48.6f

accepted or refused at any other assurance osce ; ” aad the plea alleged that “ it was

551

otab GR Error [June 30; July I, 4, 14, ‘18531.

[Sews’ Dig- vi% 26. S.C. 17 Sur. 998.

F. applied to an insurance office to effect a policy on his life.

In an action on the policy :

(By the Judges.)

‘

Tp B.XI,C., 487 ~~~~~~~~~ ‘V, ~ ~ ~ Z ~ ~ ~ A ~ ~ [I 8 531

a ~ e e d between Patrick F i t ~ ~ ~ r a l ~ and the ~ m ~ a n y that, the ~ a ~ ~ c u ~ a ~ stated iu

the d ~ ~ ~ r a t i o n s ~ u ~ ~ d form the basis of the c ~ n ~ r a c t be ween him and tha c o ~ p a ~ y ,

and that if &ere should b any untr7~e ~ ~ ~ e g a t ~ ~ a c o n ~ ~ ~ e d t ~ e r e ~ ~ , or any mis-

~ a ~ K ~ e s ~ t , the insuyanc~ should become fo r fe i~d , and the polieg ehould be void.”

The plea thea a ~ ~ e ~ e d &at the p ~ u p o s ~ ~ and ~ a ~ m e n t bid farm the bat& of the

contract, and that they were false, and contained untrue and u ~ ~ f ~ ~ ~ ~ f u ~ represeata-

Lions, inasmuch 8s Patrick Fibgerald was then afflilicted,with a disease of the lungs,

e h , and that two of his sisters had died of consumption, and that his life had already

been accepted at six different assur&nco offices and refused at sir others.” The third

plea in like ~ a n ~ e r s & for& t31e s t a t e ~ e n t made by F i t ~ g ~ ~ l d , a8 made to Dr,

ieal officer d %he c o ~ ~ p a n y , and then alleged thak che said s ~ a ~ e ~ ~ ~ e n t

ntktiued ~ n t r ~ e and u i ~ f ~ i t h f u ~ y e ~ r e s ~ n ~ ~ ~ o ~ af &e facts, ~ s e t ~ ~ n ~

forth ~~~n~ athem)* ‘’ that two of his sisters had died of c o n s u ~ p t ~ o n ~ a d divers

others of his r e ~ a t i o ~ ~ had died of p u l ~ o n a ~ ~ o ~ p l a i n ~ ~ and that ha had there-

Cofora made p r o p o ~ ~ ~ s for i n s ~ ~ a n e e % other companies and was i n s u ~ d ut divers

er &ices; and that. these s t ~ t ~ ~ n t s were made by ~~~~~~a~~ to induce Bussell b

report in favwr of aa ~ ~ ~ s ~ ~ a n ~ on his life. Them were other pleas c h a r ~ ~ ~ g untrue

~ e ~ ~ ~ e ~ e ~ t 5 t ~ i ~ n s as to his owa statst. of health, The ~ l a ~ n t ~ ~ replied de ~~~~~ as $0

the second and third pleas, and took h u e on the others.

The cause T V ~ S triad befare Xr. Justice Ball, a t t.he ~ ~ a ~ e ~ . ~ c ~ Assizes, in ~ a ~ c ~ ,

1848, when the ‘‘ proposal ” * [&7] for insurance was put in evidence, and the facts

alleged in the plea 88 proofs of the falsehood of the proposal and statement Were

proved ; but it; appeared that the two sisters who died of consumption were yespectidy

aged 8 ~ ~ t ~ ~ s e v e n and sixty-five. The learned ~u~~~ dix-mted the jurymen that they

‘‘ must not only be satisGed that the va~ious falw s t a t ~ e n ~ relied on b~ the d e f % ~ d a n ~

west3 false in fact, and were made in and about ~ e c ~ ~ n ~ the pdicy, but aho that

such false s ~ a t e ~ e n ~ ~ were ~ a ~ e r ~ a l to the i ~ s u r a ~ ~ e ~ before %bey could find their

verdict for the d e f e n ~ a n ~ ~ The defendant’s ~ o ~ n ~ l te dered 5t ’bill of e~cept~ons b

&.hi& ruling, OR the ground &at &e jury should have been d i r ~ ~ e d that, if the state-

ments were made In and abavb the e ~ e c t ~ n ~ &he insura~ce, and such s t a ~ ~ e n t ~ wese

false in fact, &e ~ e ~ e ~ ~ a n ~ was e a verdict, whether suck s ~ ~ ~ e n t s were

or were no% ~ u ~ e r ~ 8 ~ . ~ The verd was gi~ivsa fer the p ~ a ~ n ~ , i ~ f o s SGP50, the

* The ‘‘ ~ r o p o s a ~ ” far ~ ~ s u r ~ ~ c e c o n t h e d ~ w e n t y ~ e ~ e n questions; among. which

were the following, with the mswers thereto ; “ 1, Age next birth-day ’1 Fifty-two

years.-2l. Did any of the part.y’s near relations die pf consumption, or m y othor

puimmary. c o ~ p ~ a ~ ~ ~ t ~ ~ No.---22, Bas the party’s life, been accepted or refused at;

any office? No*”---The ’‘ proposd ” ~ n ~ s ~ ) e d with W k d e c l ~ r a ~ ~ u n : ‘’ I hereby agree

that the ~ a ~ i c ~ ~ ~ ~ ~ ~ e ~ ~ t ~ o ~ ~ ~ d in the above r o ~ ~ ~ l sbl t form tbe basis of the

eo ~~~~1~ the asmmd and &a c ~ ~ p a n ~ , a d if there be aqr f ~ ~ u d u l ~ n ~ can-

ce os untrue allegation o u n ~ ~ ~ i ~ d therein, or any c j r ~ u n ~ ~ a ~ ~ ~ a t e r i a l to thie

i n ~ u ~ a ~ c e shall no% ham b e n fully c o m ~ ~ n ~ c ~ t e d to &e said c o ~ p a ~ y , os there

shall be ally fraud or ~ i ~ t a t e ~ ~ ~ ~ , all n ~ o ~ ~ ~ which shall have been paid on accouat,

of this insuranoe shall become f o r f e ~ t ~ , and the poltiey be void.”

t The bill of ~ ~ # # ~ ~ i ~ ~ ~ s set for& the whole e v ~ d e n ~ ~ and ~roeeeded to make tXte

f ~ ~ l o w ~ ~ g ~ ~ ~ t e ~ ~ e ~ ~ : -That the dafendu~t’s counsd called on the J u ~ ~ e ta direct

@Le jurors, that if, ~ ~ v i o ~ s t ha^^^^^^ of &e policy, any fahe s t a t e ~ e ~ t WIS

meds to the c o ~ ~ ) a ~ ~ ~ in or nbout the o b t ~ ~ ~ ~ ~ g ox effecting of $,he said ~ n s u r ~ ~ ~ e ~

