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the body of the policy was in the ordinary form of a marine insurance, Martin, B., in delivering the judgment of the Court below (3), saying, "The contract is partly written and partly printed, and the agreement between the parties is to be ascertained by the words of it. The circumstance that it is upon the printed form which is usually adopted for a common marine policy, is wholly immaterial, if the language used and adopted by the parties shews that the insurance extends further than marine policies ordinarily do." In the present case the Court will give effect to the intention of the parties.

Sir G. Honyman (Watkin Williams with him), for the defendant. The question is of course one of construction, and it is necessary to bear in mind the well known distinction between fire and sea policies. In the case of a fire policy, whatever may be the amount of the premium, if goods are destroyed to the amount in respect of which the premium has been received, the insurer must pay for the whole of the loss. But with regard to a marine policy it is necessary to calculate the proportion which the amount for which each underwriter has signed, bears to the whole amount actually at risk. The amount payable depends not on the number of the underwriters, but on the proportion which the share of each bears to the value stated in the policy, or if it is an open policy, to the real value of the goods. The mention of 2,000l. in the policy is merely for the purpose of fixing the stamp, and there was nothing to prevent the plaintiffs from getting other policies on the same risk. If they choose to insure so as to cover only part of the value, they must be taken to have themselves insured the residue. In the present case there was no intention to alter the ordinary liability of the underwriters, and the words relating to the character of the plaintiffs as carriers were merely inserted to describe the subject matter of insurance. The words "at and from all or any of the wharves, &c.," were probably inserted in consequence of the observations of Lord Tenterden in Crowley v. Cohen (1), to shew that the risk was to

(3) 35 Law J. Rep. (N.s.) Exch. 96.

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continue, not merely while the goods were on the vessel, but while the plaintiffs were liable as carriers in respect of them. Crowley v. Cohen (1), is a direct authority in the defendant's favour. The words at the bottom of the policy, "to cover and include all losses, &c.,' were merely put in place of the ordinary memorandum clause protecting the insurers from liability under five per cent., which might be inconvenient where the goods would fluctuate in value. The Court will not, in the absence of express provision, and having regard to the smallness of the premium, assume that it was intended to depart from the ordinary rule that the underwriter is not to be responsible beyond the proportion which the subscription bears to the amount of the risk. Quain, in reply.

MELLOR, J.-I am of opinion that our judgment should be for the plaintiffs. It appears to me that the instrument in question is not properly described as a "marine policy," but that it is a contract by which the one party indemnifies the other against any liability which he may incur as a carrier, with regard to the owners of the goods. It does not, therefore, appear to me that we can do otherwise than construe the words which have been used according to their ordinary meaning. Now the manifest object of the parties to the contract appears to be "to cover and include all losses, damages, and accidents amounting to twenty pounds or upwards in each craft, to goods carried by Messrs. Joyce as lightermen, or delivered to them to be water-borne, either on their own or other craft, and for which losses and accidents Messrs. Joyce may be liable or responsible to the owners thereof, or others interested."

I confess it seems to me that the meaning of these words is that which Mr. Quain contended for. The case is not, therefore, to be dealt with on the principles suggested by the defendant. It is entirely distinguishable from the case of Crowley v. Cohen (1), which has been relied upon, and, indeed, I do not think that any of the cases throw much light on this particular policy, for the words are not the same, nor are they

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capable of having a similar meaning attached to them. There is no reason why the insurers should not contract to give an indemnity against the loss in question, and I am bound to say that I cannot adopt the argument that no man in his senses would do it at such a premium. There is some premium at which such an insurance might be made, and I do not think that the amount of it will aid us in construing this policy.

LUSH, J.-I am of the same opinion. This is an exceptional policy, and we can only see and act upon the language used by the parties. What was intended I cannot doubt, looking at the position of the plaintiffs, who were carriers upon the river. Their object was to secure an indemnity against any loss which they might sustain as carriers in whole or in part, and the contract is not merely a policy upon the goods. A case may be conceived in which the goods have perished, and yet the underwriters may not be liable upon this policy. The subject matter of insurance is the liability which the plaintiffs would sustain in respect of the goods by reason of their having accepted them as carriers. And looking at the words of the document, I cannot interpret them in any other sense than as importing that they, the underwriters, undertook to be responsible to the extent of their subscription for all the losses which the plaintiff might sustain in respect of these goods, and for which they, the plaintiffs, would be responsible over to their owners. That is the very language used, and I cannot entertain a doubt that it is what the parties meant. It is not an ordinary marine policy, but a policy of a mixed nature, the object of which was to secure to the plaintiffs an indemnity to the extent of the sum subscribed for, or for any loss during the year which they might sustain by reason of their being responsible as carriers for the loss of the goods.

