Joule v. Taylor. was held that the defendants were not entitled to notice of action under an act which provided that no process should be sued out for anything done in pursuance of the act. There Lord Ellenborough says, "there must be a positive act done: in this case there was neither act done nor fact committed." [PARKE, B. There the action was brought for an excessive charge made by the defendants. There was an overcharge.] Davis v. Curling, 8 Q. B. Rep. 286; s. c. 15 Law J. Rep. (N. S.) Q. B. 56, may be relied on by the other side. There a highway sur veyor was charged with having allowed gravel to remain by the side of the highway, and it was contended that he was not entitled to notice of action under the Highway Act, 5 & 6 Will. 4, c. 50, s. 109, which requires notice of action to be given for "anything done in pursuance of or under the authority" of the act. But there Lord Denman, C. J., said, "The party is charged with a tort committed in the course of his official duty"; and Patteson, J., said, "The charge is not one of mere omission, but of actually continuing the nuisance." Secondly, the replication is good. The question turns upon the construction to be put on the 1st section of the local act relating to Manchester, the 8 & 9 Vict. c. 145. That section, after reciting that Her Majesty had granted to the mayor, &c., of Manchester that they should have a court of record for trial of civil actions under 201., enacts, that the said "court shall have authority to try actions of assumpsit, covenant, and debt, &c., in trespass or trover, provided the sum or damages sought to be recovered shall not exceed 501." This section, which was copied from the 118th section of the Municipal Corporation Act, gives the court jurisdiction to award the recovery of a sum of 50%. in an action of debt, and as that sum may be recovered exclusively of the costs of suit, it may be recovered exclusively of the nominal damages which, in an action of debt, are necessary to carry costs. [ALDERSON, B. Does not the word "sum" in the act of parliament mean debt?] It does. (He was then stopped by the court.) Crompton, for the defendant. The last plea is good. The act complained of is an act done in the execution of the defendant's duty. He has allowed the debtor's goods to remain unseized, and has made a false return. The making a false return forms the prin cipal part of that conduct of which the plaintiffs complain. All the cases were cited in Davis v. Curling, and the language of the judges in that case is important and in favor of the defendant. Lord Denman, C. J., there said, "The defendant is charged with a tort committed in the course of his official duty; he is charged as surveyor with the positive act of leaving gravel on the road, where it had been improperly placed, for an unreasonable time." The substance of the defendant's conduct in this case was, that he made a false return without having seized any goods. [PLATT, B. In Wright v. Horton, in Holt's Nisi Prius Reports, 458, it was ruled, that in an action for a penalty under the 1 Geo. 2, c. 20, for Joule v. Taylor. acting as a magistrate without a proper qualification, no notice of action was necessary under the 24 Geo. 2, c. 44. PARKE, B. In Smith v. Shaw, 10 B. & C. 277; s. c. 8 Law J. Rep. K. B. 111, where an action had been brought against the treasurer of a dock-company for injury to a vessel by reason of improper directions having been given by the dock-master in transporting her into the docks, it was held that the giving of such directions was a thing done in pursuance of the act of parliament, and that the action ought to have been brought within the time limited by the act. Now, if you substitute " serjeant-at-mace" for "dock-master," that case resembles the present.] The phrase "act done" has a large signification. [POLLOCK, C. B. It means any act that occurs.] Secondly, the replication to the last plea is bad, for it shews that the recovery of the debt was not within the jurisdiction of this court. The plaintiffs have recovered 501., and something more. The word "sum" in the act means an aggregate amount, compounded of the debt and damages. In Dempster v. Purnell, 3 Man. & G. 375; s. c. 11 Law J. Rep. (N. s.) C. P. 33, a declaration in the county court stated, that the defendant was indebted to the plaintiffs in 17. 19s. 6d. for goods sold, and 17. 19s. 6d. on an account stated, whereby an action had accrued to the plaintiffs to demand and have from the defendant the said several sums amounting to 17. 19s. 6d., yet the defendant had not paid the said sum above demanded, to the damage of the plaintiffs of 1l. 19s. 6d. It was held that this declaration disclosed a demand above 40s., and that the county court had no jurisdiction. A plaintiff recovers the debt, and then a sum of money as damages. Lowe v. Steele, 15 Law J. Rep. (N. s.) Exch. 244. The damages may perhaps form the most important part of the debt. [PARKE, B. The whole question depends on the meaning of the word "sum."] If the word "sum 99 means the debt to be recovered, actions to almost any amount might be brought in the inferior court. The plaintiffs ought to have declared for 49l. 19s. 6d. Milward, in reply. Dempster v. Purnell is distinguishable. Here, the breach is altogether confined to the 50l. The plaintiffs seek to recover the sum stated in the declaration. The word "sum" has the same meaning as "debt." He cited and mentioned Younger v. Wilsby, 6 Taunt. 