~ ~ u g h the jury should balieve that t h same apa8 net material to the insurance, they

should find a verdict for the defendant. ‘‘ But the said learned Judge then and there

refused so to direct tba jury.” That the defendant’s counsel called on the Judge to

direct the jury, that if the 8 t a t ~ ~ ~ ~ e n t ws to the refusal or acceptance of the life a t

~ t ~ e ~ ~ ~ ~ e s was fals , the verdick must be for the d e f ~ ~ ~ d a n ~ , u ~ t h o u ~ h the jury might

believe such false ~ t a ~ e ~ ~ n t no% to be ~ a ~ r ~ a ~ ; but that he Fef~sed so to direct the

j u v , and told the jury to find ~ ~ ~ e ~ ~ ~ e r the s t a t e n ~ n ~ ‘ was false, a.nd if false, w ~ ~ e t ~ ~ ~

it N ~ S a ~ ~ t ~ r ~ a l , and if the ~ u ~ ~ ~ % ~ ~ ~ o ~ ~ e v ~ &e ~ t a a ~ e ~ t ta be ’‘ bkh false and

~ a t e p ~ a l ~ they ~ o u ~ d find a verdict for the d e f e ~ ~ a n t on the first; iaue.”’ There were

similar e ~ c e ~ ~ ~ o ~ i s as t the direction with regard to &e answers of ~ i t ~ ~ e r a ~ d as to

his having had any relations w.ho had died of c o n ~ u ~ p ~ ~ o n ~ slid as ts his ~ n a ~ i ~ l g the

i~surance for the benefit of his fa^^^^ only. In each of these the Judge had d ~ r e ~ t ~ d

552

(l_-(_llll-l .l__ l^---___l^ __----.__.-- -- - - - ~ “--~~.--l_I_ ~

A ~ ~ E R S O ~ ‘U. ~~ ~~~~A~ [I 8 5 3) IV H.L.C., 489

sum sewred by the poficy- Tfte e ~ c e ~ ~ ~ o ~ s were argwed in the Court of Exchequer,

when the Lord Chid Baron expressed an opinirtn that they ought to be allowed, but

Xr. Baron Bichards and Mr. Baron Lefroy being of a, different opinion, judgment

was ordered to be entered for the plaintiff. A w r i t of error was brought in the

Court of Exchequer Chamber, where, by a majority of seven to three, the judgment of

the Court below was affirmed (1 Ir. Corn, Law Rep. N.S. 251). The present writ of

error was then brought.

The Judges were summoned, and MY, Baron Parke, Mr. E4891 Baron klderson,

Mr. Justice Coleridge, Mr. Justice Wigh t~an , Mr. Justice Erle, Mr, Justice Crewwell,

Mr. Baron Platt, Mr. Justice Talfourd, Mr. Justice W-illiams, Mr. Baron Martin, and

Mr. Justice Crompton attended.

Sir F, Kelly and Mr. Bovill for the p l a ~ n t i ~ n error.-The verdict here w m

wrong, axld tha was o ~ ~ i o n 0 d by aa erroneous direction on the part of the Judge.

The judgment; of the Court, Mow, ~ f f i r ~ ~ ~ that; dimtion, cannot be sustained.

era^^ was bound to answer all the questions put to him without fraud, and truly..

Ee ansvered then falsely. These fsllse s ~ t e r ~ ~ ~ a€ his were made I f in mid about

the o b t a i n ~ n ~ or ~ ~ t ~ n ~ the i n ~ u ~ n c e ~ and being false* the insurance eEeeted was

void. No question was or muld be raised about &e ~ a t e ~ ~ a ~ i t y . of th9;l“lese: answer#*

If they relatd, as the plea alleged, to the effecting of the insuraace, they were re-

quired to be true, There is nothing in the pleas which raises the question of

materiality, but the whole issue turns on the question whether them were false state-

ments and untrue representations made in and about effecting the policy.

In Li?zde?zau v, D ~ ~ b o r o u g ~ (8 Barn. and Cr, 586) the question of the on&t;eriality

of a statement was raised, and after that time the forms for effectsing life policies

were altered to what they are now. The truth Qr falsehood of a statement iti now

made to decide the validity of a policy. In dlzlckekt v. W i ~ ~ ~ ~ ~ (2 Cromp. and Nee.

348) a s t a t ~ ~ e n t , untrue in point of fact, though not to &e knowledge of the party

making it, was held to occasian a ~ o ~ e ~ ~ u r e of the ~ r e ~ u ~ . The case of @each

v. ~~~~~~ (14 M e . and W. 95) decided thatq vhere, under proposals like the present,

&fie assured did nat state that he had had a spitti-ng of blood, it was a ~ i s d ~ r e e ~ ~ o n

to ask the jury whether it [49of was: such a. spitting of blood as mould tend to shoxtfrll.

fife, the c o I ~ c e a ~ ~ e ~ t of the fa& being fieid to be it. bmmh af one of the c ~ n d ~ t ~ o n s ~

Them cases were followed by that of ~ ~ ~ ~ ~ e ~ ~ ~ e v. ~e~~~~~ (1 Car” and Marshm.

286), which finally settled that, in all imbnces, the only question must bt4 vhatber

the &atements made in the answers to the questions conbined in the proposals were

true or false. There the rules of a society squired that the asaured should be of

sober and temperata habitsi, and in a4 action on tha policy it was held sufficient to

show thttt his habits were intemperate, and thad i t was no answer to that fact for

the plaintiff to show that the intemperance was not of such as sort as to injure the

health of the insured or to shorten his life. The simple question of the truth or

vntrukh of the stat~ment, not the doubtful question of its materiality, is that by

which the validity of the contract? niust be decided.

Xr. Napier and Mr. F ~ ~ g e r a ~ d , for &he d ~ e ~ d ~ ~ t in error.--The bill of emep-

tions in this case is bad in form, and cannot be supported. !€‘he first exception

which relates to the general issue nwrely compZains that the €earned Judge m€used

so to direct the j u q 5 but it dotoes not state what direction he should haye given. That

is erronwus. An exceptkn mill not lie for n o n - ~ ~ ~ c t ~ o n nmely, it must be for

the jury to find whether the statement was material as well as false. These exceptions

related to the first issue ; with regard to the second issue, the bill of exceptions stated

that the defendant’s counsel called on the learned Judge to direct the jury to find

for the defendant, if the jurors shcruld believe that two of Fitzgerald’s sigtess had died

of c o n ~ ~ ~ ~ ~ t ~ ~ r ~ , and tha his r o p o ~ l s for insurance had been accepted or had been

refused n t any oaees, and that he had answered untrufy as to such matters, as in tha

second plea alleged, although the jurors might believe his okher s ~ ~ ~ ~ e n ~ j, be true ;

and the bill of exceptions went on to state, Lh&t “ the said learned h d g e then and there

refused so to direct thejury.” There wag a similar exception as to &he issue on the

third plea, mid the refusal of the learned Judge so to direct the jury vas alleged in

the same negative terms.

