Doe dem.

BEAN against HALLEY

1798. notwithstanding the first devise was to L. Hicks for life, and no longer, it was holden that the devisee must take an estatetail, in order to effectuate the general intention of the testator. It is also observable, that in the case of Robinson v. Robinson, the whole intention of the devisor was carried into effect: whereas here, if M. Halley took only an estate for life, and died leaving a second son, such second son could not have taken on the death of his elder brother, unless the father took either an estate-tail or in fee. But I think that M. Halley took an estate-tail, according to the doctrine mentioned in Robinson v. Robinson, 1 Burr. p. 41. "that where the issue cannot take an estate-tail without taking it through the father, the father shall have an estate-tail, otherwise not. The cases of Dodson v. Grew, and The Attorney General v. Sulton, are also very applicable to the present. I doubt whether M. Halley took an estate-tail in the first instance, because that would have enabled him to defeat the limitation to his eldest son ; and therefore I agree with Lord Kenyon, that the way to give ef fect to every part of the will, is to decide that the father took an estate for life, remainder in tail to his eldest son, remainder in tail to the father; so that any children that M. Halley might have had, even by a second ventre, might have taken,

LAWRENCE, J.-It was clearly the devisor's intention that his estate should go to the issue male of M. Halley, as long as there were any; that on failure of such issue it should go to S. Bean and his male issue; and on failure of such issue, that it should go to his own right heirs. But according to the plaintiff's construction of this will, almost the whole of this intention might have been defeated; because, if the eldest son of M. Halley had taken a fee, though but for a moment, and died, all the subsequent remainders would have been defeated, since the estate would then have descended to the right heirs, not of the devisor, but of such eldest son: seeing, therefore, the consequence of such a construction, and seeing what was the general intention of the devisor, which was, that the estate was not to go to S. Beun, or his issue, until all the male issue of M. Halley were extinct, I agree with the Court on the construction put on this will. If M. Halley had taken an estate-tail at first, it would have enabled him to defeat the limitation to his eldest son; but if he took only an estate for life at first, with remainder

to

to his eldest son in tail, remainder to himself in tail, the devisor's general intention will be effectuated better than by any other construction. It is true, that such a construction enabled M. Halley to defeat the limitations to S. Bean and his issue: but it is better that he should have such a power than the power of defeating the prior limitation to his eldest son; or than that the circumstance of the birth of an eldest son should defeat the subsequent limitations: we shall carry the devisor's general intent into effect further by this than by any other mode of construction. The reasoning, in the cases of The Attorney General v. Sutton, and Langley v. Baldwin, goes a great way to decide the present case. In the former, where the limitations only extended to the second son of the first devisee, T. Sutton, it was holden that T. Sutton took an estate tail, in order to effectuate the general intent of the devisor, and to let in all the other sons of T. Sutton: in the latter, the same point was also ruled, where the limitation stopped at the sixth son; notwithstanding the express devise in both cases, "an estate for life" to the first taker. The case of Allanson v. Clitherow, 1 Ves. 26, bears some resemblance to the present: I am aware that it is distinguishable from this case in one respect; it came before the Court of Chancery on a bill praying an execution of the trusts according to the will; it is, however, worth referring to as a case on this subject.

THIS

Judgment for the defendant.

CRAUFURD and Others against HUNTER. HIS was an action on a policy of insurance, brought by the plaintiff's, who were commissioners for the disposal of Dutch ships and effects, detained or brought into the ports of Great Britain, by virtue of an act of the 35 Geo, 3. c. 80. s. 21. (a) against one of the underwriters. The first count of the declaration stated, that his Majesty, by virtue of the mentioned act, on the 18th June 1795, by the advice

1798.

Doɛ dem.
BEAN

against

HALLEY.

above- Parlia of his enabled Privy take into

ment, which

them" to

their pos

Eession and care all Dutch ships and effects detained or brought into the ports of Great Britain, and to manage, sell, and dispose of the same to the best advantage, according to the instructions they should receive from his Majesty and his Privy Council," may insure in their own names such ship. and effects, after seizure abroad, and while they are in transitn to this country. A count, stating the nature of their trust, and averring the interest to be in themselves as commissioners, and another count to the like effect, but without any averment of interest at all, were both holden good upon the demurrer. [1 B. & P. 316. 637. 2 16.240. 2 East. 385. 3 B. & P. 75. 3 Taunt. 513.]

(a) The 21st section of the 35 Geo. 3. c. 80. reciting that several ships and vessels belonging to the subjects or inhabitants of the United Provinces, and also other ships and vessels, having on board goods, wares, merchandize, and ef

fects,

CRAUFURD against HUNTER wath v.

