V.C. B.]

frequently have reinsurance and other business negotiations to make through you. Our Southern Cotton business is very large and increasing, and often requires heavy reinsurance on cargoes by British vessels, which we cannot always get covered here. We are compelled to take these large amounts, as they come under our numerous open policies. Indeed, we often have excessive lines from East India and other distant parts, falling under open policies, which cover bankers credits. Is it practicable to get them reinsured with your underwriters? Could I rely upon being able to place from 50 to 100,000 dols. through you at any time, current rates?

In answer to that letter the defendants wrote, on the 15th Aug. 1858:

We are in receipt of your favour of the 29th ult., appointing us agents in this country for the Great Western Insurance company. With regard to reinsurances, we do not anticipate any great difficulty in effecting at Lloyd's any you may have at the current rates, and the conditions usual at that establishment, provided that there is nothing very unusual or extraordinary in the risk, and that you give us instructions to reinsure as early as practicable.

The agency so constituted continued until the 26th June 1863, when an agreement of that date was entered into between the plaintiffs and defendants, which, after reciting that the plaintiff com. pany were desirous of appointing agents in this country to take risks on their behalf, and to issue policies to the parties in respect of the risks so taken, and that the defendants had agreed to accept such agency, it was witnessed that the defendants should become and be the exclusive agents of the plaintiffs in London, "for the purpose of taking risks upon ships or freights, or upon goods," &c.; and the defendants were also to act as such agents, for the purpose of investigating, and settling, and adjusting and paying all claims" that might arise upon such policies, and of resisting claims which ought not to be paid.

66

The defendants were to keep proper accounts "of all moneys received for premiums of insurance, and of all moneys paid and disbursed by them in respect of the settlement of any claims upon poli. cies issued by them," and interest was to be allowed upon the balances from time to time in their hands. In the absence of written instructions to the contrary, the amount to be taken upon any one ship was to be left to the discretion of the defendants.

The defendants were to receive as remuneration "for conducting the business as such agents," a commission of 5l. per cent. upon the premiums made in each year, to be calculated upon the premiums, after deducting therefrom the discount to be allowed to the assured, and the usual brokerage of 51. per cent. allowed to the broker; but in the event of any premium being lost, the commission upon such premium was to be calculated upon the net amount, after deducting the brokerage and discount that would have been allowed had such premiums been duly paid at maturity. These commissions were to include all charges for settling, adjusting, and paying losses, averages, or returns on policies issued in London or Liverpool.

On the 24th Nov. 1865, the plaintiffs wrote the defendants a letter which, so far as was material, was as follows: "Annexed, please find a list of vessels from Gulf ports upon which we are already full, and should you have taken any risks upon any of them you will please reinsure." The defendants received this letter on the 8th Dec., at which time they had taken risks upon fifteen of the vessels named in this list, amongst them being the Roger A. Heirn, upon which they had taken a

[V.C. B.

risk of 3500l. The defendants sent one of their clerks, a Mr. Bullen, to Lloyd's for the purpose of effecting the reinsurances, but in consequence of advices of a most disastrous havoc among shipping, caused by a tremendous gale on the American coast, which advices produced a sort of panic, it was, as the defendants alleged, impossible to insure, except at most exorbitant rates. The defendants accordingly wrote the same day to the plaintiffs (being the day on which the American mail left London), stating:

In consequence of the recent numerous and heavy losses on cotton in the Gulf, there is almost a panic amongst many of the underwriters on this side, and therefore we could not reinsure as you wish, except at extraordinary (and what we consider excessive) rates, if then, especially as some of the vessels sailed about the time of the hurricane in October, and are about due. We therefore think it better to enclose you herein a list of the vessels not arrived by which we have taken lines, and leave you, if you deem it necessary, to effect reinsurance on your side. If we remember rightly yon stated, when here, that these risks were freely taken in New York at 1 per cent., which will enable you to reinsure at a considerable profit, whereas we should have to do so at a loss.

