Mr. A. E. L. Leckie, Mr. Creed M. Fulton, and Mr. Joseph W. Cox for the appellee. Mr. Chief Justice SHEPARD delivered the opinion of the Court: The evidence, which it is unnecessary to review, made out a case of mutual mistake of fact amply justifying the decree for correction. Errors have been assigned raising the question of multifariousness through the misjoinder of plaintiffs. The defendant filed neither demurrer nor plea, nor did he raise the question in his answer. It was suggested for the first time on the hearing in this court. As was said in United States v. American Bell Teleph. Co. 128 U. S. 315-352, 32 L. ed. 450-457, 9 Sup. Ct. Rep. 90: "The principle of multifariousness is one very largely of convenience, and is more often applied where two parties are attempted to be brought together by a bill in chancery, who have no common interest in the litigation, whereby one party is compelled to join in the expense and trouble of a suit in which he and his codefendant have no common interest, or in which one party is joined as complainant. with another party with whom in like manner he either has no interest at all, or no such interest as requires the defendant to litigate it in the same action." In an earlier case it was said by Mr. Justice Story: "It is impracticable to lay down any rule as to what constitutes multifariousness, as an abstract proposition; that each case must depend upon its own circumstances; and much must necessarily be left, where the authorities leave it, to the sound discretion of the court. objection of multifariousness cannot, as a matter of right, be taken by the parties except by demurrer or plea or answer; and if not so taken, it is deemed to be waived. It cannot be insisted upon by the parties even at the hearing in the court below, although it may at any time be taken by the court sua sponte, whenever it is deemed by the court to be necessary or proper to * * * The Syllabus. [37 App. assist it in the due administration of justice. And at so late a period as the hearing, so reluctant is the court to countenance the objection, that if it can go on in the cause to a final decree without serious embarrassment, it will do so, disregarding the fault or error, when it has been acquiesced in by the parties up to that time. A fortiori, an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity." Oliver v. Piatt, 3 How. 333-412, 11 L. ed. 622658. See also Barney v. Latham, 103 U. S. 205-215, 26 L. ed. 514-518; Hefner v. Northwestern Mut. L. Ins. Co. 123 U. S. 747-751, 31 L. ed. 309-311, 8 Sup. Ct. Rep. 337. Clearly the conditions are not such as to require consideration of the question now. The decree will therefore be affirmed with costs. Affirmed. HEALY v. METROPOLITAN LIFE INSURANCE COM PANY. LIFE INSURANCE; EVIDENCE. 1. A provision in a life insurance policy that the insurer will not be bound unless at its date the insured is in sound health, and that it is void if before that date the insured has had certain specified diseases, are conditions precedent to the liability of the insurer on the policy, notwithstanding a statement in the policy that the application upon which it is written "omits the warranty usually contained in applications," and no other provision in the policy contains the word "warranty." 2. A provision in a life insurance policy that it shall be "incontestable after two years, except for fraud or misstatement of age," is inconsistent with a provision in the policy that if the age of the insured is not correctly given, the amount paid will be adjusted according to the true age, and also with provisions in the policy that the insurer shall not be bound if the insured is not in sound health at the date of the policy, and that it will be void if before that time the insured has had any of certain specified diseases; and if the insured is not in good health at the date of the policy or has suffered from any of such diseases, the policy is voidable on those grounds for two years, but is incontestable thereafter, except for fraud. 3. Under the guise of requiring proofs of death, an insurance company may not compel a claimant to procure and introduce in evidence in an action on one of its policies, proofs of health. 4. Where, in an action on a life insurance policy, the plaintiff agrees at the trial that the proofs introduced shall be considered as part of the proofs of death, he is bound by them to the extent of their disclosures, except as such disclosures may be modified by the oral testimony. (Following Griffith v. Metropolitan L. Ins. Co. 36 App. D. C. 8.) 