made under misapprehension of facts, or in ignorance of facts subsequently ascertained, p. 36.

Approved and followed in Keels v. Mutual, etc., Assn., 29 Fed. 199, 201, holding evidence supported verdict that statement in preliminary proofs as to manner of death, was incorrect; Travelers' Ins. Co. v. Melick, 65 Fed. 187, 27 U. S. App. 547, 27 L. R. A. 634, where death was found accidental, notwithstanding evidence of death by suicide in preliminary proofs; Supreme Lodge, etc. v. Beck, 94 Fed. 753, holding admission of suicide overcome; Leman v. Life Ins. Co., 46 La. Ann. 1191, 49 Am. St. Rep. 349, 15 So. 389, 24 L. R. A. 591, holding insurer not estopped by preliminary proofs of suicide; Spruill v. Insurance Co., 120 N. C. 150, 27 S. E. 42, holding burden shifted to beneficiary where statement in proof of claim admitted death by suicide; Bentley v. Insurance Co., 40 W. Va. 745, 23 S. E. 588, holding insured not bound by proofs of loss by fire where he could show mistake as to amount of loss.

22 Wall. 38-41, 22 L. 779, CARY v. THE SAVINGS UNION.

Internal revenue.— Payment to depositors, where they contracted for proportionate share of the profits of a business in which their money was employed, is a dividend, and not interest, within purview of acts of 1864 and 1866, taxing dividends declared due to depositors in savings banks, p. 41.

Reaffirmed in similar case, Oulton v. Savings and Loan Soc., 154 U. S. 615, 22 L. 780, 14 S. Ct. 1208.

22 Wall. 42-47, 22 L. 838, HOUSE v. MULLEN.

Limitation of actions.- Statute of limitations does not run against a feme covert p. 45.

Cited in Grant v. Anderson, 1 Tex. App. Civ. 76, holding statute did not run against minor on note given to guardian.

Equity. Parties defendant are properly joined where bill shows that all claim through deed from plaintiff alleged to be void for want of consent, p. 45.

Approved in Torrent v. Hamilton, 95 Mich. 161, 54 N. W. 634, where defendants to bill for foreclosure of four distinct mortgages were held properly joined.

Equity.- Joinder of parties plaintiff without allegation of interest, is fatal to bill on demurrer or answer, and no evidence of relationship of plaintiffs can be admitted under the bill, p. 46.

Approved in Hubbard v. Manhattan Trust Co., 87 Fed. 57, 57 U. S. App. 741, holding wrongful addition of party curable by amendment.

Judgment.- Bill dismissed on account of misjoinder of parties and failure to amend, or by terms dismissed without prejudice, cannot conclude either party upon the merits, p. 46.

Approved in Hazen v. Lyndonville Bank, 70 Vt. 551, 67 Am. St Rep. 684, 41 Atl. 1048, holding decree dismissing bill without prejudice for want of prosecution, not a bar. See 96 Am. Dec. 778, note.

Judgment on demurrer, which presents several grounds of defense, some of which go to the merits, may be successfully pleaded in bar to another action on same matter, p. 47.

Cited and rule indorsed and applied in Keith v. Clark, 97 U. S. 456, 24 L. 1072, presuming that decision of lower court was on the merits, where it did not indicate that it was based on want of jurisdiction; Billing v. Gilmer, 60 Fed. 336, 23 U. S. App. 168, presuming decree of dismissal to be a final adjudication; Speer v. Board of Co. Commrs., 88 Fed. 753, 60 U. S. App. 45, holding general judgment on plea in abatement joined with pleas in bar, would constitute bar to future actions; Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 3 Sawy. 652, 653, F. C. 4,989, holding former judgment a bar where answer had set up defenses in bar as well as in abatement; Merrill v. Board of Commrs., 7 Kan. App. 721, 52 Pac. 110, holding former judgment on demurrer containing ground going to the merits, a bar; Bledsoe v. Erwin, 33 La. Ann. 619, 620, holding former judgment at law rendered on the merits, a bar.

Distinguished in Gilmer v. Morris, 30 Fed. 480, holding former judgment not a bar where cause of action was based on different agreement.

Equity. Decree not showing upon what ground demurrer was sustained and bill dismissed, and, as it might have been for misJoinder of parties, and not on the merits, it was reversed, with leave to amend bill, or dismiss without prejudice, p. 47.

Cited and authority followed in Kendig v. Dean, 97 U. S. 426, 24 L. 1063, reversing decree made on the merits for want of necessary party; Goodman v. Niblack, 102 U. S. 563, 26 L. 232, holding bill which was bad for want of necessary parties should have been dismissed without prejudice; Van Doren v. Pennsylvania R. R. Co., 93 Fed. 272, reviewing authorities, and reversing final judgment on demurrer and permitting amendment of bill to prevent injustice; Hubbard v. Manhattan, etc., Co., 87 Fed. 61, 57 U. S. App. 746, reversing general decree of dismissal, and permitting amendment within reasonable time; Cruikshank v. Luttrell, 67 Ala. 325, reversing final decree where it appeared that there was a want of proper parties; Van Winkle v. Blackford, 33 W. Va. 588, 11 S. E. 31, reversing decree which sustained demurrer on the merits, and not for want of parties; obiter in Four Hundred and Twenty Min. Co. v. Bullion Min. Co., 3 Sawy. 655, F. C. 4,989, holding appellate court would have reversed former judgment on the merits, if it should have been a non-suit. See 44 Am. St. Rep. 566, valuable note.

