1862. ESCOMBE and Another v. JARVIS. The jury agreed on this view, and Macaulay thereupon yielded to a the part of the consignor, giving Nonsuit. was no evidence of a breach of contract or of damage through negligence of the defendant. London Sittings. A debtor hav ing given his creditor a bill, and obtained an advance at the same time of a sum smaller than the amount which had been paid: Held, in an action to recover the full amount on the bill-the holder having continued creditor to a far larger amount-that the question was, whether the bill had been deposited for a specific advance of the sum which KER v. BULLARD AND ANOTHER. DECLARATION, on a bill of exchange for 1,0007., dated 12th December, 1861, drawn by J. Lacy on Foster, Lacy & Co., payable to the defendants seven days after date, and by them indorsed to the plaintiff. Plea: (inter alia) that the defendants indorsed the bill in blank for the accommodation of Lacy, who delivered it to the plaintiff as a security for the sum of 500l. lent by him to Lacy, who had afterwards repaid that amount, and that there was no other consideration. There was also a plea that the plaintiff, without the assent of the defendants, had agreed to give time to Lacy to pay by instalments. Issue. Karslake and Barnard for the plaintiff. Honyman (with him Lush and Murphy) were for the defendants. Foster, Lacy & Co. were insurance brokers, and the had been paid, plaintiff was in the habit of making them advances upon given generally the security of their bills, which he held to the amount of or had been on account. 17,000l. The case for the defence was, that on the 13th December, 1861, John Lacy took the bill in question to the defendants and asked them to put their names on it for his accommodation that he might get it discounted, and that he got an advance of 5007., and gave at the same time his post-dated cheque for 5501. (dated 16th December, 1861), the 501. being for interest. 1862. KER v. BULLARD John Lacy was called to prove this defence, and that the cheque was paid. But on cross-examination admitted that and Another. he had 1,2007. from the plaintiff on the same day, and next day 2,000l. more, for which, however, he said the plaintiff had bills to a much larger amount as security. He believed that he had not had more than 5007. on this particular bill, but he admitted that he had never asked for the bill back again. The plaintiff was called and stated that on the 16th December, 1861, John Lacy came to him for an advance, then owing him 3,500l., that he refused to make any further advance without security, and that then the bill was given generally on account, and not for a specific advance of 5001. The cheque, he said, was not post-dated, but was given afterwards on the day it bore date, and before the bill was given, generally on account, and not in repayment of the particular advance. On the 26th December, he had advanced to Lacy 510l. more without any further security at that time. Between that time and the failure of Lacy's firm in February, there were other advances and other securities, and they then owed him 3,6007. In March, 1862, the defendants were privy to an arrangement with Lacy's liquidators to pay the plaintiff 1,000l. a month, and this bill was set down for liquidation among others. At the close of the case, COCKBURN, C. J. (to the jury).—As to the latter part of the case, the arrangement with the drawers, if it was with defendants' knowledge and assent, they would still be liable. As to the other defence the question is, whether the bill was deposited on a specific advance of 500l., or was it given generally on account? That it should have been 1862. KER v. BULLARD drawn at seven days is strong to support the former view; that it should never have been demanded back is strong to support the other view; but that is the question for you; and Another. and if you are satisfied that the bill was given generally on account, find for the plaintiff (a). (a) Had the defendants brought trover for the bill, the question would have been in substance the same; and, of course, the plaintiff could not have set off his debt. Had he indorsed over the bill, and had the defendants been forced to pay it, and then sued the now plaintiff for money paid (Bleaden v. Charles, 7 Bing. 246; Asprey v. Levy, 16 M. & W. 851), the latter might have set off his debt; an ap Verdict for the plaintiff. parent inconsistency, arising from the effect of the statutes of set-off, but no real legal inconsistency; for the question in one action would be debt, and in the other property; and an action of trover against a person claiming as indorsee, and an action by the person so claiming as indorsee on the bill, raise in this respect the same