SUPREME COURT. MCKECHNIE v. McKECHNIE. TESTAMENTARY. land and Ireland to probate, and in Scotland to confirmation, if the same be executed according to the forms required by the laws for the time being in force in that part of the United Kingdom where the same is made." The intention of the British Legislature was to embrace two classes of persons-British subjects under British rule, and British subjects not under British rule--and as it cannot be contended the inhabitants of South Australia are not British subjects though under colonial rule, the testator being domiciled in South Australia came within that clause so as to validate his will. Belt and Way, for contra.-The question is important, both as one of construction and because of the amount of property involved. The true construction of the Act of 1842, adopting the English Wills Act, did not admit of the doubt and difficulties which seemed to have been assumed by the counsel on the other side to exist. The will of Mr. McKechnie would have been a good will provided he had died before the 1st of August, 1842. But then it was attempted to be argued that wills which had been made prior to the 1st of August, 1842, should be good, notwithstanding that they had not been executed according to the requirements of the Act. If that was the intention of the Legislature nothing would have been easier than to have said so by introducing similar words. (GWYNNE, J.-Instead of adopting the English Act, every clause, matter, and thing, as they had done, they might easily have said—“ save that the words 1st of January, 1838," shall be struck out, and "1st of August, 1842," deemed to be inserted instead. That would have done it without question.) As to the wills of all parties dying before a certain date being good, the Act does say that but no more. Upon the question of domicil, see— Story, sec. 472 Stanley v. Bernes, 3 Hag., Ec., 373 Croker v. Marquis of Hertford, 4 Moo. P.C. C., 339 Bremer v. Freeman, 10 Moo. P.C. C., 357 Whicker v. Hume, 7 H.L. Cas., 124 In the goods of Reid, L.R., 1 P. & M., 74 et, 35 L.J., Prob., 43 In the goods of Rippon, 32 L.J., Prob., 141 SUPREME COURT. MCKECHNIE v. MCKECHNIE. TESTAMENIARY. The counsel on the other side base their argument upon a fallacy in assuming that the 34th clause of the adopted English Wills Act directed when that Act was to come into operation. The Act dealt with many other things, and the 34th was merely a saving clause with respect to wills executed before the 1st of January, 1838. It is no doubt a principle of English law that a Statute should not be construed to have a retrospective operation, but that is only where a doubt exists, and it frequently happens that the Legislature expressly gives a retrospective effect to laws. Prior to the time of Geo. III. all Acts of Parliament came into force and took effect from the first day of the session in which they were passed, and that was held even to apply so that where a capital offence was created by a Statute, it was no answer by the prisoner to show that at the time the crime was committed the statute was not passed— The King v. Thurston, 1 Lev., 91. In the reign of Geo. III. an Act was passed which has been in force ever since, that Acts should take effect from the time when they were passed; but nevertheless if the Legislature chose to give an Act a retrospective operation, the Court and every one else is bound by it. See 15th Vict., c. 24 Towler v. Chatterton, 6 Bing., 258 Dwarris on Statutes, 541. The English Wills Act, however, was to come into operation in England, not on the 1st of January, 1838, but on the day when it was passed, the 3rd of July, 1837, unless there was something to prevent it—that was except so far as its operation was saved by the 34th clause. That protected wills which were executed before the 1st January, 1838, from being subject to the Statute. But there is no corresponding clause in the adopting Act. The local Legislature chose not to adopt that course, but to say that the Imperial Act should take effect from a particular day. The effect of the construction contended for by the other side is to make the 34th clause inoperative altogether. The Court has to construe the Act, not according to what would have been a wise provision for the Legis SUPREME COURT.{ SAUNDERS V. EQUITABLE FIRE } NISI PRIUS. lature to have made, but according to the actual words, and they are plain and positive that every provision of the English Act was to have the same operation after the 1st of August, 1842, as it had in England. As to the Statute of the 24th and 25th Vict., c. 114, it only extended to the United Kingdom, which is proved by the provision that the wills should be admitted "in England and Ireland to probate, and in Scotland to confirmation." If it were in tended to extend to the whole of the Queen's dominions, it would be absurd that there should be a direction as to the instruments being admitted in the Courts of England, Ireland, and Scotland only, and that, in addition to the known policy of the British Parliament not to interfere with the colonies, shows that the Act did not extend to them, but was limited to the United Kingdom. Cur. ad. vult. 23 September HANSON, C.J.