The defendants have kept the plaintiff insured was not an undertaking to use reasonable diligence in within the meaning of the contract. The slip is prac- insuring, it was an absolute undertaking to insure. tically as binding on the underwriter as the policy No doubt the damages arising from the breach would itself, and a vessel is understood in mercantile language only be nominal, but that fact gives the defendants no It may be otherwise, possibly, in a to be "insured" as soon as the slip is signed. The title to our relief. parties to this contract must be taken to have entered Court of Equity, but we exercise our equitable jurisinto it with reference to such mercantile language and diction only where we see something in the nature of a fraud upon our process, and not upon what is at custom, most a hard case. Arnould on Insurance, 95. Secondly, even if there has been a breach, no damages whatever have arisen, or ever can arise, out of it, and this Court, in the exercise of its equitable jurisdiction over its own process, will relieve the defendants from the effects of a forfeiture. COCKBURN, C.J.-The rule must be discharged. The plaintiff, being a creditor of the company, brought an action to recover money due to him for work and labour and other matters; and an agreement was come to by him and the company that he should have judgment and execution on certain terms which have not been complied with. One of those terms was that the insurance was to be kept up for the amount of his interest. The question is, whether the insurance has been so kept up or no. Now it is admitted that several days elapsed during which there was no policy upon which the plaintiff could have enforced his claim against the underwriters. It is true that slips were signed, and that these slips, though merely honorary engagements, are yet such as no underwriter would fail WIGHTMAN, J.-I am of the same opinion. The defendants have not performed their agreement, which was absolutely to keep the vessel insured for 5,350l. It is contended, on the part of the defendants, that the contract meant merely that they should take such steps as, in the ordinary course of mercantile usage, would result in an insurance; but I do not see anything to show me that that is the meaning of the contract. Nor do I see any hardship on the defendants, for it was incumbent on them to take the necessary steps to secure the policies in time. As to Mr. Lush's second point, if the plaintiff had in any way consented to the delay, or dispensed with the regular stamped policies, it might be maintainable, but we find nothing of the sort here. MELLOR, J.-I am of the same opinion. This is not the case of a mercantile instrument, but of an agreement drawn by two attorneys; and I see no evidence that it was made with reference to any particular mercantile usage. Rule discharged. CARR v. MONTEFIORE, Marine Policy-Insurance "at and from a A cargo of guano was loaded at a port in Patagonia, and dispatched thence, destined for England. On the voyage the ship became sea-damaged, and put in to Monte Video, and a portion of the cargo was there unloaded, for the purpose of effecting the necessary repairs, on the completion of which it was immediately reloaded. The ship and cargo were then sold by public auction, and were dispatched by the purchaser to Cork or Falmouth to call for orders for any port in the United Kingdom, and a policy of insurance was effected upon them, "at and from a port or ports in the river Plate to the United Kingdom." The ship having been totally lost on this voyage, it was Held, in an action on the policy, that the cargo had been constructively loaded at Monte Video, so as to comply with the terms of the policy. This was an action upon a policy of insurance, dated 4th December, 1857, effected by the plaintiffs with the defendant's company, on the ship "Dos Hermanos " and her cargo of guano, "at and from a port or ports in the river Plate to the United Kingdom." The declaration, after setting out the policy, went on to aver that the "Dos Hermanos" left Monte Video on her voyage, and that the vessel and the goods became and were wholly lost; that all conditions precedent had been fulfilled, but that the defendant had not paid the amount insured. The defendant, amongst other pleas, pleaded 4thly, that the goods were not shipped on board at any port or ports on the river Plate. The plaintiff demurred, and joined issue upon the defendant's fourth plea. At the trial before Martin B. at the Liverpool Spring Assizes, 1863, a verdict was found for the plaintiff, leave being reserved to the defendant to move upon any point he might think proper. Accordingly, in BLACKBURN, J.