then intimated that it was unnecessary to hear him 1852, and subsequently on the same day the defendant came to the office to appear. A rule nisi having been further.] obtained to set aside the judgment as prematurely signed, COCKBURN, C.J.-I dissent to this extent from the judgment of the Court of Exchequer, that I think we have still a discretion under the 43 Geo. 3, as to granting costs in such cases as this. I do not think that the 7 & 8 Vict. has taken that discretion away, for, though it provides that there shall not be an arrest on final process when the sum recovered is under 207., it has not taken away the right of a person who has obtained a judgment in a former action, and who cannot take out execution, to bring an action on that judgment; and I think, therefore, that our discretion, which arose under the former statute, still remains. I quite go the length of agreeing that the 7 & 8 Vict. gives a guide as to the exercise of discretion by the Court; and if we saw that the action on the judgment was brought merely for the purpose of enabling the creditor, by adding the costs to the sum recovered in the previous action, to issue a ca. sa., and so frustrate the intention of the 7 & 8 Vict., we ought not to assist the plaintiff by giving him the costs of the second action. But, the discretion being left to us, we might be well justified in doing so in cases where the creditor has been wilfully obstructed by the debtor, and is thereby entitled, both legally and morally, to take any means which the law enables him to recover the fruits of the judgment. I quite agree with Mr. Lush, that the object of the statute was to protect persons who had no pecuniary means, and could give nothing to their creditors but the miserable satisfaction of incarcerating their bodies; and I think that in such cases the Court would interfere and exercise their discretion on behalf of the debtor. But where a defendant who has means has endeavoured to evade payment by reason of the statute, and has put difficulties in the way of the plaintiff, then I do not think we are ousted of our jurisdiction. The present case is not one, however, in which we ought to exercise our discretionary power by giving costs to the plaintiff. Rule refused. T. E. Chitty showed cause. He referred to 5 & 6 Edw. 6, c. 3, An Act for the keeping of 2 Coke's Inst. 264; 2 Will. 4, c. 39, s. 11; Rules of Hilary Term, 1853, 173, 174, 175; Chitty's Practice, 159; Peacock v. The Queen, 4 C. B. (N. s.) 264; Field supported the rule, and, in addition to the above cases, cited, Mesure v. Britten, 2 H. Bl. 616; 2 Str. 782, 914; Morris v. Barrett, 7 C. B. (N. s.) 139. ERLE, C.J.—I am of opinion that the defendant had till the Wednesday on which to appear. Appear ance is a combined act of the Court and of the parties, and the office being closed on Good Friday, that act could not be done. The days from Good Friday up to the following Tuesday became equivalent to Sunday, and, therefore, according to the analogy of the prac tice from the earliest time respecting Sunday, the defendant was entitled to the Wednesday. The rest of the COURT (Willes, Byles, and Keating, JJ.) concurred. Rule absolute without costs. C. P. A clerk was articled on being told by a friend that he thought the money for the stamp could be raised in a month or six weeks. He was not able to obtain the money for more than a year, when he memorialised the Treasury, and was allowed to have the articles stamped on the payment of a penalty of 201. The Court declined to allow his service to date from the execution of the articles. This was an application that Edwards might be allowed to have his articles enrolled, and that his service under them should be allowed to date from the execution thereof, though the stamp-duty had not been paid within the six months allowed by law; the ness. facts stated on affidavit were, that the applicant entered into the service of his father (an attorney) in 1850, but was not articled, as neither of them could afford to pay for the articles; he remained with his father till 1861, and for five years managed the busiIn that year the father, being involved, gave up business, and, in the month of October, the applicant entered the service of another solicitor. A friend informed him that he thought the money could be raised in a month or six weeks. Acting on this suggestion, and by the advice of his father, he was articled in November. As soon as the money was forthcoming he applied to have his articles stamped, but found it could not be done, in consequence of more than six months having elapsed. He then memorialised the Treasury, and the articles were allowed to be stamped on the payment of a penalty of 207. Hayes, Serjt. appeared for the applicant, and cited, Ex parte Bishop, 30 L. J. C. P. 48; Ex parte Herbert, 31 L. J. C. P. 33; Ex parte Breden, 31 L. J. C. P. 321. ERLE, C.J.