with the requirements of the law if the owner shall transfer his interest in the vessel and freight to a trustee for the benefit of the claimants. In most cases this cannot be done until the voyage is ended; for until then the embezzlement, loss or destruction of property cannot be known. And this was manifestly the maritime law; for by that law the abandonment of the ship and freight (when not lost) was the remedy of the owners to acquit themselves of liability, and of course this could only be done at the termination of the voyage. If the ship was lost, and the voyage never completed, the owners were freed from all liability. Boulay-Paty, Droit Com. Mar., tit. 3, §§ 1, pp. 263, 275, et seq.; Emerig. Contrats à la Grosse, ch. 4, sec. 11, §§ 1, 2; Valin Com. liber 2, tit. 8, art. 2; Consolato del Mare, chs. 34 (141), 186 (182), 227 (194), 239; 2 Pardessus' Collection; Cleirac Nav. de Rivières, art. 15. If however by reason of the loss or sinking of the ship the voyage is never completed, but is broken up and ended by causes over which the owners have no control, the value of the ship (if it has any value) at the time of such breaking up and ending of the voyage must be taken as the measure of the owners' liability. In most cases of this character no freight will be earned; but if any shall have been earned, it will be added to the value of the ship in estimating the amount of the owners' liability. These consequences are so obvious that no attempt at argument can make them any plainer. If this view is correct, it follows as a matter of course that any salvage operations, undertaken for the purpose of recovering from the bottom of the sea any portion of the wreck, after the disastrous ending of the voyage as above supposed, can have no effect on the question of the liability of the owners. Their liability is fixed when the voyage is ended. The subsequent history of the wreck can only furnish evidence of its value at that point of time. And it makes no difference in this regard whether the salvage is effected by the owners or by other persons. Having fixed the point of time at which the value is to be taken, the statute does the rest. It declares that the liability of the owner shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. If the vessel arrives in port in a damaged condition, and earns some freight, the value at that time is the measure of liability; if she goes to the bottom, and earns no freight, the value at that time is the criterion. And the benefit of the statute may be obtained either by abandoning the vessel to the creditors or persons injured, or by having her appraisement made, and paying the money into court, or giving a stipulation in lieu of it, and keeping the vessel. This double remedy giveu by our statute is a great convenience to all parties. It does not make two measures or standards of liability, for the measure is the same whichever course is adopted; but it enables the owner to lay out money in recovering and repairing the ship without increasing the burden to which he is subjected. It follows from this that the proper valuation of the steamer was taken in the court below, namely, the value which she had when she had sunk, and was lying at the bottom of the sea. That was the termination of the voyage. The next question to be considered is whether the petitioners were bound to account for the insurance money received by them for the loss of the steamer as a part of their interest in the same. The statute, section 4283, declares that the liability of the owner shall not exceed the amount or value of his interest in the vessel and her freight; and section 4285 declares that it shall be a sufficient compliance with the law if he shall transfer his interest in such vessel and freight, for the benefit of the claimants, to a trustee. Is insurance an interest in the vessel or freight insured, within the meaning of the law? That is the precise question before us. It seems to us at first view that the learned justice who decided the case below was right in holding that the word "interest" was intended to refer to the extent or amount of ownership which the party had in the vessel, such as his aliquot share, if he was only a part owner, or his contingent interest, if that was the character of his ownership. He might be absolute owner of the whole ship, or he might own but a small fractional part of her, or he might have a temporary or contingent ownership of some kind or to some extent. Whatever the extent or character of his ownership might be that is to say, whatever his interest in the ship might be-the amount or value of that interest was to be the measure of his liability. This view is corroborated by reference to a rule of law which we suppose to be perfectly well settled, namely, that the insurance which a person has on property is not an interest in the property itself, but is a collateral contract, personal to the insured, guarantying him against loss of the property by fire or other specified casualty, but not conferring upon him any interest in the property. That interest he has already by virtue of his ownership. If it were not for a rule of public policy against wagers, requiring insurance to be for indemnity merely, he could just as well take out insurance on another's property as on