217. It has also been shewn in what cases proof of notice may be dispensed with by an acknowledgment on the part of the defendant of his liability. Where the payee of a note indorses it for the accommodation of the maker, it is still necessary to give notice to the payee in order to charge him, and it is no defence that it was agreed between the parties that the note should not be put in force. Free v. Hawkins, 8 Taunt. 92.

Evidence under the common counts.] An indorsement is evidence of money lent by the indorsee to the indorser. Kessebower v. Tims, Bayley on Bills, 288,

Competency of Witness.

Maker.] The maker of a promissory note is a competent witness for the plaintiff, in like manner as the acceptor of a bill of exchange; and one of the joint makers of a note is a competent witness for the plaintiff, to prove the signature of the defendant, the other joint maker. York v. Blott, 5 M. & S. 71. In an action by the indorsee against the payee of a note, the maker may be called to prove an alteration. Levi v. Essex, 2 Esp. Dig. 211., 4th ed. And he may be called to prove a notice, in an action by indorsee against indorser. Venning v. Shuttleworth, Bayley on Bills, 422.

It was held that, at common law, a joint maker of a promissory note, is not a competent witness for the defendant to prove a plea of illegality of consideration in an action brought against the other maker alone. Nor was he rendered competent by having paid the plaintiff half the amount of the note before action brought, the note bearing interest on the face of it, and a year's interest having been due at the time of the payment; for he would have been liable for contribution in respect of such interest. Slegg v. Phillips, 4 A. & E. 852. But stat. 3 & 4 W. 4. c. 42. sect. 26. has rendered a joint maker competent for the other maker; for contribution could not be obtained from him without producing the record of the recovery against the defendant. Russell v. Blake, 2 M. & G. 374. In an action by payee against one of three joint makers, another of the makers was held competent for the plaintiff to prove the making, though he stated on the voire dire that he and the other maker (not sued) signed as sureties of the defendant, and that his co-surety was insolvent. Page v. Thomas, 6 M. & W.733.

Indorser.] The indorser of a note is in general a competent witness either for the plaintiff or defendant, in an action by a subsequent indorsee against the maker. But the payee of a note made for his accommodation, who has become bankrupt and obtained his certificate subsequently to the date of the note, was held (before 3 & 4 W. 4. c. 42.) not a competent witness for the defendant, the maker, to prove that the note was indorsed to the plaintiff after it became due; for he was no longer liable to the plaintiff, though he still remained liable to the defendant, if the latter should be compelled to pay the note. Maundrell v. Kennett, 1 Camp. 408. (n). The payee of an accommodation note, who has indorsed it to the plaintiff, was held competent for the plaintiff to prove that he indorsed it for a valuable consideration; having an equal interest on both sides. If the plaintiff succeeds, the

witness becomes liable to the defendant; if the defendant succeeds, the witness remains liable to the plaintiff. Shuttleworth v. Stephens, 1 Camp. 407.

ASSUMPSIT ON POLICIES OF MARINE INSURANCE.

By a traverse of the allegations in the declaration, the plaintiff may be called upon to prove the following facts; viz., the subscription or execution of the policy by the defendant; the interest of the party as averred; the putting of the goods &c. on board, when the policy is on goods; the inception of the risk compliance with warranties, if any; a licence, for the purpose of legalizing the voyage, in some cases; the loss; and the amount of it.

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Proof of the policy.] On a plea of non assumpsit, the policy must be produced and proved; and if subscribed by an agent of the defendant, the handwriting and authority of the agent must be proved. If the authority was in writing it should be produced. The authority may also be proved by shewing that the defendant has recognised the act of the agent in this instance, or in other similar instances in which the same agent has subscribed policies for the defendant; Neal v. Erving, 1 Esp. 61.; and where a witness stated that he was authorized by power of attorney, but added that the defendant had been in the habit of paying losses upon policies which the witness had subscribed in his name, Lord Ellenborough ruled that the power of attorney need not be produced. Haughton v. Ewbank, 4 Camp. 88. Brockelbank v. Sugrue, 5 C. & P. 21. Where a witness proved the agent's handwriting, and swore that he had often observed him sign policies for the defendant, but had not seen any general power of attorney from the defendant to the agent, nor did he know that the defendant had given any authority to sign the specific policy, nor was he acquainted with any instance in which the defendant had paid a loss upon a policy so subscribed, the proof of agency was held incomplete. Touse, I Camp. 43.

Courteen v.

Parol evidence of statements made by parties at the time of effecting the policy is not admissible for the purpose of controlling its operation. Weston v. Emes, 1 Taunt. 115. But the usage of trade will be regarded in the construction of it, and every underwriter is supposed to be acquainted with it. Noble v. Kennoway, 2 Doug. 510., and cases cited in Park on Insurance, Ch. ii. See antè, p. 11. 13, 14.

