The Cambridge. should have been assessed on the principles of a partial loss. The Catherine, 17 How. 170. J. C. Dodge, for the libellants. LOWELL, J. There is no doubt that the schooner was necessarily abandoned, and, if she had never again been heard from, the assessment must have been for a total loss. As she was brought in and repaired, the case is said by the claimants to be governed by The Catherine, 17 How. 170. There is, besides, The Granite State, 3 Wall. 310. These cases carry the doctrine very far, that, when a vessel can be repaired, the measure of damages is the cost of the repairs. Indeed, the later of them seems to say that this rule may apply even if the vessel is wholly lost; but the report is meagre, and this cannot be the meaning. The injured vessel may be in a place where repairs will be very difficult or very expensive, or where the master or owners cannot obtain the necessary funds. In short, the law must be, that whenever a prudent, uninsured, and unindemnified owner would sell a vessel injured by collision, she may be sold at the risk of the wrong-doer; and that the result to the purchaser cannot affect the damages, except as it may go to show a want of good faith in the sale. An owner has no right to repair at the expense of the defendant in a collision cause, unless when a prudent owner would repair; and damages in such a case were limited to the amount of a total loss, although the repairs had cost much more. The Empress Eugénie, Lush. 138. I have had a similar case, which was affirmed on appeal, The Glaucus, 1 Lowell, 366, in which I gave a little more than a total loss, under the peculiar circumstances, but without impugning the general rule. This being so, it must follow that if the expenses of repairs will exceed the amount of a total loss, the owner may recover for a total loss; and it may be that where he honestly and prudently makes up his mind that the vessel is not worth repairing, he need not repair, but may sell and recover his whole loss. I understand that these qualifications are admitted in the recent case of The Baltimore, 8 Wall. 388. But the owner must act with entire good faith and reasonable skill and prudence, else the loss which he seeks to recover may The Cambridge. be due in part to his own conduct, and so cannot be assessed against the trespasser. There must be a necessity for the sale, like that, for instance, which would justify a master for selling his ship in a foreign port. I must say that I do not find such necessity to have been present here, nor even to have been supposed to exist. The managing owner seems to have determined on the auction sale for reasons of convenience, and as an arrangement between the owners and salvors, rather than with any regard to the questions now presented. It was, perhaps, thought that an auction sale is a fair and conclusive test of value; and it was undoubtedly accepted as such by the salvors; but they may have had reasons for haste in disposing of this matter, in order to continue their voyage, or for some other reason. Now, I suppose it is very rare that a wreck lying on shore, and especially in a place where the extent of the damage cannot be seen, will bring its exact value. It may be more or less; but it is not one of those things that have a commercial standing; the bids must be very much a matter of speculation. If the wreck is worth raising, it will usually, I suppose, bring less than its true value. At all events, I am prepared to say, that when the owners are in a situation to repair the vessel, if she shall be worth repairing, they ought not to sell her, excepting at their own risk as to price, without a full examination into her condition. The managing owner swears, in this case, that, when he was bidding on the wreck, he supposed the injury to the timbers, &c., to be much greater than it was; and this is enough to show the impropriety of his course, so far as it affects the defendants, who had no notice of the sale, and who, as appears by the evidence before the assessor, had already declared their intention to do what was right in the premises. I hold, therefore, that the owners were wrong in not raising and examining the vessel before they undertook to fix her value by a sale. It is said that they were unable to raise her; but the buyer does not seem to have encountered any special difficulty in that respect. The salvors had no right to object to her being raised and examined, and do not appear to have offered any opposition to it. The circumstances bring the case within what I suppose to be the decision in The Catherine, and the loss must be assessed as partial. The Cambridge. I cannot agree with the claimants, that, in making up a partial loss, the allowance for salvage will be only what was actually paid to the salvors. That payment was based on the sale, which cannot be affirmed in part and annulled in part. It is fair to assume, that if the vessel had been known to be worth more, the salvage would have been higher. In making up the damages on a theoretical basis, the owners must have the advantage of this difference. The witness to demurrage estimates it at $18 a day; but he says, at the same time, that eight cents per ton of carrying capacity is the rate always stipulated for in the coal trade, which is a very large business, and employs a great number