Page:Federal Reporter, 1st Series, Volume 8.djvu/174

160 FEDERAL REPORTER. �sels and towed into Provincetown. Some ttoat ashore at high water and ara left stranded on the beach as the tide recedes. Others float out to sea and are never recovered. The person who happens to find them on the beach usually sends vvord to Provincetown, and the owner cornes to the spot and removes the blubber. The flnder usually receives a small salvage for bis services, Try-vyorks are established in Provincetown for trying out the oil. The business is of cdnsiderable extent, but, since it requires skill and experi- ence, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a.whale. It swims with great swiftness, and for that reason can- not be taken by the harpoon and Une. Each boat's crew engaged in the busi- ness has its peculiar mark or device on its lances, and in this way it is known ty whom a whale is killed. �The usage on Cape Cod, for many years, has been that the person who Mils a whale in the manner and under the circumstances described, owns it, and this right has never been disputed until this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, he shot and instantly kUled with a bomb-lance the whale in question. It sunk iramediately, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one EUis, 17 miles from the spot where it was killed. Instead of sending word to Princeton, as is customary, Ellis adver- tised the whale for sale at auction, and sold it to the respondent, who shipped oJi the blubber and tried out the oil. The libellant heard of the flnding of the whale on the morning of the 15th, and immedlately sent one of his boat'p crew to the place and claimed it. Neither the respondent nor Ellis knew the whale had been killed by the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomb- lance, by some person engaged in this species of business. �The libellant clainas title to the whale under this usage. The re- spondent insists that this usage is invalid. It was decided by Judge Sprague, in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the eaptors ; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the propercy of the original eaptors is diverted, even though the whale may have dragged from its anchorage. The learned judge says : �" When the whale had been killed and taken possession of by the boat of the Ilillman, (the fnst taker,) it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation." �In Bartlett y. Budd, 1 Low. 223, the faets were these : The first officer of the libellant's ship killed a whale in the Okhotsk sea, anchored it, attached a waif to the body, and then left it and went ashore at ��� �