Common Pleas. SUPPLE v. CANN. action upon the policy; but upon that assumption an argument H. T. 1858. was founded by the defendants, that if he did not intend that the Company should rely upon the Statute of Limitations, it was his duty, by his order, to have provided that they should not rely thereon; that inasmuch as he did not do so, we should not allow this replication, but instead thereof should put the parties to the expense and delay of sending them back into the Court of Chancery for further directions. We think that we are bound to carry out the intention of the Legislature, and that when we have reasonable grounds for arriving at the conclusion that the defendants would be restrained in another Court from setting up this defence, we ought not to put the plaintiff to the expense of a suit in that Court; and, therefore, upon what we consider to be the proper construction of the terms of this Act of Parliament, we hold that the facts stated in this replication are sufficient to avoid the plea. Cases have been strongly relied on by the defendant, which do not appear to us in point. The principal one is Hunter v. Gibbons (a). That was an action of trespass, for making excavations under the plaintiff's land, for mining purposes. The plea was the Statute of Limitations. The replication to this was the fraudulent concealment by the defendant, for more than six years; to which the defendant demurred, and the demurrer was allowed, not upon the ground that the plaintiff ought to have gone for relief to the Court of Chancery, but, as it was put expressly by the Lord Chief Baron, that a Court of Equity would not prevent a defendant from setting up this defence under the statute. That case, therefore, is no authority, with respect to the present. have looked into all the cases which have been decided on this Act; but I find none which are exactly analogous to the present, in relation to pending Chancery proceedings. However, we all know the common case where the Statute of Limitations is not pleadable in the Court of Chancery to a claim for the intermediate arrears of interest, by a subsequent incumbrancer, in case a receiver be in possession at the suit of a prior incumbrancer. In such a case, we are not aware that a Court of Law would not exer (a) I Hurl. & Nor. 459. I Common Pleas. SUPPLE v. CANN. H. T. 1858. cise a similar jurisdiction. The case of Wood v. Dwarris (a) we have formed is an authority, in support of the view which relative to this case. That was an action upon a policy of insurance, as here. The plea in answer to this was, that all the statements of facts therein contained were false, whereby the policy was forfeited. To that the replication was, that the Company, before entering into the policy, published a certain prospectus, by which they stated that they would not impeach their policies even upon the ground of fraud. The Court held that that was a good replication. It may be said that it was part of the contract there, and that that decision therefore was no authority in the present case; but it shows how the matter set forth in the plea was capable of being avoided upon equitable grounds; and we have been unable to find any case in which the Courts have refused to allow an equitable replication, where the matter of the replication would have been available in the Court of Chancery. We, therefore, think that the omission of the Rolls order to provide for restraining the defendants from relying upon the Statute of Limitations is no answer to the right of the plaintiff to reply to that plea the pendency of the Chancery proceedings, and that the demurrer to that replication must therefore be overruled. With respect to the demurrer taken to the other defence, pleaded with reference to the allegation of waiver. That defence alleged that the policy contained a proviso that it should be competent for the insured, notwithstanding the lapse occasioned by the non-payment of the premium within the fifteen days, to renew the policy within three months, by performing the certain matters and things pointed out, and in no other way; and that the plaintiff had not performed any of such matters and things. That only shows that, in one way there might be a good revival; but though this breach of a contract, which is not under seal, might have been waived in a particular way, and the Company would have been obliged to waive, in case the other party performed the requisite acts, there was nothing to prevent the Company from doing the same thing in any other way. And accordingly, (a) 11 Exch. 493. Common Pleas. SUPPLE in order to meet either view of the case, the plaintiff relied upon H. T. 1858. the new agreement, both as a waiver of a breach of the original contract, and as a fresh simple contract between the parties. Therefore, for these reasons, we consider that the demurrer to this defence must be allowed, and that the demurrer to the equitable replication must be overruled. Judgment for the plaintiff. V. CANN. ROE and Wife v. LALOUETTE. M. T. 1858. c. 93 (Lord resentative of been acciden tally killed by summons and THIS was an action at the suit of the administratrix of Mary Boyle, In an action brought under deceased, to recover compensation against defendant for having the 9 & 10 Vic. caused her death, and was brought under the 9 & 10 Vic. c. 93. Campbell's Act), by the The summons and plaint alleged that, after the passing and coming personal repinto operation