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Oibb & Htm, inBiired the steamer " Tinto " t'^ the extent of one thousand pounda onrrenoy -with t]io KespoodenU and they Inned n Policy of Insnrance in the following terms : " Whereas Massrs. Oibb & Kom and others owners, has paid to the Beacon Life and " Fire Assurance Company the sum above stated to have been paid on the granting of this " Policy and has agreed to pay to said Company at the period above mentioned for each " year ensuing the annnal renewal payment above specified during the continuance of this " Policy for assuring against loss or damage by tire not exceeding in each case the earn " hereiuafYer mentioned on the property herein described in the places hereinafter particn- '* lari/od and not elsewhere unless allowed by Indorsement previously made viz ; The hnll ''tackle apparel and other articles of out tit including boats, furniture, linen, plate, glass, "and earthenware engine and machinery of the steam propeller " Tinto," now lying at "8oi-eltoply between Ouebeo and the Upper Li^es, includine winter risks refitting in " the spring, fires allowed to bo made during the continuance of Uie present Policy. " " Now be it known that so long as the said assured shaU duly pay the said premiam " to the said Company at the time aforesaid and the Directors of the said Company for the '* time being shall agree to accept the same the capital stock and funds of the said Company "shall be subject and liable to pay or make good to the said assured, his, her, or their "executors, administrators or assignees (provided the interest in this Policy be so assigned " with the cousont of the Directors) all the damngo and loss which the said assured uudl " sufibr by fire on the property herein mentioned not exceeding in each case roepeotively " the sums hereinbefore specified on the property hereinbefore sot forth." " Provided ahoayt that this Policy and th« atmrance htrdiy made thdU he mbfeet to " the tevenU oondUiotte and regidatwne herein and hereon eiejyreesed go far aa the same are " or ehall he ap^icaMe in the same manner as if the same respectively were repeated and "incorporated in this Policy." *' Provided also and it is hereby expressly declared and agreed between and by the " said Company and the assured that this I'olicy and anything heroin contained shall in no " cose extend or be deo'ned or construed to extend personally to charge or render liable the " respective proprietors of the said Company or any of them or any ot their heirs ezecntora " or administrators to any claim or demand whatsoever in respect of this Policy or of the " assurance hereby made ; but that the capital stock and funds and corporate property of " the said Company shall alone be charged and liable to answer all claims and aomanda by " virtue of this assurance or incidental tnercto subjoined to the said Policy are the following " conditionn that is to sav : )l Hi " Ist. Tliat upon the ineuranco nf any property, 'wliotlior biiildinfp or goixli) dupositeJ " thoreiu, the party or parties making tliu saino slmll specify of what materials tlio walls "and roofs of such huiiilingH are roHpectively constructed, where situated, and by whom "occupied; and whether private ilwcilings, or how otherwise ; whotlier any nianufactnro "or hazardous trade hu curriiid on, or any lia/iii'doiis articles bo deposited or kept therein, "and if 80, shall describe the nature and <]ualities thereof; whether any Btcain engine, " furnace, kiln, stovo, coaklo or othur np|)nratim whereby heat is produced, common flre- " places, stoves and ovens for domestic use excepted) bo erected on tfie prmiUet and if so " sliall tfivo a particular diniTiption of the nature and construction tlicreof respectively ; and "if buch speeiticution di> not truly and circmuNtantially describe the property and the "several particulars regarding the same as aforcHnid, no that the nature and degree of the "risk may be justly estimated, the Policy or iimurance thereon shall be null and void. "The insurance on any building shall not bo held to include anything outside thereof, such "as clapboarding, blinds, galleries, porches, apjxntls, sheds or other buildings, except the "same shall be specially menfiontd and valued in the I'olicy ; no furniture usually denomi- "nated tixturos, machinery or other legal or constructed immoveables contained in any "building shall bo lield ti> Ih) insured, as ai)partrtiniiig or belonging thereto, except sucn "fixtures as shall bo specially named in the body of the Policy. " " 2nd. That no insurance