^^ IMAGE EVALUATION TEST TARGET (MT-3) 5' #/ ^/ . sion, or tha back covar whan appropriata. All othar original copias ara filmad baginning on tha first paga with a printad or iliustratad impraa- sion. and anding on tha laat paga with a printad or iliustratad imprassion. Las imagas suivantas ont it* raproduitas avac l« plus grand soin. compta tanu da la condition at da la nattat* da l'axamplaira film*, at an conformit* avac las conditions du contrat da filmaga. Las axamplairas originaux dont la couvartura an papiar aat ifhprim*a sont film*s an commandant par la pramiar plat at an tarminant soit par la darni*ra paga qui cpmporta una amprainta d'impraaaion ou d'illustration, soit par la sacond plat, salon la caa. Toua las autras axamplairas originaux sont film*s an commandant par la prami*ra paga qui comporta una amprainta d'impraaaion ou d'illustration at an tarminant par la darni*ra paga qui comporta una talla amprainta. Tha last racordad frama on aach microficha shall contain tha symbol —^^^i moaning "CON- TINUED"), or tha aymbol V (moaning "END"), whichavar appliaa. Un daa symbolas suivants apparaitra sur la darni*ra Imaga da chaqua microficha. salon la cas: la aymbola — *> signifia "A SUIVRE". la symbola V signifia "FIN". ly^aps, platas, charts, ate. may ba filmad at diffarant raduction ratios. Thosa too larga to ba antiraly includad in ona axposura ara filmad baginning in tha uppar laft hand cornar. laft to right and top to bottom, aa many framas as raquirad. Tha following diagrams illustrata tha mathod: Las cartaa, planchas, tablaaux. ate. pauvant *tra fiim*a * das taux da r*duction diff*rants. Lorsqua la documant ast trop grand pour *tra raproduit an un saul clich*. il ast film* * partir da I'angla sup*riaur gaucha. da gaucha * droita. at da haut an baa, an pranant la nombra d'imagas n*cassaira. Laa diagrammes suivants illustrant la m*thoda. 1 2 3 1 2 3 4 5 6 rv /3S -y /»fti*«ii'P- g>C^ r. A- ' -i^^ t^C^SL^ > OF THE CASB OF 1. fiiil TS. The Quebee Fire Assuranee Co;iip^i^ TRIED BEFORE CHIEF JUSTICE- ! 'syl'""^** U-'' \ Sir JAMES STUART, Bii|*i&v - -vv Aim ^ ^ SPECIA r> VJ MARCH, t5i4.^vj©<^ BY J. B. PARKIN, Esqr., Barrister at Law. > ^ 2^ QUEBEC : PRINTED BT T. CARV & C '•d^'o^:^ iM- ^> * T in the f to avv! althou^ their nutest witness appare as that recent. in this hoped, terestec means and of which of the c The render the sub howev< not pr " popu strictly as a " and re] classifi Ano ahstrac Justice require NOTICE. The events which gave rise to the case reported in the following pages, are of a nature well calculated to awaken intense public interest. Accordingly, although now nearly four years have elapsed since their occurrence, the prospect of learning the mi • nutest details from so authentic a source as the witness-box, assembled crowds together at the trial ; apparently under the influence of a curiosity as vivid as that which existed when the occurrences were yet recent. While therefore, to the public, an account in this form, will prove highly acceptable, it is hoped, that to the parties more immediately in- terested, it may not prove less so ; as being tlie means of disseminating the real facts of the case, and of overturning the various misrepresentations which rumour may ^have circulaited io the detriment of the one or of the other. The most strenuous exertionn have been made to render the report accurate, with the view to convey the substantial facts of the case to the public. It is, however, necessary to observe that these pages do not pretend to a higher character than that of a " popular" report, in opposition to wh«t might more strictly be required, were they offered to the profession as a " law" report. This must excuse redundancies and repetitions ; minut^ee in details and absence of classification of facts. Another subject requires notice, and that is, the abstract given of the Charge of the learned Chief Justice, and of the addresses of the Counsel. Justice requires, that the compiler should disavow any in.- tention to represent that abstract as a full report of the eloquent addresses of those gentlemen ; and this applies more particularly to the Charge, which, with all the labour bestowed to attain to correctness, has, he is conscious, lost the connexion of argument and style, and the elegance of diction which distinguished it. The great additional interest they confer upon the report, must prove his excuse for giving them publicity, with no higher recommendation than that of substantial accuracy. J. B. P. Quebec, QHlnd March, iSiA. eport of and this ch, with ess, has, lent and nguished er upon ng them han that B. P. IN THE KING'S BENCH. a F E B E C . Before Chief Justice Sir Jambs Stuart, and a Special Jury. DiU vs. Quebec Fire Assurance Compfiny* JuaoRs SWORN : John McKee, J as. Micklejohn, William Patton, Thomas Payne, Henry J. Rusiel, Matthew Moodie. James Hayes, Wm. B. Jefferys, Peter Langlois, Abraham Lenfesty, Andrew J. Maxham, John Marlyn, Counsel for Piainlifl', Messrs. Vanfelson and Chambers. Counsel for Defendant, Messrs. Black and Duval. 18th March, 1844. •Coun«e2 for Plaintiff: The action which is now brought under the consideration of the court and jury han for its object to seek indemnity, to the amount of £600, under a policy or insurance effected by the plain- tiff with the defendant in the year 1841. In the month of I August of that year, the plaintiff effected insurance with the Company against loss by fire, upon three des- criptions of property :— Ist. Upon his household furniture, wearing apparel, books, &c. 2ndly. Upon his stock as an apothecary, and Srdly. Upon surgical instruments. The plaintiff continued in the exercisb *A his profession of Surgeon and Apothecary, until the 1st of October, 1841, when on the morning of that day, between the hours ot one and (wo, the house in which he lived in St. Joseph Street was burnt down, and he sustained a total loss of the effects insured. \'3 .t^U* M ^^« In compliance with the coiiditions of his policy, the ?ilainlifr, the day after lh« accident, gave notice of his OSS to the Company. By the fifteenth rondition of hit policy the plaintiff was bound, within fourteen days at farthest after the accident, to furnish a statement of the tarliculars of his claim and substantiate it by affidavit, ^pon application, however, at the office of the company, and upon the plaintiff's slating that he was occupied in an investigation which was then going on before the Magistrates respecting the origin of the fire, the Company consented to postpone this delay until after the conclu* sion of that investigation. At the time appointed the plaintiff delivered in a statement of his loss, and made affidavit before the President, who was a Justice of the Peace, to the truth of this statement and the particulars of the fire. This affidavit was drawn up in the hand writing of the Secretary of the Company, and after a few corrections by the plaintiff, was signed and sworn to by him. His papers were then delivered in, unobjected to, and the plaintiff left to await the Company's decision. After a few days he called for the answer of the defend* ant respecting his claim, when, to his great surprise, and although up to this time the objection had never been mentioned, he was informed thai he had come too late and that the Policy was forfeited in consequence of the nonfuliilment of this condition. It will be the duty of the plaintiff in this case to show— 1st. The contract of insurance effected by him with the defendant : 2ndly. The loss sustained. In cases like these it is impossible to be very accurate in the proof of loss, more particularly where as in the present case, the loss has been a total loss ; but we shall show the value of the articles destroyed by evidence d persons who were acquainted with them, by bills of parcels and other vouchers. The defendant has set up two pleas in defence. The general issue and a peremptory exception. Should the defendant enter upon this defence it will then be the duty of the plaintiff to rebut it. At present it is unnecessary to go further than into proof of the facts already stated. I shall, therefore, reserve myself for a subsequent address to enter further into the case, should (he defence render thai course necessary. Evidence for the itlaintifT: — Samuel Wright, Esq., Secretary to the Company, an. peared to answer inteiiogatories upon faits et articles submitted to the defendant. Admits that the plainiifl called at the office of the Company to make arrangements to effect insurance upon properly in a bouse situated in St. Joseph Street, and that sucn arrangements were subsequently carried into effect. Produces a policy of insurance made up from the abstract kept in the Company's register of the policy efTected by the plaintifl', beating date the 31tt day of Augu»t, 1841, insuring to the extent of £600 on the plaintiff's house- hold furniture, linen, weaiing apparel and primed books, a grate, a lixlure in a house occupied by the assured as a dwelling and apothecary's shop ; on shop fixtures ; and on medicines, surgical instruments fee. Admits that noHce Of ioss was given on the 2nd October— that plaiiu tiff' called at the Company's office and stated that an in- vestigation was going on before the Magistrates as to the cause of the fire, and that he did not wish to give in his statement of loss till it was over — that the President and Secretary of the Company said that they would wait for the statement till that investigation was over. That about the twenty-eightli of the mnnih of October, the plaintiif did deliver at the Company's office a statement of the particulars of his loss. The documents composing this statement were then adverted to and showed a statement of loss— upon house- hold furniture, &c. £262; books, £152 lis 9d ; medi- cines, £^6 4s Od ; shop fixtures, £66 17s Od ; surgical instruments, £91^3s 4d ; after giving credi tfor those saved to the amount of £24. Nathaniel N. Ross : Resided with the plaintiff for four months preceding the fire, and at the time of the fire, — descTil>8i> the manner in which plaintiff's house was furiiished. Plaintiff had about 200 vols, of books— works medical and literary. The books in the house at the time of the fire, may have cost £100 or more. t ) CroKS examinpti— lliiil part of thrse honks heforr him ovfty tlay — a portion of ihem bi-lpnfjrd to Mrs. Dill. Tiiu a value upon th«'m Iron; general nppparancf— cod would exceed jCIOO. To i he amount of £8 14s 'id were imported through Mr. Nei|{iori,in whose house the witness iii a clerk. William Drum, and others, prove the sale and delivery to the plaintiflf of various ariicles of valuable furniture and household eifec at different times anieiior to the firp, (generally about ay 1841. Joseph Archer and Charl*>8 McDonald — Prove shop fix- tures made to the amount of jC51 19s. Michat-I O'Sullivan— Saw other fixtures than those ma lipr marriage with (he plain- tiff, and continued in her service one month after. Ca« therine Allen, before her maniage, lived in a house be- longing to Mr. Sims, in Cooiliard Street, and slep' in the attic story. Witness lived there with her and slept in the kitchen. Catherine Allen was then in the habit of getting up after having retired to bed, leaving her room nnd going about the house at night. Witness often saw her up, and she told witness »he had been up without witness perceiving it. She gave as her reaion for this practice, that she was troubled with the heat, that she found her room too warm, other times that she was poorly. Always gave witness particular directions to make her hed slanting, so that her head might be high, otherwise the heat oppressed her. Catherine Allen told witness that she had passed one night on the sofa, in the drawing room, on account of her restlessness at night from the olosen«t>s of her bed room and from her being poorl>> On rhe occasions of her getting up as before stated, she was in the habit of taking jiunch to remove her restlessness and to obtain sleep. Wiiups^ has often brought 1 er hot witet to make it. 'I'lie only illness with which the witness believes she vvas constantly atflicted was the waier«brash.— Upon one occasion, being in her bed room, when she was sitting up in her bed to take her breakfast, (which she usually took there, previous to her marriage,) she suddenly became very pale and fell back to all ap- pearance (lead— as witness thought was the case. Wit- ness, by the application cf water caused her to revive, when she questioned witness as to how it happened, &c. Has no rea'-on to belicv*' that she wished to keep her fainting fit a secret ; but knows that after her marriage with the plaintiff, Mrs. Dill did not use any liquor when he was at home to make her sleep, fearful of his knowing it. Catherine Allen seemed to repose every confidence in me, and has often said she had told me things she would not tell even her own sister. Only saw her in a fit once, as above mentioned, which lasted about five minutes. Dill told witness she had left her husband^s bed with- out his perceiving it, and had gone to sleep in another i 'II / i ft 1 I 10 ;1 bed, and tbnt she was glad he had not perceived h6r motions. On the occasions of her leaving her bed room ai night, witness noticed thai Mrs. Dill had some- thing loosely wrapt round her, it was larger than a shawl and coloured. Her night dress, after her marriage, was usually a white night-gown, but before, she frequently put over her night-gown an old riding habit with very large skirts. Witness remembers that one night after Mrs. Dill's marriage she came down to the dining-roomi where witness slept, and took a bottle and tumbler out of the cup-board, and that this occurred twice after. There were two beds in the room occupied by the plaintiff and Mrs. Dill, at Point Levi. Witness neVer saw a happier couple than the plaintiff and his wife. Mrs. Dili often spoke to witness of the plaintiff's kindness to her. Margaret CumnMng.