and averred the interest in one count to be in himself, and, in another, in himself and others, to which the defendants pleaded that a less sum was due on the policy than for a total loss, and set off monies due to them on the plaintff's bond, made before they had notice that any other than the plaintiff was interested in the policy, these pleas were holden bad. ib.; 5 M. & S. 439.

6. Of the Evidence upon the trial.

Upon the trial the plaintiff must begin by proving every material allegation contained in his declaration. If any of the facts of the case on either side have been agreed to be admitted, these admissions are reduced into writing, and signed by the attornies on both sides, and, being read, they supply the place of actual proof. (2 Marsh. 712.) The rules of evidence are in general the same in trials upon policies of insurance as in other matters, and there appear to be no cases in the books containing points of evidence peculiarly applicable to trials upon policies of insurance against fire.

Policy.—The policy must be produced and proved because it is the best evidence of the contract. If the agent of the defendant subscribed the policy, the authority of the agent must be regularly proved; and this may be done by the person who subscribed as agent, or by the power of attorney, or other writings of the defendant, by which he was appointed; or it would be sufficient to show that the defendant has recognized his act on this particular occasion, or that he has recognized him on several other occasions as his agent for subscribing policies. 2 Phil. Ev. 36. Neal v. Irving, 1 Esp. R. 61. Brockelbank v. Sugrue, 5 C. & P. 21. In this last case, it was held, that a memorandum indorsed on a ship's policy of insurance for a change of voyage, and signed by an agent of the company, it was sufficient to prove that the agent had signed similar memorandums on many other policies, and that his habit was to do so, and advise the company of it; though when a new policy was required, he always sent the proposals to the company :—and that the other policies on which such memorandums had been signed, need not be produced. If it appears that the agent was appointed by a power of attorney, and if there is no evidence of any recognition of the agent's authority, it seems necessary to produce the written authority. See Johnson v. Mason, 1 Esp. R. 89. In the case of a partnership, the confession of the members of the company would be good evidence of the authority of an agent. Odiorne v. Maxcy, 15 Mass. R. 39. And the confession of one member of the co-partnership, of any fact tending to bind the whole, is unquestionably good evidence against the whole. ib. But the authority of even a general agent must necessarily be restrained to the transactions appurtenant to the business of his principal, 13 ib. 181, S. C. Posterior adoption and ratification of the agent's acts, is equal to previous authority. Fisher v. Willard, 13 Mass. 379.

Where a power of attorney signed by the defendant was given to 15 persons by name, "jointly or separately, to sign and underwrite all such policies of assurance as they or any of them should jointly or separately think proper :" Held, that this was to be construed as a joint and several authority; and that

the plaintiff might maintain an action on a policy underwritten by four of the persons therein named. Guthrie v. Armstrong, 1 D. & R. 248; 5 B. & A. 628. Semble, that, under a power of attorney by A to B "to underwrite any policy of insurance not exceeding £100, and to subscribe to the same his (A's) name, and to settle and adjust losses,” &c., although B cannot delegate his whole authority to another, yet, having signed a slip for the policy of insurance, the signature of his clerk for him, and in his absence, to a policy made in pursuance thereof, is a good execution of the power, that being only a ministerial act, which he might authorise another to do for him, but he must himself execute the power in all matters in which his judgment and discretion are requisite. In the present case, the policy, after it was so executed by the clerk of B, having been shown to A, who then offered terms of settlement, it was held that A adopted the act of B. Mason v. Joseph, 1 Smith, 406. And where the agent of a corporation was appointed only by parol and received the premium in another state where his agency was, held, that the corporation was bound to indemnify the insured although the premium had not been received from the agent before the loss; and that it did not lie with the company arbitrarily to say they would not recognize the rate of premium, or would not be satisfied with the risk; and they were accordingly decreed to indemnify the assured. Perkins v. Washington Ins. Co., 4 Cow. 645. In this case, no policy had been executed.

Interest.—Upon an issue, whether the plaintiff was interested in goods destroyed by fire, if a witness called by the plaintiff states that invoices of the goods, and letters of advice, purporting to be written by him at Edinburgh, were fabricated in London after the fire, by the plaintiff's direction, it is competent to the plaintiff to call other witnesses to disprove the alleged fabrication, and show the genuineness of the documents. Friedlander v. London Ass. Co., 1 Nev. & M. 31.

Where the question was, whether a bankrupt had an interest in the goods insured at the time of the loss? It was held that the effect to be given to the stoppage of goods in transitu, was, to rescind the contract, and to revest the property in the original owners, so that the bankrupt after the stoppage in transitu, had no property in the goods insured; and therefore, his assignee could not support an action on the policy. Clay v. Harrison, 10 B. & C. 93.

