sequent sea-damage would necessarily be included. That hypothesis, therefore, does not impose any real difficulty.

2. Upon the second question, I must confess I have felt some difficulty. When the ship first struck the ground, no doubt, the cargo was not totally lost. A cargo is, as a general rule, said to be totally lost when the goods no longer exist in specie, when by the progress of decomposition they have wholly changed their character, and, as has been strongly put in some of the cases, exist only in the shape of a nuisance. So, it is lost when it has become inaccessible by being cast on the top of a rock or sunk in the bottom of the ocean. That was not the case here. The cargo existed in specie, and was accessible, after the ship was cast on shore. The salvors got out 150 bags of coffee, and would have saved 1000 more if they had not been interrupted. My Lord and my Brother Willes have already pointed out the distinction between the present case and Hahn v. Corbett, 2 Bingh. 205 (E. C. L. R. vol. 9), 9 J. B. *Moore 390. Since I had the [*298 pleasure of hearing Mr. Mellish's argument, I have had an opportunity of looking carefully at that case: and, whatever were the facts, the Chief Justice undoubtedly bases his judgment distinctly upon the loss of the goods at the time the vessel was lost. "It has been asked," he says, "when the goods can be said to have been lost. When the ship was totally lost. There is no statement that any other ship was at hand, or that any land was near. If the underwriters were exempted from liability on capture by an enemy, they were not entitled to calculate on preservation of the goods by an enemy: but, if the enemy had not come, it is clear the goods would never have been moved, because the ship never moved. It was just as if they had been cast on a rock and had been completely out of reach. The goods, therefore, were lost when the ship was lost; and what happened afterwards makes no difference in the case." That case, therefore, opposes no difficulty here: the goods there were totally lost. Here, there was originally no total loss of the goods, but a partial loss only. There was afterwards a total loss of the entire cargo so far as the owners of it were concerned; but, as to a portion, not a loss by the perils of the sea. One hundred and fifty bags of the coffee were saved uninjured; and 1000 bags more would have been saved, had not the confederate troops interposed. The result seems to be clear: the 1000 bags and 150 bags fall within the exception, of a loss the consequence of hostilities; and, as to those which remained on board the vessel, and which could not be got out, that was a loss by the perils of the sea.

KEATING, J.-I am entirely of the same opinion. The principal question arises upon the construction of the words of the warranty,— warranted free from all *consequences of hostilities, riots, or [*299 commotions." For the reasons given by my Lord and my two learned Brothers, it seems to me that the intention of the parties by that exception was, to warrant the freedom from all consequences of hostilities as the cause of the loss. That being so, it is admitted on all hands that the underwriters undertake by the policy to indemnify the assured against all losses by the perils of the sea. If the warranty is to be read as I have stated, then, according to the universal construction of marine policies, the cause means the immediate and proxi

mate cause. That the putting out the light at Cape Hatteras was not the immediate and proximate cause of the loss here, I conceive to be quite clear. I also agree with the rest of the court, that the loss was a partial loss. Mr. Mellish most accurately expressed himself when he said, that, so long as the coffee remained in specie as coffee in the possession and under the control of the captain and crew, and capable of being saved, there could be no total loss. But, as to the 5350 bags which it is conceded that no human power could save, the moment the ship struck the ground, these no longer remained in the possession or under the control of the captain and crew in a capacity to be saved. They were then potentially lost, as much as they subsequently proved to be actually lost. As to the rest, 150 bags were saved, and 1000 more might have been saved but for the intervention of the confederate troops. As to these, therefore, the loss was clearly a consequence of hostilities. The result will be, that, as to 5350 bags, the verdict will be for the plaintiff, as to the residue, for the defendants.

Sir G. Honyman.-It was arranged that it should be referred to Mr. *300] Richards, the average-stater, to *settle the amount. There will be salvage to be deducted.

WILLES, J.-That comes under the suing and labouring clause. Salvage is only chargeable in respect of a peril covered by the policy. Here the whole of that to which salvage would apply is out of the policy.

There was some discussion as to whether it should be referred to Mr. Richards to ascertain the number of bags actually and potentially saved: but ultimately it was arranged that the whole number which were or might have been saved should be taken to be 1020 bags.

Rule accordingly.(a)

(a) "To enter the verdict for the plaintiff in respect only of the loss of 5480 bags of coffee, and for the defendants in respect of 1020 bags ;" and by consent of counsel, "referred to Mr. Richards, the average-stater, to ascertain the value payable by the defendants in respect of the said 5480 bags, and that the verdict be entered for such amount accordingly."

*301]

*Ex parte JONES. May 1.

