the pictures in question at a certain price, representing them as works of certain eminent masters, that he had previously purchased these pictures for less than half the money, and that, too, upon credit.

Now it might be improper in a clergyman to be dealing in pictures and jewels, &c.; but moral impropriety, supposing such to exist here, was not necessarily a god ground for the interference of the Court; as moral fraud and judicial fraud might be quite distinct things. Then, as to his representing these to be the pictures of certain eminent masters, he swore, that he believed so, and that they were worth the sum charged for them. In such a case it was no good ground for the interference of the Court that he had purchased them for half the money and upon credit. Of all things in the world, pictures were those in regard to which the pretium affectionis was most applicable; and it was not in itself a proof of fraud, that one bought pictures at 5,000l. and sold them for 12,000l. or for 20,000l. As to purchasing on credit, and selling for ready money, that was no ground of interfer

ence.

It was also to be observed, that no offer had been made by Sir G. Page Turner to return the pictures. Now, in any view of the case, if the plaintiff refused to pay the price contracted for, the defendant had a right to have his pictures back again; for, being pictures, it was mighty uncertain, whether another amateur might not give the defendant more for them than the price contracted for by Sir G.

Page Torner. The injunction could never have been reasonably re quired to stand, unless, at least, the money which the defendant had paid for them was paid by the plaintiff into Court. But in the present instance, he saw no grounds for the Court's interference at all. Injunction dissolved.

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Court of Common Pleas, Dub. lin, 8th, 9th, and 10th of Dec 1813.-Dunne v. the Albion Insurance Company.- Before Lord Norbury, and a Special JuryThis trial was of considerable importance; and occupied the attention of the Court during three days.

The action was brought for 2,3001. the amount of an insurance effected with the Albion Company, by the plaintiff, Andrew Dunne, Esq. of Dollardstown, in the county of Kildare, on the life of the late James Dowling Medlicott, Esq. of Youngstown, in the same county. The insur ance was effected on the 12th of April, 1811; and Mr. Medli cott died on the 6th of Oct.

1812.

It appeared that an insurance on the same life, for 7001. had been effected with the company, subse. quently to the insurance of 2,3001. by a Mr. Hyland, a neighbour of Mr. Dunne's; and that the fate of both policies was likely to be determined by the issue of this suit.

The defence set up by the com. pany was, that at, and before, the period of the insurance, Mr. Medhcott was addicted to habits of vicelent excess: that he was not in insurable health at that period:

that

that the plaintiff knew these facts when he proposed the insurance: that the insurance was obtained by false representations and false certificates; and that, under these eircumstances, the guarantee, on which the policy was founded, precluded all recovery.

It appeared in evidence, that the insurance was first proposed by Mr. Dunne to Mr. James, the company's agent in Dublin, in November, 1810; and that a hint was at that time given to Mr. James, by a Mr. Rawson, that Mr. Medlieott had a disposition to drink freely of wine. This hint Mr. James communicated to the office, when he transmitted Mr. Danne's proposition, and the insurance was declined by the Di

rectors.

In March, 1811, Mr. Dunne of fered a new propositionto Mr. James for the insurance of Mr. Medlicott's life, expressly declaring to Mr. James, that Medlicott's habits had become correct, and that his health was perfectly good; and Mr. Dunne procured, and delivered to Mr. James, certificates attesting Med licott to be at that time, in sourd health, and free from habits tending to shorten life, subscribed by Dr. Robert Johnson, of Athy, and Thomas Fitzgerald. Esq. of Geraidlodge, in the county of Kildare.

Mr. James made a farther enquiry of Mr. Rawson who had given the former hint; and Mr. Rawson's statement then corresponded with that given by Mr. Dunne. Mr. Medlicott also called at Mr. James's office, and Mr. James did not perceive any symptoms of ill health in his appearance. Under these circumstances, Mr. James was induced to transmit the

new proposition to the office in London; and the directors on the faith of the representation and cer tificates then offered, agreed to accept the insurance. On other testimonials, equally strong, and also subscribed by Dr. Johnson, the directors were induced, shortly afterwards, to accept the insurance of 7001. proposed by Mr. Hyland.

