not to have exceeded 70 years. She was residing, at the time of her death, with a son-in-law, who directed the age to be put upon the coffinplate as 81 years, but who, it afterwards turned out, had no grounds for supposing this to have been the actual age. On the production of the burial certificate the policy was declared void, and the deceased having been the child of Baptist parents, no evidence of birth could be obtained; although it was said that secondary evidence could be so to prove that she could not have been more than two or three years older than she was stated to have been in the declaration. The company, however, not only declared the policy void, but although the sum of 525l. 7s. 6d. had been received, refused to make any allowance: they said that they would have returned the balance of the sum assured, after deducting the difference between the premium that was paid, and that which ought to have been paid, according to the age in the certificate, but that the application of this rule would leave nothing to be returned. Another, and perhaps fairer mode of adjusting the claim, when the misstatement was [ *80] unintentional, is to declare the policy good for such sum as would have been insured at the real age by the premium actually paid.

19. The construction of policies of insurance, as Lord St. Leonard's has observed, is exceedingly important from the consequences flowing from it, since upon these instruments many people entirely depend as their security for a provision for their families. As they are prepared by the company, any ambiguity which may be found in them mustand this remark has been repeatedly made-be taken most strongly against it. At the same time the Courts, observing how very often companies of this nature have been subjected to frauds, will carefully guard them against fraud, and will give effect to any part of the contract which has this object. Nay, more, it is from the very advice given in courts of law, that the companies have endeavoured to protect themselves by those stringent provisions which we so usually find in policies of assurance. But however severe the terms, there should be no ambiguity upon the instrument itself. "A policy ought to be so framed, that 'he who runs may read;' with such deliberate care that no form of expression, by which the party assured can be caught on the one hand, or by which the company can be cheated on the other, should be found on the face of it; and nothing should be wanting in it, the absence of which may lead to such result." Courts of justice, therefore, while showing the utmost anxiety to protect the companies against fraud, will endeavour to give such a construction to their policies, as will afford a fair security to the persons with whom they are made, that, upon the ordinary construction of language, they are safe in the policies that they have accepted.(z)

(z) Anderson v. Fitzgerald, 21 Law T. 245, (House of Lords.) JULY, 1853.-5

THE ONUS OF PROOF OF THE TRUTH OF THE WARRANTIES, ETC.INDISPUTABLE AND UNCHALLENGEABLE POLICIES. -THE RIGHT OF THE INSURERS TO SET ASIDE THE CONTRACT IN CERTAIN CASES.THE RETURN OF THE PREMIUM AND THE REFORMATION OF THE

CONTRACT.

1. SHOULD any dispute arise, upon the death of the assured, as to the correctness of the statements made in the declaration, the burthen of the proof, it is said, will fall upon the plaintiff, with whom it will rest, before requiring the insurers to produce any evidence to impugn such statements, to make out by evidence their truth, which is in fact the basis of the action, and a condition precedent to any right to recover upon the policy. This rule has been thus broadly stated, and in text-books, by way of warning to persons effecting insurances; but it is remarkable, that in the reported cases this apparent burthen has been claimed by both parties, as involving in itself the privilege of the right to begin, or of first addressing the Court, and to reply. When real damages are sought to be recovered at Nisi Prius, every one of any experience knows what the effect of the first and last word is and hence the importance of the point. The general rule is, that the right to begin will rest with that party upon whom the affirmative of the issue is cast.

The cases must be admitted to be at variance with each other. In Huckman v. Fernie, (a) the declaration, after setting out the proposal, averred the truth of all the statements thereby made. The defendant pleaded that the said E. H. had not led, nor did she continue to lead, a temperate life; and that at the time of the proposal she *was [*82] afflicted with divers diseases, which were then enumerated, and that such material facts were well known to the plaintiff; the pleas ending with a verification. The Court held that the right to begin rested with the plaintiff; that the averment in the declaration that E. H. did lead a temperate life was necessary to make it good, and the plaintiff must give some evidence that the life was in an insurable state; that before the new rules, that must have been shown under the general issue; and when an issue was taken upon it, the plaintiff must equally prove it. In Ashby v. Bates, (b) the pleadings were similar; and there was a similar question as to the existence of certain maladies, and there was a similar decision. The defendant," says Alderson, B., "has contradicted what the plaintiffs affirmed; the real issue is, whether what they have so affirmed is true. If it be true, it is for the plaintiffs to prove its truth; so that the only difficulty in the case has arisen from the manner in which the defendant has pleaded, by concluding with a verification instead of to the country. With respect to the other point," he added, "whether we ought to grant a new trial, on the ground that the plaintiffs were pre(b) 15 M. & W. 589.