HANNEN, J., Concurred.

Judgment for the plaintiffs. Attorneys-Plews & Irvine, for plaintiffs; Parker & Clarke, for defendant.

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Ejectment-Lessor and Lessee-Annexation to Tenement-Lands reclaimed from River Thames-11 Geo. 3. c. 34-Tenancy at Will-Right in Equity to LeaseStatute of Limitations-3 & 4 Will. 4. c. 27. 88. 2, 7, 15-Cestuique Trust.

S., being seised in fee of land abutting on the convex side of an arc formed by the course of the Thames, entered into an agreement of the 23rd of June, 1769, whereby he covenanted with A. to grant leases to him, for ninety-nine years from 1763, of messuages, which A. covenanted to erect on the land. A., and persons having interest in neighbouring property, contemplated making an embankment along the chord of the aforesaid arc, so as to gain from the river the land inside the curve. They therefore obtained an Act (11 Geo. 3. c. 34), which, after reciting that the promoters had "very valuable freehold and leasehold interest in houses, wharfs, and grounds next adjoining the river," empowered them to make the embankment in front of their respective houses, &c., and enacted (s. 2) that the soil of the river so to be enclosed in front of such respective house, &c., should vest, and the same was thereby vested in the owner or owners, proprietor or proprietors, of such adjoining house, &c., respectively, according to his or their respective estates, trusts, or interests.

Having erected houses according to the agreement, A. duly received leases thereof. The embankment was contemporaneously made, and A. also built on the ground reclaimed. The leases, which expired in 1867, did not include that land; but A., and his representatives, retained possession of it until the present day, without any demise to or acknowledgment by them. The plaintiffs, who derived their title from S., brought ejectment for the reclaimed land:·

Held, that they were entitled to recover, for that the Embankment Act vested the fee simple in S., subject to the interests created by the agreement, and A., having had a right in equity to demand leases for ninetynine years from 1868, the occupation of the reclaimed land, although at law merely a

tenancy at will, had been that of cestuique trusts in possession, and, therefore, the title of the plaintiffs was not barred by the Statute of Limitations (3 & 4 Will. 4. c. 27). The proviso in s. 7 of that Statute applies to actual direct trusts, and is not limited to express trusts.

SPECIAL CASE, stated, by consent of the parties, and by an order of Court, in an action of ejectment brought to recover a piece of land, with the messuages, &c., thereon, and the appurtenances thereto, situate in the parish of St. Martin-in-theFields, in the county of Middlesex, and lying to the southward of, and adjoining to, a piece of land formerly known as Durham Yard, now known as the Adelphi Estate; which said piece of ground sought to be recovered was many years since reclaimed or embanked from the river Thames. The defendants appeared and defended for the whole.

The substance of the case and of the arguments sufficiently appears in the judgment of the Court.

Manisty (J. O. Griffits with him) (on June 24), for the plaintiffs, cited—Doe. d. Baddeley v. Massey (1), The Earl of Lisburne v. Davies (2).

J. Brown (A. Wills with him), for the defendants, referred to-3 & 4 Will. 4. c. 27. s. 7; 3 Chitty's Stat., 3rd edit. p. 35; Darby and Bosanquet's Stat. of Lim., p. 269; Archbold v. Scully (3).

Cur. adv. vult. The judgment of the Court (4) was delivered (on July 6) by

BLACKBURN, J.-This is a Special Case stated in an action of ejectment.

It appears that in the middle of the last century the trustees of the Duke of St. Albans were seised in fee of a piece of land, then called Durham Yard, which was bounded on the south side by the river Thames. The plaintiffs, it is admitted, have now got the estate of these trustees. The trustees of the Duke of St.

