life-insurances, so that the number of cases in which it could be questioned is probably very small indeed. And it may truly be said, that, instead of the decision in Godsall v. Boldero being uniformly acquiesced in, and acted upon, it has been uniformly disregarded.

Then, as to the cases. There is no case at law, except that of Barber v. Morris, 1 M. & Rob. 62, in which the case of Godsall v. Boldero was accidentally noticed as proving it to be necessary that the interest should continue till the death of the cestui que vie. It was proved in that case to be the practice of the particular office in which that assurance was made, to pay the sums assured, without inquiry as to the existence of an insurable interest: and on that account it was held that the policy, though in that case the interest had ceased, was a valuable policy, and the plaintiff could not recover, *on the ground that the *393] defendant, the vendor of it, was guilty of fraudulent concealment, in not disclosing that the interest had ceased. This was the point of the case: and, though there was a dictum of Lord Tenterden, that the payment of the sum insured could not be enforced, it was not at all necessary to the decision of the case.

The other cases cited on the argument in this case, were cases in equity, where the propriety of the decision of Godsall v. Boldero did not come in question.

The questions arose as to the right of the creditor and debtor, inter se, where the offices have paid the value of a policy, in Humphrey v. Arabin, 2 Lloyd & G. 318, Henson v. Blackwell, 4 Hare, 434, cor. Sir J. Wigram, V. C., Phillips v. Eastwood, 1 Lloyd & G. (Cas. temp. Sugden) 281,-where the point decided was, that a life-policy, as a security for a debt, passed under a will bequeathing debts: the Lord Chancellor stating that the offices found it not for their benefit to act on the rigid rule of Godsall v. Boldero. In these cases, the different judges concerned in them do not dispute,-some, indeed, appear to approve of,the case of Godsall v. Boldero: but it was not material in any to controvert it; and the questions to be decided were quite independent of the authority of that case.

We do not think we ought to feel ourselves bound, sitting in a court of error, by the authority of this case, which itself could not be questioned by writ of error; and as so few, if any, subsequent cases have arisen in which the soundness of the principle there relied upon could be made the subject of judicial inquiry; and, as in practice, it may be said that it has been constantly disregarded.

Judgment reversed, and venire de novo.(a)

(a) The following very pertinent remarks upon the subject, and strictures upon the judgment in Godsall v. Boldero, are found in Professor De Morgan's valuable Essay on Probabilities, pp. 244, et seq. :

*394]

"The word insurance or assurance has given rise to some wrong notions; and it will be worth while to examine the nature of the contract. A. & Co. engage with B. that, in consideration of 17. a year, paid by him during his life, they will pay 207. to his representatives as soon as he

shall be dead. Both parties run a risk; A. & Co. that of having to pay B. more than they receive; B., that of paying more than will at his death produce 201. But the risk of the office is of immediate loss; and that of B., of deferred loss: that of the former is also continually lessening, and that of the latter increasing; until, should B. live long enough, both risks become certainties. If the insurance be only for a term of years, B. runs the risk of losing his premiums altogether.

"The office does not inquire what reason B. may have for insuring his own life or that of another person, nor do any possible contingencies, except those of life, affect the office calculations. We cannot, therefore, be too much surprised at the ignorance shown by that judge who declared that life-insurance was of its own nature a contract of indemnity; that is to say, if, by any lucky chance, B. can be proved to have accomplished the object for which he insured by other means, he has no claim upon the office. The circumstances are as follows; and the absurd conclusion is law, and would be practice, if the insurance offices had not refused to acknowledge the decision, or protect themselves by the precedent. A. & Co. covenanted with B. to pay 5007., if C. should die within the term of seven years next ensuing, in consideration of the usual premium. C. did die within the term; and. A. & Co., in answer to a claim of 5007., replied, that the intention of B. in insuring the life of C., was, to obtain security for the payment of a debt of 5001, due by C. to B., which debt had been already paid by C.'s executors: consequently they owed nothing to B. An action was brought by B., and defended by A. & Co. on the above plea; and a special case being made, the point was decided by the Court of Queen's Bench against the plaintiffs; thereby establishing the principle, that life-insurance is a thing similar to fire or ship insurance; namely, a contract of indemnity, to be fulfilled with allowance for salvage.

[*395

"The defendant's case rested upon the asserted nature of the contract, and the statute 14 G. 3, c. 48, which enacts, that no greater sum shall be recovered from the insurers than the amount or value of the interest of the insured in such life.' The act does not state at what time this interest is to be reckoned, but the plaintiffs contended that the time of death was the meaning of the statute; the defendants averred, and the court decided, that the time of bringing the action was to be understood. The plaintiffs contended that the debt was not the object of insurance, but the life of the insured; the court decided, that This action is, in point of law, founded upon a supposed damnification of the plaintiffs, occasioned by the death, existing and continuing to exist at the time of the action brought; and, being so founded, it follows, of course, that if, before the action was brought, the damage which was at first supposed likely to result to the creditor was wholly obviated and prevented by the payment of his debt, the foundation of any action on his part, on the ground of such insurance, fails.' This sentence contains nothing but very good sense, and no doubt, very good law: but the application of it was accompanied by a mistake as to the nature of the damnification which the plaintiffs had sustained. The counsel on both sides, the court, the insurance office, and the plaintiffs themselves, showed a very partial knowledge of the nature of the contract; and I make no doubt, that almost every person who heard it agreed with the court, however much they might impugn the decision on other grounds, that the damage to the creditor was wholly obviated and prevented by the payment of his debt.'