N.L. s. 553 ’I 8a

AXDERSON o. F I ~ Z ~ E R A ~ R [I 8 531 Iv H.L.C., 494

so, i s sufficient to maintain an exception ; for the thing which he waa required tcr do

being stated, and his refusd being also stated, the rule that the bill of exceptions

must show what his direction was, is complied with: ~ c ~ ~ ~ ~ e v. ~ a ~ ~ a ~ l (3 COD.

Ben. Rep. 496).

The distinction between warranty and representation will not avail the assured

here, for in the agreement signed a t the foot of the propmal and in the policy itself,

there is a distinct stipulation that if any ‘‘ untrue allegation ” has been made, the

policy shall be void. That was in addition to the warranty, and in addition to the

stipulation as to the untruth of material statements. The untruth of these state-

ments, without any r ~ t r i c t i o n as to their materiaality, had the effeet of avoiding the

The Lord Chancellor, having stated the pleadings and evidence, said,--The Ieamed

fudge a t the trial held that the plaintiff, in order to recover in the action, was

bound to show that the [494] m i s s t a ~ e n ~ were material as well as false. To that

opinion the defendant excepted, and said that the learned Judge ought to have

directed the jury that it was sufficient, for the defendant to prow that the s t a h e n t s

were fdm The exception (for though there are several they need only be t m t e d

as one) arises upon the ruling of the learned Judge as ta the first isme, which is

raised upon the plea of nom ~ ~ ~ ~ ~ € . That will depend upon the question whether

or not the mahriaJity was a matter put in issue or not. “be second plea doe@ not

clearly raise the question of materiality, i t only says that the st,atements were false.

Then the counsel for the defendant said, with reference to that plea, You, the learned

Judge, ought clearly to have directed that that was sufficient, for that if the jurors

were satisfied the s ~ ~ m e n t was false, the policy was void. The exception to that is

that the learned Judge refused so. to direct. But then upon that a very great doubt

may be raised whether that is a good exception, because the exception ougbt ta show

what error the judge committed, and stating only that hs refuses to direct in the

very words of that exception proves nokhing (at least this is the a r ~ m e n t on one

side), because i t may be that he directed s o m e ~ i n ~ that was exactly tantamount

to it.

Now in order to get t ha t . i n fo~a t ion which shall enable the House $a~isfactorily

to dwide the whole of this case, I propose t o put, to the learned Judges these two

questions : -

1. Was it necessary for the plaintiff in error to prove on the trial that the answers

given by Fitagerald to questions 21 and 22, contained in the particulars, dated

Kilrush, 17th June, 1846, o f either of them, were or was material as well a8 falsert

And secondly,

2. If i t was necessary for the plaintiff in error to prove the materiality as. well

as the falsehood of the answem, or f496J either of them, are the exmptions, so f a r

as they relate to the ruling of the learned Judge on the issues joined on the second and

third pleas, or is either of them, sustain able^ *

policy.

The form of the exception is therefore objected t D as insufficient.

The Judges asked time to consider the questions,

Ordered,

Xr. Baron Parke (June P}.-Your ~ o ~ d s h i p s have p~posed two questions for the

c o n s ~ d e r a ~ o ~ of those of her ~ a j e s t ~ s Judgea who heard the &rgumen% of this case a t

your L ~ r d ~ i p s ’ bar.

I have to state, that we have considered with due attention the very able argu-

ments both a t your Lordships’ bar and in the judgments of the Irish Judges, which

are fully reported in the printed cases laid before US, and that we find ourselves

unable to agree in the conclusion at which the majority of those Judges have arrived.

The tlnswersl referred to by your Lordships were givea to two questions put to

the assured, Fitzgerald ; the first, whether any of the party’s near relatives died of

consumption or other pulmonary complaint 1 and, secondly, whether the party’s life

had bean accepted or refused at any other office, and if accepted, whether at the

* Sir F, Kelly suggested that instead of the word ” sustainable” the words ‘(

cient to enable the plaint.iB in error to sustain the defence ’’ should be: introduced,

The suggegtion was not adopted.

555

IV BLC., 496

usual premium, or with what addition? To both, the assured answered in the

negative. At the end of the list of questions the assured subscribed a declaration

to the effect that the particulars should form the basis of the contract between the

assured and the company, and that if t,here should be any fraudulent concealment or

uutrue allegation contained therein, or any circumstance material to the insurance

should not have been fully communicated to the company, or if there should be

any fraud or misstatement, all the [4g6] money paid on account of the insurance

should be forfeited, and the policy should be void.

The first question then submitted to u8 is, Whether it was necessary for the

plaintiff in error to prove on the trial that the above answers, or either of them,

were or was material, as well as false?

This question does not appear to us to turn upon the well-known distinction

between warranties and representati~ns laid down by Lord Mansfield, nor upon the

point whether the declaration above mentioned was either a part of the contract

binding between the parties independent of the policy, or meant to be referred to

by it. The proviso is clearly a part of the express contract between the parties, and

on the non-compliance with the condition stated in the, proviso the policy is un-

questionably void.

The case therefore resolves itself, in our view of it, as it does in that of most of

the Irish Judges, simply into a question of the construction of the proviso ibelf ;

and it is upon questions of that nature that different minds are apt to differ in their

conclusions, however disposed to adopt the elstablished rules for the construction of

written instruments.

By that proviso it is stipulated, first, that if the assured should die on the high

seas (with certain exceptions), or should kill himself, or die by duelling, etc., or if

anything warranted as before mentioned (and there were several express warranties

before stated) should not be true, or i f any circunistance material to that insurance

should not have been truly stated or should have been m i s r e p r ~ e n t ~ or concealed,

or should n& have been fully and fairly dimlosed md communicated to the com-

pany, the policy should be void. Thus far the condition appliw only to material

matters; but it proceeds to declare, obvioudy [497] with a view of extending the

protection to the office still further, that if any fraud shall have been prmtised 011

the company, or any false statements made to the company in or about the1 obtaining

or effecting of that insurance, the policy shall be null and void. The latter words

probably override the former, and the fraud, as well as the false statement, in order

to avoid the policy, must be made in or about the obtaining o r effecting of that in-

surance. These words, no doubt, must be understood not to include a false state

went of matters to the disparagement of the applicant for insurance, and tending

to render his life less insurable ; such a construction would be clearly absurd, and

in no way reconcilable with the manifest object of the proviso. The words, however,

will clearly include all frauds or false statements made in order to obtain the policy,

whether in matters material or not; a consistent cons t~c t ion will thus be given to

the whole, The proviso, in the first place, providas for the violation of the special

matters mentioned in the ~mmencement of it. Next, it requires every matmial

fact not to be misrepresented or concealed, but to be fully and fairly declared. But

it goes further. In the anxiety of the company to protect itself by every precaution,

it prohibits any fraud or falsehood whatever to be used in obtaining the insurance.