of the 5 Vic., sess. 2, c. 24 ("An Act for improving one who had the Dublin Police"), and of the 9 & 10 Vic., c. 93 ("An Act for the instrumencompensating the families of persons killed by accidents"), the tality of the defendant, on Saturday, the 2nd of May 1857, early in the after- defendant, the noon, between the hours of one and two o'clock in the afternoon of plaint alleged that the desaid day, broke and trained, by driving in a certain carriage called fendant's horse, while a break a certain horse in Sackville-street, being a certain public being driven and trained by place and thoroughfare in the city of Dublin, within the police him in a public place or district of Dublin metropolis, to the annoyance of great numbers thoroughfare, of the passengers who were then going about their lawful business in said street and thoroughfare, amongst whom was the said Mary Boyle; that said horse, while so being trained and broken by the defendant, in said place and thoroughfare, and within said district, with great force and violence, then and there ran against in said city of the Dublin Police Act (5 Vic., sess. 2, c. 24, s. 14), ran against and injured the deceased, whereby she shortly afterwards died. No negligence on the part of the defendant was alleged :-Held, bad, for want of alleging either negligence, or that the death of the deceased was the necessary result of the illegal act of the defendant. Quare, whether, in the absence of the former, the latter averment would render the action maintainable? Common Pleas. ROE v. M. T. 1858. and crushed and greatly bruised and injured the said Mary Boyle, who, by reason of said violence and injuries, shortly afterwards died, leaving a family, that is, leaving the plaintiff Catherine, her LALOUETTE. only child, her surviving. The second count averred negligence. The defendant demurred to the first count, because it alleged no wrongful act, neglect or default by the defendant. Nov. 17. D. C. Heron and J. D. Fitzgerald, in support of the demurrer, contended that Lord Campbell's Act (9 & 10 Vic., c. 93) did not apply, except in cases where an action would lie at the suit of the injured party, in case death had not resulted; that negligence was the gist of such an action, and that, notwithstanding that the defendant might have been acting in contravention of the Dublin Police Act (5 Vic., sess. 2, c. 24, s. 14), it was not alleged that the accident was the necessary result of the illegal act. They cited Hill v. Balls (a); Assop v. Yates (b); Lynch v. Nurdin (c); Davis v. Mahon (d); Ashton v. Devin (e). S. Ferguson and R. Armstrong, contra, contended that the injury was the result of the illegal act of the defendant, and that the action was maintainable without an averment of negligence. They cited Scott v. Shepherd (f); Dale v. Jones (g); Cope v. Rowlands (g); Michel v. Allestree (h). Cur. ad. vult. MONAHAN, C. J., delivered the judgment of the Court. In this case an action has been brought under Lord Campbell's Act (9 & 10 Vic., c. 93), by the plaintiff, who is the administratrix of the deceased, to recover damages from the defendant for having caused her death. One count of the summons and Common Pleas. ROE v. plaint has been demurred to. This count states-[His Lordship M. T. 1858. read it]. The section of Lord Campbell's Act under which the action has been brought is as follows:- "That whensoever the "death of a person shall be caused by wrongful act, neglect or LALOUETTE. "default, and the act, neglect or default is such as would (if "death had not ensued) have entitled the party injured to main"tain an action and recover damages in respect thereof, then "and in every such case the person who would have been liable, "if death had not ensued, shall be liable to an action for damages, "notwithstanding the death of the person injured, and although the "death shall have been caused under such circumstances as amount "in law to felony." The meaning of this clause plainly is this, that where, by the act of another, a death has ensued, the representative of the deceased may maintain an action against the party who caused the death, in such cases as the deceased, in case he had survived, might have maintained an action for the personal injury; and the question is the same as it would have been in case the deceased had been alive and was now bringing the present action to recover damages for the injury she sustained. It is not stated, in the summons and plaint, that the defendant himself drove the horse against the deceased; it is only alleged that he was driving the horse in the break, and that the horse, with violence, ran against her; all which is consistent with the defendant's' driving carefully and quietly, but that the horse, being frightened by the act of the deceased or some third person, ran against her, without any negligence or want of care on the part of the defendant. There is nothing in this count of the summons and plaint inconsistent with the death having been caused by mere accident or misadventure, which does not constitute homicide in the Criminal Law, or give a cause of action in case of personal injury. The only case relied on by the plaintiff is Michel v. Allestree (a). In the report of the case in Leonard, the form of declaration is given. It was an action on the case, and the plaint alleged that "The defend"ants, in Lincoln's-Inn Fields, a place where people are always (a) 2 Leon. 172; S. C., 3 Keble, 650. |