and referred to therein are not material to be stated for the purposes of the present case. Mary Ann Evans attained the age of twenty-one years on the 28th of November, 1864. The premium of 31. 198. payable for effecting the insurance on the life of Mary Ann Evans, and the same sum for continuing the same during the year ending on the 2nd day of November, 1865, were paid by the plaintiff to the society. After the renewal premium had been paid, as in the last paragraph mentioned, namely, on the 15th of March, 1865, Mary Ann Evans died during her confinement. Due proof of the death of Mary Ann Evans was subsequently furnished to the directors of the society pursuant to the provisions of the policy, but the society declined to pay the sum insured, upon the grounds set forth in their pleas to this action. It is agreed that the Court are to have the same power of drawing inferences of fact as a jury might have.

The question for the opinion of the Court is, whether, under the circumstances above stated, the plaintiff is entitled to recover in the present action. If the Court shall be of opinion in the affirmative, then judgment is to be entered for the plaintiff for the sum of 2001. and costs. If the Court shall be of opinion in the negative, their judgment is to be entered for the defendant.

Pinder, for the plaintiff.-The policy was a legal one. In the first place, Jacobs had no legal interest in it.

[LUSH, J.-If the wife had died under age Jacobs would have had an equitable interest in the money insured.]

The husband is the only person who will be said to have had the legal interest in the insurance. He had an insurable interest in his wife's life, and might have insured her life in his own name, or have allowed her to insure in her own name, in which case it would be unnecessary to state his interest. [COCKBURN, C.J.-How can the wife contract in her own name?]

The husband might confer a chose in action on the wife. In Dalton v. the Midland Counties Railway Company (2) it was held that a married woman (subject to a

(2) 13 Com. B. Rep. N.S. 474; s. c. 22 Law J. Rep. (N.s.) C.P. 177.

plea of abatement) might sue for the dividends of stock which she had purchased in her own name, and of which she was registered as owner; and the late case of Fleet v. Perrins (3) is to the same effect. The wife having this chose in action was the person interested in it, as the husband could never reduce it into possession in his lifetime.

[COCKBURN, C.J.-A person may be interested in a policy in two ways: interested in the event, which is one thing, and having the legal interest in the policy, which is another. Can we shut our eyes to the fact that this policy was made for the husband's benefit ?]

In Halford v. Kymer (4), a case where a father had effected an insurance on his son's life in which he had no pecuniary interest, Bayley, J. says, p. 729, "If a father, wishing to give his son property to dispose of, makes an insurance on his son's life, in his (the son's) name, not for his (the father's) own benefit, but for the benefit of his son, there is no law to prevent his doing so."

[COCKBURN, C.J.-In Wainwright v. Bland (5) it was said that an insurance of her life by a woman in her own name, but for the benefit of another, was prohibited by the statute.]

That was a case of gross fraud and suspected murder. Here the transaction was an honest one, and it is quite consistent with the circumstance that it was intended after the wife had attained twenty-one to keep up the policy for her benefit. In Shilling v. the Accidental Death Insurance Company (6), where it was pleaded that the policy was made for the benefit of a person other than the one whose life was insured, both Martin, B. and Bramwell, B. gave their opinion that if there was an understanding between two persons that one should insure his life, and the other pay the premiums, and that the policy should be bequeathed to the latter, the plea would not be proved. The policy is a chose in action, in which, by the form in

(3) 37 Law J. Rep. (N.s.) Q.B. 233.

(4) 10 B. & C. 724.

(5) 1 M. & Rob. 481.

(6) 2 Hurls. & N. 42; s. c. 26 Law J. Rep. (N.S.) Exch. 266.

which it is prepared, the husband has allowed the wife to take an interest. He has disabled himself from interfering with it during her life, and it is like a bond executed in her favour.

[COCKBURN, C.J.-At any rate the policy is for the joint benefit of husband and wife.]

Both Jacobs and the husband have more or less interest in it, but their interest is too remote to make it necessary to be stated.

H. T. Cole (Raymond with him), for the defendants, cited Hobson v. the Observer Life Assurance Society (7).—(He was then stopped.)

COCKBURN, C.J.-I think that this case is too clear to make it necessary to delay our judgment any longer. I will take it in favour of the plaintiff that the policy was intended to operate in the first place for the protection of Jacobs, the surety, and therefore in the language of the statute for his use and benefit, but that after the contingency of the wife dying under twentyone had been guarded against, it was to enure for the benefit of the wife. But even in this view, it seems to me that when one person has an interest in a policy after its immediate purpose has been satisfied, the terms and spirit of the act require that the names and interests of the persons first interested in it should be inserted in the policy one after another. Now, this has not been done in the present case, for I think that at any rate the name of the husband ought to have been inserted as a person interested. I was at first strongly impressed with the idea that the defence was a merely technical one; but as an explanation has been offered, I do not wish to make any observations against the company.