452; Shaddick v. Bennett, 4 B. & C. 769; s. c. 4 Law J. Rep. K. B. 38; Drews v. Coles, 2 Cr. & J. 505; s. c. 1 Law J. Rep. (N. s.) Exch. 202; Crumpton v. Smith, Yelv. 5; Baddley v. Oliver, 1 Cr. & M. 219; s. c. 2 Law J. Rep. (N. s.) Exch. 76; Fairbrass v. Pettit, 12 Mee. & W. 453; s. c. 13 Law J. Rep. (N. s.) Exch. 121; Higgins v. Sargent, 2 B. & C. 348; and Lawson v. Dumlin, 16 Law J. Rep. (N. s.) C. P. 139. The following judgments were now delivered. VOL. VII. 49 Cur. adv. vult. ant. Leete v. The Gresham Life Insurance Society. POLLOCK, C. B. In this case our judgment will be for the defendThe question turns upon whether a notice of action is necessary; this point was raised by the last plea, and we think the last plea is good. The action was for not levying, but also for making a false return. Very much of the argument turned upon how far a notice was necessary in a mere case of nonfeasance; but inasmuch as the action in this case is brought for making a false return, which is a misfeasance, it appears to us not at all necessary to decide whether under any circumstances, or under no such circumstances as might arise out of a mere nonfeasance, a notice would be necessary; for in this case part of the cause of action is clearly a misfeasance in making a false return. In Smith v. Shaw, which was an action against the treasurer of one of the dock-companies, it was held that there a notice was necessary, although the act was altogether wrong. We think the doctrine in that case applies entirely to the present. There is also a case of Wallace v. Smith to the same effect. We think, therefore, that notice was necessary under the act of parliament; the last plea is therefore good, and there will be judgment for the defendant, The judgment on the demurrer to the replication will be for the plaintiffs. PARKE, B. We think with respect to the demurrer to the replication, that the plaintiffs are entitled to the judgment of the court; because substantially it is a case where the action only was for 50%. debt, and the damages were merely nominal, for the purpose of carrying costs attached to them. We think the inferior court had jurisdiction. ALDERSON, B. The word "sum" in the clause of the act we think equivalent to the word "debt." Judgment accordingly. LEETE V. THE GRESHAM LIFE INSURANCE SOCIETY.1 November 5, 1851. Onus probandi - Order of Beginning - Presumption against Fraud. The test to determine the order of beginning at a trial is to consider which party would be entitled to the verdict supposing no evidence given on either side; as the burden of proof must lie on his adversary. A new trial will not be granted because the judge before whom the cause was tried has allowed the wrong party to begin, unless injustice is shewn to have resulted from it. A declaration on a policy of life assurance alleged the contract between the deceased and the defendants to have been based on a declaration or statement in writing by the deceased, in which were set forth "the past and present state of his health and other circumstances 1 15 Jur. 1161. Leete v. The Gresham Life Insurance Society. touching his habits and life;" and that the policy contained a proviso, that "in case any untrue or fraudulent allegation were contained in the said declaration or statement, or if any fact which ought to have been stated therein had been omitted therefrom, then the policy should be void:" with an averment that in that declaration or statement there was no untrue or fraudulent allegation, and that no fact which ought to have been stated therein had been omitted therefrom. Plea, that in the said statement it was alleged that the habits of the deceased were and had been sober and temperate, which allegation was untrue; concluding with a verification. Replication, that the said allegation was not untrue; concluding to the country, &c. Semble, that on these pleadings the defendants were entitled to begin. THIS was an action by the plaintiff as executor of one Giles Poynder Clement, on a policy of assurance effected by the deceased with the defendant society. The declaration stated that in the lifetime of the testator, to wit, on the 25th January, 1850, by a certain deed-poll, sealed with the common seal of the society, being a policy of assur ance then made by the defendants; after reciting, inter alia, that the testator had proposed to effect an assurance with the society in the sum of 3501. upon his own life, for the whole continuance thereof, and had caused to be delivered into the office of the society a declaration or statement in writing, bearing date the 18th December, 1849, signed by him, whereby it was declared, amongst other things, that his age would not on his then next birthday exceed twenty-two years, and setting forth the past and present