moored, and revives when they are moving_from their moorings into dock. The Mersey Docks Consolidation Act (21 & 22 Vict. c. xcii.), s. 6, repeals the Previous Pilotage Act, but as that Act (5 Geo. 4, c. lxxiii.) was in force when the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) was passed, the exemptions from compulsory pilotage whilst a vessel is lying in the river, contained in sects. 32 and 34 of the former Act are preserved by sect. 353 of the latter Act, and there is nothing since to limit them. Sect. 128 of the Mersey Docks Consolidation Act 1858 (21 & 22 Vict. c. xcii.) is almost identical with the section of the former Pilot Act referred to, and by it the duty of the pilot is defined to be, "to cause the vessel to be properly moored at anchor in the river Mersey." The pilot here had fulfilled that duty; then comes an employment voluntary on the part of the master of the ship, but which the pilot is bound to accept, and for which he receives 58. a day, which the pilot has done; the fact of the payment being made shows that the employment was within the voluntary portion of the clause; if the service were one continuous compulsory service from sea to dock, the ordinary rate of payment for that service would alone have been made, no matter how long it took to perform. The Annapolis (Lush. 295, 4 L. T. Rep. N. S. 417; 1 Mar. Law Cas. O. S. 69) is not in point; the pilotage was compulsory there because the vessel was again en route from her anchorage to the dock, for which service the pilotage is compulsory; besides there the antecedent delay in the river had been necessary; no such necessity is shown here. Sect. 128 of the Mersey Docks Consolidation Act 1858 (21 & 22 Vict. c. 92) shows that pilotage is compulsory in the first and last stages of coming from sea to dock, but not in the second; if there could be any doubt about the meaning of the statute, it is put an end to by a former decision of this court (The Woburn Castle, 3 Mar. Law Cas. O. S. 240; 20 L. T. Rep. N. S. 621). Sect. 138 of the Mersey Dock Consolidation Act 1858 (21 & 22 Vict. c. xcii.) shows the period within which the voluntary service lasts, and the collision happened whilst the Princeton was within that period. The judgment of the Judicial Committee of the Privy Council in the case of The City of Cambridge (L. Rep. 5 P. C. 451; 30 L. T. Rep. N. S. 439) supports this view, as it only shows that where a vessel outward bound is hindered by the weather from at once proceeding to sea, the employment of the pilot remains compulsory during her unavoidable detention, as it is the intention to proceed as soon as possible; and in that case he is entitled to extra remuneration under a different section of the Act (sect. 139 Mersey Docks Consolidation Act 1858). But it does not apply to ships inward bound which might remain for a month before proceeding into dock, or never go there at all. [Sir R. PHILLIMORE. -It would extend the exemption of shipowners from liability to a very great extent indeed, if they are not to be liable at all whilst a pilot is on board their vessel lying at anchor in the river, no matter how long.] That could not be the intention of the Legislature, and the tendency of the courts has been to interpret the statutes relieving the shipowner of liability strictly. The pilot was not bound to stay on board, unless required to do so by the master, and therefore he was not compulsorily employed. Milward, Q.C. and Clarkson.-The case of [ADM. keeping a pilot on board for a month at 58. a day is totally distinct from this case. Here the pilot was engaged to take the ship from sea into dock, and he was bound to complete the service; he could not dock when he came in, as the water was too low, but he was to dock the next tide; then he was prevented by the violence of the weather, but there was a continuing intention to dock as soon as possible; under these circumstances he could not leave the ship, and it was not necessary for the captain to require him to remain on board. The fact of receiving 58. a day for the two days he was detained in the river by the weather does not matter; if he received it and was not entitled to it that cannot alter the law, but in this case he was entitled to it, though employed compulsorily. The City of Cambridge (ubi sup.) is directly in point; it shows that where the intention to proceed continues the pilotage is compulsory. The Woburn Abbey (ubi sup.) was the case of a ship lying in the river without any intention of proceeding into dock immediately. This ship was really naviga ting, her anchoring was a step in her journey to dock, and she was doing so in a district in which pilotage was compulsory by law, and she had taken on board a pilot by compulsion of law, and therefore her owners are exempt from liability for the results of his negligence : General Steam Navigation Company v. British and Myburgh in reply.