MELLOR, J.-I have come, with great reluctance, to the same conclusion. When you come to look at the policy you find that the wife is stated in the recital to be a married woman, therefore, although the husband made the policy and paid the premiums, the company knew that the person insured was a married woman, and might, one would think, have presumed that the husband had an interest in the policy. But

(7) 8 E. & B. 40; s. c. 26 Law J. Rep. (N.S.) Q.B. 303.

we must decide the case according to the law; and, looking at the words of section 2, I think that they cannot be got over, as the husband was no doubt a person for whose benefit the policy was made.

LUSH, J.-I am of the same opinion. No doubt the statute may operate hardly in some instances, but it is based on the soundest principles. It was meant that no person should have an interest in destroying the life of another, and in order that it might be known who was the person interested in the death, the statute required that his name should be inserted in the policy. The plea alleges that the policy was made in the name and on the pretended behalf of Mary Ann Evans, but for the use and benefit and on the account of the plaintiff. Do the facts prove this statement? I think that they do most conclusively. It appears that the wife being a minor and entitled to money when she came of age, her husband applied to her trustees for an advance, which they agreed to make if the repayment of the amount was secured by one Jacobs, and that Jacobs agreed to become security upon condition that the insurance was effected for his protection. The policy was accordingly effected by the wife at her husband's request, and the plea is in my judgment proved to the very letter. She made the policy to protect her husband from liability, and it was the same thing in contemplation of law as if she had made it as a surety for him. It may be that as the policy is not limited as to time, it was intended that the husband should continue it for the wife's benefit after she attained twenty-one. But this does not take the case out of the statute; it only made it necessary that the names of both husband and wife should be inserted in the policy.

HAYES, J. concurred.

Judgment for the defendants.

Attorneys-Sharp & Ullithorne, for plaintiff;

C. Blake, agent for E. Field, Norwich, for defendant.

County Coroner, Election of-Holding of Sheriff's Court-Finality of Proclamation of Person Chosen.

Where, at a contested election of coroner for any county district, under the 7 & 8 Vict. c. 92, a court has been duly held and one of the candidates proclaimed by the sheriff as the person chosen, the election cannot be disturbed by quo warranto on the ground that the candidate was not elected by a majority of duly qualified voters, as the sheriff's declaration of the state of the poll and proclamation of the person chosen are judicial acts.

This was an information, in the nature of a quo warranto, calling upon the defendant, Dr. T. B. Diplock, to shew by what right he exercised the office of coroner for the western district of the county of Middlesex.

Plea-That, after the passing of the 7 & 8 Vict. c. 92. and the 23 & 24 Vict. c. 116, the coroner for the district in question having died, a writ was delivered to the sheriff commanding him to cause another coroner to be chosen and certify his name; that a court was duly held by the sheriff for this purpose, and the defendant and two others offered themselves as candidates; that the defendant was duly qualified; and that a poll was demanded, and the sheriff then adjourned the court till eight in the forenoon of the next day but one, and duly appointed a number of persons as clerks to take the poll with him. That, before they began to take the poll, every clerk so appointed as aforesaid was duly sworn truly and indifferently to take the same poll, and to set down the names of each elector and place of his residence and for whom he should poll, and to poll no elector who was not sworn, if required to be sworn by the candidates or either of them; that the poll was duly taken by the clerks in the presence of the sheriff, and continued for one day only, for eight hours of such day, and was not kept open later than four o'clock in the afternoon of the day; and at the close of the poll the poll clerks inclosed and sealed their several NEW SERIES, 38.-Q.B.

books, and publicly delivered them so inclosed and sealed to the sheriff, who duly received and kept them unopened until the re-assembling of the Court. That the Court re-assembled on the day next but one after the close of the poll, and then and there the sheriff openly broke the seals on the books, and cast up the numbers of votes as they appeared on the several books, and openly declared the state of the poll, and made a proclamation, not later than two o'clock in the afternoon of the day, that the defendant was duly chosen by a majority of such persons residing within the district as were, at the time of the election, duly qualified to vote at the election of a coroner for the division of the county. Averment-That the defendant was duly proclaimed by the sheriff to be the coroner for the division, duly chosen and elected to be such coroner as aforesaid by a majority of such persons residing within the said district as were, at the time of the election, duly qualified to vote, &c.; and that the defendant then and there was duly sworn and took the oaths required by law to be administered to and taken by a person appointed or elected coroner for any county, and accepted and took upon himself the duties of the office.