sball bo conclusive or binding on this company, unless the "premium bo previously paid thereon and persons desirous of continuing annual insurances "must make their respective payments of the premium thereon on or betore the commen- '• cement of each and every succeeding year, otherwise such insurance will expire; and "that the only evidence ot such payments shall bo the printed receipts issued from the " office and witnessed by one of the clerks or agents of the Company." " 3rd. If there be any assurance at any other office of tlie property assured at this "office, notice of every such other assurance must be given, and the same with the several "amounts thereof must be stated either in the Policy, or by an indorsement upon it, "otherwise the assurance with this office is void and the assured not entitled to recover or *'be paid in case of loss ; and in the event of any other assurance with any other office this *' company will pay its rateable portion only of any loss, having regard to every other ^'subsisting Policy in wlniso name soever such Policy may be." " 4tli. In case (if any alteration being made in a building assured or containing any •' property assured or of any steam engine, stove, kiln, furnace, oven, or any other descrijition "of lire lieat being introduced or of any trade business, process or operation being carried " on or goods deposited therein not comprised in the original assurance or allowed by " indoi-seiuent thereon or the making of any communication from one building to another "notice thereof must be given and every such nlloration must be allowed by indorsement "on tlic Policy and any further premium which the alteration may occasion must be paid ; "and unless such notice be duly given, in writing to the company or the agent, such "premium paid and such indfirsement made no benetit will arise to the assiiretlin case of '• loss. If the risk be iiiereiisod by the erection of bnildings or liy the uso or occupation of " neighbouring premises or otherwise, or if for any other cause tlie company shall so elect, " it shall be optional with the company to cancel this J'oliey after notice given to tho "assured or his representatives of their intention so to do, in whicli case tho company will "refund the premium for tho unexpired time." " 5th. Leaseholders, trustees and all persons entitled to liouses, buildings and other "assurablo property in reversion may assure tho amount of their respective interests in "such buildings and property provivied the nature of the tenure or interests be duly specified. "Persons holding goods in trust or on c|)eur any frauif, deceit, or evil "practice, iii the claim made for any loss, or any false decluralicui or atlirming in support " thereof, or that the tiro shall have happoiicd by the pivctirance or wilful act ise.'.ns, or " connivance of the insured or claimant, or any collusion or false evidence, < < '1 .;eit, or "wilful mis-statement, or trauduleiit mis-description in the nature or value of ti.c u-oporty "destroyed, damaged or eluimcd for, the claimant shall, in every such case forfeit, il right "to restitution or iiayniont under or by virtue of his, her, or their Policy." " 11th. Where jiroperty insured by this Company is damaged by removal from a " building in which it is e.xiioscd to loss l>y lire, such damage shall lie borne by the insured "and the insurers pro rata 111 the proportion that the whole sum insured bears to the whole " value of the projierty insured, of which proof in duo form shall be made by the claimant." " 12th. It is furthermore hereby exi>re8»ly jirovidod, that no suit or action of any " kind against this Company, for the recovery oi' any claim upon, under or by virtue of this " I'olicy, shall be sustainable in any (Jourt of Law or C'hancery, unless such suit or action "shall bo commenced witliin the term of six months next after the loss or damage shall " occur ; and in ciute uuv suit or action shall bo eommenced against said Company atYer the " expiration of six moiitlis, next al'tcr such loss or damage shall have occurred tlie lapse of " time shall bo taken and deemed as conclusive evidence against the validity of the claim " thereby so attempted to bo enforced." " IStli. I'ayment of losses shall bn mndo in sixty days after the loss shall have been " ascertained and proved and in case diH'erences shall arise touching any loss or damage it "shall be submitted to the judgriieut of urbitratin-s iiidifterently chosen, whose award in _4 — " writing Blmll bo binding on tho parties half tho ibe« for urbitrKtom to bo paid by