“An insurance upon life is a contract by which the underwriter for a certain sum, proportioned to the age, health, profession, and other circumstances of that person, whose life is the object of insurance, engages that the person shall not die within the time limited in the policy; or if he do, that he will pay a sum of money to him in whose favour the policy was granted. Thus, if A lend £100 to B, who can give nothing but his personal security for repayment; in order to secure him in case of his death, B applies to C an insurer, to insure his life in favour of A, by which means, if B die within the time limited in the policy, A will have a demand upon C for amount of his insurance.” 2 Park on Insurance, 636.

The insurance must be made by a party having an interest in the life insured, for by 14 Geo. 3, c. 48, s. 1, it is enacted, “That no insurance should be made by any person or persons, bodies politick or corporate, on the life or lives of any person or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account, such policies should be made, should have no interest, or by way of gaming or wagering; and every insurance made contrary to the true intent and meaning thereof should be null and void to all intents and purposes.” And also “That it should not be lawful to make any policy or policies on the live or lives of any person or persons, or other event or events, without inserting in such policy or policies the person’s name interested therein, or for whose use, benefit, or on whose account such policy was to be made or underwrote. And that in all cases where the insured had had an interest in such life or lives, event or events, no greater sum should be recovered, or received from the insurer or insurers, than the amount or value of the interest insured, in such life or lives, or other event or events.”

A creditor has an interest in the life of his debtor, Anderson v. Edie, K. B. Trin. Term. 1795, but it must be for a good and legal consideration, not for gaming, Dwyer v. Edie, Hill. Term. 1788. If the creditor be paid by the executors, though from funds furnished aliunde, (their testator having died insolvent) he cannot recover against the insurers. Godall and others v. Boldero and others, 9 East 72.

Death by suicide, or the hands of justice, is generally excepted in all policies, and no premium is returned, though such event should happen on the day of insurance, by Lord Mansfield in Bermon v. Woodbridge, Doug. 789 and in Tyrie v. Fletcher, Cowp. 669; and as this is a matter of contract, it appears to be unimportant whether the party dying by his own hands be found felo de se or not.

And if there be any fraudulent concealment as to the state of the party’s health or age^[582] the policy is void. But “even where there is an express warranty that the person is in good health, it is sufficient that he is in a reasonable good state of health; for it never can mean that the cetui que vie is perfectly free from the seeds of disorder. Nay even if the person, whose life was insured, laboured under a particular infirmity, if it can be proved by medical men, that it did not at all, in their judgment, contribute to his death, the warranty of health has been fully complied with, and the insurer is liable. 2 Park on Ins. 649.

“Thus in an action on a policy made on the life of Sir James Ross, 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 at the battle of La Feldt in the year 1747, in his loins, which had occasioned a partial relaxation or palsy, so that he could not retain his urine or foeces, and which was not mentioned to the insurer. Sir James died of a malignant fever within the time of the insurance. 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 that shortened life, but he might, notwithstanding that, have lived to the common age of man; and the surgeons 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 upon the whole he did not look upon him as a good life.

“Lord Mansfield.—The question of fraud cannot exist in this case. When a man make insurance on a life generally, without any representation 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 alleging what was false. But if the person insuring knew no more than the insurer, the latter takes the risk. In this case there is a warranty, and wherever that is the case, it must at all events be proved that the party was a good life, which makes the question on a warranty much larger than that on a fraud. Here it is proved that there was no representation at all, as to the state 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 reasonable 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. Ibid. 1 Black. Rep. 312.

In Willis v. Poole, which was on a case of gout,^[583] the same learned judge said, “Such a warranty can never mean that a man has not the seeds 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. Park 650.

“It is not to be concluded, that a disorder with which a person is afflicted before he effects an insurance on his life, is a disorder ‘tending to shorten life,’ within the meaning of a declaration of the insurance offices, from the mere circumstance that he afterwards dies of it, if it be not a disorder necessarily having that tendency. Watson v. Mainwaring (4 Taunt 763). This case turned on the question whether the complaint with which the deceased was afflicted and ultimately died, was an ordinary, or an organic dyspepsia. The jury found that it was neither organic nor excessive (i. e. at the time of insurance.)”

Chambre J.—“All disorders have more or less a tendency to shorten life, even the most trifling; as for instance, corns may end in a mortification; that is not the meaning of the clause: if dyspepsia were a disorder tending to shorten life within this exception, the lives of half the members of the profession of the law would be uninsurable.”

If the insurance be for a year, the day of the date^[584] is included, (thus a policy effected on the 3d of Sept. 1697 insures the whole of the 3d of Sept. 1698, being a year and a day) but the allowance of fifteen days or more usually given to pay up arrears of premium does not cover a death happening within them, (Want, Exix, v. Blunt, 12 East. 183,) for the contract is, that the insured shall himself pay during his life, not that his executors or administrators shall pay; and personal contracts shall be performed according to the words and apparent meaning of the parties, and not by a performance cy-pres; see also Tarleton v. Stainforth, 5 T. R. 695. The death must happen within the time insured, for if a person, whose life is insured for one year, receive a mortal wound within the year, but does not die till after the year, the insurer would not be liable; Mr. Justice Willes, in Lockyer v. Offley, 1 T. R. 252; but if the insurance were for life, he might pay up his arrears within the fifteen days.

It is evident that medical practitioners must have frequent occasion to give testimony on this subject; but it is only necessary for us here to observe, in addition to the general rules of evidence, that the declaration of a wife, whose life had been insured, has been admitted as evidence to prove the state of her health; her husband after her death having brought an action against the insurance company, Avison v. Lord Kinnaird; this case is important to medical witnesses in several points. See 2 Pr. Smith’s R. 286, 6 East. 188.

This branch of the law is also important to the faculty, as they must frequently be called upon to justify the medical certificates which the insurance offices uniformly require before they issue a policy, and it continually involves the very nice question as to what shall or shall not be considered a disease tending to shorten, or endanger life.^[585]

So also medical evidence is often required to ascertain the state of a life on which an annuity may have been granted; where either the gross inadequacy of the price paid, or the exorbitance of the annuity secured, becomes a question for legal determination.^[586]