The details were as follows: Upon the 14th of February, 1863, M'Carter, who had from time to time bought guano of or through the now plaintiff's firm, wrote to them, stating that if it suited them to ship soon 100 tons of guano, at 6s. 6d. freight, to be paid for on the 1st of May, they might do so. Upon the 26th of February the plaintiff's firm wrote to M'Carter, stating that they had engaged the Ann and Isabella, to take about 115 tons at 6s. 6d., and that they expected to have the cargo on board about the middle of the next week, and proposed to draw upon him for it at 10l. per ton. M'Carter must have made up his mind to take the cargo thus offered, for he did not write to countermand it; and upon the 2nd of March he effected an insurance through one Joyce of this very cargo, per Ann and Isabella, for 1,200l. Upon the 3rd he wrote complaining that the price charged was 10l. a ton, when it was only 91. 158. net in Scotland, but not refusing it; on the contrary, stating that he expected the usual allowance, which was a matter of course. Upon the 4th of March the cargo was shipped at Liverpool under a bill of lading, making the goods deliverable to the order of George Seagrave & Co. (the plaintiff firm) or to their assigns." The invoice was made out the same day, describing the guano as delivered to the account of M'Carter," according to the letter of the 26th of February. Then the plaintiff's firm, having upon the 4th of March received the letter of the 3rd, effected with the present defendants the policy upon which this action is brought, upon the cargo, valued at 1,150l., to which extent from that time there were two insurances. The plaintiff at that time was at Belfast, and intended to visit Londonderry; and the invoice and bill of lading were forwarded to him, to be handed there to M'Carter. Upon Saturday, the 7th of March, in the evening, the plaintiff arrived at M'Carter's private house upon a visit, and informed him of what had been done; to which M'Carter made no objection. Afterwards upon that night, the ship and cargo were lost. Upon Monday, the 9th, before the loss was known, the plaintiff and M'Carter went to the office of the latter, and there, without more, the bill of lading was indorsed by the plaintiff, and handed to M'Carter with the invoice; and he accepted a bill for the amount. He learned of the loss the same day; but, so far as appears, neither did M'Carter ask to have back, nor did the plaintiff offer to return the bill; indeed, that would have been inconsistent with all that had passed, and especially with M'Carter's tacit assent upon the Saturday evening before the loss, and the payment upon the Monday accordingly. Further, upon hearing of the loss, M'Carter asked, not for his bill, but for the policy effected by the plaintiff, which the latter declined to give, and referred M'Carter to his own underwriters. Both parties, therefore, treated the purchase as being between themselves effectual and binding, which it could not have been unless complete before the loss. Accordingly, M'Carter brought the action in the name of Joyce against his underwriters, and, principally upon his own evidence, with that of the documents, but without calling the now plaintiff as a witness, he established in fact, to the satisfaction of a London jury, under the direction of Lord Chief Justice Erle, and afterwards in law to the satisfaction of this Court, that what the parties, buyer and seller, had agreed to act upon was the true construction of the transaction, and that the sale was complete by the letters of the 26th of February, acted upon by the sellers by shipping on account of M'Carter, and by M'Carter not rejecting the offer, by insuring upon the 2nd of March (the goods being at his risk as well as on his account), by the letter of the 3rd of March, which in this Court was considered as a reluctant assent to take the cargo, by his assent and acquiesence upon the evening of Saturday, the 7th of March, when Seagrave (the plaintiff) informed him of what had been done, by taking the bill of lading, and paying upon the 9th, without any new terms, shewing that the transaction was complete at latest upon the Saturday, and by acting upon the sale as valid after news of the loss.1 The non-indorsement of the bill of lading before the loss did not, it is scarcely necessary to remark, exclude that conclusion

(1) See Joyce v. Swann, 17 Com. B. Rep. N.S. 84.

Coxe v. Harden (4 East, 211) and Browne v. Hare (4 Hurl. & N. 822; s. c. 29 Law J. Rep. (N.S.) Exch. 6). M'Carter, the buyer, thus obtained judgment for 1,2001., and he has been paid 1,150l., the whole amount at which the guano was valued in the policy now sued upon, and he paid the sellers as upon a successful adventure; so that the sellers got all they could have got if the cargo was safe, and thus both buyer and sellers were indemnified against any risk which was insured against by the defendants, and it might have been supposed that the insurers had heard the last of the matter.

