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the advice of the pilot, slipped two cables, and was laid on the Maplin-sand, from which she got off without assistance, and was returning back to the West India docks, when she met the steamtug, which agreed to tow the Reward to London, and this she ef. fected in about ten hours. On the part of the owners of the Reward, the service was regarded as mere towage, and the sum of 17l. 17s. was tendered, as the rate due, according to a printed scale of the company. The value of the ship and cargo was 8000l. A preliminary objection was taken on the part of the owners, to three affidavits exhibited on the behalf of the salvors, which had been sworn before a master extraordinary in chancery, the name of the place not being mentioned in the jurat. Burnaby, D., and Robertson, D., in support of the objection, cited an order of the court of chancery, under which it was required that the place where the affidavit is made should be mentioned; and The King v. The Justices of the West Riding of Yorkshire,’ where the court of king's bench held it to be a valid objection to an affidavit sworn before a commissioner of the court, that no place was mentioned in the jurat. On the other hand, the Queen's Advocate and Addams, D., argued, that no order had been made by this court, that it would not receive affidavits in which the name of the place was not mentioned, and that (except in cases in patnam) it had been usual and customary to receive such affidavits, which had never been objected to ; a fact confirmed by the registrar. Dr. LUSHINGTON. The objection is of a technical nature ; but, as it has been taken, the court is bound to consider and dispose of it. The mode of proceeding in these cases is a very summary mode, for the benefit of all concerned, and endeavors are made to take evidence in every possible shape, to save expense and bring the case to a speedy conclusion. At the same time it is impossible that justice can be done if the evidence received, supposing it should be wilfully false, should be of a kind, or have been taken in a manner, which will not stand the test of inquiry in a criminal
court; that is, that a prosecution for perjury, which is a great protection, could not be instituted. How is it that affidavits made before a master in chancery are admitted in evidence in this court? Properly speaking, this court has three modes of taking evidence: by the examination of witnesses; by affidavits before a surrogate or a commissioner; but, as I said, for the sake of convenience, affidavits made before a master in chancery or a justice of peace are also admitted. But a master in chancery, as such, has no authority to administer an oath in any matter relating to business in the high court of admiralty; he derives his authority only from the court which appoints him, and it is a perfect anomaly, therefore, to suppose that I could take, as evidence, an affidavit made before an officer appointed by the court of chancery, in a manner which would preclude that court from receiving it. I must presume that the court of chancery, in laying down the rule, proceeded on just grounds, in order to protect suitors and prevent irregularity, and I can well understand that great inconveniences might arise from the place where the affidavit was made not being named, the power and jurisdiction of masters extraordinary in chancery being limited to be exercised at a certain distance from London. On the whole, I think, that, as the objection is pressed, it might be attended with danger if I received these affidavits; I am, therefore, bound to reject them as not admissible evidence. But as it is stated to me that, somehow or other, without the attention of the court being called to it, similar documents have been received as evidence, I think I am also bound to allow the other party, if they desire it, the opportunity of having the affidavits resworn. (The objection, however, was afterwards waived, and the affidavits were received; but the court directed the practice to be altered.) The merits of the case were then entered into, and the main or only question was, whether the service was or was not to be considered towage. Upon which point the judgment of the court was as follows: Dr. LushingtoN. The simple question is, what was the condition of the vessel at the time when assistance was proferred to her by the steam-tug. The extent of the damage admitted is this; that she had lost (according to the statement in the protest) her starboard kedge, the larboard fore-kedge, the starboard end of her windlass, and the bit-head carried away. But she had a streamanchor, and that any damage had been done to the masts, the sails, or the hull of the vessel, is not even alleged. Being in this state, the Nelson comes up for the purpose (I will take it) of rendering assistance to vessels in distress. The question is, whether I am to hold, that what was done afterwards was a case of mere towage, or whether it partook of something of a different nature. I apprehend that when we speak of mere towage only, that expression in this court has been confined to vessels that have received no damage, and that it is not strictly applicable to those which have received any damage or injury, because it is obvious that it frequently occurs that