sequestration of the estates of the said Andrew Purdon, and the appointment of a judicial factor thereon;" and praying the Court

"to recal the appointment of the said Alexander Kirkwood as factor foresaid, to sequestrate the estate and effects of the said Andrew Purdon, and to nominate and appoint the said William Paterson to be factor in the management of the said trust-estate, with the usual powers."

The Court then ordered intimation in common form. Act. Buchanan; John Cullen, W.S. Agent.-T. Clerk.— [W.G.T.]

20th November 1849.

FIRST DIVISION.

No. 10.-ARCHIBALD SMITH and others, Pursuers, v. JOHN FLEMING and Co. and others, Defenders. Insurance, Maritime-Bottomry--A vessel was insured on a valued policy from August 1841 to August 1842. She was again insured, at the same value, from August 1842 to August 1843. At the trial of an action on the first policy, it appeared that the vessel suffered disasters in the course of the voyage covered by that policy; that the master repaired her at a cost greater than her value when repaired; that the money for these repairs was borrowed on a bottomry bond executed in December 1842; and that the vessel sailed home in a state of perfect repair. All this was unknown in August 1842, when the second insurance was effected. In the action on the first policy, it was held that the owners were barred from recovering as for a constructive total loss, having elected to treat the disaster as a partial loss. In an action to recover premiums on the second policy-Held, 1. That the vessel having been under repair and on her voyage home during the currency of the second policy, a risk had been run within the meaning of that policy, and, therefore, that premium was due. 2. That the owner's insurable interest had not been extinguished by the bottomry bond, in respect it was entered into after completion of the contract of insurance. Insurance, Maritime-Bottomry-Statute 19 Geo. II. c. 37Question, Whether the rule applied by this statute to the East India trade, as to the insurable interest of bottomry lenders and borrowers, is of general application?

Construction-Verdict-In an action against underwriters, the issue sent to trial was, whether there had been a total loss, and whether the insured value was due to the pursuers. The pursuers had a verdict, with leave to enter it up for the defenders if the Court should decide that the pursuers were barred from recovering as for a total loss, in consequence of abandonment having been necessary, and not having been made in due time, or of the pursuers having elected to treat the case as one of partial loss. The Court entered up the verdict for the defenders. Opinion, That, by doing so, they not only held the pursuers barred from recovery, but also that they thereby decided that no total loss had taken place. This was an action against the owners of the ship "William Nicol," to recover payment of premiums amounting to £290, due under a policy of insurance on that vessel, subscribed by the pursuers on 6th August 1842. It was a time policy-the risk being for twelve months, from 18th August 1842 to 18th August 1843. It was also a valued policy-the value of the vessel being therein fixed at £6000. By its terms, the owners "made assurance, and caused themselves, and them and every of them, to be insured, lost or not lost, at and from 12 o'clock at noon of the 18th August 1842, till 12 o'clock noon of the 18th August 1843, being for the space of twelve calendar months, in port and at sea, in all places, lawful services and trades, whatsoever and wherever."

The defence was, that, in May 1842, before the policy sued on was effected, the vessel had been totally lost, so that no risk had ever been run by the insurers, there being no insurable subject in existence at the date of the insurance.

At the time of the alleged total loss, the "William Nicol" was under the protection of a previous policy, in

which she was insured at a value of £6000 for twelve months, from 18th August 1841 to 18th August 1842. The insurers, with two exceptions, were the same as the pursuers of the present action.

The owners raised an action against the insurers on this prior policy. It appeared, at the trial, that, in May 1842, during the currency of this policy, a loss was sustained while the vessel was on a voyage to Bombay; that she was obliged to bear away in a dismantled state for the Mauritius, where she sustained farther damage by striking on a reef in the harbour of Port Louis; that the master caused her to be repaired for a sum greater than her value when repaired, for which sum he granted a bottomry bond on 20th December 1842; that the vessel, being fully repaired, left the Mauritius during that month, and arrived in London in March 1843; that she was then abandoned to the underwriters, who refused to accept this abandonment; and that, ultimately, she was seized and sold by the bottomry creditor. The issue was, whether the pursuers were entitled to recover as for a total loss; and the verdict was as follows:

"Find for the pursuers, with leave to the defenders to move the Court to enter a verdict for the defenders if the Court shall decide in their favour on the following points-viz. whether the pursuers are barred from recovering as for a total loss, in consequence of abandonment having been necessary, and not having been made in due time; or of the pursuers having elected to treat the case as one of partial loss: Subject to which questions, as questions of law arising on the evidence, as appearing on the judge's notes, this verdict is returned."