Mr. Dyas, Apothecary in Castlestreet, deposed, that he had long known Mr. Medlicott. In May, 1911, (one month after the insurance), Medlicott was in Dublin, and laboured under illness, produced by an obstruction of the liver, brought on by habits of extraordinary excess. Mr. Dyas attended Medlicott on that occas sion. In July, 1811, he was again required to attend Medlicott, at Monkstown, near Dublin, where he had become alarmingly ill from the same cause. Mr. Dyas then recommended that further advice should be taken. Surgeon Carmichael and the late Dr. Toole were called in; both of whom agreed with Mr. Dyas, in considering Medlicott's liver diseased. Mr. Dyas was of opinion that, in May, 1811, when he attended Medlicott in Dublin, the liver disease must have existed for some time. He would not then have certified Medlicott to be an insurable life; nor was it probable that he would have done so in April, 1811. Medlicott's habits of intemperance were of the most inveterate description.

Surgeon Carmichael proved, that, in July, 1811, he was called in to attend Mr. Medlicott, at Monke town, together with the late Dr. Toule; that he and Dr. Toole were

of

of opinion, with Mr. Dyas, that Medlicott was suffering under liver disease, occasioned by habits of excess; and that, at that time, a considerable enlargement of the liver had actually taken place. Mr. Carmichael stated, that this disease must have been several months forming that he was of opinion, that Mr. Medlicott, by pursuing different habits, might have recovered his health. Mr. Carmichael, however, told Medlicott, that if the habits which had produced the diseae were not discontiuued, they would be fatal to him.

Dr. Davis, a surgeon practising physic at Ballitore, proved, that he had attended Mr. Medlicott for severe illness, occasioned, apparently, by excessive drinking, in June, 1810; and had continued his attendance to September in that year; that Medlicott had, at that time, symptoms indicating the probability of liver disease; that his habits of intemperance were of the most destructive tendency; and that he then distinctly warned Medlicott, that, unless his habits were changed, he would soon die of the disease, of which, in October, 1512, he actually did die; that he did not afterwards attend Medlicott until within a few days of his death, when he was past recovery; that be, and the other medical men then called in, all agreed in opinion that Medlicott's death was the effects of dropsy, occasioned by liver disease.

Mr. Thomas, residing at Ballitore, stated, that Medlicott had a bed at his house for three days, during his visit to his mother, at the time of his father's death, in February, 1811: that he com

plained of bad health: rose each day at a very late hour: could eat little or nothing; and appeared in the evening constantly in a state of intoxication.

Counsellor Grogan, the brother. in-law of Medlicott, and Mrs. Marshall, Medlicott's sister, prov ed, that Medlicott had long been addicted to excessive drinking; and that he had been accustomed to complain of a pain in his side, indicative of liver disease, before the period of the insurance.

It was proved by them, and by several of the witnesses, that it was Medlicott's habit to lie in bed the greater part of the day, with the decanter and glass by his bed side.

Mr. Phipps, the company's se cretary, stated, that he had come, over to Ireland in February last, by desire of the directors, for the purpose of enquiring into the facts of this case; and that the direc tors had not determined to resist the claim, until they were acquainted with the result of that enquiry, on his return. He stated also, that in March last he went to Athy; and, in company with Mr. James, called on Dr. Johnston, to learn from him on what, grounds the certificate had been signed; that Dr. Johnston acknowledged, that, at the time he signe ed the certificate, he did know that Medlicott was accustomed to habits of excess, and that he had suffered illnesses in consequence of those habits; but that he had, nevertheless. attested his good health, from a belief that his constitution was unimpaired. On Mr. Phipps's enquiring why, with this knowledge, Dr. Johnston bad certified good habits, as well as good health,

D):

Dr. Johnston stated, that when Mr. Danne desired his signature to the certificate, he objected to the part which related to "habits not tending to shorten life;" but that Mr. Dunne overcame his scruples, by assuring him that the company knew of Medlicott's bad habits, and did not regard them.

