the writers but two have overlooked it; and of the two, one founds it solely on the American cases, and the other cites those cases but questions them.

If we go further and examine the sources of the English law, as for instance the laws of Oleron, of Wisby, and others, every article in them treats of ships, and what concerns them, and of nothing else. As for instance, article 63 of the laws of Oleron : "In all other things found by the seaside, which have formerly been in the possession of some or other, as wines, oil, and other merchandise, although they have been cast overboard, and left by the merchants," &c. And so in the most valuable and remarkable code known as the Ordinance of Louis XIV. of August, 1681, the whole of more than a hundred sections deals with ships and the affairs of ships only, and with the wreck of ships or effects called shipwrecked effects: see section 45, "of wrecks and ships run aground." For these, see the Treatise on Sea Laws.

In the Black Book of the Admiralty there is not a passage which indicates anything but ships and the conduct of them. Laws of Wisby, Black Book of Admiralty, p. 405, ch. 13, of things found on the sea: "Should a man find goods driving on the sea, where he can see no land, should he bring these things to land he shall have half for his labour; if he could see the land, he shall have a third part. (1) Should a man find goods on the ground, where he has to use oars and hooks, he shall have the third part. (2) Should a man find a ship driving on the sea, and no people are in it, and he brings it to land, of that which results from it, whether from the ship or from the goods, he shall have half, and it shall remain outside the city's bounds. (3) Should a man find goods driving to land to which he can wade, he shall have of them the eighth penny; so likewise should a man find goods driven on to the shore, he shall have the eighth penny therefrom. If anyone denies that he has found such goods, and is afterwards convicted of it, that is theft." Reading the word "goods " here subject to the context of all the other clauses, it must, I think, mean goods which have been in a ship. The truth is that no merchant or legislator ever imagined goods at sea which had got there without having been in a ship.

Then turning to what is, after all, the chief source from which the jurisdiction of the Admiralty Court is to be ascertained-namely, the decisions of the English courts-we begin with Sir Henry Constable's case, 5 Co. Rep. 215, which defines what is "wreck of the sea," and that "flotsam" is when a ship is sunk or otherwise perished and the goods float on the sea; "jetsam" is when the ship is in danger of being sunk, and to lighten the ship the goods are cast into the sea and afterwards, notwithstanding, the ship perish; "lagan " is when the goods which are so cast into the sea, and afterwards the ship perishes, and such goods so cast are so heavy that they sink to the bottom, and the mariners, to the intent to have them again, tie to them a buoy or cork or such other thing that will not sink, so that they may find them again; and none of these goods which are called "flotsam," “jetsam,” and “lagan are called "wreck so long as they remain in or upon the sea; and the Court of Admiralty shall have cognizance of them whilst they are in or on the sea.

In Hartford v. Jones, 1 Ld. Raym. 393, Lord Holt held in favour of a lien as against an action of trover, the lien being claimed for salvage servic s― i.e., being an Admiralty lien. But those services were alleged to be for saving the goods from a ship which took fire, and they hazarded their lives to save them. In Nicholson v. Chapman, 2 H. Bl. 254, an action of trover was brought in respect of a quantity of timber placed in a dock on the banks of the Thames, but the

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ropes accidentally getting loose, it floated and was carried by the tide. It was saved, and the defendant refused to deliver it until salvage was paid. Eyre, C.J., and the court held the saving of it was not such a salvage as the law recognized-i.e., in the Admiralty or common law courts. "The question is," said the Lord Chief Justice, "whether this transaction can be assimilated to salvage. The taking care of goods left by the tide upon the banks of a navigable river may, in a vulgar sense, be said to be salvage, but it has none of the qualities of salvage in respect of which the laws of all civilized nations, the laws of Oleron, and our own laws in particular, have provided that a recompense is due for the saving, and that our law has also provided that this recompense should be a lien upon the goods which have been saved." He then goes on to say that goods carried by sea are exposed to danger, and that the recompense is dictated by principles of public policy recognized in civilized and commercial countries. "Such are the grounds upon which salvage stands. They are recognized by Holt, C.J., in Hartford v. Jones. But see how very unlike this salvage-i.e., in Hartford v. Jones-is the case now under consideration." The difference thus alluded to evidently is that in the earlier case the goods were saved from a ship on the sea, in the later case the goods were never on the sea at all. In the case of Raft of Timber, 2 W. Rob. 251, Dr. Lushington refused to issue a monition, i.e., a summons, calling upon the owner of the raft to show cause why salvage should not be awarded. It is said that the question was only as to the locality in which the services were rendered. But Dr. Lushington also relied upon the nature of the object. This," he said, "is neither a ship nor a sea-going vessel; it is simply a raft of timber."