-I am of the same opinion. This Easter Term last, a rule nisi was obtained to enter a nonsuit. But subsequently, by consent of the parties, the facts, and the questions raised at the trial, were embodied in a special case, which now came on to be argued with the demurrer. The only facts set forth in the special case which are material to the judgment of the Court are as follows: In August, 1857, the ship insured, then called the James N. Cooper, an American vessel, arrived seadamaged in the port of Monte Video, having on board a cargo of about 800 tons of guano which had been shipped at Liones Island in Patagonia, destined for England. In September, 1857, the vessel having been repaired, was put up to auction at Monte Video with her cargo, and was there purchased by the firm of Da Costa, Brothers, of Monte Video, who renamed the ship the "Dos Hermanos," and substituted the Oriental for the American flag. While the vessel was at Monte Video the cargo in the fore-peak down to the kelson was taken out of her for the purpose of repairs, but the rest of the cargo was not moved, although it was inspected and found to be in a sound condition. After the repairs were completed, the portion of the cargo which had been discharged was reloaded on board. After wards Da Costa, Brothers, sent the vessel with her said cargo to Cork or Falmouth, to call for orders | for any port in the United Kingdom. Upon this voyage the ship and cargo were wholly lost, and it was in respect of such loss that the action was brought. The question for the opinion of the Court was, whether the plaintiffs were entitled to recover under the policy in respect of both ship and cargo, or either or which of them, or in respect of any part thereof. Edward James, Q. C. (Milward and Potter with him), for the plaintiff. This guano was constructively shipped on board at Monte Video. It is true that where a policy is expressed to be upon a ship and goods "at and from" a particular place to another place, it will not protect a cargo shipped before the vessel arrived at the first-named place, Rickman v. Carstairs, 6 B. & Ad. 651. | Which latter case is also referred to at length in the notes to Nonnen v. Kettlewell. He also cited, The William, 5 Chr. Rob. 385; Murray v. Columbia Insurance Company, 11 John. COCKBURN, C.J.-The defence set up in this case, on which it is necessary to pronounce our decision, is, that whereas, by the terms of the policy, the risk was to attach on a cargo loaded at Monte Video, the cargo had been, in fact, loaded at Liones Island, in Patagonia; and that, therefore, according to the ruling laid down in the cases cited, the terms of the policy were not complied with, and the underwriters were not liable. It is, no doubt, true that there was not an actual loading of this cargo on the ship at Monte Video; and if the authorities established the proposi tion, that an actual loading of the cargo must take place at the port mentioned in the policy, the defence set up by the underwriters would be sufficient. the case of Nonnen v. Kettlewell establishes that there may be a constructive loading sufficient to satisfy such a term as is contained in this policy. In that case the cargo having been loaded in one port, the vessel comes to another for the purpose of having the amount of duty payable ascertained by the Custom House officers, and with that view a portion of the cargo was taken out, and then afterwards put in again, and that was held by this Court to amount to a sufficient loading of the whole cargo to satisfy the policy. Therefore it seems, according to that case, that a constructive loading will suffice, and But the question is, whether here there has been such a constructive loading. We find in this case, that the 1 vessel having sustained some sea damage, on the voyage to Monte Video, a portion of the cargo was there taken out, and after the vessel had been repaired, that portion was reloaded. That makes the case certainly very similar to Nonnen v. Kettlewell. But I prefer putting it on the broader ground; that in this case there was But where the goods were already on board the vessel at the place “at and from" which they were to be pro-and guano, and a change too in the destination of a complete change in the ownership of the vessel tected by the policy, and had there been in part unloaded and again loaded on board, it was held by the Court that the insured might recover upon a loss of the cargo, Nonnen v. Kettlewell, 16 East, 176; Bell v. Hobson, 3 Camp. 272; 16 East, 240. Here, therefore, there was an actual loading at the Plate, for, part having been unloaded and reloaded, there is an actual loading of a part, and a constructive loading of the whole. Brett, QC. (T. Jones and Cohen with him), for the defendants, contended that this case did not come within the rule in Nonnen v. Kettlewell; but rather within that laid down in Rickman v. Carstairs, 6 B. & Ad. 651; and VOL. III. the cargo. it was intended that it should come to any port in When the guano was loaded at Patagonia, England, but its destination when the change took place, was any port in the United Kingdom. And I think this entire change in the ownership, and partial change in the destination, makes it an entirely new voyage, and that this cargo must be considered as constructively loaded at Monte Video, and not at the place from which it originally came. I do not wish to be understood as pronouncing any opinion on the cases to which Nonnen v. Kettlewell may be considered as an exception, but it is clear from the language of Lord Ellenborough, that he thought the principle of those cases had been carried far enough, and that where it could be seen that, substantially, there had been such a change of