tablished principles, a person insuring is bound to communicate every intelligence he has that may affect the mind of the under-writer in either of these two ways; first, as to the point whether he will insure at all; and secondly, as to the point at what premium he will insure." If any important fact, calculated to operate on the minds of the assurers, be not disclosed to them at the time, the policy is void. Both parties should have equal knowledge of the circumstances. In Huguenin v. Rayley (a), where the conditions of a life insurance required a declaration of the state of health of the assured, and the policy was to be valid only if the statement were free from all misrepresentation and reservation: the declaration described the assured as resident at Fisherton Anger; she was then a prisoner in the county gaol there-it was held, that it was a question for the Jury, whether the imprisonment were a material fact, and ought to have been communicated. In Fitzherbert v. Mather (b), it was held, that any person acting by the orders of the assured, and who is anywise instrumental in procuring the insurance, is bound to disclose all he knows to the under-writer before the policy is effected; and that, where any misrepresentation arises from his fraud or negligence, the policy is void. In Bufe v. Turner (c), where A., who has resided abroad, having two warehouses, wrote to this country for the purpose of effecting an insurance upon one of them only, without stating (as was the fact) that a house nearly adjoining it had been on fire on that evening, and that there was danger of the fire again breaking out; and sent his letter after the regular post time; and the fire having broken out again on the day next but one following, and consumed A.'s warehouse -it was held, that this was a material concealment, although A.'s letter was written without any fraudulent in (a) 6 Taunt. 186. (c) 2 Marsh. 46; S. C. 6 Taunt. 338. 1827. MORRISON V. MUSPRATT. tention, The principles which govern cases of this description are clearly laid down by Lord Mansfield, in the case of Carter v. Boehm (a). All these authorities shew the necessity of the strictest good faith in effecting an insurance. Here the parties did not contract on equal terms. Lord Chief Justice BEST.-We do not decide as to whether that which was not disclosed to the office at the time this insurance was effected was material or not; that is a question for the Jury: we only form a judgment so far as to say that it approaches to it. It appears that Mrs. Elgin had been attended by a medical man who could have given a better opinion as to her state of health than the person to whom the assurers were referred as her usual medical attendant. She had been under the care of Mr. Bland. The office should have been informed of that fact. It was for the Jury to say whether the concealment was of a fact so material as to avoid the policy: whether the suppression arose from fraud or from accident is quite immaterial. I am of opinion that there should be a new trial, on payment of costs. Mr. Justice BURROUGH (b).-A material point in this case was not left to the Jury, nor observed upon by the Judge. The assurers were not informed that Mrs. Elgin, whose life they were about to insure, had been attended by Mr. Bland, who thought her extremely ill. Had they known this fact, they might have examined him. Mr. Justice GASELEE.-It appears that Mrs. Elgin had for several weeks been attended by a medical man, who considered her in danger. The question is, whether the office would not, had they known this fact, have paused (a) 3 Burr. 1909; S. C. 1 W. Blac. 593. (b) Mr. Justice Park was absent. ere they executed the policy, or made some alteration in the terms of the insurance. In Willes v. Glover (a), which was an action on a policy on goods from Berderygge to London, effected by the consignees on the 13th December, without communicating a letter received by them the day before, but dated the 30th November, informing them that the captain would sail the next day, and directing them, if he should not be arrived, to effect the insurance as low as possible-this was held to be a material concealment, although the ship did not in fact set sail until the the 24th December. In Littledale v. Dixon, Mr. Justice Rooke says (b): "There is no doubt of the general proposition, that every material circumstance must be disclosed, and it was for the Jury to say how far the circumstance before them was material." So, in the case of Huguenin v. Rayley, it was held to be for the Jury to say whether the fact concealed were material or not. Rule absolute, on payment of costs (c). (a) ] New Rep. 14. (c) This decision has been confirmed by the Court of King's Bench in the case of Lindenau v. Desborough (8 Barn, & Cress. 