Albers et al. v. Whitney. 2 fines and recoveries) in the English courts of justice.1 Judgments and records are there never allowed to be amended, except, in the first place, where the case is within the reach of some statute; or, in the next place, where there is something to amend by, that is, where there is some memorial, paper, or other minute of the transactions in the case, from which what actually took place in the prior proceedings can be clearly ascertained and known. In the case before us, there has been no mistake in the prior proceedings. The mistake is in a fact, that never was brought out in the prior process, or pleadings, or proceedings in the cause. It is a mistake, dehors the record and proceedings, a mistake in the christian name of one of the plaintiffs, which could not be made apparent except by some plea, which should have disclosed it. If known to the defendants, they waived the objection, and submitted to have a judgment against them by default. It appears to me, then, that this is not a case for any amendment, authorized to be made by this Court. Neither do I perceive, in what respect the purposes of justice would be aided by the amendment. On the contrary, as one of the defendants has been committed on the execution, which issued on the judgment, and has been discharged under the Poor Debtors' Act from his imprisonment, there might be danger, that the Court might, by the amendment, do injustice or injury to him. Suppose a new execution to issue after the amendment, might not that defendant be taken anew in execution, notwithstanding his former discharge? I do not say, that he could. But we ought not to subject him to the hazard. Besides; the amendment does not seem necessary for any reasonable object. The judgment, as it stands, concludes all the defendants, as to the very defect in controversy; and it is 1 1 Tidd Pract. (9th ed. 1828.) 711, 712. VOL. IX. 40 2 Id. 713, 714. Bearse et al. v. Three hundred and forty Pigs of Copper. not now open to them to contest the fact, that the plaintiff's name was, as stated in the writ and declaration; at least, so far as this judgment is concerned, its validity on this point cannot be questioned. Motion overruled. JOSHUA L. BEARSE AND OTHERS, LIBELLANTS FOR SALVAGE, v. THREE HUNDRED AND FORTY PIGS OF COPPER, OF THE CARGO OF SHIP MERCURY, THE WASHINGTON INSURANCE COMPANY, AND OTHERS, CLAIMANTS. Courts of Admiralty will not encourage appeals in salvage upon slight or frivolous grounds, or, indeed, in any cases, except upon some plain, clear, and determinate mistake of law or fact in the Court below, which is manifestly not justified by the circumstances; and the onus probandi of such mistake is upon the appellant. In salvage cases, where a contract is made between the parties under circumstances, where there is no such necessity, as to require immediate relief, at any expense or hazard, on the one side, and on the other there is no obligation to lend the required assistance, and no motive to take advantage of the urgency of the peril in driving an unconscionable bargain, the Court will adopt and enforce the contract as just and conscientious. The maritime policy is to make a liberal allowance in salvage cases. The highest compensation, which is ordinarily allowed in the most meritorious cases, is one moiety, and that is rarely given. There are some exceptions, as where the property saved is very considerable, and the danger and difficulty of the service are so great as to require an extraordinary compensation. Where several contracts for salvage services were made at various successive times, and a subsequent salvage service was performed, under no definite contract, the rule (of salvage) fixed in the prior contracts was held not to be imperative, but only to be an auxiliary circumstance in determining what was a fair allowance for such subsequent salvage service. LIBEL for salvage. The Libel in substance stated as follows : That in February, 1837, the ship Mercury, owned in Boston, Bearse et al. v. Three hundred and forty Pigs of Copper. struck upon a reef, called Pollock Rip, near Monomoy Point, with a large and valuable cargo of wool and copper, and was totally lost, and abandoned to the underwriters. That the wreck went to pieces, and among other things, 4600 pigs of copper became imbedded in the sand, and so remained, and became derelict. That the libellant, by authority given by Thomas Lamb and Caleb Curtis, agents for the owners of the ship and cargo, recovered a large quantity of merchandise before the ship sunk, and received a salvage of 27 per cent. on the net proceeds of some of the property, and 19 per cent. on the residue. That in August, 1828, the ship having sunk, the libellants and agents entered into a contract, by which 50 per cent. was allowed them, on all the copper they should recover; in pursuance of which, they did recover 108 pigs of copper, and delivered them to Lamb and Curtis, at Boston, and were paid one half the net proceeds. That they were afterwards authorized to watch for a favorable opportunity