lant Murphy. The consideration expressed in the sale was $1,500, but no money passed, a settlement being made by deducting some charges of a wrecking company of which Murphy was president, for services upon some work in which the insurance company was interested. At this time neither Murphy nor the insurance company knew the whereabouts of the wreck. Prior to this sale, respondent seems to have sent out a diver by the name of Falcon, who on his return represented to the respondent that the wreck lay some three or four miles north of Evanston, a village about ten miles north of Chicago. This was in May. Some time in July or August her location was definitely ascertained by the libellant through Clark, a diver. There seems to have been no difficulty in finding the wreck, but libellant seems to have been the first to locate it definitely, through Clark, who obtained the use of one of respondent's tugs for that purpose. His opinion was that the cargo could not be saved, if saved at all, except at a cost exceeding its value, by the aid of any existing or known machinery. The schooner lay in about forty feet of water, at or near the spot where she was last seen at anchor. No attempt was made to raise the schooner or her cargo during that season; but there was some evidence, that soon after the purchase, libellant began building an elevator, which he claims was intended for this purpose, but, as witness stated upon his cross-examination that he began building the elevator in April, four months before the schooner was found, for another wrecking enterprise, and as it was never constructed so as to have been of any service in raising this coal, it seemed extremely doubtful whether it was ever intended for that purpose.

On the 31st of January, 1884, the respondent, Dunham, addressed a circular letter to the underwriters of the vessel and to Murphy, the libellant, in which he said:

"Please take notice that I, as part owner of the schooner Wells Burt, am desirous of raising and restoring said vessel, and saving her cargo. You, having an interest in said vessel, have a right to determine whether you will rescue said vessel and cargo or abandon the same to whomever may attempt it. I will proceed to save said cargo if you will, within thirty days, let me know what your wishes are in the premises; and, unless I hear from you in writing at the expiration of said time, I shall infer that you abandon the same as a total loss, and that I am at liberty to save what I can."

To this the underwriters made somewhat evasive answers, without expressing any intention of saving or joining in saving the property. Libellant replied, under date of February 15, as follows:

"In reply to your favor of Jan. 31st, would say that I do not abandon my interest in schooner Wells Burt and cargo, nor authorize you or any party to save what you can from same, but hereby give you due notice that I have already begun preparations for rescuing the same.'

Murphy visited Chicago some time after that, called upon Dunham, and tried to buy his interest in the schooner. Nothing further was done until about the middle of June, 1884, when respondent fitted out an expedition, buying a special pump for the purpose, at an expense of $3,000, and went to work to save the cargo and vessel, confessedly without any license or authority, express or implied, from the underwriters or from Murphy.

Before beginning work however, and on the 4th of June, respondent, through his proctor, Mr. Rae, applied to the secretary of the treasury, asking that official to authorize some one to make a contract in be

half of the United States, under the provisions of the Revised Statutes, section 3755, for the recovery of the property, if the secretary should be of the opinion that the vessel and cargo were property that " ought to come to the United States" within that section. He received no reply to this communication. Respondent worked at the wreck twenty-eight days, at times being compelled to suspend on account of the weather, and succeeded in raising 981 tous of coal, which he took to Chicago and sold in open market for the best obtainable price, viz., $4,515.25. In saving this coal, with the anchors, chains, etc., he incurred an expense of $5.487.27, or a loss to himself of $527 upou the whole expedition. He limited his operations entirely to the cargo, saving all that it would pay to get, and made no effort to recover the vessel. During the operation of saving no one appeared to assist, either with money. means or appliances, and the consignee in the bill of lading, upon notice of the arrival of the coal at Chi cago, refused to receive the same and pay the charges, declaring that he had been paid by the underwriters. No one claimed the coal after it was saved until May, 1885, when Murphy began suit in this court. It appears that Murphy was informed of respondent's operations while the cargo was being taken out. There seem to have been about 100 tons left in the schooner. H. H. Swan, for libellant.

