CROWDER, J.-I am of opinion that this rule should be made absolute. It appears that on the 4th of March, orders were obtained both by Dresser and Chilton to attach in the hands of The Maritime Passengers' Assurance Company the money which was to become payable to Johns upon the verdict recovered by him in his action against the company. But at that time there was no debt "owing or accruing" from the company to Johns, judgment not having then been signed: both, therefore, were acting in mistake; for, there could be no proper application under the 61st section of the Common Law Procedure Act, 1854, until there was a debt, viz. the 8th of March, when the judgment was signed. On the 10th of March, Chilton obtained a second order. It has been argued by Mr. Brown that there was on the 4th of March, when Dresser's order nisi was obtained, a debt accruing due within the meaning of the statute, and therefore that the order made on the 11th was a valid order. Jones v. Thompson, however, is a direct decision, and, as we all think, a correct decision, that there was no debt owing or accruing until the final judgment was signed on the 8th. I myself have certainly acted upon that view on *several occasions at Chambers. And the Irish *437] Court of Exchequer, in Sparks v. Younge, 8 Irish Common Law Rep. 251, put the same construction upon similar words in the Irish Common Law Procedure Act, 19 & 20 Vict. c. 102. There being, then, no debt until judgment was signed, the order of the 4th of March was clearly invalid. Then comes the order obtained by Chilton on the 10th, which was not discussed until the 17th, when my Brother Williams ordered that Dresser should pay into court the 100l. which he had received from the garnishees under the order of the 11th of March, and that the whole matter should be referred to the court, and the costs abide the event. We are of opinion that Mr. Chilton is, under his order of the 10th, entitled to the 100l. so directed to be paid into court, and also to the costs of the summons on which the order of the 17th was made, but not to the costs of this application.

In many of the United States, it is settled, that foreign attachment or trustee process, will not reach a claim of the defendant against the garnishee, upon a cause of action which sounds in unliquidated damages: Rundlet v. Jordan, 3 Greenl. Maine 47; Paul v. Paul, 10 N. H. 117; Despatch Line of Packets v. Bellamy Manuf. Co., 12 Id. 205; Foster v. Dudley, 10 Foster 463; Hemmenway v. Pratt, 23 Verm. 332; Hugg v. Booth, 2 Ired. 282; Deavey v. Keith, 5 Id. 374. In Pennsylvania, however, it has been held, that a claim under a policy of insurance,

Rule absolute accordingly.

for a loss by fire, is the subject of an attachment, at least after an adjustment: Boyle v. Franklin Fire Ins. Co., 7 Watts & Serg. 76; Franklin Fire Ins. Co. v. West, 8 Id. 352; S. C. 3 Penn. Law Journ. 299.

Under an early statute in Massachusetts, which excluded negotiable paper from the operation of the trustee process, it was held, that a mere verdict in an action against the endorser of a note. did not make the debt thereupon liable to attachment: Eunson v. Healy, 2 Mass. 32.

CAZENOVE and Others, Assignees of JOHN THOMSON, a Bankrupt, v. THE BRITISH EQUITABLE ASSURANCE COMPANY. May 6.

One T. effected a policy on his own life, with a condition thereon endorsed, that, "in case any fraudulent or untrue statement was contained in any of the documents addressed to or deposited with the company in relation to the within assurance, whether by the payee, the assured, or any referee or other person, then the policy should be void." Among the documents referred to was one called a

personal statement," which contained, amongst others, the following questions:-"4. Whether bad, since infancy, any and what other disease (than those enumerated in a preceding question) requiring confinement?" "8. How often has medical attendance been required?" "9. How long did such attendance continue ?" "10. For what disease or diseases?" "11. For what period confined to the house or bed?" "12. How long is it since these circumstances occurred?" "13. Name and address of the medical attendant or attendants employed on occasion of such disease?" The answers to these questions were as follows,-To the 4th, "No;" to the 8th, "Two years ago;" to the 9th, "About one week;" to the 10th, "Disordered stomach;" to the 11th, "A week;" to the 12th, "One year;" and to the 13th, "Dr. R., Rock Ferry."

It appeared that the attendance of Dr. R. was in December, 1855; that, in January, 1856, the assured had had a relapse, when he was attended by one Dr. C.; and that, in February, while at Birmingham, he had another severe illness, when his life was despaired of, and on which occasion he was attended by three other medical men :

Held, that the untruth of the above answers avoided the policy, notwithstanding the jury found that no material information had been withheld from the insurers, and it was conceded that there was no intentional fraud.

