Page:Federal Reporter, 1st Series, Volume 4.djvu/379

 BEHB ». OOS*JMn*idtJT M*. tiIFE INS. 00. 'WU �tô be deterïnînedwbelliër the parly BtftU, îû bbedienbe tb>j^ub- lic policy, be precludeJ îrom teontradicting bis original oath. He is not to be so precliicded tnless be bas, deliberately and with full knowledge, taken the oatb •witbout inadvettenee or mistake on bis part. If be bas done tbis be cannot contra- dict or offer proof of others to contradict it. It is in the na- ture of a penalty, and ti, very serious one, for false swearing. It seems to me plain that it is proper to sày to the jury tbat, in trying tbis question, they must find a wilful and deliberate false Bwearing to justify them in inflicting it. Notbing less sbould work the serious consequence of closing the plaintiff's moutb, so tbat, altbougb ber busband bad been, in fact, a drunkard for only a year, for example, sbe must stand by ber false statement that be bad been sucb for four years, and tbereby lose a policy to wbicb tbere is no defence if sbe could sbow the trutb. �Tbe cbarge given is a,pecessary resuit of the doctrine invoked, àiid the law of tbes^ Cases, in my opinion, requires tbat tbis concfusp)ene^8 of.the false oatb sballnot obtain unless the public policy against false swearing requires it. I sougbt 4o avoid the effect complained tof in the cbarge, by telling the jury that after tbey bad deteriiiined' the prelimiiiàry question in f avor of the plamtiff, tbey •wouldtAew look at tbç admission under oatb as an admission of great weigfat, and determine the force and effeCt of it in behalf of the defendant. The cbarge is very favorable to the defendant in that respect, and I tbink the jury understood that after tbey bad tned the question of wilful false swearing, tbey sbould give the petition for divorce the f ullest weigbt it was entitled to as an admis- sion by ber goirig to prove the defendant's case. I bave no doubt from the proof that the plaintiff did make a mistake in swearing that ber busband bad been a drunkard four years, and tbink it is fairly proved that be was a temperate man when be took olit the policy. The proof is not so clear as to the estent of bis subsequent babits, but the jury bas found tbat tbey did not impair bis bealtb or produce delirium tremens, and I am satisfied with the ûnding, as also apou the issue of suicide. ����