—I am of opinion that this application must be refused. The Courts have uniformly been in the habit of granting these applications when the delay has been occasioned by an unforeseen emergency, and when the party applying had really a good reason for expecting the money. Ex parte Breden was an extremely strong case; there the applicant had been managing clerk to an attorney, and on his death kept the business together till the son was of a proper age to be admitted. He was then, in consideration of his services, articled to the son, the widow promising to pay for his articles, which she afterwards neglected to do, alleging inability. This was a promise which the applicant had the strongest right to rely on. In ex parte Bishop the application would probably have been refused, but the party had been before my Brother Willes, at Chambers, who referred him to the full Court, intimating that the duty and penalty should be paid before the application. Here we thought that, as the applicant might have been induced to pay the money by the Judge's intimation, it would seem something approaching a breach of faith if the Court allowed him to go to that expense without any result. I do not agree with the law as laid down by Cockburn, C.J., in Ex parte Herbert, that, if the Treasury allow the penalty to be paid, the Court have nothing to do but to sanction the enrolment of the articles. They have more than merely ministerial duties to perform, and, if it were otherwise, the public time would be taken up to very little purpose. I agree with my Brother Crompton that the Legislature has required the Courts to see that many conditions intended to secure skill and respectability in attorneys, have been complied with; amongst others, indirectly, that the stamp duty on articles of clerkship has been paid. In this particular case the clerk seems to have articled himself with no reasonable expectation of obtaining Policy of Insurance-Warranty free from consequences of hostilities. In a policy of insurance on coffee were contained the words "free of capture, seizure, and detention, and all the consequences thereof, and of any attempt thereat; and free from all consequences of hostilities, riots, and commotions." The captain being out of his reckoning, and the light upon Cape Hatteras having been extinguished by the American Confederates, in pursuance of their hostilities with the Federals, the ship was wrecked on Cape Hatteras. Part of the cargo was saved, and another part would have been saved but for the interference of Confederate troops : Held, in an action on the policy, that the loss of the ship was a loss by peril of the sea, and that there was a total loss by peril of the sea of that part of the cargo which could not have been saved, but that the loss of that part which was prevented from being saved by the soldiers was a consequence of hostilities within the exception of the policy. DECLARATION on a policy of insurance on a cargo of coffee, shipped on board the "Linwood," and alleged to have been totally lost. A very high premium had been paid, and the policy contained a warranty "free of capture, seizure, and detention, and all the consequences thereof, and of any attempt thereat, and free from all consequences of hostilities, riots, and commotions." The ship sailed from Belize for New York, and was wrecked off Cape Hatteras, on the 17th of July. The defence was, that the light on Cape Hatteras had been put out by the Confederate troops for the purposes of hostilities, that the vessel had been wrecked in consequence, and that the loss, therefore, came within the warranty as being a consequence of hostilities. The night was a cloudy night, and the captain was out of his reckoning, imagining himself to be thirty-five miles away from the Cape, and he did not profess to be steering for or by the light, but he could have seen it, if alight, seven miles from where the ship struck. Several bags of coffee were saved by the "wreckers," an organised body of salvors, receiving half the value of the goods saved as their salvage, and they would have been able to save 1000 bags out of the total of 6500, had not Confederate soldiers come down and seized what had been brought ashore, offering the wreckers only one-third of the goods as their salvage. The wreckers refused to work on these terms, and left the soldiers to do the best they could. Two Confederate officers came on board, but did not remain long, and the ship went to pieces next day. Altogether 150 bags were