not material, as to the franchise for coroners; but the freehold must be of the same nature as that which, if worth 40s., would qualify to vote for the knights of the shire. And the right of fishing, also, is not a several fishery, but at most common of piscary in gross. [*865 Further, supposing that an equitable freehold qualified an elector, the inhabitants have not got equitable freeholds. The trustees may alter the by-laws; so that the interest of the inhabitants is not freehold; Davis v. Waddington, 7 M. & G. 37 (E. C. L. R. vol. 49).

Lush, contrà.-First, the interest of Raggett is a freehold. The definition of a freehold in Co. Litt. 42 a, is familiar. "If a man grant an estate to a woman dum sola fuit," "or as long as the grantee dwell in such a house," "or for any like uncertain time, which time, as Bracton saith, is tempus indeterminatum: in all these cases" "the lessee hath in judgment of law an estate for life determinable." So that the possibility that, by an alteration in the by-laws the interest of Raggett may, at some uncertain time, cease, does not affect the question. The power to alter the by-laws is not arbitrary, and therefore does not make this a holding at will; Beeson v. Burton, 12 Com. B. 647 (E. C. L. R. vol. 74). The rights of the inhabitants in the present case are assignable, under sect. 13, (a) which is strong to show that they are not precarious. Part of these rights at least are legal. The right of common in gross is a tenement; Rex v. Dersingham, 7 T. R. 671. It is said in the passage referred to from Dalton on Sheriffs, 333, ch. 92, that common in gross gives no vote: but no authority is cited for this; and in the same passage he says that common appendant or appurtenant is to be taken into account, which is inconsistent. [Lord CAMPBELL, C. J.-The distinction which Dalton takes is intelligible. *Where common is appendant there is a substratum, as it were, [*866 of freehold, to which it is attached; and it enhances the value of that. Where it is in gross, there is no such freehold at all. I give no opinion as to the distinction being sufficient; but it is intelligible.] A commoner who is disseised may have an assise; Com. Dig. Common, (I). [Lord CAMPBELL, C. J.-That cannot be the test of freehold or not, for this purpose. An assise lay for an office.] Then an equitable freehold gave a vote at common law. [COLERIDGE, J.-How could a cestui que trust appear in the county court? Besides, there is nothing at common law to prevent the trustee from voting; so that, according to you, there might at common law have been two freeholders voting on one qualification.]

T. C. Foster was heard in reply.

Lord CAMPBELL, C. J.-I am of opinion that Raggett had no right to vote. It is clear that the right to vote for coroner now depends on the common law; for stat. 58 G. 3, c. 95, has been repealed, and so the common law restored. We have therefore to inquire what was, at

common law, the right to vote for knights of the shire and coroner; for it was the same. And that right was confined to those who were freeholders; that is, to those who possessed a legal estate of freehold; and so it continued down to stat. 7 & 8 W. 3, c. 25, s. 7, which affected the voters for knights of the shire only, and stat. 58 G. 3, c. 95, s. 2, which enacted that no person shall be allowed to vote for coroner, "for or by reason of any trust estate or mortgage, unless such trustee or mortgagee be in actual possession or receipt of the rents and profits of such estate; but that the mortgagor or *cestui que trust in pos*867] session shall and may vote for the same estate, notwithstanding such mortgage or trust." But this enactment is repealed, and the common law as to voters for coroner restored. Now, in the present case, the legal right of Raggett, at the very most, was no higher then common in gross. We have the high authority of Dalton, that common in gross gives no vote for a knight of the shire; and, if so, it gives none for coroner.

COLERIDGE, J. Stat. 58 G. 3, c. 95, is repealed. If we looked at the language of that Act alone, I think the conclusion would be that it for the first time created a franchise in the cestui que trust in possession, which did not previously exist; and that it, for the first time, enforced a restriction on the right to vote of him who had the legal estate but not the equitable estate in possession, whose qualification was taken away and transferred to the cestui que trust: and, if we look at the common law authorities before the Act, this is confirmed. In this case the legal right of Raggett, supposing it to amount to common in gross, gives no vote. For that we have the authority of Dalton.

