the facts, observing that there was no distinct averment that the money was here, and proceeded as follows:-] If the case simply depended on the deposit being in London, this Court would be far too weak to overthrow the practice in cases where persons are out of the jurisdiction. In Whitmore v. Ryan, every argument was used to induce the Vice-Chancellor to discharge the order for service abroad. This rule of Court was made in 1845, under the acts of the 3 & 4 Vict. and the 4 & 5 Vict. Extraordinary sanction was given to those rules, as they were by the acts to have authority, unless they were interfered with within thirty days after they were laid before Parliament. They had the deliberate sanction of Parliament, and Sir J. Wigram, V. C., in 1846, decided that the rules were valid, though far surpassing in extent the acts of Will. 4. Since that time the course of practice has been uniform. One reason that those rules were sanctioned by Parliament was, possibly, that they are not imperative, but permissive only; and in several cases the Court has refused to allow the service to be made. The decision in Cookney v. Anderson was, that in that case the Court never had jurisdiction, though the grounds of the judgment no doubt go much deeper, that there is no jurisdiction in any case not given by the acts.

But observe the sanction which the rules have received. They were made in 1845 by all the judges. Further than that, a case was decided in 1846 by a judge in favour of those rules, which was acquiesced in for seventeen years. Further than that, all the judges re-enacted those rules by the Consolidated Orders in the time, and with the sanction, of Lord Chancellor Campbell. In this case the course that I intend to take does not in any way conflict with the decision of Cookney v. Anderson. Here the jurisdiction seems to me entirely Scotch. If the property were in this country, in the hands of an English agent, it would be the same case as Venning v. Loyd (1 De G., F., & J. 193; 6 Jur., N. S., 81). But there is no clear and distinct averment in the bill that the property is here, or else I should follow the established practice. I must, therefore, discharge this order, but I do it distinctly on the ground, that it is not expedient, having regard to the circumstances of the case; and I discharge it, without

costs.

COURT OF QUEEN'S BENCH.

TRINITY TERM.

9

On appeal to the Carnarvonshire quarter sessions against an order for the removal of Ellen Roberts and her children from the parish of Abererch to the parish of Llangian, made by G. T. P. Jones and Ĥ. H. Hughes, two justices of the borough of Pwllheli, the sessions confirmed the order, subject to the following case:

The paupers resided in the parish of Abererch, within the limits of the borough of Pwllheli, at the time the order was made. The borough is one of the boroughs mentioned in Schedule (B.) of the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, and G. T. P. Jones was the mayor, and H. H. Hughes the exmayor thereof, being justices of the peace for the said borough, by virtue of the provisions of the 57th section of the act; and there are no other justices of the peace for the borough, no separate commission of the peace having been granted to it.

The ground of appeal relied on by the appellants was-"Because the said G. T. P. Jones and H. H. Hughes are not justices, nor is either of them a justice of the quorum in and for the borough of Pwllheli."

Jones and H. H. Hughes not being justices of the It was contended by the appellants, that G. T. P. quorum, in and for the said borough, had no authority or jurisdiction to make the order.

The question for the opinion of the Court was, whether the said justices, as such justices of the borough, had any jurisdiction to make the order, neither being a justice of the quorum in and for the said borough, and the said borough having no other justice of the peace. If they had not, the order was to be quashed.

G. Evans, for the respondents.-First, it is not now necessary that either of the removing justices should be of the quorum. Sect. 1 of the 13 & 14 Car. 2, c. 12, enacts, that "it shall and may be lawful, upon complaint made by the churchwardens and overseers of the poor of any parish to any justice of the peace within forty days after any such person or persons coming to settle as aforesaid, for any two justices of the peace, whereof one to be of the quorum of the division where any person or persons that are likely to become chargeable to the parish shall come to inhabit, by their warrant to remove and convey such person or persons to such parish where he or they were last legally settled." This section is repealed by sect. 1 of the 35 Geo. 3, c. 101, which provides, "that from and after the passing of this act, so much of the said recited act of the 13th and 14th years of

BURN, JJ.]

REG., on the Prosecution of THE OVERSEERS OF ABERERCH v. THE OVERSEERS OF LLANGIAN.May 27.

Removal of pauper-Jurisdiction of justices—Justices of the quorum-Mayor of borough-13 & 14 Car. 2, c. 12, 8. 1-35 Geo. 3, c. 101, s. 1-Municipal Corporation Act, 5 & 6 Will. 4, c. 76, s. 57.