Uie poi^r " injured. In cue of any Idm ur daningu to tho property iuanrod it ahnll bu optional wltb " tlui Company to replacu tlio articles lost or dunioged with others of the same kind and "oqremiBes at the time when " any loss should hnppen giicli losd would not bo made good and the said defendants say " that at the time that the steam propeller called tho " Tinto," was destroyed by lire as in "the said declaration inenlioncnl tlieri" was on board of tlio said vessel a larger quantity of "gunpowder than twenty jioimdH \vcif;lit bv vchsom whereof tho said defondaiits were and "are not responsible for any loi^» which the »uiodf mich loss by their declaration or " utiiriiuition before the nearest resident inasiHtrato of themselves and of their serranta " Hiul by producing their invoices and books of account and bv all other vouchor* aa " might ho reasonalily required, without wiiich no money should be recoverable, a copy " of liiu written paita of the Policy was also ta bo given in tho attidavit of tho claimunts " in all cases. " And the naid defendants say that the said pluiiititf have not nor did tho said James " Uibb, James (iibb Uoes, John Ross, William itoss ai'd thu said late Alexander Ilen- " doraon in his life time in any respect comply with the said vouditions lost mentioned " and aid I'olicy and did not "(though required so to do) make proof ot' such loHsintlio nianiier so reqnirod by tho " said ciMiditions. Hy reason whereof according to the toniiro of their said contract thu " said plaiiititfs have lost all claim which thuy otherwise might havo had under tho said " Policy by reason of tho loss and *lamugo by fire to the said steam propeller " Tinto" " unil the said dufciiduuts further say that it was covenanlod and agreed in and by tho " conditioiiH of thu »iiU\ Policy that in cithi: any suit or action mIiouM be coinmonced against " tlie said Company nt'tor thu ex]iiratiou of six tnontim next at^er such loss or damage '' should have occiirrud, the lupHO of time was to be taken and doomed as conclusive " evidence against the validity of tho claim thereby so atlumptcd to bo enforced. And " the defendants say that at the time of tho institution of thu proscnt action mure than " six iiuuitliH had elapsed since thu occurrence of tho allrgcd loi's and damaguto the said "steam propeller "Tinto," by reason whereof in virtue of the said contract the said " claim of tho pluintifi's must be hold to be invalid." Tho Appellants answered generally, and also specially as follows, " that for a long ' tiino after thu loss by them sustained and claimed by the present action tlioy the Plaintiffs '' weiv in treaty and communication with tho Defendants tor the payment of the same, and " that thu present action M'as brought immediately upon tho absolute refusal ot tho Dofen- ' daiits to pay the said Plaintitfs being made known to thciii tho Plaiutifi', and that they ' the Pluintitls had every reason to expect and did expect that the said Defendants would ' pay the amount claimed by. the urusent action without being sued for tho same and that ' tho said action was not brought uy tho said Plaintifi's within the said time, bxcauso thu ' said Defendants from time to time promised to pay and settle thu said loss, and by that iiicaiis only induce(i thu said Plaintitfs to protract the institution of tho present action, ami that tnu said Dufoiidaiits are barred from all right to invoke tho said condition and havo waived tho same. A general replication was fyled by the Ilcspondents. Thu Appellants having declared their option of a trial by Jury, thu Honorable Mr. Justice Mereditli on the 6th of April 1858, settled the questions ot fact to be submitted lis agreed >lin Koi>«» plopollcl" — • — to die Jury, and tlio Juiy which wm afterwanlt eui|>annell*d to trj thit mum returned their verdict m followi : qcsmoN. lit. Did Jamet Gibb, Jarooe Oibb Roe*. John Rom and the lato Alexander flonderiuin then thoownom of tlio Htpaiiior Tiuto otfect an ingnrun'-u upon timt Htoa- mer with the DofundantH, at the time, in tho innnnor and for thu huhi Rtittod in tho id the soid .fames Gibb, James Gibb lloss, .Fohn Rons, William Itoss and the late Alexander Henderson us thu plaintiffs, forthwith after thu said stea- mer was so consuntcd by tire give notice of thu said loss to tho said defendants in the manner required by the said Policy of insurance? 