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commercial agent could not be bound to know a point of law which, at that time, was so doubtful. If a special verdict had been found in Rickards v. Murdock (a), and this Court had given judgment for the plaintiff, and that judgment had been reversed in the House of Lords, would the defendant then have been liable? Besides, here the plaintiff was himself in fault, having given express directions that the letter should not be communicated within thirty days.

Cur. adv. vult.

DENMAN C. J. in this term delivered the judgment of the Court.

This action was brought by a merchant residing in New South Wales against his correspondent in London for negligence in effecting a policy of insurance, by means of which the plaintiff was prevented from reThe negligence covering against the underwriters. consisted in the defendant's concealing from them, at the time of effecting the policy, a material fact within. his knowledge. In Hilary term a rule for a new trial was obtained on various grounds. It was argued that the fact concealed was not material; and the case of Rickards v. Murdock (a), in which it was held to be so, was denied to be law: at any rate, as that case appears to be at variance with former decisions, it was strongly urged that a commercial man might be ignorant of such a legal point without gross negligence. The plaintiff was also said to be precluded from recovering, because he did not intend that the fact should be communicated. Lastly, some of the evidence was objected to, as re

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1833.

CAMPBELL

against

RICKARDS.

1833.

CAMPBELL against RICKARDS.

ceived improperly; the opinion of brokers and underwriters having been asked, not on a matter of practice in their professions, but on one of the points on which the jury were to pronounce their verdict; i. e. whether the fact concealed was or was not material, and ought to have been communicated to the underwriters.

Without saying that the verdict appears in all other respects satisfactory to the Court, we are of opinion, that the rule for a new trial must be made absolute ou this last ground.

Witnesses conversant in a particular trade may be allowed to speak to a prevailing practice in that trade; scientific persons may give their opinion on matters of science; but witnesses are not receivable to state their views on matters of legal or moral obligation, nor on the manner in which others would probably be influenced, if the parties had acted in one way rather than another. In the great case of Carter v. Boehm (a), a broker, who was called as a witness for the plaintiff, stated, on crossexamination, that, in his opinion, certain letters ought to have been disclosed, and that if they had, the policy would not have been underwritten. The jury, however, found, against the witness's opinion, a verdict for the plaintiff. When his opinion was pressed, as a ground for a new trial, Lord Mansfield, in the name of the whole Court, declared that the jury ought not to pay the least regard to it, that it was mere opinion, and not evidence. The same doctrine is laid down in a case of Durrell v. Bederly (b) by C. J. Gibbs, though he received the evidence on great pressure. He said, "The opinion of underwriters on the materiality of facts, and the effect they would have had upon the premium, is

(a) 3 Burr. 1905. 1913, 1914.

(b) Holt's N. P. C. 285.

not

not admissible in evidence. Lord Mansfield and Lord
Kenyon discountenanced this evidence of opinion, and
I think it ought not to be received. It is the province
of a jury and not of individual underwriters, to decide
what facts ought to be communicated. It is not a
question of science, in which scientific men will mostly
think alike, but a question of opinion, liable to be go-
verned by fancy, and in which the diversity might be
endless. Such evidence leads to nothing satisfactory,
and ought on that ground to be rejected."
more recent cases, such questions have certainly been
proposed to witnesses: but they have passed without
objection. And it may be observed, that the answers
will often imply no more than scientific witnesses may
properly state, their opinion on some question of
science. This is especially true of medical opinions.

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In some

In Rickards v. Murdock (a) indeed, out of which the present case arises, this kind of testimony was received. In giving judgment on the motion for a new trial, Lord Tenterden did not expressly defend its admissibility, but his words are in the alternative. "If such evidence is rejected, the Court and jury must decide the point according to their own judgment, unassisted by that of others. If they are to decide, all the Court agree in thinking that the letter was material, and ought to have. been communicated, and that a jury would have been bound to come to that conclusion."

Now, this mode of disposing of the question does not appear to the Court, on reflection, to be quite But we think, that as the jury are to decide on the materiality of facts, and the duty of disclosing

correct.

1833.

CAMPBELL

against RICKARDS.

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1833.

CAMPBELL against RICKARDS.

them, this verdict, founded in some degree on evidence that could not legally be received, ought to be set aside. The rule for a new trial must, therefore, be made absolute.

Rule absolute. (a)

(a) The cause was not tried a second time, but was compromised.

A. being ar rested and in custody of the sheriff at the

BROWN against DEAN.

DECLARATION in assumpsit stated that at the time of the promise thereinafter mentioned, John Bamford was detained in the custody of the sheriff of upon a writ in- Warwickshire at the suit of the plaintiff in an action in

suit of B..

dorsed

"oath

for 76. ;" C., in considera

tion of B. dis charging A., undertook to give his pro

missory note at six months,

pound for the

debt," on the

arrival of the discharge: Held, that this sufficiently appeared to be

the Court of Exchequer, for the recovery of a certain debt, to wit, a debt of 761. due from Bamford to the

plaintiff, and thereupon on the 25th of January 1832, in consideration that the plaintiff would give and pro"for 10s. in the cure the discharge of Bamford from such detainer and custody, defendant promised the plaintiff that he would give him his (defendant's) promissory note for 10s. in the pound on the said debt; that the plaintiff confiding, &c., did give and procure such discharge, and that Bamford was discharged accordingly, of which the defendant had notice. The declaration then averred, that the defendant was requested to deliver the promissory note, but neglected and refused to deliver or send the same or pay the amount, and that the sum of 767. still remained unpaid. Plea, general issue. At the trial before Denman C. J. at the Spring assizes for Warwick,

a promise to

pay 10s in the

pound upon the debt for

which A. was arrested and then in custody, and was properly declared on as such :

Held, also, that the sum indorsed on the writ was

sufficient evi

1833, the Plaintiff proved that before and on the 26th

dence of the amount for which A. had been arrested, and that no demand of the note was necessary to enable plaintiff to commence this action.

of

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of January 1832, John Bamford was in gaol in the custody of the sheriff of Warwickshire, that he was committed to such custody at the suit of the plaintiff, that the latter on the 30th of January gave authority to the gaoler to discharge Bamford, and that he was thereupon discharged. The writ of quo minus in the action of Brown v. Bamford in the Exchequer, indorsed "Oath for 767.," together with the sheriff's return of cepi corpus, was proved by the late undersheriff's clerk. The plaintiff also put in the following letter, dated 25th January 1832, from defendant to plaintiff: "My daughter received a letter from you, saying, if I would give you my promissory note, at six months, for 10s. in the pound for the debt, and pay the costs, you would give John Bamford his discharge. This I will do for the sake of my unhappy daughter and her family; therefore, if you will instantly send his discharge, on the arrival of it, I hereby promise to send you the above note." No request to deliver the promissory note was proved. It was objected by the defendant's counsel that there was no evidence of any debt due from Bamford to the plaintiff. The Chief Justice nonsuited the plaintiff, giving leave to him to enter a verdict for 381. A rule nisi having been obtained for this purpose,

Adams Serjt. and R. Hayes in this term shewed cause. It was necessary to prove a request by the plaintiff to the defendant to give the promissory note; for the agreement is equivalent to a promise to pay a collateral sum on request, and then an actual request ought to be made before the action is brought, according to the rule laid down in Birks v. Trippet (a). [Parke J. Where it is

(a) 1 Saund. 32.

1833.

BROWN

against

DEAN.

part

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