It includes all frauds for that purpose, though not made by concealment or mis-

representation, by word or writing, of material facts, such as fraud in false per-

sonation, or in the disguise of the diseases of the applicant ; and, lastly, it, prohibits

every false statement whatever, whether in matters actually material or immaterial,

and leaves no room for dispute whether the particular matter to which it related

was material or not (which in the case of a dispute a jury would have to decide},

leaving the company to determine entirely for itself what matters it deems material

and what not.

[498] This seems to UB to be the obvious sense of the words used, and there is no

reason from the context to give any other than the ordinary sense to them, though

they are to be construed as the words of the assurers, and most strongly against them

if there is any ambiguity in them. There is no ambiguity in them in this respect,

doubt possibly may exist whether the word “false’) is to be understood in th8

556

~ D E R S O ~ ‘U. FI~Z~ERALD Cl8531

We are all of opinion that it was not.

ANDERSON ‘U. FXTZGERALD { 18 5 31 IT B.L.C., 488

sense of false in point of fact, or morally false, though, I believe, most of us think

that i t is riot to be limited to moral falsehood ; but there swn-is to us to be no doubt

that if the statements are false, in whatever sense we understand that word, being

used in effectiag the insurance, this proviso operates. There then appear to us

to be only two questions for the jury on this part of the policy: Were the statements

false? Whether t(hey are

material or not is not a necessary part of the inquiry. It, has seemed to two

eminent members of the Irish Bench, Mr. Justice! Moore and the then Lord Chief

Justice Rlackburne, that the materiality of the question was involved in the inquiry

whether i t was used by the assured to induce the company to effeot the policy. We

do not agree with that reasoning. It, i s true that the materidity of these state-

ments may be sometimes evidence d the purpose with which they were. made, and

may tend to show that they were made with the object of obtaining the policy, because

if immaterial they would not be likely to effect it; but the materiality is not a

necessary condition to bring them within the scope of the proviso, if i t can be shown

that the statements were made in obtaining the policy and for the purpose< of effect-.

ing it ; and here the terms of the particulars and the subjoined declaration preclude

a11 doubt upon that question ; for the truth of the answers ia, in the strongest terms,

made essential to the validity of the policy.

[499] We therefore answer your Lordships’ first question in the negative, notwith-

standing the ability shown by the Judges tvho have expressed their opinion, that the

materiality of the answers was a necessary part of the proof.

With respect to the s w n d qus&ion proposed by your Lordships, we answer, that

the exceptions, on the issue joined on the second and third pleas, are not sustained,

and that on R formal ground. !&e bill of exceptions should have stated what direc-

tions the Judge gave, as i t is misdir~t ion, not nondir~t ion, whkh is the proper subject

of a bill of exceptions.

This was determined. in the casc of ~~~~~~ v. ~ ~ ~ n f f i l l (in error) (3 Com. Benub

Rep. 496). If i t had been stated that the learned J u d e told the jury i t was necemav

on those issuw to prova the materidity of the answer, the exception would have been

well founded. So it would if the ground of his refusal to put the question in that form

had been that all the allegations in the plea should have been proved, and that there

WRS no evidence to that effect; heoauw the plaa being, in our opinion, good, ~LS the

materiality was not essential, the proof of a part, which if pleaded alone and proved.

would have barred the action, was sufficient, It would htzre been otherwise if the plea

had been bad, when every part must have been proved in order to sustain it, and

obtain B verdict upon it,

The Lord Chancellor (July 14)) after fully stating the pleadings, the evidence,

and the p ~ ~ e e d i n ~ at the trial, said,-The plea upon which the question arises is ths

old plea of no% ~~~~~~~~~, for I need hardly reniind your Lordships that the “ new

rules ” of pleading adopted in this country do not extend to Ireland.

[500] Now, among the particulars constituting that paper which Fitzgerdd signed,

and which he w e e d should be the basis of the eontract between him, and the company,

there were two questions to which he was called upon to make an answer, and which

he did answer. One of them wm, ‘‘ Did any of the party’s near relatsions die of con-

sumption, or any other pulmonary complaint 1” To which Fitzgerald’s answer was

“ No.” The other was, ‘‘ Ras the party’a Iife been accepted or refused i.n any other

office,’and if acceptcd, was i t at the usual premium, or with what addition?” Again

the answer was “No.” !&at meant that an insurance on his life had not been ac-

cepted or refused a t any other office. Striking out all the other articles from thorn

particulars, the rem& therefore is, that FitzgeraId agrees that the basis of the contract

between him and the company shall be that he truly represents to the company that

none of his near relations died of consumption, o r any other pulmonary complaint,

and that his life had never becn accepted or refused at any other office.

A great deal of eTidence wm given to which it is not at all mataria1 to advert, and

then, when the learned Judge at the end of the case came to sum up, and to direct the

jury as to what were the questions t o he considered, the counsel for the defendant

called on the learned Judge to give this direction, that if the jurors believed that pre-

viously to the making of the polioy of insurance, any false stzxtement was made to the

557

Were they made in obtaining or effecting the policy?

xv B.L.C., 801 A ~ D E ~ S ~ ~ 21’. F I ~ ~ ~ ~ R A L ~ 1718531

mmpany by Fitzgerdd “ in or about the o b ~ ~ n i n ~ or effecting of the insurance,”

although they should believe the same was not material to the ~nsurance, they must

find a verdict for the defendant on the issue of 720% ~ s s ~ ~ ~ s ~ € . The counsel repeated

this demand for such a direction to the jury, specifically with reference to the state-

ment as to the refusal of the pla~nt~ff’s life a t another insurance OB=, and alw to the

question whether Fitzgerald [sol J had any r e l ~ ~ i o n s who had died of pulmonary com-

plaints ; and as to the general and the specific nzatter thus required to be presented

in that form to the jury, the learned Judge refused to give the direction so required.

[Hie Lordship here read the exception, and the allegation as to the form of the direc-

tion actually given to the jury.]

1. think, my Lords, intmpreting this direction with reasonable latitude, we must

take i t to me=, that if the jurors found ~ ~ ~ ~ e r a l d ’ s ‘‘ proposal ” to be false and

~ a ~ r i ~ l , they were to End for the d e f ~ d a n t ; , but that, unless they found it to be

both false and maimid, &0y were to find for the plaintiff. Re considered it to be

e.mentia1 to &e defendat’s cam &at the s t a t e m ~ t s hould be, material as well as false.

That direction was affirmed in tha court f r m which this remrd now mmes.

