much to be desired, interfere and make clear enactments as to the details of this very important Act.

We now come to sect. 99 under which every prisoner petitioning in formâ pauperis shall, if not previously discharged by a registrar, "be brought up to the County Court of the district," and "if the Court" shall be satisfied with his examination, it shall make an order of adjudication of bankruptcy against the petitioner. "The Court" primâ facie means the Court of Bankruptcy; but by the interpretation clause, sect.. 229, it shall also mean "any County Court acting under this Act." It was asked in the argument why, if sect. 103 was intended to apply to sect. 99, and to it alone, it was dislocated from it. It would surely, it was said, have been made the 100th section if it was intended to be a proviso on the 99th. Why also, it was asked, was the word "arrest" omitted. It is found connected with the words "commitment" and "detention" in sect. 71, a section much in pari materiâ; and it could hardly be intended to exclude from the enactment those prisoners who had been arrested on mesne process, but not committed in execution. As we have already said, we think that the words show that the section is applicable to prisoners committed or detained on final process. The questions asked on the argument we cannot answer in any way satisfactory to ourselves. But it still remains the fact that the words of sect. 103 are all satisfied by applying that enactment to the case of a prisoner who has been committed in execution or is detained for debt, and is brought up before the County Court under sect. 99, and are not satisfied by applying them to *anything else that we can find. We must therefore construe the provision as applying to this

case.

[*58.

The 133d section of The Bankrupt Law Consolidation Act, 1849, protects all bonâ fide transactions prior to the fiat, notwithstanding any prior act of bankruptcy, unless there was notice of the act of bankruptcy; and if the 103d section of the present Act had made the adjudication relate back to the commitment or detention as an act of bankruptcy, the defendant in this case would have been protected; but the enactment, whether intentionally or not, makes the adjudication relate back absolutely, and consequently we think there is no protection. The rule must therefore be discharged. Rule discharged.

TAYLOR and Others v. DEWAR. Feb. 22.

Marine insurance.—Rnnning-down clause.—Personal injury to crew.-9 & 10 Vict.

c. 93.

A policy of marine insurance for 4000l. for twelve months on the ship "Rouen" and her freight, contained the following clause: "And we the assurers do further covenant and agree that in case the said vessel shall, by accident or negligence of the master or crew, run down or damage any other ship or vessel, and the assured shall thereby become liable to pay and shall pay as damages any sum or sums not exceeding the value of the said vessel Rouen and her freight, by or in pursuance of any judgment of any Court of law or equity given in any suit or action defended with our previous consent in writing, or by or in pursuance of any award made upon reference entered into by the assured with our previous consent in writing, we the assurers shall and will bear and pay such proportion of three-fourth parts of the sum so paid as aforesaid, as the sum of 40007. hereby assured bears to the value of the said vessel Rouen and her freight." The ship "Rouen" having run down another ship, whereby some B. & S., VOL. V.-4

of her crew were drowned, and the owners of The Rouen having been condemned by the Court of Admiralty to pay damages to the personal representatives of the deceased for the loss of those lives: held, that the above clause did not apply.

THIS was an action on a policy of insurance, dated 6th September, 1860, for 4000l., for twelve calendar months, upon the ship "Rouen" *59] and her freight. The *declaration set out the following covenant in the policy:- "And we the assurers do further covenant and agree that in case the said vessel shall, by accident or negligence of the master or crew, run down or damage any other ship or vessel, and the assured shall hereby become liable to pay and shall pay as damages any sum or sums not exceeding the value of the said vessel Rouen and her freight, by or in pursuance of any judgment of any court of law or equity given in any suit or action defended with our previous consent in writing, or by or in pursuance of any award made upon reference entered into by the assured with our previous consent in writing, we the assurers shall and will bear and pay such proportion of three-fourth parts of the sum so paid as aforesaid as the sum of 40007. hereby assured bears to the value of the said vessel Rouen and her freight.'

Averment. "Afterwards and while the said ship, during the said period of twelve calendar months covered by the said policy, was navigating the seas within the limits of time and place allowed by the said policy, and during the continuance of the said risk insured against, the said ship, by accident or negligence of the master and crew thereof, ran down and damaged a certain other vessel called the Magyar, and thereby caused her to sink at sea with her master and divers, to wit, five persons of her crew then on board of the said Magyar, whereby the said Magyar was lost, and her said master and the said five persons, part of her crew, were drowned and lost also, and thereby the plaintiffs became liable to pay and did pay to the owners of the said Magyar the

