Court Of Exchequer, Westminster, Jan. 16. r-sittin-s in Banco. J The defendant is a butcher; the plaintifi' was bis servanL The action was ibr dam ages it consequence of injuries re- ceived it executing the orders of his master, who sent him to London in an unsound and overloaeed van witb meat, &c. The van broke down, and the man's collar-bone was broken and he was otherwise severely injured. The casc was tried at the Lincoln assizes before Mr. Baron Parke. There was a verdict for the plaintiff. Last term a rule to show cause whyjudgtuent should not be arrested upon the face of the decaration, or a new trial granted, had been obtained. Idr. Scrjeant Adntms, in support of that rule, argued that the action upon the case was not maintainable. The plaintiff saw the van leaded, and mirht have judged of the marnner and the extent to which it was lQaded. His master could not have legally compelled the plaintiff to go in an overloaded van; nor was he in the con- dition of a stage-cosch proprietor with respect to his pas- sen era. Mr. Serjeant GOULBURN and Air. CLAftKE were heard on the other side. The COURT took time to consider its judgment. WVE8TfURx. V. ABERD5E1t. This was an action to recover the amcunt of an -insurance upon the Kling George. It was tzied before thn Chief Baron, and the jury immediately fbund for the plaintitf. Sir F. POLLOCK and Air. RxctoARns now appeared in bupport of a rule to have this verdict set aside, and a new trial granted. Sir IV. FOLLETT and another counsel were on the other side. The defence set up at the trial in effect, in like manner with the argutnent now,was, that a material fact was kept back from the knowledge of the underwriter, and therefore that the insurince was void. The circumstances were these :-The King George and a truiterersailed from AtIlaga, the latteron the 9th, the former on the 10th of October; the frteterer saw the King George off Oporto, and, holding her course, arrived Sn the port of London. Four dayso after her arrival the fnsur- ance on the King George was effected. There had been a stotm recently. This, of course, -was known to the underwriter. It was also known that the fruitkrer had left Malaga very nearly at the same time witb the King George, and that it had been in port four days, and the insurance was effected at three times the ordinary premium as from l alaga to Londor. But the underwriters were not made acquainted with the fact that the fruiterer had seen her partner of the former part of the voyage oft Oporto. The COURT unanimously took occasion to observe that there was no appearance offraud in the transactio. Sir W. FOLLETT opposed the rule. He contended the question was one for a jury. His Lordsbip, who triel i he case, had aSreed with him in that, and he considered that the verdict aleady given was a proper one. The fact of the fruiterer having seen the King George off Oporto only went to diminish the risk of the insurance, since it went to prove that the Gut of Gibraltar had been passed, and consequently-that what was considered equivalent to two-thirds of the voyage from l alaga had been eflected. lt was known that a storm had taken place, and treble the usual premium had been charged. The question for thejury was, if this did not fairly cover the risk and entitle the defendant to a verdict, and they had no doubt upon the subject. Sir F. POLLOCK contended a material fact had been con- cealed, because if it had been known that the fruiterer, a worse saler, was in pbrtfour days, and her companion not yet heard of, though they had together left Oporto, nobody would have insured the vessel at any premium, putting the storm out of the question, and only considering the fact, and remembering the average nmrnber of days for the voyage from Oporto. This case he maintained was a much stronger one=th that of " Kirby and Smith," and he trusted that for the sake of the public the great principle of pertect fair- ness and candour in dealing with insurance brokers which was there laid down would be asserted. Here, in violation of that principle, a material fact had been concealed, and he sub- mitted that there ought to be anew trial. Sir W. FOLLETT observed, the argument now made touched upon a matter about which a single question had not been asked upon the triail-namely, the average length of the voyage from Oporto, and which, if it could have operated under the circumstances, ought to have been brought forward then; Lord Auil,GE said, that certainly no such question had been asked. The case was left to the jury: they were mer- chants, and of course knew the average length of the voyage. Sir F. POLLOCK said the point was this-a fact was con- cealed which would have made the insurance one, not from Malaga to London, but from Oporto to London, and this under circumstances, from the arrival of the frulterer for four da a, in which no one would have effected the Insurance. he COULT were of opinion, that to bring the facts about which there were some doubts, In alU their bearings fairly and completely before the jury, there ought to be a new trial upon payment of the-costs by the defendant. Sir W. FOLLETT stated, that the plaintiff Vestbury bein ded, t wold e ncessry o hve undnerstanding with the other side, dthlat wreits 5osferrtor shouidn anetadn in this or the other cases consolidated with it, and5vhich vere to be governed by the verdict in this. This was assented to and andanged. COURT OF EXCHEQUER. WESTWITSTra. JAR. 16. 1R'ZSTLY V. FOWLEIL