VICE-CHANCELLOR STUART'S COURT. WALFORD V. GRAY.-Jan. 14. Treaty of marriage- Representations-Appointment Settlement-Bill by issue of marriage. Where a plaintiff the surviving issue of a marriagesought to have the benefit of certain representations made by her grandfather on the treaty for a marriage between her parents, and a subsequent appointment by her grandfather made roid, the Court held, that she was within the scope of the contract made upon the faith of the representations, and entitled to a decree. Hammersley v. De Biel (12 Cl. & Fin. 45) followed. The question in this case was, whether the plaintiff, who was the child of a lady named Walford, was entitled to a third part of a fund comprised in her grand parent's settlement. ceeding that of the property settled, unless the onethird share of the plaintiff's mother, under Mr. and Mr. Gray's marriage settlement, was included in such account. The indenture of settlement on the mar riage of Mr. and Mrs. Walford was dated on the 2nd August, 1847; and it recited, inter alia, that Mrs. Walford was entitled, expectant on the decease of the survivor of Mr. and Mrs. Gray, "and subject to any exercise by them, or the survivor of them, of a certain power or powers of appointment," to one-third part of certain trust moneys then held upon the trusts of the marriage settlement of Mr. and Mrs. Gray. This part or share, together with other property, was then settled upon the usual trusts in marriage settlements. The marriage accordingly took place, and the only issue were the plaintiff and a son, who died in infancy. Mrs. Walford died in 1851. Mr. and Mrs. Gray exercised their power of appointment by a deed-poll, dated the 23rd April, 1849, and thereby appointed nearly the whole of the trust fund included in their marriage settlement to or on behalf of their other two children, to the exclusion, except as to a very small sum, of Mrs. Walford and her issue. Mr. and Mrs. Gray were dead. The bill prayed that the estate of Mr. Gray might be declared liable to make good to the trustees of Mr. and Mrs. Walford's marriage settlement such a sum of money as would be equal in value to onethird part of the trust funds; that Mr. Gray had, by his representations, precluded himself from exercising the power of appointment contained in his marriage settlement; and that the plaintiff was absolutely entitled to one-third part of the trust funds comprised in Mr. and Mrs. Gray's settlement. The plaintiff, an infant, instituted the suit for the purpose of having the benefit of certain representations made by the father of the plaintiff's mother at the time of her marriage, in reference to her fortune, and which representations had not been fully performed. Under the marriage settlement of Mr. and Mrs. Gray, the maternal grand parents of the plaintiff, sums amounting in the aggregate to about 60007, were settled upon certain trusts, whereby, subject to the life interests of Mr. and Mrs. Gray, they had a power of appointment amongst their children, or the issue of such of them as should be dead; and in default of appointment, the trust funds were limited to such of the children as should be living at the expiration of the life interest of Mr. and Mrs. Gray, and the issue of such of them as should be then dead. Upon the treaty in January, 1847, for a marriage between Mr. and Mrs. Walford, Mr. Gray stated that his daughter should have a daughter's portion, and Mr. Walford alleged that it was represented to him, that, subject to the exercise of the power of appointment, Mrs. Walford would, upon the deaths of her father and mother, become absolutely entitled to one-third part of the trust funds; there being only three children of the marriage between Mr. and Mrs. Gray. Mr. Walford also alleged, that Mr. Gray repeatedly assured him that the power of appointment should not be exercised. The evidence shewed that the negotiations for a settlement on the marriage of Mr. and Mrs. Walford, were carried on by a Mr. William Brice on behalf of Mr. Gray and his daughter, and by a Mr. Richardson on behalf of Mr. Walford. Two draft settlements were prepared by Mr. Brice, and which comprise the property to be settled on the part of Miss Gray and on the part of Mr. Walford; and these drafts were sent to Mr. Richardson for perusal, accompanied by a letter from Mr. Brice, containing a statement and an explanation of the property to be settled on behalf of the lady; and part of this property was described as "Mrs. Walford's interest, together with her brother and sister, in 12501., 22477. 38. 10d., and 21. 