circumstances as E would amount to a loading of the cargo at the place | 1862, the respondents appeared in answer to an informentioned in the policy, that would suffice. I think mation laid by Felkin, clerk to the Local Board of therefore, on these grounds, our judgment should be for | Health for the district of Sheerness, that the responthe plaintiff. dents, being owners of certain land within the said district, did on the 12th of March last offend against a certain bye-law, duly made pursuant to the 34th sect. of the Local Government Act, 1858 (21 & 22 Vict. c. 98), and still in force, in that they laid out a certain street, and did not give one month's notice to the Local Board, nor send in plans as there prescribed. WIGHTMAN, and MELLOR, JJ., concurred. C. P. Judgment for plaintiff } Ex parte SAUNDERS, 3 & 4 Will. 4, c. 74, s. 91-Execution of Deed by Husband-Dispensing with Lunatic Hus band's Concurrence. Where property which had been settled on a married woman at her marriage, and which it had afterwards become necessary to transfer to new trustees, was purely separate estate, the Court, under 3 & 4 Will. 4, c. 74, s. 91, granted an order to dispense with the lunatic husband's concurrence in the execution of the deed, although the husband's incapacity was deposed to by only one medical man after one interview with the lunatic. In this case J. O. Griffitts applied for an order to dispense with the execution of a deed by a lunatic, the husband of the applicant. Certain property had been settled on the wife to her separate use on her marriage, and it had become advisable, from circumstances, to transfer it to new trustees; to effect this, the signature of the husband was necessary, but by 3 & 4 Will. 4, c. 74, s. 91, the Court of Common Pleas was empowered, in the case of a lunatic husband incapable of executing a deed, and in some other cases, to dispense with that signature. THE COURT at first hesitated to make the order, finding that there was the affidavit of only one medical man, as to the lunacy and incapacity to execute the deed, and that the lunatic had been only once seen by the medical man; but, understanding that the property in question was purely separate estate, granted the application. By section 72 of the Public Health Act, 1848 (11 & 12 The Vict. c. 63), certain notices were prescribed. Local Government Act, 1858, took effect in the district of Sheerness from the 1st of September, 1858, and by section 34 it is enacted (inter alia), that the Local Board may make bye-laws respecting several matters. The bye-laws of the Sheerness Local Board were made on the 25th of October, 1860. The bye-law 28 was, that "Every person who shall intend to make or lay out any new streets, whether the same shall be intended to be used as a public way or not, shall give one month's notice to the Local Board in writing, delivered to the local surveyor, or left at his office, and shall at the same time leave a plan," &c. Section 9 of the Local Government Act, 1858, and things respectively begun or made under any enacted that "All proceedings, contracts, matters, section of the Public Health Act, 1848,' repealed by this Act, may respectively be proceeded with and enforced as if no such repeal had taken place." It was admitted by the appellant that the respondent had given notices to the Local Board, and deposited plans of a new street intended to be laid out by them pursuant to the 72nd section of the Publie Health Act, 1848, before the Act of 1858 came into operation. Whereupon the respondents' attorney contended that they came under the 9th section of the last Act, and that whatever they had done was "a proceeding, contract, matter, and thing," begun under the Public Health Act, 1848. The magistrates thereupon dismissed the summons. It was stated in the argument, though not in the case, that the notices, &c., had been sent in as long as Order accordingly. seven years ago. ERLE, C.J.-On the statement of facts here it is not FELKIN 2. BERRIDGE and Others. shown that the magistrates were wrong, therefore these decisions cannot be reversed; but should any more streets be laid out in this manner, the parties may come here again. Public Health-Local Government. Where notice has been given of an intention to lay out new streets, under the Public Health Act, 1848 (11 & 12 Vict. c. 63), it is not necessary to give fresh notices prescribed by bye-laws framed in accordance with the Local Government Act, 1858 (21 & 22 Vict. c. 98). This was a case stated by justices for the opinion of the Court, under the 20 & 21 Vict. c. 43, s. 2, under the following circumstances : If A enters into a bond with B that C shall duly account for all moneys that he shall receive for B, and At the sessions held at Sittingbourne, June 2nd, | afterwards C, with B's knowledge, enter into partner ship with D, the guarantee does not extend to moneys re- attorney, appointing G. H. Fox and J. S. Lloyd merceived by the firm. This was an action brought by the plaintiff (who, by a private Act of Parliament, was empowered to sue), as chairman of the Alliance British and Foreign Life and Fire Assurance Company against the defendant as surety for one of the company's agents. The