The Express.
London, England, 1847-11-08 00:00:00

NIA Prigs.

NEALE T. MOLTNEVX AND ANOTHER.—ACTION TO RE-
COVER A POLICY OF INSURANCE IN THE HANDS OF THIRD
PARTIES ST THEENECUTOIL OF A PENNON 10 WHOM IT HAD
SEEN ASSIGNED.—Tbis was en action brought by the exe-
cutor of a Mr. W. Neale, to recover a policy of 1,0001. which
had been effected in the Law Life Assurance on the life of
the Rev. Thomas Scott from the defendants, who are bankers
at Lewes, and in whose possession it now is. It appeared
that in the year 1832 the policy in question was assigned by
Mr. Scott to Mr. W. Neale, to whom he was indebted in the
sum of 9501.; but he never gave to Mr. Neale the
instrument itself but the assignment only, and the
plaintiff, the executor of Mr. Neale, having ascertained
that the defendants had the policy in their hands, brought
the present action for its recovery. Among other pleas was
one which alleged that Mr. W. Neale, in his lifetime, had
fraudulently allowed Mr. Scott to retain the possession of the
policy, and represent himself as the lawful possessor of it,
and to obtain mosey upon it. For the defendants it was
contended that they had advanced 2001. in 1846 to Mr. Scott
upon the security of this policy, and that they were entirely
ignorant of the fact of its having been assigned to Mr. Neale.
' It was also urged, that as Mr. Neale, in his lifetime, had
I suffered Mr. Scott to retain possession of the policy, he must
pay the penalty of his own neglect, and was sot entitled to
recover it, unless be repaid the defendants the sum they had
bonfa fide advanced to Mr. Scott.—The learned judge paid
that it was clear a fraud had been committed by Scott, by
which one or the other of the contending parties would
suffer. There was no proof of the plea which alleged that
Neale was privy to the representations of Scott as to his
possession of the policy, and was a party to that fraud.—Ver-
dict for the plaintiff.

NICOLL V. BARCLAY.•—PLEA OF INFANCY.—WHAT ARE
NECEESARIES.—In this case the action was brought by a
tailor, in Regent-street, to recover 1481. for an outfit supplied
to the defendant on his appointment to an ensigncy in the
89th Regiment, stationed in India, to which the defendant
pleaded his infancy at the time the articles were supplied,while
the plaintiff by his replication alleged that they were such
necessaries as his porition in life required. Proof having
been given of the ordering and supply of the articles, and
these being such as a person in the defendant's station and
going to India required, it was shown by cross-examination
for the defendant that • number of the articles, such as
gloves, were excessive in quantity and unnecessary, parti-
cularly SA the defendant did not appear to have anything
beyond his pay as an ensign, of Is. 3d. a day, although he
made a very showy appearance, driving about town ha dif-
ferent kinds of vehicles generally used by men of fortune
and fashion. It was also urged that the plaintiff bad not
taken sufficient care to inquire into the defendant's means
before supplying him with what was clearly an extravagant
outfit. He w► willing
_to pay for what was really ne-
cewiary, and, no more.—Verdict for the plaintiff—Damages
1431. fla. 6d.

COURT OF EXCHEQUER.
Bitting. in Waco.
GOUDY V. BUNCOMBE, M.P.—ME/01E11S OF PARLIA-
MENT PRIVILEGED FROM ARREST FOR DENT.—MF.
Willes moved, on behalf of the plaintiff, for a rule
calling upon the defendant to show cause why the order
made by Mr. Justice Williams, during the vacation, for
discharging the defendant out of the custody of the
eieriff of Yorkshire should not be rescinded. The defendant,
who was arrested under a ca. as., during the vacation, ob-
tained the order in question upon the ground that, at the
time of the arrest, he was entitled to privilege, sea member
of parliament. The subject was discussed before the learned
judge, who ultimately made the order upon that ground,
and the defendant was discharged.
Mr. Baron Alderson.. How is it that such an application
as this should be put into the list of motions for new trials ?
Mr. Willa: I believe it is the usual course to do so. A
motion to rescind a judge's order is in the nature of a new
trial, and should be made within the first four days of the
term. f know that such is the practice in the other courts.
Mr. Baron Alderson : But I cannot understand what pos-
sible use this rule can be to the plaintiff; suppose it was
granted, the parliament will be actually sitting before you
could have it made absolute.
. . . .

