of court, and, putting an end to the matter, the order will be to pay it into the Court of Chancery to the credit of the lunatic matter, and the company will be liable to no further costs. I can scarcely think that the Legislature intended that this court should interfere with the jurisdiction of the Lord Chancellor as to the property which the lunatic would be otherwise entitled to. "Let the sum of £2,501 16s. 5d. be transferred to the Accountant-General of the Court of Chancery, to be placed to the credit of the matter of Robert Turnley, a lunatic, and let the Town Council pay to the petitioner the costs of the petition and proceedings thereon, and of this motion, and the transferring of said stock, &c.” QUEEN'S BENCH.-HILARY TERM. ! amounting to £1200, dated respectively the 2nd question was, "Asylum and National Office, at The plaintiff was the party who proposed the life for insurance, and the following agreement, appearing at the foot of the proposal, was signed by him :-"I hereby agree that the proposal mentioned in the above policy shall form the basis of the contract between the assured and the company; and if there be any fraudulent concealment or untrue allegation contained therein, all money which shall have been paid on account of this insurance shall become forfeited, and the policy void." The declaration set forth the three policies and conditions of assurance annexed, and averred, in the usual manner, that all the conditions of the policies had been complied with. The declaration also contained the money-counts, and the defendant pleaded the general issue. On the trial of the cause before the Lord Chief Assumpsit on three several policies of assurance on life; each of them contained a provision, declaring that it should be void "if anything stated by the assured, either in the declaration or attestation therein before mentioned to have been made by him, should not be true." The proposal for insurance contained the following particular "Has the party's life been accepted or refused at any other office, and if accepted, was it at the usual premium, or with what addition?" The answer returned by the assured was, "Asylum and Natimal Office, at the usual premium." The following agreement appeared at the foot of the proposal, and was signed by the assured :-"I hereby agree that the proposal mentioned in the above policy shall form the basis of the contract Justice, at the sittings after Michaelmas Term, between the assured and the company; and if 1848, it appeared from the defendant's evidence, there be any fraudulent concealment or untrue that the plaintiff, previous to effecting the inallegation contained therein, all money which surance with the defendant's company, had proshall have been paid on account of this insurance posed H. Palmer's life for insurance at two other shall become forfeited, and the policy void." The offices, and that his proposal was rejected by them. defendant proved at the trial that the assured had The defendant's counsel thereupon submitted that proposed the same party's life for insurance at this was a fact which should have been communitwo other offices, previous to effecting the insur-cated to the defendant's company by the plaintiff, ance with the defendant's Company, and that his proposal was rejected. The Judge, in summing up, stated to the jury, that it was for them to say whether there had been a concealment by the assured of any circumstance which it was material for the Company to know. Held, that this was a misdirection, for that the assured had contracted with the defendant's Company that the several matters contained in the proposal should be answered truly, and, consequently, that the question, whether an answer given was more or less material, was not open to him. Assumpsit by the plaintiff, as administrator of Humphrey Palmer, deceased, against the defendant, sued as one of the directors of the United Kingdom Life Assurance Company, on three policies of assurance on the life of the deceased, when answering the particulars, and that the not doing so amounted to a fraudulent concealment on his part, and rendered the policy void. The Lord Chief Justice left it to the jury to say whether there had been a concealment of any cir. cumstance which it was material for the company to know. The jury found, that there was no concealment of any material circumstance, and gave their verdict for the plaintiff, for the amount of the sum insured. On a former day in this term, Mr. Martley, Q.C., moved for and obtained a rule nisi for a new trial, on the ground of misdirection of the Lord Chief Justice, and that the verdict was against law and against evidence.. Mr. Brewster, Q.C., (with him Mr. Fitzgibbon, Q.C.,) now shewed cause. The question is, whether the declaration is so incorporated with the policy as to make it matter of warranty. The present case is distinguishable from Scanlan v. Sceals, (6 1. L. Rep. 367,) and from Geach v. Ingall, (14 M. & W. 95;) for in these cases the declaration, being distinctly referred to, was considered as embodied in the policy, and to have thereby become a part of it, and, consequently, matter of warranty; but in the present case the policy does not refer to any instrument, and to import into a contract a document which