This letter was received by the plaintiffs on the 21st Dec. In the meantime, on the 19th Dec., the Roger A. Heirn stranded at Mobile, whereby the risk taken by the defendants on behalf of the plaintiffs was converted into a loss of 3500l.

The plaintiffs contended that the order to reinsure, contained in their letter of the 24th Nov., was peremptory, and ought to have been effected at any rate of insurance which would have been obtained for the time being, and they denied that there was any such panic as described in the defendants' letter, and they now sought to make the defendants liable for the loss they had sustained in consequence of the defendants having omitted to reinsure the Roger A. Heirn, in pursuance of their instructions.

Another question raised in the suit was, whether the defendants were entitled to retain for their own benefit, in addition to the regular 5 per cent. brokerage on premiums, a discount or allowance of 12 per cent., allowed by the underwriters to brokers upon the sum paid to the underwriters as the balance owing to them upon the settlement of accounts at the commencement of each year.

It appeared that it was the custom for underwriters, when the insurance business was conducted on the "credit" system, which was the system adopted by the defendants, to make this allowance to the brokers as an inducement to them to bring a profitable class of business. The plaintiffs contended that the defendants were their agents for the purpose of reinsuring, and that, as such, they could not accept a gratuity, but must account to the plaintiffs for the amount of discount they had received.

For the defence, it was submitted that the matters in dispute were properly subjects for proceedings at law. That the defendants were justified, in the exercise of their discretion, in refraining from effecting any reinsurance at the ruinous rates at which alone, if at all, such reinsurances could have been effected, especially as the plaintiffs had previously informed them that they could reinsure these risks very chiefly on their own side, but that if they were liable for the loss upon the Roger A. Heirn, they ought to be allowed to setoff against such loss the amount of the premiums

V.C. B.]

which, by not reinsuring as directed, they had saved to the plaintiffs.

As to the discount, they denied that they were the plaintiffs' agents for the purpose of reinsuring, and alleged that they simply executed the plaintiffs' orders for reinsurance upon the same terms as they did those of other persons who employed them as brokers, and that, therefore, they were ertitled to the customary brokers' allowances for their own benefit.

Kay, Q.C., Benjamin, Q.C. (of the Common Law Bar), and Marten, Q.C. for the plaintiffs.-As to the jurisdiction of the court, we refer to

Makepeace v. Rogers, 12 L. T. Rep. N. S. 12; on app. 221; 4 De G. J. & S. 649 ;

Southampton Dock Company v, Southampton Pier and Harbour Board, 23 L. T. Rep. N. S. 698; L. Rep. 11 Eq. 254; 26 L. T. Rep. N. S. 828; L. Rep. 14 Eq. 595.

purpose

of

The defendants were our agents for the
effecting insurances. They were in a fiduciary
position, and could not accept a gratuity. They
must, therefore, account to us for the discount
which they have received:

Turnbull v. Garden, 20 L. T. Rep. N. S. 218; 28 L.J.,
N. S. 331, Ch. ;

Queen of Spain v. Parr, 21 L. T. Rep. N. S. 555; 39
L. J., N. S., 73, Ch. ;

Ritchie v. Couper, 28 Beav. 344.

As to the defendants' liability for not reinsuring, they were our agents for hire and reward; there was an express contract, and the duty cast upon them by the contract was an absolute duty to effect an insurance, and not merely a mandatum: (Turpin v. Bilton, 5 Man. & Gr. 455, 470.) Even an insurance broker is liable, à fortiori an agent would be. This is a case of breach of trust, and, therefore, the trustee cannot set-off against the loss the amount that has been saved by his disobedience and breach of trust.

