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T. T. 1858.
Common Pleas.

CAREY v.

GRISPI.

BALL, J.

I have only to say that, referring to the report of Moffatt v. Burrowes, I do not appear to have gone at large into the reasons for my opinion in that case. That was decided more than four years ago; and, whether I gave my reasons at large, I do not know, having no recollection of the case independently of the printed report; but it is clear that my opinion then was, that the judgment of my LORD CHIEF JUSTICE upon that occasion was right; and, having heard the arguments of Counsel upon the present occasion, I can see no reason for departing from the judgment which I then gave.

Demurrer overruled.

M. T. 1857.

Nov. 20.

H. T. 1858.

Jan. 15, 16.

E. T. 1858.

April 21, 22.

ARMSTRONG v. TURQUAND,

T. T. 1858. Official Manager of the Deposit and General Life Assurance Co.

June 12.

To an action THIS was an action brought by the plaintiff, as administratrix of brought by the

administratrix Denis Armstrong, deceased, against the defendant, as the Official of a party

who had ef- Manager of the Deposit and General Life Assurance Company, upon fected a policy

upon his own

life in the D. and G. Assurance Co., and which policy contained a proviso that, in case the said assured had been guilty of fraud in procuring it, &c., the policy should be void, and all moneys paid in respect of it should be forfeited to the Company, the latter pleaded that the party assured had, at the time of effecting the policy, in conjunction with the agent of the Company, fraudulently concealed the fact of his having met with an accident, from the effects of which he was then suffering paralysis, and had withheld all knowledge from the Company of the uninsurability of his life. The plaintiff replied that the Company, after they had knowledge of the facts pleaded, received a second premium from the insured, and thereby elected to affirm the policy.

Held, upon demurrer to the replication (MONAHAN, C. J., dissentiente), that the meaning of the proviso was that the policy should be void in the particular event, in case the Company should elect to treat it so; and that inasmuch as they had elected to treat it as subsisting, by the receipt of the subsequent premium, they were liable for the amount.

Held also, that although all the terms of the policy were not fully set forth in the pleadings, the Court was at liberty, under sections 63 & 64 of the Common Law Procedure Amendment Act 1853, to read the original document as if incorporated in the defence, upon its being marked, for the purpose of identification, by the officer of the Court.

Common Pleas.

ARMSTRONG

a policy under seal, dated the 17th of December 1852, for the M. T. 1857. sum of £999. 19s., effected with said Company by and upon the life of Denis Armstrong, who died upon the 28th of August 1854. The summons and plaint was in the usual form.

บ.

TURQUAND.

The defendant pleaded, first, that in and by said policy it was provided that the said policy was upon the express condition that, in case the said assured had been guilty of fraud in procuring the said policy, the said policy should be void, and all moneys paid in respect thereof should be forfeited to the Company; that one Patrick Walsh was the person, who proposed to the Company for the said policy, on behalf of the said Denis Armstrong, and was the general agent of the said Denis Armstrong in and about the obtaining the said policy from the Company; that before the time for the proposing of the said policy, the said Denis Armstrong had, for the purpose of effecting an insurance on his life, furnished to the Medical, Legal and General Mutual Life Assurance Society a declaration, in writing, dated the 13th day of November 1852, containing, amongst other things, a statement that the said Denis Armstrong had never had any accident requiring confinement, and a statement that the said Denis Armstrong was enjoying good health; that the said Denis Armstrong, before the time of the proposing for the said policy, had been examined for the purpose of insurance by the medical referee of the said Medical, Legal and General Mutual Life Assurance Society; that the said Denis Armstrong had been and was guilty of fraud in procuring the said policy, in this:-that the said Patrick Walsh (being such general agent as aforesaid) fraudulently induced the Company to believe that the said said statements respectively were truly applicable to, and correctly represented, the condition of the said Denis Armstrong as it existed at the time of the proposing for the said policy; whereas the said Denis Armstrong had, at that time, had an accident requiring confinement, and at that very time was confined by the said accident, as the said Denis Armstrong and Patrick Walsh well knew; and whereas the said Denis Armstrong was at that very time suffering from paralysis, as the said Denis Armstrong and Patrick Walsh well VOL. 9. 5 L

M. T. 1857. knew; and further, in this, that the said Patrick Walsh, at the Common Pleas. time of proposing for the said policy, fraudulently represented

ARMSTRONG v.

