1841. Equity Exch. SCOTT V. ROOSE. was filed. What then has been the conduct of the defendant during the progress of the suit?—and here I advert entirely to the transaction with respect to the consideration money expressed in the deed of assignment. It certainly was important to shew whether a pecuniary or other consideration had been given, or appeared to have been given, for the assignment. It was charged by the bill that a blank for the amount of the consideration had, originally, been left in the assignment; and that it had afterwards been filled up by the defendant, without the authority of the assignor, with the sum of £50: but in his answer, the defendant gives no statement of that transaction further than that there was no sum whatever expressed as the consideration in the deed of assignment when it was executed, and that it still remained in blank, as it was originally perfected. A more uncandid and improper answer, under the circumstances of the case as they now appear in evidence, cannot be supposed! For it is proved that when the defendant produced this policy to Mr. Gray, in order to raise money on it, and afterwards to the Company for payment, a consideration of £50 appeared in the body of the assignment, written in ink; and upon inspection of the document, it is apparent that there is an erasure in that part of it where the consideration ought to be expressed. We have then the defendant putting forward in his answer an allegation, unfounded in point of candour, though, perhaps, it may have been literally true when the answer was sworn; and it appears that for his own purposes, and to effect his own objects, he has been tampering with this assignment as he pleased; inserting a consideration in it when he wanted to raise money, and erasing the consideration when he had to produce the deed to this Court. Under all the circumstances of the case, I am of opinion, that, looking at the original transaction, the defendant cannot be heard to allege in equity that he has a right to the money secured by the policy against the legal owner; but on the contrary, that he is only entitled to the sums he has advanced, with interest: and that the surplus, ultra those sums, belongs to the representative of the person who effected the policy, and with whom the Company dealt: and that the defendant's conduct has been such in the particulars I have mentioned, that he ought to pay the costs of the suit. RICHARDS, B. I fully concur in the decree the Court is about to pronounce. The late J. Scott was entitled, as any man in sufficiently good health is, to effect an insurance upon his own life, for his own benefit; but the defendant, not having any interest in his life, could not effect a valid insurance upon it with this Company. Under these circumstances, the defendant's case is, that not being entitled, by the express stipulations of this Company, to effect an insurance upon the life of J. Scott in his own name, he con cocted a plan to deceive the Company; and induced them to insure the life 1841. SCOTT v. ROOSE. of J. Scott, nominally and ostensibly for the benefit of Scott, but in reality Equity Exch. for the benefit and advantage of Roose the defendant; and that having done so, he is now entitled to the benefit of an agreement, which he alleges was previously entered into between him and J. Scott to that effect. I will not go the length of saying that if he had, in a clear and satisfactory manner, established the existence of such an agreement between him and J. Scott, this Court would interfere at the instance of J. Scott or those representing him, in a suit constructed as the present. Probably, in such a case the Court might think it more consistent with the principles by which it is governed, to leave the parties to their legal rights, whatever they might be. But I confess, that where an agreement of the nature set up by the defendant is relied on to turn out of Court the representative of a person circumstanced as J. Scott was, on the principle that we ought not to interfere between parties who participate in an arrangement which we cannot approve of, I would require the most clear and satisfactory evidence of the existence of such an agreement. Here, I cannot find that there is such evidence of the agreement set up by the defendant; and, therefore, I think it is safest to go by those documents which are common to the case both of the plaintiff and defendant; and which cannot be controverted. And, first, there is the policy of insurance, effected by J. Scott in his own name. Annexed to that policy is a stipulation which is directly in the way of the case now made by the defendant. It is, that no one shall effect an insurance upon the life of another unless he have an interest in such life; and then only to the amount of that interest. Yet the defendant desires that we should, without regard to the evidence as to the real nature of the contract arising out of the policy itself, and out of the stipulation that I have mentioned, jump at once to the conclusion that he (Roose), and not Scott, was from the beginning the beneficial owner of the policy; and that, not only contrary to the terms of the contract itself, but contrary to the case which he frequently alleged to different persons, and especially to the Secretary of the Company; namely, that he had paid £50 to J. Scott for the policy, and had got an assignment of it, in consideration of the payment of that sum; and upon the faith of which allegation he induced persons to lend him money on the policy. That was then his case.