1863. KAHNWEILER บ. DOBSON. to sell the saltpetre, or if the plaintiff had ratified the act, then the plaintiff was not entitled to the verdict for the value on the ground of a wrongful sale. Assuming, however, that the sale was rightful, then the question arose how far the defendant was liable; for in that case he would only be liable for so much as he had received. The question would then be whether the bacon and seed had been received by nim as money, or had been sent over specifically against the saltpetre, so as to have been the plaintiff's for better or for worse. In the latter view, how was it that the defendant had not given notice of it to the plaintiff and insured the goods? Another theory was that it was to be inferred that the defendant had desired the New York firm to remit the proceeds of the saltpetre in goods. If so, the goods would be his, and he would be liable to the plaintiff in money; and it was obvious, as he had already observed, that all the difficulty had arisen from the defendant not keeping the plaintiff informed of the remittance of proceeds. On the whole, did the jury think that the sending the saltpetre to New York was not within the authority, and was not adopted by the plaintiff? If so, then he was entitled to the verdict for the value. If it was within the authority, then the defendant was only liable for the proceeds, so far as the proceeds had come to his hands. The jury, in answer to the learned Judge, said they were of opinion that the sale, at New York was within the authority. The learned JUDGE said that if they thought the entire transaction showed that the proceeds were held in effect for the defendant by the New York firm, then he would be in law the receiver of the whole. The jury said they were of that opinion. The learned JUDGE said, in that view, the goods sent home would be the defendant's, and at his risk, and it would be as though he had received actually so much money for the plaintiff. The jury, upon that, at once found for the plaintiff for the value of the saltpetre at New York, that is, 5,600 dollars (a). Verdict for the plaintiff for 9407. (a) The question then arose as to what was the equivalent in sterling money of these 5,600 dollars. In the result the learned Judge suggested a process, multiplying the number of dollars by 4 (the dollar being 4s. 6d.), which would give the product in shillings of them— as 130 are to 100, so would the number of shillings be to the sterling amount; and according to this it would come to 9701. The jury, so far as they could judge, assented to this, as did the counsel on each side, and so the verdict was entered, provisionally subject to a reference to his Lordship in case there should turn out to be any error in amount, and subject also to leave to move for the defendant on a point of law as to his liability for the proceeds as received. In Michaelmas Term, 1863, Bovill moved on the part of the defendant, on the point reserved, that the defendant was not liable for the proceeds of the saltpetre. The Court granted a rule nisi, but COCKBURN, C. J., observed that it would rather appear as if Purdue was the agent of Dobson, the defendant, and, as he understood, the saltpetre was sold and the cash received at New York: and WIGHTMAN, J., observed that the cash had been received at New York. Not by the defendant. COCKBURN, C. J.-But he got it invested in bacon and clover seed to be sent home. Moreover, the agents wrote that they would keep the goods until they had his instructions, and it was to be inferred that he had sent out such instructions, and that the bacon and clover seed were sent in accordance therewith. No doubt the jury had so inferred, and that was the ground on which the verdict went. The COURT granted a rule nisi. 1863. KAHNWEILER v. DOBSON. VOL. III. 3 D F.F. 1863. Surrey Lent Kingston: Civil Court, coram Cockburn, C. J. On a policy on THIS a river steamer, for a voyage from Lyons to Galatz, with a warranty to sail iver steamer belonging to the on or before a certain date, before which it started from Lyons, and reached the seaport at the mouth of the river, whence it ultimately started, after being there made ready for sea, after the date fixed: the question of fact left to the jury was, whether the delay at the seaport was unreasonable. was an action by a French joint stock company "en commandite," for trading in Servia, upon three policies of insurance, each underwritten by the defendant, upon a company, for a voyage from Lyons to Galatz, the vessels being each valued at 6,000l., machinery and hull, and warranted to sail on or before the 15th of August, 1861. On each policy the plaintiffs claimed for a total loss. Pleas: 1. Denying the seaworthiness. 