his own, and it is manifest that this would give him no interest in the property. A man's interest in property insured is so distinct from the insurance that unless he has such an interest independent of the insurance his policy will be void. This rule of the law manifests itself in var ious ways. If a mortgagor insures the property mortgaged, the mortgagee has no interest in the insurance. He may stipulate that the policy shall be assigned to him, and the mortgagor may agree to assign it; and if it be assigned with the insurer's consent, the mortgagee will then have the benefit of it; or if not assigned according to agreement, the mortgagee may have relief in equity to obtain the benefit of it. So where the property is sold the insurance does not follow it, but ceases to have any value, unless the insurer consent to the transfer of the policy to the grantee of the property. In other words, the contract of insurance does not attach itself to the thing insured, nor go with it when it is transferred. It is hardly necessary to cite authori ties for a rule which has become so elementary. We will only refer to a few of them: King, L. C., in Lynch v. Dalzell, 4 Brown Parl. Cas. 431; S. C., 2 Marsh. Ins. 801; Lord Hardwicke in Sadlers v. Badcock, 2 Atk. 554; Carroll v. Boston Marine Ins. Co., 8 Mass. 515; Columbia Ins. Co. v. Lawrence, 10 Pet. 507, 512; Carpenter v. Providence Washington Ins. Co., 16 id. 495, 503; Ætna Ins. Co. v. Tyler, 16 Wend. 386, 397; Wilson v. Hill, 3 Metc. 68; Powles v. Innes, 11 Mees. & W. 13; McDonald v. Black's Adm'r, 20 Ohio St. 185; Plimpton v. Insurance Co., 43 Vt. 497. Carroll v. Boston Marine Ins. Co., Powles v. Innes and McDonald v. Black's Adm'r were cases of marine insurance, and the same rule was followed in those cases as in cases of insurance against fire. It is not an irrelevant consideration in this regard that the owner of the property is under no obligation to have it insured. It is purely a matter of his own option. And being so, it would seem to be only fair and right, and a logical consequence, that if he chooses to insure he should have the benefit of the insurance. He does not take the price of insurance from the thing insured, but takes it out of the general mass of his estate, to which his general creditors have a right to look for the satisfaction of their claims. They are the creditors who have the oest right to the insurance. Stress is laid upon the hardship of the case. It is said to be unjust that the ship-owner should be entirely indemnified for the loss of his vessel, and that the parties who have suffered loss from the collision by the fault of his employees should get nothing for their indemnity. This mode of contrasting the condition of the parties is fallacious. If the ship-owner is indemnified against loss, it is because he has seen fit to provide himself with insurance. The parties suffering loss from the collision could, if they chose, protect themselves in the same way. In fact they generally do so, and when they do, it becames a question between the insurers and the ship-owner whether they or he shall have the benefit of his insurance. His insurers have to pay his loss. Why should not the insurers of the other parties pay their loss? The [truth is that the whole question after all comes back to this: whether a limited liability of ship-owners is consonant to public policy or not. Congress has declared that it is, and they, and not we, are the judges of that question. Having, as we think, ascertained the true construction of the statute, the point in dispute is readily settled. It is a question of construction, and does not require an examination of the general maritime law to determine it. If the rule of the maritime law is different, the statute must prevail. But from such examination as we have been able to make, we think that the weight of maritime authority is in accord with the disposition of our statute as we have construed it, and that the statute has adopted the maritime law on this point as well as on the question of time for estimating the value of the ship. The contract of insurance is of modern origin. It is not mentioned in the early treatises or compilations of maritime law. It is but little noticed prior to the sixteenth century. On a question like the present we naturally turn to the French writers, who are distinguished for their great learning and acumen on maritime subjects. The principal text law on which they rely prior to the Code of Commerce adopted in the present century is the Ordinance de la Marine of 1681. By this ordinance it is declared that the owners of ships shall be responsible for the acts of the master; but they shall be discharged therefrom by abandoning their vessel and freight. The Code of Commerce, art. 216, has substantially the same provision. Beyond this general declaration (which is simply an announcement of the maritime law on the subject), the special rules applicable to particular cases, and necessary for securing the benefit of the general rule in all, have to be drawn from the general principles of the same maritime law. Whether in abandoning the ship to the creditors, the owners are or are not obliged to abandon the insurance effected on the ship, is a question which had to be decided by the application of the