C. P.]

DAVIDSON AND OTHERS v. BURNAND.

were broken, or out of order, it would be the same. A splinter might do it.

The declaration was in the common form upon the said policies of insurance, and the pleas which are material were, first, that the loss was not caused by the perils insured against; and secondly, that the ship was unseaworthy.

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them to find a verdict for the plaintiffs, which the court would not set aside, as being against the On re-examination, the witness further stated. weight of evidence. As to the seaworthiness of the I see no trace in the survey of a broken valve or anything vessel, the statement of the case disposes of that, of that sort; the state of the valve is a matter of no conse as there is evidence of competent persons that in quence when the vessel is under way. If I found the leak ceased while she was lying in the harbour, this would enable their opinion she was seaworthy, and their attention me to form an opinion as to whether it was a temporary was called to this valve, which worked all right obstruction of anything floating in the valve. It would be when the water was pumped out of the ship. possible to take a staff of any description which might touch the valve in such a way as to knock the splinter out | Therefore, it is impossible for us to say that which and then become tight at the same time. If the leak competent persons say was seaworthy was not censed in the harbour. I should form the opinion that it was seaworthy. The burden of proving that the from a temporary accidental cause. ship is not seaworthy is upon the underwriters. If it is shown that the ship is lost without any assignable reason that would throw the burden of proof on the assured, but here proof is given that the vessel was seaworthy. Then with respect to the question whether the loss is shown by the assured The questions for the opinion of the court were--to have been caused by perils of the seas or some First, whether the evidence set forth in the 6th peril analogous to perils of the seas. If it were paragraph of this case was evidence which ought necessary to determine this with grammatical preproperly to have been left to the jury, upon which cision which the court was called upon to do in the they might reasonably find a verdict for the plain-case in 3 Taunt. (Thompson v. Whitmore), one might tiff upon the issue joined, on the plea that the said say that this was not a peril of the seas, though I goods were not nor was any part thereof lost by the am not at all sure that we should come to that conperils insured against; and, secondly, whether or clusion; but we are freed now from questions of not the evidence in the 6th paragraph set out was variance, as, if necessary, we should amend. In evidence which ought properly to have been left to Cullen v. Butler, 5 M. & S. 461, the declaration set the jury upon which they might reasonably find a out the terms of a policy making the underwriters verdict for the plaintiff upon the issue joined in the liable, not only in case of loss by certain specified plea that the said ship at the time of the commence- perils, but also in respect of all other perils, misment of the risk was not seaworthy. fortunes, and losses, and it was held that the general words extended the indemnity to cases not distinctly covered by the special words. The question, therefore, is not if this is strictly a peril of the seas, but if it is such "other peril" within the meaning of the policy? Of course there must be a loss by a peril of the same kind as those specified in the policy. One peril which would be covered by the policy would be a loss by collision, even though the vessel were in port and in smooth water at the time, and if another vessel had run into the plaintiffs' ship and had made a hole of the same capacity as the hole through which the water got into this vessel, whether it occurred at sea or in port, in a storm or in smooth water, the underwriters would be clearly liable for that, and whether it was caused by the negligence of the crew of the other vessel or not. Therefore, unless a distinction is to be drawn between negligence of the crew of another vessel and an accident such as a splinter getting into this valve, or the negligence of the crew of the vessel itself, this damage was clearly caused by what is analogous to perils of the seas. If it was a splinter which kept this valve open, it can hardly be argued that that was not a peril of the sea, and I see no distinction between that and a vessel coming into contact with a quantity of floating wreck on a dark night, and when the sea is calm, by which a hole is made in the vessel. In Dixon v. Sadler, 5 M. & W. 405, the distinction between damage caused by the negligence of the crew and the negligence of a stranger was done away with, and therefore it is not necessary to

The perils insured against were, "of the seas, men-of-war, fire, enemies, pirates, &c., barratry of the master and mariners, and all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods, &c.," beginning the adventure from the loading of the goods on board.

Sir G. Honyman, Q. C. (Watkin Williams with him) for the plaintiffs. At the trial the defendant's counsel refused to go to the jury, therefore the only question is if there was any evidence which might properly have been left to the jury. It is not neces sary to contend that the damage was caused by perils of the sea or by negligence, it is sufficient that the damage was caused by salt water which got access to the goods in a way out of the ordinary course of things.

