In re Steele. v. Richardson, 24 Conn. 338, which cites McCullough v. Maryland, 4 Wheat. 316; Davlin v. Stone, 4 Cush. 359, which says, "the articles may be of that plain and cheap character which, while not indispensable, are to be regarded amongst the necessaries of life, as contradistinguished from luxuries." See, also, Wilson v. Ellis, 1 Denio, 462, and In re Thornton, 2 N. B. R. 189. Guided by these humane and liberal principles of construction, I should say that to a commercial man a plain, and not extravagantly costly watch, such as this bankrupt owns, is, in the quaint language of the Vermont statute, "necessary for upholding life." The watch of John Steele should be allowed. As to the other I cannot determine, its value not being stated. If the parties cannot agree, they may have leave to make further application in the matter. This case is inserted because of the discussion of exemptions in gen. eral. The learning on the subject is fully gone into, and may afford aid in the examination of questions arising under State laws. [Reporter. The Carl Schurz. THE CARL SCHURZ. DISTRICT COURT--WESTERN DISTRICT OF TENNESSEE— JANUARY 27, 1879. 1. SALVAGE ALLOWANCE.-The court will not allow the whole net proceeds in the registry as compensation to the salvor, even when his actual expenditures exceed the amount of the fund, except in cases where the owner abandons the property and neglects to reclaim it by appearance in the suit. 2. SAME-SAME-CASE IN JUDGMENT.-Where the proof showed that a sunken vessel, after being raised, was worth $1,700, but being sold pendente lite she brought only $792; and that the libellant actually expended $568.95, under circumstances which would ordinarily have justified an allowance of one-half the property, the court allowed only onehalf the net proceeds in the registry. 3. SAME LOSS BY DEPRECIATION IN VALUE.-A salvor must bear his share of the loss by depreciation in value. He is sub modo a joint owner, and in the absence of an express contract, he cannot recover on any theory of a debt due either by the owner or the property, with a lien to be satisfied, at all hazards, to the full extent of the proceeds in the registry. H. C. Warrinner, for libellant, cited: Post v. Jones, 19 How. 150, 161; Butler v. The Finis, 4 Phil. 38; 4 Abb. Nat. Dig., p. 103, pl. 104; The Zealand, 1 Low. 1; Spencer v. The Chas. Avery, 1 Bond, 117; 210 Bbls. Oil, 1 Sprague, 91; The Waterloo, 1 Bl. & How. 114; The Rising Sun, 1 Ware, 385; The Jubilee, 3 Hagg. 49; The Bastian, S. C. Rob. 323; The Wm. Hamilton, 3 Hagg. 168; Derelict Unknown, Id.; Brig Susan, 1 Sprague, 91; 2 Pars. Ship., 263, 281, 310, 312. R. Dudley Frayser, for claimants, cited: Brig Minnie Miller, 6 Ben.; The John Perkins, 3 Ware; The Speedwell, Id.; The Acorn, Id.: The Waterloo, 1 Blatch. & How. 126; The Comanche, 8 Wall. 448-473; Two Anchors and Chains, 1 Ben, 80. The Carl Schurz. HAMMOND, J.-The question reserved at the hearing grows out of the following state of facts: The libellant raised the sunken vessel at an actual expenditure, as he testifies, of $568.95, for labor of hands employed by the day, hire of flats, crabs, jacks, and other tools employed in the work, and the compensation of a diver and his assistants. The vessel was not derelict, her owner and captain remaining all the time during the work with the boat. I think there is no doubt that the preponderance of the proof shows that too much time was expended by the libellant in the work, and that it could and should have been accomplished at a much less cost than the libellant incurred, but it is difficult to say from the proof at how much less it could have been done. The estimates made by the witnesses, under the circumstances they detail, are entirely unsatisfactory. It was mere guessing on their part. The proof establishes the fact that the boat, which was a very small steamboat, converted from a barge, was worth, at the time of the disaster, not more than $2,000, and that the repairs put on her after she was raised cost from $200 to $300; that is, the repairs necessary to cover the damage done by the sinking and raising, and not taking notice of the repairs which were in the nature of betterments. This would make her value in the hands of the salvor, after she was raised, not less than $1,700. When we consider the danger of a total loss from the perilous position in which the vessel was placed by the disaster, the difficulties in the use of crude appliances for performing the service which seem to have been the best that were available, the cold weather and running ice during part of the time, and the actual expenditure of money, as above stated, which is found by aggregating from the libellant's account, as he proves it, the sums paid out by him, and leaving out of view the other charges made for his own services and hire of his own tools, I think one-half of the value of the boat, The Carl Schurz. which was comparatively of small value at best, not too much to be allowed as compensation to the libellant. This would be very nearly the exact amount he claims by the account which he tenders as a statement of the expenditures he made and the value of his services as estimated by himself for the purpose of aiding the court in fixing the allowance of salvage, if we include the charges for his own services and the use of his own tools, and are to make the allowance on the basis of value as shown by the proof in the case, say on a value of $1,700. But the libellant, having seized the vessel by process in this case, on his application, some ten or fifteen days afterwards, she was sold pendente lite, while almost imbedded in the ice, at an unfavorable time and under unfavorable circumstances, so that she only brought $792, which is the sum in the registry to answer costs and for distribution between the salvor and the owners. It is not certain that if the property had been kept in the control of the marshal until more favorable weather for a sale it would have brought any more. So far as the proof is concerned, it is all speculation, but I think it is fairly inferable from the circumstances shown by the proof that, owing to the inauspicious conditions, the vessel has been sold for much less than otherwise she would have brought. The libellant claims that his compensation should be fixed on the value as shown by the proof and not the sale, or else that the proportion should be so increased as to give him a larger amount than one-half the net proceeds in the registry, and that, under no circumstances, should he be allowed less than his actual expenditures of money. This would exhaust the whole fund, leave nothing for the owners, and throw all the loss of the unfortunate sale on them. I do not think the element of time between the raising and selling of the vessel is at all material. It is not probable that she would have sold for any more on the day she was The Carl Schurz. raised than she did fifteen days subsequently, and, therefore, it is merely another mode of claiming on the actual value, as shown by the proof, to argue that a salvor is entitled to recover on the value at the time of the service and not on any subsequent value. For all practical purposes the date of the service and date of the sale are the same in this case. The question remains whether the court can look beyond the fund in its hands in estimating the value of the property. If the depreciation grows out of the misconduct of the parties in possession, whether it be the owner or the salvor, I have no doubt that misconduct may enter as an element into the judgment of the court in making the allowance; but there is no misconduct here, unless it may be that the action of the libellant in pressing a sale at an unfavorable time may be so considered. There is nothing in the proof to show whether this was bad conduct or not, for it may be the expense of keeping the property, or the danger of losing it by delay, made a speedy sale a necessity. Let this be as it may, I shall treat the case as one without fault on either side in respect of the sale, because the proof does not show otherwise. Neither do I think it just to treat the disastrous sale as the result of the failure of the owners to bond the property, as it is called. There is nothing to show that they could have given a stipulation for her value, and if there were, it is not a right the libellant has to a bond, but it is entirely optional with the owners whether they give bond or leave the property with the court. In cases where the owner abandons his property to the salvors, makes no claim, or is unreasonably long in asserting his rights, the court may, undoubtedly, decree the whole to the libellant. The Zealand, 1 Low. 1; Two Anchors and Chains, 1 Ben. 80. It is very earnestly insisted that the element of "reward" and not entirely that of compensation, is the rule for allow |