-There are three stages recognised in the case of vessels coming from sea into dock, and rightly, for when they enter the river they cannot tell what dock they are to go to, or whether they are to dock at all: they may be ordered to another port of discharge. Whilst they are moving either on their way to anchor or on their way to dock, the pilotage is compulsory; whilst stationary in the river, it is voluntary. The case of an outward-bound ship is different; there, when she leaves the dock, she is to go to sea at once, there is no doubt as to her destination. The wording of sects. 128 and 139 of the Mersey Docks Consolidation Act 1858 distinctly recognises the difference between inward and outward bound vessels. The City of Cambridge (ubi sup.) was an outward bound vessel, and therefore cannot govern the case of an inward-bound ship. Sir R. PHILLIMORE.-I must take as admitted facts to which the law is to be applied the following: That the pilot was taken on board with an engagement to pilot the Princeton to her mooringplace, and subsequently to her dock, and that, in the discharge of that engagement, he had moored her for the night, meaning to take her into dock on the next day; that the next morning the weather was such as, in his judgment, rendered it unsafe to proceed into dock; that he so advised the captain, and that in consequence the vessel did not go into dock; on that day the collision happened. The question arises whether, having regard to sects. 128, 138 of the Mersey Dock Act 1858 (21 & 22 Vict. c. xcii.) and to the general provisions as to pilotage contained in that Act, and to sects. 353 and 362 of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) the vessel remained under the charge of a compulsory pilot during the interval between the mooring and docking. It is not necessary that I should do more than refer to The Annapolis (ubi sup.), The Woburn Abbey (ubi sup.), and The City of Cambridge (ubi sup.) in support of the view I take. Looking to the principle to be extracted from those cases, and giving a reasonable interpretation to the sections of the Acts of Parliament, I am of opinion that the Princeton was still under the management of a compulsory pilot, who was taken on board by compulsion of law. To hold otherwise would be a harsh construction of the statute. The ship was at the time of the collision, in itinere, making her progress towards the dock, and there was no discontinuance of the engagement of the pilot, or substitution of a voluntary for a compulsory service. The circumstances show that the vessel was compelled to remain where she was by a vis major. If she could have gone into dock sooner, I am not prepared to say that I should consider her entitled to the immunity to which she is under the existing circumstances entitled. I confine this construction of the law to the particular facts of this case, and I think that the pilot taken on board by compulsion of law was still in charge of the vessel at the time of the collision. With regard to the receipt of 5s. per diem, that has been disposed of by one of the cases to which I have referred, The City of Cambridge (ubi sup.), and the reception of it does not affect the construction I put upon the Act. I pronounce that the vessel was under the charge of a pilot, taken on board by compulsion of law, at the time the collision happened. Milward, Q.C. then applied for costs.-Admitting that it was the practice of the High Court of Admiralty not to allow costs in a case where a defendant raised other defences in addition to that of compulsory pilotage and succeeded only on the ground of compulsory pilotage, that is not the practice of the High Court of Justice, in which in all cases, including the present (see General Steam Navigation Company v. London and Edinburgh Shipping Company, ante p. 454; 36 L. T. Rep. N. S. 743; 2 Ex. Div. 467), a successful defendant gets his costs, and this division will follow the practice of the other divisions. Butt, Q.C. was not called on. Sir R. PHILLMORE.-I see no reason for altering the well-established practice of this court as to costs in cases of compulsory pilotage, and I shall, in accordance with that practice, make no order as to costs. Suit dismissed, but without costs. Solicitors for plaintiffs, owners of the Twee Zusters, Bateson and Co. Solicitors for defendants, owners of the Princeton, Duncan, Hill, and Dickenson. Tuesday, Feb. 26, 1878. THE FALCON. Appeal from County Court-Amount under 501.