the insurer is most anxious carefully to guard. The questions, therefore, which relate to the symptoms of it are framed with great care, to draw out a full statement of any tendencies in that direction; but here, as in all cases of answers to specific questions, only good faith is required, unless the party framing the answer chooses to make it a warranty. In all cases of doubt, care should be taken to avoid a warranty, and the answer should either be qualified as above suggested, or the insertion of the clause should be objected to, as, if controverted by the insurers, the proof devolves upon the insured, and it may be inconvenient if not impossible for the representatives of the assured, or the assignee of the policy, to substantiate them if an action shall be brought upon the policy.

It has been suggested, (Angell on Fire and Life Insurance, Section 309), that, "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

admitted."

It is possible that some admissions of that sort might usefully be made upon policies, but, as the business is now done,

it

may well be doubted, whether it is not as well for the companies to be allowed to call for proof of all facts necessary to make a prima facie case, as to trust to the discretion of agents, who are naturally anxious to secure risks, and are necessarily obliged to rely very much for their facts upon the statements of parties whose acquaintance they make for the first time when the insurance is applied for. Conclusively to bind the insurers by agreements made at the inception of the risk, would be as useful in fire and marine insurance as upon lives, and to render it desirable and beneficial

in that

would require some radical changes in the mode of effecting insurance, which are not likely to be brought about at present.

Careful attention should be given by the assured to the precise question asked or declaration made, as the form of a statement is sometimes entirely controlling of its construction. As, where the declaration stated that the party had not "been afflicted with," nor was "subject to" fits. It was held not to mean that he had never had a fit, but that he was not a person "habitually" afflicted with them, and the policy was held not to be vitiated by the fact that the party whose life was insured had, several years before, in consequence of a fall, had within a short period of time two epileptic fits, which were not repeated subsequently. It will be readily seen, that this case was decided upon the form of the statement, and if the allegation had been that the party had never had a fit, the decision must necessarily have been different. So, if an exception in the policy is in the words, "if the insured shall die by his own hand," the construction may be quite different from that called for by a clause excepting from liability cases in which the insured shall die by "suicide."

If the question is general, as, whether the party to be insured has ever "spit blood," the answer should give the fact if there has been a single instance of such trouble, unless it procceded clearly and without doubt from some cause entirely local and transitory, as the pulling of a tooth or the accidental biting of the tongue or lips.

In the case of Geach vs. Ingalls, 14 Meeson & Welsby, 95, it was stated in the declaration, which was incorporated in the policy, that the person to be insured 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, scrofula, 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. Upon the trial of an action brought upon this policy, it appeared that the insured, some four years before

its date, had spit blood and exhibited other consumptive symptoms, and that he died of consumption three years after the insurance was effected. The jury was instructed, that it was for them to find, whether, at the time of making the statement, the party had such a spitting of blood and such an affection of the lungs and inflammatory cough as would tend to shorten life. A new trial was granted by the court of exchequer, on the ground that this was a misdirection. In delivering the opinion of the court of exchequer, the chief baron said, "By the expression 'spitting of blood,' is no doubt meant the disorder so called, whether proceeding from the lungs, the stomach, or any other part of the body, still, however, one single act of spitting of blood would be sufficient to put the insurers on enquiry as to the cause of it, and ought, therefore, to be stated." Another member of the court observed, "I have no doubt that if a man had spit blood from his lungs, no matter in how small a quantity, or even had spit blood from an ulcerated sore throat, he would be bound to state it. The fact should be made known at the office, in order that their medical adviser might make enquiry into its cause."

The opinion of Alderson B. contains some useful suggestions, and is quoted by Angell, in commenting upon this subject, as follows: "My Lord Denman certainly does not appear sufficiently to have called the attention of the jury to the distinction between those disorders, respecting the existence of which at the time of executing the policy the assured was called on to make a specific declaration, and those which might have formerly existed. By 'spitting of blood' must no doubt be understood a spitting of blood as a symptom of a disease tending to shorten life: the mere fact is nothing; a man cannot have a tooth pulled out without spitting blood. But, on the other hand, if a person has an habitual spitting of blood, although he cannot fix the particular part of his frame whence it proceeds, still, as this shows a weakness of some organ which contains blood, he ought to communicate the fact to the insurance company, for no one can doubt that it would most materially assist them in de

ciding whether they should execute the policy; and good faith ought to be kept with them. So, if he had had spitting of blood but once, but that once was the result of the disease called spitting of blood, he ought to state it; and his not doing so would probably avoid the policy. Again, suppose this man had an inflammation of the lungs, which had been cured by bleeding; many physicians would perhaps say that it was an inflammation of the lungs of so mitigated a nature as not to tend to shorten life; still, that would be no answer to the case of the defendants, for it is clear that the company intended that the fact should be mentioned. As to the word 'cough,' it must be understood as a cough proceeding from the lungs, or no one could ever insure his life at all: and indeed it is so expressed in the policy, cough or other affection of the lungs.' Again, it is obvious, that the insurance company meant to guard against the disease of dysentery. Now a man may have had a dysentery and been cured of it, still the office should know of the circumstance; and, indeed, that disorder may have been mentioned by name, as being one of a nature likely to return. All these instances show, that it was not intended to restrict the statement of the assured to disorders having a tendency to shorten life at the moment of executing the policy: what the company demanded was, a security against the existence of such diseases in the frame.

Where the party insured was troubled with spasms and cramps from violent fits of the gout, which are not uncommon symptoms of that complaint, but at the time the policy was taken out was in as good health as he had been for some time before, and was not then laboring under an attack of gout, a warranty that he was in "good health" was held to have been complied with; the fact that he was liable to gout having been communicated to the insurers and no warranty made against it. Lord Mansfield in that case observed that, "a warranty of good health at the time can never mean that a man has not the seeds of disorder: we are all born with the seeds of mortality in us." Angell on Fire & Life Insur

ance, 313. See also Willis vs. Pole, 2 Park on Ins., 935, 8 ed.; also, Aveson vs. Kinnaird, 6 East, 188.

A question is usually asked respecting the medical attendant, and it has been held that where the enquiry is, "who is the usual medical attendant?" the answer must give the name of the person who, at the time the policy is issued, was in the habit of attending the party. Occasional or accidental advice from another physician will not support the warranty, that he is the usual medical attendant; nor will it be proper for the answer to refer to one who was formerly in attendance but has been superseded by another person. See 5 Bingham, 214; Huckman vs. Fernie, 3 M. & W., 505; Maynard vs. Rhode, 5 Dow. & R., 266.

Where the reply was, "I have never had occasion for a doctor; sometimes I have taken Harvey's quack pills, but Mr. V. knows as much of me as any man," and the agent, in drawing up the declaration, stated that Mr. V. was the medical man who usually attended the party to be insured, and this declaration was signed by the plaintiff, he being a third party procuring an insurance on his interest in the life insured: it appeared that Mr. V. had not attended the party for nearly twenty years, but that he had occasionally been visited by a quack called Dr. Harvey, of which circumstance the plaintiff was not aware. Held, that it was no matter whether Dr. Harvey was a good medical attendant or not, he person actually attending, and that the circumstance of the plaintiff's being ignorant of the error did not affect the question, but the policy was void. Everett vs. Desborough, 5 Bing., 503.

was the

If one has no medical attendant, that fact should be stated, as it might naturally suggest the question, who attended him

last.

A condition, inserted in the certificate of renewal, that the insured was then in good health, is to be construed by the standard of health existing at the time of the original policy, and the description of the condition and ailments contained in the declaration and ailments on which it is founded. Where the insured at the time of the renewal is not afflic