Distinguished in Hershberger v. Blewett, 55 Fed. 172, denying motion to dismiss without prejudice where demurrers had been overruled and answer filed.

22 Wall. 47-57, 22 L. 833, JEFFRIES v. INSURANCE CO.

Insurance.- Statements in applications for insurance need not come up to degree of warranties, but if false, and policy is issued upon condition that they are true, whether material to risk or not, policy is avoided, as where applicant falsely stated that he was single and that he had not previously applied for insurance, pp. 52, 53.

Affirmed and applied as follows: Etna Life Ins. Co. v. France, 91 U. S. 512, 516, 23 L. 402, 403, where applicant falsely stated his age, and that he had had no disease; Schultz v. Mutual, etc., Ins. Co., 6 Fed. 674, holding eyidence admissible to prove breach of warranty in policy, not to practice any pernicious habit; Brady v. United, etc., Assn., 60 Fed. 729, 20 U. S. App. 337, holding policy void where insured gave false answer as to names and addresses of physicians who had attended him; Insurance Co. v. Trefz, 104 U. S. 202, 26 L. 710, affirming S. C., 24 Fed. Cas. 178, holding it was for jury to decide whether material question was answered truthfully or not by one unfamiliar with English language; Masons, etc., Assn. v. Brockman, 20 Ind. App. 218, 50 N. E. 497, holding insured bound by warranty not to use intoxicating liquors; Weil v. New York, etc., Ins. Co., 47 La. Ann. 1419, 17 So. 858, and Boyle v. Northwestern, etc., Assn., 95 Wis. 318, 70 N. W. 353, both holding policy avoided by breach of warranty as to condition of health; Whitmore v. Supreme Lodge, etc., 100 Mo. 47, 13 S. W. 497, holding policy avoided on account of misrepresentations as to health; Aloe v. Mutual Reserve, etc., Assn., 147 Mo. 575, 578, 49 S. W. 556, 557, holding policy void on account of breaches of warranty as to health, prior applications and prior insurance; Byers v. Farmers' Ins. Co., 35 Ohio St. 619, 35 Am. Rep. 628, holding misrepresentation as to amount of mortgage in fire insurance policy avoided it; Insurance Co. v. Pyle, 44 Ohio St. 30, 58 Am. Rep. 783, 4 N. E. 469, holding policy null and void on account of untrue answers, and insured being not at fault entitled to recover premium; Sweeney v. Metropolitan, etc., Co., 19 R. I. 172, 61 Am. St. Rep. 752, 36 Atl. 10, 38 L. R. A. 297, holding burden of proof on insured to prove truth of answers in application; Virginia, etc., Ins. Co. v. Morgan, 90 Va. 293, 18 S. E. 192, holding promise to keep books in safe a warranty, and breach sufficient to avoid policy. Cited generally with approval in Guiltinan v. Insurance Co., 69 Vt. 476, 38 Atl. 317. See notes, 29 Am. Rep. 575, 35 Am. Rep. 643.

Distinguished in Moulor v. American Life Ins. Co., 111 U. S. 341, 28 L. 449, 4 S. Ct. 469, holding, where stipulations were equivocal, policy was not avoided because assured had disease of which he