John Pearson, Q.C. and Millar, for the defendants. There is nothing to justify the allegation in the bill that the accounts are complicated or in dispute; the only questions in dispute are questions which could be more properly tried by a jury in an action at law: (Moxon v. Bright 20 L. T. Rep. N. S. 961; L. Rep. 4 Ch. 292.) As regards re-insuring, we acted as brokers, and not as agents; there is nothing in the agreement about re-insurance. We were agents for adjusting and paying losses in London, and for taking risks only, and you cannot import anything into the agreement which is not there already. The transactions between the broker and underwriter are distinct and separate from the transactions between the broker and the assured. This is not a question of principal and agent, or of trustee and cestui que trust, but two transactions separate and distinct. The practice as to these transactions is very clearly stated by Blackburn, J., in Xenos v. Wickham (14 C. B., N. S., 460.) The discount allowed is a discount upon the balance of accounts between the underwriter and the broker in respect of all his clients, and not a discount upon any particular premium. With respect to the alleged negligence, an agent must use the same discretion and diligence for his principals as he would for himself. If he finds himself unable to insure as desired, he must communicate at once with his principals (Callendar v. Oelrichs, 5 Bing. New Cas. 58), which is the very thing we did, and having written, we could not afterwards reinsure in London; if we did, and the ships came in safe,

[V.C. B.

the plaintiffs would have been justified in refusing to pay the premiums. The agreement states that we are to exercise our discretion, and there was nothing in the plaintiffs' letter directing us to reinsure which took that discretion away and rendered it imperative upon us to insure at any price. If, however, the court is of opinion that we are liable for the loss occasioned by our not insuring as directed, then in estimating the damages, the amount saved by the same act of negligence must be taken into consideration.

The VICE-CHANCELLOR said:-The bill in this suit is filed by the Great Western Insurance Company against Messrs. Cunliffe, praying that an account may be taken between them, and praying relief upon certain matters specifically mentioned in the bill. The defendants admit the existence of a kind of agency, but say that the particular agency alleged by the bill in respect of which one portion of the relief is sought, and the matters which might have been the subject of account between them and the plaintiffs might and ought to have been the subject of an action at law, and that a court of equity is not the proper forum for deciding such disputes. It becomes, therefore, absolutely necessary to consider the nature of such agency as was constituted.

Now the plaintiffs are an insurance company carrying on business in marine insurance at New York. A portion of that business was and is transacted in this country, and for the purpose of that business it was and is indispensably necessary that the plaintiffs should have agents in this country, persons to carry out their business, which consisted of making such payments as the plaintiffs might have to make upon policies of insurance granted by them payable in England, and for issuing policies in England, and for effecting reinsurances on risks which they had undertaken. And that that is the object with which the agency was constituted seems clear, not only from the nature of the case, but from the evidence which has been adduced, and the admissions and statements on both sides. The agency undertaken by the defendants is expressed in certain letters which were referred to in the course of the proceedings. [The Vice-Chancellor having read the portions of the four first letters set out ante, continued:] Now, upon the basis of those letters the agency is constituted, and it seems to me impossible not to say, after reading those letters, and having regard to the subsequent transactions between the parties, that an agency, in the full sense of the term-an agency for conducting in this country that business in which the plaintiffs were engaged, but which they could not conduct was constituted and was undertaken by the defendants.

It seems to me impossible, in the face of the evidence, as well as from the transactions between the parties as they are stated and admitted, to doubt that the defendants did undertake from the beginning the business of reinsurance, as well as whatever other business might be committed to them by their correspondents in New York, and that it is a mistake to call them brokers. It has been convenient for the defendants in their argument to refer to cases and to conduct the argument as if the defendants were insurance brokers. They are not, that I know of, properly called by that name in any instance. They are not brokers; they are described in the

V.C. B.]

bill as being merchants; they are addressed as merchants; they admit in their answer that they are merchants, and in the character of merchants, acting as agents for persons in a foreign country, but in their name and on their behalf, they effect insurances at Lloyd's, not qua brokers; they are not, as Mr. Millar read to me from the case which he cited last, agents both for the underwriters and the persons insuring; it is a mistake altogether, a fallacy, which I think has pervaded the greater part of the argument I have listened to on behalf of the defendants-to treat these defendants as ever having been in any sense insurance brokers. If the company at New York had been resident in this country, and had desired to reinsure, they would have gone to Lloyd's and have effected the reinsurances-they would want no broker. Brokera may be usefully employed in a variety of transactions relating to insurances and reinsurances; but a shipping broker or an insurance broker has no place in the case I am considering here. It is, in short, an agency in its full terms; it is doing by a hand here that which the company in America was not able to do for itself; it is done for the company, and in a sense by the company.