There is no case in any English court in which the question of salvage reward has ever been entertained unless the subject of the salvage service was a ship, her apparel, or cargo or freight which is peculiar to ships, or wreck of a ship, or her cargo, or, by statute, the life of a person in danger because the person has been on board ship. It follows that no jurisdiction of the Admiralty in England can be carried, by reason of the practice or judgments of the Admiralty or any other court, beyond a claim for salvage in respect of the subjects and objects named. As to the alleged extension of the jurisdiction of the High Court of Admiralty by statute, the question is whether it has been extended by statute in cases of salvage claims to any subjects or objects which were not subjects or objects of salvage claims before the statutes.

The first statute really relied on was 3 & 4 Vict. c. 65, s. 6. It is an Act to extend the jurisdiction of the Court of Admiralty. It does extend the jurisdiction to subjects and objects in respect of which the court had no jurisdiction before. As to salvage there is only section 6 which is relied on. Section 6 is: "The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to any ship or sea-going vessel, whether such ship or vessel may have been within the body of a county or upon the high seas at the time when the services were rendered." This is to be construed according to the ordinary rules of construction. Having regard to the existing state of the law, it is impossible to say that the statute goes further than to extend the area of locality. It abolishes the distinction between the same services in respect of the same subjects or objects according as they were rendered within the body of a county or on the high seas, but does not alter the nature of salvage, which is a reward for services to ships, &c.

on.

The statute 17 & 18 Vict. c. 78, s. 13, was relied The words are: "In all cases in which a party has a cause or right of action in the High Court of Admiralty of England against any ship or freight, goods, or other effects whatsoever, it shall be not necessary to the institution of a suit for such person to sue out a warrant for the arrest thereof, but it shall be competent to him to proceed by way of monition." The whole statute is as to the regulation in the Admiralty Court of the procedure of cases in the court. The statute is not applicable until the case is in the court. It does not affect the question of what case is or is not within the jurisdiction of the court that is, what case is or is not capable of being brought into the court.

The statute 9 & 10 Vict. c. 99 was called to our attention, and was minutely dissected at immense length. It is repealed; but nevertheless it was said it could be used to show what were the subjects or objects of salvage. I think that after its repeal it cannot be used at all. But if it could, it does not seem upon a true construction to support the assertions for which it was cited. The section mainly relied on was section 40: "The High Court of Admiralty shall have jurisdiction to decide upon all claims and demands whatsoever in the nature of salvage performed, except in cases of goods hereinbefore directed to be sold as droits of Admiralty, whether in the case of ships or vessels, or of any goods or articles found either at sea or cast upon the shore, and whether such services shall have been performed upon the high seas or within the body of any county, anything in any Act contained to the contrary notwithstanding." But that section ascertains only the forum of trial. Section 19 enacts what can be saved so as to give a right to salvage, and the persons entitled to salvage reward for such saving: Any person (except receivers under this Act) who shall act or be employed in any way whatsoever in the saving or preserving of any ship or vessel in distress or of any part of the cargo thereof, or the life of any person on board the same, or of any wreck of the sea, or of any goods, jetsam, flotsam, lagan, or derelict, or of any anchors, cables, tackle, stores, or materials which may have belonged to any ship or vessel, whether the said ship or vessel shall have been in distress or otherwise, &c., shall be paid a reasonable reward or compensation by way of salvage," &c. It seems that construing these two sections as parts of one statute, section 40 determines the forum in which the claims of persons, who claim to have performed the services to the subjects or objects named in section 19, are to be referred.

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We are then brought to the main statute applicable to the case before us-the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104). It was passed to amend and consolidate the Acts relating to merchant shipping, not specifically to alter anything with regard to salvage. It does not in its title or preamble state an intention to alter the common law applicable to merchant shipping, but only the Acts relating to merchant shipping. The first section relied on is section 2, the interpretation section. Such a section in modern drafting of statutes does not itself affect the nature of anything spoken of or dealt with in the statute. It only avers that instead of repeating every one of several things dealt with in other sections, they are to be taken as repeated whenever the one word or phrase is used. Thus, whenever the word "ship" is used in any section of the Act, it is as if in that section the words were "a ship or any description of vessel used in navigation not propelled by oars." The statute deals with a variety of matters relating to merchant shipping, and with a great number of modes of dealing with such