This verdict was afterwards applied by the following judgment (See ante, vol. xviii. p. 319):

"Find that the pursuers are barred from recovering as for a total loss, in respect they were bound, and failed, to abandon the vessel in due time to the defenders; and also, that they elected to treat the loss as partial: Therefore, appoint the verdict to be entered up for the defenders, subject to the ascertainment of the amount due to the pursuers as for a partial loss."

This judgment was affirmed by the House of Lords. (See ante, vol. xx. p. 366.)

In the present action upon the second policy, which had been sisted till the previous action was disposed of, the Lord Ordinary decerned against the defenders in terms of the libel.

The defenders reclaimed. The Court ordered minutes of debate, in which

The defenders argued—

The verdict of the jury, as it originally stood, found that a total loss had taken place. There was no reservation of power to review the verdict on that point. The only point left open was, whether the conduct of the owners precluded them from making that claim for a total loss which, but for. their conduct, they might have made. At the time the policy now sued on was effected, the vessel was a wreck. But this was unknown to the defenders; and it cannot be pretended that any acts of homologation or election on their part took place till several months afterwards. If a vessel is insured for the year 1841, and is again insured for the year 1842, but in the meantime, unknown to the parties, has been totally lost in the year 1841, is there any validity in the second policy, which only begins with the year 1842? It is thought that these questions must be answered in the negative, and this for reasons too obvious to require argument. The insurable interest meant to be covered by the second contract has already been exhausted. The subject no longer exists as a ship the owner has acquired a right to recover her value under the first policy. He cannot recover it again, and, consequently, cannot insure it again, under the second. This rule must equally hold whether the total loss be actual, or what is called constructive. If the ship had gone to the bottom, the case would be too clear to admit of question; but although the ship may survive as a wreck, yet, if she is

totally lost in the sense of not being beneficially repairable, she is not, in that state of matters, the subject of insurance as a ship. If the pursuers were not bound when the policy now sued on was effected, they could not afterwards become bound by the conduct of the defenders. The defenders, in electing to treat the loss as partial, did not thereby make the vessel an insurable subject, or alter her actual condition, as at the time when this risk was to attach. Suppose that, in this case, after the great injury sustained by the vessel at sea during the currency of the first policy, she had then sunk in the harbour during the currency of the second policy, while still in a state of disrepair, would it have been competent for the owners to claim both a partial loss under the first policy, and a total loss under the second policy? Could they have recovered, it may be, £4000 or £5000 as the amount of the damage under the first policy, and then £6000 as the value of the ship under the second policy, making in all an amount of £10,000 or £11,000, for a ship originally valued at £6000? It would have been conclusively urged, that the second contract was founded in substantial error; that the essential basis of it was wanting; that the insurance contemplated, at its commencement, the existence of an insurable ship; and that there was no such subject to which the contract could apply. The second contract took it for granted that the first had come to an end without any such demand arising under it; and if it turned out that this hypothesis was erroneous, the contract fell. The existence of the risk is the consideration for which the premium is paid, and the extent of the risk is the measure of the premium. If the full risk have not been run, there ought to be a proportional abatement of premium.-Park on Marine Insurances, p. 768; 8th ed. Marshall, p. 638; 2d ed. Hughes, p. 442. Arnould, p. 1210, § 418. Stevens on Average, p. 181. Martin v. Sitwell; 1 Shaw, 156. Stevenson v. Snow; 3 Burr. 1739. Bothwell v. Cooke; 1 Bos. and Puller, 172. Feise v. Portman; 4 Taunt. 640. Penson v. Lee; 2 Bos. and Puller, 330. Suppose that, while the circumstances of the original damage were the same, the owners had elected to treat the loss as a total one-which it truly was-and had duly abandoned the vessel under the first policy, what would have been the result, in that case, if the vessel had been subsequently lost in her disabled state? If the underwriters on both policies were the same, they clearly could not have been called upon to pay more than once. If they were different, would the underwriters on the first policy have right. under the abandonment, which is equivalent to an assignation from the owners, to claim a total loss on the second policy, and thus shift the load from their own shoulders? Or, would the second policy have altogether fallen? It is submitted that this last view is the correct one. But, if so, it just proves that, in in such a state of things, there is no valid second insurance. In any view, the defenders are entitled to relief from part of the premium sued for, as it cannot be maintained that the whole risk has been run.-Stevens on Average, 5th ed. p. 204. Arnould, p. 1226. Fisk v. Masterman; 8 Mees. and Welsby, 165; Arnould, p. 1230. Besides, the bottomry debt here annihilated the insurable interest.-Arnould, p, 244. This is settled by statute as to East India risks;* and here the vessel was lost on

