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TREATISE 
 
 LAW OF LIFE ASSURANCE, 
 
 DEXTER REYNOLDS, 
 
 COUNSELLOR AT LAW. 
 
 ALBANY : 
 
 GOULD, BANKS & CO.. 475 BROADWAY. 
 
 NEW YORK: 
 
 BANKS, GOULD & CO., 144 NASSAU. 
 
 1853. 
 
$#2 3 2? 
 
 Entered according to Act of Congress in the year one thousand eight hundred 
 and fifty-three, 
 By GOULD, BANKS & CO., 
 In the Clerk's Office of the District Court of the Northern District of N. Y. 
 
 ALBANY; 
 JOEL MUNSELL, PRINTER. 
 
TO 
 
 THEOPHILUS PARSONS, LL. D., 
 
 JDcme professor of £at», 
 
 IN HARVARD UNIVERSITY, 
 
 This Treatise is Inscribed by his Fkibns 
 
 THE AUTHOR. 
 
PREFACE. 
 
 The present- work is designed not only for 
 the use of the members of the bar, but also for 
 those who are engaged in the business of assur- 
 ing lives. The growing importance of. the 
 subject, owing to the continued increase in this 
 branch of insurance ; the fact that no American 
 work has yet appeared and that the English 
 treatises have connected this with the other 
 branches of insurance, so that there is no work 
 devoted exclusively to this subject, have in- 
 duced the author to offer the present work to 
 the public. 
 
CONTENTS. 
 
 CHAPTER i; 
 
 OP THE ORIGIN AND HISTORY OF LIFE ASSURANCE. 
 
 / 
 
 1. Of its origin and early history. 
 
 2. Of its introduction and success in the United States and 
 
 other countries. 
 
 3. Of the treatises on the subject. 
 
 4. Of tables of mortality. 
 
 CHAPTER II. 
 
 OF THE CONTRACT OF LIFE ASSURANCE— MANNER OF EFFECTING IT 
 
 PURPOSES TO WHICH IT MAY BE APPLIED, AND BENEFITS 
 TO BE DERIVED THEREFROM. 
 
 1. Contract of assurance defined and explained. 
 
 2. Assurance when in the nature of an indemnity. 
 
 3. Manner of effecting an assurance. 
 
 4. Of the policy. 
 
 5. Of the different purposes to which the contract is applicable. 
 
 6. Of the benefits to be derived therefrom. 
 
 CHAPTER III. 
 
 OF THE INTEREST IN THE LIFE INSURED. 
 
 1. Origin and object of. the rule requiring interest. 
 
 2. Nature and extent of the interest required. 
 
 3. Of the interest in one's own life. 
 
 4. Of the interest in the lives of one's relations or friends. 
 
 5. Of the interest of a creditor in the life of his debtor. 
 
 6. Of the interest of a trustee in the life of his cestui que trust. 
 
 7. Of the interest of the grantee of an annuity in the life or 
 
 lives on which his annuity depends. 
 
Vlll CONTENTS. 
 
 CHAPTER IV. 
 
 OF THE COMMENCEMENT AND DURATION OF THE RISK. 
 
 1. Of the usual time of its commencement, and of the true rule 
 
 for determining it. 
 
 2. Of the clauses "from the date " and "from the day of the 
 
 date." 
 
 3. The death must happen within the time limited in the policy. 
 
 4. Whether the death happened within the time limited is a 
 
 question for the jury. 
 
 5. As to presumptions of death. 
 
 6. Presumptions of survivorship. 
 
 7. The risk may terminate before the time limited. 
 
 CHAPTER V. 
 
 OF WARRANTY .- 
 
 1 . Warranty in general, its effect. 
 
 2. Distinction between a representation and a warranty. 
 
 3. Of the form of a warranty. 
 
 4. Of affirmative and promissory warranties. 
 
 5. Of the clause that the assured is " in good health." 
 
 6. Of the clause that the assured has "no disorder tending to 
 
 shorten life." ' 
 
 7. Of the clause " fits, vertigo, &c." 
 
 8. Of the clause " spitting of blood." 
 
 9. Of the clause " sober and temperate habits." 
 
 10. Of the clause that the assured shall not commit " suicide " 
 
 or " die by his own hands." 
 
 11. Of the clause that the assured shall not die by the hands of 
 
 justice. 
 
 12. Of the construction of warranties in general. 
 
 CHAPTER VI. 
 
 MISREPRESENTATION. 
 
 1. Misrepresentation in general, its form and effect. 
 
 2. Materiality of a fact misrepresented, a question for a jury. 
 
 3. Misrepresentation by a third party. 
 
CONTENTS. ix 
 
 4. Misrepresentation through mistake, neglect, or accident. 
 
 5. Misrepresentation as to medical attendant. 
 
 6. Meaning of the clause " usual medical attendant." 
 
 7. Misrepresentation by the assurer. 
 
 CHAPTER VII. 
 
 CONCEALMENT. 
 
 1. Concealment in general, its effect. 
 
 2. What things need not be disclosed, 
 
 3. Materiality of a fact concealed, a question for a jury. 
 
 4. As to facts not within the knowledge of the assured. 
 
 5. Concealment of intemperate habits. 
 
 CHAPTER VIII. 
 
 OF THE ASSIGNMENT OF POLICIES. 
 
 1. Of the legality of assignments. 
 
 2. Of notice to the assurers of the assignment. 
 
 CHAPTER IX. 
 
 OF THE RETURN OF PREMIUM. 
 
 1. Where there is a clause in the policy in reference thereto. 
 
 2. Where there is no clause in the policy. 
 
 CHAPTER X. 
 
 OF THE RECOVERY OF INTEREST, ON THE AMOUNT SECURED BY THE 
 POLICY, FROM THE TIME WHEN IT BECAME DUE. 
 
 CHAPTER XI. 
 
 MISCELLANEOUS DECISIONS TOUCHING THE CONTRACT OF ASSURANCE. 
 
 CHAPTER XII. 
 
 OF THE DIFFERENT SYSTEMS OF ASSURANCE. 
 
 1. Of the proprietary, or joint stock system. 
 
 2. Of the mutual system. 
 
 3. Of the mixed system. 
 
TABLE OF CASES. 
 
 Acey, vs. Fernie, 80, 81. 
 Anderson, vs. Edie, 54. 
 Andrews, ex parte, 171. 
 Ashley, vs. Ashley, 150. 
 Aveson, vs. Lord Kinnaird, 99, 144. 
 
 Barber, vs. Morris, 50. 
 Bainbridge, vs. Neilson, 58. 
 Bermon, ys- Woodbridge, 161. 
 Bean, vs. Stupart, 88. 
 Biays, vs. The Union Insurance 
 
 Company, 138. 
 Bize, vs. Fletcher, 89. 
 Holland, vs. Disney, 11 1. 
 Borradaile, vs. Hunter, 106. 
 Bradley, vs. Bradley, 73, 74. 
 Breasted, vs. The Farmers' Loan 
 
 and Trust Company, 107. 
 Burdon, vp. Browning, 173. 
 Burridge, vs. Row, 176. 
 Burritt, vs. The Saratoga County 
 
 Mut. Fire Ins. Co., 86, 87, 92. 
 Burr, vs. Sim, 73, 74. 
 
 Cafer, vs. Thurmond, 73. 
 
 Carter, vs. Boehm, 132, 137. 
 
 Chapman, vs. Frazer, 164. 
 
 Chattock, vs. Shawe, 103. 
 
 Clark, vs. The Manufacturers' Ins. 
 Company, 117, 119. 
 
 Clift, vs. Schwahe, 106. 
 
 Cook. vs. Black, 153. 
 
 Courtney, vs. Ferrers, 175. 
 
 Coye, vs. Leach, 77. 
 
 Curry, vs. Commonwealth Insur- 
 ance Co., 136. 
 
 DeHahn, vs. Hartley, 117. 
 Delonguemare, vs. The Trades- 
 man's Ins. Co., 91. 
 Doe, vs. Nepean, 74. 
 Duckett, vs. Williams, 160. 
 Duffel], vs. Wilson, 164. 
 Duff, et. al., vs. Gant, 134. 
 Dwyer, vs. Edie, 60. 
 
 Edwards, vs. Barrow, 114. 
 Everett, vs. Desborough, 128, 145. 
 
 Farmers' Insurance and Loan Co., 
 
 vs. Snyder, 87,91. 
 Feise, vs. Parkinson, 163. 
 Fitzherbert, vs. Mather, 121. 
 
 Garret, vs. Barclay, 105. 
 Geach, vs. Ingalls, 104. 
 Godsall, vs. Boldero, 24, 55, 170. 
 Godsal, vs. Webb, 155. 
 
 Halford, vs. Kymer, 42, 50. 
 Hamilton, vs. Mendez. 171. 
 Henson, vs. Blackwell, 45. 
 Higgins, vs. Sargent, 165. 
 Holland, vs. Smith, 176. 
 Holland, vs. Pelham, 62. 
 Huckman, vs. Fernie, 128. 
 Huguenin, vs. Kayley, 137. 
 Humphrey, vs. Arabin, 169, 173. 
 
Xll 
 
 TABLE OF CASES. 
 
 Innes, vs. The Equitable Assur- 
 ance Co., 41. 
 
 Jefferson Insurance Company, va. 
 
 Cotheal, 90. 
 Jennings, vs. The Chenango Co. 
 
 Mut. Ins. Company, 91. 
 Jones, vs. Keene, 174. 
 
 Kenyon, vs. Berthon, 88. 
 Kinnear, vs. Borradaile, 105. 
 King, vs. Paddock, 72, 73. 
 
 Lockyer, vs. Offley, 69. 
 Lord, vs. Dall, 41, 42, 51, 140. 
 Lothian, vs. Henderson, 118. 
 Loring, vs. Steineman, 71, 73. 
 
 v Macdo wall, vs. Frazer, 122. 
 Mason, vs. Mason, 77. 
 Maynard, vs. Rhodes, 121, 122, 12a 
 Mayne, vs. Walter, 117. 
 McCartee, vs. Camel, 74, 75. 
 Moehring, vs. Mitchell, 78. 
 Morrison, vs. M uspratt, 118, 119, 127 
 Murdock & Garrett, vs. The Che- 
 nango Co. Mut. Ins. Co., 88. 
 
 Naish, In. re., 173. 
 
 Nepean, vs. Doe, 74. 
 
 New Castle Fire Ins. Co., vs Mac- 
 
 morran, 86. 
 Newman, vs. Jenkins, 73. 
 
 Patterson, vs. Black, 70. 
 Pawson, vs. Watson, 117. 
 Pawson, vs. Baroevelt, 89. 
 Pell, vs. Ball's Ex., 79. 
 Phillips, vs. Eastwood, 173. 
 Pontifex, vs. Bignold, 130. 
 Prather.vs. Palmer, 75. 
 Pugh, vs. Duke of Leeds, 68. 
 
 Reed, vs. Royal Exchange Assur- 
 ance Co., 51. 
 
 Rice, vs. New England Insurance 
 Co., 118. 
 
 Roberts, vs. The Chenango Co. 
 Mut. Ins. Company, 88, 89. 
 
 Ross, vs. Bradshaw, 94. 
 
 Routh, vs. Thompson, 162, 163. 
 
 Routledge, vs. Burrill, 90. 
 
 Selwyn's Case, 77. 
 Sillick, vs. Booth, 78. 
 Smith, vs. Knowlton, 71, 74. 
 Southcombe, vs. Merriman, 104, 
 
 147. 
 Stackpole, vs. Simon, 54, 102. 
 Snyder, vs. The Farmers' Ins. and 
 
 Loan Co., 91. 
 Swete, vs. Fairlie, 139. 
 
 Tayloe, vs. The Merchants' Fire 
 
 Ins. Company, 64. 
 Taylor, vs. Diplock, 77. 
 Tunno, vs. Edwards, 58. 
 Tidswell, vs. Ankerstein, 60. 
 Trench, vs. The Chenango Co. 
 
 Mut. Ins. Co., 86. 
 Tyler, vs. Home, 163, 164. 
 Tyrie, vs. Fletcher, 161. 
 Tilly, vs. Tilly, 72. 
 
 Valton & Adams, vs. The National 
 Loan Fund Life Assurance So- 
 ciety, 42, 168. 
 
 Von Lindenau, vs. Desborough. 59, 
 136. 
 
 Van Rensselaer, vs. Jewett, 166. 
 
 Watson, vs. Mainwaring, 99. 
 
 Want, vs. Blunt, 82. 
 
 Wainright, vs. Bland, 47, 49, 123, 
 
 152. 
 Whittingham, vs. Thornburgh, 3. 
 Willis, vs. Poole, 98. 
 Worseley, vs. Wood, 90. 
 
LIFE ASSURANCE. 
 
 CHAPTER I. 
 
 Of the Origin and History of Life Assurance. ' 
 
 1. Of its origin and early history. 
 
 2. Of its introduction and success in the United States, and 
 other countries. 
 
 3. Of the treatises on the subject. 
 
 4. Of tables of mortality. 
 
 The origin of the application of the contract 
 of insurance to the subject of lives, like that 
 of other institutions, which have been intro- 
 duced by slow and imperceptible degrees, is 
 wrapt in some obscurity. 
 
 Although the determination of the exact pe- 
 riod when such contracts were first entered 
 into, may be of no great practical importance, 
 yet it is interesting, as matter of history, to see 
 what state of things preceded and gave rise to 
 the system ; and tracing it down from its first 
 crude conceptions, to note the changes and im- 
 provements that have been successively intro- 
 
2 LIFE ASSURANCE. 
 
 duced into it, all tending, in a greater or less 
 degree, to render its principles better under- 
 stood, and the success of its operations more 
 sure and reliable. 
 
 An author, 1 writing upon this subject, has 
 well remarked, that " the principles of life as- 
 surance indicate too great an advance in science 
 and the philosophy of society, to be attributed, 
 even in the most imperfect form, to any ancient 
 period." And, accordingly, we find that al- 
 though the application of the contract of in- 
 surance to marine risks was, at an early day, 
 known and in use among the Ehodians and 
 other nations who inhabited the sea board and 
 were engaged in commerce ; and that later, in 
 1609, the idea was conceived of applying it to 
 losses by fire, b yet it was not till long after its 
 application to these subjects was well under- 
 stood and in general use, that it was applied to 
 the subject of lives. 
 
 It has been considered by many, that the 
 idea conceived by an Italian of Naples, named 
 
 * Blaney. 
 
 ' History of Inventions and Discoveries, by J. Beekman, Lon- 
 don. 1848, vol. I, p. 241. 
 
ITS ORIGIN AND HISTORY. 3 
 
 Tonti, about the middle of the 17th century, 
 of several persons uniting together, each pay- 
 ing a fixed sum, to be divided among those who 
 survived at the end of the year, was the origin 
 of this species of contract, still we must look 
 to England for the first authentic account of 
 any application of it, at all analogous to the' 
 modern system. After the publication on the 
 subject by Huygeris, in 1658, which was fol- 
 lowed in a few years by a pamphlet on Life 
 Annuities, by John De Witt ; and especially 
 after the appearance, in the latter part of the 
 17th century, of the remarks and tables 
 of Dr. Halley, on the comparative mortality of 
 mankind and the consequent value of annui- 
 ties for lives ; the theory of life assuranee 
 having begun slowly to be developed and more 
 universally understood, its principles were put 
 in practical operation. 
 
 They were first undertaken by private indi- 
 viduals, as appears from a case in Vernon, c 
 and shortly after we find them undertaken by 
 associations. 
 
 In 1689, a scheme was set on foot, having for 
 
 c Whittingbam vs. Thomburgh, 2 Ver. R. 206. 
 
4 LIFE ASSURANCE. 
 
 its object, the benefit of the widows and orphans 
 of clergymen and others, which association was 
 known as "The Mercers' Company." d 
 
 In 1699, another association was established 
 under the* name of "The Society for Widows 
 and Orphans. " e About the same period other 
 associations were formed for the benefit of par- 
 ticular classes, as the members of the army, 
 navy, clergymen, schoolmasters, &c. 
 
 These associations, founded on the principles 
 established in the works before mentioned, 
 were of the nature of provident and reversion- 
 ary societies, and though, as their names indi- 
 cate, they were designed chiefly for the benefit 
 of particular classes, and though at that time 
 very imperfect ideas on the subject of life as- 
 surance prevailed ; yet they may nevertheless 
 be considered as founded on the same princi- 
 ples as the modern life assurance associations. 
 
 In 1706, the Bishop of Oxford, Sir Thomas 
 Allen, and other benevolent individuals, ob- 
 serving the benefits to be derived from institu- 
 tions of this character, by persons of small 
 
 d Pocock, p. 93. 
 Ibid, p. 94. 
 
ITS ORIGIN AND HISTORY. 5 
 
 means, solicted and obtained from Queen Anne, 
 a charter for a society, under the name of 
 " The Amicable society for Perpetual Assur- 
 ance." The object of this society, in its original 
 formation, was simply to enable persons, with- 
 out regard to age, to subscribe annually some 
 portion of their income, in order that the repre- 
 sentatives of each subscriber might, upon the 
 decease of the person, receive such a sum of 
 money as the funds of the society might enable 
 them to pay, according to the number of deaths 
 which might have happened during the year; 
 so that in every case, whatever might be the 
 age of the person, or the period for which the 
 assurance was effected, the same premium was 
 charged/ Nothing could show more clearly 
 the imperfect idea that was still entertained of 
 the principles of life assurance, and the im- 
 perfect tables in use, than that each person, 
 irrespective of age, paid the same premium, 
 when the value of the life in a great measure 
 depended on the age of the assured. 
 
 As other tables, more extensive and conse- 
 quently more correct, were formed, and as other 
 
 'Blaney, p. 5. 
 
6 LIFE ASSURANCE. 
 
 companies were successively chartered, compe- 
 tition increased, and necessarily brought down 
 the premiums, and led to a more minute exa- 
 mination of the principles of life assurance, by 
 the test of experience and mathematical rules. 
 Other companies, on more extensive plans 
 and on the proprietary system, with a fixed 
 
 capital and graduated premiums, were then 
 formed, and intended for all individuals, and 
 not limited, as the Amicable and others before 
 named, to particular objects or classes. We 
 find afterwards, in 1807, that the Amicable 
 company, in obtaining their fourth charter, 
 modified their original plan and graduated 
 their premiums according to the age and cir- 
 cumstances of the person. 
 
 In 1762, in consequence of some lectures 
 read by Mr. Thomas Simpson, an eminent 
 mathematician, and on his recommendation, a 
 company was founded, called " The Society for 
 Equitable Assurance." This was to be con- 
 ducted on a plan altogether different, and until 
 then untried, upon what is now called the mu- 
 tual principle, according to which, the persons 
 assured are alike participators in the profits and 
 
ITS ORIGIN AND HISTORY. 7 
 
 losses of the concern ; but it was refused a 
 charter, because its plan was considered dan- 
 gerous and visionary. 
 
 Notwithstanding the unfavorable idea which 
 was at first entertained of this new system, the 
 above society has been one of the most exten- 
 sive and successful in its operation. 6 
 
 Other companies have since been chartered 
 in England, and the number has been as high 
 as eighty ; some have eeased to exist, but the 
 capital now embarked in England alone, in this 
 branch of insurance, amounts to many mil- 
 lions. 
 
 * 
 
 2. Of its Introduction and Success in the United 
 States and Other Countries. 
 
 At least as early as 1814, the practice was 
 introduced in the United States, when a com- 
 pany was chartered in New York, under the 
 name of "The Dutchess County Insurance Com- 
 pany," which to marine and fire risks joined 
 the insurance x>f lives. 
 
 In 1815, another company was incorporated 
 under the name of "The Union Insurance Com 
 
 * 
 
 e Blaney, p. 7. 
 
8 LIFE ASSURANCE. 
 
 » 
 
 pany," which, as well as the former, took life 
 risks together with marine and fire risks. 
 
 It was not, however, till 1818, that a com- 
 pany was formed in this country, having for its 
 sole object the assurance of lives. This was 
 incorporated in Massachusetts, under the name 
 of "The Massachusetts Hospital Life Insurance 
 Company." It still exists, and has its office in 
 Boston. 
 
 Some five or six others have since been in- 
 corporated in that state, h most of which are 
 conducted on the mutual system. 
 
 In New York, 1 Pennsylvania J and Connecti- 
 cut^ it has met with equal success, and com- 
 
 n "New England Mutual;" "Union Mutual;" "Equitable 
 Life Assurance Society;" "Washington Mutual Life Insurance 
 Company," Worcester. 
 
 '"Eagle;" " Mutual Life;" " New York Life Insurance Com- 
 pany;" "New York Life Insurance and Trust Company;" "Uni- 
 ted States Life Insurance Company, in the city of New York:" 
 " Manhattan Life Insurance Company." 
 
 > "Equitable;" " Girard ;" "Pennsylvania;" "Penn Mu- 
 tual." 
 
 ""Hartford;" "American Mutual;" "Connecticut Mutual 
 Life." 
 
ITS ORIGIN AND HISTORY. 9 
 
 panies are also to be found in some of the 
 other states. 1 , 
 
 The companies are usually established in the 
 larger cities, but their agencies extend through- 
 out the state, and not unfrequently are estab- 
 lished in adjoining states. 
 
 Some of the English companies, have also 
 agencies in this country." 1 
 
 The capital invested in this branch of insur- 
 ance in the United States, can not be less than 
 ten millions of dollars." 
 
 ' " Ohio Life and Trust Company;" Cincinnati, Ohio; "Mu- 
 tual Benefit Life Insurance Company;" and "Trenton Cash 
 Mutual Life Insurance Company," New Jersey. 
 
 ""Albion Life;" "United Kingdom;" " National Loan Fund 
 Life Assurance Society." 
 
 ° The energetic and restless character of the American people, 
 the many and varied opportunities open in a new country to indi- 
 vidual exertion and enterprise, sufficiently account for the late 
 introduction of life assurance into this country and its hitherto 
 slow, though steady increase. As the country grows older, the 
 opportunities for individual enterprise will become fewer; the 
 class of persons dependent on a fixed income will be multiplied, 
 and the business of assuring lives will rapidly increase, as it has 
 in England, and if honestly and prudently conducted, will be- 
 come one of the most useful, extensive and beneficial of insti- 
 tutions. 
 
10 LIFE ASSURANCE. 
 
 Having now traced the origin of life assur- 
 ance — its first practical application,^ its intro- 
 duction into and success in the United States — 
 it may not be inappropriate or uninteresting 
 to give a brief account of its reception by 
 other countries. 
 
 In France, as appears by an old work, n 
 and while the principles of life assurance 
 were known elsewhere, it was a contract 
 wholly forbidden, as being contrary to good 
 morals. It was expressly forbidden by an 
 ordinance in 1681, p based upon a maxim 
 of the civil law, that the life of a free- 
 man is above all valuation, "liberum corpus 
 a3stimationem non recipit." But this maxim, 
 though perhaps true in itself, is not applicable 
 to life assurance, and the prohibition of assur- 
 ances, on this ground, seems justly, as Mr 
 Marshall says, " a glossing over with a fine 
 sentiment, a motive of policy which could not 
 be mentioned without conveying an insinua- 
 tion to the discredit of the national character." 
 The views of, the French government must 
 
 ° Le Guidon, ch. xvi, art. 5. 
 f Tit. des Assurances, art. 10. 
 
ITS ORIGIN AND HISTORY. 11 
 
 have undergone a change, for two companies 
 with this object have since been incorpo- 
 rated.i 
 
 These companies, although they have exten- 
 sively circulated their schemes, established 
 agencies in various parts of France, and assure 
 at as reasonable rates as other companies, have, 
 however, met with little success/ The French 
 have attempted to introduce the practice into 
 Italy, but have signally failed. • 
 
 And the reason assigned for their failure 
 seems just : " that the present character of the 
 Italians, deteriorated as it has been, for so 
 long a period, by the oppressions of despotic go- 
 vernments, little disposes them to sacrifice any 
 share of their present enjoyments and personal 
 comforts, for the sake of future benefits to 
 others." 8 
 
 Three life assurance companies have also been 
 established in the Netherlands, which meet with 
 some success, and the government has pro- 
 hibited the introduction of foreign companies. 1 
 
 " "La Compagnie ^'Assurances Generates ;" "La Compagnie 
 Royale d' Assurances." 
 ' Edinburgh Review, toI. xlv., p. 480. 
 ■ Ibid * Ibid. 
 
12 LIFE ASSURANCE. 
 
 Several small corporations exist in Denmark, 
 but do nothing. 
 
 From this, we may see, that it is in England 
 and America alone, that an institution which 
 appears to be so beneficial to the public, has met 
 with a success at all commensurate with its 
 merits. 
 
 4. Of the Treatises upon the Subject. 
 
 Of the authors who have written upon this 
 subject, some have confined themselves to an 
 explanation of its principles, to the formation of 
 tables and similar matters ; others have treated 
 the subject only in a legal manner. The works 
 of the former, designed for the benefit of those 
 who have formed or intend to form themselves 
 into associations, for the purpose of assuring 
 lives, and for those intending to be assured \ 
 the latter to explain and elucidate the rights, 
 duties and liabilities of the different parties to 
 the contract when formed. 
 
 The first authentic publication on the sub- 
 ject, was by Huygeris, in 1658. Afterwards in 
 1671, Jean De Witt published a work in Hol- 
 land, entitled " De Vardye Yon de Lifrenten." 
 
ITS ORIGIN AND HISTORY. 13 
 
 In January 1692, Dr. Halley published an ar- 
 article in the Philosophical Transactions, which 
 unfolded for the first time the method of cal- 
 culating annuities for lives ; he also published 
 a table founded on the mortality observed at 
 Breslau — which are known as the Breslau ta- 
 bles. In 1724, appeared a very ingenious work 
 by the celebrated Abraham De Moivre, on the 
 doctrine of chances. In 1742, Mr. Thomas 
 Simpson, an eminent mathematician, and who 
 may be considered, as before stated, the founder 
 of the mutual system of assurance, published 
 a work on the doctrine of annuities and rever- 
 sions. 
 
 About the same time, in Prance, the subject 
 was pursued by De Parcieux, St. Cyran and 
 Duvillard — the former of whom, in 1746, pub- 
 lished, his " Essai sur les Probabilites de la 
 Duree de la Vie Humaine." 
 
 In Germany we find Euler, Sussmilch and 
 Wargentin. In 1769, Mr. James Dobson turned 
 his attention to the subject. But it is to Dr. 
 Richard Price, who applied himself to this sub- 
 ject, about this time, that life assurance is most 
 indebted. He published in 1769, a work on 
 
14 . LIFE ASSURANCE. 
 
 Reversionary Payments, designed chiefly for 
 those persons who wished to form themselves 
 into associations to make provisions for widows 
 and children. It contained' remarks on the 
 probabilities and expectations of life, on the 
 medium duration of widowhood and marriage, 
 and directions for forming tables. It also con- 
 tained tables constructed from the burial regis- 
 ters of the parishes of Norwich, Chester, and 
 Northampton ; those of Northampton were the 
 most accurate and extensive ; and have justly 
 had' a great celebrity and extensive use among 
 those engaged in this business. He also added 
 tables constructed from the registers of births 
 and deaths, which had been kept in Sweden 
 for over 21 years, and which are known as the 
 Swedish tables. 
 
 The edition of this work, edited by Mr. "Wil- 
 liam Morgan, and published in London, in 1803, 
 and entitled, " Observations on Rerversionary 
 Payments, the Doctrine of Life Annuities and 
 Political Arithmetic," will be found of great 
 value to those engaged in this branch of as- 
 surance. 
 
 In 1813, Mr. Francis Bailey published, in 
 
ITS ORIGIN AND HISTORY. 15 
 
 London, a work entitled, "The Doctrine of Life 
 Annuities and Assurance, analytically investi- 
 gated and practically explained." 
 
 In 1815, appeared a very valuable treatise, 
 on the valuation of annuities and assurances 
 on lives and survivorships, by Joshua Milne. 
 
 In 1828, Mr. Morgan published a treatise on 
 the rise and progress of the Equitable Society. 
 
 In 1826, Mr. Charles Babbage published a 
 treatise entitled " A Comparative View of the 
 various Institutions for the Assurance of Lives." 
 
 In 1842, a very valuable work on this sub- 
 ject was published by Mr. Pocock. 
 
 Of the legal treatises on the subject may be 
 mentioned those of Beaumont, Blaney, Farren, 
 and Ellis, which appeared between 1826 and 
 1843. Of these, the one by Mr. Ellis, and 
 which is also to be found in the fourth volume 
 of the Common Law Library, is far the best. 
 
 Most of the last named authors, have also 
 connected with their works the subject of fire 
 insurance. The above is a brief summary of 
 the authors who have treated the subject either 
 legally or scientifically — for a more detailed 
 statement we refer the reader to the extensive 
 
16 LIFE ASSURANCE. 
 
 bibliographical index, to be found at the end 
 of Mr. Pocock's excellent work on assurance. 
 
 5. Tables of Mortality. 
 
 A few of the principal tables of mortality, 
 with the expectation or mean duration of life, 
 derived from them, have been inserted at the 
 end of this work, and it may not be out of place 
 to give a brief account of their origin and form- 
 ation. 
 