Mathew, for the defendant.-The question is if the damage was caused by a peril within the policy, which must be ejusdem generis with perils of the sea. Here there was no force and no bad weather, and it is admitted that the ship was in such a state that the damage would not have occurred if she had been at sea. The insurance is not an insurance against damage by sea-water. Suppose there had been a reservoir on deck which had leaked and damaged the cargo, the underwriters would not be liable. To make the underwriters liable, it is necessary to show the intervention of a peril insured against. He

cited:

Magnus v. Buttermer, 11 C. B. 876;

|

Thompson v. Whitmore, 3 Taunt. 227; 4 L. T. say if the damage here was caused by a peril of the Rep. N. S. 845;

Devaux v. I'Anson, 5 Bing, N. C. 519;

sea, as I think it is in the language of Lord Ellenborough in Cullen v. Butler, "by a peril of the sea

Paterson v. Harris, 1 B. & S. 336; 6 L. T. Rep. or the like." Therefore, I think that our judgment

N. S. 576;

Parsons on Marine Insurance, 387, 544.
BRETT, J., cited Phillips v. Barber, 5 B. & Ald. 161.

Sir G. Honyman, in reply, was not called upon. WILLES, J.--Notwithstanding the able argument of Mr. Mathew, I am of opinion that our judgment must be for the plaintiffs. The only question is if there was evidence to go to the jury, and evidence such as might reasonably satisfy them and induce

should be for the plaintiffs. I should mention that the judgment of the surveyor proceeds upon the survey itself, and I think we ought not to take it as evidence that there was a splinter in the valve; but I merely put that as an illustration, and there is evidence that the water got into the ship in consequence of the cocks being left open.

KEATING, J.-I am of the same opinion. Looking at the survey itself, without the suggestion of the surveyor, it seems to me clearl; to be evidence for

Leases of six or seven of the said sites with dwelling-houses erected thereon had actually been granted to workmen who had fully paid to the said parties of the second part the sums agreed on between them as the price of such sites and houses respectively, which sums had been handed over by the said parties of the second part to the said John Clayton, in part payment of his said loan and interest.

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of his advances should be repaid, with interest after | taxes, rates, cesses, and outgoings in respect thereof. the rate of five pounds per cent. per annum. And that the said purchaser, his heirs, and assigns, should keep and maintain the said dwelling-house and premises in good condition and repair. And that until all moneys which might be due or payable to the said trustees or their successors under the now reciting agreement or the rules of the Jarrow Building Company aforesaid should have been duly satisfied, the said trustees should have full power to insure the said dwelling-house and premises against loss or damage by fire in such name and for such sum as they might think necessary, and all moneys which the said trustees should pay in so doing should be repaid by the said purchaser on demand. and should until and in default of payment thereof be a charge on the said premises. And that the said purchaser should not sell or transfer his interest in the said house and premises to any person or persons whomsoever without the consent or approval of the said trustees. And that within three months after all the moneys due or payable under the now reciting agreement and the rules of the Jarrow Building Company aforesaid had been duly satisfied, and provided the said purchaser should have observed and performed all and every the conditions and agreements therein contained, and also all and every the rules and regulations for the time being of the said company, and on his part to be observed and performed, the said trustees or their successors should, at the request and costs of the said purchaser, give him a proper conveyance in duplicate of the said leasehold premises, subject to the said annual ground rent and the powers for raising the same.

The remainder of the sites had been sold by the said parties of the second part to workmen under agreements in the form and of the tenor and effect of the agreement between the said parties of the second part and the said claimant, Robert Anderson, next hereafter mentioned; but leases of the same have not yet been actually granted. At the date of these agreements respectively, the houses were in some cases not built, and in other cases only partially so. Where not actually built, they were subsequently completed by the respective purchasers, the costs being defrayed out of money which was part of the 70007. hereinbefore mentioned and agreed to be advanced by the said John Clayton, and which said sum has been partly repaid by the contributions aforesaid.

By memorandum of agreement, dated the 18th July, 1864, and made between the said John McIntyre, William Bell, George Sharp, and Robert Armstrong, therein described as trustees to the Jarrow Building Company (and who and their successors are thereinafter referred to as "the said trustees") of the one part, and the said claimant, Robert Anderson (thereinafter referred to as "the said purchaser "), of the other part, the said trustees agreed to sell, and the said purchaser agreed to purchase, the leasehold piece of ground, dwelling-house, and premises, situated in No. 16, Clayton-street, on the Jarrow Grange Estate aforesaid, and more particularly described by the plans and specifications already agreed to by the said purchaser to be held for a term of ninety-nine years, subject to an annual ground rent of 9s. 6d. to be paid thereout to the said Sir Walter Charles James, or his agents, at or for the price or sum of 741. And it was agreed that the said purchase money of 74. should be paid by fortnightly instalments of 5s. 6d., being after the rate of 107. per cent. per annum on the contract price of each house, 51. per cent. per annum to be deducted therefrom for interest on the debt standing against the said purchaser at the commencement of each twelve months, the remainder to be applied to the reduction of the debt standing against the said purchaser at the commencement of each succeeding twelve months. And if the purchaser should neglect or refuse to make any of the said fortnightly payments when the same respectively should become due, he should forfeit and pay to the said trustees as and for liquidated damages the sum of threepence for the first neglect or default. sixpence for the second, one shilling for the third, and so on, the sums increasing in the same ratio for each succeeding neglect or default until such sums should be equal to the amount the said purchaser had paid to the said trustees as regular subscriptions. And that if at any time such should be the case, the said trustees shall have full power to enter on the said ground, house, and premises, and hold the same as if the now reciting agreement had not been made, and forcibly to expel the said purchaser without any ejectment or other legal process, and to plead the now reciting agreement as conclusive evidence of leave and licence. And it was also agreed that the said purchaser should have possession of the said premises from and after the signing of the now reciting agreement, and should pay all ground rent,