.16.—Willaa: Ii might happen that the &landaus would

net be • member when the rule was made absolute. lan
very easily imagine the inconvenience which might possibly
arise to your lordships, as well as to myself, from taking any
part in making such a rule as this absolute, especially when I
consider the peculiar nature and character of the machinery
—(laughter)—which Miss Goudy, the plaintiff, might be
compelled to employ before she could recover her money.
But I feel I have a duty to discharge. lam called upon to
make the motion, and, en doing so, I do not, I aaaure your
lordships, mean to reflect on or speak with the slightest de-
gree of disrespect of the defendant, or the privileges of
the high court of which be is a member. In the argument
' which it may be my duty to address to your lordships, I
shall, of course, offer the beat reasons' I can to show that this
rule should be rescinded, and I shall do so just as if I was
dealing with the ease of X, Y, or Z.
Mr. Baron Alderson : I must say that the defendant's pri-
vilege upon the 18th inst. is perfectly clear. The only ques-
tion that could arise was as to the 40 days."
The Lord Chief Baron : Even if you could take X upon
this rule to-morrow, X would undoubtedly be entitled to his
I discharge on the meeting of parliament, which will be on the
18th inst., so that the motion was a perfectly idle one. You
are asking us to grant a rule which must be perfectly useless
before it could be made absolute. However, as a mode of
saving time, I may say, take a rule to show cause.
Mr. Wines : Then I am to take the rule.

Mr, Baron Parke : But it must not be supposed that be.
cause we grant it the court entertains the sli,htest doubt
about the question of privilege.
Mr. Baron Alderson: What is the use of granting such a
role ? It is perfectly clear this is a mere motion made for
the pleasure of discussing a question of law. I must say,
it is extremely objectionable that such a motion should be
placed on the list of motions for new trials, to delay the
substantial business of the court

Mr. Willes expressed hie readiness to defer the motion, or
pursue any course the learned barons might think proper to
"WlCti.ord Chief Baron : We ere all of opinion that this is
a perfectly torten motion, and that it is made fur the pur-
pose of affording the learned counsel the pleasure of arguing
a point of law. (Laughter.)
Mr. Willes • I have already had all the pleasure such an
argument could bestow. (Laughter.) lam quite willing to
defer the motion if your lordships wish.
The Lord Chief Baron (jocularly): I think we should
accept that offer. (Laughter.) Parliament will meet on the
18th, perhaps you would renew your motion on that
day. ( Increased laughter.)
Mr. Baron Alderson es, on the 19th. We will give
you leave to move it on the 19th, the day after the meeting
of parliament. (Laughter.) The fact is, it must end in
nothing.
Mr. Willes: Very well, then, I will withdraw my motion
now; hut I shall certainly renew it at the earliest possible
opportunity.—The motion was withdrawn accordingly.
OLEY V. GentiElf.—MAltlNE ABSCRANCE.—MV. Knowles,
Q.C., moved for a rule, calling on the defendant to show
cause why the nonsuit in this case should not be set aside
and a new trial had on the ground of surprise. The action,
which was tried before the Lord Chief Baron at the last
assizes of Newcastle, was brought on a policy of assurance of
a vessel called the Dapper, for a voyage from Blyth, in Nor-
' themberland, to Malden. The principal question raised was,
whether the plaintiff, in eff.cting the insurance, had not
intentionally. concealed information material to the estima- I
tion of the reek. The vessel left lllyth with a cargo of coalson
the 22nd of February, and on the '23rd she put in, from stress
of weather, to Shields, where the plaintiff resided, and near
which the master also lived, at a place called Sanclhill.
Whilstshe lay at Shields and was undergoing repairs the
policy was effected. On the 25th she sailed again, and on
that night she sprung a leak and went to the bottom. At
the trial it was sworn that the plaintiff had gone en board
the vessel at Shields, and was fully aware she was not then
seaworthy, and that she had been driven in there from
having suffered materially from severity of the we Sher.
These facts he had, it appeared, kept back from the under-
writers, although within his knowledge at the time he
effected the policy. The grounds of surprise were detailed
in an affidavit made by a servant in the plaintiff's employ-
ment. It stated that an apprentice, named Scott, who
swore at the trial that he had seen the plaintiff on board the
Dapper whilst she was at Shields, and that he was fully aware
of her being then unseaworthy, had told the deponent
that he had been bribed by two persons connected with the
insurance company to depose to those statements against the
plaintiff and that they were untrue.—The Court, having
ascertained that no affidavit had been made by the plaintiff
himself, denying that he had been on board the vessel while
she lay at Shields, or that he was aware of her condition
then, intimated that if there was any truth in the affidavit
which stated that the apprentice had been paid to give false
evidence, the plaintiff might bring a fresh action. If the
plaintiff had not been on board he had abundance of time
since last July to deny the fact.—Rule refused.