{ADM.

affect them or not; and we also agree that Rosetto
v. Gurney correctly decided that where the original
bottom is disabled by the perils of the sea, so that
the shipowner is not bound to carry the goods on,
and he does not choose to do so, the jury are not to
take into account the hull and the cost of transit
from the place of distress to the place of destina-
tion, which must be incurred by the goods owner,
if he carries them on, but only the excess of
that cost above that which would have been
incurred if no peril had intervened. To
hold otherwise would be to enable the assured
owner of goods to bring into account the whole of
the freight whenever the cost of obtaining a substi
tuted bottom exceeded the original cost, however
small the excess may be. For in such a case the
shipowner would never carry on the goods for the
purpose of earning his original freight, though he
might perhaps do so as agent of the shipowner,
while no part of the freight could ever be charged
when the cost fell short of the original freight, in
which case the shipowner would forward them.
This would be a very unsatisfactory state of the
law, and we are of opinion that the case of Rosetto
v. Gurney, which prevents that result, was correctly
decided. Then, applying this to the facts of the
present case, it becomes obvious that while it is
doubtful whether there was evidence justifying the
verdict if the jury had to deal with a margin of a
little more than 5 per cent. of the value of the
had to deal with a margin of above 40 per cent. Mr.
Mellish indeed said that there are cases in which a
thing in extreme and imminent danger of immediate
destruction may be justifiably sold, although in the
event it turns out that it survives the peril to the
great benefit of the purchaser; but there is not in this
case any evidence of such a state of imminent
and immediate peril as could justify a verdict for a
total loss on this ground. We think, therefore, that
the rule to set aside the verdict for a total loss
must be made absolute. This renders it unnecessary
to consider the question principally argued in the
court below, as to the necessity of a notice of
abandonment. On that point we leave the autho-
rity of the decision of the court below untouched,
neither confirmed nor weakened by anything that
has taken place in this court. On the remaining
question, whether the partial loss does or does not
exceed the amount paid into court, we are absolutely
without materials for forming a judgment; the only
course that seems practicable is that on which the
parties seem to have agreed at Nisi Prius, namely,
that an arbitrator should find the figures, and
raise and state for the Court of C. P. any question
of principle involved arising on his finding.

and for a partial loss. And it was at the same time agreed, if the court should be of opinion that the loss was not total, that the amount of the partial or average loss should, if necessary, be corrected by the court, or by an arbitrator to be agreed upon. A rule was obtained accordingly, which was, after argument, discharged by the majority of the Court of C. P., my brother Byles dissenting, from which decision this is an appeal. The first question to be determined therefore is, whether there was evidence on which the jury might reasonably find that the cargo could not be practically carried on to its destination. It is to be observed that, assuming the jury to have believed that the expenses would have been the maximum amount of which there was any evidence, namely, 25617, yet on the plts.' own figures there would have been a very considerable margin of profit. The plts.' counsel assumed that this margin of profit was the difference between the Liverpool value of the cargo after deducting the original freight, that is, on their own figures, 2137., and they agreed that the jury might reasonably estimate that probable loss of cargo during the operations of landing, rafting, and reshipping, at an amount that would more than absorb this margin. By some oversight not explained to us, the defts.' counsel never called the attention of the Court of C. P., or of the Court of Ex. Ch., to the cardinal postulate of the plts.' counsel, that the original bill of lading freight, 1556l., was to be deducted. The case was argued in the court below on the assump-goods, there is clearly none justifying it when they tion that the only question was whether there was evidence to justify the jury in finding that the probable loss might have been so high as to absorb the 213, and the judges not having their attention called to the matter, which the counsel took for granted, considered it in that way only. The majority of the court taking it for granted that this was the proper question, thought that there was evidence on which the jury might find for the plts. to that extent. My brother Byles thought there was not. In this court the argument had proceeded a great way in the sittings after Easter Term, before it occurred to a member of the Court of Error, as then constituted, that we were not considering the real question, for that unless the Court of C. P. in Rosetto v. Gurney had laid down a wrong rule, the question was whether there was evidence that would justify the jury in finding a loss that would account for the difference between the Liverpool value, without deducting the original bill of lading freight of 15567., and consequently that the plts. ought to show that there was evidence to justify their finding a probable loss of cargo to the extent of more than 17697. Mr. Mellish had the opportunity of preparing himself to meet this view of the case, and in the sittings after Trinity Term he was heard at length on this point before the Lord Chief Baron, my brother Blackburn, my brother Mellor, my brother Pigott, my brother Shee and myself, and we are all of opinion that where goods are, in consequence of a peril insured against, lying at a place different from their destination, damaged, but in such a state that they can at some cost be carried to their destination, the jury are to determine whether it is practically possible to carry them on. That is, according to the well-known exposition in Moss v. Smith, whether to do so will cost more than it is worth-and that in determining this the jury should take into account all the extra expenses consequent on the perils of the sea, such as drying, landing, warehousing, and reshipping the goods; but that they ought not to take into account the fact that if they are carried on in the original bottom, or by the original shipowner in a substituted bottom, they will have to pay the freight originally contracted to be paid, that being a charge to which the goods are liable when delivered, whether the perils of the sea

