The Lord Chancellor, previous to his moving the judgment of the House, shortly addressed their lordships upon the nature of this case. It appeared, that James Scott and others were the conductors on an insurance for the militia at Dundee in the year 1808. On the 5th of January in the same year, there was a proceeding had upon a ballot for the militia for the county of Inverness; and M'Intosh (a poor foxhunter) and Macdonald were named as persons who were to serve; in consequence of which the latter was now serving himself and the former by substitute, in the militia. It was, however, stated on the part of the respondent, that they applied to the appellants and paid the price of their insurance; in consequence of which an instrument was delivered to them, bearing date the 11th January that year. Looking to the instrument itself, the nature of the policy was, either to find a substitute, or pay the penalty to which the respondents would be liable if they should, from the date thereof, be drawn as men to serve in the militia; and therefore in itself could not bind the insurers to any occurrence of that sort prior to the 11th of January. But it had been stated, though not so clearly as it might have been, that these parties did, in fact, effect their insurance on the 2d of January, and received a document in evidence of their doing so from a clerk; but which they delivered up upon receiving the more formal one of the 11th of January. The noble and learned lord expressed himself as feeling very much for persons situated like the respondents; and regretted that, upon principles of law, he did not see how in this case they could with propriety be relieved. Because, though a proceeding had taken place on the 2d January, for the ballot of militiamen, it seemed an illegal one, and a mode that was not suggested by any one of the militia statutes; and certainly the insurers were not liable to pay, if the respondents were not bound to serve. Much had been said about a number of other cases which would be 1026 decided by the determination of this—but it was not for him to look to other undecided cases, when he was forming his opinion upon the present—though he could not say that those other cases would be decided by this, unless they were precisely the same in their circumstances. The noble and learned lord said, that upon the motion, "that the judgment of the court of session be reversed," he should give his vote in the affirmative.
§ The Earl of Hardwickethought that insurances for the militia were rendered illegal.
The Lord Chancellorremarked, that the law against illegal insurances did not apply to the period of this transaction.
§ Judgment was reversed accordingly.