Ex parte Torrens. officer, such as the Mayor or a Councillor who has imposed and collected a fine for violation of the law, and has neglected to pay it over to the Treasurer within the time required by the Charter. The language of the Act ought to be clear and free from ambiguity, before we should be justified in putting a construction on it which will deprive a party of an office to which he has been elected under the Charter. We do not, however, consider it necessary absolutely to decide this question, for reasons which we shall state hereafter. As to the moneys received by the Mayor for rents and licenses, it is clear there has been no default in the payment of them; for by the Act 30 Vict. cap. 37, sec. 4, it is enacted "that the Mayor and all officers entrusted with the collection of the revenue of the city, shall at the close of the fiscal year make up and submit to the Council a detailed statement of the moneys so received, which statement shall be verified by the oath," &c. By the 2nd section of this Act, the fiscal year ends on the 31st October, consequently the time has not yet arrived for the Mayor to account for those monies, and he cannot be a defaulter in respect to them until he neglects to comply with the law. This Act also seems to recognize a distinction between the "revenues" of the city, and "fines, penalties and costs" imposed for breaches of the by-laws, because the former are not to be accounted for till the end of the fiscal year, whereas the latter are to be accounted for and paid over monthly. If this is not so, then the Act 30 Vict. cap. 37, virtually repeals the 22 Vict. cap. 8, sec. 86, and the Mayor is not bound to account for any moneys in his hands till the close of the fiscal year. Admitting, however, that the true construction of the Act is that the Mayor was bound to pay over to the City Treasurer on the first Monday in each month all fines collected by him, and that he was a "defaulter" by not doing so, we think that no sufficient case has been made out to entitle the relator to a quo warranto information. The granting of such informations is entirely discretionary, Bac. Ab. "Information." (D); Rex v. Trevenen (2 B. & Ald. 479); Rex v. Parry (6 A. & E. 810). It is not charged that the acts complained of produced any injustice or inconvenience to the corporation, or that the Mayor acted from any corrupt or improper motive in not strictly complying with the law; and where the amount in his hands at the time of granting the rule was so small, and it appears to us that the motives of the relator in making the application, were rather his opposition to the Mayor than a desire to see the law strictly obeyed, we are not disposed to allow the proceedings of this Court to be made use of to enable parties to carry on their personal disputes; for, as said by Lord Denman in Rex v. Parry (6 A. & E. 820), that however clear in point of law the objection may be to a party's abstract right to retain his office, yet the Crozier v. The Phoenix Insurance Company. Court has frequently refused to interfere upon the ground of the interest, motives or conduct of the relator. For these reasons we think the rule must be discharged. As to the costs. Had the Mayor been free from blame, and paid over the fines monthly, as the Charter requires him to do, we should most certainly have discharged this rule with costs; because there is in Torren's affidavit, to say the least, a clear suppressio veri with respect to the $80 which the Mayor was charged with improperly retaining, whereby a serious imputation was cast upon the Mayor; and which was the more unjustifiable because Torrens was present at the City Council when the Mayor was authorized to make the payment, and when the Council approved of his having done so, and was cognizant of the whole transaction. But as the Mayor's proceedings in respect to the fines have been irregular, and in contravention of a most wholesome provision of the Charter, which we think cannot be too rigidly adhered to, we shall discharge the rule without costs. Rule discharged. CROZIER V. THE PHOENIX INSURANCE COMPANY. OCTOBER 29, 1870. Plaintiff, whose stock of goods in his store was insured by defendants by a policy under seal, sold them to A., taking notes in payment. Subsequently, at the office of defendants' agent, and by his consent, he indorsed on the policy that he thereby assigned it to A., having sold him the goods. This assignment was entered on defendants' books, but not made under seal, and A. was not informed of it. The first note being unpaid, plaintiff by consent of A., took back the goods, and possession of the store. They were afterwards consumed by fire. Held, That the assignment on the policy was invalid, and that plaintiff could recover under the policy for the loss. Weldon, J., dissentiente; Fisher, J., dubitante. Where, in