 Tables, or bills of mortality, as they are 
 sometimes called, are registers, containing the 
 number of births, marriages, and deaths, oc- 
 curring in a particular locality ; and when cor- 
 rectly kept, are of great value in showing the 
 natural healthiness and increase of the popu- 
 lation of such place. But when these tables 
 are extended, so as to embrace a large section 
 of country, or several countries, and when, in 
 addition to the above data, are added the ages 
 and sex of the persons who die, the season 
 of the year, and diseases of which they died ; 
 they are rendered far more useful to the in- 
 surers, in furnishing the means wherefrom to 
 form tables of the probable duration of life, on 
 
ITS ORIGIN AND HISTORY. 17 
 
 which to found calculations for estimating the 
 value of any proposed risk. The larger the ex- 
 tent of country, the longer the series of years, 
 and the greater the number of persons em- 
 braced in a table, the more accurate will be 
 the mean result arrived at. 
 
 The first bills of mortality were those of 
 Breslaw, in Silesia, from which Dr. Halley 
 formed his tables, which are known as the 
 Breslaw tables. 
 
 The Xorthampton tables, were formed by 
 Dr. Price, from the mortality of that town, in the 
 years 1741 — 1780. The number of male and 
 female deaths, was very nearly equal. These 
 tables have been adopted by the Supreme 
 Court of the state of New York," for calculat- 
 ing the value of estates for life, curtesy and 
 dower. The Carlisle tables, were formed by 
 Mr. Milne, from the observations of Dr. Heys- 
 ham, upon the mortality of that town in the 
 years 1779 — 1787. These tables are usually 
 employed by the assurance offices as giving re- 
 sults most favorable to them. 
 
 ■ Supreme Court Rules.. 76. 
 
18 LIFE ASSURANCE. 
 
 In Sweden, accounts have been kept of the 
 births, marriages, and burials, and of the num- 
 ber of both sexes that died, at all ages, in 
 every town and district ; ' and also at the end 
 of every period of five years, of the number 
 living at every age. At Stockholm a society 
 was established, whose business it was to su- 
 perintend and regulate the enumerations, and 
 to collect from the different parts of the king- 
 dom, the registers, in order to digest them into 
 tables of observation. These tables were be- 
 gun in 1755, and tables containing the result 
 from 1755 to 1763, have been published by Mr. 
 Wargentin. v 
 
 A table has been formed by the government 
 of Great Britain ; and another by the Equitable 
 Society in London, from their own experience, 
 derived from the mortality of the assured lives in 
 their office. Tables have also been formed and 
 published in other parts of England, Holland, 
 and other countries; but the Carlisle, North- 
 ampton, Breslaw, and Swedish tables, above 
 
 v Rees' Encyclopaedia, articles mortality, annuity, expectation, 
 survivorship, &c. 
 
ITS ORIGIN AND HISTORY. 19 
 
 named, and especially the Carlisle and North- 
 ampton, are the only ones in general use. 
 
 It is to be regretted that steps were not early 
 taken in this country with this object, as such 
 tables would not only be useful to those en- 
 gaged in life assurance and annuity transac- 
 tions, but would possess great value for the 
 public at large, in furnishing the means of as- 
 certaining the healthfulness of particular lo- 
 calities, and the law governing the 'mortality 
 observed. Steps, however, have recently been 
 taken, by the United States government, and 
 the first fruits appeared in the late census re- 
 turns ; w these must, however, as yet be too im- 
 perfect, to be of much value ; it is trusted, how- 
 ever 7 that the work once undertaken, will be 
 continued, and that before many years' we shall 
 have tables adapted to this country, sufficient 
 for the calculation of the usual contingencies. 
 
 w These returns will be found in the appendix. 
 
CHAPTEE II. 
 
 OF THE CONTRACT OF LIFE ASSURANCE MANNER OF 
 
 EFFECTING IT PURPOSES TO WHICH IT MAY BE 
 
 APPLIED, AND BENEFITS TO BE DERIVED THEREFROM. 
 
 1. Contract of assurance defined and explained. 
 
 2. Assurance when in the nature of an indemnity. 
 
 3. Manner of effecting an assurance. 
 
 4. Of the Policy. 
 
 5. Of the different purposes to which the contract is applicable. 
 
 6. Of the benefits to be derived therefrom. 
 
 1. Contract of Assurance defined and explained. 
 
 Life assurance is a contract, by which one 
 party in consideration of a sum paid or to be 
 paid, agrees with another, to pay the person for 
 whose benefit the assurance is effected, a speci- 
 fied sum on the death of the person whose life 
 is assured, or on the happening of an event, 
 depending on such life. a 
 
 a It is a difficult task, to give a comprehensive definition of 
 any subject, and one which at the same time shall be clear, sim- 
 ple and free from verbosity. The usual form of definition of this 
 
22 LIFE ASSURANCE. 
 
 The instrument wjhich is the evidence of the 
 contract, is called the policy ; the party who 
 undertakes the risk, the assurer ; and the party 
 who is to receive the benefit of the assurance, 
 the assured. Where one person insures the 
 life of another, he is, strictly speaking, "the 
 assured;" and the person whose life is the 
 subject of such assurance, "the life-assured." b 
 
 subject having been departed from above, it may not be out of 
 place to state the omissions of, and additions to, the one in the 
 text. The clause " or an annuity equivalent „" after the words 
 " specified sum," has been omitted on the ground that the latter in- 
 cludes the former. It has been thought unnecessary to qualify the 
 term " on the death of the life-assured," for where the assurance is 
 for a limited period and such period has expired, the contract is 
 at an end, and it is self evident that a death occurring thereafter, 
 can have no effect thereon. The clause " or on the happening of 
 an event depending on such life," has been added, for contracts of 
 life assurance are not, now limited to the single case of the 
 payment of a sum on the death of the assured, but are frequent- 
 ly made to pay a sum on the person assured attaining a certain 
 age, or being alive at a certain period. 
 
 b The person whose life is the subject of assurance, is frequently, 
 though incorrectly, called the assured, even where a person effects 
 an assurance on his own life, the sum to be paid to his repre- 
 sentatives ; he is not strictly speaking "the assured," but " the 
 life-assured." 
 
NATURE OF AN INDEMNITY. 23 
 
 The consideration which the assurer receives 
 for undertaking the risk is called the premium ; 
 this may be payable at one time or periodically, 
 according to agreement ; it is, however, usually 
 made payable periodically. 
 
 2. Assurance when in the Nature of an Indemnity. 
 
 We have denned the contract as absolute, to 
 pay a specified sum on the death of the person 
 whose life is the subject of the assurance, 
 because it is so on its face. In many cases, 
 however, it is to be considered as a contract in 
 the nature of an indemnity, and not a contract 
 to pay absolutely a specified sum on the hap- 
 pening of the event assured against. Thus 
 where one party insures the life of another, as 
 a creditor that of his' debtor, it is to be con- 
 strued as a contract in the nature of an 
 indemnity, and the sum to be paid on the 
 death of such assured debtor will not always 
 in such a case, be the sum specified in the 
 policy, but may be less, though never more 
 than the sum stated in the contract, according 
 to the interest which such creditor, may have 
 
24 LIFE ASSURANCE. 
 
 in his debtor, (i. e. the amount of his debt), 
 at the time of his decease. For it has been 
 held, that a creditor can not recover of the 
 assurer, any greater sum than was due to him 
 from such assured debtor, at the time of his 
 death: and that even if the debtor died insol- 
 vent; yet if the debt is paid aliunde, the creditor 
 can not recover of the company. 
 
 Even where a person assures his own life, it 
 may be considered as an indemnity against 
 the loss which such person considers his death 
 may occasion ; in all such cases however the full 
 specified sum is due from the assurer, there 
 being no limit to the interest which one may 
 have in one's own life; and no limit to the amount 
 which such person may be entitled to have 
 paid to his representatives, other than that 
 specified on the face of the policy. 
 
 3. Manner of effecting an Assurance. 
 
 a 
 
 A person desiring to effect an insurance, 
 applies to a company, (for in this country the 
 business is universally conducted by compa- 
 
 c -Godsall vs Bolders, 9 East 81. 
 
MANNER OF EFFECTING. 25 
 
 nies,) with whom he desires to effect the 
 assurance. By them he is furnished with 
 what is denominated a proposal for assurance ; 
 which is a printed list of interrogatories, framed 
 with a view to elicit every thing connected with 
 or concerning the party whose life is proposed to 
 be insured, which the underwriters deem in 
 any way material to the risk ; besides the ques- 
 tions to be answered by the person whose life 
 is to be insured, it also contains a list of ques- 
 tions to be answered by the party's medical 
 attendant, and also questions to be answered 
 by a friend of the party. Blanks are left in 
 the proposal, opposite the questions, to be filled 
 in with the answers of the respective parties. 
 The questions usually required to be answered 
 by the party whose life it is proposed to insure, 
 are ; name and residence of the person or per- 
 sons for whose benefit assurance is proposed — 
 amount of insurance applied for — name, occu- 
 pation, and residence of the person whose life 
 is proposed for insurance — place of birth of 
 the person whose life is to be insured, age next 
 birth day — month and day of month — is the 
 
 4 
 
26 LIFE ASSURANCE. 
 
 party whose life is to be insured married or 
 single? Has the party resided in the southern 
 or western states, or in foreign climates, and if 
 so, what was the party's health at the time ? 
 Has the party had the small pox or been 
 vaccinated ? If the party' s"parents, brothers, or 
 sisters, or either of them, have died or been 
 afflicted with insanity, scrofula, consumption, 
 or any pulmonary complaint, state with which 
 disease, and at what age ; with the age and 
 present state of health of those living. 
 
 Has the party been afflicted since childhood 
 with fits, convulsions, rupture, or scrofula? If 
 so, which, and when? Has the party had 
 habitual cough, bronchitis, asthma, spitting of 
 blood, or any disease of the lungs? If so, 
 which and when? 
 
 Has the party had palpitation or other 
 disease of the heart, apoplexy or dizziness of 
 the head, liver complaint, or gravel? If so, 
 which and when? Has the party had dropsy, 
 gout, rheumatism, bowel complaint, or any 
 severe disease, during the last seven years, 
 and if so, which and when? Is the party now 
 
MANNER OF EFFECTING. 27 
 
 afflicted with any disease or disorder? If so, 
 what? Name and residence of the party's 
 medical attendant — name and residence of an 
 acquaintance to be referred to. Is the party's 
 life insured, or has it been? Has application 
 been made to this or any other office? If so, 
 whether accepted or not? There is also a 
 printed declaration in the proposal to be signed 
 by the party, to the effect that the answers 
 are true, and no material circumstance or 
 information has been concealed or withheld 
 touching the past or present state of the 
 health of the party — and if it is on the life 
 of another, that the party has an interest 
 in the life proposed to be insured to the 
 extent named in the policy, and an agree- 
 ment that this statement and declaration 
 shall form and be the basis of the contract 
 between the assured and the company; that 
 if any untrue or fraudulent statements are 
 contained in the proposal, the policy, with 
 all the money paid thereon shall be forfeited 
 to the company; and that the assurance shall 
 not be binding until the premium shall have 
 
28 LIFE ASSURANCE. 
 
 been paid to the company or to some accredited 
 agent. 
 
 The questions to be answered by the party's 
 medical, attendant, and those by the acquaint- 
 ance of the party, are of nearly similar charac- 
 ter and effect. Upon the receipt of the proposal 
 with the respective answers inserted, the 
 insurers determine whether and upon what 
 terms they will insure ; this of course is based 
 on the information derived from the proposal, 
 and varies according to the age, health, way of 
 life, and other circumstances, of the life to be 
 insured. 
 
 '4. Of the Polity. 
 
 If the company undertake the assurance, and 
 their terms are accepted, a policy,* 1 which is a 
 deed poll under the seal of the company, and 
 signed by the president and secretary, or who- 
 ever is authorised by the company, is made 
 out. 
 
 The policy contains, in substance, th£ amount 
 insured, the name of the person assured, the 1 
 premium, the duration of the risk — and if it is 
 
 i For form of a policy see appendix. 
 
THE POLICY 29 
 
 for a series of years and the payments periodi- 
 cally, there is often a clause that the policy is to 
 cease, if the premium is not paid at the time 
 stated, or in a limited time after that period, 
 the party continuing in as good health. The 
 substance of the answers in the proposal are also 
 usually inserted. There are also usually clauses 
 that the policy shall be void, if the party com- 
 mit suicide, die by his own hands, or in a duel, 
 or by the hands of justice; also that the 
 policy shall be void if the assured shall visit, 
 without the consent of the company, the places 
 prohibited by the policy, or make a voyage in 
 the manner or during the seasons excepted in 
 the policy, or be engaged as engineer or fireman 
 on any locomotive or with any steam engine, or 
 be employed in the manufacture of gun powder, 
 or become addicted to intemperate habits to a 
 degree to impair health, and that if the policy 
 becomes null and void by reason of any act of 
 the assured, the premiums shall be forfeited. 
 Some companies are more liberal in their terms, 
 allow a greater range of travelling, and their 
 policies do not contain all the clauses above 
 
30 LIFE ASSURANCE. 
 
 named : they all however differ but slightly, and 
 the form given in the appendix differs but 
 little, in form or substance, from those in 
 general use. 
 
 As to the clauses restricting the person, 
 whose life is the subject of assurance, from 
 making a voyage, or visiting certain places, 
 (generally the southern states during the sum- 
 mer months,) these are frequently relaxed, the 
 party paying therefor a slight extra percentage 
 as a remuneration for the increased risk. The 
 occupation of an engineer and fireman about 
 a steam engine, and of a person engaged in 
 the manufacture of gun powder, are deemed 
 extra hazardous, and classed as extra risks, 
 but persons engaged in these occupations can 
 doubtless be assured, by paying therefor an 
 increased rate of premium, by express arrange- 
 ment with the assurers. 
 
 5. Of the different Purposes to which the Contract 
 is applicable. 
 
 Of late years the business of assuring lives 
 has greatly increased, and the principles on 
 
ITS APPLICATION. 31 
 
 which those contracts are based, have become 
 better and more generally known. The pur- 
 poses to which such contracts may be advanta- 
 geously applied have correspondingly increased, 
 and instead of being confined to the single case 
 of providing against the loss which widows 
 and orphans may experience from the removal 
 of those who while living * sufficed for their 
 support and education, as was the object of 
 these institutions in their origin; as stated in a 
 previous chapter, we now find them extended 
 and applied to a variety of purposes, of which 
 the one above stated forms but a small part. 
 
 We do not intend to include here, the various 
 schemes that have lately sprung up, such as 
 those for insuring against accidents, live stock, 
 &c, but only those risks which are now under- 
 taken by the regularly organized life assurance 
 companies of the present day, risks which may 
 be the subject of strict mathematical calcula- 
 tion. 
 
 Assurance, as now undertaken, maybe classed 
 under three heads. Assurance for life or years, 
 contingent assurance, and survivorship assur- 
 
32 LIFE ASSURANCE. 
 
 ance. Assurance for life, is where the sum is to 
 be paid absolutely on the death of the party 
 whenever the same may occur. Assurance for 
 years, is where the sum is payable, in case the 
 party, whose life is assured, dies within a 
 determinate period, as one or more years. Con- 
 tingent assurance, or as it is sometimes called 
 the assurance of one life against another, is 
 where the amount" is payable in case one of the 
 parties is alive at the decease of the other. 
 Survivorship assurance is where two or more 
 lives are the subject of assurance, the sum to 
 be paid to the survivor. There are other 
 applications of this contract, occurring either 
 under one of the above heads or partaking some- 
 what of each, so as to meet almost any desired 
 case. Assurances are also made, the sum to be 
 paid on the party attaining a certain age, or 
 being alive at a certain period. There are also 
 modifications, to meet the pecuniary as well as 
 the other wants of individuals; thus the pre- 
 mium may be payable in gross, in one sum, on 
 the taking out of the policy, or in small sums 
 payable periodically. The premiums may also 
 
ITS BENEFITS. 33 
 
 be mado payable, so that the sum payable by 
 the assured may be small at first and increase 
 at every successive payment ; these are called 
 ascending premiums. They may also be made 
 larger at first and decrease with every succes- 
 sive payment ; these are known as descending 
 premiums. The premium may also be made 
 payable periodically, to cease after a certain 
 number of payments ; it is then called a ter- 
 minable premium. 
 
 It will thus be seen, that almost all conceiv- 
 able cases are provided for; the same data 
 however furnishing the basis and sufficing for 
 the mathematical calculation of the different 
 modifications. We come then, naturally, to 
 speak of the application of these modifications 
 to the varied wants of individuals, and illustrate 
 the peculiar advantage of each. 
 
 6. Of the Benefits derivable from Life Assurance. 
 
 To persons of fixed and limited incomes, as 
 clergymen, professors, clerks, officers of the army, 
 navy, and others who are dependent upon a 
 5 
 
34 LIFE ASSURANCE. 
 
 regular salary, without much prospect of any- 
 great change in it; and to all those who are 
 supported by a fund terminable at their own 
 death or on the death of another, the contract 
 of assurance is, beneficial. By assuring their 
 lives, and paying a small sum each year, 
 without much detriment to themselves, they 
 are enabled to obviate the loss which their 
 families might suffer from their death. And 
 though, in many cases, a party may in time 
 pay in premiums the full amount of the sum 
 insured, and even more, still there is the chance 
 equally open, that he may not ; and even where 
 the assured does in the end pay in premiums 
 the full amount, it is doubtful whether, if he 
 had not assured, he would have laid by the 
 premiums, or whether he could have invested 
 such small sums as advantageously. 
 
 Assurances for years instead of for the whole 
 term of life, may be of advantage to those 
 who expect that, if they live beyond the limited 
 period, they can provide for themselves, while 
 if they die within that period, they will not 
 leave their families entirely unprovided for. 
 
ITS BENEFITS. 35 
 
 Assurance may also be used as a means of 
 gaining credit, the borrower assuring his life 
 for the benefit of the lender, and as security 
 for the amount lent. It was frequently resorted 
 to at the time of the late California excitement, 
 where parties without means desired to raise 
 them, and had no security to give ; by assuring 
 their lives and assigning the policy by way of 
 security, they were, "in many cases, enabled to 
 raise the sum desired. i 
 
 A creditor in doubt as to the security of his 
 debt, by assuring the life of his debtor to the 
 extent of his debt, may thus effectually secure 
 it against a loss which might result from the 
 death of his debtor. Individuals in debt, who, 
 although unable, have nevertheless a desire 
 and hope of ultimately being able to pay the 
 same, are often willing to assure their lives for 
 the benefit of their creditors; if they are 
 afterwards enabled to discharge their indebted- 
 ness the policy enures to their own benefit, and 
 provides a fund for their families after them, or 
 may be the means of gaining future credit. 
 Assurances are often made, the amount to be 
 
36 LIFE ASSURANCE. 
 
 paid on the assured attaining a certain age. By 
 this means a party can provide for the pay- 
 ment of a sum due at that time, or can raise a 
 sum to advance a child in the world, or a 
 marriage portion for a daughter. 
 
 Where an individual is single, and has no 
 one looking to him for support, and supports 
 himself by his own exertions, by assuring his 
 life, the sum to be payable on his arriving at a 
 certain age, he is enabled to purchase an annuity 
 and cease from his exertions, or at least 
 materially lessen them as he advances in life, 
 and becomes less and less able to provide for 
 his own support. 
 
 To those who are young, and whose means 
 are small at first, the ascending scale of pre- 
 miums is best adapted. As they grow older 
 and possess greater means, they are better' 
 enabled to meet the increasing instalments. 
 Whereas to those who are advanced in life, the 
 descending or terminable scale is best adapted, 
 their burden growing lighter, or ceasing entirely, 
 as they approach a period whe'n they naturally 
 are less fitted to provide against the payments 
 as they fall due. 
 
ITS BENEFITS. 37 
 
 It was for the benefit of persons of small 
 means, as hitherto stated, that these institutions 
 were originally founded, and this feature has 
 remained unchanged. To those whose means 
 are ample, it can not be said to possess great 
 advantages, as persons in such a situation 
 can provide for their families and invest their 
 means, full as well for themselves, as the 
 assurers can for them, without at the same 
 time subjecting themselves to the expense. 
 Eiches are fleeting, however, and we see the 
 most wealthy often become poor. How prudent 
 then is it, even for one of large property, to 
 invest a small portion thereof in a life policy, 
 and thus guard against the consequences of 
 such an untoward event. 
 
 Although persons are continually dying, yet 
 few expect they will soon be called, and 
 therefore are little inclined, by a present sacri- 
 fice, to provide against an evil which, though 
 they know to be certain, they yet suppose to 
 be distant. The benefits to be derived from life 
 assurance are, however, becoming daily better 
 appreciated ; and the fair dealing and prompt 
 
38 LIFE ASSURANCE. 
 
 payment made by companies, even on losses for 
 which they might not be legally liable, has 
 begun to inspire confidence in their system and 
 practice. 
 
CHAPTEE III. 
 
 OF THE INTEREST IN THE LIFE INSURED. 
 
 1. Origin and object of the rule requiring interest. 
 
 2. Nature and extent of the interest required. 
 
 3. Of the interest in one's own life. 
 
 4. Of the interest in the lives of one's relations or friends. 
 
 5. Of the interest of a creditor in the life of his debtor. 
 
 6. Of the interest of a trustee in the life of his cestui que 
 trust. 
 
 7. Of the interest of the grantee of an annuity in the life or 
 lives on which his annuity depends. 
 
 1. Origin and Qbject of the Rule requiring Interest. 
 
 Previous to the passage of the statute 14 
 George III, chapter 48, it was common for 
 parties to effect insurances on lives in which 
 they had no interest. This, it will readily be 
 perceived, not only led to great frauds, and was 
 a cover for wagering, but also tended to be 
 productive of serious consequences to the inno- 
 cent parties who may have, perhaps unknow- 
 
40 LIFE ASSURANCE. 
 
 ingly, been selected as the subject of such 
 insurances, in holding out the temptation to 
 make way with such lives. 
 
 In view of the evils consequent upon this 
 custom, it was enacted, by that statute, that 
 "no insurance shall be .made by any person or 
 persons, bodies politic or corporate, on the life 
 or lives of any person or persons, or any other 
 event or events whatsoever, wherein the person 
 or persons for whose use or benefit, or on whose 
 account, such policy or policies shall be made, 
 shall have no interest, or by way of gaming or 
 wagering ; and that every insurance, made con- 
 trary to the true intent and meaning of this 
 act, shall be null and void, to all intents and 
 purposes whatsoever." 
 
 In this country, though no direct statutes 
 may have been passed on this subject, yet 
 wager contracts are, almost universally, held 
 to be unlawful. 
 
 In most of the states, statutes have been 
 enacted against gaming and wagering, a which 
 would require no very strained construction to 
 
 a New York Revised Statutes, vol. 1, p. 662. 
 
NATURE OF THE INTEREST. 41 
 
 apply to this contract, and, where no such sta- 
 tutes have been passed, they would probably 
 be held to be unlawful, on the principles of 
 the common law, and as being against public 
 policy. 
 
 In Lord vs. Dall, 12 Mass. R., 115, Parker, 
 C. J., uses this language : " It is said that, 
 being a contract of assurance, the law on the 
 subject of marine insurance is applicable to it; 
 and, therefore, unless the assured had an inte- 
 rest in the subject matter insured, he is not 
 entitled to his action. This position we agree 
 to ; for otherwise it would be contrary to the 
 general policy of our laws, and therefore void." 
 
 2. Nature and Extent of the Interest required. 
 
 The interest in the life must be a pecuniary 
 interest. This is the only interest capable of 
 being legally ascertained. This was impliedly 
 admitted in the case of Innes vs. Equitable 
 Assurance Company, b and was directly decided 
 
 " This was a case at nisi prim, and not reported. The plaint- 
 iff insured the life of his daughter, with the defendants ; and to 
 make it appear that he had a pecuniary interest in her life, he 
 6 
 
42 LIFE ASSURANCE. 
 
 in the cases of Halford vs. Kymer, c and Lord 
 vs. Dall. a 
 
 In Valton and Adams vs. The National Loan 
 Fund Life Assurance Society, three persons, 
 Valton, Martin and Schoonmaker, entered into 
 a copartnership, to carry on the liquor business. 
 Schoonmaker understood the business, and, as 
 against the capital of Valton and Martin, was 
 to put in his skill. Schoonmaker insured his 
 life for ten thousand dollars, and, by the art- 
 icles of copartnership, in case of his death 
 without children, or unmarried, his partners, 
 Valton and Martin, were to receive the sum 
 
 produced a document purporting to be a will, under which he 
 became entitled to a sum of £1000 in the event of her dying 
 under twenty-one. The will was proved to be a forgery; Innes 
 convicted and executed, and the three pretended attesting wit- 
 nesses convicted of perjury, imprisoned and pilloried. That 
 case, therefore, impliedly admitted, that a pecuniary interest 
 only was insurable under the statute; since, otherwise, there 
 could have been no necessity for setting up the pretended will. 
 For fuller report, see Lond. Law Mag., vol. iv, p. 373, where, 
 also, is to be found a long article on the same subject. 
 
 * 10 Barn. & Ores., 724. 
 " 12 Mass. Rep., 115. 
 
NATURE OF THE INTEREST. 43 
 
 secured by the policy. Schoonmaker shortly 
 afterwards died, unmarried; Martin assigned 
 his interest to Adams, and Valton and Adams 
 brought suit to recover the insurance. The 
 defendants moved for a nonsuit, on the ground 
 that, the plaintiffs having no interest in the 
 life of Schoonmaker, the policy was a wager 
 policy, and therefore void. 
 
 The plaintiffs insisted, that they had an 
 insurable interest in the life of Schoonmaker ; 
 that, as he was to contribute only his skill, 
 they had an interest in his life, not to be de- 
 prived of it, and thus of his skill and services. 
 The court held, that they had an insurable 
 interest, and the policy not void for want of 
 interest. 6 
 
 As to the extent of interest required, in the 
 third section of the same act, it is enacted, that 
 in all cases where the insured hath an interest 
 in such life or lives, event or events, no greater 
 sum shall be recovered or received from the in- 
 
 " Valton and Adams vs. The National Loan Fund Life Assur- 
 ance Society, tried at the Albany Circuit, Wright, J., Nov., 1852. 
 The case is now being carried up to the general term. 
 
44 LIFE ASSURANCE. 
 
 surer or insurers, than the amount or value of 
 the interest of the insured, in such life or lives, 
 or other event or events. It may, therefore, be 
 inferred, that an insurance beyond the amount 
 of interest, would not invalidate the whole con- 
 tract, but would be void onlv as to the excess. 
 The same rale would probably be held in this 
 country, on the ground, that, as to the amount 
 of the insurance, above the interest the party 
 had in the life insured, it would be a wager 
 contract, and therefore void ; for, to the extent 
 of the excess, it would tend to give rise to the 
 evils already named. 
 
 This construction of the contract, which 
 would limit the recovery to the interest in 
 the life assured, is in analogy with the equita- 
 ble principles, which apply to the construction 
 of penalties in bonds and other instruments, 
 where the amount inserted by way of penalty 
 is intended to secure only a lesser sum. The 
 policy ceases with the interest. Therefore, where 
 a person insures the life of another, he will not 
 be entitled to receive the amount, if the risk 
 intended to be insured against ceased at the 
 
NATURE OF THE INTEREST. 45 
 
 death of the party whose life was insured. But 
 if the party had an insurable interest, the court 
 will refer the policy to that interest, although it 
 contains no express reference to that interest, 
 and although there is no extrinsic evidence to 
 show that it had reference to that particular 
 transaction. 
 
 Thus where a debtor and Ids wife joined in 
 an assignment of the chose in action of the 
 wife to a creditor of the husband, to secure a 
 debt owing by the husband, and the chose in 
 action was not reduced into possession in the 
 life time of the wife, and the creditor insured 
 the life of the wife, and on her death, which 
 was before that of her husband, the creditor 
 received the amount of the insurance from the 
 office; on an action f being brought by the 
 debtor for the redemption of the mortgaged 
 property, and to have the amount received of 
 the insurance office set off against his debt, the 
 Vice Chancellor gave the following opinion : that 
 if the policy was void from the beginning, the 
 plaintiff could claim nothing ; that the creditor 
 
 ' Henson vs. Blackwell, 4 Hare, 434. 
 
46 LIFE ASSURANCE. 
 
 had an insurable interest, but his right was 
 only to effect a policy, which should guaranty 
 him against the loss which he might have sus- 
 tained, if the wife had survived the husband— 
 she did not survive her husband, consequently 
 the risk intended to be guarded against was at 
 an end, and when the risk ceased, the guaranty 
 must be considered as satisfied: also "if then 
 the defendant had (as I think he had), an in- 
 surable interest, there was an interest to which 
 the court might, and, I think, ought, to refer 
 the policy, although the policy itself contains 
 no express reference to that interest; and 
 although there is no extrinsic evidence to 
 show that it had reference to this particular 
 transaction." 
 
 3, Of the Interest in, one's own Life. 
 
 Every one has an interest in his own life, 
 and in every part of it, and can effect an in- 
 surance for its whole duration, or for a limited 
 period. 
 
 Accordingly, it has been held, that an ex- 
 ecutor suing on a policy effected by his testator, 
 
INTEREST IN ONE'S OWN LIFE. 47 
 
 on two years of his life, is not bound to show 
 that such testator had any special reason for 
 making such limited assurance. 8 So likewise 
 there is no limit to the amount for which a per- 
 son can insure his own life; and though a 
 person may not have the means to pay the 
 premiums, another may lend him the amount, 
 and the policy still continue his own, and be 
 valid. But where one person, having no interest 
 in the life of another, induced the latter to effect 
 an insurance in his own name, the former find- 
 ing the funds for the premiums, and intending 
 by assignment or otherwise to get the benefit 
 of the policy himself, so that it is substantially 
 his policy, and not of the one named as the 
 assured in the policy, such policy is void. 
 
