last recited policy, and according to the times thereof, for the sum of 7251., being a proportionate part of the said sum of 1,4507., for which the said 1,400 hides were declared as aforesaid to be insured under the said last recited policy, and the said policy of 1868, &c. (allegations that the ship with the said hides on board thereof started on her voyage; that the hides were wholly lost by the perils insured against; that one Jan Tecker Gazen was interested, and that the defendants did not pay the said sum of 7251.)

The fourth count alleged that a contract was made by and between the plaintiff's and the defendants by a certain policy of insurance, by which the defendants held insured the plaintiffs, as well in their own as in that of the name or names of those to whomsoever the same might appertain; and whether lost or not lost, in the sum of 1217. on 1,400 hides valued at 1,4501., being a reinsurance of part of policy so issued by the "Progress Insurance Company,' subject to same clauses and conditions as said insurance, and to pay as might be paid thereof from Ceara to Hamburgh, on board the good ship Socrates whereof was master, or whoever else should or might be master, &c. (similar allegations as in the last count, that the ship started on her voyage with hides on board; that the hides were lost; that Jan Tecker Gazen was interested; and that the said sum of 1211. was not paid).

There was a fifth count for money received by the defendants for use of the plaintiffs, and on accounts stated.

Pleas, first as to the first and third counts, payment into Court.

Second. As to the second and fourth counts, that the defendants did not contract as therein respectively alleged.

Third. As to the second and fourth counts, the defendants say that the several persons therein respectively mentioned were not, nor was any or either of them, interested as alleged.

Fourth. As to the 2nd and 4th counts, the defendants say that the said policy was not made for the use and benefit or on account of the said persons or person so interested as alleged.

Fifth. As to the 2nd and 4th counts, the defendants say that the said hides were

not shipped on board the said ship Socrates in the said policies respectively mentioned, to be carried on the said insured voyage as alleged.

Sixth. As to the 2nd and 4th counts, the defendants say that they were induced to subscribe the said policies in those counts mentioned, and to become insurers to the plaintiffs on the terms of the said policies respectively, by the misrepresentation of the plaintiffs of a fact material to be known by the defendants, and material to the risks by the said policies respectively covered, that is to say, that the hides in the said policies respectively mentioned were shipped by the ship Socrates, whereas in fact they were shipped by another ship, that is to say, the ship Socrate.

Seventh. As to the 2nd and 4th counts, the defendants say that the said hides respectively in the policies in those counts respectively mentioned were not, nor was either shipment of them, lost by the perils insured against as alleged.

Eighth. As to the residue of the declaration, except as to 661. 18. 5d., parcel of the money claimed, the defendants say that they never were indebted as alleged.

Ninth. As to the sum of 661. 1s. 5d., parcel of the money claimed, the defendants bring into Court the sum of 66l. 18. 5d., and say that is sufficient to satisfy the claim of the plaintiffs therein pleaded to.

Replication-first: As to the defendants' first plea, the plaintiffs take out of Court the sum of 134l. 98. 8d., and say that such sum is not sufficient to satisfy the plaintiffs' claim in respect of the matters to which the said plea is pleaded.

Second, to 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th pleas the plaintiffs join issue upon the said pleas respectively.

Third, to the 9th plea, the plaintiff's take out of Court the sum of 66l. 18. 5d., and say that such sum is sufficient to satisfy the plaintiffs' claim in respect of the matters to which the said plea is pleaded.

The following plea as to the 2nd and 4th counts was added, that at the time of the defendants' subscribing the said policies, and becoming insurers as therein mentioned, the plaintiffs and their agents wrongfully concealed from the defendants a fact then known to them, and unknown

The judgment of the Court (4) was (on June 24) delivered by

BLACKBURN, J.-This was an action on four different policies of marine insurance, made by the defendants with the plaintiffs.

