Exch. of Pleas, 1834.

EDWARDS v. DIGNAM.

Where the writ THE defendant, on the 4th of October, was served with

was in trespass,

but indorsed for

a debt, and the declaration delivered was in an action of trespass on the case, although no objection was taken to the writ until after the declaration was delivered, the Court set aside both the writ and declaration.

a writ in an action of "trespass," indorsed for a debt of 117. 12s. 9d., and a declaration was delivered on the 29th

of October, in an action of "trespass on the case on promises."

Petersdorff, on the 2nd of November, obtained a rule to set aside the proceedings, on the ground that the declaration varied from the writ of summons; and cited King v. Skeffington (a).

Burney shewed cause. The objection to the writ, which was apparent, ought to have been taken sooner, as the objection was apparent on the writ itself. The declaration in assumpsit was regular, as the action was for a money demand. At all events, the rule should be confined to setting aside the declaration.

BAYLEY, B.—The writ might have been objected to in the first instance, but it was not. Upon the filing of the declaration, it appeared to vary from the writ, and the objection is then taken. It seems to me that there is an objection both to the writ and the declaration.

The rest of the Court concurred.

Rule absolute.

(a) 1 C. & M. 363.

Exch. of Pleas, 1834.

WHATLEY V. MORLAND.

aside the certificate of an arbi

trator ought to specify the grounds of objection to it. On a cause being referred,

the plaintiff at

the arbitrator

without giving

ASSUMPSIT on a bill of exchange. The cause was A rule to set referred at the last Gloucester Assizes, and the arbitrator certified that a verdict should be entered for the plaintiff. Humfrey obtained a rule nisi for staying or setting aside the certificate, on the ground that the plaintiff had attended by counsel before the arbitrator, without having given notice to the defendant. It appeared from the affi- tended before davits on both sides, that there had been some conversa- by counsel, tion between the parties, as to the plaintiff's intention to employ counsel, but no distinct notice thereof was given to the defendant. The plaintiff attended before the arbitrator by counsel, and the defendant, on finding that the plaintiff attended by counsel, applied for an adjournment, to give him time to instruct counsel; but the plaintiff refused to consent, unless the defendant paid the costs of the day. The defendant then delivered a written protest, and the arbitrator proceeded ex parte. The rule did not state the grounds of the motion.

J. D. Whatley shewed cause.-The rule ought to have specified the grounds of objection to the award, In Watkins v. Phillpotts (a) it was held, that a rule to set aside an award should specify the grounds of objection to it. [Bayley, B.-I think the grounds of the motion ought to have been specified in the rule, but that may be amended.] He then contended that there was sufficient notice of the plaintiff's intention to attend by counsel, and, therefore, that the defendant could not have been taken by surprise.

BAYLEY, B.-It is not reasonable that one party should have the assistance of counsel, and the other not, without

(a) 1 M Clel. & Y. 394.

the defendant notice of his in

tention so to do.

The defendant requested an a

journment, to

ad

give him time sel; but the plaintiff refused

to instruct coun

to consent, un

less the defen

dant paid the costs of the day.

The arbitrator proceeded ex parte, and certified in favour of

the plaintiff. motion, stayed

The Court, on

the certificate,

and referred the

cause back to the arbitrator,

and disallowed

the plaintiff' his costs of the day.

1834.

WHATLEY

Exch. of Pleas, at least having the option of employing counsel or not, at his discretion. Distinct notice ought to have been given; and I think, therefore, that the plaintiff was not entitled to the costs of the day. The rule must be made absolute; and, as the time for making the award has expired, the rule may be enlarged.

บ.

MORLAND.

The rest of the Court concurring

The rule was made absolute, without costs; the defendant consenting to the time for making the award being enlarged to the first day of Easter Term, and the certificate to be stayed, and the cause referred back to the arbitrator. The costs of the application not to be costs in the cause.

tion and statement as to

DUCKETT v. WILLIAMS.

By a declara- THIS was an action on a policy of insurance on the life of one John Stephenson, brought by the Provident Life Assurance Company against the Hope Insurance Company. The following declaration and agreement had been signed on behalf of the plaintiffs before making the insur

health, &c., signed by the assured, previous to effecting a policy on a life, it was agreed, that, if any untrue

averment was contained therein, or if the facts re

quired to be set forth in the proposal (annexed) were not

truly stated, the

ance:

"We, Scrope Bernard Morland and George Duckett, trustees of the Provident Life Office, do hereby declare and set forth, that the herein-named John Stephenson is now in good health, and has not laboured under gout,

premiums should be forfeited, and the assurance be absolutely null and void. The statement as to the health of the life was untrue in point of fact, but not to the knowledge of the party making it:-Held, that the premiums were forfeited, and could not be recovered back.

1834.

DUCKETT

ย.

WILLIAMS.

dropsy, fits, palsy, insanity, affection of the lungs or other Exch. of Pleas, viscera, or any other disease which tends to shorten life, and that his age does not exceed forty-one years; that we have an interest in the life of the said John Stephenson to the full amount of 50007.; and we agree that the declaration or statement hereby made shall be the basis of the agreement between ourselves and the Hope Assurance Company; and that if any untrue averment be contained herein, or if the facts required to be set forth in the above proposal be not truly stated, all monies which shall have been paid upon account of the assurance, made in consequence hereof, shall be forfeited, and the assurance itself be absolutely null and void."

The defence was, that the life was not insurable; and the jury upon the trial having found that it was not insurable, the Court discharged a rule which had been obtained for a new trial, on the ground of the verdict being against the evidence. In the course of the discussion it was argued that the plaintiffs were at all events entitled to a return of premiums. The plaintiffs had not claimed a return of premiums at the trial; but it was subsequently agreed that a second action should be tried to determine this point. On the second trial, the jury went into the question whether the life was insurable or not, and were of opinion that the life was insurable, and found for the plaintiffs. A rule for a new trial having been obtained by Pollock on behalf of the defendants, the question was argued by the

Solicitor-General and Kelly for the plaintiffs, and by

F. Pollock and R. V. Richards for the defendants.

It was finally agreed that the Court should look at the evidence and draw their own conclusion as to the facts.

Exch. of Pleas, As the judgment of the Court proceeded entirely on the

1834.

DUCKETT

v.

WILLIAMS,

meaning of the expression "untrue account," and "not truly stated," in the declaration and agreement signed by the parties, it is not necessary to state the arguments.

Cur. adv. vult.

The judgment of the Court was now delivered by

Lord LYNDHURST, C. B.-This was an action on a policy of insurance on the life of John Stephenson. Upon his death an action was brought to recover the amount of the sum insured. The defendants' case was, that the life was not insurable at the time of the insurance; and, the jury being of that opinion, the defendants had a verdict. The Court were of opinion that they ought not to disturb that verdict. On the discussion of the rule for a new trial, it was contended that the plaintiffs were entitled to a return of the premiums if the life were not insurable, but it turned out that the counsel had omitted to claim the return of the premiums at the trial. It was subsequently arranged that this question should be tried in another action. On a motion for a new trial in the second action, it was agreed that the Court should look into the evidence, and form their own conclusion as to the matters of fact. We have done so; and we have come to the conclusion, that, at the time when the policy was effected, Mr. Stephenson had upon him a disease which tended to shorten life. It follows, that the facts set forth in the proposal were not truly stated, and the question then turns entirely on the construction of the declaration and agreement made by the assured before the policy was effected. The point is, whether the facts stated were not truly stated within the meaning of the declaration and agreement. It was contended, on behalf of the plaintiffs, that the words must mean "truly" or "untruly," within the knowledge of the party making the statement; and that if the party