saved. A verdict was obtained by the plaintiff at the trial, before Erle, C.J., at Guildhall; and a rule nisi having been obtained by the defendants to enter a nonsuit, or to reduce the damages, pursuant to leave reserved, is the further fact that till the secession of the Southern States there had been maintained a lighthouse on Cape Hatteras, the light on which was put out for the purposes of hostilities. I take as a fact that if there had been a light there the captain would have put his ship about, and it would not have been lost. The contention is, that the loss of the ship was a loss caused by the consequences of hostilities. The general rule, Causa proxima non remota spectatur, is to be followed. I think that the proximate cause was the captain's being out of his reckoning, and that the absence of the light was not so proximately connected with the loss of the ship as to stand to it in the relaBovill, Q.C., Lush, Q.C., and Sir George Honyman, tion of cause to effect. Next, as to the loss of the showed cause. cargo. When the ship was wrecked, and there was no Brett, Q.C., Mellish, Q.C., and Maclachlan, sup- appearance of any possibility of saving any of the ported the rule. The argument was long. The cases and authorities referred to were, for the plaintiff, Broom's Legal Maxims, 203, 204; cargo, there was presumably a total loss of the cargo; but subsequently that presumption ceased, and it must be taken that as between these parties the 1000 bags, which the wreckers would have saved but for the interference of the soldiers, were potentially saved, and would have been saved but for the consequences Patrick v. The Commercial Insurance Company, of hostilities, and thus they were brought within the 11 Johns. (U. S.) R. 14; Powell v. Gudgeon, 5 M. & S. 431; exception in the policy, and as to them the insurers are not liable. They are liable for the remaining Marshall on Marine Insurance (4th ed.), by Serjt. 5,500 bags, which could not have been saved. It is Shee, 374; Tatham v. Hodgson, 6 T. R. 656; Lawrence v. Aberdein, 5 B. & Ald. 107; Redman v. Wilson, 14 M. & W. 476, 483; contended that there was a total loss of the whole of the cargo by capture, but the acts of the soldiers were not those of troops taking possession of the ship, but those of men taking spoil. There will be, therefore, Busk v. Royal Exchange Insurance Company, 2 judgment for the plaintiff for the 5,500 bags. B. & Ald. 372; Hahn v. Corbett, 2 Bing. 205; For the defendants, 3 Kent's Comm. 335, note; Montoya v. The London Insurance Company, 6 Thompson v. Hopper, 1 E. B. & E. 1038. ERLE, C.J.-After a most able argument the result is, in my opinion, that there must be judgment for the plaintiff in respect of a partial loss. The action was on a policy of insurance on coffee, containing an exception "free of capture, seizure, and detention, and all the consequences thereof, and of any attempt thereat, and free from all consequences of hostilities, riots, and commotions." The insured ship, proceed ing from Belize to New York had to pass by Cape Hatteras, and, the captain being out of his reckoning, the vessel struck upon the Cape and was lost. If there was nothing more in the case than this, there would be a clear loss by perils of the sea. But there WILLES, J.-First, as to the absence of the light, and the possibility that if the light had been there the ship would have escaped shipwreck. The absence of the light may or may not have been the cause of the loss, but it was not the proximate as it was not the absolutely certain cause, which was the vessel's taking a wrong course. Then the ordinary rule applies, that the proximate cause is to be looked at. The words "consequences of hostilities" mean no more than "effects of hostilities," and the proximate consequences must be looked at, and not the remote, just as much as the proximate cause of the loss. Thus the wreck was by perils of the sea, and not in consequence of hostilities. Secondly, as to the wreck and its effects. From the moment that the vessel stranded, and was totally lost, there was a total loss of the cargo, subject to what might happen in the course of a few days (1 Emerigon, 400). Where there is a wreck of a vessel without hope of recovery, the cargo is treated as lost when it is in a position in which none of it can be recovered for the use and benefit of the insured; as when it is cast on a desert island, or among a savage people (Bondrett v. Hentigg, Holt's N. P. 149). In this case it was possible to save 1000 bags, impossible to save 5,500. The conclusion of good sense and law is, that the latter were absolutely lost at the moment when the vessel struck the rock, and there was a total loss of so much of the cargo. The 1000 bags, under ordinary circumstances, irrespective of hostilities, would have been saved, and 150 bags actually were saved. Thirdly, as to the effect of the hostilities. It was a proximate consequence of hostilities that 1000 bags less 150 were lost. It is said that there was a capture of the remaining 5,500 bags when the Confederate officers boarded the vessel. It is an abuse of language to say that a man captures what must be snatched away from his grasp the next day, and of which he can have no enjoyment. BYLES, J.