16s. 2d. Reduced 31. per Cents., and 25007, 37. per Cent. Consols, secured by the marriage settlement of Mr. and Mrs. Gray. . . . . Mr. and Mrs. Gray have powers of appointment in reference to the sum secured under their settlement. These powers they do not propose to exercise, therefore Mrs. Gray will become entitled to a third at her parents' death. I have entered into these particulars, although fully known to Mr. Edward Walford (the plaintiff's father), for the purpose of accounting for the sum of 69007, at which I have limited the amount of stamp duty." A stamp for the sum of 69007. was accordingly impressed upon the indenture of settlement, in which was comprised the property settled on the part of Mrs. Walford; but it was an account very much ex Osborne, Q. C., and Karslake, for the plaintiff, submitted that the representations of Mr. Gray, upon which Mr. Walford had contracted his marriage, could not be disregarded, and that consequently the exercise of the power of appointment was, so far as it effected Mrs. Walford's interest in the funds, void. [They cited Hammersley v. De Biel (12 Cl. & Fin. 45); West v. Burney (1 Rus. & My. 431); and Loxley v. Heath (27 Beav. 523).] Malins, Q. C., and G. L. Russell, for the defendants, contended that it was fully understood that the intention expressed by Mr. Gray, not to exercise the power, was a present intention only not to exercise it at the time of the marriage; and that he reserved to himself, as shewn by the language of the settlement, full liberty to alter his mind. F. H. Riddell appeared for Mr. Walford. Sir J. STUART, V. C., said, that this case was not free from difficulty. He thought, however, that there was sufficient evidence to shew that the marriage was contracted upon the faith of the representations made by the father of the intended wife, that he would not exercise his power of appointment, so as to deprive her of her one-third share. This was the first case in which relief of this kind had been sought, not by either of the parties to the contract of marriage, but by a child of the marriage; and in that respect the case seemed to be entirely new. If this had been the case of a stranger, or if the limitation in default of ap pointment had been to a stranger, he could not, without much more consideration, have come to the conclusion that a third party could come to this court to have the benefit of representations, on the faith of which that third party had done nothing. But the case was relieved of that difficulty, as the issue of the marriage was clearly within the scope of whatever contract was made upon the faith of representations, and upon which a marriage took place; and therefore such issue could not be treated as a volunteer. The case was within the principle laid down in the case of Hammersley v. De Biel; and as it appeared to him that Mr. Walford had contracted a marriage with the plain-contiguous to, the road so to be temporarily stopped tiff's mother (of which marriage the plaintiff was the up. It was not disputed that Hag Bush-lane had only surviving issue), relying upon these representa- formerly been a public bridle-road; but it appeared tions made on the part of his late wife's father, he that it had of late become much disused, and, in parwas of opinion that the plaintiff was entitled to a de- ticular, that the hedges on each side had been grubbed cree as prayed, with costs. up; that about twenty years ago the landlord had erected a fence across it, and that about two or three years ago some cowsheds were erected across a spot where the lane was alleged to run. Note for refereuce-Fry's Spec. Per. 83. FREEMAN . THE TOTTENHAM AND HAMPSTEAD Where a railway company had obstructed an alleged This was a motion for an injunction to restrain the defendants from stopping up a lane, called Hag Bushlane, running from Tufnel Park, Holloway, to the Junction-road or Archway-road, leading to Highgate Archway, and the question was, whether the road was a public road originally, and whether, if it had been stopped up, it had been lawfully done. Malins, Q. C., and Hardy, for the plaintiff, contended that the attempt to stop up the lane had failed; that the evidence shewed that the lane had been used down to a recent period as a public highway; that no amount of non-user or lapse of time would destroy the public right of way; and that, at all events, it was for the defendants to shew that the lane had ceased to be a public highway; and they also submitted that disuser for twenty years was necessary to extinguish even a private right of way. Bacon, Q. C., and Townsend appeared for the defendants, but were not called upon. Sir J. STUART, V. C.