— Sect. 31 County Court Admiralty Jurisdiction Act 1868 (31 & 32 Via. c. 71). A plaintiff claiming an amount not exceeding 501. in an Admiralty cause in a County Court, is precluded from appealing from the decision of the court by sect. 31 of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71). The Doctor Van Thunnen Tellow (20 L. T. Rep. N. S. 960; 3 Mar. L. C. (O. S.) 244); and The [ADX. Elizabeth (L. Rep. 3 A. & E. 33; 21 L. T. Rep. N. S. 729), commented on and explained. THIS was an appeal from the City of London Court in its Admiralty jurisdiction. The plaintiffs, owners of the dumb barge Bromley, instituted a suit in that court against the Falcon, a steam vessel belonging to the General Steam Navigation Company, for damages sustained by the Bromley in a collision between that vessel and the Falcon in the river Thames on the 9th Sept. 1877. The plaintiffs claimed in the suit the sum of 301. The cause was heard in the City of London Court on the 5th Feb. 1878, when the learned judge of that court, Mr. Commissioner Kerr, dismissed it with costs. On the 12th Feb. 1878, Safford, for the plaintiff, moved ex parte to set aside the judgment, and obtained a rule nisi. On the 26th Feb. 1878 the rule came on for argument. The argument turned on the question whether sect. 31 of the County Courts Admiralty Jurisdiction Act 1868 gave any appeal to a plaintiff who had claimed less than 501. The following is the section in question : No appeal shall be allowed unless the amount decreed or ordered to be due exceeds the sum of 501. E. C. Clarkson and C. Hall, for the respondents, owners of the Falcon.—The court has no power to entertain the appeal. The action is only entered in 301.; and therefore by sect. 31 of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) there is no appeal. The Act is express that there is no appeal in such a case by defendants, and therefore by implication there is none for the plaintiffs. The Doctor Van Thunnen Tellow (20 L. T. Rep. N. S. 960; 3 Mar. Law Cas. O. S. 244) is not in point. That case only decided that the sec tion in question did not apply to a case where the plaintiff recovered nothing; but it does not appear that the suit in that case was instituted for less than 501. Had it been so there could have been no appeal, as the plaintiffs could never have recovered more than 501. The true interpretation of the section is that no appeal should be allowed where the amount recovered, or sought to be recovered, is less than 50l. That the section does apply to appeals by the plaintiffs is shown by The Elizabeth (L. Rep. 3 A. & E. 33; 21 L. T. Rep. N. S. 729; 3 Mar. Law Cas. O. S. 320). It is contrary to equity that an appeal should be denied to a defendant and allowed to a plaintiff. The whole spirit and purport of the County Court Admiralty Jurisdiction Act was to give a cheap remedy in these small cases, and the object of the Acts would be defeated if in such a case a plaintiff has a right of appeal. Where the words of a statute are ambiguous, as in this case, the courts will interpret them according to the intention of the Legislature. E. Clark and Safford for appellant.-This case is decided by The Doctor Van Thunnen Tellow (ubi sup.) and The Elizabeth (ubi sup.) The first of those cases shows that the 31st section of the County Courts Admiralty Jurisdiction Act 1868 does not apply to plaintiffs, and does not in any way limit the right of appeal which a plaintiff has in all cases. In the latter case there were cross-causes, and that in which the defendant was plaintiff was dismissed; and though he would have no appeal quâ defendant, he had a right of appeal quá plaintiff in his crosscause. Some reasonable construction must be ADM.] SIMPSON AND OTHERS v. THOMSON AND OTHERS. put on the 31st section, and the proper construction is obtained only by reading it as if the words "if any" were inserted, that is, " that no appeal shall be allowed unless the amount, if any, decreed or ordered to be due shall exceed the sum of 501." If it applies to plaintiffs the effect of the Act would be nugatory, for the plaintiff could always institute his suit for a sum larger than 50l., even if he did not expect to recover so much, and so retain his right of appeal. It is usual in statutes for the words "sum claimed " to be used, and not amount "decreed to be due." The Legislature in departing from the usual form of words must have had some meaning. If the statute is interpreted literally it can only apply to defendants; and it must have been the intention of the Legislature to leave the plaintiff's right of appeal untouched. If it applies at all to plaintiffs it must apply to them in every case where they do not succeed, as no amount is decreed to be due to them. Clarkson in reply.