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At first this agreement was not reduced to writing, and the Messrs. Adam began their operations, trusting entirely to the good faith of the Duke's trustees, but on the 23rd of June, 1769, articles of agreement, under seal, were executed, by which the trustees covenanted with the Adams that they, or the survivor of them, or the heirs of such survivor, should, when the messuages thereinafter covenanted to be built upon the said ground agreed to be demised, should be tiled in, at the request and charges of the Adams, their administrators or assigns, "by one or more good and sufficient indenture or indentures of lease not exceeding one lease for each house, and the expense of each lease not to exceed 51. 58., including the registering thereof, demise to the Adams, their executors, administrators, and assigns," Durham Yard, to hold to them, their executors, administrators, and assigns, from Ladyday 1768, for ninety-nine years, at and under the yearly rent of 1,2001. And the Adams covenanted that they would before twelve months from the date thereof, i.e., before the 23rd of June, 1770, tile in so many houses in and upon some part of the ground, as to the satisfaction of the trustees should secure the payment of the rent of 1,2001. The portion of land to which this agreement applied, as already stated, extended to the Thames, which, to borrow the words of the Act of Parliament which we shall immediately quote, at that time formed "a convex circular sweep," or, as we should term it, an arc.

It appears from the plan attached to the articles of agreement, that it was in contemplation to make a straight embankment from one corner of this sweep to the other, forming the chord to this arc, and so win from the Thames the land inside the chord to the arc. It is the land, or at least the greater part of the land, thus reclaimed, that forms the subject of the present action.

Having discovered that they could not execute this purpose without the authority of Parliament, the Adams, and some other persons having interest in adjoining property, promoted an Act of Parliament, 11 Geo. 3. c. 34.

There can be no doubt, though it is not stated in the preamble, that this was with the concurrence of the owners of the fee, then the trustees of the Duke of St. Albans. This Act, after reciting in the preamble that the Adams and the other promoters had valuable freehold and leasehold interests in Durham Yard, Salisbury Street, Cecil Street, and Beaufort Buildings, next adjoining the river, and that they were willing to make the embankment in front of their respective properties at their own expense, authorises them to do so; and then, by sect. 2, enacts, "That the ground and soil of the said river so to be enclosed and embanked in the front of such respective house, wharf, or piece of ground shall vest, and the same is hereby vested, in the owner or owners, proprietor or proprietors of such adjoining house, wharf, or ground respectively, according to his, her, or their respective estates, trusts, or interests."

The first question raised in the Case was as to the effect of this enactment.

Mr. Brown, for the defendants, endeavoured to construe it as enacting that the Adams should have the fee simple in the land they thus reclaimed from the Thames at their own expense; but we think it is clear that it was intended that the reclaimed land should be held by the same title as the land in front of which it lay, and, consequently, that the fee simple of the reclaimed land along the frontage of Durham Yard vested in the trustees of the Duke of St. Albans, subject to the interests, legal and equitable, created under the articles of agreement of the 23rd June, 1769.

The next question that arises is, what were those interests on the 18th of May, 1771, when the Act received the royal assent ?

The Adams had covenanted to tile in a sufficiency of houses by the 23rd of June, 1770, and, though it is not expressly found in the Case, we have no difficulty, under the power reserved to us of drawing inferences

of fact, in coming to the conclusion that they had done this, and were therefore entitled to call upon the trustees to execute a lease, or leases, of the whole of Durham Yard, and, according to our construction of the Act of Parliament, of the land reclaimed from the Thames, for ninety-nine years.

They had exercised this right by getting several leases of different houses executed, the rents reserved on which, however, appear in the aggregate not to have amounted to 1,2007. [A plan accompanying the Special Case was here referred to.] Two only of the houses come down to the old margin of the river.

The leases of these two houses are set out in the Case and by them it appears that those two leases each contained this express reservation: "Except and always reserved out of these presents the lowest range of vaults, situate or being under the messuage or tenement hereby demised, and which are intended to be demised" by the trustees to the Adams. So that it is plain that these leases did not comprise the actual original boundary of the Thames which was included in the vaults thus reserved with the declared intention of making a subsequent lease of them; and, as it seems to us, a multo fortiori, they did not include any part of the reclaimed land which lay beyond these vaults.