It appears, however, that M'Carter was dissatisfied with the amount which he recovered in the name of Joyce, as to the following particulars detailed by him at the trial, viz. 501. of the former verdict not paid, 491. extra costs, 1041. difference between the interest which he recovered and the interest which he had to pay his own bankers, in order to raise money, 201. travelling expenses, not alleged to have come within the suing and labouring clause, or to have had anything to do with the insurance.

The mass of these items was irrecoverable, under any circumstances, against the underwriters upon either policy; and no one of them could by any proceeding be justly claimed against the present defendants. M'Carter, however, took a different view of his rights, and it appears now, plainly, that by arrangement between him and the plaintiff, the present action was brought, in effect to enforce payment of the enumerated items, though, under good advice, a verdict was not sought for the whole 1,150l., a measure which, if resorted to, would, we believe, have so demonstrated the impropriety of the claim as to prevent the actual result of a verdict in the plaintiff's favour.

At the trial of this cause, the plaintiff's case was launched upon his own evidence, which was to the same effect as that given by M'Carter upon the trial of Joyce v. Swann,' with these exceptions: first, that, after the examination by counsel was over, in answer to a question put by the learned Judge (being the question for decision) the plaintiff made the following statement: I made the sale to M'Carter on the 9th;" secondly, that the plaintiff stated, that, instead of being principal in the actual or intended sale, his firm were only commission-agents (not del credere) of Dixon & Co., of the same town. And, although the objection on the score of insurable interest was urged early in the case, the plaintiff's only account of his interest was, that his firm were brokers, not factors; nor did it appear that the guano ever was in their possession as bailees, nor that they had any lien. The evidence was quite bare upon this point; and it is consistent therewith that the guano went straight from the stores of Dixon & Co. to the ship, and that the name of the plaintiff's firm was put in the bill of lading in accordance with a not uncommon practice of brokers to carry on business in their own names, and not because they had any other interest in the transaction. And this appears to be the reasonable conclusion from the evidence of the plaintiff, who gave no further account of his interest than that he acted as broker and agent for Dixon & Co., coupled with the fact that he sought to recover nothing upon his own behalf, but all for M'Carter.

The last additional fact to which the plaintiff was examined, was as to the payment of the bill given him for the price of the guano. At first he stated, "It has not been paid; 2001. or 300l. is still unsatisfied;' The bill has not been satisfied, to a considerable extent;" Messrs. Dixon have suffered a loss." But, upon cross-examination, he said: M'Carter dishonoured the bill at first; it was satisfied by mutual arrangement; we were put to expense by the dishonour and delay,"-not, be it observed, by the loss of the goods.

Now, the only way of reconciling these contradictory statements is to suppose that the 2001. or 300l. spoken of by the plaintiff represent the 2001. or 3001. made up of the items already enumerated as claimed by M'Carter, and which are, by agreement with M'Carter (who is probably a good customer), to be allowed or not allowed to him, according to the event of the present action.

Upon that evidence, without calling M'Carter, the plaintiff relied; whereupon certain objections were taken for the defendants, some of them founded upon mere formal variances, to which we attach no importance, and one which raises the main question, viz. that Dixon & Co., who had been indemnified by payment, and not the plaintiff, were the persons interested in the policy, and that the plaintiff had not proved any interest in the subject-matter of

insurance.

The learned Judge overruled these objections; and the defendants called M'Carter (the real plaintiff) as a witness. M'Carter, like the nominal plaintiff, gave evidence to the same effect as in the former cause of Joyce v. Swann1 with these exceptions, that, after the examination by counsel, he, in answer to a question put by the learned Judge (being the question for decision) made the following statement, viz. "The purchase by me was on the Monday morning, the 9th." As to the bill in payment of the guano, M'Carter stated, "It is paid or satisfied." As to the items of claim already set forth, he added, "I expect to be made good this loss out of the policy now sued on." Such being the evidence, the learned Judge told the jury, that, upon M'Carter's evidence, it appeared to him clear that there was no contract before the 9th of March, at Londonderry, after the goods were lost; and upon that point he took the opinion of the jury, who adopted this direction and found a verdict for the plaintiff. No other question was left to them. With respect to the point of insurable interest, the learned Judge ruled, as matter of law, that the plaintiff had an insurable interest, as an unpaid vendor, and with a bill of lading making the goods deliverable at Londonderry to him or assigns."