Judgment reversed.

UNITED STATES DISTRICT COURT-
IN ADMIRALTY.

Reported by R. D. BENEDICT, Proctor and Advocate.

EASTERN DISTRICT OF NEW YORK.
(Before BENEDICT, J.)
THE JOSEPH C. GRIGGS.
Salvage-Steamboat-Costs.

Where a sloop, with her cargo of iron ore on deck, having
got on a rock in a dangerous struit, was left by her
crew, who went to the shore near by, and while they
were there the vessel, by the action of the tide, came
off the rock and drifted in the tide towards another
dangerous rock, and while drifting was seen by those
on a passenger steamer then landing a short distance
away, which hastened out, and taking hold of her

Dec. 29, 1866.]

ADM.]

THE JOSEPH C. GRIGGS.

[ADM.

towed her to a place of safety, her crew reaching her though not of actual danger, makes a case for
just after the steamboat took hold of her:
Held, that this was clearly a case of salvage.
Considerations which affect the amount of salvage

awarded.

300 dollars salvage, and costs allowed on a valuation of

3500 dollars.

This was a libel filed by Holmes, the master of the steamboat Sylvan Grove, in behalf of all parties interested, to recover salvage. The facts of the case sufficiently appear in the opinion of the court. It was claimed in behalf of the schooner that it was not a case of salvage, inasmuch as her crew could have unassisted towed her into a place of safety. The value of the schooner and her cargo was about 3500 dollars.

Benedict, Tracy, and Benedict for libellant.

Haskett for resp.

BENEDICT, J.-The evidence in this case shows that on the morning of the 15th March last the sloop Joseph C. Griggs, laden to the extent of her capacity with iron ore on deck, in passing through Hell Gate, was driven upon Negro Head Rock. Her large anchor had been let go, in an effort to avoid the rock, but had failed to bring her to, and she grounded upon a falling tide. Her master and crew, anticipating, as the evidence clearly shows, that the sloop might keel over as the tide fell, removed their clothes, provisions, bedding, &c., to the boat, and in it betook themselves to the shore, intending, however, to watch the vessel, and attempt to save her in case she should come off under the action of the strong ebb tide. While thus abandoned for the time a strain came upon the chain of the large anchor, which tore up the windlass and freed the vessel from the anchor, and about the same time the current swept her off the rock. She began at once to drift down stream in the eddies which make rapidly from Negro Head Rock to the Bread and Cheese, a dangerous reef at the upper point of Blackwell's Island. While the sloop was on the rock her position had been observed by the persons on board the Sylvan Grove, a fast passenger steamboat engaged in making hourly trips between Peck-slip and Harlem, and her movement being seen while the steamboat was landing at Astoria, the landing was hastened and an extra man taken on board, and the steamboat started to rescue her. She was reached before she struck the Bread and Cheese, was at once boarded by some of the hands of the steamboat, and, lines being got, was towed out of danger and taken to Harlem Flats. The movement of the sloop from the rock had also been noticed by her crew, who, with the exception of her master-then absent in search of his ownerat once started out in their boat, but failed to reach the sloop until just as she began to move in tow of the steamboat. They then boarded her, and The sloop with her were taken to Harlem. on the sustained little no injury while rock, and on being released from custody in this action proceeded on her voyage without repairs. These facts, which are not seriously questioned, present a clear case of salvage. The sloop when taken hold of by the steamboat had no one on board, and was drifting towards a dangerous shoal, where, if she had struck, the total loss of her cargo would have been almost certain and the vessel herself seriously injured if not destroyed. The testimony of the crew and others, greatly relied on by the claimant, to the effect that, in their opinion, the vessel would have been saved by her crew if the steamboat had not gone to her aid, although to be taken into account in fixing the amount of compensation as indicating the extent of the risk, does not take the case out of the rules applicable to cases of salvage. "A situation of actual apprehension,