The court will not allow articles of clerkship to be enrolled nunc pro tunc, and the service under them to be reckoned as from their date, where there has been an omission to cause them to be stamped within the time required by law,—even though the Treasury has accepted the stamp-duty with a penalty,-unless it is shown that the omission has been the result of some unforeseen emergency, or of the failure of some just expectation. The mere disappointment of a vague hope, will not suffice.

HAYES, Serjt., moved that the affidavit of the execution of the articles of clerkship of Edward Jones be enrolled nunc pro tunc, and the service be permitted to count from the date of the articles, notwithstanding the stamp-duty thereon had not been paid within the six months allowed by the statute 7 G. 4, c. 44, s. 4.

The affidavit upon which the motion was founded, stated that the applicant entered into the service of his father, an attorney, in the year 1850, but was not articled, neither of them being in a position to defray the necessary charges; that he remained with his father until 1861, for the last five years managing his business; that in the course

of that year, the father's circumstances becoming embarrassed, he gave up practice, and in the month of October of that year the applicant entered the service of another attorney; that, being induced by a friend to believe that the necessary funds could be raised in a month or six weeks, and acting on the advice of his father, the applicant was in November articled to the gentleman whose service he had entered, but, being disappointed of the money he had hoped to raise, he was unable to get the articles stamped within the six months; and that he thereupon memorialized the Treasury and was allowed by the lords commissioners to stamp the articles on the payment of the duty and a penalty of 207., under the 19 & 20 Vict. c. 81, s. 3.

This court allowed this to be done on similar grounds in Ex parte Bishop, 9 C. B. N. S. 150 (E. C. L. R. vol. 99). And in a case of Ex parte Herbert, 31 Law J. Q. B. 33, 1 Best & Smith 825 (E. C. L. R. vol. 101), one H. entered into articles of clerkship as an attorney with his father, and duly served his clerkship for the five [*302 years from their execution. He did not know till nearly the end of his time that it was necessary that the articles should be stamped and enrolled. After his service was out, the articles were handed to him by his father, who had always kept possession of them, and, being unstamped, on application to the lords of the Treasury, they permitted them to be stamped, on payment of 50l. penalty, pursuant to the 19 & 20 Vict. c. 81, s. 3. The father made affidavit that he omitted to have the articles stamped and enrolled within six months of the execution, from his being "wholly without the means of paying the stamp-duty, and because he thought, that, under the above section, they could be stamped afterwards on payment of a penalty; and that he had no pre-conceived plan to article his son speculatively, but solely with the intention of ultimately stamping and enrolling the articles." The Court of Queen's Bench, under the circumstances, upon the authority of Ex parte Bishop (Crompton, J., dissenting), allowed the articles to be enrolled and the service under them to be computed from the date of their execution. In giving judgment, Cockburn, C. J., says: "The court has always been ready to interfere for the protection of the revenue: but, under this recent act, the revenue can interfere and protect itself; and, if the lords of the Treasury, after inquiry, think fit to allow the articles to be stamped, we ought to assume that they are the best judges of what is essential for the best interests of the revenue." And Wightman, J., says: "The courts formerly had to protect the revenue when articles were not duly stamped. By the 19 & 20 Viet. c. 81, s. 3, the difficulty is obviated by the power which the Treasury has given to it to order, at its discretion, instruments to be stamped after the six months, on payment of certain penalties. It may be, *if the Treasury [*303 were of opinion that the loss was not obviated by the penalty of 50%, they would not interfere: but, whether it be for the loss or gain of the revenue, they are the best judges; and, they having decided to allow the articles to be stamped, I do not see why this court should interfere." [ERLE, C. J.-I do not understand that we are to surrender our discretion because the lords of the Treasury are content to take the duty and the penalty. In Ex parte Breden, 12 C. B. N. S. 351 (E. C. L. R. vol. 104), we yielded to an application of

this sort where it was made to appear that the omission to pay the duty at the proper time was the result of an emergency which might be justly inferred to have been unforeseen by the party. But, here, the father says to the son, "Let us article you, and we will trust to a kind Providence that the money will somehow be forthcoming!" That is not the sort of emergency that I can act upon.] Looking to all the circumstances here,-seeing that the parties were acting bonâ fide upon a reasonable expectation that the money would be forthcoming in due time, that there was no intention to speculate, and that the failure was simply the result of family misfortunes, and seeing that the claims of the Treasury are satisfied,-it is submitted that this case may quite as fairly be said to fall within the category of unforeseen emergency as that of Ex parte Bishop.