The damages were agreed at 2001. (representing the items already mentioned or some of them), in the event of the plaintiff being entitled to retain the verdict.

In the last term a rule was obtained for a new trial upon several grounds, amongst others, a miscarriage, in that the learned Judge rules, as matter of law, that the plaintiff had an insurable interest; and, the matter having been fully argued, and time taken to consider, we are of opinion that the rule for a new trial ought to be made absolute.

In considering the case, three prominent points present themselves: first, that both M Carter and the plaintiff's policies were for the value of the guano only, and not for such extras as M'Carter detailed in evidence; secondly, that this action is for M'Carter's benefit; thirdly, that M'Carter has already received from his underwriters, through Joyce, the whole amount at which the goods are valued in the plaintiff's policy.

It was argued, therefore, that, according to the case of Bruce v. Jones (1 H. & C. 769; s. c. 32 Law J. Rep. (N.s.) Exch. 132), there was a complete answer to any further claim. We need not, however, consider this further at present, as there is no plea to raise the question; and if such a plea be added, it may, if necessary, be discussed upon a future occasion.

Next, it appears that the direction of the learned Judge in point of law, and the finding of the jury in pursuance of that direction, are in conflict with the verdict in Joyce v. Swann,' and the judgment of this Court thereupon, of which verdict and judgment M'Carter has already reaped and now retains the benefit. Nor was the evidence as to the question upon which the verdict passed substantially different from what was offered upon the trial of the former action, save in the answers given to the mixed questions of law and reasoning upon facts proposed to the nominal and to the real plaintiff, and which was the very question to be decided by the Court. Whether such a result can be deemed satisfactory it is at present unnecessary to consider; and the rule hardly raises the point with sufficient distinctness as an objection to the verdict.

Thirdly, and lastly, the report of the learned Judge is distinct. that he thought the plaintiff had an insurable interest as an unpaid vendor, and with a bill of lading making the goods deliverable at Londonderry to him or his

assigns." In this statement of law we are, after much consideration, unable to concur. In point of fact, the now verdict finds that the plaintiff was not "vendor," because it finds that there was no valid sale, and no sale until after the loss. In point of fact also, the evidence of the plaintiff and of M'Carter shews that payment was made by bill which has been paid or settled; so that if the plaintiff was a vendor, he was not an unpaid vendor." This ground failing, and with it the argument that there might be an interest in respect of commission, which probably, like the price, was settled between the parties as upon a valid sale, it remains to consider what is the effect of the plaintiff being named as shipper and consignee in the bill of lading.

That this, as matter of fact, is, prima facie, evidence of interest, we entertain no doubt; but the question is, whether as matter of law it is conclusive that there is an interest, even though the facts should shew that the nominal shipper and consignee is a mere agent, having no lien upon the goods for advances, commission or otherwise, nor the possession or custody of them as carrier, factor, warehouseman or other bailee, nor any liability to account for their loss by the perils insured against,-such as sustained the insurance by a carrier-Crowley v. Cohen (3 B. & Ad. 478); a warehouseman declaring himself a trustee-Waters v. the Monarch Life Assurance Company (5 El. & B. 870; s. c. 25 Law J. Rep. (N.s.) Q.B. 102); a bankrupt or insolvent in possession of after-acquired property by permission of his assignees-Marks v. Hamilton (17 Exch. Rep. 323; s. c. 21 Law J. Rep. (N.s.) Exch. 109); a ship carpenter having a lien for repairs-Tasker v. Scott (6 Taunt. 234; s. c. 1 Marsh. 556); or a person having an equitable assignment-Wilson v. Martin (11 Exch. Rep. 684; s. c. 25 Law J. Rep. (N.S.) Exch. 217). The evidence did. not bring the plaintiff within any of these categories, and the loss which took place was a loss of the goods to the intended seller or the intended buyer, according as the sale was complete or not, and not a loss to the mere intermediate agents.

It was argued that the liability for freight as shipper made an interest; but, by the loss of the goods on the way, the freight was also lost; and if the goods had arrived, the interest was in the shipowner's enforcing his lien, not in the goods themselves.