to the Company, and induced them to believe, that no material TURQUAND. change had at that time taken place in the state of the said Denis Armstrong's health since the said Denis Armstrong had been so examined as aforesaid by the said medical referee of the said Medical, Legal and General Mutual Life Assurance Society; whereas a material change, caused by an accident, had at that time taken place in the said Denis Armstrong's state of health, since he had been so examined, as the said Denis Armstrong and Patrick Walsh well knew; and whereas a material change, caused by an attack of paralysis, had at that time taken place in the said Denis Armstrong's state of health, since he had been so examined, as the said Denis Armstrong and Patrick Walsh well knew; and further, in this, that the said Denis Armstrong had within a short time, to wit, less than a week before the time of the proposing for the said policy, met with an accident of a serious and material character, from the effects of which he was suffering at the respective times of the proposing for and the making of the said policy, as the said Denis Armstrong and Patrick Walsh, at the said respective times, well knew; and the said Denis Armstrong and Patrick Walsh fraudulently concealed this fact, and withheld all information respecting said accident from the Company; and further, in this, that the said Denis Armstrong had, a short time, to wit, less than one week, before the time of the proposing for the said policy, been seized with an attack of paralysis, from which, at the said last-mentioned time, and at the time of the making of the said policy, the said Denis Armstrong was suffering, as the said Denis Armstrong and Patrick Walsh, at the said times respectively, well knew; and the said Denis Armstrong and Patrick Walsh fraudulently concealed this fact, and withheld all information respecting the said attack of paralysis from the Company; and further, that at the time of the proposing for the said policy, and at the time of the making of the said policy, the said Denis Armstrong was in such a state of health that his life was not insurable at the premium made

Common Pleas.

ARMSTRONG
V.

payable by the said policy (being the ordinary rate of premium), M. T. 1857. as the said Denis Armstrong and Patrick Walsh, at the said respective times, well knew; and the said Denis Armstrong and Patrick Walsh fraudulently concealed that fact, and withheld all knowledge TURQUAND. respecting such insurablility of the said Denis Armstrong's life from the Company; and further, that at the respective times of the proposing for and the making of the said policy, the said Denis Armstrong was in such a state of health that his life was wholly uninsurable, as the said Denis Armstrong and Patrick Walsh, at the said respective times, well knew, and the said Denis Armstrong and Patrick Walsh concealed that fact, and withheld all knowledge respecting such uninsurability of the said Denis Armstrong's life from the Company.

The second defence was to the effect that one Patrick Walsh was really the person assured, and averred fraud on the part of said Walsh, as before imputed to Armstrong.

The third defence was to the effect that Armstrong had met with an accident, which materially affected the risk, and that Walsh and Armstrong knew of said accident, and did not communicate it. The fourth defence was, that Armstrong had attacks of paralysis, as he and Walsh knew; that such attacks were material to the risk, and were not communicated.

The fifth defence was, that the policy was obtained through fraud and covin.

The plaintiff replied to the first defence, that the Company afterwards, and before the second premium upon said policy became due, discovered and were made acquainted with the frauds in said defence mentioned; but they did not, on discovering and becoming so acquainted with said frauds, at any time afterwards during the lifetime of the said Denis Armstrong, disaffirm and avoid said policy, but affirmed and elected to hold the same, and, in the lifetime of the said Denis Armstrong, received the said premium subsequently becoming due thereon, after having so discovered and been made acquainted with said frauds.

The plaintiff replied similarly in substance to each of the other defences before referred to.

M. T. 1857.
Common Pleas.

ARMSTRONG

V.

The defendant demurred to each of the replications; assigning as causes of demurrer that the replications did not disclose any ground of reply good in substance, because they relied on and alleged an TURQUAND. affirmation of a void contract, without showing any re-execution of the policy, or showing any new binding contract of assurance for a new consideration; and because they were a departure from the summons and plaint, and set up a new and different contract; and because such new contract, if made, was a nudum pactum; and because such an affirmation or adoption, as alleged, was no answer at Law to a defence of fraud; and because such new contract was not shown to be under seal, and the said Company were a corporation; and because the said replications confessed the grounds of defence relied on, and did not avoid them, and showed, if any, an equitable answer only to the defences.

C. R. Barry and Macdonogh, in support of the demurrer, contended that the policy was wholly avoided ab initio by the fraud, and was incapable of being set up by the acceptance of premiums, after knowledge by the Company of the facts; that the contract being under seal, the breach of the proviso was incapable of waiver; that the acceptance of the premiums could not be relied upon as evidence of a new contract, because the Company could only contract under their common seal; and that, even if such new contract could be supposed to have existed, the form of the pleadings precluded the plaintiff from relying thereon in the present action. They cited Ellen v. Topp (a); British Industry Life Assurance Co. v. Ward (b); Billiter v. Young (c); Simpson v. Accidental Death Life Assurance Co. (d); Farran v. Ottiwell (e); West v. Blakeway (f).

H. Fitzgibbon and Ball, contra, contended that the contract was only voidable at the election of the Company, who by their acts had affirmed it, and that the breach was capable of being waived.

(a) 6 Exch. 424.

(b) 17 C. B. 744.
(d) 2 C. B., N. S., 257.

(c) 6 Ell. & Bl. 1.

(e) 10 Cl. & Fin. 319.

(f) 3 Sco., N. R., 216.

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