6fh. Did the said above nitnied per- sons or did the plaintiffs after the occnr- rerce of the saul tire deliver in to tho defendants on inventory or stutenipnt nf tho loss which had so occurred in the maimer required by the eniiditioiin nf the said Policy of insurance and if so, when. 6th. Did negotiations take place bet- ween the plaiiiiitt's and tho defendants in relation to the snid loss? was the pre- sent action brought immcdiete'iy upon the alisoluto refusal of tho defendants to pay the said plaintifl's being made known to them the said plaintiff's. 7th. Were the plaintiffs induced by any promises on the part of the defen- dants to postpone the institution of the present action beyond tho period of six months after the said loss ? 8th. What was the amount of loss or damage sustained by the said James Gibb, James Gibb Itoss, John Uoss and the lato Alexander Henderson, by rea- son of the said steamer Tinto having been bo consumed by tiro as aforesaid. Antum:—yo». Atunoer. — Yea, on tlie 17th day of July 1866. AuHwer. — Yes, we find tliat a package containing about mie hundred pounds of powder was on board as lieigiit und which tho owners of the said Steamer were not precluded by their Policy from carrying. Antwer. — Yea. Atuwer, — Yes. Satisfactory proof »>f loss was given immediately. Atuwtr. — Yea. ■•>•»»- Answer. — Yes. Anneer. — Five to six thousand pounds. MUM ntnrnad .0 rt-t nth dny of iBt a package I'tl pniindt of liuiglu iitid )«id Btoamcr • Policy froui i-y incK)f «>f d poiiiidn. At th« trial tho Appetlanta offered ovidenec to nroro that It wai onitomary to oarrj on fr«i((lit,jrunpowder, iii urnfU nnvigatiiiK tho inlanil watAin of thi* Province, (iioh aa tha (teainer " Tinto," but this evidence waa riiled inadiniMible by Mr. Jiutico Meredith, who presided at the trial. 11)0 verdict wi rendered by tho Jury waa iinatiiinoni, and tho facts found and parti- onlarly in answer to tho third <{iiestioii were favurabie to the Appellants. The Ilespondonts subsequently to tho rendering of this verdict inscribed tha oaasa for n huiiring iipmi tho merits. No motion whm niadu by them for a new trial and in tha absunco of such a motion it must bo assumed that they acquiesced in tho verdict as roiidurud. The facts, as found by tho Jury, cannot bo >, at the time of her loss, and " iniiHuiuch ftit tho said ilury tinding and stating hucIi ((iinntity or weight, have added to " tiicir HaindorHcd siiall be Ituld ttpplieal)lo to the contract. Unless this were wo, thu proviho " that thi* /'oliry anil the aniiirance hereby iiuuUthall he •' luhject to thi) »iverns given in the said motion, whereby it was pretended that the fact lound was not iiertinent to the issue botwoen tho parties. There was a direct issue raised upon that condition by the Ilespon- donts. On the 6th October 18A8, the parties wore hoard on the merits of the cause. On the 18th December ISAS a rehearing was ordered. On the ITth January 1859, a second rehearing was ordered. On tho 5tli March 1851), this cause was hoard upon tho merits and on the llth March 1859, another order was made for a rehearing. Tiicse repeated hearings were before the Honorable Mr. Justice Meredith, who presided at the trial. On tho '2nd May 1859, the cause was again heard, )>eforo tho Honorable Mr. Justice Chabjt, and on tho 1st June 1859, tho following judgment was rendered. " La Gour ayant ontendu les jiarties par leurs Avocats respectifs tant sur la motion '* do la d6fenderesse dn premier mai mil huit cent cinquante huit tendant t\ faire retran- *' cher une partio do la rcponse du Jury i\ la troisieme question tk lui soumiso, quo sur lea " m^rites de la domande en cotto cause, examin6 les preuvos, plaidoyers et proc6dnre8 da *' dossier ot sur le tout mikroment delib6r6 considerant que les Jures on reponso k la troi- " siemo question jl eux faite et soumiso out rapport^ quo lors do rinccndio perto et des- '^ truction du steamer Tinto, mentionno en la dito question, il y avait abord d'icelui ' f: I _ 8 — " environ cent lirres de poudre comiue fret et out «jout4 : " Oe que les piopri^taires du " dit steamer n'^taient pas cmpfich^s par lenr police de transporter," et considerant quO' " les ditB Jnr^ en rapportant ainsi et ajoatant ainsi ont rapport^ et jug6 sur Hne cliose " qne ne lenr 4tait pas sonmise ni en issue de fait entre les parties, et qu'ils ont uinsi pris " snr enx de rapporter sur nne Question de droit c-t qu'en coos^qnonce los dits Jr.r^s ont " exc£d6 leors pouvoirs et attributions, aecorde ': ite motion de la dite dofenderesse " et ordonne qne tout I'ajouto susdit tL lb ruponse ens contre les domandeurs en " favenr do la dufendoresse distraits en favetur de Mesaienrs Holt et Irvine, Procurenr de " la dite d^fenderesse." Tl>e Appellants are aggrieved by