H. C. Wisner and Robert Rae, for respondent.

BROWN, J. 1. Respondent's first objection that there was no property in esse which could be the subject of a sale from the underwriters to the libellant I think is untenable. It is true that the property at that time lay at the bottom of Lake Michigan, and that its exact position had not been ascertained; but only six weeks had elapsed since the vessel was lost; her location was known, approximately, and was readily ascertainable. The ownership of the coal was still unchanged, and the mere fact that libellant was willing to take and pay for a bill of sale is sufficient evidence to show that there was not only animus revertendi, but a spes recuperandi. The cargo had not, at the time of the sale, been converted, nor was it in the adverse possession of a third person, as was the case in Gardner v. Adams, 12 Wend. 297; McGoon v. Ankeny, 11 Ill. 558, and Dunklin v. Wilkins, 5 Ala. 199, and the mere absence of present control over it was not sufficient to invalidate the sale. In this respect the case is much like that of Barr v. Gibson, 3 Mees. & W. 390, in which it appeared that, at the time of the sale, the ship was on a foreign voyage, and had gone ashore and suffered great damage, but it was not until after the sale that she became a total loss. It was held that upon this evidence the subject of transfer did exist in the character of a ship, although at the time she might have been a total loss within the meaning of a contract of insurance. I understand that any existence of a thing sold, beyond a mere right of action or a mere possibility of expectancy, may be the subject of a sale, even though the property be beyond the reach of the vendor or vendee, or in the actual possession of a third person. Tome v. Dubois, 6 Wall. 548; The Sarah Ann, 2 Sum. 206; Low v. Pew, 108 Mass. 347.

Undoubtedly if the thing has ceased to exist under the name by which it is sold, as, if an article of jewelry be melted, or a ship has gone to pieces upon the rocks, the sale is void. 1 Benj. Sales, part 1, chap. 4. In such case the buyer does not get what he bargains for; but in this case the situation of the coal, and the fact that it was submerged, were perfectly well understood by both parties, and there was not the slightest uncertainty in the minds of either as to what the subject of the transfer was.

2. Respondent further assumes that the failure of the libellant to take proceedings to gain possession of

owner of the goods. At any rate the modern system
of marking goods has completely supplanted this
primitive and inconclusive proof.

But I think this statute has no application to the
case under consideration for two reasons:

First. The coal lying at the bottom of the lake was not by the common law wreck of the sea. Lord Hale in his treatise De Jure Maris, 37, speaking of wreck, says: "The kinds of it are two: First, such as is called properly so, the goods cast upon the land or shore; second, improper, for goods that are a kind of sea waifs or stray; flotsam, jetsam and ligan." This coal had never been cast upon the land or shore, and hence was not wreck proper. It was not flotsam, because it did not float upon the water. It was not jetsam, because it never had been cast into the sea to save the ship; nor was it ligan, because the very definition of the word from the Latin "ligo," to bind, indicates that it must be buoyed; but it was simply property lying at the bottom of the sea, which "awaits its owner." 1 Bl. Comm. 290-295; 3 Black Book Adm. 441, 445; 4 id. 517; Ang. Tidewaters, chap. 10; Baker v. Hoag, 7 N.Y. 555.

Second. The year and a day does not begin to run from the day of the wreck, nor from the time the goods were first discovered, but from the day the goods are actually taken and seized by the finder. Thus, in the case of Dunwich v. Sterry, 1 Barn. & Adol. 841, 842, it is said that this year and a day dates from the seizure and actual possession of the lord; "for, until then," says Lord Coke, "it is not notorious who claims the wreck, or to whom the owner shall repair to make his claim, and show him his proofs." This also corresponds to the modern English statute upon the subject of wrecks (17 & 18 Vict., chap. 104), by which (section 470) the owner is given a year from the date at which the wreck came into the possession of the receiver to establish his claim. This suit was begun within a year after the coal was raised by the respondent. Sir Henry Constable's Case, 5 Coke, 105.

3. It is entirely clear to my mind that the United States has no title to this coal, even if it were to be treated as derelict, or property of which no owner could be found, since the proprietorship of the State extends to the center of the lake, subject only to the right of Congress to control its commerce and navigation. Pollard's Lessee v. Hagan, 3 How. 212, 230; Barney v. Keokuk, 94 U. S. 324, 338.

4. Nor is there any thing in the statute of Illinois which indicates that the title ever became vested in the State. The only statute having any connection with the subject is limited to "water-craft, timber or plank found adrift on any water-course within the limits or upon the borders of this State," and has no application to any other species of cargo. Starr & C. Ill. St., chap. 50, $ 21. It could only become the property of the State by applying the common-law doctrine of escheat.

Indeed, after careful search of all the authorities upon the subject, I can find nothing to indicate either that of wrecks of the sea, or property lying at the bottom of the sea, which can be identified by its owner, the owner loses his title, provided he appears within a year and a day to make claim to it. The salvor of such property may, undoubtedly, retain possession of it until his compensation is paid, or may take proceedings to procure a judicial sale in admiralty, and upon such sale it is not unusual to award the whole of the proceeds to the salvor, particularly if his expenses have exceeded the value of the property, but in no other way can the title of the owner be divested.