19 Geo. II. c. 37, § 5-" And be it enacted, that from and after the said 1st day of August (1746), all and every sum or sums of money to be lent on bottomry or on respondentia, upon any ship or ships belonging to any of his Majesty's subjects, bound to or from the East Indies, shall be lent only on the ship, or on the merchandize or effects, laden or to be laden on board of such ship, and shall be so expressed in the condition of the bond; and the benefit of salvage shall be allowed to the lender, his agents or assigns, who alone shall have a right to make assurance on the money so lent; and no borrower of money on bottomry or on respondentia, as aforesaid, shall recover more on any assurance than the value of his interest in the ship, or in the merchandizes or effects laden on board of such ship, exclusive of the money so borrowed: And in case it shall appear that the value of his share of the ship, or in the merchandizes or effects laden on board of such ship, does not amount to the full sum or sums he has borrowed as aforesaid, such borrower shall be responsible to the lender for so much of the money borrowed as he hath not laid out on the ship, or merchandizes laden thereon, with lawful interest of the same, together with the assurance, and all other charges thereon, in the proportion the money not laid out shall bear to the whole money lent, notwithstanding the ship and merchandizes be totally lost."

a voyage to the East Indies. See also Hildyard's Ed. of Park, vol. ii. p. 870. Arnould, p. 206. 1 Phillips on Insurance, p. 43. The pursuers argued—