general principles referred to. The history of opinion among maritime writers on this subject is briefly this: Valin and Emerigon, two great French jurists, contemporaries and friends, wrote on the maritime law, In 1760, Valin published his New Commentary on the Ordinance of the Marine of 1681. In 1783, Emerigon published his Treatise on Assurances and Contracts of Bottomry (Traité des Assurances et Contrats à la Grosse). Emerigon furnished Valin a large portion of the materials of which the latter's commentary was composed. Both of them are regarded as great authorities on maritime law. These jurists differed on the question we are considering. Valin thought that those who furnished materials and supplies for a ship, and those who labored on its construction or repair, should have the power of transferring their lien on the vessel to the insurance money received by the owner for its loss. He reasons that this should be so because the material men and the workmen helped to make the thing which forms the subject of the insurance; while he admits that the parlement of Bourdeaux had decided otherwise as late as September, 1758. So that the views expressed by Valin seem to be his opinion of what the law ought to be, rather than what it was. 1 Valin Com. 315, 316, liber 1, tit. 12, art. 3. Emerigon strenuously opposes Valin's opinion. His reasons are that liens are stricti juris, and are not to be extended by construction; that if Valin's rule is well founded, a vendor on credit would have a lien on the price arising on a subsequent sale of the same thing by his vendee after the thing itself had ceased to exist, which was contrary to repeated decisions; that by stronger reason, material-men and workmen have no lien on the assurance of a ship which never belonged to them, for there is nothing essentially common between the right of pledge aud that of property; that the ordinance gives no privilege to the material-men and workmen except on the ship, and therefore they have none on the insurance, according to the rule of strict construction already stated; that if the ship were represented by the insurance it would be necessary to give the same privilege to the seamen and all other privileged creditors, which would destroy the whole object of insurance, that on the same principle, insurance ought to be represented by reinsurance, which it is well settled, cannot be done. Emerigon Cont. Grosse, ch. 12, § 7. The opinion of Emerigon was followed with but lit. tle dissent until a recent period. The most prominent writer who disagreed with him was Pardessus, who in the first edition of his Droit Commerciel, published in 1814 (art. 663), after stating the general rule that the owner may discharge himself from responsibility by abandoning the ship and freight, added: "If these things have been insured, he ought to abandon also his rights against the insurers." The sentiment is repeated as his personal opinion in the subsequent editions of his work (same art. 663), but he is obliged to concede that the law is otherwise. In the edition of 1841 (art. 594, 2d), after asking the question whether a creditor, having a privilege or a hypothecation on a thing insured, could require a distribution of the insurance money as would be made of the price on a sale, he says: "I think not; there is not the same reason. In the case of sale the price must, in the nature of things, represent the thing sold, the owner parting with it only for that. In the case of insurance the thing has perished; it has not been assigned in consideration of any price. The debtor has procured, it is true, a guaranty, by the effect of which the insurer pays him the value of it; but this guaranty is the result of an agreement independent of the engagements of the assured with any particular creditors. The value paid does not represent the thing insured, except in the relations between the insurer and the insured; not in the relation between the latter and his creditors, except as an accession to the mass of his property, against which the creditors may prosecute their actions according to the principle of the civil law by which all the property of a debtor is the common pledge of his creditors; but without any preference, none of them having a peculiar right to a privilege on the contract of insurance which has caused the amount assured to be added to the assets of the common debtor. It would be otherwise, undoubtedly, if the debtor in borrowing upon a hypothecation of a house insured, should at the same time assign to his creditor the contingent benefits of the insurance, to serve for his discharge to that extent, and if the creditor should duly notify the insurer," etc. This passage shows that even Pardessus admitted the law to be as Emerigon had declared it. Boulay-Paty, the contemporary of Pardessus, who published his work on Maritime Commercial Law (Droit Com. Mar.) in 1821, warmly espouses the views of Emerigon. His observations on the subject are exceedingly sensible and persuasive. After quoting the views of Valin and Emerigon, he says: "We must agree that Emerigon's opinion is most conformable to principle, and that the transfer or subrogation of which Valiu speaks is not admissible," that is the transfer of the lien from the property to the insurance. He adds: "The