A bill of lading, signed by the master, and indorsed to a bona fide holder by the consignee is a transfer of all interest in the goods to the indorsee: "it conveys the property upon a bona fide indorsement, in the same manner as a direct delivery would do, if so intended." Lord Ellenborough in Newson v Thornton, 6 East, 40. Though the assignment be made after the arrival of the goods in port. Chandler v. Belden, 18 John. 157. But a mere indorsement of a bill of lading, without a delivery of it, does not transfer the goods. Buffington v. Curtis, 15 Mass. 522. By a delivery of the goods to the master, of which the bill of lading is the evidence, the property vests in the consignee, subject only to be divested by the consignor, by the exercise of his right of stoppage in transitu, in case of the insolvency of the consignee, Ludlow v. Bowne, 1 John. 15, 16; Potter v, Lansing, ib. 215. The bill of lading is not conclusive

evidence of property. Thus, in an action of covenant on a policy of insurance, the defendants gave evidence that the property belonged to the plaintiff and another as stated in the bill of lading; and contended that the plaintiff was concluded from denying it: but the court said;-"The covering of property does not conclude the person interested, so as to estop him from proving the truth of the case. The Maryland Ins. Co. v. Ruden, 6 Cranch, 338. A bill of lading signed by a deceased master of a vessel for the delivery of goods to a consignee, is evidence of property in the consignee; it requires only proof of the master's signature. Haddon v. Parry, 3 Taunt. 303; and, if he is alive, proof of his signature will be equally sufficient for this purpose, though it would not be evidence of the shipping of the goods, as it would in the case of his death; but where the master, who had signed the bill, made a memorandum upon it, that the contents of the boxes were unknown, it was held, that the document was no evidence of an interest in the consignee. ib.

It seems necessary, also, in addition to the proof of the master's signature, and of that of the indorser, where the plaintiff's interest arises from the indorsement of a bill of lading, to give evidence of the shipping of the insured goods. Interest in a cargo is proved by the master or the mate, or other person at the time the articles were brought on board. Peyton v. Hallett, 1 Caines, 363. If the master has deceased, then the bill of lading is evidence of the shipment of the goods. Haddon v. Parry, 3 Taunt. 303; Dickson v. Lodge, 1 Stark. N. 226. Abstracts also from the books of merchants abroad have been admitted as evidence of the shipment of goods when supported by other proof. Beel v. Keely, 2 Yeates, 255. But the notarial copy of an agreement made in Philadelphia respecting the loading of a vessel insured, was rejected; the original being in the hands of an agent abroad. Donatle v. Ins. Co. of North America, 4 ib. 275. And letters of the captain were held to be sufficient proof, without the invoices or bills of lading. Crousillat v. Ball, 3 ib. 375. A copy of an official report of the cargo of a ship, made under legislative authority by an officer of the customs was admitted as proof, that the insured property was put on board. Johnson v. Ward, 6 Esp. 47. A clerk in the custom house testified that it was a copy of the official paper, which contained an account of the cargo, which has been examined by the searcher; the official paper goes with the ship, and the paper produced is kept at the custom-house; and Chambre, J. admitted it as a paper made by authority of an act of Parliament and lodged in the office of customs as an official document of the ship's cargo.

The Shippers of goods received orders before the declaration of war, but in consequence of embarrassments before executing the orders, made an assignment to their bankers for advances and requested the consignees to remit the amount to the bankers, the invoice being for account and risk of the consignees, but stating the property to be in the bankers: Held, that the property in the goods notwithstanding vested in the consignees; the same having been purchased and shipped in pursuance of their orders. The Mary & Susan, 1 Wheat. R. 25. To make the shipment of goods a delivery they must be shipped in consequence of some contract of sale. The Frances, 8 Cranch,

359, 418. In that case the property in the goods will vest in the purchaser, though consigned to another. But where the goods were consigned to the purchaser, and the bill of lading was sent to the agent of the shipper, with directions not to deliver the goods until paid, the property will continue in the shipper. The Merimact, 8 Cranch, 317; 1 Wheat. 208.