 Thus, in Wainwright vs. Bland, h where the 
 assured, an orphan about twenty-one years of 
 age, residing in the house of the plaintiff, a near 
 relation, effected policies on her life for two and 
 three years, to the amount of £16,000, and had 
 not property of any kind sufficient to meet the 
 
 ' Wainwright vs Bland, 1 Moody & Rob., 481. 
 " 1 Moody & Rob., 481. 
 
48 LIFE ASSURANCE. 
 
 premiums, which exceeded £200 ; and no evi- 
 dence being given to show that it was desirable 
 for her to effect policies to so large an amount, 
 and the money with which the premiums were 
 paid having been traced to the plaintiff: it was 
 held, that although the assured might not have 
 had the money to meet the premiums, yet that 
 the plaintiff might have lent her the amount, 
 and the policy still continue her own. But if 
 the policy was really effected by the plaintiff, 
 he merely using her name and finding the funds, 
 and meaning by way of assignment, bequest, 
 or otherwise, to have the benefit of it himself, 
 such a transaction would be a fraudulent eva- 
 sion of the statute, and void. And upon this 
 ruling, it was left to the jury upon the facts to 
 decide, whether it was the policy of the assured, 
 or in effect of the plaintiff, he furnishing the 
 funds and merely using the name of the assured. 
 They found it was the policy of the plaintiff. 
 It was afterwards moved for a rule to show 
 cause why the Verdict should not be set aside, 
 and a new trial granted, on the ground of mis- 
 direction by the learned judge. The rule was 
 
INTEREST IN THE LIVES OF RELATIONS. 49 
 
 refused but no opinion given by the court, 
 whether the policy was void as being against 
 or in evasion of the statute. 1 
 
 4. Of the Interest in the Lives of on£s Relations or 
 
 Friends, 
 
 A father can not insure the life of his child, 
 or one relation or friend the life of another; 
 unless the party has some pecuniary interest 
 in such life, or would suffer some pecuniary 
 loss by the death of such relation Or friend. 
 This is the only safe rule. If persons could 
 insure the lives of their relations and friends, 
 merely on the ground of friendship, or the sorrow 
 experienced on their loss, it would tend to all 
 the evils of wager policies, and be the more 
 dangerous because persons, united by these 
 ties, are naturally thrown off their guard, and 
 much more exposed to the fraudulent designs 
 of those who are inclined to take advantage of 
 such a situation ; and the guilty party is more 
 likely to escape detection, for the apparent 
 friendship tends to ward off suspicion. There- 
 
 ' Wainwright vs. Bland, 1 Mees. & Wels., 32. 
 7 
 
50 LIFE ASSURANCE. 
 
 fore, where a father had insured the life of his 
 son in which he had no pecuniary interest, it 
 was held that he was not entitled to recover; and 
 it being stated that the offices were in the habit 
 of taking such assurances, Lord Tenterden said, 
 that, "if a notion prevailed that such insur- 
 ances were valid, the sooner it was corrected, 
 the better." J 
 
 Mr. Ellis states, that the offices in England 
 are in the custom of paying upon policies, 
 
 * 
 
 without regard to interest; and that so general 
 has this custom become, that, in a case k where 
 the executor of a party who had purchased a 
 policy, in which the interest had or was about 
 to expire, brought an action to recover back the 
 purchase money, the court admitted evidence of 
 such custom, and held, that although the defend- 
 ant had no interest, in point of law, and the 
 payment of the policy could not be enforced ; 
 yet, though the law would not enforce such pay- 
 ment, there may be reasonable expectation 
 that it would be paid ; and, therefore, if there 
 
 J Halibrd vs. Kymer, 10 Barn, and Cres., 724. 
 * Barber vs. Morris, 1 Moody and Rob., 62. 
 
INTEREST IN THE LIVES OF RELATIONS. 51 
 
 was no improper concealment of facts, or fraud, 
 to vitiate, the sale, the purchaser could not 
 recover. 1 
 
 It has been held, however, that a wife in- 
 suring the life of her husband, need not prove 
 her interest in his life ; for in Reed vs. Royal 
 Exchange Assurance Company, 1 " when the 
 plaintiff's counsel were proceeding to prove that 
 Reed was entitled to the interest of a large sum 
 of money, which went from him at his death, 
 and therefore, that the plaintiff was interested 
 in his life, Lord Kenyon said ; it was not ne- 
 cessary, as it must be presumed that every wife 
 had an interest in the life of her husband." So 
 also a single woman, dependent on her brother 
 for support and education, has a sufficient in- 
 terest in his life to entitle her to insure. 
 
 1 The motives of policy which, at one time, induce an office 
 to pay such losses, may not exist at another, and as they are 
 not legally bound to pay them, it behooves persons not to rely 
 too strongly on such custom. 
 
 m Peake's additional cases, p. 70. 
 
 ■ Quere — Whether such presumption is rebutted by proof, that 
 the husband was supported entirely by the labor or income of the 
 wife ; and whether in such cases she has any pecuniary interest. 
 
 ° Lord vs. Dall, 12 Mass. R., 115. 
 
52 LIFE ASSURANCE. 
 
 In New York a special statute? has been 
 passed on this subject ; thus it is enacted, that 
 "it shall be lawful for any married woman by 
 herself, and in her name, or in the name of any 
 third person, with his assent, as her trustee, to 
 cause to be insured, for her sole use, the life of 
 her husband, for any definite period, or for the 
 term of his natural life ; and in case of her 
 surviving her husband, the sum or nett amount 
 of the insurance becoming due and payable, 
 by the terms of the insurance, shall be payable 
 to her, to and for her own use, free from the 
 claims of the representatives of her husband, or 
 of any of his creditors; but such exemption 
 shall not apply, where the amount of premium 
 annually paid shall exceed three hundred dol- 
 lars. In case of the death of the wife, before 
 the decease of her hubsand, the amount of the 
 insurance may be made payable, after her 
 death, to her children, for their use, and to 
 their guardian if under age." In Vermont, a 
 statute* has been enacted, which is a literal 
 
 " Session Laws of 1840, p. 59. 
 
 ," Laws of Vermont, 1849, p. 17, 18. 
 
INTEREST CREATED BY STATUTE. 53 
 
 transcript of the one in New York, with an 
 additional clause, allowing unmarried women to 
 insure the lives of their fathers or brothers, to 
 the same extent. A law of similar character 
 has been passed in Ehode Island/ 
 
 These statutes, so far as regards the interest, 
 can not be considered as extending the right of 
 effecting assurances ; but merely as doing away 
 with proof of the pecuniary interest, in the 
 assurances authorized by such statutes ; for an 
 insurance by one relation or friend of the life 
 of another, where the person for whose benefit 
 the assurance is effected, is supported by the 
 person whose life is the subject of the assurance, 
 would be legal. In all such cases, however, not 
 coming under the statute, it would be necessary 
 to prove the pecuniary interest; i. e., that they 
 were supported by the person whose life is the 
 subject of the assurance. 
 
 An assurance, also, in such cases, would not 
 be valid beyond the amount of pecuniary aid 
 received; whereas, in the cases provided for by 
 statute, the assurance would be valid to the 
 
 • Laws of Rhode Island, 1848. 
 
54 LIFE ASSURANCE. 
 
 extent allowed, although the aid received might 
 be less than the amount of the assurance 
 effected. 
 
 5. Of the Interest of a Creditor in the Life 
 of his Debtor. 
 
 The interest which a creditor has in the life 
 of his debtor is sufficient to entitle him to insure, 
 but it extends only to the amount of his debt. 
 
 The insurance of a debtor's life by a creditor, 
 is in the nature of an indemnity; and if the 
 debt is paid, or if the debtor dies insolvent, but 
 the debt is paid aliunde, the creditor can not 
 recover the amount of the insurer. 
 
 In Stackpole vs. Simon, 8 the insurance was 
 a debt due from the insured to the plaintiff; 
 and Lord Mansfield held, "as to the interest, 
 this policy may be considered as a collateral 
 security for the debt due to the plaintiff." In 
 Anderson vs. Edie, 1 the only question was as to 
 
 ■ Stackpole vs. Simon, Sitt. at Guild. Hil. Vac, 1779, Park, 
 2 vol., p- 932,8th ed. 
 
 ' Park, 8th ed., vol. 2, p. 914. 
 
INTEREST OF CREDITOR. 55 
 
 the interest — and a debt being shown to support 
 it — Lord Kenyon held, that a creditor had cer- 
 tainly an interest in the life of his debtor ; the 
 means by which he was to be satisfied may 
 materially depend upon it ; and at all events the 
 death must in some degree lessen the security. 
 In Godsall vs. Boldero, u the facts were, briefly, 
 that the Right Hon. William Pitt being indebted 
 to the plaintiffs, they obtained an insurance on 
 his life for one year, renewable from year to year 
 for seven years : the policy was duly renewed 
 and the premium paid each year. Mr. Pitt died 
 insolvent during the time of the insurance, but 
 the debt was fully paid to the plaintiffs, by the 
 executors of Mr. Pitt, out of the amount granted 
 by parliament for that purpose. The counsel 
 for the plaintiffs contended that they were 
 entitled to recover upon this policy, notwith- 
 standing the payment of the debt to them by 
 Mr. Pitt's executors out of the money granted 
 by parliament for that purpose. That a creditor 
 had an insurable interest in the life of his 
 debtor, and the amount of the debt is the 
 
 - ■ Godsall vs. Boldero, 9 East. 72. 
 
56 LIFE ASSURANCE. 
 
 measure of that interest; and so far the exist- 
 ence and legality of the debt is necessary to the 
 validity of the insurance in point of interest 
 under the statute, 14 Geo. 3 c. 48; but- that it 
 is not the debt qua debt, which is insured, but the 
 life of the debtor; it is only necessary that the 
 interest should exist at the time of the insurance 
 made, and continue up to the time of the death 
 of the debtor, as it did in this case ; and the 
 sum insured having then become due, and the 
 debtor's estate insolvent, the fact of payment 
 of the debt afterwards by a third party, can not 
 be material: such payment being altogether 
 gratuitous. 
 
 Lord Kenyon held, in substance: that the 
 insurance in question was in the nature of a 
 contract of indemnity, as distinguished from a 
 contract by way of gaming and wagering ; the 
 interest which the plaintiffs had in the life of 
 Mr. Pitt, was that of creditors, a description 
 of interest which had been held not to be within 
 the prohibition of the statute. That interest 
 depended upon the life of Mr. Pitt, in respect 
 of the means and the probability of payment 
 
INTEREST OF A CREDITOR. 57 
 
 which the continuance of his life afforded to 
 such creditors, and the probability of loss which 
 resulted from his death. The event against 
 which the indemnity was sought by this 
 assurance, was, substantially, the expected con- 
 sequence of his death, as affecting the interests 
 of these individuals assured, in the loss of their 
 debt. This action is, in point of law, founded 
 upon a supposed damnification of the plaintiffs, 
 occasioned by his death, existing and contin- 
 uing to exist at the time of the action brought ; 
 and being so founded, it follows, of course, that 
 if, before the action was brought, the damage 
 which was at first supposed likely to result to 
 the creditors from the death of Mr. Pitt, was 
 wholly obviated and prevented by the payment 
 of his debt to them, the foundation of any action 
 on their part, on the ground of such insurance, 
 fails. And it is no objection to this answer, 
 that the fund out of which their debt was 
 paid, did not ( as was the case in the present 
 instance) originally belong to the executors, as 
 a part of the assets of the deceased : for, though 
 
 8 
 
58 LIFE ASSURANCE. 
 
 it were derived to them aliunde, the debt of 
 the testator was equally satisfied by them 
 thereout; and the damnification of the cre- 
 ditors, in respect of which their action upon 
 the assurance contract is alone maintainable, 
 was fully obviated before their action was 
 brought." 
 
 If a person indebted to another die, and a 
 third person agrees to pay the debt by install- 
 ments, in a certain time, the party to be 
 benefited has an insurable interest in the life 
 of such third person for that time. 
 
 ' In the London Law Magazine, of 1848, vol. viii, new series, 
 there is a long article on this subject ; in speaking of this case, the 
 writer thinks " that the court erred in treating the contract as in 
 the nature of an indemnity; that the consequences of consider- 
 ing it in this light are most serious, for a contract of indemnity 
 against loss implies as a condition precedent to any recovery upon 
 it, that a loss should he proved to have been sustained, and that 
 if this case is right in principle the offices would have a right to 
 insist that the creditor should pursue all his remedies against the 
 debtor's estate, before resorting to the policy, and that then, and 
 not before, would they be bound to pay." 
 
 The principle of this decision has, however, been recognized 
 in the subsequent cases of Bainbridge vs. Neilson, lOEast, 344, 
 and Tunno vs. Edwards, 12 East, 493. 
 
INTEREST OF A CREDITOR. 59 
 
 Thus in Yon Lindenau vs. Desborough, w where 
 the plaintiff, as the director of a bank, to which 
 Augustus, Duke of Saxe Gotha, at his decease, 
 was indebted in a large amount, insured for 
 five years the life of Duke Frederick the Fourth, 
 who, soon after his accession, had entered into 
 a treaty with the private creditors of Duke 
 Augustus, by which he agreed to pay them their 
 debts in half yearly installments, so that the 
 whole would be discharged in five years, and 
 this treaty was signed, by the plaintiff, in 
 behalf of the bank; on the objection being 
 raised, by the defendant's counsel, that the 
 plaintiff had no insurable interest, Lord Tent- 
 erden, C. J., said, that such being the facts, the 
 plaintiff had an insurable interest. 
 
 So, also, where one person guaranties the 
 debt of another, the person to be benefited has 
 probably an insurable interest in the life of 
 such guarantor, and can either insure the life 
 of the debtor himself, or of the one who has 
 guarantied the payment of such debt. 
 
 A person holding a note for money won at 
 
 - 3 Car. & Payne, 353. 
 
60 LIFE ASSURANCE. 
 
 play, has not an insurable interest in the life 
 of the maker of it. This was decided in the 
 case of Dwyer vs. Edie; x the defendants also 
 raised another objection; that at the time of 
 giving the note, the maker of it was an infant. 
 On this point Mr. Justice Buller remarked, "that 
 as to the objection on account of infancy, the 
 interest must be contingent, for the party 
 might or might not avoid his note; and he 
 doubted much whether, till so avoided, the 
 note must not be taken against a third person, 
 to be the note of an adult, for the maker of the, 
 note only could take the objection." 
 
 6. Of the Interest of a Trustee in the Life of 
 his Cestui que Trust. 
 
 An executor in trust has a sufficient interest 
 to enable him to make assurance in his own 
 name, on the life of a person who has granted 
 an annuity to the testator. Thus where an 
 action? was brought on a policy of insurance, 
 
 x Dwyer vs. Edie, sitt. at Lond. after Hil. 1788, Park, 8th ed., 
 vol. ii, p. 913 
 
 7 Tidswell vs. Ankerstein, Peake's Cases, 151. 
 
INTEREST OF A TRUSTEE. 61 
 
 on the life of Wm. Holden, late Shuttleworth, 
 from the 17th August, 1790, to the 17th August, 
 1791, both days inclusive, and during the life 
 of the plaintiff; but in case the plaintiff should 
 depart this life before Wm. Holden, the policy 
 to be void. Holden had granted an annuity 
 to the plaintiff's late brother, which annuity he 
 had bequeathed to persons not parties to this 
 insurance, having made the plaintiff executor 
 of his will, and directed him to make assurance. 
 The defendant's counsel objected that the 
 plaintiff had not such an interest as enabled 
 him to insure this life ; the real interest being 
 in the persons to whom the annuity is be- 
 queathed; and the act 14 Geo. Ill, ch. 48, 
 directs, that all insurances shall be made for 
 the benefit of the person interested. That here 
 the insurance was made by a person having no 
 beneficial interest, and that had the plaintiff 
 died before the person whose life is insured, 
 the insurance would have been gone. Lord 
 Kenyon held, however, that this was a sufficient 
 interest to support the action ; for the plaintiff 
 could not assent to the legacy, before the test- 
 
62 LIFE ASSURANCE. 
 
 ator's debts were paid, without being guilty 
 of a devastavit, and being executor, all the 
 interest of the testator vests in him. 
 
 7. Of the Interest of the Grantee of an Annuity in 
 the Life or Lives on which his Annuity depends. 
 
 Where one grants an annuity to another, 
 depending on one or more lives, the grantee 
 has an interest in such life or lives ; and may 
 effect an insurance equal to the value of the 
 annuity; and a contract by the grantor, to 
 effect such insurance for the benefit of the 
 grantee, is not usurious. 
 
 Thus, z where the grant of an annuity for the 
 term of four lives, and the lives and life of the 
 survivors and survivor, contained a covenant 
 by the grantor, within thirty days, after the 
 decease of the third life which should drop, to 
 insure £1000 (the amount of the consider- 
 ation), in some insurance office, for the use of 
 the grantee, to be paid on the decease of such 
 survivor: Held, not usurious. 
 
 ' Holland vs. Pelham, 1 Cramp and Jervis R., 575. ' 
 
CHAPTER IV. 
 
 OF THE COMMENCEMENT AND DURATION OF THE RISK. 
 
 1. Of the usual time of its commencement, and of the true 
 rule for determining it. 
 
 2. Of the clauses "from the date," and " from the day of the 
 date." 
 
 3. The death must happen within the time limited in the 
 policy. 
 
 4. Whether the death happened within the time limited, is a 
 question for the jury. 
 
 5. As to presumptions of death. 
 
 6. Presumptions of survivorship. 
 
 7. The risk may terminate before the time limited. 
 
 1. Of the usual Time of its Commencement, and 
 of the true Rule for determining it 
 
 The risk is usually considered as com- 
 mencing, from the signing and delivery of the 
 policy, and the payment of the premium ; still, 
 it may commence before the performance of all 
 or either of the above acts ; and, therefore, the 
 only true rule is, that it commences whenever 
 
64 LIFE ASSURANCE. 
 
 it can be shown, by the acts of the parties, 
 that it was their intention and understanding 
 that it should. 
 
 Although a policy ihay be of great import- 
 ance, to prove the agreement and show the 
 date of its commencement ; but that it is not 
 an essential requisite to its validity, and that 
 the insurer may be bound before the execution 
 of it, may be seen in the case of Tayloe v. 
 The Merchants' Fire Insurance Company. 81 In 
 that case, there was a correspondence between 
 the parties; the insurers making known, by 
 mail, the terms on which they would insure, 
 and the insured sending the premium required, 
 and his acceptance of the terms, also by mail. 
 It was held by the Supreme Court of the 
 United States, that the contract was complete, 
 on the insured depositing in the mail a letter 
 accepting the terms, and enclosing the pre- 
 mium, although the letter of acceptance did 
 not reach the insurers till after a loss had 
 occurred, and consequently no policy had been 
 made out. Because, say the court, "on the 
 
 * 7 Howard's R., 390. 
 
TIME OF COMMENCEMENT. 65 
 
 acceptance of the terms proposed, transmitted 
 by due course of mail to the company, the 
 minds of both parties have met on the subject, 
 in the mode contemplated at the time of enter- 
 ing upon the negotiation, and the contract 
 becomes complete." "It is obviously impossible, 
 therefore, under the circumstances stated, ever 
 
 # 
 
 to perfect a contract by correspondence, if a 
 knowledge of both parties, at the moment they 
 become bound, is an essential element in mak- 
 ing out the obligation ; and as it must take 
 effect, if effect is given at all to an endeavor to 
 enter into a contract by correspondence, in the 
 absence of the knowledge of one of the parties, 
 at the time of its consummation, it seems to us 
 more consistent with the acts and declarations of 
 the parties, to consider it complete on the trans- 
 mission of the acceptance of the offer in the 
 way they themselves contemplated ; instead of 
 postponing its completion, till notice of such 
 acceptance has been received and assented to 
 by the company." However, as the risk is 
 generally considered as dating from the execu- 
 9 
 
66 LIFE ASSURANCE. 
 
 tion of the policy, and as that is the usual and 
 most ostensible method for the parties to show 
 their intentions, on a loss occurring before its 
 execution, it would lie on the party claiming 
 the amount to prove that it was the intention 
 of the assurers that the risk should commence 
 before its execution. 
 
 The risk may commence before the payment 
 of the premium ; for though the insurers may 
 demand the premium before delivering the po- 
 licy, still if they do deliver it, without receiv- 
 ing the premium, it will be presumed that they 
 gave credit for it, and will be liable equally as 
 if it had been paid. But if in the policy, so 
 delivered, there is a clause that it is not to 
 take effect till the premium is paid, then it 
 must be presumed that it was only a condi- 
 tional delivery, and that the insured received 
 it with that restriction, which is as important, 
 and as much to be observed, for the validity of 
 the contract, as any of the other clauses therein 
 contained. 
 
INTERPRETATION OF TERMS. 67 
 
 2. Of the Clauses, "From the Date," and "From 
 the Day of the Date." 
 
 There was, at one time, considerable divi- 
 sion among the lawyers, with regard to the 
 interpretation of the terms, "from the date," 
 and, "from the day of the date.'' And there 
 once arose a case, on a life policy, where the 
 construction of this clause, as relating to the 
 commencement of the risk, was of great im- 
 portance; for the change of a single day 
 released the insurer from liability. In that 
 case, b which was an action upon a policy of 
 insurance, for insuring the life of Sir Eobert 
 Howard for one year from the day of the date, 
 the policy was dated the 3d September, 1697; 
 Sir Eobert died the 3d September, 1698, at one 
 o'clock in the morning. It was decided by 
 Chief Justice Holt, that "from the day of the 
 date " excludes the day; but "from the date " 
 includes it ; and, therefore, the day of the date 
 being excluded, in this case, the insurer was 
 held liable. 
 
 " 1 Lord Raym. 480. 
 
68 LIFE ASSURANCE. 
 
 But in Pugh vs. Duke of Leeds, it was 
 decided that, "from the day of the date" may 
 mean either inclusive or exclusive, according 
 to the context and subject matter; and the 
 court will construe it so as to effectuate the 
 deeds of parties and not destroy them. 
 
 This difficulty is, however, now, generally 
 avoided, by the company's' naming and in- 
 cluding the first and last days. 
 
 3. The Death must happen within the Time 
 limited in the Policy. 
 
 The risk continues during the time limited 
 in the policy, and terminates at the period there 
 stated; and, to render the insurers liable, the 
 death, itself, must take place within that time. 
 For the principle in marine insurance, that the 
 loss must happen within the time limited in 
 the policy, is also applicable to life insurance. 
 Thus, if the insured receive a mortal wound 
 before the expiration of the time limited in the 
 
 e Cowper, 714. 
 
TIME OF DEATH. 69 
 
 policy, but dies after that time, the insurer 
 would not be liable. d 
 
 4. The Time of the Death is a Question for 
 the Jury. 
 
 The risk ceases when the policy expires ; but 
 sometimes it may be a question, whether a 
 person is dead, or the death happened during 
 the time limited in the policy. This is a ques- 
 tion of fact, to be determined by the jury. 
 
 Thus, an insurance was made on the life of 
 L. Macleane, Esq., from the 30th of January, 
 1772, to the 30th of January, 1778. In an 
 action, on the policy, it appeared that about 
 the 28th day of November, 1777, he sailed from 
 the Cape of Good Hope, in the Swallow sloop 
 of war ; which ship, not being afterwards heard 
 of, was supposed to have been lost in a storm 
 off the "Western Islands. The question was, 
 whether Macleane died before the 30th of Janu- 
 ary, 1778. To establish the affirmative of that 
 question, the plaintiff called witnesses to prove 
 the ship's departure from the Cape, with 
 
 d Per Willes, J., in delivering the opinion of the court, in the 
 case of Lockyer vs. Offley, 1 T. R. 260. 
 
70 LIFE ASSURANCE. 
 
 Macleane ; and several captains swore that they 
 sailed the same day; that the Swallow must 
 have been as forward in her course as they 
 were, on the 13th or 14th of January, the 
 period of a most violent storm, in which she, 
 probably, was lost ; and that the Swallow was 
 much smaller than their vessels, which with 
 difficulty weathered the storm. Lord Mansfield, 
 who tried the cause, left it to the jury to say, 
 whether, under all the circumstances, they 
 thought the evidence sufficient to convince 
 them that Macleane died before the time limit- 
 ed in the policy ; adding, that if they thought 
 it so doubtful as not to be able to form an 
 opinion, the defendants ought to have their 
 verdict. The jury found for the plaintiffs. e 
 
 5. Presumptions of Death and Survivorship. 
 
 Presumptions of death are founded on the 
 experience we have, of the natural continuance 
 and duration of life. 
 
 A person once shown to be alive, is presumed 
 to continue to exist, and the burden of proving 
 
 e Patterson vs. Black, at N. P. Hil. Vac. 1780. 
 
PRESUMPTIONS. 71 
 
 his death, lies on the party seeking to establish 
 it ; but after proof of a certain lapse of time, 
 without information being had of the person, a 
 contrary presumption arises, and the person 
 will be held to be dead, and the burden of 
 proof will be thrown on the other party to show 
 that such person is alive/ This presump- 
 tion, and the period of time without knowledge 
 of the person, which must elapse, before it will 
 be deemed to have arisen, has, in certain cases, 
 been declared by statute; thus, in New York, 
 it has been enacted: "If any person, upon 
 whose life any estate in lands or tenements 
 shall depend, shall remain beyond sea, or shall 
 absent himself in this state, or elsewhere, for 
 seven years together, such person shall be ac- 
 counted naturally dead, in any action concern- 
 ing such lands or tenements in which his death 
 shall come in question, unless sufficient proof 
 be made, in such case, of the life of such person. 6 
 
 ' Loring vs. Steineman, 1 Met. 204. See, also, Smith vs. 
 Knowlton, 11. N. Harap. E. 191. 
 
 « 2. N. Y. Rev. Stat. 34, § 6. See Laws of New Jersey, by 
 Patterson, p. 241. 
 
72 LIFE ASSURANCE. 
 
 From analogy, the same presumption and 
 the same period of time, which must elapse, 
 without the person being heard of, before such 
 presumption will arise, has been extended to 
 cases not included in, or embraced by, the 
 statute. 1 * And, although we have, as yet, no 
 adjudications on this subject, arising under 
 life policies, there seems good ground for the 
 opinion, that the same presumption would 
 also, from analogy, be applied to them. 
 
 In Tilly vs. Tilly, 1 Chancellor Bland, of 
 Maryland, says : "the general rule is, that any 
 one who has not been heard of, for the space of 
 seven years, may, for all legal and equitable , 
 purposes, be presumed to be dead." And in 
 New York, it has been held, that where a 
 person sailed from New Tork in a vessel, on 
 a vOyage to South America, and neither he 
 nor the vessel had ever been heard of since, a 
 period of twelve years, that the circumstances 
 of the case, furnished an irresistible presump- 
 tion, from analogy to the statute of bigamy and 
 
 " King vs. Paddock, 18 Johns. R. 14]. 
 1 2 Bland's R. 445. 
 
PRESUMPTIONS OF DEATH. 73 
 
 the statute concerning leases determinable 
 upon lives, that he was deacU 
 
 If this view is correct, there may be many 
 cases, where, there being no evidence to be 
 submitted to the jury, either as to whether a 
 person is dead, or as to the period of his death, 
 except as to lapse of time, and that he has not 
 been heard from, the introduction of this 
 principle may be of great importance, in ena- 
 bling the person, entitled to the benefit of the 
 assurance, to obtain the amount secured by the 
 policy; when otherwise the fact of such death 
 could not be established. 
 ' The following cases seem to warrant the 
 general conclusion, that, when a person has 
 been absent, beyond sea, seven years, without 
 being heard of, there arises a legal presumption, 
 that such person is dead. k 
 
 There is no presumption, however, as to the 
 
 J King vs. Paddock, 18 Johns., 141. 
 
 k Loring vs. Steiiieman, 1 Met., 204. Newman vs. Jenkins, 10 
 Pick., 515. Burr vs. Sim., 4 Whart., 150. Brakley vs. Bradley, 
 4 Whart., 173. Cafer vs. Thurmond, 1 Kelly, 538. 
 10 
 
74 LIFE ASSURANCE. 
 
 time of his death, 1 or even that he died on the 
 last day. m The fact of a person having been 
 alive or dead at a particular period, during 
 the seven years, must be proved by the party 
 relying on it, n and the death is not generally 
 presumed to have occurred until the expiration 
 of the time," but the presumption is that the' 
 person has lived throughout the seven years 
 from the time of last hearing, and then to have 
 died.p The jury may also find, that a person is 
 dead, although a period of seven years, since he 
 was last heard of, has not expired, on circum- 
 stantial evidence which leads them to such 
 conclusion.*. 
 
 When a person has fixed his domicil abroad, 
 although he may not have been heard of at the 
 place of his birth, or his original residence, for 
 more than seven years, the presumption of his 
 
 ' Nepean vs. Doe, 2, Mees & Wels., 894. (McCartee vs. Camel, 
 1 Barb. Ch. R, 455.) 
 " McCartee vs. Camel, 1 Barb. Ch. R., 455. 
 " Doe vs. Nepean, 5 Barn. & AdoJ., 86. 
 Smith vs. Knowlton, 11 N. Hamp., 191. 
 