The question is, supposing the premium had been paid by the defenders, would they now have been entitled to have it returned? The prior decision fixes that no total loss took place under the first policy, and that no effectual abandonment was made. With regard to the claim of abatement for premium, the principle upon which the cases depend is simply this, that if the underwriter could, at any time, and under any conceivable circumstances, have been called on to pay the whole sum on which he has received premium, in such case the whole premium is earned, and there shall be no return.-2 Arnould, 1226. lb. p. 1215. The whole of the defenders' argument as to a total loss having taken place under the first policy, is excluded by the decision in the previous case. That case decides, that the ship not only existed as such, but existed, and continued to exist, as the owner's property; and, as such, she must be held to have been insured. It is quite true that, at the time of effecting the insurance now in question, the parties did not, and could not, know the precise condition of the ship; being, on both sides, in the same condition of bona fide ignorance on this subject. But this circumstance, in place of telling in favour of the defenders, appears to the pursuers to have precisely the opposite effect; because it just widens the extent of risk which the parties had in contemplation when, in such condition of ignorance, they voluntarily entered into this contract of insurance. In fact, the policy itself contemplates the extremest case that could occur, because the vessel is thereby insured, "lost or not lost." Whatever, therefore, may be said as to the value of the thing insured, to say that there was nothing insured, no risk run, and no premium incurred, is untenable and absurd. The valuation in the policy is a conclusive answer to any attempt to investigate the value of the vessel at the time the policy was entered into.1 Arnould, 303. It is plain that, at the date of the present policy, commencing to run on 18th August 1842, the vessel was, to say the least, in as good a condition as before, probably far better, from the substitution of new materials for old. It is, in these circumstances, beyond a doubt, that, if a total loss had arisen posterior to the date of the policy, the insured would have been entitled, on the established principles of the law in regard to valued policies, to demand the full sum in the policy without further inquiry, and without any abatement on account of any alleged shortcoming of value. On what ground, then, can they now ask any deduction from the premium? The two policies acted in entire harmony, to the separate effect of each. The obligation of the underwriters in the first policy was fulfilled by the restoration of the vessel, fully repaired, to the owners. The liability of the underwriters in the second policy attached to the vessel thus restored, and to the full extent of the value specified in the policy; and both were equally entitled to the full amount of stipulated premium. The statute relied on by the defenders has no application. It is limited to the East India trade; whereas the bottomry bond was on a voyage from Mauritius to this country. There is no authority for converting the special enactment of the statute into a general rule. There is abundant authority, both in law and daily practice, for the reverse. It has been long settled in law, that bottomry is an insurable interest to the lender, separate and apart from the owner's interest in the ship or cargo; and it is notorious in practice, that policies in favour of the holders of bottoniry debts, and the owner's policy on the vessel itself, are simultaneously effected; and losses under both settled, without dispute, all over the kingdom. The very circumstance of a statute being thought necessarily to regulate a particular case, implies that to the general case the rule is inapplicable.-Tenterden on Ships, p. 152. But the whole plea on this head is set aside by the simple fact, that the bottomry bond was not granted for months after the date when the policy in question commenced to run; and the vessel, unburdened with any bottomry bond, had been, during all this period, under the protection of the policy. The date of the bottomry bond is 20th December 1842. The date of the present policy commencing is the 18th of August previous. From the 18th August down to the 20th of December, the vessel was unburdened with any bottomry bond. If, during this period, she had been lost by the perils insured against, the full amount of the policy would have been due. There is here, therefore, quite a sufficient period of risk to entitle the insurers to keep the whole premium, without the return of any part being demandable,

and to make the circumstance of the bottomry bond being afterwards granted wholly irrelevant and immaterial.

At advising,

Lord Justice-General.—Keeping in view the terms of the bargain, and the fact, now established, that the vessel was not totally lost, but that it was partially lost, and that, not being legally abandoned, it was repaired, whereupon a policy of insurance was entered into, I have come to the conclusion, that the Lord Ordinary's interlocutor is well-founded. It is impossible to deny that a risk was undertaken under the second policy; and I do not think that anything which afterwards occurred had the effect of invalidating that policy. It was a policy for a voyage from the Mauritius homeward.

Lord Mackenzie.-I am of the same opinion. A great deal was said as to the prior insurance. I do not think that what was so said has any relevancy in the case. The only relevant averment is, that there was a total loss. But it is plain that there was here no total loss in point of fact. The ship, so far from being totally lost, was repairable, and was repaired, and came home. No doubt there was a constructive total loss; but that just implies that there was no real total loss. Suppose the ship had been abandoned to the insurers, and that they had repaired it, could they not have insured her on the homeward voyage? Now, could not this be done in the same way, the ship remaining in the hands of the insured? It was said that the ship was so much a wreck, that it could not be the proper subject of a valued policy of insurance. It was said that there was, therefore, here, no valid transaction. We are not called upon to decide that question. How far a ship which has been wrecked may be insured at the value stated in the original policy, is a nice point, which we are not called upon to decide. It is not a point which occurs here, for the ship was repaired, and its value was restored. It is said that the repairs added nothing to the value, because they were done on a bottomry bond of greater value than the ship. But the practice-which has indeed become a rule of law-is, that the bond must be deducted from the insurable interest. It may be that, on deduction of the bottomry bond, it will be found that the owner loses nothing; but he cannot be barred by the existence of that bond. But, here, no bottomry debt existed when the insurance was made. When the risk has once been run, the insurance stands good. Now, that is just what was done here. The insurance was on 6th August; the bottomry bond was not executed till 20th December. I have no doubt that the interlocutor is right. Lord Fullerton.-I am of the same opinion.

