FOURTH DEPARTMENT. 
ANNA N. DWIGHT and others, as Executors, 
&c.; of WALTON DWIGHT, De- 
ceased, Respondents, 
against 
THE GERMANIA LIFE INSURANCE COM- 
PANY, Appellant. 
Statement and Points for Appellant. 
JOS. LAROCQUE, 
Of Counsel. 
SHIPMAN, BARLOW & LAROCQUE, 
Attorneys for Appellant, 
35 William Street, New-York City. 
^eto-^orh : 
HENRY BESSEY, LAW PRINTER, 
No. 47 Cedar Street. 
1884. SUPREME COURT, 
FOURTH DEPARTMENT. 
Anna N. Dwight and others, as 
Executors, &c., of Walton 
Dwight, deceased, 
Respondents, 
against 
The Germania Life Insurance 
Company, 
Appellant. 
Statement and Points foe Appellant 
Statement. 
This cause comes before the General Term on 
appeals taken by the defendant from a judgment 
entered in favor of the plaintiffs on the 23d day of 
May, 1884, on the verdict of a jury ; and from an 
order denying a motion made on the part of the 
defendant, before the Justice presiding at the 
Circuit at which the cause was tried upon the 
minutes of the said Justice to set aside the said 
verdict, and for a new trial upon the exceptions 2 
taken by the defendant, and on the ground that 
the said verdict was contrary to the evidence and 
contrary to law. 
Notices of Appeal, fols. 1 and 132. 
The action was upon a policy of insurance on 
the life of Walton Dwight, the plaintiffs' testator, 
for $15,000, issued by the defendant on the 28th 
day of August, 1878 (Policy Exhibit A, fol. 17). 
The application on which this policy was based 
appears in the Appendix as Defendant's Exhibit 
No. 21, at fol. 2364. 
This application was one of thirty-two applica- 
tions for insurance on his life, in sums aggregating 
about $400,000, made by Walton Dwight to vari- 
ous Life Insurance Companies between the 31st 
day of July, 1878, and the 9th day of September 
in the same year, both dates inclusive, under cir- 
cumstances to which the attention of the Court 
will be more particularly invited hereafter. 
On these applications he actually succeeded in 
getting possession of policies aggregating two 
hundred and fifty thousand dollars of insurance. 
(See schedule attached to proofs of death, Exhibit 
<'B," fol. 2249.) 
The residue of the companies, to whom applica- 
tions were made, were fortunate enough to get 
warning in time, and either promptly declined, or 
were able to stop their policies before delivery. 
These several applications were generally on the 
basis of paying premiums quarterly. In some 
cases, however, the rules of the companies pre- 
vented the issue of policies on that basis. 
This plan, though more expensive than any other 
for one who expected to pay more than one pre- 
mium, would secure the largest amount of in- 
surance by the payment of the smallest sum 
down. 
Several defences were alleged in the defendant's 3 
answer. They may be here briefly summarized as 
follows: 
1. Alleged breaches of warranty, 
2. The death of said Dwught by suicide, 
3. The obtaining of the policy by fraud, and 
4. That the obtaining of the said policy was in 
pursuance and execution of a scheme to de- 
fraud the defendant, and other insurance 
companies. 
Answer, fols. 28 to 59. 
The place of trial named in the complaint was 
Broome County. It was subsequently changed 
to the county of Chenango on the ground that , 
an impartial trial could not be had in Broome 
County, the Court declining to send it for trial 
outside the Judicial District in which the plaintiffs 
resided. 
Order, fol. 64. 
An order was also obtained by the plaintiffs, 
requiring the defendant to serve a bill of partic- 
ulars, specifying among other things the particular 
times and places at which the defendant expected 
to prove that Dwight had had bronchitis and spit- 
ting of blood, or either of them, and precluding the 
defendant from giving evidence on the trial that 
Dwight had had bronchitis or spitting of blood at 
any time or place other than as specified in such 
bill of particulars. 
Order, fol. 67. 
This order was modified by the General Term on 
appeal so as to admit evidence of Dwight's own 
declarations or confessions. 
General Term Order, fol. 73. 
The action was tried at the Chenango County 4 
Circuit, before the Hon. David L. Follett and a 
Jury, at the November term in the year 1883. 
The trial commenced on the twelfth day of No- 
vember, and terminated in a verdict for the plaintiffs- 
on the thirteenth day of December, 1883. 
The defendant asks a reversal of the judgment on 
both the facts and the law. 
Before discussing in detail the questions presented 
on these appeals it is believed that the labor of the 
Court will be facilitated by first for a moment con- 
sidering the career of Walton Dwight as shown by 
the undisputed evidence in the case. 
Walton Dwight, from the age of fifteen or six- 
teen to the age of twenty-five, appears to have re- 
sided at Cowdersport, Potter County, Pennsylvania, 
and to have been engaged more or less during that 
period of his life in lumbering. (Norman Dwight, 
fols. 1471-1474.) He entered the army in August, 
1862, and resigned in March, 1864, shortly before 
the battle of "The Wilderness" (Reynolds, fols. 
1487-1494). He did something in the way of lum- 
bering in Elk County, Pennsylvania, in the winter of 
1864 and 1865, and next appears at Williamsport, 
Pennsylvania, where he resided with his wife at the 
Herdic House, during the winters of 1865-1866 and 
1866-1867 ^Reynolds, fol. 1488; Forsman fol. 288 ; 
Herdic, fol. 321). While residing there and in the 
month of March, 1867, Walton Dwight was con- 
fined to his room from one to two weeks or more 
(Forsman, fol. 315 ; Herdic, fol. 322 ; Taylor, 
fol. 359). During that • illness he was seen on 
more than one occasion to spit blood after cough- 
ing, which he declared proceeded from his lungs. 
The attention of the Court will be called hereafter 
to the specific testimony on fhis subject of eye- 
witnesses to the fact, and to Dwight's own declara- 
tions to several witnesses that he had had hemor- 
rhages of the lungs. It appears that about this 
time Dwight had been engaged in getting up a 
company called the Williamsport and Canada Lum- 5 
ber Company, to take the title to a tract of timber 
lands in Canada, an option to purchase which had 
been acquired by him ; and that at the time of 
these hemorrhages he was expecting to go to 
Canada to make a payment for said company on 
account of the said purchase, which was necessary 
to be made by a certain day to prevent, the loss of 
said option. 
This circumstance fixed the date and the facts of 
the illness in question on the minds of the witnesses 
on this subject, most of them having been interested 
with Dwight in this lumber speculation (Herdic, 
fol. 324). 
We next find Dwight at Binghamton, where in 
June or July, 1868, he made a settlement of sub- 
stantially all his property on his wife, who in her 
capacity of executrix of his will is one of the plain- 
tiffs in this action (Walton Dwight's Examination 
in Bankruptcy, fols. 401, 416, 417). 
From that time down to the commencement of 
the Dwight House business he had no business of 
his own. In his own language, quoted from his 
sworn deposition in the bankruptcy proceedings 
(fol. 401): "I had not; not further than my law 
suits, general living and the like of that. I had no 
business of my own." 
In the meantime improvements had been made 
upon the real estate at Binghamton, the title 
to which had been placed in Mrs. Dwight's 
name. The money for making these improvements 
appears to have been derived from mortgages. 
These were subsequently foreclosed and the whole 
property sold out thereunder, leaving large judg- 
ments for deficiencies. (See Exhibit " L," Appen- 
dix, fols. 2291-2292. Case, fols. 494 to 504.) 
In May, 1874, Dwight opened the Dwight House 
at Binghamton and went into business there as a 
hotel keeper, and continued that business until 
March 8th, 1877 (fol. 401). The business of selling 
wines and liquors by the package, in connection with 
the hotel business, was carried on by Dwight dur- 6 
ing the whole period (Armstrong, fols. 391 to 393 ; 
Dwight's examination, fols. 397 to 400). This 
hotel business proved no greater success than ihe 
previous speculations in which Dwight had been 
engaged. In December, 1876, he appears to have 
gotten to the end of his resources. The assets of 
his wife and himself together did not then exceed, 
if they equalled, his liabilities. We find him under 
date of December 15th, 1876, proposing to the 
President of the First National Bank of Bingham- 
ton, in a communication enclosing a schedule of his 
assets, and encumbrances existing thereon, to 
transfer to the bank all property owned or held 
by him, excepting only life insurance, in considera- 
tion of the bank's cancelling and releasing its 
claims against himself, his wife and one George B. 
Edwards, his clerk (Case, fol. 408; Appendix, 
Exhibit "L," fols. 2284 to 2299). Immediate action 
was then necessary, as the interest on the mort- 
gages was already m arrear, and the days of grace 
for the payment thereof would expire December 
31st, 1876 (fol. 2302). 
His condition was then so desperate that he had 
offered to release to his brother his interest in his 
father's estate upon the following condition, again 
quoting Dwight's own testimony (fol. 403): " Pro- 
" vided you will advance to my wife and boy for 
" living purposes a sum not to exceed $5,000, and 
" you shall advance that at the rate of a thousand 
" dollars a year for five years or thereabouts, or 
" until such time as I could start in business again, 
" and can shift for myself." 
On March 8th, 1877, Harper Dusenbury, a rela- 
tive, having taken possession of the Dwight House 
under legal process, Walton Dwight was driven 
out. The resources of the family at that time, ac- 
cording to Dwight's own testimony, were reduced 
to less than ten dollars. 
To quote again his own language: "lean swear I 
" took less than eight dollars, and my wife told me 7 
she had less than two dollars, and that is every 
" dollar I had on the face of the earth that I know 
" of ; I know I borrowed money right along from 
my brother Ward to pay my hotel bills at the 
" Spaulding House" (fol. 407). 
In the following month, (April 7, 1877,) a petition 
in involuntary bankruptcy against Walton Dwight 
-his wife appearing as a petitioning creditor-was 
tiled in the Clerk's office of the U. S. District Court 
for the Northern District of New York (fol. 419).. 
He was adjudicated a bankrupt May 1, 1877, and 
the adjudication was filed May 7,1877. 
Charles A. Hull and E. M. Fitzgerald were ap- 
pointed assignees June 7, 1877 (fol. 430), and certi- 
fied under date of August 8, 1877, that no assets 
had come to their hands as such assignees, or on 
account of said estate (fol. 445). 
August 4th, 1877, Dwight filed his petition for 
his discharge from his debts (fol. 444). 
Specifications in opposition to his discharge were 
filed on behalf of several creditors (fol. 448). 
An examination of Dwight before Mr. Register 
Bowe was commenced December 18, 1877 (fol. 396), 
and continued from time to time till February 19th, 
1878, when the examination was subscribed and 
sworn by the bankrupt (fol. 418). 
On July 30, 1878, the briefs and papers, on the 
application for the discharge, were submitted to 
the Register (Pine's affidavit, fol. 452). 
The proceedings on this application being thus 
perfected as far as possible, the bankrupt proceeded 
at once to business. 
He appears to have concocted a scheme for ob- 
taining the largest possible amount of insurance on 
his life attainable by the least possible amount of 
money down, without reference to the comparative 
costliness of the plan, assuming that more than one 
payment of premium was to be made. 
Not allowing a day to pass-the application for 
discharge having been submitted, as already shown, 8 
July 30, 1878,-we find him, under date of July 
31, 1878, making applications to the Mutual Life 
Insurance Company of New York and to the Con- 
necticut Mutual Life Insurance Company, for poli- 
cies on his life to the amount of $25,000 in each 
company (Exhibit 1, fol. 2308, and Exhibit 6, fol. 
2322, Appendix). 
The attention of the Court is called, in passing, 
to the fact that in this first application to the Con- 
necticut Mutual Life Insurance Company, to the 
question as to whether he had ever had spitting of 
blood, he was very particular in his answer. His 
answer to that question was : " No ; only from the 
" teeth." In his subsequent applications he con- 
tented himself with the simple answer "No." 
Commencing with the said 31st day of July, the 
business of obtaining the largest amount of insur- 
ance possible on his life was prosecuted with unre- 
mitting energy and activity down to the 9th day of 
September, a period covering exactly thirty-five 
working days, and in that time he made thirty-two 
applications for insurance, aggregating $400,000. 
Abstracts of these several applications appear in 
the Appendix. 
At the usual rate of $86.70 per quarter year, for 
$10,000 of insurance at age of forty-one, had these 
applications all been successful, he would have 
been assuming a liability to pay $13,872 per an- 
num for premiums on life insurance. To have se- 
cured this amount of insurance, assuming that his 
purpose was to pay only one quarterly premium, 
and then to die before the next quarter's payment 
should mature, would have taken in cash down 
$3,468. 
In point of fact he got into his possession poli- 
cies for $250,000 by thepayment of about $2,167.50. 
His financial condition at this time has already 
been pointed out. He was overwhelmed with 
debts. His assignees in bankruptcy had certified 
that no assets of any description had come into 9 
their hands. His brother Ward had been paying 
his board bills at the Spaulding House, as sworn 
by Dwight in the bankruptcy proceedings as late 
as February, 1878 (fol. 407). 
For the purposes of this insurance scheme 
Dwight availed himself of the services of an attor- 
ney, Neri Pine, of Binghamton, who examined 
the policies on his behalf, and also signed some of 
the statements attached to certain of the applica- 
tions as a friend of the applicant (Pine, fol. 1442). 
Pine also attended to the payment of premiums on 
the policies received. 
The funds to pay these first premiums came 
partly from T. F. McDonald, a brother in law of 
Dwight, and partly from the proceeds of the dis- 
count of a note made by Dwight and endorsed by 
Neri Pine and T. F. McDonald. This note was not 
paid at maturity but renewed. Whether the re- 
newed note was paid or not the witness could not 
state. 
Pine, fols. 1447 to 1458. 
It thus appears that Dwight had not means of 
his own with which to pay the first quarter's pre- 
miums upon the policies actually obtained, but had 
to borrow money for that purpose. 
Exhibits 100 to 106, fols. 2651 to 2665, 
Appendix. 
In the execution of this scheme Dwight further 
availed himself of the services of at least twro ex- 
pert insurance agents or brokers, viz., Henry 0. 
Hermans, of Binghamton, and Norman W. Batch- 
elder, of Albany. He wanted each to obtain insur- 
ance for him to the amount of about $100,000. 
Batchelder, fols. 633, 636 ; Hermans, 
fol. 1509 ; Exhibit 108, fol. 2673. 
By August 26th some of the companies to which 
applications had been made, and which had at first 10 
been disposed to issue policies, commenced to take 
alarm, and endeavored to prevent the delivery of 
their policies. Dwight's determination to get pos- 
session of all the policies possible was not, how- 
ever, to be thwarted, if the perpetration of any 
fraud would prevent. 
The general agent of the Union Mutual Company 
at Albany had entrusted Batchelder with a policy 
of his company to deliver on receipt of the pre- 
mium. Batchelder met Dwight in New York and 
showed him the policy. * Dwight did not wish to 
pay the premium then, and asked Batchelder to re- 
tain the policy until he received others which he 
expected. While this policy remained in Batchel- 
der's possession, and before Dwight had accepted 
it or paid the premium, Batchelder received a tele- 
gram from the general agent instructing him to re- 
turn the policy if not delivered. He showed this 
telegram to Dwight, who said it was all foolishness, 
and took Batchelder to the telegraph office, and 
there dictated and had him send two false de- 
spatches, one to the General Agent at Albany, and 
the other to the President, at Boston, to the effect 
that the policy had already been delivered, and 
that Dwight had settled the premium. 
Batchelder, fols. 640 to 646 ; Exhibits 
52, 53 and 54 ; fols. 2488 to 2491. 
This policy was not actually delivered or the 
premium paid until September 6th, eleven days 
afterwards. 
Batchelder, fols. 648, 650 ; Exhibits 
55 and 56, fol. 2491. 
In order to make these policies which were being 
gathered up available, it was necessary that the 
plaintiff, Mrs. Dwight, should get rid of her own 
debts, judgments to a large amount having been 
recovered against her. 
Accordingly we find her, under date of August 11 
25, 1878, verifying a petition for her own discharge 
as a voluntary bankrupt, which petition was filed 
August 27, 1878. 
The proceeding thus inaugurated was prosecuted 
to a decree for discharge, filed January 22, 1881. 
Neri Pine,who acted as attorney for Mrs.Dwight 
as petitioning creditor in the involuntary proceed- 
ings against her husband, and in the same proceed- 
ing as attorney for the bankrupt, also acted as 
attorney for Mrs. Dwight in the application for her 
own discharge. 
Mrs. Dwight's Proceedings in Bank- 
ruptcy, fols. 461 to 493. 
Applications for insurance having been scattered 
broadcast through the land, and no more com- 
panies remaining to which to apply, we find Dwight 
in September at Windsor, where his wife was living 
with her father. Some of the companies from which 
policies had been obtained began by this time to 
discover that a fraud had been perpetrated on 
them, and that statements made in the applica- 
tions, on the basis of which the policies had been 
issued, were untrue, particularly those relating to 
his previous condition of health. They decided at 
once to tender back the premiums paid and demand 
back their policies. 
Amongst the companies which took this course 
were the Washington and the United States. 
In the first week of September, 1878, E.S.French, 
the superintendent of agencies,and Levi C.Phillips, 
who had acted at Binghamton as the local agent of 
the Washington Life Insurance Company, went to 
Windsor, and there had an interview with Dwight. 
Dwight then professed to be in perfect health. Mr. 
French then and there tendered Dwight the pre- 
mium paid on the Washington Company's policy, 
and demanded back the policy. 
He told him the reason for the demand was mis- 
statements in the application in relation to his 12 
health ; that be had learned since sending the 
policy that Dwight had had spitting of blood, etc. 
Dwight acknowledged the truth of Mr. French's 
statements, but insisted that he was perfectly 
sound then. He declined to give up the policies, 
alleging, as a reason, that if lie should do so, other 
companies would learn the fact and go back on 
him and that he couldn't get other insurance that 
he intended to get. He said the Washington Com- 
pany was "all right," and asked them to say 
nothing about it. 
Phillips, fols. 549 to 553. 
A similar tender and demand were made by Nat. 
B. Freeman on the part of the United States Life 
Insurance Company, at Windsor, on October 5th, 
1878, with like results. This visit had been pre- 
ceded by written demands under dates respectively 
of 21st September and 3d October. 
Freeman, fols. 526 to 532. 
Exhibits 48 and 49, fols. 2475-2479. 
Exhibit 56, fol. 2480. 
Exhibit K, fol. 2277. 
Another like tender and demand were made by 
George W. Thompson on the part of the New Eng- 
land Mutual Life Insurance Company, at Windsor, 
October 7th, 1878, with like results. In answer to a 
charge of falsification in his application, in that he 
had denied having had spitting of blood, he said, 
" he had never spit any more blood than came from 
the prick of a tooth-pick." 
Thompson, fols. 1046 to 1051. 
Exhibit 98, fol. 2649. 
Dwight's attention was called to the same sub- 
ject of blood-spitting by the Mutual Benefit Life 
Insurance Company on September 19th, by letter 
of that date. He replied to this letter under date 
of 23d September. On further investigation, this 13 
company, by letter elated October 7th, demanded 
return of their policies and offered to return the 
premiums. 
Exhibits 93, 94, 96, fols. 2640 to 2646. 
The next step in the order of execution of 
Dwight's scheme, having secured all the insurance 
which it was possible to obtain, was to make a will. 
At some time in the month of September, but at 
what precise date does not appear, he executed an 
instrument purporting to be his last will and testa- 
ment. 
Exhibit 92, fol. 2599. 
A careful perusal of this instrument affords 
the most cogent proof of the fraudulent motives 
and designs of this man, and so discloses the 
scheme to defraud the insurance companies which 
he was elaborating as to leave no doubt of its cor- 
rupt character. 
He begins by an explanation of his reasons for 
making no provision for his debts, except a list of 
petty amounts due to various persons, consisting of 
such items as the following : 
H. W. Carl, $1 ; Mason, Pratt & Co,, $1.75 ; T. 
P. Goodrich, $1.80; John D. Ames, $1.60; S. W. 
Barrett, $2.00. 
This man, who alleges later on in the same in- 
strument that since his failure his earnings had 
averaged over 10,000 dollars for twelve months, 
was not able to provide for pressing demands of 
creditors whose debts did not exceed $2.00, except 
by will. 
Of course this allegation as to his earnings had 
no foundation in fact and is at variance with all the 
proofs in the case. 
He next proceeds to prepare for the legal, contest 
which he well knew would arise when any attempt 
should be made to collect any of the policies of life 14 
insurance which be had. succeeded in getting into 
his possession. 
He provides in a liberal way for the Bench and 
Bar of Broome County. 
Of course he entirely misunderstood the char- 
acter of Judge Martin in assuming that he could be 
in any way induced to become a party to such a 
scheme, or influenced by any consideration of per- 
sonal emolument-but this was a contingency that 
Dwight does not seem to have been capable of com- 
prehending. 
After making some provisions for relatives and 
former employees, he proceeds to endeavor to in- 
terest in his favor all classes of the community in 
which he expected this legal contest to arise. 
He makes provision for an annual dinner for 
every poor family in Binghamton, making the dis- 
tributors of this provision "a committee to be ap- 
" pointed by all the clergymen, ministers and 
" priests who are residents of and have charge of a 
"church or congregation in Binghamton or a 
" majority of them, embracing all denominations 
"in assembly." 
Then he provides for Sunday school books for all 
the churches in Windsor. 
Next for the Binghamton Library Association ; 
next for the press of Binghamton ; next for the Fire 
Department. 
It will be seen that by these provisions there was 
hardly a juryman in Broome County for whose 
favor a bid was not made in this remarkable docu- 
ment. 
These several provisions, contained in the first 
twenty articles of the will, would require together 
about seventy thousand dollars of his insurance to 
satisfy them, but by reference to the concluding 
part of Article "Twenty-fifth" (fol. 2686), it will 
be seen that in case the whole amount of insurance 
covered by the policies he had obtained should not 15 
be collected, each and every of these bequests was 
to be scaled down accordingly. 
He next gives seventy-five thousand dollars of 
insurance to his son and the residue to his wife. 
In the "twenty-fifth" article, having admitted 
that his estate "is made up most entirely of lifein- 
"surance," he proceeds to make an argument to 
satisfy the incredulous that he expects to be able to 
pay future premiums. 
It is needless to say that his premises are entirely 
false. 
The evidence shows that his speculations, one 
after the other, had failed. 
Even his great Canada lumber speculation, ac- 
cording to his own sworn statement, had realized 
nothing (fol. 414). At forty-one years of age he 
found himself a financial wreck-with no profes- 
sion, no capital, prestige gone-with debts to vari- 
ous persons not exceeding $2.00 each outstanding, 
his obligation to pay which he acknowledged, and 
provision for which out of the moneys to be ob- 
tained on life insurance he made by will, but which 
he was unable to meet in cash-his board bills paid 
by his brother Ward. This was his financial con- 
dition on July 31, 1878, when he started to put in 
execution his insurance scheme, applying for 
$400,000 of insurance, involving an annual outlay 
of over $13,000. 
He was a man who had always lived extravagantly. 
At fol. 413 he says his living expenses were over 
$18,000 one year. To him the idea of poverty was 
intolerable. In his own language, as testified by 
the witness, Whitney, " A man might as well be in 
" h-11 as to be poor " (fol. 862). 
His experience had been such as to elicit from 
him the confession to the witness, Phillips: " If 
"my family were only provided for, I would hav e 
" no desire to live" (fol. 548). 
The same despondent feeling crops out in his will, 
where he says in spite of himself, " I have lived 16 
" to that age, and been subject to such experience, 
" that I have no farther ambition for myself, be- 
" yond leaving my family comfortable, and with 
" sufficient means to enable them to live as they 
" were in the habit of heretofore." * * * 
He had attempted to make this provision, by 
getting all the policies on his life which he could 
secure by the payment of a single quarter's premi- 
um-borrowing the money for that purpose. 
He had no means or prospects of earning the 
money to meet the second quarter's premiums, 
which would begin to fall due on the 19th of No- 
vember then next. 
Should he survive that date, his Herculean efforts 
would have been expended in vain. 
He had done what he conld by his will to prepare 
the way for a successful issue to the legal contest, 
which he foresaw, and now he must prepare for 
the end. 
He must lay the foundation for a claim that he 
was sick, to support a later claim of a natural 
death. 
He could not go yet, for no decision had been 
rendered on his application for a discharge in 
bankruptcy, but he must be prepared, as the time 
was growing short. 
He narrated to Dr. Porter, who visited him in 
Binghamton on November 7th, 1878, to what he 
attributed his then alleged illness. We quote from 
Doctor Porter's testimony (fol. 673). Dwight said, 
" That in the fall, or in the last season he had been 
" at Windsor, his former home, and that while 
" there he bad for several weeks been engaged in 
" partridge shooting, rambling over the hills, and 
" drinking surface water of brooks and sometimes 
" of swamps, and oftentimes it was none of the 
" best; that after a time he felt unwell, and after a 
" time he complained of pain and nausea, and 
" general discomfort ; that he then went to Bing- 17 
" hamton and consulted with Ductor Burr, who 
" has since been in attendance upon him." 
This course of procedure was continued until he 
left Windsor for Binghamton in October (Owen, 
fols. 578 to 582). 
We next find Dwight in Binghamton. He left 
Windsor and went to Binghamton between the 8th 
and 13th of October. Thompson found him at 
Windsor October 8th (fol. 1046) ; Burhans found 
him at Binghamton October 13th, meeting him on 
that day in the street (fol. 868). On the 14th he 
was informed that Dwight had gone to New York. 
On the 15th, Burhans found him in his room in 
the Spaulding House. Dwight then said he was 
feeling sick (fol. 869). Burhans' application for 
the return of a policy met with the same fate as 
those of his predecessors (fols. 870, 871). 
From that time forward to November 15th, 
Dwight remained at the Spaulding House, claiming 
to be more or less sick. Though he claimed to have 
had congestive chills at intervals of seven or eight 
days, and had Doctor George Burr, since deceased, 
and his son, Doctor Daniel S. Burr, and Doctor Or- 
ton, who acted for him in the dual capacity of in- 
surance solicitor and physician, visiting him from 
time to time, and though both Daniel S. Burr and 
Orton were examined as witnesses on the trial 
on the part of the plaintiffs, no physician 
on the witness stand ventured to suggest that he 
had ever seen Dwight in a chill, or to give any tes- 
timony as to what was the matter with him or what 
was the cause of his death. 
The extraordinary feature of this silence lies in 
the fact that the plaintiffs' counsel, having proposed 
to interrogate the doctors on this subject, and the 
Court having overruled the defendant's objection 
to the proposed testimony, based on the-provisions 
of the Code as to the testimony of physicians on 
matters coming to their knowledge in the course of 
professional attendance upon a patient, the wit- 18 
nesses were permitted to leave the stand without 
being asked a question on that subject. 
The theory of Dwight's having had congestive 
chills or any form of malarial fever was absolutely 
disproved by the medical testimony introduced by 
the defendant, based on the undisputed facts in 
evidence. 
Even a layman of ordinary understanding would 
find it difficult to believe that any one could have 
been suffering four or five weeks from malarial or 
any other fever, of even the mildest type, without 
any noticeable change at any time, in either his 
pulse or temperature. 
On the 7th day of November, Doctor Charles H. 
Porter, of Albany, at the request of the agent of 
the Union Mutual Insurance Company of Maine, 
whose policy had been obtained by Dwight after 
notice that it had been recalled under the circum- 
stances hereinbefore stated, visited Dwight at the 
Spaulding House in company with Doctor George 
Burr. 
The object of Doctor Porter's visit was fully un- 
derstood. He went to ascertain what was the 
matter with Dwight, whether he was engaged in 
trying to destroy himself. 
The result of his examination appears in his tes- 
timony at fols. 671 to 687. 
The Court will draw the necessary distinction 
between Dwight's own statements on this occasion 
and what the witness himself observed. 
The only symptom of disease observed by Doctor 
Porter was an apparent feebleness of circulation 
(fol. 677). 
At fol. 685 Doctor Porter testifies that the mor- 
phine which Dwight stated had been administered 
to him would be sufficient, in the doctor's opinion, 
to account for the feebleness which he observed in 
Dwight's circulation, an opinion which was shared 
by all the other experts. Gelseminum also would 
produce the same result (Wood, fol. 945). 19 
The conclusive answer to any suggestion that 
Dwight was suffering from any malarial or other 
fever, or had had any congestive or other chill, is 
found in Doctor Burr's statement to Doctor Porter 
as to Dwight's pulse and temperature during his 
alleged illness. We here quote from Doctor Por- 
ter's testimony (fol. 686): 
"The only other point that at this moment I re- 
" call was in reference to the temperature and pulse 
"during the course of Col. Dwight's illness. 
"Making an inquiry in regard to those points, Dr. 