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matters within and without different courts. One part of the statute deals with salvage. The sections relating to it are under the heading "Salvage in the United Kingdom." It deals, therefore, only with salvage on the high seas within the three miles limit, and with salvage within counties. Section 458 is: "When any ship'-i.e., 'when any ship or any description of vessel used in navigation not propelled by oars'- -or boat is stranded or otherwise in distress en the shore of any sea or tidal water situate within the limits of the United Kingdom-i.e., of Great Britain and Ireland--and services are rendered (1) in assisting such ship-i.e., ship or any description of vessel used in navigation, &c.-or boat, (2) in saving the lives of the persons belonging to such ship-i.e., &c.-or boat, (3) in saving the cargo or apparel of such ship-i.e., &c.—or boat, and wherever wreck-i.e., wreck or jetsam, flotsam, lagan, and derelict found in or on the shores of the sea or any tidal water-is saved by any person other than a receiver within the United Kingdom, there shall be payable, &c.-a reasonable amount of salvage." Section 459: 'Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship-i.e., &c.-or boat as aforesaid," &c. The statute does not deal with salvage beyond the three miles limit.

It is obvious that within the limit it deals specifically with subjects or objects which, as has been stated at the commencement of this judgment, were the subjects and objects alone dealt with in the High Court of Admiralty before any statutes as regards salvage. This section does not add, either within or without the realm, to the subjects or objects of salvage. Section 476 is also under the heading "Salvage in the United Kingdom." It is: "Subject to the provisions of this Act, the High Court of Admiralty shall have jurisdiction to decide upon all claims whatever relating to salvage, whether the services in respect of which salvage is claimed were performed upon the high seas or within the body of any county," &c. In this section the subjects or objects of salvage are not mentioned. It deals with salvage. With what salvage? Obviously with that which is in law salvage-i.e., with the saving of objects and subjects which in law, i.e., the common law, the statute law, and the maritime law, are recognized as the subjects and objects of salvage reward. Section 497 is no larger. The statutes do not enlarge the subjects or objects, but by dealing only with the subjects and objects mentioned strongly corroborate the view herein before expressed as to the original jurisdiction of the High Court of Admiralty. In Part 6, headed "Lighthouses" and "Management of Lighthouses," by the interpretation clause lighthouses, in addition to the ordinary meaning of the word, shall include floating and other lights exhibited for the guidance of ships, and buoys and beacons shall include all other marks and signs of the sea." They are in this Act, all of them, distinguished from ships. The statutes have added one subject-i.e., life-as liable to salvage to be awarded by the High Court of Admiralty, but have added no others. The question argued, that a larger jurisdiction as to the subjects or objects of salvage is given to the county courts than to the High Court of Admiralty, is too preposterous to be worthy of further notice.

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It was argued that the gas float was a ship within the ordinary meaning of the word ship, or within the meaning of what was said to be the definition of the word ship in some judgments of the court. It is said that the judgment of Lord Blackburn in Ex parte Ferguson, 19 W. R. 746, L. R. 6 Q. B. 290, is inconsistent with the view that " ship" is to be used only in its ordinary meaning amongst people conversant

with shipping business. But the description given of that which in the case was called a "coble" made it clear that that coble was a vessel in its ordinary sense, though all cobles are not ships or vessels, but some are only boats.

The case of The Mac, 7 P. D. 126, 30 W. R. Dig. 106, was much relied on. It is the case of the hopper barge. I agree that expressions used by me were not happy. I think the first phraseology is enough. "The word includes anything floating on or upon the water built in a particular form and used for a particular purpose.' "" But I think the subsequent phrase, "used for the purpose of navigation' was unhappy. It should have been "was being navigated." In the case of The Cleopatra, 47 L. J. Adm. 72, 27 W. R. Dig. 204, the thing saved was held to be sufficiently like a ship to be not unfairly treated as a ship. The case of The Caisson before Sir R. Phillimore, reported in the Maritime Register of the 12th of May, 1876, is relied on. It looks as if the judge of the Admiralty Court was asked by both sides to name the amount and the distribution of a fair reward. If so, he acted as an arbitrator. If he acted as a judge, the case is contrary to all others, and is wrong. It seems impossible to say that, within the ordinary English meaning among merchants or sailors or persons dealing with maritime affairs, this thing could be called a ship, a vessel, or a boat.