Lord Jeffrey.-I am of the same opinion. I was at first a little perplexed by the suggestion, that the ultimate entering up of the verdict in the name of the party opposed to that party in whose name it originally stood, need not be held as a reversal of that verdict in toto. There were two questions put in issue. One was, whether the vessel was totally lost. The other was, whether the insurers were resting-owing the sum insured. On these questions, the jury find in general terms for the pursuer. The argument was, that although, in point of fact, there was a reserved power to enter the verdict for the opposite party, it must yet be held, from the terms of the reservations, that the first question, as to the total loss, should still be held as answered in the affirmative. Although the vessel was lost, the pursuers might be barred from recovering under the policy, if there was a necessity for abandonment, and if the vessel was not abandoned debito tempore. It was contended that the verdict must so be read. But I now think that the verdict, which, as it originally stood, answered both questions in favour of the pursuer, must now be read as answering both questions in favour of the defender. I therefore concur with your Lordships. The argument as to the bottomry bond excluding the insurable interest of the owner, is not met by the limitation of the statute to the East India trade: For I think it clear, that what was first introduced as a local regulation, has long since passed, upon equitable considerations, into a general rule of law-but it is met by the fact, that the bottomry boud did not exist at the time of the insurance.

The Court adhered.

Lord Ordinary, Wood.-Act. Penney; Gibson-Craigs, Dalziel and Brodie, W.S. Agents.-Alt. Neaves; Campbell and Smith, S.S.C. Agents.-W. Clerk.-F.H.

20th November 1849. FIRST DIVISION.

No. 11.-GEORGE STONE, Pursuer, v. THE ABERDEEN MARINE INSURANCE COMPANY, Defenders. Proof-Witness-Partial Counsel--A shipowner raised two actions against two insurance companies, upon two policies of insurance respectively granted by them on the same vessel and voyage. In both cases the defence was, that the insured knew of the loss of the vessel when the insurances were effected. The agent of one of these companies was called as a defender along with his employers, but obtained absolvitor in consequence of the judicial admission by them that the contract had been entered into for their behoof. He was tendered as a witness for the defence in the action against the other company. On examination in initialibus, he admitted that he had acted for the benefit of his employers, in the preparation of their defence to the action against them, by examining witnesses who were to be adduced in both actions, and that he had been present at the examination of the master and mate of the vessel, under a commission granted, not in the cause in which he had himself been a defender, but in that in which he was now tendered as a witnessHeld disqualified, on the ground of agency and partial counsel.

This was an action on an insurance effected upon the ship Margaret, for a voyage from Middlesbro' to Leith, in the course of which she was lost by striking on a sand-bank at the mouth of the Tees. The insurance was effected in Leith on Saturday the 5th of December 1846, the very day on which the intelligence of the vessel's loss was received at that port. The defence was, that M'Naughton, who was at that time owner of the vessel, knew of her loss at the time he effected the insurance.

A precisely similar action was raised by the pursuer against the General Maritime Insurance Company, upon an insurance effected by the same person upon the same vessel and voyage. In this action, Warrack, who was agent for that company, and who had issued the slip of insurance for behoof of his employers, was called as a defender. He obtained absolvitor on a minute stating that his employers admitted the transaction to have been entered into on their account, so as to liberate him from any personal liability. This was also stated in the defences of his employers, which were to the same effect as those of the defenders in the present action.

In the present action, a commission was obtained for the examination of the master and mate of the Margaret; but no such commission was taken out in the other action.