"Burr stated that his temperature was always about 
" normal, and I think he used, or I think he stated, 
"although not in those words, but in similar 
■"terms, that his pulse was always about normal 
" and natural," 
If any further evidence on this subject were 
necessary to.satisfy the most obstinate unbeliever, 
it can be found in the unanimous testimony of all 
the experts as to the pigmentation or coloring of the 
liver and other organs which is always produced 
by disease of this character, and the absence of any 
such appearance in the organs of Dwight, when ex- 
amined at the autopsy held fifty-two hours after his 
•death. 
Orton's cross-exdmination, fols. 1856, 
1857; Wood, fols. 959 to 961 ; 
Bridges, fol. 1030. 
The subjective symptoms complained of by 
Dwight, of pain in the abdominal region, and 
nausea, are also perfectly accounted for by the 
medical testimony as to the effects produced by 
Fowler's Solution of Arsenic, which was being ad- 
ministered to Dwight (Wood, fol. 945). 
Another curious feature about this so-called ill- 
ness is the fact that, while several persons came on 
the stand and testified that they had at different 
times sat up with Dwight during the night, no one 
of them had any experience as nurse, or received 20 
any intimation as to what to do in case of need iu 
the way of administering remedies or otherwise. 
Nor did any witness produced ever have any in- 
structions to administer any medicine whatever. 
These weie McDonald, Dwight's brother-in-law 
(fols. 1349, 1383 to 1387), Downs, McDonald's law 
partner (fols. 1331, 1339), Hermans, the insurance- 
solicitor who made applications for about $100,000' 
insurance on Dwight's life to different companies 
(fol. 1538), and Charles A. Hull, segar manu- 
facturer, formerly McDonald's Jaw partner, who 
was also Dwight's assignee in bankruptcy (fols. 
1251 and 1275). 
To the person last named, the attention of the 
Court will be invited later in another connection. 
On the sixth day of November, Dwight was in- 
formed that the Register had made a report in 
favor of his discharge in bankruptcy (Pine, fol. 
1415). 
The second quarter's premiums on the policies 
he had gotten into his possession would begin to 
be payable, according to their terms, on November 
19th, or less than two weeks after his discharge 
had been secured (see policies of Washington 
Life Insurance Company, Exhibits 75 to 82, foL 
2556). 
There was therefore no time to be lost ; what re- 
mained for him to do must be done quickly. 
Evidence of his being sick to sustain the theory 
of death from natural causes must be prepared. 
The doctors could not be relied on for such pur- 
pose. 
Downs is there with him on the night of the- 
same 6th November, and again on the 8th. What 
Dwight said and did on those nights is detailed by 
the witness. That Dwight had one or more vials, 
containing some kind of drug within reach is ad- 
mitted (fol. 1340). The witness did not feel his 
pulse (fol. 1334). 
On Wednesday evening, November 13th, Charles 21 
A. Hull visits Dwight. An arrangement is then 
macle between Dwight and Hull for Hull to sit up 
with him on the night of Friday, the 15th. Dwight 
desired him to be there on that particular night, 
because he knew Hull be cool in case any- 
thing should happen" (fol. 1266). That " was the 
time when his chills, as he termed it, would re- 
turn, in case it came at all." 
Friday, the 15th day of November, the fourth 
day preceding the day when the policies would 
begin to lapse for non-payment of the second 
quarter's premium, should Dwight then be alive, 
was then fixed as the date for his last so-called 
chill. 
The critical Friday came. No provision had 
been made for raising any money to pay the pre- 
miums due on the following Tuesday. 
The history of this Friday, with the exception of 
the hour and a half between 9:30 P. m. and 11 p. m., 
is given by Mrs. Owen, the sister of Mrs. Dwight, 
commencing at fol. 585. 
He was out in the sitting room during the day, 
partially dressed. 
In the morning a barber came and trimmed his 
hair. Dwight ate his dinner. He transacted some 
business with his lawyers. A Mr. Sears called to 
see him. He verified an answer, setting up his 
bankruptcy proceedings as a bar to a personal 
judgment for a deficiency in a suit pending against 
him, brought by the Superintendent of the Insur- 
ance Department. 
Pine, fol. 1461; Exhibit No. 107, fol. 
2666; Loomis, fol. 506. 
According to Loomis, Dwight ''seemed to be 
" clear in his mind, and spoke readily and freely. 
" He seemed quite strong, that is, comparatively 
" strong. I observed no difficulty about his speak- 
" ing ; his voice was quite full, I think" (fol. 
507). 22 
At half-past nine Dr. D. S. Burr called, remained 
only a few minutes, chatted with Dwight and left. 
Dwight said he thought he was going to have a 
good night. Shortly after the Doctor's visit Mrs. 
Dwight and her sister said "good night," left 
Dwight's room and went to another room on the 
opposite side of the hall; both made their toilet 
for the night, went to bed and went to sleep, leav- 
ing Hull alone with Dwight (fol. 589). About 
eleven o'clock there was a knock at the door. Mrs. 
Dwight arose and went to her husband's room ; Mrs. 
Owen followed in a minute or two (fols. 590, 598). 
When Mrs. Owen reached the room occupied by 
Dwight she found there Hull, Spaulding, the hotel 
proprietor, and Mrs. Dwight, no one else (fol. 592). 
Spaulding was trying to give him brandy (fol. 
594). Then Spaulding said he didn't swallow it, 
and then his hands were put into hot water. Ac- 
cording to Mrs. Owen, Dwight never spoke or 
moved or gave any sign of life after that time (fol. 
595). 
The undertaker and doctor were sent for and ar- 
rived about the same time. As nearly as Mrs. 
Owen could fix it, the time of their arrival was 
from half an hour to an hour after the knock at the 
door of Mrs. Owen's room (fol. 597), which would 
be between 11:30 p. m. and midnight. 
Mrs. Dwight and Mrs. Owen then retired to 
another room where they spent the rest of the 
night. 
Between 9:30 p. m. and 11 p. m. of that night, so 
far as disclosed by the evidence, no one held any 
communication with Dwight, or saw him alive ex- 
cept Hull. 
It is true that Lee, the porter, who brought the 
hot water after Mrs. Owen had arrived on the scene, 
and who could not have gotten near enough to ob- 
serve, testifies that he thinks he sawT Dwight breathe 
-but that is at variance with, the testimony of the 
other witnesses. 23 
Lee also says that Spaulding was holding 
Dwight's tongue with his fingers (fol. 1722). 
Dwight's chin had dropped on his neck (fol. 
1730). ' 
Two striking circumstances are disclosed by the 
plaintiffs' evidence: 
1st. Dwight's tongue was protruding and was be- 
ing handled by Spaulding. Why? 
2d. His hands were being bathed in hot water. 
Why ? 
If his death had been produced by strangulation 
it would have been not unusual to find the tongue 
protruding somewhat. 
If his death had been produced by strangulation 
it would have been not unusual to find the hands 
clinched, and the use of hot water would have 
helped to straighten them. 
Attention is here called to the fact that neither 
Mrs. Dwight nor Spaulding, the hotel keeper, was 
called by the plaintiffs. 
They rested* their case on this vital question 
wholly on the testimony of Hull and Lee. 
On Monday morning, about fifty-eight hours 
after Dwight's death, an autopsy was held on the 
body of Walton Dwight, under the auspices of his 
own physicians, who invited whom they desired 
(fol. 1821). 
Fifteen doctors attended this autopsy. The dis- 
section of the body was made by Dr. Delafield, Dr. 
Daniel S. Burr acting as secretary, and making 
notes of the appearance of the body and the several 
organs as the autopsy proceeded. At the close of 
the proceedings these notes were signed without 
protest or objection by all the fifteen physicians 
present (fol. 1659). 
The original notes of this autopsy were used on 
the trial, and admitted in evidence for the purpose 
of showing that some of the witnesses had made 24 
statements inconsistent with their testimony deliv- 
ered on the stand, but were not admitted as affirm- 
ative evidence of the facts stated therein. 
Charge, fol. 2169. 
A fac simile of these notes appears in the appen- 
dix, after fol. 2682. 
Some interlineations appear in these notes. On 
the first page the Court Will notice that the name 
"Dr. Swinburne" is interlined over the name of 
" Dr. Ayer," near the foot of the page. Also near 
the foot of page 6 the word "cicatrices" appears 
to have been originally written, a line drawn 
through it afterwards, and "nodules" interlined 
above'. 
Dr. Swinburne attended this autopsy at the re- 
quest of Professor Porter, the physician of one of' 
the companies interested. He was the only physi- 
cian present representing any one of the contesting 
companies (foh 766). 
The first interlineation above mentioned, occur- 
ring near the foot of page 1 of the notes, Dr. Swin- 
burne testified on the trial had been made after the 
notes had been read over and signed (fol. 831). 
The first fact of importance noted at the autopsy 
was the existence of "a heavy indentation extend- 
" ing upward and backward from os hyoides to 
" right around back of neck, and on left side be- 
" low the thyroid cartilage, running upward and 
" backwards at about an angle of 45°. " 
Attention was called to this by Dr. Swinburne. 
In connection with this heavy indentation on 
both sides of the neck, the attention of the Court 
in passing is called to certain conditions of various 
parts of the body disclosed on this autopsy, as 
bearing upon the cause of death. 
Page 2. " Small ecchymoses in skin of back and 
" shoulders." 
Pages 3 and 4. Condition of brain. 25 
Page 5. Adipose tissue and muscle. Lungs un- 
duly inflated. 
Pages 6 and 7. Bronchi congested and coated 
WITH MUCUS ; LUNGS CONGESTED AND (EDEMATOUS. 
Pages 7 and 8. Condition and contents of heart. 
Page 8. Spleen normal in color and consist- 
ence-undigested food in stomach. 
Page 9. Existence of foeces in intestines. 
Page 11. Liver congested, normal in color 
AND CONSISTENCE. 
Page 11. Kidneys congested, no evidence of 
disease. 
The deductions made by the experts from these 
conditions will be referred to hereafter. 
The accuracy of this report, as to the conditions 
mentioned, no witness presumed to controvert. An 
attempt was made to account for the heavy inden- 
tation in the neck, on a theory, the mere statement 
of which is sufficient to refute. 
At the conclusion of this autopsy the body was 
interred. 
About five months later, in April, 1879, the body 
of Dwight was exhumed, and a coroner's inquest 
held thereon. 
The same indentations on both sides of the neck, 
which were pointed out by Dr. Swinburne, and ob- 
served by the fifteen doctors present at the first 
autopsy, still existed, and were plainly visible. 
Dr. Swinburne says (fol. 784): "We examined 
" carefully this same indentation in the neck. It 
" was then plainly perceptible, but not quite as 
" plainly as at first. I felt it at that time and ex- 
" amined it carefully, and the same peculiar con- 
" dition which appeared before at the bottom of 
" the indentation, was present-that sort of 
" leathery or hardened feeling. The color of the 26 
" skin had changed, but still the bottom of the in- 
" dentation was a little different from the other." 
Dr. Sherman, at the inquest, called the attention 
of the coroner and jury to this furrow or indenta- 
tion of the neck, put his finger into it and describes 
it (fol. 969). 
Nat. B. Freeman, who was present at the in- 
quest, examined the neck-put his finger into the 
furrow or indentation in question, and describes its 
appearance and feeling (fol. 1017). 
Dr. Bridges was present at the inquest; observed 
the furrow upon both sides of the neck ; passed his 
finger through it, and describes its appearance and 
feeling (fol 1022). 
Albert D. Hitchcock was present at the inquest, 
and observed the groove or mark in the neck. He 
describes its appearance and direction (fol. 1155). 
On the trial an attempt was made by the plain- 
tiffs to diminish the force of the admissions made 
by the fifteen doctors at the autopsy, as to the ex- 
tent of this heavy indentation on both sides of the 
neck. Drs. Hyde, Burr, Chittenden, Orton and 
Richards were examined on this subject. 
Dr. Hyde, at fol. 1588, being interrogated in a 
somewhat peculiar manner, says all he saw was a 
little fold in the skin and flesh. 
On his cross examination, however, at fol. 1595, 
having been confronted with the notes of the au- 
topsy bearing his own signature, he was obliged to 
admit that he heard the notes read over after they 
were finished, expressed his satisfaction with them, 
and that that satisfaction still remained, and that 
there was nothing contained in these notes to which 
he dissented then or at the time of the trial. 
Dr. Burr, one of Dwight's own physicians, who 27 
acted as secretary at the autopsy and wrote the 
notes which were afterwards signed, at fol. 1676, 
admits the existence of the heavy indentation or 
fold pointed out by Dr. Swinburne. At fol. 1679 
he admits the continued presence of these inden- 
tations, at the inquest held the following April. 
Dr. Chittenden saw these indentations, and 
heard Dr. Delafield direct Dr. Burr how to enter 
them on the notes (fol. 1739). On cross-examina- 
tion he also was compelled to admit that this de- 
pression in the neck, which was noted as a heavy 
indentation, extended below the skin itself, into 
the fatty tissue of the neck (fol. 1788). 
Dr. Orton, one of Dwight's physicians, and who 
had also acted as solicitor in obtaining insurance 
for him on his life, on his direct-examination speaks 
of these heavy indentations as folds of the skin 
and immediate tissues below (fol. 1813). 
The attention of the Courtis particularly invited 
to the cross-examination of this witness on this 
subject (fols. 1834 to 1847 and 1858 to 1861 and 
1865). A perusal of his entire cross-examination 
would be very instructive. 
Dr. Richards, the coroner, was present at the au- 
topsy. His attention was called to something-"he 
" hardly knows what to say about that, whether it 
" was a groove or what it is" (fol. 1871). Later on 
he speaks of these heavy indentations as "a couple 
" of creases on each side of the neck" (fol. 1873). 
He says he cannot describe them. 
It should be borne in mind that this testimony 
of the plaintiffs was given after the defendant's 
case had been closed, and after the absolute de- 
monstration by the evidence of the experts called 
by the defendant from the presence of these in- 
dentations in the neck in connection with the 
ecchymoses on the back and shouldersand the con- 28 
dition of the internal organs that "it is not possi- 
" ble that the man could have died of anything 
" else than strangulation by a cord" (fol. 914). 
It is now proposed, as briefly as may be, to calf 
attention to this expert evidence which it is claimed 
amounts to a mathematical demonstration that 
Dwight did not die from any natural cause, but 
from strangulation produced by mechanical means. 
The Court limited the expert testimony to six 
witnesses on each side upon any one point. 
The defendant's witnesses on the subject of the 
cause of death were the following: 
1. Dr. Charles H. Porter of Albany. He was 
first called to prove Dwight's condition, November 
7th, 1878 (fol. 670). 
The foundation having been laid, by the testi- 
mony of other witnesses, for his opinion as an ex- 
pert, he was recalled (fol. 1069), and in answer to a 
hypothetical question, based, on the facts in evi- 
dence, answ*ered as follows (fol. 1073) : 
A. " In my opinion the immediate cause of death 
" was asphyxia-mechanical asphyxia-and from 
" having it stated that there werefurrows or grooves 
" about the neck of the character described, in my 
" opinion the cause of death was by strangulation 
" -hanging." 
2. Dr. John. Swinburne of Albany, whose ex- 
perience and qualifications as an expert are detailed 
at fol. 763. 
Dr. Swinburne was present at the first autopsy 
in November, 1878, and at the inquest held in 
April, 1879. He details with great particularity 
what he observed on both those occasions. At fol. 
775 he describes the congested and engorged con- 
dition of the lungs, and certain spots filled with 
air " as though the air cells were burst"-in scien- 
tific language, "Emphysema of the lungs." Also, 29 
at fol. 776, he mentions the presence of bloody 
mucus in the bronchi; at fol. 772, the presence of 
a clot of recent origin on the exterior membrane 
of the brain ; at fol. 788, he gives his opinion as an 
expert, based on his personal examinations of the 
body, as to the cause of death. In his opinion 
death did not result from natural causes, but did 
result "from strangulation with a rope." 
The grounds of this opinion are set forth at 
length in his testimony. 
3. Dr. Horatio C. Wood, of Philadelphia. 
Dr. Wood's experience and qualifications as an 
expert appear at fol. 877. 
Having explained in detail the significance of 
the appearances noted on the exterior of Dwight's 
body, and the condition of his internal organs, as 
disclosed at the autopsy, at fol. 914, in answer to a 
hypothetical question, based on the facts in evi- 
dence, he testifies : 
" It is not possible that the man could have 
" DIED OF ANYTHING ELSE THAN STRANGULATION 
" BY A CORD." 
4. Dr. Benjamin F. Sherman of Ogdensburg. 
His experience and qualifications as an expert 
appear at fol. 965. He was present at the inquest 
in April, and details what he there observed. He 
took portions of the heart for microscopical exam- 
ination, and found the heart perfectly healthy. 
He described the appearance of the indentation or 
furrow produced by suicidal hanging. At fol. 984, 
in answer to the hypothetical question as to the 
cause of death, he says, without qualification, that 
the immediate cause of death was " asphyxia from 
" HANGING." 
5. Dr. Elisha H. Bridges of Ogdensburgh. His 
experience and qualifications as an expert appear 30 
at fol. 1020. He was present at the inquest and 
details what he observed. In answer to the hypo- 
thetical question as to cause of death based on the 
facts in evidence Dr. Bridges, at fol. 1027, states 
his opinion as to the immediate cause of death, 
without any qualification, as follows : 
"A. Asphyxia from hanging." 
6. Dr. George W. Avery of Norwich, Coroner of 
Chenango County for nine years. He answers the 
hypothetical question at fol. 1062, that the im- 
mediate cause of death in his opinion upon the 
facts stated was " Asphyxia'1'1 produced " by some 
instrument encircling his neck-a cord or rope." 
Dr. Austin Flint, Jr., was called and explained 
on the stand " the mechanism of the congestion of 
"certain organs that would occur from asphyxia 
" produced by a constricting cord about the neck " 
(fol. 1081). Dr. Flint's experience and qualifica- 
tions as an expert appear at fol. 1077. The limit 
of six expert witnesses as to the cause of death 
fixed by the Court having been already exhausted, 
the defendant was not, under this ruling, per- 
mitted to take from Dr. Flint an answer to the 
hypothetical question put to the other witnesses. 
The testimony of these witnesses also absolutely 
refutes the suggestion that Dwight had been suf- 
fering from congestive chills or any form of malarial 
fever. It must not be supposed, however, that any 
physician ventured to suggest on the stand that 
Dwight ever had any such disease, but on Dwight's 
own declarations this notion was constantly venti- 
lated in one form or another during the trial. 
How did the plaintiffs attempt to meet this over- 
whelming testimony establishing the cause of 
Dwight's death to have been Asphyxia produced 
by strangulation by means of a cord ? 
Although they called to the stand a number of 31 
physicians who had been present at the autopsy, 
including Drs. Orton and Burr, Dwight's attending 
physicians, they did not venture to interrogate 
either of them as to his opinion on the cause of 
death. 
No one of the plaintiffs' witnesses ventured to 
dispute the accuracy of the deductions drawn by 
the defendant's experts from the facts. 
They contented themselves, so far as the cause of 
death was involved, with endeavoring to take from 
the force of their own declarations in writing made 
immediately after the autopsy in accord with the 
unanimous finding of all the fifteen physicians there 
present, as to the presence of " the heavy indenta- 
tions" on both sides of the neck. 
Some of them attempted to characterize these 
heavy indentations as "creases" or "folds in the 
skin and tissues below." 
On their cross-examination, however, they were 
each and every of them confronted with the origi- 
nal notes and their own signatures, and obliged to 
admit that they, at the autopsy, assented to the ac- 
curacy of the notes and signed without protest or 
objection of any kind. Attention has heretofore 
been called to their testimony on this point. 
They undertook, however, to advance a theory 
as to how these furrows or indentations were pro- 
duced. 
Some of them suggested that in their opinion 
these indentations or furrows were produced by 
the head having been raised or bent forward at an 
angle with the body while in the ice-box, and then, 
at the post-mortem examination, lowered to a level 
with the body, when the body was laid on its back 
on a board. No one, however, was able to give 
any reason for Ins opinion, based on former ex- 
perience, observation or reading. 
See, for instance, the testimony of Dr. 
Orton, in his cross-examination, at 
fols. 1834 to 1840. 32 
It will be kept in mind that these indentations; 
were observed when the head was thrown back £ 
that they existed on both sides of the neck, but 
were not observable immediately in front, over the 
cartilaginous substance constituting the "Adam's- 
" apple." Dr. Orton himself says, at fol. 1836,. 
that this indentation, if produced by a cord or 
rope, would have been more, marked upon the 
fleshy part of the neck than upon the cartilage. 
Had it been a fold in the skin, produced by 
bending the head forward, that fold of course 
would have been more conspicuous while the head 
was forward, and more pronounced immediately in 
front than elsewhere. 
This theory, however, was finally put at rest by 
testimony based on actual experiment. 
Dr. Wood, fols. 1977, 1989, 1990. 
Dr. Sherman, fols. 2003, 2007. 
After the plaintiffs had closed their case, the de- 
fendant, in rebuttal, re-called the following medi- 
cal experts, viz.: 
Dr. Porter, fol. 1950. 
Dr. Wood, fol. 1967. 
Dr. Sherman, fol. 1995. 
Dr. Swinburne, fol. 2009. 
Dr. Bridges, fol. 2022. 
Dr. Avery, fol. 2035. 
A series of hypothetical questions, based upon 
the evidence as to the history of Dwight's alleged 
illness and the appearances presented by the sur- 
face of his body and his internal organs, at the 
autopsy and inquest, were put to these witnesses. 
These questions will be found in the case, com- 
mencing at fol. 1950. 
In answer to these questions, these witnesses 
unanimously agreed in the following conclusions : 
1st. That the person described in the question 33 
could not have died of congestive chill or 
any other form of malarial fever. 
2d. That death could not have been produced 
by natural causes. 
3d. That the cause of death was mechanical 
asphyxia, produced- by strangulation with a 
cord or some similar article. 
It will naturally be asked what question of fact 
was left, touching the cause of Walton Dwight's 
death. 
That he died from no natural cause ; that his 
death could only have been caused by asphyxia, 
resulting from strangulation by means of a cord or 
similar article, was established by the unanimous 
verdict of a body of experts of the largest expe- 
rience and highest character, upon facts uncontra- 
dicted which admitted of no other conclusion. 
The plaintiffs, unable to meet this issue, sought 
to avoid it and to get to the jury by putting on the 
stand the man who was left with Dwight on the fa- 
tal night after all the rest of the world had taken 
leave of him alive, for the last time. 
They rested their case on the testimony of 
Charles A. Hull, the man who was there by ap- 
pointment with Dwight, made two days before. 
The reason of Hull's selection for this purpose has 
been already pointed out. Dwight wanted Hull on 
that particular night because he thought Hull 
WOULD BE COOL IN CASE ANYTHING SHOULD HAPPEN 
(fol. 1265). The case was rested by the plaintiffs 
on Hull's declaration that he did not see any rope 
or cord about Dwight's neck or in his room that 
night (fol. 1249). 
In view of this statement it became somewhat 
important to inquire into the credibility of this wit- 
ness, and his cross-examination was addressed to 
that end. 34 
This witness, on whose unsupported testimony 
the plaintiffs relied to overthrow the absolute de- 
monstration made by the testimony of the experts, 
testified that he could not say that he believed the 
Holy Scriptures to he anything more than the work 
of a mere man (fol. 1258). 
He could not say that he believed in the exist- 
ence of a personal God. 
He testified that he had no fixed belief as to the 
existence of any overruling power that rewards 
and punishes, aside from those punishments in- 
dicted in this world (fol. 1261). 
Spaulding, who was there holding the dead 
man's tongue, as appears from the evidence, was 
not called. 
Mrs. Dwight, the plaintiff, who was the first to 
answer Hull's summons, was not called. 
The plaintiffs contented themselves with swear- 
ing Hull, the atheist, who believes, according to 
his own testimony, in no personal God or overrul- 
ing Providence, leaving the protruding tongue and 
the hands immersed in hot water unexplained, and 
on this testimony asked the Court and jury to 
find, in the face of the overwhelming mass of un- 
impeached testimony on the other side, that Wal- 
ton Dwight died from some natural cause, which 
cause no one on the plaintiffs' side had the temer- 
ity to indicate. 
It is true they did call the porter, James Lee, 
who brought the hot water after Spaulding and 
Mrs. Dwight and Mrs. Owen were there, and who 
was made to say that he thought he saw Dwight 
breathe, which was in conflict with all the other 
testimony. A curious, if not suspicious, circum- 
stance in connection with the testimony of this wit- 
ness, is, that Richards, the Coroner, testified that 
though he intended to subpoena and examine at the 
inquest all the witnesses who were present at the 
time of Dwight's death, this Lee was not subpoe- 
naed as a witness, and that the Coroner was not 35 
advised by any one from any quarter that James 
Lee knew anything about the matter. 
In this condition of the proof on this issue the 
defendant's counsel on the trial requested the 
Court to instruct the jury. il that in weighing the 
44 testimony of a witness the jury are entitled to 
" take into consideration, on the question of his 
4' credibility, his own declarations as to his belief 
41 or unbelief in the existence of a God and a fu- 
44 ture state of rewards and punishments." 
Twenty-third request, fol. 2221. 
The Court refused to give the instruction asked, 
but gave the jury the instruction on this topic, 
which appears in the case, commencing at folio 
2156. 
To this instruction, as well as to the refusal of 
the Court to charge as requested, the defendant 
duly excepted. 
Exceptions, fols. 2183, 2199, 2222. 
Immediately preceding the instruction of the 
Court upon the point last mentioned, the learned 
Court had expressed to the jury its views on the 
subject of the credibility of two of the defendant's 
leading expert witnesses in emphatic terms. 
At fol. 2154 the learned Judge tells the jury, 
after referring to some portion of their testimony, 
that the jury have the right to regard the expert 
testimony of these two witnesses, and that they 
should regard it with great suspicion (fol. 2154). 
To this instruction the defendant duly excepted 
(fol. 2199). 
This momentous question, then, between the 
atheist Hull, whose conscience was under no re- 
straint from any belief in, or fear of God, .or of 
any overruling Providence, or any future state 
of punishment, on the one side, and the whole 
body of expert witnesses, all men of high standing 
and character, on the other, was submitted to the 36 
jury under instructions denying the right of the* 
jury to take into consideration Hull's own declara- 
tion on the stand as to his belief or unbelief, in 
weighing his credibility, while in the same connec- 
tion the jury were told that they had the right to 
regard and should regard the testimony of the 
leading experts with great suspicion. 
Notwithstanding the learned Court was so con- 
siderate as to tell the jury that the strictures which 
he had made on these two witnesses " must not af- 
" feet the defendant's case in any other respect,''the 
instructions complained of had a tendency to turn 
the scale against the defendant in a case where the 
jury were only able to come to an agreement after 
being kept together over fifty-one hours. 
Various other exceptions were taken to the rul- 
ings of the Court pending the trial, and to the in- 
structions given to the jury, to which attention 
will be called in due course. 
Upon the close of the evidence a motion was 
made on the part of the defendant to dismiss the 
complaint. 
The grounds on which this motion was made will 
be found at fol. 2042. 
This motion was denied by the Court, and the 
defendant duly excepted (fol. 2048). 
The defendant's counsel then requested the Court 
to instruct the jury to find a verdict for the defend- 
ant on each of the grounds, separately, on which 
the motion to dismiss the complaint was based. 
The Court refused so to instruct the jury, and 
the defendant duly excepted separately to each re- 
fusal and ruling on each ground stated. 
Several requests for special instructions to the 
jury were submitted by counsel for the defendant 
before the charge of the Court was delivered to the 
jury (fol. 2208). 
These requests, with the disposition made thereof 
by the Court, will be found at fol. 2209, et seq. 37 
At the conclusion of the charge certain other re- 
quests for instructions were presented to the Court. 
These will be found at fols. 2168, 2170, 2173. 
The counsel for the defendant in due season ex- 
cepted separately to the refusal of the Court to 
charge in accordance with each of the several re- 
quests submitted, and separately to each and every 
modification by the Court of the propositions em- 
braced in each and every of said requests, and se- 
parately to each and every portion of the charge 
actually delivered, so far as the same is in conflict 
with any or either of said requests (fol. 2222). 
The counsel for the defendant also excepted to 
certain other portions of the charge actually de- 
livered. 
These exceptions appear at fols. 2182, 2183, 
2184, 2185, 2186, 2196 and 2197 to 2201. 
The jury were instructed by the Court to answer 
certain specific questions submitted to them, and 
also to find a general verdict. 
These questions and the answers of the jury 
thereto appear in the case, commencing at fol. 
2223. 
The genera] verdict was for the plaintiffs for 
$18,743.27. 38 
POINTS. 
I. 
The denial by the Court below of the de- 
fendant's MOTION FOR THE DISMISSAL OF THE COM- 
PLAINT, MADE AT THE CLOSE OF THE EVIDENCE, was 
ERROR (fol. 2042). 