-I think the plaintiff has no legal right to require the Court to grant an injunction in this case. The utmost that can be said upon the evidence of the plaintiff produced in favour of his claim is, that there was a public right of way along what was called Hag Bush-lane, and that the plaintiff's evidence goes on to shew that that right has been so dealt with by the public, that the public right has The plaintiff was the lessee of certain premises, in- been lost; and as to there having been a private right cluding a plot of ground designed for the erection of of way, upon the evidence the plaintiff has established extensive stabling, but upon which no stables had as no right whatever. At one time it was the opinion of yet been erected. This plot of ground abutted, as the a very learned judge (Mr. Justice Holroyd), expressed plaintiff alleged, on the above-named lane, which his evi- in the case of looght v. Winch (2 B. & Al. 670), that a dence shewed was the old pack-horse road, or foot and public right of way could only be extinguished by an bridle way, from London to the north, and the only act of Parliament. But in the case of Reg. v. Montaprincipal means of access to his plot of ground. It ap-gue (4 B. & Cr. 598), that learned judge corrected his peared that about the year 1843, the agent of Mr. opinion; and Mr. Justice Bayley, in speaking of a Tufnel received instructions to prevent persons from public right of navigation, which was exactly similar to passing down this lane, if possible; but if any person a right of way, stated the law in this way :-" From the persisted in going along it, he was to allow them to do manner in which it has been neglected by the public, so. The evidence of the person who was employed to and from the length of time during which it has been discharge that duty was, that in most instances he suc- obstructed, it ought to be presumed that the rights of ceeded; but that in very many instances the persons the public have been lawfully determined." It is not stopped insisted on their right to use the road, and necessary for me to decide here whether the rights of that they were allowed to pass on. The plaintiff, the public have been lawfully determined or not, but when he obtained his lease in 1854, was assured that whether the evidence of the plaintiff shews so clear a there was a road which could not be stopped up. The case as to entitle him to the assistance of this Court evidence shewed that carts and horses had passed in protecting his right; and I am of opinion that it along the road; and Hone's Every Day Book (vol. 1, does not, and, therefore, I must refuse this motion. p. 276. published in 1825) contained a description of Hag Bush-lane, pointed out the localities, and stated provides a remedy in this manner; that anybody who that it had been disused as a public road. The de- suffers an injury from an obstruction to his right of proceeding to obstruct and permanently way, may have an action on the case, but it is not my block up the lane, by carrying their line of railway province to determine the question. If the plaintiff across it; and they had been required by the plaintiff has any legal right of way, he may have an action on it determined as provided by the act of Parliament. All that I shall do will be, to simply refuse the motion for an injunction, and I shall say nothing about its being without prejudice to the plaintiff's right to bring an action. fendants were to make a bridge, or other substituted means of com munication with his ground, but they had refused to do so; and thereupon the plaintiff filed this bill, but to which he had not made the Attorney-General a party. The plaintiff relied upon the 53rd and following sections of the Railway Clauses Act, 1845 (8 & 9 Vict. e. 20), and also upon the 61st section of the defendants' special act (25 & 26 Vict. c. 200), by which it was enacted, that it shall not be lawful for the company to stop up, or to obstruct or impede (except temporarily during the construction of such works), the passage along any public road in the parish of St. event of its being necessary, in the construction of the works, that any such road should be temporarily stopped up, it should not be lawful for the company to stop up the same until they should have made another good and sufficient road over, or immediately The 53rd section of the Railway Clauses Act, 1845, the case, and in that manner he will be able to have VICE-CHANCELLOR WOOD'S COURT. Judgment was given by consent before declaration filed in an action by a patentee against the members of a partnership firm for an infringement, and the defendants immediately took a license to use the invention. A suit to restrain a subsequent alleged infringement having been brought by the patentee against the de 108 [V. C. Wood.] THE JURIST.-REPORTS. Held, that fendants at law and two fresh partners – [Queen's Bench.] COURT OF QUEEN'S BENCH. 1863. Motion for decree.