-First, was the vessel lost by reason of the absence of the light? To raise that question it would be necessary to prove that the light would have been visible where the vessel struck, and that the captain would have seen it and recognised it in time to put his vessel about and escape the peril. This is all possible, but it is conjectural. Assume this to have been the case, is the absence of the light a link in the chain of causes, and is the destruction of the ship to be attributed to that absence? I do not pretend to distinguish between the various kinds of causes the distinctions of which employed the intellects of wise men more than two thousand years ago. It is sufficient to say, that the immediate cause is, according to established authority, alone to be looked at. What were the three causes here of the loss? The first, which I may call the meritorious cause, was the miscalculation of his position by the captain. The second, was the absence of the light, that is, of what might have been an extrinsic saving power. It still leaves the proximate or immediate cause, which was, by perils of the sea, a consequence of the previous The second question is, whether the loss was partial or total. The general rule is, that a cargo is totally lost when it no longer exists in specie, or exists only in a position which is inaccessible. Here there was originally only a partial loss. There was afterwards, undoubtedly, a total loss of the goods, so far as the owners were concerned, but as to some part of them, not by perils of the sea. cause. committing of the grievances complained of, the plaintiff's property in the prints, and his compliance with the regulations of the Act. The defence raised at the trial was, that the copies sold by the defendant were photographs from the picture of reduced size, and did not come within the prohibition of the Act. A verdict was taken for the plaintiff, with 107. damages, the defendant having leave to move to set it aside, and enter a nonsuit. Against a rule nisi obtained by the defendant, Collier, QC., Prentice, and Brandt, showed cause; and referred to 8 Geo. 2, c. 13; 7 Geo. 3, c. 38; 15 Vict. c. 12, s. 14; Jeffreys v. Baldwin, 1 Ambl. 164; Coleridge, Q.C., and Rew, supported the rule. There is no copyright at Common Law, as has been decided by the House of Lords. Jeffreys v. Boosey, 4 H. of L. Ca. 815. [WILLES, J.-That question need not be considered in accordance with the opinion of the minority of the as definitively concluded. The House of Lords decided Judges, and only two Lords, one of whom was Lord St. Leonards, expressed an opinion that there was no copyright at Common Law.] The remedy under the statutes of Geo. 2 and Geo. 3 is against base copies, the sale of which would injure the reputation of the artist: purchasers imagining that they were buying the genuine engraving. These little photographs could not possibly be bought in mistake for the engraving. The Act being a penal Act, must be construed strictly, Murray v. Heath, 1 B. & Ad. 804. ERLE, C.J.-The question raised is, whether or not the sale of a photographic copy of an engraving is an infringement of the rights of an engraver under the statute of 17 Geo. 3, c. 37? I am of opinion that it is. The preamble of the previous Act speaks of base copies; but the enacting words are wider, and are not Rule absolute to reduce the damages. controlled by the preamble. Engravings have a KEATING, J. concurred. commercial value, and the Act gave the engraver a protection for the moneyed value of his invention, and not merely for his reputation. A photographic copy may give to the mind of the purchaser the same pleasurable ideas as the original engraving; and the terms of the Act apply to any mode of copying then copy-known, or to any mode which has been brought forward in the advance of civilisation; so that this case is within both the mischief and the words of the The unauthorised publication and sale of photographic copies of an engraving is an infringement of the right within the meaning of 17 Geo. 3, c. 37. This action was brought, under 17 Geo. 3, c. 37, by Ernest Gambart, the proprietor of prints from Rosa Bonheur's "Horse Fair," and Holman Hunt's "Light of the World," against the defendant for copying the said prints, and publishing and selling copies of them contrary to the statute. The pleas traversed the statute. WILLES, J.