Volume IX. pleadings); and also, that he, being their agent, duly 1846. GALE V. LEWIS. authorized in and about effecting the policy, caused it to be effected, and received it from the Company, for the purpose and upon the terms of the agreement between Densem and Ware. He added, in conclusion: "The whole question for your consideration is, whether you believe Mr. Loosemoore was the agent for effecting this policy on behalf of the Company: whether he knew the fact that it was assigned to Mr. Densem for his benefit before and at the time of the bankruptcy of Ware; and whether you consider that the knowledge of Loosemoore is the knowledge of the office." "If you think it was the knowledge of the office, the plaintiff is entitled to your verdict: if you think the office did not know any thing of it, and do not consider what Loosemore knew as their knowledge, then of course the defendant is entitled to your verdict." Verdict for plaintiff. Rogers, in the ensuing term, moved for trial on the grounds: 1. That the verdict was against the weight of evidence. 2. That the concluding direction to the jury was incorrect. 3. That the statements in the replication were improperly left to the jury as evidence. On the first and second points, Rogers contended that, even if the facts relied upon for the plaintiff were proved, the knowledge ascribed to Loosemoore was not either such a notice to the company, or such a notoriety, as could take the case out of the operation of stat. 6 G. 4. c. 16. s. 72.; that the question, on this point, was left to the jury in too limited a form, and appeared to place before them a question of law rather than of fact; and that it should have been put to them in the manner pointed out by Tindal C. J. in Edwards v. Scott (a). On the third (a) 1 Man. & G. 962. 1846. GALE V. LEWIS. point he referred to Edmunds v. Groves (a) and Bennion Queen's Bench. v. Davison (b), and contended that the untraversed statements in the replication could not be taken as admitted unless they were material and traversable; but that several statements in the present replication, which had been submitted to the jury, were not traversable at all, or not so in that stage of the pleadings. Such were the allegations, that the policy was effected" for the purpose and upon the terms aforesaid; " that Loosemoore acted as attorney for Densem; that he received the policy for and on behalf of Densem ; and that it was not afterwards in the hands of Ware; that the premiums were paid to the Company by Densem; and that the Company "well knew" the " said premises respectively before the bankruptcy. A rule nisi was granted. In Michaelmas vacation (December 6th), 1845 (c), and Hilary term (January 12th), 1846 (d), Crowder and Butt shewed cause, and Rogers and Greenwood supported the rule. The course which the case ultimately took makes a further report of the arguments unnecessary. The principal authorities cited were: On the first two points; as to the circumstances under which an Insurance Company might be considered as having notice that a policy was assigned, the necessity of such notice to them, and the description of agent from whose knowledge theirs might be inferred; Tibbits v. George (e), Smith v. Smith (g). Burgh v. Legge (h), Ex (a) 2 M. & W. 642. (b) 3 M. & W. 179. (c) Before Lord Denman C. J., Patteson and Coleridge Js. (g) 2 Cro. & M. 231.; S. C. 4 Tyr. 52. 1846. GALE v. LEWIS. Volume IX. parte Carbis, In re Croggon (a), Ex parte Patch, In re Loosemoore (b), Ex parte Watkins, In re Kidder (c), West v. Reid (d), Williams v. Thorp (e), Acey v. Fernie (g), Lowther v. Carlton (h), Warrick v. Warrick (i), Drake v. Marryat (k), France v. Woods (1), Worsley v. The Earl of Scarborough (m), Hiern v. Mill (n), Ryall v. Rowles (0), Jones v. Gibbons (p), Timson v. Ramsbottom (q), Ex parte Smith (r), Ex parte Rose (s), Ex parte Heathcoate (t), Gibson v. Overbury (u), Falkener v. Case (x), Le Neve v. Le Neve (y), Maddox v. Maddox (≈), Ashley v. Baillie (aa), 2 Sugd. Vend. & P. 1041. (bb) (ch. xxiii. sect. 1. § 8, &c.), Everett v. Desborough (cc), Lyon v. Weldon (dd), Dean v. James (ee), Ex parte Hennessey (gg). On the last point, in addition to the cases before mentioned, Bingham v. Stanley (hh), Smith v. Martin (ii), Robins v. Viscount Maidstone (kk), Carter v. James (1), (x) 1 Bro. Ch. C. 125.; S. C., more fully, 2 T. R. 491., in the judgment of Ashhurst J. in Lempriere v. Pasley. (y) 1 Ves. sen. 64. (aa) 2 Ves. sen. 368. 370. (cc) 5 Bing. 503. (dd) 2 Bing. 334.; S. C. 9 B. Moore, 629. (ee) 1 A. & E. 809, note (a). (*) 1 Ves sen. 61. (gg) 1 Connor & Lawson's (Irish) Rep. 559. (Temp. Sugden.) (hh) 2 Q. B. 117. (kk) 4 Q. B. 811. (ii) 9 M. & W. 304. (U) 13 M. & W. 187. See also Bonzi v. Stewart, 4 Man. & G. 295. 1846. GALE V. LEWIS. were cited: also, as to the materiality of particular Queen's Bench. averments in the replication, Buck v. Lee (a) (also cited on the preceding points), Edwards v. Scott (b) (also cited on the preceding points), West v. Reid (c) (also cited on the preceding points), Burridge v. Row (d), Hollingworth v. Brodrick (e), Semayne's Case (g) (last resolution), Dearle v. Hall (h) and authorities there cited, Watson v. Peache (i), Ex parte Wiggins, In re Nicholls (k), Walker v. Burnell (l) (dictum of Buller J.), Horn v. Baker (m) (judgment of Lawrence J.): and, as to the immateriality of averments made in a too early stage of the pleadings, Sir Ralph Bovy's Case (n), Harvey v. Reynold (0), Com. Dig. Pleader (G 12.), Hyde v. Watts (p), Winch v. Keeley (q). Cur. adv. vult. Lord DENMAN C. J., in Hilary vacation (February 12th) 1846, delivered the judgment of the Court. In this case a rule for a new trial was obtained, partly on the ground that the verdict was against evidence, and partly on two objections to the course taken at the trial by my learned brother who tried the cause. First. The jury were told that certain facts averred in the replication, and not traversed, must be taken as admitted by the defendant, and received as facts in con 1846. GALE Volume IX. sidering the particular issue on which they were to find. But we are of opinion that some of these facts, at least, were not traversable by the defendant, and consequently could not be considered as admitted because they were not traversed. V. LEWIS Secondly. On another point, which was discussed at great length, we are called upon to form some opinion, but can by no means undertake to express one very confidently we mean the question whether the knowledge of one individual was the knowledge of the Company whom the defendant represents in this action. Some late decisions have certainly made it difficult to say what is the correct rule on that subject: yet we think that the question, as submitted to the jury, leaves the matter somewhat too much at large. The jury were asked whether the knowledge of their agent Loosemore was the knowledge of the Company: and they could hardly understand that their opinion was sought whether the Company was actually informed of the fact. If that had been so, we could not but have expected a different verdict. If, on the other hand, they understood the question to be whether a principal is bound by knowledge so possessed by his agent, we are not prepared to say that it can be a question of fact it would rather appear to be a question of law, depending on facts found by the jury in each particular case. Whatever view may be taken by the learned Judge who shall preside at the next trial will probably lead to more consideration of this now unsettled doctrine. Rule absolute. The cause was tried again, before Erle J., at the |