-But now he desires to retract all what he previously alleged, and to set up an agreement of the most undefined character, the nature of which it is impossible to understand. It is manifest, even upon the defendant's own shewing, that it was the intention that J. Scott should derive some benefit from the transaction. What was it to be? It is said that his salary was to be advanced five shillings a-week, so long as the defendant chose to continue him in his employment; but that the defendant might turn 1841. Equity Exch SCOTT 0. ROOSE. him off whenever he pleased. The Court could not recognise or act upon such a contract, even if it were proved; and in this case I think that the evidence arising out of the written documents disproves such an agreement. Therefore, in my opinion, we are not precluded from interfering in this case, by the operation of the principle to which I have alluded: we have now the proceeds of the policy in Court, the Company not raising any question on the subject, and the Court must deliver itself of this money some way or other. Are we then to order it to be paid to the defendant? I think not. I say nothing as to the right of a person in this country to speculate in gambling policies; but, I think it is against public policy that a master should be allowed to insure the life of a decayed servant, in whose life he has no interest, and as a mere speculation, that servant being wholly dependent on him for his daily subsistence, and I may say altogether in his power; but I express no opinion as to the legality of such an insurance. Then as to the costs. I should be sorry if we were coerced by any of the cases cited by the Counsel for the defendant to award costs to a person who, the Court thinks, has sought to deal most unfairly and unjustly still more so, to a party who, the Court is satisfied, has given a false statement on his oath of an important fact in issue in the cause. The defendant's answer to the original bill has, in an important particular, been established, to my full satisfaction, to be utterly unfounded. In it he denied that the blank for the statement of the consideration in the assignment endorsed on the policy was filled up. He says, that such blank was there when the assignment was executed, and that it is there still. But upon being more closely interrogated upon the subject by the amended bill, he admits that the blank had been filled up in pencil, by some person, without his concurrence. Cui bono? Where is the man who did it? Has his name been mentioned? or has he been examined in the cause? No;-but on the contrary, we have the depositions of three witnesses,-one a most respectable gentleman,-that the blank was filled up in writing, which is corroborated by the erasure now appearing on the deed. Therefore, I fully concur in the decree pronounced by the Chief Baron, and that the plaintiff is entitled to the relief prayed, with costs; and I do not think that in making such a decree we interfere with any of the principles to be deduced from the cases relied on by the Counsel for the defendant. 1841. Equity Exch. O'HARA v. CREAGH. THE bill in this case was filed on the 2nd of December 1831; and stated that Lavinia Creagh, being seized in fee simple of the lands of Cahirbollog in the county of Clare, by indenture of the 20th of March 1804, conveyed the same to her son Simon Pierse Creagh and his heirs. Upon the marriage of Simon P. Creagh, he conveyed those lands, by inden ture of the 18th of June 1807, to trustees and their heirs, in trust to secure a jointure for Dora Macnamara his intended wife, in case she should survive him, and in case the rents and profits of certain other premises, therein mentioned, should not be adequate for the purpose. Simon P. Creagh died on the 13th of October 1814, intestate, and left Dora Creagh his widow, and Pierse Creagh his eldest son and heir-at-law, him surviving: and Dora Creagh obtained letters of administration to his effects. In Hilary Term 1813, the plaintiff obtained a judgment in case against Simon P. Creagh, for the sum of £123. 14s. 8d. besides costs. After the death of Simon P. Creagh, on the 8th of August 1816, Dora Creagh his widow passed her bond to the plaintiff, which the bill stated to be a collateral security for the debt due by Simon P. Creagh; and in Michaelmas Term 1826, the plaintiff obtained judgment on the bond, for the penal sum of £299. 14s. 2d., to secure the principal sum of £149. 