cepted before the Bankruptcy Act, 1869
(1), no action could be maintained upon
them by reason of the express provisions
of the Bankruptcy Act, 1861, s. 161.
But at the time when the bills were ac-
cepted, the old law had been repealed,
and as the repealing Act contains no
provision against such an action as the
present one from being maintained, by
the common law, in the absence of express
enactment, a debt discharged by bank-
ruptcy is a sufficient consideration for a
subsequent agreement.
In Wennall v.

Adney (2), there is an elaborate note on the effect of an express promise founded simply on a moral obligation, in which the opinion of Lord Mansfield in Hawkes v. Sanders (3) and Trueman v. Fenton (4), (1) By the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), s. 164, after the order of discharge takes effect the bankrupt shall not be liable to pay or satisfy any debt, claim, or demand proveable under the bankruptcy, or any part thereof, on any contract, promise, or agreement, verbal or written, made after adjudication, and if he be sued on any such contract, promise, or agreement, he may plead in general that the course of action accrued pending proceedings in bankruptcy, and may give this Act and the special matter in evidence.

With regard to trust deeds for benefit of creditors, it is thus enacted, by section 197-" From and after the registration of every such deed or instrument, the debtor and creditors and trustees parties to such deed, or who have assented thereto, or are bound thereby, shall in all matters relating to the estate and effects of such debtor be subject to the jurisdiction of the Court of Bankruptcy, and shall respectively have the benefit of, and be liable to all the provisions of this Act, in the same or like manner as if the debtor had been adjudged a bankrupt, and the creditors had proved and the trustees had been appointed creditors' assignees under such bankruptcy."

By the Bankruptcy Repeal and Insolvent Court Act, 1869 (32 & 33 Vict. c. 83), s. 20, The enactments described in the schedule to this Act (the

(2) 3 Bos. & P. 247.

(3) Cowp. 289.

(4) Ibid. 548.

that an agreement by a bankrupt after his
certificate to pay an antecedent debt, is
one upon which
an action
may be brought,
is cited, and commented upon.

[QUAIN, J.-Had not the bankrupt at the time of the repeal of the old Act a vested right which could not be defeated by any subsequent enactment?]

In Flight v. Reed (5) it was held by the Court of Exchequer, Martin, B., dissenting, that where bills had been given to secure previous bills, which last when given were in respect of a loan at an interest contrary to the existing usury laws, that the second bills upon repeal of these laws could be enforced; and this case has a close analogy to the present one.

Lucius Kelly, in support of the plea.There is nothing in the Bankruptcy Repeal Act, 1869, which creates a right to sue on these bills. In Jones v. Phelps (6), in a case where the respondent became bankrupt in 1868, and after adjudication gave the appellant, a creditor, bills in respect of this debt, and again, after the passing of the Bankruptcy Act, 1869, gave fresh bills in renewal of those originally given, Bacon, that a debtor summons in respect of V.C., held these new bills was properly dismissed. His Honour was inclined to think that for the purposes of the case s. 164 of the Act of 1861 was not repealed, but he preferred to base his decision on the broader ground, that when a debtor was discharged from a debt by bankruptcy, a promise by him to pay it was a mere nudum pactum. With regard to Flight v. Reed (5), the Court will remember that an usurious transaction was so far valid, that if the schedule includes the Bankruptcy Act, 1861), are hereby repealed, "but this repeal shall not affect the past operation of any such enactment, or revive any Court, office, jurisdiction, authority, or thing abolished by any such enactments, or affect the validity or invalidity of anything done or suffered before the commencement of this Act, or any right, title, obligation, or liability accrued, or restriction imposed before the commencement of this Act."

creditor chose to destroy his securities, he might recover the amount actually advanced, while here there was no consideration whatever for the bills, as the plaintiff's claim was discharged by the deed of arrangement.

Littler, in reply.

COCKBURN, C.J.-I think that the plea is good. The action is on bills of exchange accepted by the debtor in respect of a debt which became due while the Bankruptcy Act, 1861, was in force, and it appears that he entered into a deed of arrangement, the effect of which was to discharge him from his debts in the same manner as if he had obtained a discharge in bankruptcy. Now by section 164 of the Act of 1861 the bankrupt is not liable after an order of discharge in bankruptcy to pay any debt or demand provable under the bankruptcy on any contract made after adjudication. Subsequently the Act of 1861 is repealed, and after this repeal the bills were given. It has been contended before us that in the case of a bankruptcy after the repeal, bills of exchange like those in question might be given and sued upon. Upon this point I pronounce no opinion whatever; it will be time enough to decide it when it comes before us. It is quite clear that when the Bankruptcy Repeal Act, 1869, was passed the law imposed a restriction upon the right to sue upon these bills; and it seems to me impossible to suppose that the Legislature intended anything so monstrous and anomalous as to remove this restriction in respect of past transactions, though they may have intended to alter the law with respect to future bankruptcies. And when I look at section 20 of the Act of 1869, I find that the repeal is not to affect the past operation of previous enactments, or any right, title, obligation or liability accrued, or restric tion imposed, before the commencement of the Act. I think these words are quite large enough to apply to the present case. Under the old law, the plaintiff' could not have sued the debtor in respect of these bills, and I cannot suppose that the Legislature intended to take away this restriction, but have every reason to think that they meant to preserve it.