action was, by Judge's order, turned into a special case without pleadings, and the case contained the following particulars : In the year 1854, G. H. Fox, who then acted as agent for the plaintiffs at Adelaide in Australia, wrote a letter, dated November 27, 1854, in which he asked that J. S. Lloyd's name should be associated with his in a power of attorney for the conduct of the agency, as he intended taking that gentleman into partnership; he stated that he himself intended visiting England, and did not wish the agency to be neglected during his absence. He in this letter suggested one J. S. as a surety for the aforesaid J. S. Lloyd. On March 1st, 1855, one Engelbach, on behalf of the company, wrote to G. H. Fox to say that J. S. Lloyd would be associated with him in the conduct of the Adelaide agency, and that a new power of attorney would be prepared and sent out; that it would be necessary for J. S. Lloyd to enter into a bond for 5007, to which T. Lloyd and Isaac Lloyd (the defendant) would be sureties. It appeared that the J. S. mentioned by G. H. Fox had declined to be Surety, but on February 7th had written to the defendant, who was the father of J. S. Lloyd, saying that his only reason for refusing to act as surety was that he was prevented from doing so by his own articles of partnership, but, that as the bond was only insuring J. S. Lloyd's integrity, it was a nominal thing. On March 14, 1855, the defendant duly executed the bond on which this action was brought the condition was that J. S. Lloyd should duly account for, pay over, &c., all moneys which he should realise as, or by way of premiums for assurances effected with the said company, &c. On the 3rd of April, one J. W. Collins, on behalf of the company, wrote to G. H. Fox, saying, "I now beg to forward a power of attorney constituting J. S. Lloyd, Esq., an agent of the company. I also enclose a bond for his signature, which, as he will perceive, has already been executed by the sureties, to be returned." The power of attorney, duly appointed J. B. W. (who had previously been appointed, but had long ceased to act), G. H. Fox, and J. S. Lloyd, jointly, and each or either of them separately, the true attorney and attorneys, &c. This power of chants trading under the firm of G. H. Fox & Co., jointly, and each and either of them separately, agents of the company. In February, 1859, the firm failed, and, at the time of failure, owed the company 4507. 11s. for premiums received. The company proved, and received a dividend at the rate of 5s. 3d. in the pound, amounting to 1187. 58. 5d. They then sued the defendant for the balance 3327. 5s. 7d., the question for the opinion of the Court being, whether, under all the circumstances of the case, the defendant was liable. Lush, Q.C. (Cohen, with him), appeared for the plaintiff, and, M. Smith, Q.C. (Cole, with him), for the defendants. It was contended, on the one hand, that on the authority of all the cases, a surety was not liable if the person for whom he was surety entered into partnership with the knowledge of the obligee. On the other side, it was argued that a partner was only another kind of agent, and that if the principal employed an agent to transact business for him, the surety was liable for any default notwithstanding. The following cases were cited, Bellairs v. Ebsworth, 3 Camp. 53; London Assurance Company v. Bold, 6 Q. B. 514. ERLE, C.J.-I think our judgment must be for the defendant. If the circumstances of the case showed that the bond could then have no effect, it would he otherwise. The words of the bond are very strong, for the defendant's construction. The defendant says, I undertook to be a surety for Lloyd. The plaintiff's contend, that if Lloyd was in partnership with Fox, the suretyship extended to the firm. The defendant says no, my bond was for moneys which came to Lloyd. After that came the proposal for a partnership. Each might have been in partnership as general merchants, and yet they might have been doing business separately as agents. When Fox was in England, Lloyd would necessarily have received premiums separately, and might then have been liable. The letter which induced the defendant to enter into the bond, said, the only risk is the integrity of your son. I confess I was greatly pressed with the argument of Mr. Lush, that if Lloyd chose to employ an agent to receive money for him, the defendant would still have been liable, and that a partner was only a different kind of agent. My opinion, however changed during the argument. WILLIAMS, J.-I am of the same opinion. I do not think that all the authorities from Bellairs v. Ebsworth attorney was duly executed March 28, 1855. In June, 1855, the said J. S. Lloyd and G. H. Fox downwards would constrain us if this bond and all the entered into partnership as merchants at Adelaide, surrounding circumstances did not point in the same and carried on business there under the name G. H. direction. Are these such as to lead to the conFox & Co., till their failure. clusion that the construction contended for by the October 19, 1855, the company executed a power of plaintiffs was the intention of the parties? If so, there is nothing in the language of the bond to prevent the Court giving effect to that intention. The question still remains, was there sufficient evidence in the surrounding circumstances to show that such was the intention? At first, I thought there was, but now I think there was not. In the letter of the 7th of February, 1855, the defendant was told that he would not be liable if his son behaved with integrity; but he was not told he would be liable for the dishonesty of any other persons. Even supposing the law was, as it has been argued, there are not sufficient facts here to nduce us to put that construction on the transaction. BYLES, J.