be strictly a property in either the ship, goods, or freight, for, as has been long said, if a man is so situated with respect to them that he will receive benefit from their arriving safely at the end of the adventure, or sustain loss in consequence of their not arriving safely, he has an insurable interest,-see per Lawrence, J., in Lucena v. Crawford (3).

If the assured, before the termination of the adventure, has parted with all interest in the subject matter of the insurance, he can suffer no damage from any subsequent loss, and consequently from the nature of the contract being one of indemnity, he cannot recover in respect of any loss subsequent to his transfer of the property,see Powles v. Innes (4). And, for exactly the same reason, an attempted transfer of the beneficial interest in the policy, before loss, to a person having no beneficial interest in the subject matter is inoperative; for the cestui que trust of the contract, having nothing in respect of which to be indemnified, could recover no indemnity. But after the loss has happened, and the adventure is over, this reason ceases at once. The assured may sell the damaged subject of insurance, thereby, as it were, ascertaining how much his loss is, and yet recover for the loss he has sustained.

It is every day practice, where a ship has sustained damage, to sell the injured hull for the benefit of whom it concerns, and then sue on the policy. If it can be made out that the loss is total, the sale is for the benefit of the underwriters, who pay the total loss. If the loss proves partial only, it is for the benefit of the assured, but no one ever thought of saying that the sale of the damaged hull put an end to the right to recover an indemnity for the partial loss. The reason of the distinction is that, after the loss, the right to indemnify no longer depends on the right of property in the subject matter of the insurance, so far as it still exists, but on the right of property in the thing or the portion of the thing lost. After a loss, the policy of insurance and the right of action under it might, like any other chose

(3) 3 Bos. & P. 75; s. c. 2 N. R. 269.

(4) 11 M. & W. 10; s. c. 12 Law J. Rep. (N.s.) Exch. 163.

in action, be transferred in equity, though at Common Law the action must have been brought in the name of the original contractor, the assignor. Such an assignment may be objectionable on the ground of maintenance or champerty, but it is not necessarily so, and no circumstances are stated on this record to raise such a defence.

It seems to us that the general object of the legislature was to make the right of action on policies of marine insurance assignable at law, and that the assignment of a policy after loss is within the object of the Act. There is a very common form of commercial adventure where goods are sold for a price to cover cost, freight, and insurance payable on receipt of the shipping documents. In such a case the policy and bill of lading are habitually made the subject of sale, whilst the parties are ignorant whether the goods are safe or not. It could never, we think, be intended to except from the Act such cases if it should turn out that the loss accrued before the sale.

The words relied on, in the case of an assignment before loss, express what is necessarily implied and so are superfluous, perhaps inserted pro majore cautela.

In the case of an assignment after the loss, when the policy and "all the rights under and by virtue of it are assigned," it seems to us that the assignee becomes entitled to the property thereby insured, for then it is ascertained that the interest in the damage, the chose in action, is the only property which is covered by the policy; consequently that the words of the Act are literally complied with.

We think, therefore, that judgment on these demurrers should be for the plaintiff. Judgment for the plaintiff.

Attorneys-Swinburne & Parker, for plaintiffs; Fenwick & Stibbard, for defendants.

Practice-Interrogatories-Ejectment.

A defendant in ejectment, who has by the plaintiff been let into possession of the premises, the subject of the action, for a term, and holds over at the expiration of the term without attorning or paying rent to any other claiming title, will not be allowed to interrogate the plaintiff with a view to shew that, at the time of possession being given, the plaintiff's interest was a term of years which had expired before the action.

This was a rule to rescind an order of Hannen, J., made at chambers, ordering one of the plaintiffs to answer certain interrogatories allowed to be administered to him by the defendants.

The action was in ejectment. Two of the plaintiffs sued as devisees in trust of the will of their deceased father, and two other of the plaintiffs sued as devisees in trust of their deceased mother.

The deceased persons were in their lifetime possessed of leasehold terms in the premises which were the subject of this action. The defendant Forrest became tenant for one year, of the premises of the deceased Mrs. Wallen, and occupied as such from June, 1868, to June, 1869. At the termination of that term, he continued to occupy and refused to give up the possession, alleging that Mrs. Wallen's interest in the premises had expired. His father and uncle had been tenants of the premises under two of the Wallens, from 1858 to 1867, and he and his father continued tenants till June, 1868.