— JCnew Catherine Allen during a period of three years and a half, and lived in her service eight months. (Confirms the testimony of the last wit- ness as to the facts of Mrs. Dill's restlessness, and her habit of taking punch for relief,) never knew her to take it for any other purpose. She possessed from 30 to 40 printed books. Charles Mittleberger. — In a conversation with Mr. Wright, the .Company's Secretary, understood hitn to admit that the payment of the plaintiff's claim could not be resisted, if the charge of his having set fire to his pre- mises could not be proved asainst him, which they were then endeavouring to do. This was soon after the lire. Richard Freeman— Sold furniture to the plaintiff in the sprint; of 1841 to amount of £51 19s. ; plaintiff's house was beautifully furnished. The furniture of the drawing room may have been worth between J?70 and £100. The counsel of the plaintiff reqiiested the depositions of David Coyle and others to be read, which was objected to by the counsel for the defendant, on the ground that the depositions were taken, after issue Raised upon a tormer declaration. That since then a new declaration had been filed in the cause and a new issne, namtly, the present one, raised, and that all the proceedings must ijommence de novo from the period of filing the amended declara- tion. ritred hit ; her bed had some- in a shawl riage, was frequently wiih very after Mrs. ling-room, )ler out of r. There aintiffand a happier Dill often ler. n during a ler service last wit- I, and her er to take 30 to 40 with Mr. >d him to could not his pre- they were the lire. itiffin the iff's house e drawing SIOO. Dsitions of bjected to I that the a former had been le present ommence declara' The reading of the affidavits was supported, on ttre ground that they contained the evidence of witnessesv who, being about to leave the Province, were examined on a petitionunder the provisions of the Ordinance of. 1785. Sir James Stuart— Thi» is a special case under the Or- dinance, which requires no more than that an action should be instituted in order (a entitle a party to the exa- mination of a witness about to leave the Province. The suing out of the Queen's writ, constitutes the insti- tution of an action, which was sued out in this case at the time these depositions were taken. It so happens, in this case, that at that time an issue, and a diflferent one from the present was joined, but the depositions stand before the Court independent of any issue and must be read. David Coyle— Knows tbe house lately occupied by the plaintiff; witness occupied part of the same house. The plaintiff's paricomprised three or four apartments on the lower flat, incluiHng shop, three on the second, two or three on the third, besides a large garret. The place was all well filled with furniture of a good quality, in wit- ness's opinion,, too crowded with furniture. In the month May 1841, at the house in (question, plaintiff shewed witness three or four cases of instrument!), first rate fi- nished instruments. The plaintiff explained their uses to me, but there, were so many he did not go through .he whole of them. There were ampututing instruments, eye ioKtrumenls, midwifery instruments, tooth instrumenis,ar.d the plaintiff had a case of pocket instruments always with him. The house was burnt on the 1st October, 1841, and the plaintiff and myself burnt out. A few articles be- longing to the plaintiff were saved, not twenty shillings worth to witness's knowledge. Is not aware that plain- tiff had removed any of his furniture from the house pre- vious to the fire ; witness was the plaintiff's lessor. Cross- examined — is not acquainted with the nature of medical instruments ; lived in the same house with the plaintiff at the time of the fire ; witness's part of the house was sepa- rated from that of the plaintiff by a plastered wall of sin- gle brick, with common entrance but separate staircases. ' j lit \< >1 I ( ■ u 15 -^Recollects the night of the tire ; was first alarmed by his wife saying she heard a cry of fire, and two or three minutes after the door at the foot of his stair-case was burst open. He tried to take down his family but the smoke was so dense be could not succeed ; there was the width of the passage only between the plaintiff's surgery and witness's stair-case; thought it impossible for the plaintiff) in the confused state he was in, to give a cor- rect account of the origin of the fire ; remember the plaintiff's telling me he had searched for Mrs. Dill, through the house. He told how he came to save hi* writing de^^k ; that after the front of the house was on fire, he ontered a windaw in Cnuiiiard street, by means of a ladder, looking into Mr. Dill's bed -room to search again for Mrs. Dill. Getting into, the bed-room in the dark he came in contact with a table and put his hand on a case or writing desk. Re examined— Plaintiff told witness that he had been informed at the time of the fire, that Mrs. Dill had been seen running out of the house with a blanket or sheet round her; that some one was gone to enquire whether she was at Haddan's ; witness himself heard that she was at some place at the Little River. On the night of the fire witness heard the plaintiff and his wife talking ami- cably together in their bed-room : voices conld be heard through the partition ; thinks this was between nine and ten o'clock. James Seaton — Remembers the time the plaintiff's pre- mises were burnt ; he had a laboratory or apothecary's shop in St. Joseph street. About two months before the fire, witness was in his house and saw a quantity of hooks, about 200 vols, there ; recollects Paley's works, Thompson's Organic Chemistry, Cooper's Surgical Dic- tionary, and other works on Literature and the Medical profes&inn ; might average in value from 10s. to 5s. a vo- lume; oome might be worth 2s. 6d., others £2 or 43. Plaintiff lived with witness in the year 1839 ; he had then a trunk of Surgical instruments — (The witness enume- rates the instruments mentioned by Coy le, and adds eight other sets of instruments, as having been seen by him in the plaintiff's possession.) Knows nothing of the value of Surgic best descr £51 19s. of the pla Robert the fire ; the house; the shop c then ohse fiom a litt man there door open, door, he thn house tiff had on tance and candle, at room at th with smok fire in the looking fo student, could not I room upsti the floor v lioiis poss plaintiff in ing a ladd Linn was took his a: the windo and Dr. D excite ap went in witness h burst opei find her," The plain voice tha first arrive the house 13 ilaimed by vo or three ir-case was y but the >te was the Ps surgery le for the 51 ve a cor- nember the Mrs. Dill, save his was on fire^ means of a arch agam he dark he d on a case ! had been II had been it or sheet re whether iiat she was tight of the liking ami- Id he heard n nine and intiff's pre- )othecary*s before the (Quantity of (y's works, gical Die- e Medical 5s. a vo- £2 or £St. \e had then ^ss enume- adds eight 1 by him in the value of Surgical instruments, but these appeared to be of the best description ; sold furniture to plaintiff to value of £51 19s. Cruss-examined— Never looked at the library of (he plaintiff with reference to its value. Robert McKiechan — ^Wasthe second or third person at the tire ; when he arrived the flames h\A not burst out of the house, and on entering the house saw no flame till the shop door was burst open ; means the outer door. He then observed that a partition which divided the shop fiom a little room, behind was all on fire. Saw a young man there named Linn, who, witness believes broke (he door open. On reaching the house he saw Dr. Dill at the door, he was standing still with Mr. Ross, an inmate of thn house ; to the best of witness's recollection the plain* tiff had on a shirt and trowsers; he was calling for assis- tance and had an unlit candle in his hand ; witness lit the candle, at Mr. Scott's, and accompanied Dr. Dill to a room at the head of the stairs ; the room was quite tilled with smoke which came up through the carpet from the (ire in the room below. They went for the purpose of looking for Mrs. Dill, and were followed by a Medical student. The plaintiff was calling for her and said he could not find her ; witness was afraid to venture into the room upstairs, as the smoke was so thick, and he thought the floor was a single one. The Dr. used all the exer- tions possible to find Mrs. Dill. Witness followed the plaintiff into Couillard street, where persons were plac- ing a ladder leading to the third story of the house — Linn was in the act of going up the ladder, the plaintiff tnok his axe finm him and ascending the ladder burst open the window, from which a great deal of smoke issued out and Dr. Dill entered. He remained a short time so as to excite apprehensions (hat he might be suflbcated. He went in as witness understood to look for Mrs. Dill, and witness heard him call " Catherine" three times, as he burst open the wint'ow — he said repeatedly—" I must find her," and appeare the ordinary action of asssump- ' sit upon a policy of insurance. The grounds of defence i have not yet been touched u( on, the plaintiff probably not I feeling it prudent to approach them. haniffWhich five minutes fic-evamin- si a good deal ind Mr. Ross :! [>uld be with itement; the Sold cu|»' lection of in- ent is a very li men in this truments cost iff's contains Poitions of a peared in the rticularly the irch, 1844. ) plaintiff, and ihe President md writing of I closed, ed the Court thp (iefendant, of the policy, 1 been proved, over, but the hould the opi- !:!ourt directed lis period the jury, and pre- n of asssuinp- idsof defence iff probably not 15 It is necessary, in the first place, tostatp (he nature of the issue raised, for ihi determination of the jury. The action is an ordinary action upon a policy of insurance. The gentlemen composing the jury are too well aware of the nature of these instruments, and of the conditions usually attached to them, as well as of the obligations imposed respectively upon the insurers and the assured, to call for any lengthened explanation. The object of these conditions is to enable these institutions to afford protec> tion to the public; and unlefs they receive the support of juries i > enforcing the fulfilment of these conditions, it will be an idle attempt on the part of such public bodies to endeavour to extend protection to the public. There are various grounds of defence set up to the present action ; which, if established in evidence, must preclude the plaintiff from recovering. These grounds are : That the loss did not occur under circumstances contemplated by the policy, but through the evil prac- tices and fraud of the plaintiff— that the plaintiff wil- fully set fire to his bouse — that he had not the goods for whose loss he claims. These grounds of defence will be established by proof of such facts, circumstances, pre- sumptions, as will shew that the loss could not have been occasioned otherwise than through the misconduct and fraud of the individual to be benefited. That the plain- tiff has not complied with t!.e conditions of his policy, one of which, (he 15th, requires that the assured shall, within fourteen days at farthest, deliver into the Com- pany, as particular an account and estimate of his loss as the nature of (he case will admit, signed by him and duly attested. Under this condition a forfeiture of the policy has been incurred. An intermediate point of de- fence has been passed over, which is, the gross negli- gence and misconduct of the plaintiff in not making the necessary exertions to extinguish the fire and preserve (he insured proper(y. Under this head of defence, the insurers will be entitled to a verdict — if the proof should not satisfy the jury as to the actual fraud of the plain- tiff, under (he former part of the defence, but should go to establish such a want of attention to the interest of the insuiers as was inconsistent with honest and fair B 2 16 dealing. The last ground of defence if, that the plain* tiff has been guilty of fraud and false swearing in the account and estimate of loss which he has delivered