posed of by the Master's report. It appears to me, therefore, that the Master of the Rolls came to the right conclusion, and that both the appeals ought to be dismissed, with costs.

LORD BROUGHAM. I have come to the same conclusion as my noble and learned friend. As he has argued chiefly the point upon the original appeal of Lady Edward Thynne v. Lord Glengall, and has addressed himself less to the cross appeal of Lord Glengall v. Lady Edward Thynne, I shall perhaps be excused for entering a little more at large into that, in which I entirely agree with the Court below, and with my noble and learned friend.

In this case I think that the agreement, stated in the bill and referred to in the rest of the pleadings, namely, respecting 100,0001. 31. per cent. reduced annuities, was never completed; that Mr. Mellish's consent to, and concurrence in it, rested wholly in parol; that neither he, nor Mr. Tooke for him, ever signed it; not only that, but that it was not completed, even by parol; that after the draft had been prepared, read to him, and *approved of by him, it was submitted to Mr. Bellenden *157 Ker, and he having settled it, Mr. Mellish was apprised of the state of the draft, and though Mr. Tooke, in his answer to the fourth interrogatory, says he approved, yet it is evident he desired something further to be done; for he made Mr. Tooke submit the draft to his (Mr. Mellish's) old friend, Mr. Tidd, for his perusal. Accordingly Mr. Tidd perused it, and expressed his approval “in one or two interviews," says Mr. Tooke, "which I had with him." So that it was not an immediate unhesitating approval; and although Mr. Tidd returned the draft approved on the 24th of the month to Mr. Tooke, I consider that Mr. Tooke was bound to state, and probably would have stated, generally at least, to his client, what had passed with Mr. Tidd at the two interviews, what difficulties he had found, and how those difficulties were removed. Mr. Tooke does not state that he ever told Mr. Mellish any thing that had passed with Mr. Tidd, in whom Mr. Mellish reposed an especial confidence. Nor did Mr. Mellish ever know (which is a material point) that Mr. Tidd ultimately did approve of the draft; for he was seized with the illness, which in three days carried him off, the very day (the 24th) that Mr. Tooke received back the

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draft from Mr. Tidd; so that Mr. Mellish died without knowing that it had been approved.

I have put the case of the non-completion of an agreement or contract. But Mr. Tooke, with every disposition- and very naturally to support Lord Glengall's claim from his (Mr. Tooke's) knowledge of his client's intentions, does not take upon himself to say (which would have made a material differ

ence in the case) that Mr. Mellish ever said that he was to * 158 be considered as assenting, provided Mr. Tidd should ap

prove of the draft. He says no such thing. This view of the case makes the supposed part performance, upon which all the reliance is placed, wholly immaterial; for part performance, to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement, and by force of the agreement.

The case therefore appears to me to be free from all doubt. I regard the whole as an incomplete agreement, and I agree with the Master of the Rolls, that the part of the bill which referred to it ought to be dismissed. Therefore the decree appealed from should be affirmed, as my noble and learned friend has moved.

This makes way for the consideration of the appeal, in which Lady Edward Thynne is the appellant. I entirely agree with the Master of the Rolls, and with my noble and learned friend, that the appellant must be put to her election, and that she and the issue of her marriage, if any, do elect to take under the will of Mr. Mellish, the bequests of which operate as a satisfaction of the bond of the 8th of July, 1830, and not as a cumulative gift for further advancement—not as a double portion - and therefore that this part of the decree also should be affirmed. Then we give the costs of the original appeal to the Respondents therein; and the costs of the cross appeal to the Respondent in that appeal.

The decree and orders, so far as they were complained of in the two appeals, were then affirmed with costs respectively.

[114]

STEWART v. GREENOCK MARINE INSURANCE CO. *159 1847. June 15, 17. 1848. September 1.

ANN STEWART and others,

The GREENOCK MARINE INSURANCE COMPANY and the DIRECTORS of that Company,

Appellants.

} Respondents.

Insurance. Freight. Abandonment.

In all cases of insurance on a ship, in which the subject is not actually annihilated, the assured claiming as for a total loss must give up to the underwriters all the remains of the property recovered, together with all benefit or advantage incident to it, or rather, such property vests in the underwriters. Freight, while the ship is in the course of earning it, is a benefit or advantage incident to the ship, and, therefore, becomes the property of the underwriters, paying for a total loss.

A vessel, in the course of a voyage, struck upon an iceberg on the 27th of July, and was considerably injured, but reached Liverpool, and while in the river there, grounded outside the docks on the 11th of August, was afterwards taken into dock, the cargo discharged, and was then surveyed, and, after the survey, namely, on the 1st of September, the owner abandoned to the underwriters on ship, and claimed as for a total loss :

Held, that the underwriter on ship was entitled, on settling as for a total loss, to have the benefit, in account, of the freight which had been received by the owner on the discharge of the cargo.1

Two policies were entered into by the defenders, as underwriters, on the ship Laurel, of Greenock, one for 1500l., the other for 5007. Besides the 2000l. thus insured with the defenders, insurances were effected with other companies to the value of 45007., or 65001. in all. As the vessel was valued in the policies at 75007., the pursuers stood in the position of their own insurers for the remaining 10001.