5. Where a policy of life insurance provides that the company shall not be bound unless the insured was in sound health at the date of the policy, and that the policy shall be void if before its date the insured had suffered from pulmonary disease, and the insured died of tubercu losis about ten months after the date of the policy, it was held, in an action on the policy, that the evidence was such as to require the case to be submitted to the jury upon the question whether the insured was free from disease and in sound health at the date of the policy. No. 2280. Submitted April 5, 1911. Decided May 1, 1911. HEARING on an appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia upon a verdict directed by the court in an action upon a life insurance policy. Reversed. The COURT in the opinion stated the facts as follows: This is an appeal from a judgment of the supreme court of the District upon a directed verdict for the defendant, Metropolitan Life Insurance Company, the action being based upon a policy of insurance issued by the defendant, the Metropolitan Life Insurance Company, on April 12th, 1909, to Della M. Brennan, the plaintiff, Mary A. Healy, being the beneficiary. The policy contains the provision "that no obligation is assumed by the company prior to the date hereof, nor unless Vol. XXXVII.-16. Statement of the Case. [37 App. on said date the insured is alive and in sound health." In the "conditions" contained in the policy it is stated that if the age of the insured is not correctly given, the amount paid in the policy will be adjusted according to her true age; that the "policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreement between the company and the insured;" that the terms of the policy cannot be changed or its conditions varied except by written agreement signed by the president or secretary of the company; that unless otherwise stated, the policy is void "if the insured before its date has been rejected for insurance by this or any other company, or has been attended by a physician for any serious disease or complaint; or has had before said date any pulmonary disease, or chronic bronchitis, or cancer, or disease of the heart, liver, or kidneys;" that "proofs of death" shall be made upon blanks furnished by the company, and contain answers to each question propounded to the claimant, physician, or other persons, and the record, evidence, and verdict of the coroner's inquest, if any be held; that such proofs of death shall be evidence of the facts therein stated in favor of, but not against, the company. Under the head of "Privileges and Concessions to Policy Holders," it is stipulated that the policy "shall be incontestable after two years, except for fraud or misstatement of age." There is no claim of fraud in this case. At the trial the defendant called as a witness the agent who solicited the risk for the company. This agent, with commendable good faith, testified that he saw the insured weekly for about a year before the policy was written, as he called at her house each week to collect premiums for a child who held a policy in the defendant company during that period; that after several efforts he finally secured an application from Mrs. Brennan, upon which the policy in suit was issued. This policy he delivered to the insured, and collected the premiums thereon weekly from her until about two weeks before Christmas following, when he was told that she was ill; that the premiums were duly paid upon the policy up to the time of Mrs. Bren nan's death; that during the whole time he saw Mrs. Brennan "she did her own housework; went to market, and from all outward appearance she was perfectly healthy." * * A brother of the plaintiff testified that she died on January 26, 1910; that he lived in the same house with his sister for four or five years before the date of the policy, and that as far as he observed she was perfectly healthy at that time; that her health continued to be good until December or the latter part of November, 1909. Plaintiff then introduced proofs of death "for the purpose only of showing compliance with the terms of the policy." In these so-called proofs of death, the claimant agrees that they "shall be considered as part of the proof of death, * in accordance with the conditions of said policy." The attending physician is required to state for what disease or diseases he "at any time attended deceased." Dr. Kilroy, the attending physician, in the blank filled out by him, stated the cause of death as pulmonary tuberculosis, and that his attendance commenced on January 5, 1909, and continued until the date of death. Dr. Kramer certified that he had attended the deceased in April, 1908; that she then had hepatic congestion and incipient pulmonary phthisis. The claimant, in the blank she was required to fill out, also gave the cause of death as tuberculosis, and that the duration of the "last sickness" was six months and twenty-one days. The plaintiff then called Dr. Kilroy, who testified that he attended the deceased in April, 1908, when "she was complaining of some trouble over the liver;" that he attended her over a month, "during which period she improved very remarkably;" that he again saw her in the winter of 1908-09, when he called at the house to see another patient; that he then prescribed for her on one or two occasions; that he next saw her in the latter part of 1909, when he "was very much surprised to see her in the last stages of tuberculosis;" that he found no traces of tuberculosis when he treated the deceased in April, 1908, but that he rather suspected that she had the disease when he treated her in the winter following. He was not positive, however, until he last saw her in the latter part of 1909. The witness then |