to the Company. If the jury should be satisfied upon this head, it will go to defeat the ]ilaintifi''s action altogether, for this offence does not merely go to reduce the amount to that which may be proved, but woiks an absolute for- feiture uf the whole. The insurance was effected upon property, contained in a house, situated in St. Joseph IStreet, known as belong- ing to the heirs M'Clure. This house was occupied by the plaintiff, for a period of some months, up Ic the month of September, 1841. On the 30 Sept., about ten o'clock, the plaintiff and JVlrs. Dill retired to rest. The last person up in the house was the plaintiff himself, who, before going to his bed-room, examined the lower apart- ments ; saw that all was right ; locked up the surgery and hung up the key. The fire took place between twelve and one in the morning of the Ist of October. Nothing; more was known after the plaintiff retired (o rest, until the alarm of fire was given, which, according to the plaintiff's statement, was given by some person from the street. Yet no person has ever been heard of who gave this alarm. The plaintiff aroused, as he states, by the cry of " fire," then, himself, gives the alarm. The first person who arrives, finds the plaintiff and Mr. Ross, an inmate of the house, standing at the outer door ; the plaintiff is dressed minutely ; his conduct evinces perfect indifference ; the course he pursues appears adapted to divert the public mind and prevent the fire's being extinguished. It will be proved, that at this time, a very small quantity of water would have extinguished the fire ; he is asked for water, and replies that there is none, though it will be shown, that a jar of water was usually kept on the premises, and that a barrel of water had been brought in that very day. Some time must have elapsed after the plaintiff became aware of the fire, before he was thus discovered at the outer door, as he had time to dress and alarm Mr. Boss and the other inmates of the house. Yet, not an effort seems to have been made to extinguish the fire. A wit- 17 that the plain* '' (rearing in the iS delivered to isiied upon this lion altogether, ice the annoimt n absolute for* y, contained in own as belong- as occupied by hs, up to the $ept., about ten i to rest. The Fhimself, who, le lower apart- up the surgery place between of October, intiff retired to lich, according by some person r been heard of id, as he states, fes the alarm, laintiff and Mr. the outer door ; onduct evinces ursues appears event the fire's lat at Ibis time, ire extinguished ies that there is r of water was barrel of water >lainlifr became scovered at the alarm Mr. Boss t, not an effort le fire. A wit- ness, namet' Scott, who lived in the adjoining housp, \v,is among the first who arrived ; he went into the plainiifl's surgery, and saw into the lumber-room, where the fire originated. He will state, that at this time, a very few buckets of water would have extinguished the fire. The ury will observe, that no fire was kept in this room. Scott will tell you, that he saw live embers lying on the tloor of this room. Yet, into this room the plaintiff made no attempt to enter, but, before ascertaining the extent of the fire, with no other apparent reason than to divert public attention, he went round to Couillard Street, and there entered his house by a window. After the fire, the friends of Mrs. Dill, having made search among the ruins, for some trace, by which to as- certain her fate, found her remains in the lumber room, where the fire originated. The position in which the re- mains are found is material. The body lay on the back, with the head turned towards John's Gate, the limbs per- fectly straight, and lying alongside the partition of the lumber-room, in a day-dress; a quantity of copls are found over the remains. The remains are identified by her friends, by means of a ring undestroyed upon the hand. These facts arouse the reflection, that as if by some Providential provision, crimes leave behind them a train of circumstances such as may eventually lead to the detection of guilt. At seven o'clock, on the morn- ing of the fire, the plaintiff is seen, in a tailor's shop, ordering a suit of mourning. When asked, at the Com- pany's office, what had become of Mrs. Dili ? he gives this account — that she complained she found his room too close— though it will be remarked, there was no fire in it and the period of the year was the cool season — and that she might have gone to her private bed-room. That she was in the habit of leaving bis bed. His affidavit men- tion?, that she had done so on three occasions only. That when down stairs, finding herself res'less, or from some other cause, she mupt have gone down to the lower story for some turpentine to kill bugs or cockroaches. The cause which led to the finding of the body in the situation to ascertain its position, is found in the fact that B 3 n the flooring of the lumber room rested upon a lire-proof vault and Jill not fall in, norwaiit altogether destroyed by the tire. On the ground that the plaintiff has not given a satis- factory explanation of these circumstances, and of the origin of the fire, the defendant is entitled to a verdict. But should the evidence fail to convict the plaintiff of the crime imputed to him, on the ground that he used no exertion to extinguish the fire or save the property insur- ed, he must fail. But there are other grounds based upon the conditions of the policy which must defeat the present action ; conditions, the stiict and literal fulfilment of which must be established by evidence, but which the plaintiff hns utterly failed to do. The last ground on which, also, the defendant is entitled to succeed, is that there is fraud and false swearing in the estimate which the plaintiff has given of his loss. In that estimate is con- tained a claim for books to the amount of £152 : yet it will be shewn that he came to the country without books in the year 1839. The library enumerated in the state- ment comprises a rare collection, such as is possessed by few medical men. The same observations apply to the claim for Surgical instruments, for which a claim ot £91 is made. Should the jury be of opinion that this exag<;e- ration is knowingly made by the plaintiff, it incurs a for- feiture of his claim, and on that ground only, if there were no others, the defendant is entitled to a verdict. EVIDENCE FOR THE DEFENCE. Patrick Fitzsimraons — Was formerly in the Police force at Quebec. Was on duty on the night of the 30th Sept., 1841, and kept watch. About 2 o'clock in the morning of the 1st Octr. Ke heard a cry of fire. The cry came from one person only, and proceeded from the end of the street near Mr. Massue's. He went straight to the spot, to the door of the house occupied by the Plaintiff. Saw two men standing at the door ; they were Mr. Scott and the plaintiff, who were talking together. The plaintiff was not wholly dressed, but was in his trowseis and night cap. Witness asked where the fire was, plaintiff replied that it was in his house. The plaintiff was standirg- call- ■N 19 ( 5 a lire -proof her destroyed given a satis- , and of the to a verdict, le plaintiff of at he used no ropetty insnr- d> based upon ;t defeat the »ral fulfilment )ut which the St ground on cceed, is that itimate which timate is con* £152: yet it Di'iihoiit books in the state- I possessed by apply to the claim ot £91 : this exagve- t incurs a for- nly, if there I verdict. iC£. e Police force e 30th Sept., the morning rhe cry came he end of the it to the spot| ainliff. Saw Ir. Scott and The plaintiff ets and night linliff replied ilandirr call- ■t i 4 f ing << Catherine." Asked plaintiff (o show the witness where the fire w.)S, plaintiff walked before witness and and showed him where the Are waii, from the passage he saw the tire through a glass door ; a glare of red appeared through the glass door. Witness asked Dr. Dill if there was any person in the hou$e : he answered that there was no person but his wife whom he could not find. Wit- ness asked if she had been in bed with the plaintiff, who replied that she had been, but got up in the night, that he missed her and got up to seek her, and having gone down stairs for that purpose, he found the room on fire. When witness first went in there was not a great di^al of smoke in the passage : witness did not look for water; he sent the plaintiff upstairs to look for Mrs. Dill ; plaintiff remained a minute or two upstairs, and returned ; he was still undressed; he said she was not to be found unless she were in the room on fire. Witness sdid if plaintiff had told him so at first they should have broken open the room. About three or four minutes elapsed after the arrival of the witness before the plaintiff told this to the witness. No signs of fire were visible from without ; but after wit- ness had remained there a minute or two the smoke be- came overpowering. Witness broke open the door from the street into the shop, and saw no fire in the shop. Cross examined — Witness on his arrival at the fire found the plaintiil'at the door calling ** Catherine," he seemed in great distress and had his hands clasped. The plaintiff led the witness immediately to where the fire was. Witness did not enter the adjoining ream, the surgery, hut looked in at the door. There was sufficient smoke there to compel the witness to withdraw his head. There were no coals on th« floor of the surgery. It was on the sug>;estion of the witness that the plaintiff renewed his search for Mrs. Dill. When the shop door was broken open the flames had not yet come through, witness entered the shop and had time to rrmove a few casf :^i. Witness told the plaintiff that be had heard Mrs. Dill vvas saved — the plaintiff replied " then I'm content." Witness* motive for doing 80 was to relieve plaintiff's agitation. The whole conduct of the plaintiff appeared natural for one in his situation. Witness visited the ruins after the r\ • fire, nnil saw small things picked up by some boys, tlii* occurred the day afier the fire. The boys were s-arching about the shop. 'J'here were policemen guar%e\y have noticed one if he ■jilt '•■ ^ . ( saw only the >king open the ed in his usual ppeared very ? Iheplainlitf Mri. Dill wan since eleven I him if there 9aid he (Ud not hop and saved ItiintiiT stand- CA^rting him- i(i .he parti- ly fion fined to maiie for Mrs. o'clock. >ing Mr. Ross id was alarmed first person he him respecting since about 12 ! assembled at his usual day had a hat on. jSfcd. Dr. Dill and had taken which witness Two or three then breaking as visible. He ! plaintiff was e fire had now iitiflf was then 18 of arresting did not notice t was open and d not noijce a iced one it' he 39 Th depoiitinns of William Paletborpe and others taken oefo « a Judgi; (Vf) the '27th iSeptember, 184'i, are now read. Will am Piiletli "s Corporal in ihe (Jrenadier Guardv — On thu 5lh of Uciober, 1H41, he was t.cnt in ';harg« ^>f a party of five men of the Grtard*, with pick axes anfl shovels to the ni>iii in question. Dr. Pil was pree nt o\\ the spot when the party coinmcnced ciearing away tha rubbish. The object of doing to was to tind a body sup- posed to have been destroyed by (ire. The ptrly com- menced searching about one or two o'clock in tlie. aft 'r- noon. On the first day they found a • iU «Mtch and several bones, some of which were the 'k les r.f a humHU boJy, these were found in Mr. Scoli's. kitchen imme- diately under a room in which the plaintiff iiaici he hat! kept a box of prepared human bones. They also tound one or two surgical instruments. On the second day they found several bracelets, gold rings and trinkets, and a pestle mortar. The watch from its exterior appearance was uninjured. There were alio two slet knives ujed for spreading plaster, and a small lanee I ,sed to be arti* body, were e room where feet from the e digging that [he spot where under Corporal made by him. and some old t wood a good upon the body, old bricks and about three or J of Novembpr, ise of searching s for spreading ih shillings and ortar, a pair of search for the Id not find any. r the whole of as found on the imencing they rubbish where off work as it 3 the premises e body lay to- toined, such as jht side of the |)ody, on a line with the shoulder. A small stove such Its is used for burning charcoal was found about one foot ^rom the body, between the head and the wall. The t>ody was not in the middle of the room, but only six feet from the wall. When search was made the last time a |;ood deal of charcoal was found in this room, but not in )ne spot more than in another. This was found in the lonth of November, when they turned over the rubbish, le-examined — On the day the body was removed, the %itness did not observe charcoal, except where the body ^y, the charcoal was taken off the body and thrown into Inother room. Jacob Stevens — Was of Corporal Palethorpe's party — ^uminenced the search in the ruins on the 5th October ; Continued the search next day j commenced the search from the front of the house