Page:Federal Reporter, 1st Series, Volume 4.djvu/76

 62 FEDERAL REPÛKTEB. �mth knowledge that it was false, and witb the intent to de- fraud the defendants by deceiving them as to the value of the goods. The value of a large stock of clothing, at a par- ticular date, is of course to some extent a matter of opinion and of estimate, and it is not to be expected that different persons would fix it at exactly the same amount. Different persons might honestly dififer as to what would be a true val- uation. The question for you to determine in deciding this issue, therefore, is not whether the value fixed by plaintiff was the true value of the goods, but whether it was an intention- ally false estimate and claim. Upon this question, which is one purely of fact, you are the sole and exclusive judges. �If you find that there was no exaggeration of the amount of the loss, you will, of course, have no occasion to consider the other question ; but if you find that there was an exaggeratod claim, then you will inquire as to the intent. �In case No. 1,489, against the Glens Fall Insurance Com- pany, there is an allegation in the answer that the preliminary proof was not made in time ; but the court instructs you that that this defence was waived if the defendant, or its agent, had possession of the books of the plaintiff, from which the loss was to be ascertained, and if by reason of such possession of said books the plaintiffs were deprived of the opportunity to make proof in time. It was also waived if the agent of the defendant agreed when he took possession of the books to waive the issue. As the defendants have introdueed no tes- timony to contradict plaintiff's proof upon this point, which was f ull and explicit, you will of course find this issue for the plaintiffs. �This leavesforyour consideration the further defence that the loss "was caused, occasioned, and brought about fraudulently by the direct agency, procurement, contrivance, and direction of the plaintiffs." This is equivalent to an allegation that the plaintiffs are responsible for the fire which reaulted in the de- struction of their property. This is, of course, a perfoct defence, if proved; but beforeyou canfind for the defendants upon this issue you must be satisfled from the evidence that the charge is true. The fact of arson may be established by ����