Upon the execution of this agreement the claimant was let into possession of the said dwellinghouse and premises therein comprised.

Since the making of the contract he has duly paid all instalments according to the contract, and has observed all the rules and regulations of the said building company. All the houses referred to in the firstly recited agreement had been erected on the said land by the said trustees' money, having been advanced from time to time for that purpose by the said John Clayton, to the amount of 7000L, which amount, together with the monthly contributions of the said workmen from time to time made, covered the whole cost to the trustees of the erection of the said houses. Since the said houses were built the agreed ground rent of 9s. 6d. has been yearly paid by each individual purchaser to Sir Walter James in respect of each house, out of the monthly payments of the persons for whom the dwelling-houses were built. The interest upon the said sum of 7000l., together with part of the principal, had been repaid, so that only the sum of 5000/. was on the 31st July 1867 due to the said John Clayton for principal and interest on account of his said loan. Since that date the amount due to him had at no time exceeded that sum, and on the 31st July 1868 and at the time of the revision, was less.

The part of the said parcels of ground mentioned in the said agreement of 1st May 1863, and the houses built thereon not included in the leases already granted, were on the 31st July 1867, and have since continued, a sufficient security for the amout due to Mr. Clayton for principal and interest.

The aggregage amount of the respective balances of purchase money and interest due and unpaid from the respective purchasers to the said trustees for sites and houses not yet actually leased has always exceeded the said amount due at any time to Mr. Clayton.

With respect to many of the said sites and the houses thereon, the annual value of the same after deducting interest at five per cent. on the unpaid balance of purchase money the ground rent of 9s. Gil., and insurance appeared to be less than 56; and I

TROTTER (app.) v. WATSON (resp.)

accordingly disallowed the claims of the purchasers | building company, or in respect of Mr. Clayton's of such sites and houses to be registered.

With respect to others of the said sites, the houses thereon, after being built by the trustses, had been added to and improved by the expenditure of capital and labour thereon by the respective purchasers thereon, among whom was the claimant Robert Anderson. House property in the neigh-price paid on the 31st July 1867 to the trustees, plus bourhood had also generally increased in value, and I found, as a fact, that after deducting from the annual value of the said claimant's house interest at five per cent. upon the balance of purchase money due on the 31st July 1867, to the trustees the agreed ground rent of 9s. 6d., the cost of repairs, and premium for fire insurance, there remained 57. clear.

C. P.]

TROTTER (app.) v. WATSON (resp.)

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BYLES, J.-I am of the same opinion. Here no term has been created, either legal or equitable Even if there had been a term created by the agreement of 1860, the claimant is not in a position to claim an assignment of it; the conditions have not yet been fulfilled.

