Page:Federal Reporter, 1st Series, Volume 4.djvu/375

BEHR V. OONNEOTICUT MUT. LIFE INS. 00. 861 �"If the statementswere made deliberately, as if the facts were communicated to counsel with a view to be incorporated in a petition for a divorce, and that the petition, after being pre- pared, was read over to the party by her counsel, and then adopted and sworn to, they cannot bë said to have been made inconsiderately. If the facts were peculiarly within the Per- sonal knowledge of the party making the statements, and if she was not ignorant in regard to the truth or falsehood of the facts, then the sworn statements cannot be said to have been made by mistake. A mistake, to bave the effect of removing the estoppel, must, at ail events, be an innocent and excusable mistake — arising from imperfect knowledge or infor- mation. If the party knows the facts and misstates them, the estoppel concluded her from showing that her statement " was untrue. It is not sufficient to prove that the sworn state- ment was untrue. There must be some satisfactory reason shown why the truth was not stated in the first instance, and the reason shown must be sufficient to establish the fact that the misstatement was innocently made, under excusable igno- rance of the actual facts." �Humes e Poston, for plaintiff. �Estes e Ellett, for defendant. �Hammond, D. J. The errors assigned on thîs motion are that the idea of estop^eZ was carefuUy excluded from the jury; that the conclusiveness of the sworn statement was made to depend wholly upon whether or not the plaintiff had been guilty of the offence of wilful and deliberate false swearing, and the court refused to explain, as aaked by the instruction, what is meant by "inconsiderately" and "by mistake" mak- ing a false statement. It seems to me that so much of the instruction as sought to explain the meaning'of the words "deliberately" "inadvertently," and "by mistake" is askingthe court to take from the jury certain questions of fact in the case, and to determine them as a matter of law. It is cer- tainly oharging the jury upon the weight of the testimony, and expressing an opinion by the court that, under the cir- cumstanoes stated in the instruction, the sworn statement was amde deliberately, and not inconsiderately and by mis- ����