ane

1

1798. Privy Council, appointed the plaintiffs commissioners for the purposes mentioned in the act, and authorized them to take all such ships and cargoes, &c. into their possession and care, and to manage, sell, and dispose of the same to the best advantage, according to such instructions as they should from time to time receive from his Majesty, &c. and in all other respects according to the said act; and also to give such directions respecting the proceeds of the sales, as they were, by the said act, authorized to give; and also granted to them all such powers and authorities, and authorized them to perform all such duties as might be granted, or were required to be done by the commissioners to be appointed in pursuance of the said act; and that before the making of the policies after mentioned, certain ships called the Houghly, &c. with their cargoes, being ships and goods belonging to subjects and inhabitants of the United Provinces, coming from certain parts of Asia and Africa, and bound to certain parts of the United Provinces, were, by his Majesty's orders, seized at sea in their said voyage, by the commander of one of his Majesty's ships, in order, and to the intent, that such ships and goods might be brought into this kingdom; and that the same had been carried into the ports of St. Helena, for the purpose of being brought from thence to some port of this kingdom; that the plaintiffs, being such commissioners afterwards, on the 15th August 1795, caused to be made a certain policy of assurance, purporting thereby, and containing therein, that the plaintiffs, by the name, firm, and description of "The Honourable Commissioners for the Sale of Dutch Property" (the same being their usual style and firm of dealing) as well in their own names as for and in the name or names of all and every other person or persons to whom the same did or might appertain, in part, or in all, did make assurance, &c. (here it set forth the policy, in the usual terms, upon the ships and goods lost or not lost at and from St. Helena to London, and the subscription of it by the defendant). fects, belonging to such subjects, had been, or might be thereafter detained in, or brought into the ports of this kingdom; and that such cargoes, and such ships and vessels, might perish and be greatly injured, if some provision were not made respecting the same, enacts, "That it shall and may be lawful for his Majesty, by and with the advice of his Privy Council, from time to time, to grant a commission or commissions, under the great seal of Great Britain, to three or more persons, authorizing them to cake such ships and cargoes into their possession, and under their care, and to manage, sell, or otherwise dispose of the same to the best advantage, according to such instructions as they shall from time to time receive from his Majesty, with the advice of his Privy Council."

The

1798.

CRAUFURD

against

The declaration then averred, that if the said ships and goods had arrived at London from the said voyage, the plaintiffs, as such commissioners, were and would have been authorized to take them into their possession, and under their care, and to HUNTER, manage, sell, and dispose of the same, according to the form and effect of their commission, and the act of Parliament; and that they were intended to be brought from St. Helena to London for those purposes. It then averred, that the plaintiffs, as such commissioners, at the time of the sailing of the said ships from St. Helena, as after mentioned, and from thence until and at the time of the several losses after mentioned, were interested in the said ships and goods to the amount of the sums insured; and that the said insurance was so made to and for their use, benefit and account, as such commissioners. It then stated the sailing of the ships from St. Helena on the 2d July 1795, on the voyage insured, and their subsequent loss by the perils of the sea, on the 1st, 5th, 13th, and 20th September; and that the plaintiffs, as such commissioners, sustained an average loss of 401. per cent.; of all which the defendant had notice. The breach assigned was non-payment.

The second count was to a similar effect, except that in that count it was averred that the interest was in his Majesty, on whose account the plaintiffs had caused the insurance to be made; to which the general issue was pleaded.

In the third count it was averred, that the interest was in the Dutch East India Company, for whose benefit the insurance was made, by the directions of the plaintiffs. To this there was a plea that the Dutch East India Company were alien enemies; and a non-pros was entered as to this count.

The fourth count was in general like the first, but did not aver the interest in any person. It stated, that the policy was made by the plaintiffs, as such commissioners, as well in their own names as for and in the name or names of all and every other person or persons to whom the same did, might, or should appertain in part or in all. And it also contained this averment, that the said ships, or any of them, were not belonging to his Majesty, or any of his subjects, before nor at the time of making the policy, or at the several times of the losses happening; and that the plaintiffs were the persons who gave the orders and directions to the agent immediately employed to effect the policy.

To the first and fourth counts there was a special demurrer, assigning various causes; but the only ones on which there was any

argument

1798.

against

argument now, were, as to the first count, that it appeared that the plaintiffs, as such commissioners as aforesaid, had not at the beCRAUFURD ginning of the adventure, &c. any insurable interest or concern in HUNTER. the said ships and goods; and also, that it was not alleged, nor did it appear that the plaintiffs, or either of them, or any other person or persons whomsoever, had, at the beginning of the said adventure, any insurable interest or concern in the said ships and goods. As to the fourth count, that it did not appear, nor was it alleged, that the plaintiffs, or either of them, as such commissioners as aforesaid, or otherwise, or any other person or persons whomsoever, had any interest, property, or concern, in the said ships and goods, or in the said insurance. Joinder in demurrer (a).

This case was argued in Trinity term last, by Giles in support of the demurrer, and Park contrà; and now by Law in support of the demurrer, and Wood contrà.

Arguments in support of the demurrer.

As to the first count, averring the interest in the plaintiffs as commissioners. They had at the time when the insurance was effected, only an interest, in expectation, in the ships and cargoes, when they should arrive; and no case has yet gone the length of determining that that is an insurable interest. Their authority to manage, sell, and dispose of the property (in doing which an interest would arise to themselves) was not to commence until the arrival of the property in a British port; which event never took place, and consequently their interest never attached: and they are stopped to aver an interest in themselves at the time against that which appears on the record. Co. Lit. 352. b. In order to found an insurable

(a) The policy in this case was declared, by a memorandum, to be on ships and goods, viz. Houghly, &c. as should be thereafter declared and valued; and there was an averment in the declaration, that notice on the loss which happened to the ships and goods (therein mentioned) arrived in this kingdom before any declaration or valuation was, or could be made of the said ships and goods. And one of the causes of demurrer assigned, was the want of such declaration or valuation. This was spoken to upon the first argument, and it was insisted on as a condition precedent to the plaintiff's right to recover. But the Court then intimated an opinion, that as the loss had happened before any declaration of the value could be made, the plaintiffs were excused, by the necessity of the case, from making any; and that the value must be ascertained, upon an average of the value of all the ships. The Counsel observed, that the plaintiffs might have declared the value according to the truth of the case, after the notice of the loss had arrived; but, in deference to the opinion thrown out by the Court, they did not press this part of the argument any further; and it was not spoken to again on the second argument.

interest,