had no knowledge at time of application; White v. Connecticut, etc., Ins. Co.. 4 Dill. 181, 183, F. C. 17,545, holding, under Missouri statute, policy was not avoided by false answer to immaterial question; Buell v. Connecticut, etc., Ins. Co., 2 Flipp. 12, 13, F. C. 2,104, holding voluntary answer as to age of father at death, though untrue, not a defense to action on policy; Metropolitan, etc., Co. v. Harper, 3 Hughes, 266, F. C. 9,505, holding company could not take advantage of answer dictated by their own agent; Hoffman V. Supreme Council, etc., 35 Fed. 253, holding question whether statements were essentially untrue, might be left to jury; Selby v. Mutual Life Ins. Co., 67 Fed. 492, holding contract of insurance voidable only, where there was no stipulation that breach of warranty rendered it void; Commercial, etc., Ins. Co. v. Allen, 80 Ala. 577, 1 So. 206, holding failure to disclose an easement on property insured, not a misrepresentation, and not material; Waterbury v. Dakota, etc., Ins. Co., 6 Dak. 475, 43 N. W. 099, holding voluntary statement concerning stovepipes, immaterial, and company liable for loss; Ball v. Granite, etc., Assn.. 64 N. H. 292, 9 Atl. 104, holding conditions as to truth of representations, waived by acceptance of premiums; Dupree v. Virginia, etc., Ins. Co., 92 N. C. 436, holding inaccurate valuation of property not vitiating element in fire insurance policy; Insurance Co. v. Leslie, 47 Ohio St. 413, 418, 24 N. E. 1073, 1075, 9 L. R. A. 47, 48, holding fire insurance policy not avoided, under Ohio statute, respecting the valuation of property insured, etc.; Knecht v. Mutual Life Ins. Co., 90 Pa. St. 121, 35 Am. Rep. 642, holding failure to carry out promise in application, not to practice any pernicious habit, insufficient to work forfeiture; Equitable, etc., Soc. v. Hazlewood, 75 Tex. 345, 16 Am. St. Rep. 898, 12 S. W. 622, 7 L. R. A. 221, and n., holding insured did not warrant that his statements would be correctly written down by medical examiner. Modified in Alabama, etc., Ins. Co. v. Johnston, 80 Ala. 475, 2 So. 131, holding immaterial statement will not avoid policy, though untrue, if assured did not know it to be untrue; Schwarzbach v. Protective Union, 25 W. Va. 653, 52 Am. Rep. 230, holding statements in policy not warranties where provisions as to materiality were inconsistent. Cited as distinguishing authority in 59 Am. Rep. 820, note.

Insurance company has right to determine what is material in effecting insurance, as any individual has right to make wise or unwise contract, and where the contract is clear, it is not for jury to decide, p. 54.

Cited and rule approved and applied in Phoenix, etc., Co. v. Raddin, 120 U. S. 189, 30 L. 646, 7 S. Ct. 502, holding company waived imperfection in answer to application where it was manifestly incomplete; Kelley v. Mutual Life Ins. Co., 75 Fed. 643, holding warranty in policy that insured would not die by his own hand, valid; American, etc., Co. v. Carrollton, etc., Mfg. Co., 95 Fed. 113, hold

ing, if answer as to amount of losses was untrue, there was no liability under policy; Alabama, etc., Ins. Co. v. Garner, 77 Ala. 215, holding materiality of question of age was settled by terms of policy; Kelly v. Life Ins., etc., Co., 113 Ala. 465, 21 So. 365, holding policy avoided, according to its terms, by false answer concerning prior application for insurance; Waters v. Knights of Damon, 105 Ga. 152, 31 S. E. 155, holding insured bound by warranties in application regarding use of liquors; Northwestern, etc., Co. v. Bodurtha, Ind. 53 N. E. 789, holding application, including an 'agreement," formed part of insurance contract, and breach would avoid policy; Johnson v. Maine, etc., Ins. Co., 83 Me. 188, 22 Atl. 108, holding answer respecting brother's insanity, material, where insured had so stipulated with company; Co-operative Assn. v. Leflore, 53 Miss. 15, applying rule to stipulations respect ing health of insured; Alve v. Mutual Reserve, etc., Assn., 147 Mə. 576, 49 S. W. 557, holding stipulations valid, that untrue answers as to health and prior insurance would vitiate policy; Con*inental, etc., Bank v. Farris, 77 Mo. App. 196, holding individual oaning money to bank, had right to require approval of board of directors; Boyle v. Northwestern, etc., Assn., 95 Wis. 319, 70 N. W. 353, holding condition valid, that parties contract upon faith of good health of assured; dissenting opinion in Blumer v. Phoenix ins. Cc., 45 Wis. 654, majority holding statement that one or two hauds slept in mill, material to risk. See 59 Am. Rep. 821, note.

Distinguished in Hoffman v. Supreme Council, etc., 35 Fed. 254, 255, holding question whether statements were essentially untrue, properly left to jury; Penn., etc., Ins. Co. v. Mechanics, etc., Co., 72 Fed. 431, 37 U. S. App. 692, 38 L. R. A. 63, and n., reviewing authorities, and holding materiality of question and answer as to diseases of insured was for the jury.

22 Wall. 57-60, 22 L. 729, SCOTT v. KELLY.

Appeal and error. It is too late to object, upon writ of error. that State court had no jurisdiction to act where assignees in bankruptcy voluntarily submitted themselves to its jurisdiction, p. 59.

Cited and applied in Davis v. Friedlander, 104 U. S. 573, 26 L. 819, and Lindsey v. Corkery, 29 Gratt. 659, both holding assignee bound by adjudication in State court, between himself and attaching creditors; Winchester v. Heiskell, 119 U. S. 453, 30 L. 464, 7 S. Ct. 282, holding assignee bound by decision of State court establishing lien; In re Moller, 8 Ben. 530, F. C. 9,699, and Augustine v. McFarland, 2 Fed. Cas. 215, where assignee was held bound by foreclosure suit.

Courts. Decision of State court that bankrupt had no title to property, presents no question of which Supreme Court can take jurisdiction upon writ of error, pp. 59, 60.

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