No

The plaintiffs are brokers, who, as is common, enter into policies in their own names, but on behalf of and to protect the interest of different constituents. notice was given to the defendants for whom the different policies subscribed by them were made, but from the ordinary course of business they must have known that the plaintiff's probably had principals, and nothing was done by the plaintiffs to justify the defendants in concluding that the principals in the different policies were the same persons. In fact, those which come in question in the present action were made for two different firms, Messrs. Kalkmann and Messrs. Gazen, both of Hamburgh.

In order to make the points, raised at the trial and discussed in Court, intelligible, it is necessary to state what was the position of the plaintiffs with regard to both these firms in the latter part of

January, 1870, when the transactions took place which gave rise to the present dispute.

The plaintiffs, in pursuance of instructions received from Messrs. Gazen, had entered into policies in conjunction with each other to cover hides to a considerable value on ship or ships to be declared. The defendants had subscribed one of these policies for the amount of 2,3451. Another of the policies was subscribed by another company, the Progress, which had failed, and was being wound up. So many interests had been declared on these policies that there remained so little open on them to declare, that the proportion on the defendants' policy left open would be 7251., and that on the policy in the Progress 1211.

In this state of things the plaintiffs received from Messrs. Gazen a letter dated the 23rd of January, written from Hamburgh, directing them to declare on these policies, to cover hides shipped on The Socrates, Jeaucard, from a port in the Brazils to Hamburgh. The plaintiff, De Chapeaurouge, having received this letter, on the 24th of January directed one of his clerks, Lambert, to go to the office of the defendants, and there declare on The Socrates for 7251., so as to fill up the defendants' ship or ship's policy, and at the same time to see if the defendants would at the same premium re-insure the portion of the risk covered by the policy in the insolvent company, the Progress, viz. 1211.

The letter of instructions was not by him, but the Veritas was lying on the table, and on looking into it, the plaintiff and his clerk saw in the register, which is in alphabetical order, The Socrates, Captain a new Norwegian vessel, and, next to it, The Socrate, Captain Jeaucard, an old French vessel; had the plaintiff recollected that the letter described the vessel as The Socrates, Jeaucard, he would probably have conjectured that the inaccuracy was in the name of the vessel, and that, as the fact turned out to be, the hides were shipped on board The Socrate; but not recollecting this, he observed to his clerk that a Norwegian ship of that character was very likely to be engaged in that trade, or words to that effect. The clerk went

down to the office, and there saw the defendants' principal manager, Drummond; he then indorsed on the policy a declaration of interest by The Socrates, which he handed to Drummond to initial, and at the same time requested him to insure on the same ship 1217. by way of re-insurance of what had been insured in the Progress.

Drummond, turning to the Veritas, and there seeing The Socrates, asked if that was the ship. Lambert replied that he thought so; Drummond then initialed the declaration. At the same time a slip was prepared for a policy on hides per Socrates to cover 1217. at 66s. per cent., being the same premium. No discussion took place about the premium; probably because the transaction was so small, and was entered into rather to oblige a good customer than with any view of making a profit; but there can be no doubt that the premium on an old vessel such as The Socrate would have been higher than that on a new one such as The Socrates, though the difference on such a sum as 121l. would not have been more than a few shillings, and was probably neglected by both parties. The policy for 1211. was afterwards made out and executed. This finished the transactions, so far as the plaintiffs were acting for Gazen.

The third count was on the declaration on the ship or ship's policy, to recover the 7251. The fourth count was on the policy for 1217., and in both these counts the interest was averred to be in Messrs. Gazen, and the policies to be made on their behalf.

The plaintiffs had also opened with the defendants a policy on hides by ship or ships to be declared for 3,000l. This had been done on behalf of Messrs. Kalkmann. The plaintiffs had also received instractions from the same parties to open a further policy of the same nature to the extent of 5,000l. and had agreed with the defendants for it. The slip was signed, but the policy had not yet been prepared.

On the 3rd of February there had been so many interests declared on the 3,000l. policy, that there remained open on it only 2451.