586; S. C. 3 Man. & Ryl. 45), and again by this Court, in the case of Everett v. Desborough (3 Moore & P. 190; S. C.5 Bing. 503). In the former it was held, that, if the assured, at the time of effecting the policy, conceal from the assurers any thing that it is material for them to know, the policy is void. In the latter, the plaintiff being about to effect an insurance on the life of one H., and being applied to by the agent 1827. MORRISON v. MUSPRATT. 1827. Thursday, Feb. 1st. A capias into issued on an af MARTIN and Wife v. BIDGOOD. A RULE was obtained by Mr. Serjeant Bosanquet, on a Cambridgeshire former day in this term, calling on the plaintiffs to shew fidavit filed with cause why the writ of testatum capias issued against the A defendant in this cause, should not be set aside for irregularity, and the defendant, who had been arrested thereon, discharged on entering a common appearance. the filacer for that county. testatum capias into Devonshire afterwards issu ed before the return of the capias, without a new affidavit or an office copy of the original affidavit-the same officer being filacer for both counties:The Court re fused to set aside the testatum. The indorse ment of an aggregate sum on the back of the writ, is suf ficient to satisfy the words of the statute 12 Geo. 1, c. 29, although the affidavit to hold to bail contain several distinct items or causes of action. The affidavit upon which the motion was founded, stated, that the defendant had been held to bail at the suit of the plaintiffs, on an affidavit of debt alleging that he was indebted to them in the sum of 1,345l. 7s. 6d. for principal and interest due on a bond, and then in arrear and unpaid, and also in the sum of 650l. 12s. 6d. for money lent; that the original writ of capias in the cause was issued into Cambridgeshire, tested on the 17th November, 1826, returnable in fifteen days of St. Martin, and that the affidavit was sworn before and the præcipe filed with the filacer for that county; that a testatum capias was afterwards issued into Devonshire, tested on the 6th November, returnable on the first return of the present term, under which last-mentioned writ the defendant was arrested on the 23rd November; but that no original had been returned and filed with the filacer for the county of Devon, nor any affidavit of debt or præcipe in or as of Michaelmas Term last. The capias was indorsed, "oath for 2,000l. affidavit filed in Cambridgeshire, 17th November, 1826." The objections were First, that the testatum capias, issued into Devonshire, was not founded on the capias issued into Cambridgeshire, the testatum being tested before the return of the capias; and that there was no affidavit of debt sworn before and filed with the filacer for Devonshire to warrant the testatum capias. Dorville v. Whomwell (a) was referred to, (a) 10 B. Moore, 318; S. C. 3 Bing. 39. where, on an affidavit of debt sworn before and filed with the filacer for Middlesex, a capias ad respondendum issued to the sheriff of that county against the defendant, who not being found there, an office copy of the affidavit certified by the filacer for Middlesex was filed with the filacer for Yorkshire, whereupon a second capias was issued into the latter county, instead of a testatum capias, and the defendant was thereon arrested-the Court held this second writ to be irregular, there being no affidavit to warrant it (a). Secondly, that the indorsement on the back of the writ was not made pursuant to the statute, 12 Geo. 1, c. 29, which requires the sum or sums specified in the affidavit to hold to bail to be indorsed on the back of the writ; inasmuch as the indorsement was of a single sum, and the affidavit specified two distinct debts, viz. 1,345l. 7s. 6d. due on a bond, and 650l. 12s. 6d. for money lent. Mr. Serjeant Wilde now shewed cause.-Dorville v. Whomwell is an essentially different case from the present, for there the plaintiff had issued a second capias instead of a testatum capias. So, in Anderson v. Hayman (b), the second writ was a capias instead of a testatum capias. Formerly, it was the practice when the defendant lived in a different county from that in which the plaintiff meant to lay the venue, to sue out a capias into the latter county, and then a testatum capias into the other, because, by declaring in a different county from that into which the capias issued, the plaintiff lost his bail; but, by the rule of Court of Hilary Term, 22 Geo. 2, it was ordered, that, when a defendant was arrested by virtue of a capias in any county, and bail was put in thereupon, the plaintiff might declare in a different county without its being deemed a waiver of the bail. A new affidavit is unnecessary where a tes (a) But see Boyd v. Durant, 2 Taunt. 161. (b) 2 B. Moore, 192. 1827. MARTIN V. BIDGOOD. |