It was further argued that the bill of lading gave a remedy against the master, and was as against him an estoppel; but even as against the master, the bill of lading was not conclusive if Dixon & Co. chose to interfere, and to insist upon delivery to them; and such delivery would have been an answer to any claim by the plaintiff, as was decided in the case of Sheridan v. the New Quay Company (4 Com. B. Rep. N.S. 618; s. c. 28 Law J. Rep. (N.S.) C.P. 58).

The persons, if any, interested in the policy were Dixon & Co., and not the plaintiff. The property was theirs. The temporary possession of it was that of the ship's master as bailee; the plaintiff, if there was a valid sale, was interested at the outside to the extent of his commission, if it was at risk, which it was not, for it was earned by the fact of sale, and there would be no lien for it against the buyer: and if there was no valid sale, he was a mere agent who had suffered nothing, and incurred no liability by the loss, for he had discharged his functions, save that he held the shipping documents subject to the orders of his employers.

We are not aware that it has ever been held that a mere agent without possession or lien has an insurable interest to the extent of the value of the goods, simply because his name appears in the bill of lading instead of that of his principal; and the general rule is clear that to constitute interest insurable against a peril, it must be an interest such that the peril would by its proximate effect cause damage to the assured.

We are therefore, after much consideration, of opinion that the learned. Judge was wrong in ruling as matter of law, even in the state of facts found by the jury, that there was an insurable interest in the plaintiff.

We were asked to amend the declaration by inserting a statement of interest in Dixon & Co., and, undoubtedly, if Dixon & Co. had sustained a loss, they might have adopted and recovered upon this policy: but we are of opinion that no such amendment ought to be allowed in this case, because the action is in our judgment brought for M'Carter, not for Dixon & Co., who have been paid, and such an amendment might tend to frustrate, and could not tend to promote the decision of the question which this action was brought to try. As to the formal objections raised to the declaration, they may be cured by amendment if and when the plaintiff thinks it worth while. We give the defendant leave to add a plea or pleas, within eight days, upon condition that the plaintiff may within eight days thereafter enter a stet processus and cancel the policy.

For these reasons, and with these directions, the rule for a new trial is made absolute, and we hope we are not outstepping our province if we add a suggestion that, in the event of the matters of law decided by the Court upon this or the former occasion being again contested by either party, the more convenient course will be that such party should be put to raise his objections by bill of exceptions, and thus obtain the benefit of reviewing our decision before a superior tribunal.

Rule absolute.

[IN THE COMMON PLEAS.]

May 2, 4, 1865; Jan. 12, 1866.

HIRSCHFIELD v. SMITH.

35 L. J. C.P. 177; 1 H. & R. 284; L. R. 1 C.P. 340; 14 L. T. 886;
14 W. R. 455; 12 Jur. N.S. 523.

Applied, Rouquette v. Overmann, [1875] E. R. A.; 44 L. J. Q.B. 221; L. R. 10 Q.B. 525; 33 L. T. 420 (Q.B.); Horne v. Rouquette, 1878, 3 Q.B. D. 514; 39 L. T. 219; 26 W. R. 894 (C. A.).

Bill of Exchange-Foreign Bill-Indorsement-Notice of DishonourAlteration.

BILLS OF EXCHANGE. INTERNATIONAL LAW.-A bill was drawn in England payable to drawer's order, directed to and accepted by the drawee in France, payable in France, and was indorsed by the drawer in blank and delivered to the defendant in England, and by him indorsed in blank and delivered to the plaintiff in England, and indorsed by the plaintiff and delivered to one B. in France. The bill was duly presented in France and dishonoured; a notice of dishonour was given-good by the law of France, bad by the law of England; by the law of France an indorsement must state a date and consideration. The plaintiff altered the bill by putting a date and consideration to the blank indorsements; but beyond this, on the special indorsement of the drawer to the defendant was inserted the rate of exchange, and on the face of the bill words purporting to make this part of the acceptors contract:-Held, first, that the notice of dishonour was good, both on the authority of Rothschild v. Currie (1 Q.B. Rep. 43; s. c. 10 Law J. Rep. (N.s.) Q.B. 77), and also because due notice is such notice as can be reasonably required under the circumstances, and it is reasonable to hold that notice of dishonour, valid according to the law of the place where the bill is payable, is reasonable notice for the different countries of the different parties to a bill, unless the particular circumstances of the case are exceptional; but secondly, that the alterations rendered the bill void in the hands of the plaintiff.

This was an action on a bill of exchange. The declaration alleged that