4. That the vessel sailed after the 15th August. Issue. Lush, Q.C., Horace Lloyd, W. Williams and Mathew, for the plaintiffs. Bovill and Sir G. Honyman, for the defendants. The steam-boats were built for the navigation of the Danube, the objects of the company being to develop trade with Servia. Being thus built for river navigation, they were of course fit for the navigation of the Rhone, the river upon which they were built, and proceeded down that river from Lyons to Marseilles, and thence, on a day after the day mentioned in the policy, sailed on their voyage, with a proper crew, and as seaworthy as they could be made as river-built vessels. They were all three lost by foundering at sea in a storm in the Bay of Bourgas, in the Black Sea, within one day's sail of the Danube, their ultimate destination. The main question, as to whether the underwriters were liable, turned out to be a question of law, and was ultimately reserved for the Court, but there turned out also to be a certain question of fact. It appeared that when each of the vessels was insured it was known what was their nature and their destination (a), and the rate of insurance, it was stated, was higher on that account. The point intended to be raised was, whether, as when the vessels started from Lyons on their voyage down the Rhone they were not made fit for sea navigation, they did or did not sail on their voyage on or before the day mentioned in the warranty. As to this, the plaintiffs contended that the voyage consisted of two parts, of which the first part was the passage down the river Rhone; and that was begun long before the day mentioned. They took at Lyons all the equipments for the sea which could be obtained there, and sailed thence with the bonâ fide intention of commencing their voyage. They all arrived at Arles, at the mouth of the Mediterranean, before the 15th of August, and there the captains and crews went on board for the sea voyage. The final sea equipments could only be obtained at Marseilles. The masts could not be put up at Lyons, as there were ten bridges between Lyons and Arles; but the masts were taken on board at Lyons, and the measurements for the sails taken, the sails being provided at Marseilles. The port of Marseilles was only four leagues from Arles, and the vessels arrived there before the 15th of August, the day mentioned in the warranty. They sailed thence, no doubt, after that day; but that did not, it was said, vitiate the policy, as it was no breach of the warranty. The requisite documents for sailing, and especially the permit de navigation, could only be obtained at Marseilles. It was obtained on the 20th of August, and the vessels sailed on the 23rd of August-as soon as they possibly could by reason of the weather. In the Black Sea they all encountered a terrible storm, and on the 14th of October they all foundered. The case for the defence was, that the vessels did not (a) Vide Clapham v. Langton, ante, p. 626. 1863. BOUILLON ET v. LUPTON. 1863. BOUILLON ET V. LUPTON. leave upon their voyage until after the 15th of August, or, if they did, then there was improper delay or deviation at COMPAGNIE Marseilles; for that either at Arles or Marseilles they should have been made seaworthy before the 15th, and that they were not so; that is, seaworthy for a river-going vessel-as seaworthy as such a vessel could be made. In short, the contention for the defence was that, on the 15th of August, the vessels were not seaworthy for the whole voyage. On the other side it was urged, that if a voyage consisted of a passage down a river, and then a voyage across the ocean, it was enough if the vessel in the river was it a state fit for the river. And although the law, no doubt, was that, to fulfil a warranty to sail on a certain day, the vessel must not colourably, but really and honestly, sail on her voyage on that day; here, the plaintiffs contended, this was the case. Lush instanced the case of whaling vessels which did not take in their "whaling" crews till they got to Shetland: and yet, though they were not seaworthy until they got their entire crews, they were admitted to sail on their voyage when they left their port of departure. Bovill cited Arnould on Insurance, and urged that, by reason of the delay, the vessels got to the Black Sea late in the autumn, and so encountered the storm, which they would otherwise have escaped. Lush denied that this was so, and declared that he should show that there had really been no unreasonable delay. Evidence was then gone into on that point, with a view to raise the questions of law intended to be reserved, and it appeared that one vessel might have been ready before, but waited for the other two. At the close of the evidence, COCKBURN, C. J., left to the jury the question whether |