to the hack. They turned fll the rubbish clean over from the bottom and found no- thing but bolts and hinges. Thi? was on the flat above the cellar ; the search was very minute ; about ten mi- nutes after four o'clock, they found the body, at a dis- tance, by measurement, of six feet from the wall. They found a candlestick about four feet from the body, lying in the direction of John's Gate, on the right-hand side of thebody about four feet from the shoulders. The plain- tiff was present when the body was found. (The position 0f the body is described as before.) On the second or third of November, the witness went to search for surgi- cal instruments. They found a few English shillings. One or two small lancets, a knife or two and other small things. The part of the pretnisps then searched was the Only part remaining unsearched before, so that the party to which witness belonged searched the whole premises. (He identities several articles which were at the tiial, •hown to the jury.) Cross-examined — On the occasion of the first search, \hey did not search thoroughly, and turn up all the rubbish in that part of the premises where the body was found. From the manner in which the rib.') ind teeth of the body lay, the body must have been on Its back. The ribs fell inwards on both sides, and they could not have fallen in, considering the position of the back bone, if the body had been lying face downwards. There was some part of the arm-bones found, that is, the i I hand and fingers. Witness himself picked up the hand with riiipjs on. The shoulder-bones were found, that is. the bones that went into the fiockets, but what portion of them he cannot say, they were so terribly burnt. Wit- ness issisted to search the premises in November. The plai: ifl'wasnot present. The watch found was found aboiii afoot from the wall, from which it appeared to have dropped, as there was a nail a little above the mantel- piece, over the place where the watch was found. Isaac Allen — Is brother to the late Mrs. Dill. On the Sunday after the fire he saw the plaintiff at his boardin<;* house. He called to obtain information respecting the origin of the fire. The plalntifl' stated that at half-past iO o'clock, on the night of the fire, he had visited the house and all was well. That at eleven o'clock he went to bed with Mrs. Dill; that sometime after she com- plained of heat, and said she would go to her private bed- room, which was on the floor immediately below. He stated that after this he was alarmed by a cry of fire from thf street; that he got up, alarmed Mr. Ross, and the two servants who slept in the attics ; that he then went down to her private bed room, where he found the bed- clothes turned over, which satisfied him that she had been to bed in that room ; that he then went below to the room behind the shop, attempted to enter but was pre- vented by the overpowering smoke. The witness then asked Dr. Dill, are you of opinion that the mischief was done in that room ? He answered — " Yes." He stateil that in that room there was kept spirits of turpentine and spirits of wine — Witness understood him to say that they were in jars ; that a short time previous he, the plaintiff, had passed through the room and fastened the stopper — nothing more passed between the plaintiflT and the witness. Witness was present when the remains were taken up. The bones were found in the room be- hind the shop ; the body lay apparently at full length ; he saw it before it was disturbed ; it lay on the floor, por- tions of which under the body were unburned. 0»er the remains was a quantity of charcoal, and near the wall, about pight feet from the body, were remnants of par- tially consumed lire-wood ; the head was in the direction of John's Gate, and the body was nearly in a straight f4 *fc ked up the hand e found, that is, t what portion of bly burnt. Wit- November. The found was found appeared to have ove the mantel- vas found, rs. Dill. On the at his boardin<;. in respecting the tliat at half-past } had visited the I o'clock he went ! after she com- ) her private bed- jtely below. He a cry of fire from r. Ross, and the hat he then went le found the bed- that she had been ent below to the nter but was pre- Phe witness then the mischief was ifes." He stated of turpentine and him to say that previous he, the and fastened the the plaintiff and len the remains I in the room be- at full length ; he )n the floor, per- urned. Over the nd near the wall, remnants of par- s in the direction irly in a straight m ne with the partition. Remnants of dress adhered to ne of the bones and to another part of the body, in the folds of which were a pair of scissors, which fell out on aking up the dress. Obi-erved on the premises a cask, ith a few gallons of water in it, the cask was burnt to he water's edge. This was behind the door leading into Ihe yard. Mrs. Dill had books and furniture cf her own. rnss examined — PlaintifTstated that the alarm proceeded from the street, and not thst he supposed so. Robert Syme-, Esq. — Remembers the search made for pArs. Dill's remains ; it occurred four or five days after |he fire. The first search was made in Scott's kitchen, '^s it lay immediately under Mrs. Dill's private bed-room, but in consequence of information given by the plaintiff', jearch was mada, next day, in Ihe front part of the house. iThe floor of the room behind the shop was over a vault land had not fallen in ; parts of a skeleton were found, |ind attached to the bones were portions of a woman's •jilress. They picked up the back part of a dress, with Tiooks-and-eyes in it ; the dress was composed of hair cord muslin, a material not usually used in a night-dres^. "Fromthe presence of hooks-and-eyes, he also concluded ilhat the dress was aday-diess. Thfy also found a char- •red piece "f cotton slocking on the spot where the leg •hould have been. The folds of the dress were of ilif- ferent materials, such as are used for different articles of dress. There were remains of dimity, a fabric used for ^ivomen's pockets, also of twilled-jean. James Douglas, M.D.— Heard the evidence of Ihe *loldiers, as to the position of liie body, read. A person jfriay have fallen in that position, from convulsions, but it U not likoly. It is unlikely, if death were caused by BufTocation or burning, that the body would have lain in that position, and if the body had fallen from above. It IB unlikely that the body of a person dying unassisted from such causes would have been found in the state of perfect repose as that in which IMrs. Dill's body is de- icribfd to have been. The plaintiff came to this countiy in the year 1839. Witness attended him professionally, in the winter of that year. The plaintiff, when at- tended by witness, entered into conversation with him ; showed Ihe books he brought to ihis country. Plain- ^- ;M 28 tiff mentioned, that his means had been expended in Glasgow, in attending his lectures, and that he had been unable tu purchase books. He had about half-a-dozen medical works, which might have been worth £5 or £6, in all, and about (en or fifteen other volumes. This con- versation took place in 1839. The books enumerated, in the statement shown to witness, form a very complete medical library. The enumeration of surgical instru- ments, in the statement, exhibits a very complete set of instruments, such as few medical men possess ; some of the prices are very high. Witness conversed with plain* tiff on one occasion, when he was introduced by Dr. Cook, who requested witness to afford him information as to the mode of obtaining a license to practise in this country. The plaintiff came to this country for the pur- pose of teaching St. Andrew's School. While teaching that school, and very shortly after his arrival in this country, he obtained a licence to practise. Shortly after the fire, which occurred in 1840, witness heard plaintiff declare, that he had lost bis library in that fire. Joseph Bowles, Apothecary.— Boarded in the same house with plaintiff, for eleven months, in the year 1839 Saw him nearly every day. He then taught in St. An> drew's School and practised as a physician. The plain- tiff then possessed about twelve medical works. He had other works — bis library might be worth about £12 10s. He was subsequently burnt out, while residing in Fabrique Street. Plaintiff then had some surgical instruments. There were a case of amputating instruments, a case of cupping instruments, a case of pocket instruments, one of tooth instruments, a patent injecting apparatus, two com- mon pewter syringes, a trochar, silver and elastic bou- gies and catheters, half-a-dozen iron bougies, two stetho- scopes, a case of dissecting instruments, a case lancets, and an inhaler ; value of the whole, from £25 to £30. Cross-examined : Witness saw all the plaintiff's instru- ments. Robert Atkins. — Plaintiff boarded with witness's fa- ther, after the fire of 1840. Plaintiff lost many tt.ings. Saw a very few books which plaintiff had saved. riiie,' expended in at he had been it half-a-dozen >rlh £5 or £6, es. This con- enumerated, in ▼ery complete iirgical instru- omplete set of ssess ; some of led with plain- duced by Dr. information as ractise in this ry for the pur- i^hile teaching irrival in (his Shortlr after heard plaintiff fire. in the same the year 1839 Jht in St. An- 1. The plain - Drks. He had ibout £12 10s. nginFabrique I instruments, fnts, a case of iments, one of tus, two com- 1 elastic bou- s, two stelhe- case lancets, JE25 to £30. ntiff's instru- witness's fa- many tl.ings. ived. 39 THIRD DAY. Wednesday, March 20, 1844. The tbllowin^ adidavit was read to the jury : Affidavit of Dr. Dill. — Hesaiih,that on the morning I of the 1st of October, 1841, between the hours cf ooh • and two, a fire was discovered in a room, in the rear of his shop, in a hou>e occupied by him, belonging to the heirs M'Clure, situate in St. Joseph Street, Upper-Town of Quebec. Deponent cannot say, who gave the first alarm of hre, but thought he heard the cry of fire ; he immediately got out of bed, slipped on his trowsers, went to the door of his bed-room, which was not quite close, and perceived smoke coming up, and soon after heard the crackling of fire below. Deponent immediately gave the ^larm of fire to Mr. Ross, who was sleeping in the ad- joining room, on the third Bat, and to the servants, who were sjpeping in the garret, and then went down to the second flat, where Mrs. Dill went tosleepthat night, and, to his great surprise, he could not find her, but found the bed-clothes turned down, and the bed, apparently, as if it had been occupied— this bed-room was on the second Hat, and immediately over the kitchen. Deponent then proceeded to where the (ire was. After descending the staircase to the first flat, he searched for the key belonging to the door which led into the room between the passage and kitchen, and found it missing from the place where he had hung it the preceding evening. Deponent almost always went round to the different apartments, after the others had retired to bed, and did so on the night pre- vious to the fire, and found everything rigfil and proper, and locked tiie aforesaid door and hung the key in the usual place, with the latch-key of the door of the stair- case. Deponent, on reaching the door in question, found it unlocked, but closed ; on opening it, he found the heat and smoke so intense that he could not enter. Deponent then went out by the street door, and gave the alarm of lite — afterwards relumed — it bethought him, that he had not gone into the drawing-room, in which he en- tered and called for Mrs. Dill ; also, a second time, on entering her bed-room, he called " Catherine" " Cathe- rine," several times— he, then, on returning to the foo4 c 3 '^., ■.^':"». i 80 of the staircase, heard Mr. Scott, bis neighbour, calling him, who said, " What are you doing ? Why are you not doing something to extinguish the fire?" What De> ponentsaid, in reply, he does not remember. Water was kept in tiie kitchen, in a large earthen jar, but whether there was any water in it then, he does not know. Sup- posing it had water in it, it was impossible to have then reached it, as he could not enter the room on fire which was between the passage and the kitchen. Something has been said about water being contained in a barrel on the gallery in rear of the house, it may or may not have been the case. Whether or no, he did not know that it was still used after the purchase of the jar in the kitchen. Deponent went up-stairs a third time, and entered his bed-room and, also, that of Mrs. Dill, calling for Mrs. Dill — then, finding the smoke so dense, he felt afraid to return by the stairs ; he went to the front window and called for a ladder, which was put up, but was too short ; fimiing thai there was no time to be lost, he ventured down by the stairs, through the smoke ; on getting into thestieet, he had the ladder taken down, round to Couil- laiii Street, and there placed to the bed room window oc- cupied by Mrs. Dill that night, broke it open with an axt, and entered a third time, for the purpose of search- ina: it more particularly for Mrs. Dill, there being be- hiiiii the door a place which he recollected he had not isarched either of the previous times. On returning, he perc'.'iveil, on a table, near the window, his portable writing-desk, which he brought out with him. Mrs. Dill was not in the habit of sleeping apart from deponentj she had done so, altogether, about three or four times, each time assigning as a reason the closeness of the bed- room, which she felt unable to bear. On the night of the tire, she had, as usual, retired to bed some time pre- vious to his going ; after she left, he went down to the rooms below, to see that all was safe, and then retired to bed himself; he had not been in bed long, before Mrs. finding Dili complained of the heat of the room, and her^ell so restless, she got up, and said she would go and sleep in the bed-room below; cannot say, whether she took a light with her from their bed-room — he had put )ut the light previous to his getting into bed, but there •jv»re matches in the room as well as in the bed-room be- partly ')er j?'