I was at first inclined to the opinion that the respondent possessed rights in this case superior to those of a mere stranger, by means of the reservation in his abandonment of the "benefit of salvage," but am satisfied upon reflection that these words refer, not

to the right to save the ship, but to his uninsured interest in whatever might be saved by the underwriters, or any other person undertaking the work of salvage. The primary signification of the word "salvage" is the thing or goods saved from shipwreck or otherwise; and in this sense it is frequently understood, though more commonly used to denote the compensation made to those who have saved property in peril at sea. Conceding, upon the authority of The Manitoba, 30 Fed. Rep. 129, that an absolute abandonment of a ves sel, and of all right, title and interest of the owner thereto, extends as well to the uninsured as to the insured interest of the owner, about which there seems to be some conflict of opinion, the insured by this clause intended to reserve to himself the benefit of such proportion of the property saved as would be appropriate to his uninsured interest.

5. Regarding it then as settled that the libellant had a valid title to this coal, and that respondent was a trespasser in interfering with it, it only remains to consider the question of damages. If respondent had taken this coal to Chicago, and promptly libelled it for salvage, or had retained possession of it until his claim was settled, it is probable that the court would have awarded him a large portion, if not the entire proceeds, of its sale. But instead of this he assumed to dispose of it at private sale, and now upon a showing that his expenses exceeded the amount of such proceeds, demands either that the libel be dismissed, or nominal damages only be awarded. Upon the other hand, libellant claims that, as the trespass was willful and deliberate, he should be awarded the entire proceeds of the sale at Chicago, or at least what the coal was worth when it was raised from the wreck and placed upon the lighters. There is, it is true, an abundance of cases, chiefly for the conversion of timber, which hold that where the defendant is a willful trespasser the owner will be awarded the full value of the property at the time and place of demand or of suit brought, with no deduction for labor and expenses in cutting the timber and floating it to a market. Wooden-Ware Co. v. United States, 106 U. S. 432; Bly v. United States, 4 Dill. 464; Martin v. Porter, 5 Mees. & W. 351; United States v. Mills, 9 Fed. Rep. 684.

In Grant v. Smith, 26 Mich. 202, this right to the full value of the timber cut is put upon the ground that the owner of the pine tract is frequently desirous of retaining the timber for an appreciation of the land and ought not by the willful trespass of another to be compelled, practically, to sell it at its then stumpage value, and lose his chance for a rise in price. This argument however obviously has no application to a case of this kind, as the value of the coal at the bottom of the lake was all that ever could be realized from it. I regard the rule above stated as too severe to apply to a case of this description. While the respondent was in one sense of the word a willful trespasser, in that knowing, or being bound to know, libellant's rights, he acted in defiance of such rights; still his conduct was wholly lacking in that element of furtiveness and bad faith which appears in the case of Livingstone v. Coal Co., L. R., 5 App. Case, 25, to have been regarded by Lord Hatherley as the chief factor in determining the court to this harsh measure of damages. Both vessel and cargo, in this case, had been abandoned by their owners, and for some time their location was unknown. Both were within the meaning of the law derelict, and the fact that libellant subsequently discovered their location, purchased the coal, and intended at some future time to raise it, did not deprive it of the character which was fixed upon it by the loss and abandonment. The Laura, 14 Wall. 336; The Coromandel, Swab. 208; L'Esperance, 1 Dod. 46; The John Gilpin, Olcott, 78; The Fairfield, 30 Fed. Rep. 700; The Ann L. Lockwood, 37 id. 233.

tion is required in the first instance; while others hold in accordance with the instructions of the trial court in this case, that the presumption of law is that the alteration was made after delivery, and therefore the burden is upon the holder to explain it, and show that it was made under circumstances that would not invalidate the instrument.

In addition to these two leading and opposing views, different courts have adopted certain intermediate or compromise rules, none of which need be here referred to, except one, seemingly adopted by some very eminent courts, to-wit, that the alteration raises a presumption against the instrument when it is suspicious; otherwise not. But this furnishes no definite rule by which to determine when the burden is upon the holder to explain the alteration and when it is not. Who is to determine, and by what test, whether the alteration is suspicious? And if held suspicious, when must it be explained--before or after it is admitted in evidence? Evidence as to when, by whom, and with what intent, an alteration was made may be one or both, of two kinds, extrinsic or intrinsic, the latter being that furnished by the inspection of the instrument itself, such as its appearance, the nature of the alteration, etc. These things, considered in connection with the relation of the parties to the instrument, may often constitute important evidence. And it seems to us that the rule just referred to amounts to nothing more than saying that in some cases this intrinsic evidence may tend to prove that the alteration was made after delivery, and therefore throw the preponderance on that side, unless the holder of the instrument produces extrinsic rebutting evidence. Thus construed, we would find no special fault with the rule. But it is incorrect to call this a presumption of law; it is simply an inference of fact drawn from the evidence in the case.

