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56

Review: The Law of Fire and Life Insurance, and Annuities.

the life insured, necessary to support a policy.

the insurers never availed themselves of their ` objection. Verdict for defendant. Barber v. Morris, 2 Moo. and Mal. 62.

terest in the life of his debtor, at least where "A bona fide creditor has undoubtedly an inhe has only the personal security of the debtor, and this interest is insurable within the statute.

"An insurance was effected on the life of

"Besides the most obvious and ordinary mode of insurance, that of a person insuring his own life in a sum payable to his personal representatives, much of the business of the offices consists of nominee insurances, that is, where a person insures the life of another. As Lord Newhaven, from the first of December, life insurance became more generally extended, 1792, to the 1st of December, 1793. In an it appears that, like many other beneficial prac-action on the policy, the only question was as tices, it became subject to abuse. Persons were in the habit of insuring the lives of others which it was contended was not sufficient to to the plaintiff's interest in the life insured, with whom they had no connection, and intake this case out of the above statute. It apwhom they had no interest, merely by way of peared that Lord Newhaven was indebted to gambling speculations; and it requires no very the plaintiff and a Mr. Mitchell in a large great discernment to see that such a practice was pregnant with serious mischief, and held sum of money, part of which debt had been out dangerous temptations, on the one hand, assigned by them to another person; the remainder being more than the amount of the to unprincipled speculators, and imminent danger to the unfortunate persons who might between the plaintiff and Mitchell, agreed by sum insured, was, upon a settlement of accounts happen to be selected by them as subjects of them to remain to the account of Mitchell insurance. The legislature became so convinced of the evil, that the practice of life in- only. Lord Kenyon was of opinion that this surance has since been regulated by act of debt was a sufficient interest. He said, 'It was singular that this question had never been parliament, whereby these insurances without directly decided before; that a creditor had interest are considered void." certainly an interest in the life of his debtor,

The stat 14 Geo. 3, c. 48, s. 1, is then because the means by which he was to be sa

inserted.

:

tisfied might materially depend upon it, and that at all events the death must in all cases in some degree lessen the security. The jury found a verdict for the plaintiff. Anderson v. Edie, 2 Park, 640. It may be observed that this note is very short, and not very satisfactory; because if the plaintiff had in fact assigned over his interest in the debt to Mitchell before the death of the assured, it is difficult to see how any insurable interest within the statute remained in him, unless we assume that the debt still remained legally due, and recoverable by the plaintiff Lord Newhaven, the latter having no notice of the assignment of the debt; in such settlement of accounts, or upon the principle of Tidswell v. Angerstein, Peake, 151, we consider the plaintiff to be in the situation of a trustee. If a debt is amply secured by mortgage or otherwise, it would be very difficult to establish such an interest as would entitle the party insuring to recover, because the above act declares that greater sum shall be recovered from the insurer than the amount or value of the interest of the insured in the life insured.' Perhaps a case of this kind is not likely to occur in practice, as it is not usual to insure by way of collateral security, except when the principal se

"Very few questions have arisen upon the subject of interest, because the offices are never in the habit of taking that objection, unless they are under the necessity of resisting payment upon some other fair and proper ground, as fraudulent misrepresentations or concealment; and if they are driven to resist on such a ground, they then, in order to make their case the stronger, sometimes also object to the want of interest when the policy is open to the objection. The offices are constantly in the habit of taking insurances where the interest is upon a contingency, which may very shortly be determined; and if the parties choose to continue the policy bond fide, after the interest ceases, they never meet with any difficulty in recovering so also they frequently grant policies upon interest of so slender and precarious a kind, that although it may be difficult to deny some kind of interest, it is such as a court of law would scarcely recognize. This practice of the offices of paying upon policies without raising questions as to interest, is so general, that it has been even recognized in courts of law. As where a person bought a policy of insurance of another, after the interest had expired or was on the point of ex-curity is doubtful. piring, and some years after the sale and assignment, the executor of the purchaser, understanding that the office was not in law bound to pay upon the policy, brought an action against the seller to recover back the purchase-money. But Lord Tenterden, C. J. fold the jury the only point for their consideration was, whether at the time of the sale there was any misrepresentation or concealment to vitiate the policy. It was true in point of law, that the insurance ceased with the interest; but then they had it in evidence that

no

"Although a creditor may insure the life of the debtor, yet if after the death of the debtor, whose life is insured, and before any action be brought on the policy, the debt be paid, the creditor is not entitled to recover. Godsal v. Boldero, 9 East, 72, is cited at length.

