LIMERICK ASSIZES INTELLIGENCE.The entire of Saturday, Baron Pennefather was occupied in the Record Court with Civil Business.
Thomas Westropp v. Samuel BRUCERev. Patrick O'Kelly v. Same.
In those cases the following Jury was swornWilliam Roche, Robert H. Maunsell, Thomas Kelly, William Percy, George P. Drew, Robert Langford. George Lloyd, William Hartigan. Mathew Jamieson, Henry Rose, Francis Spaight and Peter O'Brien, Esqrs.
Counsel on both sides consented that the issue of one case should decide the other, as all the circumstances of the two were precisely similar.
Mr. Lake opened the pleadingsthe first was an action of assumpsit on a policy of Insurance to recover the sum of 850l. effected on the life of the late William Monsell, of Dunagroge Castle, County Clare, by Thos. Westropp. The second was also an action of assumpsit to recover 1100l. amount of an Insurance policy on the same life, effected by the Rev. Patrick O’Kelly, a Roman Catholic Clergyman. Samuel Bruce, Agent to the Irish Commercial Insurance Company, was defendant in both causes.
At a former assizes in Limerick, Mr. Westropp obtained a verdict; from which defendant appealed, and the King's Bench directed a fresh issue to try the cause, as it was deemed proper that the age of the insured should be ascertained by a more satisfactory source than was proved on the last trial.
Mr. Sergeant Goold stated the case. After a few preliminaries he said Mr. Kelly's proof of interest in the life of Mr. Monsell was his bonds with judgment entered thereon for the full amount of his debt, 1100l. Mr. Westropp's interest was in a loan of 10001. advanced Mr. Monsell, at 6 per cent, on the solicitation of a third person. Mr. William Wilson was Agent to the Company in Limerick; with him the parties insured the life of Monselll, and the premiums were paid on both policies.
The policies were then handed in evidence, Mr. Westropp's for 800l. dated 14th of Nov. 1823, the annual premium 49l. 2s. of which two payments had been madethe second was dated 15th Nov. 1823, of Mr. O’Kelly, for 1100l. the annual premium, 67l. 10s. 5d. of which two payments were made. In both policies the age of the insured was engaged not to ex exceed 59 years.
After the interest of both plaintiffs had been proved in the life of Monsell. Mr. Standish Carroll deposed, that while effecting the insurance for Mr. Westropp, the agent, frequently expressed himself perfectly satisfied with the explanations given on the part of Mr. Westropp.
Richard Franklin, surgeon, swornKnew the late Mr. Monsell for near thirty year, and attended him professionally; in October, 1821, attended him for a small ulcer in the leg and cured it; in November, 1823, saw him in Limerick and he then appeared in perfect health; gave a certificate of his health at the period to Mr. Wilson, and is sure he told him of the sore leg; identifies the certificate; is of opinion that Mr. Monsell died of inflammation on the lungs from cold, and not from the sore leg, which was healing.
Cross-examinedDidn't attend Monsell professionally before 1821, when he was called in for the sore leg, which Monsell told him was from a recent injury; told Wilson it was a recent sore which was cured.
James Tandy Wilkinson, swornknew Monsell a number of year, but not intimately; gave certificate of his health; thinks he could form an opinion of a person's health from his mere appearance; remained on this occasion near a quarter of an hour with Mr. Monsell and put the usual questions to him; believed the certificate to be true, from the information Mr. Monsell gave him and from his appearance; after his return heard Mr. Monsell was afflicted with a sore leg for s number of years; is positive he told Wilson of this, and that be ought to inquire more minutely into the circumstances; is equally certain that he appended the information to the medical certificate, and gave it next morning to Wilson in time for that day's post.
John Geary, M. D. swornAttended Mr. Monsell 14 weeks before his death; he died of bastard plurisy caused by the exposure of his person to cold.
Cross-examinedHe had not a bad leg at that time; there was an appearance of erysipelas on the leg the third or fourth day of his attendance; Mr. Monsell told him, he had an attack of the same about 20 years before; a suppuration was coming on and be sent for Surgeon Franklin to open it; can't tell that he might recover from the erysipelas discharge if he had out got the inflammatory cold; observed no marks of an old sort on his legs.
Rev. James Martin proved making every search for the registry of Monsell's birth and baptism, but could not discover it so far back.
Jane Hodges, swornThe late William Monsell was her brother; never saw any document of his birth, but always heard is the family he was born the 4th or 5th of March, 1765, two years after herself; her brother got hurt when young which lamed him, but never knew him to suffer any inconvenience from it; about 20 years ago be received, a hurt on the leg from a stone, which was healed in eight or ten days without any medical attendance; always knew his health to be very good.
Plaintiff's case concluded here, and the defendant's counsel gave up the point of age, which they had contended was greater than was expressed in the policy. For the defence several letters were handed in and read, purporting to be from Mr. Monsell to Mr. Sherlock, an Apothecary, in Kilrush, which described the state in which sore leg was, and the medicines and plaisters be used for its treatment.
John Trousdell, swornKnew Mr. Monsell nearly 50 years, and was his confidential agent; lived in his house 14 years, and slept in the same room with him; none could be more intimate; never knew him effected with any sickness, but a sore leg near the ancle, which was dressed morning and evening; he had the sore leg about 23 years, and there was an issue from it.
Cross-examinedMr. Monsell was a very strong, robust, and active man, though lame; Mr. Westropp did not get back penny of his money; he only got a deed for it.
William B. Monsell proved that Mr. Sherlock, Apothecary, attended Mr. Monsell, from 1815 to 1820, for a sore leg, and his bill was 30l. which was never paid.
The evidence having terminated, his Lordship charged the Jury, who returned a verdict for the Plaintiffs, finding that Mr. Monsell was in an insurable state of health, and were of opinion, supposing he was not in that state, that the defendants were made acquainted with it, and effected the policy to their own risk. The verdict for Mr. Westropp was 738l. 10s. British, and costs; for Rev. Mr O'Kelly 1,015l. British, and costs
Counsel for PlaintiffsSerjeant Goold, Mr. O'Connell, O'Loghlen, and Mr. Lake. A gents, Mr. Leland and Mr. Scott.
Counsel for DefendantRecorder of Cork, Mr. Bennett, Recorder of Limerick, and Mr. Cosgrave. Agent, Mr, Cosgrave.