is not referred to, is a violation of the statute of frauds, and contrary to the general principles of the law. Regarding the declaration as matter of representation, the question of materiality was for the jury. Mr. Martley, Q.C., and Mr. George, Q.C. for the defendant. The question is, whether there is a sufficient reference in the policy to a declaration, so as to enable the defendant to give in evidence what that declaration is. The policy is only signed by one of the parties, and we are entitled to read the words in the policy, "has declared," as saying that Palmer "has made a declaration." The principle established in Scanlan v. Sceals, is, that if the document is referred to, it forms part of the policy, and we submit there is enough to identify the declaration with the policy. It was material that the defendant should have known that the insured was rejected by another office six weeks before he applied to be insured in the defendant's office. Mr. Fitzgibbon, Q.C., in reply. The policy commences by declaring that H. Palmer did not exceed the age of thirty-four years-has had the small-pox, has not had the gout, &c. Here is a statement of facts, which, if true, would make Palmer's life an insurable one, and all the other questions are put with the view of testing the accuracy of the former answers. What is intended to be made warranty is extracted from the statement or declaration, and it is only reasonable and just the company to stipulate that those matters which go to make an insurable life should be made matter of warranty, but it would be unreasonable for them to require that matters no way affecting this question should also be made warranty. The policy says, if any of the allegations are not true, it is to be void; but the declaration has the words fraudulent concealment, which is a question for the jury. The fallacy at the other side is in supposing that the attestation in the policy means a proper attestation, and not an act. We contend that the policy refers to a verbal statement, and not to the written statement and declaration. In Scanlan v. Sceals, there was an express reference to a written declaration; and in Gooch v. Ingall, the Judge narrowed the question too much. BLACKBURNE, C. J.-We are of opinion, that I was wrong in leaving the question of materiality to the jury. The verdict, therefore, which was anything but satisfactory, must be set aside without costs, and without costs of this motion. It is plain, whether the written declaration be incorporated in the policy or not, there was a conditional stipulation on the part of the company, that the various matters contained in the proposal should form the basis of the contract between the assured and the company, and both parties contracted that those several matters should be answered truly. CRAMPTON, JI_am of opinion, unless we overrule Scanlon v. Sceals, followed by Geach v. Ingall, we must hold, that the written declaration is incorporated in the policies, and is thereby made matter of warranty, and not of representation. PERRIN, J.-I do not wish to give a decided opinion as to the meaning of the words in the policy; it involves the true construction of the instruments, how far the one refers to the other, but having regard to the terms of the proposal, and the agreement at the foot of it, I take them, as in every other contract would be implied, as containing this provision, namely, that I have given these answers upon the terms, that they shall form the basis of the contract between the assured and the company; and if there be contained therein any fraudulent concealment, or untrue allegation, I shall have no right of action. I do not think it is open to the party afterwards to say, that the answer given is more or less material. In my opinion, he bound himself to answer truly. MOORE, J.-I do not desire to express any opinion, as to whether this declaration is incor porated in the policy or not; if it be incorporated, it amounts to warranty. My impression is, that it is not. In both the cases which have been re ferred to, there was a clear reference in the policy to the declaration. Rule absolute. EXCHEQUER OF PLEAS. Practice-Lodgment of Money in Court before This was an action of trover, which had been tried before the Lord Chief Baron at the sittings after Hilary Term, 1849. After the service of the writ, and before the filing of the declaration, the defendant lodged money in court, in discharge of the action, under the 34th Gen. R. (Yeo. 54). The defendant having moved, after the filing of the declaration, to change the venue on the common affidavit, the plaintiff retained the venue, upon the usual undertaking to give material evidence in the county where the venue was laid (the county of the city of Dublin.) At the trial, the only evidence on the part of the plaintiff, arising within the venue, was the defendant's rule to lodge money, and certificate of the officer of the lodgment of same. The defendant's counsel called for a nonsuit, on the ground that plaintiff had not satisfied his undertaking; and the Chief Baron having given liberty to move, and a verdict having been given for the plaintiff, Mr. McDonough, Q. C., with Mr. Battersby, DOE, LESSEE OF BAKER AND WHITE, v. Harte. Q.C., now moved, pursuant to the leave reserved. are of opinion, the defendant's rule is material The lodgment of the money can be no acknowledg- evidence, whether obtained before or after declarment of a cause of action not disclosed, and con- ation filed. sequently is not material evidence. The 52nd Motion refused, with Costs. General Rule, (Yeo. 77,) provides, that upon every process served for the payment of any debt, the amount of the debt shall be endorsed.