"The holder of a note given for money tron at play, has not an insurable interest in the life of the maker of the note. The insurable interest of a creditor in the life of his debtor must be upon a good consideration. An action brought on a policy on the life of J. R., who

Review: Law of Fire and Life Insurance.—Changes in the Law, No. VI.

was warranted in good health: by a memorandum at the foot of the policy it was declared, that it was intended to cover the sum of 50007. due from Russell to the plaintiff, for which he had given his note. Two objections were made on the part of the defendants. 1st. That part of the consideration for the note was for money won at play. 2d. That Russell at the time he gave the note was an infant. Mr. Justice Buller nonsuited the plaintiff, upon the ground of part of the consideration of the note being for a gaming transaction, and therefore there was a want of interest in the plaintiff. Dwyer v. Edie, 2 Park, 63.

"A trustee may insure for the benefit of the cestui que trust. An insurance was made on the life of H. for a year, and during the life of the plaintiff, H. had granted an annuity to the plaintiff's late brother, which annuity he had bequeathed to persons not parties to the insurance, having made the plaintiff executor of his will, and directed him to make insurance. In an action on this policy brought by the executor, it was objected, that as the annuity was not devised to him by the grantee, he had no insurable interest in the life of Holden the grantor. But Lord Kenyon thought this a sufficient interest in the executor to support the action. Tidswell v. Angerstein, Peake, N. P. C. 151. In the case of an annuity, if the premiums are to be paid by the grantee, a contract for the grantor to make insurance will not be usurious, although the annuity be higher in proportion. A defendant by deed covenanted to pay an annuity of 1001. for four lives, and in thirty days after the dropping of three of the lives, to insure the life of the fourth for the benefit of the plaintiff, who in consideration gave 1000l. to the defendant; there was a covenant for re

demption. It was argued upon demurrer, whether this transaction was usurious. The Chief Baron (Lord Lyndhurst) said, "That if the expense of insurance was payable by the grantee of the annuity, it would not be usurious, although the annuity was higher in proportion. The statute of usury imposed a penalty when more than 5 per cent. was charged on a loan. This was not a loan, for it was not intended to be returned to the borrower. If the principal was at hazard, it could not be deemed a loan; as between lender and borrower it clearly was at hazard, for the borrower was not bound to return it. If the principal was to be returned by a third person, still it was the same thing between the contracting parties. There was a hazard even according to the contract, for the fourth life might not be insured until thirty days after the expiration of the third. If the fourth life dropped before the expiration of the thirty days, the principal was forfeited.' The other barons concurred in opinion, and judgment was given for the plaintiffs. Holland v. Pelham, M.S."

We have now given our readers ample means of judging of the merits of the work themselves.

57

CHANGES IN THE LAW DURING
THE LAST SESSION OF PARLIA-
MENT, 1831-1832.

No. VI.

EXCISE PERMITS.

2 W. 4, c. 16.

ALTHOUGH We principally notice the changes in the Law which affect the administration of Justice, it is material not to pass by, without some comment, the other alterations in the lex scripta, which are of a general nature. Amongst the statutes of this. class, is one which relates to Excise Permits. It is entitled,

"An Act to consoli

date and amend the Laws regulating the granting and issuing of Permits for the Removal of Goods under the Laws of Excise.' It passed on the 24th of March, 1832, and came into operation on the 5th of April following.

The former Acts on this subject,—namcly, the 23 G. 3, c. 70, which related to England, and the 59 G. 3, c. 107, which related to Ireland,-were different in their several provisions, and consequently required different permits for each country. The present Act was therefore passed to consolidate and assimilate the enactments of both Statutes. The penalties contained in the previous Law are altered, and in general are less severe.

After repealing several sections, both of the 23 G. 3, c. 70, and 59 G. 3, c. 107, the new Act proceeds to regulate the mode of obtaining and using permits, both in England and Ireland.

The request-note for the permit is to contain the date, the name of the place from which, and to which the commodities are to be carried; the mode of conveyance, the real name, surname, and place of abode of

the

person sending, and the person to whom they are sent. It is to be signed by the person requiring it, or by his known clerk or servant. No stamp duty is requisite. The time of removal must be specified. Then follow the penalties of forfeiture, &c. for non-compliance.

Private persons may also obtain permits to remove exciseable commodities on signing a declaration that the duties have been paid.

No oath is required, either by traders or private persons, to enable them to obtain the permit. This is an improvement long called for by the public.

