1850-1. MOORE บ. CLUCAS. as you attempt to do, by making out a case of misrepresentation.]-The case of Baboo Ulruck Sing v. Beny Persad (a), relied upon by the Appellant, is a strong authority in our favour, as it shows that this Court will not reverse a finding of the Court below upon a pure question of fact.-[Mr. Baron Parke: The Appellant must show that the judgment is wrong. We never reverse unless we are satisfied that the judgment is clearly wrong, Khoorshed-jee Manik-jee v. Mehrwanjee Khoorshed-jee (b).]—The objections now urged to the form of the declaration and the insufficiency of the proofs, were never taken in the Courts below, and, therefore, cannot now be entertained, Frankland v. M'Gusty (c). Mr. Baron PARKE: Their Lordships are of opinion that the judgment of the House of Keys ought to be reversed, and the decision of the Common-law Court dismissing the action affirmed. The declaration contains averments of fraud; it alleges that the Defendant, being possessed of certain cattle which were infected with a contagious and fatal disease, after advertising to that effect, caused them to be sold by public auction, and did then and there falsely and deceitfully induce the Plaintiff and others who attended such auction to believe that the cattle so to be sold by the Defendant were sound and in good health, he the Defendant well knowing that such cattle had been and still were labouring under and affected with a contagious and (a) 2 Knapp's P. C. Cases, 265. (b) 1 Moore's Ind. Ap. Cases, 442. (c) 1 Knapp's P. C. Cases, 274. fatal disease; it then goes on to say that he bought three heads of cattle, consisting of a bull, a cow, and heifer, believing such bull, cow, and heifer to be sound and in good health, whereas they were affected with a contagious and fatal disease, of which the Defendant was well aware, and in consequence thereof the contagious disease was communicated by the bull and cow to the other cattle of the Plaintiff. None of these allegations are proved to be true, excepting the averment, that the Defendant advertised such sale by auction, and it may be conceded that such advertisement contains prima facie evidence that the cattle were sound. But there is no proof that the cattle were affected with a contagious and fatal disease at the time of the sale, or that he knew that they were labouring under a contagious and fatal disease. In fact, there was no satisfactory proof that the cow ever had the disease, still less that the disease was communicated by her to the Plaintiff's cattle. Then as to the bull, there is no satisfactory proof of its having any disease at all. It is urged, that we ought not to be too strict in requiring proof of actual averments, if the substance of the declaration was proved, as the practice of the Courts in the Island is less strict upon the pleadings than in this Country; that argument might be entitled to some weight, if the averments were proved. But is there any fraud proved against the Defendant? It is alleged that he knew of a contagious and fatal disease in the cattle sold, which he concealed from the Plaintiff; but there is no proof that he knew of any contagious and fatal disease. Again it is urged, that although the Defendant did not know that the particular cattle was diseased at the time of the sale, yet the disease 1850-1. MOORE v. CLUCAS. 1850-1. MOORE v. CLUCAS. might have been communicated by the cattle sold, but there is no proof to satisfy us that the cow or bull was diseased. Even if the material allegations were proved, it was entirely a question for the jury, who, we are of opinion, are better able to judge of the conduct of the witnesses, and the weight to be attached to their evidence. Upon the whole, we are of opinion, that the House of Keys was wrong, and that the judgment must be reversed. ON APPEAL FROM THE COURT OF 18th Feb., 1851. Award upon a submission THE Appellant, in this case, filed a Bill in the Court of Chancery in Jamaica, against the Respondents, James Dougall and Mary his wife, the sole acting Executrix and Trustee under the Will and codicils of Charles to arbitration, Strachan, deceased and also against the other Respondents, James Smith McNishie and Elizabeth estates and * Present: Lord Langdale, the Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir Edward Ryan. VOL. VII. respecting freehold interest in land in Jamaica. Some of the parties to be bound by the refer ence, being married women interested in the real estate, it was held by the Judicial Committee, (reversing the decree of the Court below,) that such award was invalid, by reason of the coverture of the parties whose interests could not be bound by such a reference. Plea setting up such award in bar to a Bill for an account overruled. 2 D 1851. STRACHAN v. DOUGALL. his wife, formerly Elizabeth Strachan, George Halsall and Jane Ogilvy his wife, formerly Jane Ogilvy Strachan, and Ann Dodd, all of whom were interested. under the Will and codicils of the Testator. The Plaintiff sought by the Bill to have an account taken of the real and personal estate of the Testator, and to have his rights and interests under the Testator's Will and codicils ascertained and established. The Bill set forth the Will and codicils of the Testator, by which he devised and bequeathed his real and personal estate to the Appellant and others; and alleged, that John Vernon and Mary Dougall (then Mary Strachan) proved the Testator's Will and codicils, and entered upon and possessed themselves of the real and personal estate of the Testator, and received the rents and profits thereof; that before Vernon had accounted, he became insolvent, and took the benefit of the Insolvent Act of Jamaica, and ceased to act or interfere in the Testator's affairs, and that Mary Strachan alone was in possession of the rents and profits of the estate until her marriage with the Respondent, Dougall, when he entered into possession with her of the same; the Bill further stated the marriages between Elizabeth Strachan and Smith McNishie, and Jane Ogilvy Strachan and Halsall, and the applications to Dougall and wife by the Plaintiff for his share of the property, but without success, and prayed for an account, and that the shares of the parties respectively entitled might be ascertained and distributed. The Respondents, Dougall and his wife, put in a plea and answer to the Bill; and for a plea in bar to the Plaintiff's claim stated, that articles of agreement were made in 1844, between the Defendants, Dougall and Mary his wife of the first part, Ann |