The ~ m p o r ~ n t question at present is, whether the lesrned Judge was right in

having directed the jury th&, although the s t a ~ e n ~ of the assured as to cerbin

m a ~ r s were false ~ ~ ~ ~ # n ~ made to the mmpa~y , in and a b u t &wting the inmr-

ance, the verdict rfiust. be for the p ~ a ~ n t i f f , unless thwe s t a ~ m e n ~ w e r e m a t ~ i a l as well

a8 false.

Although the learned Chief-Justice Blackburne came to a conclusion different from

that at which the learned Judges now advising your Lordships have arrived, and in

which I concur, and in which I am about to propose to your Lordships to concur, yet I

think he very distinctly states (and the other learned Judges forming the majority

concurred with him} the point on which the quekion turned. Re says, “ The plaintiff’

in error c o n ~ n d s that it is s~ifficient to a s c ~ ~ a i n , simply in the b rms of the policy,

that the false ~ a t e ~ ~ e n t was made in or a b u t obtaining i t ; and that when this i s done,

the words of the condition are so comprehensive and stringent, that the question is

solved and the pdicy avoided, whether the s t a ~ m e n t was material or [SOZ] im-

material; in other words, that we are to read the clause as if it htad contained those

very words. f admit, i f this be the meaning of the words,-if this be so clearly ex-

pressed as not to admit of any othor rational c~nstruction,-we must give them the

o p ~ r a t ~ o n contended for. It i s obvious, that to mainta~n ;z defence

founded upon this provision of the pdicy, proof must be made-first, of the false state-

ment of some matter of fact ; and secondly, that i t occurrsd on the occasion d effecting

the policy. Up ts

this point 1 entirely concur with the learned Judge; he puts the case vmy distinctly

and dearly. He then goes on thus: ‘‘ What could answer this inquiry, or be said,

with any propriety of language, to come within such terms, but a mis-statwent used

by the assured to induce the company to contract, and how could i t have done so if i t

had been utterly i ~ ~ m a t e r ~ a l ? ” Now there, my Lords, II differ from the learned Judge.

The company stipulates this, that the assured Shall contract with the company that he

warrants certain things to be correct, and further stipulates that if he dkould make to

the comp~ny any untrue s t a ~ m e n t in snd a b u t e ~ e c t i n ~ the policy, such untrue

statement shall avoid the policy; and then the company says that it will not contract

with him till he shall answer wrtain questions which are made the basis of the con-

tract. Among those q u ~ t i o n ~ are these two: “ Have any of your reIattions died of

puKmonary c smp~a jn t s~ Has an insurance on your life been accepted or refused at

any other Off iC6?” The stipulation is, that if he shalI not answer these questions accu-

rately, the policy shall be void. That is the interpretation of the contract, which, tak-

ing together the policy and the particulars required to be subscribed, appears to me

~rresistibl€. The requirement is extremely reasonable. That we need not speculate

on ; but the reason for making such [503] a stipulation ig obviou&, and is explained

by this very case. Whether certain state men^ are are not material, where parties

are entering into a contract of life a ~ u r a n ~ , i s tb ~ a t ~ r upoa which there must be it

divided opinion. Nothing, therefore, can be more reasonable than that the parties

entering into that contract should determine for themselves what they think to be

material, and if &hey chooae to do so, and to ~ t i p u I a ~ ~ thst unless the mured shall

8nswer a certain queBtion accurately, the policy or c o ~ t r ~ c t which they are entering

568

But is this so?

The Judge and jury must inquire into both, and decide both.”

IV B.L.C., 604

into shall be void, it is perfectly open to them to do so, and his f a h answer will then

avoid the policy.

Now it appears to me, my Lords, that that is precisely what has been done here.

The parties entering inta the insurance have so s t ipu la~d. " The bask of our con-

tract shall be your answering truly these two questions.') !&ere were a great many

others ; but, putting those aside, they say the basis of the contract between us shall be

that you shall answer truly those two question% and if you do not answer them truly

the policy shall be void. But then, when the trial coma as to1 whether the plaintiff has

made out his right under that policy, the question is, whether the direction to the

jury ought not to have been, " You are to amertain whether what was then stated was

untrue, was false; whatever interpretation may be given to the word ' false,' if it was

false, there is no question as to whether i t was material or not, the parties having

stipulated that if it was false the policy shall be void." The question for the jury to

decide was simply whether it was false or not. In that narrow cornpaw the whole

case lies.

The learned Judges who decided that the direction actually given was good, pro-

ceeded upon the well-known r u b of law, that tllere is a great distinction btween that

[so41 which amounts to what is called a warranty and that which ie merely a repre-

sentation inducing a party to enter into a contract. Thus, if w permn effecting a

policy of insurance says, " I warrant such and such things which are hme stated," and

that is part of the contract, then, whether they are material or not isi quite unimpor-

tant,-the party must adhere to his warranty, whether material or immaterial. But

if the party makes no warranty at all, but simply makes a certain statement, if that

statement has been made bona fide, unless it is material, it does not signify whether i t

is false or not false. Indeed, whether made bona fide or not, if it is not material,

the untruth is quite unimportant. If the man on entering into the policy had said

that he arrived a t Dublin three days previously, whereas he had only arrived that

morning, and such statement did not form part of the contract, then, though false, it

would be quite immaterial. If thero is no fraud in a representation of that sort,, it is

perfectly clear that it cannot affect the contract ; and even if material, but there is no

fraud in it, and it forms no part of the mntract, it cannot vitiate the right of the party

to recover.

There are several cases, which are collected together in the 1st Vol. of Douglas

(Beam v. S f q x r t , Doug. 11, and the cases there collected in the notes; see also Doug.

284), in which this principle is well illustrated. But, niy Lords, it appears to me that

that principle has no application to a oase where i t is part of the contrack, as it is here!,

that if a particular statement is untrue, then the contract shall be at an end. That

distinction appears to1 me to' have been overlooked by the learned JudgeR, and that

oversight has been the ground of that which I must coneider to be the erroneous con-

clusion at which they arrived.

[SO51 My Lords, it is within this narrow compass that the case lies. We had the

advantap of the assi8tance of eleven of the learned Judges of this country. They all

took the same view of the case, and they were all of opinion that the learned Judges in

Ireland committed an errotr in supposing that the doctrine of representation, as dis-

tinguished from warranty, was applicable to the present case, where the representa-

tion is itself included in the contract. They thought that the ~nc lus ion a t which the

learned Judges in Ireland arrived was erroneous. My h r d s , in that view of the case

I entirely concur. I &hall therefore think it my duty to move your ~ r d s ~ p s that

judgment be given for the plaintiff in error.

Lord Brougharn.-My Lord@, I entirely agree with my noble and learned friend,

that this case really liw in a very narrov compass. It depends entireIy upon the

construction which we are to put upon these words in the policy, " or any false state-

ment made to them," the insurers, " in or about the obtaining or effecting of this,

inslurance."

