XXII.

It became a doubt in the reign of King William, when a CHA P. policy on a life was to run from the day of the date thereof, till that day twelvemonth, and the perfon died on the day named, whether the infurer was liable. The court held that he was. The cafe was this: A policy of infurance was made Sir Robert to infure the life of Sir Robert Howard for one year, from the Howard's Cafe 2 Salkeld. 625, day of the date thereof; the policy was dated on the 3d day i Ld. Rayof September 1697. Sir Robert died on the 3d of September mond, 480. 1698, about one o'clock in the morning. Lord Holt held that from the day of the date excludes the day, but from the date includes it ; (a) fo that the day of the date must be excluded here, and the underwriter is liable.

Although from a perufal of the note below, it will appear that no difficulty could occur on such a point at the prefent day; yet it is ufual, in order to prevent disputes, to infert in the modern policies " the first and last days included.”

S. C.

Vide the Appendix, No. 3.

Policies on lives are equally vitiated by fraud or falfehood, [ 437 ] as those on marine infurances; because they are equally con tracts of good faith, in which the underwriter, from neceflity, must rely upon the integrity of the infured for the statement of circumstances. Indeed, the cafe of Wittingham v. Vide ante, 216, Thornborough, which we took occafion to cite in support of

the

"feffion, &c. any goods, &c. whereof he shall be reputed owner, the commif"fioners fhall have power to fell the fame in like manner as any other part ❝ of the bankrupt's eftate." The preamble says, " whereas it often happens "that many persons before they become bankrupts, do convey their goods tỏ ❝ other men, upon good confideration, and yet retain the poffeffion, and are reputed owners thereof, &c." The court in Mace v. Cadell (Corp. 232.) held, that the statute extended to the goods of a third perfon, which he allowed the bankrupt to keep poffeffion of, as well as to those which originally belonged to the bankrupt, although the preamble fpeaks only of the bankrupt's original property.

() In the law books, not perhaps much to the honour of the profession, this diftinction taken by my Lord Holt, was at one time held to be law, at others not; fometimes, thefe expreffions were held to mean the fame thing; at others to be quite different. In the year 1777, however, this glaring ab furdity was entirely done away, and the Court of King's Bench unanimoufly held, after much deliberation, that they mean the fame thing; that they all either be exclufive or inclufive, according to the context and fubject matter, and shall be fo conftrued as moft effectually to fupport the deeds of the parties, and not to destroy them. See Lord Mansfield's very elaborate argument upon this occafion, in which all the cafes are fully stated and confidered. Pugh v. the Duke of Leeds. Cowper's Reports 714.

CHAP. the doctrine laid down in the chapter upon Fraud in Marine
XXII.
Infurances, was a policy upon a life insurance.-In another
cafe, the principles of fraud were considered as far as it affects
this contract.

Stackpole v.
Simon, Sittings

Hilary Vac.

$779.

It was an action on a policy of infurance for 150l. at four at Guildhall guineas per cent. in cafe Drury Sheppey fhould die at any time between the 1st of April 1777 and the 1st of April 1778, both days included, and during the life time of John Sheppey, the father of Drury: but in case the said John fhould die before the faid Drury, the policy to be void; the queftion was, as to the reprefentation of the life at the time of the infurance. The interest in the insurance was gool. due from Drury Sheppey to the plaintiff. It was admitted, that the life expired within the time limited in the policy. Drury Sheppy had a place in the Custom-houfe of Ireland, and was in bad circumstances. He went to the South of France for the ben efit of his health, or to avoid his creditors, and there died. The broker, who effected the policy, told the underwriters that the gentleman, for whom he acted, would not warrant, but from the account he (the broker) had received, be believed it to be a good life.

Lord Mansfield." As to the interest, this policy may be confidered as a collateral fecurity for the debt due to the plaintiff, Where there is no warranty, the underwriter runs the risk of its being a good life or not. If there be a concealment of the knowledge of the ftate of the life, it is a fraud, It is a rule that every fubfequent underwriter gives credit to the reprefentation made to the firft; and it is allowed that any fubfequent underwriter may give in evidence a misreprefentation to the firft. The broker here does not pretend to any knowledge of his own, but speaks from information. There is no fraud in him." There was a verdict for the plaintiff,

Even where there is an exprefs warranty, that the perfon is in good health, it is fufficient that he is in a reasonable [438] good state of health; for it never can mean, that the refu que vie is perfectly free from the feeds of diforder. Nay, even if the perfon, whofe life was infured, laboured under a particular infirmity, if it can be proved by medical mèn that it did not at all, in their judgment, contribute to his death, the warranty of health has been fully complied with; and

the infurer is liable.

Thus

ance.

XXII.

Thus in an action on a policy made on the life of Sir James CHA P. Rofs for one year from October 1759 to October 1760, war- L ranted in good health at the time of making the policy: the fact was, Rofs v. Bradthat Sir James had received a wound at the battle of La Feldt thaw, Black: Rep. p. 312. in the year 1747, in his loins, which had occafioned a partial relaxation or palfy, fo that he could not retain his urine or faces, and which was not mentioned to the infurer. Sir James died of a malignant fever within the time of the infurAll the phyficians and furgeons, who were examined for the plaintiff, swore, that the wound had no fort of connexion with the fever; and that the want of retention was not a disorder which fhortened life, but he might, notwithstanding that, have lived to the common age of man: and the furgeons who opened him, faid, that his inteftines were all found. There was one phyfician examined for the de fendant, who faid, the want of retention was paralytic; but being asked to explain, he faid, it was only a local palfy, arifing from the wound, but did not affect life: but, on the whole, he did not look upon him as a good life.