THIS was an action by the plaintiffs, assignees of John Thomson, a bankrupt, deceased, to recover the sum of 500l., for which the deceased had insured his life with the British Equitable Assurance Company. *The declaration stated, that, in the lifetime, and before the [*438 bankruptcy of the said John Thomson, the said company, by deed under their common seal, dated the 5th of March, 1857, covenanted with him that they the said company, or their successors, if their corporate funds, property, and effects for the time being, including the amount of capital subscribed for and not paid up, if any, after satisfying all prior claims and charges thereon, should be sufficient for the purpose, and if the current premium should have been paid, and the other regulations endorsed thereon should have been observed by the person entitled to the benefit of that assurance, would within two calendar months next after satisfactory proof should have been made, according to the rules, regulations, and practice of the said company for the time being, of the death of the said John Thomson, pay unto his executors or administrators the full sum of 5007. sterling, and all such other sums, if any, as the said company by their directors might have ordered to be added to such amount, by way of bonus or otherwise, according to their practice for the time being: provided always that that policy was made subject to the conditions and regulations thereon endorsed: that the said. John Thomson afterwards departed this life, and satisfactory proof of his death was, more than two months before the *commencement of the action, made, according to the rules, regulations, and [*439 practice of the said company for the time being: that all current premiums on the said policy were paid, and all the conditions and regulations endorsed thereon were observed and performed: that, at the time of the said death, and thenceforth continually, the corporate funds, property, and effects of the said company for the time being, including the amount of capital subscribed for and not paid up, after satisfying all

prior claims and charges thereon, were sufficient for the purpose in the said policy mentioned: and that the time had elapsed, and all things had taken place and been done necessary to entitle the plaintiffs, assignees as aforesaid, to have the said sum of 500l. paid to them as assignees as aforesaid: yet that the said company had made default, and had not paid the said sum of 500l., or any part thereof, according to the said policy; and the said sum of 500l. still remained wholly due and unpaid to the plaintiffs, assignees as aforesaid.

The defendants pleaded,-first, that one of the said conditions and regulations endorsed on the said policy was and is to the tenor following, that is to say, "4th. In case any fraudulent or untrue statement is contained in any of the documents addressed to or deposited with the company in relation to the within assurance, whether by the payee, the assured, or any referee or other person, then the policy shall be void; but, in case of a mere accidental erroneous statement of the age of the assured, the said company, provided application shall be made within three months after discovery of the error, and proof shall have been given to the satisfaction of their directors that no fraud was intended, will waive such forfeiture on such terms as the said directors shall impose by an endorsement on this policy under the hand of their manager or of their chairman:" and that, before and at the time of the

*440] making of the said policy, divers fraudulent statements were

contained in two certain documents addressed to and deposited with the said company by the said John Thomson in relation to the said assurance so made as aforesaid, the said statements being other than a mere accidental erroneous statement of the age of the said John Thomson; whereby the said policy was and is void.

Secondly, that one of the said conditions and regulations endorsed on the said policy was and is to the tenor of that set forth in the said first plea; and that, before and at the time of the making of the said policy, divers untrue statements were contained in two certain documents addressed to and deposited with the said company by the said John Thomson in relation to the said insurance so made as aforesaid, the said statements being other than a mere accidental erroneous statement of the age of the said John Thomson; whereby the said policy was and is void. Issue thereon.

The cause was tried before Byles, J., at the last Spring Assizes at Liverpool, when the following facts appeared in evidence:

On the 22d of December, 1856, the deceased, Ralph Hardie Thomson, being desirous of insuring his life in the British Equitable Assurance Office, was required by them to answer certain matters which were contained in a printed form of proposal. The material ones were,"7th. Have you ever, and when, been attended by a medical man?" "8th. Names and addresses of the usual medical attendant, and the last medical attendant." The answers given were, to the 7th,-" About one year ago;" and to the 8th, "Names: Mr. Craigie. Addresses: Birkenhead. Have known the party two years.' There was a further *441] *requirement, viz. "Date of last professional attendance," the answer to which was not filled in. At the foot of the document was the following:-"I declare that the above particulars are true, and that I have withheld no material information.

RALPH HARDIE THOMSON."

In addition to the form of proposal, the party was required to answer certain other questions which were contained in a document called the "personal statement," of which the following are the material parts:— "PERSONAL STATEMENT.

"To be made to the medical officer of The British Equitable Assurance Company, and to be signed by the party whose life is proposed for

assurance.

N. B. It is particularly requested that precise answers may be obtained to each inquiry.

Questions.

2. Whether had any and which of the following diseases, viz., rheumatism, gout, shortness of breath, asthma, palpitation of the heart, fainting, giddiness, headache, fits, epilepsy, consumption, spitting or other discharges of blood, scrofula, cancer, piles, stone, gravel, stricture, rupture, insanity, delirium tremens, or dropsy?.