- 1 iour, cailing hy are you WhatDe- Water was but whether now. Sup- have then in fire which Something a barrel on ay not have know that it the kitchen, entered his ing for Mrs. lelt afraid to window and as too short ; he ventured getting into ind {•} Couil- window oc- )|)en with an se of search- ?re being be- I he had not returning, he his portable him. Mrs. om deponentj r four times, 3 of the bed- he night of me time pre- ilown to the len retired to before Mrs. and finding ould go and whether she ■he had put i, but there 3d«room be- i n low ; a fire had, also, been left iii the grate below, in the drawing-ioom, on retiring to bed, which he thinks would not be out till nearly three hours after. Deponent can- not satisfactorily account in what way the fire was occa- sioned, there being no fire used in the rooms in which it was first discovered ; but Mrs. Dill's remains having been found in tliat room, he thought she might have gone there for some spirits of turpentine for the purpose of drefsing her card-tables, in which she said sometime before that she had seen some bugs, he remarked at the time that one day when writing upon one of the tables, he saw a cockcroach run across — at the same time told her that he had some excellent spirits of turpentine which he would get her when she wished. — Deponent cannot account for her being found there, unless she went there for the purpose of getting spirits of turpen- tine, and by accident it might hsve caught fire, and she was unable to give the alarm (but this is mere conjec- ture). Deponent further sailh, that the loss he has sustained by said fire, is as follows, viz : The loss, as per list furnished, under the head of surgical instruments, amounts, at least, to the sum of ninety one pounds three shillings and four pence, currency, which articles wei.. Ill might with him when he came to this country ; conse- qutintly, cannot now produce any invoices or receipts for tiiem. The lisf^, under the head of medicines, were partly purchased in Quebec, and partly in Montreal, as per voucher annexed, and the remainder, paid for in cash, the whole amounting to the sum of ninety six pounds four shillings, currency. The list, or statement, under the head of household furniture, were purchased and paid for by him, which is fully explained, on refer- ence to the vouchers annexed, amounting to the sum of two hundred and sixty-two pounds fifteen shillings and seven pence (after deducting the articles saved at the foot of the list.) The statement, under the head of books, amounting lo one hundred and fifty-two pounds eleven shillings and five pence, after deducting those saved, is the lowest estimate that can be made for them, so as to be near the coit-price to him. The whole of which, with the exception of those marked off in the list as having been purchased elsewhere, were brought with ) ! i; , \ « i (i him or sent lo him from Europe ; conspquently, he is un- able to produce vouchers for thi^m, having been par- chased at difr<>rent places and cash paid (or them at the same time. The amount charged for shop fixtures, sixty- six pounds seventeen shillings, will be found underra'ed, as will be seen by the vouchers annexed. Deponent further states, that the articles enumerated in the above- mentioned statement, are, to his best belief and know- ledge, charged under the amounts which they cost him or the value of the same, and that the same were con- tained in the house on the night of the fire, from which none were saved, excepting those at the foot of the re- spective lists as accounted for. Joseph Archer— Was employed by plaintifTto partition off the lumber room frona the shop. He put up the par- tition about 6 or 7 feet from the wall. The size of the I'.mber room was about 6 or 7 feet by 12. This was in the latter end of Apiil. Cross-examined — Partition was of soft wood. Re-examined — There was a sash door from the surgery to the lumber room. A person standing at the door of the surgery might see obliquely into the lumber room. Daniel McGie — Was brother in law to Mrs. Dill. Re- members the alarm of fire about half-past two o'clock on the morning of the first of October, 1841. He proceed- ed to the fire which was at or about ten houses distance from his own rf.sidence. The tire had made some pro- gress, the shop door was broken open and the partition was on fire when witness arrived. He saw the plaintiff' standing on the opposite side of the street in front of his house. He was completely dressed, with a white hat, fnck coat and trowsers. He did not remark a brooch. The witness enquired if Mrs. Dill was safe, the plaintiff said he did not know. The plaintiff exhibited no anxiety but appeared perfectly cool. Witness then directed his brother to follow him into the house. They went together to the top of the stairs, but found the smoke so powerful they were compelled lo return, they could not stop there a moment. On his return the plaintiff was still standing in the street, witness asked him when he had seen Mrs. Dill last, and where she was— he answered that he had last seen her about 11 o'clock the preceding night in his ,* ''^: bed tool] room W5 plaintitfj asked hi| room, to a bed| his bed witness] when tr the crov nooxerti Mr. Wd by plaiil On the f mencec brothers ral Pal< the sea body, i rich ch cognise at the some r tials ol There witnesi Cros was pr Bd-( her he on Mr! Dor the m the pi Wr in the conve other said I her t McG Dill W 33 ptlj, heijun- 'iig been par- "I" them at the fixtures, sixty- nd uiwlerrafed, \' Deponent ill the above- ef and know- hey cost him me were con- e, from which oot of the re- 'ff Jo partition >t up the par- he size of the This was in ood, m the surgery t the door of nber room, rs. Dill. Re- [vo o'clock on He proceed- •«ses distance de some pro. the partition ' the plaintiff 1 front of his » white hat, irk a brooch, the plainiiff I no anxiety directed his ?nt together so powerful t stop th<;re ill standing I seen Mrs. hat he had "ght in his bed room. Witneii then asked where the 'ntiff 's bed room war, having never been in plaiaii(f'» .lOuse ; the plaintitf pointed to the third story of the house. Witness asked him how he accounted for her absence from his room. He said she complained of heat, and had retired to a bed room below. Witness asked If he had a fire in his bed room, he replied that there was not, and upon witness' asking him to account for the room being warm when there was no fire in it, the plaintiff merged into the crowd without giving an answer. The plaintiff made no exertion to exiin/;uish the fire. The witness went up Mr. Woodbury's alley to seek Mrs. Dill and was followed by plaintiff. He appeared to be very anxious to find her. On the Tuesday following the fire the search was com* menced among the ruins, in presence of Mrs. Dill's two brothers. Mr. Symes, the plaintiff, Dr. Marsden, Corpo- ral Palethorpe, and four or five of the Guards assisted at the search. (The witness describes the finding of the body, &c., as before narrated.) In the lumber room a rich china cup, unbroken, was found which witness re- cognised as belonging to a service possessed by Mrs. Dill at the time of her first marriage. On om of the hands some rings were found, on one of which were the ini- tials of her name ** C. M. " Catherine Mitlleberger. There whs no candle-stick found in the lumber room to witness' knowledge, one was found in the shop. Cross-examined— He is not at variance with Dr. Dill, was prosecuted by him for slander. Rd-examined — Is the Attorney of Mrs. Dill's mother, her heir at law, and has recovered £50 amount insured on Mrs. Dill's personal property before her marriage. Donald Cameron — In the forenoon, about 9 o'clock of the morning of the fire, he was told by his foreman that the plaintiff had that morning ordered a suit of mourning. Wm. Marsden, M.D. — Visited the fire at eight o'clock in the morning. In the course of the morning heard a conversation between the plaintiff, Dr. Andrews, and others, as to whether Mrs. Dill were safe. — The plaintiff said he thought she was, that persons were looking for her through the town. Witness, at the request of Mr. McGie, assisted in the search for the remains of Mrs. Dill ; they searched first under where Mrs. Dill's bed* V 34 ronm had been and] found some human hones; the plain- tiff' was present, and on witness remarkins that part of the bones were human, he o!)served — " They are not her bone?, her bones will be found in the front." The body lay on its back ; the position was not that of a person who died from convulsions, nor could that position have been maintained had the body fallen from above. A person dyin<; from apoplexy would lie in that position. (The evidence ^ivcn respecting the dress was similar to ihat given by Mr. Symes.) There was a larjte quantity of charcoal or hardwood ovrr the body. Observed a burnt waier-cask on the angle of the gallery, with ten inches of water in it. Crcs«i-examined — is on no terms at all with ihe plaintiff. Re examined — The surgical instru- ments could not have been destroyed totally by ihe fire ; the metal p^ris a''e not fusible at the degree of heat of a fire without blowers. He has seen the statement, and taking the lowest computation of pieces where sets are mentioned, there should have been found in the ruins from 130 to 140 pieces of surgical instruments. The most diligent search was made, the witness was an almost hourly attendant at it, and thinks that all actually in the ruins were found. Re-cross examined— Did not assist at the whole search, but gave occasional attendance at it. The object of the first search was chiefly to find the body, the search for the instrument* was tnade in November, al.out three weeks or a month after the fire. Re-examin- fd— Immediately after the finding of the body, the walls were thrown down over the ruins, so that without remov- ing them, no person could carry things away. Pierre Faucher — Proves the affidavit of Esther Atche- son taken before Noah Freer, J. P., which is read to con- tradict a statement in her examination respecting there bf?ing jars in the lumber room. She deposed, that she did not remember seeing any jars of any kind in the lum- ber room ; she thought that she would ha»e seen them if there had been any there, that room being so small she she could see all over it very plainly. Robert Henry Russell — Produced the plaintiff's receipt for the articles saved and taken to the police station — they were snail cases, about a foot by eighteen inches. ■^ l'ros»-el I articles] '» 'he plain- >at part of the y are not her " The body ^ of a person position have 11 above. A that position, "as similar to Se quantity of erved a burnt 'h ten inches terms at all ■ffical instru- >' by the fire ; ? o[ heat of a itement, and lere sets are •1 the ruins ments. The *as an almost 'ually in the not assist at itlance at it. ind the body, I Novembe'r, Re-examin- Jy, the walls hout remov- • "her Atche- read to con- scting there !d, that she in the Imn- seen them '0 small she ff 's receipt I station — een inches. 35 Cross-examined. The plainlifl was not aware that theve articles had been laved. Counsel for Plaintiff :—l liave been now thirly-nine years in practice, yet i have not known a cate of rqual im|)ortance with the present. Although this trial has been uniiecessaiily prolonged, by Iho introdnrtioii of matters irrelevant to it, and to which the plaintiff' might have objected ; yet he fell it his duty to throw no obstacle in the way of an inquiry into vvny circumstance connected in an way with it ; because, although this action was brought .or the purpose of obtain- ing an indemnity for a loss by fiie ; it had, for a moie important oliject, the vindication of the plaintitl's charac- ter from the calumnies with which it has been assailed, through the iiistrumentalily of enemies, who since the year 1841 have used their most active exertions to blacken it. Hut every investigation into the niatler has resulted favourably to the plaintiff". 