axiom subrogatum tenet locum subrogati should be understood as applicable when the thing has been changed into something else by the owner, who has received the other thing in its place; as in the case when the owner of a ship has sold it, it is certain that the lien is transferred according to undoubted law to the price. But when the thing is perished in the hands of the debtor, certainly all lien is extinct. L8ff, quibus modis pignus vel hypotheca solvitur. Is it possible to suppose that an insurance, which is an agreement foreign to the creditors holding liens, which has been effected between the owners and a third party, can have the effect to bring again into life the lien on the ship?" Volume 1, p. 135. He goes on to argue the question at great length, and with much force; but it would extend this opinion too much to quote bis argument at length. One more extract will suffice. After showing the difference between abandonment to the lien creditors and surrender to the insurers, and that the latter does not interfere with or prevent the former, he says: "The product of the insurance is the price of the premium which the ship owner has paid to insure the ship. This premium is not bound as a security for debts and obligations contracted by the captain; the law expressly binds the ship and freight alone to that. The Code of Commerce gives to shippers a lien only on ship and freight, consequently they have none on the insurance. In general, the ship is not represented by the insurance, which after the loss of the ship becomes a right existing by itself, which gives a direct personal action in favor of the insured. All these principles besides agree with equity and well understood interests of commerce. Without this rule indeed insurances on the hull of a ship would become illusory for her owner, since he would have no way, even by stipulating for a guaranty against barratry of the master, which it is customary to do, to protect himself against any other loss than that of the premium; and yet this is both the object of insurance and the motive for which the premium is paid." Volume 1, pp. 291, 292. commentary on the Code de Commerce. Dufour attempted to renew the controversy, although he admitted that the views of Emerigon had been acquiesced in even by Pardessus, and that Valin stood alone, he says: "Doctrine and jurisprudence, after some hesitation, pronounced themselves, as is well known,against the existence of a privilege or hypothecation on the indemnity due from the insurer; and in that way the general principle which Emerigon had adopted as the basis of his theory penetrated men's minds as an indisputable truth which ought thenceforth to govern all indemnities of insurance. Thus it is for example, that M. Pardessus, speaking of this question in relation to maritime credits, comes back for its solution to the general principles relating to insurance; so that the opinion of Valin seems to be crushed under this imposing unanimity." Dufour Droit Maritime, art. 261. Dufour then devotes many pages to argue the question ab origine, persuading himself that he has established the correctness of Valin's views. But his admission at the beginning of his argumeut demonstrates that the maritime jurisprudence of France was in accordance with the opinion of Emerigon. In consequence probably of this effort to bring the matter again into question, Bedarride examined the subject with great care, both on principle and authority, and showed that the law was not only settled, but should not be disturbed. Bedarride Droit Commercial, art. 295. But the advocates of change persisted in their efforts, until finally on the 22d of December, 1874. on the passage of a law to render ships susceptible of hypothecation, they procured a section to be inserted (§ 17) declaring that in case of loss or disablement of the ship, the rights of the creditors (that is hypothecation creditors) may be enforced not only against the portions saved, or their proceeds, but (in the order of registry) against the proceeds of any assurances that may have been effected by the borrower on the hypothecated ship. This law however does not extend to tacit liens or privileges. For further authorities in the French law, to the same effect as Boulay-Paty and Bedarride, see 2 Pouget Prin. de Droit Mar. (ed. 1858) 415–419; 3 Eloy et Guerraud, Des Capitaines (1860), art. 1894; Caumont Dict. de Droit Mar. tit. "Abandon Mar.," §§ 54, 55; De Villeneuve et Masse, Dict. du Contentieux Commercial, verb "Armateur," 20. In Germany the history of the question has been, to some extent, the reverse of what it has been in France. The Prussian Code, adopted in 1794, allowed shipowners to "free themselves from responsibility in all cases by a surrender of the ship, including all benefits of the voyage and their rights against the insurers." But Prussia was the only country that adopted this rule in relation to insurance. In 1856 a scheme was set on foot to have a conference to prepare a general commercial code for all the German States. Commissioners were appointed by the several States for this purpose, who held repeated sessions, but came to no agreement on a general Code until March, 1862. The Prussian commissioners strenuously urged the adop tion of their law on the subject of