Both cases stood for trial on the same day; but the present case was first tried. In this case, the present defenders tendered Warrack as a witness for them. On examination in initialibus by the pursuer, Warrack deponed as follows:

“Was agent for the General Maritime Assurance Company in 1846. That company has a case similar to the present standing for trial to-day. After the loss of the Margaret,' he went to Middlesbro' and examined several parties, with the view to obtain information as to the state of the case. This action was not then raised. He went there in December 1846. He examined the master of the steam-boat that towed the vessel, the pilot, and several other persons, and communicated the information to Mr. Scarth; and it was with his advice he went there. He examined witnesses in Leith on the Monday when we knew the loss, and, he believes, others on the following day. Has examined no persons since shortly after the loss. Was present when the master was examined on commission, and also the mate. Witness went to hear what they had to say, and aid Mr. Scarth. Very likely he suggested questions. The action had been raised. He was frequently in communication with Mr. Scarth. He attended a consultation at Mr. Marshall's on the

case, and went there with Mr. Scarth. He has read the summons and defences. He was called as a defender-and this was in reference to that other action. But he was assoilzied-and has taken no charge of the proceedings since that in any wayand has no interest in the action now at all, nor in the other case. He never was a defender in this case. He took charge of the proceedings for the benefit of the Maritime Insurance Company."

The bill of exceptions bore that the following procedure took place :

Whereupon the counsel for the said pursuer objected to the admissibility of the said John Warrack, that he is disqualified. The depositions of the master and mate were only taken in this cause, and only within ten days agreed to be held evidence in the other action, in which Mr. Warrack was called as a defender, and is now assoilzied. The counsel for the said defenders did, however, deny that the said proposed witness was, in the circumstances, disqualified; and insisted that he was a competent and admissible witness, and ought to be received. But the said Lord President did sustain the objection stated by the counsel for the pursuer, and refused to allow the said John Warrack to be examined as a witness in the cause. Whereupon the counsel for the said defenders did then there, on behalf of the said defenders, except to the opinion of the said Lord President, and did tender their exceptions accordingly."

The jury found for the pursuer.

The case was in the roll to-day for disposal of the exception.

Cowan, in support of the exception-The action against the General Maritime Insurance Company, and against the Aberdeen Insurance Company, though proceeding upon different policies, depend on exactly the same species facti, and the same media concludendi, and are met by the same defence. Two of the witnesses examined were the master and mate of the Margaret. The application to examine these two witnesses on commission was only made in this action. This was done because it was thought that the evidence so taken would be available in both. Although Warrack did attend at the examination of these witnesses, he was then a defender in the General Maritime case. He did so for protection of his own interest. Suppose a commission had been taken out pro forma in the case of the General Maritime Insurance Company, as well as in that of the Aberdeen Insurance Company; that Warrack had been present at both examinations; and that the case against the General Maritime Insurance Company had been first tried ;-would his presence at this examination have disqualified him as a witness in the second trial? It is said that Warrack acted as agent here. Warrack was bound to look after his own interest, and was put in that position by Stone.

[Lord Mackenzie.-What you say is, that such interest taken by him was for himself, and for himself only; and that this interest came to an end by the decree of absolvitor pronounced in his favour.]

Precisely. We also argue, that when any such interference can be reasonably accounted for, it does not exclude the witness, whatever effect it may have as matter of observation to the jury. Besides, suppose he was not a good witness in the case against the General Maritime Insurance Company, it does not follow that he is not a good witness in the case against the Aberdeen Insurance Company. Quod foveant consimilem causam is no objection to witnesses by the law of Scotland.

Macfarlane, against the exception-No authority has been pointed out for the proposed relaxation of the general rule, that a witness is excluded by partial coun

sel. In the case of Rampling v. Lord Belhaven, it was ruled that a person omni exceptione major, who had had something to do with the preparation of the cause, was thereby disqualified; and the ruling was not objected to, although the interference was most reasonably accounted for. The only ground for making Warrack a party to the other suit was, that the insurance was effected by issuing a slip, and that, if no authority was proved, he might have been liable as insurer. Warrack knew whether he was within his mandate or not when he issued the slip. He knew that he had but to instruct that mandate in order to obtain his instant absolvitor. If these parties wished to make him a witness, it was their duty to keep him free from all these proceedings.