this judgment. The parties having resorted to a trial by jury, withdrew from the decision of the Court all matters of fact in issue between them. ITio jury were the sole judges of the fact. I.iey letnrned a veidict and that verdict stands unimpcached. The finding has been accepted by the parties, and neither can enter upon the ovidenco to demonstrate error in the finding nor to explain it. Whether there is or not ovidenco to support it, cannot now bo made u unbject of cnoniry ; nor can the means by which they arrived at the verdict be investigated. Had tlie Upfjumdents believed that the verdict was not supported by evidence, they had a remedial course before tliein, in a motion for a now trial. No such motion was made. The verdict mnst bo taken as a whole, and so taken, it stands for the Appellants. It is siibmittoly) was neither tlic j)roxiinato or remote canfu of the loss. Tlie condition speaks of gunpowder but tho verdict does not. Tho Court below in its judgment seems to have considered the evidence and to have baseil its judgment partly thereon. Tho Appellants know not how for it may have been influencea liy the evidence. If in any measure, then they submit that that ('ourt entered upon a branch of the case, of which it had been divested bv the operation of the •lury. The verdict must bo taken as to tho facts and as it is silent as to gunpowder, the Court cannot supply the defect. The spirit of our jurisprudence does not favor forfeitures or penalties, and C'ourts will not lean to them where an injustice follows. The Appellants have paid a full prciniiini for a risk, whicli the Kespondcnts assumed but which they now seek to avoid, though other companies havo l>aiu the Appellants. Supposing that tlie (^ourt views the contract as one for coDBtruction ; in such case it n^ % )prl^tarres dit iBiderant que- ur Hne choee ont uinai priB lita Ji'.r^g ont d6fendere88e lisititne que*- lice de trans- priin6 et mis i>reuve et les lie I'incendie n police d'as- A a<)claration ivros pesant^ d'aesiirance, putuelle iilde exception et mandenrs ea *rocurenr de ted to a trial tween them, srdict stands er can enter lietber there nor can the l£c>c|x)ndent8 idiui cuiir»e ■erdict must inittcsi tlkut rties when le language what con- litions on before they ,>plicatioii condition fl'ejury.' premises "'ij cdininou iMms. In condition, hat means meaning remises remises " so. Hie tliat that does not y wliero uiiant by t ap})ly) i})caKs of 18 to have ppellanta measure, had been ts and as 'it of our to them hich the lies Lavi; api B I if h ~9 — will bo forced to allow that the 1st, 4th, 5th, Otb, 7th, 8th, 9th, 10th, 11th and 14th con- ditions, api'ly to risks on land, and are such, as are invariably attached to aaawranoea terrestrea. 1 tence the propriety and indeed tlie necessity of the proviso. To argne that one of a series of conditions belongs to the contract wnilst the otliers, nine in number, oxiA ejusdem (jenerU plainly do not, is a |>rocoBS of reasoning which it will be difficult to recognise as convinciufi;. Did the condition relating to gunpowder stand isolated, ' then' the Company vrith a Miade of reason 'might invoko it ; bat it forms part of the 7th condition and is preceded by " No loss occasioned by or through any iuvasion rebellion riot, tumult, insurrection, or commotion or by or through any militaiy or usurped power or foreign enemy will be made good nor any loss by theft at or after a lire, Books of accounts, deeds, writings manupcripts, securities, bills, bonds, ready money and gunpowder arc not under any circumstances assurud. Tlie Company will not be responsible tor any loss arising on hay or corn destroyed or damaged by its own natural heating but will pay tne loss which ni;iy happen to iiuy other contiguous property ostjiircd in conseqiience of nre so occasioned. K" loss will be allowed for any goods or utensils wl. ch may be destroyed or damaged while undergoing any process of maiiiifactiiro in or by which the application of fire heat is used," uud is followed bv " the use of gasliglits is allowed provided the gas is not made on the premues but tliis Company will not ue responsible for any loss or damage occasioned by (ir through the use of CAiupliene." Thus, it is found hedged in by other condition >' contained in the same paragraph ,which refer to houses and moveables on land. The Api)ullnnl« are confident that upon a review of the proceedings, this Court will grant thein tne relief, which they respectfully solicit. Qaebec, 7th December 1859. F. C. VANNOVOUS, For ApptUanu. h case it '^^^ms^^; -jK^*! ■■*t