58

Addenda to Notes on the New Rules.-Practical Points, No. XXXV.

ADDENDA TO NOTES ON THE NEW
RULES UNDER THE UNIFORMITY
OF PROCESS ACT.

ning is mentioned in the Act, it must of course be held to begin as soon as the writ is issued; and as, by § 10, it may be in force for four months, it must be held to endure for four months. If so, the distringas cannot be granted until the expiration of that period, for until then it cannot be known, that the defendant cannot be serv

In our Number of November 10th (p. 23), we suggested that on a view of all the provisions of the above Act, it should seem, that the Courts would not award a distrin-ed or made appear, according to the exigas under the third section, in consequence gency of the writ, "without some more ef of the plaintiff being unable to serve the ficacious process." defendant with a summons, or the defendant not having voluntarily appeared to it, until the expiration of four months, as the

summons is in force for that period. The PRACTICAL POINTS OF GENERAL

question has not been formally raised before any of the Courts; but it would ap

pear, from their practice since the Act has come into force, that they tacitly admit it to be not necessary so to wait. Whenever

INTEREST.

No. XXXV.

CLAUSE TO DEFEAT BANKRUPT LAWS.

any application has been made for a distrin-Ir is clear, that by framing a settlement progas, during the present term, the question

clause in the following case was held to be ineffectual for this purpose.

to which the Judges have directed their at-perly, a third party may settle property on a tention has been, whether sufficient efforts man, on his marriage, so as to exempt it from had been made to serve the defendant, and the operation of the Bankrupt Laws; but not whether sufficient time had elapsed clauses having this object will always be viewprevious to the application. With all de-ed with jealousy. It will be seen that the ference, we think that if the point were to become the subject of discussion before the Judges, they would be of opinion that four months must elapse before the application Testator bequeathed to trustees a sum of could be granted. The third section says, 23,3331. 6s. 8d. three per cent. consols. upon that the distringas shall be granted when it trust for his wife for life; and after her de shall be satisfactorily shewn that the defen- cease, upon trust for his sons and daughters, in dant cannot be served, or made appear, equal shares, for their respective lives; and "according to the exigency" of the writ. immediately after the decease of his son and The words between inverted commas, it is third part of the stock should be paid unto all daughters respectively, he directed that one conceived, are not to be rejected as surplus- the children: and this clause followed-" Proage, from the Act. If they are not, then vided always nevertheless, and my will and what is the meaning to be attached to mind is, that the several provisions hereinthem? When does the exigency of the before and hereinafter given for my said son writ begin and end? The language of the and daughters during their respective lives, writ is," that within eight days after the shall not nor shall any part thereof respectiveservice of this writ on you, inclusive of the by sale, mortgage, or otherwise, in any manly be subject to any alienation or disposition day of such service, you do cause an ap-ner whatsoever, or by anticipation of the repearance to be entered for you," &c. Now ceipt; and in case they or any or either of the exigency of the writ must either last them shall charge or attempt to charge, affect, four months, or never begin. If the exi- or encumber the same, or any part or parts gency of an appearance by the defendant thereof respectively, then I do declare it to be does not begin until after service, and the my express will and meaning, that any such defendant cannot be served, the exigency brance, so to be made by them or either or mortgage, sale, or other disposition or incumnever can begin. As, however, the words any of them on his, her, or their life annuity, of the third section, as to the exigency of interest, or provision, shall operate as a comthe writ, are not to be rejected as surplus-plete forfeiture thereof, and of all benefit age, it must be admitted that the exigency therein, during the remainder of their respecis contemplated as beginning and enduring, tive natural lives; and the same shall devolve although no service of the process has been upon the next successor, or person or persons in expectancy, as if he, she or they, were then effected. Then if it begins and endures, actually dead." The testator died in the year when does it begin, and how long does it 1806, and his widow died in 1821, leaving endure? As no precise time for its begin-A. G., the son, then of age. In the month of

Remarkable Trials, No. XVII.

59

tremely; insomuch that she would have been
glad to have found out a way to get rid of him.
There was a painter at Feversham, who was re-
ported to be versed in the art of poisoning; to
him she applied herself, and asked him,
"Whether he had any skill in that or not?"
The man seeming to own it; she told him,
"She would have such a dose prepared as
"That I can
would make a quick dispatch."
do," said he; and so he presently went to
work, gave it her, with directions to put it into
the bottom of a porringer, and so to pour milk
upon it: but the woman, forgetting the direc-
tion, put in the milk first, and then the poison.
Now her husband designing that day to take
his horse and ride to Canterbury, his wife
brought him his breakfast, which was usually
milk and butter. Having taken a spoonful or
two of the milk, and liking neither the taste or
colour of it, he said, “Mrs. Alice, what sort of
milk is it you gave me?" Upon which she
threw down the dish, and said, "I find no-
thing_can_ please you:" upon which he went
away for Canterbury, and by the way vomited
extremely, so that he escaped for that time.