-The fact that a plaintiff could give himself a fictitious right of appeal by making a nominal claim over 50l., if my construction of the statute is correct, does not effect so great an injustice as would be created if the appellant's construction were correct. In that case the plaintiff, by reducing his claim just below 50l., would preserve his own right of appeal and preclude the defendant from appealing. The statute is intended to allow appeals when the amount of the bona fide claim does exceed 50l., i.e., when the amount decreed or ordered to be due might exceed the sum of 501." 66 Sir R. PHILLIMORE.-In this case the appellant was plaintiff in the City of London Court. He entered his action for 30l., and he got a decision of the judge against him. The question before me is whether, taking into consideration the true construction of sect. 31 of the County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71) he has or has not a right of appeal? The words of the Act are, "No appeal shall be allowed unless the amount decreed or ordered to be due ⚫ exceeds the sum of 501." I have no hesitation in saying that it appears to me that the whole purport of the statute shows it to have been the intertion of the Legislature to exclude appeals where the amount recovered is under 501. The question then is whether that construction can be put upon these words? Upon this question 1 will refer to the two cases that have been cited. I have no note of my judgment in The Doctor Van Thunnen Tellow (ubi sup.), but I am represented as having said, "The enactment is badly drawn. In my opinion the 31st section must be held to apply to appeals where an amount has been decreed to be due, that is, to appeals by defendants only." It is clear that that is an extra-judicial dictum, and not necessary for the decision of that case. In the case of The Elizabeth (ubi sup.) the court certainly decided that it was competent to the plaintiffs or the defendants to appeal. Now I think that neither of these decisions can be considered as governing the case before me, because the circumstance of the plaintiff, who is the appellant, having instituted his action for an amount less than 501. is not one which seems to me to be decided by either of those judgments. At all events, upon the best construction I can give to the section I am bound to decide this question, Can a plaintiff who has brought an action for only 301. appeal from the decision of the judge of the [H. OF L. court below to this court? Looking at the whole purport of the Act, and endeavouring, as it is my duty to do, to give a proper construction to the section of the statute, and having a strong opinion that it was the intention of the Legislature to exclude all appeals where the sum recovered did not exceed 50l., I think I must rule that there is no appeal in this case. I do so on the ground that the plaintiff having brought this action for 301., by no process whatever could he have got a decree or order which would have exceeded 50l. I do not disguise from myself the difficulty of the construction of the statute, but, upon the whole, I think that this is a reasonable construction to arrive at. As I consider it a case of considerable difficulty, I shall give no costs. Appeal dismissed for want of jurisdiction, but Solicitor for appellant, Preston. HOUSE OF LORDS. Reported by C. E. MALDEN, Esq., Barrister-at-Law. Nov. 6 and Dec. 13, 1877. (Before the LORD CHANCELLOR (Cairns), Lords PENZANCE, BLACKBURN, and GORDON.) SIMPSON AND OTHERS v. THOMSON AND OTHERS. ON APPEAL FROM THE FIRST DIVISION OF THE COURT OF SESSION IN SCOTLAND. Ship-Collision between ships of same owner-Merchant Shipping Act 1862, sect. 54- Rights of parties. The Merchant Shipping Acts, in giving shipowners power to limit their liability, do not create any new rights, but restrain existing rights by limiting liability. The right of the underwriters of a lost ship for damages against a wrong-doer is merely to make the same claim that the insured might have made. In the case of a collision between two ships belonging to the same owner, by which one was totally lost through the exclusive fault of the other: Held (reversing the judgment of the court below), that the underwriters of the policy on the lost ship could make no claim against the sum paid into court, under the Merchant Shipping Act 1862 (25 & 26 Vict. c. 63), s. 54, the insured being himself the person who had caused the damage. Yates v. Whyte (4 Bing. N. C. 272) approved and followed. THIS was an appeal from a decision of the First Division of the Court of Session in Scotland (the Lord President Inglis, Lords Deas and Mure). A Mr. William Burrell, a shipowner and shipping agent of Glasgow, was the owner of two steamships the Dunluce Castle and the Fitzmaurice-trading between Leith and London. In Feb. 1876, while the former vessel was on her voyage to the northward, and the latter to the southward, they came into collision off Lowestoft, through the exclusive fault of those in charge of the Fitzmaurice, and in consequence of the collision the Dunluce Castle was totally lost. Burrell admitted his liability as owner of the ship in fault, and petitioned the Court of Session to stop all actions and suits instituted against him as such owner in respect of the col H. OF L.] SIMPSON AND OTHERS v. THOMSON AND OTHERS. lision, and to limit his liability under sect. 54 of the Merchant Shipping Act 1862 (25 & 26 Vict. c. 63) to the sum of 3590l. which sum was paid into court. Burrell had effected policies of insurance on the Dunluce Castle for the sum of 60001. The appellants, who were the owners of the cargo on board the ship, and the respondents, who were the underwriters of the policies, and had paid as for a total loss, both put in claims upon the sum paid into court. Burrell had claimed against the respondents as underwriters in respect of the total loss of the Dunluce Castle, and the underwriters had paid the amount due on the policies, 6000l. Upon receiving payment, Burrell assigned to the respondents all his right, title, and interest as owner of the Dunluce Castle to recover any sums due from the underwriters of the Fitzmaurice. The respondents claimed to be ranked and preferred to the fund for the sum of 6000l. with interest pari passu with such other claimants as should establish their claims, or to be ranked after payment of the claims of the cargo, owners, and seamen of the Dunluce Castle. By interlocutor of Nov. 24, 1876, the Court of Session limited the liability of Burrell in respect of the collision, holding him liable for the sum of 35901 88. only, and ranked the claimants, including the appellants and respondents, pari passu on that fund. From this judgment the owners of the cargo appealed to the House of Lords. The case is reported in 4 Court of Session Cases (4th series) 177; 14 Scottish Law Rep. 120. Watkin Williams, Q.C. and J. C. Mathew appeared for the appellants, and argued that as Burrell could not have maintained a claim upon the fund in court, as he was owner of the ship in fault, and could not have any redress against himself, so the underwriters, who had put themselves in the position of the assured by paying the amount of the policies, could be in no better situation. Benjamin, Q.C. and E. C. Clarkson, for the respondents, contended that, as the underwriters would have been entitled to rank as claimants against the sum in question in the ordinary case of a collision between ships belonging to different owners, their rights could not be affected by the accidental circumstance that both the ships belonged to the same person. At the conclusion of the arguments, their Lordships took time to consider their judgment. Dec. 13.-Their Lordships gave judgment as follows: The LORD CHANCELLOR (Cairns). - My Lords, the appellants in this claim dispute a claim which was made. by the respondents (other than William Burrell) in the Court of Session, and allowed by them to rank as creditors upon a sum of 35901., which was paid into court under circumstances which I will shortly mention. William Burrell was the owner of two ships, the Dunluce Castle and the Fitzmaurice, trading between Leith and London. The Dunluce Castle was insured by two time policies. The policies were in the usual form, and were against (among other things) the perils of the seas. They were underwritten by the respondents, other than William Burrell, and those respondents I will afterwards calls the underwriters. The Dunluce [H. OF L. Castle, on her passage from London to Leith on 4th Feb. 1876, came into collision with the Fitzmaurice off Lowestoft, and in consequence of the collision the Dunluce Castle with her cargo was sunk and totally lost. The Fitzmaurice was entirely in the wrong, and it was through the negligent navigation of those in charge of her that the coilision took place. This being so, Burrell, as the owner of the vessel that was in fault, and admitting his liability, petitioned the Court of Session, under the Merchant Shipping Acts 1854 and 1862, to stop all actions instituted against him, paying into court the sum of 3590l. already mentioned, being the tonnage liability fixed by the Acts, and leaving those who had any claim or right of action against him to establish their claim or right