equity," which are used with regard to the former, I is this difference at the outset, that the one never are omitted in the latter part of the section, which had more than the legal estate, while the other was defines the leasehold franchise. Assuming, how- at one time both the legal and beneficial owner, and ever, for the purpose of argument that an may again become the beneficial owner if anything equitable estate in leasehold is sufficient, as in the should happen to prevent the execution of the concase of freehold or copyhold, Mr. Williams says tract; and in the interim between the contract and that an equitable right, which he calls an equitable conveyance it is possible that much may happen to estate, is equally within this provision of the prevent it. Before it is known whether the agree statute; and he has cited cases for the purpose of ment will be performed he is not even in the situsshowing that if there had been an agreement for a tion of a constructive trustee, he is only a trustee sale or lease of property, and the purchaser had sub modo, and provided nothing happens to prevent taken possession, and nothing remained to be done it. It may turn out that the title is not good, or but payment of the purchase money, the courts of the purchaser may be unable to pay; he may beequity would hold that the agreement had given to come bankrupt, then the contract is not performed, the purchaser an equitable right or interest in the and the vendor again becomes the absolute owner." term or estate agreed to be conveyed or assigned. The doctrine suggested by Mr. Williams went much But even granting that such an interest would further than this. I shall follow the decisions in confer a vote, this case is different. The freehold, the settlement cases cited by Mr. Manisty, in which as stated in the agreement, is vested in Lady James, a rule applicable to the present case is laid down. or in her husband on her behalf. Any legal or There has been here no term of years created at equitable interest must consequently be derived law or in equity, although the time may come when through them. Neither Sir W. James nor his wife tnere will be an equitable estate; when, for inhas ever entered into any contract at all with this stance, the claimant's title is unencumbered by the claimant. The agreement is between Sir W. James provisions in the two agreements. This is not a case and Clayton and the trustees, and it is, on Sir W. | falling within the Act of Parliament which confers James's part, to grant to certain workmen a lease of the franchise on a lessee or assignee of the unexninety-nine years from May 1860, at a rent, when pired residue of a term of not less than sixty years, Clayton, with the consent in writing of the trus- the decision of the revising barrister must therefore tees, shall require the same to be granted. Until be reversed. this condition is fulfilled, it is not determined who are to be the leaseholders. Clayton advances 70001, which is to be a charge on the property. The second agreement is entered into between the trustees and the claimant. It is an agreement in substance for the sale of a term of ninety-nine years, on certain conditions being fulfilled, but before the conveyance is to be executed the purchaser must have paid all the money's due or payable under the agreement, performed all the rules of the building society, and the conditions contained in the second agreement, and three months must elapse after the purchase money has been paid. Before the claimant could be a leaseholder he must have done all this, yet he has neither paid the whole of the purchase money, nor, of course, have the three months elapsed after payment of it, and there is nothing to show that the rules have been observed; but, even if the rules had been observed, Clayton has not asked for the lease to be granted, nor have the trustees given their consent in writing. It is not contended that the claimant had a legal estate, he is said only to have an equitable one. But there is no equitable estate until the time arrives when these conditions shall have been fulfilled, and the courts of equity would not decree a specific performance of the contract on the part of Sir W. James to create the lease until then. The claimant is in lawful possession of the house and land, but not for a term of sixty years; he is in possession until it is decided whether he is to have the estate or not; and this depends upon whether he performs the conditions contained in the agreement. The claimant has, therefore, no estate at all, either at law or in equity; he has a mere inchoate equitable right, which is not yet rendered perfect. It is nothing but a mere equity at some future time and upon certain conditions, to have a lease granted him. It was contended that, as in the case of vendor and purchaser, if there had been part payment and delivery of possession, it is to be therefore deemed for the purposes of this Act that a conveyance has been made. But even in the case of vendor and purchaser, it appears from what was said by Sir Thos. Plummer, M.R., in Wall v. Bright (1 J. & W. 494) that an agreement is not for all purposes to be taken as a conveyance. "For many purposes (see p. 501) a trustee and a person who has agreed to sell an estate stand in different situations." "There

KEATING, J.-I am of the same opinion. There are no words in the Act of 1867 actually conferring the franchise on equitable leaseholders. The county property franchise was created by the Reform Act of 1832, and the qualifying value was reduced by this section of the Act of 1867. I entertain no doubt of the correctness of the decision upon the Irish Reform Act of 1832 (2 & 3 Will. 4, c. 88) which was given by Crampton, J., in Vance's case, Alcock's Registry Cases Reserved, part 3, p. 269, viz., that under the 47th section of that Act. a leaseholder might register out of an equitable interest. I have some doubt whether, under the English Acts, an equitable estate in a leasehold for a term of sixty years will confer the franchise but I have no doubt at all that this is not an equittable estate in a leasehold; this is only an equitable right to a lease under an agreement upon the fulfilment of certain conditions. I agree with my Lord that the claimant could not ask for a lease to be executed, and he is therefore not entitled to be registered under this section. The decision of the revising barrister was wrong.

M. SMITH, J.-I am of the same opinion. It is necessary under the 5th section of the Act of 1867 that a term should be created. Here the claimant has no equitable estate in any term. Where there is an agreement to grant a term on the payment of money alone, an equitable leasehold estate would be created, according to the principles laid down by Westbury, C., in Holroyd v. Marshall, a case cited for the respondent, and that estate might be within the meaning of the statute; that, however, could be only when there is a simple debt, and the vendor has only a lien for the purchase money. But when the lease is to be granted on future conditions being performed, which may or may not be fulfilled, there can be no equitable term, or any term which will satisfy the provisions of the 5th section of the Act