The above documents, with the bills of exchange for 4000l., arrived in England, and the bills were accepted by the drawees. Afterwards, and on or about the 27th November, 1857, Mr. William Wanklyn, a brother of one of the members of the firm of Jacobs & Co., and who carried on business at Manchester and Bury, received information from Carr, Josling & Co. that they had suspended payment, and that Jacobs & Co. were interested in their stoppage.

At the trial Mr. Wanklyn was called as a witness, and stated as follows:

66

carry on business at Manchester and Bury. I had a brother in business at Monte Video and Buenos Ayres. The name of the house was Jacobs & Co. On the 27th November, 1857, I received an intimation from Carr, Josling & Co. that they had suspended payment. I was informed by them that Jacobs & Co. were interested in their stoppage. I went up to London immediately. I ascertained that the value of the ship and cargo was 3000l. to 4000l. more than the amount of their bills. I learned from Carr, Josling & Co. that they had accepted the bills, but could not meet them. Great loss would have been caused if the bills had been returned. Carr, Josling & Co. handed to me the letter of the 1st October, 1857, from Jacobs & Co. of Buenos [*416 Ayres, to Carr, Josling & Co. They told me they had not effected any insurance. They gave me the letter and also the certificate of the seaworthiness above set out, and showed me the bills of lading. They did not give me the bills of lading then. I brought away with me the letter and certificate of the seaworthiness. I observed that the bill of lading was 800 tons of guano from Patagonia. There is no guano at Monte Video. They did not then give me the bills of lading. I afterwards gave an undertaking to pay the bill, and they gave me the bills of lading. I went with the letter and the certificate to effect an insurance. I went to Mr. Poole, the insurance broker. I told him the whole circumstances. He was a member of the committee and one of the oldest members of Lloyd's. I considered that the insurance ought to be 5000l. to cover all. Mr. Poole took me to the Royal Exchange office. Mr. Warre is manager for the Royal Exchange. Mr. Poole said, 'Here is Mr. Wanklyn, he wishes you to do an insurance. His brother has advanced 40007. upon a vessel and cargo, and has drawn upon his agents, Carr, Josling & Co., for the amount. They have stopped payment, and Mr. Wanklyn is anxious to protect his brother, and he will take up the bills for Jacobs & Co. (his brother's) house if he can get the vessel and cargo insured so as to cover him.' Mr. Warre said, What is she?' Mr. Poole said, 'She is an American vessel, and was The J. N. Cooper, but has been sold to some Spaniards in Monte Video, after being repaired there, and they changed her name. She is now called The Dos Hermanos. It was said she was sold in consequence of want of repairs and disputes. Mr. Warre said, 'We have had her offered to us. [*417 We did not like her.' I said, 'We have a certificate of seaworthiness of the vessel and this letter.' I had the letter in my hand at the time. I handed them to Mr. Warre. I said the orders were to insure for a much larger amount, but my intention was to insure to protect the bills, I mentioned I wanted 5000l. Mr. Warre certainly looked at the documents. I believe he read them. He had them in his hands and handed them back to me. Mr. Warre asked, 'Was the vessel loaded

at Monte Video?' Mr. Poole said, 'Of course, she brought the cargo from Patagonia; there is no guano at Monte Video.' I said I can't tell, but she had been repaired there, and I should say some portion had been taken out, but I know nothing for certainty. All I know is, my brother has advanced 4000l. upon the ship and cargo; that she left Monte Video about the end of October, and ought to be more than halfway here. I have been at Monte Video, and spoke from experience. After a pause Mr. Warre said, 'We will do half the amount at ten guineas.' I said it was an enormous premium. Mr. Poole said, 'I do not think you will get it at less.' I said, 'very well,' and Mr. Warre took the risk. I and Mr. Poole went direct to the Alliance from the one office to the other. We saw Mr. Gabb, the manager. Mr. Poole introduced me as one of the firm of Bradshaw, Wanklyn & Co., of Manchester. I made the same statement substantially to him. I gave Mr. Gabb the letter. He passed it to a gentleman who sat beside him. The gentleman to whom the letter was handed came and whispered something to Mr. Gabb. Mr. Gabb said, 'Upon whose account is the insurance to be effected?' I said I suppose on account of Jacobs & Co.;

*418] they hold the ship and cargo to secure themselves. Mr. Gabb said, 'Then it had better be put upon the face of the policy.' My impression is that Mr. Poole passed them a slip of paper, saying that the Exchange had done one-half; he wished them to do the other, and then Mr. Wanklyn would be satisfied he had done all he could for his brother. We paid the Alliance the same premium, ten guineas. I got both policies and paid the bills. They are here in Court. The ship. I heard, was abandoned at Maranham, and was sold and broken up. I sent the papers immediately to the offices."