The application for the policy in suit (Exhibit 
21, fol. 2364) contains the following express agree- 
ment at the foot of the answers made by the appli- 
cant to the several questions contained therein, 
viz,: 
" It is hereby declared that the above are fair and true 
" answers to the foregoing questions, and it is acknowledged 
" and agreed by the undersigned that the above statements 
" shall form the basis of the contract for insurance, and 
" also, that any untrue or fraudulent answers, any suppres- 
" sion of facts in regard to the party's health, or neglect to 
" pay the premium on or before the day it becomes due, 
" will render the policy null and void, and forfeit all pay- 
" ments made thereon." 
By the policy in suit (Exhibit A, fol. 18) : 
" The Germania Life Insurance Company, in the City of 
" New York, in consideration of the representations made 
" to them in the application for this policy, and of the sum 
" of one hundred and thirty-one dollars and fifty-five 
" cents, to be paid on delivery of this policy by Walton 
" Dwight, and of the quarterly payment, upon the receipt 
" of the President or Secretary of the company of a like 
11 amount, on or before noon of the twenty-eighth day of 
" November, February, May and August in every year dur- 
" ing the continuance of this policy, do assure the life of 39 
Walton Dwight, of Windsor, in the County of Broome, 
State of New York, in the amount of fifteen thousand 
dollars for the term of his natural life." 
Later on occurs the following provision (fol. 19): 
" This policy is issued and the same is accepted by the 
said assured upon the following express conditions and 
agreements ; that the same shall cease and be null, void 
and of no effect, and that this company shall not be 
" liable for the payment of the sum assured or any part 
" thereof, but that all premiums previously paid shall be 
absolutely property of the company, without any ac- 
" count whatever to be rendered therefor, except as here 
" inafter provided in the 4th condition of this policy. 
" 1 st. If the representations made in the application for 
" this policy, upon the faith of which this contract is made, 
" shall be found in any respect untrue." 
It thus appears that these two papers each re- 
fer to the other as part of the contract ; that the 
application contains the agreement of Walton 
Dwight that his answers therein given are true ; 
that his statements therein made shall form the 
basts of the contract for insurance, and that any 
untrue answer will render the policy null and void; 
while the policy on its part is declared to have 
been issued in consideration of the representations 
made to the company in the application, and con- 
tains the provision that it is issued and accepted 
upon the express condition and agreement (among 
others) that the same shall cease and be null, void 
and of no effect, and that the defendant shall not be 
liable for the payment of the sum assured, or any 
part thereof, if the representations contained in 
the application, upon the faith of which the con- 
tract was made, should be found in any respect 
untrue. 
Upon these papers the Court correctly held, in 40 
accordance with the well settled law of this State, 
as follows : 
" First. The policy in suit, with the application therefor, 
" together constitute the contract of insurance between 
" Walton. Dwight and the defendant. 
" Second. By the contract of insurance between Walton 
" Dwight and the defendant, the validity of the policy is 
" made to depend upon the truth of the statements and rep- 
" resentations contained in the application. 
" Third. By the contract of insurance involved in this 
" action, the materiality of each and every answer made by 
" Dwight to the questions contained in the application, 
11 was agreed to by the parties, and the sole question as to 
" each of said answers is as to whether or not the answer 
u is true." 
See the rulings of the Court on the 
first three of the " requests to charge," 
submitted by the defendant, fols, 2209,. 
2210. 
May on Insurance, Sections 156 and 
158, and cases cited. 
Bliss on Life Insurance, Sections 34, 
36, 37, 38, 39, 41, 42 and cases 
cited. 
Ripley vs. 2Etna Insurance Company, 
30 N. Y., 136, 163. 
Foot vs. JEtna Insurance Company, 
61 N. Y., 571. 
Baker vs. The Home Life Ins. Co., 
64 N. Y., 648. 
Barteau vs. The Phoenix Mut. L. I. 
Co. of Hartford, 67 N. Y., 595. 
Graham vs. Firemen's Insurance Com- 
pany, 87 N. Y., 69-at page 74. 
This general rule, fully established in this State 
by the decisions of our own Court of Appeals, is 41 
in harmony with the general rale of the other 
States of the Union, and with the English rule. 
Anderson vs. Fitzgerald, 17 Jurist, 
995. 
Cazenove vs. Brit. Eq. Ass. Co., 5 
Jurist (N. S.), 1309. 
Same case on appeal, 6 Jurist, N. S., 
826. 
The later cases in this country, which were cited 
below, as modifying the. rule, will be found on ex- 
amination not open to that construction, but to 
contain features taking them out of the rule. Of 
this latter description is the case of Burleigh vs, 
Gebhard Fire Insurance Company (90 N. Y., 220). 
In that case, the building in which the property 
insured was contained was briefly described in the 
policy as a "frame storehouse with slate roof, 
standing detached at least 100 feet." While the 
Court held that this description was to be regarded 
as a warranty, and relating to the character of the 
risk, they also held that by reason of its brevity 
and vagueness it called for construction, and that 
properly construed, in view of the subject and con- 
text, it must be regarded as having been under- 
stood by the parties to refer to a building standing 
detached 100 feet from any other building of such 
character as to constitute an exposure and increase 
the risk. The Court say : "The brevity of the lan- 
guage requires that something be added to com- 
plete and elucidate the meaning" (p. 225). If the 
insurer intended that it should apply to any build- 
ing, whatever its size or character, the Court fur- 
ther say, "He should at least say so by apt and 
appropriate language, and not ask the Courts to 
supply it by intendment." There is no intention 
on the part of the Court to depart from the settled 
rule in regard to the scope and effect of a warranty 
to be gathered from this case. 
There is also a recent case of Moulor vs. Am. 42 
Life Ins. Co., in the Supreme Court of the United 
States, in which the opinion was written by Mr. 
Justice Harlan, reported in the Supreme Court 
Reporter (Vol. 4, p. 466), which, at first glance, 
might appear to involve a departure from the rule 
as settled in this State. Upon examination, it will 
be found, however, that while the Court held that 
the application and policy in that case constituted 
the contract, and that both instruments might 
therefore be examined to ascertain whether the 
contract furnished a uniform and fixed rule of in- 
terpretation and what was the intention of the par- 
ties, they also held that in that particular case 
there was an apparent conflict, raising a doubt as 
to what was the intention of the parties, and calling 
for an interpretation by the Court, and upon the 
theory that in such case the construction must pre- 
vail which protected the insured against the obli- 
gations arising from a strict warranty, decided that 
the alleged warranties in that case must be regard- 
ed as representations only. This construction was 
reached from an examination of the entire contract 
which is not set forth at length in the opinion. 
That case, however, holds that the use of the 
word "warranty" is not necessary to constitute a 
warranty in the law. In any view which may be 
taken of that case, however, it cannot be held to 
alter the law of this State, settled by the decisions 
of the highest judicial tribunal therein, or the 
rules of construction which have been established 
by such decisions. As a decision of a high judi- 
cial tribunal it is entitled to respectful considera- 
tion. 
So far as the reasoning by which the conclusion 
reached i«-H&UAtain©drcommends itself to the judg- 
ment of our own tribunals, and such conclu- 
sion is not in conflict with the decisions of 
our own Court of Appeals, weight will be given to 
it, but no further. In the absence of the text of 
the entire contract upon which the Court placed 43 
its construction in that case, the result reached 
-cannot be fairly criticised. It is enough to say, as 
has been already said, that the Court in the case 
'cited does not profess to establish any new rule, 
but simply to construe a contract, the text of 
which is not furnished in full, and to gather a con- 
struction from all its parts, which would not seem 
to be sustained from the portions quoted in the 
-opinion. 
The rules applicable to these questions in our 
own State have been settled by the unanimous de- 
cisions of our highest Court, and are no longer 
open for discussion. In Foot vs. 2Etna Life Insur- 
ance Co., cited above, the Commission of Appeals, 
by Earl, C., say : 
" Parties to insurance contracts have the right to make 
"their own bargains as in other cases. An insurance 
" policy is to be construed like other contracts, with a view 
" to arrive at the intent of the parties. The rule that an 
" insurance policy shall be construed most strongly against 
** the insurer, can be resorted to only when, after using 
" such helps as are proper to arrive at the intent of 
" the parties, some of the language used, or some 
" phrase inserted in the policy is of doubtful import, in which 
" case the rule should be applied because the insurer wrote 
" the policy " (p. 5.75). 
Again (p. 576) : 
" It matters not whether the representations are material 
or not. The partieshave made them material by insert- 
" ing them, and it matters not if the party insured made 
" the untrue statements innocently, believing them to be 
" true." 
" The plaintiff in this action must stand by the answers 
" of her husband as embraced in the contract, however in- 
" nocently they may have been made. To render the 
" policy void on account of the untrue answers, it was 
" wholly unnecessary that the proposal or the policy should 
" contain a clause expressly providing for a forfeiture on 44 
that account. The mere fact that the statements are* 
" warranties and untrue, vitiates the policy." 
In Graham vs. Firemen's Insurance Company 
(supra), in delivering the opinion of the Court, in 
which all the judges concurred, Mr. Justice Miller 
uses the following language : 
" While it may well be that a misrepresentation of a mat- 
" ter which does not affect the risk, and is not material in 
K some cases, as is claimed, will not avoid the policy, and 
" whether it is material is a question for the jury,, such rule 
" has, we think, no application where, by the terms of the policy,. 
" misrepresentations are converted into warranties by a stipu - 
" lation that an untrue answer will avoid the policy " (citing. 
May on Insurance, 104, § 195)- "If it is stipulated that if 
" there is any misrepresentation whatever the contract 
tl should be void, it is of no importance whether it is a war- 
" ranty or a misrepresentation. The materiality is contract- 
ed for, and under the rule as to warranties is not a sub- 
" ject of consideration." 
It will thus be seen, that under the rules estab- 
lished by the decisions of our Court of Appeals, 
effect is to be given to the contract of the parties, 
in life insurance, as in other matters. 
Where, by the terms of the contract, the appli- 
cation is declared to be the basis thereof, and it is 
provided that the contract shall be void, if the 
representations contained in the application shall 
be found in any respect untrue, the truth of each 
and every statement in the application is war- 
ranted. 
Assuming that the word ^representation" in 
such case was used in its technical sense, such 
representation is converted into a warranty, by the 
stipulation that the policy shall be void if the 
representation be found untrue. 
The attention of the Court is now invited to cer- 
tain questions contained in the application for 45 
the policy in suit, and the answers of Walton 
Dwight thereto. 
The application is set out at length at fol. 2364. 
The second question in this application, the Court 
will observe, relates to the residence, place of busi- 
ness and kind of business in which the applicant is 
and has been engaged, and contains a note advis- 
ing the applicant that his business must be care- 
fully specified. The whole of this question, which 
is in four subdivisions, with the answers of the ap- 
plicant thereto, is as follows : 
" 2. A. For the party whose life is proposed to be as- 
" sured, state the name at full length, Walton Dwight. 
" Residence, • Windsor, County of Broome, State of N. K 
" Place of business, Broome Co., N. Y., and Chicago. 
" Business carefully specified, Real estate and grain dealer. 
" B. Is this business his own or does he work for other 
" persons, and in what capacity ? Mis own. 
" C. In what occupation has he been engaged during the 
" last ten years ? Real estate and grain dealer. 
" D. Is he now or has he been engaged in or connected 
" with the manufacture or sale of any beer, wine or other 
" intoxicating liquors ? No." 
The next question to which the attention of the 
Court is invited is numbered "6," and with the 
answers thereto is as follows : 
"6. A. Whether the party to be assured is now or has 
" been insured in this company. If so, state the number of 
" the policy and the amount? A. Yes; haspaid-up pol- 
" icy for about $8oo. Don't know No. of policy. 
B. Whether in other companies, in which, and for what 
" amount in each. State exactly on what kind of policy ? 
"B. Yes; N. Y. Mutual, year Endowment, 10,000 ; 
" Conn. Mutual, Ordinary life, 15,000 ; Washington, Or- 
" dinary life, 10,000; Equitable, Ordinary life,, 10,000." 
" C. Whether an assurance has been applied for with this 
" or any other company without having led to an assurance ? 
" If so, with which companies ? and for what reason did the 
" application not lead to an assurance ? C. No." 46 
The last question to which the attention of the 
Courtis particularly called is numbered "16" and 
is as follows : 
" 16. Has the party now or has the same ever had any 
" of the following diseases : 
" Spitting of blood. 
" Bronchitis. 
Consumption. 
" Liver Complaint. 
Rheumatism." 
To this question Walton Dwight made the fol- 
lowing answer : 
" Last spring while in Chicago I was generally out of 
" sorts ; had rheumatism and trouble with my stomach. 
" Was sick some three weeks. Was prescribed for by Dr. 
" Allen Brooks, of Chicago, some three or four times, 
" when I was wholly recovered and have been well since. 
" In 1869, I had something like dyspepsia, but nothing 
" serious. No trouble since. To all these questions in No. 
"13 answers No, only as above." 
It will be observed that " No. 13" in the fore- 
going answer was evidently inserted through inad- 
vertence for "No. 16," the question the applicant 
was engaged in answering. By reference to ques- 
tion " No. 13" it will be seen that it called simply 
for names of physicians. 
Turning now to the defendant's answer to the 
complaint in this action, it will be found that the 
second defense (fol. 39) counts upon the answers of 
Dwight to the several questions above set forth, 
and alleges the falsity of said answers, pointing 
out the respects in which they respectively were 
claimed to be untrue, and alleges, 
" that by reason of said untrue and fraudulent answers 
" to the said questions put to the said Dwight upon his ap- 
" plication for the said policy, and his said false statements 
" and suppressions and concealments of material facts, and 47 
breaches of warranty, the said policy number 69,096 was 
rendered null and void and of no effect and was forfeit- 
ed, and these defendants were and are released and dis- 
" charged from any and all liability thereon." 
It was contended on the trial that the falsity of 
each and every of the answers in question had been 
established by the uncontradicted evidence in the 
case, and the defendant's motion to dismiss the 
complaint was based on the evidence as establish- 
ing without contradiction the falsity of said an- 
swers respectively, and breaches of warranty in 
respect to each of said answers, which avoided the 
policy and precluded a recovery by the plaintiffs. 
It is now proposed to consider the several 
grounds upon which the motion to dismiss was 
made (fol. 2042): 
First. - The answer to subdivision " 0" of ques- 
tion "2" was untrue, and such untrue answer 
amounted to a breach of warranty under the con- 
tract, which avoided the policy and, precluded a 
recovery by the plaintiffs. 
Second.-The answer to subdivision " D" of 
question "2" was untrue, and such untrue an- 
swer amounted to a breach of warranty under the 
contract, which avoided the policy and precluded 
a recovery by the plaintiffs. 
For purposes of convenience, these two points 
will be considered together, as they both have 
reference to the same general subject, viz., the 
business or occupation in which Dwight had been 
engaged, and the evidence, to some extent, is the 
same on both branches. 
It will hardly be contended that the occupation 
in which an applicant for life insurance has been 
engaged is not an eminently proper subject of in- 
vestigation by a company to whom such applica- 48 
tion is addressed. Some occupations per se have 
a direct tendency to shorten life. Others, from 
temptations they hold out, greatly increase the 
moral hazard, while others again tend to the for- 
mation of habits which impair the prospects of the 
person engaged therein reaching the limit of what 
would otherwise be his expectancy of life. 
Under the law of this State, however, as already 
shown, when the parties, by the terms of their 
contract,, as in the case at bar,, deliberately agree 
that the validity of the policy shall be dependent 
upon the truth of the statements or representations, 
contained in the application, and that the policy 
shall be null and void if the representations made 
in the application for the policy, upon the faith of 
which the contract is made, shall be found in any 
respect untrue, no question arises as to the mate- 
riality of the answers. The parties, by the terms 
of their contract, have made them material. The 
only question to be considered in such a case is the 
truth of the answers. 
In what occupation then had Walton Dwight 
been engaged during the ten years preceding 
August 22, 1878, the date of his application to the 
defendant? Was the answer "Real estate and 
grain dealer," given by him to that question,, 
true ? 
Had Walton Dwight ever been engaged in or 
connected with the manufacture or sale of any 
beer, wine, or other intoxicating liquors ? 
Let us examine the evidence on this subject. 
Walton Dwight, in his sworn examination in 
his bankruptcy proceedings, signed and verified 
February 19th, 1878, six months and three days 
before he signed the application for the policy in 
suit, testified as follows (fol. 401): 
"Q. I understand you made your settlement on your 
" wife, about when ? A. It was done in the latter part of 
" June or July, 1868. 49 
11 Q. From that time down to the time of the commence- 
" ment of the Dwight House business, had you any busi- 
" ness of your own ? A. I had not; not further than my 
" lawsuits, general living, and the like of that; I had no 
" business of my own." 
Again at fol. 396 : 
" I think I opened the Dwight House in May, 1874, or 
" rather I furnished part of it then and ran it partly as a 
" hotel, and rented part of it. In the spring of 1875 we 
" furnished the balance of it, and ran it for about three 
" years as a hotel." 
By reference to the case it will be seen from the. 
context that the report of the examination is mani- 
festly incorrect and that it should be as above. 
" The only business I had was the Dwight House busi- 
" ness and livery. The other business was my wife's busi- 
" ness, although I had always kept it as my own account,. 
" and run it without being particular to keep any account 
" of the Dwight House or my business. When I opened the 
" Dwight House, I intended it for a summer resort; it was 
" kept open the year around, but I relied more upon the 
" summer custom ; the park was used in connection with the 
" Dwight House and cottages, in fact the whole city had 
" the use of it. I kept no open bar ; liquors were sold in 
" packages ; I should think I had some two or three thou- 
" sand dollars worth of stock when I opened the house ; the 
" stock was larger then than at any time afterward ; that in- 
" eluded cigars; I took out of my private house some six or 
" seven hundred dollars worth of liquors that were not in- 
" voiced ; I kept wines, liquors and cigars all through my 
" business. These were bought at different places. I can- 
" not state the amount of business, per annum ; the books 
" will show ; it was somewhere in the neighborhood of 
" $25,000 or $30,000 a year ; that is, the first year. Then 
" it keeps running down. I used every dollar of the 
" money received from this sale of the Pennsylvania land." 
" At page 43 : 
" Q. Did you have an account of the wines and liquors ? 
" A. Yes, sir. 50 
" Q. When does it commence? A. It commences June 
" i, 1874, on page 80, and continues to July 31, 1875. 
" Q. Was that a part of the Dwight House business ? A. 
Yes, sir. 
" Q. Does the ledger account show the condition of this 
after this date ? A It does not." 
The next witness on the subject of Dwight's con- 
nection with the sale of liquors was, 
Omen J. Coughlin, Clerk of the Board of Excise 
of Binghamton. 
Mr. Coughlin's testimony will be found at fol. 
387. He there testifies as follows : 
"I am the Clerk of the Board of Excise of Binghamton ; 
" I have the records of the board here ; on May 14, 1875, 
" a State hotel license was granted to Walton Dwight on 
" Mr. Dwight's own application ; on the 20th of May, 1876, 
" he was again granted a tavern or innkeeper's license to 
" sell liquors and ales ; on May 14, 1874, he was granted a 
" hotel keeper's license on his own application ; it was the 
" ordinary hotel or innkeeper's license." 
Benjamin Devoe, Deputy Collector of Internal 
Revenue, at fol. 388, testified as follows : 
" I reside at Binghamton ; my office is that of Deputy 
" Collector of Internal Revenue ; I was Revenue Collector 
" of the United States in 1874, 1875 and 1876. 
" Q. Do you know whether licenses were granted through 
" your office, under the laws of the United States, to Wal- 
" ton Dwight, in those years, or either of them, for the sale 
" of liquors ? A. They are not licenses. 
" Q. Whether the revenue tax was paid by Mr. Dwight 
■" for the sale of liquors at the Dwight House ? A, Yes, 
" sir. 
" By the Court: 
" Q. During what years, do you say? A. 1874, 1875 
" and 1876. 
By Mr. Larocque : 
" Q. He paid a special tax for selling wines, liquors and 
and cigars at the Dwight House ? A. Yes, sir ; he did. 51 
Q. Did you visit the Dwight House from time to time 
during those years ? A. I was there occasionally. 
" Q. Mr. Dwight was the proprietor of that house ? A. 
I so understood it. 
" Q. What was the fact as to there being wines and li- 
quors for sale at the Dwight House during those times ? 
"A. I couldn't tell you, sir; I have no knowledge on that 
subject." 
John H. Armstrong, porter in Dwight's employ 
during the three years in which he kept that hotel, 
at fol. 391, testified as follows : 
" I reside in Binghamton at present; I am at present 
" head waiter at the Hotel Bennett ; I was employed at 
" the Dwight House by the late Colonel Walton Dwight 
" from May ist, 1874, until March 6th or 10th, 1877, I 
" think it was ; Iwas with him so long as the-hotel was 
" open ; I had charge of the omnibus running to the depot 
" -porter. 
" Q. Was there a wine-room kept in the Dwight House 
at that timez? A. There was. 
" Q. Were wines and liquors sold there in bottles ? A. 
" Yes, sir. 
" Q. Were they furnished guests upon call ? A. Yes, 
" sir. 
" Q. (Bottle handed witness.) Look at the bottle I now 
" show you, and tell me whether that was the description of 
" bottles kept in that wine room that were used there, and 
" is that one of such bottles? A, Yes, sir." 
" The bottle referred to bore upon its face a shield with 
"the words 'Dwight House, Binghamton,' stamped upon 
" it; it was made an exhibit in the cause, and marked 
" number 16. 
" Q. These bottles were made for the Dwight House at 
"that time in various sizes ? A. Yes, sir. 
" Q. Half pints, pints, quarts and so on ? A. Yes; 
"quarts, I believe, was the highest. 
" Q. And was that business of selling wines artd liquors 
" put up in packages of that kind conducted at the Dwight 
" House during the whole time of your connection with it ? 
" A. Yes, sir. 52 
" Cross examined by Mr. Newton : 
"Q. This wine cellar was the only place where there 
w were any bottles of wine kept that you know of, wasn't it ?' 
" A. Yes, sir, that's all. There was no-bar in that house ; 
" no persons came there to drink at the bar or anything of 
" that kind. 
" Q. These bottles of vzine, I suppose, were placed upon 
" the dining-table when called for, weren't they ? A. Yesy 
" sir. 
Q. And only to guests of the house? A. Yes, guests- 
" of the house. 
Re-direct-examination by Mr. Larocque : 
" Q. Do you mean to say that nobody could buy a bottle 
" of wine or liquor in that wine-room except a guest of the- 
" hotel ? A. I never saw any sold there. 
" Q. Your business vas going back and forth with the 
" omnibus ? A. Yes, sir. 
"Q. Weren't they sent to the rooms of guests in the 
" hotel ? A. Yes, sir ; if they wished. 
" Q. You didn't scrutinize who drank them ? A. No„ 
" sir ; I didn't." 
The evidence above set forth embraces every 
word of testimony in the case on the subject of 
Dwight's having been engaged in or connected with 
the sale of liquor. 
That Walton Dwight kept a hotel from about 
May 1, 1874, to about March 8, 1877; that in con- 
nection with the ho^el business he kept a wine- 
room, where he carried on the business of selling 
liquors by the package; that he had bottles of 
various sizes made expressly for the purposes of 
this liquor business, stamped with the name of his 
hotel; that he regularly in each of said three years 
applied for and took out the ordinary tavern- 
keeper's license ; that in each of said three years 
he paid to the proper officer of the United States 
the special tax imposed by the laws of the United 
States on the sales of liquors so made by him, no 
one has ventured to question. 
On this point there was no pretence of a conflict. 53 
That the answer given by Dwight to the question 
as to whether lie had been engaged in or connected 
with the manufacture or sale of any beer, wine or 
other intoxicating liquors was untrue, was thus es- 
tablished without a shadow of conflict or contro- 
versy. 
There was no ambiguity about the question. The 
printed note in the application opposite the ques- 
tion as to his " business," warned the applicant 
that his business must be carefully stated. The 
subdivision of the question which interrogated 
him, as to his connection with any traffic in 
spirituous liquors, was clear, distinct and exhaus- 
tive. 
He was required to say not only whether he had 
been engaged in, but also whether he had been 
connected with the manufacture or sale of any 
beer, wine, or other intoxicating liquors. No op- 
portunity was allowed for mental reservation. His 
attention was clearly and distinctly called to the 
point, whether he had had anything to do directly 
or indirectly, as a business or an incident to a 
business, with either the manufacture or sale of 
intoxicating liquor. He deliberately answered this 
question in the negative, without any qualification 
whatever. 
No question of fact was raised by the evidence 
on this point. The testimony of all the witnesses, 
including that of Walton Dwight himself, was in 
perfect harmony. 
In delivering his charge to the jury, the learned 
Judge who tried the cause at Circuit used the 
following language (fol. 2076): 
" It is not disputed that during the period that Mr. 
" Dwight kept the Dwight House, that he sold liquors, and 
" in this manner, he sold wines and liquors in bottles to the 
" guests of his house, furnished it to the guests at their 
" rooms or at the table. The evidence is, that he sold in 
" no other way and in no other manner. It appears from 
" Dwight's evidence before the Commissioner in Bank- 54 
" ruptcy, that when he went into the Dwight House he had 
" a stock of wines, liquors and cigars, amounting to from 
" twenty-six hundred to three thousand dollars in value. 
The extent of the subsequent purchases is not disclosed 
" by the evidence. It appears also that he was licensed 
" during this period by the United States and by the 
(i Excise Board of the City of Binghamton, to make sales in 
this way and in this manner. But it is not claimed that he 
" was ever in any other way or manner engaged in the sale 
" of liquors." 
The duty, therefore, devolved upon the Court 
to decide, as matter of law, whether, upon the 
uncontradicted evidence on this subject, there 
had been a bleach of warranty which discharged 
the defendant. Only one decision was possible 
under the rule of law, which had received 
the express approval of the learned Judge himself 
who presided at the trial. The answer was untrue. 
By the terms of the contract the policy was to 
" cease, and be null, void, and of no effect," and 
the defendant was u not to be liable for the pay- 
" ment of the sum assured or any part thereof," 
if the representations made in the application, 
upon the faith of which the contract was made, 
should " be found, in any respect, untrue." 
The truth of this statement, answer or represen- 
tation, by whatever name called, had therefore 
been warranted by the applicant. The uncontra- 
dicted evidence in the case established the falsity 
of this answer. There was therefore, as matter of 
law, a breach of warranty, which avoided the 
policy, and precluded a recovery by the plaintiffs. 
It was the plain duty of the Court to so declare, 
and to grant the motion made by the defendant 
for a dismissal of the complaint on that ground. 
The question submitted involved only the con- 
struction of a written contract. It is the peculiar 
province of a Court to construe written instruments 55 
and to declare their legal effect, and the submis- 
sion of such questions to a jury is error. 
Glacius vs. Black, 67 N. Y., 563. 
St. Luke's Home, &c. vs. Association 
for Indigent Females, 52 N. Y., 191. 
Arctic Fire Ins. Co. vs. Austin, 69 N. 
Y., 470, at p. 477. 
Nash vs. Drisco, 51 Maine, 417. 
Roth vs. Miller, 15 Serg. & R., 100. 
Shepherd vs. White, 11 Texas, 346. 
Drew vs. Towle, 30 N. H., 531. 
Thomas' Executor vs. Thomas, 15 
Ben. Monroe's R. (Ky.), 178. 
Perth Amboy Mf. Co. vs. Condit, 21 
N. J. L., 659. 
Brown's Adm'rs vs. Hatton, 9 Ired. 
R. (N. C.), 319. 
Williams vs. Waters, 36 Georgia, 454. 
The Supreme Court of the United States, by 
Marshall, C. J\, in Levy vs. Gadsby (3 Crunch, 
180), use the following forcible language on this 
subject, viz. : 
" No principle is more clearly settled than that 
" the construction of a written evidence is exclu- 
" sively with the Court f 
The Supreme Court of Pennsylvania, by Tilgh- 
man, C. J., in Welsh, Admr. vs. Dusar (3 Binn., 
337), emphasize the importance of this rule in the 
following terms, viz. : 
" The construction of written instruments is the 
" province of the Court; and it is of the utmost 
" importance that this province should not be in- 
11 vaded by the jury. " 
And again, in Denison's Executors vs. Wertz 7) 
Serg. & R., 373, at p. 376), the same Court, by 
Tilghman, C. J., declares : 56 
It is the right of every suitor to have the opin- 
" ion of the Court on such matters as by the law 
M of the land the Court is bound to decide;, and one 
" of these matters is the construction of written 
" contracts f 
Even the terms of an oral contract, when clearly 
proved and intelligent and explicit, are to be con- 
strued by the Court and not by the jury. 
Short vs. Woodward, 13 Gray, 86. 
Rhodes vs. Chesson, Bus}) (N. C.) L., 
336. 
Smalley vs Hendrickson,. 29 N. J.r 
L., 371. 
The refusal of the Court to non-suit 
on this state of facts, to which refusal 
the defendant duly excepted, was, it is respectfully 
submitted, an error, for which the judgment should 
be reversed, without regard to any other question 
in the case. 