subrogation to the claims for insurance. The arguments presented by them are spread before us to some length in one of the briefs of the counsel for the appellants. The con During the seven years from 1827 to 1834, an animated controversy was carried on in France on the question whether article 216 of the Code of Commerce, in speaking of the "acts" (faits) of the master, meant to include his contracts lawfully made in the course of the voyage, or only his wrongful acts, and finally the matter came before the legislative body for solution In 1841 that body modified article 216 so as to expressly embrace contracts of the master as well as other acts. It was at the same time sought to intro-vention however were not convinced, and rejected the duce a clause which should render it the owner's duty, proposition, and the Prussian commissioners were in abandoning the ship and freight, to obtain the bene- obliged to yield the point, and now all Germany, under fit of limited liability, also to abandon his claim for in- this new Commercial Code, adheres to the old marisurance on them; but this provision failed to receive time law. It is only necessary to add that in the disassent. The law remained as it had always been. cussions of the convention it was conceded that the In 1859 two very able works were published in maritime law had never required the surrender of the France in which the subject was again discussed; one insurance, but only that of the ship and freight. By by Edmond Dufour, entitled "Droit Maritime; the Commercial Code of Holland and the Ordinance one by J. Bedarride, entitled "Droit Commercial," a of Bremen this rule is expressly formulated. " and It appears therefore that the disposition of our statute is in conformity with the general maritime law of Europe; and that the recent legislation in France (1874) is an innovation upon that law. seizure for contraband cargo or illegal trade; and it may even be called "the guilty thing;" but the liability of the thing is so exactly the owner's liability, that a discharge or pardon extended to him will operate as a release of his property. It is true that in United States v. Mason, 6 Biss. 350, it was held that in a proceeding in rem for a forfeiture of goods the owner might be compelled to testify, because the suit is not against him, but against the goods. That de case of Boyd v. U. S., 116 U. S. 616, 637; S. C., ante,524, in which it is said: "Nor can we assent to the proposition that the proceeding (in rem) is not in effect a proceeding against the owner of the property as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture, and it is his property which is sought to be forfeited. In the words of a great judge: 'Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are."" Vaughan, C. J., in Sheppard v. Gosnold, Vaugh. 159, 172, approved by Parker, C. B., in Mitchell v. Torup, Parker, 227, 236. It is next contended that the act of Congress does not extend to the exoneration of the ship, but only exonerates the owners by a surrender of the ship and freight, and therefore that the plea of limited liability cannot be received in a proceeding in rem. But this argument overlooks the fact that the law gives a two-cision however was disapproved by this court in the fold remedy, surrender of the ship, or payment of its value and declares that the liability of the owner, in the cases provided for, shall not exceed the amount or value of his interest in the ship and freight. This provision is absolute, and the owner may have the benefit of it, not only by a surrender of the ship and freight, but by paying into court the amount of their value, appraised as of the time when the liability is fixed. This, as we have seen, enables the owner to reclaim the ship, and put it into complete repair, without increasing the amount of his liability The absolute declaration of the statute that his liability shall not exceed the amount or value of the ship and freight, to-wit, at the termination of the voyage, has the effect, when that amount is paid into court, under judicial sanction of discharging the owner's liability, and thereby of extinguishing the liens on the vessel itself, and of transferring those liens to the fund in court. This is always the result when the owner is allowed to bond his vessel by payment of its appraised value into court, or by filing a stipulation with sureties in lieu of such payment. The vessel is always dis-perienced counsel, and the point would certainly have charged from the liens existing upon it when it has been subjected to a judicial sale by order of the admiralty court, or when it has been delivered to the owner on his stipulation with sureties. The claim that the lien attaches to the repairs and betterments which the owner puts upon the vessel after the amount of his liability has been fixed is repugnant to the entire drift and spirit of the statute. In ordinary cases it may be true, and undoubtedly is true, that a lien or privilege on the ship extends to and affects all its accretions by repair or otherwise; but in the case of a claim for limited liability under the statute, the dispositions of the statute are to govern; and these, as we have seen, fix the amount of liability at a certain time, and when that liability is discharged the lien is discharged; no