of vessels of the class of the Susan Ross; and, as her tonnage for coal is said to be one hundred and eighty tons, this would make $14.40 a day, if the vessel were manned; from this must be deducted whatever the expense of the crew would be, which, I should suppose, would reduce the cost nearly one half. I was not asked to assess the damages, but only to recommit the report, if a new assessment should be necessary. I only give my views as an approximation and a guide to the assessor. I do not know precisely what the damages will prove to have been, but I should suppose the above estimate a liberal one. Report recommitted. NOTE. The rate of demurrage above allowed has been often agreed upon for vessels of this class in collision cases. Sawyer v. Turpin. SAWYER v. TURPIN. AUGUST, 1871. A conditional contract to deliver goods to a trader, upon payment for them, gives his general creditors no interest in them, unless there is a surplus, and therefore an arrangement to carry out such a contract is not fraudulent. A change in the form or even the substance of a security, within four months of bankruptcy, is protected, if the first security was unimpeachable, and no greater value is given the creditor than he had before. It is well settled that a trader who cannot pay his debts as they mature in the ordinary course of his business, is insolvent; and that if he, knowing his inability, within four months of his bankruptcy, give security to a creditor who has reason to believe it, he makes an illegal preference. TWO BILLS IN EQUITY by the assignee in bankruptcy of J. C. Bacheller, of Lynn, against Novelli & Co., of Manchester, England, and their agent in this country, E. Turpin, alleging that at certain times mentioned, and all within four months before the bankruptcy, Bacheller, being insolvent, made two mortgages of certain lands in Lynn, and a third mortgage of a house standing on leasehold land, and certain transfers of goods of the alleged value of $20,000 in gold, then in the bonded warehouses of the United States at Boston, to said Turpin, as agent for Novelli & Co., with intent to prefer said last-named defendants, they and their agent believing, and having reasonable cause to believe, that Bacheller was insolvent and intended a fraud on the act. The answer admitted that the mortgages were made as security for a large balance of account for goods sold, but denied all belief in or reason to believe the insolvency of Bacheller, and averred that two of the mortgages were given instead of two earlier conveyances of the same property, which had been made more than four months before the bankruptcy, and which were cancelled when these now in controversy were given. As to the goods, the answers admitted that transfers were made by Bacheller to Turpin, as agent of his principals, on the books of the customhouse, and set out the several dates thereof, and averred that the goods were on their way from Novelli & Co. to Bacheller when the sales were lawfully rescinded before the property had Sawyer v. Turpin. ever vested in Bacheller, and, if the re-transfers were not valid, there was a right to stop the same goods in transitu, and that said goods had not been delivered to Bacheller at the time of his stopping payment. The evidence tended to show that Novelli & Co. had, for some years before July, 1868, dealt largely with a firm of which Bacheller was a member; and when he began business by himself in 1868 he continued to send them large orders for goods such as he had always dealt in. The terms appear to have been that each invoice was to be remitted for within sixty days from its date. Early in 1869 Bacheller was largely in arrears to Novelli & Co., and continued to be so until his failure. He stopped payment in September, and filed his petition on the 22d October, 1869, the defendants appearing by his schedule to be creditors to the amount of about $41,000, and holding the securities mentioned in the bills. All his other debts were about $6,000. 6 to It appeared that in April, 1869, Novelli & Co. wrote to Turpin, expressing their dissatisfaction with the state of Bacheller's account, and directing him, on receipt of the letter, to proceed at once to Boston, and, if there was still an overdue balance, induce, request, or insist that he hands over to you as collateral security the notes and such other documents of value you can by any means obtain, to be held by you in safe-keeping until such time as he can cover our overdue balance by remittance." They afterwards, in the same letter, say that they consider "the position of J. C. B.'s affairs are not, in a commercial point of view, satisfactory," and state their reasons. On receipt of this letter Turpin went to Lynn and saw Bacheller, and obtained from him conveyances of the land on Bacheller Street, and of the shop on Exchange Street, and a transfer of certain goods in the customhouse, as collateral security. And at the same interview it was agreed that all goods that should arrive thereafter should be warehoused in Turpin's name until they were sold by Bacheller, when Turpin should send withdrawal orders, and Bacheller should deliver the goods and remit the proceeds. This course of business was followed from that time, excepting that the remittances were made on account, without special reference to any particular |