(o) Morrison v. Muspratt, 4 Bing. 60; Everett v. Desborough, 5 id. 503; Lindenau v. Desborough, 8 B. & C. 586; Hockman v. Fernie, 3M.&W. 505.

(p) See Southcombe v, Merriman, Car. & M. 286.

1 That it is for the jury to say whether this question is truly answered, see Cushman v. U. S. Ins. Co. 70 N. Y. 72; Scales v. Universal Ins. Co. 42 Cal. 523.

2 Union Ins. Co. v. Reif, 36 Ohio St. 596; McGinley v. U. S. Ins. Co. 77 N. Y 495. That the jury must decide, see Swick v. Home Ins. Co. 2 Dillon, 160; Mowry v. Home Ins. Co. 9 R. I. 346; John Hancock Ins. Co. v. Daly, 65 Ind. 6. A single attack of delirium tremens will not invalidate a statement by the assured that he is a man of temperate habits, where his habits, "in the usual, ordinary, and every-day routine of his life," were temperate. Ins. Co. v. Foley, 105 U. S. 350.

There is always a general question, whether any facts exist * or have existed affecting health, other than those which have been particularly inquired of. It would seem from the cases, that this question is held to cover all facts whatever, which might have this character; and it is a question for the jury whether the fact concealed was material, and whether the concealment was honest. (r) Thus, where a life-insured did not state that she was a prisoner for debt at the time of effecting the insurance, the materiality of the concealment was considered a question for the jury. (s) And in another case, which would seem to be an extreme one, the plaintiff was non-suited, because a woman whose life was insured had had a child some years before under disgraceful circumstances, and this fact was not stated. (t) In another, a man taking out a life insurance, was asked in what relation the person for whose benefit it was taken out, stood to him, and answered "wife." This was untrue, and it avoided the policy. (tt) 2 Even if material facts are misrepresented, but honestly, and in mere ignorance, and the insurers knew the truth, the policy is not thereby avoided. (u) Nor is it avoided by such misstatement of a fact, which, if truly stated, would diminish the risk; for then, if the insurers are deceived, it is to their own advantage. Nor is the policy avoided by a mere misrepresentation relating to a fact concerning which there is an express warranty. (u)

If the insurers defend on the ground that the insured was not

(q) Chattock v. Shawe, 1 Moody & R. 498.

(r) Lindenau v. Desborough, 3 Car. & P. 353, 8 B. & C. 586; Mormon v. Mus-pratt, 4 Bing. 60; Everett v. Desborough, 5 id. 503; Dalglish v. Jarvie, 2 Macn. & Q. 243.

(s) Huguenin v. Rayley, 6 Taunt. 186.

(t) Edwards v. Barrow, Ellis, Ins. 123.

(tt) Equitable Life Ins. Co. v. Paterson, 41 Ga. 338.

(u) Carter v. Boehm, 3 Burr. 1910.

(v) Haywood v. Rodgers, 4 East, 590; Anderson v. Fitzgerald, 4 H. L. Cas. 484, 24 Eng. L. & Eq. 6, Parke, B.

1 World Ins. Co. v. Schultz, 73 Ill. 586; but not if the question was whether he "ever had" fits, - AEtna Ins. Co. v. France, 94 U. S. 561. See Wilkinson v. Conn. Ins. Co. 30 Ia. 119.

2 Holabird v. Atlantic Ins. Co. 2 Dillon, 166.

in good health at the time of effecting the insurance, the burden is on them to prove this. (w) If a person insures the life of another, he is bound by the misrepresentations of that other, although he is himself ignorant of their falsity. (x) But he is not bound by the concealment of facts by the life-assured, of which he himself is ignorant, which are not called for by a general or particular question, unless the life-assured is his general agent to effect the policy. (y) So it would be if the third person is himself unconscious of concealing facts. (z)

It may be added, that where a proposal is made and an •agreement entered into for a life insurance, and a policy prepared, differing from the agreement, equity will relieve by reading the policy in conformity with the agreement. But this relief, of course, would not be given, if the insurers had intended to vary the agreement, and the policy was accepted by the insured with a knowledge of that variance. (a)