ANDREW SCEALES, JOHN MARTIN, and ARCHIBOLD ANDERSON, Three of the Directors of the Caledonian Insurance Company, Plaintiffs in Error, v JOHN SCANLAN and MARY his Wife, Administratrix of EDMOND FITZMAURICE, deceased

JurisdictionIreland
Judgment Date01 January 1843
Date01 January 1843
CourtCourt of Common Pleas (Ireland)

Common Pleas.

ANDREW SCEALES, JOHN MARTIN, and ARCHIBOLD ANDERSON, Three of the Directors of the Caledonian Insurance Company, Plaintiffs in Error,
and
JOHN SCANLAN and MARY his Wife, Administratrix of EDMOND FITZMAURICE, deceased.

CASES AT LAW. 367 T. T. 1843. CommonPlea:. ANDREW SCEALES, JOHN MARTIN, and ARCHIBOLD ANDERSON, Three of the Directors of the Caledonian Insurance Company, Plaintiffs in Error, v. JOHN SCANLAN and MARY his Wife, Administratrix of EDMOND FITZMAURICE, deceased. (Exchequer Chamber.) ASSUMPSIT on a Policy of Insurance.-The declaration stated that A policy of as- Edmond Fitzmaurice, in his lifetime, on the 24th of July 1838, caused - surance effec ted on the life to be made a certain policy of insurance, whereby, after reciting that he (-)f E. F., corn- had proposed to effect an assurance, on his own life, with the Caledonian menced with a recital that Insurance Company in the sum of 1500, and had deposited in their E.F. had p pro- to effect office a declaration signed by him, dated the 20th of June 1838, which anosed assurance was the basis and condition of the contract between him and the Corn- on his own life with the C. I. patty, setting forth that his age did not exceed fifty years-that he was company, and then in a state of perfect health-that his habits of living were then, and had deposited in the office of always had been, strictly temperate, except a tendency to weak bowels the said Corn- parry a decla- only-and declaring his accession to the articles of agreement and ration signed constitution of the Company-and reciting that Fitzmaurice had paid by him, dated &c.; which the premium for one year,-it was agreed that the funds of the Company being set forth should be subject and liable to pay to his executors or assigns the sum of as the strict statement of the facts, was received as the basis and condition of the contract of assurance between said E. F. and the said Company ; setting forth, &c. (setting forth and qualifying certain of the items contained in the declaration, with respect to his age, health, habits, and his accession to the articles of agreement and constitution of the Company; and omitting the others); and the policy concluded with a proviso, "that in case any untrue or fraudulent allega tion be contained in said declaration, deposited in the office as aforesaid, or that any " information respecting the past health or habits of the party assured, or any other cirÂÂ" cumstance important for the directors to know, shall have been withheld from them, or " in case payment of the said premiums shall not be regularly made as aforesaid, or if the " interest on the part of the assured in the life shall cease and determine, or in case any "of the nullities specified in the conditions hereunto annexed, as well as in the original "proposal, then, and in every such case, this policy shall be null and void, and all monies "paid therefor shall he forfeited to the Company." The plaintiffs averred in their pleadÂÂings, that the declaration of the said E. F., so referred to in the policy, and so made by him, was in all respects true. Held (overruling the judgment of the Court of Exchequer), that all the matters contained in the proposal and declaration referred to by the policy, besides those specially set forth in the policy, were to be taken as matters of warranty, and not of mere representation ; and that therefore, the suppression by E. F. of the tact of his having been attended by another medical man besides the one named in the declaÂÂration, although not one of those matters specially set forth in the policy, had vitiated the policy, although the Jury found that the fact suppressed was neither fraudulently withÂÂheld, nor a circumstance important for the directors of the Company to know.-- DissenÂÂlientibus BRADY, C. B., RICHARDS, B., and PERRIN, J., who w ere of opinion that those matters of the declaration which were specially set forth in the policy, were alone to be taken as strict warranty, and that all the others were mere representation. and to Ix treated a such. 368 CASES AT LAW. 1500, if he should happen to die within that period: and it was further declared, that the policy was to continue in force for his life on the yearly payments of the said premium-provided nevertheless, that in case any untrue or fraudulent allegation be contained in the said declaration deposited in the office as aforesaid ; or that any information respecting the past health or habits of the party assured, or other circumstances important for the directors to know, should have been withheld from them, or in case payment of the said premiums should not be regularly made as aforesaid, or if the interest on the part of the assured in the life should cease and determine ; or in case any of the nullities specified in the conditions thereunto