The following interrogatories were allowed at chambers

1. Did you not, in the month of June, 1868, or at some other and what time, represent to the defendant, Thomas William Forrest, that you were the agent of your mother, the late Mrs. Wallen being then alive, and as such agent you had authority from her to negotiate with the said defendant as to his taking from her, for the term of one year, the premises in the writ in this action mentioned, and if

* Coram Blackburn, J., and Quain, J.

yea, was not such representation so made by you true in substance and in fact?

2. Did you not, at the same time, or at some other time, represent to the said defendant that your said mother's interest in and title to the said premises would terminate on the 24th of June, 1869, or on some other day in the month of June, 1869 ?

3. Was it not in fact true, that her said interest and title would and did terminate on one of the said days of June, 1869 ?

4. Did not the said premises belong to and form part of the estate of your late father, Joseph Wallen? Did not your late mother, the late Mrs. Sarah Wallen, die before the 11th day of March, 1871 ?

5. Of whom did your late father hold the said premises, and when did the term vested in him expire? Did it expire on the 24th, or some other day of June, 1868 ?

6. Has or have not your late father, or your late mother, or the trustees of your father's will, or the execntors of your mother's will, or yourself, as agent for your mother or otherwise, paid rent to any one, and if so, to whom, in respect of the said premises, and if yea, was any rent paid after Midsummer, 1869 ?

Barnard shewed cause.-The defendants are entitled to these interrogatories. They are not denying that the plaintiff's had a title when they took the lease from them, but they say that the title which they had has expired by effluxion of time.

[BLACKBURN, J.-They let you into possession, and the reversioner has not interfered. QUAIN, J.-You are in the position of a tenant inquiring into your landlord's title.]

The estoppel under a lease by deed ceases with the interest of the landlord. In ejectment, interrogatories are allowed on matters of pedigree connected with the plaintiff's title-Flitcroft v. Fletcher (1). Interrogatories are allowed respecting the plaintiffs' title in ejectment, which may be objectionable in other actionsFinney v. Forwood (2). The defendants

(1) 11 Exch. Rep. 543; s. c. 25 Law J. Rep. (N.S.) Exch. 94.

(2) 35 Law J. Rep. (N.s.) Exch. 42; s. c. Law Rep. 1 Exch. 6.

want to know to whom we may safely pay

our rent.

Gibbons, in support of the rule.-These interrogatories are objectionable on the ground that they are intended to inquire into the weakness, if any, of the plaintiffs' title. This is not an action by a mere stranger, against a person who has been long in possession, but the plaintiffs here are the legal representatives of the party by whom the defendants were let into possession. There are no special circumstances to induce the Court to allow these interrogatories. No bona fide defence is shewn. The defendants have been let into possession by the plaintiffs, they have paid no rent to them or to anybody else since 1869, and they have not given up possession of the premises to them or anybody else-Flitcroft v. Fletcher (1) has been reflected upon in Stoate v. Rew (3), and Pearson v. Turner (4), which cases point out the distinction between the circumstances of such a case as this and that. [He also cited Compton v. Earl Grey (5); and Bolton v. Corporation of Liverpool (6).]

BLACKBURN, J.-We think these interrogatories should not be allowed. The plaintiffs were in actual possession of the land in question, and are to be taken to be the owners in fee unless something be shewn to the contrary. The defendants have possession given to them for a term which has expired; they have, therefore, to take a new lease, or give up the property to their lessors whose title they are estopped from denying. They do neither. They appear to have no defence. There is, however, one exception to that rule of estoppel, and that is, where the title of the lessor has expired by effluxion of time subsequently to possession being given, and then it has been held that the lessor cannot by action of ejectment compel the party whom he has let in to restore this possession. Here, however, interrogatories are sought to be put to the

(3) 14 Com. B. Rep. N.S. 209; s. c. 32 Law J. Rep. (N.S.) C.P. 160.

(4) 16 Com. B. Rep. N.S. 157; s. c. 33 Law J. Rep (N.s.) C.P. 224.

(5) You. & J. 154.

(6) 3 Sim. 467; s. c. 1 Myl. & K. 88, and 1 Law J. Rep. (N.S.) Chanc. 166.