-The suit was instituted to re- [Before COCKBURN, C. J., CROMPTON, MELLOR, and strain the infringement of a patent granted to the plaintiff in 1848 for an improved thrashing machine, and extended in 1862 for the further term of three years. The defendants, Messrs. Clayton, Shuttleworth, & Co., were engineers and agricultural machine makers. In the year 1854, the plaintiff having discovered that the then members of that firm were violating his patent, commenced an action against them for damages for the infringement, and for costs, laying the amount of damages and costs at 41s. in the writ. They submitted, as they alleged, by arrangement with the plaintiff, to give judgment in the action for 40s. damages, and the costs of suit. There were no pleadings in the action. Immediately afterwards, in November, 1854, Messrs. Clayton & Co. took a license from the plaintiff to use his invention for the term of five years. He now alleged further infringements by them. Two fresh partners had been added to the defendants' firm since the date of the action. On the case being opened, Willcock, Q. C., and Langley, for the plaintiff, submitted that Messrs. Clayton, by giving judgment in the action of 1854, were estopped from now trying the question of the validity of the patent. [They cited Andrews v. Dicks (20 L. J., Ex., 127); Allason v. Stark (9 Ad. & El. 255); Bowman v. Taylor (2 Ad. & El. 278); Chitty's Archbold, 881, 914; and Chitty's Forms, 495.] Rolt, Q. C., Grove, Q. C., and E. K. Karslake, for the defendants. [They referred to Lawes v. Purser (6 El. & Bl. 930); Walton v. Waterhouse (2 Wms. Saund. 418); Doe v. Oliver (2 Smith's L. C. 585, 4th ed.); Outram v. Morewood (3 East, 346); Eastmure v. Laws (5 Bing., N. S., 450); Newall v. Elliott (11 Weekly Rep. 438); and Carter v. James (13 M. & W. 137).] Willcock, Q. C., in reply. Sir W. P. Woop, V. C.-I am of opinion, that if this were an interlocutory application, these proceedings would have been sufficient to entitle the plaintiff to an injunction until the hearing. But the question now is as to a perpetual injunction, and I cannot hold that the right of the defendants to deny the validity of the patent is barred. I do not think that even if all the present defendants were parties to the record in the action, a court of common law would have held, in a new action by the plaintiff, that there was an estoppel. There is no evidence of any issue between the parties. The defendants are supposed to say, "We thought it not worth our while to try the question, and we therefore did not raise the issue." They submitted, and paid 40s. damages and costs, possibly because they might have been unwilling to give over working, or incur the expense of litigation. At any rate there appear to have been no pleadings in the action, and the defendants would not be estopped by their submission to the judgment, unless the plaintiff had declared validly, and they had pleaded, denying the infringement. But, further, I cannot prevent the two other defendants not parties to the action from setting up this defence. I think that a court of law would look on the matter as a continuous arrangement, and consider the submission to the judgment and the license as one transaction. I must, therefore, hold that there is no estoppel. SHEE, JJ.] GLEDSTANES and Others v. THE CORPORATION OF THE The plaintiffs were the London agents of the H. K. In- Case stated by consent without pleadings. This was an action to recover 27157., as the amount of a partial loss alleged to have attached under one or other of certain open policies effected by the plaintiffs with the defendants on goods insured in the sum of 76997. 118. 3d., whereof 47387, was declared on the policies hereinafter mentioned by ship or ships in respect of the cargo of The Redgauntlet, which was totally lost by fire at Calcutta, under the circumstances hereinafter set forth. The plaintiffs are the London agents for the Hong Kong Insurance Company, who carry on the business of marine insurance at Hong Kong and elsewhere, and have an agent at Calcutta with a general authority to underwrite policies in their behalf. The course of business of the company in taking risks at Calcutta is as follows: Merchants at Calcutta intending to make consignments of merchandise, for example, to the United Kingdom, and being desirous of securing insurances on the same with the said company, make application to that effect to the agent of the company some time before the goods are actually shipped, or even the Lame of the intended ship known, or the precise quantity or quality of the merchandise defined; and if the application is accepted, a slip, naming the risk in general terms, but without naming the ship, or specifying the particulars of the merchandise, is delivered to the insured; and as soon as the particular ship is determined upon, a formal policy of insurance expressed to be upon the whole amount of merchandise which the insured may consign by that particular ship, is drawn up and delivered to the insured. What quantity of merchandise is covered by such policy