-The opinion of my learned colleagues is that the Act must be interpreted as though the words January 1, 1838, were inserted, in which case no doubt the will would be void. I am in doubt whether another construction is not admissible, but do not feel strongly enough on the point to justify me in setting my view in opposition to that taken by my colleagues. The will having been made subsequently to January 1, 1838, will therefore be void. WEARING, J.] [NISI PRIUS. 5 OCTOBER, 1871. SAUNDERS V. EQUITABLE FIRE INSURANCE COMPANY. POLICY OF INSURANCE.-Proposal-Nonjoinder-Conditions. Proposal to insure was made by A. S. & Co. for self and partners and signed "M. Saunders & Co." The policy issued to M. Saunders & Co. The conditions of the policy provided that the policy should be void if matches were kept on the insured premises, and that in the event of fire the amount of loss should not be recoverable unless a detailed account of the loss or damage should within a certain time thereafter be furnished to the insurers. SUPREME COURT. {S INSURANCE COMPANY. FIRE} NISI PRIUS. ENFELL ST A fire having occurred, no detailed account of the loss or damage was Action was then brought to recover on the policy by two persons alleged Held-That the proposal being by A. S., on behalf of himself and That matches having been kept on the premises, at any rate till within That the approximate furnished was not a compliance with the con- THIS was an action on a policy of insurance to recover the amount At the close of the plaintiff's case, a motion for nonsuit was made by Way, Q. C., and Boucaut, for defendants. First, there is a Q.C., nonjoinder, and no contract has been proved between the plaintiffs and the defendants. Second-There is evidence of a breach of the conditions as to the keeping of matches. Third No particulars of loss or damage have been furnished to the Company within the meaning of the conditions and in the specified time. Fourth-The proposal being a portion of the policy, the contract was made with M. Saunders & Co. and Alexander Saunders, whether the latter was a partner or not, and he ought consequently to have been made a party to the action. The evidence shows a clear violation of the Company's condition as to the storage of matches. It is not increase of risk that vitiates the policy, but the terms of the contract. It was of vital importance to the Company to know with whom it was dealing, whether with a resident partner, or with a servant liable at any moment to be turned out, and to have his acts repudiated by the parties insuring. The question was not SUPREME COURT.{ SAUNDERS V. EQUITABLE FIRE } NISI PRIUS. who were the partners of M. Saunders & Co., but who were the parties to the contract between the Insurance Company and the plaintiffs. As regarded the particulars, the plaintiffs admit in their evidence that these were incorrect, and there was therefore nothing that ought to go to the jury. If particulars are not given there is no claim, but it would be for the jury to say if the particulars are or are not sufficient; if, however, no particulars are given, it would be for the Judge to direct the jury that there is no evidence to go to them. As to the storage of matches, see Glen v. Lewis, 8 H. & N., 607 Sillem and Others v. Thornton, 3 E. & B., 868 Stow, Q.C., and Bundey, for plaintiffs. Whether A. Saunders should be joined with the plaintiffs or not must be raised by a plea that the plaintiffs falsely represented him to be a partner. The policy being a deed, and made with M. Saunders & Co., as obligees, if A. Saunders had been put in there would have been a misjoinder. (WEARING, J.-The inference any body reading that would draw would be that A. Saunders represented himself as a partner.) As to the other points the condition with respect to matches only meant that the Company would not be liable for any loss occasioned by breach of the condition with respect to matches, and insurers were only supposed to return such particulars as they could reasonably be expected to return within seven days, of which the jury would be the proper judge. WEARING, J.-As to the nonjoinder, I find that the proposal is made in these terms-" A. Saunders, for self and partners, M. Saunders & Co."--that the policy is made out to M. Saunders and Co., and my construction is that the policy is made out to a firm of whom A. Saunders is one. He says that he is not a partner; but for the purposes of this contract he is concluded by the representation which forms the basis of the contract. This, to my mind, is quite sufficient to justify the nonsuit asked for; but, in addition, there are other points. The evidence is somewhat doubtful as to the matches, but it appears that there were some kept open on a shelf up to a month before the fire; and, from the cases bearing on |