"In order to show that such was not the case, we must suppose that an exactly similar transaction had taken place before any insurance office existed. How this could have been may not be apparent, if we take the notion which the law formerly entertained of such an office, namely, that it is a species of gambling house: but if we prefer to consider it as a savings bank, with an equalization system, which is unquestionably the correct notion, we may return to the circumstances which the case would have presented had there been no insurance. C., a person whose credit has become doubtful, is indebted to B. to an amount which B. could not afford to lose; consequently, B., knowing that his chance of payment is precarious, resolves to diminish his expenses, hoping by economy to restore to his family the sum which he may have lost by his engagements with C. He collects, accordingly, a small fund, which he places with his banker, avowing the purpose of its collection. In the mean time C. dies, and some friends pay off his debts, and that due to B. among the rest. The latter having now no further occasion for such economy, draws upon his banker for the amount, and is answered, that, since the purpose of the eaving was fulfilled by the payment of C.'s debt, he, B., has no further claim upon his [*396 own money. An action is brought, and the courts decide that the banker is right, and that B., having really attained his object in one way, has no right of property in the proceeds of another attempt to serve the same purpose.

"The only distinction between the case just put and that which actually occurred, is, that the banker was a person who gained his profits by receiving such savings during a contingent term, and guaranteeing a fixed sum; standing the loss, if there were any, and paying himself for it out of the gain which would accrue in another instance: the premium having been calculated so as to insure a moral certainty of profit upon the average of similar cases. It is not pretended, on either side, that the chance of indemnification at the hands of C.'s executors was made to

lessen the consideration paid by B. for the guarantee; and the legal iniquity of the decision may, I think, be made clear, as follows:

It will hardly be disputed, firstly, that the legislature is the judge of what shall constitute valuable consideration; and secondly, that a consideration which is expressly allowed to be good in a statute, should be admitted as such in the decisions of the courts. Now, the contract of insurance, be it gambling, or be it not, rests entirely upon the permission given by the law to consider a high chance of a small sum as good consideration for a low chance of a large sum. If I now pay 21. of premium for 100., in case I should die in a year, and if my executors can maintain an action for 1007., it must be because the law sanctions the notion that 27., nearly certain, may, with consent of parties, be considered as an actual equivalent for a distant chance of 1007., as much so as one weight of silver for another of bread, or food, clothing, and wages for personal service. It is true that the same law, fearing certain reputed immoral practices, to which the power of making a particular bargain offers temptations, may limit the circumstances under which it will permit such bargains to be made; but this is equally true in regard to the other sort of contracts mentioned: indeed, there is no sort of bargain which is not under regulation. The law, then, allows risks, and permits unequal chances to be compensated by giving odds; the courts declare, that, after the cast shall have been made, and one of the parties shall have stood his risk, which turns out in his favour, the other party shall receive an ex post facto release from the conditions of his bargain, because circumstances afterwards arise, which, had they existed at the time of making the bargain, would have made it illegal. The several principles on which the decision was founded, well carried out, as they say in parliament, would *397] require that the previous contracts of a man who becomes insane should be null and void; that the meat which a man buys for his dinner should be returnable to the butcher under the cost, if a friend should invite him in the mean time; and, in the case before us, supposing that C. should have outlived the term, and his debt were paid, as before, then B. might have brought his action against the office, for the return of the premiums; alleging that, as it turned out, the office would have been indemnified, and therefore, should be considered as having run no risk."

Since the decision in the principal case, the point has arisen before Vice-Chancellor Wood, in a case of Law v. The Indisputable Life-Policy Company, 1 Jurist, N. S., 178; and his Honour decided in accordance with the above judgment, entirely adopting the reasoning therein. See also the observations on Godsall v. Boldero, in Bunyon on Life Assurance, p. 23.

EDWARDS v. GRIFFITH. Nov. 15.

Qucere, whether the affidavit (required by the 112th rule of Hilary Term, 1853), of service of the writ of ejectment under the 170th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, should show (as under the old practice) that the nature and object of the service were explained to the party served.

At all events, an irregularity in that respect is waived by a subsequent attornment.

THE 168th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, enacts, that, "instead of the present proceeding by ejectment, a writ shall be issued, directed to the persons in possession by name, and to all persons entitled to defend the possession of the property claimed, which property shall be described in the writ with reasonable certainty." The 169th section enacts, amongst other things, that "the writ shall state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed, to appear, within sixteen days after service thereof, in the court from which it is issued, to defend the possession of the property sued for, or such part thereof as they may think fit, and it shall contain a notice, that, in default of appearance, they will be turned out of possession."