Lord Advocate, in support of the exception-There are some points not disputed. It is admitted that partial counsel is a good objection. It is admitted that, if Warrack had interfered without being in any way connected with these cases, then the objection of partial counsel would have applied. But let his situation be considered. Warrack is agent for the General Maritime Insurance Company. He hands over a slip of insurance. He is bound as insurer if he does not produce the policy. A loss occurs. Warrack makes inquiry into its circumstances. The action is brought against his principals, and against him. Stone having thus made Warrack a party, the latter attends the depositions of the master and mate. Then a proposal is made to assoilzie him from the action. Stone has nothing to say for making him a party. Warrack is assoilzied accordingly. The main ground of objection taken is, that Warrack was present at the examination of the master and mate. It is not for the pursuer to say so. It was he who put Warrack in that position. And if the pursuer makes Warrack a defender in an action, then Warrack is entitled to take proper steps for his protection. Suppose a party make A, B and C, parties in a case, and it is afterwards found that he cannot maintain that B and C should be parties, shall A be thereby deprived of the evidence of B and C? Was it not the interest of Warrack to inquire whether the vessel was seaworthy, since, on the refusal of the principal, Warrack might have been bound to take up the insurance? How can it be said, You had a sufficient defence here without farther inquiry? The answer is, You should not have made me a defender at all. Where is there any authority for this, that the knowledge which a party acquires by being defender in his own cause shall exclude him from being a witness in another cause? Suppose there had been two insurances, one upon the cargo and the other upon the ship; suppose actions had been raised for the recovery of these insurances, both depending on the same species facti;-could it have been contended that a defender to the one could not have been a witness in the other? Warrack's knowledge was innocently and properly acquired; and it is not for the pursuer to object that this knowledge disqualifies, since he put him in such a situation as to make it requisite for him to acquire it. The peculiarity here was, that Warrack was present at the examination, under commission, of the master and mate. The evidence then taken was as to the question of seaworthiness. At the time Warrack heard it, he had no idea he was to be assoilzied. There is no authority for this proposition, that a party

innocently acquiring knowledge as a party in a cause, having been put in that situation by the party objecting, cannot give that knowledge in evidence in another

cause.

Inglis, against the exception-The cases are no doubt closely connected; but they are not so entirely identical that the one is to follow the fate of the other. The two insurances were effected at different hours, though on the same day. Warrack is quite a stranger to this case. It cannot be said that we put him in the situation of a defender in the other action when he examined the witnesses in Leith, for at that time no action had been raised. The question is, did Warrack know, in December 1846, that there then existed no ground of action against him. He himself distinctly depones, that it was not for himself that he was acting, but for his employers, the General Maritime Insurance Company. As to this part of the case, it is quite vain to say that we put him in the position of a defender. When the action was raised, it was not necessary for his own protection to get up a case of fraud against us. All that he required for his absolvitor was, to show authority for the insurance. Nor does he lodge a defence of fraud. On the contrary, he says, The contract was adopted, and, therefore, I am out of the case. Is a party, intending to put in such a minute as this, entitled, for his own protection, to make inquiries as to questions of seaworthiness and fraud? The company all along admitted that they authorized the transaction. They begin their defence by stating that they did so. As to the depositions which were taken after the summons was served on Warrack, these were taken in a cause to which he was not a party. It was quite possible that the General Maritime Insurance Company might have taken a different view of the value of the evidence so taken, and might have preferred the personal presence of the witnesses to their depositions. Therefore, there is no ground for assuming that the evidence was intended to be used in both actions.

Lord Mackenzie.-The objection here taken is partial counsel. The general rule is admitted. It is also admitted that blameable interference will exclude. I go farther than that admission, and hold, that even if the interference be quite free from blame, still it may render the party inadmissible. There is no doubt, therefore, that this witness is inadmissible, unless we are satisfied that the operation of the general rule is excluded by the specialty, that the witness did not act here from any special regard to this party's interest, but solely from regard to his own as a defender in the cause. The facts do not support this plea in any way. If a man has been made a party in a particular cause, and acquires knowledge in it fairly and reasonably with a view to his own interest, the question, whether he may be made a witness in that cause after his interest in it is destroyed by absolvitor, or whether the objection of partial counsel would then apply, may be a very nice question indeed-and I do not know whether or not it has been determined. But, here, there is nothing like that. When Warrack first acted in the way he did, he was not a party. He had no reason to know he would be made a party-not in this cause, to which he never was, or could be, made a party-but in the consimilis causa. I therefore do not think that there are facts to support the reply made to the application of the general rule. In this case he never was a party; and, therefore, there never was anything to take away the objection of partial counsel.