Now the bill states that, besides the agreement or engagement, whatever it may be called, constituted by the letters and by the course of dealing, there was another agreement entered into between the parties, and that is stated in the bill, and described by the bill as being an extension of the business; and it is admitted in terms by the answer to have been entered into for the purpose of extending the sphere of operations; but it is impossible to read that and to suppose that it was intended to qualify or diminish the authority which had been given in the first instance-extend it, no doubt it does, and prescribes other terms, but it does not in the slightest degree diminish, detract from, or qualify the nature of the agreement or the duties which each party owed the other having entered into that arrangement. That is the agreement of 1863. These are the only documents which it seems necessary to refer to, because upon them the agency was constituted. That agency continued under those agreements until sometime in April 1868, when the agency was resigned.

Before that time came, questions had arisen between the plaintiffs and the defendants, and the principal question which then and now subsists between them, I mean in point of amount, though not the chief in point of principle, was occasioned by the stranding of one of several ships which the plaintiffs had instructed the defendants, as agents, to reinsure for them. By a letter, dated the 24th Nov. 1865, the plaintiffs instructed the defendants, as their agents, to reinsure certain ships. That letter is in very clear and explicit terms, and is beyond the possibility of misconstruction, regard being had to the nature of the business which the plaintiffs had conducted through their agents up to that time. [The Vice-Chancellor read the letter as set out, ante, and continued:] Accompanying that letter is a long list of vessels, among which is the Roger A. Heirn. That letter was received in London about mid-day on the 8th Dec.; between one and two o'clock on the same day the defendants instructed their clerk, Mr. Bullen, to go to Lloyd's and effect the insurances, according to the instructions they had received from their principals. Mr. Bullen, it appears, discharged that duty by

[V.C. B.

going and offering a list of the vessels, and having devoted about two hours of that day in endeavouring to effect the reinsurances, and having failed to effect them, nothing more whatever was done to fulfil the instructions. Then by the post of that day the defendants wrote to their principals in America, apprising them that the insurance had not been effected.

I admit, as indeed the cases which were cited yesterday decide, that an agent, if he declines to exercise his power to execute the orders of his principals, may properly refuse to do so, but that cannot be without qualification; he may do so provided he does not break the contract between them, so that he does not frustate the expectation of his principals. If he were living in the next street he might go and knock at his door and say, "I will have nothing to do with your reinsurance ;” but if he is dealing with a principal, at the distance of about twelve or fourteen days' post, it is not sufficient. Surely it would be utterly opposed to all common sense and justice to say that he could write on the 8th Dec. in London a letter, which by no possibility can come into the hands of his principals in less than twelve days, saying, "I refuse to execute your order, and suggest to you, as you once said you could insure in New York for 30s., that you had better do so." I do not say that, consistently with the cases which were referred to, an agent is not at liberty to decline to perform the direction of his principal, but I say that, having constituted himself an agent for such a purpose as this, the duty of reinsuring was, in the first instance, cast upon him, and that he could not get rid of that obligation unless he put his principal in the same position as that in which he was when that commission was given to him; and if he does it under circumstances which make it impossible for the principal to reinsure, then I say he fails in his duty as agent.

[The Vice-Chancellor here read the letter of the 8th Dec. 1865, set out ante, and continued:] That letter being dispatched on the 8th Dec., on the 19th Dec. the Roger A. Heirn-a ship at Mobile when the directions were given-stranded in or near the part of Mobile, and thereby a loss was incurred at 35007.

