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. SAUNDERS V. EQUITABLE FIRE NISI PRIUS. DENFELL 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 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 SUPREME COURT. ST. GEORGE v. BURNET. EQUITY. the point, it is clear that this would vitiate the condition in the policy, whether such condition were reasonable or not. As to the furnishing of particulars of loss and damage, it appears to me that it is necessary for these particulars to be furnished under different heads, in accordance with the heads in the policy. Mr. Saunders has given an approximate return of the value of the different classes of goods in the store at the time of the fire, and I cannot see why a reasonable return might not have been furnished to the Insurance Office. Mr. Saunders was in occupation, the store was a small one, and in my judgment he might have been expected to give a fair estimate. I should be very glad to put the matter to a jury, and escape the responsibility of deciding on it; but I feel bound, looking on the law as it stands, and particularly after the judgment in the case Gibbin v. McMullen, to say that there is no reasonable evidence to go to the jury. I do not feel called on to give an opinion as to the question of verification of the plaintiff's statement; but on the first and second points, and still more on the third point, I am of opinion that the plaintiffs must be called. Nonsuit. GWYNNE, J., PRIMARY JUDGE. EQUITY. 20 OCTOBER, 1871. ST. GEORGE v. BURNET. No review of the Master's certificate can be obtained on summons after a cause is set down for further consideration. at all, it must be on motion or petition. If obtainable THIS cause was brought on by summons, taken out by the plaintiff, asking the Court to review the Master's certificate. Barlow, for the plaintiff, having read affidavits in support, Way, Q. C., for defendant, took a preliminary objection that no review of a Master's certificate was admissible after the cause was set down on further consideration, and that if the point was heard it should be on motion or petition. GWYNNE, J., concurred with the objection, and dismissed the summons. A debtor having failed to pay an acceptance at maturity, his creditor called several times at his office, but was unable to see him. Subsequently he met the debtor, who asked for time, but he not having made any arrangement, the creditor's solicitors went to the debtor's office, and were there informed that the debtor was in the country, he in fact being in town at the time. There was no evidence that the boy had been instructed to make the statement. Held-An act of Insolvency. APPEAL from the Court of Insolvency in refusing to adjudicate Christian Schilling insolvent. It appeared that the petitioner, holding Schilling's acceptances for £250, called at his office at different times, but did not succeed in getting an interview, the clerk always stating that he had gone out of town that morning. Meeting him accidentally he asked for time, but not arranging for payment the petitioner instructed Messrs. Ingleby & Robinson to apply for the money, which they did, but could not succeed in finding him at the office, though the evidence showed that he had been in Adelaide when his clerk reported him to have been absent at Gawler and the Port. There was no evidence that the statement of the clerk was made with Schilling's knowledge or authority. Ingleby, for appellant, contended that the absence from the office when Messrs. Ingleby & Robinson called, and the untrue statement made by his clerk, that he was in Gawler, when in fact he was in Adelaide, amounted to an act of insolvency under the 32nd clause of the Insolvency Act. GWYNNE, J., said that if he had to direct a jury in the matter, he should tell them that the law was that a person was supposed to be at his office to meet his creditors; and that if any one had claims against him, that would be the place to which he would resort for the purpose of having his claims met. If they believed the evidence which had been brought forward, he should have to tell them that there was evidence of an act of insolvency having been committed. Appeal allowed. |