ERLE, J.-I agree that it is not established that Raggett had a right to vote. His legal claim is at most common in gross, which, according to Dalton, gives no vote. If he had an equitable freehold, it would not, I think, give him a right to vote; but I think he makes out nothing higher than an equitable interest held at discretion.

(CROMPTON, J., had left the Court.)

Judgment for the Crown.

*AUGUSTUS SILLEM, DREDRICH HEINRICH GADECHENS, and FREDERICK DOENIG, v. RICHARD THORNTON. June 6.

[*868

By a policy executed in London, on 7th April, 1851, premises in California were insured against fire for a year from 1st February, 1851. The premises were described in the policy as "a brick building used as a dwelling-house and store (described in the paper attached to this policy)." The paper attached gave a minute description of a two-storied house, with what purported to be a certificate that the description was accurate, signed on 30th October, 1850. The description was, in fact, accurate up to March, 1851; in which month the assured altered the house by adding a third story. This was unknown in London when the policy was signed. In May, 1851, the house, thus altered, was destroyed by fire. In an action on the policy, on a case stating the above facts:

Held, that the description in the policy amounted to a warranty that the assured would not, during the term insured, voluntarily do anything to make the condition of the premises vary from that description, so as to increase the liability of the assurer: that this warranty was broken; and, consequently, that the plaintiffs could not recover.

ASSUMPSIT (a) against an underwriter for 16007., on a policy of assurance against loss by fire, for a year, from 1st February, 1851, to 1st February, 1852, on "a brick building, used as a dwelling-house and store, described in a paper attached to that policy," situate at San Francisco, valued at 40007., payable within thirty days after proof of loss. Averment of a total loss by fire, and that thirty days had elapsed after proof thereof. Breach: Non-payment.

Pleas. 1. Non Assumpsit. Issue thereon. 2. Denial of the loss: conclusion to the country. Issue thereon. 3. Denial of the lapse of thirty days: conclusion to the country. Issue thereon. 4. That, after the making of the policy, and before the loss, plaintiffs, without the knowledge or consent of defendant, materially altered the premises, so as thereby to vary and increase the risk: verification. 5. That, by the paper attached to the policy, plaintiffs warranted that the building was, &c. (the plea then set out the description): that defendant [*8€9 subscribed the policy, confiding in that warranty: that the building did not answer that description, either at the time of the making the policy, or at the commencement of the risk on 1st February, 1851 verification. 6. That the policy was obtained by misrepresentations, and concealments of facts known to plaintiffs, material to the risk and the amount of premium: verification.

Replications to 4th, 5th, and 6th pleas: De injuriâ. Issues thereon. On the trial, before Lord Campbell, C. J., at the London Sittings. after last Trinity Term, the verdict passed for the plaintiffs, subject to the following case.

The plaintiffs are the agents of Messrs. Godeffroy, Sillem & Co., who are merchants, at San Francisco in California. The defendant is an underwriter in the City of London. Messrs. Godeffroy, Sillem & Co. were, from the month of October, 1850, to the time of the fire hereinafter mentioned, the owners of a brick building, used as a dwelling(a) The issue was complete before The Common Law Procedure Act, 1852, came into operation.