The doctrine that the presumption of law is that the alteration was made after delivery, and that the burden is on the holder in the first instance to explain it, seems to us to be unsound as well as harsh. Presumptions of law, if indulged in, should be in favor of innocence rather than guilt. Moreover all disputable | presumptions of law are based upon the experienced course of human conduct and affairs, and are but the result of the general experience of a connection between certain facts; the one being usually found to be the companion or effect of the other. Hence such presumptions ought to be conformable to the experience of mankind, and the inference which, in the light of that experience, men would naturally draw from a given state of facts.

Now it is a matter of common knowledge that at the present day every man is to a certain extent his own lawyer, and that laymen frequently draw their own contracts, without much regard to form, in which erasures and interlineations are the rule rather than the exception. Indeed the same thing is unfortunately true of many instruments which come from the hands of lawyers. It is also a matter of common knowledge that printed blanks are now in general use for almost all kinds of contracts, and that it is the common practice, even with many lawyers, in case the blank does not conform to the actual agreement of the parties, to erase and interline, without making any notation that this was done before execution. Whatever might have been the fact formerly, when but few men could write, and when contracts were usually drawn by skilled conveyancers or scriveners, with great care, and wholly in their own proper handwriting, the rule under consideration is wholly unsuited to the business habits or usages of this country at the present day. The mere existence of an interlineation or erasure in an instrument would not naturally or ordinarily produce an inference in the minds of men that it had been

fraudulently altered after execution. Indeed unless the alteration was of such a suspicious character as to furnish intrinsic evidence to the contrary, we think the natural inference would be that it was a legitimate part of the instrument, and was made at or before its execution. We are therefore of opinion that the correct rule is that the burden is upon the maker to show that the alteration was made after delivery; or perhaps, to state the proposition with more precision, the proof or admission of a signature of a party to an instrument is prima facie evidence that the instrument written over it is his act, and this prima facie evidence will stand as binding proof, unless the maker can rebut it by showing by evidence that the alteration was made after delivery; and that the question when, by whom and with what intent, the alteration was made, is one of fact to be submitted to the jury upon the whole evidence, intrinsic and extrinsic. Many authorities however while admitting that the general rule is that the law presumes that an alteration in an instrument is a legitimate part of it until the contrary appears, hold that this rule does not extend to negotiable securities. Most of the text-books seem to lay this down as the law, but at the same time admit that the opposite view has the sanction of eminent judicial authority. The reasons usually assigned for applying to negotiable paper a rule different from that applied to other instruments are, substantially and briefly, two: First. As notes and bills are intended for negotiation, and as payees would not receive them when clogged with impediments to their circulation, there is a presumption that such an instrument starts fair and untarnished, which stands until it is repelled. Second. That without such a presumption to sustain him the maker would be defenseless, as he cannot be expected to account for what happened after the paper left his hands. The first of these reasons, it seems to us, rather begs the question, and whatever force it might have possessed in times when the use of so-called negotiable instruments was confined to strictly commercial paper, it can have but little weight now, when such instruments are taken and given by all classes of people, in the most informal manner, as mere evidences of indebtedness, and without reference to their subsequent negotiation. Most of what we have suggested on this point is equally applicable to promissory notes. The second reason might have had much force when parties were not competent witnesses, but very little now, when they may testify in their own behalf. No one can better know than the maker what condition an instrument was in when it left his hands. We can see no good reason in principle why any distinction in this regard should be made between negotiable paper and other instruments, and the tendency of many of the late American authorities is to repudiate any such distinction. Bailey v. Taylor, 11 Conn. 531; Hunt v. Gray, 35 N. J. Law, 228; Gooch v. Bryant, 13 Me. 386; Crabtree v. Clark, 20 id. 337; Neil v. Case, 25 Kans. 510. See also Beaman v. Russell, 20 Vt. 205; Davis v. Jenney, 1 Metc. 221.

Our conclusion therefore is that the instruction of the court below was erroneous, and for that reason the order refusing a new trial must be reversed.

With reference to a new trial, it becomes proper to consider the effect of Douglas' so-called ratification of the alleged alteration. The court found that upon the discovery of it he denounced the alteration as fraudu lent and unauthorized, and did not acquiesce therein. This is not justified by the evidence. While it appears that upon being shown the note by the bank-then the holder-he asserted that it had been altered since he delivered it; yet, so far from repudiating it, according to his own admissions, he repeatedly paid interest on it, voluntarily and without objection. If the altera