-I should not have come to this opinion if it had been necessary to say that a copy made by hand in pencil or ink was within the statute. The statute may, I think, be explained as applying only to copies produced by processes, mechanical or chemical, in the arts: the result of which is to give an indefinite number of copies of engravings. BYLES and KEATING, JJ., concurred. C. P. 4 MAY, 1863. } Rule discharged. COPEMAN v. HART. Bankruptcy-Deed of Composition. A deed of composition which purports to be for the benefit of such creditors as shall execute it within a certain period is not valid within the 192nd sect. of the Bankruptcy Act, 1861, and therefore cannot be pleaded in answer to an action. being brought, the jury found a verdict for the respondent (the then plaintiff); they also found that the horse was necessary for the young man, whose father was a county magistrate. A. Wills, for the appellant, contended that a horse was not a necessary, and argued that the action was really one of contract, and that the respondent could not affect to treat it as one of tort in order to make the appellant liable. He cited, Wharton v. Mackenzie, and Cripps v. Hill, 5 Q. B. 606; Jennings v. Rundall, 8 T. R. 335; Wright v. Leonard, 30 L. J. C. P. 365; Brooker v. Scott, 11 M. & W. 67. This was an action for goods sold and delivered. PLEA, a composition deed, under the 192nd sect. of but was stopped by the Court. the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134). Tozer, Serjt., commenced arguing for the respondent, DEMURRER on the ground (among others) that the deed did not purport to be for the benefit of all the creditors, as it was only for those who should execute it within a certain period. Aspland, for the plaintiff, cited, Whitmore v. Turquand, 30 L. J. Ch. 345; Berridge v. Abbott, 1 N. R. 457. White supported the plea. THE COURT (Erle, C.J., Willes, Byles, and Keating, JJ.) were unanimously of opinion, on the authority of all the cases cited, that the plea was bad. C. P. 4 MAY, 1863. § ERLE, C.J.-The question for us is, whether, under these circumstances, the plaintiff or defendant was entitled to the verdict? The defendant was told that the horse was not let for the purpose of jumping, and having obtained her on these terms, he lent her to a friend, who used her for jumping, in consequence of which all the mischief accrued. On these facts, the defendant was clearly liable, because they disclose a cause of action quite independently of that neverceasing subject of dispute,-"necessaries." Without considering whether there is evidence to show the horse was a necessary, there is quite enough in point of law to sustain a verdict for the plaintiff. WILLES, J.-I am of the same opinion; the fact of riding into the place where the stake was, and jumping the fence, was as much a trespass as if the defendant had taken the horse out of a field without Judgment for plaintiff. the owner's consent and done the same thing. BURNARD, Appellant, v. HAGGIS, Trespass-Liability of Infant. An infant hired a horse on the understanding that it was for riding on the road, and not jumping; he lent it to a friend, who injured it by jumping :— BYLES, J.-I am of the same opinion: the horse was hired for one purpose and used for another; hired to be used by the appellant, and used by his friend. It was the same as if he had lent her to a coachman driving a fast coach, who had damaged her by driving down hill. This is independent of the question of necessaries, on which I say nothing. KEATING, J. concurred. C. P. APPEAL from the decision of a county court judge. 4 MAY, 1863. The appellant, an undergraduate at Cambridge, under age, hired a horse of the respondent. He asked if she could jump; the respondent replied, "I dare say she can ; but I do not let her out for jumping and larking. You can have another horse for jumping, if you like?" The appellant replied, that he only wanted her for ordinary riding. He took the mare away, and lent her to a friend, who jumped her over a fence; she got staked, and was obliged to be killed. An action { Judgment for respondent. ATKINSON v. LONDON, BRIGHTON, Infancy-Equitable Plea. In an action by an infant, for negligence, it is not sufficient in an equitable plea to allege that the defendants paid a sum of money to a third person at the plaintiff's request in discharge of the cause of action, unless there is a distinct averment that such payment was beneficial to the plaintiff. |