* That rule is compulsory, Ryley v. Boissomas, (1 Dowl. 383;) Curwin v. Moseley. (I Dowl. 432;) but does not apply to the action of trovert [Pennefather, B. I understand the rule to be, that some evidence material to the issue, and arising in the county where the venue is laid, must be given.] It would inflict great hardship upon a defendant, who from the form of the process, was led to suppose himself called upon to defend an action which he was willing to admit to the extent of his lodgment, if he were subsequently called upon to defend one of a different character, to which he may have full defence, and that his admission of the one could be used as an admission of the latter. Watkins v. Towers, (2 Y. Rep. 275;) Santler v. Head, (2 Sir W. Bl. 1050;) Everth v. Bell, (1 Moore, 158;) Kingham v. Robins, (5 M. & W. 94;) Stevenson v. Mayor and Burgesses of Berwick, (1 Q. B. 156 ;) Ở'Brien v. Hamilton, (6 Law C. Re. 127.) Mr. Fitzgibbon, Q.C., with Mr. R. Armstrong, contra. The lodgment admits the property, and the conversion of that property, and a cause of action to the extent of the money lodged. It is admitted that evidence of the rule is sufficient to sustain the undertaking. [Pennefather, B.-The question is, whether the lodgment being before declaration makes any difference.] The lodginent operates as an admission of whatever cause of action the plaintiff may subsequently disclose in his declaration. If the defendant is mistaken-in the nature of the action brought against him, and that which he had intended to meet by the lodgment,there is an inherent jurisdiction in the Court to protect him, by obliging the plaintiff not to give the rule in evidence. In the action stated in the declaration, the defendant has taken no steps to release himself from the difficulty which exists, and is now bound by his acquiescence. Lee V. Simpson, (3 C. B. 871;) Clerk v. Dunsford, (2 C. B. 724.) Cur. ad vult. May 4. PIGOT, C. B.-In this case we have considered all the authorities, and think it right to lay down some general rule on this subject. We In the Court of Exchequer, all ordinary process is in debt, whatever may be the real cause of action, The 3 & 4 Vic. c. 105, s. 46, enacts, "That it shall be lawful for the defendant in all personal actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauching of the plaintiff's daughter or servant,) by leave of any of the said superior courts where such action is pending, or a judge of any of the said superior courts, to pay into court a sum of money by way of compensation or amends, in such manner, and under such regulations as to the payment of costs and the form of pleading, as the said judges, or such eight or more of them as aforesaid, shall, by any rules or orders by them to be from time to time made, order and direct. Upon the expiration of a lease for lives which contained the following covenant :—“ That the lessor his heirs, or assigns, upon the death or demise of the before named four lives, or cestui que vies, should and would add and insert to the time or term of that demise, the natural life of such person as should be nominated by the said lessee, his heirs and assigns, in the place and stead of the said four lives, during which the said estate should be continued in consideration that the said lessee, his heirs or assigns, should lay out and expend in building a dwelling-house upon the said premises, the sum of £200, within the period of four years next ensuing," an ejectment was brought, and the Judge directed a verdict for the plaintiff. No evidence of the fulfilment of the condition having been given, and no demand of possession proved, subsequently to the trial, evidence of a substituted contract which was performed was discovered, Held-That a new trial should be granted, for the purpose of submitting the new evidence to the jury. At the trial before the Held, also, that if the original contract, or the sub- The plaintiff having proved his case, and it appearing that the dwelling-house had not been built, but that some money had been expended in the planting of trees, counsel for the defendant called for a non-suit, on the ground that in this case a demand of possession was necessary, and none had been proved. The Judge directed a verdict for the plaintiff. Subsequently to the trial, a lease had been found, dated February 22, 1830, by which one Thomas White, who was entitled to the reversion in the pre mises in remainder, on the death of Richard White, jury; the costs of the last trial to abide the event. It is demised a portion of the premises to John Harte, unnecessary to enlarge on the points discussed in reciting the original lease and the aforesaid cove- argument. We are of opinion that the rule laid down nant, and that it had been agreed upon between in the cases cited by the defendant's counsel the parties