 ' Burr v. Sim, 4 Whart., 150 ; Bradley v. Bradley, 4 Whart., 173. 
 ' Smith vs. Knowlton, 11 N. Hamp., 191. 
 
PRESUMPTIONS OF SURVIVORSHIP. 76 
 
 death will not arise, unless some evidence is 
 furnished of inquiry for him, without success, 
 at his last known place of residence/ The law 
 presumes the residence to continue in a place, 
 where it is known to have been, at any time, 
 until the contrary is shown. 8 
 
 Where the person whose death is to be 
 presumed, was, in fact, within the United 
 States, and not technically abroad, beyond sea. 
 absenting himself in this state, or elsewhere 
 (2 Eev. Stat, of N. T., 34, § 36), must mean 
 absenting himself from his last place of resi- 
 dence in this state, or in the United States, 
 which was known to his family, or to those of 
 his relatives, who would be likely to know 
 where he was living/ 
 
 6. Presumptions of Survivorship. 
 
 By the civil law, where two persons perished 
 by the same disaster, and there was no evi- 
 dence as to which died first, it was presumed 
 
 ' McCartee vs. Camel, 1 Barb. Ch. R., 455. 
 
 • Prather vs. Palmer, 4 Pike, 456. 
 
 ' McCartee vs. Camel, 1 Barb. Ch, R., 455. 
 
76 LIFE ASSURANCE. 
 
 that in a case where both father and son per- 
 ished by the same calamity, and the son was 
 under the age of puberty, that the father sur- 
 vived, but that if above that age the son sur- 
 vived, upon the principle that, in the one case, 
 the father is usually the most robust, and, in the 
 other, the son." By the Code Napoleon,' it is 
 provided, that where several persons perish fey 
 one and the same accident, so that it is not 
 possible to ascertain which of them died first, 
 the presumption, as to survivorship, is to be 
 determined by the circumstances of the event, 
 and in the absence of all such evidence, by 
 the age and sex of the persons. If those who 
 perished together were under fifteen years, the 
 eldest shall be presumed to have survived. If 
 some were under fifteen years and others more 
 than sixty, the former shall be presumed to 
 have survived. If those who perished together 
 were of the age of fifteen years complete, but 
 less than sixty, the male is always presumed 
 to have survived, where there is equality of 
 
 ■ 1 Greenleaf s Ev., § 29. 
 
 T Book iii, tit. 1, c. 1, art's 720, 721, 722. 
 
PRESUMPTIONS OF SURVIVORSHIP. 77 
 
 age, or the difference which exists does not 
 exceed one year. If they were of the same 
 sex, the presumption of survivorship which 
 gives rise to succession, according to the order 
 of nature, must be admitted ; thus the younger 
 is presumed to have s\trvived the elder." 
 
 No such presumptions appear to have been 
 adopted by the common law. 
 
 In Selwyn's case, w where husband and wife 
 perished at sea, and no circumstances were 
 known, showing any advantages on the part of. 
 either, the court said : "In the absence of clear 
 evidence, it has generally been taken, that 
 both died at the' same moment." In Coye vs. 
 Leach,* where a father, seventy years old, and 
 his daughter, thirty-three years old, being on 
 board a steam boat, that was lost at sea, 
 and both perished by the calamity, and no 
 special circumstances were known, tending to 
 show that one died before the other, it was held, 
 that it must be presumed that both died at 
 the same instant. 
 
 w 3 Hagg Eccl. R., 748. See, also. Mason vs. Mason, 1 Meriv., 
 308, and Taylor vs. Diplock, 2 Phillim, Rep., 261. 
 
 1 8- Mete, 371. 
 
78 LIFE ASSURANCE. . 
 
 In Moehring vs. Mitchell,* where a mother 
 and daughter perished at sea, and there was no 
 evidence to authorise a different conclusion, it 
 was presumed they died together. 
 
 In Sillick vs. Booth, 2 it was held that where 
 two persons die by the same accident and no 
 special circumstances in evidence, from which 
 it may be presumed that one died before the 
 other, the law of England will draw that pre- 
 sumption from general circumstances, such as 
 the comparative health, strength, age or expe- 
 rience of the parties. 
 
 Where a man and his wife perished at sea, 
 on board of a steam boat, by the explosion of 
 the boilers, which caused the vessel to sink in 
 about half an hour, and there was evidence 
 that the wife was heard to call loudly for her 
 husband immediately after the disaster, and 
 that he was not heard to answer, nor was heard, 
 or seen, at any time, after the explosion, it was 
 held that the wife survived ; that such general 
 considerations, as age, health, &c, may be 
 
 ' 1 Barb. Ch. R., 264. 
 
 * 1 Younge & Coll. Ch. R., 121. 
 
TERMINATION OF RISK. 79 
 
 resorted to, to aid conjecture, but that where 
 there is any evidence, even the slightest, it 
 must govern the decision of the fact. aa 
 
 The weight of authority appears to be, there- 
 fore, that, where two persons perish by the 
 same disaster, and there is no evidence as to 
 who, actually, died first ; they will be presumed 
 to have died together; but where there is any 
 evidence tending to show who died first, this 
 must govern the case ; that in case of great 
 inequality in the age and health of the persons, 
 these circumstances may be taken into con- 
 sideration in aid of conjecture. 
 
 7. The Risk may terminate before the Time 
 limited. • 
 
 Where the insurance is effected for a number 
 of years or for life, and the premium, as is 
 usually the case, is not paid at the time required 
 by the policy, the risk ceases. Thus, upon a 
 policy of insurance on the life of A, the pre- 
 mium became due on the 15th of March, but 
 was not paid until the 12th of April, when 
 
 " Pell vs. Ball's Ex'rs, Cheve's Eq. R., 99. 
 
80 LIFE ASSURANCE. 
 
 the country agent of the Insurance Company, 
 through whom the insurance had been effected, 
 gave a receipt for the amount of the premium. 
 The instructions given by the company to the 
 agent were, that the premium on every life 
 policy must be received within fifteen days from 
 the time of its becoming due ; if not paid within 
 that time, he was to give immediate notice to 
 the office of that fact, and in the event of his 
 omitting to do so, that his account would be 
 debited for the amount, after the fifteen days 
 had expired. No notice was given to the com- 
 pany of the nonpayment of the premium within 
 the fifteen days; it was, therefore, entered in 
 their books as paid on the 15th of March, and 
 the agent was debited for the amount. Held, 
 first, that the mere debiting the agent with the 
 premium, could not be considered as a payment 
 to the company by the assured. Secondly, that 
 as the agent had no authority to contract for 
 the company, the fact of his receiving money 
 after the expiration of the fifteen days, and 
 the entry in the company's books, debiting him 
 with the amount, were no evidence of a new 
 
TERMlNATON OF RISK 3l 
 
 a new agreement between the company and 
 the assured. bb 
 
 Where, in a policy for life or years, there is 
 a clause that the policy is to cease unless the 
 premium is paid within a certain time, the 
 insured dying within the period, but without 
 paying the premium, a tender of the sum by 
 his executor, though within the time limited, 
 will not be a compliance with the clause in the 
 policy. Thus, where one as a member of a life 
 assurance society, for the benefit of widows and 
 female relations, entered into a policy of assu- 
 rance with the society for a certain annuity to 
 his widow after his death, in consideration of a 
 quarterly premium to be paid to the society 
 during his life, and the society covenanted to 
 him and his executors, &c, that if he should 
 pay to their clerk the quarterly premiums on 
 the quarter days during his life, and if he 
 should also pay his proportion of contributions, 
 which the members of the society should, 
 during his life, be called on to make, in order to 
 supply any deficiencies in their funds ; then, on 
 
 bb Acey vs. Fernie, 7 Mees & Welsby 151. 
 11 
 
82 LIFE ASSURANCE. 
 
 due proof of his death, the society engaged to 
 pay the annuity to his widow, and by the rules 
 of the society if any member neglected to pay 
 up the quarterly premiums for fifteen days after 
 they were due, the policy was declared to be 
 void, unless the member (continuing in as good 
 health as when the policy expired), paid up the 
 arrears within six months and five shillings 
 pe month extra; held that a member insuring, 
 having died leaving a quarterly payment over 
 due at the time of his death, the policy ex- 
 pired, and that a tender of the sum by the 
 member's executor, though made within fifteen 
 days after it became due, did not satisfy the 
 requisition of the policy and the rules of the 
 society, which required such payment to be 
 made by the member in his life time, con- 
 tinuing in as good health as when the policy 
 expired. 00 
 
 As an insurance for life or a number of years 
 is taken at a less premium per year than if the 
 insurance was effected each single year, for 
 the premium increases with each succeeding 
 
 " Wsmt vs. Blunt, 12 East, 183. 
 
TERMINATION OF RISK. 83 
 
 year, it follows that one who is insured for 
 years or life by permitting the time of his 
 yearly payment to run by, loses the benefit of 
 the former low rate, and as the policy expires 
 and the risk ceases on his neglect to pay, 
 and he can not, by afterwards tendering the 
 amount, require the insurer to put him in his 
 former condition, it follows, that if he wishes 
 to be insured the following year, he may be 
 compelled to pay an increased rate for the new 
 policy. 
 
CHAPTER V. 
 
 OF WARRANTY. 
 
 1. Warranty in general, its effect. 
 
 2. Distinction between a representation and a warranty. 
 
 3. Of the form of a warranty. 
 
 4. Of affirmative and promissory warranties. 
 
 5. Of the clause that the assured is " in good health. 
 
 6. Of the clause that the assured has " no disorder tending 
 to shorten life." 
 
 7. Of the clause "fits, vertigo, &c." 
 
 8. Of the clause " spitting of blood." 
 
 9. Of the clause ** sober and temperate habits." 
 
 10. Of the clause that the assured shall not commit " suicide,." 
 or " die by his own hands." 
 
 11. Of the clause that the assured shall not die by the hands 
 of justice. 
 
 12. Of the construction of warranties in general. 
 
 1. Of Warranty in General and its Effect. 
 
 A warranty is a stipulation inserted in writing 
 on the face of the policy or on a paper referred 
 to therein, on the literal truth or fulfilment of 
 
86 LIFE ASSURANCE. 
 
 which the validity of the entire contract 
 depends. 
 
 The law in regard to warranty is very strict, 
 and the least breach of one, however unim- 
 portant, releases the assurer from all liability ; 
 for it is a well settled principle of insurance 
 law, that when a thing is warranted to be of a 
 particular nature or description, it must be 
 exactly what it is stated to be, and it makes 
 no difference whether the thing be material or 
 not : this principle has been followed in all the 
 English and American cases. a 
 
 Therefore, should the assured die from some 
 other cause, not in the least connected with the 
 breach of the warranty, yet the assurer is none 
 the less discharged. It therefore becomes of 
 the utmost importance to both parties to know 
 what declarations on the part of the assured 
 are to be construed as warranties, so as to apply 
 to such declarations the strict construction 
 and severe effect incident to a warranty. 
 
 * The New Castle Fire Insurance Company vs. Macmorran. 3 
 Dows R., 255. Burritt vs. The Saratoga County Mutual Fire 
 Insurance Company, 5 Hill, 188. Trench and another vs. The 
 
FORM OF A WARRANTY. 87 
 
 2. Distinction between a Representation and a 
 Warranty. 
 
 The distinction between a representation and 
 a warranty, is, that the former is a declaration, 
 merely collateral to the contract, while the 
 latter is in the nature of a condition precedent. b 
 
 A representation, although untrue, must be 
 material to have the effect of avoiding the con- 
 tract, but a warranty must be strictly true and 
 complied with. c 
 
 If a representation be proved or admitted to 
 be untrue, evidence is still admissible to show 
 that it was immaterial. A fact warranted, 
 when proved to be untrue, precludes further 
 evidence, the assurer being entitled to say, that 
 is not my contract. 
 
 3. Of the Form of a Warranty, 
 
 No particular form of words is necessary to 
 constitute a warranty. The words warranty, or 
 
 Chenango County Mutual Insurance Company, 7 Hill, 122; 16 
 Wend. R., 481. 
 
 ' 5 Hill, 188. 7 Wend. R., 72. 
 
 ' The Farmers' Insurance Company vs. Snyder, 16 Wend., 481. 
 
88 LIFE ASSURANCE. 
 
 warranted are not essential; for the description 
 of the thing insured, when inserted in the policy, 
 or when on another paper, and referred to in the 
 policy in such a manner as to show that it was 
 intended to be incorporated therein, amounts 
 to a warranty. 
 
 It does not matter, also, on what part of the 
 paper the warranty appears; it need not be in 
 the body or printed part of the policy, it may be 
 in the margin, or at the foot of the policy, and 
 written in the usual way, or traversely. d 
 
 In Roberts vs. the Ghenango County Mutual 
 Insurance Company, 6 where a policy was printed 
 on one side of a folded sheet, and on the other, 
 was a statement, commencing thus: "Con- 
 ditions of Insurance," but no express reference 
 was made to this in the body of the policy, it 
 was held that the statement formed a part of 
 the policy, at least prima facie. 
 
 And in Murdock & Garrett vs. the Chenango 
 County Mutual Insurance Company/ that a 
 
 d Kenyon vs. Berthon, 1 Doug., 12, n. Bean vs. Stupart, 
 Doug., 11. 
 e 3 Hill, 501. 
 ' 2 Comstock, 201. 
 
FORM OF A WARRANTY. 89 
 
 paper, purporting to be conditions of insurance, 
 if annexed to, and delivered with a fire policy, 
 is to be deemed, prima facie, a part of it, al- 
 though the policy do not contain any express 
 reference to such paper. 
 
 But a written paper, wrapt up with a policy, 
 has been held not to be a warranty. 8 
 
 And in Bize vs. Fletcher, h a paper, though 
 wafered to a policy at the time of signing it, was 
 held not to be a warranty. 
 
 In the case of Roberts vs. The Chenango 
 County Mutual Insurance Company, before 
 cited, Justice Cowen, in referring to the decision 
 of Bize vs. Fletcher, uses the following words : 
 " The assured accepts the policy, with what pur- 
 ports to be conditions on the same sheet, or any 
 sheet physically attached." "It would be impos- 
 sible to sustain the decision in Bize vs. Fletcher, 
 (Doug., 12, n. 4.), if the slip wafered to the 
 policy, had, like this, expressly declared itself 
 to be conditions of insurance." 
 
 There are also cases, extending the effect of 
 
 ' Pawson vs. Barnerelt, 1 Doug., 12, note 4. 
 " Doug., 13, note. 
 
 12 
 
90 LIFE ASSURANCE. 
 
 a warranty, over conditions and stipulations, 
 neither inserted in writing on the face of the 
 policy, nor on the same sheet, nor on a sheet 
 physically attached. Thus, in "Worseley vs. 
 Wood, 1 and Eoutledge vs. Burrill,J printed pro- 
 posals, referred to in a policy, were held to be 
 part of it. 
 
 In the case of The Jefferson Insurance Com- 
 pany vs. Cotheal, k the court say : "The doctrine 
 of warranty, in the law of insurance, is one of 
 great rigor, and frequently operates very harshly 
 upon the assured. A warranty is considered as 
 a condition precedent, and whether material 
 or immaterial, as it regards the risk, must be 
 complied with, before the assured can sustain an 
 action against the underwriters. A warranty 
 is, therefore, never created by construction." 
 "It must, therefore, appear on the face of the 
 policy, in order that there may be unequivocal 
 evidence of a stipulation, the noncompliance 
 with which, is to have the effect of avoiding the 
 contract." No case has been referred to, in 
 
 '• 6 Term R., 710. 
 
 J 1 H. Blackstone R., 254. 
 
 k 7 Wend., 72. See, also, 2 Denio, 75. 
 
FORM OF A WARRANTY. 91 
 
 which this rule has been relaxed, • except in 
 relation to the printed proposals of the under- 
 writers, accompanying and always attached to 
 the policy. 
 
 It has been held that the conditions specified 
 in those proposals to be performed by the 
 " assured, are conditions precedent, and are to 
 be construed as warranties incorporated in 
 the policy;" "but these printed proposals are 
 always referred to by the policy, and it is in 
 express terms declared, that the policy is made 
 and accepted in reference to them." 
 
 In The Farmers' Insurance Company vs. 
 Snyder, 1 the same doctrine was held, and the 
 case having been carried up was affirmed in 
 the Court of Errors, in which it seems that to 
 give the effect of a warranty to a slip referred 
 to in a policy, it should be referred to in such a 
 manner as to show that it was intended by the 
 parties that it should have that effect. 
 
 In Delonguemere vs. The Tradesmens' Insur- 
 ance Company, m the subj ect of warranty is treat- 
 ed at great length and the same opinion held. 
 
 16 Wend., 481. 13 Wend., 92. See also 2 Denio, 75. 
 - 2 Hall S. C. Rep., 589. 
 
92 LIFE ASSURANCE. 
 
 In Burritt vs. the Saratoga County Mutual 
 Fire Insurance Company,? all the preceding 
 cases are adverted to, and the court held that 
 a mere naked reference in a policy to the written 
 application for insurance, will not make the 
 latter a part of the contract so as to change 
 what would else be a representation into a 
 warranty; but it admits that a paper may be so 
 referred to in a policy, as to be incorporated 
 with it and constitute a warranty, and refers 
 to Koberts vs. The Chenango County Insurance 
 Company (3 Hill 501), in which such a reference 
 was held to be a warranty. 
 
 These cases show what efforts have been 
 made, to bring under the head of warranty 
 declarations not inserted on the face of the 
 policy, and they also show : 1st, That a warranty 
 must appear on the face of the policy ; or, 2d, 
 That if on another part of the same sheet or 
 on a sheet physically attached, the stipulations 
 must of themselves show that they were in- 
 tended to be incorporated and form part of the 
 contract ; or, 3d, That if on another paper, they 
 
 - 5 Hill, 188. 
 
AFFIRMATIVE AND PROMISSORY WARRANTIES 93 
 
 must not only be referred to in the policy itself, 
 but must be referred to in such a manner as 
 clearly to show that they were intended to be 
 incorporated in the policy and form a part of 
 the conditions thereof. That the courts will 
 view with disfavor every attempt to construe 
 as a warranty, any conditions or stipulations 
 not in the policy itself or therein referred to, 
 . and will not aid such attempts by construction. 
 
 4. Of Affirmative and Promissory Warranties. 
 
 Warranties may be either affirmative or 
 promissory ; affirmative, where the assured 
 undertakes for the truth of some existing fact ; 
 or promissory, where the assured undertakes to 
 do or not to do some future act, as to be engaged 
 in certain forbidden occupations, to visit certain 
 restricted places, or to be of temperate habits, 
 &c. 
 
 As to the warranty that the assured is of 
 such an age, and as is often the case of such 
 an age on some particular day, if the facts thus 
 stated are not true, the insurers are released ; 
 although a slight mistake in the statement of 
 the age, could be of no great importance to the 
 
94 LIFE ASSURANCE. 
 
 estimate of the risk, still as it is warranted, it 
 makes no difference as to the insurer's liability, 
 whether it be material or not.° 
 
 5. Of Ike Clause that the Assured is "in Good 
 Health." 
 
 Under the clause that the assured is "in 
 good health " at the time of effecting the assur- 
 ance, a party will be entitled to recover, though 
 he may be afflicted with some infirmity, if his 
 life be in fact a good one and he be in a 
 reasonable state of health and such as to be 
 insured on common terms. Thus, in an action 
 on a policy made on the life of Sir James Boss 
 for one year, from October 1759 to October 
 1760, warranted in good health, at the time of 
 making the policy; the fact was, that Sir 
 James had received a wound in his loins at the 
 battle of La Feldt, in the year 1747, which had 
 occasioned a partial relaxation or palsy, so that 
 
 ° It is understood few of the better class of companies would 
 resist payment on the ground of a slight misstatement of age, 
 unless the assured was guilty of fraud ; although they might 
 justly, and would probably, retain the extra premium which 
 <-""ild have been required had the age been correctly stated. 
 
CLAUSE, GOOD HEALTH. 95 
 
 he could not retain his urine or fceces, and 
 which was not mentioned to the insurers. Sir 
 James died of a malignant fever within the 
 time of the assurance. All the physicians and 
 surgeons who were examined for the plaintiff 
 swore, that the wound had no sort of connection 
 with the fever, and that the want of retention 
 was not a disorder which shortened life, but he 
 might, notwithstanding that, have lived to the 
 common age of man ; and the surgeon who 
 opened him said, that his intestines were all 
 sound. There was one physician examined for 
 the defendant, who said, the want of retention 
 was paralytic ; but being asked to explain, he 
 said, it was only a local palsy, arising from the 
 wound but did not affect life ; but on the whole 
 he did not look upon him as a good life. Lord 
 Mansfield said: "The question of fraud can not 
 exist in this case. When a man makes insur- 
 ance upon a life generally, without any repre- 
 sentation of the state of the life-insured, the 
 insurer takes all the risk, unless there was 
 some fraud in the person insuring, either by 
 his suppressing some circumstance which he 
 knew, or by alledging what was false ; but if the 
 
96 LIFE ASSURANCE. 
 
 person knew no more than the insurer, the 
 latter takes the risk. In this case there is a 
 warranty, and whenever that is the case it must 
 at all events be proved that the party was a 
 good life, which makes the question on a war- 
 ranty much larger than that on a fraud. Here 
 it is proved that there was no representation 
 at all as to the state of life, nor any question 
 asked about it, nor was it necessary. "Wliere 
 an insurance is upon a representation, every 
 material circumstance should be mentioned, 
 such as age, way of life, &c. ; but where there 
 is a warranty then nothing need be told, but it 
 must in general be proved, if litigated, that the 
 life was in fact a good one, and so it may be 
 though he have a particular infirmity. The only 
 question is, "whether he was in a reasonably 
 good state of health, and such a life as ought 
 to be insured on common terms?" The jury 
 upon this direction, without going out of court, 
 found a verdict for the plaintiff.? 
 
 Again, in an action on a policy on the life 
 of Sir Simeon Stuart, Bart., from the first of 
 
 ' 1 Wm. Blackstone's R., 312. 2 Park on Ins., 8 ed., p. 934. 
 
CLAUSE, " GOOD HEALTH." 97 
 
 April 1779, to the first of April 1780, and 
 during the life of Eliza Edgly Ewer ; the policy 
 contained a warranty, that Sir Simeon was 
 about fifty-seven years of age, and in good 
 health at the time the policy was underwritten. 
 It was proved on the trial, that although the 
 insured was troubled with spasms and cramps, 
 from violent fi'ts of the gou£, yet he was in as 
 good health when the policy was underwritten, 
 as he had been for a long time before ; and also 
 • that the underwriters were told that the insured 
 was subject to the gout. 
 
 Dr. Heberden and other physicians, who were 
 examined, proved that spasms and convulsions 
 were symptoms incident to the gout. Lord 
 Mansfield said: "The imperfection of language 
 is such, that we have not words for every differ- 
 ent idea; and the real intention of parties 
 must be found out by the subject matter. By 
 the present policy, the life is warranted, to 
 some 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 seeds 
 13 
 
98 LIFE ASSURANCE. 
 
 of disorder. We are all born with the seeds of 
 mortality in us. A man subject to the gout, is 
 a life capable of being insured, if he has no 
 sickness at the time to make it an unequal 
 contract." Verdict for the plaintiff.' 
 
 In an action on a policy of insurance, dated 
 22d of November, 1802, whereby the defendants, 
 for a certain consideration, insured the life 
 of the plaintiff's wife, then warranted in good 
 health, and of the description set forth in a 
 certain certificate, signed and dated 9th No- 
 vember, 1802, it was held that declarations 
 made by the wife, while lying in bed, appa- 
 rently ill, as to the bad state of her health, and 
 her apprehensions thai she could not live ten 
 days longer, were admissible in evidence, to 
 shew her own opinion, who best "knew the fact 
 
 q Willis ve. Faale, sittings at Guild., East. V^c„ ,17,80, 2 Park., 
 8th ed., p. 935. Cases similar to those qf Ross vs. jBradshaw, 
 and Willis vs. Poole, are not likely to occur again, as (jl> 3 compa- 
 nies of the present day never insure on the simple wari?a|»ity of 
 health, and the clauses inserted in the policy, as has been .seen 
 (chap. 2, ante), and the questions put., are so specific, as ajmp#t 
 to preclude any possibility of their not being informed of _eyeKy 
 thing material to the risk. 
 
WARRANTY. 99 
 
 of the ill state of her health, at the time of 
 effecting this policy/ 
 
 6. Of the Clause, t/iat the Assured has no 
 Disorder tending to shorten Life. 
 
 As to the clause, that the assured has no 
 disorder tending to shorten life, the mere fact of 
 a person eventually dying of a disorder, with 
 which he was afflicted, before effecting an assur- 
 ance, is not to be considered as conclusive 
 evidence, that he had a disease tending, to 
 shorten life, within the meaning of this 
 clause, unless it was a disorder which generally 
 has that tendency. 
 
 Thus, in an action 8 brought against the 
 Equitable Insurance Office, to recover a sum 
 which had been insured on the life of Dr. Wat- 
 son; the office resisted the demand on the 
 ground, that when the policy was effected 
 deceased had (in breach of his declaration 
 to the contrary) a disorder tending to shorten 
 life, and that the policy was, therefore, void. 
 
 r Aveson vs. Lord Kinnaird and others, 6 East, 188. 
 ■ Watson vs. Main waring, 4 Taunt., 763. 
 
100 LIFE ASSURANCE. 
 
 For the plaintiff, it was proved by an eminent 
 physician of Bath, to whom Dr. Watson had 
 applied for advice, that his disorder was 
 an affection of the bowels; that this disease 
 may proceed from either of two causes, the one 
 a defect of some of the internal organs, the 
 other, a mere dyspepsia; that the first would ■ 
 tend to shorten life ; that the second, though it 
 renders the patient uncomfortable, does not, 
 generally, unless it increases to an excessive 
 degree, tend to shorten life, and that the com- 
 plaint with which Dr. Watson was aflflieted, 
 was not the organic dyspepsia. Several other 
 medical men "stated, that they had attended 
 Dr. Watson since the policy was effected, and 
 that he was then quite free from the disorder. 
 On the other hand, several medical persons 
 stated, as witnesses for the defendants, that 
 they had seen him at the time of his visiting 
 Bath previously to effecting the insurance, and 
 that they then considered him as a falling man. 
 It was left to the jury whether the patient's 
 complaint was the organic dyspepsia ; if it was 
 not, whether the dyspepsia under which he 
 
WARRANTY. { 1101 Sfi 
 
 labored was, at the time of effecting the poIi$»^_-^ 
 of such a degree, that by its excess it tendec 
 to shorten life. The jury found that it was 
 neither organic or excessive, and gave a verdict 
 for the plaintiff. On a motion made to set 
 aside the verdict and have a new trial, on the 
 ground that since the assured afterwards died 
 of the same disorder, which he had before 
 effecting the policy, that circumstance was 
 conclusive proof, that he was then affected 
 with a disorder tending to shorten life. Cham- 
 bre ? J., said: All disorders have, more or less, a 
 tendency to shorten life, even the most trifling ; 
 as, for instance, corns may end in a mortifica- 
 tion, that is not the meaning of the clause ; if 
 dyspepsia was a disorder that tended to shorten 
 life, within this exception, the lives of half the 
 members of the profession of the law, would 
 be uninsurable. Gibbs, J.: According to the 
 rule contended for, the assured, to be assurable, 
 must have no disease at all. It can not be 
 said that this was not a case, if ever there was 
 one, fit to be left to a jury; and though 
 the office had very good grounds to try 
 
102 LIFE ASSURANCE. 
 
 the cause, since it has been fairly submitted to 
 a jury, there is as little ground for the court to 
 interfere, as in any case that ever was tried. 
 Eule refused. 
 
 But where there is no warranty, the under- 
 writers run the risk of its being a good life or 
 not, unless there be fraud. Thus, in Stackpole 
 vs. Simon,* where a broker told the underwriter 
 that the person for whom he acted would not 
 warrant, but he believed the party to be a good 
 life, the underwriter was held liable. Lord 
 Mansfield said : " 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 state of the life, it is a 
 fraud. It is a rule, that every subsequent 
 underwriter gives credit to the representation 
 made to the first ; and it is allowed that any 
 subsequent underwriter may give in evidence 
 a misrepresentation to the first. The broker 
 here does not pretend to any knowledge of his 
 own, but speaks from information : there is no 
 fraud in him." 
 
 1 Stackpole vs. Simon, sitt. at Guild, Hil. vac. 1779 ; 2 Park, 
 8ed.,932. 
 
WARRANTY. 103 
 
 7. Of the Clause, Fits, Vertigo, &c. 
 
 Where a policy of insurance contained a 
 warranty that the assured "has not been 
 afflicted with, nor is subject to gout, vertigo, 
 fits," &c, such warranty is not broken by the 
 fact of the assured' s having had an epileptic 
 fit in consequence of an accident. To vacate 
 such a policy it must be shown that the consti- 
 tution of the assured was naturally liable to 
 fits, or by accident or otherwise has become so 
 liable." 
 
 8. As to the Clause, Spitting of Blood. 
 
 Where, in a policy, there was a clause that 
 it should be void if any thing stated by the 
 assured, in a declaration or statement given by 
 him to the directors of the insurance company, 
 before the execution of the policy, should be 
 untrue, and in this declaration the assured 
 stated, among other things, "that he had not 
 had any spitting of blood, consumptive symp- 
 toms, asthma, cough, or other affection of the 
 
 " Chattock vs. Shasre and others, 1 Moody and Rob., 498. 
 