But now we have to deal with the argument that the general law maritime acknowledged in the High Court of Admiralty included and includes subjects or objects as the subjects or objects of salvage which are beyond ship material and cargo, including flotsam, jetsam, and lagan, and wreck of ship or cargo. It was argued that everything found floating on the water, although it itself could not possibly be a navigable thing, might be the subject or object of salvage. And it was said that there are American judgments which justify such a statement. If there are, I for one should hesitate before I differed from them. I have the greatest respect for American decisions. It is because of the reference to the American judgments that I have used immense labour in writing this judgment. I hope it will be some day considered in American courts. But, before examining the American judgments, I will refer to the statement of the law by Bowen, L.J., in Falke v. Scottish Imperial Insurance Co., 35 W. R. 143, 34 Ch. D. 248 :— "The general principle is beyond all question, that work or labour done or money expended by one man to preserve or benefit the property of another do not, according to English law, create any lien upon the property saved or benefited, nor even, if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs, any more than you can confer a benefit upon a man against his will. There is an exception to this proposition in maritime law. With regard to salvage, the maritime law differs from the common law. That has been so from the time of the Roman law downwards. The maritime law, for the purposes of public policy and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils, and the fact that the thing saved was under great stress and exceptional circumstances. No similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril

at sea."

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shipping, and must therefore be taken to apply to matters connected with shipping. The Act gives a jurisdiction unknown at common law, and subjects the owners of goods to the payment of charges to which at common law they were not liable. It must therefore be construed strictly. according to the well-known definition of flotsam, it refers to goods which, having been at sea in a ship, are separated from it by some peril."

Now,

The case principally relied on in the American Reports is that called A Raft of Spars, Abbott's Admiralty Reports, p. 291, in May, 1848. It was tried before Betts, J., in a district court having Admiralty jurisdiction. The raft, which consisted of sixteen spars, was observed to be adrift below the Narrows and floating out to sea. The libellant stopped the raft and towed it to the Staten Island shore. The owner instituted a replevin action in the Supreme Court of the State of New York. The alleged salvor instituted the salvage suit in the district court. The owner of the raft intervened in the Admiralty suit, and moved that the action there should be set aside, or that all proceedings in it should be stayed until the replevin suit in the State Court should be determined. It was on this motion that Betts gave judgment. "The single point that arises for decision upon the motion," says Betts, J., "is whether this court will, either as matter of right to the claimant or by comity towards the municipal courts, cause the prosecution of this suit to surcease until the action at law in the State Court is determined." It may be that the learned judge might have based his decision on the view that the Admiralty Court had no jurisdiction to entertain the question of salvage. But that point does not seem to have been argued at that stage; at all events, it is not noticed. The judgment seems to be that, assuming for the purposes of the motion before it that both courts had jurisdiction, there was no legal reason for postponing the hearing of the one suit to the hearing of the other. What might be decided in either court on the hearing was left to the future. The next case in order of date is Tome v. Four Cribs of Lumber, reported in several reports and in Taner's Dec. 533, in November, 1853. It was heard in the Circuit Court, on appeal from the District Court in Admiralty. Rafts or a raft of timber were being floated down the Susquehanna river. The rafts were anchored in the stream. By reason of a sudden rise in the river, accompanied by a high wind and heavy sea, the rafts went adrift and were carried down the river with the current. They were stopped by one Davis, who claimed salvage. The district court entertained and allowed salvage reward. In the Circuit Court the judgment was reversed by Taney, C.J., on the ground that the district court had no jurisdiction. The Chief Justice relied much on the case of Nicholson v. Chapman. He says: "These rafts anchored in the stream, although it be a public navigable river, are not the subject matter of Admiralty jurisdiction in cases where the right of property or possession is alone concerned. They are not vehicles intended for the navigation of the sea or the arms of the sea. They are not recognized as instruments of commerce or navigation by any Act of Congress. They are piles of lumber, and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive them and transport them to their destined port. assistance rendered to these rafts, even when in danger of being broken up or swept down the river, is not a salvage service in the sense in which the word is used in the courts of Admiralty. The district court, therefore, had not jurisdiction to issue the process,

And any

HIGH COURT.

HOLT & Co. v. SAUNDERS, GREEN, & Co. (a.) Trade-mark-Action for infringement-Motion to expunge mark-" Trilby "in ordinary type-Patents, &c., Act, 1883 (46 & 47 Vict. c. 57), s. 64, subsection 1 (a), (b), (d), (e).