Sect. 1 of the 13 & 14 Car. 2, c. 12, is entirely repealed by sect. 1 of the 35 Geo. 3, c. 101; and it is, therefore, no longer necessary, in case of removal of a pauper, that one of the removing justices should be of the quorum.- -Per Wightman and Blackburn, JJ.; dissentiente, Cockburn, C. J.

Per Cockburn, C.J., that neither the mayor nor the exmayor of a borough are constituted justices of the quorum by sect. 57 of the 5 & 6 Will. 4, c. 76. Semble, per Blackburn, J., that the former is so consti

tuted.

* See 1 Smith's Ch. Prac. 370.

son or persons that are likely to be chargeable to the parish into which they shall come to inhabit, shall be, and the same is, hereby repealed; and that from thenceforth no poor person shall be removed by virtue of any order of removal from the parish or place where such poor person shall be inhabiting, to the place of his or her last legal settlement, until such person shall have become actually chargeable to the parish or place in which such person shall then inhereby empowered to remove the person or persons habit; in which case two justices of the peace are in the same manner, and subject to the same appeal, and with the same powers, as might have been done before the passing of this act, with respect to persons likely to become chargeable." Secondly, the mayor virtue of sect. 57 of the 5 & 6 Will. 4, c. 76, which proand ex-mayor are ex officio justices of the quorum, by vides, "that the mayor for the time being of every borough shall be a justice of the peace of and for such borough, and shall continue to be such justice of the peace during the next succeeding year after he shall cease to be mayor." This section, it is contended, constitutes a mayor a justice of the peace with full

Jan. 9, 186L

from capture, seizure, and detention, and all the consequences thereof, or of any attempt thereat; and free from all consequences of hostilities, riots, or commotions, by the ship Linwood, from Rio to New York. The perils insured against were declared to be of the seas, men-of-war, fire, enemies, pirates, rovers, jettisons, letters of marc, counter-marc, surprisals, takings at sea, arrests, restraints, and detainments, of all kings, princes, people of what nation, condition, or quality soever, barratry of the master and marines, and of all other perils, losses, and misfortunes that had or should come, to the hurt, detriment, or damage of the aforesaid subject-matter of the said insurance, or any part thereof. Allegations, that the coffee was placed on board; that the ship was stranded; and that the said goods were, by divers of the perils insured against, and not by any of the excepted perils, totally lost. The defendants pleaded, that the goods were not lost by any of the perils insured against, but by certain of the excepted perils. At the trial, it appeared that The Linwood sailed from Rio on the 26th May, 1861, called at Belize on the 1st June, and left on the 3rd for New York. She proceeded on her voyage until the night of the 17th, when she went on shore, about ten miles south-west of Cape Hatteras. Up to the 15th April there had always been a light on Cape Hatteras; but at that period there was a civil war between the Northern and the Southern States of the United States of America, and by order of the authorities of North Carolina, one of the Southern States, that light was extinguished on the 15th April, with the view of injuring the navigation of Northern vessels.

The people of the Northern States were known by the name of Federals, and those of the Southern by that of Confederates. Foreign nations regarded the two parties as belligerents respectively, and as entitled to equal rights under the law of nations, although this was made a subject of remonstrance by the Northern States, who contended that the Southern States ought to have been treated as rebels merely. The war, and the extinction of the light, were alike unknown to the captain of The Linwood at the time of the ship running aground. The vessel belonged to Federal owners, but the cargo was the property of a British merchant.

On the morning of the 18th June, the master and crew of The Linwood were made prisoners by two officers of a militia regiment of North Carolina, and were taken ashore. About 120 bags of coffee were saved by certain persons in the service of the Federal Government, and 1000 bags more might have been saved, but for the interference of the soldiers of the regiment mentioned, who also appropriated the 120 bags to themselves. On the 20th the vessel broke up, and the whole of the coffee was totally lost. The jury found a verdict for the plaintiff, leave being reserved to the defendants to move to enter a nonsuit, or to reduce the damages, on the ground that the loss, either in whole or in part, was occasioned by the excepted perils. A rule having been obtained accordingly,