Lord Mansfield."The queftion of fraud cannot exist in this cafe. When a man makes infurance upon a life generally, without any reprefentation of the ftate of the life infured, the infurers take all the rifk, unlefs there was fome fraud in the perfon infuring, either by his fuppreffing fome circumstances which he knew, or by alleging what was falfe. But if the person insuring knew no mote than the infurer, the latter takes the risk. In this cafe there is a warranty, and wherever that is the cafe, it must, at all events, be proved, that the party was a good life, which makes the question on a warranty much larger than that on fraud. Here it is proved that there was no reprefentation at all as to the state of life, nor any question afked about it; nor was it neceffary. Where an infurance is upon a reprefentation, every material circumstance should be mentioned, fuch as age, way of life, &c. But, where there is a warranty, then nothing need be told; but it muft in general [439 ] be proved, if litigated, that the life was, in fact; a good one, and fo it may be, though he have a particular infirmity. The only question is, whether he was in a reasonable good ftate of health, and fuch a life as ought to be infured on common terms.” The jury, upon this direction, without going out of court, found a verdict for the plaintiff.

CHAP
XXII.

In a fubfequent cafe, the fame rule of decifion was recommended and enforced. It was an action on a policy on the Willis v. Poole, life of Sir Simeon Stuart, Bart. from the 1st of April 1779 Sittings at to the 1st of April 1780, and during the life of Eliza Edgley Guildhall, Eafter Vac. 1780. Ewer. This policy contained a warranty that Sir Simeon was about 57 years of age, and in good health on the 11th of May 1779, and that Mrs. Ewer was about 78 years of age. The defendant, at the trial, admitted that Sir Simeon and Mrs. Ewer were of the refpective ages mentioned in the warranty; that he died before the 1st of April 1780, and that she was living. Two questions were intended to have been made; 1ft, As to the plaintiff's intereft: 2d, On the warranty of health. The former was difpofed of, by the plaintiff having proved a judgment debt. As to the latter, it appeared in evidence, that, although Sir Simeon was troubled with fpafms and cramps from violent fits of the gout, he was in as good health, when the policy was underwritten, as he had been for a long time before. It was alío proved by the broker, who effected the policy, that the underwriters were told, that Sir Simeon was fubject to the gout. Dr. Heberden, and other gentlemen of the faculty, were examined, who proved that fpafms and convulfions were fymptoms incident to the gout.

Lord Mansfield." The imperfection of language is fuch, that we have not words for every different idea; and the real intention of parties must be found out by the subject matter. By the present policy, the life is warranted to fome of the underwriters, in health, to others in good health; and yet there was no difference intended in point of fact. Such a warranty can never mean that a man has not the feeds of a diforder. We are all born with the feeds of mortality in us. A man, fubject to the gout, is a life capable of being infur440] ed, if he has no ficknefs at the time to make it an unequal contract." There was a verdict for the plaintiff.

Vide ante, ch. 19.

In a former chapter we faw, that when the risk is entire, and it is once begun, there fhall be no apportionment or return of premium, though it fhould ceafe the very next day after it commenced. The fame rule is applicable in every refpect to the premium on life infurances; for the contract is entire, and if the perfon whofe life is infured, fhould put

XXII.

an end to it the next day after the risk commences, though CHA P. the underwriter is discharged, there would be no return of premium. This has never been decided in any judicial determination exprefsly on the point, but it has frequently been declared to be the law upon the fubje&t by the learned judges in the course of argument, when return of premium on marine insurances was the point under difcuffion. This was particularly done in the cafe of Tyrie v. Fletcher, by Lord Cowper, 669, Mansfield, when delivering the judgment of the court. "There has been an inftance put," faid his Lordship," of a "policy where the measure is by time, which feems to me "to be very strong and appofite to the prefent cafe; and "that is an insurance upon a man's life for twelve months. "There can be no doubt but the risk there is constituted by "the measure of time, and depends entirely upon it for the "underwriter would demand double the premium for two years, that he would take to infure the fame life for one year only. In fuch policies, there is a general exception against fuicide. If the perfon puts an end to his own life "the next day, or a month after, or at any other period "within the twelve months, there never was an idea in any "man's breast, that part of the premium should be returned."

Afterwards in the cafe of Bermon v. Woodbridge, Lord Douglas, 758. Mansfield laid down the fame doctrine. "In an infurance upon a life, with the common exception of fuicide, and "the hands of justice, if the party is executed, or commit "fuicide, in twenty-four hours, there shall be no return."

From these opinions which have been frequently repeated in other cafes, the law upon the fubject of return of premium, as applicable to life insurances, feems perfectly afcertained; because except in the cafe of fuicide or a public execution, the question can never arise.