Sect. 47. construction 47. From the cases on the similarly worded section of 35 Geo. 3, c. 63 (s. 13), it appears that by the words "before Cases on the notice of the determination of the risk originally insured" is of the section. meant that determination of the risk which is caused "by the loss, or safe arrival, of the thing insured, or by the final end and conclusion of the voyage" (j). time of Hence the determination of the risk by non-compliance Extending with a warranty to sail before a given day is not within the sailing. meaning of this term. Thus, where a policy " on goods to be shipped on board ship or ships which should sail between the 1st of October, 1799, and the 1st of June, 1800," was altered by a memorandum extending the time of sailing until the 1st of August, 1800, after the original time for sailing had expired, but before the loss happened, Lord Ellenborough and the Court of King's Bench held that this was an alteration made before notice of the determination of the risk (k). Where a ship was insured "from Stockholm to Swinne- Change of munde," and while she was lying at Wisburg for repairs, as it was doubtful whether the enemy might not be at Swinnemunde, the underwriters consented to alter the policy by adding the words "Koenigsberg or Memel" after the word "Swinnemunde," the Court held that the alteration was made while there was only an intention to determine the risk originally insured, and before its actual determination (7). If, indeed, the change of terminus were such as to involve the entire substitution of a new adventure for that originally insured, the case would, no doubt, be different (m). A release from a warranty to sail before a certain day which has the effect of changing a summer risk to a winter risk is not the substitution of a new adventure. It is, there (j) Per Lord Ellenborough in Kensington v. Inglis (1807), 8 East, 291. (*) Kensington r. Inglis (1807), 8 East, 273; see also Hubbard v. Jackson (1811), 4 Taunt. 169; Ridsdale v. Shedden (1814), 4 Camp. 107. (1) Ramstrom v. Bell (1816), 5 M. & S. 267; see also Brockelbank v. Sugrue (1830), 1 B. & Ad. 81; S. C. (m) See 1 Duer, 84; the argument terminus. Sect. 47. fore, not a determination of the risk, but only a change in the conditions of the policy, which may be made without a fresh stamp (n). Condition that the thing insured shall remain the property of the same person. "Ship and outfit' altered to "ship and goods." The subject of same specific 48. Another of the conditions on which an alteration may be made in the terms of the policy is that "the articles insured shall remain the property of the same person or persons." "The words, the thing insured shall remain the property, &c., appear to us," says Lord Ellenborough, "properly to require and apply to one identical and continued subjectmatter of insurance, . . and to be ill-suited to a case where the thing last insured is not only in fact, but in name and in kind (as a specific subject of insurance), essentially different from the thing first insured” (0). Hence where a policy was effected "at and from London to the South Seas, during the ship's stay and fishing there, and at and from thence to Great Britain," "on ship and outfit;" and then, with the consent of the underwriters, after the subscription of the policy, but before notice of loss, was altered into a policy " on ship and goods;" it was held, that the policy after this alteration required a new stamp, because the outfit originally insured was a totally different kind of thing, on a whaling voyage, from "goods" to which the altered policy was made to apply (p). It must, however, be borne in mind, that the above decision is confined to cases where, by the alteration, the kind or description of the original subject of insurance is wholly thing, only changed: it is not at all intended that the subject of insurance the same denomination should, throughout the voyage, continue the same specific thing, but only the same denomination of thing. of thing. Thus, where an insurance was effected "on goods, which should first sail on board any ship or ships sailing between the 1st of October, 1799, to the 1st of June 1800, to the amount of 45,0007.," it was held, that an alteration extending (n) Hubbard v. Jackson (1811), Taunt. 169. (0) Per Lord Ellenborough in Hill v. Patten (1807), 8 East, 375. the time of sailing from the 1st of June to the 1st of August Sect. 48. did not require a new stamp; for it was a mere alteration in the terms and conditions of the policy, and not in the subjectmatter of the insurance; for, non constat, that the goods shipped on board before the altered time of sailing were different goods from those intended to be shipped on board originally (2). So, where a policy was "on hemp, marked R.," it was held that a memorandum withdrawing the mark did not make a fresh stamp necessary (r). 49. We have already seen that an express warranty may be altered without a fresh stamp (s); it has also been decided that a memorandum by which the underwriter consents to waive the implied warranty that the ship was seaworthy at the time of sailing is not such an alteration of the policy as to require a fresh stamp, for such consent prevents the inference which would otherwise arise, that the unseaworthiness was a determination of the risk (†). Memorandum waiving implied warranty of sea worthiness. a mistake. 