or

salvage compensation:" (The Raikes, 1 Hagg. 247;
66 are
The New Holland.) "Salvors," says Story, J.,
not to be driven out of court on the suggestion
that if they had not touched a derelict ship, the
latter might in some possible way have been saved
from all calamity, and therefore the salvors have
little or no merit:" (The Henry Ewbank, 1 Sumn. 400.)
The case being, then, in my opinion, one for a
salvage award, it remains to fix the amount. In
determining this I bear in mind that the whole doc-
trine of salvage rests upon considerations of public
policy. I also take into consideration, on the one
side, that the service in question was rendered
promptly; that it was performed by a steam-vessel;
that the steam-vessel was a passenger boat, at the
time engaged in making a regular trip; that the
place was one beset with dangers for sailing-vessels,
where steamboats of this class can often render
powerful and much-needed aid. On the other side,
I notice that the steamboat was not detained so as
to interfere with her next trip; that the service
involved little labour or skill and no risk; that the
crew of the sloop was near at hand, with a chance
of being able without assistance to get their
vessel into the true tide, and so to tow her
by their boat to the adjacent shore. How con-
siderations like these have affected the deter-
minations of Courts of Admiralty in awarding
salvage, the cases, unnecessary to be cited here, will
show. As somewhat analogous to the present case,
I may, however, refer to the case of the Margaret
(Shipping Gazette 1857), where a brig had touched
on the Spit of the Dutchman Bank, but shortly
afterwards came off with loss of anchor, and then let
go another and hoisted a signal, and where the
Court, in awarding 250l. to a tug which went to her
aid, held that, "not only the present but the pro-
also refer to the case of the Ocean
spective state of danger of the vessel rescued was to
be considered."
Witch, a schooner of 136 tons, which was towed off
the sands in the Thames, where the Court awarded
1007., "in order to encourage steamers to assist
vessels when ashore in the Thames :" (Shipping
Gazette, Feb. 1853.) After duly weighing, then, the
considerations which the present case seems to pre-
sent, my conclusion is that 300 dols. is the proper
sum to be awarded to these salvors, and I shall also
give them their costs, although, in view of the evi-
dence tending to show that either under haste or a
misapprehension on the part of the master of the
steamboat, he caused the claim to be put in suit,
while it was in a fair way to be settled without
expense, I might, were it not a case of salvage, be
inclined to withhold them. But I find, on looking
into the cases, that the considerations of public
policy, which so largely affect every award of salvage,
are not overlooked in disposing of the question of
costs. Thus Dr. Lushington, in the case of the
Rosalind, 2 Mar. Law Cases, 220, when he dis-
missed the libel on the ground that no salvage
service had been performed, gave the libellants their
costs, "in order to recognise the meritoriousness of
their intentions ;" and in the case of the Countess of
Levin Melville, 1 Mar. L. C. 154, the same learned
judge, when pronouncing in favour of a tender made
without costs, declared the salvors to be entitled to
full costs. So, too, in the case of the Innocenza,
when a libel for salvage was dismissed without costs
against the salvors, he cites, with approval, the
words of Lord Stowell, that "if, as a general rule,
he accompanied a decree (adverse to salvors) with
costs, it would discourage other salvors, a class of
people not very able to comprehend these matters,
A decree must
and therefore would be likely to injure public inte-
rests." See also Coote's Pr. p. 63.
accordingly be entered in favour of the salvors for
the sum of 300 dols., and their costs to be taxed.