'Phen, previously to the clause in queertion, there

are these words, ' I or if any circumstance material to this insurance shall not have been

truly stated, or shall have been misreprwented or concealed, or shall not have been

fully and fairly disclosed or communicated to the said company, or if any fraud shall

have been practised upon the said company ;" and t>hen comes this larger, and, as it

were, more sweeping clause, " or any false statement made to them f as i f it were,

559

ANDERSON v. FITZGERALD [ 1 8 5 31

Now, firsk, there is the warranty.

IV H.L.C., 606 ANDERSON ‘U. FITZQERALD [18531

“ or any false statement whatever made to them, in or about the obtaining or effecting

of this iusurance.” At first I had some doubt, as the learned Judges appear to have

had, with respect to the word “ false,” whether it implies merely [6Ofj] untrue, or

morally false,-untrue, but not within the knowledge of the party making it, or

morally false, that is, untrue within his knowledge. At first, I certainly had an im-

pression upon my mind that it, was to be taken as implying morally false rather than

merdy untrue, and that impression was grounded upon what immediately precedes ;

for “ true ” is used in a former part of the document, and “ fraud ” is used in the ini-

mediately preceding clause. I had, therefore, the impression a t first that “ f a lw”

there meant morally false, as contradistinguished from merely untrue. I have since

come to the opinion which my noble and learned friend and the learned Judges advis-

ing the Hoaw have come to, that it does not mean morally false, but that it means

simply untrue.

But b6 that as it may, it is quite immaterial; for whether we take the word as

untrue absolutely, or untrue within the knowledge of the party making the statement,

in either case, it appears to me, RB it has done to the learned Judgm, perfectly clear

that the two questions to put to the jury were, “ Was there a n untrue skatement

made, whether with the knowledge of the party making it that it was untrue, or notl”

And, Ii Was it made in or about the obtaining or effecting this insurance?” Accord-

ing to my opinion, agreeing entirely with that of my noble and learned friend and

the learned Judges, those weire the fit and proper qusstions, and the only quwtions to

be put to the jury. And I think, further, that it is matter of exception, and made the

direction of the learned Judge liable to exception, that he had directed the jury to con-

sider the materiality of the statements in question. The truth of the statement, it

being part of the contract, not its materiality, was in issue. I am therefore of

opinion, with my noble and learned friend, that in this case we ought to give judgment

for the plaintiff in error.

[SO71 Lord St. Lecsnards.-My Lords, 1 believe that 8 more important case than the

present has not come before your h r d k i p s during this wession. Because, a l t ~ ~ o u ~ h

the point turns simply upon the proper ~ n s t r u c t i ~ n of the in~rumen t , yet i t leads to

much important consequences with regard to insurances for life, whieh are so common

in this country, and upon which many persons entirely depend as their security for a

provision for their families, that it becomes exceedingly important to consider

maturely what is the true conetruction of an instrumsnt of this sort. It is of course

prepared by the company, and if therefore there sholuld be any ambiguity in it, must

be taken, according t o law, more strongly against the person who prepared it. At the

same time ydur Lordships must take care to guard companies of this nature against

any fraud, and not to give validity to any part of the contract which has1 that object.

That has been the practim for many yearsl past. The Courts of law, observing how

often such companies have been subjected to frauds, have advised them to protect them-

selves by a sufficient provision against the commission of fraud, and that has Isd to

such stringent provisions a8 those which we find in this case, provisions whieh, I am

bound to say, unlws they are fully explained to the parties, will lead a va& number of

persons to suppose that they have made a provision for their families by an insurance

on their lives, and by payment of perhaps a very considerable portion of their income,

when in point of fa&, from the very commencement, the policy was not worth the

paper upon which it was written.

In some cases, and i t is so in the present, the companies take care to go beyond

the law, and to protect themselves by a stipulation that L statement, which is not a

warranty but a representation, if made contrary to the fact, shall [SO81 avoid the

policy. At law, if that statement, though untrue, was not untrue to the knowledge of

the party who made it, the aseured is entitled to’ recover the sums which he has paid.

So that, although provision for the family is not obtained, yet there is no actual

d%mage done to the fortune of the man. He i s disappointed in his object, but the

money which he has accumulated and paid for the insurance is repaid to the family.

This company, hawever, kas taken care that no ~ u c h consequence shall ensrue, but pro-

vides that, if any statement within the contract ha5 not been truly made, the man’s

family shall not only lose the benefit of the polioy, but shall not be able to recover

single shilling of the premium8 paid, however numerous they may have been.

This, my Lords, is rather a singular case. This company, like all others of the

560

IV H.L.C., 509

saine kind, started, in dealing with the assured, by tender in^ to him certain particu-

lars which he was required to answer, and he was to sign a declaration a t the end of

them. Questions, twentyseven in number, were asked, most of them being material.

Of those twenty-seven questions, the company, in framing the policy, chose to select

fourteen, and to make every one of those fourteen the exprem subject of a warranty.

The others were not included in the warranty. Amongst the queations which are

omitted from the warranty, we find that those1 two very important questions upon

which this1 case ha5 ultimately turned have been omitted, I sannot imagine two more

material questions. Suppoeing them to have been untruly answered, you would look

naturally to the policy to see whether they were there ; but the policy has excluded

them. Tbe poliay takes this shape: it states as1 many of the questions a8 the corn-

pany has chosen to take out of the particulars, and it statesi them as so many war-

razties, and then it proceeds upon that warranty to grant [509] the policy. The

policy begins in these terms: That the assured ‘( hath warranted and doth warrant

that his name,” and so on, and then it goes through the severd term8 which the in-

surers have chosen out of those particular8 to constitute what they call their warranty,

after which there i s ths cammon form of assuring the money. Then comes this pro-

viso, upon, which the policy is granted, that in caae he should do certain things, such

as go abroad, or enter the army or the navy, the policy shall be void. That is all quite

right. Then come these important words, making void the policy ; ‘( or if anything

so warranted Should not be true.” There the attention of the assured is drawn a t once

to the warranty. He reads the terms of thG warranty, and he is told that if anything

he has warranted is not true, the policy is to be void. The word ‘‘ true ” there is usled,

of course, in a general sense, and whether the man knew it to be true or false is utterly

immaterial. Whether the circurnatances warranted were material, or not, is en-

tirely out of the question. It is simply sufficient, and ought to be sufficient to avoid

the policy, that any one thing warranted is not true; and therefore the word ‘‘ un-

true ” there is used in its general sense of an untruth in the abstract. It signifies not

whdher he did or did not know it to bts untrue, it signifies notx wheLlier the circum-

stances were material or immaterial, the contract is to be avoided.

Then follows this, I may say, ramarkable clause. Your Lordships will observe.

that whenever they begin a new limb of a sentence they begin it with a conjunction.