A com

Interest in the ship, how proved.] The interest in the ship, as stated in the declaration, may be proved, primâ facie, by evidence of possession of the ship; or of acts of ownership, as directing the loading of the ship, purchasing the stores, paying the people employed, &c. Amery v. Rogers, 1 Esp. 207. Thomas v. Foyle, 5 Esp. 88. mon inode of proof is to call the captain or master, who will prove that he was appointed and employed by the parties; and though it should appear, on cross-examination, that the plaintiff claims under a bill of sale, it is not, on that account, necessary for him to produce the bill, or the ship's register, unless such further evidence should be rendered

necessary in support of the primâ facie case of ownership, in consequence of the adduction of contrary proof. Robertson v. French, 4 East, 137. The certificate of registry is not even primâ facie evidence of ownership in favour of the plaintiff; for though registration is necessary to complete the title, it is not therefore evidence of it. Pirie v. Anderson, 4 Taunt. 652. Where the interest is averred in parties who have never been in possession of the ship, it will be necessary to prove the ownership of the persons under whom such parties claim, and the derivative title from them, viz. the bill of sale, and the registry of the ship according to the last register act, 3 & 4 W. 4. c. 55. ss. 31. 34. As to the proof of registration, and the effect of such proof, see antè, pp. 85. 151.

Interest in goods, how proved.] The interest in the goods may be proved, primâ facie, like the interest in the ship, by evidence of possession and acts of ownership. It is also frequently proved by the production of the bill of lading. A bill of lading directing the delivery of the goods to the consignee is evidence of interest in him; and where made deliverable to the consignor, and indorsed by him either specially or in blank, it is evidence of interest in the indorsee, or holder. M'Andrew v. Bell, 1 Esp. 373. Lickbarrow v. Mason, 2 T. R. 71. The signature of the deceased master to the bill of lading, as it has the effect of charging himself, is evidence of the interest of the consignee ; but not if the master qualifies his acknowledgment by the words "contents unknown." Haddow v. Parry, 3 Taunt. 303. Nor is the captain's signature evidence, if he is alive. Semb. Dickson v. Lodge, 1 Stark, 226. Where, to prove property in a cargo by purchase beyond seas, the plaintiff produced a bill of parcels of one Gardener at Petersburgh with his receipt to it, and proved his hand, Lee C. J. admitted it as evidence against the insurers. Russel v. Boheme, 2 Stra. 1127. By statute 5 G. 4. c. 94. s. 2. any person (after 1st October, 1826) intrusted with, and in possession of, any bill of lading, dock warrant, warrant or order for delivery of goods, &c., shall be deemed and taken to be the true owner of the goods, so as to give validity to any contract for sale of the goods, or any deposit or pledge, provided there be no notice, by the documents themselves, that the person intrusted, as aforesaid, was not the actual owner. An averment that the plaintiffs were interested in the profits arising from the sale of goods which H. and Co. had sold to them, is not satisfied by shewing a void verbal agreement for the sale to the plaintiffs not capable of being enforced against H. and Co. Stockdale v. Dunlop, 6 M. & W. 224.

Interest, variance in proof of.] A material variance in proof of the alleged interest will be fatal. Thus, where it is averred that the interest is in a single person, and that the policy was made on his account, and for his use and benefit, and it is proved that the interest is in several, and that the policy was made on their joint account, it is a fatal variance. Bell v. Ansley, 16 East, 141. Carruthers v. Shedden, 1 Marsh. 416. S. C. 6 Taunt. 14. But if it be averred that the plaintiff was interested at the time of effecting the policy, it is sufficient to shew that he was interested at the commencement of the risk. Rhind v. Wilkinson, 2 Taunt. 237. Where a policy averred the interest to be in A. B., who was interested at the time, it is sufficient to prove an

adoption of the policy by A. B. after the loss. Hagedorn v. Oliverson, 2 M. & S. 485. By the new rules of pleading, interest may be averred in A. B. C. and D., "or some or one of them." The interest of a shipowner in the profit expected from carrying his own goods in it, is properly described and insured as freight. Ďevaux v. J'Anson, 5 New Ca. 519.

Inception of the risk.] Where the vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage or risk must be given. Koster v. Innes, R. & M. 336. This may be proved by some of the crew; or proof of a particular destination by charter-party will afford a presumption that she sailed on the chartered voyage; so proof of her clearing out for a particular port is evidence that she set sail for that port when she dropped from her moorings. Per Lord Ellenborough C. J., Cohen v. Hinckley, 2 Camp. 52. Marsh. Ins. 715. So proof of a convoy-bond for a particular port, signed by the captain, coupled with the testimony of the customhouse officer that a certificate and other papers for such a voyage would, in the regular course of office, be delivered to the captain before he sailed, together with proof of his sailing, has been held evidence of the ship having sailed on such voyage. S. C. ibid. A licence for the port mentioned in the policy is evidence to the same effect. Marshall v. Parker, 2 Camp. 69. If the declaration avers that the ship sailed after the making of the policy, but in fact it was before, the variance is not material. Peppin v. Solomons, 5 T. R. 496. A policy on a ship "at and from a place, attaches during her stay there before she sails. Palmer v. Marshall, 8 Bing. 79. But where the policy is on freight "at and from," &c., it attaches only when the ship is at the place in a condition to begin to take in her cargo. Williamson v. Innes, Ibid. 81. (n). S. C. 1 M. & Rob. 88. Where the ship, being in a condition to receive the cargo, was lost by an accident in endeavouring to get her out of dock, and thereby became unable to take the cargo on board, and the policy on freight covered "all perils, losses, and misfortunes," it was held that the risk attached. Devaux v. J'Anson, 5 New Ca. 519. It seems that the opinion of brokers and merchants is admissible to shew when the outward bound risk determined, in order to shew when the homeward bound risk commenced. Camden v. Cowley, 1 W. Bl. 417.