104 LIFE ASSURANCE. 
 
 lungs," and the judge in summing up read 
 over the several issues to the jury, and in the 
 course of it stated to them that it was for them 
 to say, whether, at the time of his making the 
 statement set forth in the declaration, the 
 assured had had such a spitting of blood and 
 such ejection of the lungs and inflammatory 
 cough as would have a tendency to shorten 
 life ; on the case being carried up, it was held 
 that this was a misdirection, for although the 
 mere fact of the assured having spit blood 
 would not vitiate the policy, the assured was 
 bound to have stated that fact to the insurance 
 company in order that they might make 
 inquiry, whether it. was the result of the 
 disease called spitting of blood. T 
 
 9. Of the Clause, Sober and Temperate Habits. 
 
 In Southcombe vs. Merriman, w it was held 
 that if the rules of the insurance company 
 stipulate that the assured shall be of sober and 
 temperate habits. It is not necessary to prove 
 his intemperance was of such a nature as to 
 
 ' Geach vs. Ingalls, 14 Mees & Wels., 96. 
 " 1 Carr $ M., 286. 
 
DEATH BY SUICIDE 105 
 
 endanger life or injure his health ; but that on 
 a plea denying his sober and temperate habits, 
 it is sufficient for the defendants to show that 
 his habits were intemperate, and that it is no 
 answer to this plea, that the plaintiff prove 
 the intemperance not to have been to such a 
 degree as to injure the health of the insured 
 or to shorten his life. 
 
 10. Of the Clause, that the assured " Shall not 
 commit Suicide" or, " Die by his own Hands. 
 
 As to the clause, that the policy shall be 
 void, "if the assured shall commit suicide," 
 or, as in some policies, "die by his own hands," 
 cases arose, in 1826 and 1832, where the 
 question of suicide was involved, but in them 
 the point was, whether the assured came to 
 his death by suicide or from some other cause, 
 and the jury finding that the assured did not 
 commit suicide, the case ended. 1 
 
 x Garret vs. Barclay, tried before Alexander, C. B., at the Lon, 
 sitt. after Easter Term, 1826. Kinnear vs. Borradaile, tried 
 before Lord Tenterden, C. J., at the sitt. in London, after Hil, 
 Term, 1832. 
 
 14 
 
106 LIFE ASSURANCE. 
 
 The legal construction of the clause, that the 
 policy shall be void in all cases, where the 
 assured shall commit suicide, came, however, 
 directly before the court in England in 1843, 
 in the case of Borradaile vs. Hunter,? in which 
 it was decided, that where a life policy con- 
 tained a clause for avoidance " if the insured 
 should die by his own hand," and the insured 
 destroyed himself by drowning, the jury finding 
 that at the time he threw himself voluntarily 
 into the water, he knew he should thereby 
 destroy life and intending thereby to do 
 so, but that he was at the time of com- 
 mitting the act incapable of judging between 
 right and wrong; held (dis. Tindal, C. J.), that 
 the proviso was not limited to acts of felonious 
 suicide but included all voluntary acts of self- 
 destruction, and that the policy was avoided. 
 
 And later, in the English case of Cliffc vs. 
 Schwabe, z which was argued and determined 
 upon writ of error in the Exchequer Chamber 
 and in the House of Lords in 1846, it was 
 
 1 5 Manning & Granger, 639. 
 
 ' Manning, Granger & Scott (C. B.), 437. 
 
DEATH BY SUICIDE. 107 
 
 held, that where the condition was, that the 
 party should not commit suicide, and the judge 
 had directed the jury that the death by the 
 party's own hands, by his own voluntary act, 
 being established, they were to presume him 
 to be of sane mind and a responsible agent, 
 unless the contrary appeared upon a bill of 
 exceptions; held (Pollock, C. B., and Wightman, 
 J., dis.), erroneous, that the terms of the con- 
 dition included all acts of voluntary self- 
 destruction, and that it was immaterial whether 
 he was or was not at the time a responsible, 
 moral agent. 
 
 In this country the construction of this 
 clause was directly the reverse of the* decision - 
 in England. Thus, in Breasted vs. The Farm- 
 ers' Loan and Trust Company, M which was 
 argued before the Supreme Court of the State 
 of New York at the January term of 1843, 
 the defendants pleaded that the insured com- 
 mitted suicide by drowning himself in the 
 Hudson river; the replication to which was, 
 that when the insured drowned himself he was 
 
 " 4 Hill, 73. 
 
108 LIFE ASSURANCE. 
 
 of unsound mind and wholly unconscious of the 
 act, to which there was a demurrer that the 
 replication furnished no answer to the matter 
 set forth in the plea. The court gave the 
 plaintiff judgment on the demurrer and decided 
 that suicide, committed by the insured when 
 bereft of reason, will not avoid a policy under 
 the above clause. Chief Justice Nelson, in 
 giving the decision of the court, said, " The ques- 
 tion upon the demurrer is, whether Comfort's 
 self-destruction in a fit of insanity can be 
 deemed a death by his own hand, within the 
 meaning of the policy. I am of opinion that 
 it can not. Since the argument of the case, I 
 have examined many precedents of life policies 
 used by the different insurance companies, and 
 am entirely satisfied, that the words in the 
 policy in question import a death by suicide. 
 Provisos declaring the policy to be void in case 
 the insured commit suicide or dies by his own 
 hand, are used indiscriminately by different 
 insurance companies, as expressing the same 
 idea ; and so they are evidently understood by 
 the writers upon this branch of the law." 
 
DEATH BY SUICIDE. 109 
 
 After mentioning various companies which use 
 this clause, he says : " The connection in which 
 the words stand in the policy, would seem to 
 indicate that they were intended to express a 
 criminal act of self-destruction. As they are 
 found in conjunction with the provision relating 
 to the termination of the life of the insured in 
 a duel, or by his execution as a criminal, this 
 association may well characterize and aid in 
 determining the somewhat indefinite and equi- 
 vocal import of the phrase. Speaking legally 
 also (and the policy should be subjected to this 
 test), self-destruction by a fellow being, can 
 with no more propriety be ascribed to the act 
 of his own hand, than to the deadly instrument 
 that may have been used for the purpose. The 
 drowning of Comfort was no more his act, in 
 the sense of the law, than if he had been 
 impelled by irresistible physical power ; nor is 
 there any greater reason for exempting the 
 company from the risk assumed by the policy, 
 than if his death had been occasioned by such 
 means. Construing these words, therefore, 
 according to their true, and as I apprehend, 
 
110 LIFE ASSURANCE. 
 
 universally received meaning, among insurance 
 offices, there can be no doubt that the termina- 
 tion of Comfort's life was not within the saving 
 clause of the policy. Suicide involves the 
 deliberate termination of one's existence while 
 in the possession and enjoyment of his mental 
 faculties. Self-slaughter, by an insane man or 
 a lunatic, is not an act of suicide within the 
 meaning of the law (4B1. Com., 189; 1 Hale's 
 PI. C. 411, 412). I am of opinion, therefore, 
 that the plaintiffs are entitled to judgment on 
 the demurrer." bb ra 
 
 b This case has since been carried to the Court of Appeals. 
 Should their decision be given in season, it will be inserted in 
 the appendix. 
 
 cc Quere: Whether the underwriters would be liable on a 
 policy, under the above clause, where the suicide was committed 
 by the assured while in a state of insanity or delirium, brought 
 on by excessive drinking? As a party is not excused in law for 
 any criminal act committed while insane, or unconscious from the 
 effects of intoxication, should not suicide, committed under like 
 circumstances, release the insurers? Should not suicide, com- 
 mitted from insanity produced by disease, be distinguished from 
 suicide, committed by a party, while in a state brought on and 
 induced by his own criminal act ? 
 
DEATH BY THE HANDS OF JUSTICE. Ill 
 
 11. "Of the Clause, that the Assured shall not 
 die by the Hands of Justice. 
 
 As to the clause that the policy shall be void, 
 if the insured die by the hands of justice, it 
 would appear from the celebrated and only case 
 on this point, that of Fountleroy, dd that it is 
 
 * 
 
 immaterial, whether there be such a clause in the 
 policy or not, that in either case the effect is the 
 same, and that the insurers are released by the 
 happening of such an event. 
 
 The facts in that case are these : Fountleroy 
 effected a policy on his life on the eleventh of 
 January, 1815. In October, 1824, he was de- 
 clared a bankrupt ; shortly afterwards he was 
 convicted of forgery, and on the thirtieth of 
 November he was executed, pursuant to his 
 sentence. The insured had duly paid the pre- 
 miums to the time of his death. There was no 
 clause in the policy in regard to death by the 
 hands of justice. On appeal before the House 
 of Lords, the Chancellor held, that the insurers 
 were released, that it was against public policy 
 
 dd Bolland vs. Disney,, 3 Russel, 351. 4 Bligh, N. S., 194. 
 
112 LIFE ASSURANCE. 
 
 to allow an action to be maintained for the in- 
 surance, on the ground "that if such a contract 
 was available, it would take away one of those 
 restraints, operating on the minds of men 
 against the commission of crimes, namely, the 
 interest we have in the welfare and prosperity 
 of our connections. 
 
 12. Of the Construction of Warranties in 
 General. 
 
 From the cases heretofore cited, it would 
 appear, that where the warranty is, that the 
 assured has not had a particular disorder, as 
 fits, spitting of blood, cough &c, the policy is 
 avoided on proof of the fact, that he has had 
 such* disorder, although it may not have been 
 to such a degree as to tend to shorten life. The 
 assurers should be informed of the fact, in order 
 to enable them to make proper inquiries as to the 
 nature and cause of the disorder. But where 
 the warranty is, that the assured has not been 
 subject to a particular disorder, there, to avoid 
 the policy, the fact of such disorder must not 
 only be shown, but that the disorder was of 
 
WARRANTY. 113 
 
 such a nature, or proceeded from such a cause, as 
 is usually denominated by the term used. In the 
 latter case, a fit, arising from an accident, as a 
 fall, but the assured not rendered, by such acci- 
 dent subject to a recurrence of it, or a spitting of 
 blood, [from a tooth, the throat, or even from 
 the stomach or lungs, provided it arose from 
 some accident, and was merely temporary as 
 incident to such accident, but did not assume, 
 or exhibit the fixed character, which the term, 
 subject to, implies, would not avoid the policy. 
 The term, intemperate habits, has a well 
 understood, and popular meaning, and can not 
 be construed to apply to the case of occasional 
 drinking, provided such drinking does not 
 proceed to the degree which would usually 
 be denominated intemperate. 
 
 15 
 
CHAPTEE VI. 
 
 MISREPRESENTATION. 
 
 # 
 
 1. Misrepresentation in general, its form, and effect. 
 
 2. Materiality of a fact misrepresented, a question for a jury. 
 
 3. Misrepresentation by a third party. 
 
 4. Misrepresentation through mistake, neglect, or accident. 
 
 5. Misrepresentation as to medical attendant. 
 
 6. Meaning of the clause " usual medical attendant." 
 
 7. Misrepresentation by the assurer. 
 
 1. Misrepresentation in General, its Form and 
 
 Effect. 
 
 A representation is a written or verbal state- 
 ment made by the assured to the assurer as to 
 any fact, or state of facts, tending to induce 
 him the more readily to assume the risk or to 
 take it at a less premium. 
 
 There is no difference in the form of the words 
 used between a warranty and a representation. 
 They are both declarations or statements of 
 
116 IJFE ASSURANCE. 
 
 facts : the one, however, being always inserted 
 on the face of the policy, annexed thereto or 
 referred to therein ; the other being usually 
 independent of it. When a statement or 
 answers, as in the case of the answers to the 
 interrogatories put by the assurers, are inserted 
 in the policy, or when the same are annexed 
 thereto, or on another paper, but referred to in 
 the policy in such a manner as to show that they 
 were intended to be incorporated therein, they 
 are construed as warranties and considered in 
 the nature of conditions precedent, but when 
 such declarations are verbal, or on a paper 
 external to the policy and not referred to 
 therein in the manner above stated, they will 
 be construed as representations, considered as 
 independent of the contract and merely col- 
 lateral to it. 
 
 From this difference in form, arises the dif- 
 ference in the strictness with which they are 
 required to be complied with. 
 
 When declarations are inserted in the policy, 
 or referred to therein in such a manner as 
 clearly to show they were intended to be 
 
MISREPRESENTATION. 117 
 
 incorporated therein, they must be literally 
 true and complied with, for they then assume 
 the nature of conditions precedent : but when 
 the same declarations are verbal or external to 
 the policy and not referred to in such manner, 
 they are then independent of the contract, 
 merely collateral to it, and need only be sub- 
 
 * 
 
 stantially complied with. a 
 
 A fact represented may sometimes be untrue 
 and still not vitiate the contract, but a fact 
 warranted, when once proved to be untrue, 
 defeats all right to recover on the policy. b 
 
 a Pawson vs. Watson, Cowp., 785; De Hahn vs. Hartley, 1 T. 
 R., 343; Mayne vs. Walter, B. R. East., 22, George III; Clarke 
 vs. The Manufacturers' Insurance Company, 2 Woodbury & Mi- 
 not's R., 487. 
 
 b Life policies are now usually drawn in such a manner that 
 but few statements which would otherwise be merely representa- 
 tions, can escape being construed as warranties, a clause being 
 usually inserted in the policy referring to the proposal and 
 answers which are extrinsic to the policy and expressly providing 
 that such declarations shall be deemed to be incorporated in the 
 policy, and form a part of the conditions on which the contract 
 is formed. The assurer's naturally aiming to give every thing 
 the strict construction of a warranty to preclude all evidence, 
 except of the literal truth or untruth of the facts stated. 
 
118 LIFE ASSURANCE. 
 
 Although a representation is not usually 
 inserted in the policy, still, "it may be inserted, 
 and yet not require, in that case, the severe 
 construction given to a warranty, provided the 
 statement relates, not to facts, but to the 
 information, expectation, or belief of the party ; 
 or, provided the parties declare at the same 
 time, their intention, that the statement 
 should be taken to be a representation merely. 
 As parol evidence is not admissible to vary or 
 contradict a written contract, any declaration 
 of the assured, explanatory of, or contradicting, 
 or tending to vary the terms inserted on the 
 face of the policy, should also be noted therein, 
 or it should be expressly stated, that such 
 statement should have the effect of a represent- 
 ation merely , otherwise, all such declarations 
 would, doubtless, be construed as warranties. 
 The very object of inserting a statement in the 
 policy, is to give it the form of a warranty, and 
 thus preclude all other evidence, except of the 
 truth or untruth of the facts stated. Where a 
 
 3 Kent, 7th ed., 350. Rice vs. New England Insurance Co., 
 4 Pick., 439. Lothian vs. Henderson, 3 B. & Pul., 499. 
 
MISREPRESENTATION. 119 
 
 policy, in the body of it, refers to representations 
 made by the assured, and provides, that they 
 are to be true or the insurance is void ; it is 
 competent to show by evidence, dehors the 
 policy, what the representations were. d 
 
 A representation, as ,we have heretofore 
 stated, is the statement of a fact tending to 
 induce the assurer to assume the risk; facts 
 which are immaterial can have, or are presumed 
 to have, no effect on his mind ; therefore, it is 
 only a representation of those which are mate- 
 rial, which can induce him to assume the risk, 
 and consequently only the misrepresentation 
 of such facts will avoid a policy. 
 
 2. The Materiality of a Fact misrepresented, 
 a Question for a Jury. 
 
 The fact that the assurer considered a fact 
 misrepresented, to be material, or that the 
 assured did not so consider it, has no effect on 
 the contract; but this is solely a question to 
 be determined by a jury. e « 
 
 d Woodbury & Minot's R., 479; idem, when and what evidence 
 is admissible. 
 
 e Morrison vs. Murspratt, 4 Bing., 60. 
 
120 LIFE ASSURANCE. 
 
 It is evident that what the assured may, or 
 may not, consider material, can not affect the 
 mind of the assurer in entering into the contract, 
 he being governed entirely by his opinion formed 
 from the state of facts as they are actually 
 represented ; neither would it be just to take 
 as a criterion of materiality, the assertion of the 
 assurer, made, in most instances, after the loss 
 had occurred, for he would naturally be inclined 
 to assert, that the fact misrepresented would 
 have had an effect on him in determining 
 whether he would insure at all, or at what rate, 
 and consequently material ; the true rule there- 
 fore is, as laid down above, and as has been 
 decided by authority, that the materiality of 
 facts represented is exclusively to be -deter- 
 mined by the j ury . Whatever facts represented 
 would naturally induce a person to enter into 
 such contracts, or govern the rate at which the 
 risk would be taken, would probably be held to 
 be material. 
 
 3. Misrepresentation by a Third Parti/. 
 
 The effect of a misrepresentation is the same, 
 whether made by the assured, or his agent, or 
 
MISREPRESENTATION. 121 
 
 by any other person concerned in his behalf 
 about the assurance. Thus, in Fitzherbert vs. 
 Mather/ it was held, that "any person acting 
 by the orders of the insured, and who is in 
 anywise instrumental in procuring' the insur- 
 ance, is bound to disclose all he knows to the 
 underwriter, before the policy is effected ; and 
 where any misrepresentation arises from his 
 fraud or negligence, the policy is void. Where 
 one of two innocent persons must suffer, by the 
 fraud or negligence of a third, whichever of the 
 two gave credit ought to bear the loss." 
 
 Where a creditor assures the life of his debtor, 
 and allows such debtor to make representations 
 concerning the state of his health, and such 
 representations are false, although the creditor, 
 for whose benefit the assurance is effected, may 
 be ignorant that the representations made by 
 such debtor are false, he is nevertheless bound 
 by them, and the policy is thereby vitiated.^ 
 The debtor, in such cases, will be held to be the 
 agent of the creditor, and the creditor bound 
 
 'lT.i, 12. 
 
 ' Maynard vs. Rhodes, 1 Carr. & P., 360. 
 16 
 
MISREPRESENTATION . 123 
 
 to a parol inquiry, and the policy is, by the 
 articles of the insurance office, to be void on 
 false answers being given to certain . written 
 inquries ; therefore, where a party, going to in- 
 sure her life for two years, gave false answers 
 to verbal inquiries whether she had effected 
 
 similar insurances at other offices, held that the 
 
 « 
 
 policy was thereby avoided.i 
 5. Misrepresentation as to Medical Attendant. 
 
 It is a general rule of the insurance compa- 
 nies, to require a reference to the medical 
 attendant of the party, in order to consult him 
 with regard to the health, constitution, &c, of 
 the applicant. If the true one is not stated, or 
 there is any misrepresentation in regard thereto, 
 the policy may be avoided. Several cases have 
 occurred, where the underwriters have been 
 released, on the ground of an improper or in- 
 sufficient reference. 
 
 Thus, in Maynard vs. Rhodes,* the policy 
 was avoided on the ground that there was a 
 
 ' Wainwright vs. Bland, 1 Mees & Wels., 32. 1 M. & Rob., 481. 
 1 Gale, 406. 
 k Maynard vs. Rhodes, 1 Carr. & P., 360. 
 
124 LIFE ASSURANCE. 
 
 misrepresentation with regard to the medical 
 attendant of the insured. It was proved that 
 the office, previous to the execution of the 
 policy, sent a number of printed questions to 
 the insured (Col. Lyon) for him to answer, 
 among Which were the two following : " Who 
 is your medical attendant?" To which Col. 
 Lyon answered, " I have none except Mr. Guy 
 of Chichester." And, " Have you ever had a 
 serious illness ?" To this he answered, "Never !" 
 Mr. Guy was referred to, and he gave it as his 
 opinion that Col. Lyon was an insurable life. 
 But it was proved that Mr. Guy had not been 
 called on to attend him for three years previous 
 to his giving his certificate ; but that in the 
 year 1823 Col. Lyon was attended from the 
 month of February to the month of April, by 
 Dr. Veitch, a physician, and Mr. Jordan, a sur- 
 geon, for an inflammation of the liver and a 
 fever and determination of blood to the head. 
 The former of these gentlemen proved that he 
 considered him to be in a dangerous way, and 
 that he prescribed active medicines, and ordered 
 him sometimes sixteen leeches a day, and that 
 he would not have certified him to be in health, 
 
MISREPRESENTATION. 125 
 
 till the end of the month of May. It was, 
 however, agreed on all hands, that the disease 
 of which he died had no relation to any of the 
 complaints for which these gentlemen attended 
 him. Abbot, C. J., said, "The question is, whether 
 any willful misrepresentation or suppression of 
 the truth took place on the part of Col. Lyon 
 to induce the office to effect these policies ; and 
 the jury must consider whether the reference to 
 Mr. Guy, when he was daily attended by a 
 physician and surgeon in town,, was intended to 
 prevent a disclosure of his real state of health ; 
 for if he referred to Mr. Guy because he would 
 speak well of his health, and thought that if he 
 referred to the other medical men they would 
 not so certify, though he did not die of the disease 
 he was then afflicted with, I am clearly of opin- 
 ion that the defendant is entitled to recover ; 
 and if the reference was made to Mr. Guy 
 because he did not know the Colonel's latter 
 state of health, this is such a misrepresentation 
 as will avoid the policy ; and though the party 
 here was an annuity creditor of Col. Lyon, yet 
 if he allowed the Colonel to make these repre- 
 
126 LIFE ASSURANCE. 
 
 sentations when the policy was effected, he is 
 bound by them ; and however hard it may be 
 on the plaintiff, the rules of law must be 
 adhered to. Verdict was given for the de- 
 fendant. 
 
 And where a female, upon whose life it was 
 proposed to effect an insurance, was represented 
 to the underwriters in December, 1822, by A, a 
 medical man, as enjoying ordinarily a good state 
 of health, and the same representation was 
 repeated by A, in March, and the insurance 
 was effected in April, 1823, and between De- 
 cember, 1822, and March, 1823, she had been ill 
 with a pulmonary attack and was attended by 
 B, but no disclosure of these circumstances 
 was made to the insurers : Held, on motion for 
 a new trial, that the jury ought to have been 
 called on to consider whether the illness in 
 1823 and the attendance of B, ought to have 
 been disclosed to the insurers, and that it was 
 not sufficient to direct them, generally, to con- 
 sider whether or not there had been any 
 misrepresentation. In the above case, Chief 
 Justice Best said, "Whether or not it was 
 
MISREPRESENTATION. 127 
 
 material for the defendants to have been made 
 acquainted with the fact, which has been with- 
 held from their knowledge, is a question for the 
 jury. It is probable, however, it would be 
 esteemed material, because all insurance offices 
 are desirous to consult with the medical man 
 who has been last in attendance on the life 
 insured. I think, therefore, there should be a 
 new trial, on the payment of costs, as the at- 
 tendance of Bland on Mrs. Elgie was not 
 disclosed to the insurers." 
 
 Burroughs, J. : "Advantage ought not to be 
 taken of the omission of trifling circumstances, 
 but the attendance of Bland on Mrs. Elgie 
 ought to have been brought to the attention Of 
 the jury to decide whether or not it ought to 
 have been disclosed to the defendants." 1 
 
 6, Meaning of the Phrase, "Usual Medical At- 
 tendant." 
 
 The phrase, "usual medical attendant," means 
 the person who is best acquainted, by ex- 
 perience, with the constitution of the individual, 
 
 1 Morrison vs. Muspratt, 4 Bing, 60. 
 
128 LIFE ASSURANCE. 
 
 and, therefore, if a person has been attended by 
 a medical man for several years in serious 
 disorders, and afterwards takes another, who 
 has only seen him once or twice, the giving the 
 name of the latter as his usual medical at- 
 tendant, without mentioning the circumstances 
 under which he was attended by the others, is 
 a wrong answer and will vitiate the policy.™ 
 
 Again, in Everett vs. Desborough," where a 
 reference was required to the usual medical 
 attendant of the party, and the insured referred 
 to a person who, although having known him 
 from his birth, had never attended him, and said 
 nothing of a person who had attended him of 
 late years, held that the policy was avoided. 
 
 From the cases cited in this chapter, we 
 therefore conclude, that the principle on which 
 all misrepresentations, and the reason why they 
 should vitiate the policy, rests, is, that the minds • 
 of the parties have not met, in the manner they 
 intended at the time of making the contract. 
 The assurer, determining to assure the risk on 
 
 " Huckman vs. Fernie, 3 Mees & Wels, 505. 1 Horn. & H., 149. 
 ' Everett vs. Desborough, 5 Bing., 503. 
 
MISREPRESENTATION. 129 
 
 a representation of facts which is untrue, and 
 which, if it had been truly stated, would have 
 affected his mind, as to assuming the risk at 
 all, or at what rate. It is therefore evident, 
 that it is immaterial, whether the misrepre- 
 sentation arose through neglect, accident, or 
 fraud, or whether made by the assured himself, 
 by his agent, or by any one concerned in his 
 behalf in effecting the assurance ; and though 
 the assured should die from some other cause, 
 not in the least connected with the fact mis- 
 represented, yet this is no evidence that the 
 fact misrepresented did not affect his mind in 
 entering into the contract. 
 
 The fact misrepresented must, however, be 
 material to the risk, otherwise it will be pre- 
 sumed to have had no effect on the assurer in 
 determining on the risk, and this is exclusively 
 a question for a jury. But when the fact 
 misrepresented is found to have been material, 
 it will then be presumed, that the assurer would 
 not have entered into the contract had the fact 
 been truly stated, and therefore, without going 
 further, the policy is thereby vitiated. 
 17 
 
130 LIFE ASSURANCE. 
 
 7. Misrepresentation by the Assurer. 
 
 The underwriter, equally with the insured, is 
 required to act in good faith, and not be guilty 
 of misrepresentation, and an action on the case 
 lies for false representations of the affairs of an 
 insurance company, whereby the party is in- 
 duced to effect an insurance with the company, 
 although no actual pecuniary damage has been 
 sustained beyond the payment of premiums." 
 
 " Pontifex vs. Bignold, 3 Mann & Grang., 63. 
 
CHAPTER VII. 
 
 CONCEALMENT. 
 
 1. Concealment in general, its effect. 
 
 2. What things need not be disclosed. 
 
 3. Materiality of a fact concealed, a question for a jury. 
 
 4. As to facts not within the knowledge of the insured. 
 
 5. Concealment of intemperate habits. 
 
 1. Concealment in General, its Effect. 
 
 Concealment is the withholding of any fact 
 within the knowledge of the assured at the 
 time of effecting the assurance, which would 
 affect the mind of the assurer so as to induce 
 him the more readily to assume the risk or to 
 take it at a less premium. 
 
 The same remarks may be applied to 
 concealment, as were made with regard to 
 misrepresentation; the former will, like the 
 latter, vitiate a policy only where the fact is 
 material. 
 
132 LIFE ASSURANCE. 
 
 The general principle of the law of conceal- 
 ment, and the reasons why it should avoid a 
 policy, are clearly laid down by Lord Mansfield 
 in the case of Carter vs. Boehm, a and are 
 sound law to the present day. In that case, 
 he says : " It may be proper to say something 
 in general of concealments which avoid a policy. 
 The special facts upon which the contingent 
 chance is to be computed, lie most commonly in 
 the knowledge of the insured only ; the under- 
 writer trusts to his representation, and proceeds 
 upon confidence that he does not keep back any 
 circumstance in his knowledge to mislead the 
 underwriter into a belief that the circumstance 
 does not exist, and to induce him to estimate 
 the risk as if it did not exist. The keeping 
 back such circumstance is a fraud, and there- 
 fore the policy i s void. Although the supression 
 should happen through mistake, without any 
 fraudulent intention, yet still the underwriter 
 is deceived and the policy is void, because 
 the risk run is really different from the risk 
 understood and intended to be ran at the time 
 
 ' 3 Burr, 1905. 
 
CONCEALMENT. 133 
 
 of the agreement. Good faith forbids either 
 party, by concealing what he privately knows, 
 to draw the other into a bargain from his 
 ignorance of that fact, and his believing the 
 contrary." 
 
 r 2, What Things need not be Disclosed. 
 
 Lord Mansfield further says in the same 
 case : " There are many matters as to which 
 the insured may be innocently silent ; he need 
 not mention what the underwriter knows, 
 scientia utrinquepar pares contrahentes facit." 
 "The insured need not mention what the 
 underwriter ought to know, what he takes 
 upon himself the knowledge of, or what he 
 waives being informed of." 
 
 By the above, as applicable to life assurance, 
 is to be understood that the insured need not 
 mention the nature or effect of any particular 
 disease, with which he may be or has been 
 afflicted, for this is a matter the insurer ought 
 to know, or takes upon himself the knowledge 
 of ; nor need he mention the effect of different 
 climates, trades, occupations, or courses of 
 
134 LIFE ASSURANCE. 
 
 living, for these are grounds open to both, to 
 exercise their judgment upon. 
 
 It is the custom of many insurance compa- 
 nies to ask the applicant for insurance, such 
 questions as the following: Of what age is 
 your father, mother, brothers, and sisters ? Or, 
 if dead, at what age did they die? And, of 
 what disease did they die? Now such facts 
 as the above questions would elicit, would come 
 ordinarily under the last head ; and if not 
 inquired about by the insurer may be considered 
 as waived. We say, ordinarily, for there might 
 be a case, where it would, perhaps, be con- 
 sidered fraudulent to withhold such facts, as 
 where the parents and relations of the appli- 
 cant had all, or mostly, died extremely young, 
 or had died of some hereditary disease, as 
 consumption or scrofula. b 
 
 " There has appeared in the February number of the American 
 Law Register for 1853, the following English case on this sub- 
 ject. Duff and others (directors of the Commercial and General 
 Life Assurance Company) vs. Gant, in which an important 
 decision was given by the judges, as to the obligation of a party 
 assuring his life, to disclose material facts, respecting which he 
 may not be questioned. On the trial it was proved that the de- 
 
CONCEALMENT. 135 
 
 The rule laid down by Mr. Dunning, in his 
 argument of this case, seems the most clear 
 and concise, viz: "That the insured is only 
 obliged to discover facts, not the ideas or specu- 
 lations which he may entertain upon such facts." 
 