Demurrer and joinder in demurrer.

Second replication: That the defendant was not elected to the office by a majority of valid voters duly qualified.

Demurrer and joinder in demurrer.

Keane (Day with him), for the relator. -It will be said that the question whether the defendant was elected by a majority of voters duly qualified was concluded by the election before the sheriff. But this proposition is wholly untenable; the law relating to the election of county coroners is to be found in the 7 & 8 Vict. c. 92. (1) and

(1) By 7 & 8 Vict. c. 92. s. 1, after reciting that the regulations for the elections of coroners are insufficient, and that the elections are made with inconvenience, and attended with great and unnecessary expense, the 58 Geo. 3. c. 95. is repealed.

By section 9. every coroner is to be chosen by a majority of such persons residing within the district as shall at the time of such election be duly qualified to vote at the elections of coroners for the county.

By section 10, "From and after the division of any county into coroners' districts, upon every election to be made of any coroner or coroners for any county the sheriff of the county where such election shall be made shall hold a court

2Q

23 & 24 Vict. c. 116. s. 2. These statutes repealed the old act, 58 Geo. 3. c. 95, and, by reducing the time within which the poll is to be taken, have deprived the candidates of the power of obtaining a full and satisfactory scrutiny at the time of the

for the same election at some convenient place within the district for which the election of coroner shall take place, on some day to be by him appointed, which day shall not be less than seven days nor more than fourteen days after the receipt of the writ de coronatore eligendo; and in case the election be not then determined upon the view, with the consent of the electors there present, but that a poll shall be demanded for determination thereof, then the sheriff, or in his absence his under-sheriff, shall adjourn the same court to eight of the clock in the forenoon of the next day but one, unless such next day but one shall be Saturday or Sunday, and then of the Monday following;

and the sheriff, or in his absence the undersheriff, with such others as shall be deputed by him shall then and there proceed to take the poll in some public place or places by the same sheriff, or his under-sheriff as aforesaid in his absence, or others appointed for the taking thereof as aforesaid; and such polling shall continue for two days only [reduced to one day by 23 & 24 Vict. c. 116. s. 2.], for eight hours in each day; and no poll shall be kept open later than four of the clock in the afternoon of either of the said days."

By section 11. places are to be appointed for taking the poll at elections for coroners.

By section 12. the sheriff is to erect booths for taking the poll at the court or principal place of election.

By section 13. for the more due and orderly proceeding in the poll the sheriff, or in his absence the under-sheriff, or such as he shall depute, shall appoint such number of clerks as to him shall seem meet and convenient for the taking thereof, which clerks shall take the poll in the presence of the sheriff or his under-sheriff, or such as he shall depute; and before they begin to take the poll every clerk so appointed shall by the sheriff or his under-sheriff, or such as he shall depute as aforesaid, be sworn truly and indifferently to take the same poll, and to set down the names of each elector, and the place of his residence, and for whom he shall poll, and to poll no elector who is not sworn, if required to be sworn by the candidates or either of them. The oath to be taken is as follows:

'I SWEAR [or, being one of the people called "Quakers, or entitled by Law to make Affirmation, solemnly affirm], That I am a Freeholder of the County of and have a Freehold Estate, 'consisting of lying at within the 'said County; and that such Freehold Estate has 'not been granted to me fraudulently or colourably on purpose to qualify me to give my Vote at this 'Election: and that the Place of my Abode is at [and, if it be a Place consisting of more "Streets or Places than One, specifying what Street or Place]; that I am Twenty-one Years of Age, as I believe; and that I have not been before

election. In The Queen v. Day (2), the question whether a coroner was elected by voters duly qualified was raised by quo

warranto.

[LUSH, J.-Yes, but only by the consent of the parties.]

That case is approved of by Lord Cranworth in In re the Coroner of Hemel Hempstead (3). The election before the sheriff is not a judicial act. No judgment is given, and the sheriff is bound to take the votes as they are tendered.

Gray (H. H. Shephard with him), for the defendant. The question in the present case was finally decided at the election before the sheriff. The election of the coroner at the county court of the sheriff is a judicial act. The right to the office may be inquired into for some purposes, but this Court is unable to try the question whether the voters were entitled to vote. The sheriff is the Judge of the court, and his proclamation is final. In Dyer, 165 a, resolutions by the Justices, &c. upon the stat. 1 Edw. 6. c. 7, it was resolved, first, the king, who is heir or successor, may proclaim and commence his reign on the same day that his progenitor or predecessor died. Also, all patents of the Judges of the one bench and the other, the Barons of the Exchequer, sheriffs, &c. are determined by the death of the king who made them: otherwise it is of coroners, who are chosen by writ. In Coke's Inst., 2nd part, 175, it is said, "It is holden in our books, that albeit the king dieth, yet the coroner, because he

'polled at this Election [adding, except in Cases of solemn Affirmations] 'So help me GOD.'