Turning again to the answer, "Real Estate and 
Grain Dealer," given to subdivision " C " of ques- 
tion "2" in the application, it will be found that 
this also was an untrue answer. 
The question called for the occupation in which 
the applicant had been engaged during the last ten 
years. 
We have already shown from Dwight's own 
sworn testimony in the bankruptcy proceedings 
that in June or July, 1868, more than ten years 
prior to the date of the application under consider- 
ation, he settled his property upon his wife. This 
settlement included the real estate known as 
Dwightville, and substantially all the property he 
had (fol. 416). From that time till May, 1874, 
when he went into business as a hotel-keeper, he 
swore that he had no business of his own (fol. 401). 
He carried on the business of keeping a hotel, and 57 
iii connection therewith selling liquor by the pack- 
age, from May, 1874, to March, 1877. Again (fol. 
400) he says: " I say, the Dwight House was the 
" only business I had as a regular business." 
In April, 1877, was filed his petition in bankruptcy 
(fol. 419). On August 2, 1877, he verified his peti- 
tion for discharge (fol. 448). In December, 1877, 
his examination was commenced before the Com- 
missioner, and continued from time to time to Feb- 
ruary 19th, 1878, when he signed and swore to his 
deposition (fol. 418), and also signed a petition for 
leave to amend his schedules, which, he says, he 
has been enabled to perfect, and which he filed 
March 8, 1878 (fol. 431). Then followed the pre- 
paration for the submission of the application for 
discharge, the briefs on which, as has been shown, 
were only filed on July 30, 1878, and on the follow- 
ing day the inauguration of his life insurance pro- 
ject, the history of which, in detail, has been given 
in the statement hereto prefixed. From Bingham- 
ton, when the work of making applications had 
been completed, he went to Windsor, remaining 
there hunting, fishing, swimming streams, and 
drinking surface water until about the middle of 
October, when he went to Binghamton to die. 
The whole period of the ten years preceding the 
date of the application was fully covered by the 
testimony to which the attention of the Court has 
been called. 
When during that period was Walton Dwight 
engaged in the occupation of a "real estate and 
grain dealer?" 
Certainly not prior to April, 1877, when his peti- 
tion in bankruptcy was filed, for he himself swore 
most positively that he had been engaged in no 
regular business till he opened the Dwight House, 
and that after that his sole business was keeping 
the hotel, in connection with which he sold liquor 
by the package, and livery. 
The only suggestion in the record that he had 58 
ever had a transaction in grain occurs in the testi- 
mony of Levi C. Phillips, who narrates a conversa- 
tion he had with Dwight in a railroad car, on the 
subject of Dwight's taking out a policy on 
his life. In that conversation Dwight told Phillips 
an amusing story of a speculation in which he pre- 
tended to have been engaged in Chicago, which 
will be found at fol. 542. Of course this consti- 
tuted no evidence of the fact that he had ever had 
such a transaction. Certainly no one would pre- 
tend that it tended to prove that his occupation 
had, during the ten years preceding the date of his 
application, been that of a grain dealer. 
Neither can any evidence be found in the case 
tending to show that the answer was true so far as 
he stated his occupation to have been that of a real 
estate dealer. 
On this branch of the question the plaintiffs 
relied in opposing the motion for a non suit, first, 
on the evidence of T. F. McDonald, Dwight's 
brother-in-law, as to the character of the improve- 
ments which had been put on the real estate at 
" Dwightville," which had been settled by Dwight 
on his wife in 1868, and the means for improving 
which were derived from moneys obtained by Mrs. 
Dwight on mortgage, and secondly, on the bank 
rupt schedules which formed part of the record of 
Dwight's bankruptcy proceedings, put in evidence 
to establish the fact of his bankruptcy. 
Neither of these, however (assuming what is 
expressly denied, that the bankrupt schedules 
were competent evidence for such purpose), tended 
to prove that Dwight's occupation during the 
period inquestion had been that of a real estate 
dealer. While we have on the other hand his 
express declaration under oath as to what his only 
business had been during this period, to wit: 
Keeping a hotel, in connection with which he sold 
liquors by the package, and livery. 
The question called for an answer as to the 59 
regular business, or occupation in which he 
had been engaged during the period, not for a par- 
ticular speculation or venture. The note on the 
application warned him that his business must be 
carefully specified." The answer he gave was 
manifestly and beyond contradiction untrue, and 
being untrue, by the terms of the contract, itself 
avoided the policy and precluded a recovery by 
the plaintiffs. 
Third.- Upon the uncontradicted evidence in 
the case, the answer of Walton Dwight to subdi- 
vision " Bf of question "6," contained- in the ap- 
plication for the policy in suit, to the effect that 
he was insured in the New York Mutual (mean- 
ing the Mutual Life Insurance Company of New 
York}, on a fifteen year endowment policy for 
$10,000, and- also to the effect that he was insured 
in the Connecticut Mutual Life Insurance Com- 
pany, on an ordinary life policy for $15,000, was, 
so far as the said answer related to each of the 
companies named, untrue; and such untrue an- 
swer constituted a breach of warranty, which 
avoided the policy and precluded- a recovery by the 
plaintiffs. 
Application,fol. 2364. 
1st. As to the alleged insurance in the Mutual 
Life Insurance Company of New York. 
The first witness called on that subject, was 
Isaac F. Lloyd, Secretary of the Mutual Life In- 
surance Company of New York. This witness 
produced from the records of the company an ap- 
plication by Walton Dwight to his company, dated 
July 31. 1878, for $25,000 on the plain life plan 
(fol. 197). The application was not approved for 
$25,000. He testifies that the company executed a 
policy dated August 19, 1878, for $10,000, on the 
fifteen year payment plan, and delivered it to their 60 
general agent, Fayette P. Brown. The application 
identified by the witness was the only application 
pending with, that company in the summer of 1878, 
and there was no other policy on the life of Wal- 
ton Dwight, which had ever been signed by the 
officers of the company, in existence at that time. 
The general agent was subsequently ordered to re- 
turn the policy, and it was accordingly returned 
and cancelled. No premium was received on that 
policy. 
Fayette P. Brown, the general agent of the 
Mutual Life Insurance Company, testified that in 
the year 1878, one D. C. Vosbury, since deceased, 
had been his agent at Binghamton, in the business 
of the Mutual Life Insurance Company. He iden- 
tifies the application of Dwight (Exhibit 1, fol. 
2308), as having been received by him August 8, 
1878, from Vosbury. It was originally for $25,000 
on the plain life plan-Brown finally received from 
the company a policy for $10,000 on the fifteen 
year plan-the company being willing to accept 
the risk only for $10,000, on the fifteen year plan- 
took the policy to Yonkers, August 18th, and sent 
it to Vosbury the same day. He received a letter 
dated August 27, 1878, directing him to return this 
policy (Exhibit 3, fol. 2319), and on the same day 
telegraphed Vosbury, requesting him to return the 
policy, and in compliance with that request, re- 
ceived back the policy from Vosbury, accompanied 
by a letter dated 27th August, 1878 (Exhibit 4, fol. 
2320). No premium had been received on this 
policy. 
During the peiiod in which the witness had been 
general agent of this company there had been no 
transaction between Dwight and the company in 
respect to any insurance other than what took 
place on this application (fol. 231). This witness 
identifies the policy register kept by Vosbury, an 61 
extract from which was read in evidence and 
marked Exhibit "5" (fol. 2321). 
The only other witness who testified with regard 
to this alleged insurance was Neri Pine, the attor- 
ney for Mr. and Mrs. Dwight in their bankruptcy 
proceedings, who also took part in raising the 
money to pay the first quarter's premiums on the 
life policies secured, and who acted as the legal 
adviser for Dwight in examining the policies and 
the applications therefor. On his direct-examination 
he testifies (fol. 1418) that Vosbury, the sub-agent, 
brought him the policy, saying that Dwight direct- 
ed him to take it to the witness and leave it with 
him, and call there and get his money for the pre- 
mium. The witness told him to leave it till the 
Colonel came around. Pine says he subsequent- 
ly returned this policy to Vosbury, he thinks on 
August 27th; Vosbury came to the witness and 
said he wanted the policy. The witness suggested 
that Vosbury "should leave it until the Colonel 
" returned and see what arrangement could be 
" made about it; he said No, he wanted it then." 
This policy was then returned to Vosbury by 
Pine. 
On his cross-examination this witness struggled 
very hard not to admit that the policy was received 
by him for examination as Dwight's legal adviser, 
but was at last driven to that admission (fol. 1442). 
It was some days before he found time to exam- 
ine this policy. When he did examine it Dwight 
found fault with it. The ground of his objection 
was " that it was not such a policy as he under- 
" stood it was to be, and he didn't want that kind 
" of a policy" (fol. 1458). The precise diffi- 
culty was that the premiums were payable in 
fifteen years, and the policy not payable until 
his death. 
It will be remembered that the application was 
for $25,000 on the ordinary life plan, and the com- 
pany would only grant a policy for $10,000 on the 62 
15 year plan. This policy Dwight refused to ac- 
cept. Two or three days after this the policy was 
returned to Vosbury as already stated and by him 
returned to Brown, the general agent, who sent it 
to the office of the company where it was cancelled. 
No premium was ever paid on this policy (fol. 
1460). The reason for Pine's delay in examining 
the policy is given at fol. 1417. He says he was 
engaged making up petitions in bankruptcy for 
various parties which had to be filed on or before 
August 30th. There was no controversy or conflict 
about the facts of this transaction with the Mutual 
Life Insurance Company of New York. The testi- 
mony was all in perfect harmony. Dwight applied 
for a policy for $25,000 on the ordinary life plan. 
The company declined to issue a policy for that 
amount or on that plan, but was willing at first to 
insure him in $10,000 on the 15 year plan, and 
made out such a policy and handed it to its general 
agent. This policy was sent to Vosbury at Bing- 
hamton, who by Dwight's direction left it with 
Dwight's legal adviser forexamination, who was to 
pay the premium if the policy was approved. 
As soon as the lawyer found time to exam- 
ine the policy, objection was made by Dwight that 
it was not in accordance with his application. 
Meanwhile the company for some reason saw fit to 
recall the policy. It was returned to them in ac- 
cordance with their demand. 
It was never delivered or accepted, and no premi- 
um was ever paid. 
The question then recurs whether, upon these 
facts, Dwight was insured in the Mutual Life In- 
surance Company of New York for $10,000, on the 
22d day of August, 1878, when he signed the ap- 
plication to the defendant. 
If he was not, then the answer now under con- 
sideration was untrue and there was a breach of 
warranty in that respect which avoided the policy. 
Whether he was or was not insured upon the un- 63 
■disputed facts in evidence was a question of law for 
the Court. 
The Court will also remember in this connection 
that this policy was returned to the agent before 
the defendant's policy was issued. The defend- 
ant's policy was only dated August 28, audit could 
not have been issued till after that date, as the ap- 
plication to increase the amount to $15,000 was 
only made in Herman's letter of August 28 (Ex- 
hibit 111, fol. 2677). 
Even if it were possible, therefore, to find upon 
the facts in evidence that the answer under con- 
sideration was true at the time the application was 
signed, the statements therein must be regarded as 
continuing statements repeated down to the time 
of the company's action, and no one could pretend 
•that this statement was true or that Dwight did 
not know it to be untrue at the time when the de- 
fendant acted upon it and Dwight received the 
policy issued on the faith thereof. 
%dly. As to the alleged insurance in the Con- 
necticut Mutual Life Insurance Company. 
The first witness who testified on this subject 
was 
Joseph Hiflman. This witness was one of the 
firm of Peck & Hillman, the general agents of the 
Connecticut Mutual for the State of New York, 
excepting only Long Island and New York City, 
since 1862. The residence of the witness was Troy. 
He identifies an application by Walton Dwight to 
the Connecticut Mutual for insurance on his life to 
the amount of $25,000 on the life plan (Exhibit 6, 
fol. 2322). 
This application bears date 31 July, 1878, and 
was received by'the witness from Lowell Harding, 
the local agent at Binghamton, August 1, 1878 (fol. 
242). 64 
The witness forwarded the application to the 
company at Hartford. The company required a 
further medical examination which was furnished. 
A policy for $15,000 only was received from the 
company and forwarded to Harding about August 
17th or 18th, with receipt for an annual premium. 
Policy, Exhibits, fol. 2326. 
There was considerable correspondence back and 
forth. Dwight wrote a letter to Harding under 
date of August 12, 1878, stating that he had a paid- 
up policy in the " Equitable " for $40,000, which 
letter was attached to the application (see copy op- 
posite fol. 2327). The receipt which came with the 
policy was for an annual premium. 
This was returned to the company under date of 
August 19, and a new receipt for a semi-annual 
premium forwarded in its place (fol. 270, Exhibit 
13, fol. 2336). This was enclosed to Harding by 
Peck & Hillman with letter of 21st August (Ex- 
hibit 1, fol. 2273). 
Then the company, by telegram of 2d September,, 
ordered the witness to retain the policy,- and the 
witness, on the same day, telegraphed Harding to 
hold the policy (Exhibit 12, fol. 2335). 
Next, the witness sent a special agent to Bing- 
hamton to make an investigation-one Lorenzo 
Barber- since deceased. Barber made his report 
to the company at Hartford (fol. 254). 
The Medical Examiner having considered the 
additional information furnished, declined to ac- 
cept the risk on Dwight's life. This decision was 
communicated to Hillman by letter, dated Septem- 
ber 12, 1878 (Exhibit 10, fol. 2332). Under date of 
September 19, 1878, the company, upon further 
consideration, reaffirmed its decision to decline 
Dwight's application, and so advised Peck & 
Hillman by letter of that date (Exhibit 11, fol. 
2334). 65 
The policy thereupon came back to Peck & 
Hillman, with the premium receipt, about Septem- 
ber 25, 1878, and was returned to the home office 
(fol. 258). No premium was received on this policy 
(fol. 259). 
Loicell Harding, local agent at Binghamton, 
identifies the application as received from Dwight- 
July 31, 1878 (fol. 274). He sent it to Peck & 
Hillman. Further medical examination was called 
for, and the witness obtained and forwarded cer- 
tificate of Orton. Then more information with re- 
spect to some statement in regard to spitting of 
blood was required. On August 22, 1878, witness 
received the policy and premium receipt. He 
showed them to Dwight, who said, "Such a day 
" you go to Mr. Pine, and he will pay you the 
"premium on the policy," naming the day (fol. 
277). On the day designated-some eight days 
after the receipt of the policy-Harding went to 
Pine's office, but Pine was absent. 
The next day he went again, taking the policy. 
Pine looked it over, then looked ata letter attached, 
and said, "That is a part of the application, and 
" is considered as such," and told the witness he 
could not pay the premium till that was changed, 
referring to the statement in the letter of August 
12 that Dwight was insured in the Equitable in a 
paid-up policy for $40,000. The policy was then 
left with Pine for examination (fol. 279). 
This occurred about August 28th or 31st (fol. 
280). The witness had received the policy back 
from Pine before tlm receipt of the telegram of 
September 2d (Exhibit 12), and had it in his pos- 
session at that time. It remained in his possession 
until he returned it to Peck & Hillman 0,bout Sep- 
tember 24th. He never received any premium on 
that policy (fol. 282). 
The only evidence introduced by the plaintiffs on 66 
this subject, as in the case of the alleged insurance 
in the Mutual Life Insurance Company of New 
York, was the testimony of Dwight's attorney, 
Neri Pine. 
He says, on his examination in-chief, that Hard- 
ing left the policy with him-he thinks very soon 
after the policy bears date, and that it remained 
with him for a week or two weeks-"quite a time" 
(fol. 1416). He was very busy at the time, making 
petitions in bankruptcy, which had to be filed by 
August 30th. 
On his cross-examination, as has already been 
pointed out, this witness was obliged to admit that 
he acted as Mr. Dwight's legal adviser in examin- 
ing his applications for insurance and policies is- 
sued thereon for the purpose of ascertaining their 
sufficiency (fol. 1442). That in his capacity of legal 
adviser he found fault with the sufficiency of the 
Connecticut Mutual policy, and application at- 
tached to and forming part thereof, the first time 
he had an opportunity to examine them, and 
communicated his objections to both Dwight and 
Harding, the agent (fol. 1444). He admits that his 
memory is not clear or distinct. 
He had some conversation with Harding on this 
subject, and subsequently returned the policy to 
Harding. He could not say that any changes sug- 
gested by him had been made when the papers 
were returned to Harding. No premium was ever 
paid on that policy to his. knowledge. 
This witness merely confirms the testimony of 
the defendant's witnesses, though he admits his 
memory is not clear or distinct as to dates. 
Upon the uncontradicted testimony of all the 
witnesses, then, the history of this transaction was 
briefly as follows : 
Dwight applied for a policy on his life for 67 
$25,000. The company were unwilling- to accept 
him for that amount, but executed a policy for 
$15,000, and sent it to their general agents, who in 
turn sent it to Harding, the local agent. Harding 
was referred by Dwight to Pine, his legal adviser, 
who was engaged in examining on his behalf such 
policies as he succeeded in getting, and who would 
pay the premium if the papers should be found in 
order. Harding accordingly left the policy with 
Pine for examination. Pine examined it at the 
first opportunity, found fault with it on the ground 
of a mis-statement in a letter of Dwight farming 
part of the application which was attached to the 
policy, called the attention of Harding and Dwight 
to the defect, and returned the policy to Harding. 
The company then directed the agent to hold the 
policy till receipt of farther instructions. Some 
further correspondence was had and examination 
made, and finally the company declined the risk 
and ordered the return of the policy, and it was 
returned accordingly. This policy was never de- 
livered and no premium was ever paid thereon. 
The question again recurs, whether upon these 
undisputed facts Walton Dwight was insured in 
the Connecticut Mutual Life Insurance Company 
for $15,000 on the 22d day of August, 1878, when 
he signed his application to the defendant. 
If he was not, then the answer now under re- 
view was untrue, and there was a breach of war- 
ranty in that respect which avoided the policy. 
Whether he was or not insured upon the undis- 
puted facts in evidence was a question of law for 
the Court. 
Without contradiction, therefore, it was estab- 
lished by the evidence that the answer to question 
"6" in the application to the defendant, so far as 
it stated an existing insurance in either the Mutual 
Life Insurance Company of New York, or the Con- 
necticut Mutual Insurance Company, was untrue, 
and as by the express terms of the contract with 68 
the defendant, the policy should cease and be null 
and void and of no effect, and the defendant 
should not be liable for the payment of the sum 
assured or any part thereof, if the representations- 
made in the application upon the faith of which 
the contract was made should be found in any re- 
spect untrue, the defendant's motion for the dis- 
missal of the complaint should have been granted,, 
and the denial of said motion under the defendant's 
exception was error for which the judgment should 
be reversed. 
Fourth.- Upon the uncontrarticled evidence in 
the case, the answer of Walton Dwight to subdi- 
vision "C" of question "6," in his application to 
the defendant was untrue, and such untrue answer 
constituted a breach of warranty which avoided 
the policy. 
The precise question now to be considered is in 
these words, viz. : 
" C. Whether an assurance has been applied for with this- 
" or any other company without having led to an assurance ? 
" If so, with which companies ? and for what reason did the 
" application not lead to an assurance ?" 
The evidence established without contradiction, 
that at the date of the application to the defendant 
applications had been made by Dwight to several 
companies which had not led to an assurance, and 
many of which never did lead to an assurance. 
The question was not whether Dwight had made 
any application for insurance on his life which had 
been rejected, but whether he had made any appli- 
cation which had not, at the date of the application 
to the defendant, led to an assurance. It called 
for pending, undecided applications as well as re- 
jections. 
1. He had made an application to the Mutual 69 
Life Insurance Company of New York, under date 
of July 31, 1878, which had not led, and never did 
Lad to, an assurance. This company had declined 
his application both as to amount asked for- 
$25,000--and as to plan-plain life. It had been 
willing to give him a policy for not to exceed 
$10,000, but only on the plan of all premiums being- 
paid in fifteen years. To this form of policy 
Dwight objected, and the policy was returned by 
his lawyer, to whom it had been submitted for ex- 
amination to the company, and cancelled. It had 
actually been ordered back and returned prior to 
the date of the defendant's policy. 
Exhibits 3 and 4, fol. 2319. 
2. Dwight had made an application to the Con- 
necticut Mutual Life Insurance Company, under 
date of July 31, 1878, for $25,000, which had not 
led, and never did lead, to an assurance. 
This company also had declined his application 
for $25,000, and the proposed policy for $15,000 
was never accepted or approved, and as has been al- 
ready shown, was recalled and cancelled before de- 
livery or payment of premium. 
3. Dwight had made an application to the 
Phoenix Mutual Life Insurance Company, under 
date of August 15th, 1878, for $10,000, which had 
not led, and never did lead, to an assurance. It 
was finally declined in toto August 24, 1878, four 
days prior to the date of the policy in suit. 
Cornwall, fol. 1932. 
There was no room for any pretence of misunder- 
standing or good faith in this instance. Nothing 
had occurred to justify any assumption on.Dwight's 
part that this application would be favorably en- 
tertained when the formal application to the de- 
fendant was signed and forwarded ; and four days 
before his broker at his instance wrote to the de- 70 
fendant, proposing to increase the amount of insur- 
ance for which he had applied to it, the application 
to the Phoenix had been peremptorily declined. 
It will be remembered that this same broker, Her- 
mans, was acting as an assistant to Brown, the 
agent of the Phoenix (Exhibit 111, fol. 2677). 
Not only then was the answer to the question un- 
der consideration untrue in fact at the time the 
application was signed, but even assuming that the 
question could be tortured into an interrogation as 
to actual rejections, the answer, in that sense, was 
absolutely untrue, when, on August 28th, it was 
renewed for an increased amount. Good faith then 
called upon Dwight to declare the fact, even if he 
had been mistaken in his construction of the ques- 
tion when he signed his application to the defend- 
ant, and supposed, as was argued by counsel, that 
the question called only for actual rejections. 
The language of the question, however, is utterly 
inconsistent with any such construction. It called 
for the specification of any application made by 
him which had not led to an assurance-for a speci- 
fication of every pending application. 
4. Dwight also had made an application to the 
John Hancock Life Insurance Company for insur- 
ance on his life to the amount of $10,000, under 
date of August 21, 1878, which had not led, and 
never did lead, to an assurance (Exhibit 17, fol. 
2344). 
5. Dwight had also made an application to the 
Penn Mutual Life Insurance Company for insur- 
ance on his life to the amount of $10,000, under 
date of August 20, 1878, which had not led, and 
never did lead, to an assurance (fol. 516; Exhibit 
18, fol. 2352). 
6. Dwight had also made an application to the 
Globe Mutual Life Insurance Company for insur- 71 
ance on his life to the amount of $15,000, under 
date of August 20, 1878, which had not led, and 
never did lead, to an assurance (fol. 516 ; Exhibit 
20, fol. 2361). 
It is submitted in conclusion upon this question, 
that the answer under consideration was and is un- 
true in both letter and spirit. 
If the parties had not by their express agree- 
ment made this answer material, by providing that 
the contract should be void and of no effect if the 
representations contained in the application, on the 
faith of which the policy was issued, should be 
found in any respect untrue, even then this state- 
ment would have been from the nature of the case 
material. 
Suppose, by way of illustration, that Dwight had 
answered that he had made an application to the 
Mutual Life Insurance Company of New York for 
$25,000 on the ordinary life plan, and that that 
company had declined to grant a policy for that 
amount, or for the period of life, but was willing 
to grant a policy for, not to exceed, $10,000 on the 
fifteen year plan only, the acceptance of which 
policy was under consideration. Would not that 
answer have immediately invited investigation as 
to the facts within the knowledge of that company 
which had led to this action ? 
Suppose that Dwight had answered that he had 
applied to the Connecticut Mutual for $25,000, 
which they had declined to grant, but had offered 
a policy for $15,000 only, the acceptance of which 
offer was under consideration ; would not that 
answer have led to inquiry ? Inquiry in that 
direction would have led to the fact that Dwight 
had admitted to the Connecticut Mutual that he 
had had spitting of blood, but as be said only 
from the teeth. As his mother had admittedly 
died of consumption, the mere suggestion that he 
had had spitting of blood from any source would 72 
have necessarily led to close investigation of all the 
facts, and the result of such further investigation 
would have been, as it was in the case of the Con- 
necticut Mutual Company, the rejection of the 
application in toto by the defendant. 
Suppose he had said that he had an application 
pending with the Phoenix Mutual Life Insurance 
Company unacted on, the result would necessarily 
have been a conference between the officers of the 
two companies with the same result in each case- 
the rejection of his application. 
Or suppose, finally, that when, after the rejec- 
tion of his application, which it will be kept in 
mind occurred August 24th, 1878, Dwight applied, 
as he did, through Hermans August 28th, 1878, to 
increase the amount of insurance mentioned in his 
original application, he had corrected his answer 
by saying that since the date of his application the 
Phoenix Mutual Company had finally rejected his 
application to that company ; would not that in- 
formation have put the defendant on its guard, and 
led to a further investigation which would neces- 
sarily have resulted in the rejection of the applica- 
tion ? 
Did not good faith require this disclosure at 
his hands if, as was claimed by counsel, 
he had fallen into any error as to the purport of 
the question when he originally signed the applica- 
tion ? 
In Traill vs. Baring (4 De Gex J. & S. R., 329), 
Lord Justice Turner states the following rule of 
law : 
" I take it to be quite clear that if a person makes a re- 
" presentation by which he induces another to take a 
" particular course, and the circumstances are afterwards 
" altered to the knowledge of the party making the repre- 
" sentation, but not to the knowledge of the party to whom 
" the representation is made, and are so altered that the 
" alteration of the circumstances may affect the course of 73 
" conduct which may be pursued by the party to whom the 
" representation is made, it is the imperative duty of the 
" party who has made the representation to communicate 
to the party to whom the representation has been made 
" the alteration of those circumstances, and that this Court 
" will not hold the party to whom the representation has 
" been made bound, unless such a communication has been 
" made." 
This rule, it is respectfully submitted, applies 
with great force to the application rejected by the 
Phoenix Life Insurance Company hereinbefore 
mentioned. That application was pending undis- 
posed of at the time the application was originally 
presented to the defendant. It had been formally 
rejected on the 24th August, four days prior to 
Dwight's request, made through Hermans to the 
defendant, to increase the amount stated in his 
original application to the defendant upon the foot- 
ing of that application. He then knew that the 
Phoenix application had been rejected, and without 
correcting his answer permitted the defendant, in 
ignorance of the fact, relying upon the warranties 
in the application, which the law construes as being 
continued down to the time when the defendant 
acted thereupon, to issue its policy on the faith of 
such statements and warranties. 
But the question called for applications to other 
companies which had not then led to an assurance ; 
not for rejections only. The answer was untrue as 
to each of the companies above specified. If it was 
untrue as to either, it was a breach of warranty 
which avoided the policy, and the Court below 
erred in refusing to non-suit on that ground. 
Fifth.- Upon the uncontradicted evidence in the 
case, the answer of Walton Dwight to.question 
"16," contained in the application, on the faith 
of which the policy in suit was based, was untrue ; 
and such untrue answer constituted a breach of 
warranty which avoided the policy. 74 
Question " 16" reads as -follows : 
" 16. Has the party now or has the same ever had any of 
" the following diseases : 
" Spitting of blood. 
" Bronchitis. 
" Consumption. 
" Liver complaint. 
" Rheumatism." 
To this question Dwight answered as follows: 
" Last spring, while in Chicago, I was generally out of 
" sorts. Had rheumatism and trouble with my stomach ; 
" was sick some three weeks. Was prescribed for by Dr. 
" Allen Brooks of Chicago, some three or four times, when 
" I was wholly recovered, and have been well since. In 
11 1869, I had something like dyspepsia, but nothing seri- 
" ous ; no trouble since. To all these questions in No. 13, 
" answers, No, only as above. " 
The attention of the Court has already been 
called to the clerical error in the above answer, 
where "No. 13" is manifestly inserted by mistake 
for "No. 16," the number of the question under 
answer. 
The complaint (fol. 13) alleges, 
" that the representations contained in the application for 
" said policy were in all respects true ; and that said policy 
" was valid and in full force and effect at the time of the 
" death of the said Walton Dwight." 
The defendant, by its answer (fol. 34), 
upon information and belief, deny that the representations 
" contained in the application for said policy were in all re- 
"spects true, and they particularly deny that the representa- 
tions contained in the application for said policy touching 
" the previous condition of health of the said Dwight, and 
te especially in regard to his ever having had spitting of 
" blood or bronchitis," * * * * "or any or either of 
" them, were or are true." 75 
Again, by way of second defence, the defendant 
alleges this answer,among other answers to questions 
-contained in the application, to have been false and 
untrue, and to have constituted a breach of war- 
ranty whereby the policy was rendered null, void 
and of no effect (fols. 39-48). 