 Thus, one must state the fact of his having, 
 or having had any disease, but need not state 
 his opinion of its effect on the duration of life ; 
 and should he have resided in any country, 
 it is sufficient to mention the fact, and it is no 
 concealment, if he does not inform the insurer 
 what his ideas or speculations are, with regard 
 to its effect on the constitution ; for these are 
 "grounds, open to both, to exercise their 
 judgment upon." 
 
 ceased's mother and brother had died insane and that the assured 
 knew such fact on effecting the policy. The question proposed 
 by the office was: "If aware of any disorder or circumstance 
 tending to shorten life, or to make an assurance more than 
 usually hazardous." For answer to this the deceased had writ- 
 ten " Don't know any." The counsel for the office, on moving 
 for a new trial on the ground of misdirection, contended that it 
 was material that the deceased should bare communicated to the 
 office the manner in which his relations died. The Lord Chief 
 Baron held, it was not necessary that a man should voluntarily 
 state the circumstances attending the death of his relations. 
 
136 LIFE ASSURANCE. 
 
 f 
 
 3. Materiality of Fact concealed, a Question 
 for a Jury. 
 
 That the assured did not consider a fact 
 material, will not excuse the concealment of a 
 material fact ; and whether the fact is material 
 or not, is a question for a jury. 
 
 Thus, in Von Lindenau vs. Desborough, c which 
 was an action on a life policy, it was held, that 
 if the insured, at the time of effecting the 
 policy, conceals any thing which it is material 
 for the insurer to know, the policy is void ; and 
 it makes no difference whether the insured 
 considered it material or not, and what amounts 
 to a misrepresentation, or to a material con- 
 cealment, is a question for the jury. The fact, 
 that on a life policy, an unusually high premium 
 was paid, is quite immaterial ; and is, therefore, 
 not to be taken as proof that the office consid- 
 ered the policy as bad. Thesame principle was 
 held in the case of Curry vs. The Commonwealth 
 Insurance Company;" 1 and where a declaration 
 
 c 3 Carr. & P., N. P., 353. 8 Barn. & Cres., 586. 
 d 10 Pick. R., 535. 
 
CONCEALMENT. 137 
 
 stated the assured to be a resident of a place, 
 and the assured, although a resident of that 
 place, was in the count} 7 jail there, held, that 
 it was a question for the jury, whether the 
 imprisonment was a material fact, and ought 
 to have been communicated. e 
 
 4. As to Facts not within the Knowledge of 
 the Assured. 
 
 Will the non-communication of a material 
 fact, unknown to the assured, vitiate a policy, 
 for concealment ? 
 
 Upon the general principle, gathered from 
 decisions and dicta in various cases, it may 
 be safely laid down, that, although the fact 
 withheld be material, still if it was not in the 
 knowledge of the insured, and, therefore, in- 
 capable of being communicated by him, the 
 policy will not be avoided ; thus we find in 
 Carter vs. Boehm/ Lord Mansfield says : "The 
 underwriter proceeds upon confidence, that he 
 
 ' Huguenin vs. Rayley, 6 Taunt., 186. 
 
 ' 3 Burr., 1905. 
 
 18 
 
138 LIFE ASSURANCE. 
 
 does not keep back any circumstance, in his 
 knowledge, to mislead the underwriter," &c: 
 Again, "good faith forbids either party, by 
 concealing what he privately knows, to draw the 
 other into a bargain," &c. In Biays vs. The 
 Union Insurance Company,« it was held, that 
 it is the duty of the insured to represent truly 
 to the underwriter every fact' within his know- 
 ledge, or power, material to the risk, and if he 
 omits to do so, the policy is void. If he com- 
 municated all the information he has obtained; 
 he can not be charged with misrepresentation 
 or concealment, if it should afterwards turn 
 out, that his informant knew more than he had 
 disclosed, or had not stated it truly. 
 
 In Arnauld on Insurance, 11 an excellent work 
 on marine insurance, concealment is thus de- 
 fined : " Concealment, in the law of insurance, 
 is the suppression of a material fact, within 
 the knowledge of either party, which the other 
 has not the means of knowing oris not pre- 
 sumed to know." In all the above quotations., 
 
 * 1 Wash. Cir. C. R., 506. 
 " Second ed., with notes by J. C. Perkins, Boston, 1850i 
 
CONCEALMENT. 139 
 
 it will be seen that the knowledge of the fact 
 by the party, enters as an important part and 
 exception to the general rule. Further, the 
 insured, save in case of a warranty, is never 
 required to be or to have been perfectly free 
 from disease. The insurer necessarily must 
 take the risk upon himself, and all that can be 
 required of the insured, and all he should be 
 responsible for, is to use good faith and caution 
 in making the contract, not to withhold any 
 thing he knows. That the policy should be void 
 where the insured, although acting in good 
 faith, conceals a material fact, by accident or 
 mistake, or because he did not consider it 
 material, is just; for here he knows the fact 
 and has been guilty of negligence : but is it 
 just to avoid a policy on the ground that a 
 material fact has been withheld, where the fact 
 was unknown to the insured, and could not 
 therefore have been communicated by him ? 
 
 In Swete vs. Fairlie, 1 it was held that a 
 policy of insurance on the life of another per- 
 son, who at the time of the insurance is in a 
 
 j 6 Carr. & P., 1. 
 
140 LIFE ASSURANCE. 
 
 good state of health, is not vitiated by the non- 
 communication by such person of the fact of 
 his having a few years before been afflicted with 
 a disorder, tending to shorten life, if it appear 
 that the disorder was of such a character as to 
 prevent the party being conscious of what had 
 happened to him while suffering under it. 
 
 It appears from a case cited by Mr. Ellis J 
 that the circumstance of a single woman having 
 had a child two or three years before the insur- 
 ance upon her life was effected, within the 
 knowledge of the party effecting it, may be 
 under circumstances a material fact, which he 
 ought not to conceal. 
 
 A policy obtained for the purpose of enabling 
 the insured to commit a crime is void, but 
 where one honestly effects an insurance on his 
 life, with no such intention, the policy will not 
 be vitiated by his immoral conduct afterwards. 
 
 Thus, in Lord vs. Dall, k which was an action 
 on a policy of insurance made for five thousand 
 dollars in favor of the plaintiff upon the life of 
 
 ' Ellis on Life Assurance, p. 115. 
 " 12 Mass., 115. 
 
CONCEALMENT. 141 
 
 Jabez Lord her brother, aged thirty-three, bound 
 on a voyage to South America, or any other 
 place he might proceed to, from Boston, com- 
 mencing the risk on the 16th December, 1809, 
 at noon, and to continue until the 16th of July, 
 1810, at noon. It was proved on the trial that 
 the said Jabez had died on the coast of Africa 
 and within the time in the policy. It was 
 also proved that Jabez sailed from Boston after 
 the making of the policy to Fayal as super- 
 cargo of a vessel called the Mt JStna, at which 
 place she was converted into a Portuguese 
 vessel called the Vincidero, still belonging to the 
 former owners, but sailing with Portuguese 
 papers and under Portuguese colors. From 
 Fayal the vessel sailed to Madeira and from 
 thence to the coast of Africa for the purpose of 
 procuring slaves, with intention to carry them 
 to South America, the said Jabez acting as 
 supercargo and having purchased some of the 
 slaves himself. Among the objections made at 
 the trial to the plaintiffs recovery were the 
 following: "That there was a concealment of 
 the intention of the said Jabez to go to the 
 
142 LIFE ASSURANCE. 
 
 coast of Africa." And, also, " That the policy 
 was void, it being to secure the life of the said 
 Jabez while in the execution of an unlawful 
 enterprise." It was not made certain whether 
 the said Jabez originally designed to go to the 
 coast of Africa, or whether that voyage was 
 conceived after the vessel left Boston, and the 
 jury were directed that if they were satisfied 
 there was such concealment, to find for the 
 defendants. The jury found there was no 
 concealment. The last objection then re- 
 mained, upon which, Chief Justice Parker, 
 delivering the opinion of the court, said : "It 
 is sufficient answer to this objection, that 
 whatever the law may be as to an insurance 
 upon an illicit voyage, between the parties to 
 the contract, the present plaintiff being ignorant 
 of any intended violation of the law, ought not 
 to be affected by such illegality. Had the 
 policy been effected for Jabez Lord^ himself, it 
 might be a question, whether, as the under- 
 writers had excepted no particular employment 
 in which he might be engaged, and no cause of 
 death but suicide and forfeiture of life for 
 
CONCEALMENT. 143 
 
 crime, whether his engagement in any traffic, 
 prohibited by law, would have discharged their 
 liability. If it would, it must be only because 
 it might be thought just and legal to discourage 
 contracts which might tend to uphold enter- 
 prises forbidden by the law. It would be 
 difficult, however, to maintain that the exe- 
 cutors of a man, whose life was insured for the 
 benefit of his children, should be deprived of 
 their right to enforce the contract, because he 
 had pursued a course of smuggling or counter- 
 feiting, neither of these acts being excepted in 
 the policy, and the party having died within 
 the time, from a cause which was clearly at 
 the risk of the underwriters. A policy made 
 for the purpose of enabling a man to commit 
 crimes, would undoubtedly be void ; but one 
 honestly made would seem not to be affected 
 by the moral conduct of the party who had 
 procured it." 
 
 5. Concealment of Intemperate Habits, 
 
 Will the fact that a man has intemperate 
 habits, vitiate a policy, where there is no clause 
 
144 LIFE ASSURANCE. 
 
 to that effect, as being a concealment of a mate- 
 rial fact? 
 
 It may be said, that mere intemperate habits 
 will not vitiate a policy, unless carried to such 
 an excess as to tend to shorten life; and, that 
 in each case, it will be a question for a jury, 
 whether they have been carried to such an 
 excess; because, if they do not have that 
 tendency, they can not well be material. 
 
 It has, however, been laid down in a late 
 work, 1 that, "if the applicant is addicted to 
 habits of intemperance, that fact should not be 
 concealed from the insurers," and that, "in two 
 cases, the actions were defeated upon the 
 ground, that the knowledge of such habits had 
 been withheld, although the health of the indi- 
 viduals was, at the time, apparently, good." 
 
 We, however, do not consider that the cases 
 referred to support the above inferences. 
 
 In the case of Aveson vs. Lord Kinnaird," 1 
 referred to by Dean, the action was brought on 
 a policy, where the insured was warranted in 
 
 1 Dean's Medical Jurisprudence, p. 633. 
 
 " 6 East, 188. 
 
CONCEALMENT. 145 
 
 good health, and the case, as left to the jury, was 
 not, whether the mere fact of intemperance was 
 material, but, ''whether from the evidence of 
 Mrs. Aveson's habit of excessive drinking, as 
 proved by the defendants' witnesses, they were 
 satisfied, that at the time of the insurance,, the 
 mischief was actually done, and her constitution 
 then radically impaired, so as not to be a good life, 
 within the meaning of the warranty; and the 
 jury, being of that opinion, found a verdict for 
 the defendants. The verdict, in this case, was, 
 therefore, given, not on the ground that the 
 insured had intemperate habits, but, that these 
 Jmbits had been carried to such an excess, that 
 the constitution of the insured was materially 
 impaired, so as not to be a good life within the 
 meaning of the warranty; and the very leaving 
 of the case in this shape to the jury, 'gives 
 rise to the natural inference, that if the habits 
 had not been carried, to such a degree as to 
 impair the health of the insured, the fact would 
 not be material. 
 And in Everett Vs. Desborough," the second 
 
 " 5 Bing., 503. 
 19 
 
146 LIFE ASSURANCE. 
 
 case referred to, we find, that although, on 
 the part of the office, it was proved that the 
 insured, when he resided at Bath, had been 
 wont, occasionally, to indulge in extraordinary 
 fits or bouts of intoxication, and that at these 
 times he would be drunk day and night, inces- 
 santly, for ten days, a fortnight, and even three 
 weeks, swallowing any thing and every thing 
 that came in his way ; and, although on the 
 part of the office it was contended, that these 
 bouts of intoxication were a material circumstance, 
 the non-disclosure of which^ avoided the policy; 
 still, the jury found that House was an insur- 
 able life, and that there was no concealment 
 of any material, circumstance. 
 
 And when a rule, nisi, was obtained to set 
 aside this verdict, and enter a nonsuit instead, 
 upon the grounds urged at the trial, no notice 
 is taken of the ground of intemperance, by any 
 of the four judges who gave decisions in the 
 case, save by Chief Justice Best, who merely 
 said, "without discussing the question whether 
 habits of inveterate drunkennessh&ve a tendency to 
 produce disease or not, we may stop short here, 
 
CONCEALMENT. 147 
 
 and say, you have not referred to the medical 
 attendant as you were required to do;" so 
 that the nonsuit was granted, on the ground 
 that the insured had not referred to the medical 
 attendant as he was required to do. 
 
 It is a general rule, however, of the insurance 
 companies of the present day, to require, that 
 the insured shall be of temperate habits ; and 
 clauses to that effect are now usually, if not 
 universally, inserted in policies. In such a 
 case, therefore, as decided in Southcomb vs. 
 Merriman, p it will only be necessary to show 
 that the insured has intemperate habits, and , 
 not that the habits were carried to such an 
 excess, as to impair the health of the party.ii 
 
 Neither of these cases, therefore, appear to contradict the 
 proposition made by us, but would, from the expression used, 
 seem rather to support it. 
 
 ' 1 Carr. & M., N. P., 286. 
 
 q There is also a clause, now usually inserted in policies, that 
 if the insured shall become addicted to intemperance, the policy 
 shall be void. 
 
 Where there is no clause to that effect, as to future conduct, 
 could the policy be avoided on that ground? Would not the 
 only remedy for the insurers be, to refuse to renew the policy? 
 We have no case in our mind, touching this point, and therefore 
 can only leave it as a question which is yet to be decided. 
 
CHAPTER VIII. 
 
 OF THE ASSIGNMENT OF POLICIES. 
 
 1. Of the legality of assignments. 
 
 2. Of notice to the assurers of the assignment. 
 
 1. Of the Legality of Assignments. 
 
 In marine insurance, custom has sanctioned 
 the transferability of policies to a much greater 
 extent than in fire or life insurance. In 
 England, under the statute 14 Geo. Ill, c. 48, 
 requiring an interest in the life insured, much 
 discussion has arisen as to whether a life policy 
 can legally be assigned even for a valuable 
 consideration, so as to entitle the assignee to 
 bring an action upon it against the assurer. . 
 Mr. Farren a insists that a man can not legally 
 dispose of his policy to a stranger, that the 
 law would not aid the assignee in his claim on 
 
 ' Farren on Life Assurance, 25. 
 
150 LIFE ASSURANCE. 
 
 such assignment and the payment of the money 
 on a policy so transferred is entirely at the dis- 
 cretion of the directors. Mr. Blaney, b on the 
 other hand, considers the opinion of Mr. Farren 
 as merely speculative, and can not conceive 
 how any authority referred to by him, can bear 
 him out in such assertion ; that "if a policy is 
 valid in its origin, it can not be invalid in the 
 hands of an assignee under a bona fide pur- 
 chase." 
 
 In Ashley vs. Ashley, , it was decided, that a 
 purchaser for a valuable consideration is en- 
 titled to stand in the place of the original 
 assignor, so as to bring an action in his name 
 for the sum assured. Mr. Ellis, d in comment- 
 ing on this case, says : " The effect of this 
 decision, however, is not such as can prevent 
 questions being raised between the assignee 
 and the. office; it merely decides his right to 
 . bring an action." There is, however, a strong 
 obiter dictum in this case going to the extent, 
 
 b Blaney on Life Assurance, 75. 
 c 3 Sim. Chan. R., 149. 
 Ellis on Life Assurance and Annuities, p. 143. 
 
ASSIGNMENT OF POLICIES. 151 
 
 that the assignee could recover of the assurer. 
 The Yice Chancellor says: " Unless this trans- 
 action is affected by the act of parliament, no 
 objection can be made to it. By the 14th 
 Geo. Ill, c. 48, it is enacted, &c." (His Honor 
 here read the three first sections of 14th Geo. 
 Ill, c. 48.) " Now there is not a word said here, 
 as to the assignment of policies; this policy 
 was good at the time it was effected. By an 
 instrument of the 10th of March, 1810, an 
 assignment of it was made, and subsequently 
 the parties, who had become entitled to, the 
 policy, sold it for a valuable consideration, 
 under a decree of the court, so that some 
 person became entitled to bring an action on 
 the policy, in the name of the assured, and 
 if stick an action had been brought, there is not a 
 word in the act of parliament to defeat it." 
 
 In this country, at least in the states to 
 which life assurance is, at the present, almost 
 exclusively confined, there is no statute restrict- 
 ing the assignability of life policies ; the Only 
 statutes which appear to have any bearing on 
 the subject, are those which have been enacted 
 
152 LIFE ASSURANCE. 
 
 .against gaming and wagering, e and although 
 these might be construed, to apply to the form- 
 ation of the contract, •_ yet can no more than 
 the statute of George III, as stated by the 
 Vice Chancellor in his decision in the case of 
 Ashley vs. Ashley (3 Sim. Chan. Rep., 149) be 
 extended to the , assignability of life policies, 
 when once legally made. 
 
 Life policies, unlike fire or marine, after 
 having run some time, have an inherent value 
 which increases with their age, and there is no 
 reason of justice or public policy which should 
 restrain their negotiability any more than that 
 of many other species of property. 
 
 The rule of public policy as to their forma- 
 tion does not apply to the bona fide transfer, 
 for a valuable consideration, of the contract 
 when, once legally made. It is true that where 
 one person induces another to effect an assur- 
 ance, intending by assignment or otherwise to 
 obtain the benefit of it himself, such assignment 
 might doubtless be considered a fraudulent 
 evasion of the rule, and therefore void; f but 
 
 " N. Y. Rev. Stat., vol. I, chap. xx,tit.8, art. 3, §8, 9, 10. 
 ' Wainwright vs. Bland, 1 Moody & R., 481. 
 
ASSIGNMENT OF POLICIES. 153 
 
 where an assurance is effected in good faith 
 and afterwards assigned, bona fide, for a valua- 
 ble consideration, there appears to be no rule 
 of law or of public policy, which would author- 
 ise the claims of such an assignee to be 
 defeated. The practice of assigning policies is 
 quite common, and as cases in which life 
 policies have been assigned, have frequently- 
 been before the courts on other points, without 
 a remark being dropped as to their invalidity, 
 an opinion favorable to their validity may 
 reasonably be inferred. Thus, in Cook vs. 
 Blacky a debtor effected an assurance on his 
 life, one condition of the policy being, that if it 
 should be assigned bona fide, the assignee 
 should have the benefit of it, so far as his 
 interest extended, notwithstanding the assured 
 should commit suicide. He deposited the policy 
 with his creditor, accompanied by a letter pro- 
 mising to assign it to him when requested, as a 
 security for his debt. No notice of the assign- 
 ment was given to the assurers. The debtor 
 
 E 1 How., 390. 6 Jur., 164. 
 20 
 
154 LIFE ASSURANCE. 
 
 committed suicide ; held, that inasmuch as the 
 deposit of the policy and the agreement to 
 assign it, by way of security for a debt, con- 
 stituted in equity a valid assignment as 
 between the parties to the transaction, it was 
 also an effectual assignment within the condition 
 as against the assurers. 
 
 And where, upon a settlement of a wife's 
 property, to the intent of making provision for 
 the husband if he survived her, it was provided 
 that the trustees should pay out of the trust 
 fund the premiums of a policy of a stated 
 amount on the life of the wife, and, on the prin- 
 cipal becoming payable, invest the amount, and 
 pay the interest to the .husband for life, and 
 afterwards pay the principal as the wife should 
 appoint, or, in default of appointment, to the 
 persons entitled under the statute of distribu- 
 tions ; the wife having survived, and being 
 unwilling to continue the payment of the pre- 
 mium, assigned the policy to a cousin, who 
 paid the premiums, and his representative 
 afterwards, who, on the death of the wife, 
 received the amount of the policy ; held, that 
 
ASSIGNMENT OF POLICIES. 155 
 
 such assignment was valid, and the assignee 
 entitled to the benefit thereof. 11 
 
 Where a creditor insures the life of his 
 debtor and afterwards assigns the policy and 
 subsequently the debt is paid, the assignee 
 loses the benefit of the assurance, for the 
 payment of the debt releases the assurers. 
 
 Where, however, a debtor insures his own 
 life and assigns the policy to his creditor as a 
 security for his debt, on the payment of the 
 debt, the debtor or his representatives will be 
 entitled to the benefits of the assurance. 
 
 2. Of Notice to the Assurers of the Assignment. 
 
 In fire insurance, when the title or interest 
 in the property insured changes, the policy 
 becomes void; the benefits of the policy are, 
 however, continued to the assignee of the 
 property, on assignment of the policy to the 
 person interested, with the consent of the 
 company. 
 
 There appear to have been no adjudications 
 
 * Godsal vs. Webb, 2 Keene Ch. R., 99. 
 
156 LIFE ASSURANCE. 
 
 on this subject, arising on life policies, and, 
 therefore, no settled rule can be laid down in 
 regard thereto. 
 
 There is one great distinction, however, be- 
 tween fire and life policies, arising from the 
 nature of the subject insured: a house is as 
 insurable at the end of ten years, as at the end 
 of one, and, surrounding circumstances remain- 
 ing the same, would be taken at the same rate ; 
 but the risk on a man's life varies with his age 
 and health, and the premium consequently 
 varies ; again, the past time of a fire policy is of 
 no benefit to any one, while on a life policy, the 
 pecuniary value increases with the age. The 
 free assignability, or sale of life policies, is, 
 consequently, a great inducement to this species 
 of insurance. 
 
 Again, the interest in the subject insured in 
 a life policy, never changes, except in the single 
 case of a creditor insuring the life of his debtor; 
 there is, consequently, no necessity, except in 
 such a case, of notice to the assurers of the 
 assignment, and in point of fact this is seldom 
 if ever required, most life policies containing 
 
ASSIGNMENT OF POLICIES. 157 
 
 a clause that the policy may be assigned 
 without notice. 
 
 In case of the assignment by a creditor of a 
 policy on the life of his debtor, the debt should 
 also be assigned , and the assignee, for his own 
 protection, should give notice to the debtor of 
 the assignment. 
 
 It would be advisable, also, for the assignee, 
 in all cases, to give notice to the assurers, so 
 that in case of the policy falling due, he may 
 the more readily secure to himself the sum 
 secured. 
 
 The English authorities, cited in Ellis on 
 Insurance, with regard to notice being given to 
 the assurers of the assignment, appear all to 
 arise under their statutes of bankruptcy ; and 
 there being no such statutes in this country, 
 it has not been thought necessary to refer to 
 them. 
 
CHAPTER IX. 
 
 OF THE RETURN OF PREMIUM. 
 
 1. Where there is a clause in the policy in reference thereto. 
 
 2. Where there is no clause in the policy. 
 
 1. Where there is a Clause in the Policy in 
 reference thereto. 
 
 It is now customary for the assurers to insert 
 in life policies, a clause to the effect, that in 
 every case where the policy shall cease or 
 become null and void, all premiums that have 
 been paid thereon shall be forfeited to the 
 company. 
 
 In all such cases, according to the terms of 
 the agreement, all premiums that have been 
 paid are absolutely lost to the assured. 
 
 This clause is of course only applicable to 
 the case of the policy becoming void through 
 some act, whether negligent or fraudulent, on 
 
160 LIFE ASSURANCE. 
 
 the part of the assured, and not to a case of 
 fraud on the part of the assurers. 
 
 In Duckett vs. Williams, 4 an action was 
 brought to recover back the premiums paid on 
 a policy which had been declared void for mis- 
 representation, and in which there was a clause 
 that if the facts required to be set forth, were 
 not truly stated, all moneys paid thereon should 
 be forfeited. The plaintiffs contended that the 
 words must mean truly or untruly within the 
 knowledge of the party making the statement, 
 and that if the assured ignorantly and inno- 
 cently makes a misstatement, he is hot to 
 forfeit the premium under the clause of the 
 agreement ; but the court held that was not 
 the true meaning of the words, that the 
 knowledge of the party was immaterial, and 
 directed a nonsuit. 
 
 2. Where there is no Clause in the Policy. 
 
 Where no provision is made in a policy as 
 to the return of premiums, the case would have 
 to be governed by the general principles of 
 
 »4Tyr. 240. 2 Carr. & Marsh., 348. 
 
RETURN OF PREMIUM. 161 
 
 insurance, for few, if any cases, other than the 
 one before cited, have arisen on life policies. 
 
 On a life policy, the risk is always entire, 
 and by the general law of insurance, as laid 
 down by Lord Mansfield, where the risk is 
 entire, and has once commenced, there shall be 
 no return of premium. If, therefore, the 
 assured should die or commit suicide the next 
 day, there would be no return of premium, 1 * but 
 where the risk has not commenced the premium 
 may be recovered back ; for Lord Mansfield, in 
 the case of Tyrie vs. Fletcher, laid it down as 
 a general principle of insurance: ;< That where 
 the risk has not been run, whether its not 
 having been run, was owing to the fault, plea- 
 sure or will of the assured, or to any other 
 cause, the premium shall be returned ; because, 
 a policy of insurance is a contract of indem- 
 nity; the underwriter receives a premium for 
 running the risk of indemnifying the insured, 
 and, whatever cause it be owing to, if he does 
 
 b Dicta of Lord Mansfield in the case of Tyrie vs. Fletcher, 
 Cowp., 669; and Bermon vs. Woodbridge, Doug., 758. 
 
 c Cowp. 669. 
 
 2 1 
 
162 LIFE ASSURANCE. 
 
 not run the risk, the consideration for which 
 the premium or money was put into his hands 
 fails and therefore he ought to return it." If 
 then the general law of insurance is applicable 
 to life policies, and there appears no reason 
 why it should not be, there may be many cases 
 in which a return of premium might be insisted 
 upon. 
 
 Where a policy is void from want of interest,* 1 
 or from the breach of an affirmative warranty, 
 from misrepresentation or concealment, the risk 
 can not be considered as having ever had 
 inception ; for where the assurer, from any of 
 these causes, is not bound to pay the amount 
 of the policy, on the happening of the event 
 assured against, he can not be considered as 
 having undertaken any risk. Where there has 
 been fraud on the part of the assured, although 
 the assurer can not be considered to have 
 undertaken any risk, he not being liable to pay 
 the amount, still, on another principle, the 
 courts have declared that the premium shall 
 be retained. 
 
 d Routh vs. Thompson, 11 East, 435. 
 
RETURN OF PREMIUM. 163 
 
 Where the policy becomes void from the 
 breach of a promissory warranty, as where the 
 assured, contrary to the terms of the agreement, 
 visits the places, or goes beyond the limits 
 stated in the policy, or is engaged in the occu- 
 pations prohibited by the policy, or becomes 
 addicted to habits of intemperance contrary 
 to the agreement, in all such cases the assurers 
 would, doubtless, be entitled to retain the pre- 
 mium, as the risk has actually commenced, and 
 been undergone, from the date of the policy to 
 the time of the breach. 
 
 A return of premium may, therefore, be 
 insisted on in the following cases : 
 
 Whenever the policy is void for want of 
 interest. e v 
 
 Whenever the policy is void for misrepre- 
 sentation, without fraud on the part of the 
 assured/ 
 
 Whenever the policy is void for concealment, 
 without fraud on the part of the assured.* 
 
 * Routh vs. Thompson, 11 East, 435. 
 ' Feise vs. Parkinson, 4 Taunt., 640. 
 1 Tyler vs. Home, Park., 3 ed., 218. 
 
164 LIFE ASSURANCE. 
 
 Whenever there has been fraud on the part 
 of the assurers. 11 
 
 But when there has been fraud on the part 
 of the assured, the premium is forfeited :» and 
 in every case of actual fraud, either by the 
 assured or his agent, the underwriter will be 
 entitled to retain the premium.J 
 
 " Duffel vs. Wilson, 1 Campb., 401. 
 ' Tyler vs. Home, Park, 3 ed., 218. 
 j Chapman vs. Frazer, Park, 3 ed., 218. 
 
CHAPTER X. 
 
 OF THE RECOVERY OF INTEREST. ON THE AMOUNT 
 SECURED BY THE POLICY, FROM THE TIME WHEN 
 IT BECAME DUE. 
 
 Interest is recoverable on the amount secured 
 by the policy, from the period when the same 
 became due. 
 
 A contrary rule, with regard to the interest, 
 has been laid down in England. 
 
 In Higgins vs. Sargent, a an action arising on 
 a life policy, it was held : that the insured is 
 not entitled to recover interest on the principal 
 sum secured by the policy, even from the time 
 when it had become payable. The amount was 
 made payable six months after due proof of the 
 death, and the court held, that interest was not 
 recoverable on the amount even after six 
 
 1 2 Barn. & Cres., 348. 
 