This being the state of things, the

plaintiffs received a letter from Messrs. Kalkmann, informing them that they had hides to the value of 2,7001. coming by The Socrates from Brazil to Hamburgh, and also hides to the value of 3,6001. coming by The Sophie, and desiring them to insure 1,1007., and to declare on their open policies for the residue. It will be observed that the interest open on the policy for 3,000l., viz. 245l., the 5,000l. for which the slip was signed, though the policy was not executed, and 1,100, would together make 6,3451., being 451. more than the amount coming by the two vessels, as announced by the letter of the 3rd of February. The plaintiffs procured a policy for 1,1007. on the hides per Sophie, and then, on the 4th of February, the plaintiff, Chapeaurouge, went in person to the defendants' office; he there saw a different clerk of the defendants, one Lark, and there was no controversy of testimony between them as to what took place. The plaintiff indorsed on the back of the 3,000l. policy a declaration of interest on hides per Socrates, to the extent still open on that policy, viz. 245l. He at the same time took the slip for the 5,000l. policy on hides by ship or ships, and taking up two pieces of paper, wrote out a slip for a policy for 2,4551. on hides per Socrates, and another slip for a policy for 2,500l. on hides per Sophie, and laid those four documents before Lark. Lark asked what this meant, and Chapeaurouge said that instead of drawing up an open policy for 5,000l. and then declaring on it for 4,9557., which would leave so small a balance as 451., it would be more convenient for all parties to have two ship policies. Lark assented, and initialed the declaration and the two slips.

The plaintiff went away, and soon after the two policies on hides by The Socrates and hides by The Sophie were duly executed on behalf of the defendants.

The first count was on the declaration

of interest on the open policy of 3,000l., to recover the 2451. The second count was on the policy on The Socrates, to recover the 2,4551. In both these counts the interest was averred to be in Messrs. Kalkmann, and the policies to be made on their behalf

The defendants ultimately paid money into Court on the first and third counts, being those on the ship or ships' policies, which the plaintiffs accepted, so that no question arose on the trial as to those two counts, though it has been necessary to mention them in order to render the defence as to the others intelligible.

As to the second and fourth counts, they pleaded several pleas. Those that were material are, the first, non assumpsit; the fifth, that the hides were not shipped by The Socrates; the sixth, that the defendants were induced to subscribe the policy by a misrepresentation of a material fact, viz. that the hides were shipped by The Socrates, whereas they were shipped by The Socrate; the seventh, a denial of the loss as alleged; and, lastly, an additional plea, that the letter in which the name of the captain was given was not communicated.

On all these pleas issues were joined, which came on to be tried before my brother Hannen and a special jury, at the sittings at Guildhall. Evidence to the effect above stated was given. It was not disputed that hides to the value insured were in fact shipped on The Socrate on behalf of the parties interested, and that they had no hides whatever on board The Socrates; and that The Socrate was totally lost with the hides on board.

My brother Hannen reserved leave to the defendants to enter a verdict for them on all or any of the issues, subject to the finding of the jury on the question which he left to them, which was whether the parties in entering into the contracts both meant to insure the hides by the vessel on which they were actually shipped, whatever her name might be, though they supposed it to be The Scrates, or whether the defendants meant to insure on hides on board The Socrates.

the plaintiffs are entitled to retain their verdict on all the issues on the pleas to the second count, that on the policy for 2,4551.; but that the defendants are entitled to have a verdict entered for them on the first and sixth pleas, as far as those relate to the fourth count, namely, that on the policy for 1211.

Our reasons for this distinction are as follows:-The contract of an underwriter who subscribes a policy on goods by ship or ships to be declared is, that he will insure any goods of the description specified, which may be shipped on any vessel answering the description, if any there be, in the policy, on the voyages specified in the policy, to which the assured elects to apply the policy. The object of the declaration is to earmark and identify the particular adventure to which the assured elects to apply the policy.

The assent of the assurer is not required to this, for he has no option to reject any vessel which the assured may select; nor is it necessary that the declaration should do more than identify the adventure, and so prevent the possible dishonesty of a party insured, who might intend to apply the policy to particular goods, so that they should be at the risk of the assurers, and he could come on them if there was a loss; and then, when those goods had arrived safely, to pretend that he intended. to apply the policy to another set of goods still subject to risks. See Harmon v. Kingston (5); Robinson v. Touray (6).