Now, one of the questions in the cause is, whether there was such neglect on the part of the defendants as justified the plaintiffs in seeking to be reimbursed for the consequence of that neglect. It may be, if that was the only transaction between the parties, the only subject of difference between them, a bill in equity would not lie for the purpose, but in the relations which existed between this principal and this agent, I cannot take out of the transactions between them any particular topic or any particular article, and say, because that is in its nature separate, that therefore it cannot be included in the prayer for relief which is sought by this bill. If I could, the same might be said of every particular item in every account; you might take out a particular thing and say, "that is no part of the account, that is the purchase of goods, not advances of cash," and so on, and a variety of such like excuses might be made. If it is, as I think it is, a part of the duty of the agent to reinsure the ship upon that letter which he received; and if the reinsurance formed any part of the general agency, it must be covered by the general agency accounts, and is to be taken into consideration when those accounts are settled

V.C. B.]

The cases which were referred to do not in the slightest degree touch this principle. The case of Turpinv.Bilton (ubi sup.), was a case in which a man had employed a broker, not an agent in any other sense, to effect an insurance for him, and he had done it in such a clumsy way, so negligently, as that the assured could not bring an action against the insurance company, therefore he brought his action against the broker for his neglect to put him in the position which he ought to have been put in, and he succeeded in that action. The decision in the case was plain and distinct, and founded upon principles which no one can question for a moment. The other case which was referred to I have already mentioned, that which does justify an agent, upon certain conditions, in refusing to execute the commission of his principals. That does not apply to this case.

The reasons suggested for not re-insuring are, a storm which happened in the Gulf of Mexico, which it is said prevented the possibility, after the receipt of the American mail upon that day, of any reinsurance being then effected, "except at most exorbitant rates of premium." The agents in this country had nothing to do with exorbitant rates of premium; they were ordered to reinsure, and from the evidence, showing the manner in which the defendants had previously conducted reinsurance business, it is clear that they considered themselves bound to reinsure. I have not heard a suggestion why, on the 9th or 10th Dec., or some subsequent time. efforts were not made to reinsure these vessels, and the evidence satisfies me that if the duty undertaken by the agents had been properly discharged no such loss as that of which the plaintiff complains, could by possibility have happened.

Well then, the agency being constituted, the instructions being complete, the duty is cast upon the defendants to show why they did not comply with them. In my opinion they have totally failed to do so, and they have failed by suggesting excuses which are not true in fact, as I must say, upon the evidence. They have failed to do so, by writing a letter, which could be of no use for the purpose of the business in which the principals and agents were concerned, until after the loss had taken place. I think, therefore, upon the principles not only of the cases that have been referred to and other cases, but upon the commonest principles of justice and honesty, the defendants have occasioned this loss by neglecting their duty as agents, and that they are liable to make it good. From the time when the agency began, the plaintiffs had their agents, bound to conduct their business prudently, properly, and above all faithfully, and they find out that there are certain things in the accounts which they are entitled to complain of and they file the bill for an account, and I do not know any reason why they should not. I have heard no reason. It is said, because it has been decided in the case of a particular agent in a particular instance, the demand against whom might be settled at law, that that course should be taken, that therefore there could not be any approach to this court in any case where the agent is a defaulter, where the principal has a right to have an account from him. The law is well settled as to that: it is that a principal has a right to have an account from his agent. Of course he takes it at his own risk. All that can be expected, or that can reasonably be required from him, is that he should state a case to satisfy the court that there is some

[V.C. B.

reason to dispute the accounts that have been rendered.