An order having been obtained requiring defend- 
ant to specify in a bill of particulars the precise 
times and places when and where Dwight had had 
bronchitis or spitting of blood, under pain of hav- 
ing any proof on that subject excluded on the trial, 
a bill of particulars was served specifying Wil- 
liamsport in the State of Pennsylvania, and the 
period between December 1, 1866, and May 1, 1867, 
as one of the places and times where and when 
the defendant expected to prove that Dwight had 
had bronchitis accompanied by spitting of blood 
(fols. 90-91). 
An order was made August 6, 1883, for the issue 
of a commission for the examination of witnesses 
at Williamsport, on the part of the defendant, 
named in the order. This order limited the time 
for the defendant to examine witnesses to August 
18th, 1878, while free scope was given to the plain 
tiffs to examine whom they would upon six days' 
notice to defendant (Order, fol. 1898). 
Several witnesses were examined on the part of 
the defendant under the commission issued pursu- 
ant to this order, but the plaintiffs did not examine 
a single witness thereunder. 
The evidence in support of this defence was of 
three kinds- 
IsZ. The testimony of residents of Williamsport 
who were eye-witnesses to the fact of Dwight's 
spitting of blood at Williamsport in March, 1867. 
2ndly. The testimony of several highly respecta- 
ble and unimpeached witnesses to Dwight's declara- 76 
tions that he had had serious hemorrhages of the 
lungs; and, 
'Srdly. The testimony of physicians present at 
the autopsy held fifty-two hours after his death as 
to the existence in one of his lungs of several small 
fibrous nodules, which, according to the notes of 
the autopsy signed by all the fifteen physicians 
present, were probably the result of old pulmonary 
phthisis^ and which, according to the expert testi- 
mony, would fully account tor the spitting of blood 
at Williamsport. 
The-attention of the Court is now invited to this 
testimony: 
Robert M. Forsman, lumber merchant, a resi- 
dent of Williamsport for thirty years and upward, 
testifies that he was residing at the Herdic House 
in that city in the winter of 1866 and 1867, while 
Dwight and his family were also residing in the 
same hotel. He had made Dwight's acquaintance 
in 1865, subsequent to which date the witness had 
business relations with him (fol. 288). They were 
together quite frequently, visiting each other in 
their rooms. Dwight was ill at the Herdic House 
in March, 1867. The time is fixed upon the wit- 
ness' mind by the fact that Dwight was obliged to 
go to Canada about that time in connection with 
the purchase of a tract of timber land in Canada 
for a company called the Williamsport and Canada 
Lumber Company, in which they were both inter- 
ested (fols. 290-303). Mr. Forsman was present in 
Dwight's room frequently during this illness. He 
was called in to see him by Mrs. Dwight, one of 
the plaintiffs (fol. 293). Dwight was then under 
the care of Dr. W. C. Doane. He was confined to 
his room coughing severely, and had hemorrhages. 
Witness was present when Dwight spat blood after 
severe coughing spells (fols. 290, 291). On one oc- 77 
casion this witness when in Dwight's room saw him 
spit blood as he says quite liberally. He estimates 
the amount at about half a pint of red blood. 
Dwight himself called his attention to it in a vessel 
beside his bed (fol. 294). Mrs. Dwight was then 
present (fol. 296). Dwight stated to this witness 
" that he regretted having these severe coughs, and 
" it would carry him off some day, he thought * * 
" that he had had hemorrhages" (fol. 293). 
Peter Her die, a resident of Williamsport for 
about thirty years, the owner of the Herdic House, 
knew Dwight before the latter came to Williams- 
port. Dwight was there boarding at the Herdic 
House with his wife, in the winter of 1866-7 
(fol. 321). 
This witness also had business with Dwight dur- 
ing that season in connection with the "Canada 
lumber land," and was in the habit of seeing him 
every day or so. Dwight was ill at the Herdic 
House in March, 1867 ; was confined to his room 
most of the time for a period of from ten days to two 
weeks to the best of the witness' recollection (fol. 
322). Dwight came back from Canada, was sick in 
his room, and coughed a good deal (fol. 323). 
He had to return to Canada by the first of April, 
to pay a sum of money, or lose the sale of these 
Canada lands. The transaction was an option, and 
a certain sum had to be paid by the first of April, 
or he would lose the money already paid. It was 
a matter of interest to the witness, that Dwight 
should be able to go before the first of April. Dr. 
W. C. Doane attended Dwight, and the parties in- 
terested desired to have the Doctor go with Dwight. 
They thought it was not safe for Dwight to go 
alone. This witness saw Dwight spit blood at this 
period, both in the street and in his room. He 
describes it thus: 
" The blood looked like fresh blood ; it was red. 78 
" I think rather light, bright color ; bright, fresh 
" blood, I should think " (fol. 326). 
Dwight said he " had hemorrhages, I under- 
" stood of the lungs, and he thought it would carry 
" him off some time " (fol. 326). 
On cross-examination (fol. 340) this witness tes- 
tified that he saw Dwight spit blood in his room 
in March, 1867. He says : 
"I think he had been spitting in a bowl while in 
" bed, and the bowl was all bloody." 
The witness saw him spit on this occasion. Be- 
ing interrogated as to the quantity, he says (fol. 
341): 
" At this time I didn't see a great deal ; there wasn't any 
" great quantity, probably two or three teaspoonfuls of spit : 
" I don't think I saw that but once in his room ; it looked 
" like fresh blood." 
CJharles Barties, junior, an attorney of Wil- 
liamsport, testifies to an interview between Dwight, 
the father of the witness, and the witness himself, 
in March or April, 1867, at the Herdic House. 
Dwight was endeavoring to make a sale to Mr. 
Barties, senior, of some of his Canada lumber stock. 
Dwight then assigned as a reason for his desiring 
to dispose of a portion of his stock, that " he had 
" had a lung difficulty and a hemorrhage, and he 
"had more stock than he could carry without bor- 
"rowing money, and he wasn't in a condition to 
"borrow it" (fol. 348). 
Horace E. Taylor, of Williamsport, examined 
under the open commission, testified that he was 
living at the Herdic House during the years 1865, 
1866 and 1867. He made Dwight's acquaintance 
there in 1865 or 1866. Dwight and his wife were 
living in the same hotel during part of this period. 
The witness and his wife were frequently in the 79 
rooms of Mr. and Mrs. Dwight. In answer to the 
question as to whether Dwight was ill and confined 
to his bed or rooms dining this period, this witness 
says : 
" I think he was ill for a few days ; I don't remember 
how long a time. The character of his illness, I under- 
stood, was hemorrhage of the lungs. I can only recollect 
•" that he had a hard cough ; he coughed as I do when I 
"'have a severe cold on my lungs " (fol. 359). 
Later on, the witness testifies: 
" I think he mentioned to me, while he was recovering, 
■" and before he was entirely well, on two or three occa- 
sions, that he had had a severe attack of hemorrhage of the 
lungs " (fol. 360). 
Again, being interrogated as to whether Dwight, 
when he made the statements testified to, express- 
ed any fears as to the result of these attacks, the 
witness says: "I don't remember particularly; I 
" only remember of his saying he had a pretty 
" ' close call,'' or something of that kind " (fol. 360). 
Again this witness says: 
"When Walton Dwight was ill in this hotel he looked as 
" though he had had a fit of sickness and was very pale;" * * * 
" my recollection is that he had a very severe cough for some 
" time. I could not give any definite time. My recollec- 
u tion is that it was for several weeks " (fols. 361, 362). 
This witness was also interested with Dwight in 
the Canada lumber matter, in connection with 
which Dwight's presence in Canada on April 1, 
1867, was necessary. 
He says he thinks he saw Dwight as often as 
daily during that illness (fol. 363). 
Anna C. Spaceman, widow of the Rev. Henry 
S. Spackman, formerly Chaplain of the Episcopal 
Hospital in Philadelphia, was living at the Herdic 
House in Willliamsport with her husband during 80 
part of the year 1866, and the years 1867 and 1868. 
She there made the acquaintance of Mrs. Dwight, 
the plaintiff, and of Walton Dwight, her husband. 
Walton Dwight was out of health during that 
time. Upon being interrogated as to her knowl- 
edge of the ailment from which Dwight was suffer- 
ing, derived from her own observation, or from 
Dwight's declarations to her, this witness testified 
as follows : 
" From observation, I saw, after coughing, mucus raised 
" streaked with blood ; he said he was spitting blood after 
" a severe cold ; to the best of my recollection his sickness 
" was of short duration ; he said in the presence of my hus- 
" band and myself, once, in my room, that some years pre- 
" vious in Michigan, he had raised blood ; he said nothing 
" as to the quantity" (fol. 373). 
Two other witnesses were examined on the part 
of the defendant under the commission to Wil- 
liamsport, viz. : Mrs. Eucie Herdic and Mrs. Maria 
Hoppes. The recollection of neither was very dis- 
tinct, though corroborative of the other witnesses so 
far as it went. The defendant, therefore, did not 
read their depositions on the trial, but they were 
offered and read on the part of the plaintiffs at 
the close of their rebutting testimony. Mrs. 
Herdic's deposition appears at folio 1909. 
Although she says she never knew of Dwight's 
being ill, she says (fol. 1912) : 
" I have heard Col. Dwight speak of having a hemor- 
" rhage in a general way, that is, not to me particularly." 
Again, at fol. 1917 : 
" I could not give the language, neither can I give the 
" time nor place ; but I remember of hearing him speak in 
" a general way of having had a hemorrhage." 
Mrs. Herdic also testifies (fol. 1913): 
" The only remark that I ever remember to have been 
" made by Col. Dwight was in relation to his cough* at one 81 
" time, when he said in the presence of several people that 
" he expected some time his cough would take him off." 
Mrs. Hoppes' recollection is limited to the fact 
of Dwight's having a cough, and that Dr. Doane 
attended him. She says that by the word " sick- 
ness " as used in her testimony, she understands 
"confined to his bed." 
Edward R. Seccomb^ of West Newton, Massa- 
chusetts, a retired merchant, sixty-seven years of 
age, testified that he was at Binghamton, New 
York, on the evening of March 28, 1876, and the 
following day. He stayed at the Dwight House, 
and there made the acquaintance of Dwight. He had 
never been in Binghamton before, and had never 
before seen or heard of Dwight. He is enabled to 
fix the date by his memorandum book, in which 
was recorded the date of his visit to Binghamton 
(fols. 167-173). In the course of an hour's conver- 
sation between Dwight and this witness in the 
hotel office on the evening of March 28, 1876, 
Dwighi informed Mr. Seccomb "that he had had a 
severe hemorrhage of the lungs" (fol. 169). 
Mr. Seccomb was subjected to a searching and 
protracted cross-examination, the result of which 
was to show the circumstances under which Dwight 
had made this statement, and the reason why it 
had been indelibly fixed on the mind of the wit- 
ness. 
It appears from this testimony that Mr. Seccomb 
had good reason for the interest he took in all cases 
of hemorrhages of the lungs. He states these rea- 
sons briefly in his re-direct examination (fol. 193), as 
follows : 
" 1 had a severe attack myself for weeks, and was not able 
" to move from the bed or speak ; and after I recovered 
" from it I never got over the sensation, and I have not to 
" this day ; and then my son was taken at the same time 82 
° or age in life that I was, and of course it has been in the 
" family, and he is a young man comparatively, and I am 
" sensitive upon that subject ; and I don't think I have 
" ever met a person that had had hemorrhage of the 
" lungs that I did not question upon that subject in order 
" to know the details of it ; I did it for my own gratifica- 
" tion ; it is thirty-five years ago, and I have never got over 
" the sensation I had at that time." 
Again, at folio 185, he says: 
" I wanted to see if his symptoms were similar to mine." 
* * * * <l This subject of symptoms has been on my 
" mind for thirty-five years." 
He details to the counsel for the plaintiffs the 
subjects of his conversation with Dwight, and at 
folio 190 continues : 
" He then said to me, ' Well, I have had hemorrhage of 
" ' the lungs,' and I asked him where he thought it came 
" from, whether from the lungs or from the breaking of a 
" blood-vessel, or from his stomach, and he told me it came 
" from his lungs ; that he had had a pretty serious trouble 
" with them, and that was the drift of the conversation." 
Dr. John Swinburne, of Albany, was present at 
the autopsy held November 18, 1878, the third 
morning after Dwight's death, in the presence of 
fifteen doctors. This autopsy was held, it will be 
remembered, at the instance of Dwight's own phy- 
sicians, who invited whom they would. Dr. Dela- 
field conducted the autopsy, and Dr. D. 8. Burr 
acted as secretary, recording in the notes, under 
Dr. Delafield's direction, the appearance of the 
body and its several organs, as the autopsy pro- 
ceeded. Dr. Swinburne (fol. 777) testifies as fol- 
lows : 
" In the upper lobe of the right lung was found what was 
" unquestionably a cicatrix, perhaps three-fourths of an inch 
" in diameter; by " cicatrix " I mean scar; underneath and 
° in the upper portion of the lung was what I term 83 
'nodules'; I see they have been very emphatically called 
" here 'lumps'; they were nodules, as you will often find, 
■" as the result of old standing tubercular lungs; the left 
lung was tied down somewhat by old adhesions." 
By reference to the fac simile of the notes of 
this autopsy, as recorded by Dr. Burr, and signed 
by the fifteen physicians present, which will be 
found at the end of the "Appendix," the Court 
will observe that Dr. Burr first made the following 
record, viz.: 
" Upper lobe (right lung) at the apex several small 
" fibrous cicatrices, probably the result of old pulmonary 
phthisis." 
Afterwards the pen was drawn through " cica- 
trices" and "nodules" was written above. 
How this alteration came to be made does not 
clearly appear. 
In the hurry of recording, however, and the con- 
fusion incident to the discussion going on, what 
was intended to be written down, was exactly- what 
Dr. Swinburne observed, viz., the prominent 
"cicatrix" testified to by Dr. Swinburne, and 
" several small fibrous nodules." 
Having omitted the word "cicatrix" first, and 
having it in his mind, he wrote it after " fibrous," 
and then, on looking at it again, remembered 
"nodules" to have been used, and inserted that 
word in the proper place, striking out "cicatrix," 
and failing to reinsert the latter word in its proper 
place. The record in this latter form, " Upper 
' ' lobe {right lung} al the apex several small fibrous 
" nodules, probably the result of old pulmonary 
" Phthisishaving been read over in the hearing 
of the fifteen physicians present, was signed by 
each and every of them without objection or pro- 
test, as their deliberate conclusion from the inves- 
tigation in which they had participated. 
Notes of Autopsy, p. 6, Appendix. 84 
Dr. Horatio 0. Wood, of Philadelphia, who oc- 
cupies the first rank in this country among med- 
ical experts and scientists, was interrogated as to 
the origin and significance of the " mucus streaked 
with blood," the blood spitting, and the presence 
of the fibrous nodules in evidence. His testimony 
on this subject begins at fol. 890, and is as 
follows : 
" Q- Where does mucus come from in the body that in 
" coughing is streaked with blood ? A. Usually it comes 
" from the lungs; it may come from the throat. 
" Q. What does the existence of nodules in the lungs indi- 
" cate ? A. Various things; they may indicate cancer of 
" the lungs; hard, fibrous nodules indicate previous ulcera- 
" tion and destruction of the tissue of the lungs; they are 
" usually of the same character as cicatrices or scars on the 
" external surface of the body; it is a scar in the lungs, and 
" indicates a past destruction of the tissue. 
" Q. Do lacerations of the lungs generally produce 
"hemorrhage or spitting of blood? A. Yes; the blood 
" vessels of the lungs are excessively numerous, occupying 
" in all parts of its tissue, and being many of them very 
" small and placed very close to one another. 
" Q. What are the symptoms of bronchitis which would be 
" noticed by a person who had not any medical knowledge? 
" A. Coughing and spitting or expectorations; beyond this 
" depends how closely a person observes; bronchitis is an 
" inflammation of the lining of the membrane of the bron- 
" chial tube. * * * 
" Q. What are the appearances of the blood from the 
" lungs? A. Bright red, more or less frothy. 
" Q. Can blood of such bright character come from the 
"finger? A. Yes; that depends upon whether the artery 
" is cut. 
" Q. Now, assuming that the person has had a cold with 
" very frequent cough, spitting of mucus streaked with 
" blood, spitting of considerable quantities of blood, years 
" afterwards hard nodules of a scar-like or cicatricial char- 
" acter are found in the apex or upper part of the lungs on 
" the post mortem examination, is there any, and if any, 85 
" what presumptive connection between the nodules and 
" the previous cough, in your opinion ? 
" Objected to on the ground that it is not 
" competent to submit to a scientific gentleman, 
" because it is not a matter of science, what the 
" presumptive connections are ; the Court sus- 
" tained the objection, to which ruling the coun- 
" sei for defendant duly excepted. 
" Q. Assuming the facts as I have indicated in my pre- 
" vious question, in your opinion, is there any connection ? 
" A. Yes. 
" Q. What is the connection between the two ? A. As I 
" have already stated, the fibrous nodule in the lungs is al- 
" most invariably the cicatrix of an old ulceration ; ulcera- 
" tion of the lung is a common cause of hemorrhage of the 
" lungs, and having, therefore, a history of the presence of 
" the common cause of hemorrhage from the lungs, and a 
" history of the presence of the hemorrhage, the presump- 
" tion is that the cause is-my opinion is-that the effect 
" has followed from the cause and the ulceration been pro- 
" ductive of hemorrhage." 
Dr. Austin Flint, Junior, testified as follows 
(fol. 1098): 
" Q- What do small fibrous nodules or cicatrices in the 
" apex of one of the lungs indicate ? A. They indicate 
*' previous tuberculous disease ; or I might say old tuber- 
" culous disease. 
" Q. In case there has been a spitting of blood from 
" tubercular disease, or hemorrhage of the lungs, and the 
" wound is healed and years elapse, is it possible to detect 
" it by auscultation or percussion of the lungs ? A. In a 
" great majority of cases, no; unless the tuberculous 
" disease has been quite extensive, it would not be possb 
" ble." 
Again (fol. 1139), "a man who spat blood from the lungs 
" would be likely to know that it came from the lungs." 
Dr. Dwight M. Lee, of Oxford, agrees with. 
Doctors Wood and Flint in their opinions, as to 
the connection between the nodules found in 86 
Dwight's lungs and the hemorrhages in evidence, 
and, the impossibility of discovering the presence 
of these nodules by an examination of the chest 
during life (fols. 1141, 1142). 
Dr. George W. Avery, of Norwich, testifies to 
the same effect (fol. 1057): 
This proof establishes conclusively, 
1st. That Walton Dwight in March, 1867, was 
confined to his room at the Herdic House in Wil- 
liamsport, for from one to two weeks. 
2d. That the nature of his illness was a hard 
cough accompanied by spitting of blood on various 
occasions, in quantities running from about three 
teaspoonfuls, seen by one witness, to in the neigh- 
borhood of half a pint, seen by another witness ; 
in the presence of witnesses who testified to the 
facts, and that he also during the same illness 
raised mucus streaked with blood. 
3d. That Mrs. Dwight, the plaintiff, was with 
her husband during this illness, and herself invited 
one of the witnesses (Forsman) into her husband's 
room to see him. 
4th. That Dwight, both during this illness and 
afterwards, declared to several witnesses not only 
that he had had hemorrhages of the lungs, but that 
he feared that this trouble would carry him, off 
some time. 
5th. That these were not the first hemorrhages 
he had had, but that prior to that sickness, when 
in Michigan, he had had such hemorrhages. 
6th. That there were found in the apex of 
Dwight's right lung on the autopsy, according to 
the testimony of his own physicians, several small 
fibrous nodules, which, with the unanimous consent 87 
of all the physicians present, were recorded as 
probably the result of old pulmonary phthisis ; all 
the fifteen physicians present signing the record 
without objection on the part of any one. 
7th. That such fibrous nodules are the result of 
old ulcerations ; that ulceration of the lungs is a 
■common cause of hemorrhage of the lungs ; and 
that the presence of these nodules would suffi- 
ciently account for the hemorrhages in evidence, 
which Dwight himself had declared over and over 
again to have proceeded from his lungs. 
8th. That after the lapse of years it would be 
impossible to detect the presence of such fibrous 
nodules by a physical examination of the chest 
during life. 
The plaintiffs wholly failed to contradict this 
evidence in any particular. 
Although they had been notified by the defend- 
ant's bill of particulars, that defendant expected 
to prove spitting of blood by Dwight at Williams- 
port at the time testified to by the witnesses; al- 
though they had the further notice by the applica- 
tion for the commission and the examination of 
witnesses thereunder, that proof of this fact would 
be offered and relied on, and although they had 
secured by the terms of the order and commission 
abundant opportunity to examine whom they would 
under the commission, they neither examined a 
witness under the commission nor called a witness 
from Williamsport to contradict, on the stand, the 
testimony of defendant's witnesses. They did not 
even venture to put on the stand Mrs. Dwight, who 
invited the witness, Forsman, into Dwight's room 
at the time when he was lying in bed, spitting 
blood, as testified by that witness. Neither did 
they venture to call Dr. W. C. Doane, who, accord- 
ing to the testimony of all the Williamsport wit- 88 
nesses, attended Dwight during his illness at that 
place, and could tell better than any other human 
being what was then the matter with Dwight, and 
the source of the hemorrhages in evidence ; who 
was also in Court, but whose lips were sealed by 
the statute, unless the plaintiffs, standing in the 
place of the patient, saw fit to open them. 
They called, however, a man by the name of 
Henry T. Reynolds, from Brookland, Pennsylvania, 
who testified to his acquaintance with Dwnght; who 
also swore that he was in Williamsport in March, 
1867, for ten or twelve days, and saw Dwight fre- 
quently during that period at the Herdic House 
and elsewhere (fol. 1489); that Dwight was then 
suffering from a bad cold, but he observed nothing 
else at that time about his health (fol. 1491), and 
that he never saw him spit blood (fol. 1493). 
On cross-examination he fixes the period of this 
visit to Williamsport in March, 1867, somewhere 
from the 10th to the 20th (fol. 1496). His hotel 
was the City Hotel, and he registered his name the 
day he got there (fol. 1498). 
The defendant disposed of this testimony by 
calling the porter of the City Hotel, Clemens 
Deutschler, who produced on the stand the hotel 
register of the City Hotel, covering the year 1867, 
and which showed that Mr. Reynolds was not at 
the City Hotel in Williamsport in either February, 
March or April, 1867 (fol. 1927). 
The plaintiffs also called other persons who had 
known Dwight at different periods and in 
different places, who testified, under defendant's 
objection, that they had not seen him spit blood. 
No one of these witnesses, however, professed to 
have been in Williamsport during the three years 
that Dwight and his wife were living there, and no 
one of them professed to have seen him in Michigan, 
where Dwight had previously had hemorrhages of 
the lungs, as he stated to the witness, Mrs. Spack- 
man (fol. 373.) 89 
Neither was there any contradiction or attempt 
at impeachment by any one of either of the wit- 
nesses who had testified to Dwight's repeated de- 
clarations that he had had hemorrhages of the lungs, 
which he expected would carry him off someday. 
The only other testimony offered by the plaintiffs 
having the slightest relevancy to the question now 
under consideration was that of two physicians 
present at the autopsy, Drs. Hyde and Chittenden. 
The object of this examination was to make light 
of the fibrous nodules found in the apex of 
Dwight's right lung, which the fifteen physicians 
present, including these witnesses, had certified to 
be there, and to be probably the result of old pul- 
monary phthisis. 
Dr. Hyde, in his examination in-chief, refers to 
these nodules at folio 1578. On his cross-examina- 
tion (fol. 1594) he testified as follows : 
" Q. Were there notes kept of this autopsy? A. There 
" were. 
" Q. By whom ? A. By Dr. Dan. Burr ; he did the writ- 
" ing. I made no suggestion as to what should go in those 
" notes. 
" Q. Did you make any dissent as to what should go in 
" those notes ? A. No. 
" Q. Did you hear the notes read over after they were 
"finished? A. Yes. 
"Q. Did you express your satisfaction with them ? A 
" I did. 
"Q. And that satisfaction remains now, does it? A. Yes. 
" Q. So that there is nothing that is contained in those 
" notes of that autopsy to which you then dissented or now 
" dissent ? A. No, not that I heard read there." 
Dr. Chittenden, in his examination-in-chief, 
refers to these nodules at folio 1745. 
On his cross-examination he admits (fol. 1754) 
that these fibrous nodules might indicate previous 
pulmonary phthisis. 
He also admits (fol. 1753) that he signed the 90 
notes of the autopsy, by which the fifteen physi- 
cians present certified that these fibrous nodules 
were probably the result of old pulmonary phthisis. 
He also admits (fol. 1758) that the notes were 
read to him before he signed, and he heard the 
whole and made no objection, and also (fol. 1760) 
that he made no such examination of the substance 
of these nodules as would enable him to say that 
it did not extend below the surface of the lung. 
He also (fol. 1768) admits the existence of the old 
adhesions in the lungs, and at folio 1771 says that 
they indicate that the disease of pleurisy has ex- 
isted . 
Having thus called the attention of the Court to 
all the evidence having the slightest bearing upon 
this question, it is most respectfully submitted 
that there is no conflict whatever. 
The facts established by the defendant's evidence, 
to which attention has heretofore been called, re- 
main undisturbed, unassailed. 
Walton Dwight is proved, without contradiction, 
to have had spitting of blood, accompanied by a 
severe cough, during an illness at Williamsport, 
March, 1867, in which he was attended by Dr. Doane, 
his medical advisor. He declared over and 
over again that he had had hemorrhages of the 
lungs, not only during this illness, but at sometime 
prior thereto, in Michigan. His lungs on the au- 
topsy contained fibrous nodules, which all the 
physicians present, including his own attendants, 
certified over their signatures to be probably the 
result of old pulmonary phthisis. The medical ex- 
perts show that ulceration of the lungs produces 
nodules of this description, and that hemorrhages 
of the lungs are the result of ulceration of the 
lungs, and that these nodules indicate previous ul- 
ceration of the lungs, which would account for the 
hemorrhages in evidence. 
No one ventures to hazard the assertion that 91 
these nodules were not produced from change of 
structure resulting from ulceration or abscess of the 
lungs, which caused the hemorrhages in evidence. 
The, question then recurs, was the answer "No," 
given by Walton Dwight to the question in the 
application, as to whether he had ever had spit- 
ting of blood, among other diseases, true or un- 
true ? 
But one answer, it is respectfully submitted, 
could be given to this question. Its utter untruth- 
fulness was established beyond contradiction and 
without conflict by the testimony of the eye-wit- 
nesses to the fact of his spitting blood, by his own 
declarations as to the origin of his blood-spitting, 
to wit, " that he had hemorrhages of the lungs," 
confirmed by the appearance of his lungs after 
death, as certified by all the physicians present at 
the autopsy, including all who testified as to such 
appearances on the trial. 
Not only had he had spitting of blood, but such 
spitting of blood was the result and evidence of 
disease of the lungs as he himself knew and de- 
clared. He had had not only one but several 
attacks of this description. Prior to the attack 
at Williamsport he had had a like attack in Mich- 
igan. These attacks had been of so serious a char- 
acter as to impress upon his mind the convic- 
tion that they would ultimately terminate fatally, 
and this conviction he stated over and over again to 
different witnesses and at different times. Not 
only, therefore, was this spitting of blood the re- 
sult and evidence of disease of the lungs, as testi- 
fied by the medical witnesses, but known to Dwight 
so to be when he signed the application. The case 
was, therefore, brought within the letter and spirit 
of Cushman vs. The U. S. Life Ins. Co. (70*N. Y., 
72). These attacks evidenced a vice in the constitu- 
tion of which he was fully cognizant, and the an- 
swer was, therefore, not only untrue as matter of 
fact upon the uncontradict.ed evidence in the case, 92 
but known to the applicant so to be at the time he 
signed the application. 
Great reliance was placed by the plaintiffs' coun- 
sel on the trial upon the case of Grattan against 
the Metropolitan Life Insurance Company (92 N. 
Y., 274;. An examination of that case, however, 
will show that it has no bearing. The answer, 
which was the subject of consideration in that case, 
had reference to the health of another person. The 
Court distinguished between an answer with refer- 
ence to the health of a person himself and one with 
reference to the health of another person, and in 
the opinion say : 
" A warranty in an application for a policy of life insur- 
" ance that a third person is in good health, does not mean 
" an actual freedom from illness or disease, but simply that 
" the person has indicated in his actions and appearance no 
" symptoms or traces of disease, and to the ordinary ob- 
" servation of a friend or relative is in truth well." 
It will be observed that this language has no ref- 
erence to a warranty of a person's own freedom 
from disease ; a fortiori to an answer given by a 
person as to his own health which he knew to be 
untrue where the symptoms and traces of disease 
had been observed by himself according to his own 
declarations to numerous parties. It will be observed 
that in the case at bar there was absolutely no con- 
flict. Not only so, but the plaintiff, Mrs. Dwight,who 
was proved to have been present during one of 
these attacks, and who was present in Court at the 
trial, was not called, and did not venture to sug- 
gest any question as to the accuracy of the testi- 
mony of the witnesses for the defendant in any par- 
ticular. There was nothing, therefore, to submit 
to the jury upon this point, and the refusal to non- 
suit on this ground was error, for which, under the 
defendant's exception, the judgment must be re- 
versed. 
