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![handle is hein.slavery/ssactsengr0031 and id is 1 raw text is: KENEBEL V. SCRAFTON
faith (c). The law creates the lien of the factors, and if the plaintiff as consignee of
the goods will avail himself of their act in effecting the policy, he must do it subject
to their claims in respect of such act done. The validity of the factor's lien on the
policy, notwith-[529]-standing a subsequent alteration in the consignment of the
goods, is in terms admitted by Lord Mansfield in delivering the judgment of the
Court in Godin v. The London Assurance Company (a)', where he puts the very case
in question.
Rose in reply, observed that Atherton and Astley never could be said to have had
.even an equitable claim on the policy; for the consignment of the goods was only
made to them conditionally, in case they undertook to pay over the net proceeds,
which they had not done. That at most they could only have the same lien on the
policy as they would have had on the goods insured if they had arrived ; and there-
fore as the property in the net proceeds was anticipated, nothing could be retained
but the amount of the premium paid for effecting it.
Curia adv. vult.
Lord Ellenborough C.J. now delivered the judgment of the Court (b) in favour of
the defendants. Their opinion, he observed, was not founded on any right which the
defendants had to retain the policy from the plaintiff on the ground of having a lien
on it to satisfy their claim on Atherton and Astley; but considering them as the
servants of Atherton and Astley, who were entitled to hold the policy as against the
plaintiff who claimed from Heath the consignor until their claim on Heath was satis-
fied on the score of their general balance. The case, he added, had been obscured by
bringing forward the defendants' lien instead of that of Atherton and Astley, in whose
hands the policy was to be considered as in effect remaining. Then as the plaintiff
could only have recovered the policy out (530] of the hands of Atherton and Astley,
by satisfying their lien, so the same lien attached on the proceeds of that policy
recovered from the underwriters; and as that lien exceeded the plaintiff's demand,
the defendants as servants of Atherton and Astley were entitled to retain the whole
in this action.
Postea to the defendants (a)2.
KENEBEL against SCRAFTON AND OTHERS. Saturday, July 3d, 1802. A. by will
provided an annuity for B., with whom he cohabited, and directed his trustee
and executor out of his real estate in case he should have any child or children
by B., to raise 30001. to be paid to and amongst his said children, and devised
the remainder of his estate over to several of his relatives : afterwards he married
B. and had several children. by her: Held that such subsequent marriage and
births did not revoke his will, the objects having been therein contemplated and
provided for. Qu. Whether such implied revocations may be rebutted by evidence
of parol declarations of the testator made after the events that he meant his will
to stand ?
[Considered, Wilkinson v. Adam, 1813, 1 Ves. & B. 465. Referred to, Israel v. Rodon,
1839, 2 Moo. P. C. 64; Dorin v. Dorin, 1873-75, L. R. 17 Eq. 475; L. R. 7 H. L.
568.]
This was an issue directed by the Court of Chancery to try whether the real estates
of James Bradshaw Pierson were well devised by his will dated 28th Jan. 1795. On
the trial before Lord Kenyon C.J. at the sittings after last Trinity term a verdict was
found for the plaintiff, subject to the opinion of this Court on the above question.
J. B. Pierson by will duly executed and attested, dated 28th January 1795, after
directing payment of his debts, devised as follows: As to all my freehold, copyhold,
(c) This argument was addressed to a doubt thrown out at first by the Court as
to whether the defendants could set up any claim by Atherton and Astley against the
original consignor to whose use the money had not been received by them, as before
the payment by the underwriters the plaintiff had become entitled to the goods
insured.
(a)' 1 Bur. 493.
(b) Grose J. was absent, being indisposed.
(a)2 Vide Delaney v. Stoddart, 1 Term Rep. 26, and Hibbert v. Carter, ib. 747.
2 EAST, 529.](ViewImageLocal?handle=hein.slavery/ssactsengr0031&div=1&collection=&method=preview&ext=.png&size=3)