specially concurring:
I agree in the opinion that the District Court erred in the particular matter of modifying the instruction as above shown,' and therefore concur in the order reversing the judgment; but in view *20of the probability of a re-trial of the cause, am not satisfied to give indorsement to the correctness of the two instructions above quoted, in the naked form they were offered, which necessarily would be the effect of a general concurrence in the views expressed in the leading opinion.
It is undoubtedly correct to say that the words therein used, “false,” “false declaring or affirming,” but follow the language contained in the policies, and hence of the contracts between the parties; yet the Court should accompany the instructions with a proper explanation of their legal effect and meaning, so that the jury might not be misled thereby: For it must be conceded, that although the insured makes a sworn exhibit of his losses, as perhaps is the fact in this case, largely in excess of the value, as shown by the weight of evidence, yet if it result from a mere error of judgment in estimating values — is not done with the design and intent to deceive the insurer as to the extent of such losses — it works no forfeiture under the terms of the contract of insurance. (Angel on Life and Fire Insurance, Sec. 260; Levy v. Baillie, 7 Bing. R. 349.) And these are facts peculiarly within the province of a jury. Hence the Court, in its instructions, should be extremely cautious in preserving the distinction which is taken between a statement which may in point of fact not be true, yet in legal contemplation is not “ false,” which distinction may not at all times occur to jurors in the absence of explanation.