On each and every of the grounds, therefore, on 93 
which the motion for non-suit was based, the de- 
fendant was entitled to a decision in its favor 
upon the well settled rule of law. There was noth- 
ing to sustain a finding of the jury in favor of the 
plaintiffs on either of said points, and the duty of 
the Court in such case was to grant the motion. 
Deyo?)<$. N. Y. Cent. R. R., 
34 N. Y., 9, and cases cited. 
This rule is very happily expressed by the Su- 
preme Court of the United States in the case of the 
Improvement Company vs. Munson (14 Wallace, 
442). The Court there say : 
" Nor are judges any longer required to submit a ques- 
"tion to a jury merely because some evidence has been 
" introduced by the party having the burden of proof, un- 
" less the evidence be of such a character that it would 
" warrant the jury in finding a verdict in favor of that 
" party. Formerly it was held that if there was what is 
" called a scintilla of evidence in support of a case, the 
"Judge was bound to leave it to the jury, but recent de- 
" cisions of high authority have established a more reason- 
" able rule, that in every case, before the evidence is left 
" to the jury, there is a preliminary question for the Judge; 
" not whether there is literally no evidence, but whether 
" there is any upon which a jury can properly proceed to 
" find a verdict for the party producing it, upon whom the 
" onus of proof is imposed." 
Again, as has been repeatedly said by our own 
Court of Appeals : 
" The power to nonsuit results from the principle that the 
" Court is the judge of the law when there is no dispute 
" about facts." 
Pratt vs. Hull, 13 John., 334. 
Labar vs. Koplin, 4 N. Y., 547. 
The People vs. Cook, 8 N. Y., 67 (at 
p. 75.) 
Millbank vs. Dennistoun, 21 N. Y., 
386. 94 
It was therefore plainly the duty of the Court 
below to have granted the nonsuit. As to some 
of the grounds, there was no question whatsoever as 
to the facts, as admitted by the Court, and the 
question submitted called for the performance by 
the jury of a function which the law has devolved 
upon the Court. 
II. 
The defendant was entitled to the in- 
struction to the Jury to find a verdict in 
its FAVOR on each of the grounds on which 
THE MOTION TO DISMISS THE COMPLAINT WAS 
based. The refusal of the Court so to in- 
struct THE JURY WAS ERROR, AND THE EXCEPTION 
TO SUCH REFUSAL ON EACH OF THE GROUNDS STATED 
WAS WELL TAKEN (fol. 2049). 
Herring vs. Hoppock, 15 N. Y., 409, 
and cases cited under Point I. 
As was said by Mr. Justice Cowen in delivering 
the opinion of the Court in Rich vs. Rich (16 
Wend., at p. 676): 
" Where there is a conclusion of law arising on plain 
"facts, the Judge may, and it is indeed his plain duty, to 
" direct a verdict according to such conclusion." 95 
III. 
The verdict of the jury and each and every 
FINDING OF THE JURY UPON THE QUESTIONS SUB- 
MITTED TO THEM WAS CONTRARY TO THE EVIDENCE, 
AND ON THAT GROUND SHOULD BE SET ASIDE, AND 
THE MOTION MADE BY THE DEFENDANT'S COUNSEL 
AT THE CLOSE OF THE EVIDENCE, TO SET ASIDE THE 
SAID VERDICT, SHOULD HAVE BEEN GRANTED, AND 
THE ORDER DENYING THE MOTION MADE UPON THE 
Judge's minutes presented for review upon 
THESE APPEALS SHOULD BE REVERSED, AND A NEW 
trial ordered. (See Order, fol. 128.) 
The answer given by the jury in the affirm- 
ative to the first question submitted to them, 
to wit: 
"Was the occupation of Walton Dwight for ten 
"years preceding August 22, I878, real estate and 
" grain dealer, within the meaning of the contract ?" 
was not only unsupported by any evidence 
in the case, but contrary to the whole evi- 
dence on that subject. 
^d. The answer given by the jury in the nega- 
tive to the second question submitted to 
them, namely : 
" Was Walton Dwight engaged in the sale of 
" beer, wine, or other intoxicating liquors, at any 
" time within five years prior to August 22, 1878, 
" within the intent and meaning of the contract ?" 
was not only wholly unsupported by a 
particle of evidence, but was contrary to the 
unanimous testimony of the witnesses exam- 96 
ined on the subject, including the sworn 
deposition of Walton Dwight himself. 
3rd. The answer of the jury in the negative- 
to the third question submitted to them, to 
wit : 
" Was Walton Dwight connected with the sale 
" of any beer, wine, or any other intoxicating 
" liquors, at any time within five years prior to 
" August 22d, 1878, within the intent and mean- 
" ing of the contract ?" 
was not only wholly unsupported, by any 
evidence in the case, but was contrary to the 
unanimous testimony of all the witnesses on 
the subject, including the sworn deposition of 
Walton Dwight himself. 
Uh. The answer of the jury in the negative 
to the forth question submitted, to them, to 
wit: 
" Had Walton Dwight, at any time prior to 
" August 22d, 1878, had spitting of blood result. 
" ing from disease of the lungs or other respiratory 
" organs ?" 
was not only wholly unsupported by any 
evidence in the case, but contrary to the 
unanimous testimony of all the witnesses 
on that subject. 
^th. The answer of the jury in the affirmative 
to the fifth question submitted therein, to 
wit: 
" Was the ailment of Walton Dwight at Williams- 
" port in March, 1867, a mere temporary ailment 
" from which he recovered ?" 
was not only unsupported by any evidence 97 
in the case, but contrary to the unanimous 
testimony of all the witnesses on that sub- 
ject. 
6th. The answer of the jury in the negative to 
the sixth question submitted to them, to 
wit: 
" Was the policy of insurance on the life of 
" Walton Dwight, in suit in this action, obtained by 
" him with the preconceived design and intent to 
" defraud the defendant ?" 
was contrary to the evidence. 
1th. The answer of the jury in the negative to 
the seventh question submittted to them, to 
wit: 
" Did Walton Dwight die by suicide ?" 
was also contrary to the evidence. 
Sth. The general verdict found by the jury in 
favor of the plaintiffs was also contrary to the 
evidence. 
It is not intended here to repeat the testimony 
which has been cited at length under the first 
point, and upon which the defendant confidently 
relied as entitling it to the dismissal of the 
complaint on the motion made at the close 
of the testimony. In considering the present point 
the Court is respectfully referred to the evidence as 
collated under the first point, and in the statement 
of facts hereto prefixed. 
On a motion for a new trial, it is the duty of the 
Court to set aside a verdict even though there may 
be evidence in the case which, if standing uncon- 
tradicted, would be sufficient to support such ver- 98 
diet, where the verdict is clearly against the weight 
of evidence and the justice of the case. 
Colt vs. 6th Ave. R. R Co., 49 N. Y., 671. 
Hamilton vs. 3rd Ave. R. R. Co., 53 
N. Y., 25. 
In this latter case the late Mr. Justice Grover, in 
delivering the opinion- of the Court of Appeals, in 
which all the judges concurred, lays down the rule 
as follows : 
" The Special Term upon motion, and the General 
"Term upon the appeal from its order, had power, and 
" it was the duty of each, to examine and determine whether 
"the verdict was against the weight of evidence and the 
"justice of the case, and if of opinion that it was, to set 
" it aside and order a new trial. The further duty was 
" incumbent upon them to' examine whether upon the trial 
" the defendant sustained any injury from the jury having 
" been misled by any improper remarks of the Judge during 
" the trial, which were not excepted to, or not the proper 
"subject of exception." (At p. 27.) 
In Smith vs. 2Etna Life Insurance Co. (49 N. Y., 
211) the Court say : 
" The action of the Supreme Court was plainly right. It 
"is their, duty to set aside a verdict which is against the 
" clear weight of the evidence ; not merely, as this is, against 
"the evidence. * * * * Justice would be promoted 
" if the Supreme Court should more frequently exercise its 
"unquestioned right of reviewing verdicts upon the facts." 
Of course if any one of the special findings shall 
be found by the Court unsupported by the evidence 
or contrary to the (dear manifest weight of the 
evidence, and shall be set aside for that reason, the 
general verdict falls with it. If, for instance, the 
Court shall find that there was no evidence to sus- 
tain the finding of the jury in answer to the second 
question submitted to them, that Walton Dwight 
had not been engaged in the sale of beer, wine or 99 
other intoxicating liquors at any time within five 
years prior to August 22d, 1878, within the intent 
and meaning of the contract ; or to sustain their 
finding in answer to the third question, that Dwight 
had not been connected with the sale of beer, 
wine or other intoxicating liquors at any time 
within five years prior to August 22d, 1878, within 
the intent and meaning of the contract, then there 
was a breach of warranty arising out of the an- 
swers made by Dwight in the application to the 
questions put on those subjects, and the general ver- 
dict should have been for the defendant. As has 
already been shown under the first point, there was 
not a scintilla of evidence of any description to sus- 
tain either of those findings. The unanimous testi- 
.mony of all the witnesses, including Dwight him- 
self, showed that during the three years commenc- 
ing in the spring of 1874. and ending in the spring 
of 1877, he had steadily, without interruption, car- 
ried on the business of selling wines and liquors by 
the package as a business in connection with the 
hotel which he kept during that period, and that 
the answer given by Dwight to the questions put to 
him upon that subject in the application was whole- 
iy untrue. The learned Judge who tried the cause 
below, during the argument of the counsel who 
closed the motion for a nonsuit on the part of the 
defendant, used the following language : 
" The Court.-There is no doubt about the fact that he 
" had sold liquor, and he could not have sold liquor with- 
" out being connected with the sale of liquor. There is no 
doubt about that." 
P. 2193, Stenographer's notes of argu- 
ment. 
This was after the testimony had been closed, the 
motion had been opened and the plaintiffs had 
made their answer thereto. 
The -question actually submitted to the jury in- 100 
volved no question of fact, but a mere question of 
law. As has been shown from the evidence, and as 
the learned Judge below admitted, there was no 
question about the facts. The jury, however, were 
relieved from finding on the question of fact by the 
form in which rhe question was put, and were per- 
mitted to give their construction of the intent and 
meaning of a contract which was in writing, and 
about which no controversy existed. They were 
permitted to usurp the province of the Court, and 
io pass upon a question of law which it was the 
duty of the Court to decide. If their finding is 
to be regarded as a finding of fact, as has been 
shown from the evidence, and as the learned Judge 
below admitted, the finding was not only contrary 
to the weight of evidence, but contrary to the whole 
evidence, and was utterly without evidence to sus- 
tain it. If their finding is to be regarded as a find- 
ing of matter of law, then that question has been 
mistried. The defendant was entitled to the 
judgment of the Court upon that question, and it 
was error to submit it to a jury who were utterly 
incompetent to deal with such questions. 
Pratt vs. Hull. 
Labar vs. Koplin. 
The People vs. Cook, cited under Point 
I. 
Again, the finding upon the question as to 
whether or not Dwight had had spitting of blood 
was not only contrary to the weight of evidence, 
but unsupported by any evidence in the case. It 
was in the face of the testimony of eye-witnesses 
to the spitting of blood; of the witnesses to 
Dwight's repeated declarations that that spitting 
of blood was the result of hemorrhages from the 
lungs ; of the declarations of Dwight that these 
attacks were so serious as to create in his mind the 
apprehension that they would "carry him off" at 
some time ; it was in the face of the testimony of 101 
the witnesses present at the autopsy showing the 
existence in his lungs of fibrous nodules, which, in 
the opinion of the witnesses, recorded over their 
signatures at the date of the autopsy, was probably 
the result of old pulmonary phthisis ; it was in the 
face of the testimony of the medical experts as to 
how such fibrous nodules are produced, and what 
they indicate -that they proceed from and indicate 
ulceration of the lungs-a change of structure in 
the tissue of the lungs, the usual cause of 
hemorrhages of the lungs, showing conclusively 
that the spitting of blood testified to by the wit- 
nesses was the result of disease of the lungs, com- 
monly known as consumption or phthisis, the 
existence of which disease was well known to 
Dwight, as shown by his repeated declarations on 
that subject. There was no evidence to contradict 
this testimony. The only attempt at evidence in 
that direction was the calling of witnesses who had 
known Dwight at different times and places other 
than the times and places when he was shown to 
have been afflicted with this disease, to testify that 
they had never seen him spit blood or known him 
to have such disease. 
It is respectfully submitted that testimony of 
this character was entitled to no weight and raised 
no issue, and that the finding was contrary to the 
whole mass of testimony on the subject, and that 
this finding, therefore, like the others, should be set 
aside as contrary to the evidence, -h 
The finding upon the question of fraud was 
evidently controlled by the instruction of the 
Judge, to which exception was taken, and to which 
the attention of the Court will be called hereafter. 
That the said policy was, in point of fact, obtained 
by Dwight with the intent to cheat and -defraud 
the defendant, no one, it is respectfully submitted, 
can question or doubt, who has carefully perused 
the testimony in this case. 
So also as to the cause of death. While six 102 
medical experts of the highest character and at- 
tainments-the full number allowed by the Court- 
testified in the most positive manner, and. in perfect 
harmony one with another, upon the evidence as to 
the history of the alleged sickness of Dwight, and 
the appearance presented by his body and the 
several organs thereof at the autopsy, that it was 
impossible that he could have died of any natural 
cause, and that it was impossible that he could 
have died, from any cause other than asphyxia, 
resulting from mechanical strangulation, no one 
on the other side ventured to contradict this testi- 
mony in any respect, or advance any other opinion, 
as to what was the cause of death. The plaintiffs 
contented themselves with simply calling the in- 
fidel, Hull, and having him testify that he saw no 
rope, omitting to call either the hotel keeper, 
Spaulding, who was doing something to Dwight's 
tongue, or the plaintiff, Mrs. Dwight, who had. the 
hands of her deceased husband immersed in hot 
water. 
The attention of the Court is respectfully called, 
in connection with these several topics, to the 
statement of facts preceding these points, in wh ch 
the testimony bearing on all these subjects is set 
out with appropriate references to the folios of the 
record. Can the Court say, upon this record, that 
these several findings and. this general verdict 
based thereupon, are not, nor is either of them, 
contrary to the clear weight of evidence in this 
■cause and to the justice of this ease? If they can- 
not-if they find that either one of these findings 
of the jury is clearly contrary to the weight of 
evidence, or that the verdict based thereon is con- 
trary to justice, then this verdict must be set 
aside under the rules of law, to which the atten- 
tion of the Court has been called. 103 
IV 
The defendant's exceptions to questions 
PUT TO PLAINTIFFS' WITNESSES AS TO WHETHER 
THEY HAD EVER SEEN WALTON DWIGHT SPIT 
BLOOD, WERE WELL TAKEN. 
Exceptions, fols. 1176, 1357. 
Questions of this character were put to various 
witnesses on the part of the plaintiffs. At folio 
1357, the Court will find, by reference to the rec 
ord, ihat all questions of this class were, in due 
season, objected to as incompetent and immaterial. 
The Court overruled the objections so taken, and 
the counsel for the defendant duly excepted. It 
will be borne in mind that the defendant had given 
notice in its bill of particulars of its intention to 
prove that Dwight had spitting of blood at Wil- 
liamsport, Pennsylvania, in the winter of 1866-7. 
Before the trial, the defendant had taken testimony 
under commission to establish that fact. On the 
trial, the defendant's counsel examined several 
witnesses who swore to the fact of having seen 
Dwight spit blood during his illness at Williams- 
port, in March, 1867. After the defendant had 
rested, the plaintiffs put witnesses on the stand 
who did not profess to have seen Dwight at or 
about the time of this illness, but who had known 
him and seen him at other times. Having such 
witnesses testify that they had not seen Dwight 
spit blood, had, therefore, no tendency to disprove 
the allegations or proofs of the defendant, or to 
raise any issue. Testimony of this character, it is 
respectfully submitted, was incompetent. Even if, 
however, the objection to its competency for any 
reason might not be sustained, it was clearly im- 
material, had a tendency to mislead and confuse 
the minds of the jury, and the exceptions taken on 104 
the ground of the materiality of the question should 
therefore be sustained. 
V. 
The Court below erred in overruling the 
OBJECTION TAKEN BY THE DEFENDANT'S COUNSEL 
TO THE QUESTION PUT TO THE WITNESS, SWINBURNE, 
AT FOLIO 1230, AS TO WHETHER OR NOT HE HAD 
heard "Dr. Ayres say or suggest that the 
" CREASES IN THE NECK WERE PROBABLY MADE 
" BY BENDING THE NECK BACKWARD AND FOR- 
" WARDS, OR WORDS TO THAT EFFECT9?' 
This question was objected to as incompetent, 
and calling for hearsay evidence. It did not in- 
terrogate the witness as to a statement which he, 
the witness, was alleged to have made prior to 
giving his testimony, in conflict with his evidence 
given upon the stand, but as to an alleged declara- 
tion claimed to have been made by some other per- 
son, which was entirely incompetent. The defend- 
ant's exception to this ruling was therefore well 
taken. 105 
VI. 
The exception of the defendant's counsel 
TO THE RULING OF. THE COURT BELOW, UPON THE 
OBJECTION TAKEN BY THE DEFENDANT TO THE 
QUESTION PUT TO THE WITNESS, ELIAS AYRES, AT 
FOLIO 1232, AS TO WHETHER THE WITNESS HAD 
heard Dr. Swinburne "say, upon attention 
"being called to the creases in the neck, 
" THAT THEY WERE PROBABLY MADE BY BENDING 
" THE HEAD AND NECK BACKWARD?" WAS WELL 
TAKEN. 
No proper foundation for this question had been 
laid. The question put to Dr. Swinburne, which 
is the subject of the preceding point, and which 
was relied on as having laid the foundation for the 
question now under consideration, was in no 
respect identical with the question put to Mr. 
Ayres. The question put to Dr. Swinburne was as 
to his having heard some one else make a state- 
ment, not as to his own statements or declarations. 
The question put to Elias Ayres was as to a declar- 
ation alleged to have been made by Dr. Swinburne. 
Its only object could have been to show that Dr. 
Swinburne had made some declaration prior to 
giving his testimony on the stand inconsistent with 
such testimony. To make such evidence competent, 
the rules of law required the plaintiffs first to in- 
terrogate Dr. Swinburne as to whether or not he 
had made such statement. This the plaintiffs 
wholly failed to do. 106 
VII. 
The Court below erked in permitting the 
witnesses, Francis W. Downs (fol. 1318), Theo- 
dore F. McDonald (fol. 1354), and Henry C. 
Hermans (fol. 1535), to testify, under the de- 
fendant's OBJECTION. TO DECLARATIONS AND 
STATEMENTS MADE BY MRS. DWIGHT, AND THE DE- 
FENDANT'S EXCEPTIONS TO THE RULINGS OF THE 
Court admitting such testimony, were and 
EACH OF THEM WAS WELL TAKEN. 
These questions were objected to as incompetent 
and as calling for hearsay evidence. What Mrs. 
Dwight said on these several occasions could at 
best only be hearsay evidence and in no way 
competent. 
VIII 
The Court below erred in admitting testi- 
mony as to Dwight's statements and declara- 
tions ON THE SUBJECT OF HIS ALLEGED ILLNESS. 
Several of the witnesses were permitted to testify 
as to what Dwight had said, on this subject, 
namely : Francis W. Downs (at fol. 1324), Theo- 
dore F. McDonald (at fol. 1353), and Bessie D. 
McDonald (at fol. 1884). The counsel for the de- 
fendant in due season objected to the questions put 
to these several witnesses on this subject, but the 
Court overruled the objections so taken, and ad- 107 
mitted the testimony. To this ruling the counsel 
for the defendant duly excepted. 
It will be borne in mind that whether or not 
Dwight was sick at all at this time was directly in 
issue.' Dr. Porter, who had made an examination 
of him for the purpose of ascertaining whether he 
was seriously ill or not, had been unable to find 
from his examination any evidence of any serious 
illness. All that he had been able to discover, 
aside from Dwight's own declarations, had been 
that his circulation was somewhat feeble, a condi- 
tion which was fully accounted for by the drugs 
which Dwight admitted that he had been taking. 
The condition of Dwight's organs after death was 
such as utterly to refute the suggestion that he had 
had any congestive or other chill or malarial fever 
of any description, and to enable the experts to 
testify without any hesitation that it was impossi- 
ble that he could have died from any natural 
cause. Although Dwight's own physicians, Drs. 
Orton and Burr, were both upon the stand, and 
although the Court held that it was competent for 
the plaintiffs, standing in the place of Dwight, to 
remove the seal which the statute had placed on 
the lips of doctors, neither of these physicians and 
no physician ventured to make a suggestion as to 
the character of Dwight's pretended illness, or to 
express any opinion as to the cause of his death, 
or to raise any issue with the testimony of the de- 
fendant's experts on that subject. 
These declarations which are the subject of the 
exceptions now under consideration were the de- 
clarations of Dwight himself, in his own favor, and 
were therefore incompetent. That they had a tend- 
ency to affect the minds of the jury cannot be ques- 
tioned. The defendant's exceptions to the rulings 
of the Court upon its objections to the admission of 
this testimony were therefore well taken. 108 
IX. 
The Court below erred in excluding the 
QUESTION PUT TO THE WITNESS, MCDONALD, UPON 
HIS CROSS-EXAMINATION AT FOL. 1393. 
This witness, who was a brother-in-law of Wal- 
ton Dwight, had been called, among other things, 
to prove that Dwight had been sick. It also ap- 
peared from the testimony, that he had been con- 
cerned in advancing money to pay premiums on 
policies of life insurance that Dwight had been ob- 
taining just prior to his alleged illness. Under 
this state of facts he was asked, at folio 1393 : 
" Q. About how long was it after the time when you were 
" paying part of his premium on life insurance before he 
" first complained of being sick ?" 
The question was objected to by the plaintiffs, 
on the ground that there was no foundation for the 
question (fol. 1394). The Court sustained this ob- 
jection, to which ruling the counsel for the defend- 
ant duly excepted. It is respectfully submitted, 
that the question so excluded was a perfectly 
proper question upon cross-examination ; that the 
objection was untenable, and that the exception to 
the ruling of the Court sustaining such objection 
was well taken. 109 
X. 
The Court below erred in permitting the 
witness, Neri Pine, to testify, under the de- 
fendant's OBJECTIONS, TO A CONVERSATION HAD 
BETWEEN HIMSELF AND WALTON DWIGHT, HIS 
client, on November 15, 1878, relative to PRE- 
TENDED arrangements claimed to have been 
MADE, WITH REFERENCE TO THE PAYMENT OF THE 
SECOND QUARTER'S PREMIUM, WHICH WOULD BE 
payable on November 19, 1878, on policies ob- 
tained by Dwight. 
The first question on this subject appears at 
folio 1427. The witness was there asked to 
" Q. State whether, on the morning of that 15th day of 
" November, 1878, he (Dwight) made arrangements with 
" you relative to going to New York to pay the approach- 
" ing premiums on his policies, and if so, what arrange- 
" ments ?" 
After some objections and discussion, the Court 
(at fol. 1431) permitted the question to be put in 
this form : 
" Q. Under the direction the Court has given, state what 
"was said and done." 
The objections taken by defendant's counsel ap- 
pear at fol. 1428, and were upon the ground that 
the question was incompetent in itself, as calling 
for hearsay evidence ; that it called for the declara- 
tion of the deceased in his own favor. And at 
folio 1432 the counsel expressly excepted to so 
much of the question, as modified, by the direc- 
tion of the Court, as called for vvhat was said on 
this subject. 
The Court will recollect, that the defendant al- 
leges, that the policy in question had been obtain- 
ed by Dwight, with the preconceived design to 110 
defraud the defendant ; that the application for 
the policy in suit was made in pursuance and in 
execution of a scheme to defraud the defendant 
and other insurance companies, by obtaining the 
largest amount of insurance possible for the small- 
est amount of money down, with the expectation 
and intention of paying not more than one premi- 
um, and of dying before the second premium 
should become payable. In support of this de- 
fence. a mass of testimony had been introduced on 
the subject of Dwight's financial condition. He 
had been shown to be overwhelmed with debts, 
to have been in bankruptcy, to have been 
obliged to borrow money from his brother to pay 
his board bills, to be owing debts to various persons 
of small amounts, the obligation to pay which he 
acknowledged, but which he was able to make no 
provision to pay,except by will. It had been shown 
that the money to pay the first quarter's premium 
on the policies actually obtained by him had been 
gotten partly by borrowing and partly from the 
discount of a note which his brother-in-law and his 
attorney had endorsed for that purpose,which note 
was not paid at maturity. 
Upon this and other testimony it was contended 
that it was impossible that he could have expected 
to pay a second quarter's premium. To meet this 
overwhelming evidence it was proposed to have 
Dwight's own attorney testify as to his conversa- 
tion with Dwight and Dwight's own declarations to 
him, for the purpose of arguing that Dwight had 
some reason to expect to be able to provide for 
this second premium. The evidence called 
for by the question under consideration was 
clearly incompetent. The question called for 
hearsay evidence. It called for Dwight's own 
declarations in his own favor,on a vital point in the 
case, made to his own attorney. The defendant's 
exception to the ruling of the Court upon this sub- 
ject was therefore well taken. 111 
XI. 
The Court below erred in denying the mo- 
tion MADE BY THE DEFENDANT'S COUNSEL AT FOL. 
1477, TO STRIKE OUT THE ANSWER OF THE WITNESS, 
N< rm an Dwight, to the question as to whether 
OR NOT THE WITNESS KNEW OF DWIGHT'8 "GOING 
to Canada, and of his Canada operations." 
The witness answered this question as follows: 
" A. I knew from the man that surveyed his Canada 
" lands." 
This answer was clearly based on hearsay, and 
therefore incompetent, and the defendant's excep- 
tion to the refusal of the Court to strike it out was 
well taken. 
XII. 
The Court below erred in sustaining the 
OBJECTION OE THE PLAINTIFFS' COUNSEL AND EX- 
CLUDING THE QUESTION PROPOSED TO BE PUT TO THE 
witness, Hermans, at fol, 1520. 
The effort had been made on the part of the 
plaintiffs to establish that the witness, Hermans, 
was the agent of the defendant for the purpose of 
trying to charge the defendant with responsibility 
for his acts, and with knowledge of matters of 
which Hermans was alleged to have notice. The 
defendant's counsel had been permitted to cross- 
examine the witness, in the first instance, in regard 112 
to his relations with the company. The plaintiffs 
had introduced in evidence an envelope, or policy 
pocket, in which the policy in suit had been for- 
warded. Upon this envelope, or policy pocket,was 
this endorsement: " Please notify the company of 
any change of your address." The contention of 
the plaintiffs' counsel, based upon this, was, that 
it was a notice addressed to Hermans as an agent 
of the defendant, and a recognition of that relation- 
ship. The cross-examination of the witness had 
shown that he was not their agent, which fact was 
placed beyond question by the correspondence in- 
troduced in evidence on such cross-examination. In 
this condition of the proofs, the witness being un- 
der cross-examination, the following question was 
put: 
" Q. And the words which the learned counsel on the. 
" other side emphasized so strongly, ' Please notify the 
" company of any change of your address,' do you under- 
" stand to be intended as a notification to you or to the 
" person insured ?" 
This question was objected to. The Court sus- 
tained the objection,, and to this ruling the counsel 
for the defendant duly excepted. No ground of 
objection was stated. The witness, it will bo 
observed, was a hostile witness. He had been 
employed as a broker by Dwight to obtain policies 
from various companies to the amount of $100,000 
or more. He was an expert in the business, and in 
that view could properly have been interrogated on 
this subject. The question called for his under- 
standing as that of a person familiar with the busi- 
ness. His papers had been handed to the attorneys 
for the plaintiffs. The envelope in question was 
produced in such a way as to leave it doubtful 
whether it had been intended for him or for 
Dwight. In any event, the question was compe- 
tent as testing the witness' good faith on the stand, 
and enabling the jury to judge of his credibility. 113 
XIII 
The Court below erred in overruling the 
OBJECTION TAKEN BY THE DEFENDANT'S COUNSEL 
TO THE QUESTION PUT TO THE WITNESS, HERMANS, 
WHICH APPEARS AT FOLIO 1523, AND THE DEFEND- 
ANT'S EXCEPTION TO THIS RULING WAS WELL TAKEN. 
This question was as follows : 
" Q. State whether Mr. Dwight ever came to you to em- 
" ploy you to get life insurance for him ?" 
The correspondence between the witness, Her- 
mans, and the defendant, introduced in evidence on 
his cross-examination, appears in the appendix at 
folios 2673 to 2678. It was opened by the witness, 
Hermans, by a letter dated August 16, 1878, in . 
which he says : 
" I have a case of a party who wants placed in good com- 
" panies about $100,000 insurance on his life, and my com- 
" pany will only take $10,000 on any one life. Please write 
" me what brokerage you can allow me " (fol. 2673). 