1 he invesiigalion befoie the Coroner's jury ; that before the IMagistrates to which the defendant here was a pHrty, (for It was de- clared by the Secretary of the Company, that they must admit the claim of the plaintiff" if the fact of his having buint his house were not established, which they were then en(*eavouring to do) ; and thirdly, thai in the ca^c of Dill vs. McGie, for slander. The plaintiff has now made out his case. He has proved the contract with the defendant, and his loss ; ho has also proved the fulfilment of the conditions of his jiolicy, as agreed on between the parties. That the defendant, through the President and Secretary of the Company, consented to wait until the close of the inves- tigation for the plaintiff \s statement of loss is proved by the answer on /u?7s c^ a?'/ic/es. The investigation closed on the 18th, were six or seven days an unreasonable time to make up, from memory, the voluminous statement shown to the jury ? On the 28th, the statement is de- livered in, and on the 29th an affidavit is required. It is drawn up, in the hand wiiting of the Secretary, and after a few erazures are made, is signed by the plaintiff". No objection is made, and they are received, yet lhe[plaintirt" I I h . 1 36 is (old at his next apiiliration to th« office that he is loo late. One objection the Secretary does state, but that is a singular one, it is, that the statement was too particular, the best made he ever July li Vt'd with #ear he mi Iras gcltiuj i|rl)icli anU #ill be pro ||li>i time h toirtgined Itauces wo (0 get £6( fariiiturti v his t'lniiups Ire 11 know onimissioi Siubled hi e result them ? i': I now IK dhe fire t)i: Kiticular Scott 1 Koss also s ftlll dress, different pi tias been i! could only Was so mu it without that Dr. D conjecture form a con There i came aval ts it tendi Vecamc a' of this fa Montreal, ▼ant was tiff and h harmony. I \ 37 e that he is loo ate, but that is too particular, lible, it was so 15lh condition i to furnish it board, that his nlifr. Having or a ropy, but his vouchprs, opy of them— ;tober refers to y ; so that the :t form, within )e 15th clause, ature of things plaintiff pro- hold furniture has produced i purchase of tave the testi- ary shop could nee of Seaton tn of surgical \hich consists conditions of lly. That the •dly. That he OSS he claims. i plea it may ales the false taken on the has been ])ro- ly to meet it. 9 this case, to to criminate 5t of October, years, that tice, making tittries daily in his books to the amount of on average {II 5s Od, which would give a practice of £4()0 a-yeat. I July 1841, he married. It will be proved that he vtd with his wife on the most friendly terms. In that #ear lie made most extensive purchases of furniture, and was getting on well, until the occurrence of the fire in #hicli unfortunately Mrs. Dill lost her life. These facts, •ill be proved to you, it will likewise be proved that at ttii» time he lias a most excellent character. Is it to be Imagined that a man of good character, in good circum- Mances would act so madly as to burn his house in order gget £600 in money in exchange for that value of rniture which he had already paid for ? Then look at Us tirmness of character — he is a man of education, and ell knows the punishment which would follow upon the mmission of crime — did he fly ? If a guilty conscience Ifouljjed him, would he remain, as he has done, to await die result of so many investigations, and more — assist at them ? i^ this the conduct of a guilty man ? I now come to the evidence, as to the manner in which the fire oocurred. I'he apparent contradictions in one Kiticiilar are easily reconciled. The plaintiff was seen Scott and the Policeman, at first in undress ; Mr. Soss also saw him in andrets ; he is seen subsequently in full dress. It is apparent that the evidence relates to different periods. On the subject of water again, there has been ditiiculty raised ; but it is proved that the water could only be reached through the passage, and that there Was so much smoke there that it was impossible to reach It without danger. Besides there is no evidence to show that Dr. Dill knew there was water in the house. All is conjecture as to the fire ; the plaintiff himself can only lorm a conjecture as to its origin. There is one piece of evidence which only lately be- came available to the plaintiff, which is most important, •8 it tends to clear up the whole matter. He very lately became aware that VIrs.Dill was subject to fits ; evidence of this fad was obtained under the Commission sent to ■Montreal, under which the evidence of Mrs. Dill's ser- Tant was obtain^ L On the 30th September, the plain- tiff and his wife sjient the evening together in perfect harmony. Surprise is expressed at the reason assigned D 38 ! I I I bjr Mrs. Dill for leaving plaintiff's bed that night, namely, that the room wa^ too warm, when, it is known to all that the weather is cold at that season, and it is proved that there was no fire in the room ; but it is necessary that she should express some reason for doing so, and we have seen that she was unwilling to assign the true one. It is in evidence that on three occasions she left the bed, and that she expressed joy at concealing it from the plaintiff. Again, a valuable article, a china cup belonging to a set Mrs. Dill possessed at the time of her first marriage was found in the lumber room. From this the conjecture is rendered probable that she went down to get something to relieve her restlessness. Surprise is expressed, that if she went to the lower story for a purpose of that na- ture, no candlestick siiould have been found, but this is an error, a bed room candlestick was found at a short distance from the body. Seaton's evidence establishes that the plaintifThad 200 vols, of books. The evidence of Dr. Douglas which goes to contradict this may be relied on ; but it must be re- membered that the visit of Dr. Douglas was made with another object than that of inspecting plaintiff's library, of which he had but a cursory survey. As to the line of conduct pursued by the plaintiff at the fire — we have the evidence of Fitzsimmons who des- cribes the anguish he was in ; so much so as to induce him to tell the plaintiff that she was saved— and what is the plaintiff's answer — " I'm content." What presumption is to he drawn from the fact that Mrs. Dill was dressed ? Would the plaintiff have caused her to dress to murder her? Again, it is said that the remains of the surgical in- struments would have been found in the ruins. It is easy to account for that not having been the case. It is well known that there exists a practice here, as in all other places, for lads and the lower classes of labourers to search the ruins of houses after fires. Now the plaintiff's house was burnt on the first of October ; the search for Mrs. Dill's remains was only commenced on the 5th. On the 1st and 2d the fire may have prevented search in the ruins, but on the 3d and 4th all the world had access to them. Fitzsimmons sav/ two boys in the act of carry- ing away remains of instruments from the fire. On the 5th) the kitchen, lumber-room and surgery were search- rd, the reit of the house not until the 5th November, a month after. The police did not remain after the 5th Octr. The plaintiff will give it in evidence, that several persons were seen in the ruins during this interval. From the moment, a single person could have access to the ruins, from th^it moment the plaintitf was discharged from proving what became of the remains of the surgical instruments. Evidence in rebuttal. Robert Lafontaine — The plaintiff boarded with witness immediately after having been burnt out in the month of August, 1840. Witness observed that the plaintiff had then a great many books. There were so many of his books scattered over the hou5e as to annoy witness. Wit- ness arranged them himself in a cupboard ; there must have been from 90 to 100 vols. James Lynd — Arrived at the fire in Joseph Street, on the first alarm. The shop door was then broken open. He saw the plaintiff who was dressed in night-cap and trowsers ; he was calling for Mrs. Dill. The fire was now breaking through the partition. He went to (he passage door and there saw the plaintiff, who was calling for Mrs. Dill; he advanced into the passage but the smoke was so dense that he returned. Witness broke open Coyle's door. About an hour after first having seen plaintiff, wit- ness saw him dressed. The plaintiff appeared greatly excited ; his whole cry was to save Mrs. Dill. George Hall — Lived in the plaintiff's neighbourhood, and was alarmed by the cry of fire, on the 1st Oct., 1841. Went to the plaintiff's house, and there he saw the plain- tiff with hi3 hands clasped and calling in a shrill voice for Mrs. Dill. Witness asked the plaintiff where she was?— he, pointing towards the room behind the shop said, he supposed she must be there, as he had searched the house above without having been able to find her. Witness en- tered the passage in order to see into this room, but was prevented by the smoke. The plaintiff was then dressed in a shirt and trowsers. The plaintiff appeared much agi- tated. The witness saw plaintiff again on the same night, when he was dressed in a dark coat. When the witness c 8 40 i first saw the fire, he thought it might easily be put out, but afterwards was soon satisfied that it could not have been. On returning, the witness met Mr. Scott in the passage. The door was not yet broken open. Witness returned home shortly after, and met Mr. Deblois com- ing to the fire. Nathaniel Ross. For four months previous, and at the lime of the fire, he boarded with the plaintiff, and dined at the same table with him and his wife. They lived on agreeable terms together ; witness never knew of any disagreement between them. Witness's bed-room was adjoining that of the plaintiff and his wife. The rooms were separated by a plaster-partition, there being an opening for a stove to go between them, which was closed with wood. Persons, speaking in ordinary tones, could be heard from one apartment to the other. There; was a staircase leading to the rooms, aboi't three feet broad. Witness spent the evening previous to the firf , with the plaintifi and his wife, until between ten and eleven o'clock. The evening was spent in conversation and reading. He heard the plaintiff and his wife con- versing together in their bed-room, what they said he knows not, but they were conversing in an ordinary tone. Nothing more occurred, to the knowledge of witness, until he was aroused by the plaintiff, who entered wit- ness's room, saying the house was on fire. He got up, put on his trousers and surtout, and going down stairs met the plaintiff returning. He stated, that he had been searching for Mrs. Dill, but had been unable to find her — that he had been to her spare bed-room, but that she was not there. Plaintiff then went down again, and called in an excited tone for Mrs. Dill. The witness went down below, and found the fire in the room between the shop and the surgery, and much smoke in the pas> sage. He went to the door of the surgery, but was obliged to return, in consequence of the quantity of smoke. The plaintiff, at this time, was dressed in his night-cap and trousers. The witness afterwards saw the plaintiff dr«;ssed ; he had on a brown surtout, white hat, with a waterproof overcoat. He breakfasted with the plaintiff; does not recollect seeing a brooch on him. Witness, in company with the plaintiff, searched for Mrs. Dill at the 41 Albion. There were rumours that she was here and there, they went every where, where they surmised that they were likely to find her. This was about half-an* hour after the door was broken open. They went to Mr. Haddan's, to Mrs. Lambiy's, in PauUstreet, to the St. Andrew's School-House. The plaintifT left otf this search in company with witness, about four o'clock. The plaintiff was very much excited at the commencement, but gradually grew less so. Several persons told Dr. Dill, that Mrs. Dill was saved; one person positively de- clared that he had seen Mrs. Dill go out of the house. The plaintiff then prosecuted a further search. Cross-examined — Witness breakfasted with the plain- tiff between 8 and 9 o'clock. News came at breakfast time that Mrs. Dill was saved, whereupon the plaintii! got up much excited to prosecute further search. Re«examined — The plaintiff aad a good practice, as good ao could be expected from his standing. Remembers plaintiff exchanging Bibles with Mrs. Dill, receiving Brown's Bible in exchange. Before the door was broken open the plaintiff himself endeavoured to do so. The police told him to stand aside and they would do it. The way to the kitchen lay through the surgery, in rear of the (ire, and if there had been water in the kitchen it would have been an achievement of great danger lo obtain it, one which witness would not have attempted. Dr.Blanchet — A person dying from the effects of juffo- cation or fire may be found in any possible position. The natural position of death is straight and riged convulsions, hysterics would have the effect of extending the limbs. Death occurring in a burning apartment is never caused by the direct action of fire, the causes of death are the rarefaction of the air and the smoke which cause death by suffocation.' It is not in the least a matter of surprise to fined a body extended in the mauner described with reference to Mrs. Dill. JohnRacey, M. D.