state of his health and other circumstances touching his habits and life; and reciting that the testator had agreed that the said declaration or statement should be the basis of the contract between himself and the society; and reciting that the testator had paid to the directors of the society the sum of 67. Os. 9d., as the premium or consideration for the proposed assurance until the 25th January, 1851: it was witnessed; that in case the testator should die before or upon the 25th January, 1851, or in case he should survive that day, and he or his assigns should on or before that day, and on or before the 25th January in each and every succeeding year during which he should be living, pay unto the society the sum of 61. Os. 9d., then the capital stock, funds, and property of the society should be subject and liable according and subject to the provisions of the deed or deeds of settlement of the society to pay to his executors, administrators, or assigns, within three calendar months next after proof should have been given to the satisfaction of the directors of the society of his death, the full sum of 350l., together with such further sum or sums as might, under the provisions of the deed or deeds of settlement of the society, be allotted or appropriated as or by way of bonus or addition to the sum thereby assured to be paid; provided nevertheless that in case any untrue or fraudulent allegation were contained in the said declaration or statement so as aforesaid delivered into the office of the society, or if any fact which ought to have been stated therein had been omitted therefrom, then the said policy of assurance should be void. The declaration then set out the various other conditions of the policy; and averred that in the declaration or statement so as aforesaid delivered into the office of the society there was at the time of the making of the said deed-poll contained no untrue or fraudulent allegation, and that no fact which ought to have been Leete v. The Gresham Life Insurance Society. stated in the said declaration or statement had at the time of the making of the said deed-poll been omitted therefrom. The declaration then proceeded to state in the usual way the death of the testator, proof thereof to the society, and compliance by the testator with the conditions of the policy: alleging as a breach the nonpayment by the defendants of the 350l., the amount insured. The defendants pleaded a large number of pleas, on all of which issue was ultimately joined; but it is only necessary to advert to the first, which was as follows: "The defendants say that in and by the said statement in writing in the declaration and in the said policy of assurance therein set forth, mentioned, and referred to, it was alleged by the said Giles Poynder Clement that the habits of him the said Giles Poynder Clement were and had been sober and temperate; and the defendants say that the said allegation was and is untrue; and this the defendants are ready to verify." To this plea the plaintiff replied that "the said allegation that the habits of the said Giles Poynder Clement were and had been sober and temperate was not untrue, in manner and form, &c.:" concluding to the country. At the trial, before Parke, B., each party claimed the right to begin; and the cases of Huckman v. Fernie, 3 M. & W. 505; 2 Jur. 444; Rawlins v. Desborough, 2 Moo. & R. 70; Geach v. Ingall, 14 M. & W. 95; 9 Jur. 691; and Ashby v. Bates, 15 M. & W. 589, were cited. The judge ruled this point in favor of the defendants on these grounds: first, the plaintiff in his declaration did not shew what were the statements made by the assured in the declaration which he caused to be delivered into the office of the society; but they were set out in the plea, and consequently must be proved by the defendants; secondly, the allegations in the plea were allegations of falsehood, amounting to fraud, in the assured, and must therefore be proved by the party making them, the presumption being always in favor of innocence and against fraud: as, therefore, supposing no evidence were given in support of the plea, the plaintiff would be entitled to recover, the defendants ought to begin. The defendants accordingly went into their case and adduced their evidence; but the plaintiff offered none; and the judge having summed up, a verdict passed for the defendants on all the material issues, including that raised by the first plea, and for the plaintiff on the others. M. Chambers moved for a new trial. The defendants were improperly allowed to begin. [ALDERSON, B. How would the verdict have gone supposing no evidence offered on either side?] That is the true criterion for determining the right to begin. The declaration in this cause is somewhat peculiar, and contains averments not usually found in cases of this nature; but the real issue raised by the plea to it is, were the habits of the deceased sober and temperate; the onus of proving which must lie on the plaintiff. In Huckman v. Fernie, 3 M. & W. 505; 2 Jur. 444, it was argued that the presumption was in favor of a deceased person's having led a |