-I am of the same opinion. I, like my Lord and my brother Williams, at first thought the defendant was liable, but now I think he is not. When the bond was executed, there was no partnership. Look at all the surrounding,-i.c., the co-existent circumstances. What are they? That J. S. Lloyd should be nominated agent, and that on his nomination the defendant engaged to be liable for any default that he should make. I cannot put any other construction on the bond than that. The expression in the letter of the 7th of February,-this bond is nominal, and only depends on your son's integrity,-clearly shows that the defendant was not expected to be liable for any other parties. KEATING, J. —Like the other members of the Court, my mind has fluctuated during the argument, but I have come to the conclusion that our judgment must be for the defendant. I need not repeat what the other Judges have said, but merely say that the effect of the extrinsic evidence on my mind is, that the defendant only contemplated being liable for the default of his own son. Arbitration-Acquiescence by Defendant after time for making Award expired. Plaintiff brought an action against the defendant (sued for a Local Board of Health), and the cause was referred. It appearing, before the commencement of the arbitration, that the time limited for the making of the award had expired, and had not been enlarged under SPECIAL CASE.-This was an action to enforce an award made against a Local Board of Health (represented by their clerk), under the provisions of the Public Health Act, 1848. The only important point in the case was, whether the attendance of the defendants at the reference to arbitration, examining their opponent's witnesses, addressing the arbitrator, and calling witnesses in support of their case, waived a protest against the proceedings, made on the ground that the time for making the award had not been enlarged, pursuant to the provisions of the 124th section of the Public Health Act, 1848, which protest was delivered in writing to the arbitrator before commencing the reference, and was repeated viva voce at the close of the defendants' case. It may be material to observe, that the arbitration was in the nature of a compulsory arbitration. Hayes, Serjt. (Beasley with him), for the plaintiff, cited, Sects. 124 & 125 Public Health Act, 1848; Tyerman v. Smith, 6 E. & B. 719; Palmer v. The Metropolitan Railway Company, 31 L. J. Q. B. 289; Holdsworth v. Wilson, 32 L. J. Q. B. 289. Lush, Q.C. (McMahon with him), for defendants. There is no case that I am aware of in which a party attending under protest has been bound by the proceedings. The time having expired, the arbitrator was functus officio, and had no jurisdiction. The defendants were bound to make the best of it, as the arbitrator resolved to proceed, and they attended for the purpose of protecting their interests in any event. Of course, if the award had been in their favour, they would not have objected to the award; that is a condition implied in every protest. In the cases cited there were not only no written protests, but the Court implied a waiver from the conduct of the parties. He cited, Holt v. Meadowbank, 4 M. & S. 468; Lycett v. Tennant, 4 Bing. N. C. 168; Davies v. Price, 6 L. T. (N. s.) 713; Haigh v. Haigh, 31 L. J. Ch. 420. Another point is, that the 2nd count of the declaration, which asks for a mandamus under the Common Law Procedure Act, 1854, ss. 68 to 72, does not section 124 of the Public Health Act, 1848, the defendants have no funds, or that the rate would not be show the necessity for a mandamus; that the defendant, upon this ground protested to the arbitrator in writing at the outset, and verbally at the close, of the proceedings upon the reference. Nevertheless, defendant appeared throughout the reference, cross-examined the plaintiff's witnesses, addressed the arbitrator, and adduced evidence : Held, in an action to enforce the award, which was in plaintiff's favour, that the defendant had, under these circumstances, precluded himself from insisting against the plaintiff that the arbitrator was functus officio. retrospective. Burland v. The Local Board of Kingston-on-Hull, 1 N. R. 25; 32 L. J. Q. B. 17. Hayes, Serjt., in reply, contended that it was unreasonable to suppose that a man could protest, have all the advantages of a fair hearing, go on for an inde finite time in setting forth his case, and then have the option of abiding by the decision arrived at. The cases cited only show that a tribunal cannot acquire jurisdiction by consent alone. This is rather like a |