to recover more, which they did, during the whole of the last winter; and such favorable opportunity having presented itself, the libellants diverted their schooner Pearl from her occupation, as a fishing vessel, hired suitable persons, and procured machinery and apparatus at great expense, and proceeded to fish up pigs of copper from the sand. That through fear of forfeiture of the schooner, they surrendered the former license, and took out a coasting license, and devoted the vessel wholly to the business of getting up this copper. That, between the 1st of May and the 9th of June, they recovered, with great labor, 340 pigs of copper, laboring, on an average, 20 out of the 24 hours; and that the average depth of water was 11 feet, and at high tide, 16 feet. That the libellants could not get their vessel insured, while thus engaged; that the weather was rough, and Pollock Rip a dangerous place. That the vessel received great damage, and was much Bearse et al. v. Three hundred and forty Pigs of Copper. exposed, and that the labor was far greater than in recovering the former portion of the cargo. That the libellants supposed, that the former contract, allowing them one moiety of the proceeds, still subsisted, or if it did not, that the agent would carry out the spirit of that contract; without which belief, they would not have undertaken the labor. That these services were worth more than 50 per cent. of the property recovered. That, while thus employed, on or about the 20th of May, 1839, the said Lamb wrote to the libellants, that the owners would allow only one third of the proceeds as salvage, which letter was received while the libellants were employed, and had recovered considerable copper; and that they immediately wrote and refused to agree to take less than one moiety, and continued, by suitable apparatus, to fish up the copper, intending to claim such compensation as the Court of Admiralty should decree. That on the 9th day of June, the said Lamb ordered them not to recover any more, unless they were willing to accept one third of the net amount, which they refused. That the libellants alone have performed this service; and, in consideration of its danger and risk, that they are entitled to meet and competent service. That in consideration of the risk and danger, the respondents entered into a contract with one or more persons, to recover what portion of the copper they were able, for which they were to pay over to the said claimants, 25 per cent. and no more; and the libellants pray, that a true copy of such contract may be annexed to the answer. The Answer in substance stated the circumstances of the wreck and the cargo, and admitted, that on June 3d, the respondents made a contract with the libellants, allowing them 27 per cent. for the merchandise recovered; and further stated, that in consideration of the greater difficulty of obtaining the copper during the winter season, and upon the representation of one Amariah Harnden, an agent of the respondents, that he Bearse et al. v. Three hundred and forty Pigs of Copper. had constructed certain machines, peculiarly well adapted for the recovery of the cargo, they entered into another contract on August 4th, 1838, allowing one moiety of the proceeds, for the ensuing three months, as recompense for salvage services, and that it was only for these reasons, and for this limited space of time, that the respondents would make such a contract. That the respondents paid the libellants, on September 1st, 1838, $1656, being the half of the proceeds of 108 pigs of copper, taken up in those three months, and that part of these pigs had been recovered before making this contract, and fraudulently concealed for some unlawful purpose. That 40 pigs only had been recovered during the month of August, and that the Court should decree the whole $1656, to be paid to these respondents. That, on the 10th of November, 1838, the same contract was renewed, to run to March 1st, and that there were no other contracts. That the machinery, or apparatus used, was a pair of tongs, not exceeding six dollars in value, which was devised by A. Harnden, an agent of these respondents, and that the other apparatus consisted of a common coal-hod and a common scoop, of the cost of about two dollars. That the libellants made false and fraudulent representations, to induce these respondents to grant them a higher compensation, which ought not to be decreed. That the injury to the schooner Pearl arose from the eagerness and hurry of competition with other vessels, and not from the hazard and exposure; and that there could have been no difficulty in effecting an insurance; and that there was no exposure of life or property. That the libellants never had cause to believe, that any contract existed after March 1st, 1839. That by a letter of May 25th, 1839, these respondents offered the libellants one third of the proceeds as salvage money, which offer they refused; and that their continuance in their labors was a violation of the rights of these respondents; and they are, |