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ship, from the perils insured against, became incapable of pursuing the voyage, and another vessel could not be procured to forward the corn to its destination. Wilson v. R. E. Ass. C. 2 Camp. 623. The difference between this case and Anderson v. Wallis is, that in the former case the voyage was wholly lost, and the cargo, a perishable commodity, was deteriorating daily; whilst in Anderson v. Wallis, the voyage was only suspended or retarded, and the cargo, which was copper, could not be injured by delay.

In M'Ivor v. Henderson, which was determined in K. B. in Hilary term last, 1816, the Court, in the judgment delivered in that case, have thrown new lights upon this very entangled but important subject of abandonment.

The case was this:- A ship, insured from Liverpool to Sierra Leone, was captured in the course of her voyage by a French frigate, plundered of her stores, and of most of her guns and ammunition. She was then delivered by the captors into the possession (by way of gift) of the master of a Portuguese vessel, which had been previously captured by the privateer. The Portuguese took the vessel, with the British

1815.

v.

The ROYAL EXCHANGE ASSURANCE.

captain and part of the crew on board, to Fayall. He there laid claim to her in the GERNON and Vice Admiralty Court, which Another claim the British captain opposed; the Court however decreed in his favour, and ordered the vessel to be restored to him. The Portuguese appealed, and the British captain was obliged to deposit 4271. to abide the event of the appeal. In the mean time, he communicated what had happened to the plaintiff, who gave notice of abandonment to the defendant, which notice the defendant refused to accept. The vessel afterwards, and before the commencement of the action, arrived at Liverpool. The question was, whether the plaintiff was entitled under these circumstances to recover as for a total, or for an average loss. It was holden by the Court, that he was entitled to recover for a total loss: that he had a right to abandon when the news of the capture arrived; and nothing had occurred since to defeat that right.

Lord Ellenborough, in delivering the judgment of the Court, observed, It is contended that a contract of insurance is a contract of indemnity; and that, therefore, the actual damage sustained in the result can only be recovered

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v.

The ROYAL

"Bainbridge v. Neilson," 10 EXCHANGE East, 329, and others, have ASSURANCE. been cited. But this case is

obviously different from them all. Here there never was any restitution of the ship in the state in which it was insured. Here the guns and stores were never restored; the voyage was completely lost; and the ship itself was never fully liberated and restored, by reason of the actual deposit of the sum of 4271. to abide the event of the appeal. The sentence of appeal is to determine the right of possession; but is the plaintiff to wait for that decision, accompanied as it must be with. damages, perhaps to a much larger amount than the interest which he has in the ship? Under these circumstances, what can be said to be the limits of the plaintiff's loss? If it be an average loss, who shall determine what the average is? Can it be safely said, that this is not a total loss? And what is to be the extent of the average loss under the circumstances of this case? Does the mere restitution of the hull of the vessel remove the idea of a total loss, if the plaintiff be compelled to pay

more for that restitution than the ship is worth? Is the loss, under that circumstance, reducible only to an average loss? If no abandonment had been already made, we should have no hesitation in saying that there are sufficient circumstances to justify the abandonment at this moment. An abandonment would be well warranted at this instant. The voyage is lost; the cargo is lost; the stores are gone: and is the assured to pursue the hull with all the trouble, expence, and hazard of litigation in a foreign Court of Admiralty? Can it be said that the effect of the abandonment as for a total loss, by reason of capture and detention, is to be frustrated by the continuance of a loss of a similar kind? It appears to us, that there existed at the time of the abandonment a clear right to abandon; that the action was well brought for a total loss, and that there exists, at the present moment, circumstances fully sufficient to entitle the plaintiff

to recover.

See likewise Dyson v. Rowcroft, 3 B. and P. 474. Ritchie v. Falkner, 2 M. and S. 290. Everth v. Smith, ibid. 278. and for other leading cases on the subject of abandonment, vide Goss v. Withers, 2 Burr. 683,

Hamilton v. Mendes, 1 Black Rep. 276. Mitchell v. Eddie, 1 T. R. 608.

