The declaration referred to was in a printed form, partly filled up and signed by ,one William Weems, an assurance against whose death was the subject-matter of the In an action on the policy against the cnmpany the latter resisted the claim, and, though raising no defence based upon fraud, set up a defence that there was an untrue averment in the declaration. This averment, which was proved to be false, was contained in the answer, " Teniprate ; Yes," by Weems, to the questions, "(1) Are you temperate in your habits ? (2) and have you always been strictly so ?" And the company succeeded in its defence, for the policy was declared to be absolutely null and void, on the ground that the declaration of \Veen's, taken in connection with the policy, constituted an express warranty that the answer to the above question was true in fact. though, as a matter of fact, the answer was false. If there had been no more than a warranty to the above effect, and if it had been disproved, the risk would never have attached, the premiums therefore would never have become due, and might, if paid, have been recovered back as money paid without consideration. But it has become usual, at least for the last seventy years, to insert a term in the contract, that if certain statements 8.re untrue the premiums shall be forfeited. This, no doubt, is a hard bargain for the assured if he bas innocently warranted what was not accurate, but if he has warranted it at all, " untruth," without any moral guilt, avoids the insurance. And, as held in Duckett v. Williams, what is untrue so as to have effect of avoiding an insurance, is also untrue so as to cause the forfeiture of the premium. But, in such a case as that of Tlummon v.Wecms, the burden is on the company to prove drinking carried on before the date of the declaration, to such an extent as to amount to intemperance, and so often and continuously as to amount to habits of intemperance. Afore than this the company need not prove. And the ca.se of Hambm v. Mutual Life Insurance Co. of New York goes so far as to decide that where in Lhe proposal the applicant warrants the statements therein to be true, then the law will take it that a special contract is iinported into the policy that the facts are actually such as they are represented In the proposal. The decision in Everett v. Desborough is also of considerable importance in connection with the topic of represents. tion. The headnote to the report of this case in the Revised Reports may be usefully quoted at length. It runs as follows :—"1. In an insurance upon the life of another, the life insured, if applied to for information, is, in giving such information, impliedly the agent of the party insuring, who is bound by his statements, and must suffer if they are false, although he is unacquainted with the life insured, and the servant of the insurance office undertakes to do all that is required by his oflice. 2. Plaintiff effecting an insurance on the life of II., with whom he was unacquainted, desired the agent of the insurance office to do all that was requisite. The agent knew H. well, and made the usual inquiries. One of the terms of the contract was, a reference to the usual medical attendant of the life insured." Yet II. having given a false reference, it was held that the plaintiff could not recover upon the policy. But the recent case of Ilanden v. London, Edinburgh, and Glasgow Assurance Co. very distinctly emphasises the fact that, under certain circumstances, the knowledge of a company's agent is the knowledge of the company itself. This was not a life assurance case but one of accident iasurance ; nevertheless the principle is the same. At the time the insured signed the proposal, which stated that Ile had no physical infirmity, and that there were no particular circumstances that rendered him peculiarly liable to accidents—he had lost the sight of one eye, a fact of which the company's agent was aware, though he did not communicate it to the conipany. The insured could not read or write, and was only able to sign his name. During the currency of the policy he met with an accident, which resulted in the complete loss of sight in his other eye, so that he became permanently blind and entitled to the benefit of the insurance. The company resisted the claim, but unsuc cessfully.
Care should always be taken by a proposer to give a reference, when so required by the company, to Hs " regular" medical attendant, and not merely to one whose attendance has only been casual, for should he be remiss in this respect the policy may be held to be void (Huckman v. Fernie; _Everett v. Desborouo•h) • and he must certainly not withhold information ' as to any companies millet may have refused to assure him (London Assurance Company v. Mansel).
Disposition of Policy.—When a man has effected an assurance upon Hs own life, he has usually done so under a policy which provides for payment, upon his death, to Ins executors or adminisirators; but it is equally cus tomary at the present day to provide for payment to him personally if and when he attains a certain age. In either of these cases the policy, while current, is in fact a security for money due to him, and this security he is entitled to sell, mortgage, or give away, as freely as he can so deal with any otter security he may possess, subject, however, to compliance with formalities specially incidental to policies of insurance. And it also follows that so long as he continues to hold the policy as his own property, it forms, during his life, a part of his available estate in case he should become a bankrupt. But there are other modes of assurance, some of which have already been indicated in this article. He may assure his life for the benefit of another—his creditor, for instance—and the pelicy in such a case, in order that the intended benefit should be effective, must expressly state that it is payable to that other person. Here it is evident that prima' facie the policy is not the property of the assured, and he is accordingly unable to dispose of it. This latter form is that usually adopted when it is desired to make some certain provision for a wife and family ; an object the public utility of which has been recognised by the legislature. At present the statutes governing this matter are, in Scotland, The Policies of Assurance Act, 1880, and, in I4Iigland, the Married Women's Property Act, 1882. Section 11 of the latter Act, which is on similar lines to the Scots Act, first confers on a married woman the power to effect a policy upon her own life or the life of her husband for her separate use. It then proceeds to declare that a policy "effected by any man on his own life, and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband, or of her children, or of her husband and children, or u.ny of them, shall create a trust in favour of the objects therein named, and the monies payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of the insured, or be subject to his or her debts." But if it can be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the assured, those creditors will be entitled to receive, out of the monies payable under the poliry, a sum equal to the premium so paid. The assured may appoint ft trustee or trustees of the monies payable under the policy. He may also from time to time appoint a new trustee or new trustees thereof, and make provision for the appointment of a new trustee or new trustees. He can also make provision for the investment of the monies payable under such a policy. These appointments or provisions can be made in the policy, or by any memorandum under the hand of the assured. In default of the appointment of a trustee the policy, immediately on its being effected, vests in the assured and his or her legal personal representatives, in trust for the stbove mentioned purposes. If there is no trustee at the time of the assured's death, or at any time after, or there is then y. need for a new trustee, the court will make any necessary appointment. The 'receipt of a trustee or trustees duly appointed, or in default of appointment, or in default of notice to the assurance office, the receipt of the legal personal repre sentative of the assured will be a discharge to the company for the sums seeured by the policy, or for the value thereof, in whole or in part. If a wife, for whose benefit such a policy has been effected, feloniously causes the dea.th of her husband, as by poisoning him, neither she nor her estate will be entitled to the monies payable under the policy. Nor will the company be allowed to retain them. According to Cleaver v. Mutual Reserve Fund Life Association, a case which arose out of the Maybrick poisoning, the trust created in favour of the wife will have been defeated by her crime, and the insurance money will become the property of the husband and his estate. As between his legal representatives and the company no question of public policy can be said to arise which would afford the latter a defence to a claim made by the assured's representatives.