MELLOR, J.-I am of the same opinion. The effect of section 164 of the Act of 1861 is, that after the order of discharge takes effect the bankrupt is not to be liable to satisfy any demand provable under the bankruptcy, on any contract or promise made after adjudication, and if sued on any such contract, may plead that the cause of action accrued pending proceedings in bankruptcy. It seems, therefore, that the question is, whether a bill of exchange given in respect of such a debt before the Act of 1869, comes within the meaning of the words in section 20, "shall not affect the past operation of any such enactment, or affect the validity or invalidity of anything done or suffered before the commencement of the Act." It seems to me that the transaction is clearly within the words of the saving clause.

HANNEN, J., concurred.

QUAIN, J.-I am of the same opinion. When the Act of 1869 was passed, the law which it repealed prohibited the revival of a debt discharged by a bankruptcy. Having regard to the case of Surtees v. Ellison (7), where it was held that a bankruptcy founded upon a trading which had only continued previously to the existing Bankrupt Act, 9 Geo. 4. c. 16, could not be supported, as the trading could not be regarded as if it had continued after the passing of the new Act, I should have been disposed to hold, apart from the express words of the saving clause, that the present Act could not make the position of the parties to the transaction different from that in which they stood before the old Act was repealed. But I agree with my Lord and the rest of the Court that the saving clause expressly prevents this action from being maintained.

Judgment for the defendant.

Attorneys-G. S. & H. Brandon, for plaintiff
E. D. Lewis, for defendant.

(7) 9 F. & C. 759.

53 34the cattle, and whilst the plaintiff was ac1872. MACAULEY V. THE FURNESS RAILNov. 15.

nature and value of the goods under the Carriers Act, and it was alleged that the goods were lost by the gross negligence of the carriers, the Court in an elaborate judgment held that this did not make the carrier liable. The principle of these cases is applicable to the facts now before the Court.

Butt (Murphy with him), in support of the replication. The question raised in the present case is simply whether there is not a distinction between ordinary and extraordinary negligence. The agreement only protects the company from the consequences of an accident which might with care have been avoided, but it leaves them liable for the result of gross and outrageous negligence. In Phillips v. Clark (4), where goods were carried under a bill of lading which stipulated that the shipowner should not be liable for leakage and breakage, it was held that he remained liable for leakage and breakage caused by his own negligence or by that of his servants.

[BLACKBURN, J.-In McManus v. The Lancashire and Yorkshire Railway Company (5), it was held that a condition by which the company were not to be responsible for any injury or damage (however caused) to live stock while travelling upon the railway was unreasonable, as it professed to protect the defendants from all loss, though occasioned by their own misconduct. This seems to assume that the agreement does not bear the construction you seek to put upon it, and on the carriage of passengers you cannot, of course, object that the condition is unreasonable. Why should not the company be at liberty to say, "We will not be liable whether our servant has been lazy or has only made a mistake."]

There is a difference between an accident from a mere oversight, and one arising from a perverse disregard of the ordinary course of traffic.

COCKBURN, C.J.-I am of opinion that the plea is good and the replication bad. It appears from the plea that the plaintiff

(4) 2 Com. B. Rep. N.S. 156; s. c. 26 Law J. Rep. (N.s.) C.P. 167.

(5) 4 Hurl. & N. 327; s. c. 28 Law J. Rep. (N.s.) Exch. 353.

had a free pass, and was carried under an agreement, in which it was provided that he should travel at his own risk, and I think that such an agreement must have been intended to exclude everything to which the company would ordinarily be liable as carriers of passengers. Now I cannot think of anything for which the company would be liable with regard to the plaintiff except negligence. There would, under ordinary circumstances, be an obligation to use due care in carrying the plaintiff. This obligation is excluded by the express terms of the bargain, and consequently there is a good defence to the action.

BLACKBURN, J.-I am of the same opinion. The duty of the defendants as carriers of passengers is to take reasonable care that such passengers shall not be exposed to danger during their journey. If through the want of due care the passenger is killed or injured, the carrier is liable to make compensation, and may even be made criminally responsible. An agreement that the passenger should be carried at his own risk would not take away the carrier's liability to a criminal prosecution. No such agreement could be set up as a defence to an indictment, but there is nothing to prevent it from being pleaded in a civil action. In the prescut case the agreement substantially amounts to this, that the passenger should be carried at his own risk, and that so far as he is concerned he shall not be at liberty to bring an action for damages against the company. What is meant by the expression "wilful negligence" in the replication I do not know, but I feel convinced that it is included under the terms of the agreement.

MELLOR, J.-I am of the same opinion. The plaintiff appears to have been received as a passenger under unusual circumstances, for he had a free pass, and in consideration of it agreed to be carried at his own risk. This contract clearly exempts the company from all ordinary liability; and although I do not doubt that there may be degrees of negligence, I think that the exemption is applicable to everyone of them.

QUAIN, J.-I am of the same opinion. The action is founded upon negligence,

without which the company, who are not
insurers, could not be made liable. But
it appears that there was a contract by
which they were expressly protected from
any such liability. The question is, whether
the statement in the replication takes the
case out of the contract. I cannot think
that it does; the negligence mentioned in
the replication is the very thing for which
the defendants stipulated that they should
not be responsible, and the word "wilful"
does not carry the case any further, espe-
cially when we consider that a master is
not liable for the wilful acts of his servants.
Judgment for the defendants.

Attorneys-Johnston & Mounsey, for plaintiff;
Sharp & Ullithorne, for defendant.

(Error from the Court of Queen's Bench.) field, viz., 5a. Or. 33p. to the south, con