The attempt on the part of the plaintiffs was to 
show that Hermans was employed by the defend- 
ant, and not by Dwight. The question under con- 
sideration was objected to on the ground that the 
witness was incompetent to state whether or not 
Mr Dwight came to him for that purpose. Unless 
that purpose was declared, no person but Dwight 
could answer the question, and Dwight's declara- 
tion would be incompetent as hearsay. Clearly the 
witness was not competent to answer as to the pur- 
pose of Dwight's visit without such declaration. 114 
XIV. 
The Court erred in overruling the objec- 
tion TAKEN BY THE DEFENDANT TO THE FOLLOW- 
ING QUESTION PUT TO THE WITNESS, HERMANS, AT 
FOLIO 1544: 
" Q. Could he walk alone, apparently?" 
This question was objected to on the ground that 
the witness was not shown to be competent to give 
an opinion on the subject. The exception to this 
ruling was therefore well taken. 
XV 
The Court erred in overruling the objec- 
tion TAKEN BY THE DEFENDANT'S COUNSEL TO 
THE FOLLOWING QUESTION PUT TO THE WITNESS, 
Hermans, at folio 1558 : 
" Q. What conversation had you with him 
" RELATIVE TO THIS POLICY, IF ANY ?" 
The Court also erred in denying the mo- 
tion MADE BY THE DEFENDANT'S COUNSEL TO 
STRIKE OUT THE ANSWER GIVEN BY THE WITNESS 
TO THIS QUESTION, AND THE DEFEND A NT'S EXCEP- 
TIONS TO THE RULINGS OF THE COURT IN ADMIT- 
TING THE EVIDENCE AND REFUSING TO STRIKE IT 
OUT, WERE WELL TAKEN. 
This question called for a conveisation between 
the witness, Hermans, Dwight's broker, and Mr. 
Doremus, the secretary of the defendant, some 115 
time in rhe month of October, 1878. The transac- 
tion between Dwight, represented by Hermans on 
the one side, and the defendant on the other, it will 
be recollected, was fully closed and consummated by 
the delivery of a policy on the 28th of August. 
Evidence of this conversation, therefore, between 
Hermans and Mr. Doremus in October was clearly 
incompetent, irrelevant and immaterial. The 
statements of Mr. Doremus at that time were in no 
sense declarations made in the course of business 
of the defendant, in effecting the insurance which 
is the subject of controversy in this action. 
Mr. Hermans appears to have been there in Oc- 
tober on his own behalf, endeavoring to earn 
another brokerage. It doesnot appear that he was 
acting or pretending to act on anybody's behalf 
but his own, and what he said to Mr. Doremus or 
what Mr. Doremus said to him, could have no 
bearing upon any question at issue in the cause. 
XVI. 
The Court erred in overruling the objec- 
tion TAKEN BY THE DEFENDANT'S COUNSEL TO THE 
FOLLOWING QUESTION PUT TO THE WITNESS, HYDE, 
(fol. 1581) 
"Q. Will you be kind enough to state 
" WHETHER, IN THAT EXAMINATION, ANYTHING 
" PECULIAR OR OUT OF THE ORDINARY COURSE OF 
" THINGS WAS DISCOVERED ? I AM SPEAKING NOW 
" OF THE PART BELOW THE BREAST." 
This witness was the first medical witness called 
on the part of the plaintiffs to rebut the defendant's 116 
testimony. The question which is the subject of 
rhe exception now under consideration was ob- 
jected to on the ground that the witness should 
not be permitted to state the result of a compari- 
son made in his own mind, between the appear- 
ances presented by Dwight's organs at the au- 
topsy and the appearances presented by the organs 
of other dead bodies which had come under his ob- 
servation, but should indicate what he did see. In 
other words, the ground of objection was that the 
question did not call for facts, but called for the 
conclusion of the witness upon a state of facts not 
disclosed. The defendant's counsel insisted that 
the witness should be required to state what he 
observed, what the condition of the several organs 
was ; not whether the witness was of opinion that 
the conditions of these organs, which he did not 
state, was or was not out of the ordinary course of 
things. He should have been required to state the 
facts so that the opinion of other witnesses upon 
those facts could have been obtained. 
The same question was repeated in a somewhat 
different form at folio 1583, but still open to the 
same objection. It was objected to on the same 
ground. The Court overruled the objection, and 
the defendant's counsel excepted. It is submitted 
that this exception was well taken. 117 
XVII. 
It was error on the part of the Court 
BELOW TO SUSTAIN THE OBJECTION TAKEN TO THE 
FOLLOWING QUESTION PUT TO Dr. WOOD AT FOLIO 
1969, namely: 
" Q. Will you state the facts upon which 
" YOU BASE THIS ANSWER? " 
By reference to the record it will be observed 
that toward the close of the defendant's case, ex- 
pert witnesses were introduced, to whom hypotheti- 
cal questions, based upon the evidence as it 
then stood, were put touching the cause of 
death. The plaintiffs, by way of rebuttal, 
then introduced witnesses whose testimony 
tended to vary in some respects the evidence 
on that subject as it stood at the close of the de- 
fendant's case. Among other witnesses, the plain- 
tiffs had called Bessie McDonald, a half sister of 
Dwight, and had her testify to what Dwight's 
apparent condition was on the occasion of a visit 
made by her to him during his alleged illness. 
It became, therefore, necessary for the defendant, 
by way of surrebuttal, to recall the experts for the 
purpose of having them testify as to the effect upon 
their judgment previously given of the new testi- 
mony so introduced by the plaintiffs. New hypo- 
thetical questions, embracing the new facts 
introduced by the plaintiffs, were therefore put to 
the experts. After the general hypothetical ques- 
tion, based upon this new evidence, had been put 
to Dr. Wood, the question, which is the subject of 
the present exception, was proposed. The object 
was to have the witness state the precise-facts from 
which his conclusion was drawn, so that the Court 
and jury might be able to judge of what bearing, 
if any, the new facts elicited after the previous ex- 118 
amination of the witness had upon his judgment. 
The question put was not open to the objection 
taken by the plaintiffs on which the question was 
excluded. It did not tend to re-open the case. 
There had been no examination of the defendant's 
witnesses with reference to the effect which the new 
facts elicited from the plaintiffs' witnesses after 
the defendant had rested its case would have, if 
any, upon the conclusion of the experts as to the 
cause of death. The question put to the same wit- 
ness, at fol. 1975, which was objected to and ex- 
cluded on the same ground, was of the same 
character. The defendant duly excepted to the 
ruling of the Court upon each of these questions, 
and such exceptions were, for the reasons stated, 
well taken. 
XVIII. 
The Court below erred in excluding the 
Following question, put to Dr. Sherman at 
FOL. 2008, NAMELY : 
''Q. What was the result of those experi- 
"ments?" 
The object of the question was to show, by a 
witness who, from actual experience, had knowl- 
edge on the subject, as to whether or not the heavy 
indentations which were observed on both sides of 
the neck of Walton Dwight at the time of the 
autopsy by all the fifteen physicians present who 
took part in that proceeding, could have been pro- 
duced in the manner intimated by the plaintiffs' 119 
witnesses, all of whom bad admitted that they had 
no knowledge or experience on the subject. 
The Court will recollect, that after the close of 
the defendant's case, the plaintiffs had started the 
theory that these indentations were the result of 
the raising of the head of Dwight when placed in 
the ice box, and lowering it to the level of the 
body when it was taken from the ice box at the 
time of the autopsy. The inherent absurdity of 
this theory has already been pointed out. Any 
indentation produced in the way suggested would, 
of course, be more visible while the head was bent 
forward, and would be most discernible imme- 
diately in front. Lowering the head would neces- 
sarily have the effect of again straightening the 
skin and underlying tissues, and removing any 
indentation or groove produced by raising the 
head. In the case of Dwight, while there was no 
indentation immediately in front, all the witnesses 
observed the heavy indentation noted in the record 
of the autopsy on both sides of the neck, running- 
up wards and backwards at an angle of about 45 
degrees. 
The question now under consideration called for 
the absolute knowledge of a witness derived from 
actual experiment and experience of the effect pro- 
duced upon dead bodies by being subjected to pre- 
cisely the treatment to which that of Dwight had 
been subjected. The witness was not asked to state 
in detail the several cases with which he was 
familiar, but the general effect or result derived 
from his personal experience and knowledge of such 
treatment. In this view the question was eminently 
both competent and proper, and the defendant's 
exception to its exclusion was well taken. 120 
XIX. 
It was error on the part of the Court be- 
low TO EXCLUDE the following question pro- 
posed BY THE DEFENDANT AT FOL. 2030, TO BE PUT 
to Dr. Bridges, namely : 
■'Q. Does the furrow produced in the neck 
" AFTER SUICIDAL HANGING ACQUIRE ITS DARK 
" BROWN COLOR IMMEDIATELY OR AT SOME PERIOD 
" OF TIME AFTERWARD ?" 
The objection taken by the plaintiffs to this ques- 
tion, on which it was excluded by the Court, was 
that it would be re-opening the case. 
In considering this question the Court will re- 
member that down to the time when the defendant 
first rested its case, there was no controversy or 
question either about the existence of the heavy 
indentations on both sides of the *neck of Dwight 
described in the notes of the autopsy which were 
subscribed by the fifteen physicians present, or as 
to the character of those indentations. 
Nothing down to that time had taken place to 
suggest that any question would be attempted to 
to be raised on that subject. The plaintiffs' theory 
on which they sought to account for these indenta- 
tions was only suggested after the defendant had 
rested. 
The testimony, therefore, sought to be elicited 
by the question now under consideration was in all 
respects proper and competent by way of rebuttal, 
and the objection upon which it was excluded was 
unfounded, and the defendant's exception to the 
exclusion of this testimony was well taken. 121 
XX. 
The defendant was entitled to the instruc- 
tion ASKED FOR IN ITS FOURTH REQUEST TO CHARGE 
(FOL. 2210), AS FOLLOWS : 
"Fourth.-If the principal business of 
" Dwight for ten years last preceding Au- 
"gust22d, 1878, was not that of real estate 
" AND GRAIN DEALER, PLAINTIFFS CANNOT RE- 
" COVER." 
The Court refused so to charge, and to such 
REFUSAL THE DEFENDANT DULY EXCEPTED (EXCEP- 
TION, FOL. 2222). 
As before shown, the Court had already, in con- 
formity with the settled law of this State, decided 
that the policy and application together consti- 
tuted the contract between Dwight and the defend- 
ant ; that by that contract the validity of the pol- 
icy was made to depend upon the truth of state- 
ments and representations contained in the appli- 
cation, that the materiality of each and every 
answer made by Dwight to the questions contained 
in the application was agreed to by the parties, 
and that the sole question as to each of said an- 
swers was as to whether or not the answer was 
true. 
The second question in the application (Exhibit 
21, fol. 2364) called for the business of the appli- 
cant, and a note upon the face of the application 
warned the applicant that this business must be 
carefully specified. 
Subdivision C interrogated him as to the occupa- 
tion that he had been engaged in during the last 
ten years. The question called for a regular busi- 
ness or occupation, not for a special speculation or 
operation. - 122 
The learned Judge, in his charge, had dwelt at 
considerable length upon the history of the im- 
provements on Mrs. Dwight's property at Dwight- 
ville, in connection with the question as to Dwight's 
occupation (fols. 2063, 2071), and upon the owner- 
ship by Dwight, at some time, of wild lands in 
Wisconsin and elsewhere, the only evidence on 
which subject was found in the schedules in bank- 
ruptcy, which had been introduced for the purpose 
of showing by the record the history of Dwight's 
bankruptcy proceedings, and not as evidence of the 
facts contained in the papers, and which furnished 
no competent evidence on that subject. While 
telling the jury, as he did at fol. 2073, that " the 
" term 'occupation' has a definite meaning, and it 
" means the general business in which a man has 
" been engaged ; it means his calling, his trade, his 
" avocation," he declined to give the instruction 
asked for in this request. It is respectfully sub- 
mitted that the remarks of the Court to the jury 
on this subject, in connection with his refusal to 
give the instruction asked for, had a tendency to 
mislead the jury, to divert their minds from the 
real question, and to lead them to find against the 
defendant upon a question as to which there was 
really no controversy upon the evidence. Dwight 
himself might reasonably be supposed to have 
known what his business was when he deliberately 
testified under oath, on the 18th of February, 1878, 
that from I860 to the time when he opened the 
Dwight House, his sole business had been his "law- 
" suits, general living, and the like of that," and 
that he had no business of his own, and that, from 
May, 1874, to March, 1877, the Dwight House was 
the only business he had as a regular business. 
The defendant duly excepted not only to the re- 
fusal of the Court to charge in accordance with this 
request, but to the charge actually delivered, so far 
as the same was in conflict therewith. The Jesuit 
of the instruction given in connection with the re- 123 
fusal to instruct as requested, was a finding by the 
jury in conflict with the evidence. 
XXI. 
The defendant also excepted specifically 
TO CERTAIN PORTIONS OF THE CHARGE OF THE 
Court on the subject of Dwight's occupation, 
TO WIT, TO SO MUCH OF THE CHARGE AS INSTRUCTED 
THE JURY THAT THERE IS EVIDENCE THAT SOME 
time in 1877 or 1878, Dwight engaged in opera- 
tions in grain in Chicago (Charge, fol. 2066 ; 
Exception, 2197). 
Also, to so much of the charge as instructed 
THE JURY THAT THE EVIDENCE SHOWS THAT THE 
ACCOUNT OF THE MONEY EXPENDED FOR THESE 
VARIOUS IMPROVEMENTS WAS KEPT IN HIS NAME; 
THAT THE LAND WAS ASSESSED TO HIM, AND THAT 
THE RENTS AMOUNTED TO A VERY CONSIDERABLE 
sum (Charge, fol. 2072 ; Exception, fol. 2197). 
Also, to so much of the charge as instructed 
THE JURY THAT THE EVIDENCE FURTHER DISCLOSED 
THAT DURING THIS PERIOD OF TIME HE OWNED A 
CONSIDERABLE QUANTITY OF LAND IN WISCONSIN 
(Charge, fol. 2072; Exception, fol. 2198). 
There was no evidence competent to submit to the 
jury as to Dwight's ever having been engaged in 
grain operations in Chicago. The only suggestion 
on that subject is found in the witness, Phillips', 
statement of a conversation had by him with 124 
Dwight with reference to the granting of a policy 
on Dwight's life by the Washington Life Insurance 
Company, in which Phillips details an amusing 
story told by Dwight, which will be found at fol. 
542. 
As to the land business, the only reference to 
that subject in the record outside of McDonald's 
testimony as to the improvement of Dwigh tville 
after the settlement made on Mrs. Dwight in 
1868, is to be found in the bankruptcy schedules 
which were introduced in evidence in the manner 
hereinbefore stated as evidence of the proceedings 
taken, but not as evidence of the matters contained 
in the papers. 
But no evidence of any dealing in real estate 
within ten years prior to 22d August, 1878, can be 
found in those schedules, competent or incompe- 
tent. 
XXII. 
The defendant was entitled to the instruc- 
tion ASKED FOR IN ITS FIFTH REQUEST TO CHARGE, 
WHICH WAS AS FOLLOWS : 
" Fifth. If Walton Dwight, while he kept 
" a hotel in Binghamton, was connected with 
"the sale of liquor, the plaintiffs cannot 
"recover" (fol. 2211). 
The Court refused so to charge, to which 
refusal the defendant duly excepted" (Ex- 
ception, fol. 2222j. 
The evidence on this subject upon which this 125 
request was based, has been already stated at large 
under the first point. The question in the applica- 
tion (Exhibit 21, fol. 2364) on which this request 
was founded, is subdivision D of question 2, and is 
as follows : 
" Is he (Dwight) now, or has he been engaged in 
" or connected with the manufacture or sale of any 
" beer, wine or other intoxicating liquors ?" The 
answer was, "No." 
The Court had decided that by the contract of 
these parties the validity of the policy was made 
to depend upon the truth of the statements and 
representations contained in the application, and 
that the materiality of each and every answer 
made by Dwight was agreed to by the parties. 
The evidence showed without contradiction that 
Dwight for three years-from 1874 to 1877-had 
kept a hotel, in connection with which he had a 
wine room, from which he sold day by day wines 
and liquors by the package, regularly applying for 
licenses to conduct this business, and paying the 
United States tax on the sales so made. 
The Court had refused to non-suit on the proved 
falsity of this answer, and insisted upon submitting 
to the jury a question which, under the guise of a 
question of fact, presented nothing but a question 
of law, and called for the construction by a jury of 
the terms of a contract which it was the duty of 
the Court to construe. If, as the Court had de- 
cided, and as we have shown by the decisions of 
the Court of Appeals, the application and policy 
together constituted the contract between the par- 
ties, and by the terms of that contract the validity 
of the policy was made to depend upon the truth of 
the statements and representations contained in the 
application, and the materiality of each and every 
answer made by Dwight to those questions was 
agreed to by the parties, the counsel for the appel- 
lant is unable to imagine any possible theory upon 
which the refusal to give the instruction asked for 126 
by the defendant and now under consideration, 
can be justified. 
XXIII. 
The defendant was entitled to the instruc- 
tion ASKED FOR AT FOL. 2170, WHICH WAS AS 
FOLLOWS : 
That the "question, .'has he been engaged 
" IN, OR CONNECTED WITH THE MANUFACTURE OR 
" SALE OF LIQUOR ? ' IS A QUESTION THAT MAY BE 
" TRUTHFULLY ANSWERED, ' YES,' IF HE HAD BEEN 
" CONNECTED WITH THE SALE OF LIQUOR." AND 
THE REFUSAL TO GIVE THIS INSTRUCTION, TO 
WHICH THE DEFENDANT DULY EXCEPTED (FOL. 
2171), WAS ERROR. 
It will be observed by referring to the record 
that in answer to this request the Court declined to 
■charge on this subject differently from what he had 
already charged. The charge on this subject will 
be found commencing at fol. 2075. At fol. 2077 
the learned Judge tells the jury that the " plain- 
" tiffs insist that this question is a compound one, 
" and is incapable of an affirmative or negative 
" answer, or of a truthful, affirmative or negative 
■" answer. They say that if he had answered this 
" question, ' Yes,' it would have been just as false 
" as though he had answered it 'No,' because they 
" say if he answered it ' Yes,' he would have said 
" he had been connected with the manufacture of 
liquors, which is in no respect true." 
After giving the Court's understanding of the 127 
defendant's views upon this question,- the Court 
proceeds to submit the question to the jury as to 
whether or not the answer that was given, "No," 
is a fair and true answer within the intent and 
meaning of the contract; and at fol. 2080 the Court 
continues: 
" Gentlemen, you have heard the evidence in respect to 
" this question-I have gone over with it, substantially-not 
in entire detail, and it is for you to say whether, taking the 
question as put, and the purpose for which it was put, it 
was fairly and truly answered." 
The defendant duly excepted to each and every 
portion of the charge actually delivered, so far as 
the same was in conflict with this request (fol. 
2222). 
Also to each and every modification of the pro- 
position embraced in said request (fol. 2222). 
Now, was not the defendant entitled to the in- 
struction asked for ? Was not the charge actually 
delivered calculated to mislead ? The Court had 
stated the contention with reference to the charac- 
ter of this question and the alleged impossibility to 
answer it truthfully, "Yes," or "No." TheCourt 
had told the jury that while there was no question 
but what Dwight had, during three years, sold 
liquor by the package from the wine room kept at 
the Dwight House, day by day, and that a man 
could not sell liquor without being connected with 
the sale of liquor, there was no evidence that 
Dwight had been engaged in or connected with the 
manufacture of liquor. 
In this connection the defendant asked the Court 
to instruct the jury in conformity with the request 
now under consideration. Having thrown a mist 
about the subject by dwelling upon the plaintiffs' 
attempt to avoid the effect of this warranty, the 
Court was asked to instruct the jury as to what the 
question really meant. It is impossible to imagine 
a ground upon which this refusal can be justified. 128 
That the jury were misled by the suggestions of 
the counsel for the plaintiffs, repeated by the 
Court, and thus induced to find a verdict contrary 
to the whole evidence on the subject, cannot be 
doubted. 
See cases cited under Point I. 
XXIV, 
The defendant also separately excepted to 
THAT PORTION OF THE CHARGE RELATING TO THE 
SALE OF LIQUOR WHICH INSTRUCTED THE JURY THAT 
IT WAS FOR THEM " TO SAY WHETHER, TAKING THE 
" QUESTION AS PUT, AND THE PURPOSE FOR WHICH 
" IT WAS PUT, IT WAS FAIRLY AND TRULY ANSWER- 
" ed (fol. 2080). 
Exception, fol. 2198. 
It is respectfully submitted that this exception 
was well taken ; that there was no question as to 
the purpose for which the question in the applica- 
tion was put to Dwight, which it was competent to 
submit to the jury. 129 
XXV. 
The defendant was entitled to the several 
INSTRUCTIONS ON THE SUBJECT OF SPITTING OF 
BLOOD EMBRACED IN THE 6TH, 7TH, 8TH, 9TH AND 
10th requests (fols. 2211 to 2214), and the re- 
fusal of the Court to give the instruction 
ASKED FOR IN SAID REQUESTS RESPECTIVELY, TO 
WHICH REFUSAL IN EACH CASE THE DEFENDANT 
SEPARATELY EXCEPTED, WAS ERROR. 
The charge relating to this general topic will be 
found commencing at fol. 2081. Can it be said 
that spitting of blood, accompanied by a cough, 
and resulting from hemorrhage of the lungs or 
other organs of respiration, does not amount to a 
disease ? That a man who has had repeated attacks 
of this description, during which he has raised 
blood in various quantities and mucus streaked 
with blood, which he knows and has declared pro- 
ceeded from and were the result of hemorrhages of 
the lungs, can conceal these facts, and, in answer 
to a question as to whether he has ever had, among 
other diseases, spitting of blood, the truth of which 
answer he warrants, say "No," without qualifica- 
tion $ Was not the defendant entitled tq have the 
jury take into consideration the testimony of the 
witnesses to the fact of spitting of blood, the de- 
clarations of Dwight that he had had hemorrhages 
of the lungs, the condition of his lungs, as disclosed 
on the post mortem examination, and the medical 
testimony as to the origin of the conditions there 
found ? If the defendant was entitled to have the 
jury consider these matters then the Court erred in 
declining to instruct as requested in the eighth re- 
quest. 
Was it not the duty of Dwight, in view of the 
fact that his mother had died of consumption, as 
disclosed by the application, and that for that 130 
reason any symptom showing a predisposition on 
his own part to such disease would form an import- 
ant factor in the decision as to whether or not a 
company should grant a policy upon his own life, 
and in view of the fact that he had had repeated 
attacks of spitting of blood, which he had under- 
stood and declared to be the result of hemorrhages 
of the lungs, to state the fact of his having had such 
spitting of blood in answer to the question put to 
him upon the application, even though he were not 
certain as to the origin of the blood which he sup- 
posed to proceed from his lungs ? And did not the 
answer in the negative, without qualification, in- 
volve not only a breach of warranty, but a positive 
fraud ? If this be so, it was error to refuse the in- 
struction asked for in the defendant's tenth request. 
In a like case in the Court of Exchequer it was 
held, that 
" The expression in a life policy that the assured has not 
" had any spitting of blood does not mean that he has in 
" fact never spat blood, but that he has not spat blood 
" either from unascertained causes or from a disease tending 
" to shorten life." 
In that case (G-each vs. Ingall, 9 Jurist, 691), the 
Lord Chief Justice, in summing up, in the course 
of his charge, told the jury : 
" That it was for them to say whether, at the time of 
" making the statement set out in the declaration, the 
" assured had had such a spitting of blood and such 
" affection of the lungs and inflammatory cough and such 
" a disorder as would have a tendency to shorten life," 
<£ &c. 
The jury having found all the issues in favor of 
the plaintiffs, a motion was made for a new trial 
upon the ground, among others, that the Judge 
misdirected the jury in telling them to consider 
whether the spitting of blood was of such a nature 
as to endanger the life of the assured. If he had 131 
spat blood, from any cause, the fact ought to have 
been mentioned by him in order that the company 
might be put upon inquiry. 
A rule to show cause was granted, and after 
hearing was made absolute. 
In deciding the motion for a new trial on this 
rule, Pollock, C. B., said : 
" On the second point, however, the Judge misdirected 
■" the jury, and, as there must be a new trial, the less we 
" say about the evidence the better. By the expression 
'spitting of blood,' is no doubt meant the disorder so 
" called, whether proceeding from the lungs, stomach or 
■" any other part of the body ; still, however, one single act 
" of spitting of blood would be sufficient to put on in- 
quiry as to the cause of it?' 
Alderson, B., used the following language on this 
subject: 
" By spitting of blood must be understood a spitting of 
" blood as a symptom of disease tending to shorten life. 
" The mere fact is nothing-a man cannot have a tooth 
" pulled out without spitting blood. But on the other 
hand, if a person has a habitual spitting of blood, although 
■" he cannot fix the particular part of his frame whence it 
" proceeds, still, as this shows a weakness of some organ 
" which contains blood, he ought to communicate the fact 
" to the insurance company, for no one can doubt that it 
" would most materially assist them in deciding whether they 
" could execute the policy, and good faith ought to be kept 
" with them. So if he had only spitting of blood once, but 
" that once was the result of the disease called spitting of 
" blood, he ought to state it, and his not doing so would 
" probably avoid the policy." 
Rolfe, B. said : 
" I have no doubt that if a man had spitting of Blood 
" from his lungs, no matter in how small a quantity, or even 
" had spitting of blood from an ulcerated sore throat, he 
" would be bound to state it. The attack should be known 
" to the office in order that their medical man might make 
" inquiry into its cause." 132 
On these views of the law, the rule was made 
absolute, and a new trial ordered. 
It was error, therefore, to refuse the instruction 
asked for in the defendant's tenth request. 
XXVI. 
The Court erred in the following instruc- 
tions GIVEN TO THE JURY AS TO THE DEFENDANT'S 
RIGHT TO A VERDICT ON THE GROUND OF FRAUD,, 
viz. : 
" That the defendant is not entitled to 
" A VERDICT ON THIS GROUND UNLESS YOU FIND THAT 
" THE FRAUD WAS CONSUMMATED BY THE WILLING 
"■death of Walton Dwight by self murder-by 
"suicide " (fol. 2161). 
The Court also erred in refusing to charge 
ON THIS SUBJECT AS REQUESTED BY THE DEFENDANT 
IN ITS ELEVENTH REQUEST (REQUEST, FOL. 2214). 
The defendant duly excepted to the refusal 
of the Court to charge as requested, and to 
each and every portion of the charge ac- 
tually DELIVERED SO FAR AS THE SAME WAS IN 
CONFLICT THEREWITH, AND PARTICULARLY TO THE 
PORTION OF THE CHARGE EMBRACED IN THIS POINT 
(fols. 2200-2222). 
By reference to the answer it will be seen that the 
issue of fraud was tendered in three aspects: 
First.-In the second defence set up in the an- 
swer at fol. 45, the defendant alleges that the an- 
swers and statements in the application which are 133 
set out at length in that defence were each and 
every of them material to the risk which the de- 
fendant was asked to assume, and upon the question 
as to whether or not the policy should be granted 
by the defendant, and that each and every of the 
said answers and statements contained in said ap- 
plication and specified in said defence, was false 
and untrue. 
At fol. 46, the defendant alleges that the facts as 
to Dwight's occupation were fraudulently sup- 
pressed by him ; that instead of his business being 
that of a real estate and grain dealer, as stated by 
him, his business had been that of a hotel keeper, 
in the course of which he had been engaged in and 
connected with the sale of intoxicating liquors. And 
after pointing out the respects in which the answers 
made in the application were claimed to be false 
and untrue, the defendant (fol. 48) says, that by 
reason of said untrue and fraudulent answers to 
the said questions put to the said Dwight upon his 
application for the said policy, and his said false 
statements and suppressions and concealments of 
material facts, and breaches of warranty, the said 
policy number 69,096 was rendered null and void, 
and of no effect, and was forfeited, and this de- 
fendant was and is released and discharged from 
any and all liability thereunder. 
Second.-The fourth defence (fol. 49) charges 
that Dwight procured the policy in suit with the 
preconceived intent to cheat and defraud the de- 
fendant by thereafter taking his own life, and 
thus defrauding the defendant of the amount of the 
policy, and that he thereafter did take or procure 
the taking of his own life. 
Third.-The fifth defence (fol. 51) alleges the 
formation of a design by Dwight and a conspiracy 
with one or more persons to defendant unknown to 
commit a fraud upon a number of life insurance 134 
companies, including the defendant, and sets out 
at length a fraudulent scheme in pursuance and 
part execution of which it is alleged that policies 
to the amount of two hundred and fifty thousand 
dollars, including the policy in suit, were procured 
by him, and after alleging the various steps in 
the execution of this fraudulent scheme and design, 
charges that Dwight did, in further execution 
thereof, wilfully and feloniously take his own life, 
and alleges, at fol. 56, that by reason of the prem- 
ises the policy never had any validity, and the 
defendant is not and never was liable thereon for 
the payment of any sum whatever. 