BANKRUPTCY.

IPSWICH COUNTY COURT.

Wednesday, Dec. 12.

(Before J. WORLLEDGE, Esq., Judge.)
Re GOODWIN.
Insolvency-Protection order.

In 1862 B. obtained a final order under the Protection
Acts. Two creditors now applied to the court to authorise
the official assignee to take possession of certain pro-
perty of the insolvent acquired since insolvency:
It was objected that sect. 230 of the B. A. 1861 repealed
the provisions of the Protection Acts, so far as they
related to after-acquired property, in certain crises,
and that this application came within the saving clause

in that section:

Held, that the words "proceedings pending," in sect. 230 of the B. A. 1861, refer to a case where a petition had been filed before Oct. 11, 1861, but the final order had not been made, or to a case where an application similar to this had been made, but not adjudicated upon prior to that day.

[BANK.

that the after-acquired property shall only vest in the assignees upon the assignees serving the insolvent with a claim to such after-acquired property, and filing a copy of such claim in the manner prescribed by the 9th section; but the 9th section further provides that the assignees shall not take possession of any after-acquired property of the insolvent without an order of the court. And the 12th section of the Act 5 & 6 Vict. c. 116, enables the assignees or any creditors to apply to the court for a rescission of the final order to the extent therein mentioned, upon the ground that the insolvent did not, prior to his obtaining his final order, make a full disclosure of his effects, or has not since given notice to the assignees of any after-acquired property. Therefore, on and prior to the 11th had obtained his final order under the Protection Oct. 1861, the assignees of any insolvent who Act prior to that date had a right to claim any property which he had acquired subsequently to his final order and before the 11th Oct. 1861, and to apply to the court for an order authorising them (the assignees) to take possession of it. But they could not upon that day have had any right to take possession of property which the insolvent had not then acquired. In like manner the assignees and creditors had, on the 11th Oct. 1861, a right under the 12th section of 5 & 6 Vict. c. 116. to

On the 13th Feb. 1852, John Gilbert Goodwin obtained his final order under the Protection Acts, apply for a rescission of the final order if the in5 & 6 Viet. e. 116, and 7 & 8 Vict. c. 96, and an solvent had not given notice of any property application was made by Hill, on behalf of two of acquired by him since his final order and prior to Goodwin's creditors, under the insolvency of 1852, that day, but it would be absurd to say they had Messrs. Naunton and Angier, under the 9th and then any right to apply for a rescission of the order, 12th sections of 5 & 6 Vict. c. 116, at the last sit-upon the ground that he had not performed an imting, that the court should authorise the official assignee to take possession of the property which Goodwin has acquired since the date of his final order, and which he still has; and that Goodwin's final order be rescinded to the extent provided in

the 12th section of the Act.

Jackaman, for Goodwin, admitted that the necessary notices and the like had been duly given to his client, but raised a preliminary objection to the motion, upon the ground that 5 & 6 Vict. c. 116, was repealed by the 230th section of the B. A. 1861, and that the present application was not within the saving clause of the section.

Hill contended that, notwithstanding the repealing clause of the B. A. 1861, the Acts 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, were still in full force as to all protection cases in which petitions had been filed or final orders granted prior to the 11th Oct. 1861, the day upon which the Bankruptcy Act of that year came into operation.