annexed, as well as in the original proposal, then, and in every such case, the said proposal should be null and void, and all monies paid should be forfeited to the Company. It was then averred that the conditions referred to in said policy, and annexed thereto, were that the policy should become void, if the party did not pay the yearly preÂÂmium in twenty-one days after the stipulated date ; that the assured might pass in time of peace from one part of Europe to another ; and that the policy was to be void if the assured went beyond the limits of Europe, without leave of the directors and paying an additional premium, or if the assured should die by suicide, duelling, or the hands of justice, &c. The declaration then averred, that in consideration of the premium paid for one year, and of his promise to fulfil all things in the said policy and conditions, the defendants agreed to become the assurers of the said E. Fitzmaurice of 1500, and that it should be paid after his death to his executors or assigns out of the funds of the Company. The declaÂÂration then averred that the said directors subscribed the policy, and became assurers of E. Fitzmaurice, his executors or assigns, for said sum ; and that the said declaration of said E. Fitzmaurice, so referred to in said policy as aforesaid, and so made by him as aforesaid, was in all respects true. There was then an averment of the death of E. FitzÂÂmaurice on the 20th of May 1839, and that he did not die by suicide, duelling, or the hand of justice ; that satisfactory proof had been given to the Company of his death, and that administration had been granted to the plaintiff Mary, on the 26th of November 1839, from the PrerogaÂÂtive Court. The plaintiffs then averred the observance and performance of all things in the policy and conditions contained, by the said E. FitzÂÂmaurice in his lifetime-that the stock and funds of the Company were sufficient to pay the amount of the policy ; that a request had been made by the plaintiffs to be paid the amount of the policy ; and that the defendants had notice of the premises. There was also a count for money had and received. To this declaration the defendants pleaded non assumpsit ; and issue having been joined, the case came on to be tried at the Spring Assizes of CASES AT LAW. 369 1840 for the county of Cork, before Mr. Richard Moore, Q. C., and a bill of exceptions was taken to the charge of the learned Judge. The policy of assurance, the proposal and declaration of Fitzmaurice, and the evidence of the witnesses, as set out in the bill of exceptions, will be found fully stated in the 5 Ir. Law Rep. pp. 139-148. It also appeared in the bill of exceptions, that the Counsel for the plaintiff called upon the defendant's agent to produce, pursuant to notice, the proposal and declaration of Fitzmaurice, being the same as that in the policy mentioned, and which was then and there produced by the said agent; and it was then and there consented and agreed, that the same was the said declaration and proposal alluded to, and made and signed by E. Fitzmaurice ; and the same was then given in evidence and read. The Jury found a verdict for the plaintiffs at the trial; and three exceptions were taken to the charge and direction of the learned Judge, which were argued and overruled in the Court of Exchequer. The case came before this Court on a writ of error on the judgment of the Court below ; and the second and third exceptions having been abandoned by the Counsel for the plaintiffs in error, the subject-matter of the first exception alone was discussed, viz., whether a statement made by E. Fitzmaurice, in answer to one of the questions contained in the said declaration, respecting his usual medical attendant, was matter of warranty, or of mere representation.* Mr. Christopher Coppinger and The Attorney-General, for the plainÂÂtiffs in error. Mr. Michael Barry, and Mr. Collins, Q. C., for the defendants in error. [The arguments and the authorities cited were the same as those relied on by the Counsel in the Court below, and will be found fully discussed in the following judgments.] LEFROY, B. In this case, in consequence of the absence of my Brother Jackson, M. T. 1843. who was not present at the argument, having been one of the Counsel engaged in the cause in the Court below, it falls to my lot to begin. The case comes before the Court on a writ of error, brought by the defendants on a judgment of the Court of Exchequer, before which it came on a bill of exceptions to the charge of the then Solicitor-General, Mr. Moore, before whom it was tried at the Cork Assizes, where the plaintiff obtained a verdict, and afterwards a judgment, on argument of • Vide ante, 5 Ir. Law Rep. 148. 370 CASES AT LAW. the exceptions. The questions in the case arose upon the trial of an action of assumpstit, brought on a policy of assurance, entered into by the late Edward Fitzmaurice, on his own life, and which was by him assigned to the plaintiff.-[ His Lordship here stated the circumstances of the case, as they appear on the bill of exceptions]. The main question in the...

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