The state of the title, at the time when the Act of Parliament came into operation, therefore was, that a portion of Durham Yard was already under leases terminating at Lady Day, 1867, and that the residue of it and the whole of the reclaimed land was then held by the Adams as cestuique trusts in possession, having under the articles of agreement of the 23rd of June, 1769, a right in equity to leases for ninety-nine years from Lady Day, 1768. Leases were subsequently executed of all the different houses, the rents reserved in the aggregate, we presume, amounting to 1,2007. per annum; but these leases carefully expressed what it was that was comprised in each, and no one of them included the portion of reclaimed land now in dispute. This, it seems to us, was no oversight, but purposely done. The object of the brothers Adam in having separate

leases made of the different houses was that they might have it in their power to sell each lease separately; and it would have defeated their intention if the purchaser of the lease of a house could have claimed the wharf which was erected on the reclaimed land, or any portion of it, as part of what was comprised in his holding.

The Adams might have required the owners of the fee to execute to them a lease of this land, but there was no object to be gained by them by so doing, as, if the owners of the legal fee had in any way interfered with their possession during the ninety-nine years, a Court of Equity would at once have interposed.

The owners of the fee had a right to call on the Adams to accept and execute a lease for this land, but as the rent of 1,2001. was already adequately secured, it must have been a lease not reserving any rent; and until the passing of the 3 & 4 Will. 4. c. 27, there was no motive to induce them to require this, as till then there could be no question that the possession of the Adams during the term could not be adverse, and time would be no more a bar to their reversioners after an equitable term, than to those after a legal one.

But it was argued for the defendants that the effect of the 3 & 4 Will. 4. c. 27 was, as is said in Nepean v. Doe d. Knight (5), to do away with the doctrine of non-adverse possession; and that consequently, after the lapse of five years from the passing of that Act, that is in 1838, the title of the present plaintiff's was barred, although there never had been a moment up to the end of the ninety-nine years, that is up to 1867, when they could have interfered with the possession without being liable to an injunction, and being punished for a breach of trust.

It is obvious that the Legislature could never have intended this, and we think that there is nothing in the statute 3 & 4 Will. 4. c. 27, producing such an effect (6).

(5) 2 Mee. & W. 894; s.c. 7 Law J. Rep. (N.s.) Exch. 335.

(6) 3 & 4 Will. 4. c. 27. sect. 2, enacts that after 31st of December, 1833, no person shall make an entry or distress, or bring an action to recover any

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In Garrard v. Tuck (7) the Court of Common Pleas put a construction upon that statute, according to which, where the possession is that of a cestui que trust, though his relation to his trustee may at law be that of a tenant at will, the trustee's estate is not destroyed by mere lapse of time. That doctrine would be binding on us even if we did not approve of it as we do. But it was argued that the proviso at the end of section 7 must be limited to express trusts," and for this the case of Doe v. Rock (8) was cited. The word 66 express" is not found in this section, but it may very well be that in construing the Act, the terms trustee and cestui que trust are to be understood in the same way as in Beckford v. Wade (9); the Privy Council therein held that the words trust and trustee in the Jamaica statute of limitations were to be understood, in the language of Sir William Grant, as meaning "actual express trusts as between cestui que trusts and trustees, properly so called, on which length of time ought to have no effect." actual direct trust; not such possible, eventual trusts as may, in case certain

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land or rent, but within twenty years next after the time at which the right to make such entry or distress, or bring such action, shall have first accrued.

Section 7 enacts, that in the case of a tenancy-atwill, such right shall be deemed to have first accrued at the termination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined: "provided always, that no mortgagor or cestui que trust shall be deemed to be a tenant-at-will, within the meaning of this clause, to his mortgagee or trustee."

Section 14 relates to acknowledgment of title, and section 15 provides "that when no such acknowledgment as aforesaid shall have been given before the passing of this Act, and the possession or receipt of the profits of the land, or the receipt of the rent, shall not at the time of the passing of this Act have been adverse to the right or title of the person claiming to be entitled thereto, then such person, or the person claiming through him, may, notwithstanding the period of twenty years hereinbefore limited shall have expired, make an entry or distress, or bring an action to recover such land or interest" [sic] "at any time within five years next after the passing of this Act."

(7) 8 Com. B. Rep. 251; s. c. 18 Law J. Rep. (N.S.) C.P. 338.

(8) Car. & M. 553.

(9) 17 Ves. 92.

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