an action to recover insurance, the defendants' witness contradicted the plaintiff as to the value of goods lost by fire, but the jury were properly directed as to the measure of damages, the Court refused to disturb their verdict, even though they might have given less had they been on the jury. The plaintiff's attorney testified that he met defendants' agent in the street, and said he had the proofs ready except a certificate, which he feared he could not get in the time required by the policy; that defendants' agent said it made no difference, but to get the proofs as soon as he could. Defendants' agent denied this conversation. Held, This was evidence of waiver to go to the jury. This was an action of covenant on a policy of insurance against fire, made on 16th September, 1861, and renewed from year to year until the 22nd July, 1868, when the loss took place. By the terms of the policy the plaintiff was insured for the sum of £1,000 currency on a stock of merchandize, hazardous and not hazardous, contained in his two-story wooden store, at Grand Falls. At the trial before Crozier v. The Phoenix Insurance Company. ALLEN, J., at the Victoria Circuit, it appeared that in November or December, 1867, the plaintiff sold the stock of goods insured with the exception of a few articles to the Messrs. Amiraux, and removed from Grand Falls to St. John. An inventory was taken, and the sale made for the sum of $3,498, the purchase money to be paid in three instalments, for which the Amiraux gave notes; the first for $1,000, payable 1st July, 1868; the second for $1,200, payable on 1st July, 1869; and the third on 1st July, 1870, for the balance. At the same time Crozier took from Amiraux a bond and warrant of attorney as security, on which no judgment has been entered up, and the notes still remain in plaintiff's hands unpaid. On June 3rd, 1868, the plaintiff called at the office of C. W. Weldon, the defendants' agent in St. John, and stated that he had sold the goods insured in the policy, and had been informed that the policy was then of no value. Weldon replied, if he had parted with the property, that was the case. After some conversation, he got Weldon to endorse on the policy the following, which he signed: I hereby assign the within policy to H. H. Amiraux and J. W. Amiraux, of Grand Falls, having sold the property insured to them; retaining however in case of loss, a lien for any balance of the purchase money due on the amount secured by the said policy. Dated 3rd June, 1868. THOMAS CROZIER. This was at the plaintiff's request entered by the agent on the books of the company, and the agent assented to the transfer being made; and mentioned at the time that by the terms of the policy the interest could only be transferred by the assent of the agent. Amiraux was not aware of the assignment. The first note being unpaid, plaintiff went to Grand Falls about 1st July, 1868, and at this time the Messrs. Amiraux left Grand Falls and went to Violet Brook, State of Maine, leaving their father in charge of the store, and plaintiff got the key of it from him. Plaintiff saw them, and they sent Bossy their clerk with him to make an inventory of the goods remaining unsold in the store, which was completed on the 8th July, and they were found to amount to $1,630.80, in addition to which there was in the store a quantity of other goods of plaintiff, of which a list was made, but their value not put down. Bossy left plaintiff in possession. The fire took place on 22nd July; and on the 26th Rainsford at the request of plaintiff, wrote to Weldon informing him of the fire. This note was received on the 30th. By the 8th condition of the policy, parties assured are required within fourteen days at furthest after notice of loss, to deliver in as particular an account of their loss or damage, signed by their own hands, as the case will admit of. In this account, the property and articles must be specified in detail, with the quantities, qualities, and Crozier v. The Phoenix Insurance Company. prices; and the assured must make proof of the same by his oath or affirmation, and by his books of account, or proper vouchers if` required, no profit or advantage of any kind to be included in such claim; and if there appear any fraud, overcharge, or imposition, or any false swearing, the claimant shall forfeit all claim to restitution or payment by virtue of the policy. The plaintiff went to Messrs. McLeod & Beveridge to have the proper proofs prepared. Beveridge states that on the 8th or 9th August (which was before the fourteen days had expired,) he met the defendants' agent, Weldon, on the street, and stated to him that he had the plaintiff's affidavit of the loss, and was prepared to furnish him with the preliminary proof, but could not get the magistrate's certificate