Page:Federal Reporter, 1st Series, Volume 4.djvu/373

 BEHB ». OONNECTIOUT MUT. LIFE INS. 00. 859 �was addicted to habits of intemperance ut the time the policy was issued, and that he subsequently had delirium tremens. But if you find there is evidence tending to show that the facts stated in that petition are not true, or only partially true, the question then arises, what force and eSect shall you give to the petition? It is oontended by the defendant cotapany that Mrs. Bëhr, the plaintiff here, cannot gainsay it; that she is estopped to deny it, whether true or fals'e. ' There is, undoubt- edly, a principle of law which holds one to his oath, whether it be true or false, very rigidly under certain circumstances. If one swear falsely to a state of facts, and you act on it, so that if he be allowed to deny it you are prejudiced, it is an estoppel, and he will not, under any circumstances, be allowed to deny it, no matter how innocent he be. But there is no evidence in this case that the defendant coinpany bas in any way been prejudiced by this oath of Mrs. Behr to the petition. The Company bas not acted on it, nor suffered by it, and I do not think the rule of estoppel applies to it for that reason. �"But there is a further principle of law to be considered, which may apply, and it is for you to determine how the faet is in this case. It is a rule of public policy that if one wil- fully and deliberately swears falsely, whether anybody acts on it or not, or is prejudiced or not, he cannot be heard in a court of justice to swear to the contrary when his interest demands that he shall change his oath. But if he bas inad- vertently or mistakenly sworn to a state of facts which he now says is not true, and he proves to your satisfaction that he is innocent of the offence of infentional false swearing, you may look to the proof at large and say how the facts really are. If, therefore, you find from the facts in this case that Mrs. Behr has explained sàtisfactorily to you how she came to make an oath which she now says is not true, and you are of opinion that she is innocent of making a wilfully and deliberately false oath to obtain a divorce, then, and only then, will you be allowed to look at the other proof in the case. That is the first question for you to determine. If you find it against her she cannot recover. �"But, assuming that you have determined that question in ����