12s. Id., being the amount stated to be then due to the plaintiff on foot of the judgment against Simon P. Creagh. The bill expressly charged that the two judgments so obtained by the plaintiff were to secure one and the same debt; and that the sum of £50 was paid by Dora Creagh on account of said debt, in or about the year 1821. Dora Creagh afterwards intermarried with John Behan; and died leaving the defendant Pierse Creagh her eldest son and heir-at-law. Pierse Creagh afterwards obtained administration de bonis non to Simon P. Creagh and the bill charged that he, as the heir-at-law of Simon P. Creagh and Dora Creagh, and also as the personal representative Jan. 15. A creditor by Hilary Term judgment of 1813, filed a bill in 1837, against the heir and personal representative of the conusor, for payment of the judgment. The heir, who was also the personal representative of the conusor, relied upon the by his answer 3 & 4 W. 4. c. judgment had 27. s. 40. The vived, nor was any payment not been re the principal or interest thereof acknowledg on account of ment in writ- or his real or rendition thereof. The missed with costs. bill was dis The defend ant by his an swer submitted, that by reason of the 3 & 4 W. 4, c. 27, s. 40, the plaintiff was barred from maintaining his suit against him, as the heir-at-law of the conusor; and he relied upon that statute as if he had personally pleaded the same. Held, that it was competent for him, as personal representative of the conusor, to rely on the defence given him by that statute. Upon a former occasion, the defendant moved to suppress all the depositions, on the ground that the interrogatories were not entitled in the cause. The Court made no rule on the motion, on the plaintiff producing the witnesses to be re-sworu; the plaintiff to be at liberty to amend the title of the interrogatories; and in default of his producing such witnesses, within a limited period, the depositions of such witnesses to be suppressed. The witnesses were re-sworn to the depositions to the former interrogatories. The defendant then moved to suppress a deposition, on the ground that the interrogatory was leading. Held, that he had pretermitted his time for making the objection. Documents not under seal cannot be proved vivá voce at the hearing of the cause, as exhibits. 1841. Equity Exch. O'HARA v. CREAGH. of Simon P. Creagh, was liable to pay the plaintiff his demands. The bill further set forth, by way of amendment, that at the time of the death of Dora Creagh, there was a large arrear due to her on foot of her jointure, which, by the settlement of the 18th of June 1807, was charged upon the lands hereinbefore mentioned; and that the defendant Pierse Creagh, upon the death of his father, entered into possession of those lands, and received and applied the entire rents to his own use; and that he refused to account for the arrears of the jointure that there was a sum of upwards of £500 due to the plaintiff for principal, interest and costs on foot of said judgment; that P. Flynn was the personal representative of Dora Creagh, and F. Martin, the heir of the surviving trustee in the settlement of the 18th of June 1807. The bill then charged, that the defendant P. Creagh sometimes pretended that the judgment obtained by the plaintiff against Dora Creagh, was a satisfaction of the judgment obtained against Simon P. Creagh; whereas the plaintiff charged that it was a collateral and additional security only, for the debt secured by the judgment against S. P. Creagh: and, at other times, pretended that the judgment against S. P. Creagh was barred by length of time, and by the provisions of the Statute of Limitations; whereas the plaintiff charged, that the sum of £50 was paid to the plaintiff by Dora Creagh, on foot of the said last-mentioned judgment, and of the debt thereby secured; and that such payment prevented the operation of the statute as regarded said judgment. The prayer of the bill was, for an account of the sum due to the plaintiff on foot of the judgments against S. P. Creagh and Dora Creagh; an account of the real, freehold and personal estate of Simon P. Creagh, and also of the real, freehold and personal estate of Dora Creagh; and that the same respectively might be applied in a due course of administration; and in case the personal estate of S. P. Creagh and Dora Creagh should be insufficient for payment of the plaintiff's demand, that then the real estates might be sold for payment of the demands of the plaintiff and the other creditors of S. P. Creagh. The defendant Pierse Creagh, by his answer to the original bill, relied on the following defences :-First. That supposing, but not admitting, that Dora Creagh passed her bond for the amount of the sum claimed by the plaintiff, as due to him by Dora Creagh, as administratrix of S. P. Creagh, the same was given in full discharge and satisfaction of the said debt, and not as a collateral security. Secondly. He admitted that he was the eldest son and heir-at-law both of Simon P. Creagh and Dora Creagh; and also that he was the personal representative of Simon P. Creagh, having obtained letters of administration to him since the death of Dora Creagh; but he denied that he was personal representative of Dora Creagh; and submitted that he was not liable to pay the plaintiff, as in the bill alleged; for that by the 3 & 4 W. 4, c. 27, s. 40 (which he set out at length,) the plaintiff was barred from maintaining his suit against |