His HONOUR having reserved his decision, delivered the following judgment:-The point raised by Mr. Jackaman has never, that I am aware of, been judicially decided, and none of the authorities quoted furnish, so far as I can see, any clue to a proper decision of it; and after full consideration, I will now state the conclusion at which I have arrived; which it will be seen in the sequel does not agree in toto with the view presented on either side at the hearing. In order to arrive at a proper conclusion, I thought it expedient to see, accurately, what were the rights of official assignees and creditors under the Protection Acts, prior to and on the 11th Oct. 1861, and then to consider the effect of the repealing clause of the B. A. 1861 upon those rights. By the 7th section of the Act 5 & 6 Vict. c. 116, all the insolvent's present and future estate was absolutely vested in the assignees upon his obtaining his final order. But that section is qualified as to after-acquired property by the 9th section of the same Act, which provides

possibility, viz., had not given notice of property that he had not then acquired. Let us now apply the above observations to the present case. Goodwin acquired some real estate, to go no further, subsequently to the 13th Feb. 1852 and before the 11th Oct. 1861. Therefore, on the last-mentioned day, Mr. Pretyman, the official assignee (there being no creditors' assignee), had a right to take proceedings under the 9th section of the 5 & 6 Vict. c. 116, to obtain possession from Goodwin of such after-acquired real estate, and Messrs. Naunton and Angier had, on the 11th Oct. 1861, a right to apply under the 12th section of the Act for a rescission of the final order, because Goodwin had not given notice to Mr. Pretyman of the acquisition of such real estate. Having thus, then, fully considered the rights of the parties as they stood on the 11th Oct. 1861, the day on which the Bankruptcy Act of that year came into operation, let us examine the repealing section (viz. the 230th) of that Act. The section is in the following terms: "The Acts and parts of Acts set forth in the schedule to this Act to the extent to which they are therein expressed to be repealed, and all other Acts and parts of Acts which are inconsistent with this Act, are repealed, but such repeal shall not affect any proceeding pending, or any right that has arisen, or may arise, or any penalty incurred, or that may be incurred, in respect of any transaction, act, matter, or thing, done or existing prior to or at the commencement of this Act, under or by virtue of any of the Acts or parts of Acts repealed." In schedule G, the whole of the statute 5 & 6 Vict. c. 116, is set forth to be repealed; and I may remark in passing that the words or may arise" in the repealing section have reference to the period between the day the B.A. 1861 received the Royal assent, and the 11th Oct. following. It is perfectly clear, therefore, that the only rights saved are the rights to things which were in existence prior to or at the time the B. A. 1861 came into operation, that is to say, rights that were then capable of being enforced. Therefore, in the present case, the only rights saved to the official assignee and the creditors are the

rights of the former to claim the property which Goodwin acquired between the 13th Feb. 1852 and the 11th Oct. 1861, and the right of both assignee and creditors to apply for a rescission of the final order, under sect. 12 of 5 & 6 Vict. c. 116, upon the ground that Goodwin gave no notice of the acquisition of such property to the assignee. The result, therefore, is that Mr. Hill's clients have a locus standi in court, so far as it relates to any property acquired by Goodwin between the time he obtained his final order and the 11th Oct. 1861, and so far, therefore, Mr. Hill's application must be heard and determined on the merits; but Mr. Jackaman's objection is, in my opinion, clearly fatal to the claim of the official assignee and creditors to any property acquired by Goodwin since the 11th Oct. 1861. Mr. Hill, indeed, further urged (and I merely refer to his argument lest it should be thought that I had overlooked it) that every protection case in which a final order had been obtained before Oct. 11, 1861, was a "proceeding pending" within the meaning of sect. 230 of the B. A. 1861, until 20s. in the pound be paid and the petition taken off the file; but that would be giving a very strained construction to the repealing clause. What the words "proceeding pending" really refer to is a case where a petition had been filed before Oct. 11, 1861, but the final order had not been obtained, or a case where an application like the present had been made, but not adjudicated upon prior to the 11th Oct. 1861.

Upon this ruling the case stood over to the next court, to enable Mr. Hill to consider the course he should adopt.

Equity Courts.

COURT OF APPEAL IN CHANCERY.
Reported by THOMAS BROOKSBANK and E. STEWART
ROCHE, Esqrs., Barristers-at-Law.

-

Nov. 13, 14, 15, 16, 17, 19, and Dec. 6. (Before the LORD CHANCELLOR (Chelmsford.) PENN V. JACK.

PENN V. BIBBY.

Patent-Infringement - Prior user-Evidence-New

trial.

[CHAN.

accuracy to inform the law officer what is to be the subject-matter of the patent.