Bill, Q. C., Lush, Q. C., and Sir G. Honyman shewed cause. The question is, whether the cargo was lost by capture or by the consequences of hostilities, or whether it was not lost by the perils of the sea. It may be admitted, for the purposes of the argument, that if the light had not been extinguished, the captain could have observed it, and the disaster might have been avoided. On that ground, it is maintained that the stranding of the vessel was a consequence of hostilities, the extinction of the light being an act of hostility. It is submitted, however, that the maxim of

law, well known to be applicable to policies of marine insurance, " causa proxima non remota spectatur," forbids such a construction of the words "all consequences of hostilities." (Broom's Legal Maxims, 202, 203, 3rd ed.; Marshall on Insurance, 374, 4th ed.) The operation of this principle, if it restricts in some cases the liability of the insurers, as in Powell v. Gudgeon (5 Mau. & S. 431), also in other cases extends it, as in the case of Burk v. The Royal Exchange Insurance Company (2 B.& Al. 73). What was the proximate cause of the loss of the ship in this case? Clearly the running aground. The cause of this was the captain getting out of his reckoning, and that error cannot be attributed to the hostilities. The putting out of the light was an act of hostility, which, no doubt, contributed to the captain getting out of his reckoning, and that was a result of the war between the Federals and Confederates; and in a sense, therefore, the war was a cause of the loss, but a very remote cause. If the ship had been reinsured against the excepted perils, it is clear that no liability could have attached to the insurers on such a policy, under the present circumstances, for it would have been said that the loss was by the perils of the sea. But it will be said that there was a total loss by capture. It is contended, however, that the moment the ship was stranded, without hope of recovery, there was a total loss of ship and cargo. The reason why, in Livie v. Jansen (12 East, 648), capture was held to be the cause of the loss was, that there was every probability of the ship being got off, as, in fact, she afterwards was. (See Knight v. Faith, 15 Q. B. 649; 14 Jur. 1114; and Patrick v. The Commercial Insurance Company, 11 Johns., N. S., 9, 14). It is submitted that the case of Hahn v. Corbett (2 Bing. 205) is precisely in point. [They referred also to Hagedorn v. Whitmore (1 Stark. 157); Tatham v. Hodgson (6 T. R. 656); Lawrence v. Aberdein (5 B. & Al. 107); Redman V. Wilson (14 M. & W. 476; 9 Jur. 714); Montoya v. The London Insurance Company (6 Exch. 451); Palmer V. Naylor (10 Exch. 382; 18 Jur. 901); and Thompson V. Hopper (6 El. & Bl. 937; in error, 1 El., Bl., & El. 1038).]

Brett, Q. C., Mellish, Q. C., and Maclachlan, in support of the rule.-The substantial cause of the loss of the ship and cargo was the absence of the light. The maxim referred to is not disputed by the defendants; on the contrary, it is submitted, that it was the knowledge of that principle which induced the insurers to introduce the word "consequences" into the warranty, the effect of which is, to include in the exception, the loss resulting to the property insured by any act of hostility. But the loss by perils of the seas was only a partial loss; and the Confederates having done that which amounted to a capture, after the partial loss, and before the total loss by perils of the sea, the defendants are protected. The case of Hahn v. Corbett does not apply, because there a total loss of the goods had occurred before capture. If, however, there was no total loss by capture, there was a partial loss by hostilities, and to that extent the defendants claim exemption under the policy. [They referred to Green v. Elmslie (Peake, 212); The Edward and Mary (3 Rob. Adm. Cas. 305); and The Hercules (2 Dods. 353).

ERLE, C. J.-In this case I am very much obliged to the learned counsel on both sides for their very able argument, the result of which is, in my opinion, that we ought to give our decision in favour of the plaintiff in respect of a partial loss. This was an action upon a policy of insurance upon coffee, and the policy contained this clause of exception:-" Warranted free from capture, seizure, detention, and all the consequences thereof, and of any attempt thereat,

and free from all the consequences of hostilities, riots, and commotion." The insured ship, with a cargo of coffee on board, in proceeding from Belize to New York, had to pass by Cape Hatteras, and the captain intended to steer north-east till he had rounded the Cape, and then to steer due north to New York. But he got out of his reckoning, for when he was thirty miles south of the Cape, and ten miles westward of it, he thought that he had passed it, and consequently, by turning to the north too soon, he ran ashore.

If there was nothing more in the case, it would be a clear loss by perils of the sea; but there is this further fact to be taken into consideration, that at Cape Hatteras there had been maintained, until the secession of North Carolina from the United States, a lighthouse; but when, at the outbreak of the present war in America, North Carolina seceded, and sided with the Confederate States, the light at Cape Hatteras was put out for hostile purposes.

I also take as a fact, for the purpose of this judgment, that if there had been a light on Cape Hatteras the captain would have seen it, and could have put his ship about; and that in that event the ship would not have been lost in the manner in which it was.

