atkins case motteux and other v the governor and company of London assurance  and other December the that see Haughton v empire Marine insurance company lr  ex SC vin pl SC cite Ves if a policy of insurance differ from the label which  be the memorandum or minute of the agreement it shall be make agreeable to the  label the ship eyles as appear by the bill late in the eastindia company be  service be in at Bengal at which time the owner employ Mr James halhead to  insure this ship in the London insurance office for pound the adventure  thereon to commence from her arrival at fort saint George and thence to  continue till the say ship with her ordnance apparel c shall arrive at London  and that it shall be lawful for the say ship in the say voyage to stay at any  port or place without prejudice and that the ship be and shall be rate at  interest or no interest without further account in consideration whereof  halhead pay premium be at the rate of per cent which be the current premium  then upon the ship at and from fort saint George and a label of such agreement  be the that of August enter in a book and subscribe by halhead and two of the  director and the policy shall have be make pursuant thereto but upon look into  the policy it appear that by a mistake the policy be make out different from  the label and instead of the ship be insure from the time she shall arrive at  fort saint George as it ought to have be accord to the label the insurance be  make by the policy to commence only from the departure of the ship from fort  saint George to London and therefore the company insist that in regard the  ship be lose in the river of Bengal and not in her voyage from fort saint  George to London the plaintiff be not entitle to recover on the policy and for  this reason the plaintiff have bring their bill against the defendant the  company to be pay pound with interest have the usual abatement in case of loss  atkins the eyles come to fort saint George in February in her way to England  but be leaky and in a very bad condition upon the unanimous advice of the  governor council commander of ship c she sail for Bengal to be refit and after  be sheathe in her return upon her homeward bind voyage she strike upon the  Engilee sand and be lose evidence be read on the part of the plaintiff to  prove that Bengal be the most proper place for ship to refit and that she go  thither for that reason and that this be a voyage of necessity and not a trade  voyage for she take nothing on board but water provision and ballast it be  insist by the plaintiff counsel that though the policy in that part of it  which be call the risk be beginning the adventure from and immediate follow  her departure from fort saint George yet that it come within the rule in  equity that a conveyance if different from article shall notwithstanding be  make conformable to a and no instance that article have be alter to make they  similar to a subsequent conveyance and therefore upon this reason the policy  must be make agreeable to the original agreement or minute call the label  formerchants rely so much upon the label that the policy be rare make out in  many instance unless in a case of loss for the defendant the company it be say  that the eyles do not go direct to Bengal but to a place call Massapatan which  be not in the proper road but for the benefit of the captain who stay there  six day mere for the sake of private trade that the loss likewise be not at  fort saint George or on a vogage from thence to England that from fort saint  George to Bengal be a hazardous voyage a ship may safe make the whole voyage  from fort saint George to England and therefore nothing but the strong  necessity can warrant such a voyage and that it be impossible but there must  be timber enough at fort saint George which be undoubted the large settlement  belong to the eastindia company to mend a leak without go such a dangerous  voyage mere to refit Lord chancellor this be proper a question at law whether  it be such a loss as be within the term of the policy the first consideration  be what be the real agreement dly whether there be any breach of this  agreement by a loss within the term of the policy atkins er p now the label be  a memorandum of the agreement in which the material part of the policy be  insert the master the ship name the premium and the voyage in the label the  word be at and from this certain include the continuance at fort saint George  and in the first part of the policy the voyage be describe in the same manner  but in the latter accord to the constant form it point out what shall be call  the risk and the adventure there be confine to the departure only from fort  saint George atkins it have be contend on the part of the plaintiff that it  ought to be construe equal the same as if the word at and from be actual  insert in this part of the policy it be pretty difficult to reconcile the  first part of the policy and the latter but the label make it very clear for  that consider the voyage and the risk as the same and therefore it be only the  mistake of the clerk which ought to be rectify agreeable to the label as to  the second question whether there have be a breach or in other term a loss  this be not so proper determinable in equity two reason have be assign by the  plaintiff counsel for come into this court first that the insurance be in the  name of a trustee if the trustee have refuse the beneficiary and trust his  name in a action at law there may have be some pretence but upon this general  ground only of a trust I shall at this rate determine all policy without give  the company the advantage of a trial second that the loss be plain and clear  accord to the agreement and if it be so to be sure I may determine it here but  this be far from be the case the general principle lie down by the plaintiff  counsel be right as stress of weather and the danger of proceed on a voyage  when a ship be in a decay condition and in such a case if she go to the near  place I shall consider it equal the same as if she have be repair at the very  place from whence the voyage be to commence accord to the term of the policy  and no deviation Guibert v readshaw park on insurance it be a very material  circumstance that the governor order the lade to be take out to show the  necessity of the ship be repair but there be not a syllable of proof why she  may not have be equal repair at fort saint George but there be one part of  this case which differ from all other whatever and that be as to the certain  time the voyage be to commence now the fact be that the ship be lose in July  three week before the time of make this policy so that clear the ship be not  at fort saint George at the time the agreement be make and therefore it be a  material consideration whether this come within the agreement for the  plaintiff indeed it be insist she be at fort saint George the February before  in her voyage to England and that as she go out of necessity to Bengal for the  sake of repair that circumstance must be lie entire out of the case and the  commencement of the adventure must be date from this February when she come  with full intention to proceed for England this observation perhaps may be a  very material one but it be proper merchant shall determine what be usual in  these case a question arise upon settle the issue whether the word in the risk  beginning the adventure from and immediate atkins follow her departure from  fort saint George can not accord to the natural construction be refer to her  first arrival at fort saint George in her way to England Lord chancellor there  be a case before I upon a trial at guildhall where the owner of this very ship  eyles be plaintiff and the royal assurance company defendant and it be then  debate whether the word at and from Bengal to England mean the first arrival  of the ship at Bengal and it be agree the word first arrival be imply and  always understand in policy for these reason his lordship direct the issue in  the manner hereafter mention see city v Selwin post vol it be insist by the  counsel for the company that halhead at the time he come for the policy shall  have compare it withthe label that in case of a variation it may have be  rectify upon the spot before he take away the policy and therefore the  difference though a material one must now prevail there be no colour for this  objection because halhead be a mere agent or servant to the owner of the ship  and not at all necessary that he shall be so exact as to compare the label and  policy at the time he fetch it atkins er p his lordship order the party to  proceed to a trial at law in the court of common plea in London the next term  upon the follow issue first whether by the label whereon the policy be make  out it be agree or intend that the adventure on the ship eyles shall begin  from and immediate on her first arrival at fort saint George in her  homewardbound voyage or at any other and what time second whether the loss in  July be a loss during the voyage and accord to the adventure which be agree  upon or intend to be insure by the say label or memorandum Reg lib b fol N B  on a trial at guildhall the jury find against the company on both issue