Cross-examined. "I had no other information but the certificate and letter. The letter had just arrived to Carr & Josling. I am quite positive I only saw this one letter then. I saw this letter also (being the letter of the 1st October, 1857, from Da Costa to Jacobs & Co.) I had not been informed that the ship had met severe weather in coming to Monte Video. All I knew was what is in the letter and the certificate. I have a perfect recollection of all the circumstances."

Mr. John Poole was also called and stated. "I have been at Lloyd's fifty years. I have heard the evidence of the last witness. The account he has given is correct as relates to my knowledge. I am certain that both certificate and letter were shown at both offices." [It was agreed at the trial, and was to be taken that what occurred at the offices was as stated by Mr. Wanklyn.]

A facsimile of the policy, as drawn up by The Alliance Marine Insurance Company, was annexed to and formed part of the case.

The vessel with the cargo left Monte Video for England on the 21st October, 1857, and in the course of her voyage she encountered very

heavy weather, and both ship and cargo suffered sea-damage,

*419] which necessitated her putting into the port of Maranham, and eventually the ship was condemned and sold by order of the Tribunal of Commerce at Maranham, and such portions of the cargo as were not rendered useless by sea-damage were also sold.

At the trial it was admitted that the sea damage to the ship and cargo which necessitated the putting into Maranham caused an average

loss of both ship and cargo, but not a total loss of either; and it was agreed that the amount should be referred.

The defendants admitted that the ship was seaworthy when she sailed from Monte Video, and that she sailed from Monte Video intending to proceed to England, and they further admitted the interest as averred.

It was agreed that the Court should draw all inferences, and have all such powers as a Judge at nisi prius as to amendment or otherwise.

The Court or either party was to have power to refer to the pleadings and the several depositions and exhibits thereto, and the demurrer on the record was to be argued along with the case.

The pleas in the action were delivered on the 19th July, 1861, and the plaintiffs applied at Chambers on the 20th March, 1863, and also at the trial, to add an equitable replication to the fourth plea, to the effect "that at the time of effecting the insurance it was stated to the defendant that the goods insured had been originally loaded at Patagonia and brought thence to Monte Video in the same vessel on board of which they were subsequently despatched from Monte Video, and that the insurance was to be on such goods; and that it was agreed between the plaintiffs and the *defendant that the policy was to apply to such [*420 goods and no others, and that the claim in the action is made in respect of the said goods. That part of the said goods were unloaded and again loaded on board the said ship at Monte Video, and that it was contrary to the intention of both plaintiffs and defendant that the policy should be held to apply only to goods originally laden on board the vessel at a port in the river Plate, and not to apply to goods originally laden at Patagonia, and brought thence to Monte Video. The plaintiff's application was refused both at Chambers and at the trial.

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, and which of them, or any part thereof.

If the Court should be of opinion in favour of the plaintiffs, the verdict was to stand for them for the amount of the average loss to be settled as already agreed:

If the Court should be of opinion that the plaintiffs were entitled to recover only in respect of the ship or only in respect of the cargo, then the verdict should be entered for the plaintiffs, in such manner as the Court thought proper, the average loss in either case to be settled as already agreed.

If the Court should be of opinion that the plaintiffs were not entitled to recover either in respect of the ship or of the cargo, then a nonsuit was to be entered.

The case was argued in the Court below, in Michaelmas Term, 1863, November 17.

Edward James (Milward and W. Potter with him), for the plaintiffs.-First. The proposition that a policy in the *present form will not cover goods put on board before the time specified for [*421 the commencement of the adventure does not hold universally. It is a strict rule, and one at which the Courts arrived with reluctance: Rickman v. Carstairs, 5 B. & Ad. 651 (E. C. L. R. vol. 27); Robertson v. French, 4 East 130. Nonnen v. Kettlewell, 16 Id. 176, is in point. There an insurance was effected from Landscrona to Wolgast, and although it appeared that the goods had been loaded on board the ship

at Gottenburgh before she arrived at Landscrona, the plaintiff was held entitled to recover. That case is supported by Bell v. Hobson, 16 East 240, 3 Camp. 272, and Gladstone v. Clay, 1 M. & S. 418. Here was, in point of fact, a reloading at Monte Video, and an entirely new adventure within the terms of the policy commencing from that place. The objection can at most apply only to the insurance on the goods, not to the insurance on the ship.

Secondly. There was no concealment of material facts.

Brett (Cohen with him), contrà, on the first point argued to the same effect as afterwards in the Court of Exchequer Chamber. [He cited Spitta v. Woodman, 2 Taunt. 416; The William, 5 Ch. Rob. 385; and Murray v. The Columbian Insurance Company, 11 Johns. 302.]

On the second point he cited 2 Duer on Insurance 391.

