1821. HARLEY against GREENWOOD. be extinguished. Now, here, there was no extinguishment of the debt; for, if the commission had been superseded, the party would clearly have had a right to bring an action. The proper course in such a case for the party to pursue, is either to apply to the Chancellor to expunge the debt, or to the Court in which the action is brought to stay the proceedings. In the latter case, the Court may stay the proceedings only upon the defendant's undertaking not to plead the statute of limitations in case the commission were superseded. I am, however, clearly of opinion, that the facts stated in the plea afford no answer to the present action. The substance of the plea is, not that the plaintiff has proved the debt, but that he has proved another debt, and that that proof is an election to take the benefit of the commission in respect of all the debts then due to him from the bankrupt. The statute only says, that if a party proves a debt, he makes his election as to that debt; and we should go greatly beyond the words of the statute, if we were to hold that he made his election, not only as to that debt, but as to every debt due to him. The instances already mentioned shew, that if that were the law, it might be attended with great injustice. For these reasons, I think there must be judgment for the plaintiffs. Judgment for the Plaintiffs. 1821. LAWRENCE against ABERDEIN. Monday, October 29th. ASSUMPSIT upon a policy of insurance. The A polic w as declaration stated a total loss of the animals in sured, by perils of the sea on the voyage. Plea, general issue. At the trial, before Best J., at the London sittings after Trinity term, 1820, a verdict was found for the plaintiff, subject to the opinion of the Court, on the following case. effected on living animals, warranted free from mortality and jettison. In the course of the voyage, some of the animals, in consequence of the agitation of the ship in a 1819. Bar storm, were killed; and others, from the a The policy was effected on the 30th December, The voyage insured was at and from Cork to badoes and St. Vincents; and at the foot of the policy the insurance was declared to be on thirty mules, ten asses, and thirty oxen, warranted free of mortality and jettison. On the 17th January, 1820, the ship sailed with animals insured, properly stowed on board, on the voyage insured. On the 19th of the same month, violent storm arose, which caused the ship to labour and pitch. This lasted, without intermission, until the 30th of the same month, when, for the preservation of the ship and cargo, and on account of the damage which the ship had sustained from the violence of the storm, the ship put into Mount's Bay, in Cornwall, in order to refit. On the first day of the storm, from the violent pitching and rolling of the ship, occasioned by the storm and consequent agitation of the sea, two of the mules, one of the oxen, and five of the asses were killed; the remainder of the animals, from the same causes and perils of the sea, on that and the following days, until the 20th of January, received such violent and severe bruises, lacerations, and injuries, that all of them the same cause, received such injury that they died before the termination of the voyage in sured: Held, that this was a loss by a peril of the sea, for which the un derwriters were liable. 1821. LAWRENCE against ABERDEIN. died in consequence thereof, before the ship sailed again in prosecution of her voyage from Mount's Bay, which she did on the 14th February, 1820, excepting six mules and one ass, one of which six mules afterwards died from the same cause, before the arrival of the ship at Saint Vincents. The ship arrived at Saint Vincents, with the remaining five mules and one ass, on the 24th March, and delivered the rest of her cargo in safety. The question for the opinion of the Court was, whether the plaintiff was entitled to recover for the loss of all or and which of the animals insured? any F. Pollock, for the plaintiff. The underwriters are not exempted from the loss that has happened by the the word of the special exception, "warranted free from mortality." These words were introduced into the policy by the underwriters, and must therefore be taken most strongly against them. The word mortality signifies death arising from natural causes. Here, the death of the animals arose directly from the violence of the tempest, and not from natural causes. The loss did not therefore arise from mortality, if that word be understood in its ordinary and popular meaning. Some effect will be given to the exception, by construing the -word in that sense; for the underwriters will thereby be exempted from one species of loss for which they might otherwise be responsible, viz., in the event of the death of the animals by sea-sickness in a storm. For such a loss the underwriters would be answerable under a common policy. But they would be exempted by the special exception. Campbell, Campbell, contrà. Some effect must be given to the words of the exception, so as to extend to the underwriters a protection against some species of loss to which they would have been liable, if those words had not been introduced into the policy. Now they would not have been liable for any loss arising from the natural death of animals, but they would have been liable if they had been drowned in a tempest or killed in battle. Pothier, Traité du Contrat d'Assurance, c. 1. s. 2. art 2. s. 3., and Valin, Ordonnances de la Marine, liv. 3. tit. 6. art 11. Here the animals died in consequence of the injury they received during the storm, and the underwriters, therefore, would have been liable for this loss, under a policy in the common form. The exception, therefore, was introduced for the purpose of exempting them from all losses whatever, arising from the vitality of the subject matter insured, or, in other words, to reduce the risk to the same level as if the subject matter insured was inanimate goods. If that had been the case here, the cargo might have received little or no injury. If the words "free from mortality" be construed only to protect the underwriters against losses arising from death from natural causes, no effect whatever will be given to the exception; for, in such a case, the underwriters would not have been liable under a policy in the common form. The true meaning of the exception is, that the underwriters are to be liable for all the risks to which they would have been subject, if they had insured inanimate goods. By this construction they will still be liable for losses by capture by enemies or pirates, or barratry of the master or mariners. 1821. LAWRENCE against ABERDEIN. ABBOTT 1821. LAWRENCE against ABERDEIN. ABBOTT C. J. I am of opinion that the underwriters. are answerable for this loss. The insurance was on living cattle, which, in the course of the voyage, have been killed by the rolling of the ship in a violent tempest. They have been killed, therefore, by a peril of the sea. Under the general terms of the policy, the underwriters would be answerable. It lies on them, therefore, to shew that there is a special exception in this policy applicable to the present case, in order to relieve them from the effect of their general liability. The expression used in the policy is "free from mortality." Now the word mortality, in its ordinary sense, never means violent death, but death arising from natural causes. There may however, indeed, be a remote cause, which may sometimes superinduce a natural cause. In Tatham v. Hodgson (a), the want of provisions was the immediate cause of the death of the slaves; the remote cause was the circumstance of the ship having been driven out of her course by the perils of the sea, in consequence of which, the provisions, which otherwise would have been sufficient for the voyage, were exhausted. There was not any exception in the policy in that case. But the statute of the 34 Geo. 3. c. 80. s. 10. had enacted, "that no loss or damage should be recoverable on account of the mortality of slaves, by natural death or ill treatment, or against loss by throwing overboard of slaves, on any account whatsoever." A question was made, whether the death of the slaves so arising, indirectly and remotely from the peril of the sea, was not one for which the underwriters were liable; and the Court held that they were not liable, because it was a loss arising by (a) 6 Term Rep. 656. natural |