— A person in epilepsy falls back- ward, if suffocation ensued the body would remain straight. The application of heat to the upper extremi- ties would cause a flexion more or less of the arms. If a hysteric fit caused insensibility and flame were after- wards applied so as to cause death, the position would be D 3 42 te a straight one. Witness has known the plaintiff since the fire in question. Found him a well informed gentleman. His manners are eccentric. Was present at the fire. Witness suggosled that Mrs. Dill might have fallen behind the bed in a fit, which indured the plaintiff to re- new the search by the window in Conillard street. Cross-examined — It is most likely that the limbs of a dying person will be found in a straight position. The death struggle might cause the arm to come across the chest, but by no means in most cases. Paul Lejjper — The witness has known the plaintiff so as to be tolerably intimate. Before the fire he never heard any thing prfjiidicial to his character. Knew several respectable families attended by him. Rev. Dr. Cook. — Has known plaintiff since his anival in this country, and is not personally' aware of any thing discreditable to him. Alexander Begg— Attended the fire; arrived just as the shop door was broken open. Saw the plaintiff, who was dressed ; he appeared any thing but cool. Knows nothing against the plaintiff's character. FOURTH DAY. Thursday, 21st March, 1844. Chief Justice Sir James Stuart. — The case of which we are about to resume the consideration, is important under every aspect which it presents ; whether we con- sider its importance to the individuals whose interests are concerned, or its bearing on the public interests of the community. The protraction of this trial until this late period has been occasioned by the introduction of matters into this inquiry which the jury is not strictly empannelled to try. I shall hereafter shew, in what respects, this inquiry has been extended beyond the limits to which it ought properly to have been confined. In the first place, it is necessary to explain the nature of the plaintiff's demand ; and in the secohd, to state the defence which has been set up to the action. The decla- ration of the plaintiff, sets out the ordinary action of assumpsit to recover indemnity for loss by fire ; and states Srst, the contract of insurance, that is, the policy ; second- ly, that the party was in possession of the property in- sured Ince the itleman. le fire, frtlleii Iff to re> * lbs of a h. The cross the iintiff so |e never Knew s arrival ny thing id just as tiff', who Knows , 1844. of which mportant we con- interests sts of the this late f matters )annelled ?cls, this which it le nature state the le decla- action of ind states ; second- perty in- 48 siired ; thirdly, tha loss hy fire under the circumstances insured against ; and, what is a very important (lart of this case, the declaration proceeds to state the fulfilment of the warranties, or conditions of the policy, thosL' condi- tions on which alone the defendant consented to the in- surance. One of these conditions precedent, has not been proved; namel), that which requires that the assured shall, within fourteen days, furnish to the company under liis signature and attested by him, a statement of the par- ticulars of his loss. The plaintiff i? aware that this con- dition was not complied with ; and accordingly, his de- claration states an agreement between the plaintiff and the company to prolong the period for delivering in this statement, not merely until after the termination of an investigation then pending, but until a reasonable time after its conclusion. Now, without proof of this agree- ment it i'^ impossible for the plaintiff' to sustain the present action. The defence set up to the present action is two fold. First, the general issue. This plea puts the plaintiff upon proof of all the material allegations of his declaration. Secondly, a plea in Bar, or as it is known in our practice a plea of Peremptory Exception. This plea contains seven or eight heads, or distinct pleas, hut which resolve themselves substantially into three : 1. That the plain- tiff wilfully burnt the premises in which were contained the effects insuied. 2. That he was guilty of jjross and culpable negligence. 3. That in the affidavit of loss furnished to the company, there is fraud and false swear- ing, in consequence of which the plaintiff's claim to in- demnity has become forfeited. It will be our duly, in the first place, try if the plaintiff has stated and proved a legal cause of action ; and in the second place, to examine, whether these pleas are good inlaw, and substantiated in evidence. And here it is to be remarked, that this is a purely civil investigation, and has nothing whatever to do with the f apposed criminality of the plaintiff as respects his wife. The only mode in which an investigation into that fact could be called for, would be upon a criminal prose- cution by indictment as the laws of the country prescribe. We have therefore only to examine, how far the evidence 44 establishes against the plainiiif the fact of the wilful burning of his house, independently of (he criminal matter with which it has been mixed up. What caunes of action, then was it incumbent upon the plaintiff to make out in proof. Those causes as stated in his declaration are : 1. Cuntract of insurance. 2. That the property insured was contained in the house in which it was insured. 3. That the fire occuried under circum- stances contemplated by the contract. 4. That the in- sured property was destroyed. 5. That the parly has complied with the conditions precedent or warranties. Under the view which the Court is led to take of (his casi', this portion of it is most material. The warranties contained in what has been referred to ?.'i the 15th condi- tion, are several. The tir^t warranty iS that the party shaW forthwith^ after the loss, give notit e thereof to the company. This has been complied vUh. It is sub- stantiated that notice was given on the 2nd October, the loss occurring on the 1st. The second condition is that the assured shall within fourteen days at farthest furnish to the company a statement of the particulars of his loss. It is not pretended that this condition has been fultilled, but the declaration states that a further agreement was entered into, by which this period was extended until a reasonable time after the termination of the investiga- tion already mentioned. Here it is, that a fatal defect in the plaintiff's claim is found. No sufficient evidence of this agreement has been adduced. The course which has been pursued in order to prove this agreement, is by the examination of the Secretary of the corporation upon faits et articles. Now there i£ no doubt, but that under the law of France a corporation may be examined in this manner. A corporation is an artificial being and not susceptible of examination. The practice therefore, as established by the French law, is for the corporation to submit to examination by one of its members or one of its officers. But without expressing a decided opinion upon the legality of this proceeding, in this country, it is to be observed, that since the conquest, the criminal law of England has been introduced as part of the >aw of the land. This law recognises no oath as involving perjury except where there is personal respon- gn 45 wilful matter to prove Secretary >ere it no •rporation ion is an )n. The I) law, is sne of its ressing a 'dingf in onquest, (J as part oath as respon- sibility. Now, the answer of the Secretary to the in- terrogalorips are answers settle J hy the corporation itself, of which the Secretary is the mere mouth piece, arui not obnoxious to the punishment for perjury. This is more- over a commercial case, and as such, subject to the En- glish lules of evidence, but I know of no example in English practice of a corporation being examined upon oaih, upon interrogatories. No objection, however, ha? been raised by the parties who have both agreed to the admission of these aniiwers as legal evidence. Besides, these answers are drawn up and given, under the auiho- rity of a procuration from the corporation itself, and as such amount to an admission on the part of the defendant, which we are entitled to receive as legal proof. But to what extent do these answers substantiate this agreement respecting the extension of the period for delivering in the statement of the assured ? They amount to this. To extend thjg period till the /c/mi- na^ion of the investigation alluded to — they agree to this, but not to one instant beyond the termination of that inves- tigation. But was it competent to Mr. Leaycrafl and Mr. Wright to divest the company of rights acquired under these conditions ? A corporation being an artificial, in- tellectual being and incapable of action, must transact its busine.s by means of physical beings, its known and accredited officers. The powers committed to them are in their very nature limited. What then is the extent of poweisin the president and secretary to bind the cor- poration ? This is not shown. The act of incorporation con- fers nc such power. It must therefore be determined by the bye-laws in whom such powers are invested. It was ncc« ssary to prove these bye-laws, and as that has not been done, it is impossible to say whether they had this power or not. Consequently there is no evidence to substantiate this agreement stated in the declaration, at all, even to extend the period mentioned in the fifteenth condition, to the close of the investigation. But, as to the prolongation of that period for any time after the close of that investigation, no att?mpt at evidence whatever is offered. Now the investigation was closed on the 18th October, and the statement of loss was not given in until the 26th. / 46 And this is a most judicious requirement. The shorter the period allowed for making up a statement of this na- ture, the less opportunity is ^Horded for the commission of fraud. It is manifest that if no limited time were assign- ed within which to submit this statement of loss to the Company, the inducements to c ilusinn would be increas- ed and the accomplishment facilitated. There is also another portion of this condition requiring notice ; and this is the part which requires that the assured shall furnish satisfactory proof, by the affidavit of disinterested persons or vouchers, as may be reasonably expected, if required. Here there is no limilatiGn as to time, and it is left to the office to require the proof and specify the nature of the evidence they do require. The ncxi part of the condition relates to the obtaining the cer- tificate of a clergyman or others, to the effect mentioned in the condition, if required. These last words were for- merly omitted in this part of the warranty, and in my own practice a case occurred, brought in opposition to my ad- vice, in which, the non-fultilment of this condition caused the dismissal of the suit. The insertion of these wordii, however, beyond a doubt, renders a previous require- ment necessary, before the assured is bound to produce the proof or certificate mentioned. Another condi'ion relates to collusion and falst; swearing, which by the ex- press stipulation of the parties are to have the effect of making voif and The against his own criminality ; they can only contemplate insuring agains^. the results of accident unaccompanied with culpable neglect. This part of the case it is which has let in evidence ri ' ve to the death of Mrs. Dill, from which the defendant would have given it to be inferred that the plaintiff had the most powerful motives to the destruction of the house in question by fire. It has been already mentioned that the evidence so far as connected with any supposed criminality in the plaintiff as connect- ed with the death of his wi^ is irrelevant ic this issue. But several depositions of witnesses about to leave the Province, having been taken prior to this trial, in which, without the plaintitl having taken any ohjection, matters relevant and irrelevant were mixed up, and these depo- sitions having been read in toto, owing to the impossibi- lity of separating the matter relevant from that which was not so, the Court felt that, injustice, the rule which would have excluded this irrelevant matter, ought not to be enforced. But it is the duty of the Court now, to pass over this evidence, and you, gentlemen, are entirely to discard from your minds any evidence tending to fasten the imputation of crime upon the plaintiff in that parti- cular. The question for present consideration is — what evj. dence has been adduced toshi'wthatthe plaintiff wilfully set fire to the house in question ? — and here, it is proper to enquire what kind of evidence is to be expected? — Evidence is either direct or circumstantial. The first description is rarely to he looked for. The individual who commits an act involving so serious a degree of crime and punishment, is careful to screen the act from view — this evidence, therefore, cannot reasonably be expected. There can be no evidence but circumstantial adduced of deeds of this nature. The defendant submits to your con- sideration a variety of ''acts, which united, it is contend- ed are sufficient to raise a presumption sufficient to sup- port the pretension of the defendant. First — when this fire occurred was it accidental or 'be effect of design ?