sary to refer to the ancient authorities, further than to say that they are entirely consistent with the modern ones, as well as with the rule of the Civil law. Where the cause of action is the same, and the plaintiff has had an opportunity in the former suit of recovering that which he seeks to recover in the second, the former recovery is a bar to the latter *action. To constitute such former recovery a bar, *109] however, it must be shown that the plaintiff had an opportunity of recovering, and but for his own fault might have recovered, in the former suit that which he seeks to recover in the second action. Every one is familiar with the case of a party who brought an action for the recovery of 10007., and for default of evidence recovered 51. only, and then brought a second action to recover the balance; and the recovery in the former action was held to be a bar to the latter, on the ground that the plaintiff had had an opportunity of recovering in the first action the whole of his demand, and that, regard being had to the shortness of life, it was unreasonable to allow a defendant to be vexed a second time for the same cause. (a) But, in order that it may be a bar, the circumstances must be such that the plaintiff might have recovered in the former suit that which he seeks to recover in the second. The authorities in the Civil law upon this subject are cl lected by Vice-Chancellor Knight Bruce in a very remarkable judg ment in a case of Barrs v. Jackson, 1 Y. & C. C. Č. 588 et seq.(b) If that be the true principle, let us see what the former suit here was. Now, the former suit, as explained in the judgment of the Privy Council in the case of The Bold Buccleugh, 7 Moore's P. C. 267, was for the purpose of establishing a maritime lien of the plaintiff by reason of the misconduct of the owners of the vessel which had caused the damage, and a proceeding which had for its object the obtaining from the proceeds (or the bail) satisfaction for the injury inflicted. What is the object of the present action? It is to recover compensation from the defendants for the damages which the plaintiffs have sustained by reason of the *injury done to their ship. It is *110] obvious that these two are not identical, unless the proceeds of the sale of the defendants' vessel are equal to or exceed the amount of the damages sustained by the plaintiffs' vessel. This plea does not supply us with the means of ascertaining that fact: there is, therefore, an entire absence of the essential part of a plea of res judicata. It is a condition of such a plea that it should show that the first proceeding was one in which the plaintiff might have recovered that compensation which he seeks to recover in the second. We have been pressed by Mr. Brett to say that the former judgment must necessarily be taken to have been for the whole of the damages which the plaintiffs have sustained. That, however, would I think be putting a novel and inconsistent construction upon the judgment of the Admiralty Court. It comes to this. Here is a lien which it requires the intervention of the court to make available, by decreeing a sale. If a person having an ordinary lien upon a chattel, with a power of sale, whether by agreement, or by act of parliament, were to sell it for a sum which satisfied only one-half of the debt, would he be prevented from suing in a court of law for the recovery of the other half? Clearly no. (a) See Barber v. Lamb, 8 C. B. N. S. 95 (E. C. L. R. vol. 98). (b) And see Barrs v. Jackson, 1 Phillips 582. Then, why should the plaintiffs be precluded here? Several cases have been referred to, where judges of great eminence and experience have refused to allow a proceeding in personam against the owner in the Admiralty Court to be engrafted upon a proceeding in rem, saying that it was contrary to the practice of that court.(a) It may very well be, looking to the *reluctance expressed by Sir William Scott, in the case of the Fortitudo, 2 Dods. Adm. R. 58, to permit a [*111 second proceeding to enforce payment of bottomry-bonds, after the abandonment of a former suit instituted for the same purpose, that there is something in the constitution and practice of the Admiralty Court which militates against a proceeding like this. But there is certainly no such reluctance in the common-law courts. Further, there is the authority of Dr. Lushington in the case of The Hope, Hepburn, 1. W. Rob. Adm. Cas. 154, that it is not competent for the court to engraft upon a proceeding in rem a personal action against the master (also a part-owner), to make good the excess of damage beyond the proceeds of the ship. The learned judge there expressly based his judgment upon the general principles upon which the proceedings in the Admiralty Court are conducted. But, in the case of The John and Mary, Swabey's Adm. Rep. 471, the plaintiff, having sued in a cause of collision at common law, and recovered a verdict, was allowed, insolvency intervening, to assert his lien in the Admiralty Court upon the ship, even after she had been transferred to a third party. It would seem to be a very extraordinary and somewhat inconsistent thing, if the proceeding in personam should be held no bar to a subsequent proceeding in rem, and yet the proceeding in rem should be held a bar to a subsequent proceeding in a common-law court to recover what the plaintiff had failed to recover in the former suit. I must confess I see no reason why the plaintiffs should not be al[*112 lowed to recover the balance of the damage they have sustained by a proceeding in this court. Mr. Brett did not very much rely on the Merchant Shipping Act. No doubt he will have the full benefit of its provisions on a future occasion. BYLES, J.