ERLE, C. J.-I am of opinion that this application should be refused. In the case of In re Breden, we laid down the rule in these words: "The legislature has required the courts to see that many conditions intended to secure skill and respectability in attorneys have been complied with, among others, indirectly, that the stampduty on the articles of clerkship has been paid. As to this payment, *304] the Treasury has a *direct duty in respect of the revenue; but, beyond that, the judges have a duty to see either that the money has been paid in due time, or the delay accounted for, before they allow the enrolment, and order the service to count from the date of the articles." Uniformly, whilst I was in the Court of Queen's Bench, and since I have sat here, where it has been shown that the party had a right to expect that the money had been or would be duly paid, but contrary to good faith and to his just expectations the promise he relied on was broken, we have considered that to be an emergency entitling him to indulgence. The case of In re Breden was one of the strongest cases of that sort that could be. The applicant had been the managing-clerk to an attorney who died leaving a widow and a young son who could not take up the business and carry it on. He gave his services to them and their friend to keep the business together, and succeeded in so doing. The son, as soon as he was admitted an attorney, gave him his articles; and the widow promised to pay the stamp-duty. The widow failed to perform her promise; and, when his belief in the widow failed, the clerk obtained the money from another source, and paid the duty and the penalty himself. A more meritorious case could hardly be presented to the court. In Ex parte Bishop, where the circumstances were something of the same description as those of the present case, the court were going to refuse the application; but, finding that the money had been paid upon the faith of an intimation of my Brother Willes,-who, from having examined the parties at Chambers, knew all the merits of the case, that he intended to make the order, we allowed it to be done. It was entirely upon what passed between my Brother Willes and the court that that case proceeded. In Ex parte Herbert, 31 Law J. *Q. B. 33, 1 Best & Smith 825 (E. C. L. R. vol. 101), the Court *305] of Queen's Bench certainly seem to have proceeded upon a

very vague set of premises. They were persuaded to come to the conclusion they did upon the supposed authority of Ex parte Bishop, and they, the majority of them, at least,—seem to express an opi

nion, that, since the recent statute, it is entirely a matter of revenue, and that, if the lords of the Treasury are content to take the money, the court ought to be satisfied too. I cannot but say that the words I first read contain my deliberate opinion and the opinion of the courts upon this subject for a very long period of time. The court is not to hold a solemn inquiry merely for the purpose of learning whether or not the Treasury has accepted the duty and penalty. It would be hardly consistent with the duty of the court to sit for a whole hour merely to discuss a matter of that sort. I cannot assent to anything so contrary to reason. The Court of Queen's Bench thought we had set them the example: but the case of Ex parte Bishop certainly did not intend to lay down any such doctrine. I found my judgment in this case upon the principles I have already mentioned. The applicant here had no reasonable or well-founded expectation that he would be prepared with the money. He entertained a strong hope that somehow or other he would find the money. I do not consider that to be such an expectation as ought to be acted upon. I see no such unforeseen emergency in this case as to constitute it an exception to the general rule.

The rest of the court concurring,

Hayes took nothing.

*GAMBART v. BALL. April 30.

[*306

The piracy of a picture or engraving by the process of photography, or by any other process mechanical or otherwise whereby copies may be indefinitely multiplied, is within the statutes (8 G. 2, c. 13, 7 G. 3, c. 38, and 17 G. 3, c. 57) for the protection of artists and engravers.

THIS was an action for the infringement by the defendant of the plaintiff's copyright in two engravings, the one from Rosa Bonheur's "Horse Fair," the other from Holman Hunt's "Light of the World."

The cause was tried before Willes, J., at the sittings in London after last Michaelmas Term. It was proved that the plaintiff was the proprietor of the two engravings above mentioned, and that the defendant had copied them on a very reduced scale by means of photography, and sold a great number of copies. The question raised, was, whether copying by means of photography was an infringement of the copyright of the proprietor within the meaning of the Copyright of Engravings Acts, 8 G. 2, c. 13, 7 G. 3, c. 38, and 17 G. 3, c. 57.

Under the direction of the learned judge, a verdict was entered for the plaintiff, leave being reserved to the defendant to move to enter the verdict for him if the court should be of opinion that what he did was not an infringement within the above statutes.

Coleridge, Q. C., in Hilary Term last, obtained a rule nisi accordingly. He submitted that the object of the legislature was to protect the original designer from having his design copied by painting, and the engraver from having his work pirated by engraving; and that the statutes were never intended to apply, and are wholly inapplicable to the re-production by means of the new art of photography. He referred to Murray v. Heath, 1 B. & Ad. 804, to the 6 & 7 W. 4, c. 59, which extended the above-mentioned statutes to Ireland, and to C. B. N. S., VOL. XIV.-13