damages arising from the said loss of the said vessel, and to the *60] *personal representatives of the said master and other persons of the crew so drowned as aforesaid respectively, the damages sustained by and due to them respectively by and for the loss of the lives of the said master and other persons respectively so occasioned as aforesaid, by and in pursuance of certain judgments of the High Court of Admiralty and of Her Majesty's Privy Council, on appeal, given in certain suits in the said Courts, which were defended by the plaintiffs with such consent of the defendant as by the said policy required, such several damages amounting together to a large sum of money, to wit, 37001., not exceeding the value of the said ship Rouen, and that such proportion of three-fourth parts of the sums so paid as damages as the sum of 4000l. have to the value of the said ship Rouen amounted to a large sum, to wit, 8007., and that no freight was earned or being carried by the said ship Rouen at the times of the loss and damage aforesaid, and that the defendant's proportion of the last-mentioned sum of money, in respect of the sum insured by him as aforesaid, amounted to the sum of 201., and all conditions were fulfilled, &c."

Demurrer to so much of the declaration as related to the claim of the plaintiffs in respect of the moneys paid by them to the personal representatives of the master and other persons of the crew so drowned as therein mentioned.

Joinder in demurrer.

The case was argued, in Michaelmas Term, 1863, November 17th, before COCKBURN, C. J., WIGHTMAN, J., who died before judgment was delivered, BLACKBURN and MELLOR, JJ.

*Sir George Honyman, in support of the demurrer.-The [*61 underwriter on a policy of marine insurance in the general form is not liable to make good damages which the assured has been compelled to pay in consequence of a ship having been run down and injured, and persons on board having been killed or injured, by accident or negligence of the persons navigating the ship insured: De Vaux v. Salvador, 4 A. & E. 420 (E. C. L. R. vol. 31). In consequence of this state of the law, clauses like the present, commonly called "runningdown clauses," have been introduced into marine policies; and the question is whether under such a clause the insurer is liable to make good to the owner of the ship insured the amount he may have had to pay, either at common law or under Lord Campbell's Act, 9 & 10 Vict. c. 93, as compensation for the limbs or lives of the persons injured or killed. The covenant here is limited to damage done to the ship or vessel; and it is clear that injuries might be done to the crew on board a ship without injury to the ship, as for instance when a man is knocked off a ship's bowsprit. On the other hand a ship may be run down without injury to any person on board. [BLACKBURN, J.-A small ship might run against the Warrior and be sunk by the collision while the Warrior received no injury.]

Manisty (J. Brown with him), contrà.-The Court should not put a narrow construction on clauses of this kind, but look at the reason which occasioned their introduction into policies of insurance. When a ship is run down by another there is no real distinction between damage occasioned to the ship and damage *occasioned to the crew: [*62 the same general principles apply to both; as appears from the Scotch case of Coey v. Smith, 22 Court of Session Cases 955, decided by the Lord Justice-Clerk, Lords Wood, Cowan, and Benholme, on a policy of insurance on the ship Excelsior. [He also cited Thompson v. Reynolds, 7 E. & B. 172 (E. C. L. R. vol. 90). BLACKBURN, J.-For injury to ship and goods the ship may be attached in the Court of Admiralty by a proceeding in rem, but can that be done for injury to the person?] The Court of Admiralty could always award full compensation for the damages, both direct and consequential, which were sustained by a collision: Maude & Pollock on Merchant Shipping, p. 415, 2d ed., where several cases are cited: but even were this otherwise stat. 24 & 25 Vict. c. 10, s. 7, enacts, "The High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship. [He also referred to The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, ss. 506-7-8.]

Sir George Honyman, in reply,-In Coey v. Smith the decision of the Court was at variance with the judgment of the Lord Ordinary, but independent of that the case is distinguishable from the present on two grounds-First. There the policy attached on the mere circumstance of the ship coming into collision with another vessel, whereas here it is on her destroying or damaging any other vessel. Secondly. The policy there contained the words, if the assured shall "in consequence thereof become liable to pay, &c. The Scotch law holds the underwriter liable for the remote as well as for the proximate cause of mischief, but the

English law looks solely to *the proximate cause: Ionides v. The *63] Universal Marine Insurance Company, 14 C. B. N. S. 259 (E. C. L. R. vol. 108). [BLACKBURN, J.-Livie v. Janson, 12 East 648, is to the same effect. It is a very intelligible principle, but very difficult to apply. Still a party may by covenant render himself liable for remote damage. His Lordship referred to Patrick v. The Commercial Insurance Company, 11 Johns. (U. S.) Rep. 14.] The present policy having been effected in September, 1860, stat. 24 & 25 Vict. c. 10, which received the Royal assent 17th May, 1861, is inapplicable to Cur. adv. vult.

it.

The judgment of the Court was now delivered by MELLOR, J.-This case was argued before the Lord Chief Justice, the late Mr. Justice Wightman, my brother Blackburn, and myself.

