Page:Federal Reporter, 1st Series, Volume 1.djvu/771

 SHAW V. SCOTTISH COM. INS. 00. 763 �The inaÎD question of the case arises upon this clause among the conditions in the policy: "AU fraud, or attempt at fraud, hy false swearing or otherwise, shall cause a forfeiture of a^ claim on this company under this policy." The instruction desired by the defendants was that this condition had the same meaning as one which is often inserted in policies, that any fraud or false swearing shall defeat the claim, and that, under either of these stipulations, a wilfully false oath to a material fact would work a forfeiture of the whole claim. �I gave an instruction that any fraud, or attempt at fraud, however committed, and however small in amount, whether by a false oath or otherwise, -would have the effect contended for; but not a false statement, though wilful, by -which the company could not' be defrauded. The example -which I gave of an attempt at fraud was that the plaintiffs should attempt to recover more than -was due. I defined a fraud to be the deception of a person to his injury, and an attempt at fraud to be an attempt to deceive a person to his injury ; so that I, in effect, required the jury to ûnd an attempted injury, as -well as a false statement, if they should find for the defend- ants on this point. �The insured -was the principal -witness for the plaintiffs, and he -was contradicted in several particulars; and I gave the jury full opportunity to reject his evidence altogether, if they found him to be a perjured -witness, or to infer from the •whole testimony that he was attempting an actual fraud. Their finding, upon a matter so peculiarly within their prov- ince, I did not feel at liberty to set aside. �The particular misstatements which Clement was said to bave made in his schedule of loss were very far below the amounts which would be necessary to operate an injury upon the defendants, by causing them to pay more than was due, and very much less than overestimatea, which the courts have repeatedly held not to be in themselves sufficient evidence of wilful misstatement to set aside a verdict, even when falso Bwearing was a substantive defence, and when the overesti- mate tended directly to injure the defendants. It becamo very important, therefore, for the defendants to put a cou- ��� �