March, 1828, A. G. became a bankrupt. The only question was, whether under the proviso in the will, the bankruptcy operated as a forfeiture of the bankrupt's life interest in his share of the dividends, for the benefit of his children: or whether that interest passed under the commission? The Vice-Chancellor having decided that the bankrupt's interest in the legacy passed to his assignees, an appeal was brought from his Honor's decree. The Lord Chancellor said, that here the clause of forfeiture applied only to the prohibition against the acts of the parties themselves: " in case any or either of them shall charge or attempt to charge, affect, or encumber the same," then the property was to go over. The prohibition in Dommett v. Bedford, 6 T. R. 684, 3 Ves. 149, was expressed in much more general and comprehensive terms, and might well be construed to extend to alienation by act of law; yet even there the point had been considered doubtful. The same distinction which the Master of the Rolls had stated in Shee v. Hale, 3 Ves. 404, had been subsequently much discussed, and was approved in Wilkinson v. Wilkinson, G. Coop. 259. 3 Swan. 525. The decree of the Vice-Chancellor must therefore be affirmed. Lear v. Leggett, 1 Russ. and M. 690; S. C. 2 Sim. 479. See also Cooper v. Wyatt, 5 Mad. 482; and see the proper clauses for providing against bankruptcy, &c. I Stew-tleman, but without success. At length it was deart's Convey. 299. 2d. edit.; and 2 ib. 219.

REMARKABLE TRIALS.

No. XVII.

Subsequently, a desperado of the name of "Black Will," was employed by the guilty parties, on a promise of a reward of money to murder Mr. Arden. He made several attempts during various journies of the unfortunate gen

termined to perpetrate the deed of blood in Mr. Arden's house, where Black Will was secreted. Mosbie and Mr. Arden were playing a game at tables, when the former said, "Now, Sir, I can take you if I please."-" Take me," said Arden, "which way?" With that Black Will rushed out of the closet, and threw a towel about his neck, to stop his breath and strangle him; then Mosbie having a pressing-iron, MRS. ARDEN'S CAse for murder, IN 1551. weighing fourteen pounds, at his girdle, struck him so on the head with it, that he knocked Thomas Arden was a private gentleman, him down, upon which he gave a loud groan, living at Feversham, in the County of Kent: which made them believe he was killed. From the circumstance of his murder, the detection the parlour they carried him into the countingof it, and the punishment of the offenders, house, where as they were about to lay him were exceedingly remarkable. He was a tall down, the pangs of death came upon him, and and comely person, and married a gentlewo-groaning in a most grievous manner, he extendman who was young, well-shaped, and every way handsome: who having unhappily contracted an unlawful familiarity with one Mosbie, a black swarthy fellow, servant to Lord North, it happened by some means or other that they fell out, and so continued at variance for some time: but she being desirous of a reconciliation, and to use her former familiarity with him, sent him a pair of silver dice by the hands of one Adam Fowle, living at the Flower de Luce, in Feversham, for a present. This brought them together again, so that Mosbie lay often in Arden's house, and in a short time the intercourse between them was so open, that Mr. Arden could not but perceive it; although common report says that he winked at it, for fear of disobliging her relations, from whom he had some great expectations. Having con- The dead body was afterwards carried into a tinued their lewd practices for a considerable field adjoining to the church-yard, and to his time, the woman doated more and more upon own garden-wall, through which he went to Mosbie, and began to loath her husband ex- [ church. In the mean time it began to snow,

ed himself, and Black Will giving him a terrible gash in the face, slew him outright; then he laid him along, took his money out of his pocket, and the rings off his fingers, and coming out of the counting-house, said, "The business is over, give me my money;" upon which Mrs. Arden gave him ten pounds. After Black Will was gone, Mrs. Arden went into the counting-house, and with a knife stuck the corpse seven or eight times in the breast; then they cleaned the parlour, wiped away the blood with a cloth, and strewed the rushes which had been disordered during the struggle. The cloth and the bloody knife wherewith she had wounded her husband, they threw into a tub by the well's side, where they were afterwards both found.

