Page:Federal Reporter, 1st Series, Volume 1.djvu/773

 BHAW V. SCOTTISH COM. INS. CO. 765 �A safe test of an attempt at fraud is to inquire whether, if it had succeeded, the person who had paid money in conse- quence of it could recover back the money. No one would contend, I suppose, that these defendants, if they had paid the $4,500, could have successfuUy maintained an action to recover it back, upon proof that the schedule had exag- gerated the loss, which, however, was much greater than $4,500, �Most of the cases which I have seen, including those cited in the briefs, appear to be cases where the daim was exag- gerated, and, therefore, where every dollar that was falsely added tended directly to defraud the underwriter. For in- stance, in Geib v. Ins. Co. 1 Dillon, 443, the charge was : "If you ûnd from the evidence that the plaintifE, in the proofs of loss, knowingly and falsely made a fraudulent overvaluation of the property with a view to deceive the insuranee company, and to induce them to pay more than the value of the build- ing, then he cannot recover." In a case in this court a ver- dict was rendered for the defendants and sustained upon proof of a wilful misstatement of about one dollar in an in- suranee of several hundreds, where the dollar was part of the claim of loss. The rulings in ail the following cases, from Bome of which general remarks coneeming the good faith re- quired of the assured are cited in the defendants' brief, wUl be found, when carefuUy examined, to relate to an overvalu- ation of the same character. Huchberger v. Home Ins. Co., 5 Biss. 106; Howell v. Hartford Ins. Co. 3 Ins. L. J. 659; Haigh v. De La Cour, 3 Camp. 319; Levi v. Baillie, 7 Bing. 349 ; Chapman v. Pale, 22 L. T. N. S. 306 ; GouUtom v. Royal Ins. Co. 1 F. & F. 276; Britton v. Royal Ins. Co. 4 F. & F. 905. �A more common form of condition than that used in this policy is that any fraud or false swearing shall destroy the claim. The courts hold that this means wilfuUy false swear- ing in some material particular, and they sometimes speak of it as fraudulently false swearing; and the defendants insist that this ruling makes fraud and false swearing identi- cal in insuranee cases. But it is plain' that if the parties ��� �