matter what the then value of the ship may have come to by means of alterations and repairs. The time when the amount of liability should be paid into court will depend upon circumstances. If the owner sets up his claim to limited liability in his answer, and does not seek a general concurrence of creditors, it will be sufficient if the amount is paid after the trial of the cause, and the ascertainment of the amount of liability in the decree. Payment and satisfaction of the decree will be a discharge of the owner as against all creditors represented in the de cree. To say that an owner is not liable, but that his vessel is liable, seems to us like talking in riddles. A man's liability for a demand against him is measured by the amount of property that may be taken from him to satisfy that demand. In the matter of liability a man and his property cannot be separated, unless where, for public reasons, the law exempts particular kinds of property from seizure, such as the tools of a mechanic, the homestead of a family, etc. His property is what those who deal with him rely on for the fulfillment of his obligations. Personal arrest and restraint, when resorted to, are merely means of getting at his property. Certain parts of his property may become solely and exclusively liable for certain demands, as a ship bound in bottomry, or subject to But the argument is at war with the spirit as well as the text of our decisions on the subject of limited liability. The case of The Benefactor, 102 U. S. 214; S. C., 103 id. 239, is precisely in point. That was a case of libel in rem against the vessel in fault, and the proceeding for a limited liability was sustained. It is true that this particular point was not raised, but the parties in the case were represented by able and ex been raised if they had regarded it as tenable. We are not only satisfied that the law does not compel the ship-owner to surrender his insurance in order to have the benefit of limited liability, but that a contrary result would defeat the principal object of the law. That object was to enable merchants to invest money in ships without subjecting them to an indefinite hazard of losing their whole property by the negligence or misconduct of the master or crew, but only subjecting them to the loss of their investment. Now to construe the law in such a manner as to prevent the merchant from contracting with an insurance company for indemnity against the loss of his investment, is contrary to the spirit of commercial jurisprudence. Why should he not be allowed to purchase such an indemnity? Is it against public policy? That cannot be, for public policy would equally condemn all insurance by which a man provides indemnity for himself against the risks of fire, losses at sea, and other casualties. To hold that this cannot be done tends to discourage those who might otherwise be willing to invest their money in the shipping business. It would virtually and in effect bring back the law to the English rule, by which the owner is made liable for the value of the ship before collision, the very thing which, in all our decisions on the subject, we have held it was the intention of Congress to avoid by adopting the maritime rule. That this would be the result is evident, because all ship-owners insure the greater part of their interest in the ship, and by losing their insurance they would use the value of their ship in every case. No form of agreement could be framed by which they could protect themselves. This is a result entirely foreign to the spirit of our legislation. When it was urged upon the Chamber of Peers of France in 1841 to pass a law requiring the abandonment of insurance, as well as of ship and freight, in order to relieve the owner from liability, the suggestion was not entertained. The opinion of the majority was that the relations between the ship-owner and lenders or shippers ought to remain entirely independent of contracts of insurance which either could make; that an obligation to abandon insurance would have no other tendency than to prevent insurance by the owner, since he would be deprived of the benefit of it in case of loss. 3 Bedarride, art. 295, p. 361. The argument, that to allow the owner to keep his insurance would encourage negligence and recklessness on his part, can always be made in every case of insurance. It has been made and answered a hundred times. Generally a sufficient portion of the value of the thing insured remains uncovered by insurance to prevent indifference to loss; and if the temptation to wish it does exist in any case, the retributions are so fearful as to repress the thought. To the honor of human nature, the exceptions to the rule are exceedingly rare. It is also contended that the right to proceed for a limited liability is waived and lost by a surrender of the vessel to the insurers, because it is then out of the owner's power to abandon the ship to the claimants who have liens upon her. This argument assumes that abandonment is necessary, which is not the case under our law. Payment of the ship's value into court, or setting up the matter as a defense, is quite as efficacious. But if abandonment were necessary, as it is by the maritime law, a surrender to the insurers does not interfere with or prevent a