Shipment of the goods.] The shipment of goods on board is usually proved by the captain; and, if he be dead, the production of the bill of lading and proof of his handwriting will be evidence of the shipping, as well as of the interest. Haddow v. Parry, 3 Taunt. 306. The copy of an official paper, made in pursuance of an act of parliament by an officer of the customs, containing an account of the cargo and a report of the goods on board, is evidence to prove the shipping. Johnson v. Ward, 6 Esp. 49. See antè, p. 146, 147.

In an action upon a policy on freight, the assured must shew that some freight would have been earned, either by proving that some goods were put on board, or that there was some contract for doing so. Flint v. Flemyng, 1 B. & Ad. 48.

Compliance with warranties.] Where the policy contains a warranty, a literal and strict compliance with it must be proved; it is not suffi

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cient to shew something_tantamount to a performance. Pawson v. Watson, Cowp. 785.; 2 Saund. 200. c. (n); Weir v. Aberdeen, 2 B. & A. 320. To satisfy a warranty to depart" on or before a particular day, the vessel must be out of port on or before that day; a warranty to sail" is satisfied by the ship breaking ground and getting under weigh. Moir v. Roy. Ex. Ass. Co., 3 M. & S. 461. S. C. 6 Taunt. 241.; and see Lang v. Anderdon, 3 B. & C. 495. But unless she is unmoored, the warranty to sail is not complied with. Nelson v. Salvador, M. & M. 309. Sailing before the vessel has got her clearances and is equipped for the voyage, is not a sailing within the warranty. Ridsdale v. Newnham, 3 M. & S. 456. It is not satisfied by the ship leaving the harbour on the day without a sufficient crew on board, though the remainder of the crew are engaged and ready to sail. Graham v. Barras, 5 B. & Ad. 1011. Where a vessel sailed from St. Anne's, Jamaica, within the time of warranty, with her cargo and clearances on board, and called at another port in Jamaica for convoy, where she was detained by an embargo till after the time of warranty, it was held that this was a sufficient sailing from Jamaica. Bond v. Nutt, Cowp. 601.; Thellusson v. Fergusson, 1 Doug. 361. A warranty to sail on a certain voyage not after a certain day, it is complied with by getting out of the dock, and endeavouring to leave the harbour in the prosecution of the voyage. It might be otherwise, if the warranty were to sail from some particular terminus. Cockrane v. Fisher, 1 C. M. & R. 809.

To prove the sailing with convoy, the log-book, or the official letter of the commander of the convoy is evidence. D'Israeli v. Jowett, 1 Esp. 427.; Watson v. King, 4 Camp. 275.; antè, p. 147.

On a policy on goods, in order to prove a warranty that the ship insured was a Danish ship, proof of her carrying the flag of that nation at times when she was free from the danger of capture, and that the captain addressed himself to the consul of that nation in a foreign port, was held prima facie evidence. Arcangelo v. Thompson, 2 Camp. 620. Under a warranty of neutrality it is sufficient to shew that the ship was neutral when the risk commenced. Eden v. Parkison, 2 Doug.

732.

There are also certain implied warranties, the breach of which will prevent the plaintiff from recovering; as that the vessel is seaworthy; but it is sufficient if she is seaworthy at the time of sailing. Annen`v. Woodman, 3 Taunt. 299. Prima facie a ship is to be deemed seaworthy; Parker v. Potts, 3 Dow, Parl. C. 31. ; but where the inability of the ship to perform the voyage becomes evident in a short time from the commencement of the risk, the presumption is that it arises from causes existing before her setting sail on the intended voyage, and that the ship was not then seaworthy; and the onus probandi, in such case, rests with the assured to shew that the inability arose from causes subsequent to the commencement of the voyage. Per Lord Eldon, Watson v. Clark, 1 Dow, Parl. C. 344.; see also Douglas v. Scougall, 4 Dow, Parl. C. 269. The insured are not entitled to recover unless they equip the ship with every thing necessary to her navigation during the voyage. Law v. Hollingsworth, 7 T. R. 161. A ship is not fit for a voyage unless she sails with a complete crew; a crew competent for the voyage, consider. ing its length and the circumstances under which it is undertaken. Therefore where, on a voyage from Mauritius to London, there was no one on board competent to supply the captain's place in case of illness,