NEW SERIES, 41.-Q.B.

plaintiffs, not to shew that they were mere wrongdoers, but to inquire whether they were not leaseholders, and whether the lease had not expired. I think they are not entitled to our assistance, to make such a discovery for the purposes of such a defence. Had it appeared that the defendants had attorned to another person who set up title, or that they had paid rent, or given up the premises to some other person claiming title, their position would have been different. My brother Hannen, when this rule was moved for, complained that his attention had not been called at chambers to the fact that the defendants were wrong doers. They are simply squatters. We cannot grant interrogatories to inquire into the prima facie title of the plaintiffs, for the purpose of enabling these defendants to find a flaw. We should be aiding a fishing application if we granted these interrogatories.

QUAIN, J.-I am of the same opinion. No authority, either at common law or in equity, has been brought before us to justify us in allowing these interrogatories. The defendants have been holding over for three years without paying any rent to anyone, and now want us to aid them in finding a flaw in the plaintiffs' title, to enable them to keep possession for themselves of what the plaintiffs let them into possession. The case of Flitcroft v. Fletcher (1) has been considerably doubted. Erle, J., in Stoate v. Rew (3), says, “If a man has long been in possession of an estate, and a stranger comes to dispossess him, the defendant may call for some general information as to the nature of the title which is to be made against him.” Now that is not this case. Here a person seeks for information to enable him to find a flaw in the title of the person letting him into possession, by which he may be enabled to hold on the premises as his own.. I think the rule to rescind the order allowing these interrogatories should be made absolute.

Rule absolute.

Attorneys-Billing & Venn, for plaintiffs; S. Prentice, for defendants.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Queen's Bench.)

1872. Feb. 13.

}

TOLEMAN v. PORTBURY AND
ANOTHER.*

Landlord and Tenant-Covenant not to permit Sale by Auction on demised Premises-Bill of Sale-Power therein to sell on Premises-Auction-Breach of Covenant Ejectment-Particulars of BreachesWaiver of Forfeiture.

The plaintiff demised a house to C., who covenanted not to permit or suffer any sale by auction to take place on the premises. C. subsequently granted a bill of sale under seal assigning his goods in the house as security for a loan, and empowering the grantees to sell them by auction on the premises in default of repayment. He next mortgaged the house by an under lease to the defendant, and, finally, executed a deed of assignment conveying all his estate to trustees for his creditors; he nevertheless remained in possession. The grantees of the bill of sale sold the goods by auction on the premises. The plaintiff brought an action of ejectment, and, in compliance with a judge's order, delivered particulars of the following breaches of covenant, upon which she relied as causing a forfeiture of the lease, namely, first, non-payment of rent accrued since the day of the sale; secondly, the permitting and suffering a sale by auction to take place on the premises. Pursuant to an order under the Common Law Procedure Act, 1852, s. 212, and the Common Law Procedure Act, 1860, s. 1, the arrears of rent were tendered to the plaintiff, and being refused, were paid into Court, whereupon the proceedings on the first breach were stayed, but the action went to trial on the second. The jury found that C. permitted the sale :-Held, that he had power to do so, notwithstanding the conveyances of his estate, and, having done so, had committed an act of forfeiture which was not waived by the plaintiff stating in the particulars of breaches, the non-payment of subsequent rent.

Decided in the sittings after Hilary Term, coram Kelly, C.B.; Byles, J.; Bramwell, B.; Channell, B.; Pigott, B.; Brett, J.; Cleasby, B.; and Grove, J.

CASE stated under the Common Law Procedure Act, 1854, on appeal by the defendant, Reed, from a decision of the Court of Queen's Bench (1).

2. This was an action of ejectment, tried at Westminster, before Hannen, J., in Trinity Term, 1870, when leave was reserved to the defendant, Reed, to move to set aside a verdict obtained by the plaintiff, and to enter a verdict for the defendant upon the following points reserved at the trial:

3. First, that the lessee, Candler, had no power to give a lawful permission for the sale by auction on the premises demised to him by the plaintiff by indenture of lease.

4. Secondly, that the forfeiture by permitting such sale was waived by bringing this action for a forfeiture for non-payment of rent accrued due after knowledge by the plaintiff of such sale, and by the plaintiff treating the tenancy as existing after such knowledge.

5. The Court of Queen's Bench, on motion by the defendant, Reed, calling on the plaintiff to shew cause why the verdict obtained by the plaintiff should not be set aside, and a verdict entered for the defendant, Reed, instead thereof, on the several points reserved at the trial, refused a rule on the first point, and granted a rule on the second point.