vessels have received the greatest possible damage at sea, and yet the service rendered to them resolves itself into bare towage after all. Therefore, I conceive that mere towage reward is payable in those cases only where the vessel is in precisely the same state and condition that she would ordinarily be in without having encountered damage, risk, or accident. There is an infinite variety of circumstances which may enhance or diminish the value of a service rendered—the state of the weather, the degree of damage which may have occurred to the vessel, or the extent of her incapacity or disability. On the present occasion, the weather had originally been exceedingly severe, because the wind had blown a gale from W. S. W., but the gale had not only subsided towards the morning, but the wind had veered towards the N. N. W., and I have no doubt that had the weather continued as it is described at the time when the Nelson came up, in all probability this vessel, having on board her stream anchor, might have reached the port of her destination in safety. But, nevertheless, I by no means incline to the opinion that she was as safe, or in as perfect a state of security for performing her voyage from the Nore to Gravesend, as if she had two other anchors and cables; because the pilot says, “There was a stream anchor on board, and by the aid of the capstan the vessel might have anchored, if the weather had continued as it was.” That was a contingency which no man could foresee; the want of the two anchors and cables lost might have proved of serious consequence to the vessel. Believing the true distinction between mere towage and the contrary to be, that mere towage consists in conveying a vessel, by towing her, from one place to another, when she has experienced no accident, and that service of a different nature is rendered where there has been any accident, what I am to do is, to consider whether what was tendered is a fair reward for that service. After the storm was over, it was to be expected that the Nelson, finding herself in the situation where she was, and well aware of what probably might be the effects of the past gale, might, with propriety, have looked to the possibility of turning her power to the best advantage, by rendering assistance to vessels in distress, in preference to carrying on her ordinary occupation ; because I cannot hold that she was bound to continue a towage service, if demanded. I think she had a perfect right to apply her services in the most advantageous manner to herself and her owners. Under these circumstances, the question is, whether I ought to hold that the tender made is sufficient. The estimate is taken in this way — a card is produced of the rate of compensation required by the company to which the steamer belongs; and it is said, “This is the amount you are entitled to.” Now, I am of opinion, that this was not done in the ordinary course of proceeding, and consequently that it affords no criterion. My opinion is, that it was a service of a higher nature, but not of a much higher nature. I consider it a service rendered to a vessel not in any very great degree of distress, because the different degrees of distress are infinite; but still to a vessel greatly benefited by the essential service rendered to it. Looking at all these circumstances, I cannot think that I award too great a sum if I allot S0l. I cannot leave this case without noticing one observation of counsel. It has been said that, in former times, the court of admiralty directed its attention to the personal services of the salvors, and, comparatively speaking, little weight was given to demands on the part of owners. Undoubtedly that is the true doctrine, but I apprehend that doctrine does not apply to steamvessels at all. It is the duty of the court to bear in mind the observations which fell from lord Stowell,' when the first case of salvage by a steam-vessel came before him. Through the medium of these vessels an increased security is conferred on the mercantile navy, and it is the duty of this court to encourage them to continue these services. I must recollect, at the same time, that, in nineteen cases out of twenty, an excessive burden in the first instance falls on the underwriters; but whether upon them or upon the owners, it is in reality ultimately borne by the latter ; because the underwriters must demand a premium in sufficient proportion to enable them to carry on their business with ordinary profits; and if extraordinary salvage remuneration were given, it would tend to increase the amount of the premium, and be ultimately borne by the owners.
In the Arches Court, January 21, 1839.
GRANT v. GRANT.
This was a suit brought by letters of request from the court of Winchester, promoted by captain Alexander Grant, against Maria Theresa his wife, for a separation, by reason of adultery. The parties were married in 1825, at Madras, in the East Indies, and cohabited in various places in the East and in this country, six children being the issue of the marriage. In 1835 or 1836, they sailed from England to the East Indies in the Lord Lowther, the property of captain Grant, and under his command, accompanied by two of their children, and another was born on this voyage. They proceeded to various places, and in May, 1837, being at