(a) 3 M. & W. 505.

vented from beginning, I have had much doubt, for although I agree in the observation of the Lord Chief Baron, as to the advantage derived in some cases from beginning, it appears to me that a larger amount of proof has in this case been thrown on the defendant than there ought to have been, for, in my view of it, all he was bound to do was to show it to be doubtful whether the plaintiff's statement to the office was true; whereas the jury was here called upon to find for the plaintiffs, unless the defendant showed the declaration to be untrue; thus giving the plaintiffs a greater advantage than, as it appears to me, they were entitled to." In a still later, but exactly similar case, however, the learned judge (Parke, B.) at

Nisi Prius, had ruled that the defendants had the right to *begin, [ *83]

and a rule for a new trial was refused. The declaration had set forth the policy, which referred generally to the proposal made to the company, and then averred that in it there was no untrue or fraudulent statement; thereupon the defendants replied that it was alleged in the declaration that the habits of the assured were sober and temperate, but that the contrary was true. The learned judge ruled as above, on the grounds, first, that the plaintiff did not show what were the statements made in the proposal, but that they were set out in the plea, and consequently must be proved by the defendants; secondly, that the allegations in the plea were allegations of falsehood amounting to fraud in the assured, and must therefore be proved by the party making them, the presumption being always in favour of innocence and against fraud, and that therefore, as, supposing no evidence were given in support of the plea, the plaintiff would be entitled to recover, the defendants ought to begin. The Court in Banc considered that the learned Judge at Nisi Prius had been right in his ruling, and that the test as to who should begin, is, to consider who would be entitled to the verdict in the event of no evidence on the other side being offered, the right being with the party on whom rested the burthen of proof, in this case the defendant.(c)

2. To meet the doctrines thus laid down, as also to prevent a possible dispute by anticipation, it has been suggested that proof should be given at the time that the policy is issued as to such facts as are susceptible of it, as, for example, as to the age of the assured, and their correctness admitted by indorsement upon the policy. This having been done, no question could arise, unless fraud had been used to obtain the admission. It will, however, be rarely found important to obtain any other admission than that the age has been correctly stated; and this, as we have already shown, should never be omitted. It has been also proposed that the interest of the assured *should be admitted; but this, in the [*84] absence of interest, would not, it may be presumed, prevent the insurers from showing that, in fact, there was none, since the evidence of an insurable interest is not a matter of contract (unless expressly mentioned,) but is required by public policy and the act of the legislature.

3. In order to escape the hardship, sometimes real, often rather apparent than real, of the rules of law as to warranties and representations

(c) Leete v. The Gresham Life Assurance Society, 15 Jur. 1161, Exch.