The first is this, which I believe I have already read, Or i f anything so Tarranted

should not be true.” !&e next is, ‘‘ Or if any circumstance material to the insurance

should not have been truly stated, o r should have been misrepresented o r concealed,

or should not have been fully and fairly disclosed and communicated [510] to the said

Company.” This is all one limb of the sentence, and is all governed by the same

words, the first wolrds, “or if any material circumstance.’’ So that all

the misrepresentation and a11 the misstakemats which are there guarded

against are with reference to some circumstance material to the insurance,

“o r if any circumstance material to that imurance should not have been,”

etc. Now, so f a s again, it is perfectly corm&, anly it would have been

much betker if they had inserted among those things whioh they meant to

consider material, the questions they had asked, and which had been anmered. It

would have led to a better understanding of the cantrack, if they, as in my opinion

they ought to have done, had insertad them. But still the second limb of this sentence

is right enough. The first is, that if any portion of that warranty is untrue, the

second, if any material circumstance has been untruly stated. If it is material,

then its untruth will aroid the contract, although the party did not know it to be

untrue.

Then follow those words upon which 80 much has turned, and which have led to

so much difference of opinion. And I must say that that very difference of opinion

between such very learned persons upon such an important case a5 this, of itself

shows the improper manner in which this policy has been framed. A policy

ought to be so framed, that he who runs c m read. It ought to be framed with such

deliberate care, that no form of expression by which, on the one hand, the party

assured can be caught, or by which, on the other, the Company can be cheated, shall

be found upon the face of it : nothing ought to be wanting in it, the absence of which

may lead to such results. When you consider that such contracts as this are often.

entered into with men in humble conditions of life, who can but ill [511] understand

561

So far I entirely go along with the contract.

Iv E.L.C., 512 AND ER SO^ 9. FI~ZGERALD [ 18531

them, it is clear that they ought not to be framed in a manner to perplex the judgment

of the first Judges in the land, and to lead ta such serious differences of opinion

among them.

The words which have led to this grea.t difference of opinion are thwe, ‘‘ O r if,”

and here begins the last limb of the sentence, which is all governed by the first words

“ or if,” (‘ or if any fraud shall have bem practised upon the Chmpany, ar any falser

statement made to them in or about the obtaining or affecting of the insurance, this

policy shall be void, and the premiums shall be forfeited.” Now what does this

mean 1 Nothing can be more simple than the meaning of the first words, “ or i f any

fraud.” The provisions before made against untrue statements and other material

matters might not hit a great many cases of fraud; there might be personation for

example. A great many descriptions of fraud may be in action; there might be

many circumstances concurring to a fraud that could not be described, h a u s e fraud

is a very general term, and it is impossible therefore to particularize before-haad

what is meant by fraud. But you knQw very well what fraud is when it comes before

you for judgment. !&erefore, i f there shwld be fraud, this pdicy very properly

strikes a t it. But the difficulty in which the Judges in Ireland involved themselves

was this. material.” which is found

in the second braach of the sentence, into this third branch. Of course, you could not

speak of anything so absurd as a “ material fraud.’’ “ If any fraud ” stands quite

right, if any fraud has been committed, the policy is to be void. Then, what is the

meaning, in conjunction with those words, of that which follows? Surely, my Lords,

these ‘* false statements ’) must mean something which is connected with that which

occurs [!j12] in the other branch of this limb of the slmtencg namely, “ fraud.’’ Th0

Company has provided against any untrue statement generally contained in the

warranty, and generally, also, against any material misstatement. Then comes

‘‘ fraud,” and fraud may be committed in action without any actual misstatement,

and therefore I connect with that ‘* false statement.” Now when I find that the

contract uses, to express the same thing, two words which may indeed have &e same

meaning, but which are also open to different sensm, I must be very we11 satisfied,

before I apply the same construction to those twa words, th& such was the i n ~ n t i o n ;

for if proper word is used, and then afterwards a word is used which admits of a

different as well m of the same sense, I should come naturally to the conclusion, if

there i s nothing in the context to prevent it, that the intention was not to use the

second word in the same sense in which the first word was used (or else why not repeat

the first word!), but to use it in a different sense. Now in what sense is the word

“ true’) employed in the first part? True” there is used in the general sense; it,

signifies not whether it is morally true or not. !he question is, whether it i s true.

If it i s not true, the consequences follow under this contract ; but when I use the word

“false” in a sense connected with fraud, what do I mean? I mean not only that

which is untrue, but I mean that which is malicious, wilful, which is criminal, which

is fnilse in an odious sense, and to the man’s knowledge. And therefore the can-

struotion which, after a great deal of consideration, I should put upon this part of the

clause certainly is, that it refers to a wilful fraud, a wilful misstatement, and that tha

word “ false ’’ there is; used in contradistinction to the ward ‘‘ untrue )’ in the former

part of the sentence, and means a wilful missta~ment; and then, connecting that

with the [513] subsequent words, a wilful misstatement, as it should be read, ‘‘ in or

about the effNting of the insurance,” I think all the mischief will be taken out of this

policy, because I think there is no Jury having such a case to consider, which would,

where a mere impertinent quastioa had been asked of a man and untruly answered,

though it might be held to be in and about obtaining the insuranoe, come to the con-

clusion that that man had commitcted wilful falsehood upon such a subject when the

statement had not and could not have any material bearing upon the insurance, for it

must be a statement ‘* in or about the insurance;” and if the untruth must be wilful,

I think that any honest man would be mfe, even under this contract, by such a

construction.

The question then would be, was this a wilful falsehood in or about effecting the

insurance? Supposing it had been some indifferent question which they chose to put

to him, and which he had answered, but yet had not answered truly, if the jury felt

satisfied that it was a mere i m ~ r t i n e n ~ , irrelevant question, the verdict would be in

562

They were endeavouring to import the word

ANDERSON v. FITZGERALD E18531 IV H.L.C., 514

his favour. For, observe, if it is an impertinent or irrelevant question, bow likely

it is that the assured, the man who is bargaining for his policy, will have his prudence

and his caution lulled asleep, and will not be so alive to the duty of answering truly

as he would be, meaning to act honestly in regard to matters which he could not help

feeling were essentially necessary ta be answered in order to enable the Company to

form a judgment upon the subject.

I think that your Lordships, and every Court of Justice, should endeavour to give

such a construction to a policy of this nature as will afford a fair security to the person

with whom the policy is made, that, upo%n the ordinary construction of language, he

is safe in the policy which he has accepted. I am quite sure if policies of this nature

are [514] to be entered into, and such doubts are to be raised as have been raised in

this case, that that very important branch of insurance, life-insurance, will become

very distasteful to people, and that no prudent man will effect a policy of insurance

with any Company without having an attorney a t his elbow to tell him what the true

construction of the document is. And, indeed, in this caae it has been necessary to

consult all the Judges in Ireland, and they having decided in one way upon the

language of this policy, the Judges of England have been consulted, and they have

come to a different opinion.

