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Exch. of Pleas, ject to the condition or proviso stated in the declara

1840.

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tion.

Peacock, in support of the demurrer, was stopped by the Court, who called upon

Cowling to support the declaration.-The declaration is sufficient. It was not necessary to allege any notice to the defendant; for the declaration states that the defendant did, at the request of the plaintiff, appear at the Rock Life Assurance Office, and did answer certain questions put to him; and he might, therefore, have informed himself of the fact of the insurance having been effected, and of the terms and conditions of it. The general rule is, that a party is not bound to do more than the terms of his contract oblige him to do; and here there is nothing in this covenant requiring him to give any notice. Therefore, unless the circumstances were such that the defendant had not any means of informing himself of it, no notice was necessary. This contract to insure is confined to insurance offices within the bills of mortality; and the defendant might readily have informed himself by inquiry of the fact of the insurance having been effected, and of the terms and conditions of it. In Com. Dig. tit. Condition, L. 9, many instances are given where parties are not bound to give notice, but the other parties must take notice at their peril. It is there said-" If a condition, covenant, or promise, be to do an act to a stranger, or upon performance of an act by a stranger, there needs no notice; for it lies equally in the knowledge of the obligor and obligee, and the obligor takes upon himself to do it; as if a condition be to pay when A. marries, there needs no notice when A. marries. So, if a condition, covenant, or promise, be to do upon the performance of any certain and particular act by the obligee himself, he ought to do it without notice by the obligee that the act is performed;

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for he takes it upon him to do it at his peril: as if the Exch. of Pleas, condition be to pay so much when the obligee marries, there need not be notice of his marriage." Notice is not necessary, unless where the party expressly contracts to give Wakefield. notice, or where it must necessarily be implied that notice is to be given, because the obligor cannot know or ascertain, from the nature of the thing, whether the act has been done or not. In Rex v. Holland (a), it was held, that where a public officer is charged with a breach of duty, which duty arises from certain acts within the limits of his government, it is not necessary to aver, in an indictment against him, that he had notice of those acts, as he is presumed from his situation to know them. In answer to the objection of want of notice, Wood says, in the argument,-"Notice here merely means knowledge; and when the matter is as much in the knowledge of the defendant, or more, than of any other person, the law presumes that he had knowledge:" for which he cites 16 Viner's Abr. tit. Notice, p. 5, pl. 10, where it is said— "None is bound by the law to give notice to another of that which that other person may otherwise inform himself of:" and Lord Kenyon, in giving judgment, refers to that argument, and recognises it as shewing "the true grounds upon which notice is or is not required to be averred." So here, the defendant might have informed himself whether the insurance was effected or not, and was bound to do so at his peril; and the plaintiff not having undertaken by his contract to give the defendant notice that the assurance was effected, was not bound to do so. The defendant, by his covenant, undertakes to do nothing to vitiate an insurance effected with any person within the bills of mortality, without any stipulation whatever as to notice of the particular person with whom it should be effected. [Parke, B.-If the covenant had spoken of an insurance

(a) 5 T. R. 607.

Exch. of Pleas, to be effected with A. B., there would be no necessity for

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notice; but if it were with any person that the plaintiff may choose, then it must surely be necessary that notice WAKEFIELD. should be given. Is not notice equally necessary, when the covenant applies to an insurance in any one of the many public offices within the bills of mortality?] If five or six offices had been named, no notice would be neces sary. If there are such a number of insurance offices in London as would render it unreasonable to expect the defendant to inquire of them all whether such an insurance had been effected, the defendant should have shewn that by his plea; not having done so, the Court will not assume it to be the fact. In Doe v. Whitehead (a), which was an ejectment by landlord against tenant, on an alleged forfeiture by breach of a covenant to insure "in some office in or near London," it was held that the omission to insure must be proved by the plaintiff. There the same objection would have applied, as it would have been necessary for the landlord to make inquiry at every office in or near London. Lord Denman, C. J., says, "The proof may be difficult, where the matter is peculiarly within the defendant's knowledge; but that does not vary the rule of law; and the landlord might have had a covenant inserted in the lease to insure at a particular office, or to produce a policy when called for, on pain of forfeiture. If he will make the conditions of his lease such as render the proof of a breach very difficult, the Court cannot assist him." Here the district is limited; but if the number of offices within it are so inconvenient as to render inquiry difficult, the Court cannot calculate the balance of inconvenience. Suppose all the insurance offices were in one street, no notice would surely in such case be necessary. [Parke, B.-Have you any authority for that, or in any case where there is any choice as to where the

(a) 8 Ad. & Ell. 571; 3 Nev. & Per. 557.

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insurance shall be effected?] The cases cited in Com. Erch. of Pleas, Dig., before referred to, are applicable in principle; but there is no case where the party's having a choice as to the office in which an insurance is to be effected, has been held to render notice necessary. In Viner's Abr., Condition (A. d.), pl. 15, it is said-" If A. sells to B. certain weys of barley, or other things, and B. assumes to pay for every wey as much as he sells a wey for to any other man; if he after sells to others certain weys for a certain sum, he shall not have an action on the case against B. upon his promise, till he hath given him notice for how much he sold the wey to others; for B. is not bound to pay it till notice, because it is uncertain and not known to him; and here he assumes in general, and not in particular, scilicet, to pay so much as J. S. shall pay for a wey, and so he does not assume to take notice at his peril;" "but," it is added in pl. 16, "if he had assumed to pay as much for every wey as he sold a wey for to J. S., if J. S. after bought a wey for a certain sum, he ought to take notice thereof at his peril, without any notice given, otherwise he hath broke his promise." If, in the present case, the number of offices had been limited, it is quite clear that notice would not have been necessary, because the Court cannot measure the inconvenience arising from a greater or less number; and the same argument will apply where the district is limited. The defendant might have remedied the inconvenience, if any inconvenience exists, by providing for it in his contract.

Peacock, in support of the demurrer.-The principle established by the cases is, that where the act is to be done by a stranger, no notice is necessary, because the fact is as much within the knowledge of the one party as the other but where the act is to be done by the plaintiff himself, it is otherwise, and notice must be given: Powle v.

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Exch. of Pleas, Hagger (a). There the Court expressly drew the distinction between the case where the act is to be done by a stranger, and where it is to be done by the plaintiff himself. [Parke, WAKEFIELD. B.-In Bradley v. Toder (b), and in Fletcher v. Pynsett (c), where the promise was in consideration that the plaintiff would marry such a woman, the defendant would give him £100, it was held that notice of the marriage was not necessary.] In Bradley v. Toder, the Court at first held that the declaration was not good, because it was not alleged that the plaintiff gave notice of the marriage; and though the Court afterwards resolved that it was good, the reason given is, that it was a necessary intendment, that when, after the marriage, he requested payment of the money, notice of the marriage was given. But this is an act which lies entirely within the knowledge of the plaintiff, who effected the policy, and who alone could know the conditions annexed to it. All the cases turn upon the question, whether the defendant had the means of knowledge or not; and if he had not, or not equally with the plaintiff, then notice is requisite. [Lord Abinger, C. B.-Suppose the defendant had promised to pay £1000 to any banker in London that the plaintiff chose to open an account with-must not the plaintiff give him notice of the bank in which he has opened an account? Parke, B. Suppose the covenant had been, that the defendant would perform the terms and conditions of any policy that the plaintiff had entered into with the Rock Life Assurance Company, he must in that case have made inquiry as to the terms upon which the policy was effected.]

In

v. Henning (d), it is said-" If the agreement be, that he shall pay so much as J. S. in particular paid, in that case quia constat de personâ, and he is indifferently

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