Now, the grand contention upon the first part of the case is, whether the loss of the ship was a loss caused by the consequences of hostilities within the meaning of this policy. I quite agree with the learned counsel who have argued the case on both sides, that it is a question of construction, and that the intention of the parties is to be gathered from the words in the instrument, with the surrounding circumstances. The words are not so usual as to have been the subject of judicial interpretation before, and it is now my duty to put that construction upon them which I think the parties to the instrument intended. I quite agree with the argument, that these words are to be construed in the same way as if the insured had re-insured his cargo against these perils which are excepted in the warranty before us; so that, if the action had been on that policy of re-insurance, and the ship had been lost in the manner I have stated, then it would have been the duty of the Court to say whether the putting out of the light, which was a consequence of hostilities, was so connected with the loss of the ship as to make the insurers liable.

The words are to be construed with reference to the known principle pervading insurance law-" Causa proxima non remota spectatur." The relation of causation is a matter that cannot be often distinctly ascertained; but if, in the ordinary course of events, the one antecedent is constantly followed by the other sequence, they may be taken to stand, in common parlance, in the relation of cause and effect.

Now, in the present case, were the putting out of the light and the loss of the ship so connected as to stand in that relation, in the ordinary course of events? I think they were too distantly connected to stand in that relation. I will put an instance of what I consider a consequence, within the meaning of this policy. Supposing there was a hostile attempt at the seizure of the ship, and when the enemy was in pursuit, the ship, to escape seizure, was to run aground or to run ashore, the loss would be then caused by the attempt at seizure, and would be within the exception. Again: if the enemy gave chase to the ship for the purpose of seizing her, and, to avoid being seized, she got into a bay where there was neither anchorage nor port, and the wind on shore, and where, if the wind so continued, her loss was inevitable, I should say that the loss of the ship urder those circumstances would be the consequence of an attempt at seizure, and within the exception. Let us suppose, however, that the wind did change, and that the ship got out of the bay,

9

and procceded on her voyage, in the course of which she was overtaken by a storm, which she would have avoided by having arrived at her port if she had not been delayed by the pursuit. If she foundered in the storm, there would be then a loss which never would have occurred but for the attempt at seizure. But the loss would not be connected with that attempt in that proximate relation which, in the ordinary course of events, is necessary to connect the loss with what is called the cause of the loss. It is not a sequence, in the ordinary course of events, that if a storm should overtake the ship, she should sink in the course of that storm; and although the consequence of the attempt at seizure was the cause, without which the loss never would have happened, yet it is not the efficient cause of it, in the language used in some of the cases, or the proximate cause of it, in the language used in others. The one fact is too remote from the other to call it a loss by the consequences of hostilities, and therefore it would be a loss by perils of the sca.

Take another instance. The warranty extends to loss from all the consequences of hostilities. I will assume that the ship is destined for a port where there are two channels of entrance. In one of those channels there is a torpedo placed for hostile purposes; in the other there in none. If the master of the ship coming into port knows nothing of the torpedo, and the ship is sunk and destroyed, there, of course, the act of hostilities leads directly to the destruction. But suppose the master is aware that the torpedo is there, and for the purpose of avoiding the torpedo he takes the other channel, and from bad navigation the ship runs aground and is lost, in my opinion, that would be a loss not within the exception, because by good navigation she might have passed through safely. I should say that such a loss would be a loss by the perils of the sea, within the meaning of the policy.

In the present case the captain had missed his reckoning, and either not having a sufficient look-out, by which he would have seen the breakers a-head when he was approaching the shore, or not lying to in the night when he doubted of his position, he runs on shore. It is not, in my opinion, the absence of the light which proximately causes the running on shore, within the meaning of marine policies. It therefore follows, that the wreck of the ship is not within the exception, but is within the policy; and if the wreck of the ship brought about the loss of the cargo, the insurers of the cargo are so far to be considered liable.

But then follow the subsequent events. The ship struck on the Tuesday night. On the Wednesday the weather was too rough to save the cargo. On the Thursday the weather was smooth enough to have saved considerable part: 120 bags were saved, and 1120 might have been saved, but that the Confederate troops came down and interfered with the officers of the Federal Government appointed to save the cargo, and who were salvors in fact, though they are called wreckers.

No doubt when the ship was wrecked at first, there being no appearance that it was possible to save any of the cargo, there was presumably a total loss of the cargo. But when it appeared that the ship had not gone to pieces, and that there was a part of the cargo, at least, that could have been saved, the presumption of a total loss ceased. I take it to be found as a fact, that 1000 bags more could have been saved, but were prevented from being saved in the manner I have mentioned. Those 1000 bags, as between the parties in this instrument, must be taken to have been, if I may say so, potentially saved; and they would have been saved, but for the hostilities and commotion. That being so, those 1000 bags were brought within the exception in this policy, so that with respect to