By section 14. every elector wilfully or falsely taking the oath or affirmation shall incur the penalties by law inflicted on persons guilty of perjury; and any person unlawfully and corruptly procuring or suborning any freeholder, or other person, wilfully and falsely to take the oath or affirmation in order to be polled, shall incur the pains and penalties inflicted on persons guilty of subornation of perjury.

By section 15. the poll-books at the close of the poll are to be transmitted to the sheriff or undersheriff, who is to receive and keep them until the re-assembling of the Court on the next day but one after the close of the poll, when he is to cast up the votes and " openly declare the state of the poll, and make proclamation of the person chosen, not later than two o'clock in the afternoon of the said day."

(2) 3 El. & B. 859; s. c. 23 Law J. Rep. (N.s.) Q.B. 317.

(3) 5 De Gex, M. & G. 228.

is elected by the freeholders of the county by writ, and returned of record in the Chancery, which is a judicial act, remained." The mode of electing the candidate is now practically the same as that under the repealed statute, 58 Geo. 3. c. 95; and by 7 & 8 Vict. c. 92. s. 10. the sheriff is directed to hold "a special county court." The statute also provides that an oath may, if necessary, be administered to the electors, and any one falsely making this oath is liable to the penalties for perjury, so that there can be no difficulty in testing the qualification of the voters.

COCKBURN, C.J.-I think that our judgment must be in favour of the defendant. I-entertain no doubt that the sheriff in holding his special county court for the election of coroner, in taking the poll at such court, and in making proclamation of the person chosen, was exercising judicial functions. He is Judge of that court, and there can be no doubt that under the old practice it was his business while holding that court to take a scrutiny when there was a dispute as to the votes. Many of us are old enough to remember that before the passing of the Reform Act the sheriff or his deputies used to inquire into the validity of votes tendered at a parliamentary election while it was going on, and this inquiry was a judicial proceeding. We have also the high authority of Lord Coke that the sheriff upon this occasion exercises a judicial function. Now, I think that in former times, when there was a scrutiny, it could not have been contended that there was an appeal from the decision of the presiding officer to this court. Nobody ever came to this court to ask for a fresh scrutiny, and that the decision of the sheriff might be questioned by the intervention of a jury. It is said that the act of parliament has rendered a scrutiny impossible by limiting the duration of the election, so that it is not possible to determine the legality of the votes. This may be so, but it is not because the statute has rendered an inquiry more difficult that therefore the duty of making it is to be transferred to this Court, where no such duty existed before. The time of polling was reduced because it was found that when it lasted for ten days the expense

was such as to deter candidates from offering themselves for election. The act of parliament has therefore limited the time of polling within narrower limits, and I must confess that I have thought that the time might be still further abridged. The oath that the elector is a freeholder is practically substituted for the scrutiny, and though the change may be open to this inconvenience, that by this means any person by perjuring himself has an opportunity of voting which he did not enjoy before, yet the legislature may have thought that very few persons would take upon themselves the risk of committing this offence. At all events, I think it better that matters should remain as they are instead of having the question decided by a jury, which is not the tribunal best adapted for the purpose. I am very far from saying that there may not be many cases in which a quo warranto might lie as regards the office of coroner; for example, where the candidate had not the qualification required by the statute, or where the election had not been properly conducted. But when, as in the present case, no such objection is made, and all that is asked for is a scrutiny into the votes, we must assume that the court was duly held, that a sufficient number of duly qualified votes was given, and that the proclamation was duly made. Our judgment must therefore be in favour of the defendant.

MELLOR, J.-I am of the same opinion. Is the question whether the candidate was elected by a majority of duly qualified voters to be determined by the County Court or this Court? I think that the allegations which the pleadings contain are sufficient to shew that the proceedings before the sheriff were duly held. The votes must be received and the voter left to the penalties of perjury if he is not duly qualified. This may be an imperfect remedy, but it is the only one which the legislature has provided. I cannot think that the plea is bad for omitting to state that the defendant was elected by a majority of voters duly qualified.

LUSH, J. and HAYES, J. concurred.
Judgment for the defendant,

Attorneys-Merriman & Buckland, for relator;
F. J. Hand, for defendant.