Names of persons, whether real or fictitious, used as a trade-mark fall within sub-sections (a) and (b) of section 64 (1) of the Patents, &c., Act, and not within subsection (e); hence a name not being a signature is not a good trade-mark unless printed, impressed, or woven in a particular and distinctive manner.

Vernon Smith, Q.C., and Kirby, for the defendants, in support of the motion.-"Trilby" is a word common to the trade: Burland v. Broxbourne Oil Co., 38 W. R. 89, 42 Ch. D. 274. Moreover it has reference to the character and quality of the goods, for in the novel "Trilby " wears an apron, and therefore it suggests an apron such as is described in the book: Harris' Trade-mark, 9 P. R. C. 492. According to that case, this mark could not have been registered under the Act of 1883; and Farbenfabriken, &c., Somatose case, 42 W. R. 488, [1894] 1 Ch. 645, shows that the Act of 1888 has not extended the scope of what may be registered. Names of persons, whether real or fictitious, can only be registered under sub-sections (a) and (b) of section 64, and not under sub-sections (d) or (e), and this mark does not fall within (b) because it is not a written signature, nor within (a) because it is not "printed, impressed, or woven in some particular and distinctive manner.'

The

Swinfen Eady, Q.C., and Micklem, for the plaintiffs, against the motion. There is no evidence that the mark has any reference to the character or quality of the goods; it is an invented word within the meaning of the Act; and as to the question of registration, proper names fall within sub-section (e), and Banks and James' Trade-mark (Shakespeare case), ante, p. 32, does not decide that they do not. word "Lawford" was allowed a good mark for rackets in Slazenger v. Malings, W. N. (1885), p. 124. NORTH, J., after stating that "Trilby" could not be considered an invented word at the date of registration, as there was nothing new about it in view of the publication of the name in the novel prior to the mark getting on the register, continued:-Subsection (e) is more difficult, but I cannot see that

(a.) Reported by R. SILLEM, Esq., Barrister-at-Law.

HIGH COURT.

"Trilby" has reference to the character or quality of aprons or a pair of gloves, and there is no evidence before me as to what one may learn as to their character or quality from the word by itself. But the reason why I think that it cannot be registered is that I do not think that sub-section (e) includes a name at all, and I look upon "Trilby" as a name. Sub-sections (a) and (b) deal with names. Now, sub-section (b) refers to the individual or firm applying for registration; but sub-section (a) says nothing about the individual or firm applying for registration. I take it, therefore, that the individual or firm there referred to is not confined to the individual or firm applying for registration.

Now, let us take the present case in its simplest form. I will assume that William James Holt, who made the affidavits, is the sole member of the firm. Now, if he came to ask to register for aprons the name "William James Holt," as I take it that the words "William James Holt" are not geographical nor descriptive of the goods, then, according to the argument before me, those words could be registered under sub-section (e). But then I find this difficulty-namely, that sub-section (a) requires that it must be the "name of an individual or firm printed, impressed, or woven in some particular and distinctive manner," and I take that to mean, that if "William James Holt" is used as a trade-mark it must be printed in some distinctive and particular manner; it would not do to have it in ordinary print. I think it impossible that William James Holt can have a trade-mark if his name is printed in a particular and distinctive manner, and also that he can have it under sub-section (e) if printed in the most ordinary style. I think, therefore, that the section must be read so as to make cases of names come under sub-section (a), and William James Holt could have registered his name under that sub-section alone. Then does it make any difference that the name sought to be registered is not the name of the person actually applying? Now, contrasting subsections (b) and (a), the words of the latter show that it is not confined to the case of the name of the firm or person applying, but that it may be the name of a person or firm not applying. Then is there anything to make it necessary that the name should be that of a living or dead individual, as opposed to the name of a fictitious individual? It seems to me that under sub-section (a), not only could William James Holt not register his own name, if in ordinary type only, but that he could not register the name of any other person if printed in ordinary type (In re Banks & James' Trade-mark). I take it that under sub-section (e) the applicant could not register the name Shakespeare,' "Sir Walter Scott," or "Du Maurier." Does it make any difference that the name sought to be used is not the name of a person, but the name of a fictitious character. I take it that if "Shakespeare" could not be registered as a name it would be equally impossible to register "Hamlet." Chitty, J.'s, decision in the Shakespeare case would be exactly in point had that

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case been decided under the Act of 1888; but the Somatose case shows that that Act has not extended the power of registration beyond that given by the earlier Act.

Motion allowed.

Solicitor for the defendant in the action, Le Voi. Solicitors for the plaintiff in the action, Sharpe, Parker, & Co.