* The vessel was insured at and from Liverpool to New *160 York, and thence to any other port in the United States or to Quebec, thence to a port of discharge in the United Kingdom, and thereafter, "until she hath moored at anchor in good safety at her place of destination, and for such period afterwards as she shall be there occupied in discharging her cargo, not exceeding ten days from the date of reporting at the Custom House." There was a policy on freight executed in similar terms.

1 See Bristowv. Whitmore, 9 House of Lords Cases, 391.

The outward voyage was performed in safety. At Quebec the vessel took in a cargo, chiefly of timber, and left that port on the 14th of July, bound for Liverpool. On the 27th of July, and before it had quite completed half the passage homeward, it came in violent contact with an iceberg, which carried away the bowsprit, stove in the bows, and occasioned other serious damage. The vessel immediately filled, and became water-logged, but the cargo kept it afloat; and the weather being favourable, it was able, by great exertions on the part of the master and crew, to proceed on the voyage. Reaching Point Lynas, a short way from the river Mersey, a pilot was taken in, and the vessel then proceeded up the river to Liverpool, and arrived off the Brunswick pier-head on the 11th of August. It was flood tide at the time; and the desire of the pilot and master was, to have the vessel immediately taken into dock, but from the state it was in, the dock-master refused to allow this to be done without the order of the harbour-master. The master of the ship accordingly went to him. When the condition the vessel was in, however, was explained to him, he would not consent to its being docked, but gave directions to have * 161 it moored outside the dock gates, that it might be scuttled when the tide left. These directions were accordingly followed, and the ship, instead of being taken into harbour, was laid alongside the pier-head in the open river. The consequence was, that as the water left, it grounded, and listed or fell outwards, and sustained much additional damage, many of the timbers being broken, and other injuries done. When the tide had sufficiently receded, holes were bored in the ship's bottom, and the water allowed to run out. The openings were closed before the tide returned, and the ship when floated was carried through the dock gates into the Brunswick basin, where it was moored for the remainder of the night. Next day it was moved from the basin into the dock, and then discharged, no part of the cargo having been removed till the ship was ultimately placed in the dock.

After the cargo was discharged, the vessel was put into a graving dock, and there examined by several Liverpool ship carpenters and surveyors. These gentlemen reported that it would cost 3000l. to repair the injuries done to the vessel by the collision with the iceberg on the 27th July, and the grounding in the river on the 11th August. On receiving this report, the owners, on the 1st September, 1842, wrote to the defenders, intimating an aban

donment. This the defenders refused to accept, on the ground that the injuries done to a vessel valued at 75007. in the policies, were not to that extent which could entitle the owners to claim for a total loss. Some further correspondence took place, the owners having, in the mean time, got additional surveys, by which the amount of damage was declared to exceed 40007.

*

The pursuers, in October, brought an action against the defenders, in which they claimed as for a total loss. In * 162 their summons, the pursuers rested their claim solely on the injuries done to the vessel by the iceberg, which they maintained, of themselves amounted to a total loss; but afterwards amended the libel, so as to embrace also the injuries the vessel had received in the river. A record was then made A record was then made up, the pur

suers' first allegation being, "the pursuers are entitled, in the circumstances, to recover under the policies libelled, the full sums insured, as for a loss; and no relevant ground has been stated, or exists, in the circumstances, to exclude the claim for these sums." The defenders pleaded that "as the damage sustained by the Laurel did not amount, either actually or constructively, to a total, but only to a partial loss, the pursuers are not entitled to abandon and claim for a total loss"; and also, "that even supposing the pursuers entitled to abandon, and to claim a constructive total loss, they could only do so subject to the condition of their accounting, by way of compensation, to the respondents, as abandonees of the ship, for their proportion of the amount of freight earned, after the accident or accidents through which such constructive loss was occasioned; and the respondents would be further entitled to deduction of a rateable contribution for the value of the stores. expended for the general safety."

The freight actually earned and paid to the owners, amounted to 14027. 28. 2d.

The case went to trial upon the following issue: "Whether the said ship, by and through injury sustained on or about the 27th July, 1842, and on or about the 11th August, 1842, or one or other of these dates, and during the currency of the said policies, became a wreck, and was totally lost? and whether the defenders, under the said policies, are indebted and * resting * 163 owing to the pursuers in the sums of 1500l. and 500., contained respectively in the said policies, or any part thereof, with interest thereon as libelled."