6, 7. [Rule nisi, dated the 13th of June, 1870; and rule dated the 25th of January, 1871, discharging same, set out.]

8. The action was commenced on the 1st of April, 1870, by a writ of ejectment directed to the defendants, Portbury and Johnson, and all persons entitled to defend the possession of all that messuage or tenement, situate and being No. 7, Westbourne Grove, late No. 4, Sussex Terrace, Westbourne Grove, Bayswater, in the county of Middlesex, together with all ways, &c., to the possession whereof the plaintiff claimed to be entitled, and to eject all other persons therefrom.

9. The defendant, Reed, on the 22nd of April, 1870, by leave of Court appeared to the writ, and defended as landlord for

(1) 40 Law J. Rep. (N.s.) Q.B. 125; s. c. Law Rep. 6 Q.B. 245.

the whole of the messuage, tenement, and premises therein comprised.

10. The following are the particulars of the breaches of covenant for which this ejectment was brought, delivered pursuant to the order of Mellor, J., dated the 23rd of April, 1870, namely, the non-payment of 3661. 15s. for three years' rent of premises No. 7, Westbourne Grove, late 4, Sussex Terrace, Westbourne Grove, in the county of Middlesex, from the 25th of March, 1867, to the 25th of March, 1870.

The permitting and suffering a sale by public auction to take place on the premises No. 7, Westbourne Grove, &c., on the 25th of May, 1867, without the consent in writing of the said plaintiff first had and obtained, contrary to the covenant contained in the lease made between the said plaintiff of the one part, and one Candler of the other part.

11. Order of Court of the 9th of May, 1870, made under section 212 of the Common Law Procedure Act, 1852, and section 1 of the Common Law Procedure Act, 1860, "that it be referred to one of the Masters to compute the rent and arrears of rent due from the defendants to the plaintiff, and to tax the plaintiff's costs of this action up to to-day, including costs of this application and occasioned thereby, and upon the defendants paying to the plaintiff or her attorney in this action, or in case either of them shall refuse to accept the same, paying into Court what the Master shall find due and allow for the said rent and arrears and costs, all further proceedings in this action be stayed, so far as relates to the breach for non-payment of rent."

12. The rent and arrears of rent and costs were accordingly computed. The amount of the rent was tendered to the plaintiff and refused on the 30th of May, and the defendant, Reed, then paid into Court the sum of 3661. 9s. for the rent and costs, pursuant to the said order.

13, 14. At the trial the following facts were proved:-By the lease dated the 23rd of March, 1860, made between the plaintiff of the one part, and the said Candler of the other part, the premises described in the writ of ejectment were demised by the plaintiff to Candler, his executors, administrators, and assigns for

twenty-one years, from the 25th of March, 1860, at the yearly rent of 1221. 5s., payable quarterly. By the indenture of lease Candler for himself, his heirs, executors, administrators, and assigns, covenanted with the plaintiff and her assigns, that Candler and his assigns would not permit any sale by public auction to take place on the said premises without the consent in writing of the plaintiff, the said Eliza Toleman, her executors, administrators, and assigns.

15. The lease also contained a covenant on the part of Candler and his assigns, not to assign or underlet the premises without the consent of the plaintiff, which consent the plaintiff should be bound to give in favour of any responsible and respectable person.

16. The lease contained also the usual proviso for forfeiture and re-entry on non-payment of rent, or in case of the breach or non-observance of any of the covenants on the lessee's part sustained.

17. On the 2nd of April, 1867, the plaintiff, by license under her hand of that date, gave and granted her consent to Candler to demise and lease or underlet the premises to the defendant, Reed, his executors, administrators, and assigns, for the term of fourteen years from the 25th of March, 1867, less three days.

[Copy of license set out.]

18. On the 11th of April, 1867, by an indenture made between Candler, thereinafter called the mortgagor, of the one part, and William Edgeley and James William Clements Aylett, thereinafter called the mortgagees, of the other part, in consideration of the loan of 501. the mortgagor assigned unto the mortgagees all and singular the goods, chattels, and effects of the mortgagor then being in and upon the house and premises situate at No. 7, Westbourne Grove, and No. 18, Cornwall Road, then occupied by the mortgagor, and it was thereby further declared and agreed that in case default should be made in payment by the mortgagor, then it should be lawful for the mortgagees immediately and whenever they should think fit, to sell and dispose of the goods and chattels or any part thereof, on or at the said therein before mentioned house or premises where the said