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the sum of 20,0001., and upwards. The total value of the goods in the barge Lord Cardigan at the time of the loss was 29061.

The plaintiffs contend that upon the true construction of the policy they are entitled to be indemnified for the loss actually sustained, viz., 11001., and to recover from the defendant 551. as his proportion of such loss.

The defendant contends that under the policy the plaintiffs are only entitled to recover from the defendant such a proportion of their loss as the sum for which the defendant subscribed the policy, viz., 1001., bears to the total value of all the goods on board all the plaintiffs' craft which were between the limits mentioned in and which were covered by the policy at the time of the loss; and they have paid into court the sum of 6l., which is admitted to be sufficient to satisfy the plaintiffs’ claim, assuming this contention to be correct.

The defendant further contends, that, in any view, the plaintiffs are not entitled to more than such proportion of the loss, as 1001., the sum insured, bears to the total value in the barge, viz., 29061.

The Court was to be at liberty to draw all inferences of fact which a jury ought to have drawn.

The question for the opinion of the court was, which of the principles above referred to is the proper principle upon which the amount to be recovered by the plaintiffs ought to be settled.

Quain, Q. C. (A. L. Smith with him), for the plaintiffs. The question is,'what is the nature of the risk intended to be covered by the policy? This is not an ordinary marine risk, but the policy is intended to cover all losses and damages for which the plaintiffs may be liable to the owners of the goods delivered, to them to be carried, and which are being carried by the plaintiffs within the limits of the policy. The subject-matter of the policy is the *liability of the plaintiffs, as carriers, to the [81 owners of goods entrusted to them: for the words which govern the whole clause are “for which losses, damages and accidents, Messrs. Joyce may be liable or responsible to the owners thereof, or others interested.” It is clear, therefore, that the parties intended that the policy should indemnify the plaintiffs to the extent of 20001. for any loss which they might sustain as carriers in their trade, and for which they would be liable

1871

Joyce v.

Kennard. over to the owners of the goods. Crowley v. Cohen (1) will be relied upon on the other side, and it will be said on the authority of that case that the defendant is only liable to such a proportion of the loss as 1001., the sum for which the defendant has subscribed the policy bears to 20,0001., the total value of goods then being carried by the plaintiffs; but that case has no application; the policy there covered an ordinary canal navigation risk, and was construed to be a policy attaching upon the goods upon all the boats at a given time. Here, by express words, the insurance is upon all losses for which the plaintiffs are liable: the plaintiffs are therefore entitled on this policy to recover 11001., and the policy remains in force to cover 9001. more if there should happen to be a further loss. In Wilson v. Jones (*), the risk was upon the adventure — the laying down safely of an electric cable; here it is upon the liability of the carriers to make good the loss of goods to the owners.

Sir G. Honyman, Q. C. (Watkin Williams with him), for the defendant. The question is, what construction is to be put on the words of this policy? There is a distinction between a contract of marine insurance and fire insurance. In a fire insurance if goods valued at 20,0001. be insured for 10001., and a loss to the extent of 1000l. occurs, the insurer is liable for that amount; but with regard to a marine insurance, if goods to the value of 20,0001. are insured for 10001., and a loss occurs, it is necessary to ascertain what proportion the goods loss bear to the whole value, for the owner of the goods is his own insurer for 19,000l. In this case, therefore, the true measure of liability is the proportion which 1001. bears to the value of all the goods afloat at the time of the loss, and that is stated in the case to be 20,0001. Then it is said, that principle does not apply 82] because the words of the policy are *“ to cover all losses for which they may be responsible to the owners;” these words do not alter the extent of the liability of the underwriters, they are intended to describe the subject-matter of the insurance, and do not contravene the well-known principle that an underwriter undertakes to underwrite to the amount of the loss only in such a proportion as his subscription bears either to the value of the policy, if a valued policy, or to the total value of the risk, if an open policy. The insertion of 20001. in the (1) 3 B. & Ad., 478.

() Law Rep. 2 Ex., 139.

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margin of the policy does not make it a valued policy; it is done merely for the purpose of fixing the stamp. There is nothing to distinguish this case from Crowley v. Cohen ('). In both cases the policy was effected by a lighterman to cover the risk which he ran, and the Court say that the ordinary principle of calculating the loss upon a marine insurance is to be applied in calculating the loss on the policy in that case. Applying the principle laid down in Wilson v. Jones (?), the clause in question is inserted not for the purpose of settling the extent of the underwriter's liability, but to show what is the subject-matter of the insurance, and that it is the goods in which the plaintiffs are interested as carriers.

Quain, Q. C., was heard in reply.

