crew consisted of such master, a mate, two able seamen and two landsmen hired to pump her: that she was leaky at starting, and in other respects not in perfect sailing order: that the master had indulged in drinking on the way over; and that on reaching port Dalhousie she was not well taken care of: that the master continued intemperate; the mate deserted. her, and the two landsmen returned to Toronto: that she was not reported to the collector of canal-tolls until Monday morning, the 16th of October; and the master had not funds to pay the canal-tolls. He presented a letter from Fellowes (not produced), and was told to pass the lock, the collector promising to see what he could do: that he did not proceed, and on Tuesday morning the vessel was destroyed by fire in Port Dalhousie: that such fire arose from gross carelessness, if nothing worse; and she was in all respects greatly neglected while at Port Dalhousie: that other vessels proceeded up the canal on Saturday afternoon, and the "Ocean" might have done so had due diligence been used and the master been provided with means to defray the tolls; but that she was unnecessarily delayed, and without being detained for purposes connected with the voyage.

It was objected for the defendants, that neither the plaintiff nor Fellowes had any insurable interest in the freight, and that the plaintiff cannot maintain this action. Leave to move a nonsuit on this point was reserved, and the case proceeded.

The jury found for the plaintiff on all the issues, except the fifth and sixth, with £300 damages; and for the defendants on the fifth and sixth issues.

Cross rules were obtained-First. For the plaintiff, to set aside the verdict as to the fifth and sixth issues, as being against law and evidence, or for judgment non obstante. Second. For defendant, to set aside the verdict as to all the issues, except the fifth and sixth; and to enter a nonsuit on leave reserved at Nisi Prius, or for a new trial, on the ground that the issues found for the plaintiff are against law and evidence, and the discovery of new evidence.

Richards, for defendants, shewed cause and contended, first, against the plaintiff's rule-That unreasonable delay was a deviation; it enhanced the risk daily, and extended

the time-Solly et al. v. Whitmore, 5 B. & A. 44, though the vessel might stop from stress of weather or unavoidable accident-Arnould on Insurance, 342-and deviation is a good defence-Hamilton et al. v. Sheddon, 3 M & W. 50; Phillip et al. v. Irving, 7 M. & G. 325. Second. He supported defendants' rule, and said, If the two pleas found for them were sustained, he desired no more; if not, then he urged a nonsuit; because that the contract was with Fellowes, not plaintiff that plaintiff is not named as the insured; he had not an insurable interest entitling him to sue in respect thereof; and if he had, the insurance is not made on behalf of all concerned, as is usual in English policies-Arnould, 129, sec. 105, p. 260. That plaintiff could not have insured. for his own benefit, the advances he made not being risked upon the success of the voyage or the earning of freight. He did not advance the freight-De Silvale v. Kendall, 4 M. & S. 37; Manfield et al. v. Maitland, 4 B. & A. 582. That he lent money to Fellowes on security of the freight, and had personal recourse, and the objection was open under the general issue: also, that the vessel was clearly not seaworthy at starting-Arnould on Marine Insurance, 652, 676 -nor the master supplied with funds to pay tolls, &c.Arnould on Marine Insurance, 680; Forshaw v. Chabert, 3 B. & B. 158.

Eccles, in reply, said, the defendants' agent told plaintiff he could be insured; and the contract was to pay plaintiff, not Fellowes; and the defendants should not now be allowed to set up want of interest, having insured with knowledge of the facts that plaintiff, as agent of Fellowes, might insure in his own name, even though he could not on his own account, and was thus insured-Arnould on Marine Insurance, 119, 110; Davies v. Wilkinson, 4 Bing, 573: that the seventh plea is inapplicable, it not being material whether plaintiff had an insurable interest or not if he was the insured, and Fellowes had such an interest: that the two pleas found for defendants are in effect one defence, and delay may amount to a defence. It follows that the application for judgment non obstante is not sustainable; but the delay must be unreasonable, and not proceed from unavoidable accident or

other contingency not avoidable, and that here it was not unreasonable; wherefore he submitted that a new trial should be granted as to the two issues found for the defendants.

MACAULAY, C. J., delivered the judgment of the court. I have considered carefully whether the plaintiff can sustain this action in any point of view; and if I thought he could do so, under the present or under an amended declaration, I should be disposed to grant a new trial, on terms; for I consider the merits with him as respects his interest in the policy of insurance; but I think it clear upon the authorities that the action is not tenable. As to the issues found for the defendants; it seems the rule that unnecessary or unreasonable delay in the course of the voyage, to the enhancement of the risk, must (in order to discharge the underwriters) amount to a deviation; and yet the jury have found the fourth issue, which put deviation directly in issue, in the plaintiff's favor; and I do not think the delay that accrued was of sufficient duration to amount to a deviation; so that it might have been said before the fire commenced that the defendants had been discharged by deviation, although there had been some delay and much neglect.