166 LIFE ASSURANCE. 
 
 months from the time of due proof of the 
 death, on the ground, "that interest is allowed 
 by law only upon mercantile securities, or in 
 those cases where there has been an express 
 promise to pay interest, or where such promise 
 is to be implied from the usage of trade or 
 other circumstances." 
 
 The law, in this country, was formerly in 
 accordance with the above decision, but it has 
 been gradually undergoing a change, and now, in 
 the state of New York, and probably in otheer 
 states, interest would be recoverable on the 
 amount secured by the policy, from the time when 
 it became due. It was held by the Court of 
 Appeals of the state of New York, b that "where 
 a debtor is in default for not paying money, 
 delivering property, or rendering services in 
 pursuance of his contract, he is chargeable with 
 interest, from the time of default, on the specified 
 amount of money, or the value of the property 
 or services, at the time they should have been 
 paid or rendered." Chief Justice Bronson^ 
 in delivering the opinion of the court, says: 
 
 * Van Rensselaer vs. Jewett, 2 Comst., 135. 
 
RECOVERY OF INTEREST. 167 
 
 "Whenever a debtor is in default for not paying 
 money, delivering property, or rendering services 
 in pursuance of hi^ contract, justice requires 
 that he should indemnify the creditor for the 
 wrong which has been done him; and a just 
 indemnity, though it may sometimes be more, 
 can never be less than the specified amount 
 of money, or the value of the property or services, 
 at the time they should have been paid or ren- 
 dered, with interest from the time of the default, 
 until the obligation is discharged ; and if the 
 creditor is obliged to resort to the courts for 
 redress, he ought, in all such cases, to recover 
 interest in addition to the debt, by way of dam- 
 ages. It is ; true, that in an agreement like the 
 one under consideration, the amount of the debt 
 can only be ascertained by an inquiry concerning 
 the value of the property and services. But the 
 value can be ascertained, and when that has 
 been done, the creditor, as a question of prin- 
 ciple, is just as plainly entitled to interest 
 after the default, as he would be if the like 
 sum had been payable in money. The English 
 courts do not allow interest in such cases ; and 
 
168 LIFE ASSURANCE. 
 
 I feel some difficulty in saying that it can be 
 allowed here, without the aid of an act of the 
 legislature to authorize it. But the courts, in 
 this and other states, have, for many years, been 
 tending to the conclusion, which we have finally 
 reached, that a man who breaks his contract to 
 pay a debt, whether the payment was to be 
 made in money, or in any thing else, shall 
 indemnify the creditor, so far as that can be 
 done, by adding interest to the amount of dam- 
 age which was sustained on the day of the 
 breach. The rule is just in itself; and, as it is 
 now nearly nineteen years since the point was 
 decided in favor of the creditor, and eight out of 
 the nine judges of the Supreme Court have, at 
 different times, concurred in the opinion, we 
 think the question should be regarded as 
 settled." 
 
 c In the recent case, in the N. Y. Supreme Court, of Valton 
 and Adams vs. The National Loan Fund Life Assurance Society f 
 tried at the Albany Circuit, held on the 15th of November 1852, 
 the jury, under the direction of the court, found interest on the 
 amount secured by the policy, from the time when such amount 
 should have been paid. 
 
CHAPTER XL 
 
 MISCELLANEOUS DECISIONS TOUCHING THE CONTRACT 
 OP ASSURANCE.* 
 
 Payment to a creditor by an assurance com- 
 pany of the amount of a policy on the life of a 
 debtor, is not, pro tanto, a satisfaction of the 
 debt of the latter. Thus, in Humphrey vs. 
 Arabin, b the question was, whether a creditor 
 who has assured the life of his debtor, and has 
 received the amount of the policy from the 
 office, can be compelled 'to set off the sum so 
 received against the debt ? 
 
 The Lord Chancellor said: "The question 
 here arises upon exceptions, taken by a judg- 
 ment creditor, of the name of Inderwicke, who 
 
 ■ We have placed under this head a few cases not appropriately 
 falling under any of the preceding divisions. 
 
 " Lloyd & Gould's cases (tempore Plunkett), 318. 
 22 
 
170 LIFE ASSURANCE. 
 
 claimed, before the master, the amount of 
 certain judgments against the late Mr. Latouche, 
 and which, if not to be considered as discharged, 
 are incumbrances still affecting the mortgaged 
 premises. It is not necessary to go into the 
 details of the case, or the particulars of the 
 several exceptions, it being admitted that they 
 all depend on the single question,' whether 
 assurances, made by the creditor on the life of 
 the debtor, and which, since the death of the 
 debtor, have been discharged by the assurance 
 company, are to be considered, pro tanto, a 
 discharge of the debt, as between the creditor 
 and the debtor ; the master has decided in the 
 affirmative, and, as he has informed me, has 
 grounded his decision on the case of Godsall 
 vs. Boldero." c The Chancellor then said, that 
 the proposition, that "the satisfaction of the 
 debt discharges the insurer," is now undeni- 
 able ; but that it by no means follows, that the 
 converse of the proposition is true, and that 
 the payment by the insurer shall amount to a 
 satisfaction of the debt ; that no authority had 
 
 c 9 East, 72. 
 
MISCELLANEOUS. 171 
 
 been cited to sustain this latter proposition, 
 and, although the case of ex parte Andrews" 1 
 had been cited for the purpose, that it did not 
 decide the question, but appeared to him to 
 furnish a contrary inference. The case, there- 
 fore, must be determined on principle, and I 
 must find a clear one, before I can gay that the 
 debtor, who had no concern; or right, or interest 
 in the assurance, is, by the circumstance of 
 the amount of it being discharged by a third 
 person, to be exempted from the payment of 
 his own just debt. The argument of Lord 
 Ellenborough, in the case of Godsall vs. Boldero, 
 rests merely on the decision of Lord Mansfield, 
 in the case of Hamilton vs. Mendes, e and both 
 cases go, altogether, upon the contract with the 
 insurers being a contract of indemnity. Now 
 this grows solely out of the enactments of the 
 legislature, and on the contract being such an 
 one as the law gives effect to ; and it is a mistake 
 to say, as it has been argued in this case, that 
 therefore the insurer is in the nature of a surety 
 
 d 2 Rose, 410. 1 Madd., 573. 
 ' 2 Burr., 1198. 
 
172 LIFE ASSURANCE. 
 
 for the payment of the debt of the principal 
 debtor. The protection of the insurer grows 
 . merely out of the policy of the law, and the 
 particular enactment of the legislature ; but 
 with reference either to the party who gets 
 the insurance, or with reference to the debtor, 
 there is no one circumstance which puts 
 him in the character of a surety for the debtor. 
 He has no right to call on the debtor's executors 
 to pay the debt, and it is no concern of his 
 whether the debtor is able to pay, or utterly 
 insolvent. 
 
 It remains, then, to consider the case as 
 between the original creditor and debtor. It is 
 clear that the creditor has no right to call upon 
 the debtor to make the assurance, or to pay 
 any part of the expense of it, or, if the assur- 
 ance company should become insolvent* to repay 
 him any of the premiums he has paid. The 
 debtor, on the other hand, has no right to call 
 on the creditor to make any assurance, or to 
 keep it alive when made ; he knows not whether 
 it has been made or not ; it is a contract between 
 other persons, with which he has no concern or 
 
MISCELLANEOUS. 173 
 
 privity, and I can not find any principle or 
 authority for holding that he should, by any 
 thing growing out of that contract, be discharged 
 from the payment of his just debt, which he 
 has neither discharged nor satisfied, nor caused 
 to be discharged or satisfied. I must, there- 
 fore, allow the exception. 
 
 A creditor can not compel a debtor to pay 
 the expense of insuring his life, nor after the 
 debt is paid can he call on him to reimburse 
 the amount expended for such insurance/ 
 
 Premiums of life assurance can not be charged 
 on the vendor of a rescinded annuity. 8 
 
 In Phillips vs. Eastwood, it was held, that a 
 policy of assurance on the life of a debtor is a 
 security for a sum to be paid, and may pass in a 
 will under the words debentures or debts. h 
 
 An annuity for four lives, with a covenant 
 that the grantor should insure the principal 
 sum within thirty days after the expiration of 
 the third life, is not an usurious contract. 1 
 
 ' Dicta of the Lord Chancellor, in Humphrey vs. Arabin. 
 
 * 1 Taunt., 522. 
 
 " Lloyd & Goold's cases (tempore Sugden), 291. 
 
 1 7 Bing., 150. 
 
174 LIFE ASSURANCE. 
 
 A policy of insurance on the life of A had 
 been assigned to the plaintiff; the defendant, 
 having privately ascertained that A was danger- 
 ously ill, treats with the plaintiff for the purchase 
 of the policy for a small sum, representing it 
 as the then value of the policy; the plaintiff 
 not being aware of A's illness ; held, that the 
 sale was void, and that the plaintiff might 
 recover the value of the policy in an action 
 of troverJ 
 
 A policy of insurance for £3000, on A's life, 
 was assigned to trustees, and by a deed of even 
 date trusts were declared of it, by the descrip- 
 tion of "the sum of £3000, for which A's life 
 was insured," and power was given to B to 
 dispose of it by will; B, after reciting the set- 
 tlement, bequeathed £ 1000, part of the sum of 
 £ 3000, toA, and the remaining sum of £ 2000 
 to C; at A's death £9000 was received 
 under the policy. Held, that the whole fruits 
 of the policy were subject to the trusts of the 
 settlement, and passed by the bequests to A 
 and C, in proportion to their legacies. The Vice 
 
 j Jones vs. Keene, 2 M. & Rob., 348. 
 
MISCELLANEOUS. 175 
 
 Chancellor said : When the second settlement 
 was made, in contemplation of the daughter's 
 marriage, it had not occurred to the parties, 
 that, according to the rules of The Equitable 
 Assurance Office, a much larger sum would be 
 payable under the policy, than the original sum 
 insured, and in treating, therefore, of the 
 daughter's interest under the father's settle- 
 ment, they described it as a sum of £ 3000. 
 But it is plain, whatever was the language 
 used, that it was the intention of the parties 
 to comprise, in the daughter's settlement, her 
 whole interest under the policy of assurance ; 
 and the effect must be the same as if more 
 correct terms of description had been used in 
 the settlement. As the sum of £3000 was 
 mentioned in the settlement, as descriptive of 
 the daughter's interest in the policy of assur- 
 ance, so the daughter uses the same term, as 
 descriptive of the same interest, in her will; 
 and when she divides that interest into thirds, 
 by the gift of three equal sums of £ 1000 each, 
 the words will pass to each legatee an equal 
 third of the whole benefit of the policy. k 
 
 * Courtney vs. Ferrers, 1 Sim. E„ 187. 
 
176 LIFE ASSURANCE. 
 
 When a policy of insurance has been effected 
 on the life of a debtor, as a security to the 
 lender of money, and the lender charges the 
 premiums to the account of the debtor, who 
 pays them, if the principal is afterwards paid, 
 the debtor, or his representative, is entitled to 
 the policy. 1 
 
 The voluntary payment of premiums confers 
 on the payer no interest in the policy.™ 
 
 1 Holland vs. Smith, 6 E«-p., 11. 
 
 " Burridge vs. Row, 1 Yon. & C, 183. 
 
CHAPTER XII. 
 
 OF THE DIFFERENT SYSTEMS OF ASSURANCE. 
 
 1. Of the proprietary, or joint stock system. 
 
 2. Of the mutual system. 
 
 3. Of the mixed system. 
 
 1. Of the Proprietary, or Joint Stock System. 
 
 The practice of assuring lives, when origin- 
 ally introduced, was designed, solely, to enable 
 the representatives of those who associated 
 together and contributed annually to a fund, 
 to receive, on the decease of the party, such 
 a sum, in proportion to the amount subscribed 
 by the party, as, after the discharge of the 
 losses, the association might be enabled to pay; 
 and, as their names indicate, these associations 
 were designed, solely, for the benevolent object 
 of raising a fund to be distributed among 
 the widows and children of those who died, 
 
 23 
 
178 LIFE ASSURANCE. 
 
 and who, by their annual contributions, had 
 attempted to alleviate the loss which such 
 survivors might experience by their death. 
 
 Life assurance was then in its infancy, but 
 time and experience, and a careful examination 
 of the probabilities of the duration of life, soon 
 made it evident that its practice might be 
 turned to profit. With this object the business 
 was undertaken by individuals ; but they being 
 only able to take risks for a limited period and 
 amount, and not affording sufficient security to 
 the assured, the business was soon engrossed by 
 incorporated companies, which presented the 
 advantages of being more secure, and of being 
 able to take risks for any length of time. 
 
 These were, and are still known, as pro- 
 prietary, or joint stock companies. The pro- 
 prietary system, therefore, is, where a number 
 of individuals unite together and form a capital, 
 and undertake, in consideration of annual 
 premiums to be paid them by the assured, to 
 pay to his representatives a fixed sum at his 
 death. In this system, the capital subscribed 
 stands as a guaranty for the payment of the 
 
DIFFERENT SYSTEMS. 179 
 
 policies, and whatever profits are derived from 
 the excess of the premiums over the losses, be- 
 long to those who have subscribed to the capital 
 stock. The stock is usually made up of trans- 
 ferable shares, and the profits, if any, are 
 divided among the holders of such shares. 
 
 * 
 
 2. Of the Mutual System. 
 
 The mutual system, which, as before stated,* 
 was the invention of Mr. Simpson, or was, 
 at least, first publicly announced by him, 
 is, where the parties mutually assure each 
 other; or, in other words, where the parties 
 are both assurers and assured. In theory, each 
 party is supposed to pay nothing for being 
 assured, but is required, on a loss, to pay his 
 proportion thereof. But as this could not con- 
 veniently be carried out in practice, the plan 
 of operation has been, for each party to pay a 
 sufficient portion of the premium, in cash, to 
 meet the current expenses, and to give a note 
 for the residue, which is called a premium note, 
 
 1 Ante page 6, chap. 1. 
 
180 LIFE ASSURANCE. 
 
 and on a loss arising, greater than can be met 
 by the cash payments, the amount is assessed, 
 rateably, on these notes. 
 
 The cash premium, at first paid by the 
 assured, under this system, is much less than 
 under the proprietary system; but, then, there 
 is the contingency of the assured being re- 
 quired to pay an assessment on his note ; and, 
 should the assessment be large, the sum actually 
 required for the assurance may be larger than 
 that demanded by a proprietary company; for, 
 the cash premium and premium note, together, 
 are much larger than the amount required by 
 the latter. 
 
 Some of these mutual companies, however, 
 have been managed so prudently as to have 
 accumulated a large surplus fund, so large that 
 the contingency of the assured being called on 
 to pay an assessment on his note is rendered 
 very remote. This plan is, however, objection- 
 able, on account of the assured being, in fact, 
 not only assurers of each other's lives, but also 
 of each other's note; and from the difficulty 
 ' of collecting assessments on the notes, which 
 
DIFFERENT SYSTEMS. 181 
 
 are often of but trifling amount, and of being 
 frequently called on to make such assessments. 
 
 To obviate these objections, another modifica- 
 tion of the mutual system has been introduced 
 by some companies, which is, for the assured 
 to pay the whole premium in cash, and for the 
 surplus, if any, to be returned at stated periods, 
 in the shape of dividends. 
 
 When the surplus fund of either of these 
 species of. companies becomes very large, and 
 more than what is considered necessary to 
 provide for losses, it is usual to divide a portion 
 of it among the assured; for, as the assured 
 are liable for the losses that may arise, so, they 
 are also entitled to share in the profits. 
 
 In the division of these surplus funds, or 
 profits, there is great danger, that through the 
 eagerness of the assured to derive immediate 
 gain, and of the directors by declaring large 
 dividends to have the affairs of the company 
 appear prosperous, and thus induce others to 
 assure, in the hope of also deriving profit, too 
 large a division may be made, and thus the 
 final security of the assured be impaired. 
 
182 LIFE ASSURANCE. 
 
 The directors of the various companies 
 establish, each, their different rules, as to the 
 time, manner and extent of these divisions. 
 
 Some companies, which is probably the wisest 
 and most prudent course, make no division of 
 the profits ; but, on the coming in of the claim, 
 pay, not only the amount of the policy, but, the 
 profits which have accrued thereon.- 
 
 3. Of the Mixed System. 
 
 The mixed system, as its name imports, is 
 the union of the two preceding; a capital 
 stock being subscribed, and the subscribers 
 agreeing to share a certain proportion of the 
 profits among the assured. 
 
 We have now given an insight into the 
 various systems of assurance, and their practical 
 operation, without any attempt, or intention to 
 discuss, advocate, or disparage the merits of 
 either, referring the reader, therefor, to the 
 circulars of the different companies. b 
 
 " See, also, as to the merits of the different systems, Edin. Rey., 
 vol. xlv.p. 480; and Pocock on Life Assurance. 
 
APPENDIX. 
 
APPENDIX 
 
 A. 
 
 FORM OF A POLICY. 
 
 This Policy of Insurance, Witnesseth — That 
 
 the Company, in consideration of 
 
 dollars and cents, to them in 
 
 hand paid by , of , and of 
 
 the annual premium of dollars and • • • • 
 
 cents, to be paid on or before the 
 
 day of in every year, during the continu- 
 ance of this Policy, do insure the life of of 
 
 • ■ • • , in the county of , State of , 
 
 for the sole use of , in the amount of 
 
 dollars, for the term of 
 
 And the said Company promise and agree to 
 and with the said executors, admin- 
 istrators and assigns, well and truly to pay, or 
 
 cause to be paid, the sum of dollars 
 
 to the said assured executors, admin- 
 istrators and assigns, within days, after 
 
 due notice and proof of the death of the said • • • ■ 
 
186 APPENDIX. 
 
 , deducting^ therefrom all notes taken jor 
 
 premiums, remaining unpaid at that date. 
 
 Provided Always, and it is hereby declared to be 
 the true intent and meaning of this Policy, and the 
 same is accepted by the assured and the said • • 
 
 upon these express conditions : That in 
 
 case the said shall, without the con- 
 sent of this Company, previously obtained and en- 
 dorsed upon this Policy, visit Oregon, California, 
 or New Mexico, or pass beyond, the settled limits 
 of the United States (excepting into the settled 
 limits of British North America), or shall, without 
 such previous consent, thus endorsed, visit those 
 parts of the United States which lie south of the 
 southern boundaries of the States of Virginia, Ken- 
 tucky and Missouri, between the first day of July 
 and the first day of November, or shall, without 
 such previous consent, thus endorsed, enter into 
 any active military or naval service, or shall, with- 
 out such previous consent, thus endorsed, be per- 
 sonally employed as an engineer or fireman in 
 running a locomotive or steamer, or in the manu- 
 facture of gunpowder, or in case shall 
 
 become so far intemperate as to seriously impair 
 
 health, or induce delirium tremens, or shall 
 
 die by own hand, or in consequence of a 
 
 duel, or the violation of any State, National, or 
 
 W — This form is selected from a number in actual use; it is, as will be 
 readily perceived, designed for a mutual company, but by omitting the parts in 
 italics it can be adapted to proprietary companies. 
 
APPENDIX. 187 
 
 Provincial law, or by the hands of justice, or shall, 
 without the consent of the Company, previously 
 obtained, and endorsed on this Policy, make a 
 voyage at sea, or upon any lake, pond or river, or 
 along the' shores of the Atlantic Ocean (excepting 
 as passenger, by steamers, first class sailing ves- 
 sels, yachts or pleasure boats), within the months 
 
 of • • • • , and the 
 
 limits hereinbefore prohibited, this Policy shall be 
 null, void, and of no effect. 
 
 And it is also understood and agreed, to be the 
 true intent and meaning hereof, that if the pro- 
 posal, answers and declaration, made by the said 
 
 , and bearing date, the 
 
 day of , 18- • , and upon the faith of which 
 
 this agreement is made, and this Policy is issued, 
 shall be found, in any respects, untrue, then, and 
 in such case, this Policy shall be null and void ; 
 and in case the full amount of the said Annual 
 Premium shall not be promptly paid on or before 
 the several days above mentioned for the payment 
 thereof, then, and in every such case, the liability 
 of the said Company for the payment of the sum 
 insured, or any part of it, shall cease, and this 
 Policy shall determine and be void. And it is 
 further agreed, that in every case where this 
 Policy shall cease, or become null or void, all pre- 
 vious payments made thereon, and all dividends 
 accruing therefrom, shall be forfeited to the said 
 Company. 
 
188 
 
 APPENDIX. 
 
 In Witness Whereof, the 
 
 have, by their President and Secretary, signed this 
 
 Contract at their office in , this 
 
 day of , 18- • , but the same shall not be 
 
 binding until countersigned and delivered by • • • 
 
 • • •■ , Agent at , and the advance 
 
 premium paid. 
 
 • , President. 
 
 Countersigned at 
 day of ,18- 
 
 Secretary. 
 
 ■ , this 
 
 Agent. 
 
APPENDIX. 
 
 189 
 
 B. 
 
 I. TABLES OF MORTALITY. 
 
 Showing the number of persons living at the end of every year, out of 1000 
 born at the same time,- as calculated by the different authors for the several 
 places stated. 
 
 < 
 
 if 
 
 « g 
 
 m 
 
 Pi -p 
 
 1 « 
 
 
 m 
 
 < 
 
 
 1 
 
 a 
 S °> 
 
 1 -8 
 
 £ 3 
 
 5 W 
 
 
 
 R 
 
 S5 
 
 R 
 
 
 
 R 
 
 » 
 
 R 
 
 
 1000 
 
 1000 
 
 1000 
 
 1000 
 
 34 
 
 384 
 
 495 
 
 351 
 
 542 
 
 1 
 
 769 
 
 780 
 
 743 
 
 846 
 
 35 
 
 377 
 
 488 
 
 344 
 
 536 
 
 2 
 
 658 
 
 730 
 
 625 
 
 778 
 
 36 
 
 370 
 
 482 
 
 338 
 
 531 
 
 3 
 
 614 
 
 695 
 
 582 
 
 727 
 
 37 
 
 363 
 
 477 
 
 331 
 
 525 
 
 4 
 
 585 
 
 671 
 
 553 
 
 700 
 
 38 
 
 356 
 
 471 
 
 325 
 
 519 
 
 5 
 
 563 
 
 656 
 
 536 
 
 680 
 
 39 
 
 349 
 
 465 
 
 318 
 
 514 
 
 6 
 
 546 
 
 644 
 
 521 
 
 668 
 
 40 
 
 342 
 
 459 
 
 312 
 
 507 
 
 7 
 
 532 
 
 634 
 
 509 
 
 659 
 
 41 
 
 335 
 
 453 
 
 305 
 
 501 
 
 8 , 
 
 523 
 
 625 
 
 499 
 
 654 
 
 42 
 
 328 
 
 445 
 
 299 
 
 494 
 
 9 
 
 515 
 
 618 
 
 492 
 
 649 
 
 43 
 
 321 
 
 437 
 
 292 
 
 487 
 
 10 
 
 508 
 
 611 
 
 487 
 
 646 
 
 44 
 
 314 
 
 430 
 
 285 
 
 480 
 
 11 
 
 502 
 
 606 
 
 483 
 
 643 
 
 45 
 
 307 
 
 422 
 
 279 
 
 473 
 
 12 
 
 497 
 
 602 
 
 478 
 
 640 
 
 46 
 
 299 
 
 414 
 
 272 
 
 466 
 
 13 
 
 492 
 
 597 
 
 474 
 
 637 
 
 47 
 
 291 
 
 407 
 
 265 
 
 459 
 
 14 
 
 488 
 
 594 
 
 470 
 
 633 
 
 48 
 
 283 
 
 400 
 
 259 
 
 452 
 
 15 
 
 483 
 
 590 
 
 465 
 
 630 
 
 49 
 
 275 
 
 392 
 
 252 
 
 446 
 
 16 
 
 479 
 
 586 
 
 461 
 
 626 
 
 50 
 
 267 
 
 385 
 
 245 
 
 440 
 
 17 
 
 474 
 
 582 
 
 457 
 
 622 
 
 51 
 
 259 
 
 376 
 
 238 
 
 434 
 
 18 
 
 470 
 
 578 
 
 452 
 
 618 
 
 52 
 
 250 
 
 367 
 
 321 
 
 428 
 
 19 
 
 465 
 
 574 
 
 446 
 
 613 
 
 53 
 
 241 
 
 358 
 
 224 
 
 247 
 
 20 
 
 461 
 
 570 
 
 441 
 
 609 
 
 54 
 
 232 
 
 349 
 
 217 
 
 411 
 
 21 
 
 456 
 
 565 
 
 434 
 
 605 
 
 55 
 
 224 
 
 340 
 
 210 
 
 404 
 
 22 
 
 451 
 
 560 
 
 428 
 
 600 
 
 56 
 
 216 
 
 331 
 
 203 
 
 400 
 
 23 
 
 446 
 
 555 
 
 421 
 
 596 
 
 57 
 
 209 
 
 322 
 
 J 96 
 
 392 
 
 24 
 
 441 
 
 551 
 
 415 
 
 592 
 
 58 
 
 201 
 
 312 
 
 189 
 
 384 
 
 25 
 
 436 
 
 546 
 
 409 
 
 588 
 
 59 
 
 193 
 
 303 
 
 182 
 
 375 
 
 26 
 
 431 
 
 541 
 
 402 
 
 584 
 
 60 
 
 186 
 
 293 
 
 175 
 
 364 
 
 27 
 
 426 
 
 535 
 
 396 
 
 579 
 
 61 
 
 178 
 
 282 
 
 168 
 
 352 
 
 28 
 
 421 
 
 530 
 
 389 
 
 575 
 
 62 
 
 170 
 
 271 
 
 161 
 
 340 
 
 29 
 
 415 
 
 525 
 
 383 
 
 570 
 
 63 
 
 163 
 
 259 
 
 154 
 
 327 
 
 30 
 
 409 
 
 519 
 
 376 
 
 564 
 
 64 
 
 155 
 
 247 
 
 147 
 
 314 
 
 31 
 
 403 
 
 513 
 
 370 
 
 558 
 
 65 
 
 147 
 
 235 
 
 140 
 
 302 
 
 32 
 
 397 
 
 507 
 
 364 
 
 553 
 
 66 
 
 140 
 
 224 
 
 133 
 
 289 
 
 33 
 
 391 
 
 501 
 
 357 
 
 547 
 
 67 
 
 132 
 
 I 212 
 
 126 
 
 277 
 
190 
 
 APPENDIX. 
 
 60 
 
 ■M 
 
 § 1 
 
 i* 
 I* 5 
 
 — > u 
 
 1 ° 
 
 . i 
 
 s £ 
 
 bo 
 
 it 
 Us 
 
 I u 
 
 IN 
 
 1 8 
 
 an 
 
 .1 
 
 la 
 
 e . 
 
 
 
 a 
 
 SB 
 
 fi 
 
 
 
 o 
 
 -S3 
 
 s 
 
 ~68~ 
 
 124 
 
 200 
 
 119 
 
 265 
 
 87 
 
 6 
 
 11 
 
 9 
 
 30 
 
 69 
 
 117 
 
 ' 187 
 
 113 
 
 252 
 
 -88 
 
 4 
 
 8 
 
 7 
 
 23 
 
 70 
 
 109 
 
 175 
 
 106 
 
 240 
 
 89 
 
 2 
 
 6 
 
 5 
 
 16 
 
 71 
 
 101 
 
 162 
 
 99 
 
 228 
 
 90 
 
 1 
 
 5 
 
 4 
 
 14 
 
 72 
 
 93 
 
 149 
 
 92 
 
 214 
 
 91 
 
 
 3 
 
 3 
 
 10 
 
 73 
 
 84 
 
 135 
 
 85 
 
 200 
 
 92 
 
 
 2 
 
 2 
 
 7 
 
 74 
 
 77 
 
 121 
 
 78 
 
 184 
 
 93 
 
 
 1 
 
 1 
 
 5 
 
 75 
 
 69 
 
 108 
 
 71 
 
 167 
 
 94 
 
 
 
 1 
 
 4 
 
 76 
 
 61 
 
 96 
 
 65 
 
 151 
 
 95 
 
 
 
 
 3 
 
 77 
 
 53 
 
 85 
 
 58 
 
 136 
 
 96 
 
 
 
 
 2 
 
 78 
 
 45 
 
 74 
 
 52 
 
 121 
 
 97 
 
 
 
 
 2 
 
 79 
 
 38 
 
 65 
 
 46 
 
 108 
 
 98 
 
 
 
 
 1 
 
 80 
 
 32 
 
 56 
 
 40 
 
 95 
 
 99 
 
 
 
 
 1 
 
 81 
 
 26 
 
 47 
 
 35 
 
 84 
 
 100 
 
 
 
 
 1 
 
 62 
 
 22 
 
 38 
 
 30 
 
 72 
 
 101 
 
 
 
 
 1 
 
 83 
 
 18 
 
 31 
 
 25 
 
 62 
 
 102 
 
 
 
 
 
 84 
 
 15 
 
 24 
 
 20 
 
 53 
 
 
 
 
 
 
 85 
 
 12 
 
 19 
 
 16 
 
 44 
 
 
 
 
 
 
 86 
 
 9 
 
 14 
 
 12 
 
 37 
 
 
 
 
 
 
APPENDIX. 
 
 191 
 
 II. EXPECTATION, 
 
 Table showing the expectation or mean duration of life, at every age, 
 according to the Carlisle and Northampton tables. 
 