MELLOR, J. I am of opinion that our judgment should be for the plaintiffs. This is not strictly a marine insurance; it is a contract by which the defendant indemnifies the plaintiffs against any liability which they may incur as carriers to the owners of the goods entrusted to them, and we must construe the words which have been used according to their ordinary meaning, and their meaning is that for which the plaintiffs contend.

LUSH, J. I am of the same opinion. This is an exceptional policy, and we have only to construe the language used; and when I look at the position of the plaintiffs and find that they are carriers upon the river, I cannot doubt the intention of the parties. The object of the plaintiffs was to secure an indemnity against any loss in whole or in part which they might sustain as carriers, and it is not a mere policy on goods. A case may be supposed in which the goods have perished and yet the underwriters might not be liable *on this policy. The [83 subject-matter insured against is the liability which the plaintiffs would sustain in respect of the goods by reason of their accepting them as carriers. I cannot interpret the words of the policy in any other sense than as importing that the underwriters undertook to be responsible to the extent of their subscriptions for all the losses, which the plaintiffs might sustain in respect of those goods, and for which they would be liable (1) 3 B. & Ad., 478.

) Law Rep. Ex., 239.

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to the owners. The language has that meaning, and I do not entertain a doubt that that is what the parties intended. 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, 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.

Attorneys for plaintiffs : Plews f Irvine.
Attorneys for defendant: Parker j Clarke.

Dec. 11, 1871. 116] *HANNAFORD and others v. HANNAFORD and another.

Law Reports, 7 Queen's Bench, 116.

Devise Construction of Will Cross Remainders. A testator devised an estate, of which he died seised in fee, to his brother, W. H., for life, and after the decease of W. H., to the four sons of W. H., his nephews, for life as tenants in common; and after their decease he devised the share or shares of his said nephews respectively to their respective eldest sons, then living for life; and after the decease of such eldest sons to the first and other sons of the latter successively in tail male. In default of issue of the eldest sons, he devised the same share or shares to the second, third, and other sons, then living, of his said nephews severally and successively, according to their respective seniorities, and to their issue in tail male in the same manner and for the same estate and estates as he had before given to the eldest sons of such nephews. Failing the issue of the sons then living, he devised to all and every the sons of his nephews hereafter to be born in tail male. After which the will proceeded thus: “And for default of such issue, I give and devise the same to my own right heirs for ever, it being my will and intention that the said lands shall go and remain in my name and family for ever, or so long as the law will permit such enjoyment of the same”:

Held, that the clause in favor of the heirs general did not take effect so long as any issue of any of the devisees capable of taking as tenants in tail survived, and that cross remainders were to be implied in favor of surviving tenants in

common.

CASE stated after writ.

The action was brought to recover land situate at Abbott's Kerswell, in the county of Devon, whereof John Hanna

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ford was at the time of his decease seised in fee. The facts of the case, and the material parts of the will of John Hannaford, are fully stated in the judgment of the Court.

Nov. 14. Philbrick, for the plaintiffs.
J. Brown, Q. C. (Atkinson with him), for the defendants.

The following authorities were cited: Cook v. Gerrard (); Notes to Saunders' Reports, vol. i, p. 176; Livesey v. Harding (%); Cooper v. Jones (3); Powell v. Howells (1); Jarman on Devises, vol. ii, pp. 510–526.

Cur. adv. vult.

*Dec. 11. The judgment of the Court (Cockburn, C.J., [117 Mellor, Lush, and Hannen, JJ.), was delivered by

COCKBURN, C.J. The question in this case arises on the construction of the will of John Hannaford, who died on the 11th of February, 1833.

By his will, dated the 20th of February, 1830, the testator devised an estate, of which he afterwards died seised in fee, to his brother, William Hannaford, for life, and after the decease of the latter, to the four sons of the said W. Hannaford, his nephews, for life, as tenants in common; and after their decease he devised the share or shares of his said nephews, respectively to their respective eldest sons “now living” for life; and after the decease of such eldest sons he devised the share or shares of each of such eldest sons to the first and other sons of the latter successively in tail male. In default of issue of the eldest sons, he devised the same share or shares to the second, third, and other sons, “now living,” of his said nephews, severally and successively, according to their respective seniorities, and to their issue in tail male, “in the same manner and for the same estate and estates” as he had before given to the eldest sons of such nephews. Failing the issue of the sons then living, he devised to all and every the sons of his said nephews, “hereafter to be born, in tail male.” After which the will proceeds thus:-“ and for default of such issue, I give and devise the same to my own right heirs forever, it being my will and inten(1) 1 Wms. Saund., 185.

(°) 3 B. & A., 425. (%) 1 Rugs. & My., 636.

() Law Rep., 3 Q. B., 654.

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