remains uncertain until the same is actually shipped. Under these circumstances, the company do not know at the time of issuing a policy of insurance as above mentioned, what may ultimately prove the amount of risk taken by them on any particular ship; and not deeming it expedient to take upon themselves risks to a greater extent than 50007. upon any one ship, the plaintiffs, as their agents in London, effect on their behalf, with the defendants and others, open policies of insurance to cover the several amounts, if any, which the Hong Kong Company may have taken in excess of the 50001. upon any one ship. The maximum amount of value to be insured in these policies is fixed therein, as will presently appear. In accordance with the course of business, the plaintiffs effected a policy of insurance from Calcutta to England, "lost or not lost" with the defendants, dated the 8th October, 1858, for 70001, the subject of insurance being deserved and valued as follows:-" Being on goods free of all average, part of 10.0007, to cover the excess of which may be taken by the Calcutta agent of the Hong Kong Insurance Company on any one ship, warranted to be shipped on or before the 31st March, 18507 The ships were described as being "first-class ships, or ships as may be declared." As a fact, the Calcutta agent of the Hong Kong Insurance Company had takse risks on goods which exceeded 50007, in single shi, ad from time to time, as the plaintiffs received advices from the said company to that effect, stating the names of the ships, and the particulars of the amounts of excess on each ship, the plaintiffs made declarations of the amounts and names of the ships to the def alants, and indorsements were made of the decautions upon the back of the policy. On the 12th February, 1859, before the last-mentione policy was fully appropriated, the plaintiffs propel to effect a further policy of the same kind for. This proposition was made by means of a andum, which was indorsed on the back of the last-tentioned policy as follows:-12th February. 700 to follow this." warranted to be shipped on or before the 31st December, 1859." And a memorandum was indorsed on the prior policy as follows:-" 31st March. 7000l. to follow this, at 308. per cent." On the 7th November, 1859, the first indorsement was made upon this policy, and was upon the remainder of the Hong Kong Insurance Company's policy of ship W. W. Smith, partly appropriated by the last indorsement on the preceding policy, as above mentioned. On the 16th March, 1860, there remained still 50007. unappropriated upon the open policy, dated the 31st March, 1859. The particulars of the subjects of risks covered by the prior policy were completed on the 16th March, 15, and it thus became fully appropriated, or, as it sometimes termed, “consumed." On the same day a telegram was received by the Red Sea and India Telegraph Company from Calcutta, dated the 10th March, which announced the loss of the ship Redgauntlet by fire, and on the same day became known to the plaintiffs and defendants. On the 17th March the plaintiffs, in accordance with the course of business hereinbefore described, appropriated the remaining 50007. upon the abovementioned policy of the 31st March, 1859, to insurances in excess of 50007., upon three ships taken by their principals; and on the same day the plaintiffs effected with the defendants three specific policies, to cover the parts of the risks still uninsured on board the three ships already placed upon the open policy just appropriated as above mentioned. On the 19th March, 1860, the plaintiffs effected a further policy for 10,000l., to follow the policy of the 31st March, 1859, which was expressed to be as follows-" being on goods free of average, &c., to follow and succeed policy dated the 31st March, 1859, warranted to be shipped on or before the 31st December, 1860." The plaintiffs, in the mode which had been previously pursued when the prior policies were effected, indorsed on the preceding policy the following memorandum-"10,000l. to follow, 17th March, at 30s. per cent.," as instructions for the said policy, 19th March, 1860; and the defendants initialed the memorandum as an acceptance of that risk. On the 21st March, 1860, the plaintiffs in due course received from the Calcutta agent of the Hong Kong Insurance Company the following instructions, despatched from Calcutta on the 15th February, 1860: In our next, by regular mail, you will find particulars for insurances, under an open policy, for Redgauntlet and Surrey." This was the first intimation received in England of any insurance by the Hong Kong Insurance Company upon The Redgauntlet. The plaintiffs, immediately upon receipt of these instructions from Calcutta, notified to the defendants that the declaration of insurance in excess of 