60

On the Ineligibility of Quakers to sit in Parliament.

and when they came to the garden door, they | maid, were seized and sent to prison; then the had forgot the key, so that one of them was sent to fetch it; it was brought at last, and the door being unlocked, they conveyed the corpse into the field, about ten paces from the door of that garden, and laid it down on its back, in its night gown and slippers, between one of which and the foot stuck a long rush or two.

Having, by this management, effectually secured themselves, as they imagined, from all manner of discovery, they returned the same way into the house; the doors were opened, and the servants, which had been sent into the town, being come back, it was, by this time, grown very late: however the wicked woman sent her people out again in search for their master, directing them to go to such places| where he mostly frequented, but they could hear no manner of tidings of him: then she began to exclaim, and wept like a crocodile: this brought some of her neighbours in, who found her very sorrowful, and lamenting her case, that she could not find out what was become of her husband. At last, the mayor of the town

mayor and the rest that attended him, went to the Flower-de Luce, where they found Mosbie in bed: they scon discovered some blood upon his stockings and purse, and when he asked them what they meant by coming in that manner, they said, “You may easily see the reason;" and, shewing him the blood on his purse and hose," these are our evidences." He thereupon confessed the horrid fact, and was committed to prison, as well as all the rest of the crew, except Green, Black Will, and the Painter, which last was never heard of after. Some time after, the assizes were held at Feversham, where all the prisoners were arraigned and condemned.*

Mrs. Arden was burnt, and the others hanged, some of them in chains.

IN PARLIAMENT.

THE novelty of a Quaker's being put in nomination for a member of parliament has raised the question, whether or not, if elected, he can take his seat? As it is not disputed but that every subject of the realm is eligible, of common right, it seems necessary, in order fully to comprehend the point, briefly to refer, not only to the statutes imposing obligations on the individuals elected, but also to those enactments affecting the Quakers as a body.

and others went upon the search for him. INELIGIBILITY OF QUAKERS TO SIT Here we are to observe, that the fair was wont to be kept partly in the town, and partly in the abbey, but Arden procured it to be wholly kept in the abbey-ground, of which he had made a purchase; and, by this means, being like to have all the benefit of it, to the prejudice of the town and inhabitants, he was bitterly cursed for it. After they had searched other places up and down, they came at length to the ground where the dead body was laid; where one of them happening to spy it first, called to the rest of the company, who, narrowly viewing the same, found it to be the corpse of Arden, and how it was wounded: they found the rushes sticking in his slippers, and found some footsteps of people in the snow, between the place where he lay and the garden door. This causing suspicion, the mayor ordered every body to stand still, and then appointed some of the company to go about to the other side of the house and to get in that way, and so through into the garden, towards the place; where, finding the prints of people's feet all along before them in the snow, it appeared very plain that he was conveyed that way, through the garden into the place where they had laid him.

As,

According to Lord Coke, 4 Inst. 414, it appears, that as every Court of Justice hath laws and customs for its direction; so the High Court of Parliament stands upon its own peculiar laws and customs, by which, to the exclusion of the Common Law Courts, all matters concerning its members are to be determined and discussed, and not in any inferior Courts. By the 30 Car. 2. st. 2, 1 G. 1. c. 13, and 6 G. 3. c. 53, a member shall not vote or sit till he hath, in the presence of the House, taken the oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against transubstantiation. The mayor and the company hereupon went therefore, the operation of these statutes afinto the house, and being no strangers to the fects every individual, they necessarily exclude ill-conduct of Mrs. Arden, they very strictly Quakers, acting upon their own peculiar prinexamined her about her husband's murder: ciples respecting the propriety of an oath. she defied them, and said, “I would have you This brings me to the consideration of those to know I am no such woman:" but they hav-in which regard is specially had to them. ing found some of his hair and blood near the house, in the way he was carried out, as also the bloody knife she had thrust into his body, and the cloth wherewith the murderers had wiped off the blood spilt in the parlour; these things were urged so home, that she confessed the murder, and upon beholding her husband's blood, cried out, "Oh! the blood of God help me, for this blood have I shed." She then discovered her guilty associates.

Mrs. Arden, her daughter, Michael, and the

The 1 W. & M. ses. 1. c. 18. § 13, contains a recital, that "there were certain persons, dissenters from the Church of England, who scrupled the taking of any oath," and provides, that every such person should subscribe certain declarations and professions therein specified, which subseription should be entered of record at the quarter sessions; and that every such person making and subscribing such declaration and profession, should be exempted from the pains and penalties of certain

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