house and store, situate at the corner of Clay and Leidesdorff Streets at San Francisco in California, built in September, 1850. In the month of October, 1850, being desirous to effect an insurance against fire upon the building, they transmitted to their agents a description of the building, as it then stood, being the description hereinafter mentioned as annexed to the policy of insurance effected with the defendant. The cost of the original building, so described, was 6000l.; it was valued in the policy at 40007. In March, 1851, Messrs. Godeffroy, Sillem & Co. were desirous to erect a third story to the building. They commenced doing so on the 26th of March, 1851; and, between that date and the time of the fire hereinafter mentioned, the following alterations and additions were made. The *walls of the original building were *870] carried up to make a third story, and the roof put upon that story, the new walls being carried up in all to the height of 13 feet, of which three feet were above the new roof. The new walls were 123 inches thick; the new roof was not covered with zinc or other metal; it was composed of a layer of brick, a layer of cement, and then another layer of cement. The original building remained, the roof being flat and not having been interfered with; but the reservoir was, on the 2d of May, 1851, taken from the top of the old roof, and placed upon the top of the new roof, that being necessary in order to allow of the completion of the improvements in the interior of the additional story: such removal was intended to be permanent, and to be made to communicate with the requisite pipes. When the reservoir was so removed, four hogsheads of water, communicating with the water pipe so that they could be refilled as often as necessary, and containing 240 gallons, were placed on the old roof which had then become the floor of the additional story. In addition to this, the old roof could be flooded with water by means of a pipe connected with the pump. The reservoir, from the time when placed on the new roof, up to and at the time of the fire, had a foot of water in it. There was no feed pipe attached to it, and no communication with the force pump, or other means of filling it with water adapted to it. There was no pipe on the new roof with holes in it, or other means capable of maintaining a constant or any stream of water over such roof. Nor were there any means of supplying water to such roof, except by buckets. There were four openings for windows in the new story: shutters of iron had been ordered for them, but had not been sent home; and they *had no shutters During the fire, These works cost

*871] of any sort up to or at the time of the fire.

these holes were stopped up with wet blankets. 10001. They are to be taken as not having increased the hazard or probability of fire, except so far (if at all) as the increase of the area of a building by a third story may be considered by the Court to have necessarily increased such hazard or probability. On the 7th April, 1851, the plaintiffs, as agents for the said Messrs. Godeffroy, Sillem &

Co., effected with the defendant a policy of insurance for 16001., as follows. "In the name of God Amen. Whereas Messrs. Herman, Sillem, Son & Co., merchants, London, have paid six guineas per cent. premium or consideration to us who have hereunto subscribed our names, to insure from loss or damage by fire a brick building used as a dwelling-house and store (described in the paper attached to this policy), situated at the corner of Clay and Leidesdorff Streets at San Francisco in California, and belonging to Messrs. Godeffroy, Sillem & Co. of San Francisco, valued at 4000l. sterling, from noon on the 1st day of February, 1851, to the 1st day of February, 1852, at noon: Now know ye that we, the insurers, do hereby bind ourselves, each for his own part, and not one for another, our heirs, executors, and administrators, to pay to the said Herman, Sillem, Son & Co., executors, administrators, and assigns, all such damage and loss by fire not exceeding the sum of within thirty days after such loss is proved, and that in proportion to the several sums by each of us subscribed against our respective names, without any deduction whatsoever, or any allowance for average or charge on what may be saved, unless the said Herman, Sillem, Son & Co. shall make any further insurance in any of the public offices or elsewhere, during the *continuance of this policy; in [*872 which case the insured is to make a declaration of the same by endorsing such sum he so insures, in the public offices or elsewhere, on the back of this policy; and we the insurers will then be contented to pay our equal average on the loss sustained, with the said public offices or elsewhere. In witness whereof we have subscribed our names and sums of money by us insured. Dated in London, the 7th day of April, 1851, 16007. Richd. Thornton, p. W. T. West, sixteen hundred pd." The paper mentioned in the policy as annexed thereto was as follows. "Description of brick store on the corner of Clay and Leidesdorff Streets. Frontage on Clay Street 30 feet, on Leidesdorff Street 591 feet more or less. The house is composed of two stories without a basement story. The ground floor is 12 feet, the upper one 10 feet, in height: the walls from the foundation to the upper story of 16 inches thickness: the ground floor is paved with marble slabs: the roof is composed of a layer of cement on wood and covered with zinc: the walls around the same are raised 3 feet on two sides, and on the south side about 9 feet, there being at present a wooden building adjoining. On the roof is a reservoir containing about 600 gallons of water: this is supplied from an artesian well on the ground floor, 100 feet deep, in connexion with which is a powerful force pump, by which the first floor is also constantly supplied with water; the roof is also so constructed that, by means of a pipe, extending the whole length of the same, and supplied at certain intervals with holes, a constant stream of water can be maintained over the entire roof by working the pump on the lower story. The window and door frames are attached towards the interior