— If designed, by whom was it applied ?— Secondly — w&s the fire accidental? — This question, gentlemen, it is your province to decide, a^idlshall proceed to read the evi- dence adduced, from which, I doubt not, you will collect 48 i r such facts as will lead you lo a light determination. It is my duty to make such comments as may assist you in eliciting the truth f^om the evidence. (The evidence, generally, is read from the notes of the Chief Justice, and from the itcord ; which, as it is given ai length above, is not repeated here.) The discrepancy between the evidence of Doctois Dousilas and Blanche!, as to the position of the remains of Mis. Dill, might give rise to a comparison by which we might arrive at such a result as might be consistent with common sense, were this subject relevant to the matter under consideration ; as that is not (he case, it is unne- cessary to make any observations upon it. The evidence adduced as lo character is equally irregular. It is now the duty of the Court to make a few observa- tions upon the evidence as to the plea of wilful burning, and but few, as under the view taken of the plaintifl'st case as to the 15th condition of the policy, there is a defect fatal to the plaintiff's action. I shall resume the remarks with which I prefaced the reading of the evidence. It is only by circumstantial evidence that it can be expected to determine this ques- tion. This is found in the several facts, circumstances, presumptionSjdisclosed by the testimony we have just read. The first point to ascertain under the evidence is, was the fire accidental or wilful— if there is absence of evi- dence of accident and assuming that it was not accidental, the next point of enquiry is", by whom was the act com- mitted ? Who had the opportunity of committing the act ? The fire must have been applied either from with- out or from within. But it is not even pretended that the fire was applied by any person from the exterior. It must then have been applied from within. Who then were the persons in the house ? They were the plaintiff and his wife, Mr. Ross and the servants. It is not the act of the latter, assuming*", therefore, that it did not originate externhlly: the agents are limited to the plaintiff and his wife. And here we are led into the circumstances con- nected with the death of Mrs, Dill and the account given by the plaintiff. It is assumed in the affidavit of the plaintiff that she went below for turpentine to kill bugs. This statement is made in order to account nr the place 49 in which the body was found --is there any other supposi* tion to account for this circumstance ? He states that the turpentine was in a jar, contrary to the statement of Esther Atcheson. You are to judge of the probability, of this lady's being, at such a time, in such a place, for such a purpose. You are called upon also by the plaintiff to suppose, that from some accident Mrs. Dill set fire to the room, that this accident arose from her supposed ailment, which there seized her, with a candle in her hand, that her clothes caught fire and communicated to the room— it is for you to judge of the reasonableness of this explanation. In the evidence adduced, that idea appears to have been relinquished, and the supposition adopted to account for the cause of her death and the origin of the fire, then is, that Mrs. Dill had descended for Cie purpose of obtaining some remedy, it is assumed that she had with her for that purpose the china cup found in the lumber room, that there she was seized wiih a fit and that by some accident she communicated fire to the surrounding objects. This is the case submitted by the plaintiff as excluding the idea of his having tired the house. There is this important fact connected wiih the finding the remains of Mrs. Dill, which goes in some measure to destroy the presumption intended to be drawn from the plaintiff 's statement. The account given by the plain* tiff is, that Mrs. Dill got up and left his bed room in her nightdress. — (By plaintiff 's Counsel.) It is not stated by the plaintiflf that his wife left his room in her night dress, his statement is silent as to that particular, nor does he know. Chief Justice — The presumption to be drawn from the plaintiff's statement is such as I have stated, but of course that must be left to the jury to de- termine. Mrs. Dill, as stated by the plaintiff, went to bed in the first instance with him, of course this must have been in her night dress — she left his room, in what dress it is not stated, but, he states that it was for the purpose of seeking rest in the spare bed room, and that he afterwards, in his search, found the clothes of that spare bed ruffled as by some person who had gone to bed there, it is for the jury to say if the presumption is not fair that thus far Mrs. Dill must have been in her night B so [i rfress. What induced her lo go below ? If «he went far the purpose of obtaining sonne remedy she must have ie;one to the shop and not to the lumber room, in which a» it is stated there was nothing of the nature of a remedy but turpentine and spirits of wine. Without offering any opinion, I (hall merely remark (he singularity of the case, that she was found in (he lumber room. It is for you to determine from the natural probabilities of the case how far it is reasonable to suppose that these circumstances are reconcilable with the presumption you are called npon by (he plaintitf to draw. First, }ou have this important fact, that the skeleton is found in a day dress. It is inconcpivabic to suppose that in leaving the spare hpd room Mrs. Dill should have had on any other (han her night dress. It is shewn by the testimony of Robert Symes that part of the material of the drtss was dimity, a fabric used for making women's pockets. Is it likely that she would have had pockets on ? Then there is the position in which the skeleton is found — these facts are for yon to consider — it is my duly without endeavouring to influence your opinion, to draw yout attention to them. Again, it is material that the conduct at the (ime ot the individual charged with an offence of this desciiption should be narrowly examined. It is my duly to call at- tention to the manner of the plaintiff as exhibited at the tire, and to his manner of accounting for it. If he had a knowledge of the origin and existence of the fire, he did not require to be told of it from without. He stales that lie was aroused by an alarm from without and this was A icood reason to account fi)r his knowledge of it, if it was possible thai that cry could have been made. But the evi(}ence ascertains beyond the possibility of a doubt, that at tlv« time ihe plaintiff aroused Mr. Ross, the fire was ronfined to the lumber room, and that there was no ex- ternal indication of it whatever. If it were not possible, at this stage, lo perceive the fire from without, this must be a fabricated fart. I cill upon you, gentlemen, to retrace in your minds the evidence generally upon this point Was it jHobable thai any person desiring to extingoisl. the tire would not he anxioirs to gel into the plac& where- alofcs the fire was I Yet this was the only room noJ «x- tt e went for must have n which a» f a remedy flering any >f the case, 1 for you to case how ;umstances are called have this day dress. g the spare other than y of Robert vas dimily. Is it likely here is the le facts are deavouring ttention to the time ot desciiption V to call at- bited at the If he had a fire, he did ! stales (hat 1 this was t, if it was !. But the doubt, that le lire was was no ex- ot possible, t, this must I, to retrace this point extinguish lace wheTfr Mn not 8X • amitied nor attempted (o be examined. How reconcile the repeated running* up and down stairs, and the repeat* ed searches for Mrs. Dill in the upper portions of the house, where he had already ascertained she was not to be found, with the conduct of a man of sense. Counsel for Plaintiff—h is staled in Dr. Racey's evi- dence that the plaintiif repeated his search on the sugges- geslion of Dr. Racey, that Mrs. Dill might ha7e fallen in a fit behind the bed. Chief Justice- It is for you gentlemen to follow up these matters step by step throughout, and see how far they are consistent with the conduct of a man actiiii; in good faith, and with a desire to perform the duty incum- bent upon him under such circumstances, or with that of a man having the views imputed to the plaintiff by the defendant. Then there is what occurred with Scott res- pecting water, the particulars of which you can, no doubt, recall to mind. I shall here leave this part of the case in your hands. The next plea is that there was culpable negligence on the part of the plaintiff as connected with the iiie. The same reasons may be urged in suppori '' this plea as in support of the last, and there is no doubt but that in point of law, it constitutes a defence sufficient to defeat the plaintiffs action. The evidence also applicable to the last plea will b{) )tlso applicable to this. But we will sup- pose til' lie to have been accidental or to have originated in some cause over which the plaintiff had no control, so as to ifim him a prima facie right to recover, if the fire b* in tliie first instance accidental, but come to the know- ledg«;'»>f the assured at so early a stage, as to place it with- in his power to extinguish it, ii is the most imperative duty of the assurerl to use his utmost exertions to do so. He is on the spot, and it is not competent to him to throw the onus of this uuty upon the insurers vvho are ai a distance, and most probably ignorant ' Mhe existei\ce oftlie event. The cj'cumstances before adverted! ), must guide you to a deteiminaiioii, whether tiie fire >as so iiusignificant, when the knowledge of its existence came to the plaintiff, and if there was culpable negligence on his part in noi using the utmost endeavours to extinguish it. I now come to the last point •, the defence arising out of the alledged false swearing in the affidavit of loss. It is for joa to determine whether or not this has been the case. As to the law there is no shadow of doubt, it is the express agreement of the parties, and the contract of the parties is the law between them. There are many cases to point in English authority, but it is one which does not admit of dispute* A slight difference in the value of the articles, from the amount charged, will not constitute fraud or work a for- feiture. This may be the result of error or honest mis- take ; the plaintiff must be shewn to have made an over> charge, knowingly, or, have charged the Company with property which the assured was aware he did not possess. I draw your attention to the evidence on thic head, and particularly to the evidence of Dr. D^^uglas. The plain- tiff swears to an absolute amount of loss, under ttks in posses- fhich part is t, suppose the le valuation, £150. Sea- le ; taking a medium, 7s. 6d., would give £75. Then you have th» statements of Dr. Douglas and Mr. Bowles, as to the state of the piaintitf's library, in 1839. If additions were made in the country, evidence was certainly pro- curable ; or, if, as is stated, additional books were sent to the plaintiff, from Europe^, there must have been some evidence of their importation to be procured at the Custom House. Gentlemen, it is pecuUarl}' within your province to weigh these facts, and to determine, whether there has been such a fraudulent exaggeration as to amount to false-swearing. I have now, Gentlemen, gone through all the points of this case, which £ think it my duty to lay before you. I have onl}' to add, that with a jury of the respectability and intelligence of the one before me, a more lengthened comment is rendered altogether unnecessary. The Jury, before retiring, requested permission to take with them the record of the case, which the Court could not allow ; but, by consent of parties, such papers as the Jury required were given to them, and taken by them for reference, during their deliberation. Verdict — The Jury find for the Plaintiff, and assess the Damages at the sum of £387 19s. l^d. On the 3rd day of April Term the defendant moved for a new trial, but the result of that application is yet unknown. 3rd April, 1844.