In Smith v. Robertson, which was a case of appeal to the House of Lords, 2 Dow. Rep. 474, the Chancellor (Lord Eldon) appeared far from satisfied with some of the latter decisions, particularly Bain· bridge v. Neilson, and Ritchie v. Falkner. The case of Smith v. Robertson was this-Insurance on the Ruby, at and from Halifax to Plymouth captured on the voyage-intelligence of the capture-and im-` mediate abandonment; and some steps taken by the underwriters to settle the loss. Intelligence then of the vessel being re-captured, and refusal of the underwriters to settle, except for a partial loss. Held by the Scotch Admiralty Court,

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and Court of Sessions, that, 1815. upon notice of the abandonment given, and intelligence of GERNON and Another the capture, the transaction was closed, and not subject to The ROYAL be disturbed, upon any event ExCHANGE appearing from subsequent in- ASSURANCE. telligence. The judgment was affirmed in the House of Lords on the ground of the acceptance of the abandonment by the underwriters. By these means steering clear of the principles upon which K. B. had decided, Bainbridge v. Neilson, and Ritchie v. Falkner.

Lord Eldon in this case expressed an opinion, that it was a question, notwithstanding all the boasted certainty of the Law of Insurance, whether there was not as much uncertainty in this law as in any other.

July 1.

A patent is void. 1st. If

the specifica

ingredient,

WOOD and Others v. ZIMMER and Others.

TH

HIS was an issue out of Chancery directed to try whether a patent, bearing date 20th of tion omit any January 1812, was or was not a valid patent on which, though the 5th of February, 1813. The plaintiffs were assignees of Vanuriel, Zinck, and Co. and the patent in question had been sold by the bankrupts, which the pa- before their bankruptcy, to the defendants.

not necessary

to the compo

sition of the thing, for

tent is claim

ed, is a more expeditious

and beneficial mode of pro

nufacture; and,

The patent had been granted for a new mode of ducing the ma- making verdigrease, to be called British Imperial 2d. If previous Verdigrease. The specification stated it to be proto the patent duced from certain proportions of granulated copthe article has per and oil of vitriol boiled a certain time in a been publicly copper of a particular construction (which was defour months) scribed) and afterwards strained off and mixed with a solution of potash or soda.

being granted,

vended
(though only

by the pa

tentee him. self.

The verdigrease so produced was of a brighter green, and superior to the French verdigrease. A chemist gave evidence to the utility and novelty of the invention; and a workman employed by the patentees proved that, by following the directions in the specification, the manufacture might be produced he added, that he had manufactured it himself. It appeared, however, that Zinck was accustomed clandestinely, and unobserved by his workmen, to put aqua fortis into the boiler, by means of which the copper was dissolved more rapidly. It appeared, likewise, that four months

previous to the patent, the bankrupts had sold an article, composed precisely in the same manner as that for which the patent had been obtained, under the name of Dutch Imperial Green.

The Solicitor General and Selwyn, for the defendants, made two objections: 1. The specification omits the aqua fortis, which was a material ingredient, and always employed by the bankrupts in manufacturing the verdigrease. 2. The verdigrease, under another name, had been publicly vended by the bankrupts previous to their obtaining this patent.

Best, serjeant, for the plaintiffs. 1. The specification is sufficient to make the verdigrease: the aqua fortis was no necessary ingredient. It did not improve the colour, or save expence. It merely produced a more rapid solution of the copper. 2. Though Zinck sold the article before, that is to say, in August, 1811, and the patent was not obtained till January, 1812, he did not thereby forfeit his privilege in the invention. He might still obtain a patent; the discovery is still new; the invention is still his; and the secret locked in his own breast. Though sold, in a few instances, the property was not rendered common whilst he kept the secret. The secret was not disclosed till the patent was obtained.

GIBBS, C. J.-The objections to this patent are -First, The omission of aqua fortis in the specification. Secondly, That the article was not a

1815.

WOOD

v.

ZIMMER.

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