Now, as to the first aspect in which this question 
is presented : if the jury, but for the instruction of 
the Court, could have legitimately drawn from the 
evidence the inference or conclusion that the state- 
ments made by Dwight, in answer to the questions 
put to him in the application, were fraudulently 
made, or that he fraudulently suppressed facts with 
respect to his business of condition of health, as to 
which good faith required the defendant to be ad- 
vised, then the instruction that the defendant was 
not entitled to a verdict on the ground of fraud, 
unless the jury found that the fraud was consum- 
mated by the willing death of Walton Dwight by 
self-murder-by suicide, was clearly error. 
The question as to false answers made with a 
fraudulent intent and the fraudulent concealment 
and the suppression of other facts material to the 
risk, it will be observed, was an entirely separate 
and distinct question from that as to breaches of 
warranty, and constituted a ground of defence 
separate and distinct from the ground set forth in 
the fourth and fifth defences. If the jury were en- 
titled, giving to the proofs the construction most 
favorable to the defendant in that regard, to draw 
therefrom the inference that Dwight made any 
fraudulent mis-statement, or was guilty of any 
fraudulent concealment of facts affecting the risk 135 
in his application for the policy, then the policy 
would be void on that ground, and the instruction 
complained of was clearly erroneous. 
But it is submitted that the instruction com- 
plained of, and the refusal to give the instruc- 
tion asked with respect to this question of fraud, 
was also contrary to law, so far as it related to the 
other defences on the ground of alleged fraud. 
In considering the defendant's exceptions 
in this aspect, it must be assumed that the 
jury would have drawn from each and every item 
of evidence upon the subject of fraud the infer- 
ence most favorable to the defendant. Beyond 
controversy there was evidence sufficient to sustain 
a finding by the jury, that Dwight had, about the 
date of the filing of the briefs, on his application 
for a discharge in bankruptcy, conceived and con- 
cocted a fraudulent scheme and design, for the 
purpose of making provision for his family by ob- 
taining the largest amount of insurance possible on 
his life, by paying the smallest amount of money 
down, and that, at or about this time, he proceeded 
to put such scheme into execution; that at the time 
he made these applications, his financial condition 
was such as to preclude the idea of his expecting 
to pay more than the first premium ; that he was 
borrowing money to pay his board ; that the money 
to pay his first quarter's premium on the policies 
actually obtained was procured partly by borrow- 
ing, and partly by discounting a note with the en- 
dorsement of two of his friends ; that some of the 
policies applied for, in pursuance of this scheme, 
were gotten into his possession-by fraudulently con- 
spiring with the agents of the companies to give false 
information to their principals; that after having, in 
pursuance and execution of this fraudulent scheme 
and design,gotten into his possession all the policies 
possible, including the policy in suit, he pursued a 
course of life, swimming streams, "drinking sur- 
face water of brooks and sometimes of swamps, 136 
and oftentimes it was none of the best that this 
course was pursued for the purpose of laying 
the foundation for saying that he was unwell in 
order that it might be claimed that the death which 
he premeditated was a natural death; that having 
made a will, in which he admits that his estate is 
made up mostly of life insurance, and that he has 
lived to that age and been subject to such 
experiences that he has no further ambition for 
himself beyond leaving his family comfortable and 
with sufficient means to enable them to live as they 
were in the habit of theretofore, he went to Bing- 
hamton and pretended to be sick ; that the only 
symptom indicating any disease which was discern- 
able by a physician was an apparent feebleness of 
circulation, which was abundantly accounted for 
by the drugs which he was admittedly taking ; that 
he died suddenly from causes which no one has 
ventured to suggest except the defendant's wit- 
nesses, who unanimously agreed that he could 
not have died from any natural cause. 
Evidence was presented to the jury tending 
to establish each and every of these facts, and from 
them the jury were entitled to draw the inference 
that the policy in suit was obtained by Dwight 
with the preconceived design and intent to defraud 
the defendant, and in part execution of the fraud- 
ulent scheme alleged in the answer, and that it was 
not at the time he obtained the policy and never 
was his intention in good faith to pay premiums 
as stipulated by the contract, and that that fraud- 
ulent design and intention continued down to the 
moment of his death. 
The question upon this condition of proofs is pre- 
sented, as to whether or not, under the law of this 
State, a man may deliberately form and put into 
execution a scheme to defraud, such as has been 
proved in this case, and bring this fraudulent 
scheme to a successful issue by dying three days 
before the second premium becomes due* from 137 
causes which his own physicians are unable to ex- 
plain, and that although the jury may be of opin- 
ion that each and every step in the programme of 
fraud down to the actual death of the party com- 
mitting it has been fully established by the evi- 
dence, yet because a question as to the actual cause 
of death remains upon the minds of the jury no re- 
dress is left to the parties who have been the victims 
of this fraud ? Does the law of the State of New York 
sanction such a doctrine? To test its soundness, 
we may assume that Dwight had proceeded so far 
that the cord was adjusted about his neck, that it 
was suspended from the projecting head-board of 
his bed, that he was leaning forward with sufficient 
pressure to exclude the air from his lungs with still 
the determination to take his own life, and thus 
secure the realization of his scheme of fraud; but 
while in this condition and in this state of mind, 
by a stroke of lightning, by an assassin's bullet or 
by other means which it would have been impossible 
for him to have foreseen, he was instantly killed. 
Under such circumstances he would not have died 
by self murder-by suicide. Would the law sanc- 
tion a recovery from the defendant on a policy so 
obtained upon such a state of facts? If it would 
not, then the instruction complained of cannot be 
sustained. Could that lightning stroke or assas- 
sin's bullet deprive the defendant of a right to have 
the policy declared void and cancelled on the 
ground that it had been fraudulently obtained ? If 
it could not, then the same facts which would have 
been available in an action brought by the defend- 
ant for the cancellation of the policy, are available 
as a defence to the action brought upon the policy. 
Courts of law have concurrent jurisdiction with 
Courts of equity in cases of fraud, and-will not 
permit a plaintiff to recover in any case where, upon 
the same evidence of actual or constructive fraud, a 
Court of equity would decree against it. 
Fleming vs. Slocum, 18 Johns. R., 403. 
Tomlin adsm. Den., 19 N. J. L., 76. 138 
XXVII. 
The defendant was entitled to the in- 
struction ASKED FOR IN THE SIXTEENTH AND 
SEVENTEENTH REQUESTS SUBMITTED, AND THE RE- 
FUSAL of the Court to instruct as requested 
-TO which refusal the defendant excepted 
SEPARATELY IN EACH CASE-WAS ERROR. 
Requests, fol. 2218. 
Exceptions, fol. 2222. 
By the requests referred to in this point, the Court 
was asked to instruct the jury, that if at the time of 
making the application for the policy in suit 
Dwight was not insured in the Connecticut Mutual 
Life Insurance Company, or was not insured in the 
Mutual Life Insurance Company of New York, the 
plaintiffs could not recover. 
The sixth question which Dwight was required 
to and did answer, in the application to the de- 
fendant, was as follows : 
"6. A. Whether the party to be assured is now, or 
" has been insured in this company? If so, state the 
" number of the policy and the amount. 
" B. Whether in other companies ? in which, and 
" for what amount in each ? State exactly on what 
" kind of policy." 
The answer made by Dwight to subdivision B, of 
this question, was as follows : 
" B. Yes. N. Y. Mutual, 15 year endowment, 10,000 ; 
" Conn. Mutual, Ordinary Life, 15,000 * * 
* * 
Exhibit 21, fol. 2364. 
The evidence on the subject of this alleged insur- 
ance in these two companies will be found collated 139 
under Point I. Upon that evidence it was insist- 
ed at the trial, that the defendant was entitled to a 
non-suit, and the refusal to non-suit on that ground 
is one of the alleged errors presented to this Court 
on the present appeals. It was argued below, and 
has been argued here with entire confidence, that 
the evidence showed, without contradiction, that 
Dwight was not insured in either of the companies 
named, in any amount, or on any terms whatever. 
Should, however, the Court be able to find in the 
evidence any possible question as to whether or not 
he was so insured, then the defendant was clearly 
entitled to the instruction asked in the requests 
presented under this point. The truth of the an- 
swers was warranted by the applicant. If he was 
not insured in the two companies named, or in 
either of them, at the time his application was 
presented to the defendant, then there was a breach 
of warranty, which, by the agreement between the 
parties, avoided the policy. Its materiality had 
been agreed to by the parties, and the Court must 
give effect to their agreement. 
No ground was stated by the Court below for re- 
fusing the non-suit on this alleged breach of war- 
ranty, but the Court refused to submit any ques- 
tion on this subject to the jury. If the learned judge 
disposed of this question upon any notion that the 
companies mentioned were or either of them was to 
be regarded as having waived the condition that 
their policies should not take effect until payment 
of the premium, while the defendant insists that 
there was no evidence from which an inference 
could legally be drawn by either the Court or the 
jury, still if the Court were of a different opinion 
on that point the question of waiver would have 
been one of fact for the jury, which the.Cburt 
could not pass upon without error. 
Underwood Farmers' Joint Stock 
Ins. Co., 57 N. Y., 500. 140 
XXVIII 
The defendant was entitled to the in- 
structions ASKED FOR IN ITS EIGHTEENTH, NINE- 
TEENTH AND TWENTIETH REQUESTS, AND THE RE- 
FUSAL of the Court to charge in accordance 
WITH THOSE REQUESTS-TO WHICH REFUSAL THE 
DEFENDANT EXCEPTED SEPARATELY IN EACH CASE 
-WAS ERROR. 
Requests, fols. 2219-2220. 
Exceptions, fol. 2222. 
These.requests called for an instruction to the 
effect that if Dwight, at the time of the application 
for the policy in suit, had made application to either 
the Phoenix Mutual Life Insurance Company, the 
Connecticut Mutual Life Insurance Company or 
the Mutual Life Insurance Company of New York, 
which had not led to an insurance, the plaintiffs 
could not recover. They were based on Dwight's 
answer in the negative without qualification to sub- 
division C of question 6 in the application (Exhibit 
21, fol. 2364). This question called upon the ap- 
plicant to state: 
" C. Whether an assurance has been applied for with 
" this or any other -company, without having led to an 
" assurance ? If so, with which companies ? and for 
" what reason did the application not lead to an insur- 
" ance ?" 
The evidence with respect to the three applica- 
tions embraced in these requests is collated under 
the preceding Point I, and was relied on below and 
is relied on here as entitling the defendant to a non- 
suit. If, as we insist, the evidence establishes 
without contradiction the fact that Dwight had 
made an application to either of the three companies 
named, for an insurance upon his life which had not 141 
led toan assurance, then the answer, "No," was 
untrue, and amounted to a breach of warranty 
which avoided the policy. If any question as' to 
the fact can be found in the evidence, then the de- 
fendant was clearly entitled to the instructions 
asked for in these requests. The Court will remem- 
ber that the application to the defendant was for- 
warded on August 22, 1878. The application to 
the Phoenix Mutual Life Insurance Company had 
been forwarded through the agent of that company 
at Binghamton on August 16, 1878 (Exhibit 114, 
fol. 2682). At the time of the application to the 
defendant, the application which had already been 
presented to the Phoenix was pending and had not 
led to an assurance. In point of fact, it never did 
lead to an assurance, but was formally rejected on 
the 24th day of August, 1878 (Cornwall, fol. 1944). 
On August 28th, Dwight, through Hermans-the 
application to the defendant still being pending- 
requested by letter an increase of the amount of 
insurance asked for in the original application, 
from $10,000 to $15,000, or $20,000 (Exhibit 111, 
fol. 2677). 
Four days prior to this date, the application to 
the Phoenix Company had been rejected. Assum- 
ing, then, what is expressly denied, that the lan- 
guage used in the application would bear the con- 
struction contended for by the plaintiffs' counsel, 
that it did not call for all applications which had 
not led to an assurance, but only to a specification 
of actual rejections,in the case of the Phoenix Com- 
pany, there had been an actual rejection within 
the knowledge of Dwight, whose agent was repre- 
senting the rejecting company. The answer, there- 
fore, was untrue in any view that can be taken of 
the question, on the 28th of August, when 'the de- 
fendant was asked to act upon the application. 
The failure to call attention to that rejection at this 
time involved not only a breach of warranty, but 
an actual fraud which would avoid the contract. 142 
See remarks of Lord Justice Turner in Traill vs. 
Baring, cited under Point I. 
XXIX. 
The defendant's exception to so much of 
THE judge's CHARGE REFERRING TO THE TESTI- 
MONY OF EXPERTS AS INSTRUCTS THE JURY AS 
FOLLOWS : 
"YOU HAVE THE RIGHT TO REGARD IT, AND YOU 
SHOULD REGARD IT WITH GREAT SUSPICION," WAS 
WELL TAKEN. 
Charge, fol. 2154. 
Exception, fol. 2199. 
The Court will bear in mind that one of the 
prominent issues was the cause of death of Walton 
Dwight ; whether he died a natural death, or 
whether his death was suicidal. Upon this ques- 
tion evidence had been introduced, showing the 
course and history of an alleged illness of Dwight, 
commencing about the middle of October and ter- 
minating on the 15th November, 1878. The history 
of his last day had been detailed in evidence by 
Mrs. Owen, including events of the night on which 
lie died, excepting only the period from about half 
past 9 toll o'clock, when Dwight was left alone 
with the witness, Hull. Evidence also had been 
given as to- the appearance and condition of 
Dwight's body and the several internal organs 
thereof, at the autopsy which was held about fifty- 
eight hours after death. Hypothetical questions 
based upon this evidence were then put to six ex- 143 
perts of high standing in their profession, as many 
being called as the ruling of the Court permitted, 
and these experts unanimously agreed in the con- 
clusions, that it was impossible that Dwight could 
have died of any natural cause, and that it was also 
impossible that he could have died of any cause 
other than asphyxia resulting from mechanical 
strangulation. No witness on the other side was cal- 
led to controvert the testimony of the defendant's ex- 
perts on this subject, nor was any medical witness 
interrogated by the plaintiffs on the subject of the 
cause of death, although two of his attending physi- 
cians were examined by the plaintiffs; and the Court 
decided that although under the statute the de- 
fendant could not interrogate them as to any facts 
which came to their knowledge in the course of 
their professional attendance upon the patient, yet 
the plaintiffs, standing in the place of Dwight, had 
the right to interrogate them on that subject. The 
plaintiffs, on their part, relied on this question on 
the testimony of Charles A. Hull-as to whose 
credibility the attention of the Court will be called 
hereafter-and the testimony of the hotel porter, 
Lee, which has been referred to heretofore. The 
defendant's medical experts stood entirely uncon- 
tradicted and. unimpeached. In this condition of 
the evidence, the Court instructed the jury in the 
language to which exception was taken, and which 
forms the subject of the present point. After com- 
menting upon expert testimony, generally, the 
learned Judge (at folio 2153) addressed the jury as 
follows : 
" But, gentlemen, there were two experts, men distin- 
" guished in their profession, whose reputation, I assume, is 
" high, who came and testified that during the trial of this 
" cause they had sat here with counsel, suggested subjects 
" for examination, questions to be put to the witnesses by 
"the defendant's counsel. They testified that they.had 
" been consulted in advance of this trial, that they had 
" framed questions, consulted with the other experts, and 144 
" had acted in this capacity in this case. Gentlemen, it is 
" not the province of this Court to erect a standard by which 
" to govern or gauge the conduct of members of another 
" profession, but I do say, that when a witness testifies to 
" his mere opinion formed in this way, and under such con- 
" ditions, you have the right to regard it, and you should re- 
" gard it, with great suspicion." 
Having thus, in the most impressive manner, 
conveyed to the jury the idea that the experts 
called by the defendant had, in the opinion of the 
Court, so conducted themselves as to destroy their 
credibility, the Court proceeded : 
" But, gentlemen, what I say in this respect is not to con- 
" trol you. You are to judge of the credibility of witnesses 
" and not the Court, and you have a right, and it is your 
" duty, to disregard what I have said upon this point, if it 
" does not accord with your own judgment with respect to 
" these two witnesses. I ought to caution you that the 
" strictures which I have made upon these two witnesses 
" must not affect the defendant's case in any other respect. 
" It goes simply to the credibility of these witnesses within 
" the range of facts or opinions to which they testified. You 
" cannot take it into account in any other connection than 
" this ; and you must not allow any opinion that you 
" may have in respect to these two witnesses, or the position 
" they occupy, to prejudice the case." 
It is most respectfully submitted that the 
strictures of the learned Court upon these experts 
were without foundation. As the learned Court 
stated, the gentlemen in question were men distin- 
guished in their profession and of high reputation. 
The circumstances to which the learned Court 
alluded as impairing their credibility were not sus- 
ceptible of any such construction. Why, it is 
respectfully asked, are experts called 'i Is it not 
because they are understood and presumed, from 
their devotion to a particular branch of science, to 
be best qualified to decide a question arising in 
that department of science ? Who but they under- 145 
stand what facts are necessary in order to enable 
them to arrive at a definite conclusion upon a given 
question ? It becomes necessary, therefore, and 
has always been considered the province of expert 
witnesses in the trial of a cause, by suggestions to 
counsel or otherwise, to elicit from the witnesses 
called to prove facts such facts as are essential in 
order to arrive at a conclusion. Hence, experts are 
universally in the habit of doing the precise things 
which the learned Court condemns in his instruc- 
tion to the jury in the case at bar. In order to 
decide upon the cause of death in a given case, it 
is necessary that the evidence should show the 
condition of certain organs, the history of the case. 
Facts which to one unskilled in the particular de- 
partment of science might appear of little or no 
consequence, may be of vital consequence in 
enabling the expert to reach a conclusion. No 
inference, therefore, prejudicial to the expert is to 
be drawn from the fact that he has suggested to 
counsel the necessary course of investigation to 
elicit the facts essential to the formation of a correct 
judgment on the question. 
The subsequent remarks of the learned Court to 
the jury, after he had impressed upon them in the 
forcible language of his charge their duty in his 
opinion to regard the testimony of the experts with 
great suspicion, did not correct the evil. The jury 
was composed of unlearned men drawn from the 
vicinage. Many of them were serving on a jury 
for the first time, and such decided language from 
the lips of the Court could not fail to be regarded 
by them as controlling upon their duty, notwith- 
standing the subsequent statement that the ques- 
tion was one for them. The instruction complained 
of was not in accordance with the law. It could 
not fail to affect the defendant's case injuriously 
upon a vital issue in a cause where the jury were 
so divided that they were only able to reach a con- 
clusion after being kept together for fifty-two 146 
hours, during which period one of the jurors 
had been ill and needed the professional attend- 
ance of a physician. Even though the Court should 
be of opinion, which is not anticipated, that the 
language excepted to was not for any reason the 
subject of a strict legal exception, the case is brought 
within the decision of the Court of Appeals in the 
case of Hamilton vs. The Third Avenue Railroad 
Company, 53 N. Y., 25, cited under Point III, 
where the Court say : 
" The further duty was incumbent upon them " (the Gen- 
eral Term) "to examine whether, upon the trial, the de- 
" fendant sustained any injury from the jury having been 
" misled by any improper remarks of the Judge during the 
" trial which were not excepted to, or not the proper sub- 
" ject of exception " (p. 27). 
Surely it cannot be controverted that the re- 
marks of the Court on the subject of these experts, 
to which attention has been called, were improper, 
and had a tendency to mislead the jury, and, 
whether a strict exception would lie to these re- 
marks or not, under the law of this State as laid 
down by the Court of Appeals, the verdict should 
be set aside for that reason, if for no other. 147 
XXX. 
The defendant was entitled to the follow- 
ing INSTRUCTION ASKED FOR IN ITS TWENTY-THIRD 
REQUEST (FOL. 2221), VIZ. : 
" Twenty-third.-That in weighing the tes- 
" TIMONY OF A WITNESS THE JURY ARE ENTITLED 
" TO TAKE INTO CONSIDERATION ON THE QUESTION 
" OF HIS CREDIBILITY HIS OWN DECLARATIONS AS 
" TO HIS BELIEF OR UNBELIEF IN THE EXISTENCE 
" of a God, and a future state of rewards 
" AND PUNISHMENTS." 
The Court refused to charge as requested, or to 
give any other instruction on this subject than was 
embraced in the charge actually delivered. The 
defendant duly excepted to the refusal of the Court 
to charge as requested, and to each and every por- 
tion of the charge actually delivered, so far as the 
same was in conflict with such request; and also 
separately and specifically to that portion of the 
charge which instructed the jury, that 
" If the witness recognizes the obligation of the oath 
" under the law, and recognizes its moral obligation, and 
" believes that the oath or affirmation which he takes 
" binds his conscience to testify the truth, and that moral 
" penalties will follow in case of failure, these are the only 
" considerations to be taken into account as affecting his 
" credibility in this connection." 
Exceptions, fols. 2199 and 2222 
The instruction actually given to the jury on the 
subject of the question embraced in this point will 
be found commencing at fol. 2156. 
The Court will observe that it was not claimed 
that the witness was not a competent witness by 
reason of his unbelief. No point whatever was 148 
made on the subject of his competency. All that 
the request under consideration asked for was that 
the jury should be advised that in weighing the 
testimony of a witness they were entitled to take 
into consideration on the question of his credibility, 
of which they were the admitted judges, his own 
declarations as to his belief or unbelief in the exist- 
ence of a God and of a future state of rewards and 
and punishments. The attention of the Court has 
been called in the preceding point to the vital char- 
acter of the issue as to the cause of Dwight's death. 
On one side of this issue was arrayed the 
whole body of expert witnesses, who were unani- 
mous in their judgment as to the cause of death. 
On the other side of this issue stood Charles A. 
Hull. He had admitted on the stand that he could 
not say he believed the Holy Scriptures to be any- 
thing more than the work of a mere man (fol. 1258); 
that he doubted very much whether the Scriptures 
were inspired ; that he did not believe in the exist- 
ence of a personal God (fol. 1260) ; that he had no 
fixed belief in any overruling power that rewards 
and punishes aside from those punishments inflicted 
in this world (fol. 1260) ; that he had no well-de- 
fined belief on the subject (fol. 1262). 
Under the law as it formerly existed, the witness 
would have been incompetent, Under the amended 
constitution of this State the objection on the ground 
of incompetency has been removed. The state of 
the witness' mind on these topics, however, is one 
which the jury have the right to take into consid- 
eration on the question of his credibility. That it 
may be taken into consideration on the question of 
his credibility, where it does not affect his compe- 
tency, has been decided over and over again. 
Hunscom vs. Hunscom, 15 Mass., 184. 
Wakefield vs. Ross, 5 Mason, 16, and 
cases cited. 
Commonwealth vs. Burke, 16 Gray, 32. 149 
In the case of the people against Matteson, re- 
ferred to in a note to Butts vs. Swartwood, 2 
Cowen, 431, Judge Walworth (p. 433) laid down 
the rule as follows, distinguishing between objec- 
tions to the competency and matters which go to 
the credibility of the witness : 
" I apprehend the true test of the competency of a wit- 
" ness to be this: Has the obligation of an oath any binding 
" tie upon his conscience ? Or, in other words, does the 
" witness believe in the existence of a God, who will punish 
" his perjury ? If he swears falsely, does he believe he will 
" be punished by an overruling Providence, either in this 
" world or the world to come ? If he does not believe in 
" the existence of a God, or if he believes in no punishment 
" except by human laws, no obligation or tie can have any 
" binding force upon his conscience. But if he believes 
" that he will be punished by his God, even in this world, 
" if he swears falsely, there is a binding tie upon the con- 
" science of the witness, and he must be sworn, and the 
" strength or weakness of that tie is only properly to be 
" taken into consideration, in deciding upon the degree 
" of credit which is to be given to his testimony. It is a 
" question as to his credibility and not as to his com- 
" petency." 
Later on, in the same opinion, Judge Walworth 
refers to the case of Omichund vs. Barker, report- 
ed in Willes' Reports, and quotes Chief Juslice 
Willes, as follows: 
" Suppose an infidel, who believes a God, and that he will 
" reward or punish him in this world, but does not believe 
" a future state, be examined on oath, as I think he may; 
" and, on the other side, to contradict him, a Christian is 
" examined, who believes a future state, and that he shall 
" be punished in the next world as well as in this, if he does 
" not swear to the truth, I think that the same credit ought 
" not to be given to the infidel as to the Christian, because 
" he is plainly not under so strong an obligation." 
Judge Walworth then continues : 
" Such I understand to be the common law of England 150 
" as it existed at the time of our revolution, and which, 
" by the Constitution, is made the law of this State. And 
" this is not a hasty opinion formed during the trial of this 
" cause, but from having examined the subject heretofore. 
" In this opinion I believe, also, I am supported by most, if 
" not all, of the Circuit Judges." 
As has been stated the jury are the sole judges of 
the. credibility of a witness. In weighing his 
credibility they have a right to take into considera- 
tion his demeanor upon the stand, his hesitation or 
promptness in answering questions propounded to 
him, his apparent frankness or lack of frankness 
in the answers he makes, his manner of testifying. 
Shall it be said, that in the State of New York, we • 
have reached that point in so-called liberalism, that 
in weighing the testimony of witnesses where there 
is a conflict, the jury are not entitled to give more 
credit to one who believes in the existence 
of a God and of a future state of rewards and pun- 
ishments, who believes that if he testifies falsely 
upon the stand he will have to give an account of 
his perjury before an omnipotent and omniscient 
Judge, than they will give to another who confessed- 
ly has no belief in the existence of a God or of a fu- 
ture state, and who testifies, therefore, free from 
the restraints which bind the conscience of the 
other? It is respectfully submitted that that is not 
the law of this State, and that the jury are entitled 
to take into consideration, in weighing the credibil- 
ity of a witness, his sworn belief or disbelief on 
these subjects. The Court, therefore, erred in re- 
fusing to give the instruction asked for, and in the 
instruction actually given to the jury upon this 
subject, to which exceptions were taken. 151 
XXXI. 
The Court erred in instructing the jury in 
SUBSTANCE THAT THE FAILURE OF THE PLAINTIFFS 
TO SWEAR AS A WITNESS THE HOTEL KEEPER, 
Spaulding, could not be the subject of un- 
favorable PRESUMPTIONS AGAINST THEM, AND 
THE DEFENDANT'S EXCEPTION TO SUCH INSTRUC- 
TION WAS WELL TAKEN. 
Charge, fol. 2114. 
Exception, fol. 2198. 
The evidence showed that from half-past nine to 
eleven o'clock, on the 15th November, Hull was 
alone with Dwight; that at about eleven o'clock he 
knocked at Mrs. Dwight's door, and that she im- 
mediately followed into her husband's room. Mrs. 
Owen followed within live minutes. She never saw 
Dwight give any sign of life after reaching the room 
on that occasion. The evidence showed that there 
were present at that time Spaulding, who had hold 
of Dwight's tongue, and the plaintiff, Mrs. Dwight, 
who had his hands in hot water. If any one but 
Hull could throw any light upon the circumstances 
of Dwight's death, it was Spaulding or Mrs. 
Dwight. The Circumstances of Spaulding holding 
Dwight's tongue was itself a suspicious one. He 
was the host, friend and attendant of Dwight on 
this occasion. The learned Judge told the jury in 
another place (fol. 2126), that the plaintiffs pro- 
duced in support of their theory of a natural death 
the persons who were about his death bed. They 
did not produce either Spaulding or Mrs. Dwight, 
and under these circumstances, in view of the rela- 
tion of Spaulding to the plaintiff and her husband, 
it is respectfully submitted that it is an error to say 
that no presumption unfavorable to the plaintiffs 
could be drawn from the non-production of Spauld- 152 
ing as a witness. The exception to this instruction 
was therefore well taken. 
XXXII. 
The defendant is therefore entitled in any 
EVENT, BOTH ON THE FACTS AND THE LAW, TO HAVE 
THE JUDGMENT AND ORDER APPEALED FROM RE- 
VERSED, AND THE VERDICT AND FINDINGS OF THE 
JURY SET ASIDE AND A NEW TRIAL ORDERED ; AND, 
AS THE DEFENDANT WAS ENTITLED TO A NON-SUIT 
OR DIRECTION FOR A VERDICT IN ITS FAVOR ON 
THE UNCONTRADICTED EVIDENCE ESTABLISHING 
BREACHES OF WARRANTY WHICH BY THE EXPRESS 
TERMS OF THE CONTRACT RENDERED THE POLICY 
VOID, AND AS IT IS MANIFEST THAT NO BENEFIT 
COULD RESULT TO THE PLAINTIFFS FROM A NEW 
TRIAL, IT IS RESPECTFULLY SUBMITTED THAT, UN- 
DER THE RULES APPLICABLE TO SUCH CASES, THE 
COMPLAINT SHOULD NOW BE DISMISSED WITH COSTS. 
Jos. Larocque, 
Of Counsel for Appellant.