Now as to the question of allowance, that goes upon very delicate ground, because nothing is better settled in this court than that if a man is an agent-that is, in other words, a trustee-an agent in a fiduciary character, it is incompetent for him to receive a gratuity of any sort or kind. That cannot be disputed as a general principle. The question is, whether that applies to this particular case. Now what is this case? I have said this is simply the case of a man who cannot be bodily present in this country, but who employs another to go in his name and person, and enter into certain commercial engagements for him. Can anything be more strictly within the description of fiduciary employment than that? He stipulates for his hire, he agrees to the commission he shall pay him, and then says, "Now go in my name, in my person, on my account, for my interest-not for your own; go and do this thing for me," and the agent goes; and in discharge of that duty he stipulates for or receives a benefit for himself not included in the contract between himself and his principal. Is there an instance to be referred to where that has been endured in a court of equity? There are plenty of instances to the contrary. If Mr. Lathers had been here in his own person, as president of the society, he would have gone to Lloyd's and would have effected the insurance for himself. He did not want a broker. There would be no account between them, because if it suited this gentleman in the course of his business to have dealings on another footing, well and good; he was perfectly competent to do that, but he was not competent to take an allowance which but for his stipulation, if it was made at all, would have been made for his principal. If it was his intention to do so, then the observation of Lord Justice James in the case referred to yesterday, applies directly. "If you thought that was right, why did you not say so, and why did you not state that you were taking the allowance ?

Then it is said because this was discovered in 1866, and the bill has not been filed until 1869, there has been acquiescence. One can understand that there was not any great disposition to quarrel or make any great fuss between persons who had been so long connected together in important transactions of this kind. I cannot think that the lapse of time furnishes the least reason why the plaintiffs should not, when they desired it, have the accounts overhauled and put upon the right basis, and made consistent, not only with the principles of this court, but with the principles of fair dealing between parties. I cannot think that the lapse of time which occurred should preclude them from the right which they insist upon; and, therefore, I think that the plaintiffs are entitled to a declaration that this loss happened in the course of transactions which cannot be severed from the ordinary agency subsisting between the parties; and that they are entitled to the relief asked in that respect, and it must be ascertained what the damage is which they have sustained. I should have been very much pleased if a jury had had to consider this, rather than I should, but the law requires me to consider it, and it is a position from which I cannot retire.

The accounts must be taken as prayed by the bill, and in taking those accounts, the defendants

Ex.]

must be charged with the loss upon the risk taken by them on account of the plaintiffs on the ship Roger A. Heirn, and must also be charged with the discount or allowances, and all other benefits obtained by them from the underwriters, over and above the customary commission of 5 per cent.; and the defendants must pay the costs up to the hearing.

Solicitors for the plaintiffs, Thomas and Hollams.

Solicitors for the defendants, Walton, Bubb, and Walton.

COURT OF EXCHEQUER. Reported by T. W. SAUNDERS and H. LEIGH, Esqrs., Barristers-at-Law.

Friday, Feb. 13, 1874.

BLANCHET v. POWELL'S LLANTWIT COLLIERIES
COMPANY (LIMITED).

Bill of lading-Delivery of less quantity than that stated in bill-Whether lump freight payable without deduction-French law-18 & 19 Vict. c. 111, s. 3.

The whole freight named in the bill of lading is payable to the shipowner carrying under it, although a less quantity of goods than the quantity named in the bill of lading be delivered, if the quantity delivered be no less than the quantity received by the shipowner.

By French law the whole freight is payable whether the whole quantity named in the bill of lading be carried or not, and therefore, in the case of a bill of lading executed in France, it is immaterial whether or not the shipowner received the whole quantity named in the bill of lading.

By 18 & 19 Vict. c. 111, s. 3, "every bill of lading is conclusive evidence of the shipment as against the person signing it."

Semble that by this statute the bill of lading is not conclusive evidence as to the accuracy of measurements, and does not estop the person signing from disputing those measurements.

DEMURRER to a plea, and to a replication.

