they can be easily hung against a wall. The orig oOlal pate::J.t was issued'to said H. S. Griffiths, May 5, 1868. The device consists of a ring of thin sheet metal, having a shank bottom piece with sharp spurs, which are pushed through the card and turned down on the opposite· side. These spurs are made like those of the little article in common use as a paper fastener. The novelty of the patented device was anticipated by an umbrella fastener, called 'upon the trial "Twitchell's Umbrella Fastener," which was made by the American Ring Company, of Waterbury, Connecticut, for some years, beginning in the summer or fall of 18·65, and which is still in common use. This fastener is a ring of shee,t metal, with spurs, which are pushed through the India-rubber band which serves to keep a folded umbrella in place. The ring attaches the end of the band to a button or hook. The suspension ring is like the umbrella fastener, ·except that the former has a longer shank than the latter, because it is a matter of convenience that after the spurs have been fastened to the card the whole circumference of the ring should be unoccupied, 80 as to permit it to be easily slipped upon a nail. This is an obvious matter of construction, and the necessary change requires only mechanical taste and skill. Substantially the same article is used lor two objects, and the new use is quite analogous to the purpose for which the article was previously used. The bill is dismissed.
(District Uourt, D. Mas8acku86tt8. May 4, 1881.)
In the light of the usages of the port of New Bedford, the common contract to perform a whaling voyage can be terminated by either party for good cause. Information justifying a party to such a contract in concluding that the voyage had failed, and could no longer be prosecuted with success, constitutes good cause. \ 2.
By a written contract the libellant a,e:reed to proceed from the port of New Bedford to Mahe, Seychelle islands, and on his arrival there take charge of a bark and perform a whaling voyage in it, not exceeding three years in duration, and then return with it to said port; and the respondent, in consideration of the libellant's services, agreed to pay him a certain share of the net proceeds of the cargo obtained during said term. The libellant went to Mahe and took charge of the bark, and made in her an unsuccessful cruise, extending over a period of six months, when, becoming short·handed by and other;· wise, obedient to an order from the respondent he brought the vessel to New Bedford. Held, that, under the circumstances, the respondent ce.n rescind the contract.
It seems that the contract is one of partnership, and that one of the Implied conditions of such a contract is that either of the parties to. it is at liberty to withdraw from the adventure whenever it becomes reasoua!Jly certaiU: that it can no longer be prosecuted with success.
It seems, further, that a letter written to the responden,t on the date the order to return was received, in the terms following: "I very reluctantly COlnPly;with your request. Your views may be right, to a certain extent, liS I am situated now, for we have seen sperm whales three times since we left Mahe Banks, but taken no oil. I believe if we had !Jeen properly manned we should have made a good show" although. the chances were not the best. I shoulc;l have liked very much to have had a man, and taken the Season off the river, then gone north, and finished up the time as per agreement; but as you think it best for all concerned that the ship shall return to New :J3edford direct, I win bring her there as fast as wind and weather will permit,"-amounts to an acquiescence in the rescission.
W.C. Parker, Jr., for libellant.
Marston If Cobb, for respondent. NELSON, D. J. ' Libel in personam by the late master, against the
managing owner and agent of the whaling ship Andrew Hicks, to recover damages for the alleged breach of a written contract signed by the parties, by which the libellant agreed "to proceed from the port of New Bedford to Mahe, Seychelle islands, by steamer, and on his arrival there take charge as master of the bark Andrew Hicks, and perform a whaling voyage in said bark, not exceeding three years in duration, and return with said bark to the port of New Bedford;" and the respondent, in consideratien of the libellant's services, agreed "to pay the said Brown the one-fiftieth lay or share of the net proceeds of the cargo obtained by said barrk during the term of his services as master thereof." At the date of the contract, August 24,1877, the Andrew Hicks was on a whaling voyage in the Indian ocean, without a master, and in charge of her chief mate. The libellant went to Mahe, as· agreed in the contract, and took command of the ship on the thirteenth of December, 1877. After cruising in the vicinity of the Seychelle islands and the coast of Madagascar until the following June, occasionally putting into Mahe, he then sailed for St. Helena, intending to proceed from there to the whaling grounds off the river La Plata. Before sailing for St. Helena, his first and second mates had become dissatisfied and had been discharged, his fourth mate had been left behind sick at Mahe, nearly all his original crew had deserted, and their places had been supplied from the natives of the islands, and his only remaining officer was Murray, the third mate. On his arrival at St.
,BaoWN V. HICKS.