50001. on the cargo of The Redgauntlet would be made upon the last-mentioned policy when the particulars were received. Their right to declare in respect of The Redgauntlet was, however, disputed, and on the 26th March the plaintiffs, having received advices from Calcutta, that the Hong Kong Insurance Company, as the fact was, had taken risks upon the cargo of the said ship Redgauntlet, to the amount of 47381. in excess of 50007. upon that one ship, indorsed declaration of that amount, per Redgauntlet, on the back of the policy of the 19th March, 1860, and gave notice of the same to the defendants. The defendants refused to accept or acknowledge such declaration, upon the ground that the burning of The Redgauntlet a The proposal above referred to being accepted, another poley, dated the 14th February, 1859, was effected for 700l., being expressed to be on goods, part of, to cover the excess of 50007. on any one sp free of all average, to follow and succeed the be shipped on or before the 30th June, 1859." policy. Dated the 8th October, 1858. Warranted to was known to both parties before the policy was efpolley was, in like manner, appropriated by fected or applied for. The plaintiffs thereupon wrote ditions indorsed thereon as before; the last of opposite the declaration "per The Redgauntlet," the wis, being upon part value of a policy on a ship words" in dispute ;" and after doing so, declared other talk W. W. Smith," was dated the 7th November, risks upon the said policy to the full amount, which were duly initialed by the defendants. 1859. A similar policy was also opened by the plaintiffs with the defendants, dated the 31st March, 1859; also for 70, being "upon goods, part of 10,000l., to follow and succeed policy dated the 14th February, 1859, The plaintiffs, on the 24th March, 1860, before the last-mentioned policy was exhausted, and while there remained upwards of 5000l. unappropriated upon it, effected a further policy with the defendants; and a memorandum was indorsed on the policy of the 19th March, 1860, as follows:-" 20,000l. to follow, 25th March;" such date being a mistake for the 24th March. Similar policies have been from time to time effected during the currency of the preceding policy, and there remains, upon the last of such policies, an amount unappropriated more than sufficient to cover the amount for The Redgauntlet. The interest of the Hong Kong Insurance Company, and the validity of the insurances, were admitted, as well as the loss; and that the goods were shipped on board the said ship, and that all warranties and conditions were complied with, except so far as the same may otherwise appear in this case; and it is agreed, that the amount to be recovered by the plaintiffs (if any) shall be settled by an arbitrator to be named by the parties. The question for the opinion of the Court is, whether the plaintiffs are entitled to recover in respect of the excess over 50007. taken by the Hong Kong Insurance Company upon the cargo of the ship Redgauntlet. If the Court should be of opinion that the plaintiffs are so entitled to recover, then the plaintiffs are to be entitled to enter up judgment for the sum so to be settled as above mentioned. If the Court should be of the contrary opinion, the judgment is to be entered for the defendants. 11 Lush, Q. C., in reply.-There was no such knowledge of the loss as would vitiate the policy. The utmost that can be said is, that the parties knew of the loss of a particular ship, but the loss of the subject-matter of the insurance, viz. the excess over 50007, was unknown both to plaintiffs and defendants. But even if there had been knowledge of this loss, and the defendants had nevertheless chosen to insure the plaintiffs against it, they are liable. (Mead v. Davison, 3 Ad. & El. 303). If the argument on the other side, that a declaration after loss is inoperative, is to prevail, it is tantamount to holding that the defendants were to be taken as insuring such ships only of the plaintiff's as arrive safely. In 1 Arn. Mar. Ins. 175, it is said, “As a general rule, the name of the ship ought to be declared before notice of loss; as, however, cases may occur in which it would not be possible, as when the insured does not ascertain the name of the ship till he hears of her loss, it is in no case a condition precedent to the plaintiffs' right to recover on the policy." [He also cited Robinson v. Touray (3 Camp. 158).] COCKBURN, C. J.