[*398

And the 170th section enacts that "the writ shall be served *in the same manner as an ejectment has heretofore been served, or in such manner as the court or a judge shall order, and, in case of vacant possession, by posting a copy thereof upon the door of the dwellinghouse, or other conspicuous part of the property."

Coron, on a former day in this term, obtained a rule nisi to set aside the judgment and execution in this case, and for a writ of restitution, on the ground that the affidavit upon which the judgment was signed did not show that the nature and contents of the notice contained in the writ were read over or explained to the tenant in possession. The affidavit on which the motion was founded, stated, that, when the copy. of the writ was delivered to the defendant, he was informed by the person who served it that it was to require him to go to an office in Caernarvon to give evidence as to a pedigree.

Welsby now showed cause, upon an affidavit stating that the defendant perfectly well knew the nature of the proceeding, and that after the service of the writ, he attorned to the plaintiff. He submitted that, the new proceeding being perfectly simple and plain, there was no longer the same necessity which formerly existed of explaining the nature and object of the service to the tenant: and that the 170th section of the statute, by merely providing that the service should be the same. as heretofore, impliedly dispensed with the accompanying explanation. [JERVIS, C. J.-Certainly, the statute does not say that the affidavit of service shall be in the old form.]

Coxon, in support of his rule.-The 112th rule of Hilary Term, 1853, provides that "no judgment in ejectment for want of appearance or defence, whether limited or otherwise, shall be signed, without first filing an affidavit of the service of the writ according to the [*399 Common Law Procedure Act, 1852, and a copy thereof." This special provision would have been unnecessary if nothing more was required than the common affidavit of service.

JERVIS, C. J.-It is unnecessary for us to decide on the present occasion whether or not the affidavit should be as special as was required under the old form of proceeding. But, assuming that it ought to have been, and that the plaintiff has been guilty of an irregularity in that respect, it clearly is a mere irregularity, and I am of opinion that the defendant has waived it by admitting that he was duly served, and afterwards attorning to the plaintiff. I think the rule must be discharged.

WILLIAMS, J.(a)-I am of the same opinion. This is at the best & mere technical irregularity which the defendant has by his conduct. waived.

CROWDER, J., concurred.

Rule discharged.

(a) Maule, J., was absent on account of indisposition.

*400]

*DOMINICO CAMPANARI v. MARY FRANCES WOODBURN, Administratrix of SAMUEL WOODBURN, Deceased. Nov. 13.

A. agreed with B., that he would endeavour to sell a picture belonging to B., and that, if he succeeded in selling the same, B. should pay him 1007. B. died before the picture was sold. In an action against the administratrix of B. upon the above agreement, the count alleged, that, in pursuance of the agreement, A. did, before and after the death of B., endeavour to sell, and after the death of B. he did, in consequence of such endeavours, succeed in selling the picture, "which sale was confirmed by the defendant as administratrix as aforesaid ;" and that she refused to pay the 1007.:-Held, that the count disclosed no cause of action, inasmuch as the authority from B. to A., to sell the picture, was revoked by B.'s death, and the defendant's confirmation of the sale, in the absence of an allegation that she was aware of the existence of the contract between A. and B., was no adoption of the contract by her, so as to make her liable to pay the 1007.

THE declaration stated that it was agreed between the plaintiff and the said intestate, that the plaintiff should endeavour to sell a certain picture of the said intestate, and that, if the plaintiff succeeded in selling the same, the said intestate would pay him 1007.; that, in pursuance of the said agreement, he did before and after the death of the said intestate endeavour to sell, and after the death of the said intestate he did, in consequence of such endeavours, succeed in selling the said picture, which sale was confirmed by the defendant as administratrix as aforesaid; yet the defendant, as such administratrix, had made default in paying the said 1007., which was still due from her as administratrix, and unpaid.

There was a second count, for money payable by the said Samuel Woodburn in his lifetime to the plaintiff, for work and labour, journeys, services, business, and attendances done, performed, and bestowed, and materials provided by the plaintiff for the said Samuel Woodburn, at his request, and for money found to be due from the said Samuel Woodburn to the plaintiff on accounts stated between them in the lifetime of the said Samuel Woodburn, and for money payable by the defendant, as administratrix as aforesaid, to the plaintiff, for money found to be due from the defendant, as such administratrix as aforesaid, to the plaintiff, on accounts stated between them since the death of the said Samuel Woodburn: And the plaintiff claimed 4007. for debt, and 201. for detention.

*401]

The defendant demurred to the first count,-the ground of demurrer marked in the margin being, "that there is no allegation in the said first count of any contract by the defendant to pay 1007. on the sale of the picture, and any such contract must have been with the defendant personally, and not as administratrix."

The defendant also pleaded,-first (to the first count), that it was not agreed in manner and form as in that count alleged, secondly (to the first count), that the plaintiff did not succeed in selling nor sell the said picture as alleged,-thirdly (to the residue of the declaration except