B. (the original defendant, since deceased) made three applications to plaintiff for life insurance, on each of which a policy was issued. Plaintiff sued for a declaration that the policies were null and void, on the ground that B. knew, when he made the application in each case, that he was not in good health, but fraudulently represented that he was, for the purpose of inducing issuance of the policies. At the trial, the jury found that B., at the time of the applications, was in ill health, but was unaware of that fact when he signed the first two applications, but knew it when he signed the last one. On these findings Jenks J. (60 N.S. Rep. 116) dismissed the action as to the first two policies, but directed cancellation of the last one. On appeal, the Supreme Court of Nova Scotia en bano (60 N.S. Rep. 116) held that the jury's findings that B. did not know he was in ill health when he signed the first two policies were perverse, and it directed that the first two policies be also cancelled, upon payment back of all premiums paid. The defendant appealed.
Held, that, upon the evidence, the jury's findings that B. did not know he was in ill health when he signed the first two applications were perverse; that the Court en banc had jurisdiction to substitute its own findings of fact for those of the jury and give judgment for the plaintiff; and that its judgment should be affirmed.
On said question of jurisdiction, the Court discussed Order 38, Rule and Order 57, Rule 5, of the Rules of the Supreme Court of Nova Scotia, and Order 40, Rule and Order 58, Rule 4, of the English Rules, and referred to Miller v. Toulmin, 17 Q.B.D. 603, and R.M. of Victory v. Sask. Guar. & Fidelity Co. Ltd. [1928] S.C.R. 264. APPEAL by the defendant from the judgment of the Supreme Court of Nova Scotia, en banc (1), allowing the plaintiff's appeal, and dismissing the defendant's cross- *PRESENT:-Duff, Mignault, Newcombe, Lamont and Smith JJ. (1) N.S. Rep.