4. Whether had, since infancy, any and what other diseases requiring confinement?

5. Whether had tumour or swelling of any kind? State its nature and position?

6. Whether had any and what accident requiring confinement?

No.

No.

No.

Answers.

Nose fracture at school.

7. If ever engaged in any and what unhealthy business or pursuit? No. 8. How often has medical attendance been required?

9. How long did such attendance continue? 10. For what disease or diseases?

11. For what period confined to the house or the bed? 12. How long is it since these circumstances occurred?

.

13. Name and address of the medical attendant or attendants employed on occasion of such disease?

16. Whether of strictly temperate or intemperate or free habits?

General Question.

Do you know of any and what other circumstances connected with| your family, habits, constitution, health, or condition, which may tend to affect your life?

Is there any other circumstance which the officers of the company ought to know?

Two years ago.
About one week.
Disordered stomach.

A week.

One year.

Dr. Roper, Rock Ferry.
Temperate.

No.

.No.

"I declare all the above answers to be correct and true.
"RALPH HARDIE THOMSON.

"January 6th, 1857."

Being satisfied with the above answers, the company, on the 6th of March, 1857, issued the policy declared on, subject to certain conditions endorsed thereon, one of which was as follows:

"4. In case any fraudulent or untrue statement is contained in any of the documents addressed to or deposited with the company in relation to the within assurance, whether by the payee, the assured, or any referee or other person, then the policy shall be void. But, in case of a mere accidental erroneous statement of the age of the assured, the said company, provided application shall be made within three months after discovery of the error, and proof shall have been given to the satisfaction of their directors that no fraud was intended, will waive such forfeiture, on such terms as the said directors shall impose, by an endorsement on this policy, under the hand of their manager or of their chairman." The first plea, so far as related to the imputation of *fraud, was abandoned; and the defendants' counsel relied solely upon the fact of the statements contained in the answers to certain of the

[*443

questions contained in the "proposal" and "personal statement" being untrue, as alleged in the second plea. The evidence upon the subject was as follows:-The assured was a man of dyspeptic habit. In the month of December, 1855, whilst residing at Birkenhead, he had a violent bilious attack, and was attended by one Dr. Roper. After a few days he got better, and went to Dublin. He returned thence to Birkenhead, where he had a second attack, and was again attended by Dr. Roper. Before his recovery, Dr. Roper becoming ill, the assured was attended by one Dr. Craigie, under whose care he remained from the 2d till the 8th of January, 1856, when he was restored to his usual state of health, and so remained until the 5th of February, when, being in Birmingham, his complaint returned with such violence as to require between the 15th and 21st the constant attendance of three medical men, viz., Dr. Fletcher, Dr. Palmer, and an apothecary. Having recovered from this attack also, he returned to Birkenhead, where he remained without requiring any further medical attendance until December, 1857, when he was again under the care of Dr. Craigie for an inflammatory affection of the liver, which complaint caused his death in April, 1858.

Thomson became bankrupt in March, 1857, and the plaintiffs were appointed his assignees.

It was contended, on the part of the defendants, that the untrue answers given by Thomson to the questions contained in the proposal and personal statement, which formed the basis of the contract, avoided the policy; and that it was unnecessary to inquire whether the concealment of the names of the medical men who had attended him at Birmingham was fraudulent or accidental.

*444] *For the plaintiffs it was insisted, that, there being no fraud, and the answers being substantially true, and the information uncommunicated immaterial, the plaintiffs were entitled to recover.

The learned judge, reserving the question as to the construction of the contract for the court, left it to the jury to say whether or not any material information had been withheld. They found in the negative, and accordingly returned a verdict for the plaintiffs for the sum insured.

Atherton, Q. C., on a former day in this term, in pursuance of the leave reserved to him at the trial, obtained a rule nisi to enter a verdict for the defendants, on the ground that the untruth of the statements contained in the proposal and personal statement avoided the policy; or for a new trial, on the ground that the verdict was against the evidence. He referred to Anderson v. Fitzgerald, 4 House of Lords Cases 484. The proviso in the policy there was, that, "if any circumstance material to this insurance shall not have been truly stated, or shall have been misrepresented or concealed, or any false statements made to the company in or about the obtaining or effecting of this insurance," the policy should be void: and it was held, that, in an action against the company on the policy, they were entitled to succeed if the answers to the questions contained in the proposal were false; and that it was not essential to their case that the matters therein contained should be material as well as false.

Edward James, Q. C., and Henderson, showed cause.-No fraud is imputed; neither is there substantially any untrue statement. Thomson