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Coit v. Smith.

Kent, J. I fully agree in the doctrine laid down in the case of Lockyer and others v. Offley, (1 Term Rep. 252,) that the insurer is not liable for losses happening after the term prescribed in the policy, although the subsequent loss be a consequence of a peril in the policy. What was the condition of the cargo when it was landed, is the only question. In this case, one of the horses received a death wound during the voyage, and by reason of the perils specified in the policy. Surely the damages so received, as they existed at the termination of the voyage, are a proper subject of retribution. The subsequent death of the horse is to be put wholly out of view. How much was he injured by the bruises, and how much damage *ought to have been assessed, at [*18] the time he was landed, are the proper subjects of inquiry. The subsequent death of the horse ought not to put the plaintiffs in a worse situation than is he had survived the bruises. It ought not to go to the destruction of the plaintiffs' right of action. If the plaintiffs would have had a right of action for an injury to the horse, by which his value was lessened, had the horse survived, they, surely must have that right of action, notwithstanding the subsequent increase of loss. We must say, that the present policy was merely upon the existence of the lives of the horses, for the voyage, or the plaintiffs must recover an average loss. There is no alternative.

I am of opinion they are entitled to recover, and to the full amount of the horse, for he was so disabled by the fall, as that he could not eat before he landed, and died three or four days after. It was a total loss of the horse. Lewis, Ch. J. was of the samne opinion.

Judgment for the plaintiffs.(a)

(a) In the case of Morelony v. Dunlope, cited by Willes, J. in Lockyer v. Ofley, (1 Term. R. 260,) where an insurance ou a ship was made for six months and three days before the expiration of the time she received her death wound, but by pumping was kept afloat until three days after the time. it was held, that the insured could not recover. The case was also put by Willes, J. of an insurance on a man's life for a year, who some short time aster the expiration of the term, received a mortal wound, of which he died after the year, who thought the assurer would not be liable.

Coit v. Smith,

Lockyer v. Ofiley decided, that where a ship insured for a voyage arrived and remained safely in port for twenty-four hours, the assurer was not liable for a seizure made afterwards in consequence of an act of smuggling committed by the master during the voyage. The question mainly considered by the court was whether the actual property in the vessel was altered till the act of seizure, and this was decided in the negative.

A similar decision has been made in Louisiana. A policy was effected on “the Spanish brig Palmero de Mahon, against barratry and other risks, from Havana to New Orleans, until she should be inoored twenty-four hours in good safety.” Within the twenty-four hours from the time of mooring at New Orleans, an attempt was made by the master and mariners to smuggle some rum and cigars, in consequence of which, after she had been moored more than twenty-fours, she was seized, and and subsequently condemned. The Supreme Court of Lonisiana was of opinion that the underwriters were not liable, the ground of the decision being, that she was not seized until after the expiration of the twenty-four hours. (Mariatigui Knight & Co. v. Louisiana Ins. Co. 8 Louisiana R. 65. decided on the authority of Lockyer v. Olley 1 T. R. 252) But in case of the seizure of a ship during the risk, and its condemnation after the termination of the risk, the insurers were held to be liable for a total loss, for the seizure in itself constituted such a loss. The subsequent release of the ship might have taken away the right of abandonment, but as the ship was not released, it was held that the right to abandon subsisted after the risk had ceased. (Dorr v. N. E. Mur. Ins. Co.11 Mass. Rep. 1.) A British vessel insured from Bilboa to Rouen, till she had been there moored twenty-four hours in safety, arrived at Rouen, where a hostile embar. go had been laid upon British vessels. It seems that she was not actually taken possession of under the embargo, until after the expiration of the twenty-four hours, but she had been in the power of the officers of the French go. vernment from the time of her arrival. Lord Kenyon instructed the jury, that the loss happened immediately on the vessel's arriving within the operation of the einbargo, and so before the expiration of the risk. (Minette v. Anderson, Park, 55. Peake, 211.)

These cases are however readily distinguishable from the principal case. (See 1 Phillips on Ins. 708 ; 3 Steph. N. P. 2069; and also from Stagg f Snell v. The United Ins. Co., infra. p. 34, in which the ship arrived at Cura. coa in such a state that she was not worth repairing)

Stedfast v. Nicoll.

STEDFAST, ex dem. W. Nicoll and others, against H.

Nicoll.