that certain trees should be planted is a correct one, in proceeding against a lessee for instead of the building originally stipulated for. lives, after the expiration of a lease, and where there Mr. Battersby, Q. C., (Mr. Hamilton Smythe is a covenant for renewal, as here. Where there is a with him) now moved, on behalf of the defendant, distinct contract, unannulled by any misconduct on that the verdict should be changed into a verdict the part of the tenant, and no condition unperformed for the defendant, or a non-suit entered. A tenant then on the dropping of the life, the tenure is referunder a lease for lives, with a covenant for the rable to the contract, and a demand of possession addition of a new life, is not a trespasser upon the becomes necessary. We are likewise of opinion that expiration of the lives, but is entitled to a demand if there be a contract, the terms of which are unof possession. Such a tenant stands somewhat in performed, the tenant cannot be held to continue in the position of a purchaser, who, when he enters possession under the contract, and, therefore, a into possession before the completion of the pur- demand of possession is unnecessary. In this view chase, is held to be a tenant at will, and there must we are of opinion that a demand of possession is be a demand of possession to determine the will. necessary, if the jury are satisfied that the condition In the case of Lessee Walker v. Byrne (3 I. L. Rec. was fulfilled. Now, if the instrument, bearing date N. S. 68), it was held, that upon the expiration of in 1830, be genuine, and, as recited, another cona lease for lives, which contained a clause for per- dition (which has been fulfilled,) was substituted for petual renewal, a demand of possession must be the original one, the defendant would be entitled to made to sustain the ejectment. So in the case of have the verdict entered for him. Doe dem. Newby v. Jackson (1 B. & C. 448), where an agreement was made between A. and B. that the former should sell certain premises to B. if it turned out that he had a title to them, and that B. should have the possession from the date of the agreement, a demand of possession was held necessary to sustain an ejectment. [Richards, B.-A covenant to renew is not quite the same as an agreement, because the latter binds both parties, there being mutuality between them; but the case of a covenant is somewhat different.] Right dem. Lewis and others v. Beard (13 East. 210) is to the same effect. Counsel also cited Doe dem. Winterscale v. Newcomen (1 Jones Ex. Rep. 496, 4 L. R., N. S. p. 100.) LUSCOMBE v. BLAKE.—May 3, Interpleader-Costs of Sheriff. Where, after the sheriff has obtained the common interpleader rule, the claimant and execution creditor enter into a compromise whereby the former abandons a portion of his claim, the claimant was directed to pay the sheriff all the costs incurred. Mr. Blackburne having obtained the common interpleader rule on behalf of the High Sheriff of Meath, the claimant and execution creditor subse On the day appointed by the rule for the parties to interplead, Mr. Blackburne applied for the costs PIGOT, C. B.—In the present case the conside-quently compromised the matter out of court. ration is one which goes to the whole contract, and therefore the condition must be performed before any contract legally arises.) Mr. M'Donough, Q. C., (Mr. Plunket, Q. C. with him,) for plaintiff.-There was no evidence at the trial of a release, disposition, or waiver of the conditions, and no evidence given of its performance, this is merely a qualified covenant for a renewal. In Lessee Pilkington v. Talbot, (5 L. Rec. N. S. 11,) where an under-tenant holding under a toties quoties Covenant to renew, subject to forfeiture or default, had neglected to renew, he was held precluded from setting up the want of a demand of possession as a defence. (This case is given more fully in 1 Furlong, L. & T. 204.) The dictum of Abbot, C. J. (3 B. & A. 327,) is to the same effect. PIGOT, C. B. We shall set aside the verdict in this case, as we conceive it right that the instrument of February 1830, which is most material in this case, should be subjected to the investigation of a of the sheriff. Mr. Richards for the execution creditor. The following order was made :— the said sheriff the costs of the said order of the 24th of April (the rule to interplead), and of this motion, when taxed, &c., without further motion." ERRATA. Read the two first lines of the marginal note Lessee Jordan v. Casual Ejector, ante p. 240:-"The Court of Exchequer will not allow a tenant who has signed," &c. In JURIST NO. 26, page 210, first column, line 16, for "there were two," read "there never was." HOUSE OF LORDS. O'BRIEN V. THE QUEEN, M'MANus v. the Queen. Held. That the commission being directed, first to three judges by name, and, subsequently to the same judges and others therein mentioned, was not thereby rendered ambiguous. That the plaintiff in error was not entitled to a copy of the indictment, or a list of the witnesses, or of the jury ten days before the trial, because the 36 Geo. 3, c. 7, did not extend to Ireland, nor was it extended by 57 Geo. 3, c. 6, nor by 11 & 12 Vic. c. 12. That those acts which were treason in England by