50. Even where an alteration is not within the exemption Correction of created by sect. 96 of the Stamp Act, it will not require a fresh stamp if it be merely the correction of a mistake. There is a wide difference, as regards the stamp, between cases in which the alteration is such a correction only, and those in which it is in fact intended to make a new instrument: the one is an alteration of the contract for the mere purpose of making it express in terms what both parties intended it should express at the time of making it; the other is an alteration for the purpose of giving it a different meaning and extent to that which both parties intended it to bear at the moment of its execution. It is for this reason that alterations of the first class require no fresh stamp, while those of the second do (u). (9) Kensington v. Inglis (1807), 8 East, 273. (r) Hubbard v. Jackson (1811), 4 Taunt. 169. (s) Ante, s. 47. (t) Weir v. Aberdein (1820), 2 B. & Ald. 320, as explained in Quebec Marine Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. 234. (u) Cole v. Parkin (1810), 12 East, 471. Sect. 50. Effect of not re-stamping on the original instrument. Thus, in a case where, the assured having no interest in the ship, but only in the cargo, the words "on ship," which had been inserted by pure mistake, were struck out, and the words "on goods as interest may appear" substituted in their room, it was held, that the memorandum empowering this alteration required no new stamp (r). This case is distinguished from that of Hill v. Patten on the ground that there the assured was owner of the ship, and, as such, interested in the outfit: and also, that there the intention really was to alter the nature of the subject-matter from what the parties had originally meant and understood it to be; whereas here the intention only was to correct an error, and the alteration had only the effect of putting the policy into the state in which it was originally intended to have been framed. 51. Where no rights or liabilities can be enforced under the altered instrument by reason of the stamp laws, the rights and liabilities which existed under the original instrument are nevertheless destroyed by the alteration (y). After the Court, in Hill v. Patten, had decided that the alteration of "outfits" into "goods" was one which could not be made without a fresh stamp, and therefore that the plaintiff could not recover on the policy as altered, the plaintiff brought an action upon the policy in its original form; but the Court held he could not recover on that either (). Lord Ellenborough said, "that the altered policy, though ineffectual as an instrument to sue on, was effectual to do away with the former agreement, which was thereby abandoned " (a); and Le Blanc, J., asks "how the Court can enforce an agreement, after the parties themselves, upon the very face of the same instrument, have declared that it is not their agreement, (x) Sawtell v. Loudon (1814), 5 Taunt. 359; 1 Marshall, 99; see also Robinson v. Touray (1811), 3 Camp. 158; 1 M. & S. 217. In that case the policy was on goods by "ship or ships" to be thereafter declared, and the broker by mistake made declaration of a wrong ship. It was held that a memorandum rectifying this mistake required no fresh stamp. (y) Per Bayley, J., in Reed v. Deere (1827), 7 B. & C. 264. (*) (1807), 1 Camp. 72; French v. Patten (1808), 9 East, 351. (a) Ibid. 355. and have actually written another and a different agreement Sect. 51. in the place of it" (b). It would seem to make no difference whether the memorandum embodying the alteration is written on the back or the face of the original policy (c), provided it be signed by the underwriter. 52. The assured, after acceptance of a valid policy, may Forfeiture of forfeit all benefit under it; for instance, by breach or non- policy. performance of one of the warranties expressed or implied in the instrument itself, or of a condition precedent under which the instrument was granted (d), or by such an alteration of the instrument as at common law or by virtue of the Stamp Acts renders it a nullity, or by such illegality affecting the assured adventure as makes it incapable of protection under the sanction of the law. forfeiture. We have seen that a forfeiture for breach of a warranty Waiver of may be waived by a memorandum endorsed on the policy and signed by the underwriter (e). But when a policy was vitiated by concealment of a material fact on the part of the assured's agent, and afterwards the underwriter, upon learning what had happened, wrote to the plaintiff's agents in these words: "Understanding that the steamer B. has been on shore, I do not consider that my risk commences until the vessel has been surveyed and repaired "-this letter was held not to be a waiver of the breach of the warranty (ƒ). or 53. The question of continuing or renewing a policy has Continuing been considered in a couple of cases (g). Subject to the renewing policy. provisions of the Stamp Act being complied with, there is no reason why a time policy should not be expressed to continue (b) French v. Patten (1808), 9 East, 357. (c) Reed v. Deere (1827), 7 B. & C. 261. (d) Hughes v. Tindall (1856), 18 C. B. 98; Turnbull v. Woolfe (1863), 9 Jur. N. S. 57. (e) Weir v. Aberdein, ante, s. 49. (f) Russell v. Thornton (1859), 4 H. & N. 788; 29 L. J. Ex. 9; in error (1860), 6 H. & N. 140; 30 (g) See per Cockburn, C. J., in |