against that sum. In the proceedings consequent on this petition the appellants, as owners of the cargo on board the Dunluce Castle, made and established a claim against the fund, as did also the master and seamen of the ship in respect of their effects lost in the collision, and the respondents, the underwriters, also made a claim, on the ground that they had paid 6000l. to Burrell under the two insurances on the Dunluce Castle as upon a total loss, and ought to rank as creditors against the fund in medio for that amount. The appellants resisted the right of the underwriters to share in the distribution of the fund; but the Court of Session, by the interlocutors under appeal, have sustained the right of the underwriters, and your Lordships have now to say whether that decision is correct. My Lords, I ought in the first place to state that, in my opinion, the question must be considered just as if the underwriters had brought an action against Burrell. It is true that under the Merchant Shipping Acts all actions against Burrell have been restrained, and a limited sum of money has been paid into court to answer rateably, as far as will suffice, the claims of all persons who have brought, or might bring, actions against him. But the Merchant Shipping Acts do not profess to create any new right; on the contrary, they act in restraint of existing rights, substituting merely a limited for an unlimited liability. The question must be looked at, therefore, in the same way as it would be if, all other things remaining the same, the underwriters were not in competition with any other claimants, but were suing Burrell for damages on the ground that his ship, the Fitzmaurice, had through careless navigation run down his other ship, the Dunluce Castle, upon which they, being the insurers, had paid as for a total loss. My Lords, the learned counsel who argued this case at your Lordships' bar on behalf of the respondents could not suggest that such an action had ever been brought, nor could they point out in any text book or in any decided case any authority that such an action could be maintained. In order, however, to determine whether such an action could be maintained it is necessary to ascertain the principle upon which the underwriters, having paid as upon a total loss, are held to succeed to whatever can be recovered in respect of the thing insured. The Lord President states this principle thus: "It is necessary to consider very particularly what H. OF L.] SIMPSON AND OTHERS v. THOMSON AND OTHERS. is the effect of a total loss, either actual or constructive, as in a question between the owners and the underwriters of the lost vessel. There can be no doubt that, whether the loss be actual or constructive, if it be a total loss, the property of the sunk vessel passes to the underwriters. And it is also quite settled that all the incidents of that property pass with it. But it is necessary to go a little deeper than that general statement of principle in order to see what is the precise relation of the underwriters and the owners after the property of the vessel has so passed from the one to the other. It is quite clear that in any transference, either of an heritable subject or of a corporeal movable by voluntary conveyance, nothing passes as an incident of the subject of the nature of a claim of damages. The disponee of an heritable subject or the purchaser of a corporeal movable takes it just as it stands at the time of the conveyance, with, of course, all the incidental rights belonging to it as a piece of property; but it is quite clear that in such a case a claim of damage for injury done to that property before transference takes place could never pass along with the conveyance of the subject. Now, it is quite settled that, in that kind of vendition which takes place by the operation of the law when the underwriter pays the contents of his policy upon a sunk ship, a claim of damages against a vessel which has caused the loss of the ship by collision does pass along with the property of what remains of the vessel; and therefore it is quite obvious from that consideration alone, without going any further, that the transference which is operated by force of law when the underwriter pays under his policy upon the lost ship is something quite different from an ordinary voluntary conveyance of a corporeal movable." And, further on the Lord President continues thus: "Then, is it to be said that when the property of the sunk vessel has passed to the underwriters with all its incidents, including the right to claim against the offending ship for the damage done by the collision-is it to be said that the owner of the offending