The question turns on the effect to be given to a clause in a policy of marine insurance, of recent introduction into such instruments, and generally known by the name of the collision clause; the object of which is to secure the shipowner against damages which he may be compelled to pay for injury done to others by his vessel coming into collision with another, either through accident or negligence; such damages not being by the law of England, as settled by the case of De Vaux v. Salvador, 4 A. & E. 420 (E. C. L. R. vol. 31), recoverable under a policy of insurance in the ordinary form.

In the present case the clause is as follows: "In case the said vessel shall, by accident or negligence of the master or crew, run down or *64] damage any other ship or vessel, and the assured shall thereby become liable to pay and shall pay as damages any sum or sums not exceeding the value of the said vessel Rouen and her freight, by or in pursuance of any judgment of any Court of law or equity.... the assurers shall and will bear and pay such proportion of three fourth parts of the sum so paid as aforesaid as the sum of 40007. hereby assured bears to the value of the said vessel Rouen and her freight."

The vessel insured under this policy, The Rouen, having come into collision with and run down another ship called The Magyar, and the master and five of the crew of the latter having been drowned, the owners of The Rouen have, by the judgment of the Court of Admiralty, been condemned to pay damages to the personal representatives of the deceased, and such damages have been paid accordingly. And the question raised by the demurrer in this case is whether, under the clause in question, the amount thus paid can be recovered back; the controversy being, whether the provision for indemnity applies to damages paid by the assured in respect of personal injury arising from collision through negligence. We are, after much consideration, of opinion that it does not, and that our judgment should be for the defendant.

It was contended, on the part of the plaintiff, that the death of the deceased having been occasioned by the running down of The Magyar, through the negligence of the master and crew of the ship insured, the damages which the plaintiff had been compelled to pay were within the words of the clause, and must be held to be within the indemnity. But it is to be observed, on the other hand, that the language of the clause *65] is *altogether silent as to personal injury. It speaks of the vessel insured running down or damaging any other ship or vessel, and of the assured thereby becoming liable to pay damages. It seems to us

that the more reasonable construction is to consider the damages herein referred to as limited to such damages as shall be payable in respect of the loss of or damage done to the ship run down or damaged, or, possibly, as extending to her freight or cargo, which for this purpose may perhaps be treated as part of herself.

This view becomes very materially strengthened when it is considered that the present is a policy of marine insurance, and that hitherto policies of marine insurance have never been applied to the purpose of insurance against loss of life, or indemnity in respect of personal injury, arising from perils of the seas. This being so, it appears to us more reasonable, in the absence of express agreement, to limit the general language of the clause to those matters which have alone been the subject of marine insurance.

And it is to be observed that the clause provides not only for damage occasioned by negligence, but also for damage arising from accident, the latter provision being probably introduced to meet the possible case of the vessel becoming subject to a foreign jurisdiction in a country by the maritime law of which, in case of accident, the damage is to be divided. Now it is clear that the shipowners never could be liable for damages for loss of life or personal injury arising from accidental collision. Their liability to such damages depends on the relation of master and servant between them and those whose negligence occasions the death or personal injury, and the running down or damaging the other ship is only *material in so far as it may connect the death or personal [*66 injury with that negligence. By providing in the same sentence for the case of accident, as well as for that of negligence, the parties would appear to have been looking to what might become payable in respect of damage to the ship, not to those on board of her, who never could have any claim in respect of injury arising from accident.

There is a further circumstance deserving of notice. By the terms of the policy, the liability of the underwriters is limited to such proportion of three-fourths of the sum paid as the 4000l. assured bears to the value of the ship insured and her freight. Now this must be taken to mean the actual value of the ship and freight. But, by the express proviso of the 504th section of the 17 & 18 Vict. c. 104, in no case where liability is incurred in respect of loss of life or personal injury to any passenger shall the value of any ship and freight be taken to be less than 157. per registered ton. The absence of any reference to this special provision in the case of damage arising in respect of loss of life or personal injury tends strongly to show that the parties were contemplating the case of damages paid in respect of loss of or damage to the ship and her appurtenances, as to which the statutory enactment as to value would not apply.

We regret that in coming to this conclusion we find ourselves in conflict with the decision of the Court of Session in the case of Coey v. Jmith, 22 Court of Session Cases 955, to which our attention was called on the argument. The words in the policy in that case are not indeed identical with those occurring in the present, but we think they are in substance the same, and it is therefore with very great *reluctance that we find ourselves compelled to differ from a Court whose de[*67 cisions, although not binding on us, are entitled to the highest consideration at our hands. But after the best consideration we have been able