Helena, July 29th, he found. a letter awaiting him from the respondent, ordering him to take the ship home. He sailed for N.ew Bedford in obedience to this order, arriving there October 19, 1878. He took no oil during the entire voyage. I agree with the libellant that the. contract should be, construed in the light of the usages of the port of New Bedford, and, being so construeq, it provided fora whaling voyage to continue for the term of three years, 01' until an earlier accomplishment of its purpose; and in the mean time ther party had the right, tl-t his own pleasure and against the will of the other, to put an end, to the voyage, except for:good cause; and, unless good cause existed, the action of the respondent ino;rdering the ship home in July', 1878, and thua breaking up the voyage, was a violation of the contract, for which he is responsible to the libel-. lant in damages. Is such cause shown? The contract was strictly one of partnership, by which the owner was contribute his capital, and the master was to contribute his time and services, and each to share in the profits of the joint adventure in the stipulated proportions. It. is one oftb.s implietl condi· tions of such a contract that either of the parties is jJ.t liberty to withdraw from the adventure whenever it becomes reasonably cert'am that it can no longer be prosecuted with success. The only information concerning the voyage upon which the respondent could act was furnished by the letters written home by thelibellant from Mahe. In his letters of January 3d, Jamiary 8th, Febru)'try4th, and February 24th, he wrote that the first and second mates had left the ship, refusing to serve longer under him; that nearly all the old crew had deserted, but he had succeeded in picking up men enough to man three of the four boats by taking Creole,f? who could not speak English. In his letter of February 24th he writes:
"As things stand I have decided to make St. Helena my nextrort; shall be there by the last of .July, when I shall expect to hear from you. I should say,if I might be allowed to suggest, that you send me both a mate and a second mate, although I can get along very well with Murray for second mate. The difficulty will be to get some one to fill his place. If you should decide to send some one ont, I can take them from anyplace you may name on the 'oast of Brazil, for I am thinking very strongly of taking the season off the rIver. I feel that it is absolutely necessary for the benefit of the voyage that a mate should be sent out. I will leave the rest to your good judgment. It is possible I may get a very good man at St. Helena to take Murray's place, although I think it would be the better plan to send a man, providing you have a chance to send them direct to St. Helena by a sailing vessel. If you should deem it necessary to send a mate out at once by steamer, by the way of England, I will endeavor to get along without the second man."
In none of his letters did he report the taking of any oil. When the letter of :February 24th reached the respondent he was unable to procure suitable mates to go out and serve in the ship. Under all the circumstances, I am of opinion that the respondent was right, as a prlident owner,in concluding, upon the information in his possession, that the voyage had failed and could no longer be prosecuted successfully, and that he was justified in ordering the ship home. By the libellant's own account, she was in no condition for whaling. To put her in such a condition it would be necessary to send out from home a chief ll1ate, at least, and the others as well, unless the respondent was willing to run the risk of the libellant's being able to find them at St. Helena, of whiohthe likelihood was small. This risk he was not bound to incur, and as he was unable to procure suitable officers to send out, no other course seemed open to him than the one which he adopted. The libellant himself seems to have been well convinced at the time that the action of the reo spondent was wise. In a letter written home on the date he received the ordet to return, he wrote:
"I very reluctantly comply with your request. Your views may be right to a certain- extent, asI am situated now, for we have seen sperm whales three times since we left Malle Banks, but taken no oil. I believe if we had been properly manned we should have made a good show, although the chances were not the best. Ishould have liked very much to have had a man, and taken the season off the river, then gone north, and finished up the time as per agreement. But as you think it best for all concerned that the ship shall return to New Bedford direct, I will bring her there as fast as wind and weather will permit."
This language may be fairly construed as an acknowledgment that the respondent's course was right and proper under the circumstances, and as an acquiescence in his decision. The voyage seems to have been unfortunate from the beginning, but through no fault of the libellant. The case is certainly a hard one for him; and, although I am unable to find any way to award him damages on his contract, I shall not require him to pay costs. Libel dismissed, without costs.
GHEN t1. RICB.
(District Oourt, D. MaB8achU8etts. Apri123, 1881.)
WHALE FISHERY. ' In the earlyspIing months the; 64stlJrly part of Massachusetts is frequented by fin-back whale. :l!'ishermen from Provincetown pursue them in open, bqats from the shore, and with bomb-lances fired from guns expressly for the When killed they sink once to the bottom, but in 'the course 'If from one to three days they rise andfioat on the surface. The person who hatlpims to find theri16n the beach uBultllysends word to Provfor his serVices. The business is 'Of incetown, and he receives a small considerable extent, but· is engaged iii by' but few people. Each boat's crew engaged in the business has its peculiar mark or device on its lances, and thus it is know;n byw;hom a whale is killed. .The usage on Cape Cod, for many years, has been that,the person who kilJ,sl;\. whale, in the manner l;\.nd under tJ;le circumstances. described, ow:ns it; Held, ,tpat the usage is reasonable and v"li4.
.1'E:R&' N ATURlE-,APPROPRIATION-,TITLE. Qumre, whether the first taker of an.anima1ferm naturlB, who performs t;JJ.e
only act of appropriation that is thereby acquire title to it.
in the nature' of the case, does .not '
, 'On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, the lihellant shot and ill.stantly killed, with a bomb-lance, the whale in question. It sunk at once, and on'the morning of the 12th was found stranded on'tlie beach in Brewster; within tlJ.e ebb and flow of, the tide, by one Ellis, 17 Diiles from the spot where it was 'kined, who 'advertised it for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. On the morning of the 15th, the libellant heard' that the whale had' been found, and at once sent his men to claim it. Neither the respondent nor Ellis knew that the whale had been killed by the libellant, but they knew, or might have known if they had wished, that it had been shot and killed with a bomb. lance, by some person engaged in this species of business. Held, that the re, spondent was liable for a conversion. . 4.
The rule of damages in such a case is the market value of the oil obtained from it, less the cost of trying it out and preparing it for the market. wi th interest on the amount so ascertained from the date of conversion.
H. M. Knowlton, for libellant. H. P. Harriman, for respondent. NELSON, D. J. This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they a.ppeared at the hearing, are as follows:
In the early spring months the easterly part of Massachusetts bay is frequented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at (mee to the bottom, but in the course of from one to three they lise .a.nd float on the surface. Some of ,them are picked up by ves-