Ny Lords, notwithstanding that I have thought it my duty to draw your Lord-

ships’ attention to the true construction of this policy, I do not disagree with my noble

and learned friend in the motion which he has made, because I think the question was

not properIy put to the jury as to the materiality of these statements. I think that, in

reference to these two questions, for example, whether any of his relations had died of

pulmonary complaints, and whether his life had been refused by any other Company,

the learned Judgei ought not to have told the jurors that their verdict ought to be for

the plaintiff in error unless they were of opinion that the statements were both false

and material. But I think it very important to impress

upon Companies that they ought not to issue policies in this shape, and I think that

they would do well if they were to place the word “ wilful ” before the words ‘‘ false

statement ” in that last branch of the clause. So, if it is their intention to exclude

materiality, I think it would be but honest and fair so to state upon the face of their

polioy, that persons who are really not competent to form a judgment upon such %1.

question may at once, upon the face of the policy, see what risks they run ; [515] for,

remember, that the proviso inflicts upon the family the lass not only of the SUM

assured, but of all the sums, possibly a great portion of the savings of a man’s life,

which have been paid for the policy itself.

The Company is entitled, and is bound

to guard itself against fraud, and the Courts have always shown the utmost anxiety

to protect Companies against fraud, and always will do so. We are not entitled to

look a t the facts of this case, and therefore I am not using the facts for the purpose

of the judgment which I am recommending your Lordships to give ; but the facta of

this oase were very likely to mislead anyone in his judgment. The jury vent, wrong

in this case, and the proper application to the Court would have been to set aside the

verdict, and not to have taken exceptions to the Judgek charge. Nothing could have

been clearer than that the tFo questions were material. The Jurymen were perverse,

and went wrong in bringing in a verdict contrary to the evidence as to the materiality

of the questions. What could have been more material than that question, “ Has

your life been refused by other offices2’) It is utterly impossible that anything could

have been more material ; because if it had been answered truly, he would then have

been asked, what offices? He must have stated what offices, and this Company would

have had an opportunity of inquiring of those offices what were the grounds upon

which they had refused him. It seems to have been, so far as we can judge from the

evidence, a very proper case for the Company to resist. Therefore I am not finding

fault with the conduct of the Company in this case, but I am drawing your Lordships’

athntion, which 1 thought it very material to do, to the terms of the policy. I

think the Company was right enough in resisting this claim, but I cannot think the

Gom-~516]-pany to be right in so framing a policy. I entirely agree with the motion

of my noble and learned friend as to what should be done in this case.

Ordered and adjudged,-That the judgment given in the Court of Exchequer

Chamber in Ireland, affirming the judgment given in the Court of Exchequer in

563

That was a wrong direction.

After all, everybody feels this difficulty.

Iv H.L.C., 517 EAST ‘U. ~ ~ Y F ~ ~ D E18531

Ireland, be, and the same is hereby reversed ; and that the judgment given in the

said Court of Exchequer in Ireland be, and the same is hereby also reversed ; and

that the verdict given by the Jury in this case be, and the same is hereby vacated and

annulled: And it is further ordered, that the said Court of Exchequer in Ireland

do award a Yesire facias de novo, and nroceed according to law : and that the record

be remitted t,o the‘said Court of ErcLequer in IrelanL

1853.

Lords’ Journals, July 14,

[517] SIR GILBERT EAST GILBERT EAST, Bart.,-AppeiTZant; SAMUEL

T W ~ ~ ~ R ~ and Another,-~es;po?tdelzts [July 15, 18, 19, 21, 113531.

[Mews’ Dig. vi. 1831 ; x. 978 ; xv. 735, 776, 777. S.C., in Ch., 9 Hare, 713.1

Estate-& tail; for ~ ~ f e - ~ ~ e & ~ ~ o r ~ Tmst-“ ~ n ~ e ~ ~ ”-“ &‘os ”-‘( ~ r ~ ~ ~ o ~ . , ~

Where an estate for life is given by clear words, the mere imposition of a charge

on the tenant for life will not have the effect of enlarging tbe estate.

A testator, hy a will written on the pageg of a small note-book, divided his property

into three classes, marked No. 1, No. 2, Nos. 3. He devised these classes of

property to persons designated by lethrs. The order of ‘‘ mccession ” was

marked on one page (54) of his will. This page contained the words “ The

eldest and other sons to inherit before the next letter.” The persons desig-

nated by the letters were all named in a card, which was referred to in the

will, and which caxd was with the will admitted to probate. K. was the

testator’s wife, to whom was given an wtate for life in all the classes of the

property. The will required implicit obedience to certain orders of the

testator on the part of the ind~vidual first to, inherit after K. ;”and if not,

‘‘ the property aforesaid set down and particularised in No. 1 to go t.0 M., if

not to L., and afterwards to his eldest lawfully begotten son, etc.” There were

similar expressions with regwd to N. and 0. The card showed that thme t.wa

letters were intended for the eldest sons of two nephews, but who were then

unborn. m e property No. 1 consisted of very large sums in stock, which the

executors of the will were to invest in the purchase of real estate; and in page

54 L. was named as the person to take No. 1 after the life estate of K. A grand-

son was “ to inherit before the next-named in the entail or any one of his sons.’’

Class No. 2 consisted of a small estate in land, and by page 54, 0. was, as to

that, to succeed to K., and the estate there given to 0. was expressly a life

estate, with [618] remainder to his eldest and other sons in tail male; and it

was there also said “ a grandson legitimate shall inherit before: a younger

son.” the ‘ I sutxweion ”

there was (page 54) ‘‘ first to 21. then to M.,” and the devise (page 47) was “ first

to K. and then to M., and afterwards to his eldest legitimate son, and then to

his other legitimate sons in order of primogeniture, provided, but not else,

the eldest have no issue male; if he have, it will go to him, and so on to the

other sons in like manner. After the decease of K., I repeat, I bequeath all

the property aforesaid to M. and his heirs male, in the manner aforesaid, a8

in the caae of L., etc., a t page 2, and I mean and order that this mode shall

prevail throughout the whole entail, under precisely the same injunctions :”

Held that, reading all the parts of the will together, L. only took a life estate in

No. 1, with remainder to his eldest and other sons in tail male:

Held, aleo, that this was not an executory trust.

Tbe Court of Exchequer, on an information filed by the Attorney-General for

legacy duty, had held that L. took an estate tail. On a bill to carry into effect

the trusts d the will, the ~ i c e - c h a ~ i c e ~ o r held that L. h k a fife stata only :

%e ~ i ~ ~ h a n ~ ~ o ~ s decision was affirmed; but as the t.est&or had himself

created the d~fficulty, the costs were ordered to come out of the estate.

Meaning of words “ son,” and “ grandson,” and ” inherit.”

This was an appeal against a decree of ViceAXancellor Turner, pronounced in

July, 1851, in a suit instituted to obtain the decision of the Court on the construction

564

Clasbs& No. 3 consistad of certain esta- in Suffolk ;

.