Mr. James, the company's agent, stated, that when Mr. Dunne proposed the insurance to him in March, 1811, be hesitated to receive the proposition, from the impression left on his mind by the doubt before started: that Mr. Dunne prevailed upon him to entertain the proposition, by assuring him that Medlicott's habits had become reformed that it was this assurance, joined to the reliance placed by him on the certificates signed by Dr. Johnston and Mr. Fizgerald, and on the seemingly good appearance of Mr. Medlicott, and joined also to the altered statement made by Mr. Rawson, that induced him to transmit the new proposition for the directors' decision.

Mr. Rawson, on the part of the plaintiff, stated that the bint he had given to Mr. James, in November, 1810, was, that Medlicott was accustomed to drink a pint of wine before dinner, and a bottle of wine after dinner. Mr. Rawson admitted, however, that when Mr. James applied to him for information, on the renewal of Mr. Dunn's proposition in March, 1811, he stated Mr. Medlicott's habits to have become regular; and that he described his health to be good. Mr. lawson stated that he was enabled to declare this, from the observations he had made on Medlicott's health and habits, daring some VOL. XLV.

time he had passed with him in the interval between the two propositions.

Lord Norbury, in his address to the jury, declared that the directors of the company were folly justified in having brought the circumstances of this case before a jury. His lordship was of opinion, however, that the intimation given to Mr. James, in November, 1810, was sufficient to have guarded the company against the danger of the insurance; and thought that, on that account, the plaintiff's declaration and guarantee, in April, 1811, should have been of no avail.

The jury retired; and, after an absence of more than an hour and an half, returned, and stated that they could not agree,-that seven were of one opinion, and five of another.

Lord Norbury desired that the jury would again retire, and endeavour to concur.

It was then suggested, by the plaintiff's counsel, that some compromise might be offered on the part of the company, by which the difficulty of the jury might be relieved. All compromise, however, on the part of the company, was refused.

At the end, nearly, of another hour, the jury again came into Court; and the foreman, Alderman M'Kenny, declared it to be impos sible that they should be of one mind.

It was then agreed that a juror should be withdrawn; the effect of which, of course, is, that the action falls to the ground; but that the plaintiff may renew it, if he think fit.

Jan. 13, 1813. My Lord,-We had the honour to receive your lordship's letter, dated 12th January, 1813, transmitting to us a petition addressed to his Royal Highness the Prince Regent, by several persons serving as substitutes in the Royal Perth shire Militia, claiming a right to their discharge at the expiration of five, or at the most ten years' service, and desiring that we would take the same into immediate consideration, and report to your lordship, for his Royal Highness's information, our opinion thereon.

We have accordingly attentively considered the contents of this petition, and the statute of 42 Geo. III. chap. 91, therein referred to, and particularly the several sections which the petitioners appear to rely upon in support of their claim of a limitation of their service to a period of five years, or at most of ten years; and we are very clearly of opinion, that the claim of these petitioners is totally groundless, and cannot be complied with, without a direct breach of the positive provisions of the act of parliament. The misapprehension on this subject seems to have arisen from not adverting to the clear line of distinction drawn by the act between the ballotted man who serves by compulsion, and the substitute who serves by his own engagement, and recejves a considerable bounty, the period of service for the ballotted man being expressly fixed by the

35th section of the act, and the terms of the oath which he is required to take, to the space of five years; whereas by the section im mediately following (the 30th), the period of service prescribed for the substitute is "the space of five years, and also for such further time as the Militia shall remain embodied, if, within the space of five years, his Majesty shall order and direct (as it is notorious he has done) the Militia, for which such man is enrolled, to be drawn out and embodied," agreeable to which a form of oath is given, to be taken by the substitute, different from that of the ballotted man, by which he engages to serve in the Militia during the term of five years, or for such further term as the Militia shall remain embodied, if within the space of five years his Majesty shall order the Militia to be drawn out and embodied, unless he should be sooner discharged.

To construe this section as limiting the service of the substi: tute, when the Militia is embodied, to the same period as the service of the ballotted man, would be to reject all the words in the 36th section, and of the oath which follows it, extending the service conditionally to a further period, and to affix the same mean. ing to both the 35th and 36th sections, which are thus pointedly contrasted with each other as le their different objects. The other construction of the 36th section aimed at by the petitioners, by which the limitation of ten years is supposed to be given to the substitute's period of service, is an at: tempt to introduce a new term