It seems plain, therefore, that the declaration of The Socrates on the ship or ships' policies was, under the circumstances, amply sufficient to shew that the assured had elected to attach those policies to the goods actually shipped on board The Socrate, and consequently that the defendants were well advised when they withdrew their defence to the first and third counts. But on the 24th of January, when the policy for 1217. was agreed upon, the defendants were under no obligation to subscribe any policy for that 1217. They had an absolute right to decline to enter into a contract, except on their own terms, as to premium, or indeed

(5) 3 Campb. 152. (6) Ibid. 160.

into any contract at all, unless they liked. And though we see no reason to doubt that the jury were quite right in finding that both parties were intending to insure the goods by the ship on which they were actually shipped, yet, when we find it not disputed that the one party expressly asked the question whether the ship was the Norwegian ship Socrates, and was told by the other party that he thought it was, we cannot think that there was any evidence on which the jury could properly find that the defendants entered into a contract to insure by any other ship than The Socrates. The most that could be legitimately found was that there was no contract, the parties not being ad idem. And we think also that if the representation was made, however honestly and innocently, that the ship was a new ship, when in fact she was an old one, the policy was vitiated thereby; for the age of the vessel must be material in considering the premium. It was argued that a representation, if only as to an expectation or belief, is substantially complied with if the assured really had honestly entertained that expectation on sufficient grounds, and that the representation that "he thought" the ship was the Norwegian ship was literally true. We think this expression tantamount to an assertion that she was the Norwegian; but even were it otherwise, the letter of advice would, but for the carelessness of those who read it, have made them aware that the ship was that of which the captain was Jeaucard; and therefore the plaintiff's had not reasonable grounds for believing that she was the Norwegian ship.

But though we come to this conclusion as to the smaller policy of insurance for 1217, we think the case is quite different as to the other policy for 2,4551. Mr. Milward argued that there could be no difference; for the plaintiff's were the persons who made both contracts, and made them both with the defendants; and therefore he argued that all that passed on the 24th of January between Lambert, representing the plaintiffs, and Drummond, representing the defendants, must be considered as present to the minds of the plaintiffs in person, and Lark, representing the defendants, on the 4th of February, and as if

then virtually repeated. But the transaction on the 24th of January was respecting one contract, in fact made for one principal, and the transaction on the 4th of February was respecting another contract, in fact made for another principal; and the defendants knew that they were almost certainly made for undisclosed principals, and had no reason to believe that the principals on the two contracts were the same. We think, therefore, that even if the defendants had in fact, on the 4th of February, recollected all that took place on the 24th of January, they would not have been justified in coming to the conclusion, without further enquiry, that the real parties were the same, and meant to make a similar contract. The identity of the name of the ship, and of the voyage described, would, no doubt, raise a reasonable suspicion that both parties meant to describe the same ship, but that was all. And, in fact, there can be no doubt that the plaintiff and Lark, if they ever knew what took place between Lambert and Drummond, did not on the 4th of February think of it. We think, therefore, that it is clear that the transaction of the 4th of February must be looked at as if that of the 24th of January had happened subsequently, or had never happened at all.

And in looking at it in this way, the fact that a slip for a policy for 5,000l. on hides by a ship or ships to be declared, had been prepared and was in existence, is of great importance. The slip is in practice, and according to the understanding of those engaged in marine insurance, the complete and final contract between the parties fixing the terms of the insurance and the premium; and neither party can, without the assent of the other, deviate from the terms thus agreed on without a breach of faith, for which he would suffer severely in his credit and future business.

The legislature, for the purpose of protecting the revenue, had by the very strongest enactments provided that no such instrument should be given in evi. dence for any purpose; but all those enactments are repealed by the 30 Vict. c. 23, and the law is now governed by the 7th and 9th sections of that Act.

By section 7, no contract or agreement