The declaration stated that one M. A. Parangue in parts beyond the seas at L'Orient in the Republic of France delivered to the plaintiff certain goods, that is to say a cargo of pitwood to be by the plaintiff carried and conveyed in a certain ship of the plaintiff's, from L'Orient to Cardiff, under a certain bill of lading, dated the 2nd Jan., A D. 1873, signed for the same by the plaintiff, and there delivered (accidents and dangers of the sea excepted), to the holder of the said bill of lading, or his order, he or his said assigns paying the plaintiff for freight the sum of 3448. sterling, and 41. gratuity to the plaintiff, amounting together to 1761. 1s, and after the said 2nd of Jan. 1873, the said M. A. Parangue indorsed the said bill of lading to the defendants, in order to pass the property in such goods to the defendants, and thereupon, and by reason of such endorsement, the property in the said goods passed to the defendants, and all conditions were fulfilled, and all things were done, and happened, and all times elapsed necessary to entitle the plaintiff to have the said freight and gratuity paid according to the said bill of lading, and to sue the defendants for the non-payment thereof. Yet the defendants have made default in paying the said freight and gratuity.

[Ex.

Pleas-(1.) Except as to so much of the above count as related to the carrying and delivery by the plaintiff to the defendants of 217 tons of pitwood being a portion of the cargo in the said count mentioned, that the bill of lading was in the words and figures following: [The plea then set out the bill in French], which is properly rendered in the English tongue by the words and figures following:

I, Blanchet, master of the ship named Christopher Columbus, of Granville, being at present at the port of L'Orient in order at the first opportunity to go in the direct road to Cardiff, acknowledge to have received and stowed on board my ship under the free deck thereof, of you, Madame A. Parangue, 256,782 kilogrammes at 1015 -253,782 kos., payable the whole safe and in good condition, marked and numbered as in the margin, which I bind myself to carry and convey. in my said ship, perils and wrecks of the sea excepted, to the said place of Cardiff, and to deliver to the bearer, or his order on his paying me for my freight the sum of 3441 shillings sterling, plus 41. gratuity to the captain, according to the uses and customs of the sea, and to hold and accomplish this, I bind myself body and goods with my said ship, freight and tackle thereof. In faith of which I have signed three bills of lading of the same tenor, one of which being accomplished, the others of no value. Signed at L'Orient the 2nd Jan., 1873. ppon. M. A. Parangue. E. Parangue.

Indorsed.

A. E. BLANCHET.

Received of M. A. Parangue the sum of 241. sterling, on account of my freight, including insurance. L'Orient, 2nd Jan., 1873.

A. E. BLANCHET.

ppon. M. A. Parangue, E. Parangue. and that the plaintiff did not carry and deliver to the defendants the goods in the said bill of lading mentioned, but a proportion of the same only, to wit, the quantity of 217 tons, and, except the said quantity of 217 tons, the defendants say that the plaintiff did not carry the said goods and deliver the same to the defendants.

(2.) As to the carrying of the 217 tons, payment into court of 2171. 168. 10d.

Replication-(3.) As to the first plea that the plaintiff did carry and deliver to the defendants the whole of the said goods, which were delivered to him under the said bill of lading, and which were intended to be thereby described, and that the said goods so delivered, and which are in the said bill of lading described as weighing 256,782 kos., a weight exceeding 217 tons, in fact weighed 217 tons only, and no more, and that the said weight mentioned in the said bill of lading was a mere misdescription of the goods to be carried inserted in the said bill of lading, without fraud or default on the part of the plaintiff.

(4) As to the first plea that the bill of lading was made at L'Orient, in the Republic of France, and that according to the law of France the whole of the said freight was and is payable, notwithstanding that the said part only of the said goods was carried and delivered as in the first plea mentioned.

(5.) Repeating the third replication that the said bill of lading was made at L'Orient, in the Republic of France, and that according to the law of France the whole of the said freight was and is payable.

Demurrer to the first plea on the ground that it does not set out the French law on the subject, and affords no answer even by English law.

Demurrer to the third and fifth replications, on the ground that they do not allege a misrepresen.