N. in August, 1778, devised land to his son William, for life, remainder to W.

the son of William, living at the time of the devise, for life, with remainder to the first and every other son of the first son of William successively, in tail male, with remainder to the second son of William, (then in esse,) with remainder to his first and every other son, successively in tail male ; with remainder to every other unborn son of William successively, in tail male ; remainder to the first and every other unborn daughter of William successively, in tail male; remainder to the testator's second son Samuel for life ; remainder to the first and every other son of Samuel, successively, in tail male ; with remainder to the testator's three daughters, in tail general, as tenants in common; with remainder to the same three daughters, in fee ;

and devised to trustees to preserve contingent remainders. The testator died 1st March, 1780, leaving issue two sons, William and Sam

vel, and three daughters. William, the eldest son, entered under the will, and died seised, in April, 1796, leaving two sons, William and Henry; and William, the grandson of the testator, entered on the death of his father, under the will, and died seised in June, 1799, leaving issue a daughter, and his wise privement enseint, who was delivered of a son, also named William, in October, 1799. It was held, that the posthumous son took the estate in remainder, by the devise, in the same manner as if he had been born in the life-time of his father.

This was an action of ejectment. The cause was tried at the Suffolk circuit, in June, 1800, before Mr. 'Justice Benson, when the jury found a special ver- (*19] dict, in which the following facts were contained.

William Nicoll, being seised in fee of the premises in question, made his will, on the 19th August, 1778, in which, among other things, he devised the premises in question to his son William for life, without impeachment of waste; with remainder to trustees, and their heirs, during the life of his son William, to preserve the contingent remainders in his will, liinited; with remainder to the first son of his said son William, for life; with remainder to the said trustees and their heirs during the life of his said grandson, to preserve the contingent remainders therein after limited, to wit, with

Stedfast v. Nicoll.

remainder to the first and every other son and sons of the eldest son of his said son William, successively according to the seniority, the elder to be preferred before the younger, to hold the same in tail male; and in case of the death of the first son of his said son William, without such issue, then the testator gave the said lands, &c. to the second son, (the defendant,) and the issue male of such second son, in the same manner as above, with like devises to trustees for preserving the contingent remajnders; and declaring his intention to be to give an estate for life only to such second son, in tail to his issue male successively, and so to every other son of his said son William, and the issue of such son successively upon the like contingencies; and in default of issue male of his said son William, he devised the said remainder to the first or eldest daughter of his said son William, for life without impeachment of waste; with remainder, during the life of such first daughter, to the same trustees and their heirs, in trust, to preserve the contingent reinainders therein after inentioned ; with remainder to the first and every other son and sons of his said first or eldest daughter successively, according to their seniority, the eld

est always to be preferred to the younger, to hold the [*20) same in tail male; and in case of the death of the first

daughter of his said son William, without such issue, then he devised the same lands, &c., to the second daughter, of his son William, and the issue male of such second daughter, in the same manner, with like devise to trustees to preserve contingent remainders, expressing his intention to give an estate for life to such second daughter, to her issue in tail male, successively; and so to every other daughter of his said son William and their male issue upon the like contingencies. In default of issue, male and female, of his son William, and their male issue, the lands were devised to the testator's son Samuel Benjamin, for life, without impeachment of waste; with remainder to trustees to preserve contingent remainders; with remaindar to his son Samuel and his issue male, in the same manner as before devised to his son William; and in

Stedfast v. Nicoll.

default of issue male of his son Samuel Benjamin, he devised the same to his three daughters, and their issue male, equally to be divided between them, share and share alike; and in default of their male issue, to their issue female, equally to be divided between them.

And the testator added, " that his meaning might be the better understood, and to give a key for the more certain exposition of his will, he declared it to be his general intent, to continue the estate at Islip, (the premises in question,) first in the male descendants of his son William, then in the male issue of the daughters of his said son William, then in the male issue of his son Samuel, then in the male issue of the testator's three daughters in severalty, and upon the failure of such male issue, then to the issue female in severalty, and that it should not be in the power of his descendants, before his great grandchildren, to dock the entail.”

The other provisions and devises in the will, as well as a codicil made the 22d February, 1780, relating to different subjects, it is unnecessary to state them here,

The testator died the 1st March, 1780, leaving isissue *William, his eldest son Samuel Benjamin, his [*21] younger son, and three daughters, named in the will. On the death of his father, William, the eldest son, entered and was seised under the will, and died so seised, on the 20th April, 1796, leaving issue William his eldest son, and benry S. his second and younger son, both of whom and the three daughters of the testator, were living at the time of his death. William, the grandson of the testator, after the death of his father, entered and was seised under the will, and died so seised, the 5th June, 1799, leaving issue a daugher, (Deborah,) and his wife, privement enseint, and who on the 26th October, 1799, was delivered of a male child, called William, who is now living, and is one of the lessors, being the lawful issue and only son of the last mentioned William, and great grandson of the testator. The other lessors, Selah Strong, and Richard Udall, were appointed, on the 9th November, 1799, by the court of chancery, guardians of his per

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