If the case depended upon the two issues found for defendants, I should be disposed to grant a new trial on terms. But if a new trial was granted, all must be re-opened, and the plaintiff would have again to contend with the defences raised by the other pleas; such as the second, fourth, fifth, sixth, eighth, tenth and eleventh issues.

And there are other difficulties in the plaintiff's way that seem to me insuperable. Under the plea of non-assumpsit he must establish a contract by the defendants with himself; to do which, he must shew that he is the person named in and by the policy, insured, or the person beneficially interested in the insurance in a way that entitles him to sue upon the policy. It appears, however, that Fellowes, the master (and not the plaintiff), is the person named in the policy, and is prima facie the party insured, although it is stated in the margin, or at the bottom of the policy, that in case of loss the amount was to be paid to the plaintiff. That, in legal

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construction can, I think, only mean to be paid to him as agent or on behalf of Fellowes, and not as being himself the party insured. Then, to sustain the action in respect of his interest in the subject matter, the plaintiff must shew that he had an insurable interest in the freight. He does not shew that he possessed such an interest as owner of the vessel; and the only other way by which he could have acquired an insurable interest therein would be by proving that as shipper or owner of the goods he had advanced the whole or a portion of the freight, as freight, to the owner or charterer of the vessel in anticipation of its being earned, but before it was earned; and that such advances were made strictly on account of and in part payment of the freight expected to be earned and to become due, and without recourse against the owner or charterer of the vessel personally. It must bear analogy to bottomry or respondentia loans, in which the advance is put in hazard and risked upon the success of the adventure or expected voyage. Here the plaintiff was not owner of either the vessel or goods; nor did he ship the goods as shipper or carrier.

It is reduced then to the question, whether a stranger in point of interest to both the vessel and goods may nevertheless advance to the owner of the vessel part or all of the expected freight, so as to acquire a right thereto and an insurable interest therein. If he could, then it is contended that the bills of lading were in this case made out in the plaintiff's name or favor; that is, that they entitled him to call upon the consignees to pay and to receive payment of the freight when earned. But even in this point of view he would be obliged to establish, not a loan or a mere advance of money on security of the freight, but such an advance in respect of the anticipated freight and in reliance upon such freight, exclusive of any personal recourse against Fellowes or the ship-owner for reimbursement: and it is said the plaintiff's advances were made on security of the freight; but that rather imports a loan, with a claim to the freight as collateral security, than an advance in respect of the freight itself; and such I think the only construction of which the terms of the policy and the bills of lading, so far as explained (for none

were produced at the trial), are fairly susceptible.--Camden et al. v. Anderson (5 T. R. 709), Stainbank et al. v. Fenning (11 C. B. 51), Stainbank et al. v. Shipard (13 C. B. 418), Hall v. Jansen (29 Eng. Rep. 111), Moorsom v. Greaves et al. (2 Camp. 627), Arnould 229, 235, 260, sec. 105; Garrett v Handley (4 B. & C. 666), Manfield et al. v. Maitland (4 B. & A. 582-5), Sutherland et al. v. Pratt et al. (12 M. & W. 16), Camden et al. v. Anderson (1 B. & P. 272), Lucena v. Craufurd et al. (3 B. & P. 95), Marsh v. Robinson (4 Esp. 98).

See Arnould, page 232, sec. 105.-It is said that in order to give an insurable interest in freight there must be, first, a title either legal or equitable in the party insuring subsisting at the time of loss in the subject, out of the ownership of which the right to freight accrues-i. e., the ship; or, second, an inchoate right to the freight, &c-Wilson v. The Royal Exchange Assurance Company (2 Camp. 626). Plaintiff also declared upon another policy another policy on £300 lent to the captain, payable out of the freight. But Lord Ellenborough held that this was not an insurable interest; and the policy being illegal on the face of it, the premium could not be recovered back-Webster v. De Taste (7 T. R. 157).

The case in 2 Camp. 626 is like the present, except that it does not appear here, as it did there, that the plaintiff paid the premium, or that he is the person named in the policy as the insured. The policy on the face of it implies that Fellowes paid it, and is the party insured. The only view I feel warranted in adopting is, that the advance made by the plaintiff was in the nature of a loan to Captain Fellowes, payable out of, or secured upon, the freight through the medium of the bills of lading, and not an advance in part payment of the freight itself and in satisfaction of such freight pro tanto; although, had the freight been earned, and the plaintiff received it, he might have retained the same in satisfaction of his advances, as he might have done with the proceeds of the policy had the defendants paid him the amount thereof according to the provision in the policy in that behalf. On the legal ground, therefore, that being a stranger to the property in both the vessel and goods the plaintiff could not create an insurable interest in the freight by spontaneously advancing the amount to the