 Completed 
 
 Carlisle 
 
 Morthamptnn 
 
 Compieied 
 
 Carlisle Norihampiou 
 
 Age. 
 
 Experience. 
 
 Experience. 
 
 Age. 
 
 Experience. 
 
 Experience. 
 
 
 
 38.72 
 
 25.18 
 
 40 
 
 27.61 
 
 23.08 
 
 1 
 
 44.68 
 
 32.74 
 
 41 
 
 26.97 
 
 22.56 
 
 2 
 
 47.55 
 
 37.79 
 
 42 
 
 26.34 
 
 22.04 
 
 3 
 
 49.82 
 
 39.55 
 
 43 
 
 25.71 
 
 21.54 
 
 4 
 
 50.76 
 
 40.58. 
 
 44 
 
 25.09 
 
 21.03 
 
 • 
 
 5 
 
 51 25 
 
 40.84 
 
 45 
 
 24.46 
 
 20.52 
 
 6 
 
 51.17 
 
 « 41.07 
 
 46 
 
 23.82 
 
 20.02 
 
 7 
 
 50.80 
 
 41.03 
 
 47 
 
 23.17 
 
 19.51 
 
 8 
 
 50.24 
 
 40.79 
 
 48 
 
 22.50 
 
 19.00 
 
 9 
 
 49.57 
 
 40.36 
 
 49 
 
 21.81 
 
 18.49 
 
 10 
 
 48.82 
 
 39.78 
 
 50 
 
 21.11 
 
 17.99 
 
 11 
 
 48.04 
 
 39.14 
 
 51 
 
 20.39 
 
 17 50 
 
 12 
 
 47.27 
 
 38.49 
 
 52 
 
 19.68 
 
 17.02 
 
 13 
 
 46.51 
 
 37.83 
 
 53 
 
 18.97 
 
 16.54 
 
 14 
 
 45.75 
 
 37.17 
 
 54 
 
 18.28 
 
 16.06 
 
 15 
 
 45.00 
 
 36.51 
 
 55 
 
 17.58 
 
 15.58 
 
 16 
 
 44.27 
 
 35.85 
 
 56 
 
 16.89 
 
 15.10 
 
 17 
 
 43.57 
 
 35.20 
 
 57 
 
 16.21 
 
 14.63 
 
 18 
 
 42.89 ' 
 
 34.58 
 
 58 
 
 15.55 
 
 14.15 
 
 19 
 
 42.17 
 
 33.99 
 
 59 
 
 14.92 
 
 13.68 
 
 20 
 
 41.46 
 
 33.43 
 
 60 
 
 14.34 
 
 13.21 
 
 21 
 
 40.75 
 
 32.90 
 
 61 
 
 13.82 
 
 12.75 
 
 22 
 
 40.04 
 
 32.39 
 
 62 
 
 13.31 
 
 12.28 
 
 23 
 
 39.31 
 
 31.88 
 
 63 
 
 12.81 
 
 11.81 
 
 24 
 
 38.59 
 
 31.36 
 
 64- 
 
 12 30 
 
 11.35 
 
 25 
 
 37.86 
 
 30.85 
 
 65 
 
 11.79 
 
 10.88 
 
 26 
 
 ' 37.14 
 
 30.33 
 
 66 
 
 11.27 
 
 10.42 
 
 27 
 
 36.41 
 
 29.82 
 
 67 
 
 10.75 
 
 9.96 
 
 28 
 
 35.69 
 
 29.30 
 
 68 
 
 10.23 
 
 9.50 
 
 29 
 
 35.00 
 
 28.79 
 
 69 
 
 9 70 
 
 9.05 
 
 30 
 
 34.34 
 
 28.27 
 
 70 
 
 9.18 
 
 8.60 
 
 31 
 
 33.68 
 
 27.76 
 
 71 
 
 8.65 
 
 8.17 
 
 32 
 
 33.03 
 
 27.24 
 
 72 
 
 8.16 
 
 7.74 
 
 33 
 
 32.36 
 
 26.72 
 
 73 
 
 7.72 
 
 7.33 
 
 34 
 
 31.68 
 
 26.20 
 
 74 
 
 7.33 
 
 6.92 
 
 35 
 
 31.00 
 
 25.68 
 
 75 
 
 7.01 
 
 6.54 
 
 36 
 
 30.32 
 
 25.16 
 
 76 
 
 6.69 
 
 6.18 
 
 37 
 
 29.64 
 
 24.64 
 
 77 
 
 6.40 
 
 5.83 
 
 38 
 
 28.96 
 
 24.12 
 
 78 
 
 6.12 
 
 5.48 
 
 39 
 
 28.28 
 
 23.60 
 
 79 
 
 5.80 
 
 5.11 
 
 
 
 
 80 
 
 5.51 
 
 4.75 
 
192 
 
 APPENDIX. 
 
 III. LIFE TABLES, 
 
 According to the late census of the United States, Massachusetts 
 being taken as a standard for the Northern Stales, and Maryland 
 for the Middle States. 
 
 1. ANNUAL DEATHS PER CENT, 1850. 
 
 Ages. 
 
 Massachusetts 
 
 Man 
 
 land. 
 Females. 
 
 England, 1841. 
 
 Males. 
 
 Females. 
 
 Males. 
 
 Males. . 
 
 Femulea. 
 
 Oto 5 
 
 7.105 
 
 6.052 
 
 5.466 
 
 4.875 
 
 5.838 
 
 5.880 
 
 S 10 
 
 1.168 
 
 983 
 
 1.041 
 
 855 
 
 955 
 
 922 
 
 10 15 
 
 452 
 
 573 
 
 477 
 
 606 
 
 509 
 
 545 
 
 15 20 
 
 872 
 
 831 
 
 605 
 
 757 
 
 718 
 
 801 
 
 20 30 
 
 998 
 
 1.170 
 
 896 
 
 938 
 
 949 
 
 942 
 
 30 40 
 
 1.253 
 
 1.346 
 
 991 
 
 1.146 
 
 1.080 
 
 1.121 
 
 40 50 
 
 1.513 
 
 1.325 
 
 1 884 
 
 1.249 
 
 1.410 
 
 1.308 
 
 50 60 
 
 2.067 
 
 1.654 
 
 2.433 
 
 1.712 
 
 2.230 
 
 1.938 
 
 60 70 
 
 3.482 
 
 2.960 
 
 3.405 
 
 3.285 
 
 4.232 
 
 3.761 
 
 70 80 
 
 6.767 
 
 5.762 
 
 8.977 
 
 7.221 
 
 9.150 
 
 8.378 
 
 80 91) 
 
 15.000 
 
 13.470 
 
 15.157 
 
 12.280 
 
 19.085 
 
 18.085 
 
 90 100 
 
 35.240 
 
 27.540 
 
 31.132 
 
 23.430 
 
 37.039 
 
 34.057 
 
 2. EXPECTATION OF LIFE. 
 
 Completed 
 Age. 
 
 Massachusetts. 
 
 Maryland. 
 
 England. [ France. 
 
 Males. 
 Yrs. 
 
 Feraa's. 
 
 Yrs. 
 
 Males. 
 Yrs. 
 
 Feina's 
 Yrs. 
 
 Males 
 Yrs. 
 
 Fema's.j Males. 
 Yrs. | Yrs 
 
 Feraa's 
 Yrs. 
 
 
 
 10 
 
 20 
 
 30 
 
 40 
 
 60 
 
 70 
 
 80 
 
 90 
 
 38.3 
 48.0 
 40.1 
 34.0 
 27.9 
 21.6 
 15.6 
 10.2 
 5.9 
 2.8 
 
 40.5 
 47 2 
 40.2 
 35.4 
 27.8 
 23.5 
 17.0 
 11.8 
 6.4 
 3.0 
 
 41.8 
 
 47.3 
 
 39.7 
 
 32.9 
 
 25.8 
 
 20.2 
 
 14.4 
 
 9.1 
 
 6.2 
 
 3.9 
 
 44.9 
 49.5 
 42 1 
 35.7 
 29.5 
 22.7 
 16.0 
 10.5 
 7.0 
 4.3 
 
 40.2 
 
 47.1 
 
 39.9 
 
 33.1 
 
 26.6 
 
 20.0 
 
 13.6 
 
 8.5 
 
 4.9 
 
 2.7 
 
 42.2 
 
 47.8 
 
 40.8 
 
 34.3 
 
 27.7 
 
 21.1 
 
 14.4 
 
 9 
 
 5.2 
 
 2.8 
 
 38.3 
 
 47.0 
 
 40.0 
 
 34.0 
 
 27.0 
 
 19.9 
 
 13 3 
 
 8.1 
 
 4.8 
 
 3.2 
 
 40.8 
 
 47.4 
 
 40.1 
 
 33.4 
 
 26.6 
 
 19.6 
 
 13.2 
 
 8.1 
 
 4.8 
 
 3.2 
 
 3. EXPECTATION OF LIFE FOR COLORED PERSONS. 
 
 Completed 
 Age. 
 
 
 
 39.75 
 
 10 
 
 42.92 
 
 20 
 
 35.87 
 
 
 29.77 
 
 
 22.83 
 
 
 18.27 
 
 60 
 
 13.89 
 
 70 
 
 9.42 
 
 
 6.44 
 
 
 3.60 
 
 New England. 
 
 Colored. 
 Males- Females. 
 
 42.20 
 45.75 
 39.92 
 34.96 
 28.75 
 22.11 
 17.31 
 13.06 
 7.87 
 4.61 
 
 Mar/land. 
 
 Slaves. 
 Males. Females 
 
 38.47 
 
 45.30 
 
 39.28 
 
 34.41 
 
 27.50 
 
 21.16 
 
 14.32 
 
 8.76 
 
 5.40 
 
 3.80 
 
 39.47 
 41.00 
 39.63 
 35.62 
 29.00 
 23.17 
 16.71 
 10.57 
 6.80 
 4.00 
 
 Colored . 
 Males. Females 
 
 28.89 
 35.92 
 30.48 
 26.87 
 23.25 
 19.13 
 14.75 
 11.33 
 5.38 
 3.43 
 
 34.09 
 40.69 
 35.36 
 30.86 
 25.85 
 21.07 
 15.27 
 10.93 
 6.16 
 3.34 
 
APPENDIX. 
 
 193 
 
 4. RATIO OF MORTALITY. 
 
 For general estimates, adopting the current classification of the States, 
 the American census exhibits the following ratios of mortality, dis- 
 regarding the ages at death : 
 
 
 Annual deaths 
 per cent. 
 
 Ratio to the 
 number living. 
 
 
 1.55 
 1.39 
 1.38 
 1.37 
 1.24 
 1.38 
 
 1 to 64 
 1 to 72 
 1 to 73 
 1 to 73 
 1 to 80 
 1 to 73 
 
 
 
 
 
 
 
 
194 
 
 APPENDIX. 
 
 IV. COMPOUND INTEREST TABLE, 
 
 Showing the value of $1 improved at compound interest, for any 
 number of years not exceeding 100, at 4, 5, 6, and 7 per cent. 
 
 Years. 
 
 4 per cent. 
 
 5 per cent. 
 
 6 per cent. 
 
 7 per cent. 
 
 1 
 
 1.040000 
 
 1.050000 
 
 1.060000 
 
 1.070000 
 
 2 
 
 1.081600 
 
 1.102500 
 
 1.123600 
 
 1.144900 
 
 3 
 
 1.124864 
 
 1.157625 
 
 1.191016 
 
 1 .225043 
 
 4 
 
 1.169859 
 
 1.215506 
 
 1.262477 
 
 1.310796 
 
 5 
 
 1.216653 
 
 1 .276282 
 
 1.338226 
 
 1.402552 
 
 6 
 
 1.265319 
 
 1.340096 
 
 1.418519 
 
 1.500730 
 
 7 
 
 1.315932 
 
 1.407100 
 
 1.503630 
 
 1 .605781 
 
 8 
 
 1.368569 
 
 1.477455 
 
 1.593848 
 
 1.718186 
 
 9 
 
 1.423312 
 
 1.551328 
 
 1.689479 
 
 1.838459 
 
 10 
 
 1.480244 
 
 1.628895 
 
 1.790848 
 
 1 .967151 
 
 11 
 
 1.539454 
 
 1 .710339 
 
 1.898299 
 
 2.104852 
 
 12 
 
 1.601032 
 
 1 .795856 
 
 2.012196 
 
 2.252192 
 
 13 
 
 1 .665074 
 
 1 .885649 
 
 2.132928 
 
 2.409845 
 
 14 
 
 1.731676 
 
 1.979932 
 
 2.260904 
 
 2.578534 
 
 15 
 
 1.800944 
 
 2.078928 
 
 2.396558 
 
 2.759032 
 
 16 
 
 1.872981 
 
 2.182875- 
 
 2.540352 
 
 2.952164 
 
 17 
 
 1.947901 
 
 2.292018 
 
 2.692773 
 
 3.158815 
 
 18 
 
 2.025817 
 
 2.406619 
 
 2.854339 
 
 3.379932 
 
 19 
 
 2.106849 
 
 2.526950 
 
 3.025600 
 
 3.616528 
 
 20 
 
 2.191123 
 
 2.653298 
 
 3.207135 
 
 3.869684 
 
 21 
 
 2.278768 
 
 2.785963 
 
 3.399564 
 
 4.140562 
 
 22 
 
 2.369919 
 
 2.925261 
 
 3.603537 
 
 4.430402 
 
 23 
 
 2.464716 
 
 3.071524 
 
 3.819750 
 
 4.740530 
 
 24 
 
 2.563304 
 
 3.225100 
 
 4.048935 
 
 5.072367 
 
 2S 
 
 2.665836 
 
 3.386355 
 
 4.291871 
 
 5.427433 
 
 26 
 
 2.772470 
 
 3.555673 
 
 4.549383 
 
 5.807353 
 
 27 
 
 2.883369 
 
 3.733456 
 
 4.822346 
 
 6.213868 
 
 28' 
 
 2.998703 
 
 3.920129 
 
 5.111687 
 
 6.648838 
 
 29 
 
 3.118651 
 
 4.116136 
 
 5.418388 
 
 7.114257 
 
 30 
 
 3.243398 
 
 4.331942 
 
 5.743491 
 
 7 612255 
 
 31 
 
 3.373133 
 
 4.538039 
 
 6.088101 
 
 8.145113 
 
 32 
 
 3.508059 
 
 4.764941 
 
 6 453387 
 
 8.715271 
 
 33 
 
 3.648381 
 
 5.003189 
 
 6.840590 
 
 9.325340 
 
 34 
 
 3.794316 
 
 5.253348 
 
 7.251025 
 
 9.978114 
 
 35 
 
 3.946089" 
 
 5.516015 
 
 7.686087 
 
 10.676581 
 
 36 
 
 4.103933 
 
 5.791816- 
 
 8.147252 
 
 11.423942 
 
 37 
 
 4.268090 
 
 6.081407 
 
 8.636087 
 
 12.223618 
 
 38 
 
 4.438813 
 
 6.385477 
 
 9.154252 
 
 13.079271 
 
 39 
 
 4.616366 
 
 6 .704751 
 
 9.703507 
 
 13.994820 
 
 40 
 
 4.801021 
 
 7.039989 
 
 10.285718 
 
 14.974458 
 
 41 
 
 4.993061 
 
 7.391988 
 
 10 902861 
 
 16.022670 
 
 42 
 
 5.192784 
 
 7.761588 
 
 11.557033 
 
 17.144257 
 
 43 
 
 5.400495 
 
 8.149667 
 
 12.250455 
 
 18.344355 
 
 44 
 
 5.616515 
 
 8.557150 
 
 12.985482 
 
 19.628460 
 
 45 
 
 5.841176 
 
 8.985008 
 
 13.764611 
 
 21.002452 
 
 46 
 
 6.074823 
 
 9.434258 
 
 14.590487 
 
 22.472623 
 
 47 
 
 6.317816 
 
 9.905971 
 
 15.465917 
 
 24.045707 
 
 48 
 
 6.570528 
 
 10.401270 
 
 16.393872 
 
 25.728907 
 
 49 
 
 6.833349 
 
 10.921333 
 
 17.377504 
 
 27.529930 
 
 50 
 
 7.106683 
 
 11.467400 
 
 18.420154 
 
 29.457025 
 

 
 APPENDIX. 
 
 1 
 
 Years. 
 
 4 per cent. 
 
 5 per cent. 
 
 G per cent. 
 
 7 per cent. 
 
 51 
 
 7.390951 
 
 12.040770 
 
 19.525364 
 
 31.519017 
 
 52 
 
 7.686589 
 
 12.642808 
 
 20.696885 
 
 33.725348 
 
 53 
 
 7.994052 
 
 13.274949 
 
 21.938698 
 
 36.086122 
 
 54 
 
 8.313814 
 
 13.938696 
 
 23.255020 
 
 38.612151 
 
 55 
 
 8.646367 
 
 14.635631 
 
 24.650322 
 
 41.315001 
 
 56 
 
 8.992222 
 
 15.367412 
 
 26.129341 
 
 44.207052 
 
 57 
 
 9.351910 
 
 16.135783 
 
 27.697101 
 
 47.301545 
 
 58 
 
 9.725987 
 
 16.942572 
 
 29.358927 
 
 50.612653 
 
 59 
 
 10.115026 s 
 
 17.789701 
 
 31.120463 
 
 54.155539 
 
 60 
 
 10.519627 
 
 18.679186 
 
 32.987691 
 
 57.946427 
 
 61 
 
 10.940413 
 
 19.613145 
 
 34.966952 
 
 62.002677 
 
 62 
 
 11.378029 
 
 20.593802 
 
 37.064969 
 
 66.342864 
 
 63 
 
 11.833150 
 
 21 .623493 
 
 39.288868 
 
 70.986865 
 
 64 
 
 12.306476 
 
 22.704667 
 
 41r646200 
 
 . 75.955945 
 
 65 
 
 12.798735 
 
 23.839901 
 
 44.144972 
 
 81.272861 
 
 66 
 
 13.310685 
 
 25.031896 
 
 46.793670 
 
 86.961962 
 
 67 
 
 13.843112 
 
 26.283490 
 
 49.601290 
 
 93.049299 
 
 68 
 
 14.S96836 
 
 27.597665 
 
 52.577368 
 
 99.562750 
 
 69 
 
 14.972710 
 
 28.977548 
 
 55.732010 
 
 106 532142 
 
 70 
 
 15.571618 
 
 30.426426 
 
 59.075930 
 
 113.989392 
 
 71 
 
 16.194483 
 
 31.947747 
 
 62.620486 
 
 121.968650 
 
 72 
 
 16.842262 
 
 33.545134 
 
 66.377715 
 
 130.506455 
 
 73 
 
 17.515953 
 
 35.222391 
 
 70.360378 
 
 139.641907 
 
 74 
 
 18.216591 
 
 36.983510 
 
 74.582001 
 
 149.416840 
 
 75 
 
 18.945255 
 
 38.832686 
 
 79.056921 
 
 159.876019 
 
 76 
 
 19.703065 
 
 40.774320 
 
 83.800336 
 
 171.067341 
 
 77 
 
 20.491187 
 
 42.813036 
 
 88.828356 
 
 183.042054 
 
 78 
 
 21.310835 
 
 44.953688 
 
 94.158058 
 
 195.854998 
 
 79 
 
 22.163268 
 
 47.201372 
 
 99.807541 
 
 209.564848 
 
 80 
 
 23.049799 
 
 49.561441 
 
 105.795993 
 
 224.234388 
 
 81 
 
 23.971791 
 
 52.039513 
 
 112.143753 
 
 239.930795 
 
 82 
 
 24.930663 
 
 54.641489 
 
 118.872378 
 
 256.725950 
 
 83 
 
 25.927889 
 
 57.373563 
 
 126.004721 
 
 274.696767 
 
 84 
 
 26.965005 
 
 60.242241 
 
 133.565004 
 
 293.925541 . 
 
 85 
 
 28.043605 
 
 63.254353 
 
 141.578904 
 
 314.500328 
 
 86 
 
 29 . 165349 
 
 66.417071 
 
 150.073639 
 
 336.515351 
 
 87 
 
 30.331963 
 
 69.737925 
 
 159.078057 
 
 360.071426 
 
 88 
 
 31.545242 
 
 73.224821 
 
 168.622740 
 
 385.276426 
 
 89 
 
 32.807051 
 
 76.886062 
 
 178.740105 
 
 412.245776 
 
 90 
 
 34.119333 
 
 80.730365 
 
 189.464511 
 
 441.102980 
 
 91 
 
 35.484107 
 
 84.766883 
 
 200.832382 
 
 471.980188 
 
 92 
 
 36.903471 
 
 89.005227 
 
 212.882325 
 
 505.018802 
 
 93 
 
 38.379610 
 
 93.455489 
 
 225.655264 
 
 540.370118 
 
 94 
 
 39.914794 
 
 98.128263 
 
 239.194580 
 
 578.196026 
 
 95 
 
 41.511386 
 
 103.034676 
 
 253.546255 
 
 618.669748 
 
 96 
 
 43.171841 
 
 108.186410 
 
 268.759030 
 
 661.976630 
 
 97 
 
 44.898715 
 
 113.595731 
 
 284.884572 
 
 708.314994 
 
 98 
 
 46.694664 
 
 119.275517 
 
 301.977646 
 
 757.897044 
 
 99 
 
 48.562450 
 
 125.239293 
 
 320.096305 
 
 810.949837 
 
 1 100 
 
 50.504948 
 
 131.501258 
 
 339.302084 
 
 867.716326 
 
 195 
 
ADDENDUM. 
 
 The decision in the case of Breasted vs. The 
 Farmers' Loan and Trust Company, was affirmed 
 by the Court of Appeals, at the June term, 1853. 
 See page 107. 
 
INDEX 
 
 Age, warranty of, 93. 
 
 Agent, party insuring the life of another, latter taken to be the 
 
 agent of the former, 120, 121. 
 Assignment of policies, 149. 
 
 of the legality of, 149. / 
 
 of notice to the assurers of, 155. 
 Assubance, origin of, history of, 1. 
 
 success of, in the United States, 7. 
 
 success of, in other countries, 10. 
 
 treatises on the subject of, 12. 
 
 contract of, denned and explained, 21. 
 
 when in the nature of an indemnity, 23. 
 
 manner of effecting, 24. 
 
 policy of, 28. 
 
 proposal for, contents of, 25. 
 
 purposes to which it is applicable, 30. 
 
 benefits of, 33. 
 Amicable Society for perpetual assurance, 4, 5. 
 Attendant, reference to medical, 25, 123. 
 
 reference to usual medical, 127. 
 Bkeslau tables of mortality, 17 (see appendix). 
 Carlisle tables of mortality, 17 (see appendix). 
 Commencement, of the risk (see risk). 
 Companies, different kinds of, 178. 
 Concealment, in general, its effect, 131. 
 
 what things need not be disclosed, 133. 
 
 of material facts, 131, 136. 
 
 of facts not considered material by the assured, 136. 
 
198 INDEX. 
 
 Concealment of facts not within the knowledge of the assured, 
 137. 
 
 by party insuring the life of another, 121. 
 
 by party whose life is insured by and for the bene- 
 fit of another, 121. 
 
 of birth of a child by unmarried female, 140. 
 
 of residence in a jail, 139. 
 
 of intemperate habits, 143. 
 
 of what a party's ancestors died, 134, 135. 
 
 Conditions, as to traveling and visiting certain places, 29. 
 as to being engaged in certain occupations, 29, 
 
 Construction of certain clauses in policies (see warranty). 
 
 Creditor, assurance by, 54. 
 
 to what extent creditor can assure, 54. 
 assurance by, in the nature of an indemnity, 54. 
 not entitled to recover on policy after debt is paid, 
 
 though paid, aliunde, 54. 
 payment by the assurers no discharge of the debt, 169. 
 
 Death, must happen within the time limited in the policy, to 
 entitle to recover, 68. 
 presumption of, 70. 
 
 whether it so happened, for the jury, 69. 
 by suicide, or by one's own hands, 105. 
 by the hands of justice, 111. 
 
 Debt, assurance a means of securing, 35. 
 
 not discharged by the payment of the policy, 169. 
 policies of assurance will pass in a will under the word 
 debt, 173. 
 Debtor, when entitled to the policy effected on his life by his 
 
 creditor, 176. 
 Disorder, tending to shorten life, 99. 
 Duration of the risk (see risk). 
 France, life assurance in, 10. 
 
 Fradd, by the assured, 120 (see misrepresentation and conceal- 
 ment), 
 by party acting in behalf of assured, 120, 121. 
 
INDEX. 199 
 
 Fraud by assurance company, 130. 
 
 Insanity, effect of suicide committed while laboring under, 106. 
 Intemperance, effect of, when no clause in the policy in refer- 
 ence thereto, 142. 
 effect of, where there is such clause, 104, 147. 
 Interest, in the life assured, 39. 
 
 origin and object of the rule requiring it, 39. 
 
 assurance void without it, 40, 41. 
 
 must be pecuniary, 41. 
 
 extent of, required, 43. 
 
 policy ceases when it ceases, 44.'' 
 
 in one's own life, 46. 
 
 of parent in life of a child, 49. 
 
 custom of offices of paying where there is no, 50. 
 
 of wife in life of her husband, 51, '52, 53. 
 
 of a single woman in life of a brother who supports 
 
 her, 51. 
 of a creditor in life of his debtor, 54. 
 of a creditor ceases, on pajment of debt, 5,7. 
 in life of a party who has agreed to pay the debt of 
 
 another, 58, 59. 
 in the life of the maker of a note for money won at 
 
 play, 59. 
 of an executor in trust, 60. 
 
 of grantee of an annuity in the life of grantor, 62. 
 recoverable on policies, 165. 
 compound interest table (see appendix). 
 Italy, life assurance in," 10. 
 
 Joint Stock Companies, plan of operation of, 178. 
 Material Facts (see concealment and misrepresentation). 
 
 whether a fact is material is a question for a 
 jury, 119, 136. 
 Medical Attendant (see attendant). 
 Misrepresentation, its form and effects, 115. 
 
 distinction between warranty and misrepre- 
 sentation, 115. 
 fact must be material, to avoid policy, 119. 
 
200 INDEX. 
 
 Misrepresentation whether a fact misrepresented is material a 
 question for a jury, 1 19. 
 of a material fact, will avoid policy, though 
 loss arise from a cause unconnected 
 therewith, 122. 
 effect of when made through mistake, 122. 
 of a material fact without fraud, 122. 
 of immaterial fact, 119. 
 the same effect, whether by assured or his 
 
 agent, 120. 
 statement untrue in fact but not to the 
 knowledge of the party making it, 122, 
 160. 
 as to medical attendant, 123. 
 as to the usual medical attendant. 127. 
 by assurers, 130. 
 Mortality, tables of, 16 (see appendix). 
 Mutual Assurance, system of, 6, 179. 
 Northampton tables of mortality, (17 see appendix). 
 Notice, to the assurers of assignment of policies, 155. 
 Policy, form of, 28 (see appendix), 
 contents of, 29. 
 assignment of, 149. 
 of the legality of assignment of, 149. 
 notice of assignment of, 155. 
 effect of immoral conduct of assured on, 142. 
 interest recoverable on, 165. 
 debtor when entitled to benefit of, 176. 
 Premium, return of, 159. 
 
 when there is a clause in the policy in reference to 
 
 return of, 147. 
 when there is no clause in the policy in reference to 
 
 return of, 160. 
 voluntary payment of, confers on payer no interest in 
 
 the policy, 176! 
 of life assurance not chargeable on the vendor of a 
 rescinded annuity, 173. 
 
INDEX. 201 
 
 Presumption, of death, 70. 
 
 of survivorship, 75. 
 Proprietary System or Assurance, 178. 
 Reference, to medical attendant, 123. 
 Return of premium, 159. 
 Risk, commencement of, usual time of, 63. 
 
 signing and delivery of policy not essential to the incep- 
 tion of, 63. 
 payment of premium not essential to the inception of, 66. 
 true rule fov determining the commencement of, 63. 
 of the clauses " from the date" and " from the day of the 
 
 date," 1 68. 
 duration of, 68. 
 
 ceases when policy expires, 68. 
 may cease before for non payment of premiums, 79. 
 always entire in life assurance, and therefore never any 
 partial loss, 161. 
 
 Survivorship, presumption of, 75. 
 
 Swedish tables of mortality, 18 (see appendix). 
 
 Trustee may insure for benefit of cestui que trust, 60. 
 
 Warranty, affirmative and promissory, 93. 
 its form, 87. 
 its effect, 85. 
 must appear on the face of the policy Or be referred 
 
 to therein, 92, 93. 
 distinction between representation and warranty, 87. 
 must be strictly true and complied with, 86. 
 that the assured is in " good health, 94." 
 that the assured has "no disorder tending to shorten 
 
 life." 99. 
 of sober and temperate habits, 104. 
 spitting of blood, 103. 
 that the assured has not had gout, vertigo, fits, &c, 
 
 103. 
 
202 INDEX. 
 
 Warranty, that the assured shall not commit suicide or die by 
 his own hands, 105. 
 that the assured shall not die by the hands of 
 
 justice, 111. 
 general construction of, 1 12. 
 

 Date Due 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Library Burea 
 
 u C«». No. 1137 
 
 
KP 1175 Rl+6 
 
 
 Author 
 
 Reynolds, Dexter 
 
 Vol. 
 
 Title A treatise on the law of 
 life assurance, . . . 
 
 Copy 
 
 
 
 Date 
 
 Borrower's Name