Lord Fullerton.-I am of the same opinion. Some of the questions which have been argued would, if supported by the facts of the case, have been matter of difficulty. The first is that arising from the fact, that Warrack was called as a defender in the action against the General Maritime Insurance Company; from which it seems to be inferred, that, being en

titled to interfere, he could not fall under the objection of partial counsel. That would have been a question arising before us if this had been the action against the General Maritime Insurance Company; the question would then have been, whether they were entitled to call him. That would have been a question of some nicety. But that is not the case here. I agree entirely with the view of Lord Mackenzie. Warrack knew that the action could not be insisted in against him. He never gave in defences at all. The company entirely protected him. They treated him all along as an agent. As to the part he took in the examination of the witnesses under commission, it is to be observed, that that commission was granted in the action against the Aberdeen Insurance Company, to which Warrack never was, or could be, a party. I am not, however, disposed to put the case on this specialty, but on the general ground.

Lord Jeffrey.-I am of the same opinion, and that very clearly. Warrack all along acted merely as agent. It is impossible to look at his initial examination, or at the minute under which he obtained absolvitor, without seeing that all along he never considered himself as a party. Therefore it is plain that, even in the action against the Maritime Insurance Company, he could only have acted as agent, since he knew all along that there was no ground of action against him. When he examined the witnesses, therefore, along with Mr. Scarth, he acted, not as his own agent, but as agent for the company. Stone did quite right in calling him, as, so long as the insurance stood merely on the slip, Warrack might have been made liable. This is just the case of a party called as a co-obligant, though he has the discharge in his pocket, and where the other co-obligants seek to make him a witness. Warrack never was, in substance, a party at all. I think the objection would have been invincible, even in the case against the Maritime Insurance Company; and, here, it is a case a fortiori. Then, as to his interference in the examination under the commission, he was plainly an intruder in an alien cause altogether. No personal blame can by any possibility attach to what he did; but it is not necessary that partial counsel should be malo animo. The most upright and honourable agent disqualifies himself from being a witness for his principal. The party must choose between the benefit of his zealous agency and the benefit of his testimony; he cannot have both.

Lord Justice-General.-I am happy to find that your Lordships take the same view of this question as that which I formed on the spur of the moment at the trial; and all the more so, that I thought it right to give effect to the same objection in Rampling's case. As appears from the examination in initialibus, it appears that this witness gave all the assistance in his power. He attended the examination of witnesses both here and in England, and examined the pleadings in the cause. Taking that into consideration, was any difference induced by the fact, that another action was brought with which Warrack had no concern? I thought it therefore impossible to admit the argument, that the witness had been exclusively acting for his own interest. He must have seen from the beginning that he had that ground of defence which, being stated in the minute, led to his instant absolvitor. He was called only as agent, and, therefore, could not be affected by that action at all. We must just take the case as it is. Warrack did give assistance-no doubt in perfect bona fides, and with perfect propriety; but, by so doing, his testimony is inadmissible on the ground of partial counsel. Therefore, unless I was to obliterate that legal doctrine from our books, I was bound to give effect to this objection.

Exception disallowed.

Presiding Judge, Lord Justice-General.-Act. Inglis, Macfarlape; James Peddie, W.S. Agent.—Alt. Lord_Advocate (Rutherfard, Cowan; Pillans Scarth, W.S. Agent.-Jury Clerk.-F.H.

21st November 1849.

SECOND DIVISION.

No. 12.-JOHN COCHRAN and another, Petitioners, v. Mrs. JANET COCHRAN or MACASLAN and others, Respondents.

Expenses-Curator Bonis-Process-Two of the nearest of kin on the father's side having applied for the appointment of a cura