-I am of opinion that our judg ment should be for the plaintiffs. The question is, whether in this case there was in existence a policy of which the plaintiffs could avail themselves. It is true that the policy appropriated to the risk of the insured upon goods was, in fact, effected at a date posterior, Lush, Q. C. (Hannen with him), for the plaintiffs. in point of time, to the appropriation; but I think we The plaintiffs are entitled to recover upon the policy must take it that the appropriation was made in antiof the 19th March, for the excess on board The Red- cipation of a policy to be thereafter effected. This gauntlet. This series of policies which have in the seems, at first sight, to be a somewhat unusual course; course of dealing been effected between the parties, but when we come to regard the course of dealing be constitute in fact one continuous policy, the object of tween the parties, we arrive at the following explanawhich was to cover the excess of 5000l. on any one tion of the matter; viz. that the object and intention ship, and the risk attaches to the different ships in was, that the plaintiffs should always be covered by an which the plaintiffs had an interest in order as they insurance from risk in excess of 50007., which they sail. [Crompton, J.-I do not think that is the right might have taken upon any one ship. Mr. Bovill did construction of the words of the policy. The words not attempt to dispute the position, that if this policy "any one ship" seem rather to point to such ships as had been effected on the 16th instead of the 19th the Calcutta agent should declare. Cockburn, C. J.-March, it would, upon due appropriation and declaraThere might have been two cargoes of goods shipped tion, have sufficed to entitle the plaintiffs to the beat the same time, but in different ships. In such case, nefit of it; but he argues that the policy is inoperative, surely, it would be necessary to declare upon which because at the time it was effected The Redgauntlet ship the policy is to attach.] If it be held that the had been lost, to the knowledge of both parties. To words " any one ship" have reference to such ships as this Mr. Lush, as it appears to me, satisfactorily replies. might be declared, such a construction would be equally that, admitting the loss to have been known, the operafavourable to the plaintiffs; the defendants' liability tion of the policy would not be thereby defeated, inaswould in such case begin from the time when the Cal- much as the possible loss of The Redgauntlet was not cutta agent appropriated the policy to the excess on the subject-matter of the insurance, but the plaintiffs' board The Redgauntlet. [He cited Harman and Others risk in excess of 5000l. Now, when this policy was v. Kingston (3 Camp. 150).] The plaintiffs communi- effected, it was not known that the Hong Kong Incated the fact of appropriation as soon as they were ad-surance Company, the plaintiffs' principals, had invised of it, and the knowledge that The Redgauntlet was burnt before declaration is immaterial. Whether, therefore, the commencement of the risk is to reckon from the act of appropriation or the sailing of the ship, the risk had attached before the loss of the ship, and by the course of dealing was to be covered by the policy current at the time when the notice of appropriation reached the defendants. Bovill, Q. C. (Watkin Williams with him), for the defendants.—No risk can attach until the declaration has reached the underwriters. [Cockburn, C. J.-If that be so, it follows that a great portion of a ship's voyage must be uncovered-perhaps, the whole, for the ship herself may arrive as soon as the declaration.] The declaration, when duly made, has a retrospective effect; but that is not the case here, inasmuch as it was made, and the policy itself effected after the loss of The Redgauntlet was known to both parties; and whatever may have been the instructions of the Calcutta agent, there was in fact no policy which was available to cover the plaintiffs' risk on board The Redgauntlet. curred such a loss as was recoverable under the policy; but however this may be, I think that, if an underwriter chooses to insure with a knowledge of the loss of the thing insured, he cannot be permitted to rely upon such loss as affording him the means of escaping from liability. He may have had good reasons for what he did, and for taking his chance. I think, therefore, there is nothing in the circumstance that the loss of The Redgauntlet was known at the time of the effecting of this policy, which can in any way affect the question. We have next to consider whether the declaration, having been made to the underwriter subsequently to the loss, is good. Now, the policy gives the insured the right to appropriate it to any specific and particular ship, subject to this condition-that the ship shall be declared to the underwriter; and thereupon Mr. Bovill argues, that until declaration duly made no risk attaches, and the policy is inoperative. But, as it appears to me, this construction would entirely frustrate the object of the parties. The risk intended to be insured against was the excess of 5000%. upon goods |