treated of in the former chapters, schemes have been proposed, by which policies may be issued, as far as possible, free from the objections thus arising, and such policies are to be termed "indisputable and indefeasible." Now, in the first place, every contract may, in a sense, be said to be so that does not contain a power of revocation; but this is not, of course, the intention, which must, on the contrary, be to prohibit the company from defending an action in some, if not in all cases; or that the policy is issued subject to one single condition, namely, the occurrence of the death of the assured, or perhaps subject only to this and the further condition, that the assured shall not proceed beyond certain specified limits. It is clearly open to the parties to contract where no representations whatever are made by the assured, or for the insurers to issue the policy free from all conditions.(d) The object of the assured in such a case is to obtain an assurance representing an unconditional obligation to pay on the occurrence of the event. This is readily carried out the difficulty is to combine therewith the preliminary investigation by the assurers through the medium of the assured and his agents, without which it is obvious that the company *cannot safely issue [*85] the policy. The problems then present themselves for solution, how far the preliminary investigation can be the basis of the contract prior to the issue of the policy, and yet be separated from the contract when completed; and, if this is not possible, how far the proposal may itself be modified, so as to prevent its importing any condition into the contract. The two questions must be considered together. It is clearly open to the assured to stipulate that any information given by him shall not be taken to be a representation, the truth of which is to be imported as a condition into the policy, as, for example, he may state it "to the best of his belief," or simply as a fact "of which he has been informed." He may also, it would seem, stipulate, that tendering general information, he is not to be answerable for the unintentional suppression of a material fact within his knowledge. Here, however, would appear to be the limit of his power of controlling the effect of his own acts and statements; such a course could not make the policy indisputable, and its application is no new invention. In such cases the question would be one of intention, and for a jury; but it could rarely happen that a suppression of a fact proved to have been present to the mind of the party at the time, or a misrepresentation made without some grounds for it, could be other than fraudulent. Now it is quite clear that a condition that the insurers shall not raise any objection, even in the case of fraud, is a void condition. It has even been questioned whether it would not be sufficient to render the policy itself wholly void ab initio as an illegal contract. Fraud is, however, it is believed, never mentioned in these policies, and, if so, must be assumed to be excluded, since that construc

(d) The old form of policy, observes Mr. Meredith, in a note to his translation of Emerigon's Treatise, contains no warranty of any kind, is short, but runs in part thus "Dicto tempore durante dictus pater Ferandus decederet, seu vita careret in quâvis morte tàm naturali, quàm accidentali, quàm etiam quovis alio modo quo dici, imaginari, seu cogitari posset, nemine excluso tali casu infrascripti assecuratores solvere teneantur," p. 157.

tion is always to be preferred which will support a contract, and it is
never to be supposed that the parties to it intend an illegal stipulation,
where a lawful meaning can be given to their words. It would also seem
open for the assured to stipulate that he should not be answerable for the
statements made by the referees; and where there is no complicity on his
*part with them, there does not seem on principle any reason why
such a stipulation should not be good. The only difficulty is [*86]

where the replies of the referees are actually fraudulent. As regards
the medical referee, there can be no choice of the party; but, as regards
those who are the choice of the assured, an objection might be raised, if
it could be proved that the party referred to were in his knowledge of
impeachable veracity. Here, however, the practical difficulty arises,
whether the insurers can be advised to enter into such contracts. It is
certainly hard that the unintentional neglect of a referee to mention a
material fact within his knowledge should vitiate a policy, more particu-
larly when the reply is not only made without the privity of the assured,
but is actually withheld from him by the company, who in their applica-
tion for information expressly agree that the reply shall be strictly pri-
vate and confidential: but, on the other hand, it may be objected that
the operation of some such rule, making a full disclosure of all material
facts by the referee necessary for the safety of the assured, is absolutely
necessary to obtain such disclosure. It is also apparently hard that a
similar neglect on the part of the assured should have this effect, although
here, if an innocent party is to suffer by a mistake, it would seem at least
equitable that he by whom it is made should do so. It may be said that
if it is a fundamental rule of the company, that notwithstanding any
omission or representation, not actually fraudulent, the policy should
remain in force, all the assured are equally benefited, the risk of having
a share of any possible loss being an assurance, as it were, by each in-
surer, against the risk of hazarding the whole of his insurance by an
unintentional omission. But to this there is the obvious objection, that
such a rule would operate as an inducement to suppression and prevari-
cation. There must be some limit to the indefeasibility of the policy,
and actual fraud must at any rate be so; and although a jury may refuse
to find a suppression or misrepresentation to be fraudulent, the boundary
line between fraud and negligence or mistake, in such a case, is
very indistinct, and difficult, if not impossible, to define. The [87]
equitable rule requires that the two parties should contract pari passu;
they certainly do not do so where one party is to be allowed to conceal
or suppress material points, and then plead his own ignorance or stu-
pidity as a defence.

4. The preceding observations are thrown out for the consideration of the reader, and are generally applicable. In one company claiming for its policies the title of indisputable, the claim is attempted to be carried out by the following proviso:

"That every policy issued by the Company shall be indefeasible and indisputable, and the fact of issuing the same shall be conclusive evidence of the validity of the policy; and it shall not be lawful for the company to delay payment of the money assured thereby on the ground