-I am of the same opinion. This is like the case of a men who, having a debt secured by a pledge or mortgage, necessarily resorts to legal proceedings to make the pledge available. Having done so, and thus realized only a portion of his debt, I see no reason why he should not have recourse to a common-law court for the recovery of the residue. The right to proceed in the Admiralty Court in rem, after the personal remedy has proved abortive, has been twice recognised in Swabey's Admiralty Reports, once in the case of the master's wages (The Bengal, p. 468), and again in the case of a collision (The John and Mary, p. 471). The only difficulty here is, that the damages may exceed the value of the ship. The defendants, however, could not plead to damages: they could only rely upon the (a) "The warrant of arrest," says Sir William Scott in that case, "is confined to the ship; it goes no further. It appears to me, therefore, that no personal liability beyond that value could be engrafted upon such a mode of proceeding; and for this obvious reason, that, if I were to engraft such personal responsibility upon the owner, the original process would not justify such proceeding. Not only the original process, but the appearance given by the individual himself, would not justify it, because he has appeared only to protect is interest in the ship, both by the form of the warrant and the form of his appearance." decree in the former suit as a bar. I think it is no good plea in bar. case, That the partial recovery of a debt obtained by a resort to a pledge, does not preclude the creditor from suing for the residue of his claim, which was the point determined in the principal is also involved in the decision of Ayers v. Watson, where the right to resort to additional security for the debt was not only conceded as a remedy independent of the controversy, but was assumed as the ground upon which an admission made during the trial that the creditor had additional security, was held not to be an estoppel. The undercurrent of the argument in favour of an estoppel, was that as the creditor might avail himself of the security, it should go in reduction of the amount to be recovered, and would thus constitute a partial defence. But the court refused to entertain the proposition that the security ought, before it was collected, to be treated as a fund which should contribute to the liquidation of the debt; and unless they maintained that notion, the existence of the security did not become material, and the admission, in consequence, being irrelevant, could under no circumstances operate as an estoppel. The case was this: A. secured a debt by mortgaging a ship to B., who took possession; C. obtained judgment against A. and levied on the ship; B. replevied, and C. defending in sheriff's name, called A., who testified that he had also given B. a ground-rent mortgage as additional security for the debt. A. was held not estopped by this admission in a suit on the ground-rent mortgage from denying that the mortgage was a security for the debt: 25 Leg. Int. (Supreme Court of Pa. 1868) 316. And, for the reasons already given, Judgment for the plaintiffs. It is mentioned incidentally in the decision that the defendant Watson had included in the sum recovered by him in the New York replevin suit, the $2800 secured by the ground-rent mortgage as a part of the debt covered by the mortgage on the ship. Since this remark was made, however, the New York Court of Appeals has reversed the judgment by the Supreme Court, on the ground that the judge's charge was inconsistent with the evidence; which consisted of the testimony of Maximilian Goepp, Esq., who declared the mortgage invalid by the law of Pennsylvania. The judge ignored this testimony, and charged the jury that the mortgage was under the circu stances valid by the law of Pennsylvania. The Court of Appeals evidently concurred in the accuracy of the judge's statement of the law of Pennsylvania, but pronounced it unwarranted by the evidence: Watson v. Campbell, New York Daily Transcript, Jan. 15, 1869. It has, from the earliest times, been recognised in Pennsylvania as one of the exceptions to the rule which requires an immediate change of possession that the mortgage of a ship at sea is valid, provided the mortgagee takes possession as soon after her arrival as he conveniently can: Morgan's Ex'rs v. Biddle, 1 Yeates (1791) 3. Goodrich v. The City, was the converse of the principal case. The plaintiff there sought first to recover at common law in the state courts for the loss of his vessel, and subsequently he endeavoured to recover for the same loss in admiralty, but was precluded by the judgment against him in the state court: 5 Wall. (1866) 566. *CLAUDE BOUILLON et Cie v. LUPTON. June 22. [*113 Three steamers, the Bourdon, the Papin No. 1, and the Papin No. 6, which were intended for the navigation of the Danube, were insured "at and from Lyons to Galatz," with leave to call at all ports and places in the Mediterranean for all or any purpose, beginning the adventure at Lyons, &c., with a declaration that "it should be lawful for the said ships to proceed and sail to and touch and stay at any ports or places whatsoever, and with leave to tow and be towed, without being deemed any deviation," &c.,-warranted to sail on or before the 15th of August, 1861. The Papin No. 6 left Lyons on the 24th of July, and arrived at Marseilles on the 30th. The Bourdon and Papin No. 1 left Lyons on the 2d of August, and arrived at Marseilles, the former on the 7th, the latter on the 8th. All three vessels were in a fit and proper state for the voyage down the Rhone to Marseilles, but, from the nature of the navigation, they could not, on leaving Lyons, be in a state of readiness,-as to masts and sails, chains and anchors, sea crew, &c, -for the sea portion of the voyage to Galatz. They all left Marseilles properly manned and equipped for the residue of the voyage on the 23d of August, the intermediate time having been consumed in the sea-equipment, and in procuring the surveys and permit to depart required by the French law, which could only be obtained at Marseilles. This delay the jury found not to have been unreasonable : Held, that both the implied warranty of sea-worthiness, and the express warranty to sail on or before the 15th of August, were complied with. As to the Papin No. 6, which arrived at Marseilles on the 30th of July, it appeared that she might have been got ready for sea several days earlier than she was, but that the captain deemed it prudent to detain her at Marseilles in order that all three vessels might depart in company. The jury having found that this was a reasonable cause of delay as to that vessel,--the court refused to disturb their verdict. THIS was an action brought by the plaintiffs, a company duly con stituted and established in Paris as a société en commandite according to the laws of France, and known as the Franco-Serve Company, upon three policies of insurance. The first count of the declaration stated, that, by a policy of insurance, bearing date the 6th of September, 1861, the plaintiffs, by Messrs. Morice & Dixey as their agents, caused themselves to be insured, lost or not lost, at and from Lyons to Galatz, and while there for ten days, with leave to call at all ports and places in the Mediterranean for all or any purpose, upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the ship or steamer Bourdon, beginning the adventure at Lyons as above, and continuing the same during the said voyage and until the said ship and premises should be arrived at Galatz, and while there for ten days, against perils of the seas and certain other perils and adventures as [*114 therein mentioned: and it was thereby declared that it should be lawful for the said ship and premises in that voyage to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever, and with leave to tow and be towed, without being deemed any deviation, and without prejudice to that insurance; and that the said ship and premises were and should be valued at "On hull, &c., valued 30007.; on machinery, valued 30007.,-60007.;" to pay average on each as if severally insured, and general average as per foreign statement, if so made up: And by the said policy the said ship and premises were warranted free from capture and seizure and the consequences of any attempt thereat: And the said ship was warranted to sail on or before the 15th day of August, 1861: And by a memorandum there under written the said ship and premises were warranted free from average under 3 per cent. unless general or the ship be stranded: Averment, that the defendant had notice of all the premises, and thereupon, in consideration of a certain premium paid to him by the plaintiff's for the insurance of 1001. upon the said ship and premises in the said policy mentioned, the defendant subscribed the said policy for the said sum of 1007., and became an insurer to the plaintiffs of and upon the said ship and premises to that amount, and upon the terms and conditions of the said policy; that the plaintiffs were then and from that time until and at the time of the loss thereinafter mentioned interested in the said ship and premises to the amount of all the moneys by them insured thereon; that the said Morice & Dixey effected the said policy as their agents and on their behalf; and that the plaintiffs performed and complied with all warranties in the said policy contained; that the said ship with the premises on board thereof departed on her said. voyage, and while she was proceeding on the said voyage, and #during the continuance of the said risk, the said ship and *115] premises were, by perils insured against, wholly lost; and that the plaintiffs did all things on their part to be done, and all things ppened, and all times elapsed, to entitle the plaintiffs to be paid by defendant the said sum of 1007. so insured by him as aforesaid; but that the defendant had not paid the same. The second count was upon a policy in the like terms and for the se amount on the ship or steamer "Papin No. 1:" and the third coint was upon a policy in the like terms and for the same amount on the ship or steamer "Papin No. 6." There was also a count for money received by the defendant for the use of the plaintiffs, and for money found due on accounts stated. The defendant pleaded, as to the first, second, and third counts,-first, that the plaintiffs did not cause themselves to be insured as in those. counts respectively mentioned, nor did the defendant become an insurer to the plaintiffs as in those counts respectively mentioned, as therein respectively alleged, secondly, that the plaintiffs were not interested in the respective subject-matters of insurance in those counts mentioned, as therein respectively alleged,-thirdly, that the said ships and premises respectively did not depart on the voyages insured, a in those counts respectively alleged,-fourthly, that the said ships and premises respectively were not, nor was any part of the same respectively, lost by the perils insured against, as in those counts respectively alleged,-fifthly, that the said ships and premises respectively did not sail on or before the 15th day of August, 1861, within the true intent and meaning of the warranties contained in the said policies respectively,-sixthly, that, at the time when the said ships *116] and premises respectively departed and set *sail on the voyages respectively insured by the said policies respectively, they were respectively not seaworthy for the respective voyages,-seventhly, that, before the respective losses in those counts mentioned, the said ships and premises respectively wrongfully and improperly delayed proceeding upon and deviated from the voyages respectively insured, -and, to the money counts, eighthly, never indebted. Issue thereon. The cause was tried before Cockburn, C. J., and a special jury, at the last Spring Assizes at Kingston, when the following facts were proved and admitted:-The plaintiffs are a French société en commandite, whose object, amongst other things, was, to run steamers on the river Danube. For this purpose they purchased the steamers in |