required, without sending to Grand Falls. Weldon said it made no difference; he only wanted them in time to send by the next English mail. Beveridge replied that the English mail left in three days, and he doubted whether he could get the papers back in that time. Weldon told him to get them as soon as he could. On the 19th August, the plaintiff took to Weldon the preliminary proofs setting forth a loss of $3,035. Weldon denies the conversation with Beveridge, and states that when the plaintiff handed him the proofs, he said to him that he would forward them to the head office in England, but would not waive anything. Davidson, a clerk in Weldon's office, corroborates the last statement, and says Weldon told the plaintiff that the papers were too late. On the part of the defendants, Bossy, the clerk of Amiraux, was produced to certify that the goods destroyed were not worth over $900, and Messrs. Amiraux further swore they were not worth $700. A nonsuit was moved for on the following grounds: 1. That there was no evidence of preliminary proof of the loss being furnished within fourteen days, as required by the 8th condition of the policy. 2. That there was no evidence of waiver of the requirements of the 8th condition. 3. That no preliminary proof whatever was furnished, as required by the terms of the policy; it having been assigned to the Amiranx, the proof should have come from them. 4. The indorsement having been made on the policy transferring it to the Amiraux, and at the plaintiff's own instance and request he was now estopped from showing that the property was in him, and not in the Amiraux. 5. That there was no re-transfer of the goods to the plaintiff by the Amiraux, to entitle the plaintiff to recover. The learned Judge refused to nonsuit the plaintiff, but reserved the points for the Court above. He told the jury that plaintiff was entitled to recover under the policy for any goods belonging to him in the store at Grand Falls at the time of the fire, provided the 8th Crozier v. The Phoenix Insurance Company. condition of the policy had been complied with or waived. He left it to them to find whether the goods had been re-transferred to and were the property of the plaintiff at the time of the fire, and also whether the defendants' agent had waived the 8th condition with regard to the receipt of the preliminary proof within fourteen days. If they found for the plaintiff on these points, the measure of damage would be the amount it would cost to replace at Grand Falls goods of a similar description, age, &c., to those that had been destroyed. Verdict for plaintiff. Duff, Q. C., in Michaelmas Term last obtained a rule nisi for a nonsuit on the points reserved, or for a new trial on the grounds of misdirection on the part of the learned Judge in directing the jury as above stated, and that the damages were excessive, and the verdict against evidence. A. L. Palmer, Q. C., and McLeod, showed cause in Hilary Term. As to the first and second points for nonsuit, it is quite clear that if there was not a compliance with the eighth condition of the policy, requiring proof within fourteen days, there was sufficient evidence of wavier to go to the jury, and the judge was justified in so directing; and they having found that the defendants' agent waived compliance with this condition, the verdict cannot be disturbed on that ground. 3. It was contended that an assignment being indorsed on the back of the policy, the preliminary proof should have been put in by Amiraux. That involves the fallacy that the assignment was good, and that the plaintiff had no insurable interest. We contend there was no actual assignment of the policy by that indorsement; the clause on the margin of the policy under which the assignment professes to be made, could at most only authorize an assignment of the policy in equity. At all events, the action could only be brought in the plaintiff's name. A mere assignment of a policy works no change in the relation of the parties, I Phil. on In. 380-84; Dig. of In. cases, p. 670. Under that arrangement, Amiraux could not recover, 2 Am. Ldg. cases, 616. An assignee cannot recover in his own name, unless there is a provision in the policy to that effect, Beamer v. Anchor Insurance Company (16 U. Canada, Q. B. 485). The Amiraux did not assent to the assignment and knew nothing of it, therefore it is void. But a more fatal objection is, that the contract of insurance being under seal, cannot be varied by a mere indorsement in writing. 4. It is contended that plaintiff is estopped by his indorsement on the policy from saying that the property is not in the Amiraux. We submit there can be no estoppel; there was no transfer of the policy at all, but if it had been, we are not estopped from saying that we received it back again. 5. They say we had no |