subsequent abandonment to the creditors. The insurers take the ship cum onere, and stand in no better plight than the original owners. The liens against the ship are not extinguished by the surrender to the insurers, but may be prosecuted by the creditors notwithstanding such surrender, unless proceedings for a limited liability are instituted. This is fully shown by Boulay-Paty (vol. 1, pp. 293-297), and by Bedarride, in article 291 of his work, above cited. The former, after showing that abandonment to the lien creditors may be made, notwithstanding a previous surrender to the insurers, and explaining the reason of it, says: "It follows from thence that the owner may, by abandonment, turn the shippers (of cargo) over to the insurers (now become the owners by the surrender of ship and freight to them), and thus make abandonment and surrender at the same time." 1 Boulay-Paty, 295. This disposes of all the important points in the case, and leads to the conclusion that the decree of the Circuit Court was right, and it is affirmed. Lord ESHER, M. R. In this case, if the plaintiff had any real ground of complaint at all, it was because of his being confined in an asylum, and his liberty being interfered with. That, I say, was his real complaint, if he had any. Having been confined as a lunatic, he brings an action against his brother-in-law for signing the order. To that real ground of complaint he adds another plea, which if he obtains a verdict on the first, will be of no consequence at all. He says that in the order under which he was imprisoned the defendant states that the plaintiff was a lunatic, and that that was a libel. The addition of the libel is a great hardship on the other side. It is trying to catch at a straw if the first plea fails, so that the plaintiff himself begins by this foolish addition to what was his real claim, if any. With great deference to those who drew the defendant's pleading, I must say that they drew a remarkably bad pleading. First, it was double in its form; and secondly, in the second part of that duplexity it put immaterial allegations. There being the two causes of action alleged by the plaintiff, where ought only to have been one, there is no doubt that the defendant was obliged to plead to both. With regard to the first, in the present state of the law, it being an action for false imprisonment, the only defense which the defendant could make to it was that he was justified in putting him into confinement. What would justify him? The order for confining him because he was a lunatic. An act of Parliament has said that if a person is a lunatic, you may make an order that he shall be confined. According to the present law, if a person is a lunatic you may do that. Then if you undertake to make that order you run the risk of its being proved hereafter that he was not a lunatic. If he was not a lunatic, you have no right to make the order. Therefore the defense to that part of the claim is that the plaintiff is a lunatic. Looking at the certificate which is to be given by the doctor according to the act-although it is not set forth in the acta person must not only apparently be a lunatic, but also must be a lunatic and a person who ought to be under care and treatment. If that is true, then the defense to the false imprisonment is that the plaintiff was a lunatic, and so far a lunatic that it was right to put him under care and treatment. That is the defense, and nothing else is a defense. It does not sig Matthews, Miller, Harlan and Gray, JJ., dissenting. nify whether the person who signed the order had the BILL OF PARTICULARS - LIBEL. ENGLISH COURT OF APPEAL, MARCH 12, 1886. CAVE V. TORRE.* The plaintiff sued the defendant for having wrongfully made THE opinion states the point, Robert G. Glenn, for appellant. *54 L. T. Rep. (N. S.) 515. most reasonable and probable cause to think that his brother was a lunatic. If he signed that order, according to the present law, he must justify that by proving that his brother was a lunatic. Then there is his defense. Now that is not a general defense which may be one or other of two defenses. It is the defense, and there are two facts to be proved-first, that the plaintiff was a lunatic; and secondly, if necessary -if that is part of the defense- that he was such a lunatic as that it was right and proper to put him under care and treatment. Then it is said the defendant must give the particulars. What particulars can he give of that? He has got to prove those two facts. There are no particulars to give. There is evidence to give. How is it proved that a man is a lunatic? The evidence may be of some one act that he has done that would satisfy any one that he was a lunatic. It would be wicked to go through the sort of acts that might prove it. One knows perfectly well that one act might prove it. The evidence may also consist of a great many different facts, but there is no law which requires you to give particulars of the evidence which you are going to adduce to prove a particular fact. Therefore the particulars asked for really constitute the evidence which the defendant is supposed to be going to give, in order to prove the two separate facts which he has undertaken to prove. Then we come to the question of libel. If the defendant had pleaded |