Edward James, in reply, cited on the second point, Boyd v. Dubois, 3 Camp. 133, and Russell v. Thornton, 4 H. & N. 788.

*422] COCKBURN, C. J.-There are two questions on which *the Court must give judgment. First. Whether the risk attached on the cargo as loaded at Monte Video, the cargo in fact having been loaded at Liones Island in Patagonia; it being contended that, according to the rule laid down in the cases cited, the terms of the policy have not been complied with. Secondly. Whether material facts were not brought to the knowledge of the underwriter at the time of the in

surance.

As to the first, it is true there has not been an actual loading on board this ship at Monte Video, and if the authorities establish the conclusion that an actual loading must take place in the port mentioned in the policy, no doubt the defence of the underwriter would be suffi cient. But I think Nonnen v. Kettlewell, 16 East 176, establishes sufficiently for the present purpose that there may be a constructive loading at a particular place so as to satisfy the language of such a policy as this. In that case, the cargo having been put on board at a port, the vessel came to that from which she was insured, in order to have the amount of duties ascertained, and the cargo was examined with that view. A portion of it was taken out for the purpose, and when the Custom House officers discharged their functions it was put back again; and this was held a sufficient loading of the whole cargo at the second port to satisfy the terms of the policy. According to the authority of that case, therefore, a constructive loading will suffice, and this brings us to the question, has there been a constructive loading here? We find that when this vessel came to Monte Video, having sustained some sea damage, a portion of the cargo was taken out, and afterwards replaced, and that renders the case very similar to Nonnen v. Kettlewell. But I prefer basing my decision on the broader ground,

*423] namely, that here was a change in the ownership and destination of the vessel. When the cargo was loaded on board it was agreed that it might come to any port in England; on the transfer of the cargo to other hands the new voyage of the ship was to be to any port in the United Kingdom. That is an entire change of ownership and a partial change of destination, which made this a new adventure and a new voyage. This cargo must therefore be considered as constructively shipped and loaded at Monte Video.

I do not wish to pronounce any opinion relative to the principle on

which Nonnen v. Kettlewell was decided. It is clear, however, that Lord Ellenborough, both in that case and in Bell v. Hobson, 16 East 240, 3 Camp. 272, thought that the old rule in force before those cases had gone quite far enough; and that where it could be seen there was a substitution of a new state of things, what virtually amounted to a loading of the cargo at the place specified would suffice. If either the view taken by the Court in Nonnen v. Kettlewell, or its application to this case, is erroneous, the Court of Exchequer Chamber can review our decision. That case has been followed by various others; but it has never come under the review of a Court of error, and I think it is desirable that it should be confirmed if it is to be confirmed, and reversed if it is to be reversed. For the purpose of to-day it is enough to say the present case comes within the principle there laid down.

On the second point, I do not think that we are called on to pronounce an opinion on the matter decided in Boyd v. Dubois, 3 Campb. 133. It seems to me a strong *proposition to say that where goods are insured, and when shipped are in such a condition as [*424 to contain in themselves the germ of their own probable destruction, that is a matter which need not be brought to the knowledge of the underwriters. If it were necessary for the decision of this case to carry that dogma to its full extent, I should like time to consider. But it is not necessary, for the facts here enable us to decide the case without it. It does not appear that the cargo generally had been damaged; a small portion to which it was shown some damage was done by sea water had been landed, and perhaps dried before it was put on board again. But suppose there had been partial damage to the cargo, it is doubtful if that fact was brought to the notice of any of the parties. It appears that the vessel and cargo belonged to Da Costa, Brothers, of Monte Video, who would naturally take care of them, and there is nothing here to warrant the inference that they knew of the previous wetting of even this small portion of the cargo. Practically the insurance here was for the benefit of Jacobs & Company, by whom money had been advanced on this cargo, and who would lose if it received any damage, and there is nothing to show that they either had any knowledge of this. The case therefore fails as to there having been anything material to communicate, but still more so, as to whether if there were it was brought to the knowledge of Da Costa & Company, and still more of Jacobs & Company.

WIGHTMAN and MELLOR, JJ., concurring,

Judgment for the plaintiffs, both on the demurrer and on the issues of fact.

*The defendant having brought error on this judgment, the case was now heard before ERLE, C. J., WILLES and KEATING, [*425

JJ., and BRAMWELL, CHANNELL and PIGOTT, BB.

Brett (T. Jones, Northern Circuit, and Cohen with him), for the defendant. According to the express terms of this policy the adventure was to begin from the loading of the ship "from port or ports in the river Plate." It appears, however, that the ship, under another name, was originally loaded in Patagonia, that she arrived at Monte Video in the river Plate in a damaged condition, when a portion of her cargo was removed to enable the owners to repair the damage, and was then.