vessel shall escape from this liability because he was also owner of the sunk ship? I confess I am quite unable to see any ground in law for holding that. It seems to me, on the contrary, to be quite clear that the operation of the legal assignment of the ship from the owner to the underwriters is to carry with it all the rights which would have belonged to any owner of that vessel, no matter who he might be; and as soon as by that legal assignment the owner of the offending ship ceased to be owner of the Dunluce Castle, there was no longer any identity of persons between the party who makes the claim and the party who is liable to satisfy the claim. That identity is put an end to by the operation of law, and therefore I think that the underwriters in these circumstances would have a perfectly good ground for action against the owner of the Fitzmaurice to make good the damage caused by the collision." The view of the Lord President, therefore, appears to be that, after payment by the underwriters as on a total loss, there is effected, by some independent operation of law, a transfer of whatever, if anything, can be recovered in specie of the thing insured; and that there is also created by a similar operation of law, and by reason of the transfer of the thing insured, an independent right in the underwriters to maintain in their own name, and [H. OF L. without reference to the person insured, an action for the damage to the thing insured, which was the cause of the loss. My Lords, speaking with great respect for the Lord President and the other learned judges who followed his opinion, I feel bound to say I am not aware of any authority for the view of the case thus taken by him. The case cited by him of the North of England Insurance Company v. Armstrong (L. Rep. 5 Q. B. 224; 21 L. T. Rep. N. S. 822; 3 Mar. Law Cas. O. S. 330) does not appear to me to touch the question. The reasoning of the Lord President would be inapplicable to the case of a partial loss, and yet no one would dispute the right of underwriters, after paying to A on partial loss occasioned to his ship by the collision of the ship of B. to sue B if his ship was in fault. I know of no foundation for the right of underwriters, except the well-known principle of law that where one person has agreed to indemnify another he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or reimbursed himself for the loss. It is on this principle that the underwriters of a ship that has been lost are entitled to the ship in specie if they can find and recover it; and it is on the same principle that they can assert any right which the owner of the ship might have asserted against a wrongdoer for damage for the act which has caused the loss. But this right of action for damages they must assert, not in their own name, but in the name of the person insured; and if the person insured be the person who has caused the damage, I am unable to see how the right can be asserted at all: The case of Yates v. Whyte (4 Bing. N. C. 272) involved questions analogous to, and, as it seems to me, decisive of the present. The plaintiff was there suing the defendants for damaging his ship by collision, and the defendants sought to deduct from the amount of damages to be paid by them a sum of money paid to the plaintiff by his insurers in respect of such damage, and if the insurers had possessed an independent right of action against the defendants, the defendants might no doubt have been right in their contention. I think it desirable to read to your Lordships what was said by some of the learned judges in that case. Tindal, C.J., says: "I think this case is decided in principle by that of Mason v. Sainsbury (Marshall on Insurance, 3rd edit. 796; 3 Douglas' Reps. 61). There a party whose property had been burned by a mob, was allowed, after receiving the amount of his loas from an insurance office, to sue the hundred on the statute 1 Geo. 1, for the benefit of the insurers. The only distinction between that case and the present is, that there the action for the wrong was brought at the instance of the insurance office, which is not the case here. But it establishes that the recovery upon a contract with the insurers is no bar to a claim for damages against the wrong-doers." Lord Mansfield says (Marshall on Insurance, 3rd edit. 796): "Though the office paid without suit, this must be considered as without prejudice, and it is to all intents as if it had never been paid. The question comes to this: Can the owner of the house having insured it, come against the hundred under this Act. Who is first liable? If the hundred be first liable, still it makes no difference. If the insurers |