The bill of lading represents the property, and any bona fide title for valuable consideration obtained by a transmission or negotiation of the bill of lading, gives as valid and effectual title to the goods, as could be obtained by an actual delivery of the goods themselves. Per Shaw. C. J. in Rowley v. Bigelow, 12 Pick. 307. And although the original contract be fraudulent, yet where the purchase is accompanied by delivery of the goods, it is only voidable, at the option of the vendor; and in the meantime a bona fide purchaser from such fraudulent vendee will acquire a valid title to the goods. ib. Therefore, though the vendor in such case can reclaim his property as against the vendee, or any other person claiming under him and standing upon his title, he cannot as against a bona fide purchaser without notice of the fraud. The ground of exception in favor of the latter is, that he purchased of one having a possession under a contract of sale, and with a title to the property though defeasible and voidable on the ground of fraud; but as the second purchaser takes without fraud and without notice of the fraud of the first purchaser, he takes a title freed from the taint of fraud, Parker v. Patrick, 5 J. R. 175. The same rule holds in regard to real estate. Somes v. Brewer, 2 Pick. 184. And where the delivery of the goods sold was on board of a vessel appointed by the vendee to receive them, not for the purpose of transportation to him, or to a place appointed by him to be delivered there for his use, but to be shipped by such vessel, in his name, from his own place of residence and business to a third person; Held, that such delivery was a termination of the transit, and the right of the vendor to stop in transitu was at an end. v. Adams, 7 Taunt. 59. Rowley v. Bigelow, supra.

Noble

Payment of money into court precludes defendants from objecting that the averment of interest is not substantiated. By Ld. Ellenborough, 16 East, 146. But payment to the amount of a partial loss in a valued policy is not an admission of a total loss. Ruckster v. Palsgrave, 1 Taunt. 419–3 ib. 162. And in an action on a valued policy, the payment of money into court upon a count which states a total loss, is not an admission of such total loss by capture. ib.

Payment of money into court generally upon a declaration containing a count on a policy of insurance, and the money counts, is only an admission of the contract, but does not preclude the defendant from disputing his liability, beyond such payment, for goods which were not loaded according to the terms of the policy. Mellish v. Allnutt, 2 M. & S. 106. In other words, the defendant may still insist that the loss complained of did not result from a breach of the particular contract. In a special count on a policy, the risk was stated to continue until the ship was unloaded, and there were common counts: -Held, that the premiuin having been paid into court generally was an admission of the contract stated in the special count. Andrews v. Palsgrave, 9

East. 325.

Payment of money into court in an action for work and labor generally, where full particulars were annexed to the record, shews only a liability for some work and labor, and is merely evidence which may be coupled with other facts, so as to shew a total or partial liability on the particular claim; and that the effect of such payment is not altered in this respect by the rule of Trin. 1 W. 4. which requires a particular of demand to be annexed to the declaration. Measer v. Smith, 4 B. & Ad. 47.

Proof of interest as averred.-A material variance between the interest, averred in the declaration, and that proved at the trial, is a ground of nonsuit. The allegation on whose account, and for whose benefit the policy was made, is a material allegation, and the statement ought to be strictly conformable to the fact. Thus, where the interest was alleged to be in a single person, and the policy purported to be made on his account, whereas in fact several were jointly interested, and the policy was made on their joint account, the variance was held to be fatal. 2 Phil. Ev. 41, 42 and cases cited. In this respect, there seems to be no essential difference between a fire and a marine policy; the insurer in either case is entitled to have it stated truly upon the record, whose interest the policy was to protect. But where an averment in a declaration on a policy was that A. B. C. D. and certain persons trading under the firm of Messrs. E. & F. & Co. were interested in the property; Held sufficient on a motion in arrest of judgment; but quære, whether the uncertainty as to the names of the persons who compose the firm is a ground of special demurrer. It is sufficient at the trial to prove that there is such a firm, without proving the names of the persons who compose the firm. Wright v. Welbie, 1 Chit. R. 49. Where the policy was effected in the name of the agent, as agent for the plaintiff'; and on the trial he sought to recover a loss for the use of third persons, who were alone interested in the property: Held, that the action could not be maintained. Parsons, C. J. observed “The alteration of the policy from the old form, was because the assured would know the persons, for whom they would answer. But if any man having no interest, nor calling himself agent to excite the enquiry of the underwriters might cause himself to be insured, the intent and design of the alteration of the policy would be defeated, and the underwriters entrapped to insure the property of a man, whose property they must suppose they had not insured. Russell v. The New England M. Ins. Co.. 4 Mass. 82.

named in the declaration. parties as plaintiffs, the dehimself of it, as a

Variance. The contracting parties should be 3 Taunt. 106. In case of the omission of proper fendant may plead the non-joinder in abatement; or avail variance, under the general issue, to nonsuit the plaintiff, or if the defect appear upon the pleadings, may demur, or bring a writ of error, and where the action is founded upon a deed, may crave oyer and then demur. 2 Phil. Ev. p. 42 and cases cited in notes. The want of proper plaintiffs in actions on contract, is an exception to the merits, and is to be taken advantage of, either on demurrer, in bar, or on the general issue, but not by plea in abatement. Per Parsons, C. J., in 6 Mass. 460; 1 B. & P. 67. Where the title is not wholly in one, and where the right of action depends on a title, which is al