question, viz., his right to retain the bill as holder; Fancourt v. Bull, 1 B. N. C. 681. London Sittings. A person pro- "Has your life been pro posed at any other office, FOWKES AND ANOTHER V. THE MANCHESTER AND DECLARATION, by executors of one Henry Fowkes, Plea that the policy was effected by the testator on the basis of a certain proposal, and on condition that his answers to certain questions should be true. Averment: that divers of his answers were [designedly] untrue. Issue. and if so, has it been accepted, and at what rate?" answered, "It has been proposed and accepted at the ordinary rate." It appeared that it had been proposed at one office and declined, and at another office, where he had been examined and approved by the medical man, but nothing further had been done. And it also appeared that before the proposal he had had a slight attack of suppressed gout:-Held, that this answer was not untrue if he had not been sensibly afflicted with gout, but merely had some symptoms which a medical man could detect as denoting the presence of gout in the system: but semble, that the other answer was untrue, or at all events was a suppression of a material fact. 2. A similar plea, but omitting the word "designedly." 1862. Demurrer and issue (a). FOWKES 3. That the testator fraudulently obtained and induced and Another the defendants to execute the policy. Issue. v. THE MAN LONDON LIFE INSURANCE Co. 4. That he, by means of the suppression of a material CHESTER AND fact which the defendants ought to have been informed of, as he well knew, caused them to execute the policy. Issue. Huddleston, Karslake, and Prentice, for the plaintiffs. Shee, Serjt., Mellish, and T. Jones, for the defendants. The policy was effected by Fowkes in 1860. He was then forty-nine years of age, and the printed proposal contained the following questions, which he filled in with answers, as follow: Q. Have you ever been afflicted with gout? A. No. Q. Has the life been offered at any other office, and if so, has it been accepted, and at what rates? A. It has been offered and accepted at the ordinary rate. These were the answers relied upon as untrue; and Shee, Serjt., opening the case for the defendants (who began) said, he should prove that both the testator's answers were false; and he thought he should also prove that they were false to his knowledge. As to the first answer, a surgeon, who had attended the deceased, was called to prove that, in 1858, he had attended him for "suppressed gout," for which he gave him medicines to draw it out, and which he so far succeeded in doing; that the disease showed itself in redness and tenderness in the great toe. He admitted, however, that it was a "very slight attack," and could not undertake to state that he had told the patient what it was. He stated, however, that in March, 1860 (before the policy), he at(a) Vide p. 444, post. tended the testator again for the same disease, and treated him for it, and that afterwards, in June in the same year, he died of that disease; the last attack being in "an aggravated form of suppressed gout," and lasting only four days. He described the symptoms, one of which was a spitting of blood. There was, however, no clear or positive evidence that the deceased knew he had the gout. The widow was called, and described her husband as temperate and healthy, and declared she did not know he had the gout, though she admitted that his toe was inflamed and he could not wear his ordinary shoes. She stated that he died of the rupture of a blood vessel. Several relatives and friends of the deceased described him as temperate, and declared that they never knew or heard of his having the gout. Huddleston for the plaintiffs.-Upon this evidence submitted, that it did not appear that the deceased had been "afflicted with gout," which were stronger words than 'subject to," the words in Chattock v. Shaw (a), and implied some sensible affliction, or, at all events, that there was no evidence that the deceased knew that he was afflicted with gout. As to the second answer, it was proved on the part of the defendants, that, in 1848, the deceased had proposed his life at a certain office and had been declined; but it was also proved, on the part of the plaintiffs, that he had proposed to a third office, and that he had been examined by one of their medical officers (although it did not clearly appear whether this was not as a volunteer), and pronounced by him to be a fair insurable life. Upon this, Huddleston, for the plaintiffs, contended that the answer was true, because it was the fact that the testator had proposed his life, and that it had been accepted; and Shee, Serjt., for the defendants, contended, that the (a) 1 Moo. & Rob, 498. |