the statute of Edw. 3, were made treason in Ireland, if committed there. That the allocutus, ante p. 170, was in the proper form. The errors in this case were the same as those assigned in the court below, and reported ante pp. 169-176. Sir Fitzroy Kelly, Q. C., Mr. Napier, Q. C., Sir Colman O'Loghlen, for Mr. Smith O'Brien. Mr. Segur, Mr. O'Callaghan, and Mr. McMahon for Mr. McManus. The Attorney-general for England, the Attorneygeneral for Ireland, Mr. Welsby, and Mr. Peacock for the Crown. The case was argued by Sir F. Kelly, Mr. Napier, Mr. Segur, and Mr. O'Callaghan for the plaintiffs in error; at the conclusion of their arguments, which were similar to those used in the court below, and reported ante p. 171. The counsel for the Crown were not called on, the learned judges having intimated their opinion, that their decision was formed, and which was delivered by the Chief Justice of the Common Pleas. WILDE, C. J.—I am authorized by the learned judges to report their unanimous opinion that the errors assigned have not been maintained by the arguments urged at your Lordships' bar. As to the first objection, the judges are of opinion that the allegation upon the record that the three judges who executed the commission in relation to the trials of the several plaintiffs in error, were nominated and appointed to execute that commission, is an affirmative allegation of their authority to perform that duty, and that it is in no respect rendered uncertain or ambiguous by the subsequent statement that the commission by which they were so authorized nominated and appointed, was directed to them and others. The second objection involves two points: first, whether the plaintiffs in error in respect of the sixth count of the indictment were entitled to have a copy of the indictment, a list of the witnesses, and a list of the jury ten days before the trial under the provisions of the statute of Wm. 3, and the statute of Anne. Secondly, whether, if they were so entitled, the objection founded upon the non-compliance with the provisions of these statutes was matter properly urged by plea. ror The judges are of opinion that the plaintiffs in were not entitled to have delivered to them the st and copies referred to in the error assigned in that respect, and therefore it becomes unnecessary to consider whether the objection was properly urged by plea. The right of the plaintiffs in error to be furnished with the copy of the indictment and the lists referred to, has been endeavoured to be sustained by the counsel for the plaintiffs in error at the bar upon two grounds: first, upon the ground that the statute of the 36 Geo. 3, c. 7 extended to Ireland; secondly, or that, if that statute did not originally extend to Ireland, it was afterwards so extended by the operation of the 57th Geo. 3, c. 6, and by the 11 & 12 Vic. c. 12. The Judges are of opinion that neither of these grounds can be supported. The statute of the 36 Geo. 3, passed before the Union, aud did not bind Ireland; and, therefore, the effect of 57 Geo. 3, or 11 and 12 Vic. if it has any application to Ireland, it must be by The 1st section of 36 Geo. 3, c. 7, enacted, that certain acts during the life of his Majesty, Geo. 3, and until the end of the next session of Parliament after a demise of the Crown, should be deemed treason; and the 1st section of the 57 Geo. 3, c. 6, made these provisions perpetual, but did not extend the operation of the statute of the 36 Geo. 3 to Ireland. The 4th section of 57 Geo. 3, cap. 6, has been principally relied upon, which expressly gives the benefit of the 7 and 8 W. 3, and the 7 Anne, cap. clared by that act of the 57 Geo. 3; and it is 21, to persons accused of any treason made or deenough to say that the charge in the sixth count is not for any treason made or declared by that statute. With regard to the statute of the 11 and 12 Vic., the only effect of that statute was to extend to Ireland certain of the provisions of the 36 Geo. 5, made perpetual by the 57 Geo. 3, and the 4th sec. of the 57 Geo. 3, which has been relied upon, is limited to treason, made or declared by that act; and the treason which is the subject of the sixth count was not one of them, and to which, therefore, it does not apply. As to the objection, that the counts charging the levying of war in Ireland do not charge au offence which in point of law amounts to treason, this objection depends upon the construction of the statute of Henry 7, passing by the name of Poyning's Law. By that statute, we think that those acts which were treason in England by the statute of Edward 3, were made treason in Ireland, if committed there; and we cannot deem it necessary to say more upon the subject, than that the terms of the statute admit of no doubt. As to the objection to the allocutus, we think it is in the proper form. All that the prisoner in that stage of the proceedings can properly be asked, is, what has he to say why judgment should not be pronounced; and matter beyond the question stated, to be surplusage. as to precedents which go further, we deem the The only remaining error assigned refers to the challenge of the jury. That error has not been urged at your Lordships' bar, and we think it was very properly abandoned, as the question is not |