It is not necessary that the provisional specification

should describe the mode or modes in which the invention is to be worked or carried out. That is left to the complete specification.

The judge must have had an opportunity of deciding upon some distinct question, and have refused to allow it, before there can be a motion made for a new trial on account of the rejection of evidence.

This was an appeal by the defts. from the decree of Wood, V. C. awarding an injunction to restrain them from using the plt.'s invention, under circumstances which fully appear in the judgment of the L. C. The proceedings in the court below are reported 14 L. T. Rep. N. S. 494.

Sir R. Palmer, Q.C., Webster, Q. C., and E. E. Kay, for the defts., contended that the finding of the V. C. was erroneous, because the alleged invention was merely a new application of an old and well-known thing, and because, when they were proceeding to cross-examine some of the plt.'s witnesses on the subject, they were stopped by the V. C. upon the ground that this was not within the notice of objections.

Grove, Q. C., Co on, and Aston for the plt.
Cases cited:

Curtis v. Platt, 8 L. T. Rep. N. S. 657; 10 L. T.
Rep. N. S. 383;

Newall v. Elliott, 4 C. B., N. S. 269; 7 L. T. Rep.
N. S. 753;

Thomas v. Walsh, 1 L. R. 192, C. P.;

Foxwell v. Bostock, 10 L. T. Rep. N. S. 144;
Harwood v. Great Northern Railway Company, 12
L. T. Rep. N. S. 771;

Horton v. Mabon, 12 C. B., N. S., 437; 6 L. T. Rep.
N. S. 289;

Brook v. Aston, 8 E. & B. 478;

Morrison v. Barrow, 1 De G. F. & J. 633.

The LORD CHANCELLOR.-This was a motion for a new trial of certain questions of fact, tried before Wood, V.C., without a jury. The plt. filed his bill complaining of an infringement by the defts. of a patent granted on the 2nd Oct. 1854, for an improvement in the bearings and bushes for the shafts of screw and submerged propellers, and praying for an injunction. The defts. put in their answer, and the V. C., by an order in the cause, directed the The plt. took out a patent in Oct. 1854 for "an improve- following questions of fact to be tried (with the ment in the bearings and bushes for the shafts of consent of the parties) before the court itself, withscrew and submerged propellers." The defts. refused out a jury:-First, was the invention, for which the to acknowledge his right on the ground that the alleged letters patent of the 2nd Oct. 1854, in the plt.'s bill invention was not new, was not proper subject-matter mentioned, were granted, new within the United of a patent, and that there had been a prior user Kingdom of Great Britain and Ireland at the date of it. Under these circumstances plt. filed his bill of the said letters patent? Secondly, did the specipraying that the defts. might be restrained by injunc-fication enrolled in pursuance of the said letters tion from using the invention, for damages, for an account, and for other consequential relief.

The several issues having been directed to be tried by the court without a jury, Wood, V. C. found for the plt.

on all the issues.

Defts, moved for a new trial on the ground of the

verdict being against the weight of evidence. Motion for new trial refused.

patent particularly describe and ascertain the nature of the said invention, and in what manner the same was to be performed? Thirdly, was the alleged invention proper subject-matter of a patent? Fourthly, have the defts. infringed the

patent? After a trial which lasted several days,

and in which many witnesses were called on both sides, his Honour found, "first, that the invention, for which the letters patent of the tioned, were granted, was new within the United 2nd day of Oct. 1854, in the plt.'s bill menKingdom; secondly, that the specification enrolled in pursuance of the letters patent, particularly described and ascertained the nature of the inven

In dealing with the finding of the court below upon questions of fuct under the jurisdiction given by the Chancery Amendment Act 1858, the Court of Appeal is placed precisely in the situation of the judges of the courts of common law when a rule is obtaineation; thirdly, that the alleged invention was the to set aside the verdict of a jury. The office of the provisional specification of a patent is to describe the nature of the invention, not with minute particularity, but with sufficient precision and

proper subject-matter of a patent; and fourthly, that the defts. have infringed the patent." The trial having taken place under the 5th section of the Chancery Amendment Act 1858 the defts.